Marnette v. Morgan

HENDERSON, J., concurs a writ- A with STORY ing. ago, “justice” Years was not so

refined, (Justice an old “J.P.” Peace) HENDERSON, (concurring). Pumpkin Justice heard a case in Center. It was a civil case and the combatants agree entirety Although I with the were gusto boisterous with more emanat- involved, legal points the recitation cer- ing legal from the throat than authori- troubling. Example: tain facts is “He has ties. Plaintiff finished with a shout: attempted to contact the children “And, God, Judge, got I've the facts an issue of fact since.” Such remains to be my on side and I’ve been done disputes decided below. Evens such a fac- defendant.” Overcome with the heat of Further, statement. he tual claims to have moment, the old J.P. bellowed: “The proof receiving of Mother child Defendant, stung by Plaintiff wins.” payments, the result of deductions from his justice, this instant anguish: cried out in paycheck working while in Minnesota. “Judge, right. that ain’t You never Father him advocates Mother forbade my heard side of the case.” Struck with seeing the children and denied him momentary fairness, air of the J.P. rights Again, of visitation. the trial court “Well, expressed: okay, go ahead then.” Father, also, must ferret out the facts. presented Defendant then his case. maintains he was threatened Mother finished, When he the old J.P. exclaimed resulting from criminal trial he wherein “Well, in astonishment: I'll be damned! testified for the State of South Dakota as a wins defendant now.” hostility confidential informant. General him, urges, towards he restricted a close

relationship with the children. This should explored by Apparently,

be the trial court.

Father’s mother and sister had interaction See, question. Clay-

with the children in Serr,

more v. 405 N.W.2d 650 It is to be noted that father had an never MARNETTE, James Plaintiff present opportunity testify Appellant, contradicting the mother’s assertions on ec- matter, support; onomic nor for MORGAN, Stephan Thomas Defendant bring out his of threats assertions Moth- Appellee. er and denial of visitation. This Court has temporary, involuntary inability held that a No. 17433. parental to assume the role is not abandon- Supreme Dakota. Court of South Sichmiller, Adoption ment. Matter of 15- SDCL Sept. 1991. Considered on Briefs 11-6, majority set forth in footnote of the Reassigned Dec. 1991. read, harmony, must be with May Decided provides: SDCL 15-11-4 which proceeding When an action or is called hearing, previ-

for trial or or at time thereto, judge may,

ous the court or shown, good direct cause hearing postponed to another be term, next

day of the same or or to such just in view all the time as shall

circumstances. on merits.

Father has not been heard

Reminds me of: Tonner,

Thomas P. Tonner of Tobin & King, Aberdeen, plaintiff appellant. Richardson, Charles B. Kornmann of Groseclose, Aberdeen, Wyly, Kornmann & appellee. for defendant and HENDERSON, (on reassign- Justice ment).

NATURE OF ACTION/PARTIES/HOLDING appeal This very centers around a minor purposes clarity accident. For con- venience, we shall refer to James Marnette Plaintiff/Appellant, as Marnette. We refer defendant, Stephan Morgan, Thomas ap- pellee, Morgan. Marnette was awarded appeals He $924.39. this award based alleged evidentiary error. Determining there was no abuse of dis- disallowing cretion the trial court expert, from a vocational wé af- firm.

FACTS 6, 1985, injured On March Marnette was passen- vehicle which he was a ger Morgan’s was involved in an accident. traveling approximately vehicle was at operated Morgan plan m.p.h. by moving when he struck a vehicle countered this (Weber), which was travel- enjoin Susi Weber on the Morgan, ing in the same direction as but grounds that it lacked foundation and was congested had slowed due to traffic. Web- speculative. The trial court ruled on Mor- propelled by forward er’s vehicle was gan’s motion. It limited Ostrander’s testi- vehicle, struck a owned collision and mony percent impairment to the seven tes- Hanson, passen- in which Marnette was a tified to Marnette’s doctors. The trial per ger, speed at a of two miles hour. court stated there had been no medical testimony that Marnette was restricted brought against Morgan suit Marnette handling types from occupations. certain of 1, 1988, alleging Morgan on March was Therefore, the trial court ruled Ostran- negligent causing the accident. Mar- testimony concerning der’s restricted em- sought damages pain originally nette $30,000.00 ployment speculative suffering was and would not and the amount of special damages permit in the amount its introduction. and $2,500.00. 10, 1991, December he On complaint pain to include and amended ISSUE suffering, disability and economic loss in Did the trial court abuse its discre $250,000.00 special

