                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1923
                                Filed April 22, 2015

ROBERT REED and PATRICIA
REED,
     Plaintiffs-Appellants,

vs.

MICHELLE LYNN SCHAEFFER
and RICHARD SCHAEFFER,
      Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.



      Personal-injury plaintiffs appeal the district court’s denial of their motion for

new trial. AFFIRMED.



      Ted E. Breckenfelder of Breckenfelder Law Firm, Davenport, for

appellants.

      Martha L. Shaff and Amanda M. Richards of Betty, Neuman & McMahon,

P.L.C., Davenport, for appellees.



      Heard by Tabor, P.J., and Bower and McDonald, JJ.
                                            2



TABOR, P.J.

       Robert and Patricia Reed were hospitalized after Michelle Schaeffer, who

was operating while intoxicated, collided with their car. After a trial in which

Schaeffer stipulated fault and the Reeds did not present any expert medical

testimony, the jury awarded the Reeds compensatory damages and nominal

punitive damages. On appeal, the Reeds raise numerous issues based on the

district court’s denial of their post-trial motions.

       We decline to grant relief on any of their issues. First, because the Reeds

did not present evidence from a toxicologist on the effect of Schaeffer taking a

prescription drug the night before the collision, the district court did not abuse its

discretion in excluding this speculative evidence.      Similarly, the court did not

abuse its discretion in excluding a police car video as a discovery sanction. We

also uphold the district court’s ruling denying the Reeds’ motion for a new trial

based on allegedly inadequate damages. Defense counsel’s statements during

closing argument were not false, nor did they misstate the record. Assuming

error was preserved on the issue of future damages, we uphold the district

court’s determination expert testimony was required before future damages could

be submitted to the jury.

       Finally, two of the Reeds’ claims cannot be considered on appeal. The

Reeds’ counsel acknowledges his failure to object to the PowerPoint

presentation during closing argument; therefore, he did not preserve this issue

for our review. Also, because the Reeds first requested the court appoint a
                                             3



special master on jury-related issues in their post-trial motions, they waived any

claim of error by waiting until after trial to raise this issue.

       I. Background Facts and Proceedings

       While her blood-alcohol concentration was .09, Michelle Schaeffer ran a

stop sign at a Bettendorf intersection and collided with a car driven by Patricia

Reed in which her husband Robert was a passenger. The Reeds, who were in

their 70s at the time of the incident in April 2010, required treatment at a local

hospital: Patricia for one day and Robert for three days. Both Robert and Patricia

testified to experiencing considerable pain as a result of their injuries sustained in

the collision.    In April 2012 the Reeds filed a negligence action seeking

compensatory and punitive damages.1

       Schaeffer answered. Also in April 2012, she propounded interrogatories

and a request for production of documents. When discovery did not proceed

smoothly, Schaeffer filed a motion to compel in October 2012. On October 23,

2012, the court granted the motion and ordered the Reeds to “fully respond to all

outstanding discovery requests on or before November 9, 2012.” The court also

stated the Reeds’ failure to comply “shall” result in sanctions, “which can

include . . . prohibiting them from [presenting] any evidence at trial.” Thereafter,

despite the court’s order, the Reeds failed to fully respond to Schaeffer’s

discovery requests. The court set trial for September 2013.

       In August 2013 Schaeffer filed motions in limine. On September 5, 2013,

Schaeffer filed a stipulation acknowledging fault and admitting as a result of the


1
  The Reeds’ petition was filed against driver Michelle Schaeffer and vehicle-owner
Richard Schaeffer. For convenience, we will refer only to Michelle Schaeffer.
                                            4



collision she was convicted of operating while intoxicated (OWI), first offense.

On September 6, 2013, the court ruled on Schaeffer’s motions in limine. Noting

the Reeds had been ordered to provide answers to outstanding discovery by

November 9, 2012, the court prohibited the Reeds from “introducing into

evidence any testimony, information, or other evidence that was sought by”

Schaeffer but not disclosed.          Regarding unanswered discovery requests

concerning the Reeds’ medical records, the court prohibited the Reeds “from

admitting into evidence any medical records or expert testimony with the

exception of reference to records that were turned over to” Schaeffer or

“information supplied” to Schaeffer. “This does not preclude [the Reeds] from

talking about their own injuries that they have suffered.”2 As to medical records

after the Reeds’ initial hospital visits, the court prohibited the Reeds from

introducing any testimony, information, or other evidence that was sought by

[Schaeffer’s] interrogatories or requests for production of documents but not

produced.” The court did not exclude discovery the Reeds had, in fact, “provided

after November 9, 2012, but prior to the filing of the motion in limine.”

