 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hanson v. American Family Mutual Insurance Co.11/8/2005
Before Fine, Curley and Kessler, JJ.
Jo -El Hanson appeals from trial court orders entered following a jury trial that awarded Hanson lesser monetary damages than she sought. Hanson asks this court to order that she receive $78,338.97 in past medical expenses, as opposed to the $25,000 the jury awarded. Hanson also seeks a new trial on the issues of her past and future pain and suffering, and on her loss of earning capacity (collectively, "remaining damages issues"), on grounds that the trial court incorrectly instructed the jury.
We conclude that when we apply the substantive law previously established by the Wisconsin Supreme Court in Fouse v. Persons,80 Wis. 2d 390, 259 N.W.2d 92 (1977), and by this court in Lievrouw v. Roth, 157 Wis. 2d 332, 459 N.W.2d 850 (Ct. App. 1990), to the jury's finding that Hanson suffered injury in the accident and to the undisputed fact that Hanson has incurred $78,338.97 in past medical expenses, she is entitled to those damages. Thus, we reverse the trial court's order denying Hanson's post-verdict motion to change the verdict answer and remand with directions to enter judgment for Hanson, awarding her $78,338.97 in past medical expenses, and for further proceedings consistent with this opinion.
We conclude that the trial court erroneously instructed the jury in a manner inconsistent with Fouse and Lievrouw. Because the error so infected the verdict as to undermine confidence in the outcome, we reverse and remand for a new trial on the remaining damages issues.
BACKGROUND
This case arises out of an automobile accident. The vehicle driven by Hanson was stopped when it was struck in the rear by a truck owned by defendant Lindell Motorsports, Inc., driven by its employee, Kevin Caldwell, and insured by American Family Mutual Insurance Company (collectively "Caldwell"). Caldwell's speed at the time of impact was approximately five to seven miles per hour. It is undisputed that Caldwell was fully responsible for the accident.
Hanson developed neck and lower back pain shortly after the accident. Physical therapy helped reduce the pain in her lower back, but not in her neck. Medical tests revealed an acute mild right C5-6 radiculopathy. Hanson was referred to a neurosurgeon who concluded that the pain in Hanson's neck was centered in the C4, C5 and C6 disks in her cervical spine. The doctor recommended, and later performed, surgery on Hanson to remove the C4-5 and C5-6 disks and insert a metal plate in her neck.
The case proceeded to trial, where liability for the accident was uncontested. The only issues were whether Hanson was injured by the accident, and the extent of those alleged injuries. Caldwell's theory of the case was that the impact could have been great enough to cause a strain, but was not great enough to cause structural damage necessitating surgery. Thus, Caldwell argued, the surgery was unnecessary. In support, Caldwell elicited testimony from its expert, a neurosurgeon, that the surgery was not necessary, and on cross-examination Caldwell's expert stated that it was malpractice to perform unnecessary surgery. However, Caldwell's expert agreed that Hanson acted appropriately in following the referrals she was given, and in following the advice of her doctor who ultimately performed the surgery that Caldwell challenges.
In its closing argument, Caldwell argued that Hanson's doctor performed unnecessary surgery and that Hanson exaggerated her injuries. Caldwell argued that if the jury believed Hanson was injured, then it should award her "a thousand dollars or two to cover medical expenses to be checked out by a family doctor" and "three, four thousand d
Page 1 2 3 4 5 6 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|