Bocanegra v. Vicmar Services, Inc.

• Decision Date: 19 February 2003
• Docket Number: No. 01-31121.,01-31121.
• Citation: 320 F.3d 581
• Parties: Sonia BOCANEGRA, Etc.; et al., Plaintiffs, Sonia Bocanegra, Individually and on behalf of Ranulfo Bocanegra, Jr. Estate, on behalf of Ranulfo Bocanegra, III, on behalf of Carina Bocanegra, on behalf of Roberto Bocanegra, on behalf of Rolando Bocanegra, Plaintiff-Appellant, v. VICMAR SERVICES, INC.; et al., Defendants, Boake Sandoz d/b/a Sandoz Maintenance Service, Clarendon National Insurance Company, and Russell A. Sergent a/k/a Russell A. Sargent, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

320 F.3d 581

Sonia BOCANEGRA, Etc.; et al., Plaintiffs, Sonia Bocanegra, Individually and on behalf of Ranulfo Bocanegra, Jr. Estate, on behalf of Ranulfo Bocanegra, III, on behalf of Carina Bocanegra, on behalf of Roberto Bocanegra, on behalf of Rolando Bocanegra, Plaintiff-Appellant, v. VICMAR SERVICES, INC.; et al., Defendants, Boake Sandoz d/b/a Sandoz Maintenance Service, Clarendon National Insurance Company, and Russell A. Sergent a/k/a Russell A. Sargent, Defendants-Appellees.

No. 01-31121.

United States Court of Appeals, Fifth Circuit.

February 19, 2003.

David Tarrant Bright (argued), Mikal C. Watts, Watts Law Firm, Roger S. Braugh, Jr., Sico, White & Braugh, Corpus Christi, TX, James Parkerson Roy, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiff-Appellant.

Patrick J. Briney, Matthew D. McConnell (argued), Briney & Foret, Lafayette, LA, for Defendants-Appellees.

John Blaise Gsanger, The Edwards Law Firm, Corpus Christi, TX, for Mothers Against Drunk Driving, Amicus Curiae.

Appeal from the United States District Court for the Western District of Louisiana.

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS^*, District Judge.

LEONARD E. DAVIS, District Judge:

Sonia Bocanegra appeals a jury's take nothing verdict in her wrongful death and survival action against Appellees Boake Sandoz d/b/a Sandoz Maintenance Services Clarendon Insurance Company and Russell A. Sargent (collectively "Appellees"). On appeal, Bocanegra challenges the trial court's exclusion of evidence relating to the effect of Russell A. Sargent's use of marijuana on his driving abilities at the time of the accident. For the reasons set forth below, we reverse and remand for a new trial.

BACKGROUND

Ranulfo Bocanegra, Jr. ("Ranulfo") was fatally injured in the early morning hours of December 10, 1998 when he was struck by an industrial sweeper truck as he stood on a grassy median following another accident on I-10 near Scott, Lafayette Parish, Louisiana. Ranulfo and three others had been traveling as passengers in a van driven by Javier Galvan ("Galvan"). As the van was traveling eastbound on I-10, it collided with an eastbound eighteen-wheeler driven by Moises M. Perez and owned by Vicmar Services, Inc. As a result of this collision, the disabled van came to rest primarily in the left-hand lane, while the eighteen-wheeler stopped in the right hand shoulder further down the highway. Ranulfo and others exited the disabled van seeking safety on the grassy median on the left-hand side of the highway. Shortly thereafter an industrial sweeper truck driven by Russell A. Sargent ("Sargent") and owned by Boake Sandoz d/b/a Sandoz Maintanence Service approached the accident scene traveling eastbound in the left hand lane. Sargent swerved to the left onto the grassy median to avoid hitting the van, but ran over and fatally injured Ranulfo. When investigating police officer Danny Lieux ("Officer Lieux" or "Lieux") arrived on the scene, he observed Sargent "swaying back and forth" prompting Lieux to ask Sargent whether he had been drinking.

