Means v. Gates

• Decision Date: 31 December 2001
• Docket Number: No. 3427.,3427.
• Citation: 348 S.C. 161,558 S.E.2d 921
• Parties: Roderick MEANS, Appellant, v. Richard GATES, Respondent.
• Court: South Carolina Court of Appeals

348 S.C. 161

558 S.E.2d 921

Roderick MEANS, Appellant, v. Richard GATES, Respondent.

No. 3427.

Court of Appeals of South Carolina.

Heard December 5, 2001.

Decided December 31, 2001.

Jody V. McKnight, of Riesen Law Firm, of North Charleston, for appellant.

John L. McDonald, Jr., of Clawson & Staubes, of Charleston, for respondent.

ANDERSON, J.

This is a negligence action in which Roderick Means obtained a verdict of $25,000 against Richard Gates for injuries he sustained in an automobile accident. Means appeals, alleging the trial court erred in excluding the testimony of his expert witness, a neuropsychologist, which was offered to rebut Gates' implication that Means' physical symptoms were not genuine. Means contends the exclusion of this evidence prejudiced his case and resulted in a lower jury verdict. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

This appeal arises out of a three-car chain collision that occurred on August 29, 1996, when Gates ran into the back of another vehicle, which in turn struck Means' vehicle from behind. After the accident, Means was treated for lower back and shoulder pain, as well as numbness in his arms and legs.

Means filed this negligence action against Gates, alleging he suffered physical injury, mental distress, lost wages, and substantial expenditures for past and future medical treatment. In his amended answer, Gates admitted simple negligence in causing the accident, but asserted "Absence of Injuries" as a defense.

At trial, Means testified that he experienced chronic lower back pain as a result of the accident, which interfered with his daily activities and caused him distress. Means stated he had incurred medical expenses of $28,951.34 and lost wages of $1,791.77 to date. Dr. Gregory Jones, Means' primary treating physician, diagnosed Means with an annular (outer layer) tear and herniated discs in the thoracic, lumbar, and sacrum regions of his spine, along with nerve root compromise. Dr. Jones stated Means probably would require nerve blocks indefinitely to control his pain, a maximum of four a year, at a cost of more than $1,000 per procedure. Dr. Jones stated—to a reasonable degree of medical certainty—that the symptoms generated from Means' disc herniation were a direct result of the August 1996 automobile accident. Dr. Jones assigned Means a 10 percent impairment rating to the lower back and legs.

The defense asserted Means' physical problems predated the August 1996 collision and that the impact was not significant enough to cause the injuries described by Means' treating physician. Gates hired Dr. Robert Sopka to perform an analysis of the forces involved in the impact. Dr. Sopka is a physics professor and department chair at the Community College of Baltimore County in Catonsville, Maryland with experience in analyzing the physics of motor vehicle collisions. Dr. Sopka testified he additionally worked for Forensic Technologies, a litigation-services group, as a senior physicist, but was not a certified accident reconstructionist.

In a videotaped deposition, Dr. Sopka testified in detail about what he considered the fairly insignificant forces of impact of the "low-speed" accident. Dr. Sopka stated he had reviewed the police report and analyzed the weights of the vehicles and the passengers; further, he had considered the characteristics of the particular makes of vehicles involved in the accident and how they respond to impact, i.e., "how crushable a vehicle is." Dr. Sopka concluded "that the speed change of Mr. Means' Dodge Ram Charger [from the three-car collision] could have been no more than 5.2 miles per hour in a forward direction" and "that the G forces experienced during this collision were no more than 2.4 Gs, again, in the forward direction." Dr. Sopka described one G as the normal acceleration of a falling object caused by gravity. Dr. Sopka observed, "If there's less impact, then there's less crush, and that's the sort of thing we need to evaluate."

Gates also retained a radiologist, Dr. Barry F. Jeffries, to testify regarding what, if any, injuries were caused by the automobile accident. Dr. Jeffries specializes in neuroradiology and is licensed in Georgia and Missouri. Dr. Jeffries explained "[n]euroradiology is that branch of diagnostic radiology that is concerned with the brain, the spinal cord, and the bony covering, such as the skull and the spine. It also includes ... [t]he structures of the face and the neck." Dr. Jeffries reviewed Means' X-rays and MRI scans and opined that Means' annular tear, disc herniation, and nerve root impingement were the result of a natural degenerative process and not caused by the August 1996 collision.

