Davidson v. Miller

• Decision Date: 18 September 1975
• Docket Number: No. 226,226
• Citation: 344 A.2d 422,276 Md. 54
• Parties: David DAVIDSON et al. v. Alenetta MILLER, infant, etc. et al.
• Court: Maryland Court of Appeals

Page 54

276 Md. 54

344 A.2d 422

David DAVIDSON et al. v. Alenetta MILLER, infant, etc. et al.

No. 226.

Court of Appeals of Maryland.

Sept. 18, 1975.

Edward C. Mackie, Baltimore (Rollins, Smalkin, Weston, Richards and Mackie, Robert W. Fox, Baltimore, on the brief), for appellants.

Bertram M. Goldstein, Baltimore (Jacob & Goldstein, Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

In this automobile-pedestrian personal injury action, tried in the Baltimore City Court (Carter, J.), after removal from the Superior Court of Baltimore City where the suit was originally instituted, the jury awarded Alenetta Miller, an infant and one of the respondents here, $650,000 as compensation for her injuries, and her mother, Mildred Leggett, who is the other respondent, $1,297.50 as reimbursement for medical expenses she incurred on behalf of her young daughter. Reeling from the impact of this rather substantial verdict for Alenetta, which was reduced to $200,000 through the acceptance by the infant plaintiff of a remittitur nudged by an order of the court pertaining to a new trial motion, the defendants, who are the petitioners before this Court, David Davidson and The Davidson Transfer and Storage Company, appealed from the resulting judgment to the Court of Special Appeals (arriving here pursuant to certiorari issued to that court before it considered the case), asserting that a number of evidential and procedural errors were committed at the trial level. No attack, however, is made upon the jury's determination as to the defendants' negligence; the challenge is confined to the damages aspect of the verdict. We will affirm the judgment as it pertains to the mother, but vacate it so far as it concerns the award in favor of Alenetta and remand this case for a new trial limited to the issue of the damages the child is to receive.

It was in the afternoon of a clear winter day in 1971 that by a simple twist of fate the infant respondent in this case, Alenetta, was severely and permanently injured. Being only four years old at the time, the child was walking home from nursery school hand-in-hand with her mother down Chester Street in Baltimore City when an automobile, driven in a westerly direction on Fayette Street by the individual petitioner and operated for the benefit of the corporate petitioner, passed through a red light at the intersection of Fayette and Chester Streets and collided with a panel truck traveling southbound. ¹ This impact took the panel truck out of its operator's control and propelled it onto the Chester Street sidewalk, where it, without warning, struck Alenetta, hurling the young girl against a brick wall of a building located near the intersection. As a result of this unfortunate occurrence, Alenetta was quickly taken to the Johns Hopkins Hospital and was examined by doctors who, after sedating the child because she was experiencing convulsions, found that she had sustained many serious bodily injuries, especially in the pelvic region. The respondents asked that, as a part of their compensation award for the injuries sustained and the medical expenses incurred in an effort to mend these wounds, the jury be allowed to consider the fact that 'the distortion of the pelvis and the presence of . . . an abnormal bar of bone ((which formed in the pelvis)) would prevent the infant . . . from having natural childbirth,' requiring instead birth by caesarean section. ²

With this factual introduction we now turn to the issues which the petitioners assert on this appeal. These are:

'The trial court erred in admitting testimony relating to caesarean section.

'The trial court erred in instructing the jury in a way which permitted it to consider the possibility of future caesarean section.

'Defendants were denied the equal protection of the laws by the refusal of the Superior Court of Baltimore City to remove the case to a court outside the Eighth Circuit.

'The Superior Court of Baltimore City abused its discretion in refusing to remove the case to a court outside the Eighth Circuit.

'The trial court had no power to reinstate the judgment and grant a remittitur after having granted a new trial.'

I

What the petitioners are objecting to, under both the first and second exceptions (which we consider together), is the expert medical testimony relating to Alenetta's potential birth-giving problems, admitted by the trial judge over counsel's objection and then submitted to the jury for it to evaluate when assessing damages. Specifically, the petitioners' argument is that the evidence of the future costs and complications which Alenetta might incur when and if she ever gives birth 'should have been excluded from the consideration of the jury, since it amounts to no more than a (speculative) possibility of caesarean section in the future, and that is not sufficient to make it admissible evidence.'

