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COURT OF APPEALS DECISION DATED AND FILED June 10, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Milwaukee County: TIMOTHY M. WITKOWIAK, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 KESSLER, J. Karen Burris appeals an order of the circuit court denying her motion after the verdict. Burris contends that the circuit court erred in refusing to change the jury’s verdict to include compensation for a knee injury she claims was sustained as a result of a car accident. Burris also contends that sufficient evidence did not support the jury’s verdict. We affirm.
BACKGROUND
¶2 According to the facts in the record, on December 16, 2008, Burris was the passenger in a taxicab driven by Lassine Soumahoro. While riding in the backseat, Burris sustained injuries when the vehicle collided with another car. Burris did not go to the hospital immediately, but rather went to the emergency room the following day. Burris testified that she went to the hospital the following day because she noticed considerable swelling in her right knee, the result, she stated, of hitting her right leg against the backseat of the taxi during the accident. A medical report from Burris’s emergency room visit states that Burris complained of pain in her hip, shoulder, lower back and finger, but does not mention Burris’s right knee.
¶3 Burris followed up with her primary care physician, Dr. Joselito Baylon, on December 22, 2008. Dr. Baylon’s report stated that Burris was feeling back pain, but did not indicate that Burris suffered a knee injury. Dr. Baylon referred Burris to an orthopedic specialist and physical therapy. Burris began physical therapy in January 2009.
¶4 In March 2009, Burris fell on the staircase in her home. According to Burris, her right knee gave out, leading to significant knee injury requiring arthroscopic surgery. Burris then filed the lawsuit underlying this appeal against multiple defendants, including American United Taxicab Company and its insurer, Markel Insurance Company (“Markel”). Burris sought to recover all medical costs related to injuries incurred as a result of the collision, as well as for future pain and suffering.
¶5 Multiple witnesses testified at the trial, and multiple medical reports were presented to the jury. Burris testified that she injured her right knee during the collision when she struck her knee against the back seat of the taxicab. She stated that she went to the emergency room the following day, at which time her knee was examined and she was advised to follow up with Dr. Baylon. Burris also stated that Dr. Baylon referred her to physical therapy for her knee. Burris also visited Dr. Kevin Weidman, an orthopedic surgeon, who advised Burris to continue with physical therapy. Burris eventually underwent arthroscopic knee surgery, and was required to continue physical therapy following the surgery.
¶6 Dr. Weidman, through video testimony, opined that Burris injured her knee as a result of the collision. Dr. Weidman also stated that Burris’s medical records were not available for his review and that his opinion was based solely on Burris’s impression that she injured her knee in the collision.
¶7 Multiple medical reports were also entered into evidence, including: (1) the emergency room report; (2) a letter from Dr. Weidman stating that Burris’s knee injury resulted from the collision; and (3) physical therapy reports from before and after Burris’s fall. Counsel for Markel asked Burris about the emergency room report, Dr. Baylon’s report, and multiple physical therapy reports dated before her fall. Burris confirmed that none of the asked-about reports reflected a knee injury. Burris also confirmed that physical therapy reports, dated after her fall, do reflect a knee injury.
¶8 The jury awarded Burris $3579.38 in damages for past medical bills. Specifically, the award compensated Burris for the costs of: (1) the emergency room visit; (2) two visits with Dr. Baylon; and (3) physical therapy bills predating her March 2009 fall. The jury did not award compensation for Burris’s knee surgery, or for the physical therapy appointments following the surgery, finding that Burris’s knee injury was not caused by the collision.
¶9 Burris filed a post-verdict motion seeking compensation for expenses related to her knee surgery. Relying on Hanson v. American Family Mutual Insurance Co., 2006 WI 97, 294 Wis. 2d 149, 716 N.W.2d 866, Burris argued that the verdict was contrary to Wisconsin law and was not supported by sufficient evidence. Burris also moved for a new trial in the interest of justice because the jury’s failure to award compensation for her surgery was contrary to the great weight of the evidence.
¶10 The circuit court denied the motion in a written order, finding Hanson inapplicable to the facts of Burris’s case, and that credible evidence supported the jury’s verdict. Accordingly, the circuit court also denied Burris’s request for a new trial.
DISCUSSION
¶11 In reviewing a jury award, we may not substitute our judgment
for the jury’s; rather, we determine whether the award is within reasonable
limits. Brain v. Mann, 129 Wis. 2d 447, 455, 385
N.W.2d 227 (Ct. App. 1986). If there is
any credible evidence which under any reasonable view supports the award, we “will
not disturb the finding unless it is so unreasonably low that it shocks the
judicial conscience.” See id. When
the verdict has the approval of the circuit court, we will set aside the
verdict only for an evident erroneous exercise of discretion. See
id.
The Jury’s Verdict is not
Contrary to Wisconsin Law.
¶12 On appeal, Burris
reiterates her arguments made to the circuit court. Relying on Hanson, Burris contends that she is entitled to the full
extent of her medical bills, including expenses related to the knee surgery,
because her fall stemmed from an injury initially incurred as a result of the
collision. Burris argues that Hanson stands for the
proposition that an injured party is entitled to compensation for the full
value of treatment if the initial injury results from a collision.
