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Stephens v. Auto-Owners Insurance Co.7/6/2005
In appealing the final judgment in favor of the insurance company in an underinsured motorist claim, appellant raises three issues. First, she claims that the court erred in precluding her counsel from reopening voir dire to ask additional questions relevant to the suit. We conclude that the court did not abuse its discretion where counsel had a full opportunity to examine the jury, and appellant has not made any showing of prejudice. Second, she alleges that the court abused its discretion in excluding part of her expert's medical opinion. We conclude that the court did not abuse its discretion in limiting that part of the expert's opinion, arrived at only two weeks before trial. Finally, she raises as error the court's overruling of her objection to the defendants making reference to facts outside the evidence in closing argument. We summarily reject that issue as any error was harmless. We therefore affirm and address the first two issues.
Otis Stephens was involved in an accident with an underinsured motorist where Stephens struck a vehicle making a left turn across his path. Stephens's car sustained minimal damage, and Stephens did not require medical attention.
Three days after the accident, Stephens went to see a chiropractor, complaining of pain in his head, neck, and back. The chiropractor diagnosed Stephens with a herniated disk. Two days later, Stephens returned, complaining of neck pain, vomiting, nausea, and headaches. Ten days later, he returned with slurred speech and short term memory loss. At this point the chiropractor referred him to a neurologist.
Beatrice, Stephens's ex-wife, took him to see the neurologist because of his difficulties with walking and vision. Stephens's condition continued to deteriorate over the next week, and he was examined by a neurosurgeon who performed x-rays that revealed a disk herniation. When his symptoms continued to increase, the doctor sent him for further tests at the hospital.
A round of tests revealed that Stephens had contracted a rare form of meningitis. By this time, he was incoherent and was unable to walk, talk, control his bowels, or sit up. Notwithstanding emergency treatment, he remains totally blind, cannot walk or control his bowels, and has short and long-term memory loss. He is one-hundred percent functionally disabled.
On behalf of Stephens, Beatrice filed suit claiming damages from the automobile accident against Stephens's insurance company, Auto-Owners. She claimed damages based upon his injuries from the accident, which she contended included the meningitis. At trial, an accident reconstruction expert testified that he believed the forces were sufficient for Stephens to have hit his chest on the steering wheel. According to Stephens's medical expert, Dr. Reifsneider, the impact of Stephens's body on the steering wheel could have caused the meningitis to occur by releasing an infection in his body. Prior to the accident Stephens had a lesion in his lung that contained Cryptococcus, a fungus. The doctor opined that it was encapsulated and dormant. When the accident occurred, the infection was released from its shell and dispersed throughout Stephens' body, causing the meningitis and his ensuing disability.
The court refused to permit Dr. Reifsneider to testify to a theory that he developed only two weeks prior to trial. The theory was that the accident delayed the diagnosis of the meningitis because the doctors attributed Stephens's symptoms to injuries caused by the accident rather than meningitis. This theory was also based upon the notion that the accident's force caused the release of the encapsulated fungus. However, Beatrice was allowed to read to the jury the defe
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