       A jury trial commenced on September 9, 2013.                 The parties jointly

stipulated to medical expenses: (1) from April 15 to April 18, 2010, Robert Reed

incurred paid medical expenses of $22,569.60; and (2) from April 15 to April 16,



2
  The court also prohibited the Reeds “from offering any testimony concerning the nature
and extent of permanency of their own conditions, as they do not have the medical
expertise required to render said opinions.” Regarding expert opinions that the Reeds
failed to disclose thirty days before trial, the Reeds told the court, “No expert opinions
are presently expected.” The court then ruled the issue was moot, but if the Reeds
reversed course and elected to call an expert, then the issue would be resolved by the
trial court.
                                           5



2010, Patricia Reed incurred paid medical expenses of $17,489.41. The Reeds

and their two sons testified at trial. The Reeds also presented the testimony of

police officers Richard Streepy and Jeremy Salsberry.            The jury returned a

verdict awarding Robert Reed $30,069.60 in compensatory damages3 and $1.00

in punitive damages and awarding Patricia Reed $19,989.41 in compensatory

damages4 and $1.00 in punitive damages.              The Reeds filed two post-trial

motions: the first seeking adequate judgment (notwithstanding verdict) and a new

trial, and the second asking for appointment and reference to a master. The

court denied the motions, and this appeal followed.5

       II. Standards of Review

       “We review a district court’s evidentiary rulings for an abuse of discretion.”

Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014). Our review of the

district court’s denial of the Reeds’ motion for new trial depends upon the

grounds asserted in the motion. Clinton Physical Therapy Servs., P.C. v. John

Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). If the motion and

ruling are based on a discretionary ground, review is for an abuse of discretion.

Id. On the other hand, if the motion’s grounds for new trial are based on a claim

the district court erred on an issue of law, review is for legal error. Id.




3
  The verdict form lists $22,569.60 in past medical expenses, $6500 in past pain and
suffering, and $1000 in past loss of function of body.
4
  The verdict form lists $17,489.41 in past medical expenses, $1500 in past pain and
suffering, and $1000 in past loss of function of body.
5
  In her brief, Schaefer asks us to dismiss this appeal based on the Reeds’ failure to
meet appellate deadlines. Because our supreme court denied Schaefer’s motion to
dismiss, we need not address the issue.
                                         6



      III. Exclusion of Evidence of Schaeffer’s Prescription Medications

      The Reeds contend the district court should have granted their motion for

new trial based on the court’s exclusion of evidence concerning Schaeffer’s

prescription medications.    Schaeffer told the investigating officer she had

prescriptions for Paxil and Xanax, and she had taken Paxil at 7:00 the prior

evening but had not taken any Xanax. On appeal, the Reeds contend “the most

probative   conduct   warranting    punitive   damages      included   [Schaeffer’s]

admissions to police” about these medications. Therefore, “but for the blanket

prohibition of evidence of drug use with alcohol, such minimization of conduct

and $1 each punitive responsibility could not have occurred.”

      Before the officers testified, Schaeffer objected and renewed her motion in

limine regarding prescription drugs, stating “without any testimony from a

toxicologist or some medical person who has training to say the [Paxil] has some

effect, [the evidence] is highly prejudicial.” The court then questioned the Reeds’

attorney:

              THE COURT: What medical evidence is there that the Paxil
      played any role in this accident?
              MR. BRECKENFELDER: Well, I think it is going to be fairly
      obvious to this jury that that was a contributing factor.
              THE COURT: How so?
              MR. BRECKENFELDER: From simple circumstances the
      amount and volume of beer with the combination of drugs. That by
      itself is a prosecutable offense, short of any type of toxicology
      evidence.
              THE COURT: All right. Ms. Shaff [Schaeffer’s attorney]?
              MS SHAFF: . . . [T]hey never charged her with drug
      possession or taking any drugs that she shouldn’t be taking . . . . I
      don’t think that we can have testimony on Paxil without someone to
      testify about it, and the police officer is not an expert on toxicology.
      And it isn’t [a] part of why they charged her with OWI; it was related
      to the alcohol. [The charge] doesn’t say it is related to Paxil
                                            7



         inflaming or doing anything to that alcohol level.          So this is
         introducing a new issue and it is highly prejudicial.

