There are two ways to interpret this case: (1) it is incompatible with the Supreme Courts decision in Bleyer v. Gross, 19 Wis.2d 305, 120 N.W.2d 156 (1963), and entitled to no precedential value; or (2) it is an object lesson in careless expert testimony.
The court of appeals concluded that Hanaciks testimony on cross was fatally inconsistent with his testimony on direct; this is not the case.
On direct, Hanacik testified that, over the course of the next 35 years, Weber would have to visit him on average 20 to 25 times annually.
Nowhere in the selected portion of cross-examination does the expression on average occur. Thus, the cross-examination testimony does not contradict the estimate.
A careful reading of Hanaciks testimony reveals nothing more than that he cannot state in any given year how many chiropractic visits Weber will require.
At one point, he stated, next year I may see her only three times. It depends on what is happening with her.
Thus, Hanaciks testimony demonstrates that the best case scenario would be that Weber would only visit him three times in the year. That is still sufficient to support an award of future health care expenses.
In fact, that would be more than the jury awarded. At $60 per visit, three times per year, for 35 years, the award would be $6,300. If the jury found Hanaciks testimony credible (which it clearly did to some degree, or it would not have awarded any future health care expenses), the record contains ample support for the lower award of $5,000. (At 20 times per year for 35 years, the amount would be $42,000).
In all material respects, the testimony by Dr. Hanacik is no different than the testimony of the expert witness in Bleyer which also involved an automobile collision resulting in allegedly permanent shoulder injury. Bleyer, 19 Wis.2d at 308.
The expert in Bleyer testified on the basis of findings and the progress to date, I feel that she will probably require continued medication and drugs… Id. at 310. He added, I feel that this injury has resulted in permanent disability … and she will probably continue to have these symptoms throughout her life. Id. (emphases in original).
Upholding the award of future health care expenses, the Supreme Court stated, The expert medical testimony adduced here was not in terms of possibilities but probabilities and as such there was sufficient competent evidence to support a jury determination that there was permanent injury accompanied by pain which required further treatment. The attending physician, when called upon to testify concerning future medical expenses testified: On a yearly basis, it would probably run approximately $200 to $250, and that this was, On the basis of the past experience of approximately three-year duration of hospitalization, medical care, and drugs, which she has required to date. Id. at 312.
In the case at bar, the court does not cite to any evidence refuting Hanaciks testimony on direct that Webers injuries are permanent, and will require future treatment.
All the testimony on cross-examination establishes is that Hanacik cannot say, to a reasonable degree of professional certainty, that she is going to be in 20 to 25 times in any given year over the next 35 years.
That does nothing to turn the probability of future health care expenses into a mere possibility. The 20-25 times per year is an average, just as the approximately $200-$250 drug bill on a yearly basis to which the expert in Bleyer testified.
As in Bleyer, in which the estimate was based on the past three years of treatment, the estimate here had a similar basis: the past
year of treatment. That the average in Bleyer was based on three years of treatment, rather than one, may make the case stronger in Bleyer, but it is a credibility difference not one which makes the evidence in the case at bar insufficient as a matter of law.
The experts testimony was careless, but, at no point was there a direct contradiction that on average Weber would have to visit him 20-25 times per year, and the evidence was more than sufficient to support the substantially lower award that the jury approved.
– David Ziemer
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David Ziemer can be reached by email.