Opinion
No. 75-87.
Submitted on briefs November 5, 1976. —
Decided January 6, 1977.
APPEAL from a judgment of the circuit court for Pierce county: JOHN G. BARTHOLOMEW, Circuit Judge. Affirmed.
For the appellants the cause was submitted on the? brief of Garvey, O'Brien, Anderson Kelly of Eau Claire.
For the respondent the cause was submitted on the brief of Gavic, Richardson Skow of Spring Valley.
This is an appeal from a judgment of liability and the damage award resulting therefrom of the circuit court in favor of plaintiff Patricia Grassl and against defendants Dwight E. Nelson and his insurer, State Farm Mutual Automobile Insurance Company. This action arises out of personal injuries sustained by the plaintiff in an automobile accident on May 2, 1971. The action was commenced February 14, 1973, and the jury returned a verdict on April 24, 1974. Judgment was entered on September 23, 1974.
FACTS.
On May 2, 1971, plaintiff, age 20, was injured in an automobile accident when the car in which she was an occupant (driven by defendant Nelson) left the road striking a mailbox and tree. Plaintiff, one of four occupants in the front seat, was knocked unconscious by the impact and taken to a nearby farmhouse.
Subsequent medical treatment of plaintiff Grassl revealed a comminuted, compression fracture of the third lumbar vertebra. Additionally, she suffered cuts on her face and wrist, a bruised kidney, and a numb spot on her right knee. Only the back injury had permanent consequences.
Four different doctors treated plaintiff. Immediately following the accident she was hospitalized at St. Joseph Hospital, River Falls, and was there examined and treated by Dr. Paul Haskins. Subsequently she was hospitalized at Midway Hospital, St. Paul, Minnesota, under the care of Dr. Robert Winter. Dr. Winter applied a body cast running from plaintiff's neck to the top of her legs. (After three months a less confining cast was put on for two months — a total of five months in a cast.) Since her hospitalization plaintiff has attended school, worked part-time and taken trips, but has complained of pain while active.
The following medical testimony was adduced at trial — constituting the principal target of the two issues raised on appeal:
(1) Dr. Paul Haskins testified that in his opinion the fracture would be of a disabling and permanent nature. He testified that plaintiff did not need further treatment at the time of trial, but suggested periodic checks in the future. He found a permanent partial disability to plaintiff's spine of 15 percent which he felt would not worsen. He testified that plaintiff would probably develop some degenerative arthritis over the course of years in the area of the injury.
(2) Dr. Donavan McCain, an orthopedic surgeon in St. Paul with thirty years' experience, testified that plaintiff was in good condition. He also testified that plaintiff's third lumbar vertebra had been fractured, causing a tilt to the right. He recommended that plaintiff refrain from heavy lifting or excessive bending. He stated that plaintiff would not be disabled from working as a guidance counselor or social worker, her planned life career, but that plaintiff would always have a certain amount of pain or ache in her back. He felt this condition would stabilize in the future, estimating permanent disability of plaintiff's back to be 20 percent. He stated that plaintiff would probably have premature degenerative arthritis in the third lumbar region in the future.
(3) Dr. Albert Ficke examined plaintiff at the request of plaintiff's attorney for the purpose of testifying at trial. He testified that plaintiff's limitation of motion is permanent, that pain would be produced on lifting, and that the scoliosis or curvature of the spine would increase gradually over the plaintiff's lifetime. Over objection Dr. Ficke testified that the spinal curvature would increase at approximately one-half degree per year, giving rise to an increased likelihood of future treatment. He felt such future treatment could range as follows: from a minimum of using muscle relaxants and pain medication to a requirement of additional support, such as a corset, to surgical fusion being required in the area causing the pain. Dr. Ficke further testified, also over objection, that the possibility of future surgical fusion was great, based on a one-half degree increase per year in scoliosis over a twenty-year period. He also anticipates permanent pain and future arthritis in the affected area.
On April 24, 1974, the jury returned its verdict, finding damages for "Pain, suffering and disability to date" of $7,500 and for "Pain, suffering and disability in the future" of $47,500. On September 5, 1974, the trial court denied motions of defendants for reduction of damages, application of the " Powers rule," and for a new trial on damages. On September 23, 1974, with appropriate reduction of ten percent for contributory negligence, judgment was entered in the amount of $47,879.84 damages and costs of $1,384 for a total judgment of $49,264.14. Defendants appeal from that judgment.
Defendant and his insurer make two claims on this appeal: (1) That the testimony of Dr. Albert Ficke was prejudicially allowed to reach the jury; and (2) that the award of damages made by the jury is excessive. Each claim will be considered separately.
WAS THE DOCTOR'S OPINION PROPERLY ADMISSIBLE?
We answer this question in the affirmative.
The sharp focus of challenge is to the trial court's permitting the medical witness for the plaintiff, Dr. Albert Ficke, to state that in his opinion the plaintiff would have an increase in spinal curvature each year and would require treatment by reason of the injury sustained in the accident, including a fusion operation. Such testimony was in direct conflict with that of the other medical witnesses who testified only that a premature degenerative arthritis in the area of the injury was probable. Such conflict in medical testimony was, of course, for the jury to resolve. In summarizing his opinion and in direct reply to a question from the trial court, Dr. Ficke stated in regard to his opinion as to probability of a future fusion operation:
"[I]t's based to a reasonable degree of medical probability that down the road, many years, a fusion is likely to be required."