         The court ruled “the effect, if any, of Paxil in combination with alcohol is an

appropriate subject for expert testimony and not one which the jury should be

allowed to speculate in the absence of any such testimony.” The court excluded

the evidence, stating without expert testimony “there is no other legitimate

purpose for eliciting information as to whether and to what extent [Schaeffer]

ingested Paxil at any time before this accident.”            The court’s ruling also

encompassed Xanax.

         “Issues of relevancy and prejudice are matters normally left to the

discretion of the trial court; we reverse the trial court only when we find a clear

abuse of that discretion.” Shawhan v. Polk Cnty., 420 N.W.2d 808, 809 (Iowa

1988). To establish an abuse of discretion, the Reeds must show “the court

exercised its discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.” See Crookham v. Riley, 584 N.W.2d 258, 267

(Iowa 1998).      While “the rules of evidence do not specifically recognize an

objection that a question calls for speculation,” Iowa Rule of Evidence 5.611(a)

“authorizes the district court to exercise reasonable control over the evidence,”

thereby authorizing the court “to address objections based on speculation and

conjecture.” Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 390 (Iowa

2012).

         Our supreme court recently discussed the necessity of presenting expert

testimony to allow a jury to understand the connection between use of a

prescription drug and impaired driving. State v. Schories, 827 N.W.2d 659, 666
                                          8



(Iowa 2013). Here, the Reeds did not identify a toxicologist or medical expert

who could speak to the effect of Schaeffer taking a prescription drug the night

before the collision. The Reeds presented no expert evidence to show Schaeffer

suffered any impairment from taking the prescription medicine.          Instead, the

Reeds sought to have the jury speculate on the potential effect of a Paxil/alcohol

interaction on Schaeffer’s driving. The district court did not abuse its discretion in

excluding the challenged, speculative evidence. We therefore affirm the district

court’s denial of a new trial on this ground.

       IV. Exclusion of Police Video

       Next the Reeds contend the court abused its discretion in excluding the

video recording from the police squad car showing Schaeffer’s field sobriety

testing. During trial Schaeffer objected to admission of the video. After hearing

the parties’ arguments for and against admission of the video evidence, the court

sustained the objection: “[G]iven the procedural framework that surrounds this

particular exhibit, the court finds it is appropriate to grant the request to exclude

the squad video or any reference to it.” The court concluded: “[The video] should

have been identified in response to discovery and exchanged by the parties to

avoid exactly the situation we have here today, wherein this is the first time this is

being spoken of and presented as a trial exhibit in this case.”

       On appeal, we will not reverse the district court’s imposition of a discovery

sanction unless the court abuses its discretion. See Whitley, 816 N.W.2d at 385.

An abuse is found when the court’s ruling “rests upon clearly untenable or

unreasonable grounds.” Id. A police officer incident report, which was supplied
                                         9



to Schaeffer’s counsel, noted that field sobriety testing was completed on video

and the footage was saved. But the Reeds first disclosed their intent to show the

video to the jury either the day before trial or at trial, despite knowing the video

existed before they filed their petition.    See White v. Citizens Nat’l Bank of

Boone, 262 N.W.2d 812, 816 (Iowa 1978) (stating although the penalty—

excluding testimony on damages—was severe, “we cannot say the trial court

abused its discretion”). We find no abuse of discretion in the court’s exclusion of

the video recording.

       V. Inadequate Damages

       The Reeds further contend the district court should have granted their

motion for new trial based on the jury awarding “inadequate compensatory

damages” and “nominal punitive damages” due to “jury confusion and actual

prejudice.”

