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Berginz-Graef v. Lamon6/23/1998
APPEAL from a judgment of the circuit court for Milwaukee County: LOUISE M. TESMER, Judge. Affirmed.
Tracy Berginz-Graef appeals from a judgment entered after a jury awarded her damages in her personal injury lawsuit, which arose from an automobile accident. Berginz-Graef argues that the trial court erred in excluding medical testimony that she suffered from a herniated disc. Berginz-Graef also argues that the damages award was too low, and she requests a new trial on the issue of damages. We reject Berginz-Graef's arguments and affirm.
I.
BACKGROUND
On April 17, 1991, Berginz-Graef was injured in an automobile accident involving three other vehicles. Berginz-Graef brought suit against the drivers of two of the other vehicles and their insurance companies, and the employer of one of those two drivers. Prior to trial, the trial court granted a defense motion in limine to exclude all evidence regarding the permanency of Berginz-Graef's injuries. This ruling was based upon Berginz-Graef's failure to comply with the trial court's previous order to produce her medical witness for a deposition. Pursuant to its order barring permanency evidence, the trial court excluded medical testimony that Berginz-Graef suffered a herniated disc as a result of the accident. As an additional ground for excluding the testimony, the trial court ruled that the testimony was inadmissible because the medical expert based his opinion on an unreliable medical record.
II.
Discussion
Berginz-Graef argues that the trial court erred in excluding medical testimony that she suffered a herniated disc as a result of the accident. She argues that the testimony was admissible under Rule 907.03, Stats., and that the testimony did not violate the trial court's order excluding evidence of the permanency of her injuries. We do not reach the issue of whether the testimony was admissible under Rule 907.03, Stats., because we conclude that the trial court properly excluded the testimony pursuant to its pretrial order barring permanency evidence. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (if a decision on one point disposes of an appeal, the appellate court will not decide the other issues raised).
Berginz-Graef argues that the trial court erred in excluding evidence that she suffered a herniated disc from the accident. She does not argue that a herniated disc is not a permanent injury, but, rather, she argues that the jury would not have known that a herniated disc is a permanent injury without expert testimony to establish the permanency of a herniated disc, and that, therefore, the medical testimony that she had suffered a herniated disc would not have violated the pretrial order excluding permanency testimony. Additionally, Berginz-Graef asserts that the trial court erred in excluding the following expert medical testimony, which she offered by deposition, regarding the effects of a herniated disc:
Q. And just if you could educate myself and the jury, what effects of these type of injuries have upon an individual regarding their stamina, endurance, ability to exercise? How would that affect an individuals quality of life?
A. This patient who have-Talk about her back first. Patient who have a slipped disc in the back, their life, their physical activity would become restricted. They really cannot take things that we all take for granted any longer. Things that we can run, jump up and down, bend over to pick up a coin on the floor, bend up to pound a nail on the wall, lift grocery bag, lift heavy object, we do that, take it for granted, we never have to worry about. These people, they have lived wi
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