Ranulfo's wife, Sonia Bocanegra ("Bocanegra"),¹ filed this wrongful death and survival action on December 9, 1999 against Appellees in the Western District of Louisiana.² Prior to the case going to trial, Appellees filed motions in limine seeking to exclude any evidence relating to Sargent's use of marijuana approximately eight hours before the accident, including the testimony of two of Bocanegra's experts, Dr. Michael Evans ("Evans"), a toxicologist, and Steve Irwin ("Irwin"), an accident reconstructionist. Sargent had admitted during his deposition that he had taken five or six "hits" of marijuana around 5:30 or 6:00 p.m. on the evening of December 9, 1998 before reporting to work. The fatal accident occurred approximately eight hours later at 1:46 a.m. on December 10, 1998. Sargent further acknowledged during pre-trial testimony that when he smoked marijuana on December 9, he got "high." Evans' report stated that based upon reasonable scientific probability Sargent's marijuana use less than twelve hours before the accident impaired his perception and reaction time at the time of the accident. Irwin's report stated that "any amount of [reaction] time Mr. Sargent lost due to impairment [from marijuana use] is time that could have been used in evaluating his avoidance options [and that] [t]he loss of that time increased the likelihood and severity of the crash."

Appellees' motions in limine sought to exclude Sargent's testimony concerning his marijuana use, Evans' testimony regarding the effect of the marijuana on Sargent's driving ability, and Irwin's testimony concerning the cause of the accident. Appellees argued that Evans' opinions concerning the effect of marijuana on Sargent's driving ability failed to satisfy the criteria for the admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). They also argued that the probative value of evidence of marijuana use was outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403.

On August 28, 2001, the trial court conducted an extensive Daubert hearing at which the trial judge exhaustively questioned Evans and Appellees' toxicologist, Dr. Joseph Manno ("Manno"). Irwin never testified because the trial court concluded that his testimony would rise or fall on that of Evans. The hearing began in mid-morning and did not end until 6:30 p.m. At the close of the hearing, the trial judge concluded that Evans' testimony failed to satisfy the Daubert criteria, and that the probative value of the evidence was substantially outweighed by its prejudicial effect. The trial court excluded Sargent's testimony of his marijuana use prior to the accident, Evans' testimony of the effect of Sargent's marijuana use on his driving ability, and Irwin's testimony concerning the cause of the accident. The case proceeded to trial with the jury returning a take nothing verdict upon which the trial court entered a final take nothing judgment in favor of Appellees. On appeal, Bocanegra argues that the trial court erred in excluding evidence of Sargent's marijuana use and its effect on his driving ability on the night of the accident.

STANDARD OF REVIEW

The admissibility of expert testimony is reviewed under the abuse of discretion standard. Moore v. Ashland Chem., Inc., 151 F.3d 269, 274 (5th Cir. 1998). A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. Resolution Trust Corp. v. Bright, 6 F.3d 336, 340-41 (5th Cir.1993). If we find an abuse of discretion in admitting or excluding evidence, we next review the error under the harmless error doctrine, affirming the judgment, unless the ruling affected substantial rights of the complaining party. Great Plains Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d 962, 967 (5th Cir. 1995).

ADMISSIBILITY OF EXPERT TESTIMONY

Federal Rule of Evidence 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." This "imposes a special obligation upon a trial judge to `ensure that any and all scientific testimony ... is not only relevant, but reliable.'" Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786, 125 L.Ed.2d 469). The expert testimony must be relevant, not simply in the sense that all testimony must be relevant, Fed. R.Evid. 402, but also in the sense that the expert's proposed opinion would assist the trier of fact to understand or determine a fact in issue. Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786, 125 L.Ed.2d 469. Put differently, Rule 702 "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at 592, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.

As to reliability, the Supreme Court has provided five, non-exclusive factors to consider when assessing whether a methodology is scientifically reliable. These factors are (1) whether the expert's theory can be or has been tested, (2) whether the theory has been subject to peer review and publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and maintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469. The test for determining reliability is flexible and can adapt to the particular circumstances underlying the testimony at issue. Kumho Tire, 526 U.S. at 150-51, 119 S.Ct. 1167, 143 L.Ed.2d 238. The party seeking to have the district court admit expert testimony must demonstrate that the expert's findings and conclusions are reliable, but need not show that the expert's findings and conclusions are correct. Moore, 151 F.3d at 276. Thus, the question before the trial court was whether or not Evans' testimony regarding the effect of Sargent's marijuana use on his driving ability on the night of the accident was reliable and relevant under these standards to allow the testimony to go before the jury.

Reliability of Methodologies

In her first issue, Bocanegra argues that the trial court erred in excluding Evans' testimony because the scientific findings underlying Evans' conclusions, i.e., that residual impairment from marijuana use lasts for at least twelve hours after ingestion, have been peer-reviewed and are widely accepted in the field of toxicology.

At the Daubert hearing, Evans cited extensive scientific literature showing that impairment of mental and cognitive...