Casimere v. Herman

Decision Date08 October 1965
PartiesDelores CASIMERE, Respondent, v. James W. HERMAN et al., Appellants.
CourtWisconsin Supreme Court

The plaintiff, Delores Casimere, brought a personal injury action against James W. Herman and his insurer, American Family Mutual Automobile Insurance Company, for injuries sustained in an automobile accident in Milwaukee on March 9, 1962. The jury found Sharon Ann Herman, wife of the defendant and driver of the automobile, 90 percent causally negligent, and plaintiff 10 percent causally negligent. It awarded the plaintiff a total of $9,650.00. The disputed portions of the award are $2,500.00 for loss of earnings and $4,500.00 for future pain and suffering.

At the time of the accident, the plaintiff was a research chemist studying for her Doctor of Philosophy degree in biochemical nutrition at the University of Iowa. The University paid her $5,600.00 per year plus remission of tuition. She alleges that because of her injury, she left the University in February 1964, without completing her graduate work. In May 1964 she began work with Michael Reese Hospital at a salary of $6,300.00 per year. She was released July 17, 1964, and claims that her medical supervisor said she was disorganized and worked too slowly.

The plaintiff was treated by her personal physician, Dr. Henry L. Dale, a general practitioner, and Dr. James A. Groh, an orthopedic surgeon. She also consulted Dr. Bacon, head of a psychiatric clinic, and Dr. Walter McDonald, a clinical psychologist and member of Dr. Bacon's clinic. All of the above testified except Dr. Bacon, even though he was available. Only Dr. McDonald, the clinical psychologist, testified concerning the plaintiff's future pain and suffering due to her emotional disorder.

Giffin, Simarski & Koch, Milwaukee, James P. Brennan, Milwaukee, of counsel for appellants.

Theodore W. Harris, Racine, for respondent.

HEFFERNAN, Justice.

The appellant argues that the testimony of Dr. McDonald, a psychologist, is not competent to support an award of future pain and suffering. He insists that the question of future pain and suffering is a medical one and that, by statute, only a witness holding a medical degree and licensed under the law of the State of Wisconsin 1 is competent to testify. He relies also on previous pronouncements of this court in which we have said:

'Only 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. In the absence of such expert testimony * * * the jury should be instructed that no damages may be allowed for future pain and suffering.' Diemel v. Weirich (1953), 264 Wis. 265, 268, 58 N.W.2d 651, 652. 2

The respondent distinguishes these cases by pointing out that they concern testimony of a nonexpert layman, as contrasted to the testimony of a licensed physician. The respondent claims that the rule is not applicable where an expert, in this case a clinical psychologist, is the witness. Respondent also relies on sec. 147.14(2)(b), Stats., which permits 'any person to testify as an expert on a medical subject in any action or judicial proceeding where proof is offered satisfactory to the court that such a person is qualified as such expert.' In support of this, respondent points to the record showing that the witness had an extensive educational background in psychology, that he held a Ph.D. in the subject, and had practiced as a clinical phychologist for several years. Moreover, his qualifications to testify were not challenged by the appellant until after the rendition of the verdict.

Respondent also quotes our language in Alsteen v. Gehl (1963), 21 Wis.2d 349, 359, 124 N.W.2d 312, 317:

'Psychiatry and clinical psychology, while not exact sciences, can provide sufficiently reliable information relating to the extent of psychological stress, and to the causal relationship between the injury and the defendant's conduct, to enable a trier of fact to make intelligent evaluative judgments on a plaintiff's claim,'

and concludes that, though we comment conjunctively on the probative value of psychiatry and psychology when testifying, that this is indicative of the acceptance of the testimony of a psychologist alone. Appellant, on the other hand, does not deny the competence of a psychologist to testify as an expert witness, but insists that his testimony as an expert (at least on medical matters), relating to the tests he conducted, are merely tools to be used by the licensed psychiatrist to make his findings more objective, but, of themselves and without the aid of the medical expert, are insufficient to support the award for future pain and suffering.

Suffice it to say that the arguments posed by the parties point up serious questions regarding the competence of a psychologist to testify as to future pain and suffering or in regard to other aspects of a personal injury case having medical implications when that testimony is not used as an adjunct to the testimony of a licensed physician or psychiatrist.

Nevertheless, qualification of an expert witness has historically not been a matter of licensure, but a matter of experience. During periods of epidemic, when lay persons were extensively exposed to disease, they were competent to testify in regard to particular diseases with which they were familiar. 3 In Wisconsin we have held, in view of his knowledge of the condition of dead bodies, that a nonmedical coroner could give his opinion of the time of death. Palmer v. Schultz (1909), 138 Wis. 455, 120 N.W. 348. This court has allowed the testimony of lay witnesses that an applicant for a life insurance policy was apparently in good health. Stanislawski v. Metropolitan Life Ins. Co. (1939), 231 Wis. 572, 286 N.W. 10.

