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Ellefson v. Palmer

Supreme Court of Idaho

June 30, 2017

LISA A. ELLEFSON, Plaintiff-Respondent-Cross Appellant,
ASHLEY PALMER, a minor; and STEPHEN PALMER, Defendant-Appellant-Cross Respondents.

         2017 Opinion No. 78

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.

         District court order granting new trial, affirmed.

          Carey Perkins, LLP, Boise, for appellant. David S. Perkins argued.

          Comstock & Bush, Boise, for respondent. David E. Comstock argued.

          BURDICK, Chief Justice.

         Ashley 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).[1]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.


         On 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.

         On June 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 occupational therapy.

         In 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 severity."

         Craig 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."

         Following 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.

         II. ...

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