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Two Rivers Bank & Trust, As Conservator For K.H. A Minor; Kala v. Vanya Ilieva Atanasova; Venture One

July 24, 2012

TWO RIVERS BANK & TRUST, AS CONSERVATOR FOR K.H. A MINOR; KALA HOLTKAMP, INDIVIDUALLY; TIA HAMM, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF CHRISTOPHER D. DAVIS; NICHOLAS W. FINLEY, INDIVIDUALLY, PLAINTIFFS/APPELLEES,
v.
VANYA ILIEVA ATANASOVA; VENTURE ONE, INC., DEFENDANTS/APPELLANTS.



Appeal from the United States District Court for the Southern District of Iowa.

The opinion of the court was delivered by: Murphy, Circuit Judge.

Submitted: May 15, 2012

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

This negligence action grew out of a highway collision in Iowa. Kala Holtkamp was driving at night with her fiance, Christopher Davis, and her two year old son, K.H., when she collided with the rear of a semi truck driven by Vanya Ilieva Atanasova. Davis was killed, K.H. was seriously injured, and Holtkamp fractured a vertebra in her neck. Holtkamp, K.H.'s father, and representatives for Davis and K.H. brought this action for negligence and loss of consortium against Atanasova and Venture One, Inc., the truck's dispatcher. A jury found both Atanasova and Holtkamp negligent, apportioning 90% of the fault to Atanasova and 10% to Holtkamp, and awarding more than $3.6 million in damages to the appellees. Atanasova and Venture One filed several post trial motions, which the district court denied. Atanasova and *fn1 Venture One appeal from the judgment and the denial of the post trial motions. We affirm.

I.

Kala Holtkamp, Christopher Davis, and K.H., residents of Iowa, were traveling south on highway 218 at approximately 7:00 p.m. on February 20, 2008. It was dark, and the evening was clear. Holtkamp, who was 18 at the time, was driving in the right lane on an unlit portion of the highway when she crested a hill near exit 45 in Mount Pleasant, Iowa. Within about ten seconds she saw a semi truck also traveling southbound and driven by Vanya Ilieva Atanasova, a resident of Maryland. The truck was traveling between 30 and 40 miles per hour below the posted speed limit of 65 mph. When Holtkamp realized she was about to hit the truck, she slammed on her brakes and swerved into the left lane to try to avoid a collision. Unfortunately, the passenger side of her car hit the rear of the trailer and skidded underneath it before hitting the left guardrail and rolling over. Davis was killed, and K.H. suffered an open skull fracture, and will require ongoing medical care. Holtkamp fractured one of the vertebrae in her neck and lacerated her left hand. Atanasova was not injured; nor was her 19 year old son who was traveling with her.

In the joint complaint Holtkamp sued Atanasova and Venture One, the truck's Illinois based dispatcher, under the district court's diversity jurisdiction for common law negligence and loss of consortium with K.H. Two Rivers Bank and Trust, K.H.'s conservator, brought a claim for negligence. Tia Hamm, Davis's mother, sued for negligence on behalf of her son's estate and for loss of consortium in her individual capacity. Nicholas Finley, K.H.'s father, brought a claim for loss of consortium with K.H. The case proceeded to an eight day jury trial.

In a videotaped deposition played for the jury Signe Young, who had been parked facing north on the shoulder of highway 218 at the time of the crash, testified that her semi truck had broken down. While waiting for help she noticed another parked semi truck facing the opposite direction. It was parked for several minutes on the shoulder near the off ramp for exit 45 in what she described as a "weird place to stop." She observed the truck start to move back onto the highway and "shortly after that . . . [she] heard something not right," saw headlights bounce around, and realized there had been an accident.

Rachella Dravis was the first person to come upon the accident site. She testified at trial that she had been traveling south on highway 218 behind Holtkamp. When she crested the hill, she saw lights moving up and down in front of her. She slammed on her brakes and came to a stop "entirely too close" to Holtkamp's car. Dravis called 911 and reported the accident at 7:03 p.m. She testified that she observed Atanasova's truck on the shoulder without any lighting on the side or rear of the trailer. Dravis testified that she turned on all the lights in her car and activated her flashers, but several trucks were still unable to stop after coming over the hill and ended up driving through the scene.

