Patterson v. Cloud

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NOT DESIGNATED FOR PUBLICATION

No. 115,360

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JESSECA PATTERSON,
Appellant,

v.

KAYCE CLOUD,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; MICHAEL P. JOYCE, judge. Opinion filed March 10, 2017.
Affirmed.

Jeremiah Johnson, of The Law Office of Jeremiah Johnson, of Olathe, for appellant.

Brette S. Hart and Matthew W. Greenberg, of Harris & Hart, L.L.C., of Leawood, for appellee.

Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.

Per Curiam: This personal injury lawsuit is on appeal for a second time. Jesseca
Patterson filed a negligence action against Kayce Cloud after they were involved in a
motor vehicle collision. Based solely on the attorneys' arguments at a pretrial hearing, the
district court granted Cloud's motion for directed verdict after Patterson's attorney stated
she did not intend to offer expert medical testimony on causation at trial. We reversed,
holding there was no legal or evidentiary basis for granting judgment as a matter of law.
On remand, the case proceeded to trial but did so based solely on Patterson's proffered
testimony. After hearing Patterson's proffer, the district court again granted Cloud's
motion for directed verdict. Specifically, the court ruled that Patterson's medical records
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and medical bills were inadmissible in the absence of expert testimony linking the
medical treatment she received to the collision with Cloud as opposed to a prior wreck.
Without the medical records and medical bills, the court concluded that Patterson could
not prove damages, which is an essential element of negligence. Absent the ability to
establish an essential element of Cloud's negligence claim, the district court granted her
motion for directed verdict. On appeal, Patterson argues the district court erred by
entering judgment in Cloud's favor.

FACTS

On September 10, 2010, Patterson and Cloud were involved in a two-car collision
in Johnson County, Kansas. Patterson filed a negligence action against Cloud, alleging
permanent and painful injuries to her back, torso, neck, and head as a result of Cloud's
negligence. Patterson also claimed she suffered lost wages due to the wreck. Cloud
answered, admitting that the wreck was solely and proximately caused by her negligence
but denying that any of Patterson's claimed injuries were caused by the collision.

Before trial, the parties stipulated that Patterson had incurred $29,754 in expenses
for medical treatment after the wreck. Cloud explicitly declined, however, to stipulate
that any of this medical treatment was reasonable, necessary, or causally related to the
collision. In a nonevidentiary hearing held a few days before the scheduled trial, Cloud's
attorney specifically asked the district court to require that Patterson provide medical
expert testimony to prove her injuries were caused by the collision with Cloud. In support
of this request, Cloud's attorney alleged Patterson had been involved in a prior car wreck
which resulted in serious injury and complaints similar to those she asserted after the
wreck with Cloud. In response, Patterson's attorney stated his intention to have Patterson
testify that her injuries were caused by the collision and not the result of preexisting
conditions, that her medical care was reasonable and necessary to treat her injuries, and
that her bills for the medical care were reasonable. Patterson's attorney also indicated that
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Patterson's husband and friends would testify that her previous complaints involved
minor aches and pains and the injuries at issue were directly related to the wreck with
Cloud.

After considering the arguments of counsel, the district court concluded that
Patterson's history of preexisting injuries required her to provide medical expert
testimony to prove her injuries were caused by the current collision with Cloud. Because
Patterson was not going to present medical expert testimony at trial, the district court
directed a verdict in favor of Cloud.

On appeal, a panel of this court reversed, holding that the district court erred by
directing a verdict in favor of Cloud prior to trial. The panel concluded that even if there
had been a legal basis for granting judgment as a matter of law prior to trial, the record—
consisting only of arguments of both attorneys—did not support entering judgment in
favor of Cloud. Patterson v. Cloud, No. 111,083, 2014 WL 6676176, at *4-5 (Kan. App.
2014) (unpublished opinion).

On remand to the district court, the case was scheduled for jury trial and the
parties entered into a revised pretrial order. In the order, Cloud reasserted her position
that in the absence of supporting expert medical testimony, Patterson should be precluded
from testifying about the cause of her injuries and the necessity and reasonableness of her
medical treatment. To that end, Cloud specifically reserved the right to challenge the
admissibility of Patterson's medical records and bills:

