Sandow v. Weyerhaeuser Co.

• Decision Date: 15 January 1969
• Citation: 252 Or. 377,449 P.2d 426
• Parties: John SANDOW, Appellant, v. WEYERHAEUSER COMPANY, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 426

449 P.2d 426

252 Or. 377

John SANDOW, Appellant, v. WEYERHAEUSER COMPANY, a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 7, 1968.

Decided Jan. 15, 1969.

Marvin S. Nepom, Portland, argued the cause for appellant. With him on the brief was Ben T. Gray, Portland.

Floyd A. Fredrickson, Portland, argued the cause for respondent. With him on the brief were Gray, Fredrickson & Heath, Portland.

Before SLOAN, P.J., and GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

HOLMAN, Justice.

This is an action under the Jones Act for damages for personal injuries sustained by plaintiff in the course of his employment as a seaman aboard defendant's vessel. Plaintiff received a judgment for $5,000 general damages. Thereafter the trial court ordered a new trial unless the plaintiff filed a remittitur of all the judgment in excess of $750. Plaintiff appealed.

The basis for the remittitur was that the verdict was excessive for the superficial cut on the forehead suffered by plaintiff. Plaintiff testified that he had felt depressed, that he had suffered blackouts and dizziness, and had experienced suicidal feelings. The trial court took the consideration of these complaints from the jury because there was no evidence that they were caused by the injury to plaintiff's head. Plaintiff offered the testimony of a clinical psychologist to the effect that plaintiff's depression was caused by the injury. The trial court refused to admit the testimony on the ground that the witness was not qualified to give such testimony because he was not medically trained.

Plaintiff admits that in a Jones Act case the trial court has the authority to grant a new trial, unless plaintiff files a remittitur, when the judgment exceeds any rational appraisal. Hust v. Moore-McCormack Lines, Inc., 180 Or. 409, 435--436, 177 P.2d 429 (1947). A clear abuse of discretion or some extraordinary legal situation must be demonstrated before relief will be granted by an appellate court in such a situation. Delta Engineering Corporation v. Scott, 322 F.2d 11, 15 (5th Cir. 1963), cert. den. 377 U.S. 905, 84 S.Ct 1164, 12 L.Ed.2d 176 (1964). The evidence showed plaintiff suffered a cut 2 inches in length which left a scar that the trial judge could not see from a distance of five feet. In the absence of testimony connecting plaintiff's complaints with the superficial injury to his head, we cannot say the trial judge erred in concluding that the judgment exceeded any rational appraisal.

The principal question to be decided in this case is whether the trial court erred in refusing to admit in evidence the opinion of a clinical psychologist that the superficial injury to plaintiff's head caused the emotional disturbance of which he complained. Had the opinion been admitted it would have furnished a basis for allowing the jury to consider whether plaintiff's depression was the result of the accident.

To warrant the use of expert opinion testimony, inferences being drawn must be so related to some science, profession, business or occupation that is sufficiently technical that a lay juror cannot be expected to be equally well qualified to form a worthwhile judgment. Ritter v. Beals et al., 225 Or. 504, 525, 358 P.2d 1080 (1961); Welter, Adm'x. v. M & M Woodworking Co., 216 Or. 266, 278--279, 338 P.2d 651 (1959). Obviously, the question upon which the witness's opinion was sought was one which the average juror, unaided, would not have the skill to decide.

In addition, the witness must have such skill, knowledge or experience in the field or calling in question as to make it appear that his opinion or inference-drawing would probably aid the trier of the facts in his search for the truth. Scott v. Astoria Railroad Co., 43 Or. 26, 38, 72 P. 594, 62 L.R.A. 543 (1903); Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637 (1962); McCormick, Evidence § 13 (1954). It is this last-stated requirement which is in issue here.

The witness was allowed to testify, without objection, that he submitted plaintiff to a battery of psychological tests, the results of which indicated that plaintiff was suffering from depression. It was only when he was asked for an opinion as to the cause of plaintiff's depressed condition that objection was made and sustained.

Not all psychologists have the same experience and training. Our consideration is, of course, limited to one having the experience and training of the witness in question. He had a Ph.D. in Clinical Psychology, was a member of the American Psychological Association and the clinical division of that association. He was a diplomate in clinical psychology of the American Board of Examiners in Professional Psychology. He had worked in clinics and in the private practice of psychology for the last 20 years. He was licensed to practice psychology in the states of Oregon and California.

An examination of the area of expertise of a clinical psychologist is in order to see if a psychologist's opinion in the present field of inquiry would be of probable probative value to the jury. The information offered was that there was a causal connection between plaintiff's emotional difficulties, for which plaintiff offered no medical explanation, and the previous superficial injury. In anastasi, Fields of Applied Psychology 344 (McGraw-Hill 1964), the following statement appears:

'A major objective of the clinical psychologist's diagnostic function is to provide a personality description of the individual case. Such a description is unique for each person, covering the specific behavioral difficulties the individual manifests As well as the antecedent circumstances that led to their development * * *.' (Emphasis supplied.)

Harrower, Differential Diagnosis, in Handbook of Clinical Psychology 381 (Wolman ed, McGraw-Hill 1965), has the following statement relative to the breadth of the field of a clinical psychologist:

'* * * Perhaps more than any other recently coined term, 'psychodiagnostics' may be said to describe activities which are unique to clinical psychologists of the present day. Speaking of the range of the objectives of psychodiagnosis, Thorne (1948) has stated the following:

"In modern clinical science the objective of diagnosis involves more than identifying and naming a psychological syndrome. Recognizing that the personality dynamics in...