the amount of dam- by denying presentation tion Marnette’s $3,000.00. ages in the amount of testimony by expert? a vocational We hold trial, Morgan Prior to admitted fault in it did not. causing the motor vehicle accident on 6, jury presented March 1985. The was DECISION only with evidence which related to Mar- by precedent. We are controlled We damages. jury The heard testimo nette’s Marnette, previously held: “The trial court’s ny treating physicians, from have rulings evidentiary presumed and various and other are correct witnesses regarding the extent of Marnette’s dam is a and will not be reversed unless there ages. jury returned a verdict of clear abuse of discretion.” Stormo $1,400.00 $924.39, which was reduced to (S.D.1991) Strong, 469 15-6-68, pursuant to SDCL after Marnette (citing Zepp Hofmann, judgment refused an offer of made Decem (S.D.1989)). ber 1989.* us a calculated effort to We have before trial, Marnette, attempt At they where did not exist. build heighten damages, called Rick Ostrander accident, very Subsequent to this minor (Ostrander), spe- a vocational rehabilitation (Plaintiff) vigorously participated Marnette cialist, testify as to his vocational evalua- sports events. He did not see a doctor employabil- tion Marnette and his loss of eight months after this accident. And until ity. percent Marnette received a seven im- spawned by this was an Aber- advice rating physicians. pairment from his Os- . deen, attorney. point Dakota South to offer to the ef- trander was fact, investigating officer Marnette told experienced thirty fect that Marnette had a Morgan that he was not hurt. percent employment capaci- reduction in his testimony, treating physi- a Medical ty, thirty percent earnings reduction in cian, presented jury that Mar- advancement, unemploy- and an increase of doctor’s orders. nette did not follow his year. Ralph ment of 2.4 weeks each Dr. which is a re- Brown, Exhibit 1 was introduced part evidentiary plan of this history. He Marnette, Mamette’s work testify to then to economic flection of up every year, until opinions. a 40 hour week loss based on Ostrander’s worked by Morgan after his De- pertinent part: The costs incurred reads in "... If * SDCL 15-6-68 $475.61, 29, 1989, finally judgment obtained the offeree offer were cember offer, $1,400.00 accordingly. not more favorable than the the offeree reduced verdict was making pay the costs incurred after the must the offer....” holding context call attention to our of trial. This all went before date Inc., Transport, v. Midwest Coast jury for its consideration. Cozine (S.D.1990), wherein we Testimony, very damning to Marnette’s hearing examiner should said: “The have cause, own mouth: came from Marnette’s as Cozine’s considered other such nothing I “There’s can’t do because expert regarding vocational the loss em- Obviously, is not difficult to accident.” it ployability and the doc- expect damages, [his' to award into Cozine, dollars, 454 N.W.2d at 552. We do when such evidence thousands tor].” However, impales plan heightén holding. Marnette’s dam- from that swerve Here, ages. justified the ver- the evidence depends upon of such admittance alia, testimony Inter no was intro- dict. to the facts of the case. We continue hold any had a duced doctor that Marnette disability may be established that disability. Ivey Dr. revealed that the exist- through testimony other than a doctor. “permanent impairment ence aof medical disability There is a distinction between a automatically support pre- does not rating impairment rating. an In- disability sumption that there is a as well.” stantly, recognize must we that Marnette nothing “There’s do testified: I can’t be- facts for this vo- There were insufficient specialist opinion. cational to his cause state accident.” attempted present to Marnette We note the distinction between a disabil- Ostrander, specialist, from the vocational ity impairment rating. an