Black v. Ferrellgas, Inc.
| Decision Date | 19 December 2017 |
| Docket Number | Case Number: 114915 |
| Citation | 417 P.3d 1267 |
| Parties | Derrick BLACK, an individual, Plaintiff/Appellant, v. FERRELLGAS, INC., a Delaware Corporation, Ferrellgas L.P., a Delaware Corporation, and Jimmy Childs, an individual, Defendants/Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Robert L. Rode, David C. Bean, RODE LAW FIRM, P.L.L.C., Tulsa, Oklahoma, for Plaintiff/Appellant
Jennifer D. Ary, FRANDEN/FARRIS/QUILLIN GOODNIGHT+ROBERTS, Tulsa, Oklahoma, for Defendants/Appellees
¶ 1 Plaintiff Derrick Black appeals the trial court's March 22, 2016, Journal Entry of Judgment, entered on a jury verdict, in Plaintiff's vehicle negligence case. Based on our review of the facts and applicable law, we affirm the judgment.
¶ 2 Plaintiff was severely injured on March 6, 2009, in a single-vehicle, non-contact accident, when he struck a curb while riding his motorcycle. He alleged he was forced to take evasive action when a truck, driven by Defendant Childs, and owned by Defendants Ferrellgas, Inc. and Ferrellgas, L.P., entered his lane from a cross street in order to make a left turn.1 Plaintiff sued Defendants, alleging negligence.
¶ 3 A key disputed fact, which forms the basis of this appeal, is whether Defendant Childs, who was operating the Ferrellgas truck, had actually entered the intersection, causing Plaintiff to take evasive action. Plaintiff testified he did, and Childs testified he did not.
¶ 4 What is undisputed is that Childs exited an expressway and had driven to the end of the off ramp, stopping at a stop sign, with the intention of turning left. The off ramp had a single right turn lane and two left turn lanes. Childs stopped his truck in the left lane of the double left turn lanes. What happened next is in dispute.
¶ 5 Plaintiff and his motorcycle approached the intersection from Defendant Childs' left, at a disputed rate of speed.2 Childs testified he first stopped at the wide, painted white stop lines, just before the two narrower, white crosswalk lines. He testified he moved his truck forward from the wide white line to the narrower pedestrian line, and stopped once again. Not seeing Plaintiff approaching because of the curvature of the road, Child's wrote a statement at the scene of the accident at the request of the investigating officer in which he stated:
I was turning left from left hand left turn lane, inter-section was clear until motorcycle passed east bound on Apache stricking [sic ] meadian [sic ] becomeing [sic ] airborn [sic ] at high rate of speed. When motorcycle approach [sic ] from my left I stopped. ...3
¶ 6 In a sworn deposition taken 18 months later and again at trial, Childs stated that he had: "stopped behind the first white line...."4 Then, "I proceeded to the crosswalk once I knew it was clear and stopped there ... to look again to make sure there wasn't any further traffic."5 Childs continues, "So I pulled up to the line of the crosswalk to look left and back to the right and then looked left again ... and that's when I saw the motorcycle approaching."6 Childs concluded, 7
¶ 7 It was at this point that Plaintiff, riding the motorcycle, encountered the intersection. He testified:
¶ 8 There was no collision between the motorcycle and the Ferrellgas truck, but Plaintiff lost control of the motorcycle and crashed into a curb, suffering severe injuries. Whether the truck moved into the intersection became the focus of much testimony.
¶ 9 Plaintiff cross-examined Childs extensively regarding the apparent contradiction between Childs' written statement and his testimony at trial regarding whether Childs' vehicle was moving into the intersection or merely moving up to the curb before turning.
¶ 10 Defendant's expert, Reynolds, is an expert in accident reconstruction. However, Plaintiff sought to disqualify Reynolds from testifying as an expert for the reason that the facts chosen by Reynolds, upon which he based his expert analysis, consisted of the "self-serving testimony provided by Childs at his deposition nearly eighteen months after the collision for which this testimony was contradictory to Childs' hand written statement at the scene of the collision as well as [Plaintiff's] trial testimony."9
¶ 11 At trial, Reynolds was asked:
¶ 12 The trial court denied Plaintiff's attempt to disqualify Reynolds' testimony. The matter was submitted to a jury, which deliberated five hours before it returned a verdict. Nine jurors found Plaintiff was 69 percent contributorily negligent, and Defendant Childs was 31 percent negligent. The trial court therefore entered judgment in favor of all Defendants. Both Plaintiff and Defendants appealed the judgment.14
¶ 13 The sole issue on appeal is whether Defendant's expert witness was improperly allowed to testify. We review this trial court decision using the clear abuse of discretion appellate standard. Christian v. Gray , 2003 OK 10, ¶ 42, 65 P.3d 591, 608.
¶ 14 Plaintiff's first allegation of error in this regard is that the trial court erred in its Christian / Daubert "gatekeeping" role15 when it permitted Defendants' expert witness Reynolds to testify because he "inappropriately gave expert opinion on the placement of [Defendant] Childs' vehicle for which he had no scientific bases [sic ]."16 Plaintiff further argues "the placement of Childs' vehicle was a heavily contested fact in issue, and there was no scientific or physical evidence to pinpoint the position of Childs' vehicle...."17 Plaintiff's second allegation of error regarding this witness closely aligns with the first, and centers on the allegation that the expert's testimony failed four foundational challenges set out in Christian and Daubert .18
¶ 15 Those questions are set out in Christian :
Daubert provided a list of factors for the trial judge to consider when determining the admissibility of evidence. They include: 1. Can the theory or technique be, or has it been, tested; 2. Has the theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error ... and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. Daubert , 509 U.S. at 593-594, 113 S.Ct. 2786. The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate. Id . 509 U.S. at 595, 113 S.Ct. 2786.
Christian v. Gray , 2003 OK 10, ¶ 8, 65 P.3d 591, 597–98. Christian set out the proper use of the Daubert analysis:
We agree ... that a Daubert inquiry will be limited to circumstances where the reliability of an expert's method cannot be taken for granted. Thus, a Daubert challenge includes an initial determination of whether the expert's method is one where reliability may be taken for granted.
Christian , at ¶ 11, at, 599–600 (footnote omitted). The Christian Court then explained the trial judge's gatekeeping role:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in...
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