MALCZEWSKI V. MCREYNOLDS CONSTR. CO., 1981-NMCA-046,
96 N.M. 333, 630 P.2d 285 (Ct. App. 1981)
JOHN MALCZEWSKI, Plaintiff-Appellee,
vs.
McREYNOLDS CONSTRUCTION COMPANY, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1981-NMCA-046, 96 N.M. 333, 630 P.2d 285
Appeal from the District Court of Santa
Fe County, Byrd, Judge
Petition for Writ of Certiorari and
Motion to Quash are Withdrawn June 23, 1981
WALTER J. MELENDRES, MONTGOMERY &
ANDREWS, P.A., Santa Fe, New Mexico, Attorneys for Appellant.
RONALD J. VanAMBERG, F. JOEL ROTH,
SOLOMON, ROTH & VanAMBERG, Santa Fe, New Mexico, Attorneys for Appellee.
Sutin, J., wrote the opinion. I CONCUR: B.
C. Hernandez, C.J., MARY C. WALTERS, J., (Dissenting)
{1} Due to the negligence of
the operator of defendant's truck, plaintiff jumped off the Pojoaque bridge,
landed in the sandy river bed below, and suffered extensive injuries. The jury
awarded plaintiff $360,000.00 and defendant appeals from the judgment entered.
We affirm.
{2} The issues raised in this
appeal relate to the award of damages. We will discuss each of the points
seriatim.
A. The trial court properly allowed Dr. Dillman, an
economist, to testify as an expert on vocational evaluation and prognostication.
Dr. Everett G. Dillman, an economic statistician, testified
on behalf of plaintiff on the subject of damages. He is recognized as a
competent witness whose qualifications are unimpeachable. [Citation omitted.]
See also, Wilson v. Wylie, 86 N.M. 9, 518 P.2d 1213
(Ct. App. 1973) in which Dr. Dillman testified as to the pecuniary value of
decedent's earning capacity.
{4} Defendant claims that the
trial court erroneously allowed Dr. Everett G. Dillman, a noted economist, to
testify as a vocational "rehabilitation" expert. Defendant has not
defined the word "rehabilitation" nor pointed to any Dillman testimony
related to that subject matter.
{5} When Dr. Dillman was
offered as an expert in making evaluations about impaired lost earning capacity
and related matters therein, defendant had no objection to these
qualifications. Defendant wanted to make it clear that Dr. Dillman was not
holding himself out as a vocational or rehabilitation expert. On voir dire of
Dr. Dillman by defendant, Dr. Dillman was asked this question to which he made
this answer:
{*335} Q. You are not
holding yourself out as an expert, as a vocational or rehabilitation
expert? [Emphasis added.]
A. That is not true. I have an expertise in personnel and
vocational evaluation and vocational prognostication.
{6} "Vocational
Rehabilitation Services" is provided for in §
52-1-50, N.M.S.A. 1978 of
the Workmen's Compensation Act. "Vocational rehabilitation arises after
such partial disability has occurred that a workman is unable to return to his
former job, yet he desires to
retrain himself for suitable employment. *
* * He wants to better himself by vocational rehabilitation." [Emphasis
added.]
Ruiz v. City of Albuquerque,
91 N.M. 526, 530-31,
577 P.2d 424
(Ct. App. 1978). See
Lane v. Levi Strauss & Co.,
92 N.M. 504,
590
P.2d 652 (Ct. App. 1979). It is "a means for
retraining an injured
employee in an effort to direct his limited physical capability into other
useful channels of productivity." [Emphasis added.]
Bender v. Deflon
Anderson Corporation, 298 A.2d 346, 348 (Del. Super. 1972).
{7} Vocational rehabilitation
involves methods to be used in retraining an injured person. Dr. Dillman did
not testify in this field of activity.
{8} First, defendant argues
that the trial court allowed the jury to decide the preliminary question of Dr.
Dillman's qualifications. Defendant is mistaken.
{9} Whether a witness is
shown to be qualified as an expert is a preliminary question for the court to
decide.
