Young v. Barbera

of, on, attention the fact or to comment the defendant’s failure to because this then testify, makes defendant testify against himself in violation of the Fifth Amendment. See id. A veiled reference to defendant’s failure to also testify improper. id. Should the court determine the prosecutor’s closing did indeed refer argument defendant’s choice not to testify, the court then determines whether it can be shown beyond reasonable doubt that the error did not influence verdict. See id. instant we cannot say prosecutor’s

reference to reaction was a or direct even a veiled Armstrong’s Hence, reference his failure to we find no reversible testify. error on this and affirm the circuit court. point

The record in this matter has been reviewed for other reversible error in accordance with Court Rule 4-3 Supreme (h), and none been has found.

Affirmed.

Candis YOUNG v. Maria BARBERA 05-778 233 S.W.3d651 Court of Arkansas

Supreme 13, 2006 delivered Opinion April OscarStilley, for appellant.

No response. Young Brown, Appellant ap- Robert L. Justice. Candis a default from her award of following

peals the circuit court sole on is that on Her judgment liability. point appeal $7135 $4500. from erred in her for costs reducing err, did and we reverse that the circuit court judgment We agree directions to amend to medical costs and remand with with respect with this in accordance opinion. judgment 6, 2003, her Ms. filed complaint against On October it, was that she Maria Barbera. alleged appellee, Bar- in Fort Ms. attacked” Smith by brutally “unexpectedly that Ms. further bera while at another’s residence. alleged face, held her down Barbera and scratched Ms. punched hair, her, her head fistfuls of and violently jerked seized sitting that, as a to side. Ms. alleged and down and from side up result, of hair. on her and a loss she had bleeding scalp attack, that she asserted required Because of She stated treatment for injuries. spinal in Fort Smith from October at Abacus Rehabilitation treated 23, 2003, and incurred in medical costs. through July distress, She further mental alleged physical pain, disfigure- $35,000 ment. She in prayed compensatory damages $15,000 in punitive

Ms. Barbera se filed answer. While the entire answer is pro record, not included the Addendum or the that she appears fault, answered both women were at and she admitted situation, could “not to all innocent because to plead parts an extent I am occurrences that from result responsible my bad decision moved strike making.” Subsequently, 22, 2004, the answer and for of a default entry judgment. April an circuit court entered order motion for granting Young’s a default toas liability. 4, 2004, On the circuit held a court on the issue hearing June of from that Ms. Barbera did not resulting liability. appear at this nor did a hearing; case on attorney appear present her behalf. At that Ms. testified hearing, after day assault, treatment from Dr. of Roberts Abacus sought Rehabilitation, which continued for nine months. stated She that treatment; she had never before received nor had she chiropractic received treatment then. since She testified that she treat- sought ment, incident, because after the she could move her head hardly direction; in either could nor she drive for two or three weeks because was to turn unable her head or bend her neck. Ms. further testified that when she began seeing week, she was three a times for about a month chiropractor, or going that, After week, week, two. the visits were a twice then once week, then once other until was released. Ms. every introduced as a s exhibit an itemized bill from her chiro- received, date, of each treatment practor the cost of the $7135, treatment. The bill totaled of which had been part paid, to Ms. She told the court that according Young. the chiropractor did her the relief for which she was provide looking. court, from the circuit testified questioning did

that she not to the room go or receive emergency medication or see a medical doctor. She stated that Dr. Roberts told her to for nine months and that she believed her keep coming bill, insurance $1000 close to parents’ company of the or paid more. This with the court then slightly followed: colloquy It took nine months chiropractor get

The Court: neck where it was your better? feeling back and did an my Yeah. x-ray They Young: where the and it’s subluxations called had these things instead kind of crooked back will get vertebrae your subluxations, it had like ten so straight, being aligned —think I — You can All step Uh-huh really. right. The Court: down. made its the circuit court

At the conclusion hearing, and said in ruling part:

Well, injury s I see a lot counsel], personal Mr. Stilley [plaintiff cases, never do I bills. Almost a lot of cases involving chiropractic on for nine the treatment for a sore neck has gone see one where months. medical bills are reasonable and

