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Elan v. Tate

Court of Appeals of Oregon

September 12, 2018

David ELAN, Plaintiff-Respondent,
v.
Alana Lynn King TATE, Defendant-Appellant.

          Argued and submitted September 8, 2017

          Washington County Circuit Court C145680CV; D. Charles Bailey, Jr., Judge.

          Wendy M. Margolis argued the cause for appellant. Also on the brief was Cosgrave Vergeer Kester LLP.

          Joshua V. Callahan argued the cause for respondent. Also on the brief was Vivian R. Soloman.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: In this personal injury case, defendant appeals a judgment awarding plaintiff economic and noneconomic damages, contending that plaintiff's evidence was insufficient to show that plaintiff suffered permanent injury. Consequently, defendant contends, the trial court erred in instructing the jury on permanent injury and presenting the jury with information from mortality tables. Held: Because plaintiff did not present evidence that his injury would probably last for his lifetime, and because common knowledge did not allow the jury to infer that his injury would probably last for his lifetime, the trial court erred by instructing the jury on permanent injury and providing evidence of mortality tables. The error substantially affected defendant's rights.

         [294 Or.App. 77] TOOKEY, J.

         In this personal injury case, defendant appeals a judgment awarding plaintiff economic and noneconomic damages, contending that plaintiff's evidence was insufficient to show that plaintiff suffered permanent injury. Consequently, defendant contends, the trial court erred in instructing the jury on permanent injury and presenting the jury with information from mortality tables. We agree with defendant and, accordingly, reverse and remand.[1]

         We summarize all the relevant evidence to evaluate "whether there was some evidence in the record from which the jury could have reached a verdict that was consistent with the [challenged] instruction." Montara Owners Assn. v. La None Development, LLC, 357 Or. 333, 349, 353 P.3d 563 (2015) (internal quotation marks omitted); see also id. at 348 ("An instruction can * * * be erroneous because there is no evidence in the record to support giving the instruction.").

         It is undisputed that plaintiff, who was 78 years old at the time of trial, was walking by the road near a curve when the side-view mirror of defendant's car hit his arm, causing him to spin around and fall down. Plaintiff was taken to a hospital, where he remained overnight. At trial, the parties disputed whose negligence-defendant's or plaintiff's-caused plaintiff's injuries. They also disputed the amount of plaintiff's damages. The question relevant to our analysis is whether plaintiff presented sufficient evidence to establish that he suffered a head injury that was permanent. On that subject, plaintiff presented testimony from himself, Barmanche, and Schaible.

         Schaible, a physical therapist, testified that plaintiff was referred to her by a doctor because plaintiff returned to the hospital a week after the crash suffering from symptoms of a concussion sustained during the crash.[2] Those symptoms included sensitivity to sound, shoulder pain and reduced [294 Or.App. 78] range of motion in his neck, headaches, vision issues, and "obvious memory and concentration issues." Over several months during which plaintiff received physical therapy, occupational therapy, and speech therapy, he made good progress in his ability to walk and balance. Overall, plaintiff did quite well.

         Plaintiff testified about his symptoms after the crash. He also testified that, at the time of trial, 18 months after the crash, he still had headaches, mood problems, and memory issues as a result. After the crash, he felt "goofy" and "that doesn't change very much. It depends on how uptight I get. How much-how much you-how nervous I get." He explained that, since the crash, he had had "problems with my head, my mind wasn't working right. I couldn't remember things. I couldn't hold onto anything. * * * I'd be talking to you and then I'd just-* * * If I didn't keep talking, I'd forget what I was talking about." That problem continued at the time of trial.

         Barmanche, a retired emergency room physician, testified that concussion-related symptoms like the symptoms plaintiff experienced after the crash "can last from days to weeks to months to years even following minor con-cussive events." "[H]ead injuries that were thought to be very minor can have prolonged long-lasting consequences on a long-term basis. And then, probably more so in an elderly patient than in the younger patient *** how long those symptoms can last."

         Plaintiff's counsel asked Barmanche about "the longer term effects in your experience of a brain injury, of a concussion, post-concussive syndrome in a man like [plaintiff] in his state? What types of things and symptoms would he see and how long would they likely last?" Barmanche responded,

"I mean, it's impossible to say. About 15 percent of patients that sustain minor head trauma-that is, if they don't have anything that's detectable on a CAT scan, but they've been hit or concussed-about 15 percent of those patients *** will develop long-term symptoms that may last from months to years following even a benign-what appears to be a benign blow to the head."

         [294 Or.App. 79] Barmanche testified that "[i]t's really unpredictable about who is going to experience those types of symptoms, when they're going to come on ...


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