Wilson v. B. F. Goodrich Co.

• Jurisdiction: Oregon
• Citation: Wilson v. B. F. Goodrich Co., 627 P.2d 1280, 52 Or.App. 139 (Or. App. 1981)
• Docket Number: No. A7704-05292,A7704-05292
• Parties: Steven J. WILSON, by and through his conservator, Marguerite Wilson, Appellant, v. B. F. GOODRICH COMPANY, a corporation, Respondent, General Motors Corporation, and Murray Chevrolet Co., a corporation, Defendants. ; CA 15106.
• Court: Oregon Court of Appeals
• Decision Date: 11 May 1981

Page 1280

627 P.2d 1280

52 Or.App. 139

Steven J. WILSON, by and through his conservator, Marguerite Wilson, Appellant, v. B. F. GOODRICH COMPANY, a corporation, Respondent General Motors Corporation, and Murray Chevrolet Co., a corporation, Defendants.

No. A7704-05292;

CA 15106.

Court of Appeals of Oregon.

Argued and Submitted Dec. 11, 1980.

Decided May 11, 1981.

Elden M. Rosenthal, Portland, argued the cause for appellant. With him on the briefs was Charles Paulson, Portland.

Donald C. McClain, Portland, argued the cause for respondent. With him on the brief were Stewart M. Whipple and Whipple, Johansen & McClain, Portland.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

RICHARDSON, Presiding Judge.

The plaintiff is this personal injury action appeals a judgment awarding him $30,000 and seeks a new trial on the issue of damages.

Plaintiff was injured when a "space saver spare tire," manufactured by defendant, exploded while he was inflating it. The method by which he attempted to inflate the tire differed in significant respects from the cautionary instructions affixed to the tire. The injuries plaintiff sustained were variously described by the witnesses. Generally, however, he suffered some degree of injury affecting the brain, with resulting effects on his behavior, his need for supervision and on the types of occupations he will be able to pursue.

The explosion occurred approximately one week before plaintiff's twentieth birthday. At that time, plaintiff had completed three days' employment as an assembly worker, earning approximately $2.30 an hour. Prior thereto, plaintiff had served in the Army for two years and four months. As a teenager, he had also worked at a McDonald's restaurant. Plaintiff did not complete high school and had some history of drug use.

Plaintiff's mother, as his conservator, brought this action in April, 1977, alleging in separate counts that his injuries were caused by the dangerously defective condition of the tire and by defendant's negligence. Plaintiff sought special damages of $19,469.63, $5,000,000 in general damages, $5,000,000 in punitive damages and damages for lost wages. Defendant denied plaintiff's material allegations and interposed affirmative defenses that plaintiff had misused the product and was contributorily negligent. The jury, by a special verdict, found that the tire was dangerously defective, that defendant was negligent, that plaintiff had misused the product, that plaintiff was contributorily negligent, that the parties were equally at fault for plaintiff's injuries, and that plaintiff had suffered total damages of $60,000. The court applied the comparative fault formula of ORS 18.470 and entered judgment for plaintiff in the amount of $30,000.

Plaintiff makes three assignments of error. The first is that the trial court erred by striking the testimony of Dr. Russell Dawson and by instructing the jury to disregard his testimony. Dr. Dawson, an economist, testified about the projected loss of plaintiff's future earning capacity ¹ over his lifetime, based on several assumptions principally that, had he not been injured, plaintiff would at a minimum have participated in the work force at the level of a nonsupervisory factory worker. The witness proceeded to determine a total dollar figure of lost earnings for a person with plaintiff's working life expectancy, based on the industry-wide average wage and projected future wages of nonsupervisory factory workers. Dr. Dawson also testified regarding the cost of nursing care for plaintiff. The basis for the trial court's decision to strike the testimony, at least as to loss of earning capacity, was that it was speculative and therefore inadmissible. The court apparently based its ruling on Plourd v. Southern Pac. Transp. Co., 266 Or. 666, 513 P.2d 1140 (1973) (Plourd I).

Defendant contends that the testimony on earning capacity was properly stricken, because no foundation was laid for the witness's assumption that plaintiff would have become a factory worker earning the wages the witness assumed. Plaintiff argues that the assumptions underlying the testimony were known to the jury, that the jury could agree or disagree whether the assumptions of the witness were supported by the evidence and that the testimony should have been admitted for the purpose of guiding the "jury in (a) the method of computing loss of future earning capacity; and (b) in providing statistical guidelines." Plaintiff also argues that, unless comparative statistical evidence of the kind in question is admissible, young plaintiffs with little or no work history will be unable to use the best possible evidence of loss of future earning capacity in personal injury cases.

