{ "id": 298606, "name": "Charles DEPEW v. James L. JACKSON", "name_abbreviation": "Depew v. Jackson", "decision_date": "1997-12-11", "docket_number": "97-553", "first_page": "733", "last_page": "741", "citations": [ { "type": "official", "cite": "330 Ark. 733" }, { "type": "parallel", "cite": "957 S.W.2d 177" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "320 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451141 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0051-01" ] }, { "cite": "324 Ark. 226", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159301 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0226-01" ] }, { "cite": "307 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902398 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0158-01" ] }, { "cite": "300 Ark. 245", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886899 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0245-01" ] }, { "cite": "309 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906045 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0080-01" ] }, { "cite": "323 Ark. 161", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445674 ], "weight": 3, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0161-01" ] }, { "cite": "323 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445748 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0016-01" ] }, { "cite": "324 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158760 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0120-01" ] }, { "cite": "322 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447559 ], "weight": 4, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0394-01" ] }, { "cite": "328 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50393 ], "weight": 4, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0153-01" ] } ], "analysis": { "cardinality": 716, "char_count": 14353, "ocr_confidence": 0.703, "pagerank": { "raw": 3.2648389063807815e-07, "percentile": 0.8697397029710998 }, "sha256": "04efcbbad7651ff81a74d8b03732fa10fc9699e2a6304c5941264603c67a1e5c", "simhash": "1:c12e8038f2acb0f0", "word_count": 2380 }, "last_updated": "2023-07-14T16:33:54.141445+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charles DEPEW v. James L. JACKSON" ], "opinions": [ { "text": "Annabelle Clinton Imber, Justice.\nThe appellant obtained a $1,600 jury verdict on a negligence claim brought against the appellee. The appellant moved for a new trial and argued, among other things, that the verdict was clearly against the preponderance of the evidence and that the jury erred in assessing the amount of the recovery. The motion was deemed denied, and the present appeal ensues. We find no error and affirm.\nOn August 1, 1995, Charles Depew was a passenger in a vehicle that was struck from behind in an automobile accident. Depew filed a complaint against James Jackson, alleging that the accident and his resulting injuries were due to Jackson\u2019s negligence. Jackson admitted liability, and the case was submitted to the jury on the issue of damages only. At trial, Depew testified that the collision snapped or popped his neck back. A few days later, he developed increasing pain and soreness in his neck area. X-rays taken after a visit to the emergency room revealed a possible fracture in Depew\u2019s spine, and Depew was referred to a neurosurgeon, Dr. Anthony Russell.\nDr. Russell examined Depew and recommended surgery. According to Dr. Russell, Depew had a bone that was not properly connected to another bone in his neck \u2014 this resulted in the possibility that the floating bone might be driven into his brain stem, rendering Depew a quadriplegic. This condition, known as an os odontoideum, was either a congenital abnormality where the bone fails to fuse properly, or a fracture that had occurred several years earlier and had failed to fuse and heal properly. Dr. Russell stated that it most likely \u201cformed way back in the embryonic stage.\u201d Cables were used in the surgery to fuse the floating bone with another piece of bone. As a natural consequence of this procedure, Depew lost range of motion in his neck, including a degree of stiffness. Constant pain was also consistent with the surgery, in addition to headaches. Depew later went to another physician to receive treatment for his pain, which included injections and other medications.\nDepew\u2019s medical bills amounted to over $15,000. Depew\u2019s expert witness projected total damages in the amount of $345,794, which figure included past and future medical expenses, loss of household services and pain and suffering.\nThe jury returned a verdict for Depew in the amount of $1,600. Depew filed a motion for new trial, which was deemed denied. While Depew articulates a number of points on appeal, his argument consists of two primary components \u2014 that the verdict was clearly against the preponderance of the evidence, and that the jury erred in the assessment of the recovery.\n1. Ark. R. Civ. P. 59(a)(6).\nWhen a motion for new trial is made on the ground that the verdict was clearly against the preponderance of the evidence and is denied by the trial court, see Ark. R. Civ. P. 59(a)(6), this court will affirm if there is substantial evidence to support the verdict. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Esry, supra. The evidence must force the mind to pass beyond suspicion or conjecture. Esry, supra. In examining whether substantial evidence exists, the verdict is given \u201cthe benefit of all reasonable inferences permissible in accordance with the proof.\u201d Patterson, supra.