Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge
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.
[¶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 damage s. 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.
[¶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.
[¶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.
[¶14] The jury trial on Plaintiff's claims was held from November 4, 2013 through November 7, 2013. Plaintiff asked the jury to award damages in the range of $164, 000 to $184, 000 for past and future medical expenses, past and future lost wages, pain and suffering, and loss of enjoyment of life. Defendants conceded responsibility for medical expenses related to Plaintiff's back, neck, and shoulder injuries, but they disputed that the accident caused the nerve damage in Plaintiff's right arm. Defendants also contested the amounts claimed for lost earning capacity, pain and suffering, and loss of enjoyment of life. The jury returned a verdict awarding Plaintiff $80, 000.
[¶15] On December 5, 2013, Plaintiff filed a proposed form of judgment, which included an award of prejudgment interest in the amount of $9, 198.18. Defendants objected to an award of prejudgment interest, and on January 21, 2014, the district court entered its Judgment on Civil Jury Trial, which reduced the jury verdict to a judgment without an award of prejudgment interest.
[¶16] On January 24, 2014, Plaintiff filed a verified certificate of costs in which he requested among other costs, an award of $408.33 for his share of the cost of court-ordered mediation. Defendants objected to Plaintiff's request for an award related to the mediation costs, and in so objecting, disclosed settlement discussions that took place during that mediation. Plaintiff responded with a motion for sanctions for Defendants' breach of mediation confidentiality.
[¶17] On April 21, 2014, the district court issued an Order on Post-Trial Motions. Among other rulings, the court denied Plaintiff's request for an award related to his share of the mediation costs. With respect to Plaintiff's request for sanctions, the court agreed that Defendants violated the mediation confidentiality requirements, but it concluded the circumstances did not warrant an award of sanctions. In response to a request from Plaintiff, the court also provided a written explanation for its denial of prejudgment interest.
[¶18] Plaintiff filed separate notices of appeal from the district court's Judgment upon Civil Trial and its Order on Post-Trial Motions. The two appeals were thereafter consolidated.
STANDARD OF REVIEW
[¶19] Plaintiff's appeal of the district court's trial rulings includes challenges to the court's rulings on the admissibility of evidence and instructions to the jury, and to the court's ruling on how damages would be categorized on the verdict form. These are all rulings this Court reviews for an abuse of discretion.
[¶20] With respect to rulings on the admissibility of evidence for an abuse of discretion, we have said:
Generally, decisions regarding the admissibility of evidence are entrusted to the sound discretion of the district court. We afford considerable deference to the district court's decision and, as long as a legitimate basis exists for the district court's ruling, it will not be reversed on appeal. Under the abuse of discretion standard, our primary consideration is the reasonableness of the district court's decision. The burden of establishing an abuse of discretion rests with the appellant.
If we find that the district court erred in admitting the evidence, we must then determine whether or not the error affected [the appellant's] substantial rights, providing grounds for reversal, or whether the error was harmless. The error is harmful if there is a reasonable possibility that the verdict might have been more favorable to [the appellant] if the error had never occurred. To demonstrate harmful error, [the appellant] must prove prejudice under circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play
Singer v. Lajaunie, 2014 WY 159, ¶ 31, 339 P.3d 277, 286 (Wyo. 2014) (quoting Proffit v. State, 2008 WY 103, ¶ 12, 191 P.3d 974, 977–978 (Wyo. 2008)).
[¶21] With respect to challenges to jury instructions, we have said:
When we review claims of error involving jury instructions, the district court is afforded significant deference. Luedtke v. State, 2005 WY 98, ¶ 28, 117 P.3d 1227, 1232 (Wyo. 2005). A district court is "given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found." Id. (citations omitted); see also Hawes v. State, 2014 WY 127, ¶ 15, 335 P.3d 1073, 1078 (Wyo. 2014). Its ruling on an instruction must be prejudicial to constitute reversible error. Heywood v. State, 2007 WY 149, ¶ 26, 170 P.3d 1227, 1234 (Wyo. 2007) (citation omitted), abrogated on other grounds by Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo. 2008). Because the purpose of jury instructions is to provide gu idance on the applicable law, prejudice will result when the instructions confuse or mislead the jury. Id.
Brown v. State, 2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo. 2015); see also Adekale v. State, 2015 WY 30, ¶ 37, 344 P.3d 761, 770 (Wyo. 2015) (citing Budder v. State, 2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo. 2010)) (challenges to jury instructions are reviewed for an abuse of discretion and district court is given substantial latitude to tailor jury instructions to the facts of the case).
