Bowen et al v. Allied Property and Casualty Insurance Company

Filing 80

FINDINGS OF FACT AND CONCLUSIONS OF LAW - Defendant Allied Property and Casualty Insurance Company's Motion to Exclude (Filing 52 ) evidence of plaintiff Stephen T. Bowens alleged loss of consortium is denied. Defendant Allied Property and Casualty Insurance Company's statement of objections (Filing 66 ) to Magistrate Judge Zwart's order (Filing 65 ) regarding the exclusion of supplemental expert opinions offered by Dr. Phillip Essay is denied. Judgment shall be entere d in favor of plaintiffs Jacqueline and Stephen Bowen and against defendant Allied Property and Casualty Insurance Company in the amount of $250,000, the underinsured motorist coverage amount contained in automobile insurance policy number PPC 0014076466-3 issued by defendant Allied to the plaintiffs. However, judgment shall be withheld pending resolution of the issue of attorneys' fees. The plaintiffs may file an application for reasonable attorneys' fees pursuant to Neb. Rev . Stat. § 44-35919 and the Local Rules of Practice of the United States District Court for the District of Nebraska on or before December 20, 2012. The defendant may file a response to such application on or before January 3, 2013, and the plaintiffs may file a reply on or before January 10, 2013. Ordered by Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACQUELINE E. BOWEN, an
individual, and STEPHEN T.
BOWEN, an individual,
Plaintiffs,
v.
ALLIED PROPERTY AND
CASUALTY INSURANCE
COMPANY, an Iowa Corporation,
d/b/a Allied Insurance, a Nationwide
Company,
Defendant.

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4:11CV3163

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Plaintiff Jacqueline Bowen (“Jackie”) was injured in a car accident in 2007.
After recovering the insurance policy limits of $100,000 from the driver who caused
the collision, Jackie and her husband, Stephen 1, made a demand for $250,000 from
their underinsured motorist insurance carrier, defendant Allied Property and Casualty
Insurance Company. After Allied declined to pay the Bowens, Jackie and Stephen
Bowen brought this lawsuit for breach of contract, requesting a finding that the
monetary value of the Bowens’ damages exceeds $350,000 and the entry of judgment
against Allied in the amount of $250,000, which is the policy limit. Allied claims that
the Bowens are entitled to nothing because their damages are less than the $100,000
they received from the negligent driver’s insurance carrier.

1

The plaintiffs’ briefs refer to plaintiff Stephen Bowen as “Todd.” However,
this memorandum and order will refer to him as “Stephen” for purposes of remaining
consistent with the case caption.

At issue in this non-jury case is the monetary value of Jackie Bowen’s past and
future medical treatment, pain and suffering, and lost wages proximately caused by
the accident, as well as Stephen Bowen’s claim for loss of consortium.2
I. FINDINGS OF FACT
1.

Plaintiffs Jackie Bowen and her husband, Stephen T. Bowen (the

“Bowens”), are residents of Grand Island, Nebraska. (Filing 50, Pretrial Conf. Order
at CM/ECF p. 2.)
2.

Defendant Allied Property and Casualty Insurance Company (“Allied”)

is an Iowa corporation with its principal place of business in Des Moines, Iowa; is
authorized to do business in the State of Nebraska; and does business as Allied
Insurance, a Nationwide Company. (Filing 50, Pretrial Conf. Order at CM/ECF p. 2.)
3.

At all relevant times, the Bowens were insureds under automobile

insurance policy number PPC 0014076466-3 (the “Policy”) issued by Allied to the
Bowens. The Policy provided $250,000 in underinsured motorist (“UIM”) coverage.
(Filing 50, Pretrial Conf. Order at CM/ECF p. 2; Trial Ex. 1.) The Policy stated that
Allied “will pay compensatory damages which an ‘insured’ is legally entitled to
recover from the owner or operator of an . . . ‘underinsured motor vehicle’ because of
‘bodily injury’ . . . [s]ustained by an ‘insured’; and . . . [c]aused by an accident.”
(Trial Ex. 1, UIM Endorsement at p. 1 of 3.) The “insured” under the Policy included
the Bowens and their family members, and “bodily injury” was defined to mean
“bodily harm, sickness or disease, including death that results.” (Trial Ex. 1, Personal
Auto Policy at p. 2 of 13.)

2

This memorandum and order shall constitute the findings of fact and
conclusions of law required by Fed. R. Civ. P. 52(a)(1).
2

Jackie Bowen’s Medical Treatment Prior to Collision
4.

In 1995, while on a vacation with her extended family, Jackie Bowen was

tossed by a wave while swimming in the ocean. She fell off a boogie board and hit
her head on the ocean floor. Jackie’s uncle-in-law, a chiropractor, examined her that
night. (Filing 71 at 1:14:20-1:14:30.) Over the next three years, Jackie sought no
further treatment related to her neck, shoulders, back, or any other injury related to the
ocean incident.
5.

Beginning in August 1998, Jackie intermittently suffered from headaches

and neck, back, and shoulder pain for which she sought medical, chiropractic, and
massage treatments. (Trial Ex. 5.) Jackie occasionally saw a chiropractor with
complaints related to her lower or mid-back, neck, or headaches—care that Jackie
related to pregnancies, caring for small children, and her work as a dental hygienist.
(Trial Ex. 5; Filing 71 at 1:16:36-1:17:25, 1:18:38-1:19:05; Filing 72 at 38:30-40:10.)
Between 1998 and September of 2007, Jackie went for several periods of time ranging
from 1 to 20 months without any medical, chiropractic, or massage treatment for her
neck, back, or shoulders. (Trial Ex. 5.) Jackie’s medical records from September 20,
2000, indicate that Jackie “has had problems with chronic headaches over the past 5
years” and note that “[s]he was involved in a surfing accident where she struck the
ocean floor compressing vertebrae C1 and C2. Ever since then she has had problems
with frontal headache with occipital pressure and tension in her trapezius muscles.”
(Trial Ex. 108 at p. 1.)
The Collision & Subsequent Medical Treatment
6.

On September 28, 2007, Jackie was involved in a collision while driving

east on Stolley Park Road in Grand Island, Nebraska, in her Chevrolet Suburban,
which was insured under the Policy. (Filing 50, Pretrial Conf. Order at CM/ECF p.
2.) The collision occurred when a Dodge pickup truck being driven by Chris Moser
(“Moser”) struck the rear of Jackie’s vehicle while she was stopped to make a left3

hand turn. Jackie did not hear brakes or see or hear anything else that indicated Moser
attempted to stop his vehicle prior to impact. (Filing 71 at 59:02-59:36.) The force
of the crash broke the driver’s side seat of Jackie’s vehicle. (Id. at 59:45-1:00:25.)
Jackie described the crash as “loud and violent.” (Id. at 58:52- 59:02.) Both vehicles
were totaled. (Id. at 1:03:26-1:03:34.)
7.

The parties admit that the collision was caused by Moser’s negligence.

(Filing 50, Pretrial Conf. Order at CM/ECF p. 2.) At the time of the collision, Moser
was insured under a policy of automobile insurance issued by Shelter Insurance
Company (“Shelter”) with a liability limit of $100,000. (Filing 50, Pretrial Conf.
Order at CM/ECF p. 2.)
8.

