Morgan v. DiBIASE.

403 A.2d 1080, 121 R.I. 826, 1979 R.I. LEXIS 2033
CourtSupreme Court of Rhode Island
DecidedJuly 11, 1979
Docket76-232-Appeal
StatusPublished
Cited by6 cases

This text of 403 A.2d 1080 (Morgan v. DiBIASE.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan v. DiBIASE., 403 A.2d 1080, 121 R.I. 826, 1979 R.I. LEXIS 2033 (R.I. 1979).

Opinion

*829 Joslin, J.

This civil action for negligence arises out of a collision between a motor vehicle owned and operated by the plaintiff, John Morgan, in which his wife, Cheryl, also a plaintiff, was a passenger, and one driven by the defendant, Paul DiBiase. DiBiase filed a counterclaim alleging that John Morgan was negligent. The case was tried in the Superior Court where a jury returned verdicts of $14,500 and $6,695, respectively, for John and Cheryl Morgan and $3,225 for DiBiase on his counterclaim. In response to interrogatories, the jury also found that each operator was equally responsible for the collision. Accordingly, the judgments that thereafter were entered in favor of John Morgan and the defendant were diminished in the proportions attributable to their negligence. The defendant appealed and assigns as errors an evidentiary ruling and the trial justice’s denial of the defendant’s motions (1) to pass the case because of an allegedly improper remark made by the plaintiffs’ attorney in argument to the jury, and (2) for a new trial.

About midnight on December 12, 1971, plaintiffs were proceeding west on Scituate Avenue in Cranston and defendant was proceeding south on Pippin Orchard Road in the same city. Their vehicles collided at the intersection of the two streets, and caused both personal injuries to the occupants and property damage to the vehicles. Whether there was a stop sign at the interesection, whether defendant had stopped before entering that intersection, and whether a police report of the accident was accurate were all matters in dispute at the trial.

The defendant’s first argument on appeal is that the trial justice erred in admitting affidavits from Cheryl’s physician *830 and from the business manager of a local hospital. These affidavits were offered to support Cheryl’s claim that about 2 months after the accident, she was hospitalized because of vaginal bleeding and that about a month thereafter, she sustained a miscarriage as a result of the automobile collision. The affidavits include information concerning Cheryl’s health, the medical services rendered, and the charges therefor.

At the Superior Court trial defendant objected generally to the admission of the physician’s affidavit and specifically to the admission of the hospital affidavit, asserting that “there’s no foundation for it.” On appeal, he alters his grounds and contends that both affidavits were inadmissible because they were irrelevant. 1

In support of this assertion, defendant argues that the only evidence linking Cheryl’s miscarriage to the collision is the statement in the physician’s affidavit 2 that “[wjhether or not this patient’s alleged accident was instrumental in her miscarriage is uncertain. However, if Mrs. Morgan suffered any anoxia (unconsciousness) at the time of the accident (as she claims), this may well have been a precipitating factor in the miscarriage.”

Conceding that this statement ties the miscarriage to the collision, defendant nevertheless contends that it is irrelevant because the doctor’s statement is so lacking in positiveness that the jury, in deciding whether such a causal relationship existed, was forced to resort to speculation and conjecture. A conclusion so premised, he continues, is impermissible.

*831 In substance, defendant invokes our settled rule that expert evidence offered to establish a causal relationship between an incident and a subsequent injury should be admitted only if it speaks in terms of “probabilities” rather than “possibilities.” Evans v. Liguori, 118 R.I. 389, 398, 374 A.2d 774, 778 (1977); Sweet v. Hemingway Transport, Inc., 114 R.I. 348, 355, 333 A.2d 411, 415 (1975). We explained in Sweet that

“[ejxpert testimony, if it is to have any evidentiary value, must state with some degree of positiveness that a given state of affairs is the result of a given cause. Absolute certainty, of course, is not required. In those cases where expert testimony is relied on to show that out of several potential causes a given result came from one specific cause the expert must report that the result in question ‘most probably’ came from the cause alleged.” Id.

Certainly the physician’s observation that the link between the collision and the miscarriage was “uncertain,” even when bolstered by his further observation that the collision, if it rendered Cheryl unconscious, “may well have been a precipitating factor,” falls far short of the requisite positiveness and was therefore inadmissible. At the trial, however, defendant objected only generally to the introduction of this evidence. The difficulty he now faces is that a ruling admitting evidence over a general objection may not ordinarily be challenged on appeal if the evidence objected to is admissible on any ground whatsoever. 1 Kent, R.I. Civ. Prac. §46.2 at 356 (1969); see 1 Wigmore, Evidence §18 at 336-38 (3d ed. 1940).

The plaintiffs, however, have not suggested, nor have we been able to find, any tenable ground supporting the admission of an affidavit that was not relevant to any issue in the case except Cheryl’s claim that she suffered a miscarriage as a result of the collision. But for reasons already commented upon, the affidavit was inadmissible for the purpose. That it was erroneously admitted, however, does not call for reversal unless the document was prejudicial, and it will be deemed *832 prejudicial only if it reasonably tended to exert an influence upon the determination of the material issues in the case. Grelle v. Calise, 111 R.I. 612, 616, 306 A.2d 41, 44 (1973); Heuser v. Goldstein, 107 R.I. 317, 321, 267 A.2d 420, 422 (1970).

That the affidavit did influence the jury in determining John’s damages is abundantly evident. The verdict in his favor was $14,500 and the jury, in response to interrogatories, stated that $7,500 was for pain and suffering and permanent injuries, and the balance of $7,000 was for reimbursement of out-of-pocket expenses. An analysis of those out-of-pocket expenses discloses that $240 of that balance was attributable to medical expenses resulting from Cheryl’s miscarriage. 3

Moreover, although we are not privy to the jury’s deliberations, it would be totally unreasonable for us to conclude that the jury that reimbursed John for the expenses he incurred in connection with Cheryl’s miscarriage did not also include something in its award to Cheryl for the pain and suffering she endured in miscarrying. 4

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Bluebook (online)
403 A.2d 1080, 121 R.I. 826, 1979 R.I. LEXIS 2033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-dibiase-ri-1979.