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Hobbs v. Harken6/9/1998
Opinion Summary:
Mr. Hobbs was injured in a multi-car accident. The jury awarded Mr. Hobbs $340,000, finding Mr. Harken was 34% at fault and another driver was 66% at fault. Mr. Harken appeals, arguing that the trial court erred in allowing plaintiff's economic expert to testify to his future lost wages based on the assumption that plaintiff's injuries would continue unabated for 20 years. In fact, the medical witnesses did not state that the injuries would continue unabated, but only that in some cases they did, but that they could not state the degree to which Mr. Hobbs would recover until he underwent further therapy or surgery. Mr. Harken also argues that an exhibit which contained a summary of the expert's opinions was a testimonial exhibit which should not have gone to the jury.
REVERSED AND REMANDED FOR A NEW TRIAL.
Division One holds: Where, as here, an expert's opinion is based on an assumption, the opinion is hypothetical in nature. An opinion cannot be founded on mere assumption or surmise, but must be founded on facts within the expert's knowledge or upon hypothetical questions embracing facts which have been or will be shown at trial. Here, no medical testimony supported the economic expert's assumption that the plaintiff's injuries would continue for twenty years without change. The court therefore erred in admitting and in refusing to strike his opinion about 20 years of future lost wages.
We reject Mr. Harken's claim that an exhibit which summarizes some of the matters testified to by a witness constitutes the type of testimonial exhibit which prior cases have held cannot be sent to the jury room. The reason that such exhibits cannot go to the jury room is that they are akin to trial testimony. The jury is not permitted to review portions of trial testimony during deliberations, as this would give that portion of the testimony undue emphasis. The same rationale has caused this court to hold that the jury should also not be permitted to review, during deliberations, depositions offered as an exhibit at trial. However, an exhibit is not considered testimonial and is not prohibited from being sent to the jury room just because it sets out or summarizes information which is also testified to by witnesses. That is all that the exhibit did in this case.
Opinion Vote: REVERSED AND REMANDED FOR A NEW TRIAL.
Opinion:
Mr. Harken appeals a judgment against him in this personal injury action arising out of a four-car collision. He argues that the trial court erred in permitting an economic expert to testify to Mr. Hobbs' lost future wages based on the assumption that Mr. Hobbs' vertigo and its effect on his work would continue unabated for twenty years, where Mr. Hobbs failed to introduce evidence at trial that his vertigo was reasonably certain to continue unabated for that period. We agree that where, as here, the only medical evidence showed that Mr. Hobbs had yet to undergo rehabilitative therapies or surgery which his experts stated would improve his vertigo symptoms, and where his medical experts simply testified that symptoms such as his sometimes are mitigated or alleviated and other times continue unchanged, that it was error to admit the economic expert's testimony on future lost wages for twenty years. We disagree with Mr. Harken that an exhibit admitted by the trial court was a testimonial exhibit. Accordingly, we find that there was no automatic prohibition against sending it to the jury. Reversed and remanded.
I. FACTUAL AND PROCEDURAL HISTORY
On December 8, 1994, a four-vehicle rear-end collision accident occurred in the center southbound lane on Interstate 35 in Johnson Coun
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