Caseflicks

Wisconsin Supreme Court • 1960

Powers v. Allstate Insurance

10 Wis. 2d 78 | 102 N.W.2d 393 | 1960 Wisc. LEXIS 372

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Takeaway

In short, Powers confirms that admitted medical opinion and objective findings can support permanent-injury damages, but it also authorizes Wisconsin courts to cure a nonperverse excessive verdict through remittitur to a reasonable amount rather than the lowest defensible amount.

Background

Twenty-year-old Powers, a nursing student, injured her left knee when it struck a car dashboard in a 1955 collision. Her knee was initially cut and badly swollen. Although she missed no academic classes, she was excused from gym for a month and later testified that prolonged standing during her nursing training caused recurring pain and swelling two or three times a week. She also described occasions when the knee buckled.

More than two years after the accident, Powers consulted Dr. Verdone, who diagnosed a torn semilunar cartilage based on audible clicking and found measurable atrophy in her left calf and thigh. The defense orthopedist, Dr. Ansfield, found similar atrophy, believed Powers was sincere, assessed a five-percent disability of the knee, and testified that he did not believe the knee would change in the future. He acknowledged that a cartilage injury was possible, although an exploratory operation would be required to confirm one.

The jury found that Powers had suffered a permanent injury and awarded $5,000 for permanent disability, in addition to $1,500 for pain and suffering. The trial court changed the jury's answer on permanency and entered judgment for only $1,500. Powers appealed. The Wisconsin Supreme Court held that the evidence supported permanent injury, but that the $5,000 award was excessive.

Issues

Issue #1

Whether credible medical evidence supported the jury's finding that Powers sustained a permanent knee disability.

Holding

Yes. The medical evidence was sufficient to support the jury's finding of permanent injury, so the trial court erred by changing that verdict answer.

Reasoning

Wisconsin requires competent expert testimony on permanency when the claimed future effects are subjective and not reliably assessable by a lay jury. Powers's recurring pain and swelling, standing alone, could not establish permanency. But the record contained objective findings: both physicians measured slight atrophy in the injured leg, and Dr. Verdone heard clicking when Powers flexed her knee.

Dr. Verdone testified that Powers had a torn semilunar cartilage and that damaged cartilage does not regenerate or heal. Dr. Ansfield independently assessed a five-percent knee disability approximately three years after the accident and stated that he did not believe the knee would change in the future. From that testimony, the jury could reasonably infer that the disability was permanent.

The insurers argued that the doctors' opinions were incompetent because the physicians examined Powers after suit began and partly relied on her subjective complaints. That objection went to admissibility, however, and the testimony entered the record without a timely objection. Once admitted, the jury could consider it, including Dr. Ansfield's testimony elicited on direct examination by defense counsel.

The Court also rejected the argument that the doctors failed to speak in terms of reasonable medical certainty. A medical opinion need not use ritual words such as 'reasonable probability' if it is expressed as the expert's professional conclusion. Statements such as 'I believe' and a definite diagnosis were adequate; only an opinion stated as a mere possibility would be insufficient.

Issue #2

Whether the jury's $5,000 award for permanent disability was excessive.

Holding

Yes. The evidence did not support a $5,000 award; $3,000 was a reasonable amount for permanent disability.

Reasoning

The evidence showed a relatively limited but lasting knee impairment: intermittent pain and swelling, measurable atrophy, and a five-percent disability. Although an operation to remove a torn cartilage was possible, the record showed that surgery commonly resulted in a normally functioning knee and would involve comparatively modest hospital and medical costs, along with temporary pain, suffering, and lost earnings.

Powers had no legal duty to undergo surgery to mitigate damages. The possible operation was relevant only in deciding whether the proof could justify the jury's $5,000 award. Even accounting for that possibility, the Court concluded that the amount exceeded the range supported by the evidence.

Issue #3

What remittitur option may a court offer when a damage verdict is excessive but not tainted by trial error, passion, prejudice, or perversity.

Holding

A court may allow the plaintiff to accept the amount the court finds reasonable or elect a new trial on damages; it need not reduce the award to the lowest amount a properly instructed jury could have awarded.

Reasoning

The Court adopted the approach previously proposed by Justice Fairchild: when a verdict is excessive without being perverse and without trial error, the plaintiff may choose between a new damages trial and judgment for a fair and reasonable amount set by the court. This approach protects the defendant against the excess while giving the plaintiff a more meaningful alternative to another trial.

The Court concluded that the Wisconsin Constitution's jury-trial guarantee did not prohibit this form of remittitur. Courts historically possessed the power to set aside excessive verdicts and order new trials. The power to determine that one amount is excessive necessarily includes the power to determine an amount that is not excessive.

Earlier Wisconsin decisions had required remittitur to reduce damages to the lowest amount an unprejudiced jury might properly award. The Court found that rule inconsistent with earlier Wisconsin authority and with the prevailing practice in other jurisdictions and federal courts. It therefore overruled Heimlich v. Tabor and Campbell v. Sutliff insofar as they treated a reasonable-amount remittitur as unconstitutional.