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Lewison v. Renner

Supreme Court of Nebraska

January 12, 2018

Barbara Lewison, appellant,
v.
Carol Renner, appellee.

         1. Motions for New Trial: Judges: Words and Phrases: Appeal and Error. An appellate court reviews a denial of a motion for new trial for an abuse of discretion. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         2. Negligence: Proof. To prevail in any negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and resulting damages.

         3. Negligence: Motor Vehicles: Proof. In an automobile negligence action, a plaintiff must prove each of the following elements: (1) that the defendant was negligent in one or more of the ways alleged, (2) that this negligence was a proximate cause of the collision, (3) that the collision was a proximate cause of some damage to the plaintiff, and (4) the nature and extent of that damage.

         4. Expert Witnesses. When the character of an alleged injury is subjective rather than objective, a plaintiff must establish the cause and extent of the injury through expert medical testimony.

         5. Physicians and Surgeons: Expert Witnesses: Words and Phrases. Although expert medical testimony need not be couched in the magic words "reasonable medical certainty" or "reasonable probability, " it must be sufficient as examined in its entirety to establish the crucial causal link between the plaintiff's injuries and the defendant's negligence.

         6. __:__:__. Medical expert testimony regarding causation based upon possibility or speculation is insufficient; it must be stated as being at least "probable, " in other words, more likely than not.

         7. Pleadings: Proof. It is an elementary rule of pleading that matters admitted by the pleadings need not be proved.

         [298 Neb. 655] 8. Pleadings. Generally, an admission made in a pleading on which the trial is had is more than an ordinary admission, it is a judicial admission.

         9. Pleadings: Evidence: Waiver. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.

         10. Pleadings: Intent. It is important to consider the context in which a judicial admission is made.

         11. ___:__.A judicial admission does not extend beyond the intendment of the admission as clearly disclosed by its context.

12. Negligence: Motor Vehicles: Damages. When a defendant admits the collision caused "some injury" but expressly denies the nature and extent of the injuries and damages claimed, it is improper to construe the admission as conceding the collision caused all of the injuries claimed by the plaintiff.

         13. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in the successful party's favor, and the successful party is entitled to the benefit of any inferences reasonably deducible from the evidence.

         14. Juries: Verdicts: Presumptions. When the jury returns a general verdict for one party, a court presumes that the jury found for the successful party on all issues raised by that party and presented to the jury.

         15. Trial: Expert Witnesses. Triers of fact are not required to take opinions of experts as binding upon them, and determining the weight to be given expert testimony is uniquely the province of the fact finder.

         Appeal from the District Court for Buffalo County: John H. Marsh, Judge. Affirmed.

          Michael W. Meister for appellant.

          Jeffrey H. Jacobsen and Nicholas R. Norton, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ., and Moore, Chief Judge.

          STACY, J.

         After an automobile collision, Barbara Lewison sued Carol Renner for negligence, claiming injuries to her neck, back, and [298 Neb. 656] wrists. Renner admitted her negligence caused the collision and also admitted the collision caused "some injury" to Lewison, but specifically denied the nature and extent of the injuries and damages claimed. The jury returned a general verdict for Renner. Lewison moved for a new trial, arguing the verdict was inadequate in light of Renner's admissions. The trial court denied the motion for new trial, and Lewison appeals. Finding no error, we affirm.

         I. FACTS

         On December 21, 2012, in Kearney, Nebraska, Renner made a left turn in front of a vehicle being driven by Lewison and the two vehicles collided. Lewison was taken from the scene by ambulance and treated in the emergency room for complaints of neck and back pain.

         In 2014, Lewison filed a negligence action against Renner in Buffalo County District Court. She alleged the collision caused injuries to her neck, back, and wrists. She further alleged that because of those injuries, she incurred medical expenses of $53, 270 and experienced mental and physical pain and suffering.

         Renner's operative answer admitted her negligence was the proximate cause of the collision with Lewison and further admitted "the collision was the cause of some injury to [Lewison]." But Renner "specifically denie[d] the nature and extent of the damage and injury claimed by [Lewison]."

         1. Evidence Presented at Trial

         The case was tried to a jury. Lewison testified at trial, but recalled very few details of her medical history and was generally a poor historian. Most of the evidence regarding Lewison's medical history and treatment was provided through the video depositions of four medical experts. Of the four medical experts, three were Lewison's treating doctors and one was hired by Renner as a defense expert.

         The only exhibits Lewison offered at trial were the video depositions of her doctors and the standard life expectancy [298 Neb. 657] table. She did not offer any evidence regarding the amount of her medical expenses, nor did she offer evidence of lost earnings, property damage, or other special damages. At oral argument before this court, Lewison's attorney explained that the decision not to offer evidence of Lewison's medical expenses was a strategic one, designed to avoid anchoring the jury to a formulaic approach to calculating damages.

         (a) Family Doctor

         Lewison's family doctor testified that 1 week after the collision, his office treated Lewison for tightness in her neck and bruising. Lewison returned to the family doctor 10 days later, reporting moderate neck spasms. CT scans of Lewison's head, neck, and thoracic spine were negative. She was referred to physical therapy and prescribed pain medications.

         According to the family doctor, Lewison first complained to him about tingling in her hands on February 5, 2013, roughly 6 weeks after the collision. He ruled out any injuries related to her cervical spine and eventually diagnosed her with carpal tunnel syndrome and referred her to an orthopedic hand surgeon.

         The family doctor was not asked to offer an opinion on whether the collision caused Lewison's neck and wrist complaints. But he did testify that her neck complaints were "consistent" with the collision and that the collision "could" have caused her wrist pain. When asked whether "some of Lewison's medications were related to injuries suffered in the 2012 collision, he replied, "I think sometimes yes, sometimes no. She has other aches and pains elsewhere. But, yes, sometimes she takes it for back pain, or neck pain, or head pain." The family doctor summarized:

I would say [Lewison] is a unique individual and maybe doesn't read the book as far as being a standard run-of-the-mill patient, and that she might have aches and pains that sometimes are hard to figure out no matter what day of the week it is.

         [298 Neb. 658] (b) Hand Surgeon

         Lewison's family doctor referred her to an orthopedic hand and microvascular surgeon in Kearney. The hand surgeon first saw Lewison in March 2013, approximately 3 months after the collision. At that time, Lewison complained of numbness and tingling in both hands. The hand surgeon testified that Lewison had undergone a carpal tunnel surgery in 1992, and he ultimately performed additional carpal tunnel surgeries in 2014. When asked whether the collision could have caused Lewison's wrist complaints, the hand surgeon replied, "Well, it's possible." Lewison's counsel then asked:

Q . . . [I]n this case, if we didn't have anything other than the description provided by Ms. Lewison of the accident, would it be more likely than not, then, to say that the accident caused ... the carpal tunnel?
A Well, you know, I - I'm not sure that I can say that ....

         When asked directly "whether or not the automobile accident of December 21st, 2012, caused or contributed ... in any way" to Lewison's ...


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