After the collision with Moser, Jackie’s husband took her to the

emergency room. (Filing 71 at 1:05:15-1:05:58.) There Jackie reported a past
medical history of tension headaches and anxiety, that she was taking the medications
Elavil for headaches and Lexapro for anxiety, and that she was worried about her neck
because she had injured it years ago. She admitted at trial that the “injury” to which
she referred was her 1995 surfing accident. (Filing 72 at 43:30- 44:26.) In the
emergency room, Jackie felt shaky, weak, and began to experience tightness and
muscle pain. (Filing 71 at 1:06:26-1:07:27.) After a physical exam and CT scan,
Jackie was discharged with pain medication and instructions to follow up with her
regular doctor. (Id. at 1:06:00-1:06:20, 1:07:27-1:07:57.) Jackie did not engage in
any activities over the weekend, including Sunday, when she would normally lead
worship at church. (Id. at 1:07:59-1:08:48.)
9.

About a week after the collision, Jackie followed up with her family

physician, Dr. Cannella. (Id. at 1:36:42-1:37:12.) Jackie felt neck and shoulder pain
in addition to tingling in her right hand and fingers. (Id. at 1:37:12-1:37:40.) Dr.
Canella prescribed muscle relaxants.

(Id. at 1:36:42-1:37:12.)

When Jackie’s

symptoms failed to resolve, Dr. Canella referred her to a neurologist.

(Id. at

1:37:40-1:38:05.) The neurologist performed a nerve conduction study and referred
4

her to physical therapy. Ultimately, the neurologist sent Jackie to see Dr. Lindley at
the St. Francis specialty clinic. (Id. at 1:37:55-138:57.)
10.

Beginning in November 2007, Dr. Lindley engaged in a series of

treatments designed to help diagnose the cause of Jackie’s ongoing pain and provide
pain relief. (Id. at 1:49:44-1:50:34; Trial Ex. 7 at 8:22, 18:9-19:12.) Initially, Dr.
Lindley’s treatment plan consisted of physical therapy, massage therapy, muscle
relaxants, and opiate pain medications. (Filing 71 at 1:55:20-1:56:27; Trial Ex. 7,
Dep. David A. Lindley, D.O., at 6:22-28:14 (describing Dr. Lindley’s treatment).)3
When Jackie’s condition continued to linger, Dr. Lindley started on a course of more
invasive procedures including a right occipital nerve block, right suprascapular nerve
block, trigger point injections followed by physical therapy, Botox injections, right
cervical medial branch block, pulsed radio frequency, fluoroscopic guided OA and
AA joint injections, and cervical epidural steroid injections.

(Filing 71 at

1:44:00-1:55:00.) After 10 months of treatment, and when it was evident that none of
these treatment and diagnostic modalities brought significant and long-term relief to
Jackie, Dr. Lindley discussed with Jackie a spinal cord stimulator trial. (Id. at
1:59:21-2:00:40; Trial Ex. 7 at 23:4-16, 26:18-25, 27:6-20.) Dr. Lindley explained
that “one of the benefits of spinal cord stimulation” is “[y]ou get to try it first.” (Trial
Ex. 7 at 29:21-22.) “[I]f you decide that [the stimulator] really improves your pain
and improves your life and improves your function, then you can elect to undergo the
implant which is . . . putting the device under the skin so you can keep it there.” (Trial
Ex. 7 at 29:25-30:6.)
11.

Jackie believed that Dr. Lindley’s recommendations appeared reasonable,

and Jackie followed his medical advice. (Filing 71 at 1:57:15-1:57:51.)

3

I did not consider the portion of Dr. Lindley’s testimony to which the
defendant objects. (Trial Ex. 7 at 16:10-13.)
5

12.

Dr. Lonser took over Jackie’s care when Dr. Lindley accepted a position

as the Director of the Pain Management Fellowship at the University of Miami. (Id.
at 2:00:48-2:00:52; Trial Ex. 7 at 28:10-21.) Dr. Lonser also encouraged Jackie to
consider a spinal cord stimulator. (Filing 71 at 2:00:54-2:01:22.) Jackie passed a
psychological evaluation for the spinal cord stimulator and had a trial stimulator
implanted in which the leads were placed in the epidural space of her spine, but the
battery unit remained outside her body. (Id. at 2:01:22-2:02:38.) The trial stimulator
provided significant pain relief to Jackie, so Dr. Lonser recommended the surgical
placement of a permanent stimulator. (Id. at 2:02:38-2:04:50; Trial Ex. 7 at 31:1832:22.) The permanent stimulator was also initially effective, but failed to provide
long-term pain relief due to the migration of the leads that were placed in her cervical
spine.4 (Filing 71 at 2:04:50-2:08:17; Trial Ex. 7 at 32:6-34:1.) Subsequently, Jackie
had the spinal cord stimulator removed. (Filing 71 at 2:08:17-2:08:30; Trial Ex. 7 at
34:20-24.)
13.

Dr. Perez took over Jackie’s care when Dr. Lonser left the pain clinic.

(Filing 71 at 2:09:32-2:09:47; Trial Ex. 7 at 34:25-35:7.) Dr. Perez began a new
course of treatment consisting of aggressive physical therapy and extended-release
muscle relaxants. (Trial Ex. 9, Dep. Pedro Perez, M.D., at 109:20-112:17; Trial Ex.
7 at 35:8-18.) Dr. Perez discontinued opiate pain medications and prescribed physical
and aqua therapy three times a week in combination with Amrix, Nortriptyline5, and
4

Dr. Lindley testified that one of the recognized risks of implanting a spinal
cord stimulator in the cervical spine is lead migration. Based on Dr. Lindley’s review
of subsequent x-rays, he determined that lead migration was ultimately what caused
Jackie’s stimulator to become ineffective. (Trial Ex. 7 at 33:14-34:21.)
5

Jackie Bowen experienced chronic tension/stress headaches since her college
years, of which her mother and grandmother also suffered. (Filing 71 at 1:19:451:20:45; Filing 72 at 8:45-9:05.) She was prescribed Amitriptyline for her headaches
by her regular medical provider prior to the accident, and she found the drug to be
effective for treating her headaches. (Filing 71 at 1:19:45-1:20:45.) Jackie was taking
Amitriptyline at the time of the accident for her headaches, and she admitted that the
6

Flector patches. (Filing 71 at 2:09:47-2:10:13, 2:14:15-2:19:28; Trial Ex. 9 at
31:15-18; 108:8-24.) The aqua therapy component included myofasical stretching.
(Filing 71 at 2:19:33-2:20:32.) Under Dr. Perez’s care, Jackie made progress toward
her pre-collision condition until she was forced to stop physical therapy due to
financial reasons. (Id. at 2:18:39-2:19:16; Trial Ex. 9 at 111:12-112:17.) Jackie’s
condition has regressed since she stopped physical therapy.

(Filing 71 at

2:20:32-2:22:11.)
14.

