#28631-a-MES 2019 S.D. 53

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

* * * *

GENE WEBER and CLARISSA WEBER, Plaintiffs and Appellees,

v. GERALD RAINS and K & L CONSTRUCTION, INC. d/b/a K & L LANDSCAPE & CONSTRUCTION, INC., Defendants and Appellants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON COUNTY, SOUTH DAKOTA * * * * THE HONORABLE PATRICK T. SMITH Judge

* * * *

MICHAEL D. BORNITZ KIMBERLY R. WASSINK ROBERT D. TRZYNKA SAMUEL A. KRYSTOSEK of Cutler Law Firm, LLP Sioux Falls, South Dakota Attorneys for plaintiffs and appellees.

ROSS M. WRIGHT DANA VAN BEEK PALMER of Lynn, Jackson, Shultz & Lebrun, P.C. Sioux Falls, South Dakota A ttorneys for defendants and appellants.

* * * * CONSIDERED ON BRIEFS ON JANUARY 7, 2019 OPINION FILED 

### 09/04/19#28631

-1- SALTER, Justice [¶1.] Gene Weber brought suit against Gerald Rains and K & L Construction (the Appellants) for injuries sustained in a motor vehicle accident. The jury returned a verdict in favor of Weber and awarded damages. On appeal, the Appellants claim the circuit court abuse d its discretion when it denied their motion to exclude testimony from Weber’ s medical providers regarding the extent and permanency of his injuries. The Appe llants also contend the jury’s passion or prejudice resulted in an excessive an d unsustainable verdict. We affirm. Background [¶2.] Weber and Rains were involved in a motor vehicle accident on January 9, 2014, on Highway 25 south of Emery. Highway 25 is a two-lane blacktop road with no shoulder. Weber was traveling southbound in his pickup truck, heading back to his job site after stopping home in Emery for lunch. 1 Rains was northbound, driving a semi-tractor with a side dump trailer. He was working within the scope of his employment with Sioux City-based K & L Construction, transporting gravel from a quarry to the site of a bridge maintenance project. [¶3.] Rains testified that he had a coughing fit just prior to the collision, and an investigation revealed that his tractor-trailer had drifted over the centerline. Both drivers stated they took evasive action and were able to avoid a head-on collision. However, Rains’ rear axle st ruck Weber’s front driver’s side, causing

1. Weber has been self-employed as a carpenter and contractor for over 20 years. His work typically includes in stalling sheet rock, shingling, cabinethanging, and other home improvement projects.#28631

-2- Weber’s pickup truck to spin into the oncomi ng traffic lane and land in the opposite

ditch. [¶4.] Weber testified that after the ac cident he was dazed and may have lost consciousness momentarily. After taking a few moments to assess his condition, he got out of his pickup and spoke with Ra ins and another K & L truck driver who

witnessed the accident. Weber stated that he was feeling alright at the accident scene, but he started to experience tightne ss in his shoulders later that evening. [¶5.] The following morning, Weber sa w his regular medical provider, Joni Wagner (Wagner), a physician assistant, and reported that he felt “beat up.” Weber told Wagner he had pain in his shoulders, upper and lower back, and a headache. Wagner prescribed a regimen of physical therapy and referred him to Dr. Matthew McKenzie, an orthopedic surgeon. Weber testified that the physical therapy provided only short-term relief. Dr. McKenzie obtained an MRI, which was “essentially normal.” He diagnosed We ber with chronic myofascial pain and suggested chiropractic treatment. [¶6.] Weber started chiropractic treatment with Dr. John Bosch in the fall of 2014. Eventually, his low back and left shou lder pain subsided, but he continued to experience right shoulder pain and headaches. Dr. Bosch referred Weber to Dr. Jason Hurd, another orthopedic surgeon , who diagnosed his condition as “a myofascial whiplash injury” and suggested nerve conduction studies. When the studies found normal nerve activity, Dr. Hurd advised Weber to continue chiropractic treatment.#28631

