Sorensen v. Harbor Bar, LLC

#27409, #27420-a-DG
2015 S.D. 88IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
SARAH SORENSEN, Plaintiff and Appellee,
v.
HARBOR BAR, LLC, Employer and Appellant,
and
MIDWEST FAMILY MUTUAL
INSURANCE COMPANY, Insurer and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK BARNETT
Judge
****
LEE C. “KIT” MCCAHREN of
Olinger, Lovald, McCahren
& Reimers, P.C.
Pierre, South Dakota Attorneys for appellee.
STEVEN J. MORGANS
SHARLA B. SVENNES of
Myers Billion, LLP
Sioux Falls, South Dakota Attorneys for appellants.
****
CONSIDERED ON BRIEFS
ON OCTOBER 5, 2015
OPINION FILED 11/10/15
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GILBERTSON, Chief Justice
[¶1.] Sarah Sorensen was injured during the scope of her employment at
The Harbor Bar (Employer) on December 31, 2009. Approximately a week later,
she complained of a sudden onset of headaches and vomiting, which caused her to
undergo brain surgery. She filed for workers’ compensation benefits but was
denied, as Employer alleged that her injuries were the result of a different incident
on January 4, 2010. The Department of Labor (Department) conducted a hearing
and held that the workplace incident was a major contributing cause of her
condition. Employer appealed this ruling to the circuit court, which affirmed in part
and remanded in part for clarification of compensable damages. After the
Department clarified compensable damages, the circuit court affirmed. We affirm.
BACKGROUND
[¶2.] Sarah Sorensen graduated from high school in Watertown. After high
school, Sorensen attended culinary school in Mitchell, but dropped out after a year.
Sorensen moved back to Watertown and began living on her own, and took a
position as a waitress at the Harbor Bar in late 2009.
[¶3.] While Sorensen was working on New Year’s Eve in 2009, a fight broke
out in the bar among some customers. Sorensen attempted to break up the fight,
and her co-worker Paul Kranz tried to help when he noticed Sorensen getting
involved. While trying to intervene, Kranz saw one of the customers hitting another
person while the other lay on the floor. Kranz pulled the man off, and discovered
that Sorensen was the person being attacked. Sorensen ran to the bathroom to
clean herself up, and finished the remainder of her shift. During her shift, several
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people noticed that Sorensen was getting black eyes. She also complained of a
headache.
[¶4.] On the morning of January 7, about a week after the assault, Sorensen
suffered an onset of severe headaches and vomiting. Her boyfriend took her to the
emergency room, and an MRI revealed a massive intraventricular hemorrhage in
her brain. She was transported to Sanford Hospital in Sioux Falls, and underwent
brain surgery the next day.
[¶5.] Dr. William Asfora was Sorensen’s surgeon, and he performed three
separate surgeries on her. The first surgery required Dr. Asfora to insert a
temporary drainage tube into Sorensen’s brain, while the second surgery entailed
inserting a permanent drain. During the third surgery, Dr. Asfora connected blood
vessels in the scalp to vessels in the inner brain.
[¶6.] Dr. Asfora performed the third surgery after discovering that Sorensen
suffered from moyamoya disease, a vascular disease of the brain. It results in the
closing of some major blood vessels in the brain, which results in a network of
smaller and less stable vessels growing in an attempt to supply the brain with its
necessary nutrients. These small, unstable blood vessels make the brain more
prone to bleeding and a person with this condition is at greater risk for a major
brain bleed. The Department found that the first two surgeries were results of the
accident, but that the third surgery was due to the moyamoya disease alone.
[¶7.] On January 3, 2010, the workplace assault was reported to the
Watertown Police. The police took pictures of Sorensen’s face, which showed that
she had a swollen face and two black eyes. Amanda Greeley, Sorensen’s co-worker,
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saw Sorensen when Sorensen went back to the bar on January 4 to pick up her
check. Greeley testified that Sorensen had two black eyes at that time, and was
complaining of a headache.