The court has to find that the as a result injured and I don’t doubt that Ms. necessary, of, attack was Without unprovoked. and that Barbera’s necessary doctor here me this is reasonable and telling why incident, that are all for this the Court is not convinced they expense there I am convinced that necessary. portion reasonable and necessary. it that is reasonable After the the circuit court entered a final hearing, circuit court found and awarded 2004. The June held the medical bills of were excessive and be allowed without as to the amount would not testimony expert need for such medical services. The court instead awarded Ms. costs, $2500 for medical for $4500 suffering, pain $8000, for total punitive damages, plus 2004, 24, fee. filed a fee and service On filing motion to amend the June P. to Ark. R. Civ. 52(b). judgment pursuant it, the and she for court to amend judgment prayed which, Roberts, attached to the motion an affidavit from Dr. contended, and nec- established that all treatment was prescribed that the circuit court was not She further asserted essary. permitted under law to reduce medical for services Arkansas expenditures rendered aby provider. actually competent court denied motion and found The circuit Ms. Young’s affidavit, evidence, not that it could not consider such as and the court of submitted at trial. Ms. appeals Young appealed, 70, Barbera, Ark. affirmed the circuit court. See App. 211 S.W.3d 29 next for review of petitioned court, the decision this which this court granted. petition review, this court considers the case as it was though originally See, Inc., filed in South, this court. Wallacev. West e.g., Fraser 225 S.W.3d 361 (2006). For her sole on that this point appeal, Young argues court does not allow the finder of fact to reduce the medical treatment on the that less treatment grounds aggressive have been sufficient. She contends that there might was no proof that the Further, treatment she received was excessive. she urges Roberts, that she tendered an affidavit from Dr. stating treatment was for the well of the necessary proper being She further excessive, asserts that even if the patient. treatment was the circuit court had no to reduce the right recovery reasons, For these ground. that this court reverse and requests remand the circuit court’s with directions that the judgment circuit court enter for medical in the amount judgment $7135, $4500, rather than the costs of plus appeal, leaving remainder of the intact. Ms. Barbera did not file judgment a brief in response.

As an initial we that we are point, emphasize reviewing only with the judgment award for damage June medical costs and not the order the motion for amend denying affidavit, ment of with the Roberts judgment because we agree with the circuit court that the affidavit filed with the motion was submitted too late for consideration. When a case is tried with the circuit court as the trier sitting fact, the standard of review on is not whether there is appeal

substantial evidence to court, but support finding whether the circuit court’s were erroneous. See findings clearly McGowen, v.White A when, is erroneous there finding clearly is evidence to although it, court, after support the entire evi- reviewing reviewing dence, is left with a firm conviction that a mistake has been committed. Seeid. Resolution of facts and determinations disputed are within the credibility of the fact-finder. See id. province state, In a default establishes but not Suchor, the amount of See Divelbliss A to determine subsequent hearing required the amount of See id. See also Ark. R. Civ. P. damages. 55(b) Cotroneo, B 175, Inc. v. (2005); & F Eng’g,

125 evidence to introduce cannot defendant While defaulting the on damages, of action at a hearing cause defeat the plaintiffs wit- the to cross-examine plaintiffs retains the defendant right as to the evidence nesses, of the sufficiency plaintiffs to challenge evidence in mitigation and to introduce the amount damages, 13-2, Brill, at 201 (5th Law Damages SeeHoward W. § Co., Ark. 910 Motor v. Michael ed. Clark 2004) (citing (1995)). relies on our Ms. Young In of her argument, support Cartmell, 409, 784 S.W.2d 758 decision in Ponder Ponder, certain rulings this court examined evidentiary to the award Ms. Ponder claimed affected jury’s which erred in claimed that the circuit court her. In that Ms. Ponder that she was misdiag- the defendant’s testify allowing expert led to her and that the unnecessary nosed misdiagnosis physician that Ms. Ponder’s This court and held recovery surgery. agreed if should not be diminished because misdiagnosis, physician’s led the use of extreme medical indeed it was a misdiagnosis, This court further noted given expert’s procedures. have determined that Ms. Ponder should testimony, jury might been treated more and that the have surgery conservatively extreme measure and held that received was an or unnecessary that, as an individual has used such “violates so principle long reasonable care in she is entitled to recover selecting physician, from the to the full extent of her even injury, though wrongdoer fails to use the or method most physician remedy approved the best cure.” 301 Ark. at similar cases or means of adopt at S.W.2d 761.

