dissenting.
I am constrained to dissent from the disposition of this case according to the majority opinion. I am in agreement with the disposition of the issue relating to burden of proof with respect to successive injuries, and I have no difficulty joining in that aspect of the opinion addressing court costs. I cannot agree with the disposition of the standard with respect to proof of damages.
In Wyoming, we have a long-standing rule that damages cannot be the object of speculation or conjecture. E.g., Reiman Construction Co. v. Jerry Hiller Co., 709 P.2d 1271 (Wyo.1985); Krist v. Aetna Casualty & Surety, 667 P.2d 665 (Wyo.1983); Chrysler Corp. v. Todorovich, 580 P.2d 1123 (Wyo.1978); Opheim v. United Mobile Homes, Inc., 511 P.2d 1289 (Wyo.1973); Blakeman v. Gopp, 364 P.2d 986 (Wyo.1961). This rule has been expressed by using the phrase “reasonable certainty” in our cases. In Blakeman, the phrase was invoked with respect to future damages.
We have, however, developed an anomaly in the law. We have adopted as elements of damages for personal injuries future pain and suffering, future loss of enjoyment of life, future loss of earnings, future medical expenses, and future caretaking. The majority of the court very perceptively note that “none of us can see into the future, * * *.” Ante at 167. Accepting the truth of this statement requires a conclusion that the award of damages for those things to be experienced or incurred in the future inherently is speculative or conjectural. These future damages historically have been allowable to the extent that they were “reasonably certain” to be experienced or incurred. The use of the phrase “reasonable certainty” with respect to these elements of damage can best be perceived as an effort to balance the rule which says that damages cannot be the object of speculation or conjecture with the knowledge that damages for personal injuries do not necessarily end at trial, and yet future damages must be the object of speculation and conjecture. There perhaps is inherent wisdom in the use of the phrase “reasonable certainty.”
The majority, as I understand this case, now proposes to substitute the standard of “reasonable probability” for “reasonable certainty.” I suppose that is a choice that the court can make but, if it is to be made, then Hashimoto deserves the opportunity to have the jury consider his future damages according to the proper standard. I object to the conclusion that there is error, but it was not prejudicial because the court simply has substituted its own speculation or conjecture for that of the jury. Our usual rules of jurisprudence do not permit us to do that. Since the court is changing the standard, Hashimoto is entitled to have the damage award retried, and the case should be reversed.
I do not agree, however, that we should change the phrase. My analysis persuades me that a distinction is necessary when the jury is instructed about future damages as compared to past damages. With respect to the latter, I have no difficulty in agreeing with the use of the phrase “reasonable probability.” That is simply another way of describing a burden of proof by a preponderance of the evidence. I might prefer to emphasize the preponderance of the evidence standard. When the problem of instructing with respect to future damages is contemplated, however, we must recognize that we are asking the jury to quantify *171damages that, according to our legal standard, the jury cannot possibly award. If the phrase “reasonable certainty” is perceived as a legal standard, then truly we are presenting the jury with a concept that is antithetical to the rule that damages cannot be the object of speculation or conjecture. I am persuaded that without identifying the justification or the necessity, we have invoked the words “reasonable certainty” as a rhetorical phrase, a communicative device only, which serves to balance the inherently speculative nature of future damages with our legal standard that forecloses speculation in submitting those elements of damage to the jury.
While the instructions of the district court could have described this concept more precisely, they do not depart substantially from the approach that I believe to be correct. The judge did attach the limitation to future damages and did explain that such damages must be susceptible of ascertainment with a reasonable degree of certainty. The phrase was not used in instructing the jury except with respect to future damages. Consequently, I find no error with respect to these instructions. I would suggest the possibility of more precisely explaining to the jury why there is a difference between past and future damages. Perhaps such an explanation would eliminate the need to use the phrase “reasonable certainty.” In the context of the instructions given in this case, which apparently came from the Wyoming Pattern Jury Instructions Civil, I am satisfied that the use of that phrase, when traced into the closing arguments of counsel, presents the most appropriate balance. It is not a legal standard but a communicative effort designed to ameliorate the clear departure from the usual rule that damages cannot be the object of speculation -or conjecture. I would find no error with respect to these instructions.