Rogers v. Dickerson , 180 Okla. 595 ( 1937 )

The plaintiff concedes the rule to be:

"Where the injuries are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must necessarily be determined by the testimony of skilled professional persons, and cannot be determined from the testimony of unskilled witnesses having no scientific knowledge of such injuries." Inter-Ocean Oil Co. v. Marshall, 166 Okla. 118, 26 P.2d 399.

Plaintiff asserts that there was sufficient expert testimony in this case based upon lay evidence to support the verdict. The defendant, on the other hand, claims that the testimony is insufficient because there were undisputed facts not taken into consideration by the expert of the plaintiff and also there was lacking certain evidence which could be supplied only by an expert under the recognized rule.

The plaintiff testified as to the outward appearance of his arm, describing it in a manner that any layman might describe such an injury. Then Dr. E.C. Wilson was qualified as an expert and testified for the plaintiff as follows:

"Q. You heard the testimony of the plaintiff in this case regarding the injury that he sustained? A. Yes, sir. Q. Assuming these facts to be true, Doctor, in your opinion as a physician and surgeon, was the operation such as he had, amputation of the arm, necessary? A. No, sir."

It is, however, apparent from this case that the outward appearance of the arm could not disclose the real nature and extent of the injuries to plaintiff. It was material to know the nature and extent of the bone fractures, the nature and extent of the injury to the arteries, and the nature and extent of the damage to the nerves. There may have been a conflict in the testimony as to certain external manifestations of the injuries, but upon the facts actually shown by the X-ray there was no conflict of testimony. Similarly, the actual condition of the arteries was an undisputed fact.

Plaintiff cites the case of Rogers v. Sells, 178 Okla. 103,61 P.2d 1018. It is clear, however, from that case that the expert considered the X-ray pictures highly important to a correct diagnosis of the case and also considered the actual condition of the arteries as very material. In that case the plaintiff's expert testified that he would have taken an X-ray picture to determine the condition of the patient's foot, and that the mangled or destroyed condition of the main artery should have been determined before, amputation. In effect, therefore, the expert in that case stated that only expert testimony could determine those conditions. In the case at bar X-ray pictures were taken and the true condition of the artery determined before operation.

In the case of Rogers v. Sells, supra, this court held that an expert may give his opinion in answer to hypothetical questions based upon the lay testimony as to commonplace and objective facts. Although such testimony may be competent, it does not necessarily follow that it is sufficient to make out a case. Proof of other facts in the case may require expert testimony. Certainly in this case the interpretation of the X-ray pictures required an expert's knowledge, and a layman would not be qualified to tell whether an artery was so mashed or mangled as to be irreparable.

We think this case falls within the rule announced in the case of Inter-Ocean Oil Co. v. Marshall, supra, as to those facts which were not obvious to the eye, specifically as to the extent of the injuries.

The testimony of defendant's experts related to the conditions shown by the X-ray pictures as well as to the probable effects of such conditions. Although an expert on X-ray, plaintiff's expert was not called upon to interpret these pictures. The plaintiff's expert did not see the artery, but admitted it might have been mashed and sealed. The extent of its mashed or mangled condition and the consequent extent of the impairment to circulation could only be determined by persons expert in anatomy or surgery.

Whilst the defendant may not now challenge the competency of so much of the testimony as was offered by the plaintiff, for the reason that no objections were made thereto, defendant can challenge the sufficiency of such testimony to support the finding of the jury. If evidence material and necessary to make a case for plaintiff was lacking, the case should not have been submitted to the jury.

In this case the plaintiff's expert testimony was confined solely to hypothetical questions. Dr. Wilson did not see the patient. He was not asked as to his opinion as to the specific facts actually found concerning the bones, the blood circulation, or nerves.

In order to be sufficient proof to establish the ultimate issue, the testimony of the expert must be such as to embrace the undisputed facts as well as to cover a party's theory based upon disputed facts.

"* * * A hypothetical question propounded to an expert must be based upon all the competent evidence offered on the issue upon which hypothetical question is founded. * * *" Makins Sand Gravel Co. v. Hill, 151 Okla. 214, 3 P.2d 432.

And:

"Where the question assumes facts directly in conflict with the undisputed facts in the case, it is wholly valueless as a hypothetical question. * * *" Johnson v. Clarke (Cal.App.)276 P. 1052.

Plaintiff sued for the wrongful amputation of his arm. It was necessary for him to establish that theory by expert testimony. Skidmore v. Oklahoma Hospital, 137 Okla. 133, 278 P. 334; Coulter v. Continental Oil Co., 130 Okla. 199, 266 P. 463; St. Louis S. F. Ry. Co. v. Criner, 41 Okla. 256, 137 P. 705; Willett v. Johnson, 13 Okla. 563, 76 P. 174. In this he has completely failed. In view of the undisputed and uncontradicted evidence of defendant, showing the extent of plaintiff's injury and the consequent necessity for the amputation of plaintiff's arm in order to preserve his life, I am of the opinion that the trial court erred in refusing to direct a verdict in favor of defendant.

For the foregoing reasons I dissent.