                         NOT DESIGNATED FOR PUBLICATION

                                            No. 120,043

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         JERRY BENNING,
                                            Appellant,

                                                  v.

                                       CHRISTINA PALMER,
                                           Appellee.


                                  MEMORANDUM OPINION

       Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed April 17,
2020. Affirmed.


       Atif Abdel-Khaliq, of McIntosh Law Offices, of Kansas City, for appellant.


       Emily A. Yessen and Brette S. Hart, of Harris & Hart, LLC, of Overland Park, for appellee.


Before BRUNS, P.J., MALONE and GARDNER, JJ.


       PER CURIAM: Christine Palmer admitted fault for having rear-ended Jerry
Benning's car, but she disputed the amount of damages. At trial, the jury returned less
than the full amount of medical expenses that Benning sought. Benning moved for a new
trial, arguing the verdict was contrary to the evidence. But the district court denied his
motion. Benning appeals that denial, arguing the verdict was contrary to the evidence
because the jury arbitrarily disregarded uncontroverted and trustworthy evidence. We
find the evidence supports the verdict, as it raised doubt about the reasonableness and
necessity of some of Benning's medical expenses.



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       Benning also argues the jury gave the verdict under the influence of prejudice as a
result of Palmer's counsel's closing arguments. The closing argument was not improper.
Thus, the district court did not abuse its discretion in denying the motion for a new trial.


Factual and Procedural Background


       In July 2016, Christina Palmer rear-ended Jerry Benning's car when he was
waiting at a stoplight. After Benning was helped out of his car, an ambulance took him to
the Emergency Room (ER). The ER physician diagnosed Benning with muscle strain of
the neck and a post-traumatic headache, and a CT scan showed no acute traumatic
findings of the cervical spine. Although Benning still complained of pain, the hospital
released him within three hours.


       A month later, Benning started treatment with Dr. Kyle Janssen, a chiropractor at
Kansas Spine Center. Benning complained of neck and lower back pain and stiffness that
arose after the accident. Dr. Janssen diagnosed Benning with muscle strain, functional
impairment, and pain in the neck and back. Dr. Janssen's treatment consisted of
chiropractic adjustments, low-level laser therapy, electrical muscle stimulations,
cryotherapy, and spinal decompressions. During this time, Benning fell at home and
landed on his back, causing additional soreness. After two months at Kansas Spine
Center, because Benning showed little signs of improvement and his pain persisted, Dr.
Janssen referred him to The Center for Manual Medicine for physical therapy.


       At the Center for Manual Medicine for physical therapy, Benning engaged in
therapeutic exercise, gait training, manual therapy, spinal traction, electric stimulation
and ultrasound. This treatment lasted about two months. Yet Benning's neck and back
pain did not subside.




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       In April 2017, Benning sued Palmer for negligence, asking for damages over
$50,000. In her answer, Palmer admitted fault, but contested damages.


       During litigation, Benning visited Dr. S. Katta, a specialist in physical medicine
and rehabilitation. Dr. Katta identified several of Benning's conditions that pre-existed
the automobile accident:


   • Degenerative disk disease of the cervical and lumbar vertebrae;
   • Degenerative joint disease of the cervical and, probably, lumbar vertebrae;
   • Diabetic peripheral neuropathy;
   • Arthritis in his neck and back joints;
   • Frozen left shoulder;
   • Probable associated ulnar nerve compression neuropathy at the elbow; and
   • Degenerative joint disease in his knees.


These conditions are known to cause pain, stiffness, and tingling. Dr. Katta did not see
any clinical evidence of a pinched nerve. As to the auto accident, Dr. Katta's diagnosis
was a "cervical, thoracic, and lumbar sprain superimposed on degenerative disk disease
and degenerative joint disease of [the] cervical and . . . probably [of the] lumbar
vertebrae." Dr. Katta agreed that the muscle sprains would typically heal on their own
within six to eight weeks. Although Benning's pain was chronic, Dr. Katta could not say
if the muscle sprains would be permanent as a result of the car accident. Portions of Dr.
Katta's deposition were played to the jury at trial.