rating and As plaintiff, that no loss work who claimed . Cozine: stated through time from 1985 1990 would sus- medical Although rat- tain, future, a in his in the reduction 30% ing given by important is doctor and, further, capacity employment; for factor, the extent of loss use does not unemployed would be for 2.4 weeks each necessarily equal the extent of medical year for the rest of his life. Ostrander has added). impairment. (Emphasis training no at He talked medical all. never employer with or Dr. Benson or Marnette’s Id. at Dr. or Bledsoe. He did Winkler with Dr. Cozine, quoted ap- In we further with any not employment examine records proval the American Medical Associa- from Further, Ivey Dr. that Marnette. testified to the Evaluation Perma- Guide tion nothing to that there was indicate Marnette (2nd Ed.1984), wherein Impairment, nent social, employ- from would be restricted it is stated: ment, pursuits. or recreational impairment is Permanent medical related short, “cap” In which was directly to the of the indi- health status placed upon testimony by the disability vidual, whereas can be deter- Cozine, Weidner, court, trial was wise. only mined within context Alberts, Donahue, Hoffman, Miller, infra. social, occupational personal, or de- And, particularly, appellate court when an mands, statutory regulatory or re- focuses a record which reflects that is quirements unable that the individual testimony any there was no elicited from impairment. to meet as a result of perform that Marnette could not doctor added.) (Emphasis Medically, type job. Marnette’s case record, woefully this was weak. Under Cozine, testimony In we allowed the of a where there was no that a loss establish loss of use: vocational to reasonably earning capacity was certain simply is impairment rating “A future, to in the an award for such result There, intended to measure loss of use.” Weidner damage improper. an item of is any activity do Cozine was unable to Lineback, 140 N.W.2d 597 right upper involve the use of the would contradistinction, But, extremity. alia, Mar- We that: “Inter noted above nothing I do nette testifies: “There’s can’t by any no doctor was introduced disability.” this the accident.” that Marnette had a In because of appellate As body, opinions. Experts we owe a ist’s conjure cannot evi- decisis, firmly duty, entrenched stare dence it does not exist. Ostrander light evidence in a most favorable to review prevented giving prevailing party (Morgan); conflict way opinion, expe- Marnette would ing evidence to be resolved rience a reduction in capacity for 30% Royer, the verdict. 359 employment unemploy- and increases of Hoffman have done We year. ment of 24 weeks each this Compare so. nothing his own that “There’s I can’t because of do the accident.” We ease, excep no we note that recognize continue to that a party is bound taken jury tions were instructions. (her) testimony. Stevens, Miller v. patently The trial court was fair to Mar- (1934); 63 S.D. 256 N.W. 152 jury nette in the instructions. The (1967). Am.Jur.2d Evidence § permitted under No. 16 Instruction damages inju future permanent award for Trial did not abuse its discretion. ry. Per Instruction No. could expert, Through an trying Marnette is disability, suffer pain, award damage elevate his claim own above his ing anguish mental experienced and and the overwhelming and evidence reasonably experienced certain to be the produced jury. the before Klatt v. Conti injury, future as a result of the for the Co., 366, nental 409 370 Insurance expenses necessary medical reasonable (S.D.1987); Romey Landers, v. 392 N.W.2d care, treatment and services received and 415, permit 421 We will not expenses the value the reasonable of him to do so. Here, items in the such future. Affirmed. nothing awarded of these items other than some of the bills. This C.J., MILLER, WUEST, J., and concur. jury’s province. all within the As a court,

