Hobbs v. Harken

• Decision Date: 09 June 1998
• Docket Number: No. WD,WD
• Citation: 969 S.W.2d 318
• Parties: Ronald D. HOBBS, Respondent, v. John D. HARKEN, Appellant. 54250.
• Court: Missouri Court of Appeals

Page 318

969 S.W.2d 318

Ronald D. HOBBS, Respondent, v.John D. HARKEN, Appellant.

No. WD 54250.

Missouri Court of Appeals Western District.

June 9, 1998.

Paul V. Herbers, Andrew M. Jones, Cooling & Herbers, P.C., Kansas City, for appellant.

Thomas C. Capps, Michael S. Shipley, Withers, Brant, Igoe & Mullennix, P.C., Liberty, for respondent.

Before LAURA DENVIR STITH, P.J., and HANNA and RIEDERER, JJ.

LAURA DENVIR STITH, Presiding Judge.

Mr. Harken appeals a judgment against him in this personal injury action arising out of a four-car collision.He argues that the trial court erred in permitting an economic expert to testify to Mr. Hobbs' lost future wages based on the assumption that Mr. Hobbs' vertigo and its effect on his work would continue unabated for twenty years, where Mr. Hobbs failed to introduce evidence at trial that his vertigo was reasonably certain to continue unabated for that period.We agree that where, as here, the only medical evidence showed that Mr. Hobbs had yet to undergo rehabilitative therapies or surgery which his experts stated would improve his vertigo symptoms, and where his medical experts simply testified that symptoms such as his sometimes are mitigated or alleviated and other times continue unchanged, that it was error to admit the economic expert's testimony on future lost wages for twenty years.We disagree with Mr. Harken that an exhibit admitted by the trial court was a testimonial exhibit.Accordingly, we find that there was no automatic prohibition against sending it to the jury.Reversed and remanded.

I.FACTUAL AND PROCEDURAL HISTORY

On December 8, 1994, a four-vehicle rear-end collision accident occurred in the center southbound lane on Interstate 35 in Johnson County, Kansas.The evidence below indicated that the first vehicle, driven by Michael Finnegan, stopped or almost stopped without warning.Despite the suddenness of Mr. Finnegan's stop, both Jose Valdes, who was driving the car immediately behind Mr. Finnegan's vehicle, and plaintiffRonald Hobbs, whose car was behind that of Mr. Valdes, were able to stop their cars without striking the car in front of them.However, the person driving the car behind Mr. Hobbs, John D. Harken, was unable to stop his car before it struck the rear end of Mr. Hobbs' vehicle.The force of that collision drove Mr. Hobbs' vehicle into the rear end of the Valdes' vehicle.As a result of this collision, Mr. Hobbs sustained several injuries and was unable to work for seven or eight weeks.He sued both Mr. Finnegan, who was driving the first car, and Mr. Harken, who was driving the fourth vehicle.

In support of his claims against these defendants, Mr. Hobbs presented evidence that his injuries resulting from the accident included both soft tissue injuries to his neck and back, and injuries to his inner ear.He testified that, even by the time of trial over two years after the accident, he was suffering from headaches two or three times a week, neck and upper back pain, hearing loss in his left ear, and dizziness and unsteadiness, all of which he attributed to his injuries from the accident.

Mr. Hobbs also presented testimony from two medical experts and from an economic expert to support his claim for damages.Dr. Steven Cicero, who had treated Mr. Hobbs for his back and neck injuries, testified by deposition.He stated that Mr. Hobbs had been released from treatment for his neck and back injuries by July, 1995, because he had reached maximum medical benefit.He also testified that no further treatment was necessary for Mr. Hobbs' neck and back complaints, but that Mr. Hobbs would probably have some continued neck and back discomfort in the future.

Mr. Hobbs also presented the deposition testimony of Dr. Avon Coffman, who treated Mr. Hobbs for his ear injuries.The evidence showed that Mr. Hobbs had a pre-existing hearing loss in his right ear which was not caused by the accident, and had pre-existing tinnitus in both ears.Dr. Coffman testified that the accident increased Mr. Hobbs' tinnitus.He did not testify that this tinnitus was permanent.Dr. Coffman testified that the accident caused Mr. Hobbs additional partial high-frequency hearing loss in the left ear.He said this caused Mr. Hobbs to have difficulty in discriminating certain sounds, and that this injury was permanent.Dr. Coffman prescribed a hearing aid.Mr. Hobbs testified that the hearing aid helped, although background noises would still sometimes interfere with his hearing.Neither Mr. Hobbs nor Dr. Coffman testified that Mr. Hobbs' hearing loss or tinnitus would effect his ability to work.

