Marnette v. Morgan

485 N.W.2d 595, 1992 S.D. LEXIS 67, 1992 WL 101256

Opinions

HENDERSON, Justice

(on reassignment).

NATURE OF ACTION/PARTIES/HOLDING

This appeal centers around a very minor accident. For purposes of clarity and convenience, we shall refer to James Marnette Plaintiff/Appellant, as Marnette. We refer to Stephan Thomas Morgan, defendant, ap-pellee, as Morgan. Marnette was awarded $924.39. He appeals this award based upon an alleged evidentiary error.

Determining there was no abuse of discretion by the trial court in disallowing testimony from a vocational expert, wé affirm.

FACTS

On March 6, 1985, Marnette was injured when the vehicle in which he was a passenger was involved in an accident. Morgan’s vehicle was traveling at approximately 20 m.p.h. when he struck a vehicle operated by Susi Weber (Weber), which was traveling in the same direction as Morgan, but had slowed due to congested traffic. Weber’s vehicle was propelled forward by the collision and struck a vehicle, owned by Hanson, in which Marnette was a passenger, at a speed of two miles per hour.

Marnette brought suit against Morgan on March 1, 1988, alleging Morgan was negligent in causing the accident. Mar-nette originally sought damages for pain and suffering in the amount of $30,000.00 and special damages in the amount of $2,500.00. On December 10, 1991, he amended his complaint to include pain and suffering, disability and economic loss in the amount of $250,000.00 and special damages in the amount of $3,000.00.

Prior to trial, Morgan admitted fault in causing the motor vehicle accident on March 6, 1985. The jury was presented with evidence which only related to Mar-nette’s damages. The jury heard testimony from Marnette, his treating physicians, and various experts and other witnesses regarding the extent of Marnette’s damages. The jury returned a verdict of $1,400.00 which was reduced to $924.39, pursuant to SDCL 15-6-68, after Marnette refused an offer of judgment made December 29, 1989.

Footnotes

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At trial, Marnette, in an attempt to heighten damages, called Rick Ostrander (Ostrander), a vocational rehabilitation specialist, to testify as to his vocational evaluation of Marnette and his loss of employability. Marnette received a seven percent impairment rating from his physicians. Os-trander was to offer testimony to the effect that Marnette had experienced a thirty percent reduction in his employment capacity, a thirty percent reduction in earnings advancement, and an increase of unemployment of 2.4 weeks each year. Dr. Ralph Brown, as part of this evidentiary plan by Marnette, was to then testify to economic loss based on Ostrander’s opinions.

Morgan countered this plan by moving to enjoin Ostrander’s testimony on the grounds that it lacked foundation and was speculative. The trial court ruled on Morgan’s motion. It limited Ostrander’s testimony to the seven percent impairment testified to by Marnette’s doctors. The trial court stated there had been no medical testimony that Marnette was restricted from handling certain types of occupations. Therefore, the trial court ruled that Ostran-der’s testimony concerning restricted employment was speculative and would not permit its introduction.

ISSUE

Did the trial court abuse its discretion by denying Marnette’s presentation of testimony by a vocational expert? We hold that it did not.

DECISION

We are controlled by precedent. We have previously held: “The trial court’s evidentiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion.” Stormo v. Strong, 469 N.W.2d 816, 820 (S.D.1991) (citing Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989)).

We have before us a calculated effort to build damages where they did not exist. Subsequent to this very minor accident, Marnette (Plaintiff) participated vigorously in sports events. He did not see a doctor until eight months after this accident. And this was spawned by the advice of an Aberdeen, South Dakota attorney. . In point of fact, Marnette told the investigating officer and Morgan that he was not hurt.

Medical testimony, from a treating physician, was presented to the jury that Mar-nette did not follow his doctor’s orders.

Exhibit 1 was introduced which is a reflection of Mamette’s work history. He worked a 40 hour week every year, up until the date of trial. This all went before the jury for its consideration.

Testimony, very damning to Marnette’s cause, came from Marnette’s own mouth: “There’s nothing I can’t do because of the accident.” Obviously, it is not difficult to expect a jury to award damages, into the thousands of dollars, when such evidence impales Marnette’s plan to heightén damages. Here, the evidence justified the verdict. Inter alia, no testimony was introduced by any doctor that Marnette had a disability. Dr. Ivey revealed that the existence of a “permanent medical impairment does not automatically support the presumption that there is a disability as well.”

There were insufficient facts for this vocational specialist to state his opinion. Marnette attempted to present evidence from Ostrander, the vocational specialist, that plaintiff, who claimed no loss of work time from 1985 through 1990 would sustain, in the future, a 30% reduction in his capacity for employment; and, further, would be unemployed for 2.4 weeks each year for the rest of his life. Ostrander has no medical training at all. He never talked with Marnette’s employer or Dr. Benson or Dr. Winkler or with Dr. Bledsoe. He did not examine any employment records of Marnette. Further, Dr. Ivey testified that there was nothing to indicate that Marnette would be restricted from social, employment, or recreational pursuits.