As thus stated, the doctor was testifying as to his opinion, based on medical probabilities, as to future consequences of the injury sustained by the plaintiff. In this state our court has held that a medical expert is qualified "`. . . to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue.'" Peterson v. Western Casualty Surety Co., 5 Wis.2d 535, 540, 93 N.W.2d 433, 436 (1958), quoting Diemel v. Weirich, 264 Wis. 265, 268, 58 N.W.2d 651, 652, 653 (1953).
This rule comes within the general rule on testimony by experts providing that, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, "a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Sec. 907.02, Stats. See also: State v. Johnson, 54 Wis.2d 561, 196 N.W.2d 717 (1972); Rabata v. Dohner, 45 Wis.2d 111, 124, 172 N.W.2d 409, 415 (1969); Jacobson v. Greyhound Corp., 29 Wis.2d 55, 138 N.W.2d 133 (1965).
The disputed facts in the instant case concerned the extent of the personal injuries plaintiff sustained in the accident. The task of the jury, as trier of fact, was to ascertain monetarily the future extent of injuries and their probable consequences resulting from the accident. In making this determination, it was proper and in fact necessary that expert testimony be admitted to help the jury, in the language of sec. 907.02, Stats., to "understand the evidence [and] to determine a fact in issue." It is true that Dr. Ficke initially testified only that it was a medical possibility that fusions would be required "down the road." Subsequently, as above noted, he stated that it was a medical probability that fusion would be required. Such earlier inconsistent statement, as highlighted by cross-examination, was material on the issue of credibility, but did not render the subsequent statement of opinion either inadmissible or one that the jury was obliged to find incredible.
It is also true that the trial court, on other questions asked and motions to strike made, held inadmissible inquiries or testimony of this witness as to his opinion on future consequences. But each tub stands on its own bottom. The challenge by these defendants cannot be to their own questions of plaintiff's witness, nor to the striking of answers given by such plaintiff's witness. The objection has to be, and is, to what was admitted into the record, not to what was excluded. Therefore we find reversible error was not committed by the trial court which, in effect, permitted the opinion testimony here challenged to become part of the record and go to the jury.
WAS THE JURY AWARD OF DAMAGES EXCESSIVE?
We answer in the negative.
With our holding that challenged medical testimony concerning increasing scoliosis and future surgical fusion was properly admitted, much of the defendants' basis for challenging the jury award of damages vanishes. There remains the general contention that the evidence in this record does not support the award of damages made.
The general rule is that the amount of damages to be awarded by a jury in a personal injury case "`. . . rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere.'" Moritz v. Allied American Mut. Fire Ins. Co., 27 Wis.2d 13, 22, 133 N.W.2d 235, 240 (1965), quoting 15 Am.Jur. Damages, sec. 205, page 621. In considering whether the jury's appraisal of damages for pain, suffering and disability is excessive, we must "`. . . view the evidence in the light most favorable to the plaintiff.'" Id. at 22, 133 N.W.2d at 240, quoting Kincannon v. National Indemnity Co., 5 Wis.2d 231, 233, 92 N.W.2d 884, 885 (1958).
In deciding whether there is a reasonable basis for a jury determination, our court gives weight to the trial court's approval of the damage amount set by the jury. Gleason v. Gillihan, 32 Wis.2d 50, 59, 145 N.W.2d 90, 94 (1966). However that presupposes "that there has been some analysis of the evidence underlying the verdict and that such analysis appears in the trial judge's memorandum." Ballard v. Lumbermen's Mut. Casualty Co., 33 Wis.2d 601, 606, 148 N.W.2d 65, 68 (1967). Here the trial court's denial of motions for reduction of damages was not accompanied by analysis of the evidence or appraisal of the verdict in any significant detail. Thus defendants contend we are required to review the evidence ab initio. Id. at 606, 607, 148 N.W.2d at 68, 69. However, even on ab initio review, we are required to ". . . resolve all conflicts in the testimony in a light favorable to supporting the jury's verdict, i.e., is there any credible evidence to support it." Id. at 607, 148 N.W.2d at 69.
Here the award of damages made by the jury passes such test on review. What the jury had before it was the situation of a young 20-year-old girl who was perfectly healthy prior to the accident. In the accident she sustained what was described as a crushed, fragmented and partially displaced vertebra causing a curvature of the spine. At the time of trial she was still having trouble in bending, lifting, doing small tasks and standing too long. Such conditions are permanent and result in the 15 percent permanent disability which one doctor testified to, or 20 percent disability to which another doctor testified. Doctors testifying for plaintiff and for defendants agreed that plaintiff would develop painful degenerative arthritis at the site of the injury.
At the time of the accident, Patricia Grassl's height was five feet six and one-half inches, and at time of trial she was only five feet five inches. As a result of the accident she had curvature of the spine. This curvature of the spine is permanent. In addition, the jury had before it, properly we have held, the testimony of Dr. Albert Ficke that such spinal curvature would increase at approximately one-half degree per year, and that such increase gave rise to the medical probability of future pain and required treatment, including surgical fusion. With this and other testimony in this record as to "pain, suffering and disability in the future," we have no hesitancy in finding the jury verdict to be reasonable in the light of the record here established.
By the Court. — Judgment affirmed.