"The parties have stipulated to the admission into evidence of business records under
K.S.A. 60-460(m), without the necessity of foundation testimony as to authenticity, so
long as such records have been provided to opposing counsel prior to trial, the Plaintiff's
medical records and billings, with the parties reserving the right to raise proper objections
to the contents of those documents, including relevance and hearsay within a document.
Objections to any document related to lack of causation are specifically not waived."
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The case proceeded to trial. Before opening statements, Cloud reasserted her
objection to admission of Patterson's medical records and bills in the absence of expert
medical testimony to establish causation, necessity, and reasonableness. Outside the
presence of the jury, Patterson proffered her testimony regarding liability and damages,
claiming that her medical treatment was caused solely by the wreck with Cloud. A
transcript of the jury trial is not included in the record on appeal and, more importantly,
neither are the medical records or the medical bills that Patterson apparently intended to
introduce into evidence. According to the district court's journal entry, Patterson testified,
over Cloud's continuing objection, as follows:

"(1) She went to an urgent care facility with her passenger Natalie Cary shortly after
the crash, solely for the purpose of treating her injuries from the crash;
"(2) The records and bills from the facility demonstrated that she was there to treat
her injuries from the crash. Ms. Patterson also offered the records into evidence;
"(3) She was referred to her primary care physician, Dr. Sequita Richardson, M.D., by
the urgent care staff;
"(4) She went to the St. Luke's East's emergency room 5 days after the crash due to
her injuries from the crash, solely for treatment relating to the crash;
"(5) The records and bills from St. Luke's East demonstrated that her treatment was
due to the crash, specifically noting that the records stated 'you are being
evaluated for injuries you received in a motor vehicle collision.';
"(6) She saw Dr. Sequita Richardson, her primary care physician who provided
treatment and wrote prescriptions related to the crash. Ms. Patterson stated that
the records and bills from her primary care physician demonstrated that her
treatment was a result of the crash and she offered Dr. Richardson's office's
records and bills into evidence;
"(7) Her primary care physician referred her to get an MRI at Ramic Medical
Imaging. Ms. Patterson offered her bills and records into evidence, including, a
prescription from Dr. Richardson;
"(8) Her primary care physician referred her to physical therapy at ETC Physical
Therapy. Ms. Patterson offered her ETC Physical Therapy bills and records into
evidence, including a notation from Dr. Richardson directing her to ETC;
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"(9) Her primary care physician referred her to KC Pain Center for treatment related
to the crash. Ms. Patterson offered her KC Pain Center bills and records into
evidence, including a narrative stating that she went to KC Pain Center 'at the
request of Dr. Richardson.';
"(10) Ms. Patterson testified that the records and bills established that her treatment at
those facilities was due to the crash and also showed that she was referred to
those facilities by Dr. Richardson; and
"(11) Dr. Richardson referred Ms. Patterson to Abundant Life Chiropractic after she
had finished physical therapy at ETC for treatment related to the collision. Ms.
Patterson offered her bills and records from Abundant [L]ife into evidence after
testifying her treatment there was solely related to the collision.
"(12) Testimony was elicited from Ms. Patterson during cross-examination of prior
injuries of a similar nature and degree suffered in prior car collisions or during
other activities, which raises the issues of pre-existing injury and whether the
Plaintiff can establish a causal link between the injury suffered and this particular
collision. Defendant's counsel stated that, at trial, she would go through all the
prior injuries and medical treatment, as was outlined in the medical records that
became part of the record during the proffer."

Following these proffers, Cloud moved for a directed verdict in her favor on
grounds that Patterson's failure to present any expert medical testimony on causation,
necessity, and reasonableness rendered her unable to establish the essential elements of
negligence as a matter of law. After hearing argument from counsel, the district court
agreed. In its journal entry of judgment, the court provided the following statement in
support of its decision:

"[T]here is insufficient evidence of reasonableness and necessity of the medical billings
and the medical treatment provided. Kansas law requires expert testimony as to causation
linking the medical treatment received with the claimed medical bills. Due to the lack of
expert testimony providing the required causation evidence linking the treatment to the
accident, the medical records and bills would not be admitted at trial. With no medical
records and bills being admitted, there would be no damages proved at the end of
[Patterson's] case. Without evidence of any damage sustained by [Patterson], a verdict
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would not be returned in favor of [Patterson] and Directed Verdict in favor of [Cloud]
shall be granted."

ANALYSIS

The parties frame the issues differently, but their arguments generally focus on
two key questions: (1) whether expert testimony is required to prove the cause of
Patterson's injuries, the need for Patterson's medical treatment, and the reasonableness of
Patterson's medical bills and (2) whether Patterson is precluded by the hearsay rule from
introducing her medical records and her medical bills into evidence in the absence of
supporting medical testimony.

The statute used by the district court to grant Cloud's motion for directed verdict is
K.S.A. 2016 Supp. 60-250(a)(1), which provides:

"(a) Judgment as a matter of law. (1) In general. If a party has been fully heard
on an issue during a jury trial and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) Resolve the issue against the party; and
(B) grant a motion for a judgment as a matter of law against the party on a claim
or defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue."

