Michaud v. Steckino

Decision Date31 August 1978
Citation390 A.2d 524
PartiesJean MICHAUD v. John STECKINO.
CourtMaine Supreme Court

Linnell, Choate & Webber by G. Curtis Webber (orally), John R. Linnell, Auburn, Edward J. Beauchamp, Lewiston, for plaintiff.

Clifford & Clifford by Jere R. Clifford, Lewiston (orally), Preti, Flaherty & Beliveau by Robert E. Burns, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, WEATHERBEE, * and ARCHIBALD, JJ.

DUFRESNE, Active Retired Justice. 1

It was noontime January 27, 1971. Jean Michaud, the plaintiff, was on his way to Portland on Route 202 and was about to make a right turn to enter the driveway leading to his niece's home in New Gloucester when his automobile was struck from the rear by a motor vehicle operated by the defendant, John Steckino. The force of the impact caused the plaintiff to suffer a whiplash injury. As a result of the accident, the plaintiff immediately felt a burning pain in his neck which radiated down his spine the length of his back. He has been suffering this neck and back pain continuously since the collision, to such an extent that he had to curtail his work activity to a considerable degree, besides having his sleep interrupted and his social life and recreational interests disrupted.

The plaintiff's complaint for compensation for his personal injuries and consequential damages was tried in April 1975 before an Androscoggin County jury which returned a verdict in his favor in the amount of $100,000.00. Contending that errors were committed by the Justice below in the admission of evidence and in his refusal of certain requests for jury instructions, which the defendant claims had an inflationary impact on the issue of damages, Steckino moved for a new trial on damages only, pursuant to Rule 59, M.R.Civ.P., on the ground that the jury award is excessive. As provided under Rule 59, the defendant in his reference motion suggested to the Court below that the plaintiff, as a means of avoiding a new trial, be given the opportunity to remit such portion of the jury verdict as the trial Justice should judge to be excessive. The defendant appeals from the denial of his motion. We deny the appeal.

1. Future Surgery

The record shows that the plaintiff has been experiencing pain in his neck and lower back with consequential partial disablement ever since the accident and that, notwithstanding a course of conservative treatment for some four years, the wearing of a cervical collar for about six months, the use of a traction gear prescribed by one of the doctors, his submission to heat therapy, his faithful compliance with all medical advice, his unceasing search for relief and rehabilitation from a variety of medical practitioners in the general practice of medicine, including highly skilled doctors in the field of neurology and orthopedic surgery, Michaud, so he testified, still suffers with little improvement from the constant pain in his neck and lower back brought on by the accident. Chiropractic and psychiatric treatment also proved fruitless.

Dr. Victor Parisien, the plaintiff's expert witness whose qualifications as an orthopedic surgeon were admitted, diagnosed the plaintiff's ailment as

"a herniation, a ruptured disc or discs in the neck and in the lumbar area. Hard to say how many, but at least one in each level."

The doctor further testified that, after four years, Michaud had reached

"perhaps not a plateau, but, I don't think that he's going to improve any, and, yes, I think he's reached almost an end point. I think that the only thing that can happen now is, it can get worse."

He specifically found as established from the plaintiff's limitation of movement and the x-rays a permanent impairment at twenty percent of the body of the neck so far as his neck injury was concerned, and twenty percent of the body in regard to his back injury, or a total permanent physical impairment of forty percent.

Dr. Thomas F. Shields, another orthopedic surgeon and witness for the plaintiff, also testified to the permanent character of Michaud's physical condition:

"Pain is something I can't see or feel for the patient, but, from examination and everything, it's lasted so long, I think it's probably permanent in his situation."

Dr. John P. Greene, an orthopedic surgeon and witness presented by the defense, confirmed the plaintiff's chronic cervical strain which in the doctor's opinion had reached an end result.

But there was medical evidence in disagreement respecting the permanent character of the plaintiff's condition. In other words, it was an issue in the case, whether Michaud's pain problem as he described it in his testimony, as well as his physical impairment resulting from the accident, was a permanent condition.

