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Dalebout v. Union Pacific Railroad Co.5/6/1999
gery. It argues that the thirty-percent figure merely shows a possibility of future surgery, whereas the law requires a showing that the future surgery is probable.
Ordinarily, we greatly defer to a trial court's ruling on the admissibility of evidence. See State v. Pena, 869 P.2d 932, 938 (Utah 1994). However, when the court's "selection, interpretation, and application" of a specific evidentiary standard is at issue, we review its determination for correctness. See Stevenett v. Wal-Mart Stores, 365 Utah Adv. Rep. 10, 11 (Utah Ct. App. 1999) (citing Utah Dep't of Transp. v. 6200 S. Assocs., 872 P.2d 462, 465 (Utah Ct. App. 1994)).
A FELA plaintiff may recover "damages for such results of the defendant's wrong as the plaintiff will probably suffer in the future." Moore v. Denver & Rio Grande W.R.R. Co., 4 Utah 2d 255, 258, 292 P.2d 849, 851 (1956); accord Kirchgestner v. Denver & Rio Grande W.R.R. Co., 118 Utah 20, 34-35, 218 P.2d 685, 693 (1950). Likewise, testimony regarding the likelihood of future medical treatment resulting from a railroad employer's negligence must show "a probability rather than a possibility." Dallas v. Burlington N., Inc., 689 P.2d 273, 277 (Mont. 1984). If the testimony shows a mere possibility, it is inadmissible. See Harp v. Illinois Cent. Gulf R.R. Co., 370 N.E.2d 826, 829-30 (Ill. App. Ct. 1977); see also Phillip E. Hassman, Annotation, Admissibility of Expert Medical Testimony as to Future Consequences of Injury as Affected by Expression in Terms of Probability or Possibility, 75 A.L.R.3d ยง 2 (1977) ("The majority of jurisdictions . . . will admit only that testimony concerning future consequences which, in the opinion of the expert, will 'probably occur' or for which there exists a 'reasonable probability' of occurrence."). "This standard is best understood as requiring the victim to introduce evidence to demonstrate that the future event will more likely than not occur--that is, there is a greater than fifty percent chance of occurrence." David P.C. Ashton, Comment, Decreasing the Risks Inherent in Claims for Increased Risk of Future Disease, 43 U. Miami L. Rev. 1081, 1103 (1989); see also Dallas, 689 P.2d at 277 (stating medical testimony regarding future medical treatment must be "based upon an opinion that it is 'more likely than not'"); Webster's New Universal Unabridged Dictionary 1433 (1983) (defining "probable" as "that which is likely to be so, or more likely to occur than not to occur").
Here, Dr. Bryan's trial testimony had been taken by videotaped deposition. The actual testimony was thus before the trial court when it considered Union Pacific's pretrial motion to exclude the testimony. In pertinent part, the exchange between Dalebout's attorney and Dr. Bryan follows: Counsel asked, " ou feel that there is a 30 percent likelihood that he will require back surgery; is that correct?" Dr. Bryan answered, "I put down a figure of around 30." Counsel then asked, "And whether or not if this surgery goes about, that he will be able to continue working as an engineer is unknown?" Dr. Bryan replied, "I don't believe if he comes to the point of requiring an operation that he will go back working as an engineer." Obviously, thirty percent is below fifty percent. Dr. Bryan's testimony raised only a possibility--not a probability--of future surgery. Consequently, the trial court incorrectly admitted into evidence this portion of Dr. Bryan's testimony.
Of course, " rror may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected." Utah R. Evid. 103(a). However, we agree with Union Pacific's assertion that a reasonable likelihood exists that this testimony contributed to
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