Noblesville Casting Division of TRW, Inc. v. Prince

PIVARNIK, Justice,

concurring in result only.

I concur in result only because I cannot agree with the Majority that the opinion or conclusion of an expert based only on “possibilities” is probative evidence.

The Majority has very well stated that liability or an award of damages may not be predicated purely on speculation or guess. Neither can evidence which speaks only to possibilities be admissible as probative evidence, regardless of the status of the witness giving it. In its analysis, the Majority pointed out that in Palace Bar, *738 (1978) 269 Ind. 405 , 381 N.E.2d 858 , the reliability of the analytical methods employed were stated as “possibilities,” since the doctors testified that it was possible that death could be caused from certain events. Therefore the total testimony of the expert witness was based on possibilities. In Kostamo v. Marquette Iron Company, (1979) 40 Mich. 105 , 274 N.W.2d 411 , medical experts testified that stress can cause heart attacks; that the effects of stress are exacerbated by arteriosclerosis; that the opportunity for a heart attack increases thereby and that stress may be the product of anxiety, fear, exhilaration, fatigue, and environmental conditions. Thus, it was stated not as possibility but as accepted in the fields of medical learning that these things are true. When we speak of “reasonable medical certainty,” we are speaking of this type of learning and this type of acceptance of fact. Reasonable medical certainty does not mean absolute certainty.

It is true that when we attempt to qualify degrees of certitude in the terms employed by witnesses, we can get into problems of semantics. It is also true, however, that when we deal with expert witnesses we are dealing with people with a high level of education, knowledge, and understanding and who are certainly able to express themselves. We are also dealing with witnesses who are not eyewitnesses to anything but who are giving opinions based on facts given to them or conditions they observe at the time. It is impossible for every expert witness to testify with certainty that a given scientific fact or result is apparent. But by applying his experience in the field and the analytical processes to which he testifies, his certainty must be of such a degree that it is more than a bare possibility. As the Majority has amply pointed out, in our pronouncements and those of other jurisdictions, when an expert witness has testified that his conclusion is based on “probabilities” or could be as a result of his observations, then this has been admissible. Precise and exact words need not be required but testimony must be given that has some probative weight and value. When any expert witness is asked if a certain thing is possible there is hardly a time when he could answer other than, “yes, it is possible.” This is of no value in the fact-finding process.

In this case, Dr. Norman actually expressed more than possibilities. Even though he used the word “possible” in some of his statements, his resultant analysis connoted more. I agree that there were facts and circumstances presented from which the Board could reasonably find that Prince’s injury could reasonably have been considered an aggravation of a pre-existing condition. This is also true from Defendant’s testimony and from other witnesses who observed him both at the time of his injury and subsequent to it. Dr. Norman’s testimony can also be interpreted in this manner. His testimony in sum was that even though Prince had a pre-existing condition, the accident described could have contributed to an aggravation of that condition. I therefore agree that the award of the Industrial Board should be affirmed.

GIVAN, C. J., concurs.