-3- [¶7.] Weber also saw Dr. Christopher Janssen, a physiatrist, twice. Dr. Janssen thought Weber was experiencing ce rvical facet pain and offered Weber trigger-point injections and radiofrequency ablation as treatment options. Weber declined, opting for over-the-counter pain medication and chiropractic treatment. [¶8.] Weber commenced this action against the Appellants, seeking damages he alleged were caused by Rains’ negligen ce. Prior to trial, the Appellants admitted liability for the collision and agreed to pa y for Weber’s past medical expenses and property damage. Still unresolved were the issues of Weber’s past wage loss, 2 future chiropractic expenses, pain and suffe ring, and the loss of consortium claim of Weber’s wife, Clarissa. [¶9.] In his responses to the Appellants’ discovery requests, Weber initially objected to an interrogatory requesting in formation about expert witnesses, citing attorney-client privilege and work-product doctrine. However, Weber’s response also stated that “[w]ithout waiving this objection, Plaintiff anticipates that his doctors would testify as expert witnesse s regarding his care and treatment, his prognosis, and his past and future medical bills.” [¶10.] On October 30, 2017, pursuant to the court’s scheduling order, Weber identified Wagner and Drs. Bosch and Janssen as expert witnesses. Weber’s disclosures stated they would testify that: (1) the accident caused Weber’s injuries; (2) Weber would require future medical care; and (3) Weber’s injuries are permanent. The Appellants’ deadline to disclose expert witnesses was November

2. Weber’s claim only included wages lost while attending medical appointments.#28631

-4- 30, 2017, but they chose to not identify any experts. Weber supplemented his discovery responses on January 5, 2018, re sponding to the Appellants’ request for expert witness information by referring to his earlier expert disclosure. [¶11.] On January 28, 2018, Weber saw Wagner again for the first time in almost three years. The visit occurred ju st prior to Wagner’s trial deposition. Wagner’s record of this visit relates how Weber’s pain affected his marital relationship and his hobbies, and caused emotional stress from lost wages and medical bills. At her trial deposition, Wa gner testified generally that chronic pain can cause depression, anxiety, relationsh ip problems, and other health issues. Wagner also testified that Weber would “more likely than not” continue to experience flare-ups of his chronic pain symptoms. The Appellants contend that Wagner had never mentioned any of these co ncerns in her records of Weber’s prior visits. They also claim that the treatment records of Drs. Bosch and Janssen failed to mention that Weber was permanently injured or could not enjoy his hobbies. [¶12.] Prior to trial, the Appellants moved the circuit court in limine for an order excluding: (1) argument, testimony, or evidence portraying Dr. Bosch, Dr. Janssen, and Wagner as expert witnesses; (2) portions of Wagner’s deposition testimony regarding missed work and loss of income, the need to find different employment, and general questions regarding chronic pain; and (3) evidence, testimony, and argument that Weber will have future pain, suffering, and medical expenses. The Appellants argued Weber’s ex pert designations did not comply with the rules of discovery, claiming his pati ent treatment records did not support the opinions of his medical providers. In th e Appellants’ initial view, Weber’s treating#28631

-5- providers should have been considered lay witnesses who were unable to provide opinions regarding the permanency of Weber’s injuries, his future pain and suffering, and his future medical treatment. [¶13.] On February 20, 2018—the first morn ing of the three-day trial—the circuit court denied the Appellants’ motions to exclude testimony about Weber’s future pain and suffering, finding that the challenged testimony was within the scope of Weber’s treatment. The court determined that Weber’s medical providers could testify about their perceptions of Weber’s overall prognosis that they acquired while treating him. In so doing, the co urt also rejected the Appellants’ argument that allowing Wagner to testify genera lly about how chronic pain can affect a patient would violate the rules of civil procedure governing expert disclosures. [¶14.] In addition to presenting Wagner’s videotaped deposition at trial, Weber also offered live testimony from Drs. Bosch and Janssen. Dr. Bosch testified that Weber experienced difficulty performing his work duties and enjoying his hobbies due to his injuries. Dr. Bosch also testified that he “picked up” on Weber’s emotional issues from his injuries, and opin ed that his pain would “forever be an issue [due to] continuous re-injury, [were] chronic, [and] there’s not going to be a drastic change.” Dr. Janssen testified that Weber suffered a whiplash injury with resulting cervical facet pain and cervical myofascial pain that would likely be permanent. In Dr. Janssen’s view, Weber would never be pain free, and treatment goals were focused on reducing his pain complaints. The Appellants did not offer any expert medical evidence.#28631

