Summary 2009 WY 132

Summary of Decision issued November 3, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Werner Enterprises, Inc. v. Brophy

Citation: 2009 WY 132

Docket Number: S-08-0271; S-08-0272

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Werner Enterprises, Inc: Patrick J. Murphy, Jason A. Neville, Ryan Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming; urtis B. Buchhammer of Buchhammer & Kehl, PC, Cheyenne, Wyoming.

Representing Brophy: Gary J. Ceriani, Valeri S. Pappas of Davis & Ceriani, PC, Denver, Colorado; L. Eric Lundgren of Lundgren Law Offices, PC, Cheyenne, Wyoming.

Facts/Discussion: A jury awarded the Brophys damages in the amount of $18,069,257 for injuries they sustained as a result of a collision between Mr. Brophy’s vehicle and a semi-truck owned by Werner Enterprises, Inc. (Werner) and being driven by Werner employee, Cheryl R. Neal.
Jury instructions: Werner contended the instruction that was not given was critical because it created a statutory presumption that Brophy failed to yield the right of way which shifted the burden to the Brophys to prove that he did not fail to yield. The Brophys responded that Werner failed to object to the district court’s ruling on the proposed instruction and therefore, it waived the claim concerning instructional error absent plain error. It was clear from the record that Werner objected to the omission from the proposed instruction and Werner offered an instruction in its place containing the omitted language. The court’s question to decide was whether Werner’s objection was sufficient to preserve the issue it raised on appeal. The case most analogous to the present one was City of Cheyenne v. Simpson. The Simpsons sued the City for damages to their building by a truck bearing the City’s logo. The Court concluded the objection did not meet the Rule 51(b) requirements. As in Simpson, Werner’s argument that the statute created a presumption that shifted the burden of proof was not presented to the district court during the trial.
Werner’s counsel stated that this was a plain error issue conceding that trial counsel’s objection did not preserve the statutory presumption issue and that the review was not for abuse of discretion as it would have been had a proper objection been made. After reviewing the claimed instructional error for plain error, the Court concluded Werner had not established that the district court transgressed a clear rule of law when it declined to instruct the jury on its own initiative that § 31-5-222(c) created a statutory presumption that Brophy failed to yield and shifted the burden to the Brophys to show that he did yield. The Court further concluded that under the particular facts presented in the case, such an instruction may not have been appropriate; the question of fault was a factual one for the jury to decide based upon its assessment of the evidence presented and the witness’ credibility. The Court concluded the evidence was sufficient to support the jury’s verdict.
Questioning Ms. Neal concerning falsification of driver’s log: Prior to trial, Werner filed a motion seeking an order prohibiting the Brophy’s safety consultant from testifying that Ms. Neal falsified her logs. It did not appear from the record that the motion in limine included questions directed to or testimony elicited from Ms. Neal. Given that Werner did not seek preclusion of such testimony, the Brophys’ counsel did not violate the court’s order in his questioning of Ms. Neal.
Questioning expert witness about Werner’s safety record and accident history: The Court concluded the question by the Brophys’ counsel caused no prejudice. The Court stated the Brophys were correct that counsel phrased the question broadly as an inquiry into what information the expert considered, Werner objected promptly, the court sustained the objection and counsel moved on.
Testimony concerning future medical and attendant care expenses: The decision to admit or reject expert testimony is entrusted to the sound discretion of the district court. The ultimate issue was whether the district court’s decision was reasonable. The district court ruled that the witness would be allowed to testify that he relied on medical reports, records and consultations in preparing his report and as to the opinions he reached about the care needed in the future. The district court precluded the witness from testifying concerning the contents of the medical reports and statements made to him by the neurologist. From the evidence presented, the jury could have inferred with a reasonable probability that Mr. Brophy’s injuries were permanent and he would likely need care for the rest of his life.
Excessive verdict: When there is substantial evidence to support an award, the Court does not disturb the findings made by the fact finder unless the award is so excessive and unreasonable as to indicate passion or prejudice on the part of the jury. From the evidence presented, the jury was capable of inferring that Mr. Brophy experienced considerable pain, suffering, loss of enjoyment of life and inability to be the human being he was before the injury. The Court could not say the award was so excessive and unreasonable as to indicate passion or prejudice on the part of the jury.

Conclusion: The question of fault was a factual one for the jury to decide. The evidence was sufficient to support the jury’s verdict. Because Werner did not seek preclusion of testimony elicited from Ms. Neal, the Brophy’s attorney did not violate the court’s order in its questioning of her. From the evidence presented, the jury could have inferred with a reasonable probability that the injuries were permanent and that care would likely be necessary for the remainder of his life. The award was not so excessive or unreasonable as to indicate passion or prejudice on the part of the jury.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ykherv6 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]