Bitzan v. Parisi

• Decision Date: 26 January 1976
• Docket Number: No. 2594--I,2594--I
• Parties: Thomas BITZAN, a single man, Appellant, v. Dr. Ernest N. PARISI and Jane Doe Parisi, his wife, Respondents.
• Court: Washington Court of Appeals

Page 791

14 Wn.App. 791

545 P.2d 578

Thomas BITZAN, a single man, Appellant, v. Dr. Ernest N. PARISI and Jane Doe Parisi, his wife, Respondents.

No. 2594--I.

Court of Appeals of Washington, Division 1.

Jan. 26, 1976.

Rehearing Denied April 27, 1976.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Steven V. Lundgren, Charles A. Kimbrough, Seattle, for appellant.

Jack E. Hepfer, Seattle, for respondents.

Daniel F. Sullivan, Greg L. Tinker, Wash. State Trial Lawyers Assoc., Seattle, amicus curiae.

SWANSON, Judge.

Thomas Bitzan appeals from an order granting the defendant Ernest N. Parisi a new trial and vacating the jury award of $22,500 for injuries received in an auto collision. Bitzan, a 30-year-old carpenter, sustained injuries to his neck and upper back on December 14, 1971, when his automobile was struck in the rear by Parisi's vehicle. Parisi admitted liability for the injuries proximately caused by the collision; therefore only the question of damages was submitted to the jury.

Plaintiff's evidence of the extent and duration of his claimed neck and back injuries may be summarized as follows: Dr. Franco Benitez, plaintiff's treating physician, testified that there were no physical findings of injury when he last examined the plaintiff on July 12, 1972, 1 year before trial. When asked about future disability, Dr. Benitez stated, 'I am quite sure he is going to recover completely,' but he declined to express an opinion as to future disability. Whe specifically asked at the time of trial whether the plaintiff was then experiencing any pain or disability, Dr. Benitez said he was unable to say. The defendant's medical expert, Dr. Bruce Bradley, stated that he examined the plaintiff on May 7, 1973, a month prior to trial, and concluded that he was not in need of further medical treatment and was able to perform manual labor, including carpentry work, 'since I essentially could find no objective abnormalities on my examination,' but admitted on cross-examination that it was possible the plaintiff could have occasional problems with his back at a latter date.

The plaintiff himself testified that prior to the December 14, 1971, collision, he had fully recovered from the effects of earlier accidents, was working regularly as a carpenter, and enjoyed recreational activities which included hunting and fishing almost the year around. He stated that after the accident his neck and back were sore and that he obtained medical attention almost immediately. He wore a cervical collar for a month, received physical therapy treatments, and took pain medicine to relieve spasm as prescribed by his doctor. Nevertheless, he experienced pain when exercising and lifting and had trouble sleeping. The plaintiff stated that because of the pain experienced upon exertion, he was unable to continue his vocation as a carpenter and had to curtail many recreational activities. About 6 months after the accident he began working as a TV salesman, but had trouble lifting and moving the merchandise and changed to selling real estate. When asked at trial whether he was in pain at that time, he said, 'A slight amount.' He also indicated that his neck was healed but that his upper back was still painful when exercising. Plaintiff's lay witnesses essentially corroborated his testimony and testified that he exhibited unnatural movement and stiffness when walking or turning his head.

On this evidence and over defendant's exception, the jury was instructed to consider as elements of damage plaintiff's future disability, future pain and suffering, and future loss of earnings within the standard of reasonable probability. In another instruction, also excepted to, the jury was told that the plaintiff was entitled to recover for the lighting up of any pre-existing bodily condition which made him more subject to injury than a person in normal health.

The jury found for the plaintiff, and the defendant moved for a new trial, which was granted on the basis.

(t)hat there was error of law which was prejudicial 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,

and

(t)hat there was error of law which was prejudicial in giving Instruction No. 6 in that there was no substantial evidence to support said instruction. That, more specifically there was no medical testimony, based on reasonable medical certainty, that 'before this occurrence the plaintiff had a pre-existing bodily condition which made him more subject to injury than a person in normal health' nor was there any evidence to substantiate 'the lighting up of the preexisting condition.'

This appeal followed.

