Klimple v. Bahl

MARING, Justice,

concurring in part and dissenting in part.

[¶ 18] I, respectfully, concur in part and dissent in part.

[¶ 19] The issue is whether summary judgment was proper. Rule 56(c), N.D.R.Civ.P., provides that, if a motion for summary judgment is made,

Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Rule 56(e) provides:

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. If a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, must be entered against the adverse party.

Summary judgment is a procedural device for deciding a case when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Charles McCauley P’ship v. Tyrone Twp., 2004 ND 214, ¶ 3, 689 N.W.2d 410.

A party moving for summary judgment has the initial burden of showing that there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts. In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, and he must be given the benefit of *264all favorable inferences which can be reasonably drawn from the evidence.

Id. (citations omitted).

[¶ 20] Our Court has held, under Rule 56(e), N.D.R.Civ.P., that “ ‘the burden on the moving party may be discharged by “showing” — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.’ ” Steinbach v. State, 2003 ND 46, ¶ 12, 658 N.W.2d 355 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In Black v. Abex Corp., 1999 ND 236, ¶ 19, 603 N.W.2d 182 (citing Celotex, at 325, 106 S.Ct. 2548), we said:

If the record, after discovery, contains no evidence to support an essential element of the plaintiffs claim, there is no “evidence” the defendant can point to in support of its assertion there is no such evidence. In such a case the rule allows the defendant to put the plaintiff to its proof, without the necessity of a full trial, by merely “pointing out” to the trial court the absence of evidence to support the plaintiffs case.

[¶ 21] In support of his motion for summary judgment, Bahl submitted the discovery depositions of Dr. Jeffery R. Keim and Klimple, and copies of Dr. Carey Welsh’s notes recorded on September 11, 2001, and on September 19, 2001, which were attached as exhibits A and B to his Reply Brief Regarding Defendant’s Motion for Summary Judgment. Bahl contends that the testimony given in these two depositions establishes as a matter of law there is no competent admissible evidence that the automobile accident caused or aggravated Klimple’s Kienbock’s disease.

[¶ 22] The first question is whether the movant has made a showing that demonstrates without regard to the opposing party’s response, there is no genuine issue of material fact, and he is entitled to judgment as a matter of law. Sagmiller v. Carlsen, 219 N.W.2d 885, 891 (N.D.1974); see also Brown v. North Dakota State Univ., 372 N.W.2d 879, 881 (N.D.1985).

[¶ 23] Dr. Keim’s deposition was taken as a discovery deposition by Bahl. Dr. Keim was asked numerous questions by Bahl concerning his medical opinions about Klimple’s Kienbock’s disease. Our Court has an established rule regarding expert testimony in a medical context, which is that “[a] medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities only, but not an opinion based on mere possibilities.” Vaux v. Hamilton, 103 N.W.2d 291, 295 (N.D.1960); Nelson v. Trinity Med. Ctr., 419 N.W.2d 886, 892 (N.D.1988); Dehn v. Otter Tail Power Co., 251 N.W.2d 404, 412-13 (N.D.1977); Kunnanz v. Edge, 515 N.W.2d 167, 172-73 (N.D.1994). Therefore, our decisions have held that the evi-dentiary standard for admission of an expert medical opinion does not require it be couched to a “reasonable degree of medical certainty,” but is satisfied if the medical expert opinion is expressed to a reasonable degree of probability. Our Court has held that it is not necessary to continually repeat these evidentiary standards if the expert testimony demonstrates the opinion is stated, at least, that it is more probable, or more likely than not. Kunnanz, 515 N.W.2d at 173.

[¶ 24] A careful reading of Dr. Keim’s deposition reveals that Dr. Keim was never asked to state his opinions to a reasonable degree of medical certainty or a reasonable degree of medical probability. Therefore, none of his opinions regarding the cause of Klimple’s Kienbock’s disease, whether it was caused by the automobile accident or whether it was aggravated by the automobile accident are admissible in evidence. In fact, Bahl’s attorney asked Dr. Keim for “possibilities” or to speculate:

*265Q. Doctor, is it possible that the motor vehicle accident may have caused the increase in Mr. Klimple’s pain complaints?
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Q. Is it also possible that that — this increase in his pain complaints reflect progress of his preexisting Ki-enbock’s disease?