If the appropriate witnesses were called to testify by the plaintiffs, such

witnesses would testify that Jackie Bowen has incurred $179,410.65 in medical bills,
but whether such medical services were necessary remains at issue.6 Similarly, if the
appropriate witnesses were called to testify by the plaintiffs, such witnesses would
testify that Jackie Bowen’s past lost wages from the date of the accident to the present
are $6,565.00. (Filing 50, Pretrial Conf. Order at CM/ECF p. 3.) Jackie’s prescribed

Nortriptyline she is taking now is a replacement for the Amitriptyline she was taking
prior to the accident. (Filing 72 at 9:24-10:05; Trial Ex. 103, Dep. Phillip E. Essay,
M.D., at 66:6-19 (“nortriptyline is a very close equivalent to the amitriptyline, and I
believe it was started as a replacement of the amitriptyline”).) Jackie Bowen has spent
$118.63 for Nortriptyline from November 9, 2010, to June 2, 2012. (Trial Ex. 2, List
of Payments for Drugs from Walgreen’s Pharmacy.)
6

The parties originally stipulated that Jackie’s medical expenses since the
accident totaled $191,146.65. However, this amount was reduced by $11,736.00 in
expenses for neuromuscular reeducation which are not related to the accident and
which were inadvertently included in the total medical bills by Plaintiffs’ counsel. As
explained in Defendant’s trial brief, “Although the medical bills incurred by the
Plaintiff . . . were fair and reasonable for the services rendered, not all of the medical
bills that plaintiff has put at issue in this case were medically necessary for the
treatment of the injuries she allegedly sustained in the accident.” (Filing 75 at
CM/ECF p. 2; Filing 79, Def.’s Post-Trial Reply Br. at CM/ECF p. 7 (for purposes of
establishing foundation, Allied stipulated medical bills were fair and reasonable for
treatment received, but that “does not mean that the reasonableness of the treatment
itself is undisputed” (emphasis in original).)
7

future treatment consists of physical and aqua therapy three times a week in
combination with Amrix, Nortriptyline, and Flector patches. (Trial Ex. 9 at 124:1-3;
Filing 71 at 2:18:25-2:19:30.) The cost of this treatment is $4,323.00 per month.
(Trial Ex. 2; Filing 71 at 2:24:50-2:25:49.)

Jackie is 40 years old with a life

7

expectancy of 37.91 years. (Filing 72 at 3:30-3:36.)
Physicians’ Opinions
15.

Dr. Goldner is a board-certified neurologist who performed an

independent medical examination of Jackie Bowen on May 14, 2012. He does not
have training or certification in anesthesiology or pain management, and he stated that
“pain management doctors use different modalities, and they approach it in a different
way.” (Trial Ex. 100, Dep. John C. Goldner, M.D., at 23:22-24:12, 26:12-14.) Dr.
Goldner spent 40 minutes8 with Jackie Bowen personally, three to four hours
reviewing her medical records, and one hour writing his report. (Trial Ex. 100 at
18:25-19:14.)
16.

Dr. Goldner testified that 70 percent of Jackie’s “musculoskeletal

problems” are related to a preexisting condition caused by the 1995 ocean incident,
and 30 percent of her problems were caused by the 2007 collision. (Trial Ex. 100 at
30:15-32:5.)

7

Jackie’s life expectancy is taken from the Commissioners 1980 Standard
Ordinary Mortality Table, cited in Plaintiffs’ brief, but not offered or received as
evidence at trial. (Filing 76 at CM/ECF p. 5 n.3.) Defendant does not object to
Plaintiffs’ reference to this table. See Neb. Rev. Stat. § 44-404 (referring to
Commissioners 1980 Standard Ordinary Mortality Table).
8

Dr. Goldner stated that his physical examination of Jackie took six to ten
minutes and reviewing her medical history with her took 20 to 30 minutes. (Trial Ex.
100 at 9:16-10:13.)
8

I feel that she suffered, in the accident of September 28th, 2007, a mild
musculoskeletal injury to her neck and her right scapular area, the right
shoulder blade, and I think this aggravated her preexisting
musculoskeletal problems, and I consider that it probably aggravated it
by a factor of a third. I said 30 percent.
(Trial Ex. 100 at 31:10-16.) Dr. Goldner believes that the type of injury Jackie
received from the 2007 collision “generally responds to treatment in two to four
months.” Therefore, the treatment Jackie had from the date of the 2007 accident until
January 1, 2008, “was due to the exacerbation of her musculoskeletal symptoms from
the accident of September 28 th, 2007,” but treatment after January 1, 2008, “was
unrelated to the accident of September 28 th, 2007” and was instead necessitated only
by “her chronic musculoskeletal problem that was manifest both by headaches and
right neck pain.” (Trial Ex. 100 at 31:17-32:5, 86:14-19.)
17.

Dr. Goldner added that Jackie’s 1995 ocean injury

was a possible mechanism [that led to her musculoskeletal symptoms].
I’m not sure that anyone can ever truly say to a reasonable degree of
medical certainty why people start having musculoskeletal symptoms.
They can—it can occur with an injury. It can occur with stress. It can
recur—occur with arthritic changes. All sorts of things can trigger
musculoskeletal injuries. But [Jackie Bowen] clearly was having these
symptoms, as documented, prior to the accident of September 28 th, 2007.
(Trial Ex. 100 at 40:11-41:3.)
18.

Dr. Goldner admitted that his 70-30 apportionment opinion is “an

estimate”; that he would have preferred to have said that Jackie’s injury was “worse”
instead of trying “to quantify it specifically”9; that “[t]here’s always room to argue”

9

Defendant’s relevance objection to this testimony is overruled. (Trial Ex. 100
at 47:18-22.)
9

that the percentages could be switched around—that is, that the September 28, 2007,
accident aggravated Jackie’s preexisting condition by 70 percent instead of 30 percent;
and that “you’re asking me to give an objective opinion based on subjective findings.
It can’t be done.” (Trial Ex. 100 at 47:12-48:12, 59:14-16.)
19.

Dr. Lindley, one of Jackie Bowen’s treating physicians who is board-

certified in both anesthesiology and pain management, disagrees with Dr. Goldner’s
apportionment opinion:
I have no idea how he would come up with such numbers. And prior to
the accident, . . . she had various aches and pains and had intermittent
therapies but never sought the care of pain management, to my
knowledge. It was mainly chiropractic and massage. Never . . . had pain
to the degree that she was needing or undergoing procedures or . . .
physical modalities to the intensity that Dr. Perez prescribed.
(Trial Ex. 7 at 38:4-13.)
20.

