Ben M. Hogan Co., Inc. v. Nichols

Decision Date02 July 1973
Docket NumberNo. 5--6168,5--6168
Citation496 S.W.2d 404,254 Ark. 771
PartiesBEN M. HOGAN COMPANY, INC., et al., Appellants, v. Will E. NICHOLS et al., Appellees.
CourtArkansas Supreme Court

Bethell, Callaway & Robertson by Donald P. Callaway, Fort Smith, for appellants.

Sam Sexton, Jr., Warner, Warner, Ragon & Smith by Douglas O. Smith, Jr., Fort Smith, for appellees.

FOGLEMAN, Justice.

We have concluded that this $175,000 judgment against Ben M. Hogan Company, Inc. and Vernon Stewart, appellants herein, for personal injuries sustained by Will E. Nichols must be reversed. Nichols was the driver of a water truck which collided virtually head-on with a dump truck owned by Jack Steele and driven by either Steele or Joe Pat Cumbie. The collision occurred on November 20, 1970, during the course of construction of Interstate Highway No. 40 in Franklin County. Nichols suffered severe, painful and disabling injuries. He sued Hogan, and Hogan's employee Vernon Stewart, alleging that Stewart's actions in driving a cement mixer truck were a proximate cause of the collision and his resulting injuries. While appellants assert that the jury awarded excessive damages, we do not reach this point, because we find procedural errors which necessitate a new trial, and will not speculate as to the result of that trial.

Specifically, we find reversible error in the admission of the testimony of Dr. Robert G. Fisher, the liability insurance contract between Hogan and Aetna Life and Casualty Company and certain clauses in the contract between the Arkansas Highway Department and Ben M. Hogan Company, as well as in restriction of the cross-examination of Joe Pat Cumbie. Other points asserted by appellants which are based upon matters likely to arise on retrial will be discussed.

After all other testimony in the case had been completed, Dr. Fisher appeared as a witness for appellee Nichols. This physician is a neurological surgeon residing in Oklahoma City, Oklahoma, who recited impressive credentials as an expert in his field. On voir dire examination it was disclosed that he first saw Nichols on October 15, 1971, at the request of Nichols' attorney, Sam Sexton, and that he took the patient's history and obtained information as to his symptoms from Nichols and Nichols' wife, supplemented by a closing of gaps or inadequacies in the narrations given by this couple through medical records afforded by an attorney from Mr. Sexton's office. The doctor's entire examination was conducted in the presence of Nichols' wife and this attorney, both of whom, he stated, were present throughout the examination, which consisted of inquiries by the doctor to ascertain Nichols' complaints, current symptoms and capabilities and the nature and effects of his injury. The doctor said that the attorney did answer inquiries made during the discussion of these matters, but that Mrs. Nichols answered more. Voir dire also revealed that, even though it would be possible for this witness to express an opinion as to diagnosis and prognosis relative to Nichols' injuries by filling gaps in Nichols' memory with hospital history of notes of treating physicians, Dr. Fisher did, in fact, consider the history given him as an extremely important feature in his ultimate findings. The witness also stated on voir dire that Nichols was referred to him by Sexton, partially for testimony, and partially in the interest of confirmation of a previous diagnosis and any treatment that might be necessary. When asked whether he had intended to perform any treatment or to simply pass suggestions he might have along to attending physicians, Dr. Fisher replied that he thought that, ethically, it would be his role to do the latter. He neither performed any treatment, nor had any suggestions for the attending physician.

This testimony conclusively establishes that Dr. Fisher was not a treating physician, but that he occupied the exclusive role of a medical expert witness, giving opinion testimony, the admissibility of which must be determined on that basis. The doctor was permitted to testify as to matters of history of symptoms and injuries related to him by those present at the examination and reflected by medical records furnished him, over the objections of appellants. Appellants objected to any statement of medical opinion, diagnosis or prognosis, based upon history secured from the patient, his wife and attorney, on the ground of hearsay, to repetition of this history by the witness, and to the expression of opinions based upon records and reports of other physicians. Neither Nichols nor Dr. James A. Brown, his attending neurosurgeon, testified.

