                   IN THE COURT OF APPEALS OF IOWA

                               No. 3-1255 / 13-0959
                              Filed February 19, 2014


ZACHARY ROBINSON,
    Plaintiff-Appellant,

vs.

SHENANDOAH MEDICAL CENTER,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Page County, Richard H.

Davidson, Judge.




      Zachary Robinson appeals from the district ruling denying his motion for

new trial. REVERSED AND REMANDED.




      Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellant.

      Samuel E. Jones and Kerry A. Finley of Shuttleworth & Ingersoll, P.L.C.,

Cedar Rapids, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
                                         2


DOYLE, J.

       In this slip and fall case, the jury awarded Zachary Robinson damages for

past medical expenses, but it did not allow damages for pain and suffering. In a

motion for new trial, Robinson argued the jury’s verdict was inconsistent, relying

upon Cowan v. Flannery, 461 N.W.2d 155 (Iowa 1990). The district court denied

his motion, and Robinson appeals, arguing the district court erred in finding the

facts supported the jury’s verdict and in concluding the verdict was neither

inconsistent nor inadequate. Because we conclude the verdict is inconsistent,

we reverse and remand for a new determination of damages.

       I. Background Facts and Proceedings.

       On March 2, 2010, Robinson slipped on an icy sidewalk outside the

emergency room of the Shenandoah Medical Center (Shenandoah) and fell on

his right hip and buttocks area. He also hit his arm, though he was not sure

where he hit it. After lying on the ground for a second, he picked himself up and

proceeded into the ER. He told a member of the hospital’s staff that he had

slipped and fallen on the sidewalk, and he was instructed to stay in the ER so he

could be checked out.

       Robinson was examined by a physician’s assistant. His right forearm had

a contusion and hurt, and his elbow was X-rayed. Robinson was asked to stay at

the hospital. However, because it was getting past midnight and he had to be at

work the next morning, Robinson left the hospital and went home. His back did

not start hurting until the next day when he started work.

       A day-and-a-half later, a nurse from the hospital made a courtesy follow-

up call to Robinson to see how he was doing. He said he thought something was
                                         3


wrong with his back and it was still hurting even after taking ibuprofen. He was

advised to follow-up with his own doctor, to continue to take ibuprofen, and to

use ice or heat for twenty minutes four to five times a day.

         Over eighteen months later, at the behest of his lawyer, Robinson went to

see a doctor. On September 26, 2011, Robinson reported to Dr. McElderry he

had fallen on his buttocks a year–and-a-half prior thereto, and he had

experienced some chronic back pain and intermittent right leg pain since then.

The doctor found the range of motion in Robinson’s back was diminished.

Robinson was able to flex forward only forty-five degrees and then it became

more painful.    He had tenderness over the upper lumbar and lower thoracic

spine.    The doctor prescribed medications for pain and also recommended

physical therapy.

         Two months later, Robinson started physical therapy treatment.        He

attended some sixteen physical therapy sessions spanning from November 30,

2011 to March 19, 2012.        His treatments included manual therapy, traction,

exercise, ultrasound, and cold packs.

         Again, at the behest of his lawyer, Robinson returned to Dr. McElderry

February 8, 2013. An MRI was done of Robinson’s spine on February, 18, 2013.

         Robinson filed a negligence action against Shenandoah, and the matter

was tried to a jury beginning April 2, 2013. Evidence was received over two days

with arguments heard on the third day.       Following arguments, the case was
                                            4


submitted for the jury’s deliberation at 11:00 a.m. The parties agreed to a sealed

verdict.1

       The jury returned its verdict at 1:15 p.m. The jury found both parties at

fault and that their fault was the proximate cause of damage to Robinson. The

jury assigned fifty-one percent fault to Shenandoah and forty-nine percent to

Robinson.     In determining damages, the verdict form completed by the jury

stated:

              Question No. 6: State the amount of damages sustained by
       Robinson by Shenandoah’s fault as to each of the following items
       of damage. Do not take into consideration any reduction of
       damages due to Robinson’s fault. If Robinson has failed to prove
       any item of damage, or has failed to prove that any item of damage
       was caused by Shenandoah’s fault enter 0 for that item.

