were caused by the December 14, 1979 accident. Plaintiff acknowledged on cross-examination that after his prior accident, he had been treated by a number of doctors including one who recommended surgery. Plaintiff was informed at that time that absent surgery, he would suffer a twenty-five percent loss of strength. The plaintiff further conceded that after his first injury, he was restricted as far as strenuous work with his left hand and that he had to give up bowling and weight lifting. He also testified that he had problems lifting things after his first injury which he did not experience prior to that injury. Finally, the plaintiff testified that his second injury did not interfere with his hobbies of hunting and fishing. All of these factors were properly presented to the jury, along with the doctors' testimony as to the severity of plaintiff's injury. The resulting verdict was not so grossly inadequate as to warrant the grant of a new trial.
The issues as to the seriousness of plaintiff's injuries and the extent of his disability caused by the incident were sharply, but fairly contested by the litigants. In the final analysis, the resolution was largely a matter of credibility. In light of the conflicting testimony, assuming that the defendant's version of the nature and extent of plaintiff's injuries was substantially accepted by the jury, the verdict in the sum of $5,000 comes well within the rule that the award be full and fair compensation for all injuries received and damages suffered from the accident.
Merely because the verdict may have been less than anticipated or hoped for by plaintiff is no more reason to set aside the verdict and grant a new trial than a verdict that may be substantially higher than expected by a defendant. Under our system of jury trials, litigants inevitably run the risk that the jury's determination of the amount of damages may vary substantially from reasonable expectations of litigants.
(3) Improper Admission of Testimony
Finally, plaintiff contends that the court erred in permitting deposition testimony of defendant's doctor, Charles Sutliff, a board certified physiatrist. Dr. Sutliff examined the plaintiff on February 21, 1980, after the plaintiff's second injury, and advised the plaintiff that his arm would likely get better but that the plaintiff should avoid heavy lifting, particularly in a jerking fashion. Dr. Sutliff advised plaintiff that he could return to work on March 1, 1980.
Prior to his examination of the plaintiff, Dr. Sutliff took a brief history of plaintiff in which the plaintiff informed Dr. Sutliff that he ruptured his biceps muscle in October of 1978. Over objection of counsel for plaintiff, Dr. Sutliff was asked whether he would have given the plaintiff the cautionary instruction regarding lifting in a smooth fashion as a result of plaintiff's first injury in October of 1978. Assuming that the plaintiff had a ruptured tendon in 1978, Dr. Sutliff stated that he would have given the plaintiff the same advice regarding lifting in a smooth manner, without jerking. This testimony was permitted into evidence over plaintiff's objection.
Plaintiff argues that the admission of this evidence was improper because Dr. Sutliff had not examined the plaintiff subsequent to his first injury and before his second injury; because Dr. Sutliff was not shown medical records pertaining to plaintiff's first injury; and because Dr. Sutliff was not given a hypothetical fact situation upon which to base his opinion.
Dr. Sutliff was qualified at his deposition as a board certified physiatrist, that is, a physician who deals in acute musculoskeletal problems and the chronic treatment and rehabilitation of victims of strokes, amputations, spinal cord injuries and so forth. Although he examined plaintiff after the December 14, 1979 accident, he was informed that the patient's history included a ruptured biceps muscle which was not treated surgically. The question asked of Dr. Sutliff was merely whether he would have advised plaintiff to lift in a smooth fashion after plaintiff's first injury, assuming, based on the patient's history, that the injury was a ruptured tendon. Dr. Sutliff testified that his advice would be the same. I think that it was proper to ask the doctor, based upon his knowledge and experience, whether he would have advised a person, such as the plaintiff, with a ruptured tendon, to avoid lifting in a jerking fashion. The doctor had sufficient facts to enable him to reach a rational conclusion. To the extent that Dr. Sutliff's opinion was based on certain imponderables, the jury, of course, could properly accord Dr. Sutliff's opinion less weight. The admission of Dr. Sutliff's deposition testimony does not warrant the grant of a new trial. To preclude such expert opinion testimony would have unfairly restricted Conrail's right of defense.
Upon consideration of the plaintiff's motion for a new trial and the memoranda in support thereof, and upon consideration of defendant's response in opposition thereto, it is ordered that the plaintiff's motion for a new trial is denied.
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