We then discussed the of “reasonable and neces- concept and said: sary”

It is true that a who seeksto recovermedical plaintiff Martin, must arereasonableand necessary.Kay prove Ark. S.W.2d859 means (1989). “Necessary” causally relatedto the Bellv. tortfeasor’s negligence. Stafford, that her need to 680 S.W.2d700 If a plaintiffproves seek medicalcare was the tortfeasor’s negligence, precipitated receives, the care then the careshe whether or not are recoverable. medicallynecessary, Id., 784 S.W.2d at 761.

While our Ponder decision could be construed to certainly that a a default on must also following prove say

126 or her medical are his reasonable and expenses necessary, fact the matter the Ponderdecision stemmed from ajury’s Furthermore, award of an admission of damages following liability. the defendant in the Pondercase Ms. Ponder’s evidence challenged as to medical expenses. contrast, Barbera,

In Ms. in the failed instant to appear at the after her default on and failed to damages hearing cross-examine Ms. medical-cost evidence in manner. Young’s any hand, Ms. the other testified that she had a sore neck Young, and that the treatments had of her chiropractic helped. support claims, she introduced the full chiropractor’s billing.

This court has held that in an action for assault and battery, the amount of awas for the trier of fact. damages See question Jones Canon, 282 Ark. 669 S.W.2d 7 (1984). With respect cases, medical we have held that a expenses personal-injury to recover medical has the party seeking burden of both the reasonableness and of those proving necessity expenses. House, See Volunteer Inc. v. Transp., We have also said that is not expert testimony essential in case to the reasonableness and every prove necessity fact, cases, Seeid. In in some expenses. testimony alone can a sufficient injured foundation for the party provide introduction of medical incurred. id.

The of a award is to make underlying principle damages Brill, 4-1, whole. SeeHoward W. Law injured party Damages,§ Thus, at 44 ed. a court (5th 2004). must attempt place in the he would have been in if the had not position wrong occurred. See id. National Lead Co. v. Cove (citing Barium Magnet 231 F. As (W.D. 1964)). Corp., Supp. already-mentioned, the circuit court with her bill from Dr. presented $7135. Roberts which totaled She testified that the after the day Barbera, attack Ms. treatment Dr. from Roberts of sought Abacus Rehabilitation and that the treatment continued until he released her. She further testified that she had ultimately never before used Dr. Roberts or other chiropractor.

The reasonableness and of medical necessity fact-finder, are of fact to be decided but those questions will be allowed if the only a sufficient plaintiff provides Brill, foundation. See Howard W. Law evidentiary Damages, 4-5, Atkins, at ed. (5th 2004) (citing Roy § S.W.2d It is evident that Ms. did (1982)). that. just her treatment testimony from Young’s Because appears there was no and because was both reasonable necessary, incurred were evidence indicating of her in contradiction testimony, unreasonable or unnecessary of the award of clearly circuit court’s reduction that it we with the circuit court erroneous. disagree Specifically, care to a to an award of damages chiropractic was prerequisite was that the treatment he rendered have Dr. Roberts testify reasonable and necessary. medical and remand

We reverse the award for costs damage directions to enter this matter to the circuit court with amount of in lieu of $4500. costs and remanded. reversed. Reversed Court appeals Glaze, dissents. J., Glaze, Justice, dissenting. Tom I would affirm both

trial court and court of decision in this case. The appeals’ issue before our court is whether the trial judge clearly wrong when he determined that Candis was not all entitled to Young Roberts, incurred when treated Dr. a being by for nine months after attacked Maria Barbera.1 chiropractor, being by $7,135 avered that incurred in medical billed Young Roberts, Dr. but after the to determine the trial hearing damages, $4,500 awarded for her medical judge only expenses.

Dr. did not Roberts at on testify hearing damages; only her, did. She said that Barbera confronted on Young “jumped top me, hair, started me and me punching pulling my swinging me, around I foot her and ran off got my up, pushed [when] continued, some away.” Young actually my pulled “[Barbera] out, hair scratched face and left some my bloody spots my incident, head.” further said that on the after the Young day direction, could move her head in either nor could she hardly move her back or neck to drive. At the easily hearing, Young stated she was recovered. told the trial that she fully Young judge doctor, never went to the room a medical to see nor emergency had she received medication. Asked the trial whether any judge bill, insurance on the said the parents’ company paid 1 Barbera and had been but a friends, as to whether apparently dispute fight. stole Barbera’s brother’s Station led to this Play a or a over.

insurance thousand dollars little company paid examination, re-direct could not recall Dr. Roberts saying didn’t have to the remainder of his bill if she did pay — facts, win civil not lawsuit. On these is hardly surprising — not trial con- erroneous certainly clearly judge cluded that nine months of treatment was unreason- chiropractic able.

