Summary
In Tully v. Mahoning Express Co. (1954), 161 Ohio St. 457, 119 N.E.2d 831, the Ohio Supreme Court held that evidence as to the extent of further medical treatment, future hospitalization, and estimated expenses, and the estimated time of a plaintiff's future unemployment as a result of such treatment and hospitalization can be given only by an expert witness.
Summary of this case from Marzullo v. J.D. Pavement MaintenanceOpinion
No. 33762
Decided May 19, 1954.
Evidence — Lay witness competent to give opinion testimony, when — Competency of witness to give opinion not presumed — Must be shown by party offering testimony — Opinion as to medical treatment, hospitalization, expenses thereof and future unemployment — Admission prejudicial error, when — No preliminary showing of technical knowledge.
1. Where a lay witness in an action is a party and has some knowledge of the pertinent facts, he may express an opinion relevant to the issue and relating to a matter with which he is familiar.
2. There is no presumption that a witness is competent to give an opinion, and it is incumbent upon the party offering opinion testimony to show that the witness possesses the necessary learning, knowledge, skill, or practical experience to enable him to competently give such testimony.
3. In the absence of a preliminary showing that the plaintiff in a personal injury action has technical knowledge and experience concerning medical treatment and hospitalization costs, it is prejudicial error for the trial court to permit him, over objection, to testify and give his opinion as to the extent of his further medical treatment and hospitalization, the estimated expense of such treatment and hospitalization and the estimated time of his future unemployment as a result of such treatment and hospitalization.
APPEAL from the Court of Appeals for Mahoning county.
On February 22, 1951, plaintiff, appellee herein, was severely injured when his car which he was driving came in collision with a trailer of the defendant, which had become detached from a tractor-trailer outfit being operated in the opposite direction on the highway. As a result of his injuries, the plaintiff went through an extended period of hospitalization at various hospitals in Youngstown and Cleveland and at the Mayo Clinic in Rochester, Minnesota.
The trial herein was in February 1953. The liability of the defendant, appellant herein, was conceded and the sole question involved is the question of damages. The jury returned a verdict for the plaintiff in the sum of $60,000, on which judgment was entered. Three physicians called by the plaintiff testified as to the injuries and treatment of the plaintiff and as to his physical condition at the time of trial. Two of the physicians testified, among other things, that the next and further procedure in the treatment of the plaintiff would be orthopedic surgery on plaintiff's back with possible fusing of that part of the spine which caused plaintiff's difficulty.
Plaintiff, a layman, had been employed in a steel fabricating plant in Warren, Ohio, and at the time of his accident was receiving a wage of approximately $525 per month. Over the objection of the defendant, the plaintiff, without any preliminary testimony as to qualifications, was permitted to testify concerning the extent of his further medical treatment and hospitalization, the estimated expense of such treatment and hospitalization, and the estimated time of his future unemployment as a result of such treatment and hospitalization. No physician or surgeon or other witness was called to testify on these subjects. In the course of his examination in chief, the plaintiff testified on these subjects as follows:
"Q. * * * Do you have some way of estimating what the future hospital and doctor bills, X-rays and the like will run?
"Mr. Ranz: Object to it.
"The Court: He may answer yes or no. A. Yes.
"Q. Will you tell the court and jury what is your estimate of the future medical, hospital and X-ray expenses?
"Mr. Ranz: Object.
"The Court: He may answer. A. I have, $5,000.
"Mr. Ranz: I ask that the answer be excluded and the jury instructed to disregard it.
"The Court: It may remain. I wonder if you need to connect that up, Mr. Guarnieri, so I would know what method you would use to compute that?
"Q. Do you now anticipate returning to any hospital in the near future? A. Yes, sir.
"Q. Where did you propose to go? A. To Mayo Clinic in Rochester, Minnesota.
"Q. How long do you estimate you will be a patient of the clinic when you return to Mayo Clinic?
"Mr. Ranz: Object to it.
"The Court: He may answer. A. It is going to be two months or better.
"Mr. Ranz: Ask the answer be excluded.
"The Court: It may remain.
"* * *
"Q. You have not worked since December 28, 1951. Considering that you will need further hospitalization, further medication, what is your estimate of the period of time that you will be out of employment from now on?
"Mr. Ranz: Object to it.
"The Court: He may answer. A. A year and a half.
"Mr. Ranz: Ask that the answer be excluded.
"The Court: It may remain. * * *
"* * *
"Q. You have already told us, Mr. Tully, that the future hospital and medical care according to your estimate will be $5,000? A. That is correct.
