Phillips v. Industrial MacHine

597 N.W.2d 377, 257 Neb. 256, 1999 Neb. LEXIS 128

• Court: Nebraska Supreme Court
• Decided: July 16, 1999
• Docket: S-97-1263
• Status: Published

Opinions

Wright, J.

NATURE OF CASE

Following a jury verdict in favor of Michelle Phillips, the trial court determined that the testimony of Phillips’ expert had been erroneously admitted. Thus, the trial court granted a motion for new trial, and Phillips appeals.

SCOPE OF REVIEW

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998).

A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred. Wolfe v. Abraham, 244 Neb. 337, 506 N.W.2d 692 (1993).

FACTS

Phillips sued Industrial Machine and Nicholas Cusick, one of its owners, to recover damages allegedly sustained when a vehicle owned by Industrial Machine and driven by Cusick collided with Phillips’ vehicle. Cusick admitted liability, and a jury trial was held to determine the nature and extent of the damages sustained by Phillips as a result of the accident.

Dr. Daniel R. Ripa, an orthopedic surgeon who treated Phillips, testified by videotape deposition that Phillips suffered a posttraumatic cervical strain as a result of the collision. Ripa stated that 3 years after the collision, Phillips continued to suffer from a mild amount of restriction in the extremes of her mobility of the neck. In other words, she still did not have a full range of motion in the neck. Given the fact that after 3 years, there were still objective findings of restricted mobility and subjective complaints of discomfort, Ripa opined to a reasonable degree of medical certainty that Phillips’ cervical strain was permanent. However, Ripa stated that he had never been asked to place any restrictions on Phillips’ work activities.

Phillips testified that prior to the accident, she had worked at the Lancaster Office of Mental Retardation and at Dillard’s department store. After the accident, certain tasks such as lifting or dressing a client at the office of mental retardation made her physically uncomfortable and she became uncomfortable during extended shifts at Dillard’s. As a result, Phillips eventually left those jobs and at the time of the trial was operating a day-care business out of her home. Phillips testified that she continued to experience heightened discomfort in her neck and headaches from doing too much housecleaning and other activities.

At the time of the trial, it had been approximately 1 year since Phillips had seen a doctor regarding her injuries. Her hospital and medical bills stemming from the accident totaled $2,236.82. She had not incurred any loss of wages and had no claim for property damage.

Alfred J. Marchisio, Jr., a vocational rehabilitation counselor and consultant, also testified on Phillips’ behalf. Outside the presence of the jury, Marchisio stated that Phillips reported to him that she had difficulty with postures of the neck insofar as she experienced increased discomfort when moving the neck repeatedly or quickly and when her neck was tilted forward for any period of time. She also experienced increased discomfort in the neck area when carrying heavy objects. Marchisio stated that personal histories from clients were reasonably relied upon by experts in the vocational rehabilitation field in forming their opinions and that his opinion with respect to Phillips’ condition and employability was based on Phillips’ medical records and the self-report she provided. In addition, Marchisio explained that he relied upon the “New Work Life Expectancy Tables” published by “Vocational Econometrics,” which tables were reasonably relied upon by vocational experts, and upon the definitions for disabilities used within the “State Vocational Rehabilitation Systems” as well as the definition used in the Americans with Disabilities Act. Marchisio said these definitions were reasonably relied upon by experts in the vocational field and that, in essence, they define a disability as “a physical and mental impairment that interferes with a person’s ability to do certain functions of their major lifestyles, which include the normal type of things of walking, seeing, hearing, talking, as well as work activities or recreational activities.”

A voir dire examination was conducted in which Marchisio stated that he relies upon medical doctors, physical therapists, and input from the client to determine the client’s medical restrictions or limitations. Marchisio stated that he has no medical training, that he does not personally diagnose or formulate opinions concerning limitations that should be placed upon a client’s work activities, and that he was not aware that any medical doctor had placed a work restriction on Phillips or determined a disability rating. He explained, however, that even without a restriction placed on a client’s work activities or a disability rating, he could perform a functional capacity evaluation based upon the information the client gave him, so long as a physician had diagnosed some type of medical condition.