[¶22] Our review of a district court's ruling on the form of the verdict tracks our review of jury instructions:
"The submission of ... a particular form of special verdict is vested in the sound discretion of the trial court." Turcq v. Shanahan, 950 P.2d 47, 53 (Wyo. 1997). We consider the verdict form together with the instructions provided to the jury. Pauley v. Newman, 2004 WY 76, ¶ 12, 92 P.3d 819, 824 (Wyo. 2004). Reversal may only be predicated upon an abuse of the court's discretion. Addakai v. Witt, 2001 WY 85, ¶ 16, 31 P.3d 70, 73 (Wyo. 2001).
HJO v. State (In re KMO), 2012 WY 99, ¶ 28, 280 P.3d 1203, 1213 (Wyo. 2012).
[¶23] Plaintiff's remaining challenges are to the district court's post-trial rulings, and we will discuss the standard of review applicable to the post-trial rulings in our discussion of those issues.
A. Exclusion of Evidence Related to the Accident
[¶24] Plaintiff argues on appeal, as he did in opposition to Defendant Deveny's motion in limine, that evidence relating to how the accident occurred was critical to his proof of damages. Plaintiff contends:
In this case, Plaintiff sought 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 sought 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.
[¶25] Based on our review of the record, we reject Plaintiff's argument. At the outset of the trial, the district court provided only a preliminary ruling on the admissibility of evidence concerning the accident, noting that it could not provide a firm ruling until it heard the evidence. As the trial proceeded and the court learned more precisely what the evidence would be and its relevance, the court's ruling became more definite. This is important because this Court has held that where a trial court issues a preliminary ruling excluding evidence, subject to further consideration during trial, the proper procedure is for the party seeking admission of the evidence to make an offer of proof. Silva v. State, 2012 WY 37, ¶ 20, 271 P.3d 443, 450 (Wyo. 2012). Failure to make that offer of proof strips the district court of its "ability to reconsider its exclusion of evidence at an appropriate time during trial, " and results in a waiver of any claimed error. Id., ¶ 21, 271 P.3d at 450. Unless a court's ruling on a motion in limine is definitive, a party waives objection to the exclusion of evidence, or the admission of evidence in some cases, if that party does not renew his objection at the appropriate time during trial. Hicks v. Zondag, 2014 WY 16, ¶ 14, 317 P.3d 606, 610 (Wyo. 2014).
[¶26] As we will discuss in more detail below, Plaintiff did not follow this procedure with respect to evidence he sought to introduce concerning the speed of the vehicles and how hard Mr. Deveny braked. Even had Plaintiff followed those procedures, however, we find that his argument as to the relevance of the excluded evidence and the prejudicial impact of its exclusion is simply not supported by the record. The record contains no evidence that the speed of the vehicles or the nature of the braking was a factor in the medical testimony regarding causation of Plaintiff's injuries. Moreover, although much testimony was permitted regarding the force of the collision, the force of the collision was likewise not a factor of particular significance discussed in the medical testimony on causation.
[¶27] Because our review of the errors alleged by Plaintiff must be done in the context of the district court's evolving rulings, we divide our discussion below into a review of the errors alleged before the district court made a definitive ruling on the admissibility of the evidence and those alleged after the court made its definitive ruling.
1. Errors Alleged before Definitive Ruling on the Motion in Limine
[¶28] The district court first addressed the motion in limine after jury selection and before opening statements. In this preliminary discussion, the court informed the parties that it was addressing the issue pursuant to W.R.E. 403 and that what it would be evaluating was the relevance of the evidence as it pertained to Plaintiff's damages because that was the only issue before the jury. The court observed that any other relevance the evidence might have was likely to be outweighed by its potential for unfair prejudice. The court then placed some limitations on discussion of the accident's particulars during opening statements but otherwise reserved ruling on the motion:
THE COURT: . . . I think it's fine to say, you know, that it was a rear-end collision and if you have evidence of speed and circumstantial evidence [of] the impact by virtue of the photographs and so on that you can go into that . . ..
. . . .
I don't want you to mention it in opening beyond saying there was a rear-end collision and if you guys want to further talk about it, I mean maybe it's just me, but I mean I could put myself as a juror and say, well, gosh, how exactly did this happen, but on the other hand I don't know how much of that really is truly relevant and I don't think if it gets into the road rage thing then you're inviting this prejudicial decision by the jury.
So if you guys are inclined to try to, you know, write up some stipulation before we really enter the – much of the evidence about the circumstances of it to show that there was braking and the car behind ran into the car in front and this was a rear-end collision and then this is the result, you know, that would be worth considering. And I'll think about it some more, but I don't want you to go into it during the opening.
