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Poland v. Webb
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 104
Docket:	Kno-96-853
Submitted
 on Briefs:	October 17, 1997
Decided:	May 13, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.




LEE POLAND v. ANITA WEBB


DANA, J.

	[¶1]  Lee Poland appeals from the judgment entered in the Superior
Court (Knox County, Marsano, J.) in favor of Anita Webb on his complaint
against her for damages resulting from an automobile accident.  Poland
contends that the court erred by improperly instructing the jury regarding
multiple causation, aggregate injury, and the distinction between a
preexisting injury and a preexisting condition.  Poland also contends that
the jury's finding that he suffered no injury as a result of the accident is
irrational and should be set aside.  Finally, Poland contests the award of
costs to Webb.  We find no error in the jury instructions or the jury verdict. 
We do, however, find error in the award of costs, and remand for a
reconsideration of that limited issue.
	[¶2]  On August 16, 1993, Webb lost control of her car and as a result
it struck another car stopped at a stoplight.  That second vehicle was
propelled by the force of the impact into a third, which in turn was
propelled into a fourth vehicle.  Poland's vehicle, which was struck by the
fourth vehicle, suffered minor damage to its rear bumper.
	[¶3]  At the time of the collision Poland was sitting in the front
passenger seat turned toward his wife, who was driving.  The impact pushed
both Poland and his wife into the dashboard of their vehicle.  Poland
immediately left his vehicle to check on the condition of the occupants of
the other vehicles.  Shortly thereafter an ambulance arrived.  Poland
complained to the emergency medical technicians of neck and lower back
pain.  The ambulance took Poland and Webb to Penobscot Bay Medical
Center, where Poland was examined, x-rayed, and released with instructions
to rest and follow up with his regular physician.  According to the
emergency room physician, Poland was fully ambulatory in the emergency
room and did not complain of any numbness or loss of strength in his
extremities.
	[¶4]  In his complaint Poland alleged that Webb was negligent and
liable for his injuries that he attributed to the accident.  Webb admitted
negligence but disputed the issue of causation.  Evidence at trial indicated
that Poland had a long history of back problems that left him with chronic
pain of varying intensity.  Poland had suffered through a bout of this acute
pain only three weeks before the accident.
	[¶5]  The jury found that Webb did not cause any injury to Poland. 
Poland filed a motion for a new trial, challenging the court's jury
instructions.  Webb subsequently filed a motion for costs in the amount of
$3,725.  The court denied Poland's motion for a new trial and ordered
Poland to pay $2,725 of Webb's costs, after reducing the fee charged by one
of Webb's expert witnesses.  Poland challenges both of these rulings.
Jury Instructions
	[¶6]  Poland contends that the court's jury instruction on proximate
cause was inadequate.  After the trial court gave an instruction on proximate
cause, Poland requested an amplification of that instruction, in particular, an
explanation of the concept of multiple proximate cause.  The court refused
Poland's request.  "As long as the instructions are 'substantially correct and
the legal situation is made clear to the jury' the decision not to amplify an
instruction is reviewed only for abuse of discretion."  Rich v. Fuller, 666
A.2d 71, 76 (Me. 1995) (quoting Pelkey v. Canadian Pac., Ltd., 586 A.2d
1248, 1251 (Me. 1991)).  The trial court's proximate cause instruction
followed the law and correctly set forth the requirement for a finding of a
causal link between Webb's negligence and Poland's injury.  The instruction
did not imply that Poland had to prove Webb's negligence was the sole cause
of the injury; rather, the court instructed the jurors that her negligence
must only play "a substantial part" in the injury.  (Emphasis added.)
	[¶7]  Furthermore, Poland's contention that a multiple proximate
cause instruction was required is not supported by the facts of the case. 
Proximate cause normally refers to an act or a failure to act that has a causal
relation to an injury.  See Shaw v. Bolduc, 658 A.2d 229, 235 (Me. 1995)
(affirming jury instructions that stated that "damage is proximately cause[d]
by an act or failure to act").  Although there were surely other causes for
Poland's back injury, the only malfeasance or nonfeasance alleged that could
rise to the level of a proximate cause of Poland's injury was Webb's breach of
duty when she hit the line of cars.  There was no evidence that another act
or failure to act coincided with Webb's negligence to result in injury to
Poland.  Thus, we conclude that the court acted within the bounds of its
discretion when it declined to amplify its instructions on proximate cause.
