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COURT OF
APPEALS DECISION DATED AND
RELEASED February
22, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3396
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
PAMELA
GISINER,
Plaintiff-Appellant,
v.
TODD
C. BOLLENBACH,
CHARLES
J. BOLLENBACH,
BEVERLY
BOLLENBACH,
AND
WEST BEND MUTUAL INSURANCE COMPANY,
Defendants-Respondents,
DANE
COUNTY HUMAN SERVICES,
AND
U-CARE HMO, INC.,
Subrogated Defendants.
APPEAL
from a judgment of the circuit court for Dane County: ANGELA B. BARTELL, Judge.
Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Pamela Gisiner appeals from a
judgment awarding her $2,942.73 in a personal injury action she brought against
Todd Bollenbach, his parents and their insurer, West Bend Mutual Insurance
Company.[1] Gisiner raises three issues: (1) whether the trial court erroneously
exercised its discretion in admitting evidence of her use of a controlled
substance and involvement in an abusive relationship; (2) whether the
trial court erred in denying her motion for additur or, in the alternative, a
new trial because the jury awarded inadequate damages; and (3) whether the
trial court erred in permitting defense counsel to refer to comments made by
members of the jury panel during voir dire in closing arguments. We resolve each issue against Gisiner. Accordingly, we affirm.
BACKGROUND
Pamela
Gisiner sustained injuries in a car accident on June 16, 1990, when the vehicle
she was riding in was struck from the rear by a vehicle driven by Todd
Bollenbach. The vehicle driven by
Bollenbach was owned by his parents.
Gisiner sued Bollenbach, his parents and West Bend Mutual Insurance,
alleging that she sustained injuries in the accident and suffers from neck
pain, upper and lower back pain, numbness of the hand and arm, and debilitating
migraine headaches. Gisiner alleged
that her condition was not greatly improved by medical treatment and made it
difficult for her to hold a full-time job.
The Bollenbachs conceded liability and the case went to trial on the
issue of damages.
Prior
to trial, Gisiner brought motions in limine to exclude evidence of
certain events documented in her medical records and discussed in a written
report of a medical evaluation conducted by Dr. Marc Novom, a neurologist
retained by the Bollenbachs.
Specifically, Gisiner sought to prevent Dr. Novom from testifying
about her use of cocaine in April 1987, an abortion that was performed in April
1989, and a physically and emotionally abusive relationship she was involved in
with her former boyfriend both before and after the accident. Gisiner contended that the admission of such
evidence would have an inflammatory effect on the jury, that the evidence was
irrelevant, and that its probative value would be substantially outweighed by
the danger of unfair prejudice and confusion.
The
Bollenbachs opposed the motions, representing that these events were relevant
because Dr. Novom would testify at trial to a reasonable degree of medical
probability that they were a cause of Gisiner's symptoms.
The
trial court granted the motion in limine with respect to the
abortion. However, with assurances from
the Bollenbachs' attorney that Dr. Novom would connect the cocaine use and
involvement in an abusive relationship with the symptoms Gisiner was complaining
of, the court denied the motions in limine with respect to the cocaine
use and involvement in an abusive relationship. In an effort to limit the prejudicial effect of the testimony
regarding Gisiner's cocaine use, the trial court required that "cocaine"
be referred to during the trial as a "controlled substance."
At
trial, Dr. Novom testified that he had performed a neurological examination of
Gisiner and that such examination "was simply and unequivocally
normal." He opined that Gisiner
had sustained a temporary self-limited aggravating soft-tissue injury which had
resolved itself within five or six months of the accident. Dr. Novom referred to Gisiner's injury as a
cervical flexion extension injury. He
noted that Gisiner's medical records established that she had experienced low
back pain prior to the accident, as well as vascular headaches, and that she
had a significant history of psychoemotional upset before and after the
accident. He stated that Gisiner's
complaint of arm and hand numbness "defies anatomic
understanding." He also stated
that Gisiner's medical treatment was reasonable and acceptable only through
January 1991, and that any treatment rendered thereafter would have no direct
relation to the accident.
Contrary
to defense counsel's representations at the hearing on the motions in limine,
Dr. Novom did not testify that Gisiner's use of a controlled substance and her
involvement in an abusive relationship were a cause of her symptoms. Rather, Dr. Novom testified that Gisiner's
past controlled substance use and involvement in an abusive relationship were
indicative of a dependent personality.
Dr. Novom stated in various parts of his testimony as follows:
[T]hose
individuals who have [a] history of dependent personality, being in positions
abused, using substances ill advisedly, those are the kind of individuals that
we find not infrequently may have chronic pain states and those are the kind of
people who are largely dependent on medications chronically to reduce their
perception of pain, and it shouldn't surprise you that such individuals
frequently remain even in long standing dependent relationships with their care
takers.