-6- [¶15.] The jury awarded Weber $813,480 for pain and suffering, loss of enjoyment of life, mental anguish, and di sability. It also awarded Weber $31,000 for future chiropractic care, $35,520 for lost wages, and $20,000 for Clarissa’s loss of

consortium claim. [¶16.] The Appellants moved for a new trial, and the record relating to the post-verdict litigation that followed prov ides some of the most illuminating information relative to this appeal. As their first basis for a new trial, the Appellants argued that the court should not have allowed Wagner to testify about collateral effects associated with chronic pain or allowed Dr. Janssen to testify that Weber’s pain was permanent. For each wi tness, the Appellants asserted that the treatment records failed to support the br eadth of their opinions. Weber’s counsel countered, stating he did not actually know what his medical providers would say in response to his permanency-related questi ons because, unlike a retained expert, he was unable to easily visit with them and determine their testimony or the contents of any report. However, Weber’s counsel also indicated that he disclosed the medical providers as experts to provide noti ce and on the strength of his belief that the witnesses would, in fact, testify that the injury was permanent given the length of time Weber had suffered from pain and its unresolved nature. [¶17.] In a rejoinder, counsel for th e Appellants acknowledged that Weber’s disclosure “partially complied” with the rule s, but they also alleged it “created confusion” because of uncertainty whether the medical providers were testifying as lay or expert witnesses. In response to an inquiry from the circuit court, counsel for the Appellants further acknowledged that Weber’s expert witness disclosure plainly#28631

-7- stated that his medical providers would each testify that Weber’s injuries were permanent. Counsel for the Appellants stat ed that they had, nevertheless, elected not to depose any of the medical provider s, opting to seek exclusion of their testimony at trial because of what they be lieved to be an insufficient basis provided by the disclosure. [¶18.] During the course of the hearing, the parties and the court discussed in detail varying interpretations of our decisions in Veith v. O’Brien , 2007 S.D. 88, 739 N.W.2d 15, and Wangsness v. Builder’s Cashway, Inc. , 2010 S.D. 14, 779 N.W.2d 136. Both opinions express the position that treating medical providers may be considered lay witnesses, rather than ex pert witnesses, who are not subject to traditional pretrial discovery rules rela ting to experts. The Appellants had originally viewed Weber’s treating medica l providers as lay witnesses, but during the new trial litigation they relied upon Wangsness to argue that the treating medical providers were experts whose opinio ns and bases were subject to disclosure under our pretrial discovery rules. Relying upon Veith , Weber contended his medical providers were not experts at all, but, in any event, their identities and opinions had been disclosed. [¶19.] The court ultimately viewed Veith as controlling and determined that the treating medical providers did not “fit und er the definition of an expert[.]” The court also indicated that any inconsistencies between the medical records and the testimony could have been addressed ad equately through cross examination and noted that testimony from other lay witnesse s—Weber, as well as his wife, son, and father—supported the assertion that Weber’s injuries are permanent.#28631

-8- [¶20.] As their second bas is for a new trial, the Appellants argued that the verdict was excessive and the product of pa ssion and prejudice. The circuit court denied the motion, however, under the following reasoning: I do not believe simply because the verdict approached a million dollars, that that in and of itself makes it shocking to anyone’s conscience. I believe this verdict was capable of being reached by a jury that heard the facts and interpreted them in the manner in which they did and was not the result of passion or bias or reflective of them be ing inflamed in any fashion. [¶21.] The Appellants raise two issues on appeal, restated as follows:

1. Whether the circuit court abused its discretion by admitting certain testimony from Weber’s treating providers.

2. Whether the circuit court abused its discretion by denying the Appellants’ motion for a new trial based upon their claim that the verdict was excessive. Analysis Medical Expert Discovery [¶22.] “ The trial court’s evidentiary rulings . . . will not be overturned absent

a clear abuse of discretion.” Veith , 2007 S.D. 88, ¶ 25, 739 N.W.2d at 23. “A court

abuses its discretion when it makes ‘a fundamental error of judgment, a choice outside the reasonable range of permissible choices, a decision . . . [that], on full consideration, is arbitrary or unreasonable.’” ISG, Corp., v. PLE, Inc. , 2018 S.D. 64, ¶ 24, 917 N.W.2d 23, 32 (alteration in original) (quoting Wald, Inc. v. Stanley , 2005 S.D. 112, ¶ 8, 706 N.W.2d 626, 629). “Our re view [of evidentiary rulings] requires a two-step process; first, to determine whethe r the trial court abused its discretion in making an evidentiary ruling; and second, whether the error was a prejudicial error that ‘in all probability’ affected the jury’s conclusion.” O’Day v. Nanton , 2017 S.D.#28631

