Lead Opinion
Plaintiff’s personal injury action, arising out of an automobile accident, resulted in a $20,000 verdict in her favor. Defendant appeals, arguing one point, that the trial court erred in permitting an “expert” witness to testify regarding the plaintiff’s “loss of еmployability.”
Plaintiff went to see John Newman (the “expert” witness), manager of the local Alabama State Employment Service, for the stated purpose of “measuring plaintiff’s loss of employability in the labor market.” During the meeting, Newmаn acquired a “history” from the plaintiff which consisted of background information, facts about the accident, and a description of her complaints and “physical condition.” Based on this, and a report from a medical doctor which had been forwarded to him along with a letter from the plaintiff’s attorney, Newman made an evaluation as to the plaintiff’s “permanent loss of employability” in the labor market resulting from “permanent injuries” arising out of the automobile accident. Over objection of the defendant, he was permitted to testify that, in his opinion, the plaintiff was one hundred percent unemployable in heavy industry and twenty-five to thirty percent unemployable otherwise.
Appellant аrgues that Newman’s opinion was based on hearsay information obtained outside the record and was inadmissible.
In Unexcelled Manufacturing Corp. v. Ragland,
“As we view Mr. Newman’s entire testimony in context, it related to the appellee’s employability or, put another way, his decreased earning capacity. The conclusions of Mr. Newman wеre based, as set out in the record, on his personal observations, personal interview and knowledge of job availability in the local job market through years of experience in the employment service of the State of Alabama. To allow such testimony into evidence is, to this court, permissible.”
The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose discretion will not be disturbed оn appeal except for abuse. Baggett v. Allen,
The trial court’s discretion is limited to the qualification of the expert. The admissibility of expert opinion evidence is governed by the rule that such evidence should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. It is not admissible on matters of common knowledge. Alabama Great Southern R. R. v. Bishop,
The subject of employment availability for persons who suffer from a physical or mental impairment is one upon which jurors, for want of knowledge or experience of the subject matter, might be unаble to draw correct conclusions from the facts proved. Hence, expert opinions in this area could be helpful.
Here, there was conflict in the medical evidence as to the extent of plaintiff’s disability. Even in the face of Newman’s testimony about decreased earning capacity, plaintiff testified that she was, in fact, employed after the accident. In view of this evidence, we cannot tell how much weight the jury accorded to Newman’s testimony.
The trial court did not abuse its discretion in permitting Newman to testify as an expert. The use of vocational consultants to testify regarding job availability for persons suffering a disability is not novel, at least in administrative .proceedings. Governmental studies and treatises have been used in administrative hearings held under the Social Security Act. See Rinaldi v. Ribicoff,
This Court dоes not wish to be understood as holding that in all cases evidence of employability by any self-proclaimed expert is admissible, “but as in every civil case where- expert testimony is presented, the responsibility is on the trial court to sаtisfy itself of the requirements of the law regarding admissibility. If this responsibility is exercised with care so that reasonable expert testimony is presented based upon reasonably sound scientific approaches, then this Court will not reverse in thе absence of an abuse of discretion.” Maslankowski v. Beam,
The admissibility of expert opinion evidence by any such vocational consultant is governed by some well settled principles. An expert may give his opinion based upоn his own knowledge of the facts, stating these facts, then his opinion; or, he may give an opinion based upon a hypothetical question, based upon facts in evidence. In either case, the facts known to the expert or hypоthecated must be facts in evidence. Blakeney v. Alabama Power Co.,
An expert is not prohibited from stating his opinion based upon his own investigations and examinations. For example, a doctor can testify as to a patient’s рhysical condition as revealed by an examination conducted by him and history given by the patient. (The reason for allowing the history to be given, is that such history, although hearsay, is “presumed to be made to aid a correct diagnosis and cure
We are unwilling to say that the trial court committed reversible error in permitting Newman to state his opinion regarding the employability of the plaintiff in this case. We also would like to рoint out that we have examined carefully the three assignments of error argued. Each assignment is addressed to the allowance of testimony by Newman. In two of the instances the objections were made on a ground different from that argued here. In the other instance, the error in overruling the objections, if any, was harmless. Rule 45.
Affirmed.
Concurrence Opinion
(concurring specially).
I am in complete agreement with the result reached and the reasoning employed by the majority opinion. Caution should be exercised, however, not to construe the opinion to infer that had the trial Court disallowed Newman’s testimony we would likewise hold such ruling errorless.
The discretion which the law acсords the trial judge in the admissibility vel non of expert testimony is limited to the qualifications of the offered expert witness. See Southern Cement Co. v. Sproul,
It is interesting, indeed, to review the contextual background in which the issue before us in this case arises. Traditionally, these cases (сlaims for personal injuries in damage suits and workmen’s compensation cases) have been submitted to the triers of facts on the expert testimony of medical doctors. Proof of loss of future wages, or decreased caрacity to earn, has generally been left to the exclusive province of the M. D. We have fallen into this error despite the medical profession’s own admonition that their expertise in this field is limited to physiological impairment and their express warning that they do not profess to be experts in the area of occupational disability.'
Ironically, then, we have for so long followed an erroneous practice of depending on proof of decreased capacity to earn by self-professеd non-experts that when an occupational specialist (a true expert in this field) is called for this purpose the reaction is one of shock and dismay; or, stated more bluntly, we have done it wrong for so long that when an attempt is made to do it right an objection is thereby invoked.
To be sure, this is a two-edged sword, fully capable of cutting both ways. This can be illustrated by taking as an example two separate claimants, each being right
Notes
. For the full context of this admonition, see the preface that accompanies each of the disability evaluation pamphlets published and distributed by the American Medical Association.
. For an appropriate charge on the loss of future earnings or future earning capacity, see Alabama Pattern Jury Instructions— Civil, Damages 11.11.