Stocki v. Nunn

351 P.3d 911

2015 WY 75

Jerome STOCKI, Appellant (Plaintiff)

v.Billy K. NUNN and Dean Deveny, Appellees (Defendants).

Jerome Stocki, Appellant (Plaintiff)

v.Billy K. Nunn and Dean Deveny, Appellees (Defendants).

Nos. S–14–0118

S–14–0149.

Supreme Court of Wyoming.

May 27, 2015.

Representing Appellant: David H. Day and Michael E. Day of Day Shell & Liljenquist, L.C., Murray, UT. Argument by Michael E. Day.

Representing Appellees: Kevin K. Kessner of Yonkee & Toner, LLP, Sheridan, WY for Dean Deveny; and Troy A. Ukasick and Shannon B. Sharrock, Loveland, CO for Billy K. Nunn. Argument by Mr. Kessner and Ms. Sharrock.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

HILL, Justice.

[¶ 1] Plaintiff Jerome Stocki was a passenger in a vehicle involved in a two-vehicle collision and filed a complaint against both drivers alleging that their negligence caused him serious injury and damages. Shortly before trial, both drivers admitted liability and agreed to an equal apportionment of fault, but they continued to contest damages. Plaintiff asked for an award of damages in the range of $164,000 to $184,000, and a jury returned a verdict awarding him $80,000. Plaintiff appeals, claiming several errors in the district court's trial and post-trial rulings. We affirm.

ISSUES

[¶ 2] Plaintiff presents eight issues on appeal, which he states as follows:

Issue One: Whether the district court abused its discretion when it excluded evidence of the accident.

Issue Two: Whether the district court abused its discretion when it allowed Defendants to present evidence of Plaintiff's tobacco and alcohol use.

Issue Three: Whether the district court erred in instructing the jury as to mitigation of damages.

Issue Four: Whether the district court abused its discretion in refusing to ask the jury regarding itemization of damages in the verdict form.

Issue Five: Whether the district court erred in instructing as to present value and excluding evidence on inflation.

Issue Six: Whether the district court erred when it refused to award prejudgment interest on Plaintiff's past medical expenses.

Issue Seven: Whether the district court improperly refused to sanction Defendants' counsel for violating mediation confidentiality.

Issue Eight: Whether the district court abused its discretion in refusing to reimburse Mr. Stocki for his share of the mediation fee.

FACTS

[¶ 3] In 2008, Plaintiff and Defendant Dean Deveny both lived in Star Valley, Wyoming, and they both worked for Buffalo Valley Construction in Jackson, Wyoming. Although Mr. Deveny was Plaintiff's supervisor, they were also friends and frequently drove to work together. On the morning of October 24, 2008, Mr. Deveny and Plaintiff were traveling through the Snake River Canyon on their way to work in Jackson. Mr. Deveny was driving his truck, and Plaintiff was riding in the front passenger seat of the truck. Mr. Deveny's sister was also in the vehicle. Defendant Billy Nunn was driving the same road in his truck and was behind Mr. Deveny. Mr. Nunn's wife and children were also in his truck.

[¶ 4] It was still dark when Mr. Nunn's vehicle caught up to Mr. Deveny's vehicle in the canyon. In his deposition testimony, Plaintiff described what happened next:

[A]s we're driving ... [Mr. Nunn] started flashing his lights, ... and Dean [Mr. Deveny] said something to the effect of ... “Well, are you gonna pass me?” And then as we're driving, Dean ... started slowing down, pulling off to the side. And then Billy [Mr. Nunn], ... basically was getting closer, flashing his lights more, and they were kind of doing the “back and forth,” ... Like, I'm gonna pass; no, I'm not gonna pass; I'm gonna let you pass; I'm not gonna let you pass. And ... as they were driving, it ended up being Dean saying, “Okay, well, if you're not gonna pass—” then he decided to hit the brakes. And he said ... “Hang on.” So then I grabbed onto the [handle on the dash-board]. And then [Mr. Nunn] pretty much just pile-drived us off to the shoulder.

[¶ 5] At the scene of the accident, no one involved in the accident complained of injuries. The parties worked together to pry the front bumper of Mr. Nunn's truck away from the truck's front tire and then left the accident site and proceeded on to Jackson. Mr. Deveny and Plaintiff reported to their work site and ran a few errands before going to the hospital.