reviewing required we are to view AMUNDSON, JJ., and SABERS dissent. the evidence and all inferences reasonable in light therefrom a most to ver favorable SABERS, (dissenting). Justice dict winner. Alberts v. Mutual Serv. Cas. join I dissent of the Justice Amundson. Co., 303, 308, 96, 80 S.D. Ins. 123 N.W.2d (1963). Clearly, gave the court 99 trial reading majority opinion A of the careful opportunity Marnette an recover far it violates the shows that letter and/or by way more than he received spirit important this of four recent cases of verdict. 816, Strong, court. v. 469 N.W.2d Stormo (S.D.1991); 820 Cozine v. Midwest Coast cannot, not, We should disturb Inc., 548, Transport, 454 N.W.2d 553-54 clearly unless the this verdict trial court (S.D.1990); Zepp Hofmann, v. 444 N.W.2d its discretion. We also review an abused 28, (S.D.1989); Park 31 and Martino v. this, question thusly: evidence such as Ass’n., 309, Racing 315 N.W.2d mind, judicial Could view law Jefferson case, 312-13 reasonably facts of the have and the (one such a of inadmis

reached conclusion arbitrarily limiting testimony of By the instance)? sibility this Estate Matter of regard- expert the vocational rehabilitation Donahue, (S.D. 393, 395 court ing employability, the trial loss of evidence, 1990). Considering the the trial majority also and the violate reasonably Morgan’s objec court ruled on 19-15-2, 3 and spirit of letter and/or SDCL tion. (Fed.R.Evid. 704). It is 4 703 and conclusion, opin- majority to note that the interesting for finding specialist ex in vain without this rehabilitation ion can searched bade be All pressing opinions sup even one reference these statutes. were this, contrary, majority’s proclamation, ported by despite the evidence. To the by precedent.” against special- the evidence militates “We are controlled 600 ‘cap’ ty argues re- majority The Ostrander’s asserts “[T]he earning garding capacity lost is inconsist- placed testi- upon which was Marnette, made court, ent with statements mony by the trial was wise.” therefore, properly excluded. Other also states majority that: held, however, have “that the extent courts duty, appellate owe a body, As the the facts are inconsistent with to which decisis, to re- firmly entrenched stare weight expert’s opinions only the affects light in a most favorable view evidence given opinions, to the not their admissi- (Morgan); and prevailing party (cita bility.” Grote v. Estate Franklin conflicting resolved to evidence is to be omitted), Ill.App.3d 214 Ill. tions 157 Royer, verdict. Hoffman (1991); 573 see also Dec. N.E.2d 360 (S.D.1984). We 388 Co., v. Dow 863 F.2d Loudermill Chemical so. have done Cir.1988) (factual (8th expert 566 basis an eviden- easy It is to lose one’s focus on testi opinion goes credibility sufficiency ruling tiary when distracted mony, admissibility); not the v. Otis Jones issue which is not even an Co., (11th Cir.1988) 655 Elevator F.2d case, and our ease. In this the issue (weaknesses underpinnings duty simply to whether determine opinion go to its than to its weight rather There- It was. admissible. admissibility); Century Page One Real