Finally, Dr. Coffman testified that the accident caused Mr. Hobbs to suffer from a vestibular disorder resulting in vertigo, unsteadiness, or dizziness.Dr. Coffman testified that the symptoms may be corrected by rehabilitation therapy, but explained that this therapy "won't ever remove the condition, it just allows him to become more functional with the condition that he has."Mr. Hobbs testified that he did not participate in this therapy because he could not pay its cost, which was $1,200 to $1,500.Dr. Coffman further testified that surgery was also available to correct Mr. Hobbs' vestibular condition, but that he would not recommend surgery as an option until Mr. Hobbs had tried the rehabilitation therapy.When asked whether he had an opinion, to a reasonable medical certainty, as to the permanence of Mr. Hobbs' vestibular disorder, Dr. Coffman stated:

That's going to be harder to ascertain simply because so much of that is subjective.And as he improves with time and he has improved over the past year and a half that I have talked to him.He's still having and complaining of unsteadiness.It's obviously compromised his job performance but that's going to be harder to quantify as far as permanence of that injury but I would say if he gets into rehabilitation he's going to be improved.The question is will he ever be normal and I don't know anyone can answer that at this point in time.It's just hard to say.I can['t] answer about the hearing loss because we have objective data that says that hasn't changed in almost 2 years but his unsteadiness may or may not improve based on therapy and treatment so I couldn't answer that question.

There was no other medical evidence regarding the permanence of Mr. Hobbs' vestibular disorder.

Mr. Hobbs testified that his work as a frame carpenter included walking on narrow boards and rooftops, nailing sheeting on roofs, and handing up lumber.He claimed his neck and back pain, as well as his vertigo, required him to cut back substantially on his work schedule, and that, although he continued to do this type of work, this was only because he had no other way of making a living.

Mr. Hobbs' final expert witness was Dr. John Ward, an economist.Prior to trial, Mr. Harken had filed a motion in limine to prevent opposing counsel from mentioning Dr. Ward's opinion during opening statement.This motion was denied.During trial, Mr Harken objected to Dr. Ward's opinion testimony concerning future income loss, arguing that his opinion lacked sufficient factual basis.This objection was also overruled.The court granted a continuing objection to this opinion evidence throughout Dr. Ward's testimony.The court also overruled Mr. Harken's motion to strike Dr. Ward's testimony about future income loss.

Dr. Ward testified that Mr. Hobbs' future medical expenses, for replacement hearing aides and batteries, would be $10,506.Mr. Hobbs' actual medical expenses up to the time of trial were $5,545.37.Dr. Ward used two alternative approaches to estimate Mr. Hobbs' future income loss.Both approaches were based on the assumption that Mr. Hobbs would suffer from lost earning capacity for twenty years into the future.Under one approach, the lost earnings would be $180,585; under the other approach, they would be $274,480.Dr. Ward also testified that Mr. Hobbs' lost earnings up to the present time were between $23,312 and $38,950.Dr. Ward testified that, in determining lost future and past earnings, he had relied on answers provided on a questionnaire given to him by Mr. Hobbs' attorneys, on Mr. Hobbs' income tax records from 1990 through 1996, and on various other documents, all of which he testified are the type of documents ordinarily relied upon by experts in his field.

Dr. Ward testified that his estimates also were based upon the assumption that Mr. Hobbs' vestibular disorder was permanent and that his symptoms would continue with "absolutely no change" for the following twenty years.He further testified to his assumptions that Mr. Hobbs' neck, back, and headache pain were permanent and that Mr. Hobbs' pretrial income loss would continue without change for twenty years.Dr. Ward testified that his assumption of the permanency of the vestibular disorder was based upon a letter from Dr. Coffman and upon the representations of Mr. Hobbs' counsel.The letter from Dr. Coffman provided that:

it is hard to predict how he will progress in the future although typically these inner ear injuries take months to resolve and sometimes patients are left with a permanent vestibular disorder.

Dr. Ward testified that if his assumption of the permanence of this disorder were unfounded, then his analysis of future loss of income would be significantly affected and that his numbers would be misleading if Mr. Hobbs' injuries would not affect his future income for the twenty years that Dr. Ward's calculations had presumed.

The jury returned a verdict for Mr. Hobbs for $340,000 and assessed 34% of the fault to Mr. Harken--the driver of the fourth car--and 66% of the fault to Mr. Finnegan--the driver of the first car.Mr. Harken filed a motion for new trial in which he asserted in part:

The Court erred in allowing the economic testimony of Dr. Ward without adequate foundation.The medical testimony was consistent that no doctor established the...