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Vahai v. Gertsch

Supreme Court of Wyoming

January 15, 2020

AUBRI VAHAI, Appellant (Plaintiff),
v.
RYAN GERTSCH, Appellee (Defendant).

          Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge

          Representing Appellant: Richard Gage, Richard Gage, P.C., Cheyenne, Wyoming.

          Representing Appellee: Curtis B. Buchhammer, Buchhammer & Ward, P.C., Cheyenne, Wyoming.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          KAUTZ, JUSTICE.

         [¶1] Ms. Aubri Vahai was rear-ended twice in the span of fifteen months, first by Mr. Ryan Gertsch and then by Mr. James Frew.[1] Ms. Vahai sued Mr. Gertsch and Mr. Frew, claiming their negligence caused permanent injuries to her cervical and lumbar spine (neck and lower back) which will require future surgery. Eventually the case went to a jury trial. Mr. Gertsch and Mr. Frew admitted negligence. The only issues for the jury were whether negligence caused damage to Ms. Vahai and, if so, the amount. The jury awarded Ms. Vahai a total of $10, 000 in damages and found Mr. Gertsch and Mr. Frew to be 75% and 25% responsible, respectively. The district court entered judgment accordingly. Ms. Vahai appeals from the judgment, but her appeal pertains only to Mr. Gertsch because she settled with Mr. Frew after the jury's verdict.

         [¶2] Ms. Vahai contends the district court erred in allowing Mr. Gertsch's Wyoming Rule of Civil Procedure 35 examiner to testify at trial as an expert because Mr. Gertsch did not comply with the disclosure requirements of Wyoming Rule of Civil Procedure 26(a)(2)(B). We agree, but conclude the admission of the examiner's testimony was harmless. Ms. Vahai also maintains Mr. Gertsch's closing argument was improper. She did not object to the closing argument and it was not plainly erroneous. Finally, she asserts the district court erred in requiring her to disclose her substance abuse treatment records and in allowing their admission at trial because they were privileged, not relevant and unduly prejudicial. The district court did not err with respect to her treatment records. We affirm.

         ISSUES

         [¶3] Ms. Vahai raises five issues which we distill to three:

1. Did the district court err in allowing Mr. Gertsch's Rule 35 examiner to testify as an expert at trial despite Mr. Gertsch's failure to comply with Rule 26(a)(2)(B)?
2. Did Mr. Gertsch plainly err by personally attacking Ms. Vahai, her counsel, her mother, and one of her experts during closing argument?
3. Did the district court err in requiring Ms. Vahai to disclose her substance abuse treatment records and in allowing them to be admitted at trial?

         FACTS

         [¶4] We provide a brief summary of the facts here. Other relevant facts will be set forth in the discussion of the issues.

         The November 2011 Accident

         [¶5] On November 29, 2011, Ms. Vahai, then 20 years old, was driving a 1992 Ford Escort west on Lincolnway in Cheyenne, Wyoming. She stopped to make a left-hand turn. While she was waiting for oncoming traffic to clear, Mr. Gertsch, driving a 2005 Dodge Ram pick-up truck with an attached empty trailer, hit the back of her vehicle, pushing it forward about six feet. Ms. Vahai declined to go to the hospital immediately after the accident but did report to the ER later that evening. CT scans of her head and neck were normal. She was diagnosed with whiplash and a myofascial cervical strain, given pain medication and a muscle relaxer, and told to follow up with her private physician within 2-3 days. She did not follow-up and, in fact, did not seek further treatment until three months later. In the meantime, she graduated from beauty school and began working as a cosmetologist at Great Clips.

         [¶6] In March 2012, Ms. Vahai saw Dr. Vincent Ross, a physician at Smart Sports, who diagnosed her with cervical, thoracic and lumbar sprains and muscle spasms. He prescribed 8-16 sessions of physical therapy, but Ms. Vahai completed only four. During two of those sessions, she reported no pain prior to or after treatment. On May 2, 2012, she was discharged from physical therapy because she had met her goals; those goals included eliminating her pain.

