Evidence insufficient to support award of future health care expenses, court says.

Byline: David Ziemer

Evidence was insufficient to support an award of future health care expenses, when the plaintiff's expert admitted on cross-examination that he could not estimate future expenses to a reasonable degree of professional certainty, the Wisconsin Court of Appeals held on Oct. 14.

Julie L. Weber was injured when her car was struck from the rear by a car driven by Angelene White. Weber was diagnosed with a whiplash injury, and underwent physical therapy. When she did not make a full recovery, she began to see chiropractor George J. Hanacik, Jr.

Weber eventually brought suit against White, alleging negligence, and claiming permanent injuries. Weber offered to settle for $35,000 pursuant to Rule 807.01, and White offered $20,000. The parties stipulated before trial that White was 100 percent at fault.

At trial, Dr. Hanacik testified that Weber had a permanent "shoulder impingement" as a result of the accident, and would need future health care to treat the injury.

Hanacik testified, "Future care for her I would probably say would probably be around 20 to 25 visits a year, probably, on an average. I mean, if it's better, it's better. If it's worse, it's worse, but when I do it on an as-needed basis, I mean, she comes in when she's got a problem." Hanacik testified that each visit cost $60.

The following testimony occurred during cross-examination:

"Q. My understanding is you've rendered the opinion to a reasonable degree of chiropractic certainty that she is going to come in 20 to 25 times a year for at least the next 35 years?

A. That is an example of what we've seen this year. That does not mean - I mean, next year I may see her only three times. It depends on what is happening with her.

Q. So you are not saying to a reasonable degree of chiropractic certainty she is going to be in 20 to 25 times a year for the next 35 years?

A. No, I'm not. I'm just saying that she is going to be there if she's got pain.

Q. You can't really give us any ballpark figure as to how many times you'll need to see her next year?

A. No, I can't.

Q. Or the year after that?

A. No, I can't.

Q. Or 35 years from now?

A. No."

Dr. Hanacik was the only expert witness to testify on the issue of future health-care expenses, and the jury awarded Weber $5,000 for future health-care expenses.

The total verdict was $36,278.50. Because the amount exceeded the $35,000 offer, Milwaukee County Circuit Court Judge Thomas R. Cooper awarded double costs and interest pursuant to Rule...