Johnson v. Heintz

• Decision Date: 21 December 1973
• Docket Number: No. 219,219
• Parties: Emaline JOHNSON et al., Plaintiffs-Respondents, v. Gladys Lorraine HEINTZ et al., Defendants and Third Party Plaintiffs-Appellants, State Farm Mutual Auto Insurance Co., Third Party Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 85

213 N.W.2d 85

61 Wis.2d 585

Emaline JOHNSON et al., Plaintiffs-Respondents, v. Gladys Lorraine HEINTZ et al., Defendants and Third Party

Plaintiffs-Appellants,

State Farm Mutual Auto Insurance Co., Third Party

Defendant-Respondent.

No. 219.

Supreme Court of Wisconsin.

Dec. 21, 1973.

Wickhem, Consigny, Sedor, Andrews & Hemming, Janesville, for plaintiffs-appellants.

Grimm & Elliott, Robert J. Elliott, Janesville, for plaintiffs-respondents.

Noll, Donovan, Bolgrien & Ruth, Beloit, for third party defendant-respondent.

HEFFERNAN, Justice.

The appellants Gladys Heintz and American Family Mutual Insurance Company, contend that the trial court erred when it instructed the jury that, on the basis of the evidence, it could determine whether the injury occasioned by Emaline Johnson on August 12, 1969, when she fell while hanging out the clothes, was the natural result of the injury sustained in the automobile accident and permitted an award of additional compensation to be included in the damages attributable to the automobile accident.

Those appellants contend that it was improper for the jury to be allowed to consider these injuries unless there was testimony to a reasonable degree of medical probability that the fall was occasioned by the automobile accident. They contend that there was no such evidence to a reasonable degree of medical probability produced at trial. There is, however, an abundance of testimony by Emaline Johnson which could inferentially lead to a causal connection between the knee injury in the automobile accident and the re-injury in the fall.

We conclude, however, that expert testimony is required in a situation where there is an attempt to show that a subsequent re-injury was occasioned by a prior event. In Cramer v. Theda Clark Memorial Hospital (1969), 45 Wis.2d 147, 150, 172 N.W.2d 427, 428, we said:

'This court has long distinguished between matters of common knowledge and those needing expert testimony to explain and has held that expert testimony should be adduced concerning matters involving special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, and which require special learning, study, or experience.'

The same principle was applied in Globe Steel Tubes Co. v. Industrial Comm. (1947), 251 Wis. 495, 29 N.W.2d 510, a case posing a problem similar to the instant one. Therein, the compensation claimant revealed a history of industrial accident which caused a severe injury to the left leg. At some subsequent time, his leg doubled up and he sustained an additional injury. There was medical testimony that, prior to the fall in that case, there was a permanent disability as a result of the first accident; but the expert could not testify with any degree of medical certainty that the disability sustained in the first injury was the cause of the second one. The court stated:

'Where we are dealing . . . with a subject matter which is not within common knowledge, there must be some basis in medical testimony for an award.' (P. 497, 29 N.W.2d p. 511)

In accordance with these principles, we conclude that Emaline Johnson was required to show by expert medical testimony to a reasonable degree of medical probability that the fall on August 12, 1969, was the result of a disability caused by the prior automobile accident. That evidence does not appear of record. Dr. Odland, her orthopedic surgeon, the only medical expert who testified in any respect on matters directed to the cause of the fall on August 12, 1969, stated:

'The patient continues to have pain in the kneecap area and some buckling feelings in the knee which are related to as post-operative feature of this type of injury she had and the type of surgery she required. The patient has built her muscles strong to try and protect against the buckling feeling and it's my impression that she has permanent disability as a result of the cartilage injury to the kneecap and to the fact that she does not have a cartilage now in the knee.'

An examination of the transcript in which that statement appears reveals that the question was addressed to the nature of the permanent injury she had at the time of trial and is not probative of her condition between the time of the surgery occasioned as a result of the automobile accident and the fall on August 12, 1969. Dr. Odland was also asked what complaints Emaline Johnson would have. The question was clearly addressed to the matter of permanent injury extending into the future after the time of trial. In response to the question of defendant's counsel, 'State whether or not she can expect the knee to buckle in this condition,' Dr. Odland answered, 'If the kneecap is sore and is painful the knee will buckle, yes, it will buckle occasionally.' While these questions and answers are relevant to the question of permanent disability, they do not satisfy the plaintiffs' burden of proof to a reasonable degree of medical probability that the fall on August 12, 1969, was occasioned by the prior tortious trauma.

