                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1270
                             Filed October 24, 2018


WENDY HOLST,
    Plaintiff-Appellant/Cross-Appellee,

vs.

MICHAEL STAPLETON and MANSUR TRUCKING, INC.,
a Wisconsin Corporation,
      Defendants-Appellees/Cross-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      Plaintiff appeals the district court’s decision granting defendants’ motion for

judgment notwithstanding the verdict on the issue of future damages. Defendants

cross-appeal the court’s denial of the motion as to certain past medical expenses.

AFFIRMED ON THE APPEAL AND THE CROSS-APPEAL.



      Robert T. Rosenstiel and JohnPatrick Brown of Winstein, Kavensky &

Cunningham, LLC, Rock Island, Illinois, for appellant.

      Zachary J. Hermsen and Bernard L. Spaeth Jr. of Whitfield & Eddy, PLC,

Des Moines, for appellees.



      Heard by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Wendy Holst appeals the district court’s decision granting defendants’

motion for judgment notwithstanding the verdict on the issue of future damages.

Michael Stapleton and Mansur Trucking, Inc., cross-appeal the court’s denial of

the motion as to certain past medical expenses. We find Holst did not present

sufficient medical evidence to support a claim for future pain and suffering or future

loss of function or sufficient evidence to come within the exception to this

requirement, and we affirm the court’s grant of judgment notwithstanding the

verdict on this ground. On the cross-appeal, we conclude the district court did not

err in finding there was substantial evidence of causation, so the issue of past

medical expenses was properly submitted to the jury and the court did not err in

denying defendants’ motion for judgment notwithstanding the verdict on this

ground. We affirm the appeal and cross-appeal.

       I.     Background Facts & Proceedings

       On January 13, 2015, Holst was driving on the on-ramp to the Centennial

Bridge going from Davenport, Iowa, to Rock Island, Illinois, when she was rear-

ended by a hit-and-run driver, which caused some scratches to her car. She

testified she did not feel injured from the accident. Holst called 911 and stated she

was told to remain where she was until police officers arrived. She parked her car

as far to the right side of the road as she could and turned on her flashers.

       While Holst was waiting for police officers to arrive, Stapleton, driving a

tractor–trailer owned by Mansur Trucking, drove onto the on-ramp. Stapleton

attempted to drive around Holst’s vehicle but struck it. Holst testified the collision

caused “a big jolt.” There was damage to the rear driver’s side of Holst’s vehicle.
                                          3


Holst stated she did not feel any injuries immediately after the collision but by the

next day she had pain and stiffness.

       Holst saw Ben Kolner, a physician’s assistant, on January 16 and was

evaluated for pain in her neck, back, hip, and shoulder. She was “tearful and

upset” during the evaluation. Kolner told Holst she could “take a little more” of her

pre-existing prescriptions for Xanax and Tramadol, gave her a prescription for a

muscle relaxant, and told her she could see a chiropractor if she wanted.

       Holst had previously been treated for neck and back problems and had a

history of anxiety. In 2004, she was in a car accident and sought treatment for

back pain, neck pain, neck stiffness, arm and shoulder pain, and headaches. In

2006, Holst was rear-ended, causing neck pain, back pain, back stiffness, and

head pain. In 2008, Holst began taking medication for anxiety and depression. In

2012, she fell off a ladder, causing back pain. Holst received treatment for back

and neck pain from 2006 through November 2014.

       After the accident in January 2015, Holst continued to receive treatment for

hip, back, and neck pain. She had an MRI in May 2015; Dr. Timothy Millea found

“age-appropriate degenerative changes” in her spine. Dr. Millea diagnosed Holst

with bursitis in her right hip. On June 8, 2015, Holst told her primary care physician,

Dr. Jennifer Aanestad, the pain in her right hip had not resolved and this was

different than her back pain prior to the accident. Holst had physical therapy for

her hip from June to August. Holst periodically received an injection for hip pain

from Dr. Maruti Kari of the QCB Pain Clinic.

