Schreib v. Whitmer

370 P.3d 955

Marie SCHREIB, Appellant,

v.Joel WHITMER, Appellee.

No. 20140209–CA.

Court of Appeals of Utah.

March 31, 2016.

Edward T. Wells, Murray, for Appellant.

H. Justin Hitt, Salt Lake City, for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Memorandum Decision, in which Judge KATE A. TOOMEY and Senior Judge PAMELA T. GREENWOOD concurred.¹

Memorandum Decision

CHRISTIANSEN, Judge:

¶ 1 Marie Schreib appeals from a jury verdict in favor of Joel Whitmer. We affirm.

¶ 2 This case arises from a July 11, 2008 automobile accident, in which Whitmer rear-ended Schreib as she was entering a library parking lot.² In August 2011, Schreib filed a complaint against Whitmer alleging that he negligently caused the accident and that Schreib sustained personal injuries as a result.

¶ 3 The parties initially arbitrated the case, and a panel of three arbitrators issued an award in favor of Schreib. Whitmer then filed a notice of appeal in the district court and requested a jury trial. At a pretrial conference, the trial judge set the case for a two-day jury trial and ordered the parties to file any motions in limine by October 21, 2013.

¶ 4 On October 21, 2013, Schreib filed a motion in limine seeking to exclude post-accident photographs of Schreib's and Whitmer's vehicles. While Schreib acknowledged that the photographs might be "marginally" relevant, she argued that their admission into evidence would risk misleading the jury and cause unfair prejudice to her. On October 30, 2013, Schreib filed a second motion in limine seeking to exclude evidence of her preexisting medical conditions and prior automobile accidents. Schreib argued that the evidence was not relevant and should be excluded because Whitmer had not designated an expert "who [could] provide testimony that any preexisting condition, of which might be adduced by [Whitmer], contributed in any way to [Schreib's] present condition and/or the injuries received in the collision at issue."

¶ 5 The trial court denied both motions. The trial court concluded that the photographs were relevant evidence and that the probative value of the photographs was not "substantially outweighed by the danger of prejudice, confusion or misleading the jury." Regarding Schreib's second motion, the court concluded that "evidence of preexisting injuries and prior accidents [is] relevant." The court explained that "[w]hether [Whitmer] can get the evidence admitted is another matter, but the Court determines it can[not] exclude [ ] such evidence at this time on the basis of lack of relevance." The trial court also ruled that Schreib's second motion was untimely.

¶ 6 At trial, the parties presented conflicting evidence as to whether Schreib's injuries arose from the 2008 accident or from her preexisting medical conditions and prior accidents. Schreib testified that the impact from the collision was "quite a jar." She testified that after the collision, she got out of her vehicle, exchanged information with Whitmer, and told him that she was experiencing back pain. After Whitmer left, Schreib went to the library and called the police to report the accident. When she was done talking to the police, Schreib finished her business at the library and drove herself home. Three days after the accident, Schreib visited a chiropractor, Dr. Peterson, and complained that she was experiencing "pain in her neck and shoulders, headaches, low back pain and minor groin pain." Schreib further testified that before the accident she was in good physical health, that she was treated by Dr. Peterson from three days after the accident until February 2009, and that under his care she had a ninety-percent improvement. Subsequently, Schreib sought additional chiropractic care from a second chiropractor, Dr. Stockwell.

¶ 7 Both chiropractors testified for Schreib at trial. Dr. Peterson testified that he treated Schreib for soft-tissue neck and back injuries from July 14, 2008 through February 2, 2009. He further testified about the relationship between whiplash and low-speed collisions and that "the amount of damage [to the vehicles] has no bearing upon the likelihood of injury in a collision." In addition, based upon his examination of Schreib, he opined that she was injured in the accident. He also testified that he had examined Schreib in December 2007 and that she had complained of "insidious" neck pain that had persisted for two to three weeks.³ On cross-examination, Dr. Peterson admitted that he was not Schreib's primary treating doctor and that another doctor in his office provided Schreib's "day-to-day" treatment.

¶ 8 Dr. Stockwell testified that Schreib had been his patient since April 1999, that he had treated her thirty-two times between 1999 and Schreib's first post-accident visit in August 2008, and that she had originally sought treatment by him for neck pain. He also opined that Schreib was injured in the accident. However, on cross-examination, he testified that Schreib did not mention the accident to him during her first post-accident visit on August 21, 2008.