fore, for a we should reverse and remand (Tex.App.— ty Naghad, S.W.2d fair trial. 1988) (the Texarkana factual basis AMUNDSON, (dissenting). Justice goes arrives at in this weight If the issue case was whether not to allowing the admissibility); Buege, the trial court in not v. not erred the McPherson toto, (any al testimony (Minn.App.1984) of in I would 360 N.W.2d 344 Ostrander go factual basis precise leged be- deficiencies the concur.1 That is not the issue weight court, expert’s more to the testimo agree this I could fore however. admissibility). ny than to its completely ex- that trial could have testimony. See, e.g., cluded the Black v. court, noteworthy It is also that Nationwide, Inc., 930 F.2d Ryder/P.I.E. hearing testimony the of Marnette after (6th Cir.1991). made a 505 The trial court damning majority as construes which qualified determination that Ostrander was case, loss his still instructed the on to expert, on imposed as an then limitations earning capacity.2 Trial court could of However, testimony. once it allowed this earning the jury instructed on loss of have testify regards the ef- to to Ostrander unless it the evidence war- capacity found percent it impairment, the seven fect of such an instruction. ranted Wheeldon should not have limited Ostrander’s testi- Madison, 374 367 N.W.2d mony impairment how effected about that must be factual data While there some earning capacity opinion expert, future or fu- these support Marnette’s of an majori- need not be admissible employability. ture vocational facts occupations, he cannot certain 1. The defendant moved the court to exclude the that handle testimony he of witness Ostrander since no medical for that. there’s foundation testimony qualifications, no medical had pure speculation, lacking any foundation. read in The trial court's instruction No. 19 court ruled on this defense The trial as follows part as follows: motion: in deter- The factors to be considered ... clarify ruling. will Mr. Os- The court its mining for loss measure of testify can to the 7% trander earning capacity he earned be- include what up might occupations it affect various that his injury capable is fore the and what he no which to 7% but there’s medical ability prior earning injury, after the presented that will allow him has been testify injured person to which the and the extent occupa- he certain that can’t handle earn, age, power injuries life affect for such. tions because there's no foundation So, condition, physical occupation, expectancy, testify you that if want to use him to (Emphasis industry. add- habits skill and ed.) goes might occupation he into he be affected reduction, say up fine but to to a 7% that’s

601 support expert testimony. Stormo, In Dannenberg, Fox v. F.2d 816, 820; (8th Cir.1990), court, Zepp, N.W.2d in discussing 31; expert testimony the admission of under Gallegos, State v. (SDCL 19-15-2), Rule 702 stated as fol- fact, 636-37 In SDCL 19-15-4 lows: interpreted expert has been to allow testi- Rule 702

mony lacking attempt is reflects in foundation.3 liberalize Stormo, governing rules the admission of ex- (citing Zepp, 469 N.W.2d at 820 pert testimony. See 31). J. Weinstein & M. at Berger, Weinstein’s Evidence at 11702[02] based on (1988). 702-30 The Advisory Notes to reports treating physicians, of two the Rule comment that rule is “[t]he deposition a of one of physicians, those broadly phrased. The fields knowl- personal a interview with Marnette. Mar- edge may be drawn are not argues practice nette that it is common merely limited to the ‘scientific’ and rely type vocational on ‘specialized’ ‘technical’ but extend to all information 19-15-3 and SDCL knowledge. Similarly, expert 19-15-4 would admission of Os- viewed, sense, a not in narrow but as a testimony.4 trander’s is further This but- person qualified by skill, ‘knowledge, ex- tressed of Ostrander who ” perience, training or education.’ Fed. practice testified that it is common for a 702, Advisory R.Evid. In Note. Larabee to, part, opin- vocational base his Corp., MM & L Intern. 896 F.2d 1112 ion on impairment rating the medical ren- (8th Cir.1990), quoted approval with by treating evaluating physician. dered or leading scholar’s statement “ ‘doubts about whether an testi- recently This court considered the admis- mony will be useful generally should sibility expert testimony regarding loss ” admissibility.’ resolved in favor of Id. earning capacity. Stormo, we stated ¶ Weinstein, (quoting at 1116 n. 6 long 702[02] that as as the expert’s testimony dis- 702-30).... at closed the basis on which his her relied, earnings loss of future it is for leading This scholar has also written in the jury weight to determine regards the to be jury to consideration of an Stormo, accorded testimony. such 469 as follows: 821 (citing N.W.2d at Martino v. Park The authors have found a more lib- Ass’n., Racing 315 N.W.2d quite prac- eral work in view can well Jefferson tice_ (S.D.1982)). 312-13 in We concluded both cases, jury the mat- [I]n Martino, permanent Stormo and that a brought jurors’ ter is to the by attention partial disability rating provided a suffi- instruction, proper they a show a full cient basis for the trial receive problem the sensitivity to fact often —in evidence an regarding from economist the discounting expert’s opinion the too Stormo, earning capacity. loss of future hearsay much when it is based on or 821; Martino, 469 N.W.2d at secondary or the evidence documents at 311. ought jurors like. We not assume the Zepp, provides: 3. As stated in the basis this rule is SDCL 19-15-4 speeds up permits "that it the trial and the expert may An to state witness be asked his opposing party to attack a weak foundation on inferences, opinions opin- or whether these Zepp, cross-examination.” N.W.2d at 444 ions or are based the witness’ inferences on observation, personal or on evidence intro- provides: 4. SDCL 19-15-3 and duced at the trial seen or heard the particular upon The or data in facts the case witness, knowledge his or on technical of the expert opinion which an may bases or an inference subject, specifying hypothetically first without perceived by be those or made known to opin- question in the the data these on which hearing. type him at or before the reasonably If of a expert are wit- ions or inferences based. An upon by par- experts relied in the may required, ness on or cross- direct forming opinions ticular in field or inferences examination, specify the data on which his subject, upon the the data need facts or not be opinions are or inferences based. in admissible evidence. 602 intelligent Morgan’s vigorous lawyers or than cross-examination re-

