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COURT OF APPEALS DECISION DATED AND RELEASED September 21, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-3139
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
FIL-MOR EXPRESS, INC.,
NATIONAL AMERICAN
INSURANCE
COMPANY, and WILLIAM
S. TWAITES,
Plaintiffs-Respondents,
v.
GERALD L. RICHARDSON,
DAWES TRANSPORT, INC.,
and
VAN LINER INSURANCE
COMPANY,
Defendants-Third-Party Plaintiffs-Appellants,
v.
TERRY LYNN GROOMS,
M.S. CARRIERS, INC.,
and
LIBERTY MUTUAL
INSURANCE COMPANY,
Third-Party Defendants.
APPEAL from a judgment
of the circuit court for Jefferson County:
JACKIE R. ERWIN, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Vergeront, JJ.
PER CURIAM. Gerald L. Richardson appeals from a
judgment entered on a jury verdict.[1] The issues are whether: (1) Richardson is entitled to a new
trial on liability; (2) the evidence warranted giving the emergency
instruction; (3) William S. Twaites was negligent as a matter of law;
(4) the trial court erroneously exercised its discretion in denying a
motion to preclude an uncooperative former expert witness from testifying
adversely; and (5) there was any credible evidence supporting the jury's
award for loss of earning capacity. We
conclude that: (1) Richardson is
not entitled to a new trial because there was credible evidence supporting the
verdict; (2) the evidence warranted giving the emergency instruction; (3)
Twaites was not negligent as a matter of law; (4) the trial court properly
exercised its discretion in denying a motion to preclude an uncooperative
expert from testifying adversely; and (5) there was credible evidence, to the
requisite standard of proof, to support the jury's award for loss of earning
capacity. Therefore, we affirm.
Twaites sued Richardson
for damages he sustained in a multi-vehicle collision which occurred in a dense
fog in the dark early morning hours.
Richardson was the first driver on the scene. He stopped suddenly, blocking traffic and caused the drivers
behind him, including Twaites, to swerve or collide into him. Twaites was the fourth driver on the scene
and he testified that he slowed as he drove through some light fog, when
"[a]ll of a sudden [he] just hit a big wall of fog" and collided with
the others. Richardson denied that he
stopped because of the fog, but claimed that he was hit from behind. However, other drivers, including Twaites,
testified that when they suddenly met this dense wall of fog, they were forced
to slow down. Consequently, the jury
was entitled to believe that the sudden, dense fog similarly caused Richardson
to brake.
The jury found
Richardson 100 percent causally negligent and awarded Twaites about $278,000.[2] The trial court entered judgment on the
verdict. Richardson appeals,
specifically on the sufficiency of liability evidence and on the award for loss
of earning capacity.
If there is any credible
evidence supporting the jury verdict, we will sustain it, particularly if the
trial court entered judgment on that verdict.
Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305-06, 347
N.W.2d 595, 598 (1984).
Richardson contends that
there was no credible evidence that Twaites was not negligent. We disagree. Twaites testified that he had begun to slow because he had
encountered some light fog, when suddenly he hit a "big wall of fog"
and within "a second or two" swerved to avoid Richardson's tail
lights, hitting another truck. Other
drivers testified similarly. In
rejecting a similar postverdict challenge, the trial court characterized the
testimony as describing the "fog of the century" and "that once
[the drivers were] within the bank of fog the collisions occurred almost
instantaneously." We conclude that
there was credible evidence that Twaites was not negligent.
Richardson contends that
the trial court should not have given the emergency instruction. See Wis
J I—Civil 1015. The emergency
instruction is proper when three conditions are met:
(1) The party seeking its benefits
must be free from the negligence which contributed to the creation of the
emergency; (2) the time element in which action is required must be short
enough to preclude the deliberate and intelligent choice of action; and
(3) the element of negligence inquired into must concern management and
control.
Edeler
v. O'Brien, 38 Wis.2d 691, 698, 158 N.W.2d 301, 304 (1968). Whether the first two conditions are met
depends upon which version of the facts is believed. There was credible evidence that Twaites was not negligent in
contributing to the emergency and that he only had "a second or two"
to avoid the collision. Richardson
contends that the instruction should not have been given because Twaites's
claimed negligence involved lookout and speed, in addition to management and
control. However, the court instructed
the jury that the emergency instruction "applied only in regard to the
inquiry of negligence as to management and control." The evidence supported the court's decision
to give the emergency instruction.
On motions after verdict
and on appeal, Richardson contends that the trial court should have found
Twaites negligent as a matter of law, despite the jury's finding. This contention is based on Twaites's
"concession" that he was
travelling too fast for conditions.
However, there was credible evidence that the "big wall of
fog" appeared suddenly, negating the claimed adverse effect of Twaites's
"concession." The court
instructed the jury on the reasonable speed appropriate for weather
conditions. Wis J I—Civil 1285.[3] By instructing the jury, the court
acknowledged the disputed evidence. We
conclude that the court did not err in refusing to find Twaites negligent as a
matter of law, considering Twaites's "concession" in the context of
his and the other liability testimony.