	[¶8]  Poland also contends that some of the court's jury instructions
were misleading and confusing.  The court gave an instruction regarding an
aggregate injury and the apportionment of damages based on our opinion in
Lovely v. Allstate Insurance Company, 658 A.2d 1091 (Me. 1995).  According
to Poland, these instructions were confusing because they created the
impression that Poland had the burden of proof on an apportionment,
permitted the jury to decide that Webb was not responsible for any
aggravation if she did not cause a new injury, and focused needlessly on the
difference between a preexisting injury and a preexisting condition.  
	[¶9]  Admittedly, the court's initial instructions to the jury concerning
aggregate injury and apportionment were confusing.  The court did,
however, revisit those issues later in its instructions, and did so in a clear
and correct statement of the prevailing law, consistent with Lovely.{1} 
Further, the court's instruction regarding the distinction between a
preexisting injury and a preexisting condition were appropriate given the
evidence presented at the trial.
Jury Verdict
	[¶10]  Poland contends for the first time on appeal that the jury
verdict was irrational.   According to Poland, the evidence compelled the
jury to find that at least his trip to the hospital constituted damage, and thus
provided some basis for a recovery.  We review a jury verdict in the light
most favorable to the verdict and will order a new trial only if it is not
supported by any rational explanation.  See Shaw v. Bolduc, 658 A.2d at 236.
	[¶11]  The jury determined that Webb caused no damage to Poland. 
Issues of causation are questions of fact for the jury and must be supported
by credible evidence.  Ames v. Dipietro-Kay Corp., 617 A.2d 559, 561 (Me.
1992).  There was ample evidence at trial to support a finding that the
accident did not cause any exacerbation of Poland's preexisting back injury
or cause any new injury.  Given the fact that the jury concluded that Webb
caused no physical injury to Poland, it takes no great inferential leap to
conclude that the jury also determined that the costs and inconvenience
Poland experienced because of his trip to the hospital were not proximately
caused by Webb.  The question whether the accident caused Poland to go to
the hospital presents a credibility issue for the jury's determination.  The
credibility of a witness is within the exclusive province of the factfinder. 
McCarthy v. U.S.I. Corp., 678 A.2d 48, 52 (Me. 1996).  The failure to award
damages may reflect the jury's determination that Poland's testimony that
the amount of pain he felt after the accident necessitated a trip to the
hospital simply was not credible.
Award of Costs
	[¶12]  Poland contends that the court erred in its award of costs to
Webb.  We review the decision of the court to award costs for an abuse of
discretion.  Boudreau v. Manufacturers & Merchants Mut. Ins. Co., 588 A.2d
286, 289 (Me. 1991).  The court's discretion to award costs is defined by
rule{2} and statute.{3}
	[¶13]  Poland first asserts that, given the wide disparity in financial
resources between himself and the insurance company defending Webb, the
court should have exercised its discretion and denied Webb any of her costs. 
Moreover, Poland asserts that no public policy is served by awarding costs to
Webb.  Although 14 M.R.S.A. § 1502-D permits the court to consider the
financial hardship suffered by a party through the imposition of costs, it does
not require the court to consider the relative economic wherewithal of the
parties when making that decision.  Nothing in the rules or statutes noted
above mandate that the court consider public policy when determining
whether to award costs.
	[¶14]  Among the items on Webb's bill of costs is a payment by Webb of
$250 to Poland's doctor as a fee for his deposition.  There is no statutory or
rule support for the award of this cost.  Expert witness costs are addressed
in 14 M.R.S.A. § 1502-C and 16 M.R.S.A. § 251.  Those statutory provisions
authorize only fees that are directly related to attendance at trial. 
Deposition costs are governed by M.R. Civ. P. 54(g).  Expenses potentially
subject to an award of costs pursuant to that rule do not include a fee
charged by a witness for attendance at a deposition.  Therefore the court did
abuse its discretion by awarding this particular cost to Webb.  See McCarthy
v. U.S.I. Corp., 678 A.2d at 54 (error to award party costs related to expert
fees and expenses that were not associated with attendance at trial).
	[¶15]  Webb's bill of costs also included $350 for a records review and
$2,075 for preparation for trial, attendance at trial, and travel time for
another expert witness.  In granting Webb's motion, the court reduced the
allowable costs by $1,000, without specifically allocating the reduction to
the expert's various activities.  Some of these costs, in particular the
expense for records review and travel time, are not permitted pursuant to
16 M.R.S.A. § 251.  We assume that the court found for the prevailing party
on all factual issues necessary to support its decision, and our review is
limited to whether those assumed findings are supported by the record. 