"Q. How much of that will be used for hospitalization and X-rays outside of doctors? A. That would be very hard to determine.
"Q. What is your estimate of it? A. For just the hospitalization or the surgery?
"Q. For all of the expense incident to the future treatment at the Mayo Clinic outside of doctor bills. A. I have to go through the whole Mayo Clinic again besides being hospitalized in St. Mary's Hospital.
"Mr. Ranz: I ask that that answer be excluded and the jury told to disregard it.
"The Court: The jury will disregard that. You can only give us dollars and that is all. A. Mr. Guarnieri, does that mean just anything incidental to —
"The Court: It means everything except doctor bills. A. I would say $1,500 to $2,000.
"Q. How much do you estimate will be your cost for doctors in the future? A. I don't think I could — this is strictly my own estimate; it is a figure that I arrived at because I don't know what they are going to charge me * * *.
"The Court: That is far enough. Let the record show that Mr. Guarnieri changed the five to a two. That is what you did, didn't you, the $5,000 to $2,000?
"Mr. Guarnieri: I took out medical and simply said future hospital $2,000."
Upon appeal to the Court of Appeals, that court affirmed the judgment of the Common Pleas Court.
The cause is now in this court on appeal by reason of the allowance of a motion to certify the record.
Messrs. Guarnieri Guarnieri, for appellee.
Messrs. Manchester, Bennett, Powers Ullman and Mr. John H. Ranz, for appellant.
The sole complaint of the defendant is that the trial court committed prejudicial error in permitting the plaintiff to give an estimate of his future hospital expenses, the period of necessary future hospitalization and the length of time he would be out of employment by reason of further hospitalization and medical treatment.
The inquiries made of the plaintiff call for a knowledge of matters of a highly technical and speculative nature, not ordinarily possessed by a layman, and involved the estimate of expense in a field about which the plaintiff, so far as the record shows, knew absolutely nothing. Only one who has expert knowledge of medicine or hospitalization could possibly testify within the range of probability on the subjects under consideration.
The rule as to necessary qualifications of an expert witness is well stated in 20 American Jurisprudence, 659, Section 786, as follows:
"When a witness is offered as an expert upon a matter in issue, his competency, with respect to special skill or experience, is to be determined by the court as a question preliminary to the admission of his testimony. There should be a finding by the court, in the absence of an admission or a waiver by the adverse party, that the witness is qualified; and since there is no presumption that a witness is competent to give an opinion, it is incumbent upon the party offering the witness to show that the latter possesses the necessary learning, knowledge, skill, or practical experience to enable him to give opinion testimony."
Counsel for plaintiff suggests that courts have in a wide range of subjects permitted lay witnesses to give testimony in the form of estimates, where the practical necessity of the case required the presentation of such evidence. In passing, no explanation is given in the instant case as to why the evidence was not introduced through one or all of the three physicians and surgeons called to testify for the plaintiff and who were familiar with the facts upon which such inquiries were based.
It is true that the courts of this state and elsewhere have accepted the testimony of lay witnesses who are parties to the actions, where they have some knowledge of the subject matter and concerning which they are qualified to express an opinion relevant to the issues. But the opinion must relate to a matter with which the witness is familiar. See Bishop v. East Ohio Gas Co., 143 Ohio St. 541, 56 N.E.2d 164 (involving the right of a property owner to give an opinion as to the value of his own property); State v. Auerbach, 108 Ohio St. 96, 140 N.E. 507 (involving the speed of a moving vehicle); 20 American Jurisprudence, 675, Section 802; and 32 Corpus Juris Secundum, 150, Section 492.
This court is of the opinion that the trial court committed prejudicial error in permitting the plaintiff to give opinion testimony as to the matters herein considered, and that the judgment for that reason is excessive and must be reversed and the cause remanded for a new trial, unless the plaintiff is willing to accept a remittitur in an amount which will cure the error in this regard. In the opinion of this court, a fair estimate of the excess in the amount of the verdict by reason of the introduction of incompetent evidence is $12,000. If a remittitur in this amount is accepted by the plaintiff, the judgment of the Court of Appeals will be affirmed as to the balance, to wit $48,000, otherwise the judgment will be reversed and the cause remanded to the Common Pleas Court for further proceedings.
Judgment accordingly.
MIDDLETON, TAFT, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.
WEYGANDT, C.J., concurs in the judgment of reversal but is of the opinion that the cause should be remanded for a retrial by reason of the difficulty involved in attempting to use the process of a remittitur to cure the serious error in the admission of incompetent opinion testimony concerning the matter of damages.