As a matter of semantics, directed verdict is merely the former name for judgment as a
matter of law. The legislature began using the new term in 1997. See L. 1997, ch. 173,
sec. 26; Stover v. Superior Industries Int'l, Inc., 29 Kan. App. 2d 235, 237, 29 P.3d 967
(2000).

When ruling on a motion for judgment as a matter of law, the district court is
required to resolve all facts and inferences that may reasonably be drawn from the
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evidence in favor of the party against whom the ruling is sought. Where reasonable minds
could reach different conclusions based on the evidence, the motion must be denied. The
appellate court must apply a similar analysis when reviewing the grant or denial of a
motion for judgment as a matter of law. Siruta v. Siruta, 301 Kan. 757, 766, 348 P.3d 549
(2015).

In a negligence action, a plaintiff carries the burden of proving four elements: (1)
a duty owed to the plaintiff by the defendant, (2) a breach of that duty, (3) causation
between the breach of the duty and injury to the plaintiff, and (4) damages suffered by the
plaintiff. Shirley v. Glass, 297 Kan. 888, 894, 308 P.3d 1 (2013). An automobile driver
generally owes the duty to act as would a reasonably prudent driver. Siruta, 301 Kan. at
766. Here, there is no dispute that the first two elements of negligence are met because
Cloud admitted that she was at fault in the collision. Thus, in order for Patterson to have a
submissible case against Cloud for the jury to resolve, Patterson must have proffered
evidence from which the jury could conclude that Cloud's breach caused Patterson's
injuries and damages. See Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008); Nold
v. Binyon, 272 Kan. 87, 103-04, 31 P.3d 274 (2001). In her proffer, Patterson said she
would testify about the wreck that occurred, the injuries she sustained, the medical
treatment provided to her, and the medical bills she received. Patterson also stated in her
proffer that she intended to introduce into evidence all of the medical records and the
medical bills related to the medical treatment she was provided to treat the injuries she
sustained as a result of the collision.

But the district court ruled that Patterson's failure to provide expert testimony on
the issue of causation to link the wreck to the medical treatment provided to her rendered
the medical records and the medical bills inadmissible. Although the district court did not
provide its reasons for deeming the medical records and medical bills inadmissible, the
court cited Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110 (1982), in conjunction
with its ruling for the legal proposition that "foundation must be laid establishing the
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competency, materiality and relevancy of all evidence prior to admission." The quoted
language from Cansler leads us to conclude that the decision to exclude the evidence was
based on the district court's finding that, without expert testimony on the issue of
causation to link the wreck to a need for the medical treatment received, neither the
medical records nor the medical bills were material or relevant.

This brings us then to the first key question presented by the parties on appeal:
whether expert testimony is required to prove the cause of Patterson's injuries and, in
turn, a need for the medical treatment provided to Patterson. Significant to both Cloud's
argument and the district court in its ruling on this issue was the information in
Patterson's proffer stating she had suffered prior injuries of a similar nature and degree as
the present soft-tissue complaints she claimed in the present wreck. An evidentiary
proffer was made by Cloud's counsel at this point, stating she intended to confront
Patterson at trial about her prior injuries and medical treatment in order to show the jury
that Patterson's injuries were preexisting and not caused by the collision with Cloud.

Our Supreme Court explained the rules about proximate causation in Hale, 287
Kan. at 322:

"The proximate cause of an injury is the cause that in a natural and continuous sequence,
unbroken by any superceding cause, both produced the injury and was necessary for the
injury. The injury must be the natural and probable consequence of the wrongful act.
[Citation omitted.] Individuals are not responsible for all possible consequences of their
negligence, but only those consequences that are probable according to ordinary and
usual experience. [Citation omitted.]"

The Hale court also explained "that proximate cause is ordinarily a question of
fact that is reserved for the trier of fact." 287 Kan. at 324. It is only "when all the
evidence on which a party relies is undisputed and susceptible of only one inference" that
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"the question of proximate cause becomes a question of law" that the court can remove
from the jury's consideration. 287 Kan. at 324.