Defendant’s expert, Dr. Phillip Essay, is board-certified in anesthesiology

and pain medicine. (Trial Ex. 104.) Dr. Essay did not obtain a medical history from
Jackie Bowen, nor did he conduct a physical examination of her. After reviewing
written evaluations by Jackie’s physicians, treatment notes, diagnostic and operative
reports, physical therapy notes, and the depositions of Jackie and Stephen Bowen, Dr.
Essay concluded that “[t]here were certain things that were used to treat Mrs. Bowen
that in the majority of circles in pain medicine are not accepted as . . . medically
necessary or medically indicated” for Jackie Bowen’s diagnosis of myofascial pain 10,

10

According to Dr. Perez, myofascial pain syndrome is when “[s]omething
triggers . . . an abnormal pathological contraction of the muscle. . . . [T]he areas of
contraction that’s going to limit the blood flow to the muscles, there’s going to be
accumulation of metabolites that trigger even a worse contraction that further limits
the blood flow, to then a contraction, so it’s a vicious circle.” (Trial Ex. 9 at 67:2068:13.)
10

such as “pulsed radiofrequency neurotomy, spinal cord stimulation, a supraclavicular
nerve block, and . . . physical therapy . . . that went on for long periods of time with
no clear monitoring and that did not appear to have effectiveness.” (Trial Ex. 103,
Dep. Phillip E. Essay, M.D., at 18:18-19:8.) According to Dr. Essay, while physical
and aqua therapy are “reasonable form[s] of therapy to initiate, to see how the patient
responds,” the ultimate goal of those therapies is to “get the patient back to a
functional status where she can function independently, either of her own choosing
to pursue water therapy in an ongoing basis . . . but to continue it in perpetuity . . . is
inappropriate.” (Trial Ex. 103 at 46:15-47:6.) “Part of treating chronic pain is helping
patients . . . to identify things that they can do independently to help themselves.”
(Trial Ex. 103 at 47:14-20.) Dr. Essay believes that Jackie’s physical and aqua
therapy were appropriate for 90 days. (Trial Ex. 103 at 60:21-61:25.) Dr. Perez, one
of Jackie Bowen’s treating physicians, agreed that “[u]sually, after the initial three
months of physical therapy or whatever amount of physical therapy the patient can
afford . . . we take a break and we see what happens. . . . and if the pain recurs then
they have to go back.” (Trial Ex. 9 at 70:2-10.)
21.

With regard to the spinal cord stimulator, Dr. Essay testified that it is “a

very effective form of therapy in the treatment of neuropathic pain, in other words,
pain that is occurring because of nerve injury or nerve dysfunction. That was not the
diagnosis of Mrs. Bowen.” (Trial Ex. 103 at 27:18-23.) In Dr. Goldner’s opinion,
“the spinal stimulator that was implanted was unnecessary and obviously was of no
benefit since it’s been removed, and I cannot relate that to the accident of September
28 th, 2007.” (Trial Ex. 100 at 32:6-10.)
22.

Dr. Perez, who is board-certified in anesthesiology11, has not “seen an

indication” for the use of “invasive procedures like the nerve blocks or the radio
pulsed frequency” for Jackie Bowen because he has not “seen any indication of any
11

At the time of trial, Dr. Perez planned to take the examination to become
board-certified in pain medicine in 2012. (Trial Ex. 8; Trial Ex. 9 at 11:14-17.)
11

different diagnosis than myofascial pain” 12 since he began Jackie’s medical care.
Because of this diagnosis, “there’s no indication for any other procedures than . . .
what I’ve been doing and the trigger point injections,” especially “since she’s been
doing fine with the initial treatment.” (Trial Ex. 9 at 124:12-126:22.) Dr. Perez
testified that Jackie’s treatment under his supervision consisted of physical therapy,
Amrix, Flector patches, and Nortriptyline, and she should be “followed every six
months . . . to reevaluate and see if she needs to continue or not.” (Trial Ex. 9 at
124:1-11, 128:6-16.) Dr. Perez thinks that “physical therapy is really the primary
treatment for myofascial pain,” as well as “the most effective treatment” for that type
of pain. (Trial Ex. 9 at 127:24-128:4.)
23.

Regarding the types of treatment other physicians gave Jackie before he

began her care, Dr. Perez stated: “I just want to make clear . . . I just don’t feel
comfortable critiquing other people’s approaches to problems because . . . everyone
is different and in pain management specifically, . . . we really do what we can . . . and
try to help them.” (Trial Ex. 9 at 77:13-18.) While Dr. Perez generally believes that
conservative treatment should be tried before more invasive therapies, there
might be some exceptions. . . . [T]he patient says, well, I’ve tried all that
and nothing is working, it’s whatever you want. See, all these invasive
modalities . . . it’s something we try and see what the result is and I make
sure the patient understands this. So if the patient says . . . I’ve tried all
this and nothing has worked, then I might tell the patient . . . your next
step will be to do this. . . . I explain the risks, benefits and explain to
them that this might do nothing for them, but it’s something we can try
and I’ll let the patient decide.
(Trial Ex. 9 at 42:6-24.)

12

Dr. Goldner testified that “myofascial” is “another way of saying
musculoskeletal.” (Trial Ex. 100 at 76:9-11.)
12

24.

Dr. Lindley believes that all treatment delivered by him, Dr. Lonser, and

Dr. Perez was medically necessary, reasonable, and appropriate to treat the injuries
Jackie Bowen suffered as a result of the September 2007 car accident. (Trial Ex. 7 at
36:1-14.) With specific regard to the spinal cord stimulator, Dr. Lindley testified that
Jackie “had tried extensive conservative care and had ongoing pain. . . . She had a
good trial, and that was proof that it was reasonable therapy to put in.” (Trial Ex. 7
at 37:7-11.)
Lifestyle After Collision
25.

Jackie Bowen’s pre-accident pain in her back, neck, and shoulder differed

in type, quality, and intensity than her post-accident pain in the same areas of her
body. Further, prior to the September 2007 collision, Jackie’s activities were not
limited due to ongoing neck, back, and shoulder pain, and she never considered her
headaches and other pain to be debilitating. (Filing 71 at 2:24:11-2:24:50; Filing 72
at 1:20:19-1:22:20.) Since the collision, Jackie feels that she is physically restricted
from engaging in certain activities and must make conscious choices about what she
can and cannot do. (Filing 71 at 2:24:11-2:24:50.) Now, if she engages in certain
activities, she has to forgo others. (Id. at 2:24:11-2:24:50; Filing 72 at 3:36-4:58,
1:34:32-42.)
26.

At trial Jackie described the difference in her pain before and after the

accident:
[The pain is] different in intensity and different in the amount of
debilitating effect that it has. So, prior to the accident I wasn’t not doing
things because of my pain, but following the accident the intensity or .
. . it would make me more tired or actually have more pain doing more
things. Actually made me stop doing things that I’d done before the
accident. . . . I don’t really even think of it as the same type of pain
because it wasn’t something I thought, honestly that I thought a whole
lot about before the accident. It was just kind of like you’re an active
13

person and you have little toddlers and little kids that I’m picking up and
down and so I’m thinking this . . . is kind of . . . you don’t think anything
particularly about it. You just think, well, this is just life . . . having little
kids and being active is what I’d say before. Where after, it’s something
I think about all the time. It’s a 24/7 kind of thing. Whether it’s
restricting me or not restricting me, it’s something that it’s not all I think
about, but it’s part of everything I do and everything that I have become.
. . . It is kind of more of a central focus in my life because it’s become
more debilitating.
(Filing 72 at 1:10:29-1:12:48.) Jackie credibly discussed the effect of this pain on her
activity level:
[B]efore the accident I didn’t have to make—I never had to make
choices as far as what I could do within a day’s time. If I planned to do
something, I did it. I didn’t have to sort of weigh what one activity was
going to cost me and mean that I couldn’t do another activity later that
day.
(Filing 71 at 2:24:07-2:24:50.)
27.