Plaintiff assigns error to the order granting a new trial and contends that the medical and lay testimony provided sufficient evidentiary support for both instructions. We disagree and affirm. It is axiomatic that an issue cannot be withdrawn from the jury if there is substantial competent evidence to support it, Shasky v. Burden, 78 Wash.2d 193, 470 P.2d 544 (1970), but there must be substantial competent evidence--a jury cannot be permitted to guess or speculate. We also observe preliminarily that no element of discretion is involved in granting a new trial because of an error of law. Lyster v. Metzger, 68 Wash.2d 216, 412 P.2d 340 (1966).

Instruction No. 5, adapted from WPI 30.01, states in pertinent part, with portions excepted to by defendant in italics, as follows:

You must determine the amount of money which will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendants.

You should consider the following elements:

The nature and extent of the injuries;

The disability experienced and With reasonable probability to be experienced in the future;

The pain and suffering, both mental and physical, experienced and With reasonable probability to be experienced in the future;

* * *

* * *

The reasonable value of earnings lost and With reasonable probability to be lost in the future.

(Italics ours.)

Plaintiff first argues that the medical evidence meets proper evidentiary standards even though neither doctor expressed an opinion as to adverse future consequences except in terms of 'possibility.' We answer that argument in the negative. It is well settled that the standard of proof as to the degree of certainty to be expressed by a medical expert to establish the causal relationship between the incident in question and the condition complained of must be in terms of 'probability,' Carlos v. Cain, 4 Wash.App. 475, 481 P.2d 945 (1971), or 'more likely than not,' Clevenger v. Fonseca, 55 Wash.2d 25, 345 P.2d 1098 (1959), rather than in terms of possibility or variations thereof, Orcutt v. Spokane County, 58 Wash.2d 846, 364 P.2d 1102 (1961). Similar standards apply as to the degree of certainty required of a medical witness to establish the future consequences of an injury. 22 Am.Jur.2d Damages § 352 (1965). Any lesser standard would violate the sound policy rule against jury speculation and conjecture. Venske v. Johnson-Lieber Co., 47 Wash.2d 511, 288 P.2d 249 (1955). But see Brachtenbach, Future Damages in Personal Injury Actions--The Standard of Proof, 3 Gonzaga L.Rev. 75 (1968). Moreover, the court's instruction is couched in terms of 'reasonable probability.' That standard was not challenged and becomes the law of this case. In measuring plaintiff's expert medical evidence against that standard of certainty, we note the medical evidence most favorable to the plaintiff: Dr. Benitez, plaintiff's medical witness, refused to predict the duration of any disability and could not state at trial whether the plaintiff then had any disability or was experiencing any pain. The trial court correctly ruled that plaintiff's medical testimony is insufficient to support the future damage instruction.

We now reach the decisive question in this case: in the absence of adequate medical evidence is plaintiff's lay testimony sufficient to support the instruction on the future consequences of his neck and back injuries, I.e., disability, pain and suffering, loss of wages? We recognize that expert medical testimony is not always essential to establish future effects of an injury. Carr v. Martin, 35 Wash.2d 753, 215 P.2d 411 (1950); Parris v. Johnson, 3 Wash.App. 853, 479 P.2d 91 (1970); 12 D. Blashfield, Automobile Law & Practice § 445.5 (3d ed. 1969). The general rule followed by almost all courts is that if the injury is 'objective' and it is plainly apparent from the very nature of the injury that it will cause pain and suffering in the future, expert testimony is not required. On the other hand, if the injury is not obvious, nor the symptoms readily apparent, it is regarded as 'subjective,' and medical testimony is generally necessary to support a claim of future damages. See J. Stein, Damages & Recovery: Personal Injury & Death Actions § 16 (1972); 25A C.J.S. Damages § 162(9)b (1966). As explained in Annot., 115 A.L.R. 1149, 1150 (1938),

(I)f the injury is of an objective nature (such as the loss of an arm, leg, or other member) the jury may draw their conclusions as to future pain and suffering from that fact alone (the permanency of such injury being obvious); whereas there must be expert evidence as to future pain and suffering or permanency where the injury is subjective in character.

We described the circumstances when medical testimony was necessary to establish the extent or duration of an injury by this statement in Parris v. Johnson, supra at 860, 479 P.2d at 95:

Medical testimony is necessary when the question of injury or its extent and duration requires a special skill or knowledge to establish that it actually exists. If the common experience...