In State v. Law (1912), 150 Wis. 313, 136 N.W. 803, three professors of the University of Wisconsin medical school, none of whom were licensed to practice in the state as physicians, as the statute required, were permitted to testify as expert medical witnesses that the abdominal cavity of a deceased abortion victim contained 'bacteria known as streptococci' and that the deceased was five or six weeks pregnant at the time of death. The court stated at page 328, 136 N.W. at page 808:

'The mere fact that the science of medicine covers, includes, or requires some knowledge of bacteriology, or chemistry, or botany, or biology, or embryology, would not exclude an expert in either of these sciences * * *.'

Hence, the law traditionally has permitted limited testimony of a medical nature by one not licensed as a medical doctor, if he is, in fact, qualified as an expert. Moreover, even a cursory study of the literature of mental conditions reveals that there are those who question whether all aspects of abnormal behavior are, in fact, medical problems in the traditional sense.

'Behavior considered to be mental illness is believed to result primarily from the unconscious or uncontrollable disruption of thought-process integration and symbol interpretation, resulting from adaptive processes learned or experienced in coping with the self-concept or environment. The apparently psychological-functional nature of these disturbances--e. g., their attempt to protect the individual from personal stress, as well as the absence of defined sympton patterns or known causative organisms--raises a serious question as to the appropriateness of continuing to consider them diseases in the traditional medical sense.' 4

In Noyes and Kolb, Modern Clinical Psychiatry, it is stated:

'The physician must relize, however, that patients may become ill from disturbed human relations as well as from genetic, constitutional, metabolic or other physical causes. He should recognize that mental disorders are not so much diseases as disturbances of persons.' 5

Considering the recent origins of psychology and psychiatry, it is not surprising that there is a sharp difference of opinion in regard to where the expertise of the psychologist impinges on the exclusive domain of the psychiatrist.

It is therefore little wonder that the courts have been reluctant in allowing, and generally are adamant in refusing to allow, a psychologist to 'go it alone' as a witness in what might be in the realm of medicine. 6

On the other hand, there are areas, such as psychometrics, where the skill of the psychologist is considered by many to be superior to that of the psychiatrist.

The law has long permitted calling as an expert witness any person whose training, experience, and method within his particular discipline is acknowledged to be sound and trustworthy. In many aspects of his work, the psychologist has undoubtedly met this standard.

As the great Wigmore said many years ago:

'Whenever the Psychologist is really ready for the Courts, the Courts are ready for him.' 3 Wigmore, Evidence, p. 368, sec. 875.

However, to decide the case before us, we are not obliged to explore the penumbra of the psychologist's expertise where some members of this court have grave doubt as to such testimonial competence on the part of a clinical psychologist.

We so conclude because the testimony of Dr. McDonald, taken at its full value, irrespective of any questions that have been raised in respect to his testimonial qualifications as a witness, is insufficient to support the award of damage for future pain and suffering.

The only testimony in regard to future pain and suffering, or future disability, is that elicited from Dr. McDonald by the plaintiff's attorney. The sum total of that testimony appears below:

'Q What prognosis did you reach with respect to Miss Casimere?

A That she was, first of all, the fact that she was in need of treatment for her emotional condition, and that if she did not get that treatment, the condition that I detected in her was likely to persist....

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22 cases
  • Michaud v. Steckino
    • United States
    • Maine Supreme Court
    • August 31, 1978
    ...for the injury as a permanent one. Zimmerman v. Ausland, 266 Or. 427, 513 P.2d 1167, 62 A.L.R.3d 1 (1973); see also Casimere v. Herman, 28 Wis.2d 437, 137 N.W.2d 73 (1965); Couture v. Novotny, 297 Minn. 305, 211 N.W.2d 172 (1973); Hildyard v. Western Fasteners, Inc., 33 Colo.App. 396, 522 P......
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    ...622; Jenkins v. United States, 113 App.D.C. 300, 307 F.2d 637; State v. Tull, 240 Md. 49, 212 A.2d 729; see, also, Casimere v. Herman, 28 Wis.2d 437, 137 N.W.2d 73; Simpson v. Heiderich, 4 Ariz.App. 232, 419 P.2d 362; Blunt v. United States (D.C.Cir.) 389 F.2d 545; but see State v. Alexande......
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    • August 14, 1984
    ...surgery as a part of the obligation to mitigate damages. We deem that the modern Wisconsin rule has been stated in Casimere v. Herman, 28 Wis.2d 437, 137 N.W.2d 73 (1965), and Hargrove v. Peterson, 65 Wis.2d 118, 221 N.W.2d 875 (1974). In Casimere, 28 Wis.2d at 447, 137 N.W.2d 73, we pointe......
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    • February 7, 1969
    ...this testimony but allowed an offer of proof to be made. We think the psychologist's testimony is admissible. In Casimere v. Herman (1965), 28 Wis.2d 437, 137 N.W.2d 73, this court discussed but did not decide whether a clinical psychologist was qualified to give his opinion as to future pa......
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