It is in connection with the question of the permanency of the plaintiff's pain involvement that the issue of future surgery to relieve the pain arose. In estimating the results of a fusion operation, which involves an excision of the ruptured disc, possibly with a fusion of the spine, both in the neck and in the lumbar area in this case, Dr. Parisien testified that the results for pain relief are not one hundred percent, but may reach only fifty to seventy percent and, in some cases, people are made worse by this type of surgery.

Indeed, Dr. Parisien was asked on direct examination:

"Q. At the time of your examination, did you make a determination as to whether or not there would be a surgical procedure which would be available on election by Mr. Michaud, which might correct this situation?

"A. Well, there is a possibility that surgery may be necessary. I haven't actually proposed it to him, so far, because the results

"(Defendant's counsel): Your Honor, unless it's a probability, then, I object. I believe that the reason for the requisite certainty has not been established for such procedure, and I would object to any testimony as being speculative.

"(Plaintiff's counsel): It's preliminary question, your Honor. I'm going to get into that.

"The Court: I'll permit the answer. You may answer.

"A. I would I haven't really proposed. I have proposed some forms of treatment to Mr. Michaud in an attempt to relieve him of some of his pain, and I think primarily, he should have further conservative non-operative treatment, and, if that fails, then, a consideration could be given to operation."

Following the doctor's answer that he was not "proposing" any surgical intervention at that time, a specific and limited answer which the Court below had permitted, counsel for the plaintiff asked Dr. Parisien what sort of operation he was talking about. Without objection and without any request for a limiting instruction from the Court, the doctor was allowed to give a brief description of the mechanics of a fusion operation. Through cross-examination, counsel for the defendant sought to have the doctor concede that surgery would be advisable only if there were evidence of progressive neurological deficit, a contention with which the doctor disagreed, although admitting that some doctors do subscribe to the same. At any rate, no motion to strike the doctor's testimony was made at the close of his court appearance.

Similarly, Dr. Shields was permitted to give a more elaborate description of a fusion operation without objection or reservation and without any request to limit the purpose of such evidentiary details of an operation which was not being recommended at the time and which was elective on the part of the plaintiff at any rate. Furthermore, the doctor was allowed to state the length of hospital confinement in such operations. As with Dr. Parisien, the defendant's counsel on cross-examination of Dr. Shields had the doctor concede that only in some cases would surgery be advisable in the absence of progressive neurological deficit. Again, no motion to strike the doctor's testimony relating to surgery was made at the termination of his court appearance.

It is only at the close of all the evidence that counsel for the defendant moved to strike so much of Dr. Parisien's and Dr. Shields' testimony as dealt with the disc surgery. Defendant's counsel, in support of his motion, stated to the Justice below that he had objected initially and believed there was a continuing objection to such testimony. Plaintiff's counsel advised the Court that "it was agreed he (defendant's counsel) had a continuing objection;" nevertheless, he argued that the plaintiff's position was that the possibility of the disc operation is part of the overall medical picture of what Michaud faces for the future and that, since no evidence of the costs of the operation or hospital confinement had been introduced, no prejudice had resulted to the defendant. The Court denied the motion, ruling that "(t)here's sufficient evidence for the jury to consider these matters."

We agree with the defendant's contention it is well settled law that damages are not recoverable when uncertain, contingent, or speculative. Damages must be grounded on established positive facts or on evidence from which their existence and amount may be determined to a probability. They must not rest wholly on surmise and conjecture. Gottesman & Co. v. Portland Terminal Co., 139 Me. 90, 27 A.2d 394 (1942); Lawson v. McLeod, 152 Me. 67, 123 A.2d 199 (1956); Ginn v. Penobscot Company, Me., 334 A.2d 874, 887 (1975). See also State v. Mitchell, Me., 390 A.2d 495. (1978).

A mere possibility that future pain or suffering might be caused by an injury, or that some disability might result later therefrom is not as such sufficient to warrant an assessment of damages therefor. Mere surmise or conjecture as the term "possibility" usually connotes cannot be regarded as legal proof of an existing fact or of a future condition that will result. Expert witnesses can give their opinion respecting future consequences that are shown to be probable, from which it may be inferred that they are reasonably certain to follow. 2 See ...

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