[¶8.] After the police took the photographs, Detective Timothy Toomey
became involved in the investigation of the New Year’s Eve assault. Toomey
interviewed witnesses to the assault and reviewed Harbor Bar’s surveillance
footage. This information led to the arrest of Sorensen’s attacker.
[¶9.] On January 27, 2010, a month after the incident, Toomey was
contacted by Todd Syhre about another incident that had allegedly taken place at
the Harbor Bar. Syhre told Toomey that he and his friend Dave McGuire were at
the bar one night when they witnessed Sorensen roughhousing with her boyfriend
and brother. Syhre testified that he saw her boyfriend attempt to pick Sorensen up,
only to drop her to the floor. Syhre did not see her hit the floor, but thought she fell
on her back and could have hit her head. Syhre did not remember the date of this
alleged incident. Initially he thought it may have happened prior to December 31,
but after calling McGuire, the two decided that the incident took place on January
4.
[¶10.] Toomey reviewed the surveillance tapes of the bar, but did not see
Sorensen in the bar any night between the night of the assault and her admission to
the hospital. However, he admitted at the hearing that he did not watch all the
tapes, but only portions from each night. After watching the videos and considering
what Syhre and McGuire had said, Toomey did not give their stories much weight.
He believed they were encouraged to talk to him by Employer, and their inability to
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agree upon a date hurt their credibility. At the hearing, the Department found
Toomey’s testimony to be credible.
[¶11.] Sorensen presented evidence from Dr. Robert Packard, showing her
qualifications for Social Security Disability. Packard testified live at the hearing
that Sorensen now suffers serious mental defects, such as memory loss. He also
testified that she has gained significant weight since the incident, as she has no
ability to tell when she is hungry or full. Packard stated that Sorensen is not able
to manage her own affairs.
[¶12.] Dr. Asfora, in his video deposition presented to the Department, stated
that the workplace accident was a major contributing cause of Sorensen’s brain
hemorrhage. Her moyamoya disease was asymptomatic prior to the accident, and
the punches she suffered were likely the cause of the hemorrhage. He testified that
the rotation a person’s head experiences when being punched could cause
significant bleeding in the brain.
[¶13.] Employer presented the video deposition of Dr. Starzinski as expert
testimony. Dr. Starzinski only reviewed the medical records and never treated
Sorensen himself. He did not believe the accident was a major contributing cause of
the hemorrhage. His opinion was based on the belief that Sorensen was able to
continue her normal activities in the days following the accident, and it was only
after the alleged second incident that she began to become symptomatic. He
testified that an intracranial hemorrhage would be a “show-stopper” that would not
allow a person to continue to function normally. Because he believed she had been
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able to function normally after the accident, he did not think that the accident was
a major contributing cause of the hemorrhage.
[¶14.] During the hearing, Sorensen attempted to present testimony by Dr.
Sabow as rebuttal to Dr. Starzinski’s testimony. Employer objected, arguing that
Dr. Sabow was an undisclosed expert witness. Initially, the Department did not
allow Dr. Sabow to testify, but then allowed Sorensen’s attorney to question Dr.
Sabow as an offer of proof. Dr. Sabow’s testimony was extremely brief, as he only
answered a few questions. Sorensen’s attorney asked him to examine the pictures
of Sorensen taken on January 3. Dr. Sabow testified that the picture showed that
Sorensen had “raccoon eyes” which can be a sign of intracranial trauma. Dr. Sabow
never examined Sorensen personally. Sorensen’s attorney argued that the
testimony should be allowed as a rebuttal to Employer’s claim that there was a
second incident that caused the hemorrhage. The Department reconsidered its
original position and included the testimony as substantive evidence.
[¶15.] Because of this admission, the Department allowed Employer to retain
an additional expert and supplement the record with his testimony. Employer
retained Dr. Howard, a neurosurgeon from the University of Iowa. Dr. Howard
testified that a neurosurgeon could not diagnose an intracranial hemorrhage solely
from “raccoon eyes” in a photograph.
