Utz v. Running & Rolling Trucking, Inc.

• Citation: 32 So.3d 450
• Decision Date: 15 April 2010
• Docket Number: No. 2008-CA-00977-SCT.,2008-CA-00977-SCT.
• Court: United States State Supreme Court of Mississippi
• Parties: Carla UTZ, Individually and on behalf of all wrongful death beneficiaries and the Estate of Preston Jimmy Utz, Deceased. v. RUNNING & ROLLING TRUCKING, INC. and Anthony Q. Hunter.

32 So.3d 450

Carla UTZ, Individually and on behalf of all wrongful death beneficiaries and the Estate of Preston Jimmy Utz, Deceased. v. RUNNING & ROLLING TRUCKING, INC. and Anthony Q. Hunter.

No. 2008-CA-00977-SCT.

Supreme Court of Mississippi.

April 15, 2010.

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James Ashley Ogden, Wendy Michelle Yuan, Jackson, attorneys for appellant.

Jason Hood Strong, B. Stevens Hazard, Jackson, attorneys for appellees.

Before CARLSON, P.J., LAMAR and CHANDLER, JJ.

CHANDLER, Justice, for the Court:

s 1. This case involves a wrongful-death action against Running and Rolling Trucking, Inc. (R & R), and Anthony Q. Hunter (Hunter) for the death of Preston Jimmie Utz (Preston) On December 14, 2003, Preston was driving on Highway 61 in Bolivar County, Mississippi. Hunter, a truck driver for R & R, drove an eighteen-wheeler tractor-trailer truck on Highway 61. The Nissan Maxima occupied by Preston struck the rear of Hunter's tractor-trailer and killed Preston.

s 2. Following Preston's death, his widow, Carla Utz (Carla), filed a wrongful-death action against R & R and Hunter in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. A jury trial was conducted on April 7-10, 2008. The main issue at trial was whether R & R's failure to provide reflective tape, also known as conspicuity tape, as required by the Federal Motor Carrier Safety Regulations (FMCSR), caused the accident. The trial court instructed the jury that R & R and Hunter were negligent by violating the FMCSRs, therefore, the jury had only to decide the liability issue of proximate cause. The jury returned a verdict in favor of R & R and Hunter. Carla filed post-trial motions for judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial, or in the alternative, additur. The trial court denied Carla's post-trial motions. Carla appealed the trial court ruling, raising forty-two issues.¹

FACTS

s 3. Preston Utz, along with two friends, Ephraim Woolf and Sabrina Ashmore, spent Saturday, December 13, 2003, gathering ingredients to "cook" methamphetamine (crystal meth). They arrived at a nearby lake at approximately midnight and began the cooking process. By 4:00 a.m., the first "pull," or batch, of the drugs was ready. Preston, Woolf, and Ashmore all "tested," or smoked, the crystal meth. Between 1:00 and 2:00 p.m. Sunday afternoon, Preston, Woolf, and Ashmore left the lake and went to Steve Brooks's house located near Cleveland. When they arrived at Brooks's house, they divided the crystal meth among Preston, Woolf, Anderson, and Brooks. Later that evening, Preston borrowed Brooks's Nissan Maxima to drive Ashmore home to Clarksdale. On his return trip to Cleveland, Preston collided with an eighteen-wheeler tractor-trailer driven by Hunter for R & R. Preston died as a result of the collision.

DISCUSSION

I. Evidentiary and Procedural Issues

s 4. This Court has held that the standard of review for a trial court's decision to either admit or exclude evidence is abuse of discretion. Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (Miss.2009); Beverly Enters., Inc. v. Reed, 961 So.2d 40, 44 (Miss.2007). The appellate courts will not reverse a ruling to admit or exclude evidence unless a substantial right of a party is adversely affected. Mitchell, 7 So.3d at 243.

s 5. Mississippi Rules of Evidence 401, 402, and 403 address what evidence is relevant and when relevant evidence, nevertheless, may be excluded. Rule 401 states:

"Relevant Evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

s 6. Mississippi Rule of Evidence 402 states:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible.

s 7. Mississippi Rule of Evidence 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

s 8. The standard of review for the admission or suppression of evidence, including expert testimony, is an abuse of discretion. Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716, 721 (Miss.2005) (citing Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss.2003)). See also Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 416 (Miss.2009); Adcock v. Miss. Transp. Comm'n, 981 So.2d 942, 946 (Miss.2008).

s 9. Rule 702 of the Mississippi Rules of Evidence states:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. To determine the admissibility of expert-witness testimony, this Court adopted a test in McLemore as stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 35. In McLemore, this Court determined that, under Rule 702, expert testimony is admissible if it is relevant and reliable. Id. at 38. Rule 702, however, does not provide for a relaxation of "the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge." Miss. R. Evid. 702 cmt. Further, the trial judge is considered the gatekeeper and determines the value of the expert testimony. Cato, 15 So.3d at 416. As the gatekeeper, the trial judge ensures that any expert testimony is relevant and reliable. Poole, 908 So.2d at 723.

s 10. Relevant evidence is that evidence which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Miss. R. Evid. 401. The threshold for admissibility is not great, keeping in mind the fact that Rule 401 favors the admission of evidence when it has probative value. Cato, 15 So.3d at 417 (citing McLemore, 863 So.2d at 40). When determining reliability, this Court has held that the expert testimony must demonstrate that his opinion "is based upon scientific methods and procedures, not unsupported speculation." Adcock, 981 So.2d at 947. To this end, this Court has enumerated some factors that may be considered as follows:

`Whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether . . . there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance' within the expert's particular field. McLemore, 863 So.2d at 37 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786).

Id. See also Cato, 15 So.3d at 417.

1. Drug use by Preston

s 11. Carla argues that the trial court erred by denying her motion in limine to exclude testimony from Ephraim Woolf concerning Preston's alleged making, using, or selling methamphetamine (crystal meth) before the wreck. She claims that the testimony was hearsay, prejudicial, and not relevant. Further, Carla claims that the prejudicial effect was compounded by the testimony of the State toxicologist, Carmen McIntire, that Preston had no crystal meth in his system at the time of the wreck.

A. Ephraim Woolf

s 12. The trial court denied Carla's motion in limine to exclude Woolf's testimony. The trial court determined that Woolf's testimony was not hearsay, because it was his personal observation and knowledge. See Miss. R. Evid. 801 and 602. While the trial court acknowledged that the testimony was likely to be prejudicial, the test, pursuant to Rule 403 is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Under that test, the trial court determined that the probative value of the testimony concerning activities involving methamphetamine prior to the crash did not outweigh the danger of unfair prejudice. The trial court stated, in part:

As concerns the claim that the prejudicial effect of such evidence would outweigh the probative value and confuse the jury as to the facts of this case, the court can quickly conclude that the evidence will most likely have a prejudicial effect upon the jury's view of the plaintiff. However, that is not the test. The test is whether under MRE 403 the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Again, there appears to be no attack as to the veracity of such evidence. The defendants assert that at the time of the accident, the deceased was coming down from a crystal methamphetamine "high," a process known as "crashing." According to at least one defense expert, when an individual crashes following a crystal methamphetamine high, such an individual would be prone to dozing off and/or not be highly reactive. Despite the plaintiff's argument to the contrary, the court finds that the probative value of evidence that the deceased engaged in activities involving methamphetamines prior to the accident is not substantially outweighed by the danger of unfair prejudice.

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