       On December 17, 2015, Holst filed a petition against Stapleton and Mansur

Trucking, claiming their negligence caused her damages. The case proceeded to
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a trial on May 1, 2017. Holst presented the deposition testimony of Dr. Aanestad,

as follows:

              Q. Based on your education, training, experience, treatment
       of Ms. Holst and examination of her on [February 2, 2015,] and the
       history that she gave you, did you formulate a diagnosis at that time?
       A. I did.
              Q. What was it? A. Cervical strain, low-back pain, anxiety.
              Q. And do you have an opinion, within a reasonable degree
       of medical certainty, whether those conditions were caused or
       aggravated by the motor vehicle collision? A. Yes. I think they were
       aggravated by the motor vehicle collision, yes.

       Dr. Aanestad examined Holst on June 8, 2015, and diagnosed her with

chronic right hip pain. In the deposition she testified:

              Q. Do you have an opinion, within a reasonable degree of
       medical certainty, whether her hip pain as of that day [June 8, 2015]
       was caused or aggravated by the motor vehicle collision with the
       semi? A. I have to say she had not complained of hip pain prior, so
       I would have to assume yes, because that had been an issue since.

When asked if she was “currently treating [Holst] for any conditions that were

aggravated by the collision with the semi,” Dr. Aanestad stated, “I do,” then

discussed Holst’s anxiety, which she stated was “worsened after the accident,” and

pain management, for which she saw Dr. Kari.

       Dr. Aanestad was asked, “Do you think she suffered a permanent injury as

a result of the collision with the semi,” and she stated, “I don’t know that I can

comment on that.” The deposition continued:

              Q. What treatment do you recommend going forward? A. I
       think she needs to continue with physical therapy intermittently. That
       might be something. The pain clinic, I think injections have maybe
       decreased in frequency, but that might be something that will
       intermittently need to continue depending on her response to
       treatment.
              At this juncture it doesn’t look like anything surgical, so I don’t
       know that that’s something we need to be concerned about.
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       Dr. Aanestad also testified:

               Q. Are you able to say, to a reasonable degree of medical
       certainty, that the accident caused this hip pain? A. With certainty?
       No, I can’t say with certainty.
               Q. Okay. Do you think the accident caused this hip pain? A.
       I don’t know.

       Defendants’ medical expert, Dr. Ricky Garrels, testified he reviewed Holst’s

medical records and did not believe, to a reasonable degree of medical certainty,

the collision caused Holst any back, neck, or hip pain. Dr. Garrels also testified he

did not believe the accident caused Holst’s problems with anxiety.

       At the close of the evidence, defendants made a motion for a directed

verdict for all future damages, claiming Holst had not presented substantial

evidence to support an award of future damages. The district court ruled:

                Over the lunch hour I thought about the Defendants’ motion
       for directed verdict with regard to future pain and suffering and future
       loss of function of the mind and body. It’s a very, very close question
       and Plaintiff’s evidence is very thin to say the least but I have
       decided, of course, under the applicable standard I need to afford the
       nonmoving party every legitimate inference from the evidence, I’ve
       decided to deny Defendants’ motion. Dr. Aanestad—frankly I’ll tell
       you right up front, I’m not sure I’m making the right decision here
       but—especially in view of the fact that Dr. Aanestad said that she
       couldn’t comment on whether or not she suffered a permanent injury
       but her deposition testimony was somewhat equivocal in that she did
       testify that she was still treating her for conditions that were
       aggravated by the collision.
                She did testify that she referred her to a pain clinic, it was
       reasonable for her to start treatment with the pain clinic. She did
       testify that she felt that she’s currently treating her for the anxiety that
       was—that she believed was aggravated from the collision and she
       did say it was an ongoing issue and it’s extraordinarily thin and I’m
       not sure I’m making the right decision, but at this point I’ll let the jury
       consider this claim.

