Hill v. State Farm Mut. Auto. Ins. Co.

Willie Lee HILL v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY

CA 96-280                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered February 19, 1997


1.   Witnesses -- expert -- qualification of -- discretion of trial court. --
     The qualification of an expert witness is within the sound
     discretion of the trial court and will not be reversed absent
     abuse of discretion; questions concerning the qualification of
     a witness or admissibility of evidence are preliminary
     questions that are determined by the court; a witness who is
     qualified as an expert by knowledge, skill, experience,
     training, or education may provide opinion testimony at trial,
     if it will assist the trier of fact in understanding the
     evidence or to determine a fact in issue; while the trial
     court has discretion to qualify an expert witness, that
     discretion is not absolute.

2.   Witnesses -- expert -- proper foundation necessary. -- If there is a
     reasonable basis to find that the witness has knowledge of a
     subject beyond that of ordinary knowledge, then the witness
     may be qualified as an expert; however, if a proper foundation
     is not laid, the witness should not be allowed to testify as
     an expert.

3.   Witnesses -- expert -- chiropractors' testimony limited to matters within
     scope of chiropractic. -- The general rule concerning expert
     medical testimony by chiropractors limits the testimony to
     matters within the scope of the profession and practice of
     chiropractic.  

4.   Witnesses -- expert -- no evidence that chiropractor was competent in
     medical radiology -- matter reversed and remanded. -- Where the trial
     court allowed a chiropractor to testify regarding how a
     medical radiologist would define "subluxation" and how a
     radiologist would interpret appellant's x-rays, but there was
     no evidence that he was competent in medical radiology through
     training, knowledge, formal education, or other experience,
     and where it was unknown how much weight was given to the
     chiropractor's testimony, the appellate court could not
     consider the trial court's error in admitting the testimony
     harmless; because the issue was dispositive of the entire
     case, the appellate court reversed and remanded the matter for
     a third trial.

     
     Appeal from Jefferson Circuit Court; H.A. Taylor, Judge;
reversed and remanded.
     Gary Eubanks and Associates, by: James Gerard Schulze and
William Gary Holt, for appellant.
     Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A.
Rowlett, for appellee.