[Plaintiff's Counsel]: Can I talk about the damage to the vehicle? That's relevant, right?
THE COURT: Yeah, sure.
[Plaintiff's Counsel]: Okay.
THE COURT: And some of these are mushy, you know, it's hard for me to make a totally fine line there for you on these motions in limine when I haven't heard the evidence.
[¶29] Before opening statements, the district court then read the jury a number of preliminary instructions, including Instruction No. 10 which instructed:
It is admitted by Billy K. Nunn and Dean [Deveny], the Defendants, that they were responsible for causing the accident at issue. Because of this admission, the questions remaining for your determination are: (1) whether the accident caused injury and damage to Plaintiff; (2) what elements of damages, if any, were suffered by the Plaintiff as a result of the accident; and (3) the amount of damages, if any.
The Defendants' admission with respect to causing the accident should neither prejudice nor influence you in determining the issues of causation of damages.
[¶30] In Plaintiff's case in chief, the first witness to the accident itself that Plaintiff called was Defendant Nunn, the driver of the rear vehicle. Concerning the force of the collision, Plaintiff asked Mr. Nunn about damage to the vehicles as well as the following additional questions:
Q. Okay. And when you rear-ended Mr. Deveny's truck you hit him, you hit the back of his truck where the trailer hitch is, right?
Q. And just before you hit him your wife screamed, didn't she?
A. I believe so.
Q. Okay. Mr. Nunn, just want to ask you a couple more questions. You wouldn't dispute, would you, that the accident you were in was a serious accident, would you?
A. It was substantial.
Q. Okay. And in fact on a scale of one to ten, with one being sort of a very minor accident and ten being the worst accident you've ever seen, you would have rated this accident as a six or seven, right?
[¶31] On direct examination, Plaintiff did not ask Mr. Nunn how fast he was driving or what precipitated the accident. On cross-examination, Mr. Nunn testified that he did not suffer injuries in the accident and nor did his wife or three children who were also in the truck with him. He further testified that he was able to have his truck repaired and continues to drive the truck. Plaintiff asked no questions on redirect, leaving unasked the question of what speed Mr. Nunn was driving.
[¶32] Plaintiff next called Defendant Deveny, the driver of the vehicle in which Plaintiff was riding. On direct examination, Plaintiff asked about damage to Mr. Deveny's truck, including how the force of the collision bent the trailer hitch on the truck and lifted and ripped a 300-400 pound toolbox from the location where it had been bolted to the bed of the truck. Plaintiff did not ask Mr. Deveny how fast he was driving or how hard he braked before the collision on either direct or redirect examination.
[¶33] At one point during Mr. Deveny's testimony, the district court advised counsel that he had overlooked giving jurors the opportunity to present questions following Mr. Nunn's testimony and that the court would have Mr. Nunn retake the stand for those questions following completion of Mr. Deveny's testimony. It was in the juror questions, first for Mr. Deveny, and then for Mr. Nunn, that questions of what speed the vehicles were traveling at the time of the accident was first presented. Plaintiff approved having the juror questions asked, but Defendants objected to the questions. The court determined, because of concerns that the questions would lead into accident details that the court was trying to avoid, that the questions would not be asked.
[¶34] At the point in the trial when Plaintiff called Defendants to testify, the district court had not definitively ruled on the motion in limine regarding evidence of the accident. The only ruling the court had made was the preliminary ruling the court gave before opening statements, which was essentially a ruling that the court would consider the evidence as the issue arose during trial. The issue of whether Defendants could be asked the speed they were driving or how hard Mr. Deveny braked did not arise during Plaintiff's examination of either Defendant, however, because Plaintiff did not ask the questions. Because Plaintiff did not ask the questions and did not make an offer of proof, he waived any error in the exclusion of Defendants' testimony on the questions of speed and braking.
2. Errors Alleged after Definitive Ruling
[¶35] At the close of the second day of trial, shortly after the above-described testimony and rulings, the following discussion took place outside the presence of the jury:
[Plaintiff's Counsel]: . . . Your Honor, I know your concern about keeping out the accident facts in this case, but it's causing a lot of problems in how the jury is perceiving the case. If we look at the questions they've asked, their concern that the photographs don't show as much damage as they would expect. They are wondering if he was holding onto the handle, that was another question that I think didn't ask – actually, I don't recall, don't quote me on that.
THE COURT: That certainly wouldn't have been precluded.
. . . .
[Counsel for Nunn]: I believe a juror asked [Plaintiff's physical therapist] whether anybody asked [Plaintiff] about a handle.
[Plaintiff's Counsel]: I stand ...