Reid v. Brown,
56 N.M. 65,
240 P.2d 213 (1952);
Apodaca v.
Baca,
73 N.M. 104,
385 P.2d 963 (1963). "The court has wide discretion
in determining whether one offered as an expert witness is competent and
qualified."
Jaramillo v. Anaconda Co.,
71 N.M. 161, 164,
376 P.2d
954 (1962).
{10} Defendant objected to
Dr. Dillman's qualifications on the ground that Dr. Dillman "is not or has
not been trained as a vocational expert in
rehabilitation." The
court said:
I will [let] the jury decide that particular fact issue. The
witness will be deemed qualified to express opinions before this Court
concerning the evaluation of impaired or lost earning capacity and related
matters. [Emphasis added.]
{11} The court determined
that Dr. Dillman was "qualified." Defendant places emphasis upon the
first sentence that, on rehabilitation, the jury will be allowed to decide
"that particular issue." This issue was not submitted to the jury to
decide. A jury cannot decide whether Dillman was or was not a vocational
rehabilitation expert unless the jury is instructed on the issue or special
interrogatories are submitted. The statement made by the court was an
inadvertent expression. The trial court, not the jury, determined Dr. Dillman's
qualifications.
{12} Second, defendant claims
that the court erred in allowing Dr. Dillman to testify as an expert in
vocational rehabilitation because he was not qualified.
Third, defendant
claims the court's error regarding this "expert" witness was
prejudicial to defendant. Inasmuch as Dr. Dillman did not testify as an expert
in vocational rehabilitation, these points are without merit.
{13} Perhaps, Dr. Dillman's
testimony in some vague way, or by inferences drawn, may have approached the
subject of rehabilitation. Even if it did, his testimony was admissible. We do
not know where "vocational evaluation and vocational prognostication"
ends and "vocational rehabilitation" begins. No objection was made to
the admission in evidence of any testimony of Dr. Dillman before, during or
after his examination, cross-examination or redirect examination. "Failure
to object to the admission of evidence constitutes a waiver of objection, and
in such case the objection cannot be raised for the first time on appeal."
McCauley v. Ray,
80 N.M. 171, 176,
453 P.2d 192 (1968). Even though the
testimony should have been excluded, it is not considered to be erroneous where
no proper objection is made.
Ash v. H. G. Reiter Company,
78 N.M. 194,
429
P.2d 653 (1967). Justice and fairness require that the trial court be alerted
by proper objections to the admission of evidence, and the specific reasons
{*336} therefore, so that the court can pass
upon the objections advisedly and intelligently.
Alvarado M. & M. Co. v.
Warnock,
25 N.M. 694,
187 P. 542 (1919). It has been said, however, that
"[I]t cannot be expected that every objection must state with
particularity each and every element involved."
Hanberry v. Fitzgerald,
72 N.M. 383, 391,
384 P.2d 256 (1963). Nevertheless, we do not believe that
objections to Dr. Dillman's testimony would have assisted defendant in this
appeal. We hold that the trial court did not abuse its discretion in
determining that Dr. Dillman was qualified to testify as an expert witness, and
in allowing his testimony on vocational evaluation and prognostication. In any
event his testimony was admissible because no objection was tendered as to its
admissibility.
B. Refusal of defendant's requested instruction of
impaired earning capacity was not erroneous.
{14} Defendant claims that
the trial court erred in refusing to give its requested non-UJI Instruction No.
36. It reads:
The measure of damages for impairment of earning capacity is
the difference between the amount which the plaintiff was capable of earning
before his injury and that which he is capable of earning thereafter. As
bearing on this question, it is proper to take into account not only the
plaintiff's occupation at the time of the injury but also other occupations
which he may pursue after injury.
{15} The court instructed the
jury in accordance with UJI 14.7. It reads:
The value of earnings lost and the present cash value of the
earning capacity reasonably certain to be lost in the future.
