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Warren v. Frizell

Court of Appeals of Arkansas, Division III

March 1, 2017

JOHNNY WARREN APPELLANT
v.
ANTHONY FRIZELL APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO. 60CV-12-2596] HONORABLE ALICE S. GRAY, JUDGE

          Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

          Laser Law Firm, by: Kevin Staten and Brian A. Brown, for appellee.

          WAYMOND M. BROWN, Judge.

         Appellant Johnny Warren sued appellee Anthony Frizell[1] for negligence after Frizell rear-ended Warren in an automobile accident on July 13, 2009. Warren sought damages for medical expenses, pain and suffering, lost wages, gas mileage, costs, other damages, and attorney's fees.[2] A jury trial took place on January 7, 2015, and Frizell admitted liability. At the conclusion of the trial, the jury returned a verdict in Frizell's favor. A judgment based on the jury's verdict was filed on July 15, 2015, dismissing Warren's complaint with prejudice. Warren filed a motion for a judgment notwithstanding the verdict (JNOV) and for a new trial on July 21, 2015. The court never acted on the motion, and it was deemed denied after thirty days. Warren filed a timely notice of appeal on September 17, 2015. On appeal, Warren argues that (1) the trial court erred when it did not enter a judgment in favor of Warren for his medical expenses and (2) the trial court erred by denying Warren's motion for a new trial. Frizell cross-appeals, arguing that the trial court erred in finding that Frizell was not contesting that Warren's medical treatment was reasonable and necessary and that Warren needed to be off work.[3] We affirm.[4]

         Warren testified that he was self-employed as the owner of Power Plus Pressure Washing at the time of the accident. He stated that at that time, he had a contract with Pepsi to wash their trucks throughout the state and that he was making approximately $60, 000 a year. He said that the accident took place on Broadway Avenue as he was going to the gym. He stated that he had to "catch" himself when he was rear-ended because he was going forward all of a sudden. He said that he braced himself with the steering wheel in order to prevent his head from hitting it or the windshield. He stated that following the accident, they pulled onto Plum Street. He testified that he was driving a 1988 Fleetwood Brougham and that Frizell was driving a "big Sierra" with a guardrail. Warren stated that following the accident, the brake lights did not work, the gas hand was out, the taillight assembly was bent and a filler piece between the taillight and the car was busted, and the bumper guards were knocked off of the bumper. Additionally, he stated that the shocks underneath the bumper were busted, causing oil to leak from them. He said that he was able to drive his vehicle home, and that after the accident, he decided not to go to the gym.

         Warren testified that the less he moved, the more pain he was in. He stated that he could barely sleep that night due to pain in his lower back and that he decided to go to the emergency room at Springhill Baptist the next morning. He said that x-rays were taken of his back and that he received a prescription for pain medication. He was also told to follow-up with his primary care physician. He stated that he did not have a physician at the time. He said that he took the medicine but realized that it was not helping his pain. He testified that he finally decided to go see Dr. William Rutledge. Warren said that he presented to Dr. Rutledge on July 20, 2009, with neck and back pain. He stated that Dr. Rutledge prescribed pain medication and physical therapy. He said that he was taken off of work for over two months, from July 20, 2009, to September 29, 2009. He stated that he went to physical therapy about three months. He testified that he was seeking reimbursement for his medical expenses. He also asked to be compensated $10, 000 for lost wages.

         On cross-examination, Warren stated that his taxable income for 2008 was $17, 699 and that his taxable income for 2009 was $19, 039. He denied ever injuring his back or neck prior to the accident. He stated that he currently had no problems from his injuries and denied pretending to be hurt after the accident.[5]

         Frizell testified that he was driving a 2008 Sierra GMC with a guardrail at the time of the accident. He stated that he noticed appellant's vehicle in front of him going at a "very slow speed." He opined that he was going no faster than fifteen (15) mph, when "all of a sudden, [appellant] stopped." He stated that he swerved to the left and "nicked" appellant. He described the accident as a minor bump that did not involve the truck's guardrail. He said that he noticed a "little nick" on appellant's left bumper at the top of the taillight and that his truck had a small black scratch on it. He stated that when appellant got out of his vehicle, he was "bouncing around." Frizell stated that appellant called the police and that they went to Plum Street to give statements concerning the accident. He testified that Warren did not complain about being injured at the scene of the accident.

On cross-examination, Frizell stated in pertinent part:
I am not a doctor. I'm not a nurse. I have no medical training in terms of being able to diagnose people. I'm not telling the jury that I know better than Dr. Jones at the emergency room. I would never do that. I was not there. I trust her opinion over mine. It was my first appearance that he was not hurt.
I'm not telling the ladies and gentlemen of the jury that it was unreasonable for the doctor to order an x-ray.
And when she prescribed medicine for him, the Flexeril and the Loratab, I'm not suggesting to the ladies and gentlemen of the jury that that wasn't something that was necessary.
I don't know Dr. William Rutledge. When he saw him, and he prescribed him physical therapy because he saw muscle spasms and things of that nature, I'm not telling the ladies and gentlemen of the jury that there weren't any muscle spasms or anything of that nature.
I'm not suggesting that somehow another that when he prescribed the physical therapy, that that was something that was inappropriate.
I'm not saying that it was inappropriate for a doctor of his trained opinion as a doctor, a medical doctor to take him off work. I don't think that was wrong. His opinion is superior to all. I mean he's the doctor. Yes. It was appropriate for Dr. Rutledge, in his expert opinion, to have Mr. Warren to be off for the period of time that he asked. On redirect, Frizell stated that he was not injured in the accident and that his body did not "move about" his truck in the accident.

         Both Warren and Frizell made motions for directed verdict at the conclusion of Frizell's case, and the following colloquy took place:

Mr. Proctor: Actually, based upon the defendant's testimony, I now move that the Court would enter a judgement in favor of the plaintiff He just go[t] through testifying that he felt that the medical evidence that we presented was -- that the treatment -- he could not contest the fact that the treatment was not necessary. He agreed that the treatment was something that was necessary. He agreed with the fact that the doctor took him off for the period of time.
So as far as the medical evidence -- I know they contest the amount of the lost wages. But as far as the medical expenses and the records, Your Honor, we move that we get a judgement for the $7, 000 in the record -- $7, 000 in medical expenses based upon the admission of the defendant. Now, I know the $10, 000 is still an issue because he -- they're contesting the amount of the wages. But, you know, he just conceded that -- he conceded our reasonable and necessary. So there is nothing to go to the jury on that.
Mr. Staten: Your Honor, he said that he is no doctor. And it's up to the jury to decide what medical expenses are reasonable and necessary in relating to the accident. He did not concede and say, oh, I agree that the medical bills are reasonable and necessary. He just said he did not -- he was not a doctor, and he wasn't going to question the doctor. I've never heard of a case like this where the medical bills have been a judgement. The medical bills, based on the testimony of a layperson.
Mr. Proctor: Your Honor, here's the problem, Your Honor, what evidence is there in the record the fact that the medical bills and expenses are not reasonably related.
Mr. Staten: It's up to the jury.
Mr. Proctor: It's not up to the jury, Your Honor. When the other side concedes it -- if he had said, No, I don't agree -- if he had just said: No, I'm not a doctor. I don't agree, then, okay, maybe he has a point. But when you say: No, I'm not a doctor. I agree. The doctor has the superior opinion. That is what he said. Then, there is nothing. There's no dispute. There is no longer a factual dispute. We are entitled to a judgement.
The Court: I think it's a matter of the questions that you are asking. And I'm going to allow the ...

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