The majority of Bahl’s attorney’s questions eliciting an expert medical opinion have no stated evidentiary standard:

Q. ... What’s the cause of Kienbock’s?
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Q. Is this something that a person like Mr. Klimple could get in a car accident?
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Q. Is that enough time for the Kien-bock’s disease to develop to Stage 3?
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Q. Does the lunate fracture precede the Kienbock’s disease?
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Q. If he had preexisting Kienbock’s disease, he must have fractured the lunate at some time before the car accident?

Only at one point in Bahl’s attorney’s questioning did he get even close to properly asking for a medical expert opinion when he asked:

Q Let me ask it to you this way then. Can you say with any reasonable degree of certainty whether Kien-bock’s disease was caused in the car accident or not?

This question was not asked to a reasonable degree of “medical” certainty and clearly left out the question of whether the doctor could state an opinion to a reasonable degree of medical probability. With regard to whether the doctor had an opinion whether the automobile accident aggravated Klimple’s Kienbock’s disease, caused pain, or caused the fracture of the lunate to a reasonable degree of medical certainty or medical probability, the questions were never asked.

[¶ 25] Bahl’s attorney also took the deposition of Klimple. In his deposition, Klimple testified he had not sustained any trauma to his left wrist before the automobile accident; he saw Dr. Welsh twice in September 2001, for pain in his left wrist, and was told he had tendonitis; that he was able to do all of his work for his tree business; that, at the time of the accident, his left wrist bounced against the door and the steering wheel; that the very next day, his left wrist was stiff and he could not even move his hand; that he had to quit working that day; that he made an appointment with Dr. David Uthus and told the nurse his wrist injury was caused by a car accident; and that Dr. Uthus diagnosed a longitudinal fracture of his lunate bone of his left wrist and the presence of Kienbock’s disease. Klimple testified at his deposition:

Q. He said it was Kienbock’s disease?
A. He mentioned Kienbock’s disease was there and it was aggravated when this fracture came in that I want to call the lunate bone? I don’t know.
Q. It sounds right to me, but I don’t know, either.

Klimple’s complaint alleges he sustained an injury to his left wrist, including a fracture. Klimple testified the day after the accident he could not even move his left wrist and could not work. Before the accident he was able to work, lifting heavy branches and chainsaws. There is no evidence that Klimple had a fracture of the lunate bone before the automobile accident. Bahl attached to his Reply Brief Regarding Defendant’s Motion for Sum*266mary Judgment as exhibits A and B, Dr. Welsh’s notes of Klimple’s visits on September 11, 2001, and September 19, 2001. Dr. Welsh’s diagnosis was tendonitis, and he specifically noted that there was no evidence of trauma to the wrist. Furthermore, the note on September 11, 2001, stated that Klimple’s range of motion was intact and that there was tenderness of the dorsal wrist along the extensor tendons. “Dorsal” means “pertinent to the back;” “extensor” means “[a] muscle that extends a part;” and “tendon” means “[f|ibrous connective tissue serving for the attachment of muscles to bones and other parts.” Am.Jur.3d Proof of Facts, Taber’s Cyclopedic Medical Dictionary 525, 639, 1831 (16th ed.1989). On September 19, 2001, Dr. Welsh noted that Klimple had a “dull ache” and that it was at the left upper hand and base of the second metacarpal area, which is the second finger starting with the thumb as number one. Klimple had “tenderness” “proximal to the thenar eminence.” “Thenar” means “[c]oncerning the palm” and “thenar eminence” means “[a] prominence at the base of the thumb.” Am.Jur.3d Proof of Facts, Taber’s Cyclopedic Medical Dictionary, at 1846. These notes do not refer to any pain or tenderness over the “lunate bone.” The notes are inconsistent with a longitudinal fracture of the lunate bone. The diagnosis was “tendonitis,” which is defined as inflammation of the tendon. Id. at 1831.

[¶ 26] As recognized by the majority, an injured person can testify as to his health before an automobile accident and to his health after an automobile accident. See Asch v. Washburn Lignite Coal Co., 48 N.D. 734, 755-56, 186 N.W. 757, 765 (1922); see also State v. Miller, 530 N.W.2d 652, 656 (N.D.1995) (holding that “[witnesses who are not experts in medicine may still testify regarding the seriousness of wounds when the facts testified to are such that ‘[a]ny reasonable person with common sense is capable of expressing a view on such matters without first having to be qualified or treated as an expert witness’ ” (quoting State v. Schimetz, 328 N.W.2d 808, 815 (N.D.1982))). In the present case, Klimple himself and Dr. Welsh’s notes provide evidence that Klim-ple did not have a fractured lunate bone before the accident. The evidence is that Klimple had a fractured lunate bone after the accident. Klimple believes the fracture was caused by his wrist striking the car door and steering wheel.

