Robert Reed and Patricia Reed v. Michelle Lynn Schaeffer and Richard Schaeffer ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1923
Filed April 22, 2015
ROBERT REED and PATRICIA
REED,
Plaintiffs-Appellants,
vs.
MICHELLE LYNN SCHAEFFER
and RICHARD SCHAEFFER,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Personal-injury plaintiffs appeal the district court’s denial of their motion for
new trial. AFFIRMED.
Ted E. Breckenfelder of Breckenfelder Law Firm, Davenport, for
appellants.
Martha L. Shaff and Amanda M. Richards of Betty, Neuman & McMahon,
P.L.C., Davenport, for appellees.
Heard by Tabor, P.J., and Bower and McDonald, JJ.
2
TABOR, P.J.
Robert and Patricia Reed were hospitalized after Michelle Schaeffer, who
was operating while intoxicated, collided with their car. After a trial in which
Schaeffer stipulated fault and the Reeds did not present any expert medical
testimony, the jury awarded the Reeds compensatory damages and nominal
punitive damages. On appeal, the Reeds raise numerous issues based on the
district court’s denial of their post-trial motions.
We decline to grant relief on any of their issues. First, because the Reeds
did not present evidence from a toxicologist on the effect of Schaeffer taking a
prescription drug the night before the collision, the district court did not abuse its
discretion in excluding this speculative evidence. Similarly, the court did not
abuse its discretion in excluding a police car video as a discovery sanction. We
also uphold the district court’s ruling denying the Reeds’ motion for a new trial
based on allegedly inadequate damages. Defense counsel’s statements during
closing argument were not false, nor did they misstate the record. Assuming
error was preserved on the issue of future damages, we uphold the district
court’s determination expert testimony was required before future damages could
be submitted to the jury.
Finally, two of the Reeds’ claims cannot be considered on appeal. The
Reeds’ counsel acknowledges his failure to object to the PowerPoint
presentation during closing argument; therefore, he did not preserve this issue
for our review. Also, because the Reeds first requested the court appoint a
3
special master on jury-related issues in their post-trial motions, they waived any
claim of error by waiting until after trial to raise this issue.
I. Background Facts and Proceedings
While her blood-alcohol concentration was .09, Michelle Schaeffer ran a
stop sign at a Bettendorf intersection and collided with a car driven by Patricia
Reed in which her husband Robert was a passenger. The Reeds, who were in
their 70s at the time of the incident in April 2010, required treatment at a local
hospital: Patricia for one day and Robert for three days. Both Robert and Patricia
testified to experiencing considerable pain as a result of their injuries sustained in
the collision. In April 2012 the Reeds filed a negligence action seeking
compensatory and punitive damages.1
Schaeffer answered. Also in April 2012, she propounded interrogatories
and a request for production of documents. When discovery did not proceed
smoothly, Schaeffer filed a motion to compel in October 2012. On October 23,
2012, the court granted the motion and ordered the Reeds to “fully respond to all
outstanding discovery requests on or before November 9, 2012.” The court also
stated the Reeds’ failure to comply “shall” result in sanctions, “which can
include . . . prohibiting them from [presenting] any evidence at trial.” Thereafter,
despite the court’s order, the Reeds failed to fully respond to Schaeffer’s
discovery requests. The court set trial for September 2013.
In August 2013 Schaeffer filed motions in limine. On September 5, 2013,
Schaeffer filed a stipulation acknowledging fault and admitting as a result of the
1
The Reeds’ petition was filed against driver Michelle Schaeffer and vehicle-owner
Richard Schaeffer. For convenience, we will refer only to Michelle Schaeffer.
4
collision she was convicted of operating while intoxicated (OWI), first offense.
