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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. KENDRICK


STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY v. KENDRICK


September 12, 1997
Record No. 961969

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

v.

JOHN F. KENDRICK

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy,
Keenan, and Koontz, JJ., and Poff, Senior Justice


The principal issue in this appeal is whether the trial court
erred in admitting evidence of the anticipated cost of, and lost
wages related to, future surgery. By means of an assignment of
cross-error, we also determine whether the trial court erred in
restricting the testimony of the plaintiff-physician regarding
the need for future surgery.

Plaintiff Dr. John F. Kendrick was injured in a motor vehicle
collision that occurred on March 9, 1994, on Route 460, in
Southampton County. His injuries were described as "a
rotator cuff tear in [his] right shoulder" and "a torn
medial meniscus in his left knee."

Dr. Kendrick sued John Doe, an unknown motorist insured by
State Farm Mutual Automobile Insurance Company (State Farm). A
jury returned a verdict in favor of Dr. Kendrick and against John
Doe in the amount of $100,000, and, by order entered July 2,
1996, the trial court rendered judgment on the verdict. We
awarded State Farm, which filed pleadings in its own name, an
appeal and also granted cross-error assigned by Dr. Kendrick.

To resolve the issues raised by State Farm’s assignments of
error, we look to portions of the testimony of three witnesses,
namely: Dr. William Henceroth, II, Dr. Kendrick, and Gail M.
King.

Dr. Henceroth, an orthopedic surgeon and Dr. Kendrick’s
treating physician, was asked about Dr. Kendrick’s future medical
treatment. The doctor responded that, based upon his most recent
examination of Dr. Kendrick, "no surgery is planned."
Dr. Henceroth added, however, that "were [Dr. Kendrick's] condition to worsen, . . . then we would elect to do
surgery."

Thereafter, over State Farm’s objection, Dr. Henceroth was
allowed to testify about the cost of knee and shoulder surgery
and the amount of time Dr. Kendrick would be out of work if
surgery were performed. Dr. Henceroth stated that the
arthroscopic knee surgery would cost $1,500 and the rotator cuff
surgery would cost approximately $2,000. He further stated that,
in the event of knee surgery, Dr. Kendrick would be unable to
work for two to three weeks, and, in the event of shoulder
surgery, Dr. Kendrick would miss four to six weeks of work.

Dr. Kendrick, whom the trial court had qualified as an expert
witness in the field of medicine, testified that he had no
present plans to have surgery on either his knee or shoulder. He
stated, however, that his condition was getting worse and that he
was "seriously considering" surgery.

Over State Farm’s objection, Gail M. King, a hospital billing
supervisor, was permitted to testify regarding hospital charges
for surgery. She estimated that the hospital charges for rotator
cuff surgery would be $6,500 and the charges for arthroscopic
knee surgery would be $6,200.

State Farm contends that the trial court erred in admitting
evidence of the expense of future surgery and of the resultant
income loss.[2] In allowing this evidence and
in refusing to set aside the jury’s verdict, the trial court had
found that the evidence was sufficient for the jury’s
consideration because it had indicated that Dr. Kendrick
"might" need surgery in the future.

We think the trial court erred.

A medical opinion based on a "possibility" is
irrelevant, purely speculative and, hence, inadmissible. In order
for such testimony to become relevant, it must be brought out of
the realm of speculation and into the realm of reasonable
probability; the law in this area deals in
"probabilities" and not "possibilities."

Fairfax Hospital System v. Curtis, 249 Va. 531,
535, 457 S.E.2d 66, 69 (1995) (quoting Spruill v. Commonwealth,
221 Va. 475, 479, 271 S.E.2d 419, 421 (1980)).

In the present case, the evidence, when viewed in the light
most favorable to Dr. Kendrick, merely suggested the possibility
of future surgery. This evidence was too speculative to form a
basis for allowing the jury to consider damages for future
surgery expenses and for future lost wages.

We next consider Dr. Kendrick’s assignment of cross-error. He
contends that the trial court erred in restricting his testimony
about the need for future surgery.

During Dr. Kendrick’s direct examination, his counsel asked
whether, "to a reasonable degree of medical
probability," he would need surgery on his shoulder and knee
by 1996. The trial court sustained State Farm’s objection and
refused to permit Dr. Kendrick to answer the question, reasoning
that the answer would be "self-serving."[3] The
trial court also reasoned that the testimony was inadmissible
"because [Dr. Kendrick's] not going to operate." We
think the trial court erred.

As previously noted, Dr. Kendrick had been qualified as a
medical expert. Consequently, even though he was a party in
interest and he was not to perform the surgery, he was competent
to express an opinion about his future medical needs. See
Code ? 8.01-396
("No person shall be incompetent to testify because of
interest, or because of his being a party to any civil
action.").

For these reasons, we will reverse the trial court’s judgment
and remand the case for a new trial consistent with the views
expressed in this opinion.

Reversed and remanded.

 

 

FOOTNOTES:

[1] Justice Stephenson prepared the
opinion in this case prior to the effective date of his
retirement on July 1, 1997, and the Court subsequently adopted
the opinion.

[2] Dr. Kendrick contends that
State Farm is procedurally barred from raising these issues on
appeal because it failed to object to the damages instruction
which submitted these issues to the jury. We do not agree.

The record shows that State Farm objected to the introduction
of evidence of the expense of future surgery and the resultant
income loss. Further, State Farm, at the conclusion of Dr.
Kendrick’s evidence and again at the conclusion of all the
evidence, moved to strike the claim for future damages. Finally,
following the verdict, State Farm moved to set aside the verdict
on the ground that the evidence did not support an award of
future damages.

In order for a procedural waiver to apply, the record must
show that a litigant invited a trial court to commit error,
either by failing to object or by agreeing to the ruling. See
Wright v. Norfolk and Western Railway Co., 245 Va.
160, 170, 427 S.E.2d 724, 729 (1993). It is clear from the record
in the present case that the trial court was fully aware
throughout the trial of State Farm’s contention.

[3]
Dr. Kendrick’s counsel previously had vouched the record that Dr.
Kendrick would answer the question affirmatively.

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