\nAs controlling authority, Depew relies almost exclusively on Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), a case where the trial court granted the plaintiffs motion for new trial following a defendant\u2019s verdict in a negligence case. Given that Young involved the appellate review of the grant of a motion for new trial, it provides us with littie guidance in the present case. Moreover, in Young there was no dispute that the plaintiff s injuries were sustained as a result of the accident. By contrast, the issue of proximate causation is the crux of the present case.\nIn attempting to show that the verdict was not supported by substantial evidence, Depew quotes extensively from Dr. Russell\u2019s testimony concerning the stability of Depew\u2019s spine both before and after the accident:\nQ: [Y]ou can go on and have a fracture and still remain stable?\nA: Yes.\n* * *\nQ: Then all at once you have some kind of insult or something happens to your body and it affects your stability at that point, then you start having trouble?\nA: Yes.\nWhen asked his opinion of Depew\u2019s stability up until the time of the accident, Dr. Russell answered \u201cstable with the potential for instability.\u201d When asked about Depew\u2019s stability given that he had no pain or dysfunction in the neck region up until the time of the accident, Dr. Russell testified \u201c[i]t would tell you that most likely he was stable during that time although you could still be unstable.\u201d Dr. Russell added that Depew\u2019s pre-accident level of functioning did \u201cnot necessarily\u201d indicate that he was stable, although in \u201calmost all cases\u201d the patient would have known about it sooner if he had instability. Ultimately, Dr. Russell opined to a reasonable degree of medical certainty that Depew was \u201c[n]ot grossly unstable\u201d before the accident. The fact that Depew had no pre-accident pain \u201ccould be an indicator that he had become unstable at the time of the collision.\u201d When asked whether an \u201c[os odontoideum] can remain stable all your life until you\u2019re sixty-two years old,\u201d Dr. Russell replied \u201cTrue.\u201d Plaintiff\u2019s counsel then asked, \u201cAnd you\u2019ll never know you had it?\u201d:\nA: That\u2019s true because you\u2019ve still got all your ligaments in there holding it to this bone like it\u2019s supposed to be there.\nQ: That keeps it stable?\nA: That keeps it stable, yes.\nIn operating on Depew, Dr. Russell wanted to \u201crestore stability to [Depew\u2019s] spine.\u201d In a letter written to Depew\u2019s attorney, Dr. Russell wrote that Depew\u2019s \u201cparaspinous muscle spasm\u201d was a sequelae of his recent auto accident. In other deposition testimony Dr. Russell stated that it was his opinion within a reasonable degree of medical certainty that \u201cthe automobile accident aggravated the preexisting condition leading to [Depew\u2019s] ultimate surgical procedure.\u201d Dr. Russell answered in the affirmative when asked whether it was a reasonable assumption that Depew\u2019s neck pain was caused by the collision, considering that he had no neck pain before but had persistent neck pain afterward.\nThe above-recited evidence does support Depew\u2019s theory that the collision rendered his spine unstable, necessitating stabilizing surgery. However, other portions of Dr. Russell\u2019s testimony are equivocal on the point, and tend to support Jackson\u2019s position that the collision had nothing to do with aggravating or worsening Depew\u2019s condition \u2014 the accident and resulting x-rays simply led to the discovery of the defect.\nAs quoted above, Dr. Russell testified that the os odontoideum condition was most likely congenital. Dr. Russell explained that \u201c[t]he fracture was discovered by the emergency room physician at Southwest and then brought to my attention. Certainly, I commented on it, felt like it needed surgery.\u201d When asked on cross examination whether he recommended surgery \u201c[b]ecause of that condition where that is not fused,\u201d and \u201cbecause you thought that condition alone posed some threat to Mr. Depew,\u201d Dr. Russell answered in the affirmative. Dr. Russell opined that the os odontoideum \u201ccertainly\u201d occurred before the accident, and that the accident did not make the fracture any worse. At one point the following colloquy occurred:\nQ: And this [is] a very similar thing. It showed a condition that was there?\nA: Yes.\nQ: Not caused by the accident?\nA: No.\nQ: Not made worse just shown to you, is that right?\nA: Correct.\nThus, this above-recited evidence shows that Dr. Russell operated to repair a congenital defect that was not caused or even worsened by the accident. The accident had the incidental result of bringing Depew into the hospital for x-rays, which allowed the os odontoideum condition to be discovered. In reading from deposition testimony at trial, Dr. Russell was asked \u201cDo you still stick with your statement that. . . [Depew] had a C-l, 2 instability aggravated by a motor vehicle accident?\u201d Dr. Russell replied:\nIn the terms you\u2019re asking for in a legal sense, I guess what I\u2019ll have to say is no, you\u2019re wanting me to say that the accident. . . When I said aggravated what I meant to say was, brought to our attention, that\u2019s what I should have said. The accident brought this problem to our attention.\nDr. Russell could not say that it was \u201ca hundred percent certain\u201d that the accident aggravated a preexisting problem. In being asked whether he had changed his mind as to whether the accident aggravated a preexisting injury, Dr. Russell answered:\n[Reading from deposition testimony.] \u201cI haven\u2019t changed my mind. I maintain the point that he had a preexisting condition, that due to the automobile accident, it was brought to our attention. And it ultimately led to his surgery, yes. I mean. . . I\u2019ll never, ever dictate the word \u2018aggravated\u2019 in anything I do again because it seems to be a point of contention here. I don\u2019t know. It\u2019s suddenly changed meaning for me.