         [¶7] About a month and a half later, on June 21, 2012, she began treatment with Dr. Michael Thompson, a chiropractor. He took an X-ray of her cervical spine and diagnosed her with kyphosis (a reversal of the natural C-shaped curve of the cervical spine), [2] a cervical strain/sprain, and dysfunction of the cervical and thoracic spine (neck and mid-back). Over the course of twenty-four visits, he performed various adjustments to her neck and mid-back, which improved her pain symptoms. Dr. Thompson planned to take additional X-rays and perform further treatment, but Ms. Vahai did not return to his office after August 31, 2012.

         [¶8] On September 13, 2012, Ms. Vahai saw Dr. Judson Cook, a neurosurgeon, who diagnosed her with a cervical sprain. Dr. Cook informed her she had reached maximum medical improvement but told her to return to his office if her symptoms worsened or persisted. Ms. Vahai did not return.

         The March 2013 Accident

         [¶9] On March 1, 2013, Ms. Vahai was driving a 2011 Suzuki Grand Vitara on Dell Range Boulevard in Cheyenne. Mr. Frew was driving a 1999 Ford Ranger pick-up truck directly behind her. Ms. Vahai stopped when traffic in front of her stopped. Mr. Frew did not stop and rear-ended Ms. Vahai's vehicle. The collision caused Ms. Vahai's vehicle to hit the pick-up truck stopped in front of her. Ms. Vahai reported to the ER after the accident. CT scans of her cervical and lumbar spine were normal. She was diagnosed with whiplash. By the time of the second accident, Ms. Vahai had left Great Clips and was working 30-35 hours per week as a cosmetologist at Super Cuts. About two weeks after the second accident, she reduced her hours to 20-25 hours per week.

         [¶10] From March 29 to May 22, 2013, Ms. Vahai received chiropractic treatment from Dr. Ryan Walton. She did not receive further treatment for her neck or back until October 21, 2014 (seventeen months later), when she saw a physical therapist in Fort Collins, Colorado.

         [¶11] On December 9, 2014, Ms. Vahai saw Dr. Timothy Wirt, a neurosurgeon, who ordered an MRI of her cervical spine. The radiologist reviewing the MRI reported minimal disk bulges at C-4/C-5 and C-5/C-6. Dr. Wirt disagreed; he interpreted the MRI as revealing her to have drier than normal discs in her neck, a congenital condition which was not a source of pain and did not require surgery. Ten days later, Ms. Vahai began seeing neurosurgeons Dr. Fernando Techy and Dr. Kenneth Pettine. Dr. Techy ordered an MRI of Ms. Vahai's lumbar spine, which revealed a 4.5 mm central disc protrusion at the L-5/S-1 joint. Over the course of the next year, Dr. Techy or Dr. Pettine ordered that Ms. Vahai receive injections in her neck and lower back. The injections provided temporary relief.

         [¶12] In July 2016, Ms. Vahai returned to Dr. Ross at Smart Sports, who again referred her to physical therapy. She was prescribed 8-12 sessions, but completed only four. In November 2016, Dr. Ross referred Ms. Vahai to Dr. Steven Beer, a neurosurgeon, who examined her on January 9, 2017. Dr. Beer ordered new MRIs of her cervical and lumbar spine. He interpreted the MRIs to show kyphosis, disc herniation at C-4 through C-7, and a 4.5 mm disc herniation with an annular tear (a tear in the disc) at L-5/S-1. He ordered injections to the affected areas. The injections provided Ms. Vahai pain relief, which confirmed Dr. Beer's diagnosis.