Richardson contends that
the trial court erroneously exercised its discretion in allowing plaintiffs to
compel an uncooperative accident reconstruction expert, retained by the
third-party defendants, to testify.[4] The plaintiffs identified their witnesses as
required by the scheduling order, and "reserve[d] the right to call any
witnesses named by defendants."
The plaintiffs did not identify an accident reconstruction expert, nor
did Richardson. This expert was
identified by the third-party defendants, and he criticized Richardson's theory
of how the accident occurred. Shortly
before trial, Richardson settled with the third-party defendants to avoid this
expert's criticisms, since plaintiffs had not identified an accident
reconstruction expert. However,
plaintiffs subpoenaed this expert because he refused to testify voluntarily. At trial, Richardson moved to preclude this
testimony, asserting plaintiffs did not identify this expert as required by the
scheduling order.[5] Richardson also moved for a mistrial, or at
a minimum, an adjournment to rebut this expert's criticisms.
The trial court denied
the motions. It ruled that plaintiffs
did not violate the scheduling order.
It concluded that plaintiffs' reservation of the right to call "any
witnesses named by defendants," encompassed those witnesses identified by
the third-party defendants. We agree.
The purpose of
identifying witnesses is to prevent trial by ambush. It allows the parties to conduct discovery to prepare for trial,
or to formulate an informed settlement strategy. Richardson claims prejudice because he strategically elected to
settle with the parties who retained an accident reconstruction expert. However, this expert's testimony, albeit
critical of Richardson's position, was not unfairly prejudicial. Had Richardson sought to retain an expert to
rebut this expert's opinions, he had ample time to do so. Moreover, Richardson knew plaintiffs
intended to call this expert before trial, but waited until the middle of trial
to attempt to preclude his testimony.
Although an adjournment is a common remedy to ameliorate the unfair
prejudice resulting from a surprise witness, Richardson already knew this
expert's opinions. A mid-trial
adjournment would have amounted to an advisory ruling that the trial court
would allow this expert's testimony.
Richardson is not entitled to an advisory ruling before he decides
whether to retain an expert with more favorable opinions.
We agree with the trial
court that the plaintiffs' reservation of rights to call any of the defendants'
witnesses, included those identified by the third-party defendants. The court also properly exercised its
discretion in denying Richardson's motion for a mistrial or an adjournment
because he was not surprised that the plaintiffs called this expert, or by the
expert's opinions. The only surprise
was Richardson's erroneous prediction of the court's ruling.
Richardson challenges
the award for loss of earning capacity, contending that the treating
physician's opinions were not phrased in terms of a reasonable degree of
medical probability. Although certain
excerpts of the medical testimony were not phrased according to the requisite
legal standard, at the request of counsel, the physician clarified that he held
all of his opinions to a reasonable degree of medical probability. The award was based on the medical testimony
on the probability of permanence of right buttock pain, which limited Twaites's
ability to sit in the cab of his truck after several hours, thereby reducing
his earning capacity.
There also was credible
evidence from Twaites's employer, Steven J. Pelner, supporting the award. Pelner testified that after long trips,
Twaites would exit his truck "gingerly" and walk with a limp.[6] He testified that Twaites had a strong work
ethic and was one of the "top producers" who generally drove 3,000
miles per week. Since the accident,
Twaites drives less and earns $5,000 less per year than the average "top
producer." Twaites's reduced
income, multiplied by the number of years of his work-life expectancy, is
credible evidence supporting the award for loss of earning capacity.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Although Richardson's employer, Dawes Transport, Inc., and its insurer, Van Liner Insurance Company, also are defendants-third-party plaintiffs-appellants, for brevity's sake we refer to them collectively as Richardson because their appellate interests are the same.
[2] The jury also awarded $59,381.56 to Fil-Mor Express for its tractor trailer, towing and other expenses.
[3] Wis J
I—Civil 1285 is entitled "Speed:
Reasonable and Prudent; Reduced Speed." The trial court instructed the jury that:
A safety statute provides that no person shall
drive a vehicle at a speed greater than is reasonable and prudent under
existing conditions. This statute
requires that a driver in hazardous circumstances exercise ordinary care to so
regulate the vehicle's rate of speed to avoid colliding with any object,
person, vehicle, or other conveyance on or entering the highway in compliance
with legal requirements and using due care.
The statute also provides that a driver must
drive at an appropriate reduced speed when special hazards exist with regard to
other traffic or by reason of weather or highway conditions.
Appropriate reduced speed as used in this instruction is a relative term and means less than the otherwise lawful speed. An appropriate reduced speed is that speed at which a person of ordinary intelligence and prudence would drive under the same or similar circumstances.
[4] Richardson sued the second driver who collided with him, his employer and insurer, as third-party defendants.
[5] Richardson
cites cases from other jurisdictions which hold that a party may not compel the
testimony of an uncooperative expert witness by subpoena. However, that authority is inapt. The trial court based its ruling on
plaintiffs' reservation to call an adverse witness, not on their compelling his
testimony by subpoena.