-9- 90, ¶ 21, 905 N.W.2d 568, 573 (quoting Supreme Pork, Inc. v. Master Blaster, Inc. , 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491). [¶23.] We also review the grant or denial of a motion for new trial under the

abuse of discretion standard. See Glanzer v. Reed , 2008 S.D. 104, ¶ 13, 757 N.W.2d 417, 420 (“Whether a new trial should be gr anted is left to the sound judicial discretion of the trial court, and this Cour t will not disturb the trial court’s decision absent a clear showing of abuse of discretion.” (quoting Waldner v. Berglund , 2008 S.D. 75, ¶ 11, 754 N.W.2d 832, 835)). A motion for a new trial may be granted when an “[i]rregularity in the proceedings . . . prevented . . . a fair trial.” SDCL 15-6- 59(a)(1). [¶24.] Pretrial discovery relating to expert witnesses is generally governed by SDCL 15-6-26(b) , which provides in relevant part: A party may through interrogatories require any other party to identify each person whom the ot her party expects to call as an expert witness at trial, to stat e the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the ex pert is expected to testify and a summary of the grounds for each opinion. SDCL 15-6-26(b)(4)(A)(i). The provisions of SDCL 15- 6-26(e) further impose a continuing obligation upon parties to supp lement their earlier responses if they were either incomplete or “if the additional or corrective information has not otherwise been made known to the other pa rties during the discovery process or in writing.” SDCL 15-6-26(e)(1)-(2). [¶25.] Included among the broad range of sanctions available to circuit judges who determine a party has failed to properly supplement its earlier discovery responses is the express auth ority to exclude the evidence that was not disclosed.#28631

-10- However, this authority is tempered by the requirement that the court assess the

violation for harmlessness: A party that without substantial justification fails to disclose information required by subdivis ion 15-6-26(e)(1), or to amend a prior response to discovery as required by subdivision 15-6- 26(e)(2), is not, unless such failure is harmless , permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose ot her appropriate sanctions. SDCL 15-6-37(c)(1) (emphasis added). [¶26.] Here, even if Weber failed to seasonably amend or supplement his response to the Appellants’ interrogatory seeking expert witness information, Weber did timely disclose Wagner and Drs. Bosch and Janssen as experts pursuant to the court’s scheduling order on October 30, 2017. 3 The three had treated Weber, and the disclosure indicated that the subject matter of their testimony would relate to his “injuries, medical care, treatment and prognosis.” Weber identified the grounds for their opinions as their treatmen t, along with their “education, training, and experience[.]” The disclosure also described the substance of the experts’ opinions in the following terms: Plaintiff Gene Weber’s medical providers will testify consistent with the medical records regarding Plaintiff’s injuries, medical condition, care, treatment, progre ss, and prognosis. They will discuss the injuries Plaintiff Gene Weber sustained, describe the medical basis and cause for those injuries, and otherwise demonstrate how Mr. Weber was in jured in this collision. In addition[,] they will testify that Plaintiff’s injuries were proximately caused by the motor vehicle collision, that the Plaintiff will require future medical care as a proximate result of

3. See SDCL 15-6-16 (requiring the court to enter a scheduling order establishing certain enumerated de adlines, as well as any deadlines “appropriate to the circumstances of the case”).#28631

-11- the motor vehicle collision, and that Plaintiff’s present medical condition is permanent in nature

