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Topp v. Leffers10/21/2005
but the next day she began to feel pain in her lower back. Daub sought treatment with a chiropractor but it brought her no relief. The pain in her back later caused Daub to be hospitalized for ten days and forced her to have two surgeries on her back. Daub eventually filed suit against her in-laws in which she alleged that their negligence caused her injuries. At trial, the trial court excluded both parties' witnesses and exhibits because neither party had filed a witness or exhibit list. Thus, Daub was the only person to testify regarding her injuries. Daub testified that she had minor back problems before the accident. After Daub rested, her in-laws made a motion for judgment on the evidence. The trial court granted this motion because Daub could not prove that the slip was the cause of her injuries without expert medical testimony.
On appeal, Daub argued that her testimony alone was sufficient to permit the case to be placed before the jury. We began by noting that " hen an injury is objective in nature, the plaintiff is competent to testify as to the injury and such testimony may be sufficient for the jury to render a verdict without expert medical testimony." Id. However, we stated that the question of the causal connection between a permanent condition, an injury, and a pre-existing affliction or condition is a complicated medical question. Id. at 877-78. We said, "When the issue of cause is not within the understanding of a lay person, testimony of an expert witness on the issue is necessary." Id. at 878. Turning to the facts of the case, we stated that Daub's testimony is so lacking in probative value on the question of cause in fact that it offers the jury at best only the mere possibility that her back ailment was in fact caused by the slip Mrs. Daub experienced at her in-laws. The distinctions between Mrs. Daubs' various back problems are not objectively discernible, even to Mrs. Daub. The temporal congruity which Mrs. Daub recognized between the slip and her lower back pain is admittedly some evidence of causation, which when coupled with a diagnosis of the nature of her ailment, and an application of scientific principles by one knowledgeable in the treatment of the ailment, may be sufficient to permit a jury to find for the Daubs without resort to speculation. But, in the absence of that additional evidence, Mrs. Daubs' lay report of the facts which she experienced first-hand amounts to nothing more than her own hypothesis that her back ailment was caused by the slip. Alone, Mrs. Daub has established nothing more than the facts which make up her allegation.
Id. We held that the trial court properly granted the in-laws' motion for judgment on the evidence because " o reasonable inference that her in-laws' failure to keep their patio cleared of snow and ice was the proximate cause of Mrs. Daub's lower back problems can be drawn from the testimony of record." Id.
Pursuant to Daub, in order for Topp to carry her burden on the element of causation, it was necessary for her to introduce the testimony of an expert medical witness on this issue. First, like Daub, Topp's complaints were subjective in nature rather than objective. Dr. Reecer explained that a complaint or an injury is objective when it can be discovered through a "reproducible physical exam or diagnostic studies that are independent of the patient telling you what they feel or where they feel it." Appellant's App. at 176. A subjective complaint or injury is perceived or experienced by a patient and reported to the patient's doctor but is not directly observable by the doctor. Id. Here, Topp complained that her pre-existing injuries were aggravated by the November 2000 accident. Thus, Topp's injuries were subjective
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