An officer with the state department of transportation inspected Atanasova's truck after the accident. He testified that the lights at the top rear of the trailer were not operational and that Atanasova had told him on the night of the accident that she was not sure whether they had been working at the time Holtkamp hit her truck. The officer stated that Atanasova had informed him that the accident occurred after she had slowed to between 45 and 50 miles per hour while looking for the Mount Pleasant exit. In her trial testimony Atanasova acknowledged that her cell phone records showed that her phone was in use from 7:01 p.m. until 7:06 p.m., spanning the time of the accident.

An accident reconstructionist testifying for the plaintiffs stated that there had been no indication that Atanasova was moving onto the exit ramp at the time of the crash. The accident appeared to have occurred directly parallel to the start of the exit ramp. Atanasova's truck was still completely within the right hand travel lane at the time it was hit. The reconstructionist testified that Atanasova was actually traveling between 24 and 35 mph when the accident occurred and that Holtkamp was traveling between 56 and 63 mph. The posted speed limit was 65 mph. Holtkamp would have had an unobstructed view of the truck for approximately 13 seconds after she crested the hill had the truck been visible. The reconstructionist attributed the accident to the significant speed differential between the two vehicles and Atanasova's failure to signal her slow speed to other vehicles.

The state trooper who responded to the accident also testified at trial, stating that he had not found evidence that Atanasova's truck had been parked on the shoulder. He offered his opinion that the accident occurred because Holtkamp had not realized how slowly the truck was moving and did not have enough time to react and that Atanasova could not have taken any action to avoid the impact. Appellants sought the court's permission to question the trooper about a citation he gave to Holtkamp for following too closely and the fact that he had not cited Atanasova. The district court denied this request and allowed the plaintiffs to redact the references to Holtkamp's citation in exhibits before the court.

At trial Holtkamp described her recollection of the accident and the injuries she and her son suffered. She explained that just before the crash she had been talking to Davis about the upcoming weekend and that K.H. was content in his car seat. She testified that she had not seen brake or tail lights on the truck nor any reflection off the trailer's steel doors or reflective strips. She stated that she had not seen the truck at all until she unsuccessfully tried to avoid hitting it.

Holtkamp sought damages associated with pain in her neck, shoulder, arm, and hand in the form of past medical expenses and lost wages, past and future physical and mental pain and suffering, and loss of full mind and body in the past and future. The district court admitted Holtkamp's medical records and bills over defense objections. The doctor who treated Holtkamp on the night of the accident testified that she had suffered from a spinal fracture and that she had described experiencing pain in her neck but not elsewhere. He prescribed pain medication and transferred her care to another facility and did not treat Holtkamp again. Holtkamp was instructed to wear a cervical collar 24 hours a day for six to eight weeks to treat her neck injury.

On cross examination Holtkamp admitted that she had taken the cervical collar off at times during the weeks she was supposed to wear it because it was causing pain. She explained that she was eventually refitted with a smaller collar. She was also questioned about injuries she had suffered from four incidents which occurred after the crash. Holtkamp admitted that she had strained her neck and lower back falling down some stairs, that she had been treated for neck pain after moving boxes, that she had been beaten by a boyfriend who hit her in the head, and that she had been treated for injuries to her eye, nose, and neck after being assaulted by a roommate. Holtkamp maintained that the pain she began experiencing after the accident had not changed as a result of these incidents. She also testified that the pain and numbness she began to experience after the accident in her shoulder and arm has made her work as a house cleaner more difficult and has limited her ability to play softball and volleyball as she did in the past. Appellants sought a jury instruction on failure to mitigate damages which the district court declined to give.

Appellants also cross examined Holtkamp about the side effects of her prescription medications for panic attacks and bipolar disorder and objected to the exclusion of evidence from a mental health screening. There, Holtkamp had admitted using marijuana daily beginning at age 14 until two months after the accident. She stated she smoked marijuana as much as five times a day, then stopped for several months at a time including when she was pregnant, but eventually started again. The screening did not specify if she was smoking marijuana regularly at the time of the accident. Holtkamp denied ...


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