Marchisio stated that a worklife expectancy table is a statistical comparison between the worklife expectancy of a healthy portion of the work force and the “disabled” portion of the work force. Under the tables, the term “disabled” refers to a broad continuum of disabilities spanning from mild or transitory conditions to conditions that result in total dependence on others for care. He admitted that no physician had determined Phillips was disabled as the term is used in the tables.

When direct examination was continued, still outside the presence of the jury, Marchisio stated that his primary conclusion regarding Phillips was that she was not going to be in the work force as long as a healthy person of the same age. He opined that based upon statistical probabilities, the worklife expectancy for a healthy 24-year-old female with the same education as Phillips was to age 54.2, while a disabled 24-year-old female with the same education had a worklife expectancy to age 38.9. He stated that these probabilities were generally relied upon by experts in his field and reiterated that the statistical probability table used did not distinguish between severities of disability. In addition, Marchisio explained that the tables did not distinguish whether the disability had any effect on the ability to work in the person’s prior occupation. His opinion as to Phillips’ worklife expectancy was based on his understanding that her condition was chronic.

Over defense counsel’s objection, the trial court allowed Marchisio to continue his testimony in front of the jury. Marchisio reiterated his testimony concerning Phillips and his reliance upon the New Work Life Expectancy Tables, again explaining that included in the category of disabled persons under the tables were persons with very mild disabilities that did not affect their work, as well as persons with catastrophic disabilities. He opined within a reasonable degree of professional probability that Phillips was not going to stay in the work force as long as another healthy white female her age and that she would exit the job market most likely before the maximum age of a healthy person. Marchisio explained that under table 3 of the New Work Life Expectancy Tables, there was a statistical probability that a disabled person of Phillips’ age and education would have a worklife expectancy to age 38.9, while a healthy person would be expected to work to age 54.2 years. However, due to her positive attitude and motivation, she might be in the work force longer than the statistical average for disabled persons of her age and education.

On cross-examination, Marchisio admitted that no work restrictions had been placed upon Phillips by a physician, that he personally had no medical training, and that he relied upon medical doctors and physical therapists to determine the medical restrictions or limitations that should be placed on a particular individual. Marchisio stated that he was not aware of any physician who had specifically determined Phillips to be disabled as defined by the New Work Life Expectancy Tables, but relied in part upon Ripa’s assessment that Phillips’ cervical strain injury was a permanent condition. Marchisio was unable to render an opinion as to Phillips’ loss of earning capacity given the facts that she was close to completing a bachelor’s degree in horticulture and that her previous employment consisted of interim jobs.

The jury was instructed, inter alia, that if it returned a verdict for Phillips, then it must decide how much money would fairly compensate her for her injury. Included among the list of things the jury was instructed to consider was “(3) [t]he reasonable value of the earning capacity the plaintiff is reasonably certain to lose in the future ...” The jury returned a verdict in favor of Phillips in the amount of $102,236.82.

In granting Cusick’s motion for new trial and ordering that the verdict be vacated, the trial court concluded that Marchisio was not qualified by either knowledge, skill, experience, training, or education to provide what amounted to expert medical testimony that Phillips was disabled as a result of her cervical strain. The court found there was no medical evidence that any doctor or medical professional had placed any restrictions whatsoever on Phillips’ work or other activities as a result of her cervical strain and no medical evidence that Phillips’ functional capacity was impaired as a result of her injury. The court stated that Marchisio’s opinion regarding Phillips’ reduced worklife expectancy was premised upon his own factually unsupported and inadmissible conclusion that Phillips was disabled and that the opinion lacked the necessary and proper foundation and for that reason should have been excluded. In addition, the court concluded that given the broad definition of a disabled person as used in the New Work Life Expectancy Tables and Marchisio’s vague conclusion that Phillips would work “less” as a result of her disability, the testimony “was so generic and lacking in certainty that it failed to make the existence of a disputed fact more or less probable, and was of no value to the jury.” Given Marchisio’s qualifications, the court concluded it was error to permit him to provide what amounted to a medical opinion. The court also concluded that Marchisio acted as a “human conduit” for the admission of inadmissible hearsay and that the instruction on future earning capacity was erroneous because it was predicated on Marchisio’s inadmissible, uncertain, and unquantifiable opinion testimony.