The general rule, supported by the weight of authority, is that statements by an injured or diseased person as to his current conditions and symptoms, or as to past conditions and symptoms, made to a physician conducting an examination for the purpose of qualifying as an expert witness, and not for treatment, are inadmissible. See Annot. 67 A.L.R. 10, 15 et seq., 22 et seq. (1930); 130 A.L.R. 977, 978, et seq., 982 et seq.; 65 A.L.R. 1217, 1219 (1930); 51 A.L.R.2d 1051, 1065; 32 C.J.S. 357 Evidence § 546(94). 1

We have sustained the admission of expert opinion as to prognosis of an injury based upon testimony given at the trial by another physician as to disclosures from x-ray pictures made by the other physician. Missouri Pac. R. Co. v. Sorrells, 201 Ark. 748, 146 S.W.2d 704. A medical expert may also base his opinion upon testimony as to symptoms of the injured party given by that party and his attending physician. Safeway Stores, Inc. v. Ingram, 185 Ark. 1175, 51 S.W.2d 985. But an expert medical opinion based entirely upon a review of the record of a medical examination and a diagnosis by another physician is not admissible. Southern Nat. Ins. Co. v. Heggie, 206 Ark. 196, 174 S.W.2d 931. The proper rule seems to be that the medical expert should not be allowed to base his opinion upon matters that are neither within his personal knowledge nor in evidence in the case. See Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965).

Since Dr. Fisher was not present at the trial, did not hear the testimony and did not base his opinion upon the testimony given at the trial, and since no hypothetical question embracing facts shown by the evidence was addressed to him, his testimony cannot be held admissible under the rule as to expert witnesses, stated in Polk v. State, 36 Ark. 117; and followed in St. Louis, I.M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S.W. 494; Ringlehaupt v. Young, 55 Ark. 128, 17 S.W. 710; and Arkansas Baking Co. v. Wyman, 185 Ark. 310, 47 S.W.2d 45.

The basic rule for the admission of expert medical testimony was stated thus in Polk:

If the expert has been present, and heard all the evidence as to the symptoms and appearances, detailed upon the trial, he may give his opinions upon the facts so stated, if they be found true by the jury, but can not, himself, judge of their truth. If he has not been present and heard them they may be repeated to him, in the presence of the court and jury, and his opinion concerning them required upon the same supposition of their truth. But, in either case, the opinion is upon a hypothetical state of affairs, and its value depends upon the view the jury may take of the truth of the facts, to which witnesses have sworn. It can not be based upon any facts which the expert may have heard outside, and may believe to be credible; and, if based upon his own knowledge of particular facts, he should, himself, detail the facts, and give his opinion thereon.

Consistent with the general rule, we have held that where there were no objective symptoms, the opinions of physicians as to the extent of injuries, based on exclamations and other indications of pain and the plaintiff's inability to handle himself, were properly admitted in evidence, but that an opinion based upon self-serving declarations is inadmissible. Biddle v. Riley, 118 Ark. 206, 176 S.W. 134, L.R.A. 1915F 992. In Biddle, we quoted the rules as follows:

'A medical expert may base his opinion upon a clinical history of the case under consideration, and in order to make his testimony intelligible, he may testify to the observations that he made, and also as to what his patient said to him in describing his bodily condition and the character and manifestations of his sickness, pains, etc. The reason for this rule is that the physician must oftentimes of necessity take into consideration such statements in reaching a conclusion as to the physical condition of the patient, and the nature and extent of his malady or injury; and hence, the rule being founded on such necessity, it has been declared that it must be applied with caution, and not extended beyond the reason of necessity upon which it rests. It has been declared, however, that the mere statements made by a person as to his sufferings, pain, etc., which statement was made for the sole purpose of furnishing the expert with information on which to base an opinion, is not admissible, and that the witness, in testifying to what he has heard and observed, is confined to exclamations, shrinkings and other expressions which appear instinctive, intuitive and spontaneous.' 5 Encyclopedia of Evidence, p. 608.

The rule on the subject is also stated by Mr. Jones, in his work on Evidence (2ed.), § 349, as follows: 'Whenever it becomes material to show a person's condition of health, or motives, or state of mind, such person's declarations may often be received in evidence for such purpose, provided the requisites already pointed out are complied with, and it appears that such statements are spontaneous and undesigned, and that they illustrate the facts which are the subject of inquiry. In some of the decisions, the utterances are limited to groans and exclamations, and other involuntary exclamations of pain. But in others assertions and complaints as to present feeling are received more...

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