       At trial, Benning testified to several other injuries. In 1970, Benning had neck and
back pain, but everything had "healed up." In 2005, he slipped on ice and injured his head
and shoulder. As a result, he started using a cane a few times a month. After the accident
with Palmer, however, he used the cane every day to deal with the pain in his lower back.


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In 2015, Benning had his gallbladder removed. In December 2017—after Dr. Katta had
seen him—Benning had a spike in pain after someone backed into his car.


       Benning presented the following medical bills, totaling $12,798.96:


   • American Medical Response (AMR): $946.41
   • Emergency Room, including CT scans of head and cervical spine: $4,463.55
   • ER physician and physician's assistant: $614.00
   • Radiologist: $397.00
   • Kansas Spine Center LLC (Dr. Janssen): $4,938.00
   • The Center for Manual Medicine: $1,440.00


       When testifying at trial, Dr. Janssen stated he believed the treatment from both
Kansas Spine Center and The Center for Manual Medicine was reasonable and necessary.
Dr. Janssen also believed Benning suffered permanent injury to his back and neck
because of the July 2016 accident. Yet he admitted that he did not know Benning's
baseline condition before his accident with Palmer.


       The jury awarded Benning $7,246.96 in medical expenses and $2,853.04 in non-
economic damages, totaling $10,100.


       Benning moved for a new trial. Benning's sole argument was that "the jury verdict
manifests disregard for the Court instructions." He asserted that because Palmer did not
present any evidence challenging the total medical bills, the jury "did not have an
alternative to returning medical expenses for Mr. Benning in the amount of $12,798.96."
He alleged that the jury's erroneous damages finding was based on counsel's statement
during closing arguments that they could ignore some of his medical bills.




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         The district court denied Benning's motion, stating, "the jury followed the court's
instructions. It considered all of the evidence presented. It assigned appropriate weight.
Counsel for Defendant did not make any inappropriate argument. The jury's verdict was
not contrary to the evidence."


         Benning timely appeals.


Did the District Court Abuse its Discretion in Denying Benning's Motion for a New
Trial?


         Dissatisfied with the verdict, Benning now asks this court to grant him a new trial.
K.S.A. 2019 Supp. 60-259(a)(1) provides that a district court may grant a motion for a
new trial for six reasons. Benning asserts two here: "the verdict, report or decision was
given under the influence of passion or prejudice" and "the verdict, report or decision is
in whole or in part contrary to the evidence." K.S.A. 2019 Supp. 60-259(a)(1)(C), (D).
Benning argues that the verdict was contrary to the evidence because the jury arbitrarily
ignored uncontroverted evidence and that the verdict was given under the influence of
prejudice because Palmer's counsel's statements encouraged it.


Standard of Review

         The decision to grant a motion for a new trial is within the district court's
discretion. K.S.A. 2019 Supp. 60-259(a). Thus, we will not disturb the district court's
ruling on a motion for new trial unless the district court abused its discretion. City of
Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007). A judicial action
constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is
based on an error of law; or (3) it is based on an error of fact. Biglow v. Eidenberg, 308
Kan. 873, 893, 424 P.3d 515 (2018). The party asserting error bears the burden of



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showing such abuse of discretion. Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461
(2017).


       The Jury's Verdict was not Contrary to the Evidence.


       Benning first argues the district court erred by finding the verdict was not contrary
to the evidence. Benning contends the jury arbitrarily ignored uncontroverted evidence
when it refused to award the total amount of medical expenses. Benning asserts that the
jury arbitrarily refused to pay Dr. Janssen's bill and the ER physician's bill. In Benning's
view, these medical bills were uncontroverted because Palmer "presented no evidence
against any of the bills, nor argued against the reasonableness or necessity of any amount
presented by the appellant." Benning contends that because no evidence showed Dr.
Janssen's testimony, which affirmed the reasonableness and necessity of the medical
expenses, was untrustworthy or unreliable, the jury had to award the full amount of
medical expenses.


       Standard of Review for Sufficiency of Jury Verdict Evidence


       When a party challenges a jury verdict as being contrary to the evidence, it is not
the function of an appellate court to weigh the evidence or pass on the credibility of the
witnesses. If the evidence, when considered in the light most favorable to the prevailing
party, supports the verdict, the appellate court should not intervene. Unruh v. Purina
Mills, 289 Kan. 1185, 1195, 221 P.3d 1130 (2009).