ASSIGNMENTS OF ERROR

In summary, Phillips asserts that the trial court abused its discretion (1) in granting Cusick a new trial, because the court erred in finding that Marchisio’s opinion lacked the necessary and proper foundation; (2) in finding that Marchisio’s opinion was irrelevant; (3) in finding that Marchisio’s testimony was inadmissible hearsay; (4) in finding that the evidence was insufficient to instruct the jury as to the loss of future earning capacity; (5) in granting a new trial without specifically finding that a substantial right of Cusick’s had been prejudiced; and (6) in failing to find that the errors, if any, were harmless.

ANALYSIS

The issue is whether the trial court abused its discretion in ordering a new trial. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998).

It is well established, however, that where a party has sustained the burden and expense of a trial and has succeeded in securing a verdict on these facts and issues, that the party has the right to keep the benefit of the verdict unless there is prejudicial error in the proceedings by which it was secured. Thus, a motion for new tried is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred. Wolfe v. Abraham, 244 Neb. 337, 506 N.W.2d 692 (1993).

Whether the trial court abused its discretion in granting a new trial depends upon the admissibility of Marchisio’s testimony and the effect of such testimony. Expert testimony is permitted pursuant to Neb. Rev. Stat. § 27-702 (Reissue 1995): “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Admissibility of expert testimony is based on four factors: (1) whether the witness is qualified as an expert; (2) whether the testimony is relevant; (3) whether the testimony will assist the trier of fact; and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice or other considerations. Seeber v. Howlette, 255 Neb. 561, 586 N.W.2d 445 (1998). Our review of the trial court’s admission or exclusion of expert testimony which is otherwise relevant will be for an abuse of discretion. See Mahoney v. Nebraska Methodist Hosp., 251 Neb. 841, 560 N.W.2d 451 (1997).

One of the bases for granting the new trial was the trial court’s conclusion that Marchisio’s testimony “was so generic and lacking in certainty that it failed to make the existence of a disputed fact more or less probable, and was of no value to the jury.” The court noted that the definition of “disabled” as used in the New Work Life Expectancy Tables made no differentiation between people with minor disabilities and those with serious disabilities or between people with disabilities which affect their work and those with disabilities which have no effect on their work. The court explained that under these broad statistics, Marchisio “could present virtually the same opinion testimony he presented in this case in any courtroom, with any injured plaintiff, without modifying the opinion at all.” (Emphasis omitted.) We agree.

Where there is no sound and reasonable basis such that an expert is able to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture, the expert’s opinion is to be stricken. Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813, 572 N.W.2d 362 (1998). In Anderson/ Couvillon, the plaintiff’s economics expert testified as to the plaintiff’s loss of future earning capacity based on another expert’s opinion that the plaintiff was unlikely to attend college. We held that it was not error for the district court to determine that the testimony was speculative where there was no evidence that the plaintiff, who was 7 years old, would have attended and graduated from college in the absence of the injury. We explained that damages for permanent impairment of future earning capacity may not be based on speculation, probability, or uncertainty, but must be shown by competent evidence that such damages are reasonably certain as the proximate result of the pleaded injury. We determined that the district court did not err in concluding that it was not “ ‘reasonably certain’ ” that the plaintiff would have graduated from college absent the injury. Id. at 822, 572 N.W.2d at 369.

In Uryasz v. Archbishop Bergan Mercy Hosp., 230 Neb. 323, 431 N.W.2d 617 (1988), the plaintiff’s expert projected her future earning capacity to be $215,280. The expert testified that in reaching this conclusion, he assumed the plaintiff was 46 years of age and he considered her past employment history and earnings, which were that she managed a family pharmacy that had never made a profit and that she was employed briefly as a manager at $5.75 per hour. He computed her annual income, using $5.75 per hour as a base, to be $11,960 and multiplied that figure by 18, being her employable years to age 65. No factors regarding the extent or permanency of her impairment were considered or used. Upon cross-examination, the expert stated that if the plaintiff went back to work and she could handle the job, she would have no loss, but if she did not return to work, the figure of $215,280 represented her future earning capacity.

