Piper v. Missouri Pacific R. Co.

• Decision Date: 19 January 1993
• Docket Number: No. 60657,60657
• Citation: Piper v. Missouri Pacific R. Co., 847 S.W.2d 907 (Mo. App. 1993)
• Parties: Harold W. PIPER, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 907

847 S.W.2d 907

Harold W. PIPER, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.

No. 60657.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 19, 1993.

Rehearing Denied March 8, 1993.

Thomas R. Jayne, Edward Cohen, James W. Erwin, T. Evan Schaeffer, Thompson & Mitchell, St. Louis, for defendant-appellant.

Mark T. McCloskey, Gail Renshaw, The Lakin Law Firm, P.C., Wood River, IL, for plaintiff-respondent.

SMITH, Judge.

Defendant appeals from jury verdict and resultant judgment of $75,000 against it and in favor of plaintiff in this FELA case. The injury claimed by plaintiff was loss of hearing. We reverse and remand.

Plaintiff was employed by the defendant railroad as an engineer in 1971. In 1975 while being treated by a Dr. Gay for recurrent ear infections plaintiff's hearing was tested and a hearing loss was found. He filed suit in August, 1988. ¹ In his petition plaintiff alleged that he had been exposed, during his employment, to variable loud and excessive noise due to the negligence of the defendant. This, he alleged, caused his loss of hearing.

Defendant contends that plaintiff failed to make a submissible case because of the absence of medical evidence to establish that noise in the workplace was the cause of his hearing loss. Plaintiff produced two witnesses to establish causation. The first was a treating doctor, Dr. Dickens. The second was Dr. Shumaier, an audiologist with a Ph.D. in audiology but not a medical doctor. The original intent during the trial was to have the testimony of Dr. Dickens establish that the loss of hearing was noise induced and to have Dr. Shumaier testify to the specific noises responsible for that loss, i.e., workplace noises. After reading the transcript of the deposition of Dr. Dickens the trial court ruled that the doctor's testimony "would not qualify as an opinion that this gentleman's loss of hearing was caused by noise." The court did, however, rule that the deposition was relevant and useful to the jury and allowed it to be shown to the jury. The basis of the court's ruling on the insufficiency of Dr. Dickens's testimony to establish a noise induced loss of hearing was the equivocation of the witness in stating that it was the cause of the hearing loss. Throughout the deposition the doctor stated that the plaintiff's hearing difficulties were "consistent" with loss of hearing from excessive noise. The court, over objection, permitted the testimony of the audiologist that the loss of hearing was noise induced and the noise arose from the workplace. Defendant contends that the audiologist lacked the qualifications to make the determination that the loss of hearing was caused by excessive noise as such was a medical determination. Plaintiff disputes that position and further contends that the testimony of Dr. Dickens was sufficient to establish that the hearing loss was noise induced.

We find no error in the court evaluation of Dr. Dickens's testimony. While it is clear that Dr. Dickens regarded noise as a strong suspect he was not willing to testify that it was the cause of the hearing loss. At best he stated that the hearing loss was consistent with a noise induced loss. "Consistent" means "compatible", or "coexisting and showing no noteworthy opposing, conflicting, inharmonious or contradictory qualities or trends". Webster's Third International Dictionary. The medical evidence here established a large number of possible causes for a hearing loss such as the plaintiff's. Noise was one of them. That plaintiff's condition was consistent with noise induced loss was not the equivalent of stating that noise was the cause of the loss, only that it was one of the possibilities.

We do not agree with the trial court that the audiologist was competent to diagnose noise as the cause of the plaintiff's hearing problems. There were a large number of possible causes for the loss involving the plaintiff's overall physical condition, heredity, and genetics. The audiologist is not a medical doctor and does not have the medical expertise to assess the medical factors required to make a diagnosis that noise was the cause of the plaintiff's hearing problems. ² That determination requires medical training beyond that received by the witness here. There appears to be a split of authority in other jurisdictions concerning the propriety of allowing audiologists to testify on the causation of hearing problems. See, e.g., Texas Employers' Insurance Association v. Fisher, 667 S.W.2d 589 (Tex.App.1984); RCI SE Services Division v. Sisson, 527 So.2d 824 (Fla.App.1988). Because of his training and experience, however, an audiologist may well be able to testify to the types, quality, duration and loudness of the sounds necessary to cause hearing loss once it has been established that the loss the plaintiff sustained was noise induced. Lineberry v. State, 1990 WL 16313, 8 (Tenn.App.). Dr. Shumaier demonstrated the expertise, based upon his training and experience, to give such expert testimony. His testimony, therefore, that the sounds to which plaintiff was exposed in the workplace would cause a hearing loss such as was sustained by the plaintiff can be considered in determining whether plaintiff made a submissible case on the issue of causation.

At the close of the plaintiff's case the plaintiff had failed to provide expert medical testimony sufficient to establish causation and defendant's motion for directed verdict at that point could have been sustained. However, when thereafter the defendant offered evidence that evidence may be considered in determining whether the plaintiff made a case at the close of the evidence. Hopkins v. Tip Top Plumbing and Heating Company, 805 S.W.2d 280 (Mo.App.1991) [1-4]. Defendant produced expert medical testimony the thrust of which was that the defendant's workplace did not produce the types of noise to cause plaintiff's hearing loss. One of those experts did testify that the primary cause of the hearing loss in both of plaintiff's ears was noise. That testimony coupled with the testimony of Dr. Shumaier was sufficient to establish that noise was the cause of the hearing loss and the noise encountered by plaintiff at his workplace was the noise producing the loss. That was sufficient to establish causation.

Defendant premises error upon the refusal of the trial court to allow it to invoke an adverse inference from the failure of the plaintiff to produce treating physicians. We find defendant's position to be well-founded as to Dr. Gay, who first discovered plaintiff's hearing loss. Where a witness is not equally available to both parties, it is prejudicial error for the trial court to prevent the party to whom the witness is not equally available from requesting the jury to draw an adverse inference from the failure of the opposing party to produce the witness. Routh...