Phillips v. Industrial Machine, S-97-1263.

Citation257 Neb. 256,597 N.W.2d 377
Decision Date16 July 1999
Docket NumberNo. S-97-1263.,S-97-1263.
PartiesMichelle PHILLIPS, appellant, v. INDUSTRIAL MACHINE and Nicholas Cusick, appellees.
CourtSupreme Court of Nebraska

Vincent M. Powers and Elizabeth A. Govaerts, of Vincent M. Powers & Associates, for appellant.

Stephanie Frazier Stacy, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees.




Following a jury verdict in favor of Michelle Phillips, the trial court determined that the testimony of Phillips' expert had been erroneously admitted. Thus, the trial court granted a motion for new trial, and Phillips appeals.


A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998).

A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred. Wolfe v. Abraham, 244 Neb. 337, 506 N.W.2d 692 (1993).


Phillips sued Industrial Machine and Nicholas Cusick, one of its owners, to recover damages allegedly sustained when a vehicle owned by Industrial Machine and driven by Cusick collided with Phillips' vehicle. Cusick admitted liability, and a jury trial was held to determine the nature and extent of the damages sustained by Phillips as a result of the accident.

Dr. Daniel R. Ripa, an orthopedic surgeon who treated Phillips, testified by videotape deposition that Phillips suffered a posttraumatic cervical strain as a result of the collision. Ripa stated that 3 years after the collision, Phillips continued to suffer from a mild amount of restriction in the extremes of her mobility of the neck. In other words, she still did not have a full range of motion in the neck. Given the fact that after 3 years, there were still objective findings of restricted mobility and subjective complaints of discomfort, Ripa opined to a reasonable degree of medical certainty that Phillips' cervical strain was permanent. However, Ripa stated that he had never been asked to place any restrictions on Phillips' work activities.

Phillips testified that prior to the accident, she had worked at the Lancaster Office of Mental Retardation and at Dillard's department store. After the accident, certain tasks such as lifting or dressing a client at the office of mental retardation made her physically uncomfortable and she became uncomfortable during extended shifts at Dillard's. As a result, Phillips eventually left those jobs and at the time of the trial was operating a day-care business out of her home. Phillips testified that she continued to experience heightened discomfort in her neck and headaches from doing too much housecleaning and other activities.

At the time of the trial, it had been approximately 1 year since Phillips had seen a doctor regarding her injuries. Her hospital and medical bills stemming from the accident totaled $2,236.82. She had not incurred any loss of wages and had no claim for property damage.

Alfred J. Marchisio, Jr., a vocational rehabilitation counselor and consultant, also testified on Phillips' behalf. Outside the presence of the jury, Marchisio stated that Phillips reported to him that she had difficulty with postures of the neck insofar as she experienced increased discomfort when moving the neck repeatedly or quickly and when her neck was tilted forward for any period of time. She also experienced increased discomfort in the neck area when carrying heavy objects. Marchisio stated that personal histories from clients were reasonably relied upon by experts in the vocational rehabilitation field in forming their opinions and that his opinion with respect to Phillips' condition and employability was based on Phillips' medical records and the self-report she provided. In addition, Marchisio explained that he relied upon the "New Work Life Expectancy Tables" published by "Vocational Econometrics," which tables were reasonably relied upon by vocational experts, and upon the definitions for disabilities used within the "State Vocational Rehabilitation Systems" as well as the definition used in the Americans with Disabilities Act. Marchisio said these definitions were reasonably relied upon by experts in the vocational field and that, in essence, they define a disability as "a physical and mental impairment that interferes with a person's ability to do certain functions of their major lifestyles, which include the normal type of things of walking, seeing, hearing, talking, as well as work activities or recreational activities."

A voir dire examination was conducted in which Marchisio stated that he relies upon medical doctors, physical therapists, and input from the client to determine the client's medical restrictions or limitations. Marchisio stated that he has no medical training, that he does not personally diagnose or formulate opinions concerning limitations that should be placed upon a client's work activities, and that he was not aware that any medical doctor had placed a work restriction on Phillips or determined a disability rating. He explained, however, that even without a restriction placed on a client's work activities or a disability rating, he could perform a functional capacity evaluation based upon the information the client gave him, so long as a physician had diagnosed some type of medical condition.

Marchisio stated that a worklife expectancy table is a statistical comparison between the worklife expectancy of a healthy portion of the work force and the "disabled" portion of the work force. Under the tables, the term "disabled" refers to a broad continuum of disabilities spanning from mild or transitory conditions to conditions that result in total dependence on others for care. He admitted that no physician had determined Phillips was disabled as the term is used in the tables.

When direct examination was continued, still outside the presence of the jury, Marchisio stated that his primary conclusion regarding Phillips was that she was not going to be in the work force as long as a healthy person of the same age. He opined that based upon statistical probabilities, the worklife expectancy for a healthy 24-year-old female with the same education as Phillips was to age 54.2, while a disabled 24-year-old female with the same education had a worklife expectancy to age 38.9. He stated that these probabilities were generally relied upon by experts in his field and reiterated that the statistical probability table used did not distinguish between severities of disability. In addition, Marchisio explained that the tables did not distinguish whether the disability had any effect on the ability to work in the person's prior occupation. His opinion as to Phillips' worklife expectancy was based on his understanding that her condition was chronic.

Over defense counsel's objection, the trial court allowed Marchisio to continue his testimony in front of the jury. Marchisio reiterated his testimony concerning Phillips and his reliance upon the New Work Life Expectancy Tables, again explaining that included in the category of disabled persons under the tables were persons with very mild disabilities that did not affect their work, as well as persons with catastrophic disabilities. He opined within a reasonable degree of professional probability that Phillips was not going to stay in the work force as long as another healthy white female her age and that she would exit the job market most likely before the maximum age of a healthy person. Marchisio explained that under table 3 of the New Work Life Expectancy Tables, there was a statistical probability that a disabled person of Phillips' age and education would have a worklife expectancy to age 38.9, while a healthy person would be expected to work to age 54.2 years. However, due to her positive attitude and motivation, she might be in the work force longer than the statistical average for disabled persons of her age and education.

On cross-examination, Marchisio admitted that no work restrictions had been placed upon Phillips by a physician, that he personally had no medical training, and that he relied upon medical doctors and physical therapists to determine the medical restrictions or limitations that should be placed on a particular individual. Marchisio stated that he was not aware of any physician who had specifically determined Phillips to be disabled as defined by the New Work Life Expectancy Tables, but relied in part upon Ripa's assessment that Phillips' cervical strain injury was a permanent condition. Marchisio was unable to render an opinion as to Phillips' loss of earning capacity given the facts that she was close to completing a bachelor's degree in horticulture and that her previous employment consisted of interim jobs.

The jury was instructed, inter alia, that if it returned a verdict for Phillips, then it must decide how much money would fairly compensate her for her injury. Included among the list of things the jury was instructed to consider was "(3) [t]he reasonable value of the earning capacity the plaintiff is reasonably certain to lose in the future...." The jury returned a verdict in favor of Phillips in the amount of $102,236.82.

In granting Cusick's motion for new trial and ordering that the verdict be vacated, the trial court concluded that Marchisio was not qualified by either knowledge, skill, experience, training, or education to provide what amounted to expert medical testimony that Phillips was disabled as a result of her cervical strain. The court found there was no medical evidence that any doctor or medical professional had placed any restrictions whatsoever on Phillips' work or other activities as a result of her cervical strain and no medical evidence that Phillips' functional capacity was impaired as a result of her...

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