are less alert quired specify Ostrander to the data ought And not judges. we inhibit opinions his and court-limited court- giving from much aid as us as inferences The jury limited were based.5 Berger, 3 M. they can. J. Weinstein & opportunity had the to determine then the (1991). Weinstein’s Evidence 11703-29 given weight to be Ostrander’s court-sani- words, In of the other opinion. tized higher than cannot be elevated a level preventing jury I would hold that logic upon which it is the evidence making a of the determination credi predicated being by cross- after attacked bility weight given to be unsani- Then, jury to it is for the examination. opinion, tized constituted an abuse dis opinion. the worth of the measure If, fact, underpinnings in cretion. case, perma- the'present there was a expert’s opinion are weak could be in partial impairment rating admitted nent here, weight goes the case admittedly differed from credibility of the not its opinion and admis proposed opinion on loss of Ostrander’s Co., sibility. Polk v. Motor F.2d Ford rating. employability v. Mid- (8th Cir.1976) In Cozine cert. denied U.S. Inc., Transport, 96 S.Ct. 48 L.Ed.2d 832. west Coast concluded, however, permitted trial court should have Ostran- (S.D.1990), testimony concerning der’s a future reduc rating giv- although a medical employment capacity, in Marnette’s tion important en is an factor to a doctor earnings thirty percent in reduction ad use, of loss of measure loss the extent vancement, and future increases unem necessarily equal the extent use does ployment year of 2.4 each on weeks impairment. found Id. at 552. We earning capacity claim of lost which was an that, fully in order to determine Cozine element contained use, should hearing loss of examiner Then, jury. court’s instructions to the other such as the have considered question credibility weight and the a, expert regarding of vocational given to be this unsanitized employability. Id. loss jury would have been determined present- light vigorous to be cross-examination evi part of denced the record on the determining how ed to assist defense. percent impairment rat- Marnette’s seven ing employability. This testi- affected for a I would reverse and remand new jury in mak- mony could have assisted the trial. ing a full determination of Marnette’s loss earning capacity. Accordingly, the trial tes- court should have allowed Ostrander’s essence,

timony without restriction. expert had

trial determined that the experience, training ed- knowledge, give an would

ucation to jury, superimposed a limit on

assist the but namely opinion, physician rating. case, too, present Corp. could have note the case court in the made We also of Indian Coffee Co., (3d & Gamble F.2d 891 Cir. inquiry Procter for his of Ostrander’s bases 1985), held that court erroneous- if it was not satisfied with the foundation. ly make an excluded where it did not inquiry field as to what data in the matter, routinely rely practical on. As a

Case Details

Case Name: Marnette v. Morgan

Court Name: South Dakota Supreme Court

Date Published: May 13, 1992

Citation: 485 N.W.2d 595

Docket Number: 17433

Court Abbreviation: S.D.