{16} Also given without
objection was UJI 14.22. It reads:
If you have found that plaintiff is entitled to damages
arising in the future, you must determine the amount of damages.
If these damages are of a continuing nature, you may consider
how long they will continue. If they are permanent in nature you may consider
how long plaintiff is likely to live.
As to loss of future earning ability, you may consider that
some persons work all of their lives and others do not; that a person's
earnings may remain the same or may increase or decrease in the future.
{17} Our appellate courts
have not yet discussed the issue of when UJI instructions on future damages
should be used instead of non-UJI instructions. We do know that "* * * the
UJI shall be used unless under the facts or circumstances of the particular
case the published UJI is erroneous or otherwise improper, and the trial court
so finds and states of record its reasons. Rule 51(D) of the Rules of Civil
Procedure.
{18} Defendant argues that
its requested instruction "was crucial" and should have been given.
{19} Rule 51(D) alerts
lawyers and district judges to the fact that the submission of non-UJI
instructions to the jury can result in reversible error unless compliance
therewith has occurred. See,
Williams v. Cobb,
90 N.M. 638, 645,
567
P.2d 487 (Ct. App. 1977), Sutin, J., specially concurring. Attorney are allowed
to request non-UJI instructions or modifications thereof, "where no
applicable instruction
on the subject matter is available."
[Emphasis added.]
Mac Tyres, Inc. v. Vigil,
92 N.M. 446, 449,
589 P.2d
1037 (1979). UJI 14.7 was available and covered the subject matter on that
phase of damages.
{20} The fact that
defendant's requested instruction was "crucial" did not prejudice
defendant. It was ably presented to the jury in final argument and adequately
explained.
{21} Oral argument was a
substitute for the non-UJI instruction. The purpose for which UJI was
introduced in New Mexico was to lessen, not increase, the use of instructions.
{22} Refusal to give
defendant's Requested Instruction No. 36 was proper. It was not erroneous.
C. The judgment was not excessive.
{23} We are not impressed
with defendant's argument concerning the amount of
{*337}
the award as being excessive. If we believed the amount awarded were
shocking, we would set forth all facts relevant to the issue of damages. This
is unnecessary. From the evidence of damages suffered by reason of "pain
and suffering" and "impaired earning capacity," the jury could
have exceeded the amount awarded.
{24} Cost of this appeal
shall be paid by defendant.
HERNANDEZ, C.J., concurs.
WALTERS, Judge, dissenting.
{27} Witness Dillman, after
stating his education and experience, was offered "as an expert in making
evaluations as far as impaired lost earning capacity and related matters
thereto [sic]." Defense counsel at that point stated to the court:
I do not have any objections to his qualifications as stated.
I want to be clear that Dr. Dillman is not holding himself out as a vocational
or rehabilitation expert.
To which counsel for plaintiff again said
I have offered him as an expert in the area of giving expert
opinions and evaluations of lost earning capacity or impaired earning capacity
or earning capacity and related matters thereto.
Upon defendant's request to voir dire the witness, the
entirety of the objection and the court's ruling referred to in the majority
opinion was as follows:
Q. Dr. Dillman, you recognize that aside from the field of
economics, that there is a recognized field of rehabilitation and vocational
training?
Q. You are not holding yourself out as an expert, as a
vocational or rehabilitation expert?
A. That is not true. I have an expertise in personnel and
vocational evaluation and vocational prognostication.
MR. MELENDRES: I have no objection to him testifying as to
the economics and to the statistics as to impaired earning capacity, but it is
my understanding of his background and training, that he is not or has not been
trained as a vocational expert in rehabilitation.
THE COURT: I will let the jury decide that particular fact
issue. The witness will be deemed qualified to express opinions before this
Court concerning the evaluation of impaired or lost earning capacity and
related matters.
{28} Thereafter, during
Dillman's direct examination, he was asked if he had an opinion of plaintiff's
present earning capacity. He responded:
I feel that it would be very unlikely, given the physical
condition, the experience and training and given the type of jobs for which he
would have to compete in a very competitive labor market, it would be very
unlikely that John would be able to obtain and retain any type of substantial
gainful employment. He would be lucky, but I think that situation is very
unlikely, anyway not in this area.
