Brown v. Johnson

¶1(concurring in the result and dissenting).

¶2I concur in the result, but dissent from the majority opinion’s unnecessary and obiter observations concerning speculative damages. The court instructed the jury against awarding speculative damages. There is no evidence that would indicate that the jury did not follow the instructions as they were correctly given by the trial judge.

¶3At the conclusion of the evidence at the second trial, defendants requested that the jury be instructed that they could not award damages for any possible future surgery, and urge error in failure to give their requested instruction to that effect. A review of the record reveals that the court amply instructed the jury concerning speculative or future damages, as follows:

If you find the issues in favor of the plaintiff … it will be your duty to award the plaintiff such damages … he has sustained as a proximate result of defendant’s negligence. However, the plaintiff is not entitled to recover for any speculative damages, by which term is meant compensations for detriment, which, although possible, is remote, conjectural or speculative.

¶4Furthermore, the court required that the damages for medical detriments were to be limited to those “actually” incurred and must not exceed the sum of $377.50.

¶5Without proof of the value of any loss related to future surgery, and in the absence of any jury instruction specifically allowing compensation for future surgery, coupled with a lucid instruction against any type of speculative damages, it must be assumed that the jurors understood that no recovery for medical expenses incident to future surgery could be awarded, and consequently, followed the submitted instructions. Furthermore, on appeal, the court is “obliged to indulge the assumption that they followed the instructions given by the court,” as stated in the concurrence of Mr. Justice Crockett, in Moore v. Denver & Rio Grande Western Railroad Co.1 The jurors’s affidavit quoted by the majority opinion in Footnote 1, (which is unnecessary and only confusing as to use of juror’s affidavit as to what happens in a jury room), established this very point. The affidavit delineates the specific categories in which damages were divided; none reveals any inference of damages for future medical or surgical expenses. It is obvious (even from the majority opinion) that the entire fishing expedition urging that 15 chances out of 100 is not speculation, is quite immaterial to this appeal.

¶6*395The parade of horrors attendant not infrequently in tort litigation is apparent. Any lawyer worth his salt could lead most knowledgeable medical witnesses down the primrose path to the formula interrogatory: “Doctor, would you say that there might or would be a 10-15% chance that the plaintiff will need further medical treatment some time in his life relating to his injury?” Few medical witnesses could resist answering anything but “yes” to that magic formula. As was emphasized by the majority opinion it was just this kind of answer elicited by counsel in the instant case: “Yes, I think Larry has about a 15 per cent chance of requiring surgery.” It is a matter of common knowledge and belief that even to the medico-neophyte most medical diagnoses and prognostications are equivocal. Dr. Clegg, an eminent orthopedic surgeon recognized this in the Moore case when he said, “In medicine, … we cannot come out definitely on things, very often and say absolutely … but we usually qualify our diagnosis.”

¶7I am aware of those cases which deny exclusion of a witness’ testimony regarding pain and suffering endured or to be endured by a party merely because the witness qualifies his observation with words such as “probability,” “possibility,” or “belief.” Picino v. Utah-Apeox Mining Co.; 2 Jackson v. Harries.3 However, the issues regarding admissibility of testimony were not germane to this appeal. The Picino case is further distinguished in that the jury instructions regarding damages simply reminded the jury that in awarding general damages for pain and suffering, account could be taken of pain and suffering which evidence demonstrated that plaintiff would endure throughout his life. There was no instruction allowing the jury to guess about unproved specific future medical treatment.

¶8As the majority opinion now stands it is a carte blanche sanction for an award of compensation to anyone that can find a doctor to answer “yes” to the “15 chances out of 100” formula. I believe the odds would appeal to the Las Vegas bookmaker.

¶9I believe the dissertation about the admissibility of a seven to one odds damage situation, being quite unnecessary and but obiter, — not the law of the case, — should be eliminated from this decision in order not to encourage the existing disquietude among the bench and bar as to the speculative damage area. (All emphasis added.)