       The jury returned a verdict finding Stapleton was 100% at fault in the

collision and his fault was a proximate cause of damages to Holst. The jury
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awarded Holst damages of $10,275.31 for property damage; $15,607.09 for past

medical expenses; $25,000 for past pain and suffering; $25,000 for past loss of

function of the mind and body; $75,000 for present value of future loss of function

of the mind and body; and $75,000 for present value of future physical and mental

pain and suffering. The total amount of damages was $225,882.40.

      Defendants filed a motion for judgment notwithstanding the verdict, claiming

there was not sufficient evidence to support the award of damages for future pain

and suffering, future loss of function, or past medical expenses incurred after

May 7, 2015. Holst resisted the motion, stating the court should permit the jury’s

verdict to stand as there was substantial evidence in the record to support the

verdict. Defendants replied to the resistance.

      The district court granted the motion for judgment notwithstanding the

verdict on the issue of future damages, finding:

      Plaintiff failed to meet her burden of producing substantial evidence
      within a reasonable degree of medical certainty to support her claims
      for future pain and suffering, future loss of function or the causal
      connection of those alleged injuries to the accident at issue. Holst
      failed to produce testimony from her own treating physician or any
      other medical expert to support her claim for future damages.

The court denied the motion with respect to past medical expenses, finding

defendants “did not successfully delineate at trial and have not successfully

delineated in post-trial motions which medical treatments after May 7, 2015, were

or were not related to hip pain.” Based on the court’s ruling, the total award of

damages to Holst was reduced to $75,882.40. Holst now appeals.
                                          7


       II.     Standard of Review

       We review a district court’s ruling on a motion for judgment notwithstanding

the verdict for correction of errors at law. Thornton v. Am. Interstate Ins. Co., 897

N.W.2d 445, 460 (Iowa 2017). “Our role is to decide whether there was sufficient

evidence to justify submitting the case to the jury when viewing the evidence in the

light most favorable to the nonmoving party.” Smith v. Iowa State Univ., 851

N.W.2d 1, 18 (Iowa 2014). “Evidence is substantial if a jury could reasonably infer

a fact from the evidence.” Winger v. CM Holdings, LLC, 881 N.W.2d 433, 445

(Iowa 2016). “We review the evidence in the light most favorable to the nonmoving

party.” Dinsdale Constr., LLC v. Lumber Specialties, Ltd., 888 N.W.2d 644, 649

(Iowa 2016).

       III.    Future Damages

       Holst claims the district court erred by granting the defendants’ motion for

judgment notwithstanding the verdict on the issue of damages for future pain and

suffering and future loss of function.

       In general, “[e]xpert testimony is often necessary to establish future physical

pain and suffering.” DeBurkarte v. Louvar, 393 N.W.2d 131, 140 (Iowa 1986). “It

is well known that a showing of reasonable medical certainty is a predicate for

recovery for future physical consequences.” Wilber v. Owens-Corning Fiberglas

Corp., 476 N.W.2d 74, 77 (Iowa 1991).

       The district court found Holst did not provide expert testimony to show with

a reasonable degree of medical certainty she would suffer future pain and suffering

or loss of function as a result of the collision. When Dr. Aanestad was asked, “Do

you think she suffered a permanent injury as a result of the collision with the semi,”
                                           8


she answered, “I don’t know that I can comment on that.” Also, when discussing

future medical treatment, Dr. Aanestad testified Holst “might” need to continue with

physical therapy and “might” need to continue with the pain clinic. Dr. Aanestad

testified Holst had “some fluctuations from an anxiety standpoint.” We find no error

in the court’s conclusion Dr. Aanestad did not testify with a reasonable degree of

medical certainty Holst would have future damages as a result of the accident with

Stapleton.

