Ladd v. BOWERS TRUCKING, INC.

THORNE, Judge

(dissenting):

1 15 I respectfully dissent from the majority opinion's analysis affirming the entry of summary judgment on behalf of Defendants. Ladd's deposition testimony clearly recounts his memory of being struck by Defendants' semi-truck. At most, it may be ambiguous as to the relationship between that memory and the dream referenced by the majority. Even if Ladd's testimony can be interpreted as indicating that his dream refreshed or revived his memory, his clear testimony that he does now remember the incident renders his testimony admissible. Under the cireum-stances, the ultimate accuracy and reliability of Ladd's memory is a question of fact that should have been decided by a jury. Further, assuming that his testimony is competent, Ladd's lay testimony would suffice to demonstrate that Defendants caused him substantial injury. For these reasons, the district court should have denied Defendants' motion for summary judgment. I would reverse the judgment below and allow Ladd to proceed with the development of his case.

{16 The first ground relied upon by the district court in granting summary judgment was that Ladd's testimony that he had been struck by Defendants' semi-truck was not admissible because the brain-injured Ladd had remembered the incident only some months afterward, after having a dream about it. The only record evidence about the nature and source of Ladd's memory is a partial transcript of Ladd's deposition. The majority opinion concludes that Ladd's memory, as described in his deposition testimony, "is of the dream itself and the dream alone." See supra 18. I simply cannot read Ladd's deposition testimony in this way.

17 For many pages, Ladd testifies about the incident and his resulting injuries in a manner indistinguishable from any other deposition. He is repeatedly asked questions about what he remembers, and he answers with detailed information about the events immediately preceding and up through the collision with Defendants' semi-truck. Several times, he admits that he does not remember certain details about which he was asked. This questioning goes on for over sixty pages of transcript with no mention of Ladd having a dream or the dream having anything to do with his memory of the incident.¹ Instead, the questions and answers are consistently phrased in terms of what Ladd remembered, what his memories were, and his descriptions of what had happened.

{18 It is not until page sixty-eight of Ladd's deposition that he first testifies about his dream. In response to a question that is itself omitted from the record, Ladd responds,

About four or six months after the accident, I had a dream which was essentially a flashback of me reliving what I've just gone through. My brain was starting to reboot and remember things that-I was still learning how to remember things at the time, if that makes any sense.

Ladd was then asked what new memories he acquired with the dream, and he responded, "The dream I had was the full onset of the accident." Counsel asked, "Meaning what?" Ladd responded with a recitation of his memories of the accident. The following colloquy then occurred:

[Counsel:] So you just described the dream that you had six or so months after the accident; is that right?

[Ladd:] Yeah. Yes.

[Counsel:] Which is essentially what you've told me today is your memory of the accident?

[Ladd:] It's actually me reliving my dream, yes.

[Counsel:] What I'm wondering is prior to that dream, what memories of the accident did you have?

Ladd and counsel then spent a little over two more pages exploring Ladd's pre-dream memory, which essentially ended at the time of the initial collision and rollover. The remainder of Ladd's deposition is omitted from the record.

1 19 The majority interprets this testimony as clearly indicating that Ladd's memory is of the dream and not of the incident itself. I disagree. Ladd testified extensively and under oath as to the detailed facts of the incident, and his testimony was very clear that he was testifying about the incident itself and not about the dream. By contrast, the later testimony about the dream was confusing and ambiguous. Ladd variously described the dream as a flashback, as him reliving the events, and as part of the process of "reboot[ing] and remember[ing] things" following his head injury. (Emphasis added.) He also clearly indicated that the contents of the dream were substantively coincident with his memories of the incident, and that his memory had not fully returned prior to him having the dream.

120 What Ladd did not do is expressly testify that what he had previously described as his memories of the incident were in fact his memories of the dream.² His testimony about the dream may be consistent with such an interpretation, but it is equally consistent with Ladd characterizing the very process of his memory returning as a "dream" or a "flashback." It is undisputed that Ladd suffered serious brain injuries and at least some initial memory loss from the incident,³ and Ladd's experience of his brain reconstructing its memories of the traumatic events that caused his injuries was no doubt a confusing and frightening one. That the brain-injured Ladd might later describe such a process as a dream, a flashback, or a reboot does not contradict his sworn testimony that he did witness and remember the events causing his injuries. And if Ladd's "dream" was in fact the return of his memory, then it would make perfect sense that the dream and the memory contained the same facts and that Ladd would say that he did not remember those facts prior to the occurrence of the dream, flashback, or reboot, i.e., prior to the return of his memory.