....
[I]t
helps you understand how the person engages in life's activities and how they
respond to the little bumps and irregularities in life.... This is an
emotionally immature dependent individual and regrettably she has been in some
very troublesome past relationships.
That's what tells me that she also is capable of forming again future
dependent relationships, and she does.
....
So
past problems with dependencies, abusive relationships, spill over into the way
Ms. Gisiner interacts socially and also it reflects in the ways she exhibits
her chronic pain behaviors and in her needs to reduce that.
....
It helps us explain better what she is all about and why
she continues to report pain.
Following
Dr. Novom's testimony, Gisiner asked for a mistrial and, in the alternative,
sought to strike the testimony and requested a curative instruction.[2] Gisiner argued that Dr. Novom had not testified
that her use of a controlled substance and involvement in an abusive
relationship were a cause of her symptoms, as defense counsel had represented
he would, and that this evidence was offered only to show that Gisiner had a
bad character.
The
trial court denied the motion to strike and the motion for a mistrial, stating
that the evidence was not offered as proof of Gisiner's bad character, but as
proof of motive under § 904.04(2), Stats. The trial court explained that Dr. Novom had
reviewed Gisiner's medical records and relied on the evidence of the abusive
relationship and use of a controlled substance to support his opinion, to a
reasonable degree of medical probability, that Gisiner had a dependent
personality. This dependent personality
caused Gisiner to perceive pain in a heightened manner and provided her with a
motive to seek unnecessary medical treatment for attention and support. The trial court recognized the potential for
prejudice, but concluded that the probative value of the evidence was not
outweighed by its prejudicial effect because the court had previously required
that all references to "cocaine" during the trial be replaced with
the term "controlled substance," and because being the victim of an
abusive relationship is not in and of itself prejudicial.
The
jury returned a special verdict awarding Gisiner $2,500 for past medical
expenses and $2,500 for past and future pain, suffering and disability. The jury did not award any damages for
future medical expenses, past lost earnings or future loss of earning
capacity. Gisiner's motions after
verdict were denied and the trial court awarded judgment on the verdict for
$2,942.73 (the jury award of $5,000 less the defendants' taxable costs).
OTHER ACTS
EVIDENCE
We
first address Gisiner's argument that the trial court erred in admitting
evidence of her prior controlled substance use and involvement in an abusive
relationship. The admission of evidence
is a matter within the trial court's discretion. State v. Clark, 179 Wis.2d 484, 490, 507 N.W.2d
172, 174 (Ct. App. 1993). We will not
disturb an evidentiary ruling where the trial court has exercised its
discretion in accordance with accepted legal standards and the facts of record. Id.
In
deciding whether to admit other acts evidence, the trial court must apply a
two-part test. State v. Kuntz,
160 Wis.2d 722, 746, 467 N.W.2d 531, 540 (1991), habeas corpus denied sub
nom. Kuntz v. McCaughtry, 806 F. Supp. 1373 (E.D. Wis.
1992). The trial court must first
determine whether the evidence is offered for a purpose permissible under
§ 904.04(2), Stats.[3] Id. If the trial court finds that it is, the court must then
determine whether the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice.
Id.; § 904.03, Stats. A question implicit within the two-part test
is whether the other acts evidence is relevant to an issue in the case. State v. Johnson, 184 Wis.2d
324, 337, 516 N.W.2d 463, 466-67 (Ct. App. 1994).
We
conclude the trial court properly determined that Dr. Novom's testimony that
Gisiner has a dependent personality, as demonstrated by her prior use of a
controlled substance and involvement in an abusive relationship, was admissible
to show that Gisiner had a motive to seek treatment beyond that which was
medically necessary and reasonable given the nature of her injuries. Dr. Novom's position was that Gisiner had
sustained a temporary soft-tissue injury in the car accident that was resolved
within approximately six months of the accident, and that Gisiner's medical
treatment was reasonable and necessary only for those six months. Gisiner, in contrast, was seeking damages for
past medical expenses, future medical expenses, loss of wages, lost future
earning capacity, and pain and suffering totaling over $500,000, for symptoms
she claimed were on-going and would affect her ability to live and work in the
future. Dr. Novom's discussion of
Gisiner's dependent personality was offered as an alternative explanation for
Gisiner's continued complaints and course of medical treatment. According to Dr. Novom, persons with
dependent personalities are more prone to perceive pain in a heightened way,
more dependent on medications to reduce their perceptions of pain, and more
likely to establish dependent, long-standing relationships with health care
providers to satisfy their need for attention and support. This testimony would help explain why
Gisiner continues to seek medical treatment for her symptoms when, in Dr.
