Dimambro Northend Associates v. Williams

• Decision Date: 06 December 1983
• Docket Number: No. 66428,66428
• Parties: DIMAMBRO NORTHEND ASSOCIATES v. WILLIAMS.
• Court: Georgia Court of Appeals

Page 386

312 S.E.2d 386

169 Ga.App. 219

DIMAMBRO NORTHEND ASSOCIATES v. WILLIAMS.

No. 66428.

Court of Appeals of Georgia.

Dec. 6, 1983.

Gregory J. Digel, Atlanta, for appellant.

Robert L. Herman, Michael McLaughlin, Atlanta, for appellee.

CARLEY, Judge.

Appellant-defendant contracted for the construction of a subterranean tunnel which was to be an integral component of a municipal water management project. At its closest point, the path of appellant's tunnel passed some 600 feet from appellee-plaintiffs' residence. After the completion of the tunnel in 1982, appellees filed the instant tort action against appellant, alleging that their house had been damaged as a result of the blasting that appellant had performed during the construction of the tunnel. Appellees sought to recover for this property damage plus attorney fees. The case was submitted to a jury and a verdict was returned which awarded appellees both compensatory damages and attorney fees. Appellant's motion for judgment n.o.v. or for new trial was denied. Appellant appeals from the entry of judgment on the jury's verdict and from the denial of its motion for judgment n.o.v. or for new trial.

1. Appellant enumerates as error the admission of certain testimony offered by a witness for appellees. It is first urged that the trial court erred in ruling that this witness, Mr. Cohen, was qualified to answer a certain question as an expert. It is further urged that the question which elicited Mr. Cohen's answer was itself an incomplete and inaccurate hypothetical and that, for this additional reason, it was error to allow Mr. Cohen's testimony into evidence. The transcript demonstrates that, over objection, Mr. Cohen was allowed to give his response to the following inquiry: "[W]ould you tell us, based on what you know of the circumstances surrounding damage to this home, what in your opinion caused the damage, and then give us the basis for this opinion." Mr. Cohen's answer was: "It's my opinion that a great force caused the damage that I observed personally. I think it was far too long after the time the home was built for this type of damage to be prevalent in the state that it exists right now."

"An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates. [Cits.]" Tifton Brick etc. Co. v. Meadow, 92 Ga.App. 328, 330-331, 88 S.E.2d 569 (1955). "The question of whether a witness is qualified to give his opinion as an expert is one for the court. [Cit.] His determination will not be disturbed except that it be manifestly abused." Dept. of Transp. v. Great Southern Enterprises, 137 Ga.App. 710, 712, 225 S.E.2d 80 (1976).

Appellant's sole argument is that Mr. Cohen lacked firsthand personal experience with blasting techniques generally and with the tunnel blasting techniques employed by appellant specifically. Regardless of this lack of general or specific personal experience with blasting, Mr. Cohen was not unqualified to give the opinion that he offered concerning the cause of the structural damage to appellees' home. In the first instance, it is not required that expertise be based only on personal experience. Education and training are sufficient predicates for an expert opinion. Moreover, contrary to appellant's assertion on appeal, Mr. Cohen did not expressly testify that the damage to appellees' residence was the result of appellant's blasting. All Mr. Cohen stated was that, in his opinion, the damage had been caused by "a great force." Mr. Cohen then testified that this opinion had been reached by eliminating constructual defects and normal "settling" as the cause. The testimony was not erroneously admitted on the basis that Mr. Cohen lacked the expert qualification to give the answer. See Inta-Roto, Inc. v. Guest, 160 Ga.App. 75, 76(1), 286 S.E.2d 61 (1981).

Nor was Mr. Cohen's testimony erroneously elicited by an incomplete and erroneous hypothetical question. Although several hypothetical questions had been propounded to Mr. Cohen before he gave his expert testimony, it appears that "[t]here was in fact no answer to the hypothetical question[s] as posed..." Atlanta Transit System v. Biggs, 133 Ga.App. 960, 964, 213 S.E.2d 87 (1975). Instead, the only question which the trial court eventually did allow Mr. Cohen to answer was the one noted above which asked generally for an opinion as to the cause of the damage and for "the basis for this opinion." "When a witness is qualified as an expert, it is not necessary that he state the facts on which his opinion is based but he may do so." Lewis v. State Hwy. Dept., 110 Ga.App. 845, 847, 140 S.E.2d 109 (1964).

