“[W]here the injury is obscure, that is, the effects of which are not readily ascertainable, demonstrable or subject of common knowledge, mere subjective testimony of the injured party or other lay witnesses does not provide sufficient proof; medical or other expert opinion testimony is required to establish the future effects of an obscure injury to a degree of reasonable 4 certainty.”
How later courts described this case
- “[W]here the injury is obscure, that is, the effects of which are not readily ascertainable, demonstrable or subject of common knowledge, mere subjective testimony of the injured party or other lay witnesses does not provide sufficient proof; medical or other expert opinion testimony is required to establish the future effects of an obscure injury to a degree of reasonable 4 certainty.”
- “In an injury case where the manifestations of the permanent injury may be obscure and the extent of the injury itself may be obscure because of its character, positive medical evidence to a degree of reasonable certainty that the injury is permanent is sufficient to take the question to the jury and to support an award of damages for the future effects of such injury.”
- “Where an objection is made to an instruction for the first time on appeal and such instruction is not so deficient so as to require invocation of the ‘plain error’ rule, in consonance with Rule 51, W.Va.R.C.P., this Court will not consider the late objection.”
- “ ‘[w]here an objection is made to an instruction for the first time on appeal and such instruction is not so deficient so as to require invocation of the “plain error” rule, in consonance with Rule 51, W.Va. R.C.P. [sic ], this Court will not consider the late objection’ ”
Written by the judges who cited it.
The opinion
Neely, Justice,
concurring:
I concur in the result in this case but I respectfully differ from the majority with regard to the reasoning of syllabus points 7, 9, 12, 13 and 15, all relating to the level of proof necessary to sustain a claim for future damages as a result of personal injury. The majority opinion articulates the traditional rule that future damages must be proved to a reasonable degree of medical certainty, but then recognizes that in an area such as brain injury where it is difficult to predict the ultimate effects of an injury it is almost impossible to comply with the rule.
It appears that the traditional rule requiring future damages to be proved to a reasonable degree of medical certainty was developed at a time when lawyers and judges had substantially less sophistication with probability theory and statistics than they have today. Accordingly the rule has been stated in relatively vague language and has been even more vaguely applied to *63 various factual situations. I believe that the real rule which is in practice applied in the courts and which has been applied by this Court in the case at bar is far different from the enigma of supposed logic which is presented as the formal rule. It appears that the formal rules in this whole area of the law can be brought into conformity with the substance of reported cases through the conceptual framework of an 'old folk story called “The Lady or the Tiger” which is known to¡ most school children. *
According to the legend a suitor in the court of a mythical king sought to win the hand of the king’s daughter. As the plot finally developed the young man found himself in an arena surrounded by spectators, including the king, and confronted by two doors, one of which he was required to open. Behind the first door stood a lovely lady (not the king’s daughter) whom the king intended him to marry, and behind the second door stood a half-starved tiger hoping to indulge himself in a dinner of young knight that particular evening. No one knows which door the young man opened, but from the story it may be assumed that he had a fifty percent chance of opening the door with the tiger behind it.
Frequently in damage suits involving possible future impairments the plaintiff finds himself in exactly the same situation as the young knight in the arena. In the story the compensation for finding oneself in the middle of the arena and facing a fifty percent chance of being devoured by the tiger was the offsetting fifty percent chance of riding off in the sunset to eternal marital bliss; unfortunately, in the ordinary law suit there is no offsetting advantage except money damages to compensate the plaintiff for the regretable likelihood that he will suffer injuries in the future.
Under the traditional rule that future damages must be demonstrated to a reasonable degree of medical cer *64 tainty, if the knight in the story were to bring an action against the king for placing him in the arena and for requiring him to open one of the two doors, the knight would not be able to prevail against the king because his probability of being eaten by the tiger would be only fifty percent and thus not demonstrated to the requisite degree of certainty.
Under the rule of law which I would call “The Lady or the Tiger Rule” it is possible to conceptualize the possibility of future medical expenses as a separate injury, in very much the same way that requiring a man to stand in the arena and open one of two doors is in and of itself a separate injury. The fact that a person is confronted with a ten percent, fifteen percent, or twenty percent probability (in the mathematical sense) that he will suffer future injuries should be sufficient to permit him to recover for those future injuries at least in proportion to the probability of such injuries occurring. Therefore, in a hypothetical case, if a man can demonstrate that there is a twenty percent probability that he will have future injuries which would, if they occurred, result in damage to him in the amount of a hundred thousand dollars, he should be able to recover twenty thousand dollars from the defendant, which recovery would represent the injury of incurring a twenty percent probability of suffering one hundred thousand dollars worth of damages.
I believe that conceptually we can consider the possibility of facing future consequences as a separate injury, just as being placed in the arena and being required to open one of the respective doors is a separate injury, without regard to whether the tiger ultimately gets his meal. If in West Virginia the maximum recovery for a wrongful death is a hundred and ten thousand dollars, plus funeral expenses, and the man standing in the arena has a fifty percent chance of releasing the man-eating tiger, then at the moment that he is standing in the arena getting ready to turn the handle on the door he should be entitled to ask the jury for fifty-five thousand dollars plus one-half of his probable funeral expenses (which would be negligible if the tiger does a good job.)
*65 In keeping with the traditional rule, the probability, in the mathematical sense, of future injury must be proved to a reasonable degree of medical certainty. Accordingly a doctor should be permitted to testify that on the basis of his experience and his evaluation of statistical information from recorded cases of similar injuries he believes that there is to a reasonable degree of medical certainty a twenty percent probability of suffering a particular disability. Once it is determined that there is a probability of loss, evidence should then be admitted concerning the maximum expected loss should the victim completely lose in the game of chance he is playing with the fates.
Accordingly the jury would be instructed that from all the evidence they should determine what the overall probability is that the plaintiff will suffer future damages, and that from all of the evidence they should determine the amount of monetary damages to which the plaintiff would be entitled if the disabilities which doctors reasonably believe are possible actually come to pass. The jury would then be instructed to multiply the amount of future damages reasonably to be expected times the probability of those damages actually occurring and arrive at a figure which will compensate the plaintiff for the possibility of future injuries. It would appear that in a major damage suit the jury could be aided by expert testimony with regard to probability analysis to make the problem comprehensible to the average layman.
While this analysis may appear to be overly complicated on first reading, it merely recognizes that mathematical probabilities exist which are less than fifty percent and that when the experts testify that such a probability of under fifty percent exists, it is still possible to award appropriate damages without becoming speculative.
For a complete rendering of this story see:
The Storyteller’s Pack, edited by Frank R. Stockton, Charles Scribner’s Sons (New York, 1968). Page 165.