In addition, Dr. Odland's deposition of December, 1971, was introduced into evidence. Therein he stated that it was unlikely that the plaintiff's twisting of her knee in August, 1969, was related to the previous condition of the knee and that it appeared to him that the fall in 1969 was an independent re-injury of the knee. He said he did not believe the knee injury in August, 1969, was related to the 1964 accident.

A review of the entire medical evidence reveals no testimony from which it can be concluded that any medical expert testified to a reasonable degree of medical probability that the fall of 1969 was occasioned by the injuries received in the automobile accident. On the contrary, Dr. Odland's deposition, which was before the jury, reveals that he could not conclude that there was any causal relationship between the original injuries and the injuries received in the fall.

In the absence of proper expert testimony, it was error to submit to the jury a question which permitted it to include in its assessment of damages a sum for the injuries which the plaintiff received in August, 1969.

It is argued, however, on appeal by the attorneys for Emaline Johnson that there was not a timely objection to this instruction and that, even though the instruction was erroneous, it cannot be asserted now. This is ordinarily the rule. However, the very case upon which Emaline Johnson's attorneys rely (Menge v. State Farm Mut. Auto. Ins. Co. (1969), 41 Wis.2d 578, 164 N.W.2d 495) contains an exception to the rule which was made applicable there and is equally applicable here. In Menge, the objection to the emergency instruction was not raised until appeal. The court pointed out that there was error in giving the emergency instruction when the facts in evidence did not warrant it. This we held to be a 'misstatement of the law.' (P. 586, 164 N.W.2d 495) In the instant case, the instruction which would have permitted recovery for the August, 1969, damages was predicated on the trial judge's belief that the evidence presented was of sufficient quality for the jury to conclude, without the necessity of speculation, that the injuries sustained in the fall were properly compensable in the automobile accident damage suit.

Our conclusion that the instruction was based on an error of law is demonstrated by the judge's statement on the denial of the defendants' motions after verdict. Therein he stated:

'The instruction on subsequent injury was given on the basis that plaintiff testified that her injured knee gave way and she fell. The doctor expressed no opinion one way or another on the subject.'

It is thus apparent that the trial judge believed that the lay opinion of the plaintiff alone was sufficient to show the causal connection between the two injuries. This is not the law. Expert testimony to a reasonable degree of medical probability was required. The instruction was erroneous and prejudicial and, as a misstatement of the law, objection to it can be raised even after the verdict has been returned.

The plaintiffs, as pointed out above, have argued that the evidence was sufficient to show that the fall of 1969 was the result of the automobile accident. They also argue that the determination of whether the fall was related to the accident of November, 1964, should not result in upsetting the jury verdict for future pain and suffering and for future loss of wages to the extent they were attributable to the accident of 1964. This contention is correct. As the instructions were given to the jury, it was entitled, however, to consider that any further injuries sustained in the fall were the natural result of the injuries received in the automobile accident. The figure of $30,000 for personal injuries and $5,000 for loss of society and medical care may, therefore, reflect the jury's inclusion of damages that were attributable solely to the fall and not to the accident. Accordingly, although we consider the damages not excessive, in the frame of reference the jury was permitted to view them, they were improperly determined. Under the present state of the record, we cannot determine what portion of the damage award was included as a result of the fall. As a consequence, the jury's finding of damages must be reversed in toto.

The defendants, Gladys Heintz and her insurer, American Family Mutual Automobile Insurance Company, also claim that it was error for the trial judge to have permitted counsel for the plaintiffs to present a chart in tabular form detailing the claimed loss of wages, month by month, from the 1964 accident through 1969 following the fall. To the extent that there was evidence associating the claimed wage loss to the automobile accident of 1964, these wage losses were relevant and were admissible into evidence. We see nothing wrong with the use of the chart for the purpose of avoiding jury confusion. In Affett v....