Appellant E-rTon Dynamics Indus-J trial Corporation appeals the judgment rendered in favor of appellees Mickie Hall and Shay Hall in a products-liability case tried before a jury in Greene County Circuit Court. Apрellee Miickie sued appellant on her behalf and as parent of her injured child Shay, alleging that the all-terrain vehicle manufactured by appellant was defective and negligently manufactured. The jury rendered $100,000 damage awards to each appellee on general-verdict forms. Appellant argues on appeal that the trial court (1) abused its discretion by permitting an expert witness to testify as to рotential future surgery that Shay might undergo, and (2) erred by failing to instruct the jury on vicarious liability of Mickie for any negligence of her ex-husband, Danny Hall, who was driving the vehicle when Shay was injured. We find merit to the first argument and reverse and remand for a new trial.
The testimony presented to the jury revealed the following course of events relevant to the points on appeal. On the evening of August 5, 1999, Danny Hall was driving, a 90cc all-terrain vehicle (a four-wheeler), accompanied by his daughters Shay and Haley. The vehicle was manufactured by appellant, but Danny exchanged some of the parts on the 90cc with those from a 50cc model to make it aрpear to be a 50cc all-terrain vehicle. 1 Shay, almost three years old, sat directly in front of Danny, and Haley, four years old, sat directly in front of Shay. Shay was not wearing shoes. Danny was driving up the incline of his driveway аt about seven or eight miles per hour when he noticed blood. Danny looked down, where he observed that Shay’s toes on her right foot were traumatically amputated. Shay was taken by ambulance to the hospital, where she stayed for five days. Shay’s toes could not be reattached. Shay had three debridement procedures to cleanse the wound that were performed under general anesthesia. Shay was administered intravenous antibiotics and pain medication. Shay was treated in the hospital and thereafter by an orthopedic surgeon, Dr. William Warner. She was released with bandages and a splint on her foot, and shе was prescribed medication to prevent infection and to treat pain. Shay’s medical bills at the time of trial totaled approximately $20,000.
At trial, Dr. Warner’s testimony, as recorded in a deposition, was read to the jury. At one point in the reading, appellant’s counsel objected that the doctor should not be permitted to speculate; this was overruled. Dr. Warner explained that due to Shay’s age at the time of injury, the bones where her toes were amputated could continue to grow under the s'kin of her foot. If that were to occur, revision surgery under general anesthesia would be conducted to remove the prоtruding bone. Dr. Warner stated that he had treated Shay until she was about five-and-a-half years old and that she had healed very well without any bone overgrowth to date, but that he expected her to grow until she was fourteen or fifteen years old. “[A]ny time now until she stops growing, there is a chance for this overgrowth.” When cross-examined, Dr. Warner said “I can’t tell you whether it will happen or whether it won’t happen.” Dr. Warner planned to havе Shay make return appointments every two to three years to check for overgrowth because it was a “realistic risk.” Appellee states that a medical record was admitted at trial demonstrating Dr. Wаrner’s more certain opinion that future surgery would he likely; however, that record does not appear in the transcript.
Appellant objected to this portion of the doctor’s testimony because оf the uncertainty of bone overgrowth. The trial judge determined that he would let the entirety of the deposition testimony be read to the jury, overruling the objection on the basis that the doctor explained the basis fоr his opinion. Appellant argued this point again in a motion for new trial, which was also denied. Appellant argues that this ruling is reversible error. We agree that an abuse of discretion occurred.
The jury was instructed on past and future medical expenses as an element of damages. Arkansas Model Jury Instruction 2204 permits recovery for “[t]he reasonable expense of any necessary medical care” and, if applicable, “including ... the present value of such expense reasonably certain to be required in the future.” Future medical expenses need not be proven with the same specificity as past medical expenses. Matthews v. Rogers,
The issue raised on appeal is the admissibility of Dr. Warner’s testimony on future mediсal expenses. To be admissible, an expert’s opinion must represent his professional judgment as to the most likely or probable result. Jacuzzi Bros., Inc. v. Todd,
Ordinarily, a general verdict is a complete entity that cannot be divided, requiring a new trial upon reversible error. McDaniel v. Linder,
Having decided that the doctor’s speculative testimony was allowed in error, we now consider appellant’s contention that the trial court erred by refusing its jury instruction, as it is likely to arise upon remand. At the conclusion of the evidence, appellant’s counsel proffered the following jury instruction:
E-Ton contends and has the burden of proving that at the time of the occurrence Mickie Hall and Danny Hall were parents of Shay Hall. If you so find, then any negligence on the part of Danny Hаll would be charged to Mickie Hall.
Appellant based this requested instruction on its contention that Danny was negligent in placing his daughter, barefoot, on a vehicle that he had altered and that was deemed by the manufacturer to be unsuitable for children under age twelve. Appellant cites Stull v. Ragsdale,
Appellee counters this argument by pointing out that Mickie and Danny were divorced in 1997, eliminating the family-relation, common care, and common supervision, unlike the married persons in Stull. We agree with appellee.
Appellee also points out that Danny was never made a party to this lawsuit in order for the jury to assess apportionment of fault. A jury should not be permitted to assign a percentage оf fault to a person who is not a party to the suit. See generally Booth v. United States Indus.,
We reverse and remand due to the admission of speculative expert testimony.
Notes
Danny placed parts from the 50cc he owned onto the 90cc. Danny explained that his daughter Haley competitively raced four-wheelers, and by altering the 90cc appearance, Haley used a faster model in 50cc model races.