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Baumgarten v. City View Nursing Home, 2006 WI App 78 (Wis. Ct. App. 2006)

Following a jury trial, verdict was entered awarding damages as follows: $132,157.17 for medical expenses; $650,000 for Baumgarten’s pain and suffering; $3,965.31 for funeral and burial expenses; and $225,000 for Virginia Baumgarten’s loss of society and companionship claim. After trial, the court entered an order reducing the medical expenses to $82,157.17 and offered the estate the option of accepting a reduced award for pain and suffering in the amount of $300,000 or accepting a new trial on the issue of pain and suffering. The trial court’s order was late and therefore void. The nursing home appealed. On appeal Defendant argued it was only liable for the difference between the medical expense award and those already paid by its insurer ($124,422.15). The court agreed and directed the trial court to amend the medical expenses award to $7,735.02. Next, Defendants argued the trial court committed error by excluding a physician’s testimony that Baumgarten had a neurological condition that contributed to his death; the court found that the offer of proof was insufficient and affirmed the trial court’s decision to exclude the testimony. Defendants argued that the pain and suffering award was excessive and was influenced by the fact that the jury did not know Plaintiffs’ medical expenses had been paid; however, in light of Defendants argument at trial that it should not have been required to pay medical expenses, the refusal to inform the jury of this was consistent with its position at trial. Defendants argued that the evidence did not support the pain and suffering award; while the court found the evidence “lean” it was sufficient, if believed, for the jury to conclude there was substantial pain. Regarding whether wrongful death damages for loss of consortium was excessive, the court found that this is within the province of the jury and the jury must be given large discretion in determining the sum allowed. There was evidence of a loss of consortium and the amount was not excessive. There was no miscarriage of justice as the amounts awarded did not shock the conscious of the court. The verdict was affirmed with the exception that the medical expenses were reduced to $7,735.02. Decided: March 16, 2006

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