On September 6, 2013, the court ruled on Schaeffer’s motions in limine. Noting
the Reeds had been ordered to provide answers to outstanding discovery by
November 9, 2012, the court prohibited the Reeds from “introducing into
evidence any testimony, information, or other evidence that was sought by”
Schaeffer but not disclosed. Regarding unanswered discovery requests
concerning the Reeds’ medical records, the court prohibited the Reeds “from
admitting into evidence any medical records or expert testimony with the
exception of reference to records that were turned over to” Schaeffer or
“information supplied” to Schaeffer. “This does not preclude [the Reeds] from
talking about their own injuries that they have suffered.”2 As to medical records
after the Reeds’ initial hospital visits, the court prohibited the Reeds from
introducing any testimony, information, or other evidence that was sought by
[Schaeffer’s] interrogatories or requests for production of documents but not
produced.” The court did not exclude discovery the Reeds had, in fact, “provided
after November 9, 2012, but prior to the filing of the motion in limine.”
A jury trial commenced on September 9, 2013. The parties jointly
stipulated to medical expenses: (1) from April 15 to April 18, 2010, Robert Reed
incurred paid medical expenses of $22,569.60; and (2) from April 15 to April 16,
2
The court also prohibited the Reeds “from offering any testimony concerning the nature
and extent of permanency of their own conditions, as they do not have the medical
expertise required to render said opinions.” Regarding expert opinions that the Reeds
failed to disclose thirty days before trial, the Reeds told the court, “No expert opinions
are presently expected.” The court then ruled the issue was moot, but if the Reeds
reversed course and elected to call an expert, then the issue would be resolved by the
trial court.
5
2010, Patricia Reed incurred paid medical expenses of $17,489.41. The Reeds
and their two sons testified at trial. The Reeds also presented the testimony of
police officers Richard Streepy and Jeremy Salsberry. The jury returned a
verdict awarding Robert Reed $30,069.60 in compensatory damages3 and $1.00
in punitive damages and awarding Patricia Reed $19,989.41 in compensatory
damages4 and $1.00 in punitive damages. The Reeds filed two post-trial
motions: the first seeking adequate judgment (notwithstanding verdict) and a new
trial, and the second asking for appointment and reference to a master. The
court denied the motions, and this appeal followed.5
II. Standards of Review
“We review a district court’s evidentiary rulings for an abuse of discretion.”
Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014). Our review of the
district court’s denial of the Reeds’ motion for new trial depends upon the
grounds asserted in the motion. Clinton Physical Therapy Servs., P.C. v. John
Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). If the motion and
ruling are based on a discretionary ground, review is for an abuse of discretion.
Id. On the other hand, if the motion’s grounds for new trial are based on a claim
the district court erred on an issue of law, review is for legal error. Id.3
The verdict form lists $22,569.60 in past medical expenses, $6500 in past pain and
suffering, and $1000 in past loss of function of body.
4
The verdict form lists $17,489.41 in past medical expenses, $1500 in past pain and
suffering, and $1000 in past loss of function of body.
5
In her brief, Schaefer asks us to dismiss this appeal based on the Reeds’ failure to
meet appellate deadlines. Because our supreme court denied Schaefer’s motion to
dismiss, we need not address the issue.
6
III. Exclusion of Evidence of Schaeffer’s Prescription Medications
The Reeds contend the district court should have granted their motion for
new trial based on the court’s exclusion of evidence concerning Schaeffer’s
prescription medications. Schaeffer told the investigating officer she had
prescriptions for Paxil and Xanax, and she had taken Paxil at 7:00 the prior
evening but had not taken any Xanax. On appeal, the Reeds contend “the most
probative conduct warranting punitive damages included [Schaeffer’s]
admissions to police” about these medications. Therefore, “but for the blanket
prohibition of evidence of drug use with alcohol, such minimization of conduct
and $1 each punitive responsibility could not have occurred.”
Before the officers testified, Schaeffer objected and renewed her motion in
limine regarding prescription drugs, stating “without any testimony from a
toxicologist or some medical person who has training to say the [Paxil] has some
effect, [the evidence] is highly prejudicial.” The court then questioned the Reeds’
attorney:
THE COURT: What medical evidence is there that the Paxil
played any role in this accident?
MR. BRECKENFELDER: Well, I think it is going to be fairly
obvious to this jury that that was a contributing factor.
THE COURT: How so?
MR. BRECKENFELDER: From simple circumstances the
amount and volume of beer with the combination of drugs. That by
itself is a prosecutable offense, short of any type of toxicology
evidence.
