Bitzan v. Parisi, 44234

• Court: United States State Supreme Court of Washington
• Citation: 88 Wn.2d 116,558 P.2d 775
• Docket Number: No. 44234,44234
• Parties: Thomas BITZAN, a single man, Petitioner, v. Dr. Ernest N. PARISI and Jane Doe Parisi, his wife, Respondents.
• Decision Date: 07 January 1977

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88 Wn.2d 116 558 P.2d 775 Thomas BITZAN, a single man, Petitioner,
v.
Dr. Ernest N. PARISI and Jane Doe Parisi, his wife, Respondents. No. 44234. Supreme Court of Washington, En Banc. Jan. 7, 1977.
Rehearing Denied April 6, 1977.

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[558 P.2d 776] Karr, Tuttle, Koch, Campbell, Mawer, Morrow, Charles A. Kimbrough, James L. Austin, Jr., Seattle, for petitioner.

Jack E. Hepfer, Seattle, for respondents.

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HOROWITZ, Associate Justice.

This is a personal injury case. The questions raised involve the sufficiency of the evidence to support jury instructions on the recovery for future pain, suffering, disability and loss of earnings.

On December 14, 1971, a car driven by defendant-husband Ernest N. Parisi in Seattle, Washington, rearended plaintiff Thomas Bitzan's smaller car, while Bitzan was temporarily stopped behind another car at a crosswalk. In a suit by Bitzan for damages, defendant Parisi and wife admitted liability, and Bitzan recovered a verdict for future as well as present damages. Later the trial court granted defendants' motion for new trial because two of the jury instructions given were unsupported by substantial evidence. On Bitzan's appeal, the Court of Appeals, Division One, affirmed. Bitzan v. Parisi, 14 Wash.App. 791, 545 P.2d 578 (1976). We granted review and now reverse.

Instruction No. 5 describes the existing and future damages recoverable. These include damages for disability, pain, suffering, and lost earnings which 'with reasonable probability' will occur in the future. The instruction also provided defendants were liable for all damages 'proximately caused by the negligence of the defendants,'[558 P.2d 777] and the award 'must be based upon the evidence and not upon speculation, guess or conjecture.' These instructions placed the burden of proof of damages by a 'preponderance of the evidence' upon Bitzan. In an earlier instruction the court instructed the jury the evidence to be considered '. . . consists of the testimony of the witnesses and the exhibits . . . received . . .' and the jury should '. . . consider all of the evidence introduced by all parties bearing on the question.' Still another instruction defined 'preponderance of the evidence' to mean the jury '. . . must be persuaded considering all the evidence in the case that the proposition on which he (either party) has the burden of proof is more probably true than not true.'

The instructions taken together meant Bitzan had the burden of proving by the evidence in the case it was more probably true than not true that future disability, pain,

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suffering and loss of earnings would occur in the future with 'reasonable probability.'

The question of what evidence here is necessary to support an instruction on future disability, pain, suffering and loss of earnings requires an examination of the sufficiency of lay testimony for that purpose including testimony of subjective symptoms as contrasted with objective symptoms. Defendants' exceptions to instruction No. 5 were sufficient to raise these questions. However, on defendants' motion for new trial, the trial court in effect upheld defendants' exceptions to instruction No. 5 and granted defendants a new trial because

There was (prejudicial) error . . . in giving Instruction No. 5 as to elements of future damage and loss for disability, pain, and suffering, and loss of earnings which were based entirely on subjective complaints, as opposed to any substantial medical testimony which would with reasonable medical probability support said future elements of damage . . ..

Was the lay testimony sufficient to permit instruction No. 5 to be given? The lay testimony, pertinent to the issues presented, including that of Bitzan, includes the following. Bitzan had three accidents in 1967 with resulting injury to his neck and upper back similar to injuries later sustained in the 1971 accident. At the time of the 1971 accident, Bitzan still had some pain from the 1967 accidents but was able to continue to follow his occupation as a carpenter and to engage in fishing, hunting and dancing involving movement and exertion of his back.

After the 1971 accident, Bitzan's upper back movement was limited; he suffered from back and neck pain accompanied by loss of sleep following vigorous movement of his back. In time his neck healed but his back injury did not. Although his treatment doctor prescribed drugs and exercises, Bitzan's testimony supported by his witnesses in material respects showed Bitzan continued to experience pain, suffering disability and resulting loss of earnings at the time of trial. Bitzan and lay witnesses testified his back

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movement was and continued to be limited compared to his condition prior to the 1971 accident; that this limitation adversely affected hisparticipation in his usual recreational activities of hunting, fishing and dancing; and because of his inability to lift heavy objects resulting from his 1971 accident, Bitzan was forced to quit his job as a carpenter. Bitzan testified the doctors he consulted ultimately told him it was '. . . a situation that you are just going to have to live with.' Because of his continued inability to work as a carpenter, he later sold television receivers and then real estate but he earned far less money than he had as a carpenter. The evidence showed the extent of the earnings lost.

There was also medical testimony dealing with Bitzan's physical condition. Dr. Benitez examined Bitzan on June 26 and July 10, 1972. In his testimony he used the words 'subjective' and 'objective' findings. He testified:

A. Well, pain is subjective. It is something that the patient feels and tells me about, whereas, objective findings is [558 P.2d 778] something that we can perceive for ourselves.

Based on Bitzan's subjective complaints of back pain, especially on exertion, Dr. Benitez diagnosed Bitzan's condition as '. . . probably a fibromyocitis which is a term meaning a combination probably of inflamed muscles and inflamed fibrous tissue and includes ligaments and tendons.' The doctor testified his diagnosis was based in part on the fact that the symptoms persist despite no objective findings, and '. . . the fact that it doesn't get well as far as we expect.' Dr. Benitez testified, however, that X-rays do not normally show muscle or ligament injury to the back, so the doctor must rely on patient's statements to analyze the injury. The doctor concluded that based on Bitzan's complaints, Bitzan could not continue to work in construction. Questioned on the effect of Bitzan's prior back and neck injuries, Dr. Benitez stated that it was difficult to tell if these injuries had increased the severity of the injury caused by the December 14, 1971 accident, but it does happen.

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Bitzan consulted Dr. Mullen, a back specialist, on February 17, 1972 and June 19, 1973. Although the doctor's tests revealed no spinal or disc damage, he advised Bitzan to continue physical therapy and to take certain shots. Objective evidence included medical records showing the existence of muscle spasms on the part of Bitzan.

Defendants'...