Fitzgerald v. Gamester, 658 A.2d 1065, 1070 (Me. 1995).  The court
apparently recognized that some of the costs associated with the expert's
participation at trial were not permitted by statute.  Absent any indication to
the contrary, we assume that the court awarded those costs that were
appropriate and did not award those costs that were inappropriate, and we
decline the opportunity to substitute our judgment for that of the trial court.
	[¶16]  Poland's final contention is that the court erred when it
awarded costs to Webb for her travel to the place of trial, and lodging
expenses for both Webb and her counsel during the trial.  Costs of lodging
are not recoverable pursuant to any rule or statute.  A prevailing party's
expenses of travel to the place of trial, however, are recoverable pursuant to
14 M.R.S.A. § 1502-B(4).  The court abused its discretion only insofar as it
awarded Webb the costs of her and her counsel's lodging during trial.
	The entry is:
Judgment affirmed.  Award of costs vacated,
and remanded for revision consistent with the
opinion herein.

Attorneys for plaintiff: Steven D. Silin, Esq. Paul F. Macri, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorney for defendant: James Brett Main, Esq. Platz & Thompson, P.A. P O Box 960 Lewiston, ME 04243-0960
FOOTNOTES******************************** {1}. The court instructed the jury as follows: On the other hand, if the plaintiff had a chronically painful body part because of a previous injury and if an accident exacerbates, that is worsens the pain, then there may be an issue of apportionment between the old and the new pain. Initially, as I told you, the plaintiff must prove his case to you by a preponderance of the evidence and the defendant is not responsible for any preexisting problems that you find worsened independently of the accident, nor for any problems that you find did not result from the accident. But if you find that there was an aggregate injury, then the defendant has the burden of proof by a preponderance of the evidence to prove what portion of the resulting pain and suffering resulted from which accident or condition. Unless the defendant does that, then the defendant is liable for the entire aggregate injury, and that is because a single injury exists when a negligent actor by aggravating a preexisting injury or condition produces an aggregate injury which is incapable of apportionment. {2}. M.R. Civ. P. 54(d) states: "Costs shall be allowed as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs." Subsection (g) addresses the costs of depositions, and states in relevant portion: The taxing of costs in the taking of depositions shall be subject to the discretion of the court. . . . Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable fee of the officer before whom the deposition is taken, the stenographer's reasonable fee for attendance, and the cost of the original transcript and one copy of the testimony or such part thereof as the court may fix. {3}. 14 M.R.S.A. § 1502-B (Supp. 1997) provides: The following costs shall be allowed to prevailing parties in civil actions unless the court otherwise specifically directs: 1. Filing fees. Filing fees paid to the clerk; 2. Fees for service of process. Fees paid for service of process and other documents served by a sheriff, deputy, constable or others authorized by law; 3. Attendance fees and travel costs paid to witnesses. Attendance fees and travel costs of witnesses as allowed by Title 16, section 251 or other laws; 4. Travel expenses. Reasonable expenses of travel within the State to the place of trial for the prevailing party or his attorney of record, as provided by rule of the Supreme Judicial Court, or as directed by court, in the absence of that rule; and 5. Other costs. Such other costs as the Supreme Judicial Court may direct by rule. 14 M.R.S.A. § 1502-C (Supp. 1997) provides: In addition to other costs allowed to the prevailing party, the court may include as costs, in such amounts as it considers just and reasonable, any of the following items: 1. Reasonable expert witness fees and expenses. Expert witness fees and expenses, as allowed by Title 16, section 251; 2. Cost of medical reports. The cost of reasonable medical reports, not including costs of the examination or treatment of a patient, which are prepared for the purpose of litigation and which are exchanged by the parties; 3. Visual aids. The reasonable costs of charts, diagrams, photographs and other visual aids necessary for clear understanding of the case by the court or jury not to exceed $500; 4. Costs of depositions. Costs in the taking of depositions as allowed by rule of the Supreme Judicial Court or by other law; and 5. Other costs. Such other costs as the Supreme Judicial Court may allow by rule. 14 M.R.S.A. § 1502-D (Supp. 1997) provides in relevant part that "[i]f the presiding judge determines that the imposition of costs will cause a significant financial hardship to any party, the judge may waive all or part of the costs with respect to that party." 16 M.R.S.A. § 251 (Supp. 1997) provides in relevant part that "[t]he court in its discretion may allow at the trial of any cause, civil or criminal, in the Supreme Judicial Court, the Superior Court or the District Court, a reasonable sum for each day's attendance of any expert witness or witnesses at the trial, in taxing the costs of the prevailing party.&quo