The respondents attempt to answer this allegation of evidential failure by claiming that the trial testimony of Dr. Liebe Sokol Diamond, a pediatric orthopedic surgeon, provided probative evidence that Alenetta would require caesarean section if she had children. Therefore, they argue, the judge acted properly when he admitted the evidence and permitted the jury to grant the child compensation for that potential consequence. ³ Dr. Diamond testified as follows:

'Q. (Mr. Goldstein (respondents' attorney)) Now, based upon-can you give us an opinion, based upon reasonable medical certainty from the orthopedic point of view, as to whether or not the rotatory deformity and the bar of bone which now exists in Alenetta Miller, which you have said is permanent, whether or not there is a real likelihood from your point of view as an orthopedist, as to whether or not she will be prevented from having normal childbirth?

(Mr. Mackie (petitioner's attorney)) Objection.

(The Court) Overruled.

Q. (Mr. Goldstein) You may answer, Doctor.

A. There is certainly considerable concern that she would have difficulty having a child through the normal-

(The Court) I am afraid that isn't answering the question. Can you answer the question?

(The witness) Yes. From the orthopedic point of view, the structure of the pelvis is such that its shape would not readily allow spreading of the symphysis pubis and passage of the head of an average sized infant without some difficulty, because it is not-because the passage is not symmetrical, and because the bar of bone will tend to prevent the symphysis pubis from moving in its normal way.

Q. (Mr. Goldstein) Now, based upon your experience as a medical doctor, if the child cannot have natural childbirth, what procedure for childbirth would be required?

(Mr. Mackie) Objection.

(The Court) Well, I don't know-I will let her answer that question. I don't see the particular relevancy of it from this witness, but you may answer it.

(The witness) This will require the services of an expert obstetrician, who would then have to decide among the varieties of special obstetrical techniques for this particular patient as to what way the childbirth could be best and most safely accomplished for the mother and for the child. This could include a variety of forceps delivery, and it could very definitely include a caesarean section, but the decision for that would have to be in the hands of an expert obstetrician.'

Using this testimony as a basis, the trial judge submitted the future childbirth problem to the jury to be considered by it as an element of damages, in these words:

'In assessing the amount of damages, you may consider the health and condition of the plaintiff, Alenetta Miller, before the injuries complained of as compared with the present condition of her health in consequence of said injury. You may also consider the permanent nature of the injuries, and how far they may in the future disable her from engaging in such enjoyment or other acts, activities, for which in the absence of such injury she would be qualified. One of those things I would include in the activities, perhaps it is not the right way to put it, but there is evidence relating to childbirth later on.'

In assessing the doctor's answers and, therefore, the correctness of the court's submission to the jury of the issue the respondents contend this testimony raises, we recognize that the introduction of an expert opinion into evidence often serves a valuable purpose; indeed, sometimes, as is the case here on the childbirth issue, it is the only manner in which a litigant can present his claim. This type of testimony, however, should not be received unless 'jurors of ordinary judgment and experience are incompetent to draw their own conclusion.' Empire State Ins. Co. v. Guerriero, 193 Md. 506, 514, 69 A.2d 259, 262 (1949). This principle was expressed for the Court by Judge Delaplaine in Langenfelder v. Thompson, 179 Md. 502, 505, 20 A.2d 491, 493 (1941), in these words:

'While expert testimony is not admissible on a question which the jurors themselves can decide from the facts, it is admissible when the formation of a rational judgment from the facts requires special training or skill. Consolidated Gas, Electric Light & Power Co. v. State, use of Smith, 109 Md. 186, 203, 72 A. 651, 658.' See Lumbermens Mut Cas. Co. v. Ely, 253 Md. 254, 260-61, 252 A.2d 786 (1969); 7 Wigmore, Evidence 21 (3d ed. 1940).

Even when an expert's testimony would apparently be of assistance to the jury, it has been held many times previously by this Court, as well as by most of the courts in this country, that it still cannot be received unless that opinion be sufficiently definite and certain because, '(i)n matters of proof, neither the Courts nor the juries are justified in inferring from mere possibilities the existence of facts, and they cannot make mere conjecture or speculation the foundation of their verdicts.' Ager v. Baltimore Transit Co., 213 Md....