         [¶13] At her last appointment on August 14, 2017, Dr. Beer informed Ms. Vahai of her treatment options-have surgery to fuse the afflicted joints in her cervical and lumbar spine or undergo a procedure called facet rhizotomy to temporarily numb the pain but which is effective only half of the time. Ms. Vahai indicated she wanted to delay having surgery until after the trial in this matter (which was then scheduled for the following week) but did want to proceed with the facet rhizotomy procedure. Several weeks later, the trial was continued to the end of February 2018. Ms. Vahai had not had surgery or the facet rhizotomy procedure by the time of trial.

         The Lawsuit and Trial

         [¶14] Ms. Vahai filed a complaint against Mr. Gertsch and Mr. Frew claiming she sustained permanent injuries to her neck and back as a result of their negligence. She sought damages for bodily injury, pain and suffering, loss of enjoyment of life, [3] loss of earnings and earning capacity, and future medical care. She did not seek property damages or past medical expenses.

         [¶15] At trial, Ms. Vahai presented evidence she did not suffer from neck or back pain prior to the November 2011 accident and her pain was exacerbated after the March 2013 accident. Dr. Thompson testified Ms. Vahai's kyphosis was indicative of her having experienced a severe trauma like whiplash. Dr. Beer testified to his interpretation of Ms. Vahai's injuries and opined she required two surgeries, one to fuse the afflicted joints in her neck (C-4 through C-7) and another to fuse the afflicted joint in her lower back (L-5/S-1). He also testified her injuries were caused by the accidents but could not opine as to which injuries were caused by which accident, other than that he believed the first accident to be more responsible for her injuries than the second. Ms. Vahai testified that due to her young age, she had decided to wait 15 years to have the surgeries, which Dr. Beer opined was appropriate. Ms. Sherry Young, Ms. Vahai's functional capacity expert, testified Ms. Vahai's injuries limited her to full-time sedentary work. Because cosmetology was classified as light-duty work, Ms. Young opined Ms. Vahai could only work part-time as a cosmetologist and it was appropriate for her to have reduced her hours after the second accident.

         [¶16] Ms. Liz Kattman, a rehabilitation counselor, testified to the life care plan she created for Ms. Vahai based on the opinions of Dr. Beer and Ms. Young. The plan included the costs of two spinal fusion surgeries, presurgical care including office visits, spinal injections and pain medications, and post-surgical care including X-rays, physical therapy and household assistance. According to Ms. Vahai's expert economist, the cost of that life care plan, in present dollars, was $863, 900. The economist also testified Ms. Vahai's loss of earnings as a result of having to work part-time as a cosmetologist until her surgeries (15 years) was $298, 000, or $137, 200 if she was able to secure full-time sedentary work.

         [¶17] While there was no explicit testimony as to the amount of damages for Ms. Vahai's pain and suffering and loss of enjoyment of life, her counsel suggested during closing argument that $300, 000 was appropriate given Ms. Vahai's inability to engage in activities she once enjoyed (sports and dancing) without pain. He also asked the jury to consider that Ms. Vahai will have to live with pain until she has surgery and, even after surgery, will have to live with a fused spine. As for apportionment of damages between the two accidents, counsel argued Mr. Gertsch was 80-85% responsible for Ms. Vahai's injuries and Mr. Frew 15-20% responsible. This argument was based on Dr. Beer's testimony, as well as the opinion of Mr. Frew's Rule 35 examiner, Dr. Greg Reichhardt, who opined Mr. Gertsch was 75% at fault.

         [¶18] Mr. Gertsch and Mr. Frew admitted negligence but presented expert testimony that the accidents did not cause Ms. Vahai any permanent injury. Further, their experts indicated that even if the accidents caused the spine issues Ms. Vahai claimed, surgery was not required because those injuries could be treated with stem cell therapy costing approximately $7, 000. They also provided expert testimony that Ms. Vahai had no functional limitations preventing her from working full-time as a cosmetologist. Mr. Gertsch and Mr. Frew emphasized Ms. Vahai's gaps in medical treatment, her failure to complete the treatment prescribed, the speculative nature of her damages given that she had not yet had surgery at the time of trial, the fact that she smoked and the negative impact smoking has on healing and the success of fusion surgery, and her failure to mitigate damages, including her failure to undergo stem cell therapy and to pursue a more sedentary full-time job working with troubled youth which could have earned her $3, 000 a month. They also introduced evidence attempting to reduce the amount of damages attributed to them, including that Ms. Vahai had been involved in a third accident in a Walgreens parking lot and evidence she abused alcohol and cocaine and suffered from depression, both of which could negatively affect her ability to enjoy life and earn a living.