. (Emphasis added.) [¶27.] Against this legal and factual backdrop, we are unable to accept the Appellants’ principal argument that they were “ambushed” at trial with expert medical testimony that Weber’s injuries were permanent. Nor can we safely proceed on the Appellants’ view that a di scovery violation necessarily occurred and move directly to the prejudice considerations we set out in Papke v. Harbert , 2007 S.D. 87, ¶ 55, 738 N.W.2d 510, 529. [¶28.] At the latest, Appellants knew on October 30, 2017, that Weber’s treating medical providers would testify th at, in their respective opinions, Weber’s injuries were permanent. The case was tried to a jury on February 20-22, 2018, leaving the Appellants nearly four months to determine their best course in light of this disclosure. Under the circumstances, this should have been sufficient time for the Appellants to formulate a plan to meet Weber’s proof if they believed that to be necessary. The Appellants had until Novemb er 31, 2017, to disclose their own medical experts, but they did not pursue that option to refute Weber’s permanent injury claim. Nor did they seek additional time from the court to develop their own expert proof. [¶29.] The Appellants’ principal effort on appeal—to assail the sufficiency of Weber’s medical records as a basis to support the expert’s opinions concerning permanency—is also not sustain able. So far as they are in cluded in the record here, Weber’s medical records describe chronic pain that was treated but did not resolve. In this regard, the records reveal initia l efforts to address Weber’s pain through#28631

-12- physical therapy, a lengthy course of chir opractic care, and successive referrals to orthopedic specialists, all without last ing success. Numerous attempts to gain insight from diagnostic studies and imag ing were equally unsuccessful, and Weber eventually sought care from Dr. Janssen for pain management. Even if, as the Appellants state, Weber’s medical records do not include the word “permanent,” permanency is, nevertheless, an apparent and reasonable inference from the

records. [¶30.] Under the circumstances, therefor e, the circuit court did not abuse its discretion by denying the Appellants’ moti on to exclude the testimony of Weber’s treating medical providers. Even if We ber’s supplemented interrogatory response was not seasonable, the court acted within the rules of civil procedure to deny the Appellants’ motion in limine. In this re gard, the duty to supplement contained in SDCL 15-6-26(e)(1) and (e)(2) applies to in formation “not otherwise . . . made known to the other parties during the discovery process or in writing.” Here, Weber’s expert disclosure on October 30, 2017, pl ainly stated that his medical providers would testify that his pain is permanent. Given this, we are unable to determine a violation of the discovery rules occurred or that the exclusionary remedy authorized

as a sanction in SDCL 15- 6-37(c) is implicated. [¶31.] Beyond this, a separate issue pervades the parties’ submissions and requires us to clarify the state of our decisional law regarding treating medical witnesses. Both the parties and the circu it court have, understandably, relied upon our prior decisions distinguishing witnesse s who are treating medical providers and witnesses whose medical testimony was de veloped in anticipation of trial. See#28631

-13- Wangsness , 2010 S.D. 14, ¶ 20, 779 N.W.2d at 142-43 ; Veith , 2007 S.D. 88, ¶¶ 42, 45, 739 N.W.2d at 27-28. According to thes e decisions, the form er are regarded as lay witnesses, testifying about their pe rceptions even when those perceptions are informed by the application of specialized knowledge, training, and experience. Id. Only the latter category of witn esses, under the opinions in Wangsness and Veith , are considered experts. Id. [¶32.] In Veith , we held that a treating physician would be viewed as an “ordinary witness” who could testify about conclusions made in his treatment of the plaintiff even though the physician and hi s opinions were not disclosed. 2007 S.D. 88, ¶ 45, 739 N.W.2d at 28. We similarly held in Wangsness that treating physicians will be treated as lay witnesse s for purposes of disclosure under SDCL 15-6-26(b)(4)(A)(i) , as long as their opinions are not obtained in anticipation of litigation. 2010 S.D. 14, ¶ 20, 779 N.W.2d at 142

- 43. [¶33.] However, the current text of SDCL 19-19-701 no longer supports the view that treating medical witnesses, such as physicians, should be categorically treated as lay witnesses simply because th ey provide testimony based upon their perceptions. In 2011, we amended SDCL 19-19-701 relating to lay witnesses by unambiguously stating that lay witness testimony may “[n]ot [be] based on scientific, technical or other specialized knowledge within the scope of [SDCL 19-19- 702].” SDCL 19-19-701(c). 4 The reference to SDCL 19- 19-702 relates, of course, to our rule of evidence concerning expert wi tnesses. Both SDCL 19-19-701 and SDCL

4. Both Veith and Wangsness were decided before the 2011 amendment to what is now SDCL 19-19-701.#28631

-14- 19-19-702 are modeled after corresponding Fede ral Rules of Evidence, and, in fact,

