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Topp v. Leffers10/21/2005
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All things considered, Ms. Topp may have had an aggravation of her pre-existing spine complaints.
Id. at 149-50 (emphasis added).
Dr. Reecer was deposed on August 18, 2004. During the deposition, Dr. Reecer was asked about the five percent permanent partial impairment rating Dr. Schreier had given Topp. Dr. Reecer was specifically asked, "Doctor, in you opinion, is this 5% whole person impairment rating attributable to the November 24, 2000, car accident?" Id. at 210. Dr. Reecer responded, "Well, there's, there's no, we can't, medically, determine that, so I, I can't say that it is. I can say that there is an impairment present, but I cannot relate it specifically to the accident." Id. After this, Dr. Reecer was asked whether in his written report he had concluded that Topp may have had an aggravation of her pre-existing spine complaints, and he confirmed he had drawn that conclusion in his report.
Topp's jury trial began on August 24, 2004. During the trial, Topp testified that prior to the accident her problems in her neck and mid and lower back were diminished, but after the accident these problems were exacerbated. Neither Dr. Reecer nor Dr. Schreier testified at the trial, but Dr. Reecer's deposition and written report were entered into evidence as were Dr. Schreier's medical records regarding Topp. After Topp rested, Leffers moved for a directed verdict arguing that Topp had not presented sufficient evidence to prove the causation element of her negligence claim because she had not introduced expert medical testimony to demonstrate that her injuries were caused by the November 2000 accident. In considering Leffers' motion, the trial court stated:
Here's the difficulty I have, Mr. Urberg [Topp's counsel], and it's this. You've got a Plaintiff here who's had similar problems in the past. Ok. And, you've got all these medical reports in which, basically, the Dr. is recounting what the Plaintiff is telling the doctor. She presents with pain, that kind of thing. And, then you've got [Dr.] Reecer where he's never asked if there's; the essential question, whether or not to a reasonable degree of medical certainty the accident caused the injuries complained of. Now, what I've got here doesn't make it. I mean, you've got to have someone that says independent of the -- if it's not an objective -- like break or something like that, you've got to have someone, some expert, that says -- that locks (sic) up the causation to the injury . Without that you don't meet the Daub test. . . . I've got to have something here that addresses medical causation, causation with the accident and the injury. That's one of the four (4) tort requirements, one of the elements. I don't think the medical record alone can get that done unless the doctor has a letter that's been admitted into evidence that says that the patient presents with pain and I believe her injuries were causally connected to a reasonable degree of medical certainty to the accident in question. If I don't have that, I don't have causation connected.
Transcript at 76-77. That trial court then granted Leffers' motion for a directed verdict.
On September 20, 2004, Topp filed a motion to correct errors in which she argued that her testimony, in conjunction with Dr. Schreier's medical records and Dr. Reecer's deposition, was sufficient evidence of causation to allow her case to go to the jury. In considering Topp's motion, the trial court drew the following conclusions:
1. Because [Topp] was involved in a number of automobile accidents prior to the accident in question in this case, and because many of the symptoms and pains [Topp] complained of at trial pre-exi
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