[¶ 6] At the hospital, Plaintiff complained of pain in his right shoulder, back, and lower back and was given a shoulder immobilizer and prescribed a muscle relaxer and pain medication. Plaintiff was also instructed to follow up with Dr. Doug Weiss at Teton Orthopedics within a day or two, which he did. Dr. Weiss referred Plaintiff to physical therapy and also referred him to Dr. Geoffrey Skene, a non-surgical spine specialist at Teton Orthopedics for treatment of his right neck and intrascapular pain. Dr. Skene ordered an MRI and determined that Plaintiff did not suffer any disk herniation, fracture, or dislocation and diagnosed him with a soft tissue injury to the muscles and connective tissue in his neck and upper back. Dr. Skene continued Plaintiff's physical therapy and also ordered a trigger point injection to treat his back and neck pain. Between February 2010 and August 2010, Dr. Skene gave Plaintiff eight trigger point injections, and the last time Dr. Skene saw Plaintiff was in August 2010.

[¶ 7] During a physical therapy appointment ten days after the accident, Plaintiff reported that he was experiencing numbness and tingling in his right hand. Based on those complaints, Dr. Skene performed an EMG test to evaluate the conductivity of the nerves in Plaintiff's right arm, which resulted in a finding of mild carpal tunnel and an otherwise normal nerve study. Dr. Skene then referred Plaintiff to Dr. Heidi Jost, an orthopedic surgeon at Teton Orthopedics specializing in hand and upper extremity surgery, who then took over care of Plaintiff's complaints related to his right arm and hand.

[¶ 8] Dr. Jost saw Plaintiff on March 6, 2009, about four and a half months after the accident, and diagnosed him with injuries to the ulnar, median, and radial nerves in his right arm. Dr. Jost initially treated Plaintiff by having his arm placed in a splint to improve blood flow to his nerves and with a referral for physical therapy specifically directed to treating and healing the affected nerves. On June 1, 2010, Dr. Jost performed surgery on Plaintiff's right arm, including: a right carpal tunnel release ; an ulnar and radial nerve decompression; clean up of the nerves at the elbow; and excision of a ganglion cyst from the wrist.

[¶ 9] Dr. Jost last saw Plaintiff on May 1, 2013, at which time he was complaining of wrist spasms, dorsal forearm discomfort with weather, elbow pain with overuse, headaches from neck tension that were at times constant, sharp pains in his upper back, and a return of throbbing in his arm. He denied numbness and tingling. Tests of his grip strength showed that he had a fairly significant loss of grip strength in his right hand.

[¶ 10] On October 10, 2012, Plaintiff filed a complaint against both Mr. Deveny and Mr. Nunn (collectively Defendants) alleging that their negligence caused him damages, including past medical expenses, future medical expenses, lost past and future wages, lost earning capacity, damages for personal assistance and household help, and damages for pain and suffering, mental anguish, and loss of enjoyment of life. Plaintiff also sought punitive damages against Mr. Nunn for his alleged malicious, willful and wanton misconduct, but he subsequently dismissed that claim.

[¶ 11] On October 21, 2013, Defendants filed a notice of their admission of liability. Through that notice, Defendants admitted that they were equally at fault in causing the collision. They also informed the court that both Defendants had the same insurer and that the insurer had agreed to pay the entire judgment even if it exceeded Defendants' policy limits, thereby resolving the issue of fault apportionment.

[¶ 12] Concurrent with Defendants' notice of admission of liability, Mr. Deveny filed a motion in limine to exclude “questioning or presenting evidence at trial that is not relevant to the issues of causation and damages.” Plaintiff objected to the motion in limine, arguing:

In this case, Plaintiff seeks to admit facts regarding the force and severity of the accident, such as the speed the parties were going, how fast and hard Mr. Deveny hit his brakes, how closely Mr. Nunn was following Mr. Deveny when he hit his brakes, and how quickly Mr. Nunn reacted to Mr. Deveny hitting his brakes. The emotional state of the parties is relevant to this inquiry, as the more annoyed, frustrated, and aggressive Mr. Deveny was, the more likely it is that he slammed on the brakes and decelerated rapidly, which would have the result of increasing the force and severity of the accident. Plaintiff also seeks to admit the background facts of the accident to give the jury context and a coherent narrative. Telling the jury that Mr. Deveny slammed on his brakes and Mr. Nunn was following closely behind does not give the jury the full story—they should know why Mr. Deveny slammed on his brakes, his emotional state, and the reasons for his emotional state. This is relevant and probative under Rules 402 and 403 and should be admitted.

[¶ 13] In response to Plaintiff's objection, Mr. Deveny clarified that he did not object to questions or evidence regarding the speed Defendants were driving when the collision occurred or the force of the impact. The district court heard argument on Mr. Deveny's motion in limine before the parties gave their opening statements. At that point, the court made some preliminary observations and limitations on the parties' opening statements, but otherwise reserved ruling on the motion. We will discuss the district court's further rulings on evidence related to the accident when we address Plaintiff's claim of error related to those rulings.

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