¶ 9 By contrast, Whitmer testified that he was driving "very slow" when he "bumped" Schreib's vehicle. According to Whitmer, he did not observe any vehicle damage while the parties were exchanging information, and Schreib did not complain of any pain or request medical assistance. Whitmer further testified that he was not injured in the accident and that afterward he went straight to his high school to play in a baseball game.

¶ 10 After the parties rested, Schreib moved for a directed verdict on the issue of liability, which Whitmer did not oppose. Accordingly, the court granted Schreib's motion, observing that Whitmer had "accepted liability for the accident." Schreib then moved for a directed verdict on the issue of causation, arguing that the jury could not reasonably find that the accident was not the cause of her injuries. The trial court summarily denied Schreib's motion.

¶ 11 After deliberation, the jury returned a verdict that the accident was not the legal cause of Schreib's alleged injuries. Based on the jury's finding, the trial court entered judgment for Whitmer and dismissed Schreib's claims. Thereafter, Schreib filed motions for a judgment notwithstanding the verdict and for a new trial on the issue of damages. After a hearing, the trial court denied both motions. Schreib appeals.

I. Schreib's Preexisting Medical Conditions

¶ 12 First, Schreib contends that "[t]he trial court applied the wrong legal standard when it denied [her] motion in limine regarding evidence of pre-existing medical conditions."

¶ 13 In denying Schreib's motion, the trial court ruled that "evidence of preexisting injuries and prior accidents [is] relevant." The court observed that "[w]hether [Whitmer] can get the evidence admitted is another matter, but the Court determines it can[not] exclude[ ] such evidence at this time on the basis of lack of relevance." The court further explained that because the evidence was relevant, "any ruling at this time to exclude would be premature and the Court must wait until [Whitmer] actually attempts to introduce evidence at trial before it rules on its admissibility."

¶ 14 Schreib asserts that "[i]t is clear" from Harris v. ShopKo Stores, Inc., 2013 UT 34, 308 P.3d 449, that "absent expert medical testimony to establish that pre-existing medical conditions are connected in some way to the pathology of which the plaintiff is complaining in an injury case, evidence of pre-existing conditions is not relevant and should not be admitted." Thus, according to Schreib, the trial court failed to correctly apply the law.

¶ 15 "[W]e consider the trial court's interpretation of binding case law as presenting a question of law and review the trial court's interpretation of that law for correctness." Meguerditchian v. Smith, 2012 UT App 176, ¶ 9, 284 P.3d 658 (alteration in original) (citation and internal quotation marks omitted). In addition, " ‘[a] trial court has broad discretion in deciding whether evidence is relevant, and we review a trial court's relevance determination for abuse of discretion.’ " Brady v. Park, 2013 UT App 97, ¶ 44, 302 P.3d 1220 (quoting State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194 ).

¶ 16 We conclude that Schreib's reliance on ShopKo is misplaced. In ShopKo, the Utah Supreme Court addressed whether the trial court erred in giving an apportionment instruction to the jury. ShopKo, 2013 UT 34, ¶ 31, 308 P.3d 449. The ShopKo plaintiff was injured when she sat on a display office chair in a ShopKo store and the chair collapsed. Id. ¶ 1. At trial, evidence was introduced to support the "inference that [the plaintiff] had previously suffered injuries in car accidents and that she had a number of preexisting conditions at the time of her fall." Id. ¶ 35. "The trial court instructed the jury that, if it could, it should apportion damages between those attributable to ShopKo's negligence and those attributable to her preexisting conditions." Id. ¶ 1. However, while there was expert testimony submitted to the jury at trial suggesting a connection between the plaintiff's preexisting conditions and her pain, there was "no expert testimony in the record on the extent to which her conditions contributed to her pain, if at all." Id. ¶ 37. The supreme court noted that "[w]ithout such testimony, the jury would have had to speculate as to any basis for apportioned damages, especially in light of [the plaintiff's] expert testimony indicating that her fall at ShopKo caused her injury." Id. Consequently, the supreme court concluded that there was insufficient evidence to support the trial court's apportionment instruction. Id.

¶ 17 Although the ShopKo court observed that evidence of preexisting conditions must overcome the standard evidentiary hurdles in order to be admissible, see id. ¶ 29 (citing Utah R. Evid. 401 –403 ), the court rendered no holding as to whether the evidence of the plaintiff's prior car accidents and preexisting...