For all intents and purposes at this time he has a zero
residual earning capacity.
[B]ased on what the medical depositions have revealed and
what I understand from John to be his functional limitations, especially strong
in areas of standing and sitting and lifting and carrying and walking around,
there is no question whatsoever that he is completely, 100 percent, totally
disabled for any type of heavy work, and because of the functional limitations
for standing and sitting where he cannot do either one of them for very long
periods of time, the type of job for which he would be suited would be those
which he has an opportunity to be a master of his own time. He can sit for
awhile and stand for awhile, he can walk around for awhile and maybe lie down
to rest his back or stand with his back against the wall, which is one way to
rest it. These jobs are just not overly {*338}
in abundance. There are some jobs, however, such as a dispatcher for a taxi
cab company, where a person would have a lot more leeway. There are few jobs
like that, possibly somebody who worked in a parking lot, like out at the
airport. These jobs however, there are two major drawbacks. There are lots of
people trying to get them, people who are not injured, and it is very, very
difficult to get them, but assuming that he could get one, these jobs are
essentially minimum wage type jobs. They pay approximately the federal minimum
wage, from then the upward movement is only when the minimum wage gets changed
and the minimum wage at the present time is $3.10 per hour. So I feel that the
best that he could do would be a minimum wage type position, but I really think
even that would be tough to get.
{29} Defendant's expert
witness Mackler, whose career as "a certified disability evaluator and
vocational rehabilitation counselor" in public, private, and
self-employment spanned 24 years at time of trial, was asked whether plaintiff
was disabled from doing heavy work, and he replied:
That has been determined by the physicians. They have
restricted him to light and sedentary type of work activities. He is incapable
of doing heavy work.
Concerning the information obtained from physician's
examinations of plaintiff, and its relationship to evaluating plaintiff's
vocational rehabilitation potentials, the witness testified:
What I am concerned with the physician's function to
determine what is known as residual functional capacity. What exactly can the
individual do in terms of sitting, standing, walking, lifting, carrying,
pushing, pulling; all of the physical activities that are normally associated
with the work activity. Then, on the basis of that, I make a determination as
to what jobs are appropriate that he can do. Now, based on the opinion of the
medical doctors and this is unanimous, he is capable of a full range of
sedentary light work if he is able to make positional changes.
* * * * Sedentary work is the ability to sit, to sit for
eight hours a day, to lift five pounds frequently with a maximum lift of ten
pounds. That also means the ability to get up and move around and move files,
carry ledgers, walk up and down stairs, or if an individual sits but is
required to use hand and foot levers frequently, this is put into the light
work range activity. Light work is the ability to stand or sit eight hours a
day, and the ability to lift ten pounds frequently with a maximum lift of
twenty pounds.
Q. Now, based upon your interviews with Mr. Malczewski, the
testing that was done and your review of the medical information; do you have
an opinion whether Mr. Malczewski is able to do light or sedentary type work?
A. That has been determined by the doctors. He is able to do
it.
Mackler then outlined work he knew was available and for
which plaintiff was qualified or could be trained to do "and stop being
unhappy about not being able to do what he did in the past." Some of the
jobs the rehabilitation expert described were electronic assembler, mechanical
assembler, casting bench jobs, office machine repairman, dental lab technician,
and small appliance repairman. The scale of wages for those jobs ranged from
the lowest starting salary of $3.83 per hour to the maximum skill rate of
$18,000 per year.