In short, the “cap” which was placed upon Ostrander’s testimony by the trial court, was wise. Cozine, Weidner, Hoffman, Alberts, Donahue, Miller, infra. And, particularly, when an appellate court focuses upon a record which reflects that there was no testimony elicited from any doctor that Marnette could not perform any type of job. Medically, Marnette’s case was woefully weak. Under this record, where there was no testimony that a loss of earning capacity was reasonably certain to result in the future, an award for such an item of damage is improper. Weidner v. Lineback, 140 N.W.2d 597 (S.D.1966).

We noted above that: “Inter alia, no testimony was introduced by any doctor that Marnette had a disability.” In this context we call attention to our holding in Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548, 552 (S.D.1990), wherein we said: “The hearing examiner should have considered other evidence, such as Cozine’s vocational expert regarding the loss of em-ployability and the testimony of [his' doctor].” Cozine, 454 N.W.2d at 552. We do not swerve from that holding. However, admittance of such testimony depends upon the facts of the case. We continue to hold that a disability may be established through testimony other than a doctor. There is a distinction between a disability rating and an impairment rating. Instantly, we must recognize that Marnette testified: “There’s nothing I can’t do because of the accident.”

We note the distinction between a disability rating and an impairment rating. As we stated in Cozine: .

Although the medical impairment rating given by a doctor is an important factor, the extent of loss of use does not necessarily equal the extent of medical impairment. (Emphasis added).

Id. at 552.

In Cozine, we further quoted with approval from the American Medical Association Guide to the Evaluation of Permanent Impairment, (2nd Ed.1984), wherein it is stated:

Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands, or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment. (Emphasis added.)

In Cozine, we allowed the testimony of a vocational expert to establish loss of use: “A medical impairment rating simply is not intended to measure loss of use.” There, Cozine was unable to do any activity that would involve the use of the right upper extremity. But, in contradistinction, Mar-nette testifies: “There’s nothing I can’t do because of the accident.”

As the appellate body, we owe a duty, firmly entrenched by stare decisis, to review evidence in a light most favorable to the prevailing party (Morgan); and conflicting evidence is to be resolved to support the verdict. Hoffman v. Royer, 359 N.W.2d 387, 388 (S.D.1984). We have done so.

In this ease, we note that no exceptions were taken to the jury instructions. The trial court was patently fair to Mar-nette in the instructions. The jury was permitted under Instruction No. 16 to award future damages for permanent injury. Per Instruction No. 19, the jury could award damages for disability, pain, suffering and mental anguish experienced and reasonably certain to be experienced in the future as a result of the injury, for the reasonable expenses of necessary medical care, treatment and services received and the value of the reasonable expenses of such items in the future. Here, jury awarded nothing for any of these items other than some of the medical bills. This was all within the jury’s province. As a reviewing court, we are required to view the evidence and all reasonable inferences therefrom in a light most favorable to verdict winner. Alberts v. Mutual Serv. Cas. Ins. Co., 80 S.D. 303, 308, 123 N.W.2d 96, 99 (1963). Clearly, the trial court gave Marnette an opportunity to recover far more damages than he received by way of verdict.

We should not, and cannot, disturb this verdict unless the trial court clearly abused its discretion. We also review an evidence question such as this, thusly: Could a judicial mind, in view of the law and the facts of the case, reasonably have reached such a conclusion (one of inadmissibility in this instance)? Matter of Estate of Donahue, 464 N.W.2d 393, 395 (S.D.1990). Considering the evidence, the trial court reasonably ruled on Morgan’s objection.

In conclusion, the trial court forbade this rehabilitation specialist from expressing opinions which were not supported by the evidence. To the contrary, the evidence militates against the specialist’s opinions. Experts cannot conjure evidence when it does not exist. Ostrander was prevented from giving evidence, by way of opinion, that Marnette would experience a 30% reduction in his capacity for employment and increases of unemployment of 24 weeks each year. Compare this to his own testimony that “There’s nothing I can’t do because of the accident.” We continue to recognize that a party is bound by his (her) testimony. Miller v. Stevens, 63 S.D. 10, 17, 256 N.W. 152 (1934); 30 Am.Jur.2d Evidence § 1087 (1967).

Trial court did not abuse its discretion. Through an expert, Marnette is trying to elevate his damage claim above his own testimony and the overwhelming evidence produced before the jury. Klatt v. Continental Insurance Co., 409 N.W.2d 366, 370 (S.D.1987); Romey v. Landers, 392 N.W.2d 415, 421 (S.D.1986). We will not permit him to do so.

Affirmed.

MILLER, C.J., and WUEST, J., concur. SABERS and AMUNDSON, JJ., dissent.

SDCL 15-6-68 reads in pertinent part: "... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer....”

The costs incurred by Morgan after his December 29, 1989, offer were $475.61, and the $1,400.00 verdict was reduced accordingly.