In trial of a motor vehicle personal injury case, an orthopedic doctor testified that there was a 45% possibility that the injured plaintiff would have neck surgery in the future due to the injury. The defense claimed on appeal that the doctor’s testimony amounted to only speculation and the trial court erred in letting the jury hear and consider that evidence. However, the Western District of the Court of Appeals, in Westerman v. Shogren, Slip Opinion WD74066 (filed June 19, 2012), disagreed with the defense and held that the trial court properly admitted the doctor’s testimony of a 45% possibility of future neck surgery.
The court of appeals noted that Missouri law clearly permits a jury to consider evidence that future surgery might be needed. All that is necessary under Missouri Approved Jury Instruction 4.01 is that the evidence support the proposition that the injured plaintiff is reasonably certain to sustain the future medical treatment.
Perhaps the importance of this case is that it indicates that a 45% possibility is enough to be reasonably certain.
But one wonders where a court would draw a line? What if the possibility of surgery was only 10%–20%–30%, and so on?
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068
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