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MATTHESS v. STATE FARM MUT. AUTO. INS. CO.9/21/1994
In this personal injury case, the plaintiff appeals from a district court order denying his motion for new trial following a jury trial. In his motion, the plaintiff challenged the verdict as inadequate. The court of appeals agreed, reversed the district court order, and remanded for a new trial on damages. We vacate the decision of the court of appeals and affirm the district court's order denying the motion for new trial.
Lloyd G. Matthess was a car salesperson working on commission for Bruce McGrath Pontiac, Inc. in Cedar Rapids. In June 1990 he was a passenger in a car a customer was test driving when it was struck broadside by a second vehicle at a Cedar Rapids intersection. [521 NW2d Page 701]
The force of the impact caused Matthess' car to flip over and skid into a concrete abutment at the edge of the intersection. Matthess' head and upper torso were pushed out of the driver's side rear window. His injuries included severe lacerations of the scalp and right ear. An attending physician closed these deep wounds and inserted a drain to alleviate fluid retention in the wound areas.
Matthess also sustained (1) fractures of several ribs, (2) wrist lacerations, and (3) a pulmonary contusion with a hemothorax (blood in the pleural cavity surrounding the lung) for which a drain was later inserted into Matthess' chest. He also had a clavicular fracture that was corrected by putting Matthess in a brace and a sling. He remained hospitalized for six days and convalesced at home until August.
In August Matthess returned to a restricted work schedule at Bruce McGrath. He testified his physical condition did not improve and he was plagued by constant, pounding headaches that would radiate to his neck, shoulders, and back.
On August 29 — on the advice of counsel — Matthess saw Dr. Marc Hines, a neurologist. In his deposition, Hines testified that Matthess suffered from (1) possible orbital frontal cortex injury, (2) significant chronic pain with posttraumatic headache, (3) posttraumatic trigger point dysfunction, (4) myofacial pain secondary to neck, shoulder, and low back injury, and (5) secondary depression. Hines prescribed physical therapy, anti-inflammatory and pain medications, antidepressants, and additional testing. An electroencephalogram showed abnormal slowing in the temporal areas of Matthess' brain.
Hines further reduced Matthess' work schedule at Bruce McGrath to two hours a day, three days a week. Because Matthess could not sustain this schedule, Hines removed Matthess from work altogether in late September.
On Hines' recommendation, Matthess saw Dr. Darlene Ehlers, a chiropractor, in late October. In her deposition, Ehlers testified that Matthess suffered from (1) acute hyperextension/hyperflexion injury with swelling in the cervical and thoracic spine, (2) headaches, (3) myofibrositis of the cervical and thoracic spine, (4) myofascitis of the cervical and thoracic spine, (5) segmental dysfunction in the cervical and thoracic vertebra, and (6) chronic pain.
Neurologist Dr. Richard F. Nieman examined Matthess in February 1991. He did so on behalf of the defense. According to Nieman's deposition testimony, Matthess suffered from a soft tissue injury of the cervical spine. He recommended a physical therapy program concentrating on soft tissue rehabilitation. Nieman saw Matthess again in April when he learned that Matthess had not started physical therapy. Nieman again suggested physical therapy to Matthess as the most appropriate way to improve his condition.
Nieman ultimately rated Matthess' range of motion impairment at four to sixteen percent. He believed that Matthess could reduce this r
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