Novom's view, her soft-tissue injury was resolved within six months of the
accident.
The
trial court also properly weighed the probative value of Dr. Novom's testimony
against the danger of unfair prejudice.
In this context, prejudice refers to the potential harm in a jury
concluding that, because Gisiner used a controlled substance and was involved
in an abusive relationship, she is a bad person with little credibility. While Dr. Novom's testimony was potentially
prejudicial for Gisiner, the trial court took appropriate steps to limit any
unfair prejudice. First, the trial
court ensured that Gisiner's use of cocaine was referred to at trial only as
use of a controlled substance. Second,
the trial court instructed the jury that it was not to consider the evidence of
Gisiner's controlled substance use and involvement in an abusive relationship
as evidence that Gisiner is a bad person or is less worthy of credibility.[4] The delivery of a limiting instruction serves
to eliminate or minimize the risk of unfair prejudice. State v. Parr, 182 Wis.2d 349,
361, 513 N.W.2d 647, 650 (Ct. App. 1994).
Third, the trial court recognized that evidence of being the victim of
an abusive relationship is not, in and of itself, prejudicial. In light of the probative value of Dr.
Novom's testimony and the trial court's efforts to limit prejudice, we conclude
the trial court properly exercised its discretion in admitting the evidence.
INADEQUATE
DAMAGES
Gisiner
argues that the trial court erred in refusing to grant a new trial or change
the jury's verdict answer on the amount of damages because the jury's award of
$5,000 is "shocking" given the testimony regarding her symptoms and
the effect those symptoms have had on her life. We disagree.
The
decision whether to grant additur, or to overturn a jury's verdict and grant a
new trial, is within the trial court's discretion and will not be disturbed
absent an erroneous exercise of discretion.
Martz v. Trecker, 193 Wis.2d 588, 594, 535 N.W.2d 57,
59-60 (Ct. App. 1995). A jury verdict
will be sustained if there is any credible evidence to support it. Fehring v. Republic Ins. Co.,
118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984). This is especially true when the trial court has approved the
jury's verdict. Id.
We
conclude that the trial court did not erroneously exercise its discretion in
denying Gisiner's motion for additur or, in the alternative, a new trial. A review of the record reveals evidence that
the vehicle in which Gisiner was a passenger was not seriously damaged in the
accident, that Gisiner had a pre-existing history of headaches and back pain,
that Gisiner sustained a temporary soft-tissue injury that resolved itself
within six months of the accident, that Gisiner's medical treatment was only
necessary and reasonable for those six months, that Gisiner has a dependent
personality which causes her to perceive pain in a heightened manner and to
seek long-standing relationships with health care professionals, and that, in terms
of occupation, "what she is doing in the past, that is what she can
continue to do." While there was
contrary testimony regarding the cause of Gisiner's symptoms, when Gisiner
reached her healing plateau, what medical treatment was reasonable and necessary
and for how long, and the types of occupational activities she is able to
perform, the jury is the arbiter of witness credibility and decides how much
probative value to assign to the testimony of the various witnesses. See Meurer v. ITT Gen. Controls,
90 Wis.2d 438, 450, 280 N.W.2d 156, 162 (1979). Viewed in the light most favorable to the verdict, see id.,
there is credible evidence in the record to support the jury's award of $5,000.
CLOSING
ARGUMENT
Gisiner
contends the trial court erred in denying her motion for a new trial based on
the following comment made by defense counsel in her closing argument:
And you'll recall
in jury voir dire that the question that we asked to select all of you, there
were people who indicated they had migraine headaches, they had family
members. One woman had a husband and a
daughter and a mother.
Gisiner
argues that defense counsel's comment regarding an answer given by a juror who
was struck during voir dire was "an improper comment on specific facts
brought to the jury's attention during voir dire, not through
evidence." We disagree. Counsel are allowed considerable latitude in
closing arguments, with discretion given to the trial court in determining the
propriety of the argument. State
v. Draize, 88 Wis.2d 445, 454, 276 N.W.2d 784, 789 (1979). While defense counsel did remind the jury
that at least one member of the jury panel had indicated during voir dire that
she or family members suffered from migraines, she did not refer to any
specific statement by any particular juror as evidence. Defense counsel simply made reference to a
matter within the common knowledge of the jury--that certain people suffer from
migraine headaches on a repetitive basis.
