Denham v. Holmes

• Decision Date: 07 April 2011
• Docket Number: No. 2008–CT–01933–SCT.,2008–CT–01933–SCT.
• Parties: Paula DENHAM and Pamela Caldwellv.Adam HOLMES, a Minor by and through Donnie HOLMES, His Father & Natural Guardian.
• Court: Mississippi Supreme Court

60 So.3d 773

Paula DENHAM and Pamela Caldwell

v.Adam HOLMES, a Minor by and through Donnie HOLMES, His Father & Natural Guardian.

No. 2008–CT–01933–SCT.

Supreme Court of Mississippi.

April 7, 2011.

Tommy Wayne Defer, Water Valley, Bobby T. Vance, Batesville, attorneys for appellants.John Brian Hyneman, Oxford, attorney for appellee.EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Presiding Justice, for the Court:

¶ 1. Paula Denham and Pamela Caldwell filed a complaint against Adam Holmes in the Lafayette County Circuit Court. Denham and Caldwell alleged that Holmes had negligently operated his motor vehicle, resulting in an accident in which they were injured. A Lafayette County jury returned a verdict in favor of Holmes, and the circuit court entered a judgment consistent with the jury verdict. Aggrieved, Denham and Caldwell appealed, and we assigned this case to the Court of Appeals. After the Court of Appeals reversed and remanded for a new trial, Holmes filed a petition for writ of certiorari, which we granted.

¶ 2. While our disposition of today's case is the same as the Court of Appeals, our reasons differ from the Court of Appeals as to why a reversal of the trial-court judgment is required. We agree with the Court of Appeals that at least one of the jury instructions granted by the trial judge was erroneous. We find, however, that the trial court did not abuse its discretion in failing to admonish the jury to disregard defense counsel's comments during closing arguments regarding the plaintiffs' failure to provide expert testimony to support their claims of Holmes's liability. For purposes of the new trial to be conducted on remand, we likewise address the extent to which the trial court abused its discretion by excluding the plaintiffs' expert witness under Daubert and Mississippi Rule of Evidence 702. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. For the most part, we present here the Court of Appeals' recitation of the facts. Denham v. Holmes, 60 So.3d 803, 805-06 (¶¶ 4–8) (Miss.Ct.App.2010). However, we add certain facts found in the record for the sake of today's discussion. On the day of the accident, Paula Denham was driving her vehicle within or near the corporate limits of Oxford. Denham's vehicle also was occupied by Denham's sister, Pamela Caldwell, who was seated on the front seat-passenger side. Denham was traveling east on the portion of University Avenue which is east of the Highway 7–University Avenue intersection and west of the intersection of University Avenue with Highway 6/278. In this area, University Avenue is a two-lane, paved street, with one lane for east-bound traffic and one lane for west-bound traffic. Denham and Caldwell were traveling to Ken Ash Construction Company (Ash), which is located on the north side of University Avenue, for the purpose of soliciting business for their residential/commercial cleaning service. According to Denham, as she prepared to make a left-hand turn off University Avenue into the Ash parking lot, she engaged her left-hand-turn blinker and came to a complete stop in the east-bound lane to allow three or four west-bound vehicles to pass. Denham stated that, although there was a hill a short distance east of the Ash parking lot, the hill was a sufficient distance away from her location such that she observed all of the vehicles (three or four in number) simultaneously as they approached and traveled past her. As Denham attempted to negotiate the left-hand turn into the Ash parking lot, the front left side of Adam Holmes's truck struck the front passenger side of Denham's car. Denham stated she never saw Holmes's truck coming toward her. Lee Durham was a passenger in Holmes's truck. Before trial, the parties stipulated that certain physical injuries and medical expenses had resulted from the accident.

¶ 4. Denham and Caldwell testified that no oncoming traffic was visible when Denham commenced her left-hand turn. Denham testified that the front wheels of her car were in the Ash parking lot when Holmes's truck hit her car, pushing it across both traffic lanes on University Avenue. The car stopped on the roadside opposite the collision with the car's front end completely off the road. Holmes's truck stopped seventy-five feet inside Ash's parking lot. The wreck totaled both vehicles.