¶13 In Hanson, the Wisconsin Supreme
Court reiterated the rule first acknowledged in Selleck v. City of Janesville, 100 Wis. 157, 75 N.W. 975
(1898), that “when a tortfeasor causes an injury to another person who then
undergoes unnecessary medical treatment of those injuries despite having
exercised ordinary care in selecting [a] doctor, the tortfeasor is responsible
for all of that person’s damages arising from any mistaken or unnecessary
surgery.” Hanson, 294 Wis. 2d 149, ¶20. In that case, Jo-El Hanson complained of lower
back, neck and rib pain following an automobile accident. Id.,
¶¶4-5. Hanson sought treatment for her
ailments and eventually underwent surgery on her neck. Id.,
¶¶5-6. The operating surgeon concluded
that Hanson’s surgery was necessary; however, a neurosurgeon retained by the
defendant insurance company testified that Hanson’s surgery was unnecessary and
suggested that Hanson’s surgeon may have committed malpractice by operating on
her. Id., ¶¶6-7. The jury
awarded Hanson past medical expenses for treatment obtained after the accident
but before the surgery. Id., ¶10. Hanson filed a post-verdict motion, seeking
the full amount of her medical costs, including costs related to the surgery. Id.,
¶11. The circuit court denied the
motion.
¶14 The supreme court
upheld our decision reversing the circuit court. Acknowledging the Selleck rule, the supreme court held that regardless of the
necessity of Hanson’s surgery, Hanson’s initial neck injury resulted from the
automobile accident. Hanson, 294 Wis. 2d 149, ¶27. The court noted that while Hanson may have
received faulty medical advice as to treatment, the jury determined that Hanson
indeed suffered a neck injury as a result of the accident. See id. Accordingly, the
supreme court found that Hanson was entitled to the full costs of her
treatment. Id., ¶30.
¶15 Here, unlike Hanson, the jury rejected
Burris’s contention that she incurred a knee injury as a result of the
collision. Because the jury did not find
a causal connection between the accident and Burris’s knee injury, the jury did
not award damages for treatment stemming from Burris’s fall. The jury was presented with competing evidence
as to whether the necessity of Burris’s knee surgery stemmed from an injury
originally arising from the collision. The
jury determined that Burris’s knee injury was a separate injury from those
arising from the collision. A jury is
free to draw its own inferences from competing evidence. Weber
v. Chicago & Northwestern Transp. Co., 191 Wis. 2d 626, 637, 530 N.W.2d 25 (Ct. App. 1995). The jury’s verdict did not violate Wisconsin
law.
Sufficiency of the Evidence.
¶16 We will not reverse a
verdict for insufficient evidence unless, “considering
all credible evidence
and reasonable inferences therefrom in the light most favorable to the party
against whom the motion is made, there is no credible evidence to sustain a finding in favor of such
party.” See Wis. Stat. § 805.14(1)
(2011-12).[1]
“‘To reverse, this court must conclude
that there is such a complete failure of proof that the verdict must have been
based on speculation.’” Nieuwendorp v. American Family Ins. Co., 191
Wis. 2d 462, 472, 529 N.W.2d 594 (1995) (citation omitted).
¶17 We agree with the
circuit court that credible evidence supports the jury’s verdict. The jury heard testimony from Burris and Dr.
Weidman, both of whom testified that Burris’s right knee injury was caused by
the collision. However, the defendants
offered rebuttal evidence that the jury was free to accept. Specifically, the defendants noted that
neither Burris’s emergency room record, Dr. Baylon’s report, nor Burris’s
physical therapy records predating her fall indicated a right knee injury. The jury also heard Dr. Weidman testify that
he did not review any of Burris’s medical records and that his opinion was
based solely on Burris’s statements to him.
It is the jury’s role
to evaluate the credibility of witnesses and weigh the evidence. Morden v. Continental AG, 2000
WI 51, ¶39, 235 Wis. 2d 325, 611 N.W.2d 659. Therefore, when the
evidence supports more than one reasonable inference, “we accept the particular
inference reached by the jury.” See id. Here, the
evidence supports two reasonable inferences—that the collision caused Burris’s
knee injury and that the collision did not cause the injury. The jury’s finding that Burris’s knee injury
did not result from the collision must be sustained. Thus, Burris’s award excluding the medical
expenses associated with her knee surgery was proper.
¶18 Because the jury’s verdict was not contrary to Wisconsin law, and because sufficient evidence supports the jury’s verdict, we do not address Burris’s argument that she is entitled to a new trial in the interest of justice. We affirm the circuit court.[2]
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] The defendants urge us to impose sanctions on Burris’s counsel for misrepresentations made in Burris’s reply brief. We decline to impose sanctions in this case, but we do warn counsel that inaccurate record citations are grounds for sanctions. See Wis. Stat. Rule 809.83(2).