and submitted September 8, 2017
Washington County Circuit Court C145680CV; D. Charles Bailey,
M. Margolis argued the cause for appellant. Also on the brief
was Cosgrave Vergeer Kester LLP.
V. Callahan argued the cause for respondent. Also on the
brief was Vivian R. Soloman.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: In this personal injury case, defendant appeals a
judgment awarding plaintiff economic and noneconomic damages,
contending that plaintiff's evidence was insufficient to
show that plaintiff suffered permanent injury. Consequently,
defendant contends, the trial court erred in instructing the
jury on permanent injury and presenting the jury with
information from mortality tables. Held: Because
plaintiff did not present evidence that his injury would
probably last for his lifetime, and because common knowledge
did not allow the jury to infer that his injury would
probably last for his lifetime, the trial court erred by
instructing the jury on permanent injury and providing
evidence of mortality tables. The error substantially
affected defendant's rights.
Or.App. 77] TOOKEY, J.
personal injury case, defendant appeals a judgment awarding
plaintiff economic and noneconomic damages, contending that
plaintiff's evidence was insufficient to show that
plaintiff suffered permanent injury. Consequently, defendant
contends, the trial court erred in instructing the jury on
permanent injury and presenting the jury with information
from mortality tables. We agree with defendant and,
accordingly, reverse and remand.
summarize all the relevant evidence to evaluate "whether
there was some evidence in the record from which the jury
could have reached a verdict that was consistent with the
[challenged] instruction." Montara Owners Assn. v.
La None Development, LLC, 357 Or. 333, 349, 353 P.3d 563
(2015) (internal quotation marks omitted); see also
id. at 348 ("An instruction can * * * be erroneous
because there is no evidence in the record to support giving
undisputed that plaintiff, who was 78 years old at the time
of trial, was walking by the road near a curve when the
side-view mirror of defendant's car hit his arm, causing
him to spin around and fall down. Plaintiff was taken to a
hospital, where he remained overnight. At trial, the parties
disputed whose negligence-defendant's or
plaintiff's-caused plaintiff's injuries. They also
disputed the amount of plaintiff's damages. The question
relevant to our analysis is whether plaintiff presented
sufficient evidence to establish that he suffered a head
injury that was permanent. On that subject, plaintiff
presented testimony from himself, Barmanche, and Schaible.
a physical therapist, testified that plaintiff was referred
to her by a doctor because plaintiff returned to the hospital
a week after the crash suffering from symptoms of a
concussion sustained during the crash. Those symptoms
included sensitivity to sound, shoulder pain and reduced [294
Or.App. 78] range of motion in his neck, headaches, vision
issues, and "obvious memory and concentration
issues." Over several months during which plaintiff
received physical therapy, occupational therapy, and speech
therapy, he made good progress in his ability to walk and
balance. Overall, plaintiff did quite well.
testified about his symptoms after the crash. He also
testified that, at the time of trial, 18 months after the
crash, he still had headaches, mood problems, and memory
issues as a result. After the crash, he felt
"goofy" and "that doesn't change very
much. It depends on how uptight I get. How much-how much
you-how nervous I get." He explained that, since the
crash, he had had "problems with my head, my mind
wasn't working right. I couldn't remember things. I
couldn't hold onto anything. * * * I'd be talking to
you and then I'd just-* * * If I didn't keep talking,
I'd forget what I was talking about." That problem
continued at the time of trial.
a retired emergency room physician, testified that
concussion-related symptoms like the symptoms plaintiff
experienced after the crash "can last from days to weeks
to months to years even following minor con-cussive
events." "[H]ead injuries that were thought to be
very minor can have prolonged long-lasting consequences on a
long-term basis. And then, probably more so in an elderly
patient than in the younger patient *** how long those
symptoms can last."
counsel asked Barmanche about "the longer term effects
in your experience of a brain injury, of a concussion,
post-concussive syndrome in a man like [plaintiff] in his
state? What types of things and symptoms would he see and how
long would they likely last?" Barmanche responded,
"I mean, it's impossible to say. About 15 percent of
patients that sustain minor head trauma-that is, if they
don't have anything that's detectable on a CAT scan,
but they've been hit or concussed-about 15 percent of
those patients *** will develop long-term symptoms that may
last from months to years following even a benign-what
appears to be a benign blow to the head."
Or.App. 79] Barmanche testified that "[i]t's really
unpredictable about who is going to experience those types of
symptoms, when they're going to come on ...