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Austin v. Timperley

Court of Appeals of Nebraska

December 17, 2013

Barbara A. Austin, by Donald R. Austin, her next friend, appellant and cross-appellee,
v.
Judith Timperley, appellee and cross-appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge.

Dale D. Dahlin, P.C., L.L.O., for appellant.

Scott A. Lautenbaugh, of Hansen, Lautenbaugh & Buckley, L.L.P., for appellee.

Irwin, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

INTRODUCTION

Barbara A. Austin (Austin) by Donald R. Austin, her next friend, appeals from a jury verdict in the district court for Lancaster County awarding Austin damages for injuries sustained in a motor vehicle accident. Austin takes issue with the amount of damages awarded and the court's refusal to give a certain jury instruction. Judith Timperley cross-appeals, arguing that the trial court erred in excluding expert testimony. Based on the reasons that follow, we affirm.

BACKGROUND

On December 21, 2007, Austin and Timperley were involved in a motor vehicle accident when Timperley's vehicle rear-ended Austin's vehicle. Following the collision, both parties exited their vehicles, observed little to no damage to either vehicle, exchanged contact information, and drove away from the scene.

On December 26, 2007, Austin went to see Dr. Kathryn Hajj for right shoulder pain and told her that she had been rear-ended by a vehicle on December 21 and that the right shoulder pain began immediately after the accident. Hajj treated Austin with prescription medication and referred her to physical therapy. Austin attended physical therapy from December 31, 2007, to January 25, 2008.

On January 24, 2008, Austin returned to Hajj for right shoulder pain and Hajj injected her right shoulder with cortisone, an anti-inflammatory medication. On March 12, Austin again saw Hajj for shoulder pain and was given another cortisone injection. Austin had a followup visit with Hajj on March 19, and the record indicates she told Hajj that she was pain free.

On June 25, 2008, Austin returned to Hajj with shoulder pain. Hajj recommended an MRI of the right shoulder to assess for a tear of the right rotator cuff tendon, and an MRI was done that day.

On July 3, 2008, Hajj advised Austin that the MRI showed a tear of the rotator cuff tendon. Hajj referred Austin to Dr. David L. Samani, an orthopedic surgeon, for evaluation and possible surgery.

Samani saw Austin on July 16, 2008, and reviewed the MRI. He also reviewed Austin's medical records from Hajj. He found that Austin suffered an acute full-thickness tear of her rotator cuff in her right shoulder. Samani performed surgery on Austin's shoulder on August 22. Austin had several followup visits with Samani after surgery, and she also went to physical therapy for a period of time.

On November 2, 2009, Austin filed a complaint against Timperley alleging that on December 21, 2007, Timperley negligently rear-ended and collided with Austin's vehicle causing injuries to her right shoulder. The complaint sought damages in the amount of $33, 060.78 for medical expenses, as well as other damages.

On February 8, 2012, Austin filed a motion in limine seeking to exclude the testimony of two witnesses Timperley had designated as experts. One expert was an accident reconstructionist who concluded that the forward acceleration experienced by Austin was no more than 8 miles per hour. The other expert was a biomechanical expert who concluded that Austin's injuries were not consistent with the forces and accelerations sustained in the rear-end collision. Following a hearing on the motion, the trial court sustained the motion in limine, finding that the reasoning or methodology underlying the expert testimony was not scientifically valid and reliable. ...


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