State Farm Mut. Auto. Ins. Co. v. Kendrick, 961969
| Decision Date | 12 September 1997 |
| Docket Number | No. 961969,961969 |
| Citation | 254 Va. 206,491 S.E.2d 286 |
| Court | Virginia Supreme Court |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. John F. KENDRICK. Record |
Present: CARRICO, C.J., COMPTON, STEPHENSON, 1 LACY, KEENAN, and KOONTZ, JJ., and POFF, Senior Justice.
The principal issue in this appeal is whether the trial court erred in admitting evidence of the anticipated cost of, and lost wages related to, future surgery. By means of an assignment of cross-error, we also determine whether the trial court erred in restricting the testimony of the plaintiff-physician regarding the need for future surgery.
Plaintiff Dr. John F. Kendrick was injured in a motor vehicle collision that occurred on March 9, 1994, on Route 460, in Southampton County. His injuries were described as "a rotator cuff tear in [his] right shoulder" and "a torn medial meniscus in his left knee."
Dr. Kendrick sued John Doe, an unknown motorist insured by State Farm Mutual Automobile Insurance Company (State Farm). A jury returned a verdict in favor of Dr Kendrick and against John Doe in the amount of $100,000, and, by order entered July 2, 1996, the trial court rendered judgment on the verdict. We awarded State Farm, which filed pleadings in its own name, an appeal and also granted cross-error assigned by Dr. Kendrick.
To resolve the issues raised by State Farm's assignments of error, we look to portions of the testimony of three witnesses, namely: Dr. William Henceroth, II, Dr. Kendrick, and Gail M. King.
Dr. Henceroth, an orthopedic surgeon and Dr. Kendrick's treating physician, was asked about Dr. Kendrick's future medical treatment. The doctor responded that, based upon his most recent examination of Dr. Kendrick, "no surgery is planned." Dr. Henceroth added, however, that "were [Dr. Kendrick's] condition to worsen, ... then we would elect to do surgery."
Thereafter, over State Farm's objection, Dr. Henceroth was allowed to testify about the cost of knee and shoulder surgery and the amount of time Dr. Kendrick would be out of work if surgery were performed. Dr. Henceroth stated that the arthroscopic knee surgery would cost $1,500 and the rotator cuff surgery would cost approximately $2,000. He further stated that, in the event of knee surgery, Dr. Kendrick would be unable to work for two to three weeks, and, in the event of shoulder surgery, Dr. Kendrick would miss four to six weeks of work.
Dr. Kendrick, whom the trial court had qualified as an expert witness in the field of medicine, testified that he had no present plans to have surgery on either his knee or shoulder. He stated, however, that his condition was getting worse and that he was "seriously considering" surgery.
Over State Farm's objection, Gail M. King, a hospital billing supervisor, was permitted to testify regarding hospital charges for surgery. She estimated that the hospital charges for rotator cuff surgery would be $6,500 and the charges for arthroscopic knee surgery would be $6,200.
State Farm contends that the trial court erred in admitting evidence of the expense of future surgery and of the resultant income loss. 2 In allowing this evidence and in refusing to set aside the jury's verdict, the trial court had found that the evidence was sufficient for the jury's consideration because it had indicated that Dr. Kendrick "might" need surgery in the future.
We think the trial court erred.
A medical opinion based on a "possibility" is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in "probabilities" and not "possibilities."
Fairfax Hospital System v. Curtis, 249 Va. 531, 535, 457 S.E.2d 66, 69 (1995) (quoting Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980)).
In the present case, the evidence, when viewed in the light most...
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Rozario v. Commonwealth, Record No. 1433-05-2 (Va. App. 11/14/2006)
...n.2, 491 S.E.2d 286, 287 n.2 (1997). Waiver does not apply, when, as in this case, the circuit court judge was fully aware of the objection. Id. The error to which Rozario objected was the district court judge's reliance upon an Alcosensor testing device to establish Rozario's blood alcohol......
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Rozario v. Com.
...a trial court to commit error, either by failing to object or by agreeing to the ruling." State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 208 n. 2, 491 S.E.2d 286, 287 n. 2 (1997). Waiver does not apply, when, as in this case, the circuit court judge was fully aware of the objectio......
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Va. Bd. of Med. v. Zackrison
...that, if otherwise qualified, a physician may serve as his own expert in contested litigation. State Farm Mut. Auto. Ins. Co. v. Kendrick , 254 Va. 206, 209, 491 S.E.2d 286, 288 (1997) (citing Code § 8.01-396 as grounds for reversing a trial court's refusal to allow the plaintiff, a medical......
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Bitar v. Rahman
...is irrelevant, purely speculative and, hence, inadmissible." Id. (emphasis added); accord State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 208-09, 491 S.E.2d 286, 287 (1997); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535, 457 S.E.2d 66, 69 (1995). We reached the same conclusion in ......