Although the defendant failed to object to the testimony, we concluded that the testimony was subject to objection when adduced and to a later motion to strike for the following reasons: (1) The purpose was to give an opinion on impairment of future earning capacity, which requires the elements of a shown impairment, the extent the earning capacity has been diminished, and the degree of permanency of the impairment to earning capacity (citing Lake v. Southwick, 188 Neb. 533, 198 N.W.2d 319 (1972)); (2) the witness must be shown to possess competent facts and underlying data to give such an opinion, otherwise it should not be received and is subject to being stricken (citing Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236 (1979)); (3) the only evidence in the record of the extent and degree of permanency of the impairment was speculative and indefinite and, at most, presented a fact question for the jury, but in any event, such factors were either not considered or unknown to the witness; and (4) the witness assumed the plaintiff was employable, but his opinion was in terms of total impairment, which was described as not going back to work. We explained that the result of the expert’s testimony was that he made a mathematical computation that was within the capabilities of a layperson, which he improperly described as impairment of future earning capacity. This produced speculation and confusion in the evidence.

In Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980), we held that it was error to introduce the testimony of an expert witness who had relied on questionnaires in order to express an opinion as to the salaries of like employees in other cities. We explained that the questionnaires listed minimum and maximum salaries for the position, but there was no indication as to whether the salaries listed were actually being paid or under what conditions employees would be entitled to receive the maximum salaries. We stated that since there was a lack of foundation evidence to establish the source and reliability of the information in the questionnaires and the questionnaires were the basis for the expert testimony, the court should have sustained an objection to that testimony. We explained that an expert witness should not be allowed to express an opinion where the evidence shows there is no adequate basis for the opinion. See, also, State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992) (although results of DNA profile test are generally accepted by scientific communities, probative value must also be considered and whether prejudicial effect exceeds probative value).

In addition, we agree with the trial court’s conclusion that Marchisio was not qualified to testify that Phillips was disabled as a result of her cervical strain simply because Ripa had diagnosed her condition as permanent. The fact that a medical condition is permanent does not equate with a medical opinion that a person is disabled. “Regardless [of] how impressive the background of a witness, his area of expertise should match fairly closely the subject matter of his testimony.” Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 7.5 at 721 (1995). Without any evidence that Phillips was in fact disabled, Marchisio’s opinion, which relied on the conclusion that Phillips was disabled, lacked foundation and probative value.

In summary, Marchisio concluded that Phillips was disabled because her injury was permanent. Because he concluded that she was disabled, he applied the New Work Life Expectancy Tables, which do not discern between minor and serious disabilities or take into consideration whether such disability affects an individual’s ability to work. Marchisio’s opinion lacked probative value. For the foregoing reasons, we conclude the trial court did not abuse its discretion when the court determined that it was error to have admitted Marchisio’s testimony.

The next question is whether the erroneous admission of this evidence prejudiced Cusick. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded. Radecki v. Mutual of Omaha Ins. Co., 255 Neb. 224, 583 N.W.2d 320 (1998). Only an error which is prejudicial to the rights of the unsuccessful party justifies a new trial. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996). What constitutes unfair prejudice is a matter the Nebraska Evidence Rules entrust to the discretion of the trial judge. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993).

We cannot say that the trial court abused its discretion in finding the testimony of Marchisio unfairly prejudicial. This testimony was offered to assist the trier of fact to determine a fact in issue. Marchisio testified that there was a statistical probability that a disabled person of Phillips’ age and education would work 15.3 years less than a nondisabled person and that it was his opinion that as a result of her injury, Phillips would not be in the work force as long as she would have otherwise. Marchisio’s testimony lacked foundation and unfairly permitted the jury to infer that Phillips should be compensated for this loss of employment. We therefore affirm the order granting a new trial.

Affirmed.