Jackie’s husband, Stephen, is a pastor of church in Grand Island,

Nebraska. (Filing 72 at 1:28:23-1:28:51.) Jackie’s limitations caused by the collision
forced Stephen to scale back his ministry responsibilities and increase his
responsibilities in the Bowen’s seven-person household. (Id. at 1:28:51-1:30:35.)
Jackie’s injuries have also detrimentally impacted the Bowens’ marital intimacy. (Id.
at 1:31:02-1:32:11.) Stephen Bowen described his wife’s physical condition after the
accident as follows:
I would say because of the limitations on her activity due to . . . her
report of feeling pain and being able to just observe what she’s able to
do and even then just before having to rest and recuperate in active . . .
waking hours. They’re not the same and even just even when she is
active and doing things, . . . I recognize this is subjective, but I feel as
14

her husband I can tell when she’s pushing through when she’s hurting
and she’s struggling she’s just doing it anyway. That’s different than
before.
(Filing 72 at 1:32:11-1:33:23.)
28.

Defendant Allied, through counsel, does not deny that Jackie Bowen’s

pain is real and intense:
Q:

[Court] So, if we sit here today, it’s not the position of the
Defendants that this lady is being untruthful regarding her
complaints of pain?

A:

[Counsel] No.

(Filing 71 at 48:29-48:41.)
Insurance Payments
29.

Shortly before October 28, 2010, Shelter offered to tender Moser’s

liability limit of $100,000 to Jackie Bowen. On October 28, 2010, the Bowens
notified Allied of Shelter’s conditional tender of Shelter’s policy limits and offered
Allied the opportunity to substitute its payment for Shelter’s payment under Neb. Rev.
Stat. § 44-6412(2). On November 24, 2010, Allied notified the Bowens that Allied
waived its right to substitute payment, and the Bowens accepted Shelter’s policy-limit
payment of $100,000 on Moser’s behalf. (Filing 50, Pretrial Conf. Order at CM/ECF
p. 3.)
30.

On August 12, 2011, the Bowens made a demand upon Allied for

payment of $250,000 in underinsured motor vehicle benefits under the Policy, and
Allied declined to pay the Bowens. (Filing 50, Pretrial Conf. Order at CM/ECF p. 3.)

15

II. CONCLUSIONS OF LAW
A.

Preliminary Issues
Because federal jurisdiction in this case is based on diversity of citizenship,

state law controls the interpretation of the insurance policy at issue. DeAtley v.
Mutual of Omaha Ins. Co., No. 12-1068, slip op. at 3-4, 2012 WL 5476219 (8 th Cir.
Nov. 13, 2012).
1.

Loss-of-Consortium Claim

Allied contends that Stephen Bowen may not assert a claim for loss of
consortium because such damages are not recoverable under the Policy. (Filing 50,
Pretrial Conf. Order at CM/ECF p. 4.) Accordingly, Allied has filed a motion to
exclude “all evidence of, and reference to, Mr. Bowen’s alleged damages” for “the
loss of consortium, society, comfort and companionship of his wife and the loss of
various household and domestic services” as a result of the accident. (Filing 52 at
CM/ECF p. 1.)
In Nebraska, “[l]oss of consortium claims are derivative.” Rasmussen v. State
Farm Mut. Auto. Ins. Co., 770 N.W.2d 619, 629 (Neb. 2009). That is, the loss is “a
byproduct of and entirely dependent upon the bodily injury” of another. Farm Bureau
Ins. Co. v. Martinsen, 659 N.W.2d 823, 829 (Neb. 2003). “There are not two separate
injuries.” Rasmussen, 770 N.W.2d at 629. Because loss-of-consortium claims are
derivative, Stephen Bowen’s loss is not a separate bodily injury that would provide
additional coverage under the Policy, but is compensable as part of Jackie Bowen’s
per-person coverage. Id. See Martinsen, 659 N.W.2d at 828-29 (parents’ claim of
emotional distress arising from son’s injuries and eventual death after car accident was
derivative of son’s injury and could be “properly combined with the damage award
for their son’s injuries under the $300,000 ‘per person’ limit of the policy,” but no
further payment was available where insurance company had already paid full per16

person limit for son’s medical expenses); Wilson v. Capital Fire Ins. Co., 286 N.W.
331, 332-33 (Neb. 1939) (value of husband’s loss of injured wife’s services and
companionship was recoverable under automobile liability insurance policy as
consequential damage, but no further damages could be awarded where full perperson policy limit had already been paid); 12 Lee R. Russ & Thomas F. Segalla,
Couch on Insurance § 171:5 (3d ed. 2012) (“UM/UIM coverage allows recovery for
loss of consortium. Litigation of this issue often centers on whether or not the loss of
consortium and the underlying physical injury constitute a single claim or separate
claims. If they are the same claim, the recovery is limited by the ‘per claim’ limit
whereas taken as separate claims the ‘per occurrence’ limit would apply. A loss of
consortium claim can be brought by a party other than the injured insured.”)
(footnotes omitted).
Because Stephen Bowen’s claim for loss of consortium is derivative of the
bodily injury suffered by his wife, the Bowens are entitled to present evidence of all
damages stemming from the bodily injury to Jackie Bowen, including Stephen
Bowen’s loss of consortium. However, the Bowens’ recovery will be limited to the
$250,000 per-person limit of the Allied Policy.13 Therefore, Allied’s Motion to
Exclude (Filing 52) evidence regarding Stephen Bowen’s alleged loss of consortium
will be denied.
2.

Exclusion of Some of Dr. Essay’s Expert Opinions

Allied has filed a statement of objections (Filing 66) to Magistrate Judge
Zwart’s order (Filing 65) finding that (1) Dr. Philip Essay’s additional expert report
dated July 19, 2012, was untimely; (2) Dr. Essay’s additional expert report was in the
nature of a new opinion, not a correction or explanation of a prior opinion; (3) Dr.

13

The plaintiffs acknowledge that they “do not seek to trigger the additional per
occurrence coverage under the policy.” (Filing 64, Pls.’ Br. Opp’n Def.’s Mot.
Exclude at CM/ECF p. 5.)
17

Essay’s additional report caused prejudice to the plaintiffs; and (4) two of the three
opinions14 contained in Dr. Essay’s July 19, 2012, report should be excluded.
Because I conclude that Magistrate Judge Zwart’s nondispositive pretrial order
is not “clearly erroneous or contrary to law,” I shall deny Allied’s statement of
objections.

(Filing 66.)

28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).

Accordingly, I have not considered those portions of Dr. Essay’s July 2012 second
expert report that state (1) that all or part of Jacqueline Bowen’s chronic neck and
upper back pain existed prior to the September 28, 2007, accident and (2) that
Jacqueline Bowen’s opiate prescriptions were not medically necessary after April 30,
2008. I have, however, considered Dr. Essay’s opinion regarding the propriety and
necessity of suprascapular nerve blocks for treating Jackie Bowen’s injuries. (Filing
65, Magistrate Judge’s Mem. & Order.)
B.