       Medical expenses[2]                                 $4368
       Past pain                                           $0
       Future pain                                         $0
       TOTAL (add the separate items of damage)            $4368

       Robinson subsequently filed a motion for new trial contending the jury’s

award of medical expenses without an award for pain was “grounds for a

mistrial.”   The motion was heard at an unreported hearing.             In denying the

motion, the court found:

             The evidence presented to the jury in this case included
       facts that [Robinson] had back pain prior to his fall at
       [Shenandoah]. [Robinson’s] medical records indicated he had
       been in a serious automobile accident when he was five years old.
       [Robinson] also admitted at trial that he went to the [Shenandoah]
       1
          “When parties agree to a sealed verdict, they lose their right to have a verdict
returned in open court where inquiry can be made into its findings.” Clinton Physical
Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 610 (Iowa 2006)
(citing Iowa R. Civ. P. 1.931). As a result, “it is not possible to use additional
deliberations as a remedy for an inconsistency in a verdict when a sealed verdict is used
in a case.” Id.
        2
          “Medical expenses” consisted of past medical expenses only. Robinson did not
make a claim for future medical expenses.
                                   5


emergency room in September of 2008 complaining of back pain.
Based on this testimony, [Robinson] requested and the court
agreed to provide the jury with an aggravation instruction. Jury
Instruction No. 23 states:
        If you find [Robinson] had back pain before this
        incident and this condition was aggravated by this
        incident causing further suffering, then he is entitled to
        recover damages caused by the aggravation. He is
        not entitled to recover for any physical ailment or
        disability which existed before this incident or for any
        injuries or damages which he now has which were not
        caused by Shenandoah’s actions.
        Thus, it is not illogical for the jury to find that [Robinson’s]
medical expenses were necessary to determine the extent of any
injury following the fall at [Shenandoah] but that [Robinson] had
failed to carry his burden of demonstrating that any past or future
pain was caused by Shenandoah’s actions.
        In this case, liability, the cause, nature and extent of
Robinson’s injuries were all in dispute. In addition, [Robinson’s]
credibility was an issue throughout the trial.            [Shenandoah]
presented evidence that [Robinson] was less than honest when
providing a complete history to his treating physician, Dr.
McElderry, and did not follow through with treatment.               Dr.
McElderry admitted on cross-examination that because he
determined [Robinson] to be dishonest called into question all the
patient’s subjective statements concerning pain. The doctor further
testified that he was offering no opinion for long-term prognosis
because of [Robinson’s] lack of follow-up. This evidence from
[Robinson’s] own expert coupled with the fact he waited [eighteen]
months following the slip and fall at [Shenandoah] before seeking
treatment from Dr. McElderry was evidence for the jury to consider.
Further, [Robinson] failed to follow the doctor’s advice to return for
a visit in [thirty] days and waited two months to initiate physical
therapy. Once physical therapy was initiated, he failed to attend a
majority of the sessions. These facts along with other instances
where [Robinson] had been less than honest may well have given
the jury pause when considering [Robinson’s] claim of pain
attributable to this slip and fall.
        Taken as a whole, the facts in this case support the jury’s
verdict. Most notably: 1) [Robinson] had been in a serious car
accident at the age of five; 2) [he] complained of chronic back pain
in September 2008; 3) [he] waited [eighteen] months to seek
medical treatment following his fall at [Shenandoah]; 4) once
receiving medical treatment, [he] failed to follow up with Dr.
McElderry and waited more than two months to initiate physical
therapy; 5) [he] waited sixteen months to again see Dr. McElderry
for his second and final appointment; 6) while [he] had limited
                                          6


       income during the past five years, he did find the means to travel to
       Omaha, Nebraska six days a week for an extended period; 7) [his]
       fall was a low impact incident with no objective findings; and 8) [his]
       own expert testified that it was not typical for someone with [his]
       complaints to wait [eighteen] months before seeking treatment.

The court concluded “the jury’s verdict awarding Robinson medical expenses but

nothing for past or future pain was not an inconsistent verdict in this matter,” and

“the jury’s verdict was not inadequate based on the facts as presented.”

Judgment was entered in accordance with the verdict.

       Robinson now appeals.        He contends the verdict is inconsistent, not

sustained by the evidence and contrary to law, and inadequate.

       II. Scope and Standards of Review.

       Our review of a district court’s ruling on a motion for a new trial depends

on the grounds raised in the motion. Channon v. United Parcel Serv., Inc., 629

N.W.2d 835, 859 (Iowa 2001).         When the motion and ruling are based on

discretionary grounds, our review is for abuse of discretion. Clinton Physical

Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609

(Iowa 2006). However, when the motion and ruling are based on a claim that the

district court erred on issues of law, we review for correction of errors of law. Id.

       Although the trial court generally has some discretion when faced with

inconsistent answers in a jury verdict, the question of whether the verdict is

inconsistent so as to give rise to the exercise of that discretion is a question of

law, and we therefore review the district court’s conclusion as to whether the

jury’s answers are inconsistent for correction of errors at law. Id. “Because the

sufficiency of the evidence presents a legal question, we review the trial court’s

ruling on this ground for the correction of errors at law.” Estate of Hagedorn ex
                                          7

rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004). A ruling on a motion

for new trial, as it pertains to the adequacy of a jury verdict, is reviewed for abuse

of discretion. Matthess v. State Farm Mut. Auto. Ins. Co., 521 N.W.2d 699, 702

(Iowa 1994).