¶ 5. Caldwell testified that an “instant” prior to impact, she saw Holmes's truck. She stated that Holmes was driving “crazy fast” and that she did not have time to warn Denham of the approaching vehicle. Holmes testified that he estimated his speed to be between forty and forty-five miles per hour when Denham turned in front of him. The accident report revealed that Holmes had told officers that he was traveling forty-five miles per hour. Durham testified that Denham's vehicle had abruptly turned left when it was “almost right on them.” Holmes testified that he had applied his brakes and had steered to the right to avoid hitting Denham's car. Deputy Shane Theobald with the Lafayette County Sheriff's Department was the investigating officer at the scene. He testified that the speed limit on University Avenue in the area of the accident was forty miles per hour.

¶ 6. Before trial, Denham and Caldwell designated Donald Rawson, a traffic-collision reconstructionist, as their expert witness. The parties stipulated that Rawson was properly and timely designated and that he would testify by deposition. The parties also stipulated that Rawson was qualified to give certain expert opinions on the traffic accident.

¶ 7. However, at trial, Holmes made an ore tenus motion to exclude Rawson's deposition testimony on the basis that it would not aid the jury. Holmes also questioned the reliability of the testimony, noting that Rawson did not view the actual wrecked vehicles or speak with Holmes, Durham, or Deputy Theobald. Holmes argued that Rawson's testimony only reiterated what the police report stated and was unnecessary. Holmes, 60 So.3d at 805-06 (¶¶ 4–8).¹

¶ 8. Rawson's expert opinion, as provided in his deposition, concluded that Holmes had been speeding and could have avoided the accident. Rawson had viewed the accident report, the accident site, the deposition testimony, and several photographs taken some time after the accident. The accident report stated that Holmes had estimated his speed to be forty-five miles per hour. Rawson calculated that Holmes's vehicle had been 206 feet from Denham's car when her car had begun to turn, based on the “time it took [Denham] to turn before” the vehicles collided—3.12 seconds ²—and Holmes's estimated speed—forty-five miles per hour. Using basic mathematics, Rawson concluded that Holmes's truck, at a constant speed of forty-five miles per hour, traveled the 206 feet in 3.12 seconds.

¶ 9. Timing vehicles at the accident scene, Rawson found that a stopped vehicle could cross the opposite lane and completely exit the roadway in 3.62 seconds. Rawson opined that if Holmes had been driving forty miles per hour and had braked properly, then “he would have slowed down to 31 miles per hour and gone behind [the plaintiff] as she cleared.” This opinion also assumed that Holmes had been 206 feet from the point of impact when Denham had commenced her left-hand turn.

¶ 10. Importantly, Rawson opined that the lack of skid marks proved that Holmes had not braked, and if he had braked or taken evasive action, then Denham's car could have cleared Holmes's truck in the necessary 3.62 seconds. Moreover, Rawson concluded that, based on the absence of skid marks, Denham had not been negligent in the operation of her vehicle. He opined that if Denham had created an immediate hazard ³ when turning and, therefore, did not have the right of way, then Holmes would have reacted by braking his truck, thus causing skid marks on the pavement, in an attempt to avoid the collision. Rawson concluded that since no skid marks existed, Denham had not created an immediate hazard and that she had the right of way. Accordingly, Rawson surmised that Holmes had failed to avoid the accident, which was his duty.

¶ 11. The trial judge read Rawson's deposition and determined that Rawson had not performed a true accident reconstruction; that Rawson's information was unreliable; and that Rawson's conclusions were unnecessary:

There is no accident reconstruction done here. There's a man who has qualifications as an accident reconstructionist—that's stipulated and accepted—who comes to the scene approximately two years after the accident to determine lines of sight.

Now, is that relevant or can that be relevant and assist the trier of fact for him to offer an opinion on that; and the answer to that is yes.

But an accident reconstructionist's specialized expertise revolves around the reconstruction of the accident; and he didn't reconstruct the accident. He extrapolated some information from a police report and photographs, which are, absent a photographic expert, not suitable evidentiary matters for the reconstruction of an accident.

I don't know that you could do it with a layer of experts, but to calculate speed you have to understand and the reconstructionist has to factor in crush damage to the vehicles. Skid marks are not determined from photographs. I know that much about accident reconstruction, and that's what he purports to do, and his information is not based upon sufficient facts or data, and the testimony is not a product of reliable principles and methods, because none of any significance, other than a couple of mathematical calculations that could have been done by a high school student, were employed in this case, none, no coefficients, no reaction time, none of the things that a true accident reconstruction could use to benefit the jury.

Any conclusions that he has that are accurate and valid, based upon the limited information he had, are certainly subject to...