Monetary Value of Plaintiffs’ Damages
The parties agree that since the date of the accident, Jackie Bowen has incurred

$179,410.65 in medical bills and $6,565.00 in lost wages. However, Allied disputes
the nature, extent, and proximate cause of these alleged injuries and damages.
Specifically, Allied argues that: (1) not all of these medical expenses were necessary
for the treatment of injuries Jackie Bowen allegedly sustained in the accident because
some of the medical expenses were incurred to address conditions that were unrelated
to the accident, some were related to pre-existing injuries that were merely
exacerbated by—not caused by—the accident, and some were not medically necessary
14

Magistrate Judge Zwart ruled that Dr. Essay could not testify “that all or part
of Jacqueline Bowen’s chronic neck and upper back pain existed prior to the
September 28, 2007 accident” or “that opiate prescriptions were not medically
necessary after April 30, 2008.” (Filing 65 at CM/ECF p. 9.) However, Magistrate
Judge Zwart allowed Dr. Essay to “testify regarding the propriety and necessity of
suprascapular nerve blocks for treating Jacqueline Bowen’s injuries.” (Filing 65 at
CM/ECF p. 10.)
18

or appropriate for the nature of Jackie Bowen’s alleged injuries; and (2) Jackie
Bowen’s alleged lost wages were not proximately caused by the collision. (Filing 75,
Def.’s Trial Br. at CM/ECF pp. 2-3.)
The Bowens maintain that because Allied has not proved that damages caused
by Jackie’s alleged preexisting condition can be separated from damages caused by
the collision, Allied is responsible for all damages caused by the responsible driver’s
negligence up to the Policy limits, including damages caused by the exacerbation of
a preexisting condition. The Bowens submit that even if I were to accept Allied’s
claim that only 30 percent of Jackie’s damages were caused by the collision, her total
damages still exceed Allied’s Policy limits. Further, the Bowens argue that simply
because various medical providers disagree about the most appropriate or effective
treatment for Jackie’s condition does not make Jackie’s treatment medically
unreasonable. (Filing 76, Pls.’ Post-Trial Br. at CM/ECF p. 6.)
In order to recover against Allied on the Policy, the Bowens must prove, by the
greater weight of the evidence, that Chris Moser (the driver whose car hit Jackie’s
vehicle) was negligent; that this negligence was a proximate cause of the collision;
that the collision was a proximate cause of some damage to the Bowens; and the
nature and extent of that damage. NJI2d Civ. 2.01(B) (West 2012). Allied does not
contest that Moser’s negligence was the proximate cause of the September 28, 2007,
collision between Moser and Jackie Bowen, or that the collision was a proximate
cause of some damage to the plaintiffs. Therefore, the issues for decision are (1)
whether the collision aggravated a preexisting condition for which damages can be
apportioned, and (2) whether all of Jackie Bowen’s treatment was medically
necessary. If Jackie and Stephen Bowen’s damages are found to be equal to or less
than the $100,000 they have already received from Shelter Insurance Company on
behalf of Chris Moser, then the Bowens are not entitled to receive additional money
from defendant Allied.

19

1.

Preexisting Condition

In an action for damages for personal injuries caused by a wrongful act
or omission, the injured person is entitled to recover full compensation
for all damage proximately resulting from the defendant’s act, even
though his injuries may have been aggravated by reason of his
preexisting physical or mental condition, rendered more difficult to cure
by reason of his state of health, or more serious, because of a latent
disease, than they would have been had he been in robust health. The
defendant cannot invoke the previous condition of the person injured for
the purpose of escaping the consequences of his own negligence or
reducing the damages for which he is liable. The right of a person
suffering from a disease, who is injured by reason of the negligence of
another, to recover for all damages proximately resulting from the
negligent act, includes the right to recover for an aggravation of that
existing disease.
McCall v. Weeks, 164 N.W.2d 206, 210 (Neb. 1969).
The Nebraska Supreme Court has consistently held “the right of a person
suffering from a preexisting condition who is injured by reason of the negligence of
another to recover for all damages proximately resulting from the negligent act
includes the right to recover from an aggravation of the preexisting condition.”
Wasiak v. Omaha Pub. Power Dist., 568 N.W.2d 229, 234 (Neb. 1997) (citing
Ketteler v. Daniel, 556 N.W.2d 623 (Neb. 1996); Kirchner v. Wilson, 554 N.W.2d 782
(Neb. 1996); David v. DeLeon, 547 N.W.2d 726 (Neb. 1996)). See also Castillo v.
Young, 720 N.W.2d 40, 46 (Neb. 2006) (“if a plaintiff has a preexisting condition and
the defendant’s conduct resulted in greater damages because of that preexisting
condition, the defendant is nonetheless liable for all damages proximately caused by
the defendant’s conduct”).
Allied is responsible for all damages Jackie Bowen suffered as a result of the
injuries she sustained in the collision unless Allied can satisfactorily prove that the

20

damages “caused by the preexisting condition can be separated from those caused by
the accident.” DeLeon, 547 N.W.2d at 729. “Once the plaintiff presents evidence
from which a jury reasonably can find that damages were proximately caused by the
tortious act, the burden of apportioning damages resulting from the tort rests squarely
on the defendant.” DeLeon, 547 N.W.2d at 730; Higginbotham v. Sukrup, 737
N.W.2d 910, 917 (Neb. Ct. App. 2007).
If there is any uncertainty regarding whether the injuries can be apportioned,
the doubt is resolved against the defendant. Under “DeLeon, all . . . injuries are
attributed to the defendants unless the defendants present evidence contradicting such
an assumption. The uncertain interaction between negligence and preexisting
condition does not require speculation on the part of the [fact-finder], because DeLeon
resolves uncertainty against the defendants.” Synder v. Contemporary Obstetrics &
Gynecology, P.C., 605 N.W.2d 782, 798 (Neb. 2000).
Allied relies on the opinion of Dr. Goldner that 70 percent of Jackie’s injuries
are related to a preexisting condition and 30 percent were caused by the collision. Dr.
Goldner acknowledged that despite his testimony that Jackie’s damages could be
apportioned between her preexisting condition and the damages caused by the
accident, he normally would not, in practice, attempt to quantify the exacerbation of
a preexisting injury, but only did so in this case at the encouragement of Allied’s
counsel. (Trial Ex. 100 at 47:12-22.)
A.
You basically are making an estimate. It—there is no way of being
—I was asked and I was told that it was important that I try to give some
quantification to this because it was incumbent on—in this report that I
make a statement to—in that respect, and that’s why I put that down.
Q.
If you had not been asked to do that, would you typically try and
come up with a quantification like that?

21

A.
I would have said it was worse. I would have not tried to quantify
it specifically.
....
Q.
So when we talk about the—this 30 percent, 70 percent, is it
possible that they could be switched, could be 70 percent, 30 percent?
A.

There is always room to argue.

