Rivera v. Wollin

• Decision Date: 17 March 1966
• Citation: 140 N.W.2d 748,30 Wis.2d 305
• Parties: Alberto RIVERA, Respondent, v. Earl WOLLIN et al., Appellants.
• Court: Wisconsin Supreme Court

Page 748

140 N.W.2d 748

30 Wis.2d 305

Alberto RIVERA, Respondent, v.Earl WOLLIN et al., Appellants.

Supreme Court of Wisconsin.

March 17, 1966.

Kivett & Kasdorf, Milwaukee, Nonald J. Lewis and Keith, I. Johnston, Milwaukee, of counsel, for appellants.

Louis Podell and Albert Bahcall, Milwaukee, for respondent.

FAIRCHILD, Justice.

Defendants contend that the $3,000 fixed by the court as reasonable for past pain and suffering, after determining that $4,000 was excessive, was itself excessive.They contend, also, that the record does not support any award for future pain and suffering.Plaintiff contends that the court erred in setting aside the jury awards; defendants assert, however, that plaintiff is foreclosed from that contention because he did not serve a timely notice of review.

1.The award for past pain and suffering.Mr. Rivera testified he was driving about 20 miles per hour when struck by the Wollin automobile, and estimated Wollin's speed at 35 miles per hour.Rivera was thrown against the steering wheel.He testified that he was in pain, that his stomach, back and neck bothered him, that he vomited several times that day.

He went to see Dr. Gerald Zupnik the next day, and saw him daily, for a week.He had heat treatments.He testified his neck cleared up, but back pain continued.He returned to work after missing seven days.He was unable to do the same work as before, but was given a different job.He said he had headaches for a couple of months, and difficulty sleeping.

Dr. Zupnik saw Rivera nine times during August 1963, and occasionally thereafter until January, 1964.He found spasm as objective evidence of back pain on the earlier visits.By October 14th, the pain was becoming less severe and less frequent.There was complaint of intermittent pain with bending or lifting, but no further spasm.

Dr. Zupnik concluded that Rivera had sustained a bruising of his abdomen, and a sprain injury to the lumbosacral joint, including injury to the muscles and fascial layers overlying the joint.There was still overlying the joint.There was still complaint of tenderness at this joint on January 2, 1964, when Dr. Zupnik referred Rivera to Dr. Elliot Coles.

Dr. Coles saw Rivera on January 4th and 10th, and on February 4, 1964.His examination on January 4th was negative except for a tender subcutaneous nodule in the left sacroiliac region.He injected novocaine into the nodule on January 10th.He indicated that a nodule of this type may or may not again become symptomatice after the effect of the novocaine wears off.If it does, it can be removed by surgery.He made no notation concerning the nodule on February 4th, and testified that on that date he had concluded there was no longer any tenderness in the left sacroiliac region; he released Rivera from treatment, with instructions to return if he had further difficulty; Rivera did not return.

The trial began January 19, 1965, 17 months after the accident.Mr. Rivera testified he still had pain in his back, and discomfort in sitting.He said he is nervous and irritable with his fellow workers.His employer's office girl said she saw him frequently lying down on sheets of steel during his noon breaks in 1964.

Upon our review of the evidence, we do not consider an award of $3,000 excessive.

2.Foundation for an award for future pain and suffering.Plaintiff Rivera asserts that certain testimony of his doctors laid a foundation for an award for pain and suffering in the future.Defendants dispute the assertion.The trial judge, although concluding that an award of $2,000 for future pain and suffering was excessive, was of the opinion that the medical testimony was sufficient to meet the rule of Diemel v. Weirich.¹Accordingly he fixed $1,000 as a reasonable amount, and included that in the option given to the plaintiff.