       Analysis

       The plaintiff bears the burden of proving damages in a negligence action. And the
trier of fact determines, based upon the evidence, the amount of compensatory damages
the plaintiff receives. Cerretti v. Flint Hills Rural Electric Co-op. Ass'n, 251 Kan. 347,

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362, 837 P.2d 330 (1992). Compensatory damages include the cost of medical care. See
Shirley v. Smith, 261 Kan. 685, 693, 933 P.2d 651 (1997) (categorizing medical expenses
as economic damages).


       "Kansas courts do not reflexively order liable defendants to pay the full amount
billed by the health care providers to injured plaintiffs." Martinez v. Milburn Enterprises,
Inc., 290 Kan. 572, 598, 233 P.3d 205 (2010); see K.S.A. 40-3117 (in vehicle-related tort
actions "the charges actually made for medical treatment expenses shall not be conclusive
as to their reasonable value"). Instead, the value of damages is based on the reasonable
expense of treatment and the necessity of the treatment in relation to the defendant's
negligence. See Martinez, 290 Kan. at 598 ("Kansas courts instead have typically based
the value of damages on the reasonable expense of treatment."); Furstenberg v. Wesley
Medical Center, 200 Kan. 277, 283, 436 P.2d 369 (1968) (stating, even though expenses
were uncontroverted, the jury could question the reasonableness or accuracy of the
amounts); Lewark v. Parkinson, 73 Kan. 553, 555-56, 85 P. 601 (1906) (damages
awarded for reasonable and necessary services); PIK Civ. 4th 171.02 (2016 Supp.)
(recoverable medical expenses include "reasonable expenses of necessary medical care");
22 Am. Jur. 2d, Damages § 183. The trier of fact also determines the reasonableness and
necessity of medical expenses. Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110
(1982).


       The defendant has a right to challenge the reasonableness and necessity of the
plaintiff's medical expenses. See Martinez, 290 Kan. at 598. For vehicle-related tort
actions, this right is codified in K.S.A. 40-3117. This statute allows for the admission of
evidence that the reasonable value of medical expenses was different from the actual
amount charged. Evidence of this nature "typically has been admitted through cross-
examination of plaintiff's witnesses, by direct examination of defendant's witnesses, or
both." 290 Kan. at 599; see Pope v. Ransdell, 251 Kan. 112, 123, 833 P.2d 965 (1992)
(stressing the importance for the opportunity to cross-examine expert witnesses).
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       Benning is correct that Palmer did not present any alternate billings or dispute the
charged amount of medical expenses. Still, the evidence of their reasonableness and
necessity was controverted through Palmer's cross-examination. We look at the evidence
in the light most favorable to Palmer. See Unruh, 289 Kan. at 1195.


       First, the evidence showed Benning had pre-existing conditions. So the jury had to
decide whether Benning's medical expenses were caused by the car accident or were, in
part, caused by his pre-existing conditions. The witnesses spoke of the prolonged
deterioration of Benning's body. Benning's work was asbestos, lead, and hazardous waste
removal and demolition. He has carpal tunnel, hypertension, diabetes, and degenerative
disk and joint diseases of the neck and spine, which can cause chronic pain. His neck and
back problems began in 1970. In 2005, he slipped, hit his head, and developed a frozen
shoulder. Since then, he has used a cane to help him walk. Benning also fell on his back
within three months of the accident here.


       Second, the diagnosis after the accident did not reveal major damage. Benning was
able to remove himself from his car with help. AMR's assessment of Benning revealed no
trauma. The ER physicians did not find any acute traumatic damage to the cervical spine,
and the hospital released him after a short time.