¶ 21 Alternatively, Ladd's testimony could be interpreted as stating that his dream refreshed or revived his memory. There is nothing improper about having one's memory refreshed-Utah Rule of Evidence 612 expressly provides a procedure for using writings to refresh memory for testimonial purposes. See Utah R. Evid. 612. And, as Judge Learned Hand famously wrote, "Anything may in fact revive a memory: a song, a scent, a photograph, [an] allusion, even a past statement known to be false." United States v. Rappy, 157 F.2d 964, 967 (2d Cir.1946). Here, it is entirely consistent with Ladd's testimony that his dream did in fact refresh or revive his memories of the incident, memories that had been temporarily lost due to his head injury. And such a spontaneous refreshment of Ladd's memory would not present the same problems that caused the Utah Supreme Court to reject hypnotically-recovered memories as unreliable in State v. Tuttle, 780 P.2d 1208 (Utah 1989). See generally id. at 1209 ("The courts that have excluded admission of hypnotically enhanced testimony have done so on grounds that such testimony is unreliable. They have noted that the relevant scientific community does not accept forensic hypnosis as a dependable method of refreshing recollection. Or, they have reasoned that despite the lack of scientific acceptance, there is a great danger that jurors will give undue credence to such 'scientifically enhanced testimony."); id. at 1207 n. 6 ("Scientific research suggests that in many cases, hypnosis does not simply revive dormant memories, but augments a witness's actual memories by adding false or pseudo memories to them.").

122 Under either of these reasonable interpretations of Ladd's testimony, Ladd has presented a sworn statement regarding events that he was both present for and claims to have observed and remembered. This is admissible testimony. See generally Utah R. Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony."); State v. Eldredge, 773 P.2d 29, 33 (Utah 1989) ("[Rule 602] merely requires that the witness have the opportunity and the capacity to perceive the events in question."). Due to the clarity of Ladd's testimony about his memory and the ambiguity of his later statements about the dream, I would deem Ladd's testimony admissible in its entirety and allow a jury to decide what Ladd's memories actually are and whether those memories might establish lability against Defendants when weighed against Defendants' competing evidence.⁴

123 The district court also granted summary judgment on the ground that Ladd failed to designate any expert witnesses to testify on the issue of medical causation. It is well settled that lay testimony alone cannot establish medical causation in cases where such causation would not be obvious to a layperson. See Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 23, 176 P.3d 446 (requiring expert testimony where causation question involved "medical factors sufficiently complicated to be beyond the ordinary senses and common experience of a layperson"); Beard v. K-Mart Corp., 2000 UT App 285, ¶ 16, 12 P.3d 1015 ("[In all but the most obvious cases, testimony of lay witnesses regarding the need for specific medical treatment is inadequate to submit the issue to the jury."). The majority opinion concludes that this is a case requiring expert medical causation testimony because it "is a complex case involving obscure medical details, including several brain injuries, and three automobile accidents, each of which could have potentially caused some or all of Ladd's injuries." See supra ¶ 12.

24 In light of Ladd's deposition testimony, I disagree. It is undisputed that Ladd's injuries were caused by some combination of three collisions. And Ladd recalls and can testify as to his physical condition following the first two collisions but prior to the third collision involving Defendants. Thus, to the extent Ladd can establish injuries that did mot exist prior to the third collision, it becomes "obvious" under the cireumstances that such injuries were caused by the collision involving Defendants,⁵ and Ladd's lay testimony would therefore be sufficient to establish that Defendants caused those injuries.⁶ See Beard, 2000 UT App 285, ¶ 16, 12 P.3d 1015.

125 For these reasons, the district court should not have entered summary judgment in favor of Defendants, and I would reverse the district court's summary judgment order and allow Ladd to proceed with the development and presentation of his case. Accordingly, I dissent from the majority opinion.

1 . I acknowledge that the only record before us is a partial transcript and that it is possible that Ladd mentioned his dream in some omitted portion of his deposition. However, if that were the case, it would seem that Defendants would have ensured that that portion of the transcript was made a part of the record on appeal.

2 . Of course, he also did not expressly clarify that his memory was of the incident itself rather than the dream, but that only leaves an ambiguity that should have been argued to and decided by a jury.

3 . It does not seem irrelevant here that Defendants are attempting to take advantage of Ladd's memory loss when they themselves are alleged to have caused it, presenting a situation "somewhat reminiscent of the often-told classic about the accused who had killed his parents, and threw himself upon the mercy of the court on the ground that he was an orphan." Bryant v. Turner, 19 Utah 2d 284, 431 P.2d 121, 123 (1967).

4 . I am also unpersuaded by the majority opinion's reliance on Ladd's complaint, wherein he alleged that he had a "limited memory of the accident," or the majority's characterization that Ladd is "attempt{ing] to fill his memory gap with the contents of a dream." See generally supra T8. Ladd's entire testimony clearly represents a limited memory. He readily admits to losing consciousness immediately following the rollover and again shortly after Defendants' semi-truck struck him. However, his memory that the semi-truck did strike him is clear and complete.

5 . Ladd also testified, directly or by implication, that he was seat-belted into Driver's vehicle during the first and second collisions, while in the third collision he was standing outside Driver's vehicle when Defendants' semi-truck crashed into it. If believed, this testimony could identify certain injuries as caused by the third collision or not. For example, a seat-belt shaped bruise across Ladd's torso would likely not be the result of the third collision, while abrasions with asphalt or gravel ground into them likely would be.

6 . It is possible that some of Ladd's injuries might not be amenable to such an analysis. For example, if Ladd claimed that he did not suffer brain contusions in the first two collisions, but Defendants presented expert testimony that a layperson cannot self-diagnose such an injury, then that particular claim might be subject to partial summary judgment. However, if Ladd's testimony creates a genuine fact question as to whether the cause of a particular injury is obvious, I would allow that issue to go to the jury.