Even
if it were error to overrule Gisiner's objection to defense counsel's comment,
Gisiner does not offer a sufficient reason why this error warrants a new
trial. We will not consider undeveloped
arguments. State v. Gulrud,
140 Wis.2d 721, 730, 412 N.W.2d 139, 142-43 (Ct. App. 1987).
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.
No. 94-3396(D)
SUNDBY,
J. (dissenting). The issue
is whether the trial court should have granted plaintiff's motion to strike
defendants' doctor's testimony in which he implied that plaintiff's chronic
pain and medicating therefor was a function of her dependent personality. Because he failed to testify to the required
degree of medical probability that plaintiff's pain and headaches were not
caused by the accident in which she was involved, I conclude that the trial
court should have granted plaintiff's motion.
I therefore dissent.
The
defense theory was that plaintiff's myofacial pain syndrome, mid-back pain and
migraine headaches were not caused by the accident in which plaintiff was
injured but by plaintiff's drug dependency and her involvement in an abusive
relationship. Plaintiff argued that
there was no causal relation between plaintiff's one-time use of cocaine in
1987 and her former relationship with an abusive man, and moved the court in
limine to bar such evidence.
Defense counsel argued that defendant's doctor, Marc Novom, a
neurologist, would tie these facets of plaintiff's life to her present
complaints, especially her migraine headaches.
Counsel
represented to the trial court that:
[Dr.
Novom's] opinion is that the headaches are due to her social condition and the
stress that has resulted from these things.
She is living with other pain.
She has lived with a physically abusive man, and she also has conflict
stress as a result of dependence on drugs....
....
... [H]e will
[express this opinion to a reasonable degree of medical probability]. He feels very strongly about it.... It is a much more logical explanation than
when you hear the evidence about the car accident.... The defense has to be able to show that there [are] other
explanations which have evolved since the date of the accident, and we have
direct medical evidence of those things.
The
trial court reviewed Dr. Novom's report and stated that his report did not make
any connection between plaintiff's cocaine use, abortion, abusive relationship
and her headaches. The court
stated: "I don't want all this
stuff to come in and then have the doctor not make these connections that you
are suggesting ...." Counsel
represented that Dr. Novom's opinion was going to be that these incidents are
"possible or probable causes of the present symptoms ... she is
complaining of." The trial court
granted plaintiff's motion in limine with regard to the abortion but
denied plaintiff's motion with respect to the cocaine use and her abusive
relationship with her boyfriend. The court
stated:
I am relying on the representations of
[counsel]. I have questioned her specifically about it,
and it would be beyond a question of disappointment if that evidence did not
appear in the trial in the face of this argument. This evidence coming in depends on an expert making a connection
between the medical history and cause of the current complaints. The jury cannot be permitted to speculate
about this. They cannot be permitted to
indulge in the negative character type of aspect about this. It is only here, if it is here at all,
because of the connection to her current complaints.
....
... It would not
be fair to the defense to grant these motions in limine when they
represent they have an expert witness to connect them and to opine that these
are sources or possible sources of today's complaints. The jury needs to evaluate that. The potential for prejudice can be handled
and will be handled, if counsel wishes and will assist me in instructions, in
prophylactic instructions instructing the jury the purpose for which it is
admitted and the purpose for which they may not use this evidence, and that
would be the way in which we handle the potential for prejudice.
(Emphasis added.)
However,
not only was Dr. Novom not able to make a connection between plaintiff's
one-instance use of cocaine and her abusive relationship with her chronic
headaches but he testified that "[n]o one in the room" could make
that connection and the suggestion was "absurd." He testified that it would be "simplistic"
to say that past substance abuse was "causative" of her continuing
painful state:
No, it
is merely a reflection. It is a
manifestation of who Pam Gisiner is and what she is constituted and how she has
certain dependencies and needs.
... [T]here is no reason to conclude otherwise
that they wouldn't spill over into every facet, including her chronic pain
states, her chronic depression and unhappiness and the way in which she
continues to receive medications for her chronic pain condition.
So it is not a
cause. It helps us understand. It helps us explain better what she is all
about and why she continues to report pain.
(Emphasis added.)
On direct examination he testified:
"It is not a direct causative role."
On
cross-examination, Dr. Novom's responses were flippant, demeaning and insulting. He testified that no one in the universe could predict when any
patient is going to have a migraine headache:
"[I]t is a crapshoot."
Dr. Novom was asked the following questions and gave the following answers:
QCan
you say today with any certainty that Pam Gisiner over the past several years
does not have the neck pain that she complains of?
AAgain,
an utterly absurd argument. She says
she has neck pain. Who am I to
disbelieve her?