       III. Discussion.

       In evaluating whether a verdict is inconsistent, we consider whether it “can

be reconciled in any reasonable manner consistent with the evidence and its fair

inferences, and in light of the instructions of the court.” Hoffman v. Nat’l Med.

Enters., Inc., 442 N.W.2d 123, 126-27 (Iowa 1989). If it cannot be reconciled

because it is so logically and legally inconsistent, the verdict will be set aside. Id.

at 127.

       In Cowan, the supreme court considered whether, in a personal injury

action, a verdict was inconsistent and inadequate where a jury had awarded past

and future medical expenses but did not award the plaintiff for loss of earning

capacity, loss of bodily function, or pain and suffering. 461 N.W.2d at 159. The

court stated there is not “an inflexible rule that every verdict awarding only

damages for medical expenses in a personal injury action is inadequate as a

matter of law.” Id. In evaluating prior case law, it found the grant or denial of a

new trial depends on whether the evidence on damages is disputed and whether

the evidence on the cause or extent of the injury is disputed. See id.

       Even though there was conflicting evidence as to Cowan’s damages and

injuries, the court determined the verdict was inconsistent, concluding:

       It is illogical to award past and future medical expense incurred to
       relieve headache, neck and back pain and then allow nothing for
       such physical and mental pain and suffering. Having determined
                                         8


      that these medical expenses were recoverable, there seems no
      way for the jury to disallow recovery for the appellant’s pain and
      suffering for the same injuries. Although the award may be
      adequate, a special verdict award of nothing for pain and suffering
      is inconsistent and unsupported by evidence.

Id. at 160. The supreme court reiterated these sentiments in Fisher v. Davis, 601

N.W.2d 54, 59 (Iowa 1999). The inconsistency in such a verdict occurs because

the jury’s award recognizes that an injury in fact took place yet denies in effect

that any pain and suffering took place. See Foggia v. Des Moines Bowl-O-Mat,

Inc., 543 N.W.2d 889, 892 (Iowa 1996).

      When a jury is asked to itemize damages into elements, each itemization

is a special jury finding that must be supported by substantial evidence. See

Matthess, 521 N.W.2d at 703. We find the jury’s itemization in this case is not

supported by substantial evidence, and an inconsistent verdict was rendered.

The jury determined that Shenandoah was partially at fault and a proximate

cause of some damage to Robinson.            In itemizing that damage, it awarded

Robinson the full amount he requested for past medical expenses, but awarded

nothing for his pain. This verdict is inconsistent because it identifies an injury

and pain caused by the defendant, but fails to compensate the plaintiff for the

pain stemming from the injury.

      Shenandoah argues the verdict is not inconsistent.               It suggests

Robinson’s medical care and treatment were for preventative and diagnostic

purposes only and not necessarily reflective of any pain resulting from the fall. If

the jury could have concluded from the evidence that the only damages caused

by Shenandoah’s negligence were the medical expenses incurred to determine

whether injuries resulted from the fall, we would be inclined to agree with
                                        9


Shenandoah.     But such is not the case.      To be sure, a reasonable jury,

particularly in light of the evidence of Robinson’s lack of credibility and prior

medical history, could find the medical expenses incurred for the X-ray, Dr.

McElderry’s services, and the MRI were diagnostic only and not necessarily

evidence of any pain Robinson experienced as a result of the fall. But the jury

also awarded Robinson the full amount of medical expenses incurred for physical

therapy.   It cannot be seriously argued that the physical therapy was for

diagnostic purposes only. The physical therapy treatments, consisting in part of

manual therapy, ultrasound, and cold packs, were for treatment of pain. The

physical therapy records specifically indicate one purpose of the treatment was to

“decrease pain”—an obvious recognition there was pain. We must therefore

conclude the jury awarded medical expenses for the treatment of pain but did not

allow any recovery for that pain.

       It was illogical for the jury to award Robinson medical expenses to treat

his pain and then allow nothing for the pain. Fisher, 601 N.W.2d at 59; Cowan,

461 N.W.2d at 160. Having determined the physical therapy expenses were

recoverable, there seems no way for the jury to disallow recovery for the pain

that necessitated the treatment. Although the jury’s award may be adequate, its

special verdict award of nothing for pain is inconsistent and unsupported by

evidence. Cowan, 461 N.W.2d at 160.

       We cannot reconcile the jury’s special findings and therefore must reverse

its verdict as to damages. We affirm its verdict as to liability. See Thompson v.

Allen, 503 N.W.2d 400, 401-02 (Iowa 1993) (ruling that a new trial was required

on the issue of damages but not on liability when there was no evidence that the
                                     10


jury’s determination of fault was compromised or affected by the evidence of

damages). Accordingly, we remand to the district court for a new determination

of damages.

      REVERSED AND REMANDED.
