loss of earnings; and (4) that the jury was given insufficient guidance on how to compute the present worth of any future losses that it found.
Dr. Thomas was at the time of trial and had been since 1972 associated with two other urology specialists in a partnership in South Carolina. In 1973, the three surgeons entered into a partnership agreement to establish their relationship. As it was originally planned, as the senior member of the firm gradually decreased his active practice, Dr. Thomas was to become a full partner. Plaintiff's injury, however, brought about a different result and altered that arrangement.
According to the testimony, the source of plaintiff's claimed loss of earnings was his inability to perform transurethral resections, called TUR's for short, which are one of the mainstays of a urologist's practice. As a result, two specific financial losses would occur. First, there would be a reduction in the income to plaintiff's partnership from that number of operations that he might have been expected to do and consequently a reduction in Dr. Thomas' own share of the income. Secondly, because of an amendment to the partnership agreement brought about by recognition of his impairment, plaintiff was to share in only approximately 32 percent of the remaining partnership income instead of enjoying a series of increases to a full 50 percent share by the year 1980. From this and other information, Dr. Verzilli gave his opinion as to plaintiff's earning capacity to age 65. In addition, he projected what plaintiff's future income might reasonably be subject to the economic growth he found could be expected in his earnings in the future.
Defendant first charges that the Court erred in allowing partnership income figures to be used in establishing Dr. Thomas' loss of earnings. It is asserted that such evidence is not admissible as a measure of one member's individual earning capacity. See, e.g., Sherin v. Dushac, 404 Pa. 496, 172 A.2d 577 (1961); James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960); Dempsey v. City of Scranton, 264 Pa. 495, 107 A. 877 (1919). But while we would certainly agree with this rule as a general proposition of law, the point is simply that it has no application in this case.
The flaw in defendant's argument in this regard is its misunderstanding of the limited use that was made of this evidence. In fact, plaintiff's expert used the partnership figures only to demonstrate the productivity of the firm in terms of the loss to Dr. Thomas in his reduced share of the partnership earnings, and in conjunction with other data, for his opinion on the potential growth of plaintiff's future earning capacity. Unlike the cases which ACMI has cited that have precluded evidence of this sort, the evidence here was not presented as a direct measure of earning capacity, but rather as a basis from which that earning capacity could be derived. It was offered and admitted as a necessary part of the factual background that would allow a reasonable assessment of the loss of earnings to this particular plaintiff.
Moreover, to have excluded the evidence of partnership profits would have left the matter open for an even greater degree of speculation since the jury then would have had only general statistical information unrelated to the facts and circumstances of plaintiff's financial future on which to rely in fixing the amount of damages. Any loss of future earnings which Dr. Thomas would sustain was best shown in terms of the dollar amount represented by his percentage share of the firm's income as controlled by the partnership agreement. This, in effect, offered an estimation of the value of plaintiff's services to the partnership which is the proper measure of damages to be applied. See, Sherin v. Dushac, supra. The plaintiff produced the evidence available and relevant to the question of his future losses. We believe that there was a sufficient basis for the jury to intelligently and accurately have assessed the plaintiff's damages resulting from the impairment of his earning capacity with the requisite reasonable certainty. Cf. Russell v. City of Wildwood, 428 F.2d 1176 (3d Cir. 1970); Frankel v. Todd, 393 F.2d 435 (3d Cir. 1968).
We also find the argument that plaintiff's expert Dr. Verzilli, was not qualified to give actuarial testimony because he was not actually an actuary to be wholly without merit. The voir dire examination revealed not only that the witness was eminently qualified as an economist by profession, but also that he was sufficiently skilled in actuarial theory and technique by reason of his experience. See, Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970); Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967). Thus, having met the minimum requirements for qualification under Pennsylvania law, Kuisis v. Baldwin-Lima-Hamilton Corp., supra.; Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967); Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 80 A.2d 734 (1951), the admission of his testimony was a matter for the Court's discretion. Idzojtic v. Pennsylvania Railroad Company, 456 F.2d 1228 (3d Cir. 1972); Bowers v. Garfield, 382 F. Supp. 503 (E.D. Pa. 1974).