     Wendell L. Griffen, Judge.
     This is the second appeal in a suit by Willie Lee Hill
(Appellant) to recover medical expenses from her insurer, State
Farm (Appellee), resulting from an automobile accident.  The first
trial resulted in a directed verdict for appellant.  We reversed
the trial courtþs decision and remanded the case for retrial. 
Appellant now appeals from a defense verdict following the retrial,
and argues that the trial court erred when it allowed a
chiropractor to testify as an expert in radiology.  We agree;
therefore, we reverse and remand for a third trial.
     Appellant was involved in a car accident on December 9, 1989,
and was treated by Dr. Michael Courtney, a doctor of chiropractic,
from December 18, 1989, until September 21, 1990.  Testimony at the
second trial revealed that appellant complained of a sore head,
neck, and back.  Dr. Courtney treated appellant 117 times during
that period.  He diagnosed appellant as having multiple cervical
subluxations (segmental dysfunctions) and subluxation of the lumbar
spine, and he testified that this diagnosis was corroborated by the
physical exam.  The maximum amount payable under the insurance
policy for care and treatment of injuries from an accident is
$5,000.00.  Appellee had previously paid $1,404.00, but appellant
sought an additional $3,665.00 to pay Dr. Courtney the remainder
due for his services.  Appellee refused payment, contending that it
was not reasonable and necessary, and at the jury trial presented
expert opinion testimony from Dr. Melvin Rose, a chiropractor from
Illinois.  
     Dr. Rose testified that in his opinion the length of
appellantþs treatment was excessive.  He also disagreed with Dr.
Courtney's interpretation of the appellantþs x-rays.  Counsel for
appellee attempted to elicit testimony from Dr. Rose regarding
whether a medical radiologist would interpret appellant's x-ray
studies as demonstrating a subluxation.  Appellant objected,
arguing that Dr. Rose was not qualified to express an opinion on
that issue because he was not a medical radiologist.  The trial
court overruled appellant's objection; Dr. Rose then testified that
a medical radiologist would not read appellantþs x-rays to show
multiple subluxations as reported by Dr. Courtney.  At the close of
all evidence, the jury rendered a verdict for State Farm from which
appellant has appealed.  She contends that the trial court erred
when it overruled her objection to Dr. Rose's opinion about what a
medical radiologist would have concluded regarding the existence or
non-existence of subluxations based upon the x-rays interpreted by
Dr. Courtney. 
     The qualification of an expert witness is within the sound
discretion of the trial court and will not be reversed absent abuse
of discretion.  Dillon v. State, 317 Ark. 384, 877 S.W.2d 915
(1994).  Questions concerning the qualification of a witness or
admissibility of evidence are preliminary questions that are
determined by the court. Ark. R. Evid. 104(a).  A witness who is
qualified as an expert by knowledge, skill, experience, training,
or education may provide opinion testimony at trial, if it will
assist the trier of fact in understanding the evidence or to
determine a fact in issue. Ark. R. Evid. 702.  While the trial
court has discretion to qualify an expert witness, that discretion
is not absolute.  Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940
(1991).  We see no error in the trial court's decision to permit
Dr. Rose to testify about his understanding of the distinction in
the meaning of "subluxation" as that term is used by practitioners
of chiropractic and medical doctors.  However, there was no
evidentiary foundation for him to render an opinion on how a
medical radiologist would have interpreted Hill's x-rays.  There
was no proof that Dr. Rose possessed any knowledge, skill,
experience, training, or education in medical radiology.
     Dr. Rose testified that while he was not certified in
radiology, he has had postgraduate studies in, among other things,
chiropractic roentgenology.  Dr. Rose was allowed to testify, over
appellantþs objection, that a radiologist or other medical
physician would define a þsubluxationþ as a þvery significant bone
that is ... out of place to a rather significant degree,þ where a
chiropractor would define þsubluxationþ as þsomething more
dynamic,þ such as a þlocking up of the bone.þ  Dr. Rose also
testified that if a radiologist reviewed appellantþs x-rays, he/she
would not have found any subluxations.  We acknowledge that if
there is a reasonable basis to find that the witness has knowledge
of a subject beyond that of ordinary knowledge, then the witness
may be qualified as an expert.  Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).  However, if a proper foundation is not laid,
the witness should not be allowed to testify as an expert.  Hardy
v. Bates, 291 Ark. 606, 727 S.W.2d 373 (1987).  
     In Hardy, a chiropractor was prohibited from discussing
whether a victim had suffered from permanent bodily impairment
where a proper foundation had not been laid to show that he had
specialized knowledge in that field.  On appeal the supreme court
held that while a chiropractor is competent to testify concerning
matters within the scope of profession and practice of
chiropractic, the trial judge did not abuse his discretion in
prohibiting the chiropractor from testifying as to whether an
automobile accident victim had suffered any permanent bodily
impairment, as the proper foundation had not been laid to show the
scope of the chiropractic's field.  Hardy, 291 Ark. at 608, 727 S.W.2d  at 373.  The general rule concerning expert medical
testimony by chiropractors limits the testimony to matters within
the scope of the profession and practice of chiropractic.  Id.   
     The trial court in this case allowed Dr. Rose to testify
regarding how a radiologist would define "subluxation" and how a
radiologist would interpret appellant's x-rays.  However, there was
no evidence that he was competent regarding medical radiology
through training, knowledge, formal education, or other experience. 
We do not know how much weight was given to this testimony and,
therefore, cannot consider this error harmless.  Thus, we reverse
on this issue, as it is dispositive of the entire case, and remand
for a third trial.
     Reversed and remanded.
     Jennings and Bird, JJ., agree.