The admissibility of Dr. Dawson's testimony turns on two interrelated tests: first, whether the witness's assumption that plaintiff would enter the labor market in a kind of job he had not previously held was too speculative to satisfy Oregon decisional law relating to proof of impairment of future earning capacity; and second, whether plaintiff's assumed future circumstances were demonstrably similar enough to those of the sample upon which Dr. Dawson based his computations in order to be admissible in light of Plourd I and other Oregon cases relating to the use of comparative statistics as evidence of lost earnings.

The basic principle governing admissibility of evidence of earning capacity, as stated by the court in Brown v. O.-W. R. & N. Co., 63 Or. 396, 409, 128 P. 38 (1912), is that "any evidence which would indicate fairly the capacity of the plaintiff to earn money in his usual vocation, and the probability of his being able to do so in the future should be admitted;" but that "evidence (which) consists of mere guesswork and speculation upon what might happen in the future, * * * should be excluded."

In Weinstein v. Wheeler, 127 Or. 406, 257 P. 20, 271 P. 733, 62 A.L.R. 574 (1928), the court held that correspondence of the plaintiff "as to his intention to study for the concert stage," apparently adduced to show lost future earning capacity, was "entirely too uncertain and speculative to allow plaintiff to tell what he proposed to do in the future." 127 Or. at 414, 257 P. 20, 271, P. 733. In Conachan v. Williams, 266 Or. 45, 511 P.2d 392 (1973), however, the court stated:

"On the question of impairment of earning capacity most courts now apparently hold that it is proper to consider not only plaintiff's actual employment at the time of his injury, but that under some circumstances consideration may also be given to other employments for which plaintiff was qualified at such time and the usual compensation paid for any such other employment. * * *

"Thus, in Ramaswamy v. Hammond Lumber Co., 78 Or. 407, 425, 152 P. 223 (1915), this court held that:

" ' * * * (t)he fact that the plaintiff when injured was working as a common laborer at $2 per day would not prevent him from pleading and proving that he was skilled in another trade and capable of earning more: * * *.' "

However, the court added:

"It does not follow, however, even when the plaintiff has shown that he has the qualifications for employment in another position or for promotion to another position, that the compensation that he would have been paid in that position can be established by evidence consisting of average earnings of other persons * * *." 266 Or at 61-62.

Conachan, Plourd I and Plourd v. Southern Pac. Transp. Co., 272 Or. 35, 534 P.2d 965 (1975) (Plourd II), are the leading Oregon cases relating to admissibility of comparative statistical evidence of impaired earning capacity. In Plourd I, a four-member majority of the Supreme Court (through the concurring opinion of Holman, J.) held that a projection of the plaintiff's loss of future wages, extrapolated from the earnings of another employee who performed similar services but who was somewhat junior to the plaintiff and was earning a larger salary, was inadmissible because

" * * * (t)he evidence relates to future earning capacity. The opinion assumes that because there is similar seniority, there is sufficient similarity between earning capacities to make what the other workman earned relevant. The error in that assumption is that plaintiff's demonstrated earning capacity is at variance with such an assumption. Without any showing why plaintiff earned less (i. e., temporary illness, injury, etc.), the jury is allowed to assume that in the future plaintiff will earn as much as the other workman. This is not a valid assumption in the face of proof of what they actually earned and in the absence of proof why plaintiff in the past has been earning less." 266 Or. at 687, 513 P.2d 1140. (Emphasis in original.)

The case was remanded, and, after retrial, substantially the same issue arose on appeal in Plourd II. At the second trial, the plaintiff's evidence was based on projections of the earnings of several employees who performed the same job as the plaintiff and who were proximate to him in seniority. More salient than the difference in the nature of the statistical evidence at the two trials is that the plaintiff also introduced evidence at the second trial to explain why his salary was less for the period in question than that of persons of corresponding seniority performing corresponding duties (e. g., adjustment of his work shifts to accommodate temporary domestic circumstances). The Supreme Court held that the evidence at the second trial was admissible and explained:

" * * * In considering the admissibility of that evidence in our first decision in this case we pointed out (at 681-82, (513 P.2d 1140)) that in our previous decision in Conachan v. Williams, 266 Or. 45, 511 P.2d 392 (1973), we had held (at 59, (511 P.2d 392)) that any evidence which would 'indicate fairly the capacity of the plaintiff to earn money in his usual vocation' should be admitted. In Conachan we also recognized (at 61, (511 P.2d 392)...