Rule 701 of the federal rules was, itself, similarly amende d in 2000. At the time, the Advisory Committee stated the change wa s intended to “eliminate the risk that the reliability requirements set forth in Rule 702 would be evaded through the simple expedient of proffering an expert in lay witness clothing.” Fed. R. Evid. 701 advisory committee’s note to 2000 amendment. The amendment “also ensure[d] that a party will not evade the expert witn ess disclosure requirements set forth in

Fed. R. Civ. P. 26

. . . . ” Id. [¶34.] Here, though, the concern about failing to disclose treating medical providers as experts is largely averted be cause Weber did, in fact, disclose his treating physicians and physician assistant as experts. He did no t, in other words, seek to avoid disclosure by “proffering an expert in lay witness clothing.” As we stated above, Weber also provided notice that the medical experts would testify that his pain is a permanent condition and th at the medical records, detailing chronic pain and ongoing pain management, ad equately disclosed the basis for the testimony. However, the medical reco rds describing Weber’s pain would not necessarily provide a basis for Wagner’s op inions about the collateral impact of Weber’s pain, such as anxiety, depression , relationship problems, overuse injuries,

and diminished interest in hobbies. [¶35.] Even assuming, without deciding , that the medical records provided insufficient support for these discrete opinions and that they were otherwise not disclosed, we do not believe reversal is re quired. We have identified the following#28631

-15- areas of concern to consider when assessing the impact of a party’s failure to fully disclose an expert’s opinion: (1) the time element and whethe r there was bad faith by the party required to supplement; (2 ) whether the expert testimony or evidence pertained to a cruci al issue; and (3) whether the expert testimony differed substa ntially from what was disclosed in the discovery process. Papke , 2007 S.D. 87, ¶ 56, 738 N.W.2d at 529 (citing Kaiser v. Univ. Physicians

Clinic , 2006 S.D. 95, ¶ 35, 724 N.W.2d 186, 195-96). [¶36.] Here, the Appellants do not allege Weber acted in bad faith concerning Wagner’s opinions. They acknowledge that Wagner’s trial testimony was taken by deposition three weeks before trial and not offered unexpectedly at the trial. Although the Appellants argue they had insufficient time to engage their own expert, there is no indication they either tried to engage an expert or asked the

court for additional time to allow them to do so. Further, Wagner’s testimony aboutthe adverse impact Weber’s pain has had or may have upon his life is a closelyrelated extension of the permanency test imony, which the Appellants identify as

the central and crucial issue in this ca se, and which we have determined was properly disclosed. [¶37.] Beyond this, the testimony from Wagner on the collateral effect of Weber’s pain was brief—accounting for only a small portion of the entire evidentiary record adduced at trial. Mo reover, Wagner’s testimony on this topic primarily restated Weber’s own allegations about how his life has been impacted by his injuries or illustrated the impacts of hi s injuries. Furthermore, Weber’s counsel#28631

-16- did not refer to these specific undisclose d opinions in his opening statement or closing argument. [¶38.] Setting Wagner’s undisclosed opinions in the context of the entire trial, we are unable to find sufficient prejudice to support the Appellants’ request for a

new trial. Even if the circu it court abused its discretion in allowing this testimony under what we now conclude were outdated distinctions for treating medical

witnesses set out in Veith and Wangsness , its decision to deny the motion for a new trial was not, itself, an abuse of discreti on. Given our assessment of the prejudice resulting from Wagner’s undisclosed opin ions, the court’s decision to deny the Appellants’ new trial motion was within the range of permissible choices. Jury Verdict [¶39.] Under SDCL 15-6-59(a)(5), a cour t may grant a motion for a new trial if it finds “[e]xcessive or inadequate da mages appearing to have been given under the influence of passion or prejudice[.]” “A motion for a new trial based upon an excessive damages award ‘is addressed to the sound discretion of the trial court and a denial of the motion will not be reversed absent an abuse of that discretion[.]’” Maryott v. First Nat’l Bank of Eden , 2001 S.D. 43, ¶ 26, 624 N.W.2d 96, 105 (quoting Berry v. Risdall , 1998 S.D. 18, ¶ 9, 576 N.W.2d 1, 4). [¶40.] We have previously stated that “a jury’s verdict should not be set aside ‘except in extreme cases where it is the result of passion or prejudice[.]’” Roth v. Farner-Bocken Co., 2003 S.D. 80, ¶ 10, 667 N.W.2d 651, 659 (quoting Biegler v. Am. Family Mut. Ins. Co. , 2001 S.D. 13, ¶ 32, 621 N.W.2d 592, 601). “A verdict should only be set aside if the jury’s conclusion was unreasonable and a clear illustration of#28631

