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Fort v. Estate of Miller

Court of Appeals of Arkansas, Division I

September 24, 2014



Greg Thurman; and Nick Churchill, for appellant.

Roy, Lambert, Lovelace, Bingaman & Wood, LLP, by: Jerry L. Lovelace and James H. Bingaman, for appellee.



Page 892


After appellant Roseanna Fort obtained a $5,044.43 jury verdict in her negligence claim against appellee, the Estate of Norma Miller, deceased,[1] she moved for a new trial. She argued that pursuant to Arkansas Rule of Civil Procedure 59(a), the verdict was clearly against the preponderance of the evidence and the jury erred in assessing the amount of her recovery. She also argued that the trial court erred as a matter of law in amending/modifying the jury's verdict. The motion was denied by the Washington County Circuit Court, and Fort appealed. We affirm.

The motor-vehicle accident giving rise to this appeal occurred on February 17, 2011. Fort was traveling east on Highway 412 in Huntsville, Arkansas, and collided with a vehicle, driven by Miller, that made a left

Page 893

turn into Fort's vehicle. Fort filed a complaint against Miller, alleging negligence and seeking damages for past, present, and future medical expenses; pain and suffering; and loss of income.[2]

At the onset of trial, the court advised the jury that Miller admitted liability and that the case would be submitted on the issue of damages only. Fort proceeded to testify that immediately after the collision, her right knee and wrists hurt. She sought medical treatment that day and was treated for pain in her neck, right wrist, knee, and arm. All tests were normal, and she was diagnosed with cervical strain, lumbar strain, right-wrist sprain, and a right-knee contusion and told to follow up with her family physician.

Fort testified that two weeks later, she sought medical treatment from family-care physician Dr. Robert Wilson. She complained of right-shoulder pain to Dr. Wilson, and he suggested that she see an orthopedic specialist. On March 10, 2011, Fort saw orthopedic surgeon Dr. Terry Sites for right-shoulder pain. According to Fort, she was treated by Dr. Sites on nine occasions between March 10, 2011, and December 20, 2012, and received testing, injections, prescription medication, and physical therapy for her shoulder. Although she had episodes of improvement, Fort stated that she continued to suffer from pain in her shoulder, and ultimately, Dr. Sites recommended arthroscopic surgery. According to Fort, she declined surgery twice--once because she wanted to pursue additional conservative treatment and another time due to the expense.[3] Fort asked the jury for reimbursement for her medical expenses that she claimed were caused by the accident, which totaled $10,995.92. And because she continued to suffer from right-shoulder pain, she asked the jury to award her damages for surgery.

Dr. Sites's testimony and his medical records reveal that on his first visit with Fort in March 2011, she complained of pain in her right shoulder and both wrists. He noted that while her shoulder was tender, she had full range of motion. A right-shoulder x-ray did not reveal fractures or dislocations but did reveal a type II acromion, a congenital condition unrelated to the accident. Dr. Sites diagnosed Fort with rotator-cuff tendinopathy with impingement, mild AC joint sprain and periscapular strain and recommended conservative treatment. Fort returned to Dr. Sites on May 9, 2011, reporting pain, and he recommended an MRI.

The MRI was performed July 26, 2011, and the radiologist, Dr. Jennifer Taylor, found that " a hint of subacromial fluid [was] seen which could be related to tendinosis but a definite rotator cuff tear is not appreciated." She also found " mild hypertrophic changes involving the acromioclavicaular joint causing some mild impingement of the myotendinous junction of the supraspinatus." On July 28, 2011, Dr. Sites interpreted the MRI films, finding that there was no complete tear of the rotator cuff but some evidence of thinning that could represent a partial tear and/or tendonitis. He also found that there was AC joint arthropathy with inferior spurs that were causing some impingement on the rotator cuff. ...

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