[¶ 27] The question presented is: When is lay opinion testimony permissible on the question of causation and expert opinion testimony not required? We should decline to adopt an absolute rule which would make expert medical testimony necessary on proximate cause of a party’s injuries when such causation is within the usual and ordinary experience of the average person. Each case will differ and should be evaluated on its facts. To the extent that the majority opinion can be read broadly to require medical testimony on the proximate cause of a party’s injuries, which are within the common experience and knowledge of laypersons, sustained in an automobile accident, I disagree.

[¶ 28] I agree with the courts that have concluded plaintiffs’ and other lay witnesses’ testimony is competent to establish causation regarding various illnesses and injuries. Choi v. Anvil, 32 P.3d 1 (Alaska 2001); Dodge-Farrar v. American Cleaning Services Company, Inc., 137 Idaho 838, 54 P.3d 954 (Ct.App.2002); see 2 Wigmore, Evidence § 568(1), at 780-83 (Chadbourn Rev.1979); see also 66 A.L.R.2d 1082, 1126 § 8 (1959). The Alaska Supreme Court held: “Our case law requires expert testimony only when the nature or character of a person’s injuries require the special skill of an expert to help present *267the evidence to the trier of fact in a comprehensible format.” Choi, 32 P.3d at 3. The Idaho Court of Appeals held: “[W]e conclude that a layperson may testify to the causation of medical symptoms or of injuries where such causation is within the usual and ordinary experience of the average person, and also satisfies I.R.E. 701.” Dodge-Farrar, 54 P.3d at 958.

[¶ 29] “Whether a breach of a duty is the proximate cause of an injury depends on the facts and circumstances of each case and is a question of fact for the trier of fact.” Rued Ins., Inc., v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D.1996). “The existence of proximate cause is a fact question unless the evidence is such that reasonable minds can draw but one conclusion.” Id. at 774. Issues of negligence, proximate cause, and comparative fault are therefore questions of fact for the trier of fact. Butz v. Werner, 438 N.W.2d 509, 516 (N.D.1989). Summary judgment is rarely appropriate on the issue of proximate cause which is so dependent on the development of the facts and the evidence. See Kimball v. Landeis, 2002 ND 162, ¶ 7, 652 N.W.2d 330.

[¶ 30] I do agree with the majority, that a layperson is not a competent witness when the injury or disease requires the exercise of scientific skill and knowledge. I also agree that the issue of whether Klimple’s Kienbock’s disease was caused or aggravated by the automobile accident is the type of issue requiring expert medical testimony. However, the majority opinion appears to hold that the movant Bahl has proven a factual negative with regard to all of Klimple’s left wrist injuries — no proximate cause. The focus of this summary judgment is whether there is evidence that the automobile accident caused Klimple’s left wrist injuries. All inferences from the facts are to be drawn in favor of the nonmoving party. Charles McCauley P’ship, 2004 ND 214, ¶ 3, 689 N.W.2d 410. It is accurate that Klimple has not provided any admissible medical expert evidence that his Kien-bock’s disease was caused or aggravated by the automobile accident. On that issue, I agree with the majority’s conclusion summary judgment is appropriate.

[¶ 31] The majority, however, overlooks the evidence in the deposition of Klimple.

