Weinstock v. Ott

• Citation: 444 N.E.2d 1227
• Decision Date: 09 February 1983
• Docket Number: No. 3-581A122,3-581A122
• Parties: Lee Roy OTT, Administrator of the Estate of Norma Ott, Deceased, v. Adolph WEINSTOCK, M.D., Defendant-Appellant.
• Court: Court of Appeals of Indiana

Page 1227

444 N.E.2d 1227

Lee Roy OTT, Administrator of the Estate of Norma Ott, Deceased, v. Adolph WEINSTOCK, M.D., Defendant-Appellant.

No. 3-581A122.

Court of Appeals of Indiana,

Third District.

Feb. 9, 1983.

Rehearing Denied April 14, 1983.

Harold Abrahamson, Michael C. Adley, Abrahamson, Reed & Tanasijevich, Hammond, Arthur L. Roule, Jr., LaPorte, for defendant-appellant.

Clarence Borns, Borns, Quinn, Kopko & Lindquist, Merrillville, for appellee.

STATON, Judge.

A jury found for the estate of Norma Ott (Ott) in a medical malpractice action against Dr. Adolph Weinstock, M.D. Ott's suit alleged that Dr. Weinstock breached his duty to refer Norma for a diagnostic consultation when he was unable to discover the cause of her disorder. The issues Dr. Weinstock raises on appeal are restated as follows:

I. Should Ott's expert medical witness have been allowed to answer a hypothetical question which assumed some facts which were never put into evidence?

II. Was Ott's expert medical witness familiar with the standard of care in a locality similar to the one in which Dr. Weinstock practiced?

III. Was the statute of limitations tolled by the doctrine of fraudulent concealment?

IV. Was Norma contributorily negligent?

V. Was Dr. Weinstock denied a fair trial by the trial judge's failure to admonish the jury to disregard a remark made by Ott's attorney during closing argument?

Affirmed.

I. Hypothetical Question ¹

Ott called Dr. Christopher Zarins as an expert medical witness. Ott qualified Dr. Zarins through a voir dire examination conducted outside of the jury's presence. During this voir dire examination, Ott asked Dr. Zarins the following hypothetical question and received the following answer:

"Q. Assume for purposes of this question, Dr. Zarins, that Rolling Prairie, Indiana is a town of a thousand people in the county of LaPorte; that Rolling Prairie (sic) had a population in 1970 of approximately a hundred eight thousand people, and that the general practitioner in question between 1972 and 1976 was affiliated with the LaPorte Hospital, which was a rather modern facility of 191 to 213 beds and that there were a number of services, with the exception of neurology and neurosurgery and vascular surgery, available; that is, they had a nuclear medicine department and they had the standard diagnostic tests and diagnostic equipment available for gastro-intestinal work, they had a cardiopulmonary unit, physical therapy department, they had a pharmacy, had a dietary department, a radiology and nuclear medicine department, pathology department, emergency room, obstetrical department, intensive care unit, surgical department, medical surgical--what's called the medical surgical department, pediatric department since 1973, a psychiatry department; assume that LaPorte County, Indiana is a county in northwest Indiana which is about an hour-and-a-half drive from Chicago, Illinois and from its medical centers and major health facilities; that it is a two and-a-half hour drive from Indianapolis and its medical center there at the Indiana University Medical School; assume that it is approximately from Rolling Prairie, Indiana a 20-minute drive to facilities available in South Bend, Indiana where there are many large hospitals and another wide range of medical specialties, and approximately 40 minutes driving time from Lake County, Indiana to medical specialties including vascular surgeons in that county; assume further that the hospital staff at the LaPorte Hospital was composed of physicians from LaPorte, Porter, Starke and St. Joseph counties on a regular and courtesy staff; and, Doctor, based on your medical education, your practical experience both as a general practitioner and your experience there and as a specialist working with general practitioners in the several states that you have noticed, are you familiar with the standard of care required of a physician engaged in the general practice of medicine in a locality similar to the LaPorte, Indiana area during the years 1972 to 1976? [Parentheses original; objections omitted.]

"A. I feel I am very familiar with the type of medical practice situation which you have described in several areas of the country; in Michigan, California, the San Diego area, Maryland area and Illinois, I have seen many practice situations very similar to the kind you describe."

Weinstock objected to this hypothetical question because it assumed facts which were not in evidence. None of the facts assumed in the hypothetical question were in evidence because no evidence had been introduced. The trial judge permitted Ott to qualify Dr. Zarins before the introduction of any other evidence because Dr. Zarins would not be available to testify later. Nevertheless, Weinstock contends that the trial judge erred in allowing the hypothetical question to be answered.

