Morgan v. Cashion

638 S.W.2d 387, 1982 Tenn. App. LEXIS 391
CourtCourt of Appeals of Tennessee
DecidedFebruary 8, 1982
StatusPublished
Cited by3 cases

This text of 638 S.W.2d 387 (Morgan v. Cashion) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan v. Cashion, 638 S.W.2d 387, 1982 Tenn. App. LEXIS 391 (Tenn. Ct. App. 1982).

Opinion

NEARN, Judge.

This litigation arose out of an automobile collision involving a vehicle owned by Ernest Cashion, operated by his son, Charles, and a vehicle owned and operated by Carlton B. Wakefield. Plaintiff, Cynthia Morgan, was a passenger in the Cashion vehicle when it collided with the Wakefield vehicle. Morgan brought suit against the Cashions and against Wakefield for injuries suffered in the collision. A jury returned a verdict for the defendant Wakefield but against the defendants Cashion for $450,000.00. Only the Cashions have appealed to this Court.

All issues raised on appeal are directed to evidentiary matters, the charge of the Court to the jury, and the size of the verdict. The determinative issue is in regard to the admission of certain expert testimony. We hold that the admission of the testimony of Dr. Thomas O. Depperschmidt was error. Further, we cannot say that the admission of such evidence was harmless. Therefore, the judgment must be reversed and the cause remanded for a new trial. Other issues raised on appeal are rendered moot.

Cynthia Morgan suffered serious injury in the collision. She was taken from the scene of the accident to the hospital where she remained in the intensive care unit for twenty-seven days and- thereafter in the regular unit of the hospital for approximately one month. There is no need to here set forth in detail the full extent of her injuries and her fight for life. For present purposes suffice it to say that she suffered lung injuries and a broken pelvic bone. Medical expenses incurred at the time of trial were approximately $30,000.00. However, due to modern medical techniques and treatment by skilled physicians, a marked recovery was made. One physician testified that she had a 20% permanent pulminary disability as a result of the lung damage. The orthopedic physician testified that she would have a 20% permanent orthopedic disability as a result of the bone injuries.

Testimony was also introduced in order to prove loss of future earnings. Cynthia Morgan was twenty-two years of age at the time of trial and was attending college in order to prepare herself for her chosen career in neuropsychology. Dr. Depper-schmidt was called as an expert economist to give his expert opinion as to the amount of future earnings that will be lost as a result of plaintiff’s injuries. Counsel for the defendants objected to his testimony and, outside the presence of the jury, Dr. Depperschmidt testified as to what he proposed to testify to in the presence of the jury. The objection was not that Dr. Dep-perschmidt was not an expert economist. The nature of the objection was that his testimony was simply inadmissible. In order to better understand our holding on this issue, we deem it proper to here quote directly from the record the pertinent portions of the voir dire examination of the witness:

Q. Are you competent to make a relationship or draw a distinction — to make a connection between medical disability and lost earning capacity?
A. Yes, sir, I am.
Q. You are competent to do that?
A. Yes, sir, if someone tells me what percentage of disability a person has, I can make some judgment as to the loss of earning capacity from that.

[389]*389Q. Well, I say disability. Are you qualified to say that a medical disability of twenty percent to the lung will cause twenty percent loss to someone who is in a given profession?

A. Yes, sir, I’m qualified to say that.
Q. What is the basis for your qualification to say that?
A. My experience in labor economics and labor market analysis, knowledge of people who have disabilities of one type or another who have experienced some loss of earning capacity as a result. I have in mind, for example, knowledge, reading knowledge of coal miners who have had pulmonary disorders, black lung disease as a result of their working in the mines. There is some disability there and that translates into lost earning capacity.
Q. Dr. Depperschmidt, do you know — in this case we have a twenty percent pulmonary disability and twenty percent orthopedic disability, and you are qualified to add those together and give us 40 percent earning capacity in a professional category? You’re qualified to make that connection?
A. If I may answer the question in this way, since the report was prepared, there has been additional evidence as I understand developed in this case, and Mr. Dowden has conveyed that information to me, and I have made an adjustment in the disability as a result.
Q. Your report is not then the basis for your testimony today?
A. Yes, sir, it is. It is the basis, but there is an addition to it.
Q. What is that addition?
A. Well, the testimony as I understand it has been developed that the disability is from twenty to forty percent.
Q. Well, have you seen that testimony?
A. No, sir, I have not.
Q. Do you know whether that is in terms of earning capacity or medical impairment?
A. That is medical impairment as I understand it.
Q. And you feel comfortable in translating yourself, your own qualifications and experience into earning capacity for this particular plaintiff?
A. The loss or impairment of earning capacity, yes, sir.
Q. Dr. Depperschmidt, are you familiar with the expertise known as rehabilitation and work impairment and that area of knowledge?
A. No, sir, in the area of handicap disability, I have no technical expertise in that area at all.
Q. Isn’t that what we’re talking about here, a person who has a handicap?
A. As I understood your question, you were asking for the translation of medical impairment into economic loss of earning capacity, and I stated I was qualified to do that without stating in any way my ability to judge the disability or impairment on the first part.
Q. That is what I am getting at, in terms of work function, you say you are qualified to translate medical disability into work function?
A. Into loss of earning capacity, yes, sir.
Q. And are you going to testify that she’s going to lose twenty to forty percent of her time and wage earning power at work because of what you know to be her disability?
A. Yes, sir, based on the medical testimony that has been provided, yes, sir.
Q. And this is more than just a mathematical computation on your part, this is — or not—
A. No, sir, I want to be entirely clear on this. I was provided with some data, some data from the family, some data from Mr. Dowden and some other data that I routinely use in such matters. And all I’m saying is that once I have a medical disability percentage that that can be translated into loss of earning capacity.
Q. One more clarification.

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638 S.W.2d 387, 1982 Tenn. App. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-cashion-tennctapp-1982.