Mt. Royal Cab Co. v. Dolan

Shehan, J., delivered the opinion of the Court. An action was brought in the Court of Common Pleas of Baltimore City by William E. Dolan, appellee, against the Mt. Royal Cab Company, Inc., Joseph F. Smith, trading as the Mt. Royal Cab Company, and Clarence M. Hoey, appellants, for personal injuries sustained by the appellee on January 28th, 1933, as the result of a collision between a cab owned or operated by the appellants, and an automobile belonging to the appellee, plaintiff, and operated by him.

A judgment in favor of the plaintiff for the sum of $4,500 was entered on September 28th,. 1934, and from that judgment this appeal is taken. In this case the only question for our consideration relates to the admissibility of certain testimony of Dr. Milford Levy, a witness produced upon the part of the plaintiff, and at the end of the testimony in chief of the plaintiff. Several witnesses were produced by the plaintiff, among them Dr. Sheehan, a professor in the Medical School of Yale University, and a brother-in-law of Mr. Dolan. Throughout his testimony Dr. Sheehan expressed numerous opinions, inferences, and conclusions pertaining to the injuries of the appellee, and their effect upon him, all of which were based upon his examination, observation, and professional knowledge.

Other witnesses ⁶³⁵ also expressed their opinions and conclusions concerning these injuries and their effect, based upon observation and contact with the plaintiff. With this general situation in regard to the testimony given by both expert and lay witnesses, Dr. Levy was called as an expert, and asked the following question: “Now, Doctor, based upon that testimony you have either heard or have just had read to you, and assuming that it is all true, will you state to the jury what in your opinion is the cause of the condition that you have found to exist in this patient, the plaintiff, Mr. Dolan, at the time you examined him on September 22nd, last?” Over the objection of the defendant the witness was permitted to answer the question. Dr. Levy then answered, as follows, “Having heard the evidence in this case, and assuming the evidence to be true, plus the result of my examination and investigation of Mr. Dolan, it is my belief that this condition is the result of an injury to his brain, cerebral concussion at the time of the injury, plus the effects of a marked nervous reaction as the result of the severe shock he received at the time of the accident.” It will readily be observed that there is incorporated in the hypothetical question propounded to Dr. Levy the conclusions and opinions of expert and lay witnesses in relation to the alleged injuries, and the results occasioned thereby, which were assumed to be true and to be so considered by him in answering. It has been consistently held by this court that the opinion of an expert, however qualified to speak, cannot be predicated, either in whole or in part, upon the opinions, inferences, and conclusions of others, whether such opinions, inferences, and conclusions be expressed by expert or lay witnesses.

It is true that a witness who is qualified as an expert, who has heard the entire testimony in the case, and who assumes the truth of it all, may base his opinion upon such testimony, where not conflicting, except that the opinions of others may not be incorporated in the question or taken into account in giving his answer, each of which was erroneously done, as shown ⁶³⁶ in both, the questions and answers, which is the basis of this exception. Dr. Sheehan testified with regard to the plaintiff’s injuries, and the result of same, as follows: “He might possibly have had some injury to some one of the nerves leading down from the head to the stomach, and possibly some reflex irritation.” He was asked: “Q. Will you kindly state whether you attribute that to the effect of the accident? A. Absolutely due to the accident. Q. Do you attribute that as a consequence of the accident?

A. Positively. Q. Do you attribute that (headaches) to the accident?. A. I do. Q. Why was this man nervous?

A. More or less shock to his system, going through a very trying ordeal.” He further expressed the opinion, “The headache that he complained of I attribute due to blood pressure being reduced sixteen points and also to the injury to the back of his neck.” “He could have had some injury to his system. * * * He could have had some internal injury.” The witness stated that the condition was “positively and absolutely due to the accident.” Mrs. Dolan, a witness upon the part of her husband, testified: “Q. Was he internally injured? A. Well, I should say that in