-17- its failure to impartially apply ‘the reason ing faculty on the facts before [it].’” Id. (quoting Biegler , 2001 S.D. 13, ¶ 32, 621 N. W.2d at 601). Additionally, we have held

that: [w]hen considering whether a jury verdict is sustained by the evidence[,] ‘we are not to specul ate or query how we would have viewed the evidence and testimony, or what verdict we would have rendered had we been the jury. The real and only question to be solved and answered is [whether] there [is] any legal evidence upon which the verdict can properly be based, and [whether] the conclusions embraced in and covered by [the verdict were] fairly reached . . . .’

Id. ¶ 25, 667 N.W.2d at 661 (quoting Biegler , 2001 S.D. 13, ¶ 32, 621 N.W.2d at 602). “The test for determining if the ju ry verdict is the pr oduct of passion or prejudice is . . . ‘damages . . . so excessive as to strike [society], at first blush, as being, beyond all measure, unrea sonable and outrageous . . . .’” Id. ¶ 26 (quoting Stormo v. Strong , 469 N.W.2d 816, 826 (S.D. 1991)). [¶41.] Here, the Appellants claim the jury was prejudiced by Weber’s treating medical providers’ “improperly admitted” testimony regarding the permanency of his injuries. However, this is simply a restated version of the expert testimony argument we addressed in our analysis above. [¶42.] The Appellants further contend that “gross disparity between the nature of [Weber’s] injury and the awar d for pain and suffering leads to the inescapable conclusion that the jury was mo ved by passion or prejudice.” Like the circuit court, we are not convinced that the verdict, alone, is self-evident proof of passion or prejudice. While the jury’s award for Weber’s pain and suffering was significantly higher than its award for the other claims, we find it is supported by the testimony of his treating medical prov iders and other witnesses at trial. His#28631

-18- medical providers universally agreed that his injuries are permanent, and he will experience flare-ups of pain regardless of hi s choice of work and hobbies for the rest of his life. Weber was 44 years old at the ti me of trial, and the court instructed the jury that he had an actuarially-based life expectancy of 37.5 additional years. His family provided significant testimony of Weber’s lifestyle changes, including irritability, lack of motivation, and fatigue th at they attributed to dealing with pain. Our review of the evidence presented to the jury shows there was sufficient evidence to support its award for Weber’s pa in and suffering and fails to support the claim that the jury acted with passion or prejudice. [¶43.] Indeed, the most conspicuous featur e of this evidentiary record is that it is decidedly one-sided. Though the Appellants dispute the testimony from Weber’s medical providers regarding the extent and permanency of his injuries, they did not engage their own expert witnesses to provide an evidentiary basis for a contrary conclusion. They also suggest th at the verdict is unsustainable because it is merely a “soft tissue injury” that Weber treated with over-the-counter pain relievers. However, the Appellants’ obse rvations—offered as legal arguments—are unconnected to actual medical evidence supporting their argument that Weber’s soft-tissue injuries are not painful and permanent. [¶44.] Finally, we are not persuaded by the Appellants’ argument that the passion of the jury was aroused, at least in part, because the trial was conducted in Weber’s home county and Dr. Janssen’s hometown. The Appellants did not cite these circumstances to support their new tr ial motion before the circuit court, but even if the claims were preserved, we ca nnot accept the argument. We believe the#28631

-19- Appellants were in the best position to assess these conditions before proceeding to trial, rather than asking this Court to consider this argument after the verdict.

Conclusion [¶45.] The circuit court did not abuse its discretion when it allowed Weber’s treating providers to testify about the perman ency of his injuries, and its decision to allow Wagner’s undisclosed opinions about the impact of Weber’s injuries did not create prejudice sufficient to warrant revers al. Further, our revi ew of the evidence presented to the jury supports its verdict, which we hold was not the result of passion or prejudice. Therefore, the circu it court did not abuse its discretion when it denied the Appellants’ motion for a new trial. We affirm. [¶46.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, and SEVERSON, Retired Justice, concur.