Cross-examination foils future meds

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“Dr. Hanacik’s express concession that he could not give an opinion to a reasonable degree of chiropractic certainty on Mrs. Weber’s future health-care expenses negated his earlier testimony where he purported to give such an estimate.” Judge Ralph Adam Fine Wisconsin Court of Appeals

Evidence was insufficient to support an award of future health care expenses, when the plaintiff’s expert admitted on cross-examination that he could not estimate future expenses to a reasonable degree of professional certainty, the Wisconsin Court of Appeals held on Oct. 14.

Julie L. Weber was injured when her car was struck from the rear by a car driven by Angelene White. Weber was diagnosed with a whiplash injury, and underwent physical therapy. When she did not make a full recovery, she began to see chiropractor George J. Hanacik, Jr.

Weber eventually brought suit against White, alleging negligence, and claiming permanent injuries. Weber offered to settle for $35,000 pursuant to Rule 807.01, and White offered $20,000. The parties stipulated before trial that White was 100 percent at fault.

At trial, Dr. Hanacik testified that Weber had a permanent “shoulder impingement” as a result of the accident, and would need future health care to treat the injury.

Hanacik testified, “Future care for her I would probably say would probably be around 20 to 25 visits a year, probably, on an average. I mean, if it’s better, it’s better. If it’s worse, it’s worse, but when I do it on an as-needed basis, I mean, she comes in when she’s got a problem.” Hanacik testified that each visit cost $60.

The following testimony occurred during cross-examination:

“Q. My understanding is you’ve rendered the opinion to a reasonable degree of chiropractic certainty that she is going to come in 20 to 25 times a year for at least the next 35 years?

A. That is an example of what we’ve seen this year. That does not mean — I mean, next year I may see her only three times. It depends on what is happening with her.

Q. So you are not saying to a reasonable degree of chiropractic certainty she is going to be in 20 to 25 times a year for the next 35 years?

A. No, I’m not. I’m just saying that she is going to be there if she’s got pain.

Q. You can’t really give us any ballpark figure as to how many times you’ll need to see her next year?

A. No, I can’t.

Q. Or the year after that?

A. No, I can’t.

Q. Or 35 years from now?

A. No.”

Dr. Hanacik was the only expert wit
ness to testify on the issue of future health-care expenses, and the jury awarded Weber $5,000 for future health-care expenses.

The total verdict was $36,278.50. Because the amount exceeded the $35,000 offer, Milwaukee County Circuit Court Judge Thomas R. Cooper awarded double costs and interest pursuant to Rule 807.01, raising the total recovery to $43,242.34.

White moved to vacate the award of future health care expenses, but the judge denied the motion. White appealed, and the court of appeals reversed in a decision by Judge Ralph Adam Fine.

Fatal Contradiction

The court concluded that the award of future health care expenses was based on speculation rather than credible evidence, because Dr. Hanacik’s testimony on cross-examination was fatally contradictory to his testimony on direct.

A jury’s award of future health-care expenses is analyzed using a two-part test: (1) there must be expert testimony of a permanent injury that will require treatment; and (2) an expert must establish the cost of the treatment. Bleyer v. Gross, 19 Wis.2d 305, 311, 120 N.W.2d 156, 159-160 (1963).

The plaintiff must demonstrate that the anticipated costs are reasonably certain to occur. Brantner v. Jenson, 121 Wis.2d 658, 663-664, 360 N.W.2d 529, 532 (1985) (“[R]ecovery may be had for reasonably certain injurious consequences of the tortfeasor’s negligent conduct, not for merely possible injurious consequences.”).

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The court held that Weber failed to show the costs were reasonably certain to occur, reasoning, “In this case, there was no evidence from which the jury could infer that Mrs. Weber’s future health-care expenses were reasonably certain to occur because Dr. Hanacik’s testimony was fatally contradictory.”

The court noted that, on direct examination, he testified that, “on average,” Weber would need 20 to 25 visits per year.

However, the court found, “Dr. Hanacik directly contradicted this testimony on cross-examination when he admitted that he could not ‘say[] to a reasonable degree of chiropractic certainty [that Mrs. Weber] is going to be in 20 to 25 times a year for the next 35 years.’”

The court added, “Dr. Hanacik’s express concession that he could not give an opinion to a reasonable degree of chiropractic certainty on Mrs. Weber’s future health-care expenses negated his earlier testimony where he purported to give such an estimate.”

Accordingly, the court reversed the award of future health care expenses. Because the remaining award was below the statutory offer of $35,000, the court also reversed the award of double costs and interest.

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David Ziemer can be reached by email.