       There is an exception to the general rule requiring expert testimony for

future medical damages. “In Iowa, when pain is suffered right up to the time of trial

and there is evidence plaintiff has not fully recovered, future pain and suffering

may be submitted to the jury without medical testimony.” Mabrier v. A.M. Servicing

Corp., 161 N.W.2d 180, 183 (Iowa 1968); see also DeBurkarte, 393 N.W.2d at

140. The Iowa Supreme Court has stated:

       An express allegation of future pain and suffering is not required
       where it is alleged the injury is permanent, it is such that future pain
       is reasonably certain to follow and there is a general allegation of
       damages. Where, however, the allegations of the injury are not such
       as to indicate it is likely to cause future pain and suffering, or any
       such inference is negatived by allegations of the several elements of
       damage, future pain and suffering should not be taken into
       consideration.
               ....
               While no expert testifies there would be pain and suffering in
       the future there is evidence plaintiff was seriously injured and was
       still suffering from her injuries at the time of trial. . . . “Where the
       evidence tends to show that plaintiff has suffered severe pain right
       up to the time of the trial, and that she had not then yet fully recovered
       from the injury, future pain and suffering may rightly be submitted.”

Arenson v. Butterworth, 54 N.W.2d 557, 563 (Iowa 1952) (citation omitted); see

also Franken v. City of Sioux Center, 272 N.W.2d 422, 429 (Iowa 1978).
                                            9

       As set out in Arenson, the exception applies when a plaintiff has a

permanent, severe, serious injury and the injury is one that will likely cause future

pain and suffering. 54 N.W.2d at 563. In order to prove such an injury, “[t]he mere

statement by the plaintiff that she still suffers pain is not sufficient per se to warrant

a finding that there will be any future pain or physical suffering because of her

injuries.” Daniels v. Bloomquist, 138 N.W.2d 868, 873 (Iowa 1965). Where “the

symptoms from which personal injury may be inferred are subjective only,” and

plaintiff presents no medical testimony to establish future pain and suffering or

permanent injury are “reasonably certain,” the trial court need not instruct the jury

on this element of damages. Id.

       Dr. Aanestad did not testify Holst suffered a permanent injury as a result of

the collision with the semi instead stating, “I don’t know that I can comment on

that.” On the issue of the severity and seriousness of Holst’s injuries, the district

court found:

       The court finds Holst’s injuries are not so severe as to justify applying
       the exception to the general rule requiring expert medical testimony
       to support future damages. There was scant objective evidence at
       trial that Holst suffered any injuries due to the accident with
       defendant. There was no fracture, swelling, scratches, cuts or
       bruises. There was some muscle spasm observed shortly after the
       accident.

The court concluded, “Plaintiff’s damages here do not come close to the level of

severity necessary to dispense with the requirement for expert medical testimony.”

Also, because there was not sufficient evidence to show Holst’s injuries were

permanent, severe, and serious, there was not sufficient evidence her injuries were

“such that future pain is reasonably certain to follow.” See Arenson, 54 N.W.2d at

563. We conclude the district court did not err in its conclusion Holst did not
                                         10


present sufficient evidence to show her claim for future damages came within the

exception to the requirement to show with a reasonable degree of medical certainty

she would suffer future pain and suffering or loss of function as a result of the

collision.

       In general, the court should not substitute its judgment for the jury’s verdict

as to the amount of damages. See Fredrickson v. Heline, 106 N.W.2d 74, 77 (Iowa

1960) (noting the determination of damages is primarily for the jury and ordinarily

a court should not substitute its judgment for that of the jury). On the issue of

damages, as “the jury is a more appropriate judge of questions of fact, we will not

disturb its findings unless they lack substantial support in the record.” Vaughan v.

Must, Inc., 542 N.W.2d 533, 540 (Iowa 1996). Where there is not substantial

evidence in the record to support each element of a claim, however, a motion for

judgment notwithstanding the verdict should be granted. Spreitzer v. Hawkeye

State Bank, 779 N.W.2d 726, 734 (Iowa 2009).