Q. What happened, in your opinion, in the accident that caused your wrist to be injured?
A. Well, when you hit, it kind of bounced against the door and the steering wheel. Right here on this part.
Q. Was your hand on the steering wheel at the time or on the door?
A. On the steering wheel.
Q. Okay. How did it bounce then?
A. Just kind of slapped off and hit the door.
Q. So it wasn’t like the steering wheel spun around or anything?
A. No.
Q. So it came off the steering wheel and hit the side of the door?
A. Yeah.
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Q When did you first see a doctor after this accident?
A. I tried to — the first time I seen the doctor was the 8th of October, but I had tried to get an appointment with Dr. Uthus and he was booked up. That was the first open date. But you know how it is when you don’t have insurance, you think, well, it’s just a sprain, it’s going to be all right, nothing big.
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Q. Now, is the only injury you’re claiming in this accident to your left wrist?
A. Correct.
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Q. Did your left wrist bother you at the scene of the accident?
A. No.
Q. Okay. When did it start bothering you?
A. I went to work the next morning and I was going to pick up one of those seven and a half pound chain saws and do some cutting, and I couldn’t even move my hand to speak of. It was stiff, but I picked it up and it started bothering so I just thought, well, it’s just sprained, it will be all right and went home.
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Q. And then I think you told me you went in to Dr. Uthus a week later?
A. The 8th, yes.
Q. Okay. What kind of problems did you tell Dr. Uthus you had?
A. I told him what had happened and everything, and he took an x-ray of it and found that there was — I can’t pronounce these.
Q. Neither can I.
A. Something about a lateral bone or— I don’t know. Anyway, it was fractured in there. And he put it in a cast and said that it should be hopefully better in four weeks. He said that it was Kien-bock’s disease, it’s called, and the finger was slipping down and he said he had to cast it to immobilize it. And he casted it and I had it on for I think probably roughly two weeks and went back in and had it x-rayed again. And he recasted it again; the fracture hadn’t done anything.
After he did that, it was into December already, and he took the cast off and he had me go to therapy three times a week. And that wasn’t doing anything. When I went back to see him again, he said, no, it’s not doing nothing; I’m going to turn you over to Dr. Keim. He’s a plastic surgeon and great hand specialist, and he said he could take care of it and do the surgery.
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Q. That’s my understanding, too. The first time you went in to see Dr. Uthus, U-t-h-u-s, this is a patient assessment form that you completed; correct?
A. Yes.
Q. And it’s a two-page document; right?
A. Correct.
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Q. And the reason for the visit today was you put in left wrist; correct?
A. Correct.
Q. Is that your handwriting that says auto accident?
A. That’s the nurse.
Q. And then the date of onset, 10-1-01, did you fill that in or the nurse?
A. No, the nurse.
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Q. You just put in “left wrist” and you didn’t put in the date of onset; correct?
A. No. I told her.
Q. And that was on the 8th; correct?
A. Correct.
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Q. But he did cast it the first day?
A. Yes.
Q. He said it was Kienbock’s disease?
A. He mentioned Kienbock’s disease was there and it was aggravated when this fracture came in that I want to call the lunate bone? I don’t know.
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Q. And Uthus referred you to Keim?
A. Correct.
Q. K-e-i-m. Okay. He does the surgery?
A. Yes.
*269Q. And there’s a screw or something put in your hand, I think I read someplace?
A. Yes.
Q. Is that screw still in there?
A. Yes.
Q. Is that ever going to come out?
A. No.
Q. Do you know what the screw is in there for?
A. He did a bone graft on that fracture and put a screw in there for support.
Q. To hold the bone in place while it was grafting on?
A. Yes.

Klimple’s deposition exhibit 8 lists all of his treatment and the costs for the treatment. With regard to his work, Klimple testified he owns a tree service, which involves the trimming, stump removal, and the taking down of big trees. He testified he is right-handed, but that in his work he uses both hands.

[¶ 32] Klimple explained in his deposition that he used to be able to use his left hand to hold a branch while cutting it off, and he no longer has the strength to do that. He also testified that when he carries anything heavy his left wrist “[j]ust knots up” and he gets “writer’s cramps.” He has stiffness in the mornings in the left wrist and cannot pick up anything thin from a flat surface. He testified that since the surgery, the pain is gone but he still has some swelling in the wrist.

[¶ 33] I am of the opinion that Klim-ple’s testimony about the trauma to his left wrist at the time of the accident and the symptoms in his left wrist immediately the next day of pain, stiffness, immobility, and lack of strength are within the usual and ordinary experience of the average person. I also am of the opinion that Klimple’s testimony that he was able to use his equipment and take down trees using his left wrist before the accident and that the day after the accident he could not is evidence from which a reasonable inference can be drawn that the automobile accident proximately caused the symptoms of pain, stiffness, immobility, and lack of strength which he perceived in his left wrist. The further away in time the symptoms and treatment become, the more tenuous the causal relationship. However, I am of the opinion that there is enough evidence of the injury proximate enough to the automobile accident. Just where the line should be drawn requiring expert testimony in this case is a decision for the trial court. However, the symptoms and treatment that occurred shortly after the traumatic event, are within the common knowledge and experience of the average person and Klimple’s cause of action should survive summary judgment.

[¶ 34] I would affirm the summary judgment on the issue of proximate cause or aggravation of Kienbock’s disease because its cause or aggravation requires medical expert evidence and there is none in this record. I would reverse the summary judgment, however, with respect to Klimple’s claim for compensation for symptoms and medical treatment immediately following the automobile accident and subsequently unrelated to the Kienbock’s disease.

[¶ 35] Mary Muehlen Maring