The trial judge did not err in allowing the hypothetical question to be answered. Weinstock is correct that ordinarily an expert witness should not be allowed to answer a hypothetical question which assumes facts unsupported by the evidence or reasonable inferences therefrom. Chicago South Shore & South Bend R.R. v. Brown (1974), 162 Ind.App. 493, 502, 320 N.E.2d 809, 815; Harrison Steel Castings Co. v. Daniels (1970), 147 Ind.App. 666, 670, 263 N.E.2d 288, 290. This requirement guards against the trier of fact adopting an expert's opinion which is based on false or inapplicable facts. See J. Wigmore, Evidence in Trials at Common Law, Sec. 682, at 947 (J. Chadbourn rev. 1979). However, here this safeguard is not needed.

The hypothetical question was asked during a voir dire examination outside of the jury's presence. This examination was conducted so that the trial judge could determine whether Dr. Zarins was competent to testify as an expert medical witness. Because of the trial judge's legal experience and expertise regarding the rules of evidence, we presume that he was able to hear the hypothetical question and its answer, then subsequently determine if enough evidence had been admitted to support the facts which the hypothetical assumed. Cf. Johnson v. State (1978), 177 Ind.App. 501, 380 N.E.2d 566, 569; Johnson v. State (1973), 157 Ind.App. 372, 378, 300 N.E.2d 369, 373.

Dr. Weinstock next asserts that the trial judge erred in considering the answer to the hypothetical question in determining if Dr. Zarins was qualified, because the evidence subsequently admitted during the trial did not support all of the facts which the hypothetical question assumed. Ott counters that the trial judge could consider the answer because most of the facts assumed in the hypothetical question were subsequently in evidence and the trial judge could take judicial notice of those facts assumed which were never put into evidence.

The trial judge could not consider the answer to the hypothetical question in determining if Dr. Zarins was qualified as an expert medical witness because too many material facts assumed in the hypothetical question were never introduced into evidence. Only the following facts assumed in the hypothetical question were eventually in evidence: From 1972 to 1976 Dr. Weinstock was a general practitioner in Rolling Prairie, Indiana and was affiliated with the LaPorte County Hospital. This hospital then had approximately 200 beds and had physicians from nearby Starke County, Indiana on courtesy staff. From the LaPorte County Hospital it is about an hour and a half drive to Chicago, Illinois; a two and a half hour drive to Indianapolis, Indiana; and a twenty minute drive to South Bend, Indiana. None of the fourteen medical services which were assumed in the hypothetical question to be available at the LaPorte County Hospital were in evidence.

These specific medical services assumed in the hypothetical question could not reasonably be inferred from the evidence and the trial judge did not indicate that he would take judicial notice of them. The application of judicial notice is usually limited to two categories of facts; "facts generally known with certainty by all the reasonably intelligent people in the community and facts capable of accurate and ready determination by resort to sources of indisputable accuracy." McCormick's Handbook of the Law of Evidence, 758 (E. Cleary, 2d ed. 1972). The types of medical services assumed in the hypothetical question are not within either of these categories of fact. Ott cites no authority to the contrary which would support the assertion that these medical services are proper subjects for judicial notice. Without such authority, we will not assume that the trial judge took judicial notice of the medical services available at the LaPorte County Hospital.

Because the medical services assumed in the hypothetical question were not in evidence, and because there is no indication that the trial judge took judicial notice of these services, the trial judge could not consider the answer to the hypothetical question in determining if Dr. Zarins was qualified. Ordinarily, the answer to a hypothetical question which assumes facts which are not in evidence and which cannot be reasonably inferred therefrom has no probative value. Ecker v. Ecker (1975), 163 Ind.App. 339, 341, 323 N.E.2d 683, 684. However, Ott posits that the failure to prove some of the facts assumed in the hypothetical question affects only the reliability of the answer and the weight it should be given, citing, among other cases, Ailes v. Ailes (1937), 104 Ind.App. 302, 306, 11 N.E.2d 73, 75.

The propositions of law set forth in Ecker and Ailes do not conflict. A hypothetical question must be based on facts in evidence for its answer to have probative value. But this does not mean that the answer to a hypothetical question must be rejected if some of the facts assumed in it, however unimportant, are not established. "The failure [to establish facts assumed in a hypothetical question] which justifies rejection [of the...