$900,000 Verdict Affirmed After Gravel Truck Crosses Center Line in South Dakota

On January 9, 2014, Gene Weber was driving his pickup truck south on Highway 25 near Emery, South Dakota, a two-lane road with no shoulder, returning to a job site after lunch. Gerald Rains was headed north in a semi-tractor pulling a side-dump trailer, hauling gravel from a quarry to a bridge maintenance project for his employer, Sioux City-based K & L Construction, Inc. Rains had a coughing fit and drifted across the centerline. Both drivers swerved to avoid a head-on collision, but the tractor-trailer's rear axle struck the front driver's side of Weber's pickup, spinning it into the opposite ditch.

Weber, a self-employed carpenter and contractor, woke the next morning feeling beat up, with pain in his shoulders, upper and lower back, and a headache. Physical therapy gave him only short-term relief. An MRI ordered by an orthopedic surgeon came back essentially normal, and the diagnosis settled on chronic myofascial pain. Chiropractic care eventually eased his low back and left shoulder, but the right shoulder pain and the headaches stayed. A second orthopedic surgeon called it a myofascial whiplash injury; a physiatrist diagnosed cervical facet pain and offered injections and radiofrequency ablation, which Weber declined in favor of over-the-counter medication and continued chiropractic treatment. His treating providers told the jury the condition was permanent: Weber would never be pain free, and treatment could only reduce his symptoms rather than resolve them. K & L Construction and Rains put on no expert medical testimony of their own to contest any of it.

Liability was not seriously in dispute. The defendants had already admitted fault and agreed to cover Weber's medical bills and property damage before trial, leaving the jury to decide only the extent of his damages. In Hanson County Circuit Court, before Judge Patrick T. Smith, a three-day trial ended in February 2018 with a verdict totalling $900,000: $813,480 to Weber for pain and suffering, loss of enjoyment of life, mental anguish, and disability; $31,000 for future chiropractic care; $35,520 for lost wages; and $20,000 to his wife, Clarissa Weber, on her loss of consortium claim.

K & L Construction and Rains appealed, arguing the trial court had abused its discretion by allowing the permanency testimony and that the size of the verdict showed the jury had acted out of passion or prejudice rather than on the evidence. They pressed the point that this was a soft tissue injury treated with over-the-counter pain relievers. The South Dakota Supreme Court disagreed on every point. In a unanimous opinion issued September 4, 2019, the court held the treating providers were properly allowed to testify about prognosis and permanency, and it found the pain and suffering award supported by the record: Weber was 44 at trial with an actuarially based life expectancy of another 37.5 years, his providers agreed the pain was permanent, and his family testified to the irritability, fatigue, and lost motivation that came with it. The court called the evidentiary record decidedly one-sided, noting the defense had disputed the permanency testimony without engaging any expert of its own. The full $900,000 verdict stood.

Michael D. Bornitz, Kimberly R. Wassink, Robert D. Trzynka, and Samuel A. Krystosek of Cutler Law Firm, LLP in Sioux Falls represented the Webers at trial and on appeal. Ross M. Wright and Dana Van Beek Palmer of Lynn, Jackson, Shultz & Lebrun, P.C. represented the defendants. South Dakota caps non-economic damages only in medical malpractice cases, so no cap applied to an ordinary trucking negligence verdict, and the jury awarded no punitive damages. The affirmance closed out the case at the full trial verdict.