LISA A. ELLEFSON, Plaintiff-Respondent-Cross Appellant,
ASHLEY PALMER, a minor; and STEPHEN PALMER, Defendant-Appellant-Cross Respondents.
Opinion No. 78
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Patrick H. Owen, District
court order granting new trial, affirmed.
Perkins, LLP, Boise, for appellant. David S. Perkins argued.
Comstock & Bush, Boise, for respondent. David E. Comstock
BURDICK, Chief Justice.
Palmer (Palmer) and Stephen Palmer appeal the Ada County
district court's order granting Lisa A. Ellefson's
motion for a new trial under Idaho Rule of Civil Procedure
59(a)(6).Ellefson was involved in an
automobile accident caused by Palmer. A jury found that
Ellefson was not injured in the accident. However, the
district court determined that the jury verdict of "no
injury" was against the clear weight of evidence and
granted a new trial subject to an additur in the amount of
$50, 000. On appeal, Palmer argues that the district court
abused its discretion in granting the new trial and in
setting additur at $50, 000. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
October 1, 2012, while stopped in a turning lane on
southbound Broadway Avenue at the intersection with Beacon
Street, Ellefson's vehicle was rear-ended by a vehicle
driven by Palmer. Ellefson's vehicle was pushed into the
vehicle in front of it, and that vehicle was pushed into the
next. However, Ellefson's airbag did not deploy, and no
one complained of any injuries. There was little damage to
either Ellefson's or Palmer's vehicles, and the
police officer who responded to the accident did not conduct
an accident investigation or issue a citation.
4, 2014, Ellefson filed a personal injury action against
Palmer. At trial the evidence showed that Ellefson left work
early on October 3, 2012, complaining of a headache and
nausea. That same day, Ellefson went to see her health care
provider at St. Luke's internal medicine group where she
was treated by nurse practitioner Tyley Nelson, and later by
Dr. Leslie Nona. Based on the symptoms Ellefson reported,
Nelson determined that she "most likely" suffered a
concussion and ordered a CT scan. The CT scan showed "no
acute intracranial process." Ellefson also complained of
memory problems, word searching problems, fatigue and
sensitivity to light and sound. On October 8, 2012, Nelson
discussed Ellefson's status with Dr. Nona, and Dr. Nona
referred Ellefson to Elks Rehab Hospital for physical and
November 2012, Elks Rehab Hospital referred Ellefson to Dr.
Nancy Greenwald and the outpatient brain injury program at
Idaho Physical Medicine and Rehabilitation. Dr. Greenwald
found that Ellefson had suffered a concussion but that her
poor neuropsychological testing "does not fit the
injury." In December 2012, Dr. Greenwald referred
Ellefson to Leigh Beglinger, PhD, for a neuropsychological
evaluation. Dr. Beglinger found that Ellefson was suffering
from "cognitive impairments in all domains tested."
However, she concluded that Ellefson's cognitive
impairments were "not consistent with a concussion and
would be more consistent with dementia of moderate
Beaver, PhD, a neuropsychologist, performed a
neuropsychological evaluation of Ellefson in October 2013 and
testified at trial that Ellefson sustained a mild traumatic
brain injury in the car accident. Robert Calhoun, PhD, also a
neuropsychologist, performed a neuropsychometric evaluation
of Ellefson in February of 2014. Dr. Calhoun testified at
trial that Ellefson did not sustain a mild traumatic brain
injury in the accident. At the conclusion of the trial, the
jury was given a special verdict form. Question No. 1 on the
form read: "Was Plaintiff Lisa Ellefson injured in the
collision?" The jury answered "No."
the trial, Ellefson moved for j.n.o.v. or, in the
alternative, a new trial. The district court denied the
motion for j.n.o.v. but granted the motion for new trial. In
ruling on the motion for j.n.o.v., the court found that
because there was contradicting evidence about whether or not
Ellefson had suffered an injury, the jury was "entitled
to determine whether Ellefson was credible" and
"that there was substantial evidence supporting the
jury's verdict." In ruling on the motion for new
trial, the court found that the verdict of no injury was
against "the clear weight of the evidence" and
granted the motion for a new trial under I.R.C.P. 59(a)(6).
However, the court excluded the issue of cognitive impairment
from the new trial and limited the scope of damages from the
date of the accident on October 1, 2012, to January 2013.
Palmer timely appealed, and Ellefson timely cross-appealed.