         [¶19] The jury found the first accident (Mr. Gertsch) caused Ms. Vahai $7, 500 in damages and the second accident (Mr. Frew) caused $2, 500 in damages.

         DISCUSSION

         1. Did the district court err in allowing Mr. Gertsch's Rule 35 examiner to testify as an expert at trial despite Mr. Gertsch's failure to comply with Rule 26(a)(2)(B)?

         [¶20] The district court created a scheduling order which established a deadline for the designation of expert witnesses under Rule 26 and a separate deadline for Rule 35 examinations and reports. In his Rule 26 designation, Mr. Gertsch disclosed one expert and reserved the right to have Ms. Vahai examined by Dr. J. Tashof Bernton under Rule 35. Ms. Vahai agreed to be examined by Dr. Bernton. His examination, which occurred on February 29, 2016, included not only a physical exam but also psychological testing.

         [¶21] Dr. Bernton prepared a written report of his examination. He opined Ms. Vahai suffered a myofascial cervical strain from the first accident, which required only emergency room treatment but, in any case, did not require treatment beyond September 2012, and certainly not surgery. His psychological testing revealed Ms. Vahai to have "a heightened report of negative information and elevated functional complaints, as well as depression." As a result, he opined "psychological factors probably play a fairly big role in [her] pain complaints and presentations and functional limitations."

         [¶22] Mr. Gertsch disclosed Dr. Bernton's report and designated him as a testifying witness. These actions prompted various motions from Ms. Vahai either to prohibit Dr. Bernton from testifying based on Mr. Gertsch's failure to comply with the disclosure requirements of Rule 26(a)(2)(B), or to require Mr. Gertsch to comply with the rule. She also complained of Dr. Bernton's psychological testing because he was not a psychologist, she was not seeking psychological damages, and she had not been provided notice that she would be subjected to such testing. Mr. Gertsch opposed Ms. Vahai's motions, arguing he was not required to comply with Rule 26(a)(2)(B) because Dr. Bernton was a Rule 35 examiner, not a Rule 26(a)(2) expert. He also maintained the psychological testing was appropriate because Ms. Vahai placed no limitations on the examination and her psychological condition was relevant as it could affect her physical complaints. The district court denied Ms. Vahai's motions "despite some deficiencies in [Mr. Gertsch's] sharing of materials." It did, however, allow Ms. Vahai to designate Dr. Jerry Post, Ph.D., as an expert to rebut Dr. Bernton's testimony.

         [¶23] Dr. Bernton's trial testimony was taken via video deposition. During that deposition, Mr. Gertsch's direct examination remained mostly within the scope of Dr. Bernton's report. Mr. Frew, however, cross-examined Dr. Bernton on matters outside the scope of direct examination and his report. Those matters included Dr. Bernton's testimony that (1) stem cell therapy is an effective treatment which is starting to be covered by more insurance companies; (2) Ms. Vahai did not have any work restrictions; (3) many doctors will not perform fusion surgery on patients who smoke because of the greater risk of the fusion failing; and (4) Ms. Vahai had not informed Dr. Bernton of a potential job opportunity working with troubled youth which would not require her to stand and use her arms like she does as a cosmetologist. Ms. Vahai moved to strike these matters, but the district court denied the motion and Dr. Bernton's video deposition was played for the jury at trial.