A to recover medical in a party seeking personal- case has the burden of both the reasonableness and injury proving of those See Volunteer Inc. v. necessity expenses. Transport, House, Moreover, Ark. 162 S.W.3d 456 our law is well settled that the reasonableness and of medical necessity or, here, are of fact to be decided as questions by jury, Atkins, as the trier of fact. See Ark. by judge sitting Roy 637 S.W.2d 598 Blissettv. (1982); Frisby, The law is also established that a trial as judge, fact-finder, is the sole evaluator of and is free to believe credibility witness, Burris, or disbelieve the Schweckv. testimony And it has been the rule long action, of a to an who is interested in the testimony party result, will not be as as regarded undisputed determining legal Ellis, 317, of the evidence. v. sufficiency Eggleston S.W.2d 462 (1987). to the at the trial

Turning testimony presented by Young bill, court she did refer to Dr. Roberts’s which hearing, reflects his $7,135; however, treatment of and a total of the mere fact that a has incurred medical and the defendant has plaintiff admitted does not translate into a liability automatically damage award to those v. 330 Ark. equivalent expenses. Depew Jackson, 733, 957 S.W.2d 177 In to listening Young studying bill, Dr. Roberts’s the trial some doubts judge expressed regarding all, whether Dr. Roberts overbilled. After the evidence suggested $1,000 insurance or more of Young’s Roberts’s parents’ paid testified that she “did not recall” whether Dr. charges, said that Roberts did not have to the remainder if she pay did not win this lawsuit. The also whether the judge questioned warranted, of the treatment had been that he length commenting care, had seen a lot of cases injury personal involving chiropractic but had “almost never” seen one where the treatment for a sore neck lasted for nine months. harbored doubts as to both

Obviously, judge Young’s recollections on the amount to Dr. Roberts bearing already paid further insurance and whether any parents’ company would be if she lost this and the reason- payment required ableness extent of the treatment. Rather than reducing $1,000, entire amount of medical awarded judge $4,500, which reasonable under the circumstances. appears above, In addition to the I with the disagree majority’s Cartmell, 409, v. Ponder 301 Ark. application that, relied on Ponder its statement “so as an long individual has used reasonable in care a she is selecting physician, entitled to recover from the to the full extent wrongdoer of her even fails injury, to use the though physician or remedy method most in similar cases or the best means approved adopt Ponder, cure.” 301 Ark. at I 412. find that this statement in stands contrast to two sharp announced important this principles first, court: the reasonableness of medical is a question factfinder, see Blissettv. 249 Ark. Frisby, 458 S.W.2d 735 second, (1970); the mere fact that a has incurred plaintiff and the defendant has admitted does not liability mean that the automatically is entitled to a plaintiff award damage to those v. equal expenses. 330 Ark. at Depew Jackson, 740.

Arkansas law is clear that a default judgment establishes butnot theextent liability House, Volunteer Inc. damages. v. Transport, 357 Ark. 162 S.W.3d 456 (2004) added); (emphasis Jean-Pierre Inc., Plantation Homes, state, a after hearing default in required order to establish and the damages, must plaintiff introduce evidence to support Volunteer Dark, Transport,supra;Byrd However, S.W.2d 572 (1995). if Ponderis to be literally interpreted to mean that a can plaintiff introduce a simply statement to billing establish her definitively then there would damages, be no in purpose holding hearing once had been established; addition, would not be required prove both the reasonableness and the treatments, of her necessity so long as she had a doctor’s bill in hand. This is not what our case law says, reason, and for that I cannot with the agree conclusions. majority’s

Case Details

Case Name: Young v. Barbera

Court Name: Supreme Court of Arkansas

Date Published: Apr 13, 2006

Citation: 233 S.W.3d 651

Docket Number: 05-778

Court Abbreviation: Ark.