THE COURT: All right. Ms. Shaff [Schaeffer’s attorney]?
MS SHAFF: . . . [T]hey never charged her with drug
possession or taking any drugs that she shouldn’t be taking . . . . I
don’t think that we can have testimony on Paxil without someone to
testify about it, and the police officer is not an expert on toxicology.
And it isn’t [a] part of why they charged her with OWI; it was related
to the alcohol. [The charge] doesn’t say it is related to Paxil
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inflaming or doing anything to that alcohol level. So this is
introducing a new issue and it is highly prejudicial.
The court ruled “the effect, if any, of Paxil in combination with alcohol is an
appropriate subject for expert testimony and not one which the jury should be
allowed to speculate in the absence of any such testimony.” The court excluded
the evidence, stating without expert testimony “there is no other legitimate
purpose for eliciting information as to whether and to what extent [Schaeffer]
ingested Paxil at any time before this accident.” The court’s ruling also
encompassed Xanax.
“Issues of relevancy and prejudice are matters normally left to the
discretion of the trial court; we reverse the trial court only when we find a clear
abuse of that discretion.” Shawhan v. Polk Cnty., 420 N.W.2d 808, 809 (Iowa
1988). To establish an abuse of discretion, the Reeds must show “the court
exercised its discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.” See Crookham v. Riley, 584 N.W.2d 258, 267
(Iowa 1998). While “the rules of evidence do not specifically recognize an
objection that a question calls for speculation,” Iowa Rule of Evidence 5.611(a)
“authorizes the district court to exercise reasonable control over the evidence,”
thereby authorizing the court “to address objections based on speculation and
conjecture.” Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 390 (Iowa
2012).
Our supreme court recently discussed the necessity of presenting expert
testimony to allow a jury to understand the connection between use of a
prescription drug and impaired driving. State v. Schories, 827 N.W.2d 659, 666
8
(Iowa 2013). Here, the Reeds did not identify a toxicologist or medical expert
who could speak to the effect of Schaeffer taking a prescription drug the night
before the collision. The Reeds presented no expert evidence to show Schaeffer
suffered any impairment from taking the prescription medicine. Instead, the
Reeds sought to have the jury speculate on the potential effect of a Paxil/alcohol
interaction on Schaeffer’s driving. The district court did not abuse its discretion in
excluding the challenged, speculative evidence. We therefore affirm the district
court’s denial of a new trial on this ground.
IV. Exclusion of Police Video
Next the Reeds contend the court abused its discretion in excluding the
video recording from the police squad car showing Schaeffer’s field sobriety
testing. During trial Schaeffer objected to admission of the video. After hearing
the parties’ arguments for and against admission of the video evidence, the court
sustained the objection: “[G]iven the procedural framework that surrounds this
particular exhibit, the court finds it is appropriate to grant the request to exclude
the squad video or any reference to it.” The court concluded: “[The video] should
have been identified in response to discovery and exchanged by the parties to
avoid exactly the situation we have here today, wherein this is the first time this is
being spoken of and presented as a trial exhibit in this case.”
On appeal, we will not reverse the district court’s imposition of a discovery
sanction unless the court abuses its discretion. See Whitley, 816 N.W.2d at 385.
An abuse is found when the court’s ruling “rests upon clearly untenable or
unreasonable grounds.” Id. A police officer incident report, which was supplied
9
to Schaeffer’s counsel, noted that field sobriety testing was completed on video
and the footage was saved. But the Reeds first disclosed their intent to show the
video to the jury either the day before trial or at trial, despite knowing the video
existed before they filed their petition. See White v. Citizens Nat’l Bank of
Boone, 262 N.W.2d 812, 816 (Iowa 1978) (stating although the penalty—
excluding testimony on damages—was severe, “we cannot say the trial court
abused its discretion”). We find no abuse of discretion in the court’s exclusion of
the video recording.
V. Inadequate Damages
The Reeds further contend the district court should have granted their
motion for new trial based on the jury awarding “inadequate compensatory
damages” and “nominal punitive damages” due to “jury confusion and actual
prejudice.”