Aside from his qualifications, defendant challenges the substance of Dr. Verzilli's testimony with respect to his opinion, based on the past income history of plaintiff's partnership, statistical data on the earnings of medical partnerships, and general economic trends, that there would be, at a minimum, a three percent annual growth in Dr. Thomas earnings until his retirement. Defendant contends that this whole subject is too speculative and should not have been permitted. Yet, neither Hoffman v. Sterling Drug, Inc., 485 F.2d 132 (3d Cir. 1973) which defendant has cited in support of its argument, nor the case on which Hoffman specifically relies, Magill v. Westinghouse Electric Corp., 464 F.2d 294 (3d Cir. 1972), held that testimony as to "economic growth" could not be considered. To the contrary, both cases imply clearly that future increases in earnings is a proper matter for the jury so long as there is sufficient competent evidence of "probable future salary trends or economic trends"
Hoffman, supra, 485 F.2d at 144, as quoted in Huddell v. Levin, 395 F. Supp. 64 (D.N.J. 1975).
In the instant case, Dr. Verzilli's testimony gave the jury substantial evidentiary support for an award of damages based on future growth of earnings.
It is clear that, at least, the evidence thereof was properly admitted. What weight, if any, was to be given to the testimony was, of course exclusively within the province of the jury.
Lastly, with regard to damages, ACMI contends that the jury was without "appropriate mathematical guidance" as to the method of computing the present worth of plaintiff's future losses. See, Haddigan v. Harkins, 441 F.2d 844 (3d Cir. 1970); Russell v. City of Wildwood, supra. We disagree. Both of the economic experts who testified amply described and illustrated the concept of present worth and applied it to their various calculations. While it is true that the commonly utilized actuarial tables were not introduced in this case, we do not read either of the decisions cited above as mandating the use of such tables as the only evidentiary guidance that will permit the jury "to act rationally and not upon mere conjecture or guess." Haddigan supra, 441 F.2d at 853. Moreover, the court specifically charged the jury here on the manner of computation and the legal rate of interest to be applied.
To the extent that it can ever be made understandable, we believe that the jury here had sufficient guidance on the subject of present worth.
Thus we conclude that defendant's motion for a new trial as to both the punitive and compensatory damage awards must be denied.
IV. MOTION FOR A NEW TRIAL DISMISSAL OF OTHER DEFENDANTS
Finally, we reach the allegation of error that the Court improperly directed verdicts in favor of the codefendant Medesco, Inc. and the third-party defendant, Episcopal Hospital following the opening address to the jury by ACMI's counsel. (See, Footnote 1, above).
It is important to note at the outset, that at trial, these rulings came after plaintiff had sought and was granted leave to withdraw his claims against all other parties besides ACMI. With these actions thus dismissed, there remained only the cross-claim of ACMI against Medesco and its third-party action against the hospital, in both of which ACMI was deemed technically the plaintiff with the ordinary burden of proof. During the course of his opening remarks, counsel for ACMI made no mention whatsoever of these secondary claims preferring instead merely to ask the jury to keep an open mind throughout the trial. Upon appropriate motions made immediately thereafter, directed verdicts were entered, and the actions against both additional parties were dismissed.
The authority of the Court to direct verdicts in this manner is well-established. "Ever since Oscanyan v. Arms Co., 103 U.S. 261, 26 L. Ed. 539, it has been settled that a federal court may direct a verdict for a defendant upon the opening statement of plaintiff's counsel if it clearly appears therefrom that the plaintiff has no cause of action." Morgan v. Koch, 419 F.2d 993, 999 (7th Cir. 1969). As the court stated in Best v. District of Columbia, 291 U.S. 411, 415, 54 S. Ct. 487, 78 L. Ed. 882 (1934):
"There is no question as to the power of the trial court to direct a verdict for the defendant upon the opening statement of plaintiff's counsel where that statement establishes that the plaintiff has no right to recover. The power of the court to act upon facts conceded by counsel is as plain as its power to act upon evidence produced. Oscanyan v. Arms Co., 103 U.S. 261, 263, 26 L. Ed. 539. The exercise of this power in a proper case is not only not objectionable, but is convenient in saving time and expense by shortening trials."