Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Keenan, and
Koontz, JJ., and Poff, Senior Justice
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 961969
September 12, 1997
JOHN F. KENDRICK
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
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.
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.
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
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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
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.
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"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
3
be "self-serving." 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
3
Dr. Kendrick's counsel previously had vouched the record
that Dr. Kendrick would answer the question affirmatively.
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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.
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