An aggrieved party may be granted a new trial where the jury awarded
“[e]xcessive or inadequate damages appearing to have been influenced by
passion or prejudice.” Iowa R. Civ. P. 1.1004(4). As to compensatory damages,
the district court ruled:
As framed by the admissible evidence presented at trial, the
jury was required to assess as compensatory damages for both
plaintiffs their past medical expenses, pain and suffering, and loss
of function of body. Although under the evidence presented the
jury certainly could have awarded greater amounts, or lesser
amounts, to each plaintiff for these certain items of damages, the
court concludes that the actual amounts awarded are supported by
the evidence and fall within a broad range of what a jury might
reasonably assess based on the evidence presented . . . . [T]he
compensatory damages awarded are not so out of reason as to
shock the conscience or sense of justice, and do not raise a
10
presumption that the awards are the result of passion, prejudice, or
other ulterior motive.
In determining the punitive damage award “was within the jury’s discretion
and fell within the sizeable range of amounts that the jury might deem
appropriate under the circumstances,” the district court explained:
The admissible evidence presented on the plaintiffs’ claims for
punitive damages included the facts and circumstances of the
traffic accident and the plaintiffs’ resulting injuries. The jury was
also entitled to consider that it was [Schaeffer’s] first OWI, and that
her blood alcohol level of .09 slightly exceeded the OWI statutory
limit of .08. The jury had also been presented with evidence that
the defendant had pled guilty to the charge of OWI first offense,
that she had already paid a fine and lost her driver’s license and
had been subject to a 72-hour house arrest. The jury was also
informed [Schaeffer] had successfully completed the court
requirements of her OWI offense, which included a substance
abuse evaluation, that she professed to be very sorry for the motor
vehicle accident, and that she was not currently working and did not
own any property.
In ruling on motions for new trial, the district court “has broad but not
unlimited discretion in determining whether the verdict does substantial justice
between the parties.” Cowan v. Flannery, 461 N.W.2d 155, 158 (Iowa 1990) (“A
verdict should not be set aside as either too large or too small simply because
the reviewing court would have reached a different conclusion.”). When the
jury’s verdict falls within a reasonable range as indicated by the evidence, courts
do not interfere “with what is primarily a jury question.” Id. (“The determinative
question posed is whether under the record, giving the jury its right to accept or
reject whatever portions of the conflicting evidence it chose, the verdict effects
substantial justice between the parties.”).
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We agree with and adopt the district court’s thorough and detailed rulings
analyzing the jury’s award of compensatory and punitive damages. We conclude
the district court did not abuse its discretion by denying the Reeds’ motion for a
new trial based on allegedly inadequate damages. The extent of the Reeds’
injuries was disputed. The district court was able to observe the evidence as
presented during the trial, and we review the evidence in the light most favorable
to the verdict. See Lara v. Thomas, 512 N.W.2d 777, 781 (Iowa 1994).
Accordingly, we affirm the district court on this issue.
VI. Schaeffer’s Closing Argument
During closing arguments, counsel for Schaeffer pointed out the Reeds
did not present medical expert testimony;6 the Reeds objected. On appeal, the
Reeds contend the district court should have granted their motion for new trial
based on counsel’s improper closing arguments that made “false references to
missing evidence.”
Our review of the record shows no falsity in the challenged argument.
During the discovery phase and at trial, the Reeds consistently took the position
medical expert testimony was not necessary to prove their case. Again on
6
Defense counsel argued:
Most importantly . . . this is a personal injury lawsuit asking you to
assess damages for injuries the Reeds suffered and they didn’t bring in
any medical testimony. They didn’t bring in medical records, they didn’t
bring in doctors, they didn’t bring in nurses. They didn’t bring in anyone
to talk about the medical. You never heard a diagnosis, not one
diagnosis. There was no doctor that limited [Mrs. Reed’s] activity, you
didn’t hear a doctor saying how long the problems would last. You heard
about all the nurses and doctors running around the emergency
department, but none of them were called to testify, and it is [the Reeds’]
burden of proof.
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appeal, the Reeds acknowledge: “No direct medical evidence was offered by
either side.” Thus, defense counsel’s statements pointing to the absence of such
evidence were not false and did not misstate the record. We affirm on this
challenge.
