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Hobbs v. Harken6/9/1998
. See also Coppedge v. Missouri Highway and Transp. Comm'n, 809 S.W.2d 164, 167 (Mo. App. 1991) (court did not error in sustaining objection to hypothetical to expert which assumed facts not in evidence because "an expert's opinion must be based either upon facts within the expert's personal knowledge and observations or upon facts supported by competent evidence.").
Applying these principles to this case, the manner in which the question was put to Dr. Ward below would have been adequate if the injuries which Dr. Ward assumed affected Mr. Hobbs' earning capacity were established by the testimony of medical experts. This is because an expert can base his opinion on hypothesized facts if the facts are Aeither in the record or admissible as evidence." Lytle v. T-Mac, Inc., 931 S.W.2d 496, 500 (Mo. App. 1996), citing, White v. American Republic Ins. Co., 799 S.W.2d 183, 193 (Mo. App. 1990).
However, it is also a prerequisite that "' hen an expert is asked to assume certain facts are true in order to answer a hypothetical question, those facts must be established by the evidence.'" Lytle, 931 S.W.2d at 500, quoting, Repple v. Barnes, 778 S.W.2d 819, 922 (Mo. App. 1989). We reject Mr. Hobbs' contention that this does not mean he had to present testimony that his injuries and their affect on his earning capacity were reasonably certain to be permanent or to persist for twenty years into the future. The cases he relies on for this argument are distinguishable.
Robinson v. Empiregas, Inc., 906 S.W.2d 829 (Mo. App. 1995), merely held that "inevitably there is a degree of speculation in determining the present value of the wages an injured party would have earned but for his injury ." Id. at 842. It also recognized, however, that the law requires that the evidence which is introduced must "lay a foundation to enable the jury to make a fair and reasonable estimate, " Id., and further held that "the value of a loss of future earnings may not rest upon speculation." Id., citing, Haley v. Byers Trans. Co., 414 S.W.2d 777 (Mo. banc 1967). Rather, it must be proved with reasonable certainty. See, e.g., Thienes v. Hairline Fruit Co., 499 S.W.2d 223, 229-30 (Mo. App. 1973). " easonable certainty contemplates and demands something more than a showing of contingent or speculative occurrences, possible or even probable developments, or conjecture, likelihood and probability." Thienes, 499 S.W.2d at 230 (citations omitted). See also Carter v. Jones Truck Lines, Inc., 943 S.W.2d 821, 827 (Mo. App. 1997) (citations omitted) (an expert's opinion that does not indicate that he is expressing a Conclusion that the purported mishap caused a particular loss with reasonable medical certainty, "is insufficient to support a finding that a particular event caused the ailments in issue. Such testimony expresses only educated speculation, and amounts to nothing more than an assurance that the result was scientifically possible").
Similarly, Milam v. Vestal, 671 S.W.2d 448, 451 (Mo. App. 1984), and cases cited by it, simply recog-nize that "' uture damages' is a term broad enough to include future pain and suffering and intermittent loss of ability to work and earn, and a showing of permanent injury is not essential to a hypothesis and submission of future damage," Id., and that "long continuance of conditions existing at trial is sufficient to warrant giving an instruction on damages from future pain and suffering." Id. at 451. Similarly, we held in McPherson v. Bi-State Development Agency, 702 S.W.2d 129, 131 (Mo. App. 1985), that evidence of conditions justifying an instruction on future pain and suffering "may come solely from the plaintiff and need not be corroborated by medical evidence . . . ."
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