Winder v. Martinez

545 P.2d 88, 88 N.M. 622
CourtNew Mexico Court of Appeals
DecidedDecember 16, 1975
Docket2002
StatusPublished
Cited by15 cases

This text of 545 P.2d 88 (Winder v. Martinez) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winder v. Martinez, 545 P.2d 88, 88 N.M. 622 (N.M. Ct. App. 1975).

Opinions

OPINION

WOOD, Chief Judge.

This lawsuit arose out of a motor vehicle collision. There is no issue concerning defendants’ liability. The jury returned a verdict for plaintiff, who appeals. Plaintiff tendered testimony from a psychologist on the issue of damages. The dispositive issue is whether the trial court erred in excluding this testimony. This issue involves consideration of (1) evidence of brain damage; (2) hypothetical questions; (3) irrelevant and immaterial evidence; and (4) qualifications of a psychologist to testify.

In the presence of the jury the psychologist testified as to his training and experience. In addition, he testified that he was “certified” to practice psychology in New Mexico. See §§ 67-30-5(B)(4) and 67-30-11, N.M.S.A.1953 (2d Repl.Vol. 10, pt. 1). He testified that he had evaluated the plaintiff and identified the factors involved in arriving at an evaluation.

These factors included: (a) an intensive interview, (b) various tests which were identified and explained, (c) plaintiff’s age, education and work experience, (d) plaintiff’s social and economic situation, and (e) the job market. There is no dispute about these factors.

Another factor, considered was evaluations of plaintiff by others. The result of tests administered by the psychologist and the result of psychological tests administered by others were essentially the same.

In explaining the result of one of the tests, the psychologist referred to the “defective range of intellectual function.” Defendants’ objection was sustained; the trial court informed the jury: “There is no connection whatsoever between this man’s intelligence and this automobile accident which we are concerned about here.”

Plaintiff made a tender of proof outside the presence of the jury. Defendants made a series of objections to the tendered testimony. The trial court ruled: “The objection will be sustained, and for the further reason that this witness is not qualified to testify concerning brain damage, nor can such an evaluation or conclusion be made from psychological tests.”

Brain Damage

The only reference to brain damage was two questions. The first question asked was whether the tests were capable of revealing brain damage. The psychologist answered: “ . . . there are indicators on these instruments which would point to brain damage possibility.” The second question, answered in the affirmative, was whether it was commonly accepted in the psychologist’s profession that the tests “can indicate brain damage”. Damages based on surmise, conjecture or speculation cannot be sustained. Damages must be proved with reasonable certainty. Hebenstreit v. Atchison, Topeka & Santa Fe Ry. Co., 65 N.M. 301, 336 P.2d 1057 (1959). The two questions and answers concerning brain damage raised no issue concerning brain damage for two reasons: (1) the answers showed there was no more than a possibility that the tests could show brain damage, and (2) there was no attempt to show that the plaintiff had suffered brain damage.

Neither counsel contended that the tendered testimony went to brain damage. Concern with whether the tendered testimony of the psychologist raised an issue as to brain damage was interjected by the trial court. Since the tendered testimony did not raise an issue as to brain damage, we are not concerned with whether the psychologist was qualified to testify on the subject. See Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962).

Hypothetical Questions

The tendered testimony went to plaintiff’s mental ability and his employment prospects. Plaintiff obtained the psychologist’s opinion on these subjects by asking hypothetical questions. Defendants objected that the hypotheticals were not proper hypotheticals on three grounds. Since the trial court sustained the defense objections with a general ruling, we consider each of the grounds stated by defendants.

The first objection was that there were items included in the hypotheticals for which there had been no proof and for which there will be no proof. The second objection was there were statements in the hypotheticals which were factually incorrect. The third objection was that items were omitted from the hypotheticals which would have to be taken into consideration “for an intelligent or reasonable answer to be given.”

What item had been included for which there was no proof? What was included that was factually inaccurate? What necessary item had been omitted? An objection which does not specify the particular ground on which the evidence is objectionable does not call the trial court’s attention to the matter to be decided. Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). We doubt that the objections were sufficiently specific to be treated as objections; however, we do not decide the objections on that ground.

Our answer to the first two objections is factual. There was proof as to the items included in the hypotheticals; the items were not factually incorrect. All the items included in the hypotheticals can be found in evidence introduced prior to the tender.

The third objection went to items omitted from the hypothetical questions. II Wigmore on Evidence, 3d Ed., § 682(b) states:

“The question, on principle, need not include any particular number of facts; i. e. it may assume any one or more facts whatever, and need not cover all the facts which the questioner alleges in his case. The questioner is entitled to the witness’ opinion on any combination of facts that he may choose. . . . [T]he questioner need not cover in his hypothesis the entire body of testimony put forward on that point by him or by the opponent, but may take as limited a selection as he pleases and obtain an opinion on that basis. Such is the orthodox doctrine as applied by most Courts.” (Emphasis in Original.)

Wigmore, supra, states that the court may interfere to prevent questions which are valueless or are fairly likely to mislead the jury. Such is not the situation in this case. On the basis of plaintiff’s work history, the psychologist’s tests, and tests of others available to the psychologist, the psychologist was asked: “ . would you have an opinion as to whether Mr. Winder's mental abilities were changed as a result of this collision?” After answering that he had an opinion, the psychologist was asked to state it. The opinion was: “ . . . that his mental abilities were changed ... we have to deal with the whole person concept and the functions that you indicate in the question are such that he was utilizing certain abilities, which according to the test results that I have, he no longer would be able to ■perform those functions.” Subsequently the psychologist was asked to assume that an orthopedic surgeon had testified concerning plaintiff’s ability to return to work upon restoration of muscle tone and conditioning.

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Winder v. Martinez
545 P.2d 88 (New Mexico Court of Appeals, 1975)

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545 P.2d 88, 88 N.M. 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winder-v-martinez-nmctapp-1975.