         [¶24] In this appeal, Ms. Vahai contends the district court erred in allowing Dr. Bernton to testify as an expert because Mr. Gertsch failed to comply with Rule 26(a)(2)(B). She also claims Dr. Bernton should not have been allowed to testify regarding the results of the psychological testing because he failed to provide all of the results or the underlying data of that testing as required by Rules 26(a)(2)(B)(ii) and 35(b). She further argues the district court should have stricken Dr. Bernton's cross-examination testimony which went beyond the scope of direct examination and his report. Because we agree with Ms. Vahai that the district court erred in allowing Dr. Bernton to testify at trial despite Mr. Gertsch's non-compliance with Rule 26(a)(2)(B), we need not address her other complaints about his testimony-he should not have testified at all. Although we find error in permitting Dr. Bernton to testify, we conclude all of his testimony, including his psychological opinions and matters raised on cross examination, was harmless.

         Interplay Between Rule 26(a)(2)(B) and Rule 35

         [¶25] We normally review a district court's discovery orders and evidentiary rulings for an abuse of discretion. Rammell v. Mountainaire Animal Clinic, P.C., 2019 WY 53, ¶ 29, 442 P.3d 41, 49 (Wyo. 2019) ("District courts have discretion in determining the admissibility of evidence, controlling discovery, and selecting the proper means of sanctioning a discovery violation.") (quotations omitted); Matter of GAC, 2017 WY 65, ¶ 32, 396 P.3d 411, 419 (Wyo. 2017) ("A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal." (quotations omitted)). In this case, however, the issue requires an interpretation of our rules of procedure, which is a question of law reviewed de novo. Busch v. Horton Automatics, Inc., 2008 WY 140, ¶13, 196 P.3d 787, 790 (Wyo. 2008) (citing Bixler v. Oro Management, LLC, 2006 WY 140, ¶ 5, 145 P.3d 1260, 1262 (Wyo. 2006)).

         [¶26] We have yet to address whether a Rule 35 examiner who provides expert testimony at trial is required to comply with the disclosure requirements of Rule 26(a)(2)(B). Surprisingly, there is a dearth of case law addressing this particular issue. Courts which have addressed the relationship between Rule 26 and Rule 35 have done so in the context of whether a Rule 35 examination and report are subject to the deadline applicable to Rule 26(a)(2) expert disclosures. The results are mixed. Some courts have concluded that a Rule 35 examination may be subject to the Rule 26(a)(2) expert disclosure deadline if a party intends to call the examiner as a witness at trial. See, e.g., Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 418-19 (S.D. Tex. 2012); Shumaker v. West, 196 F.R.D. 454, 456-457 (S.D. W.Va. 2000). Other courts, however, have concluded Rule 35 examinations and reports are not subject to the Rule 26(a)(2) deadline. See, e.g., Bush v. Pioneer Human Servs., No. C09-0518, RSM, 2010 WL 324432, at *5 (W.D. Wash. 2010) (unpublished); Waggoner v. Ohio Cent. R.R., Inc., 242 F.R.D. 413, 414 (S.D. Ohio 2007). While the former cases provide some support for the proposition that a party seeking to offer a Rule 35 examiner as a testifying expert must comply with Rule 26(a)(2)(B), we need not rely on these cases because the same result ensues from the plain language of our rules.

         [¶27] In interpreting our rules of procedure, "we apply the same rules used in statutory construction." Busch, ¶ 13, 196 P.3d at 790 (citing Cotton v. McCulloh, 2005 WY 159, ¶14, 125 P.3d 252, 257 (Wyo. 2005)). Our rules of statutory construction are well-established:

We first decide whether the statute is clear or ambiguous . . . . A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. A statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations.
If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute.
We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia.
If we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent.

State v. Bannon Energy Corp., 999 P.2d 1306, 1308-09 (Wyo. 2009) (citations and quotations omitted).

         [¶28] Rule 35 states in relevant part:[4]

(a)Order for an Examination. -
(1) In General. - The court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. . . . .
(b) Examiner's Report. -
(1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against ...

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