       Holst did not present sufficient medical evidence to support a claim for

future pain and suffering or future loss of function or sufficient evidence to come

within the exception to this requirement, and we affirm the court’s grant of judgment

notwithstanding the verdict on this ground. There was not sufficient evidence to

justify submitting the issue of future damages to the jury, even when viewing the

evidence in the light most favorable to Holst. See Smith, 851 N.W.2d at 18.

       The district court additionally found Holst had not presented sufficient

evidence to show the collision was the cause of future pain and suffering or loss

of function. Due to our conclusions on the issue of the sufficiency of the medical
                                         11


testimony supporting the claim for future damages, we do not further address the

issue of causation evidence in relation to future damages.

       IV.    Past Medical Expenses

       On cross-appeal, defendants claim the district court should have granted

their motion for judgment notwithstanding the verdict on the issue of Holst’s

medical expenses incurred after May 7, 2015. Defendants state all of Holst’s

medical bills after this date relate to treatment for her right hip and she failed to

prove the problems with her hip were caused by the collision with Stapleton.

       A plaintiff has the burden of proving a defendant’s negligence caused the

plaintiff’s injury by a preponderance of the evidence.       Crow v. Simpson, 871

N.W.2d 98, 106 (Iowa 2015). “A party’s conduct is the proximate cause of a

plaintiff’s injury ‘when it is a substantial factor in producing damage and when the

damage would not have happened except for the conduct.’” Kinseth v. Weil-

McLain, 913 N.W.2d 55, 75 (Iowa 2018) (citation omitted). Similarly, “[i]f the

plaintiff would have suffered the same harm had the defendant not acted

negligently, the defendant’s conduct is not a cause in fact of the harm.” Berte v.

Bode, 692 N.W.2d 368, 372 (Iowa 2005).

       In her deposition, Dr. Aanestad testified,

             Q. And do you have an opinion, within a reasonable degree
       of medical certainty, whether those conditions were caused or
       aggravated by the motor vehicle collision? A. Yes. I think they were
       aggravated by the motor vehicle collision, yes.

She also testified:

             Q. Do you have an opinion, within a reasonable degree of
       medical certainty, whether her hip pain as of that day [June 8, 2015]
       was caused or aggravated by the motor vehicle collision with the
                                        12


       semi? A. I have to say she had not complained of hip pain prior, so
       I would have to assume yes, because that had been an issue since.

These statements provide substantial evidence to support a finding Holst’s injuries,

resulting in past medical expenses, were caused by the collision with Stapleton.

       We recognize Dr. Aanestad also made some conflicting statements, as

follows:

               Q. Are you able to say, to a reasonable degree of medical
       certainty, that the accident caused this hip pain? A. With certainty?
       No, I can’t say with certainty.
               Q. Okay. Do you think the accident caused this hip pain? A.
       I don’t know.

       “Causation is ordinarily a jury question.” Garr v. City of Ottumwa, 846

N.W.2d 865, 870 (Iowa 2014). “Because the issues of negligence and causation

are questions for the jury, we will decide these issues as a matter of law only in

exceptional cases.” Crow, 871 N.W.2d at 105. Where evidence is conflicting, it is

a jury’s duty to evaluate the evidence. Revere Transducers, Inc. v. Deere & Co.,

595 N.W.2d 751, 764 (Iowa 1999). “[T]he jury is free to accept or reject any

testimony, including uncontroverted expert testimony.” Crow, 871 N.W.2d at 105.

       We conclude the district court did not err in finding there was substantial

evidence of causation, so the issue of past medical expenses should be submitted

to the jury. The court did not err in denying defendants’ motion for judgment

notwithstanding the verdict on this ground.

       We affirm the district court’s decision on the appeal and the cross-appeal.

       AFFIRMED ON THE APPEAL AND THE CROSS-APPEAL.
