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Hobbs v. Harken6/9/1998
nt or would last twenty years into the future, however. In fact, in explaining what he believed would be the future course of Mr. Hobbs' injuries, Dr. Coffman stated only:That's going to be harder to ascertain simply because so much of that is subjective. And as he improves with time and he has improved over the past year and a half that I have talked to him. He's still having and complaining of unsteadiness. It's obviously compromised his job performance but that's going to be harder to quantify as far as permanence of that injury but I would say if he gets into rehabilitation he's going to be improved. The question is will he ever be normal and I don't know anyone can answer that at this point in time. It's just hard to say. I can['t] answer about the hearing loss because we have objective data that says that hasn't changed in almost 2 years but his unsteadiness may or may not improve based on therapy and treatment so I couldn't answer that question.There was no other medical evidence regarding the permanence or persistence of Mr. Hobbs' vestibular disorder. In fact, the testimony indicated that Mr. Hobbs' symptoms, which were what affected his ability to work, would improve or disappear with therapy and, perhaps, ultimately, with surgery. As was true in First National, and in Rust, Dr. Ward's opinion estimating future damages thus lacked a substantial evidentiary basis for his assumption that, to a reasonable degree of medical certainty, Mr. Hobbs' vestibular injury would persist unabated for twenty years. Accordingly, the court erred in admitting Dr. Ward's opinion. We cannot say based on the evidence and the size of the verdict that this error was not prejudicial, for the amount awarded by the jury was in excess of the amount of past and future lost earnings and medical expenses testified to by Dr. Ward. We thus reverse and remand for a new trial on all issues.
IV. ADMISSION OF EXHIBIT 29
In his second Point Relied On, Mr. Harken claims that the trial court erred in admitting Exhibit 29, a summary of Dr. Ward's opinion about future income loss, because the exhibit lacked the same factual and evidentiary foundation as did Dr. Ward's testimony. This argument is governed by our analysis of Point I, and need not be separately addressed here.
In his third Point Relied On, Mr. Harken claims that the court erred in allowing Exhibit 29 to go to the jury during deliberations. To understand this objection, it is necessary to set out the events surrounding the admission of Exhibit 29. As just noted, Exhibit 29 was a chart indicating Dr. Ward's estimated damages, including future and past income loss, and was admitted into evidence over Mr. Harken's objection. While Exhibit 29 stated Dr. Ward's calculations regarding Mr. Hobbs' loss of income, it nowhere indicated the assumptions on which Dr. Ward's calculations were based. When Mr. Harken tried to write the assumptions underlying these calculations on the exhibit during cross-examination, Mr. Hobbs objected that this writing might "distort the meaning of the exhibit" and suggested that Mr. Harken write on something separate. Mr. Harken stated that the assumptions should be placed on the exhibit "because if the jury asks to take it back into the jury room later they need to know what the assumptions are." The court responded that "neither of these exhibits probably should go to the jury because they are testimonial. Testimonial exhibits don't go to the jury." Mr. Harken stated that if the exhibit was not going to the jury, then he did not need to mark on it.
During jury deliberations, the jury requested Exhibit 29. The court initially refused the request, stating that it "considers that a testimonial exhibit and it will not go u
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