VII. Failure to Instruct on Future Damages
At the conference on jury instructions, Schaeffer objected to the court
instructing on future damages, and the court ruled “expert testimony is required
under the facts and circumstances as shown in this record to present a claim to
the jury for future damages.” The Reeds then objected, claiming the instructions
are not “complete and correct on the law.” In their motion for new trial, the Reeds
did not claim the verdict was inadequate due to the court’s failure to instruct on
future damages. Nevertheless, on appeal they contend:
The trial court discriminated against [the Reeds] due to their
age and retirement by not allowing the proffered future damages
instructions or increasing the judgment rendered after the jury’s
damage paucity. Again, a significant chunk of [the Reeds’]
proffered argument for future compensatory damages was
erroneously barred.
Assuming error is preserved, we find no support for the claim the district
court “discriminated” against the Reeds. To establish they were entitled to future
damages, the Reeds were required to prove their alleged future harm was
causally related to the collision, and “questions of causation which are beyond
the understanding of a layperson require expert testimony.” See Vaughn v. Ag
Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990) (stating “medical evidence as
to the cause of these ailments is noticeably missing from the record” and the
plaintiff “must prove more than he felt bad for a period of time”). While the Reeds
13
testified at trial, neither one has “the medical expertise to explain the relationship”
between future symptoms or ailments and the collision. See id. at 637. Further,
the causal relationship between the collision and the Reed’s future damages “is
not within the common experience of a jury.” See id. The Reeds’ challenge is
without merit.
VIII. PowerPoint Presentation
During closing argument Schaeffer’s counsel used a PowerPoint7
demonstrative aid without objection by the Reeds. The Reeds argued for the first
time in their post-trial motion that the PowerPoint use entitled them to a new trial.
Noting the Reeds’ failure to object, the district court found waiver. On appeal, the
Reeds’ counsel acknowledges “his professional failure to specifically object to the
presentation generally, or to anything within [it] specifically.” But he contends:
“Without some fairness due, waiver of this issue is not conceded.” The Reeds
argue the content of the PowerPoint should have been served on counsel and
the court and made part of the record. They bemoan the “rampant unregulated
use of presentation software as asserted here by defense counsel” and suggest
in their conclusion that PowerPoint software “may convey a message to a jury
beyond printed words, including subliminal messages.”
Our rules require parties to object at trial at a time when the district court
can take corrective action. Summy v. City of Des Moines, 708 N.W.2d 333, 338
(Iowa 2006) (stating the nature of the error must be timely brought to the
7
“PowerPoint is a Microsoft computerized graphics presentation program.” Balderston
v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 315 n.2 (7th Cir. 2003).
14
attention of the district court). The Reeds did not preserve this issue for our
consideration on appeal. See id.IX. Court’s Failure to Appoint a Master
In their post-trial motion, the Reeds argued, for the first time, the court
should appoint a master under Iowa Rule of Civil Procedure 1.935 because
“several matters regarding the impaneling, selection, and deliberations of the jury
in this case require further investigation.” Specifically, the Reeds complained
that a “significant number of jurors in Scott County are failing to report” for jury
duty, voir dire was not reported, and the court instructed the impaneled jurors
regarding a “pamphlet” they received outside the courthouse, but neither the
pamphlet nor the instruction was made a part of the record.
The court ruled “there is simply no basis in law or fact for the appointment
of a master.” On appeal the Reeds claim they preserved error on this issue:
“Impanelment error is not typically preserved under the existing record; however
plaintiff’s counsel sought expansion of the record to include reference to a master
which is denied in error and such is noted in the Post-Trial motions, argument
thereon, and following here.”
The Reeds first requested a master be appointed in their post-trial
motions. As discussed above, raising an issue for the first time after trial does
not preserve error. Because the Reeds waived the claimed error, we do not
reach the merits of this issue. See Whitley, 816 N.W.2d at 390 (“A litigant cannot
15
sit on a claim of error until the trial is over and make the claim once the result of
the trial is unsatisfactory.”).
AFFIRMED.