       An aggrieved party may be granted a new trial where the jury awarded

“[e]xcessive or inadequate damages appearing to have been influenced by

passion or prejudice.” Iowa R. Civ. P. 1.1004(4). As to compensatory damages,

the district court ruled:

               As framed by the admissible evidence presented at trial, the
       jury was required to assess as compensatory damages for both
       plaintiffs their past medical expenses, pain and suffering, and loss
       of function of body. Although under the evidence presented the
       jury certainly could have awarded greater amounts, or lesser
       amounts, to each plaintiff for these certain items of damages, the
       court concludes that the actual amounts awarded are supported by
       the evidence and fall within a broad range of what a jury might
       reasonably assess based on the evidence presented . . . . [T]he
       compensatory damages awarded are not so out of reason as to
       shock the conscience or sense of justice, and do not raise a
                                         10



       presumption that the awards are the result of passion, prejudice, or
       other ulterior motive.

       In determining the punitive damage award “was within the jury’s discretion

and fell within the sizeable range of amounts that the jury might deem

appropriate under the circumstances,” the district court explained:

       The admissible evidence presented on the plaintiffs’ claims for
       punitive damages included the facts and circumstances of the
       traffic accident and the plaintiffs’ resulting injuries. The jury was
       also entitled to consider that it was [Schaeffer’s] first OWI, and that
       her blood alcohol level of .09 slightly exceeded the OWI statutory
       limit of .08. The jury had also been presented with evidence that
       the defendant had pled guilty to the charge of OWI first offense,
       that she had already paid a fine and lost her driver’s license and
       had been subject to a 72-hour house arrest. The jury was also
       informed [Schaeffer] had successfully completed the court
       requirements of her OWI offense, which included a substance
       abuse evaluation, that she professed to be very sorry for the motor
       vehicle accident, and that she was not currently working and did not
       own any property.

       In ruling on motions for new trial, the district court “has broad but not

unlimited discretion in determining whether the verdict does substantial justice

between the parties.” Cowan v. Flannery, 461 N.W.2d 155, 158 (Iowa 1990) (“A

verdict should not be set aside as either too large or too small simply because

the reviewing court would have reached a different conclusion.”).         When the

jury’s verdict falls within a reasonable range as indicated by the evidence, courts

do not interfere “with what is primarily a jury question.” Id. (“The determinative

question posed is whether under the record, giving the jury its right to accept or

reject whatever portions of the conflicting evidence it chose, the verdict effects

substantial justice between the parties.”).
                                               11



          We agree with and adopt the district court’s thorough and detailed rulings

analyzing the jury’s award of compensatory and punitive damages. We conclude

the district court did not abuse its discretion by denying the Reeds’ motion for a

new trial based on allegedly inadequate damages. The extent of the Reeds’

injuries was disputed. The district court was able to observe the evidence as

presented during the trial, and we review the evidence in the light most favorable

to the verdict.       See Lara v. Thomas, 512 N.W.2d 777, 781 (Iowa 1994).

Accordingly, we affirm the district court on this issue.

          VI. Schaeffer’s Closing Argument

          During closing arguments, counsel for Schaeffer pointed out the Reeds

did not present medical expert testimony;6 the Reeds objected. On appeal, the

Reeds contend the district court should have granted their motion for new trial

based on counsel’s improper closing arguments that made “false references to

missing evidence.”

          Our review of the record shows no falsity in the challenged argument.

During the discovery phase and at trial, the Reeds consistently took the position

medical expert testimony was not necessary to prove their case.                    Again on




6
    Defense counsel argued:
                 Most importantly . . . this is a personal injury lawsuit asking you to
         assess damages for injuries the Reeds suffered and they didn’t bring in
         any medical testimony. They didn’t bring in medical records, they didn’t
         bring in doctors, they didn’t bring in nurses. They didn’t bring in anyone
         to talk about the medical. You never heard a diagnosis, not one
         diagnosis. There was no doctor that limited [Mrs. Reed’s] activity, you
         didn’t hear a doctor saying how long the problems would last. You heard
         about all the nurses and doctors running around the emergency
         department, but none of them were called to testify, and it is [the Reeds’]
         burden of proof.
                                        12



appeal, the Reeds acknowledge: “No direct medical evidence was offered by

either side.” Thus, defense counsel’s statements pointing to the absence of such

evidence were not false and did not misstate the record. We affirm on this

challenge.