To rebut this testimony, Means attempted to introduce the videotaped deposition testimony of a neuropsychologist, Dr. Randolph Waid, who stated to a reasonable degree of medical certainty in the field of clinical psychology that Means suffered from "chronic pain syndrome" that negatively impacted his ability to pursue social, recreational, and vocational activities. He further opined the chronic pain was probably caused by the August 1996 automobile accident. Dr. Waid concluded Means' physical symptoms appeared genuine and not the result of any psychological disturbance. The trial court ruled the deposition was inadmissible. The jury thereafter returned a verdict for Means of $25,000. This appeal followed.

LAW/ANALYSIS

On appeal, Means contends the trial court erred in refusing to admit any portion of the videotaped deposition of the neuropsychologist who performed a series of psychological tests on him after the accident. Means contends the testimony was necessary to rebut Gates' implication that his injuries were not as severe as he had alleged and were the result of malingering. He contends the exclusion of the testimony was prejudicial and resulted in a jury verdict that was less in dollar amount than the sum of his medical bills. We agree with Means that the exclusion of Dr. Waid's testimony constituted an abuse of discretion and therefore reverse and remand for a new trial.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE.

The admission or exclusion of expert testimony is a matter within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion. Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998); Creed v. City of Columbia, 310 S.C. 342, 426 S.E.2d 785 (1993); Gazes v. Dillard's Dep't Store, Inc., 341 S.C. 507, 534 S.E.2d 306 (Ct.App.2000); Hundley v. Rite Aid of S.C., Inc., 339 S.C. 285, 529 S.E.2d 45 (Ct.App.2000), cert. filed.

A court's ruling on the admissibility of a neuropsychologist's testimony constitutes an abuse of discretion where the ruling is manifestly arbitrary, unreasonable, or unfair. Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681 (Colo.1998) (en banc). "Before the Court of Appeals will reverse a judgment for an alleged error in the exclusion of evidence, the appellant must show prejudice." Potomac Leasing Co. v. Bone, 294 S.C. 494, 497, 366 S.E.2d 26, 28 (Ct.App. 1988).

Dr. Waid has a bachelor's degree in general psychology from Temple University, a master's degree in psychology from the University of Richmond, and a doctorate in clinical psychology from the University of North Texas following an internship at the Medical University of South Carolina in Charleston ("MUSC").

Dr. Waid worked as the director of psychological services at a private psychiatric facility in Dallas, Texas before returning to Charleston in 1982 to join MUSC's faculty in the departments of psychiatry and neurology. In 1989, he became the director of MUSC's assessment center, where he ran a clinic providing assessments for conditions such as chronic pain, neurological disorders, and psychiatric disorders. In 1998, Dr. Waid became a clinical associate professor in psychiatry and neurology at MUSC and opened a private practice in Mount Pleasant. Dr. Waid is not a medical doctor and is not licensed to prescribe medications.

In his videotaped deposition, Dr. Waid testified Means was referred to him in April 1997 for evaluation of continuing pain and lower back problems after extensive medication, physical therapy, and diagnostic procedures had failed to provide relief. Means was referred to the doctor "to assess for any associated psychological problems along with his chronic pain syndrome and to make recommendations with regard to Mr. Means' rehabilitation needs."

As part of the evaluative process, Dr. Waid gave Means "a battery of psychological tests, primarily to measure for psychiatric difficulties, specifically to measure for depression and anxiety, as well as to measure his complaints related to pain and how they are affecting his life." Dr. Waid testified he "performed ... a very extensive broad based psychological test ... [called] the Personality Assessment Inventory. It's made up of numerous scales measuring areas of clinical symptomatology. The individual generally has to respond to this rather extensive test in terms of whether the statement is false, slightly true, mainly true, or very true." This test is used to tell ...