With regard to the plaintiff's burden to prove causation, Kansas courts have found
useful the following summary set forth in Prosser and Keeton on Torts § 41, pp. 269-70
(5th ed. 1984):

"The plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a cause in
fact of the result. A mere possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the
conclusion is not one within common knowledge, expert testimony may provide a
sufficient basis for it, but in the absence of such testimony it may not be drawn. . . .
"The plaintiff is not, however, required to prove the case beyond a reasonable
doubt. The plaintiff need not [negate] entirely the possibility that the defendant's conduct
was not a cause, and it is enough to introduce evidence from which reasonable persons
may conclude that it is more probable that the event was caused by the defendant than
that it was not. The fact of causation is incapable of mathematical proof, since no one can
say with absolute certainty what would have occurred if the defendant had acted
otherwise. Proof of what we call the relation of cause and effect, that of necessary
antecedent and inevitable consequence, can be nothing more than 'the projection of our
habit of expecting certain consequents to follow certain antecedents merely because we
had observed these sequences on previous occasions.' If as a matter of ordinary
experience a particular act or omission might be expected, under the circumstances, to
produce a particular result, and that result in fact has followed, the conclusion may be
permissible that the causal relation exists."

See Kuxhausen v. Tillman Partners, 291 Kan. 314, 320, 241 P.3d 75 (2010); Yount v.
Deibert, 282 Kan. 619, 628-31, 147 P.3d 1065 (2006); Baker v. City of Garden City, 240
Kan. 554, 559, 731 P.2d 278 (1987); Edwards v. Anderson Engineering, Inc., 45 Kan.
App. 2d 735, 740, 251 P.3d 660 (2011). Likewise, the pattern jury instruction requires a
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plaintiff to prove that it is "more probably true than not true" that the defendant's conduct
caused the plaintiff's injuries. PIK Civ. 4th 106.01 ("The plaintiff’s burden of proof: The
plaintiff has the burden to prove that (his) (her) claims are more probably true than not
true.").

Given the applicable burden of proof and the factual proffer made by Patterson
(without considering the medical records or bills), the question presented is whether
Patterson proffered sufficient evidence to afford a reasonable basis for a jury to conclude
that it was more likely than not that the car wreck with Cloud caused the injuries for
which she needed medical treatment. The district court entered judgment in favor of
Cloud because Patterson failed to present expert medical testimony on the causation
issue.

Expert testimony regarding personal injuries may be necessary in some cases.
Nunez v. Wilson, 211 Kan. 443, 447, 507 P.2d 329 (1973). Expert opinion testimony is
generally admissible if it aids the jury with unfamiliar subjects or interpreting technical
facts or if it assists the jury in arriving at a reasonable factual conclusion from the
evidence. See State v. Gaona, 293 Kan. 930, 948, 270 P.3d 1165 (2012); see also
Sharples v. Roberts, 249 Kan. 286, 296, 816 P.2d 390 (1991) (expert medical testimony
is ordinarily required in medical malpractice cases to establish causal connection between
plaintiff's injuries and defendant's negligence). But expert testimony is unnecessary if the
normal experience and qualifications of jurors allows them to draw proper conclusions
from the provided facts and circumstances. See Schlaikjer v. Kaplan, 296 Kan. 456, 464,
293 P.3d 155 (2013). "[T]he well-established test for determining whether expert
testimony is required is whether the subject matter is too complex to fall within the
common knowledge of the jury and is 'beyond the capability of a lay person to decide.'"
Williamson v. Amrani, 283 Kan. 227, 245, 152 P.3d 60 (2007), superseded by statute on
other grounds as stated in Kelly v. VinZant, 287 Kan. 509, 520-22, 197 P.3d 803 (2008).

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The district court held that Patterson's previous injuries make deciding the issue of
fact for trial (whether it is more likely than not that the current wreck caused the injuries
alleged here) too complex to fit within the common knowledge of the jury and therefore
beyond the capability of a lay person to decide without expert testimony. Whether an
expert was necessary to testify in this case to distinguish between previous injuries and
new injuries is a very close call. But even if the district court erred in ruling that Patterson
could not proceed without expert testimony, a reversal of the court's ruling on this issue
would bring us to the next question presented by the parties: whether the medical records
and the medical bills are admissible. Citing relevancy and hearsay rules, Cloud argues
they are not admissible. Although Patterson disagrees, she failed to include either the
medical records or the medical bills in the record on appeal. It is well settled that the
burden is on a party to designate a record sufficient to present its points to the appellate
court and to establish its claims; without such a record, the claim of error fails. See
Freidman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294 P.3d 287
(2013); Romkes v. University of Kansas, 49 Kan. App. 2d 871, 886, 317 P.3d 124 (2014);
Bohanon v. Werholtz, 46 Kan. App. 2d 9, 15, 257 P.3d 1239 (2011).

Because the record on appeal lacks sufficient evidence upon which we can grant
the relief requested, we affirm the decision of the district court.

Affirmed.