[¶16.] The Department ruled in favor of Sorensen, finding that the work-
related injury was a major contributing cause of the hemorrhage and resulting
disabilities. The Department also found that the alleged second incident did not
take place after the work-place assault as Employer claimed, if it happened at all.
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It also found that the first two surgeries performed by Dr. Asfora were compensable
as a result of the injury, but that the third surgery was exclusively the result of
Sorensen’s moyamoya disease and thus not compensable. The Department awarded
Sorensen her expenses for medical bills and lost income.
[¶17.] Employer appealed the decision to the circuit court, which affirmed on
causation and compensation but remanded to the Department for clarification on
which medical expenses were compensable.* This was because the Department had
found that the third surgery was not the result of the work-place injury, but still
directed Employer to pay for the third surgery when it issued its findings of fact and
conclusions of law. The Department clarified its holding, thus reducing Sorensen’s
award. The circuit court issued a final order after remand with the adjusted award.
[¶18.] Employer appeals, raising the following issues:
1. Whether the Department was clearly erroneous in its finding
that the alleged second incident actually happened before the
work-place incident, if it happened at all.
2. Whether the Department was clearly erroneous in its
determination that the work-related injury was a major
contributing cause of Sorensen’s intracranial hemorrhage.
* This decision was released in July 2014. Sorensen claims that we do not
have jurisdiction over this case because Employer did not appeal within the
allotted time, arguing that this initial circuit court decision was what should
have been appealed. However, we only have jurisdiction over final
judgments. SDCL 15-26A-3. This judgment was not final, as the circuit
court remanded on the issue of damages. See Midcom, Inc., v. Oehlerking,
2006 S.D. 87, ¶ 11, 722 N.W.2d 722, 725 (holding that a judgment must
completely adjudicate all of the issues of fact and law in a case to be final).
As the circuit court did not issue a final judgment until its Final Order After
Remand, and Employer properly appealed that order within the allotted
time, we have jurisdiction over this matter.
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3. Whether the Department abused its discretion by admitting Dr.
Sabow’s undisclosed testimony as rebuttal testimony.
STANDARD OF REVIEW
[¶19.] We review an agency’s findings of fact under the clearly erroneous
standard. SDCL 1-26-36; Foley v. State ex rel. S.D. Real Estate Comm’n, 1999 S.D.
101, ¶ 6, 598 N.W.2d 217, 219 (citations omitted). We afford “great weight to the
findings and inferences made by the Department on factual questions.” Wagaman
v. Sioux Falls Constr., 1998 S.D. 27, 576 N.W.2d 237, 240. Our question is not
whether we would have made the same findings as the trial court, but whether we
have a “definite and firm conviction that a mistake has been made.” Isack v.
Acquity, 2014 S.D. 40, ¶ 7, 850 N.W.2d 822, 825 (quoting Stockwell v. Stockwell,
2010 S.D. 79, ¶ 16, 790 N.W.2d 52, 59). “We do not substitute our judgment for the
Department’s on the weight of the evidence or the credibility of witnesses.” Gerlach
v. State, 2008 S.D. 25, ¶ 6, 747 N.W.2d 662, 664 (citations omitted).
[¶20.] When reviewing an agency’s evidentiary rulings, we examine whether
the agency abused its discretion. McDowell v. Citibank, 2007 S.D. 52, ¶ 26, 734
N.W.2d 1, 10. An abuse of discretion “is a fundamental error of judgment, a choice
outside the range of permissible choices, a decision, which, on full consideration, is
arbitrary or unreasonable.” Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846,
850. However, even if the agency did abuse its discretion, we will not overturn
unless the abuse produced some prejudicial effect. McDowell, 2007 S.D. 52, ¶ 26,
734 N.W.2d at 10.
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DECISION
[¶21.] 1. Whether the Department was clearly erroneous in its finding
that the alleged second incident actually happened before the
work-place incident, if it happened at all.