(Trial Ex. 100 at 47:12-48:12.)
Dr. Goldner also forthrightly acknowledged the inherent unreliability in
attempting to divide the portion of an injury related to a preexisting condition and that
part caused by a trauma, particularly when the injury involves subjective complaints
of pain and is not accompanied by objective medical findings, as in this case:
A.
I am not convinced that there is anything authoritative. We use
guides because you have to get somewhere, but I will tell you that in
having used the guides through six editions, they don’t keep writing new
editions because they got it right. They keep writing new editions
because they’ve got it wrong and they’re trying to make it better. We’re
a long way from truth as it relates to that. And so much of it is
subjective.
Q.
And it’s based on your subjective interpretation, not any objective
findings or things like that?
A.
She has no objective findings. . . . So you’re asking me to give an
objective opinion based on subjective findings. It can’t be done.
(Trial Ex. 100 at 58:19-59:16 (emphasis added).)
Treating physician Dr. Lindley testified that it is not possible to apportion
Jackie’s damages between any possible preexisting problem and the injuries she
22

sustained in the collision. With regard to Dr. Goldner’s 70/30 apportionment opinion,
Dr. Lindley stated:
I agree she had various aches and pains [prior to the collision], but I
believe they were different in quality, location, the effect on her life, and,
you know, generally different intensity and limiting-type symptoms.
....
I have no idea how [Dr. Goldner] would come up with such numbers.
And prior to the accident . . . she had various aches and pains and had
intermittent therapies but never sought the care of pain management, to
my knowledge. It was mainly chiropractic and massage. Never, you
know had pain to the degree that she was needing or undergoing
procedures or . . . physical modalities to the intensity that Dr. Perez had
prescribed.
(Trial Ex. 7 at 37:17-38:4-13.)
In contrasting Jackie’s prior condition with her post-collision condition, Dr.
Perez—also one of Jackie’s treating physicians—stated:
[W]hen I looked at [Exhibit 5]15 I just noticed right away it’s—this is
more of an intermittent issue and something must have changed between
all this and the point where you decide to go to a chronic pain clinic.
Again, is it a coincidence? It’s possible, I guess, I mean but the fact that
there’s an accident involving the same time period, you know, raises the
possibility that this is an exacerbation after the accident. . . . as a pain
specialist you really have to think of it because we see this all the time.
I have a little bit of a problem, with my back, but all of a sudden
something happened, boom, and this is when everything triggered this
big problem.

15

Trial Exhibit 5 is a summary of Jackie Bowen’s medical history in list form
which shows dates and locations of treatment and reasons for treatment.
23

(Trial Ex. 9 at 130:7-24.)
In evaluating the opinions on apportionment offered by Allied, “the trier of fact
is the sole judge of the credibility of witnesses and the weight to be given their
testimony.” Lynn v. Metro. Util. Dist., 403 N.W.2d 335, 338 (Neb. 1987).
By his own admission, Dr. Goldner agrees that his apportionment percentage
is an estimate based on purely subjective factors, and there are no medically
authoritative works governing how to apportion damages between a preexisting
condition and a new injury, especially when the injury is unaccompanied by objective
medical findings, as in this case. Dr. Lindley offered his opinion that it is not possible
to do so. Further, Dr. Goldner’s opinion is contradicted by Jackie’s past medical
history, the nature of her medical treatment, and Jackie and her husband’s description
of how she felt in the years prior to the 2007 collision and the years after the 2007
accident.
Given the conflicting evidence and the legal requirement that any uncertainty
in apportionment be resolved against Allied, I conclude that Allied has failed to
establish that damages related to any preexisting condition can be separated from the
damages Jackie suffered in the accident. Synder, 605 N.W.2d at 798. As a result,
Allied is responsible for all of Jackie’s damages.
2.

Medical Necessity of Treatment

The Bowens are entitled to recover an amount of damages that will fairly
compensate them for injury proximately caused by Chris Moser, the driver who was
responsible for the September 28, 2007, collision, including the “reasonable value of
the medical care and supplies reasonably needed by and actually provided to the
plaintiff (and reasonably certain to be needed and provided in the future).” NJI2d Civ.
4.01 (West 2012).

“As a general matter, the proper measure of damages in a

negligence action is that which will place the aggrieved party in the position in which
24

he or she would have been had there been no negligence.” World Radio Laboratories,
Inc. v. Coopers & Lybrand, 557 N.W.2d 1, 13 (Neb. 1996). “Regarding future
medical expenses, the amount need not be established with exact certainty. The need
for future medical services and the reasonable value thereof may be inferred from
proof of past medical services and their value.” Schaefer v. McCreary, 345 N.W.2d
821, 824 (Neb. 1984).
Dr. Lindley testified that all of the treatment Jackie received under his care, as
well as under the care of Drs. Lonser and Perez, was medically necessary to treat the
injuries Jackie suffered as a result of the collision. (Trial Ex. 7 at 35:19-36:21.) In
contrast, Drs. Essay and Goldner asserted that some of the treatment provided by Drs.
Lindley, Lonser, and Perez was not medically necessary. While Dr. Essay’s and Dr.
Goldner’s opinions express their personal preference for certain types of treatment for
conditions like Jackie’s, these opinions do not preclude Jackie from recovering the
value of medical care and supplies reasonably needed and actually provided to her as
a result of the collision.
After the collision, Jackie’s medical treatment occurred in conservative,
incremental, and more invasive steps based upon the ineffectiveness of each treatment.
After 10 months of treatment, and when it was evident that none of these treatment
modalities brought significant and lasting relief, Dr. Lindley discussed with Jackie a
spinal cord stimulator trial. When Dr. Lindley accepted a position as the Director of
the Pain Management Fellowship at the University of Miami, Dr. Lonser overtook
Jackie’s medical treatment, and he also encouraged her to consider a spinal cord
stimulator. Because the trial stimulator provided significant pain relief to Jackie, Dr.
Lonser not unreasonably recommended the surgical placement of a permanent
stimulator. When Dr. Lonser left the pain clinic, Dr. Perez began a new course of
treatment consisting of aggressive physical and aqua therapy and extended-release
muscle relaxants.

25

While certain therapies Jackie received may not be preferred treatments in “the
majority of circles in pain medicine” for her diagnosis of myofascial pain (Trial Ex.
103, Dep. Phillip E. Essay, M.D., at 18:18-19:8), “everyone is different and in pain
management specifically, . . . we really do what we can . . . and try to help them.”
(Trial Ex. 9, Dep. Pedro Perez, M.D., at 42:6-24, 77:13-18 (“all these invasive
modalities . . . it’s something we try and see what the result is and I make sure the
patient understands this. So if the patient says . . . I’ve tried all this and nothing has
worked, then I might tell the patient . . . your next step will be to do this. . . . I explain
the risks, benefits and explain to them that this might do nothing for them, but it’s
something we can try and I’ll let the patient decide”).) Defendant Allied’s contention
that Jackie’s various medical treatments were not reasonably needed is simply an
expression of a debate among physicians regarding the most effective treatment for
an elusive pain condition. As Dr. Goldner stated, “Doctors disagree.” (Trial Ex. 100
at 58:5.)
I conclude that most of the medical treatment Jackie Bowen received as a result
of the September 28, 2007, collision was “reasonably needed by and actually
provided” to her, NJI2d Civ. 4.01 (West 2012)—however, there are two exceptions.
First, the cost of Nortriptyline and Amitriptyline are not recoverable because Jackie
Bowen was taking Amitriptyline before the accident, and she began taking
Nortriptyline as a replacement for the Amitriptyline. Second, I cannot conclude that
the defendant should bear the cost of Jackie Bowen’s physical and aqua therapy
beyond 90 days of treatment, as physicians for both parties testified that three months
of such therapy was appropriate initially, with further evaluation to occur as
necessary. (Trial Ex. 103, Dep. Phillip E. Essay, M.D., at 60:21-61:25 (Plaintiff’s
physical and aqua therapy was appropriate for 90 days); Trial Ex. 9, Dep. Pedro Perez,
M.D., at 70:2-10 (“Usually, after the initial three months of physical therapy or
whatever amount of physical therapy the patient can afford . . . we take a break and
we see what happens. . . . and if the pain recurs then they have to go back.”).) To
continue such therapies “in perpetuity . . . is inappropriate.” (Trial Ex. 103 at 46:1547:6.)
26