In Diemel, we quoted, as follows, from 20 Am.Jur., Evidence, p. 649, sec. 778:

"* * * where the injury is subjective in character and of such nature that a layman cannot with reasonable certaintly know whether or not there will be future pain and suffering, the courts generally require the introduction of competent expert opinion testimony bearing upon the permanency of such injury or the likelihood that the injured person will endure future pain and suffering before allowing recovery therefor."(P. 268, p. 652 of 58 N.W.2d)

In explanation, we said:

'We believe that sound public policy requires adherence to such rule.It is a rare personal injury case indeed in which the injured party at time of trial does not claim to have some residual pain from the accident.Not being a medical expert, such witness is incompetent to express an opinion as to how long such pain is going to continue in the future.The members of juries also being laymen should not be permitted to speculate how long, in their opinion, they think such pain will continue in the future, and fix damages therefor accordingly.Only a medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue.In the absence of such expert testimony (which was the situation in the instant case) the jury should be instructed that no damages may be allowed for future pain and suffering.'(Pp. 268-269, pp. 652-653 of 58 N.W.2d)

Dr. Zupnik last saw Mr. Rivera January 2, 1964, one year before trial.Dr. Coles last saw him 11 months before trial.The opinions they expressed as to probable pain and suffering in the future were the opinions they had formed at the time they were treating Mr. Rivera.It is this testimony which must fulfill the Diemel rule if any damages may be awared for future pain and suffering.

Dr. Zupnik's pertinent testimony is as follows:

'Q Would you tell us, please, what prognosis you made?A To be entirely precise my prognosis dates back to November 5th.

'Q All right, let me have your prognosis as of that date.A My prognosis at that time was that I anticipated Mr. Rivera to continue to have some pain for an indefinite period of time; that future recovery was dependent upon formation of scar tissue which generally occurs in the type of injury he sustained, and that a symptomatic period may be expected until the scar tissue has shown evidence of complete healing.He was advised at the time his back will remain somewhat more susceptible to reinjury; that he may experience easy fatigability of his back.In other words, that his back will tire out easily, and he was advised to continue with his exercises; to avoid any undue strain and stress upon his back.

'Q.Doctor, you felt this pain may recur spasmodically for how long a period into the future?A I don't think one could actually set a period.I felt it was indefinite, hinged upon the time required for complete healing of the soft tissue damage.

'Q.Am I correct in assuming this could continue for an indefinite period?A Yes, this I indicated.'

Had Dr. Zupnik's opinion been based on observations which were reasonably current at the time of trial, we would have no difficulty in finding that it fulfilled the Dicmel rule.His opinion spoke, however, as of 14 months before trial, and asserted, as of then, that the pain would continue for an indefinite period, until healing was complete.Had he examined Rivera shortly before trial and been asked similar questions, would this opinion have been that pain would continue beyond the trial date?Had he been asked to assume the existence of the discomfort present at time of trial to which Rivera testified, would he have given a similar opinion?We do not know.

It is arguable, of course, as a matter of logic, that Dr. Zupnik's opinion fulfills the Diemel rule because an indefinite period commencing November, 1963 may well include an indefinite period commencing in January, 1965.We consider, however, that the purpose of the Diemel rule is to introduce as much certainty as reasonably feasible into a fact-finding process that is highly uncertain at best, that is, what is fair compensation for such pain as will probably be endured in the future.Bearing in mind this purpose, and the particular circumstances here present, the majority of the court conclude that Dr. Zupnik's opinion (as well as Dr. Coles') were simply too remote to be a foundation for an award for future pain.

Dr. Coles testified that he felt a tender subcutaneous nodule in Rivera's left sacroiliac region, about a half inch in diameter.He described it as a hernia through the opening in the fascia, or covering over the muscle and bone.

He stated no opinion that the nodule would probably remain painful in the future, but indicated that it would continue to be present unless surgically removed.He testified, in part, as follows:

'Q Doctor, what can you do with these subcutaneous nodules?A Well, I have treated many of these cases.In some cases, you treat them conservatively, the way I did with Mr. Rivera.You inject novocaine.

'* * *

'Q Doctor, as far as this nodule is concerned, what is the way that you would recommend to get rid of it?A There are many cases, where the pain is continuous, where it is relieved by novocaine injection.On one or more cases, when the pain comes back when the novocaine wears off, I have excised these nodules, decompressed the fascia to enlarge the opening they come through, to take the pressure off the nerves.

'Q Doctor, by excising a nodule, are you referring to a surgical procedure?A Yes.

'* * *

'Q The only way that you would recommend removal of this nodule is by surgery?A Yes, if it continues to be symptomatic.'

We must assume, from Dr. Coles' testimony, that the nodule is still present, and will remain.There is no evidence, however, that the nodule again became tender after the injection on January 10, 1964, nor that it is the source of the discomfort the scribed by Mr. Rivera....