[¶22.] Employer first argues that the Department was clearly erroneous in its
finding that the alleged second incident happened before the work-place incident, if
it happened at all. Employer points to the testimony of several witnesses that
believed they saw Sorensen at the bar on January 4, and saw her boyfriend drop her
on her back. Employer does not consider relevant the fact that these witnesses
could not remember Sorensen having black eyes, as it claims it was dark in the bar
and she was likely wearing makeup. Employer also argues that we should discount
Detective Toomey’s testimony that he did not see Sorensen on the tapes because he
did not watch all of the tapes.
[¶23.] The Department made a finding that Toomey’s testimony was credible.
While it did not explicitly find that the other witnesses were not credible, Toomey’s
doubts about their testimonies are implied in the Department’s decision to find him
credible. Toomey testified that he doubted both the witness’s motives and
recollections, considering they only approached him weeks after Sorensen had
already been admitted to the hospital. The Department also found it significant
that none of these witnesses could remember if Sorensen had black eyes when they
saw her in the bar. The police took pictures of Sorensen on January 3 that show she
had very apparent bruising on her face, and the Department found it unlikely that
witnesses would not remember this.
[¶24.] There is ample evidence in the record to support the Department’s
finding that the alleged second incident did not occur after the work-place incident,
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if it occurred at all. The Department was present at the hearing and heard the
testimony. We will not substitute our judgment for that of the Department.
Gerlach, 2008 S.D. 25, ¶ 6, 747 N.W.2d at 664. The Department’s finding was not
clearly erroneous.
[¶25.] 2. Whether the Department was clearly erroneous in its
determination that the work-related injury was a major
contributing cause of Sorensen’s intracranial hemorrhage.
[¶26.] Employer also argues that the Department was clearly erroneous by
determining that the work-place injury was a major contributing cause of the
hemorrhage. Employer puts forth several arguments to support this contention.
The Department determined that the work-place assault was a major contributing
cause because she suffered a brain contusion. Employer argues that the contusion
cannot suffice for causation because Sorensen did not present symptoms of a brain
bleed until seven days after the fight. Employer’s expert, Dr. Starzinski, opined
that an intracranial hemorrhage such as Sorensen’s would be a “show-stopper” and
that a person would not be able to function as Sorensen did until she was admitted
to the hospital a week after the fight. Dr. Starzinski also believed that Sorensen’s
moyamoya disease could have been the cause of the bleed.
[¶27.] All of the above arguments may be true, but it is not our place to verify
them. That is the proper function of the fact finder, not the reviewing court. Dr.
Asfora testified that the work-place injury was a major contributing cause of the
brain bleed. He acknowledged Sorensen’s preexisting moyamoya disease, but
believed the work-place assault to have been a major contributing cause because
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she had previously been asymptomatic. This testimony supports the circuit court’s
holding and it is not clearly erroneous.
[¶28.] Employer argues that we should discount Dr. Asfora’s testimony
because he was unaware of the second incident, and thus his opinion was based on
faulty information. As we have already affirmed the Department’s finding that the
second incident did not occur, we will not afford Dr. Asfora’s testimony any less
weight. The opinion of the treating physician supports Sorensen’s claim that the
work-place injury caused her disability. We thus hold the Department’s decision to
be well supported in the record and not clearly erroneous.
[¶29.] 3. Whether the Department abused its discretion by admitting Dr.
Sabow’s undisclosed testimony as rebuttal testimony.
[¶30.] Employer also argues that the Department abused its discretion when
it admitted the testimony of Dr. Sabow, who Sorensen called in rebuttal to the
testimony of Dr. Starzinski. The Department has the authority to issue sanctions
pursuant to SDCL 15-6-37(b), such as the exclusion of evidence, if the parties do not
follow its procedures. ARSD 47:03:01:05.02. See also Schrader v. Tjarks, 522
N.W.2d 205, 210 (S.D. 1994) (discussing exclusion of testimony as a possible
sanction for a party’s failure to comply with discovery rules). However, discovery
rules are meant to promote, not stifle, the truth-finding process. Schrader, 522
N.W.2d at 210. The sanction must also be appropriate in light of the equities
involved in the case. Id.
