Butler v. Wong

573 P.2d 86, 117 Ariz. 395, 1977 Ariz. App. LEXIS 769
CourtCourt of Appeals of Arizona
DecidedNovember 9, 1977
Docket2 CA-CIV 2372
StatusPublished
Cited by11 cases

This text of 573 P.2d 86 (Butler v. Wong) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Wong, 573 P.2d 86, 117 Ariz. 395, 1977 Ariz. App. LEXIS 769 (Ark. Ct. App. 1977).

Opinions

OPINION

HATHAWAY, Judge.

On October 22, 1973, Mr. Butler was attempting to enter the I — 10 freeway from the Congress Street on-ramp in Tucson when his automobile was struck from the rear by a vehicle driven by Mr. Wong. The backseat in Mr. Butler’s automobile was severely bent as was the sunvisor. Mr. Butler received injuries to his head, neck and shoulders. He later developed deafness which he contends resulted from the accident. Appellants sued and recovered a jury verdict in the sum of $4,270.97. Appellants contend on appeal that they were prejudiced at trial by the exclusion of the deposition of Dr. Bernstein, an ear specialist, who was unavailable to testify at trial.

The admissibility of evidence at trial is largely a matter within the discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. Throop v. F. E. Young and Company, 94 Ariz. 146, 382 P.2d 560 (1963). In City of Tucson v. Holliday, 3 Ariz.App. 10, 411 P.2d 183 (1966), we held that the trial court committed reversible error in refusing to permit an optometrist to express an expert opinion concerning the plaintiff’s ability to see with the glasses she was wearing at the time she fell while crossing a downtown intersection in Tucson. Since the testimony in question comprised a substantial portion of the defendant’s case and should have gone to the jury, reversal was required. Appellants contend that the exclusion of Dr. Bernstein’s deposition had the same effect.

It is not sufficient in an action for damages that plaintiff show a certain injury might have been caused by the negligence of defendant. It is necessary to establish that the injuries have been so caused. Western Truck Lines, Ltd. v. Berry, 53 Ariz. 216, 87 P.2d 484 (1939). Medical testimony, although inconclusive, may be of value when considered with the other evidence. This exception to the general rule was stated by us in Coca-Cola Bottling Company of Tucson v. Fitzgerald, 3 Ariz. App. 303 at 306, 413 P.2d 869 at 872 (1966):

“To establish the causal connection between an accident and injury, a sine qua non of liability, medical testimony as to the possibility of such causal connection, without more, is insufficient. But if there is medical evidence of the possibility of the existence of the causal relationship together with other evidence or circumstances indicating such relationship, the finding that the accident caused the injury will be sustained.” (Italics in original)

Kreisman v. Thomas, 12 Ariz.App. 215, 469 P.2d 107 (1970) and Montague v. Deagle, 11 Ariz.App. 106, 462 P.2d 403 (1969).

The parties accept the legal principle quoted above but disagree as to its application under the facts presented. Appellees agree that the determining factor on whether the testimony of Dr. Bernstein was admissible is whether there was sufficient “other evidence or circumstances” indicating a relationship between the hearing loss and the accident. We have carefully reviewed the record and conclude that there is.

Mr. Butler testified that prior to the accident he had never had trouble with his [397]*397hearing. The deafness came upon him on May 4, 1974, after a private. plane flight from Tucson to Phoenix. As might be expected, the lapse of time in excess of five months from the date of the automobile accident raises a serious question as to any causal connection between the deafness and the accident. The injuries sustained by Mr. Butler were to his head, neck and shoulders. He sustained a bump on the head and suffered severe pain in movements involving the neck and shoulders. He also had difficulty in the use of his hands and suffered a tingling sensation along the insides of his arms. The problems with his hands interfered with his writing and caused him to give up his avocation of gunsmithing. He experienced “popping” in his neck. The pain and problem in his neck area persisted to the time of trial, as did a constapt tension in the shoulders. Immediately after the May 4 flight, when the deafness developed, Mr. Butler testified that when he got out onto the ground he noticed vertigo and deafness which he characterized as “very extreme,” and which settled in the left ear. He attempted to clear it up by chewing gum, apparently feeling at the time that the flight may have been a factor in bringing it on. The chewing did not help and antihistamine treatments administered intravenously brought about a marked improvement in the vertigo, and a gradual improvement in the hearing, which apparently stabilized leaving a marked hearing loss. Testimony was given by Mr. Butler that he frequently shot guns, but always used protective devices in his ears. He also testified that he had considerable experience as a pilot, but that neither the shooting nor the flying had in any way in the past interfered with his hearing. Mr. Butler was asked by his attorney:

“Q. Do you know what caused your hearing loss?
A. Yes.
Q. What was that?
A. Definitely that violent whiplash I had in that accident, it’s the only thing it could be.
Q. Did you ever have any hearing loss in your left ear prior to this accident?
A. No. No real hearing loss, perhaps coming out of pressurized cabins of the plane, I may pop and then in an hour be cleared up, but I could hear.
Q. Do you ever recall any hearing loss whatever prior to that?
A. No.”

The deposition of Dr. Bernstein, an ear specialist, was objected to by defense counsel on the basis that Dr. Bernstein never testified to a reasonable medical probability that the hearing loss is connected with the accident. The trial judge indicated that after he read the deposition he did not believe it was admissible and read into the record the following portion from the deposition which we must agree is ambivalent. Other portions of the deposition do, however, appear to support appellants’ efforts to connect the deafness to the accident.

“A. Have I seen things like that? I have seen it all ways. I have seen it all ways. That’s why I think I can get a feeling about this condition so I know where to pigeonhole most of these patients, but by a long shot, not all. I have seen it with severe injuries; I have seen severe injuries without it; I have seen it without any injury; I have seen it in well people; I have seen it in sick people; I have seen it in old, in young. I have seen it in so many different ways that there is no way that you can — even an incident, have I seen it in situations like this, sure, I have.”

The trial court stated:

“I wanted to read that because it sounds like Dr. Seuss. I don’t think it’s admissible. Show the objection is sustained.”

Elsewhere in the deposition the doctor stated that he had seen Mr.

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Butler v. Wong
573 P.2d 86 (Court of Appeals of Arizona, 1977)

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Bluebook (online)
573 P.2d 86, 117 Ariz. 395, 1977 Ariz. App. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-wong-arizctapp-1977.