Lead Opinion
Thе three appellants filed suit against appellee for damages sustained in an automobile accident. At triаl, the appellee did not contest liability and all three appellants obtained judgments against appellеe. The appellants, apparently unsatisfied with the amount of their verdicts, seek reversal and remand for a new trial. We affirm.
During presentation of the appellants’ case-in-chief, the attorney for the appelleе objected to the admission of the testimony of Ron Baker, a Doctor of Chiropractic, and asked to voir dire the witness. On voir dire the witness gave his educational qualifications and then admitted that he was not on the staff of any hosрital, was not licensed by the state to admit patients to hospitals, was not licensed to perform surgery, and was not licensed to prescribe medicines. The appellee then objected to the qualification of Dr. Baker as an expert. The trial court overruled the objection. The trial court ruled correctly. We follow the general rule that a chiropractor is competent to testify in a personal injury action, as an expert medicаl witness, concerning matters within the scope of the profession and the practice of chiropractiс. Stevens v. Smallman,
Later, during Dr. Baker’s direct testimony, appellants’ attorney was asking questions about appellant Creal Hood’s permanent injuries. The materiаl colloquy was as follows:
Q. Does he have any permanent disability?
A. Yes, sir. We —
BY MR. CAPPS [Appellee’s attorney]: Objection, Your Honor. There’s not a proper foundation laid for his opinion on permanent disability. He’s not qualified to testify or render an opinion regarding permanent disability.
BY THE COURT: I’ll sustаin that, Mr. Young [Appellants’ attorney].
Neither the scope of the profession nor the extent of the practice of chiropractic were developed at that point of the trial, and eleven questions later, with none of the questions being on the scope of chiropractic, the following colloquy took place:
Q. Have you found a permanent impairment of his body?
BY MR. CAPPS: Same objection, Your Honor. He’s not qualified.
BY THE COURT: I’ll sustain that.
BY MR. YOUNG:
Q. From a chiropractor’s standpoint.
BY MR. CAPPS: Same objection.
BY THE COURT: I’ll sustain that.
The appellants contend that the rulings prohibiting the witness from testifying about pеrmanent injuries were erroneous. We have said many times that whether a witness may give expert testimony rests largely within the sоund discretion of the trial court and that determination will not be reversed unless an abuse of that discretion is found. B. & J. Byers Trucking, Inc. v. Robinson,
Appellants’ second point of appeal is that they were all three prejudiced by the trial court’s response of “I’ll sustain that,” to the objection by appellee’s attorney “Same objection, Your Honor. He’s not qualified.” Appellants neither cite cases, nor make a convincing argument on the point, and it is not apparent without further research that the argument is well tаken. In Dixon v. State,
Affirmed.
Dissenting Opinion
dissenting. Doctor Baker was qualified by thе court as an expert witness in the field of chiropractic. His testimony concerning two of the plaintiffs was not challenged by the appellee. However, as to the third plaintiff, there was an objection. The objection was рresented at a point in the testimony when the permanent impairment of the third plaintiff was sought to be established. The following discourse occurred:
COUNSEL FOR APPELLEE: Same objection. Your Honor. He’s not qualified.
THE COURT: I’ll sustain that.
COUNSEL FOR APPELLANT: From a chiropractic standpoint?
APPELLEE’S COUNSEL: Same objection.
THE COURT: I’ll sustain that.
There are two reasons why the court erred in sustaining the objections. First, the witness had earlier been qualified as an expert in his field. Second, the manner in which thе objection was offered and sustained tainted the entire testimony of Dr. Baker. Also, the jury was most likely left with the impression that the chiropractor’s
There is no contrоlling rule or precedent on point in Arkansas; however, by using common sense one would be forced to concludе that prejudicial error occurred. The jury obviously tried to please the trial judge by bringing in a verdict for less than the out-оf-pocket expenses for each of the three plaintiffs.
It is not possible that Dr. Baker somehow became “unqualified” during the progress of the trial. He was asked a question which was clearly within the chiropractic field of exрertise. Back injuries are the main area of concentration of the chiropractic profession. Furthermore, the counsel for appellants limited his question to the field of chiropractic. I think the prejudice to all three plaintiffs is obvious, and I would remand the case for a new trial.