[¶31.] Rebuttal evidence explains, contradicts, or refutes evidence of the
defendant. Id. at 209. It is meant to cut down defendant’s case, not merely bolster
the plaintiff’s. Id. Disclosure of rebuttal witnesses has never been required in
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South Dakota by statute, rule, or caselaw. See Schrader, 522 N.W.2d at 209,
(“Neither statute or rules, nor South Dakota precedent require disclosure of rebuttal
witnesses”). In Schrader, we held that a trial court abused its discretion when it
excluded the testimony of three rebuttal expert witnesses. Id. We held that
because the party that failed to disclose did not do so out of bad faith, and that
because exclusion of testimony should be a last resort, the trial court should have
admitted the evidence. Id. The party did eventually disclose his expert rebuttal
witness prior to trial, but at a time that the opposing party still believed improper.
[¶32.] This case shares similarities with Schrader, and its differences are not
dispositive. There is no evidence in this case of bad faith on the part of Sorensen.
The record indicates that there was at least a misunderstanding about disclosure
requirements between Sorensen’s attorney and the Department, and it is possible
that the Department informed Sorensen’s attorney that he did not need to disclose
his rebuttal witnesses. The record contains a prehearing scheduling order that
included a deadline for expert witness disclosure, but it does not mention rebuttal
witnesses specifically. While the attorney in Schrader did eventually disclose his
rebuttal witness, Sorensen’s failure to do so in this case does not appear to be out of
bad faith. Excluding Dr. Sabow’s testimony in this case due to lack of disclosure
would only have stifled the Department’s truth-finding process.
[¶33.] Employer argues that Dr. Sabow’s testimony is not rebuttal testimony
at all because Dr. Starzinski’s deposition was taken months before, and Sorensen’s
counsel had a video copy in his possession prior to the hearing. However, that does
not mean Dr. Sabow’s testimony cannot be rebuttal testimony. Rebuttal testimony
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is testimony that contradicts the defendant’s evidence. Schrader, 522 N.W.2d at
209. In this case, Sorensen’s attorney called Dr. Sabow not to show that the work-
place incident was the cause of the trauma, but to show that the alleged second
incident was not the cause. Sabow’s testimony supported the idea that Sorensen
could not have had “raccoon eyes” on January 3 if the trauma was caused by the
alleged second incident on January 4. The Department heard Dr. Sabow’s brief
testimony, and held that it was proper rebuttal testimony. Excluding the testimony
at that point would only have hindered the truth-seeking process. The
Department’s decision to admit the testimony as substantive evidence was well
within its discretion.
[¶34.] Even if we were to hold that the Department abused its discretion in
admitting Dr. Sabow’s testimony, it would not merit reversal or remand. Employer
would still have to show prejudice. The Department admitted Dr. Sabow’s
testimony, but allowed Employer time to supplement the record with additional
expert testimony to refute Dr. Sabow’s opinion. Employer argues that this was
insufficient, that the video deposition of Dr. Howard added to the record could not
compare to Dr. Sabow’s live testimony. However, the fact that Dr. Sabow’s
testimony was live is of little effect, as it was extremely brief and not very technical.
Dr. Howard’s video deposition was a sufficient opportunity for Employer to refute
Dr. Sabow’s testimony. The additional expert testimony mitigated any prejudice to
Employer by allowing Dr. Sabow’s undisclosed testimony.
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CONCLUSION
[¶35.] We hold that the Department was not clearly erroneous in finding that
there was no second incident or in finding that the work-place injury was a major
contributing cause to Sorensen’s injury and disability. We also hold that the
Department did not abuse its discretion in admitting the undisclosed testimony of
Dr. Sabow. We accordingly affirm the ruling of the circuit court.
[¶36.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
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