{30} The definition of
vocational rehabilitation give in the majority opinion as "methods to be
used in retraining an injured person" is incomplete. That is only a
portion of vocational rehabilitation; as witness Mackler testified, in order to
know which "methods" will be used, the vocational rehabilitation
expert intensively examines the subject's educational and vocational histories
in detail; he observes how the injuries sustained affected the person's
activities in his daily life; he consults with the subject's physicians and
reviews the subject's medical histories; he conducts intelligence, manual
dexterity, and achievement tests; in concert
{*339}
with field psychologists, he does personality testing; he counsels with the
individual to help him choose a new career; he arranges teaching programs for
retraining the injured person; he encourages job training where the trainee
will be able to gain confidence and regain his self-image and self-esteem; and
he maintains a currency in knowledge of job requirements, job availabilities,
and job pay scales. "Rehabilitation is the restoration of an individual to
his greatest potential -- physically, mentally, socially and
vocationally."
Jones v. Grinnell Corp., 117 R.I. 44, 362 A.2d 139
(1976). It is more than merely a method of "retraining" an injured
person. There was nothing in Dr. Dillman's catalog of education of experience
remotely touching any training or background in the rehabilitation field.
{31} The record shows further
that Dillman talked to the plaintiff once, gave him to tests, did not read or
hear the evidence of plaintiff's treating physician or of a noted examining
physician; he did not observe plaintiff's home situation, and he did not
"go into other things that might be related to his [plaintiff's] work
situation or abilities." Yet Dillman gave an evaluation of plaintiffs'
physical and functional limitations, he assessed the degree of disability
suffered by plaintiff, and he determined the kinds of jobs suitable for and
available to plaintiff. To say, as the majority does, that Dillman did not
testify in the field of rehabilitation is to ignore that part of his testimony.
{32} I do not dispute that
Dr. Dillman is, as Judge Sutin wrote in
Torres v. Sierra, supra, a
recognized expert in the field of economic statistics. I do not agree, however,
that a witness qualifies himself as "a vocational or rehabilitation
expert" by the bare assertion that "I have an expertise in personnel
and vocational evaluation and vocational prognostication." This is indeed
a far cry from the list of credits Judge Sutin considered necessary before a
polygraphist's qualifications could be considered as established, in
State
v. Alderete,
86 N.M. 176,
521 P.2d 138 (Ct. App. 1974). Even so,
self-endowed expertise does not satisfy the requirement for foundational
evidence of professional, scientific or technical training, or sufficient
practical experience, to prove a special knowledge in a particular subject or
field of expertise not shared by persons in the ordinary walks of life.
See
Lay v. Vip's Big Boy Restaurant, Inc.,
89 N.M. 155,
548 P.2d 117 (Ct. App.
1976) (meteorologist unable to testify as expert on stress caused by wind);
Sanders
v. Smith,
83 N.M. 706,
496 P.2d 1102 (Ct. App. 1972) (non-lawyer
incompetent to give opinion on legal standards);
State v. Padilla,
66
N.M. 289,
347 P.2d 312 (1959) (no evidence of recognized qualifications by
which to measure witness's "expertise").
{33} The quoted portion of
Dillman's testimony should not have been allowed; the judge, not the jury,
should have determined whether there was a proper foundation for Dr. Dillman's
"expert" opinion on plaintiffs' rehabilitation potential.
Winder
v. Martinez,
88 N.M. 622,
545 P.2d 88 (Ct. App. 1976).
{34} Defendant objected, at
the time Dillman was offered as an expert, to any testimony from him "as a
vocational or rehabilitation expert." It was not necessary for defendant
to object again when Dr. Dillman gave the objectionable testimony; the court
had already ruled that the jury would "decide that particular fact issue
[Dillman's rehabilitation expertise]." The law does not require a useless
act.
Wells Fargo Bank v. Dax,
93 N.M. 737,
605 P.2d 245 (Ct. App. 1979).
{35} This case should be
returned for a new trial because of error in allowing inadmissible
"expert" evidence on the most crucial issue in the lawsuit. Dr.
Dillman could testify on lost earning capacity based on a hypothetical
prognosis or statement of plaintiff's physical, functional, mental, social and
vocational rehabilitation; he was not qualified to make a prognosis or
statement himself as a rehabilitation expert.
{36} For the above reasons, I
respectfully dissent.