QYou
offer no opinion about whether she, in fact, has pain or not. Is that correct?
AThere is no physician, there is no person in this room,
that can answer that.
To
other questions Dr. Novom responded:
"Remarkably sagest conclusion"; "That is a terribly
fallacious and absurd statement."
He
was also asked the following question and gave the following answer:
QCan
you testify to a reasonable degree of medical probability that Pam Gisiner
would have developed the symptoms she complains of today if the accident would
never have happened?
AI don't think anyone can. There is no crystal ball.
When
asked whether he examined plaintiff's head for sensation, Dr. Novom
answered: "Are you saying did I
stick a pin in her head? I doubt
it."
He
testified that conducting a test to determine if there is any diminished flow
of blood in a patient's neck on someone Gisiner's age "is totally
absurd." He also said that he did
not conduct a complete neurological examination of plaintiff because
"[t]here is no such thing as a complete neurological examination
...."
He
agreed that it was possible for a person to be permanently physically impaired
without objective signs. His report
stated that plaintiff had "[c]hronic myofa[]cial pain state of neck and
low back." He also diagnosed
"mixed tension vascular headache," and that she had both migraine
headaches and muscular tension headaches.
He
was asked the following questions and gave the following answers:
QAnd
your report doesn't say whether those headaches are related to the accident or
not. Does it?
AAsk
me.
QPardon
me.
AYou
heard me. Ask me.
QYour
report doesn't say that though, does it?
AThat is all that you see there.
This
is typical of Dr. Novom's confrontational style in responding to
cross-examination.
In
his report, Dr. Novom stated: "Dr.
Levine's reference to Ms. Gisiner experiencing no prior head, neck or back
injur[ies] or complaints as relates to the June 1990 motor vehicle accident
is patently false." (Emphasis
added.) In fact, what Dr. Levine
reported was that: "[Plaintiff]
had no prior head, neck or back injuries or complaints prior to the June '90
motor vehicle accident."
Therefore, Dr. Novom attributed to Dr. Levine a statement as to
plaintiff's pre-existing condition exactly opposite of what he had said in his
report. He mumpsimystically refused to
admit that he was wrong, conceding only that, "What is wrong is the
English may be cumbersome."
Although
not qualified as a psychiatrist, Dr. Novom stated his opinion as to the
significance of plaintiff's dependence on drugs and her relationship with an
abusive significant other. He
testified:
I
guess I am trying to emphasize that the way we were is the way that we are, and
there is no getting away from it. So
past problems with dependencies, abusive relationships, spill over into the way
Ms. Gisiner interacts socially and also it reflects in the ways in which she
exhibits her chronic pain behaviors and in her needs to reduce that.
Dependent people
like to orally gratify and to take substances and medications to reduce the
feeling of insecurity. That is what is
happening here at this time and taking chronic medications even of narcotic
variety for a pain condition.
I
conclude that defendant's counsel did not deliver on what she promised the
trial court. Dr. Novom was unable to
testify that plaintiff's headaches and pain were not related to the
accident. He did not attempt to tie
plaintiff's complaints to drug addiction or a dependent personality, to any
degree of medical certainty or probability.
See McGarrity v. Welch Plumbing Co., 104 Wis.2d
414, 430, 312 N.W.2d 37, 45
(1981). Dr. Novom's testimony
was unfairly prejudicial to the plaintiff because he painted her as a needy, dependent
person who would use narcotics to relieve her feelings of dependency. I conclude that the trial court should have
granted plaintiff's motion for a mistrial.
For
these reasons, I respectfully dissent.
[2] The curative instruction would have advised
the jury that testimony regarding Gisiner's use of a controlled substance and
involvement in an abusive relationship was improperly admitted and that the
jury should not consider it in its deliberations.
[3] Section 904.04(2), Stats., provides:
Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith. This subsection does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Although
generally used in criminal cases, § 904.04(2), Stats., is also applicable in civil cases. Lievrouw v. Roth, 157 Wis.2d
332, 349, 459 N.W.2d 850, 856 (Ct. App. 1990).
Evidence has been
received in this trial that plaintiff engaged in relationships in which she was
abused and that she used a controlled substance. This evidence was received solely because it was part of the
basis for opinions reached by defendants' medical expert witness on the issue
of the present symptoms presented by plaintiff for medical treatment.
You may not
consider this evidence for any purpose other than as a basis for the opinions
of defendants' medical expert witness.
You may consider
this evidence only for the purposes I have described, giving it the weight you
determine it deserves. It is not to be
used to conclude that plaintiff Pamela Gisiner is a bad person or is less
worthy of credibility.