\u201d And I went on to state that due to the surgery, he will have permanent impairment, decreased range of motion, secondary to the operative procedure.\nDepew makes much of the following statement contained in a letter written by Dr. Russell:\nIn my opinion it is more likely than not that had Charles Depew not been involved in the vehicle collision of August 1, 1995, and had not received any other injury to his neck then he probably would have lived the balance of his life in the same condition that he was in before the collision.\nHowever, this statement does not necessarily establish that the collision proximately caused or aggravated the os odontoideum condition. Dr. Russell testified that a person with an os odontoideum condition could live \u201cuntil you\u2019re sixty-two\u201d and not even know there was a problem. As a result of the collision, the os odontoideum condition was discovered and Dr. Russell recommended surgery to prevent the possibility, however remote, of the floating bone compressing the spinal chord and causing paralysis. As explained by Dr. Russell, \u201cThe surgery is not for those ninety-nine who don\u2019t get injured it\u2019s for that one that trips and become[s] Christopher Reeve.\u201d\nIn summary, Dr. Russell\u2019s testimony cuts both ways. While portions of it show that Depew\u2019s spine was stable before the accident and unstable afterward, other portions establish that Depew had a congenital defect that was not caused or worsened by the collision. The incidental x-rays necessitated by the collision simply allowed the defect to be discovered and treated. Thus, the loss of mobility and pain due to the surgery, and the accompanying decrease in Depew\u2019s ability to perform routine activities, were not proximately caused by Jackson\u2019s negligence. Given the character of this testimony, the jury did not have to resort to conjecture or speculation to arrive at its verdict. This is especially true considering that we are to give the verdict \u201cthe benefit of ail reasonable inferences permissible in accordance with the proof.\u201d See Patterson, supra. Because substantial evidence supports the verdict, we cannot say that the trial court erred in denying Depew\u2019s motion for new trial on the ground that the verdict was clearly against the preponderance of the evidence.\n2. Ark. R. Civ. P. 59(a)(5).\nGenerally, where the primary issue on appeal is the alleged inadequacy of the jury\u2019s award, see Ark. R. Civ. P. 59(a)(5), this court will affirm the denial of a motion for new trial absent a clear and manifest abuse of discretion. See Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); National Bank of Commerce v. McNeill Trucking Co., Inc., 309 Ark. 80, 828 S.W.2d 584 (1992); Smith v. Petit, 300 Ark. 245, 778 S.W.2d 616 (1989). \u201cAn important issue is whether a fair-minded jury could have reasonably fixed the award at the challenged amount.\u201d Luedemann, supra (citing Smith, supra).\nIn the present case, a fair-minded jury could have reasonably fixed the award at $1,600. Obviously, the jury accepted Jackson\u2019s theory of the case, and declined to award Depew damages for any of his surgery-related medical bills. As more fully discussed in the prior point, there was substantial evidence from which the jury could have decided that the surgery, and therefore the resulting pain and loss of mobility, were due to a preexisting condition and not proximately caused by the automobile accident. Thus, a fair-minded jury could have reasonably decided to exclude the surgery-related medical bills from its award. The record reflects that most of the $15,000 in medical bills incurred by Depew related to the surgery. The mere fact that a plaintiff has incurred medical expenses and the defendant has admitted liability does not automatically translate into a damage award equivalent to those expenses. See Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991). Based on the foregoing, we cannot say that the trial court clearly and manifestly abused its discretion in denying Depew\u2019s motion for new trial on the ground that the jury erred in the assessment of the amount of recovery.\nAffirmed.\nDepew also quotes from Young to make a number of other points regarding appellate review of the grant of a new trial that have little bearing in the present case. Here we are not concerned with the grant of a new trial. The same can be said for Depew\u2019s assertion that when a new trial has been granted, it is \u201cmore difficult\u201d to show an abuse of discretion on appellate review because the opposing party will have another opportunity to prevail. See, e.g., Diamond State Towing Co., Inc. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996); Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995).", "type": "majority", "author": "Annabelle Clinton Imber, Justice." } ], "attorneys": [ "Bernard Whetstone, P.A., by: Bernard Whetstone and Kevin Odum, for appellant.", "Anderson & Kilpatrick, L.L.P., by: Joseph E. Kilpatrick, Jr., and Penny B. Wilbourn, for appellee." ], "corrections": "", "head_matter": "Charles DEPEW v. James L. JACKSON\n97-553\n957 S.W.2d 177\nSupreme Court of Arkansas\nOpinion delivered December 11, 1997\nBernard Whetstone, P.A., by: Bernard Whetstone and Kevin Odum, for appellant.\nAnderson & Kilpatrick, L.L.P., by: Joseph E. Kilpatrick, Jr., and Penny B. Wilbourn, for appellee." }, "file_name": "0733-01", "first_page_order": 771, "last_page_order": 779 }