       Third, Dr. Katta did not clearly attribute most of Benning's conditions to the
accident. Dr. Katta believed Benning suffered muscle sprains in his back and neck as a
result of the accident. These sprains usually heal within six to eight weeks. But Benning
had pre-existing degenerative diseases. So it is possible the accident could have
aggravated Benning's pre-existing condition. But Dr. Katta could not say this. He could
not state whether Benning's muscle sprain had healed itself and Benning suffered only
from preexisting degenerative condition or whether the accident had permanently
aggravated Benning's degenerative condition. He also could not say the muscle sprains
were permanent. Dr. Katta did not have an objective picture of Benning's health before
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and after the accident so he could not tell if the accident had worsened Benning's
condition.


       Fourth, although Dr. Janssen opined that the accident caused permanent damage,
other evidence showed his opinion may not have been wholly reliable. See Cerretti, 251
Kan. at 363 (stating jury is not bound by expert testimony and may determine how much
weight to accord it); Beard v. Montgomery Ward and Co., 215 Kan. 343, 348, 524 P.2d
1159 (1974) (stating while a trier of fact may not arbitrarily refuse to consider the
testimony of any witness, it is not obligated to give effect to any evidence which, in its
honest opinion, is unreliable, even if such evidence be uncontradicted). Like Dr. Katta,
Dr. Janssen did not know Benning's baseline before the accident. And Dr. Janssen is not a
medical doctor, but a chiropractor. No evidence was presented concerning Dr. Janssen's
training or ability to give a medically accurate diagnosis or prognosis or to correctly read
CT scans. And, as to his diagnosis of pain, Dr. Janssen admitted that his goal is not to
contest whether the patient is in pain, but to help improve it. Although Dr. Janssen
believed his treatment and the physical therapist's treatment were necessary and
reasonably charged, based on the evidence above, the jury could reasonably doubt his
testimony.


       Benning objects to Palmer's line of questioning about the scope and stature of Dr.
Janssen's profession as a chiropractor. Benning asserts that these questions invited the
jury to be arbitrary and capricious and show unwarranted prejudice against a legally
accepted field of healing. Yet, Benning failed to object to this line of questioning at trial,
so we shall not address that objection on appeal. See Foster v. Stonebridge Life Ins. Co.,
50 Kan. App. 2d 1, 25, 327 P.3d 1014 (2012) (stating K.S.A. 60-404 generally precludes
an appellate court from reviewing an evidentiary challenge absent a timely and specific
objection made on the record).




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        The evidence, viewed in the light most favorable to Palmer, supports the jury’s
finding that Benning's reasonable and necessary medical expenses were less than he
requested. See Stubbs v. Potocnik, No. 106,934, 2012 WL 1970252, at *6-7 (Kan. App.
2012) (unpublished opinion) (stating the jury could reasonably have awarded less than
the submitted medical bills).


        The Verdict was not Given Under the Influence of Passion or Prejudice.


        Next, Benning argues that Palmer's counsel made improper statements in closing
argument that made the jury verdict prejudicial and decided without reason.


        Benning did not object at trial to any statements made during closing argument.
But we may review on appeal a claim of prosecutorial error based on comments made
during voir dire, opening statements, or closing argument even when, as here, no
contemporaneous objection was made at the trial level. State v. Anderson, 294 Kan. 450,
461, 276 P.3d 200 (2012); see State v. McBride, 307 Kan. 60, 64-65, 405 P.3d 1196
(2017) (statements during closing argument). We apply that same rule here, in a civil
case.


        But under K.S.A. 2019 Supp. 60-259(c), alleged errors must be stated specifically
in the motion for a new trial. State v. Zimmerman, 251 Kan. 54, 67, 833 P.2d 925 (1992).
See Walston v. Piquard, No. 97,805, 2008 WL 4291475, at *7 (Kan. App. 2008)
(unpublished opinion) (considering only the grounds stated in the motion for new trial).
Issues not raised before the district court cannot be raised on appeal. Wolfe Electric, Inc.
v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).


        Benning's motion for a new trial cites only K.S.A. 2019 Supp. 60-259(a)(1)(D)—
that the verdict is contrary to the evidence. Benning argued to the district court that
Palmer's counsel's improper statements during closing argument caused the jury to reach
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a verdict contrary to the evidence. We have resolved that issue above. Yet we have also
reviewed the closing arguments and agree with the district court that they were not
improper.


       The district court did not abuse its discretion in denying Benning's motion for a
new trial.


Affirmed.




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