Moreover, even assuming that Mr. Cohen's testimony had been elicited by one of the hypothetical questions propounded to him previous to the exchange quoted above, no error would be shown. " 'In propounding a hypothetical question ... it is not essential to the admissibility of evidence that there should be a complete resume of every fact entering into and involved in the case.' [Cit.] The reasoning the expert used in reaching his opinion may be explored on cross-examination and need not be presented in toto as a condition precedent to admissibility." Woods v. Andersen, 145 Ga.App. 492, 493, 243 S.E.2d 748 (1978). It is true that Mr. Cohen had no personal knowledge of when the damage had occurred and that he had relied upon appellees' assertions in that regard. However, at the time Mr. Cohen testified, appellees' contentions concerning the chronology of the damage to their property were already in evidence. Indeed, those contentions were a factor in the hypothetical question propounded to Mr. Cohen. It was not error to allow Mr. Cohen to give his expert testimony. See Royal Crown Bottling Co. v. Stiles, 82 Ga.App. 254 (4, 5(a)), 60 S.E.2d 815 (1950).

2. Appellant enumerates as error the admission of certain testimony by another witness for appellees. It is again urged that the trial court erred in ruling that this witness, Mr. Elliott, was qualified to answer certain questions as an expert. In this connection, it is further asserted that the trial court erred in refusing to allow appellant an opportunity to cross examine Mr. Elliott on the limited issue of his expert qualifications before being permitted to give his expert testimony on direct examination. We will address the latter contention first.

It is clear that a party has the right to a thorough and sifting cross examination of the experts called by the opposing party. See Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 879, 99 S.E.2d 370 (1957). We find no Georgia cases which mandate that a party has the right to cross-examine the opposing party's experts on the limited question of their qualifications before those witnesses are allowed to give expert testimony on direct examination. However, we find no Georgia cases which hold that no such right exists. What is clear is that "our courts have uniformly held that for the testimony of an expert witness to be received, his qualification as such must be first proved. [Cits.] If that prerequisite is not met the opinion of the expert must be excluded." (Emphasis supplied.) Knudsen v. Duffee-Freeman, Inc., supra at 879, 99 S.E.2d 370. It is likewise clear that the determination of whether this essential prerequisite to admissibility has been met is within the trial court's exercise of sound discretion. See generally Hogan v. Olivera, 141 Ga.App. 399, 401, 233 S.E.2d 428 (1977).

It would seem that a trial court cannot truly be said to have made an objective and impartial threshold determination of the admissibility of expert testimony unless the opposing party is afforded the opportunity, if he so requests it, to cross examine the witness on the question of his qualification before that discretionary determination of admissibility is made by the trial court. In other jurisdictions there is a right to such a preliminary limited cross examination on the issue of expert qualification, the denial of which has been held erroneous. See Davis v. Penn. R. Co., 215 Pa. 581, 64 A. 774 (Pa.1906). We believe that this should be the rule in Georgia. The discretionary determination of the qualification to give expert testimony should be made only after the trial court has heard all the relevant evidence bearing on this issue. In the instant case appellant requested but was refused a preliminary opportunity to cross examine Mr. Elliott on his expert qualification. This was error.

The question yet remains, however, of whether this error was prejudicial to appellant. The transcript demonstrates that when the direct examination of Mr. Elliott was concluded, he was at that time subjected to a "thorough and sifting" cross-examination as to his expert qualifications. Appellant characterizes Mr. Elliott's testimony on cross examination as clearly demonstrative of his lack of expertise in the area of blasting. However, our review of the relevant portions of the transcript demonstrates that on cross examination appellant only succeeded in establishing that Mr. Elliott had no personal experience in the area of tunnel blasting through employment of the specific technology or under those exact conditions which were present in the instant case. As noted above, such a showing of nonspecific personal experience would not demonstrate that Mr. Elliott was otherwise unqualified to give his expert opinion which was based upon his prior experience and education regarding blasting in general. See Inta-Roto, Inc. v. Guest, supra. Under these circumstances, it appears that it would have been an abuse of the trial court's discretion to have stricken Mr. Elliott's direct testimony on the basis that his cross examination demonstrated a lack of expertise. See Longino v. City of Atlanta, 127 Ga.App. 299, 193 S.E.2d 190 (1972). Accordingly, although it was procedural error to refuse to allow appellant to...