      VII. Failure to Instruct on Future Damages

      At the conference on jury instructions, Schaeffer objected to the court

instructing on future damages, and the court ruled “expert testimony is required

under the facts and circumstances as shown in this record to present a claim to

the jury for future damages.” The Reeds then objected, claiming the instructions

are not “complete and correct on the law.” In their motion for new trial, the Reeds

did not claim the verdict was inadequate due to the court’s failure to instruct on

future damages. Nevertheless, on appeal they contend:

             The trial court discriminated against [the Reeds] due to their
      age and retirement by not allowing the proffered future damages
      instructions or increasing the judgment rendered after the jury’s
      damage paucity. Again, a significant chunk of [the Reeds’]
      proffered argument for future compensatory damages was
      erroneously barred.

      Assuming error is preserved, we find no support for the claim the district

court “discriminated” against the Reeds. To establish they were entitled to future

damages, the Reeds were required to prove their alleged future harm was

causally related to the collision, and “questions of causation which are beyond

the understanding of a layperson require expert testimony.” See Vaughn v. Ag

Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990) (stating “medical evidence as

to the cause of these ailments is noticeably missing from the record” and the

plaintiff “must prove more than he felt bad for a period of time”). While the Reeds
                                          13



testified at trial, neither one has “the medical expertise to explain the relationship”

between future symptoms or ailments and the collision. See id. at 637. Further,

the causal relationship between the collision and the Reed’s future damages “is

not within the common experience of a jury.” See id. The Reeds’ challenge is

without merit.

       VIII. PowerPoint Presentation

       During closing argument Schaeffer’s counsel used a PowerPoint7

demonstrative aid without objection by the Reeds. The Reeds argued for the first

time in their post-trial motion that the PowerPoint use entitled them to a new trial.

Noting the Reeds’ failure to object, the district court found waiver. On appeal, the

Reeds’ counsel acknowledges “his professional failure to specifically object to the

presentation generally, or to anything within [it] specifically.” But he contends:

“Without some fairness due, waiver of this issue is not conceded.” The Reeds

argue the content of the PowerPoint should have been served on counsel and

the court and made part of the record. They bemoan the “rampant unregulated

use of presentation software as asserted here by defense counsel” and suggest

in their conclusion that PowerPoint software “may convey a message to a jury

beyond printed words, including subliminal messages.”

       Our rules require parties to object at trial at a time when the district court

can take corrective action. Summy v. City of Des Moines, 708 N.W.2d 333, 338

(Iowa 2006) (stating the nature of the error must be timely brought to the




7
  “PowerPoint is a Microsoft computerized graphics presentation program.” Balderston
v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 315 n.2 (7th Cir. 2003).
                                        14



attention of the district court). The Reeds did not preserve this issue for our

consideration on appeal. See id.



      IX. Court’s Failure to Appoint a Master

      In their post-trial motion, the Reeds argued, for the first time, the court

should appoint a master under Iowa Rule of Civil Procedure 1.935 because

“several matters regarding the impaneling, selection, and deliberations of the jury

in this case require further investigation.” Specifically, the Reeds complained

that a “significant number of jurors in Scott County are failing to report” for jury

duty, voir dire was not reported, and the court instructed the impaneled jurors

regarding a “pamphlet” they received outside the courthouse, but neither the

pamphlet nor the instruction was made a part of the record.

      The court ruled “there is simply no basis in law or fact for the appointment

of a master.” On appeal the Reeds claim they preserved error on this issue:

“Impanelment error is not typically preserved under the existing record; however

plaintiff’s counsel sought expansion of the record to include reference to a master

which is denied in error and such is noted in the Post-Trial motions, argument

thereon, and following here.”

      The Reeds first requested a master be appointed in their post-trial

motions. As discussed above, raising an issue for the first time after trial does

not preserve error. Because the Reeds waived the claimed error, we do not

reach the merits of this issue. See Whitley, 816 N.W.2d at 390 (“A litigant cannot
                                         15



sit on a claim of error until the trial is over and make the claim once the result of

the trial is unsatisfactory.”).

       AFFIRMED.
