Garland v. Shull

254 S.E.2d 221 (1979) 41 N.C. App. 143

Josephine H. GARLAND
v.
Bobby McKinley SHULL and Myrtle Baker Shull.

No. 7825SC656.

Court of Appeals of North Carolina.

May 1, 1979.

Byrd, Byrd, Ervin & Blanton, P. A. by Joe K. Byrd and Robert B. Byrd, Morganton, for plaintiff-appellee.

Mitchell, Teele & Blackwell by W. Harold Mitchell, Valdese, for defendants-appellants.

MITCHELL, Judge.

The defendants assign as error the admission of Dr. Powell's testimony concerning his opinion of the future duration of the plaintiff's headaches. After Dr. Powell was asked the hypothetical question, the defendant objected. The trial court then conducted a voir dire examination of the witness. During the voir dire examination, Dr. Powell testified that it was his opinion "That these headaches have resulted from the accident, and that although they may not last the rest of her life, they are—they may last for years, the exact length of time I do not know." At the conclusion of the voir dire hearing, the trial court ruled that Dr. Powell could give his opinion. When the jury returned, Dr. Powell was allowed, over objection, to answer the hypothetical question. He then indicated that in his opinion "The headaches may persist for years at least. An indefinite period of time."

"[A] physician testifying as an expert to the consequences of a personal injury should be confined to certain consequences or probable consequences, and should not be permitted to testify as to possible consequences." Fisher v. Rogers, 251 N.C. 610, 614, 112 S.E.2d 76, 79 (1960). See generally, Annot. 75 A.L.R. 3d 9 (1977). Testimony tending to indicate that an event may occur is an indication that the occurrence of the event is possible, but it is not an indication that the occurrence of the event is certain or probable. Therefore, the trial court should not have permitted Dr. Powell to testify regarding pain which in his opinion the plaintiff may suffer in the future. That testimony was likely to have caused the jury to award compensation for future pain and suffering when, in fact, it was not competent evidence of such future injuries. Therefore, the admission of Dr. Powell's opinion with regard to possible pain and suffering by the plaintiff was prejudicial error which will require a new trial.

The defendant has brought forth and argued additional assignments of error. We need not discuss them, however, as they are not likely to recur during a subsequent trial of this action.

For the reasons previously set forth, there must be a

New trial.

ROBERT M. MARTIN and WEBB, JJ., concur.