Tidball v. Orkin Exterminating Co., Inc.
| Decision Date | 26 April 1991 |
| Citation | 583 So.2d 239 |
| Parties | John D. TIDBALL, et al. v. ORKIN EXTERMINATING COMPANY, INC. 89-1462. |
| Court | Alabama Supreme Court |
W. Mark Anderson III and Sandra R. Segal of Anderson & Nabors, Montgomery, for appellants.
Richard P. Decker and Jay Michael Barber of Decker & Hallman, Atlanta, Ga., for appellee.
John D. Tidball and his wife, Velma Jean, along with their son, John Paul, sued Orkin Exterminating Company, alleging that when they contracted with Orkin to treat their home for termites, Orkin told the Tidballs, in response to their specific inquiry, that it would not use a particular chemical, chlordane. The Tidballs further alleged, however, that chlordane was indeed used, and that, as a result, each of them suffered various physical ailments. The Tidballs, in their complaint, asserted breach of contract, fraud, and negligence claims against Orkin. Following a jury trial, the court entered a judgment for Orkin and against the Tidballs, in accordance with the verdicts returned by the jury. The Tidballs appeal.
The only issue raised in this appeal is whether the trial court erred in excluding from the jury certain testimony by one of the Tidballs' witnesses, Dr. Melvin D. Reuber. The trial court's ruling prohibited Dr. Reuber from giving his diagnosis of the Tidballs' ailments, which was based upon the Tidballs' symptoms as set out in their medical records and their depositions.
The record in the present case reflects that Dr. Reuber, a board-certified pathologist and a specialist in toxicology, has previously researched the effects of certain chemicals, such as chlordane, upon humans. The trial court allowed Dr. Reuber to testify, in a general nature, about symptoms that may arise from exposure to chlordane. However, the court refused to allow Dr. Reuber to give a diagnosis of the Tidballs based solely upon his review of their medical records or to otherwise give opinion testimony linking the symptoms allegedly suffered by the Tidballs to their exposure to chlordane. Dr. Reuber, by his own admission, never treated any member of the Tidball family as a physician and had never met them prior to coming into the courtroom on the day that he was to testify.
The trial court sustained objections to Dr. Reuber's testimony based on Orkin's citation of Perry v. Seaboard Coast Line R.R., 527 So.2d 696 (Ala.1988), and Southern Ry. Co. v. Roberts, 380 So.2d 774 (Ala.1979). Perry, citing Roberts, stated a supposed general rule that "a medical opinion based solely upon the history and subjective symptoms related to the doctor solely for the purpose of enabling him to testify at trial is inadmissible." 527 So.2d at 697 (emphasis in original). For the rule just quoted, Roberts cited a United States Sixth Circuit Court of Appeals opinion and added, "See Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974)."
Hagler allowed the testimony by a manager of a local Alabama State Employment Service of his opinion, based on a history given him by the plaintiff and on his examination of her medical records, as to her permanent loss of employability. Obviously, the plaintiff did not consult the employment service manager for "treatment," so Hagler does not support the general rule set out in Roberts and Perry. Therefore, Perry and Roberts are overruled to the extent that they erroneously state a rule of inadmissibility of a medical opinion based solely upon the history and subjective symptoms related to a doctor solely for the purpose of enabling him to testify at trial.
In their brief, the Tidballs cite to us two of our recent decisions that we find correctly state the law relating to the issue presented in this case. In Seaboard System R.R. v. Keen, 514 So.2d 1018 (Ala.1987), the defendant appealed from the trial court's admission of a doctor's deposition into evidence, asserting that the doctor's testimony was inadmissible hearsay. The plaintiff had not seen the testifying doctor for...
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Ex parte Gurganus
...(Emphasis added.) See Southern Ry. v. Roberts, 380 So.2d 774, 776 (Ala.1979), overruled on other grounds, Tidball v. Orkin Exterminating Co., Inc., 583 So.2d 239 (Ala.1991), wherein Justice Shores, writing for this Court, and citing Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 12......
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