As far as medical treatment reasonably certain to be needed by, and provided
to, Jackie Bowen in the future due to her injuries from the car accident, Dr. Perez
testified that Jackie’s treatment should consist of physical and aqua therapy three
times a week, along with prescriptions for Amrix, Nortriptyline, and Flector patches.
(Trial Ex. 9 at 124:1-3; Filing 71 at 2:18:25-2:19:30.) The cost of this treatment
would be $4,323.00 per month.
As explained above, I shall not award damages for further physical and aqua
therapy or for Jackie Bowen’s Nortriptyline prescription. However, it is reasonably
certain that Jackie will need to continue her Amrix and Flector prescriptions.
According to Jackie’s summarized prescription records, Jackie’s Amrix prescription
averages $234.34 per month, and her Flector patches cost an average of $280.67 per
month, for a monthly total of $515.01.16 (Trial Ex. 2, at pp. 13-15 (under “Walgreen’s
Pharmacy” heading).) Because the evidence indicates that Jackie’s pain has been
unrelenting since the accident, and there is no indication that the pain is likely to
diminish or disappear over time, I determine that the Bowens are entitled to damages
for this monthly prescription cost for the duration of Jackie Bowen’s 37.91-year life
expectancy.
3.

Calculation of Damages17

In addition to Jackie’s damages for medical care and supplies and lost wages,
the plaintiffs also request damages for pain, suffering, and loss of consortium. These

16

Trial Exhibit 2 shows a total of $4,921.16 in Amrix prescriptions for a period
of 21 months, for an average of $234.34 per month. Exhibit 2 also shows a total of
$1,122.69 in Flector prescriptions over a four-month period, for an average of $280.67
per month. It is not clear whether Jackie’s prescriptions for Lidoderm from October
2010 to January 2012 are the same or similar to her Flector prescription, so only the
latter was used to calculate the monthly average.
17

See Trial Exhibit 2 for a summary of Jackie Bowen’s medical bills.
27

types of damages are ones “for which ‘the law provides no precise measurement,’”
Carlson v. Okerstrom, 675 N.W.2d 89, 111 (Neb. 2004) (quoting Brandon v. County
of Richardson, 653 N.W.2d 829, 837 (2002)), and which “require less certain proof.”
NJI2d Civ. 4(A)(3)(West 2012).
Jackie described to the court in detail the pervasiveness of pain in her daily life
since the date of the accident; the litany of unsuccessful medical procedures,
physicians, prescriptions, and types of therapy she has endured since the collision; her
daily physical limitations; and the fact that her pain has become, in her words, “part
of everything I do and everything that I have become. . . . It is kind of more of a
central focus in my life because it’s become more debilitating.”

(Filing 72 at

1:10:29-1:12:48.) The level of Jackie’s pain is evident to her husband, who testified
that he “can tell when she’s pushing through when she’s hurting and she’s struggling
she’s just doing it anyway.” (Filing 72 at 1:32:11-1:33:23.) Jackie’s husband also
credibly told the court about how the adverse effects of the collision on Jackie’s health
have required him to reduce his workload as a church pastor, to increase his domestic
responsibilities in the Bowens’ seven-person household, and to experience a decrease
in marital intimacy.
Based on this testimony, I conclude that Jackie Bowen may recover $25,000 for
her pain and suffering, and Stephen Bowen is entitled to $10,000 for loss of
consortium. A summary of the damages Plaintiffs have incurred, and will continue
to incur, as a result of the September 28, 2007, accident is set forth below:

28

Original stipulated medical expenses
from date of accident to time of trial

$191,146.65
-$53,077.00

Subtract physical and aqua therapy
provided after 90 days (also
subtracting neuromuscular reeducation
costs which parties agree should be
deleted)

-$118.63

Subtract Nortriptyline from
prescription drug costs incurred as of
time of trial

$137,951.02

TOTAL ALLOWABLE MEDICAL
EXPENSES UP TO DATE OF TRIAL
Amrix & Flector prescriptions per
month for Jackie Bowen’s lifetime
($515.01 per month x 12 months =
$6,180.12 per year x 37.91 years life
expectancy = $234,288.35)18

$234,288.35

Stipulated lost wages from date of
accident to time of trial

$6,565.00

Jackie’s pain & suffering

$25,000

Stephen’s loss of consortium

$10,000

TOTAL DAMAGES RESULTING
FROM ACCIDENT

$413,804.37

Subtract payment from Shelter
Insurance Company on behalf of
negligent driver, Chris Moser

-$100,000

NET AMOUNT OF DAMAGES

$313,804.37

18

If this gross number is reduced to present value, the net amount of damages
shown at the end of this table nevertheless substantially exceeds $250,000.
29

Therefore, defendant Allied is responsible for paying the Bowens $250,000
pursuant to the underinsured motor vehicle benefits provision of insurance policy
number PPC 0014076466-3 issued by Allied to the Bowens. Accordingly,
IT IS ORDERED:
1.

Defendant Allied Property and Casualty Insurance Company’s Motion

to Exclude (Filing 52) evidence of plaintiff Stephen T. Bowen’s alleged loss of
consortium is denied.
2.

Defendant Allied Property and Casualty Insurance Company’s statement

of objections (Filing 66) to Magistrate Judge Zwart’s order (Filing 65) regarding the
exclusion of supplemental expert opinions offered by Dr. Phillip Essay is denied.
3.

Judgment shall be entered in favor of plaintiffs Jacqueline and Stephen

Bowen and against defendant Allied Property and Casualty Insurance Company in the
amount of $250,000, the underinsured motorist coverage amount contained in
automobile insurance policy number PPC 0014076466-3 issued by defendantAllied
to the plaintiffs. However, judgment shall be withheld pending resolution of the issue
of attorneys’ fees.
4.

The plaintiffs may file an application for reasonable attorneys’ fees

pursuant to Neb. Rev. Stat. § 44-359 19 and the Local Rules of Practice of the United
States District Court for the District of Nebraska on or before December 20, 2012.

19

Neb. Rev. Stat. § 44-359 provides in part: “In all cases when the beneficiary
. . . brings an action upon any type of insurance policy . . . against any company . . .
doing business in this state, the court, upon rendering judgment against such company,
. . . shall allow the plaintiff a reasonable sum as an attorney’s fee in addition to the
amount of his or her recovery, to be taxed as part of the costs.”
30

The defendant may file a response to such application on or before January 3, 2013,
and the plaintiffs may file a reply on or before January 10, 2013.
DATED this 6 th day of December, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
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