Fox v. Dannenberg

• Decision Date: 28 June 1990
• Docket Number: No. 89-2162WM,89-2162WM
• Citation: 906 F.2d 1253
• Parties: 30 Fed. R. Evid. Serv. 515 Robert L. FOX, Appellant, v. Todd Allen DANNENBERG, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1253

906 F.2d 1253

30 Fed. R. Evid. Serv. 515

Robert L. FOX, Appellant, v. Todd Allen DANNENBERG, Appellee.

No. 89-2162WM.

United States Court of Appeals,

Eighth Circuit.

Submitted April 11, 1990.

Decided June 28, 1990.

R.B. Miller, III, Kansas City, Mo., for appellant.

William S. Ohlemeyer, Kansas City, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, and FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge.

Robert L. Fox brought this wrongful death action against Todd Allen Dannenberg, alleging that his son's death in a one-car accident was caused by Dannenberg's negligent driving. The jury rendered a defendant's verdict, and Fox now appeals the judgment on the verdict as well the district court's denial of his motion for a new trial. We hold that the district court committed reversible errors by excluding expert testimony and in instructing the jury. Therefore, we reverse and remand for a new trial.

I. BACKGROUND

Derek Fox, the plaintiff's deceased son, and Todd Dannenberg were roommates at a junior college in Centerville, Iowa. Late on the night of September 22, 1986, they decided to drive to Kansas State University in Manhattan, Kansas, to see Derek's girlfriend. This was a trip of approximately 275 miles. They left Centerville in Derek's car and arrived in Manhattan in the early morning hours of September 23rd. Derek Fox drove the entire way from Centerville to Manhattan. They stayed only a few hours and left the Kansas State campus sometime between 10:00 and 11:00 a.m. to return to Centerville. Derek's girlfriend testified that Derek was driving the car when the boys left her dormitory. The boys stopped and ate at a fast-food restaurant before leaving Manhattan. Dannenberg testified that he fell asleep in the passenger seat soon after they left Manhattan and that he has no memory of anything that happened from that time until after the accident.

The accident occurred at approximately 2:00 p.m. near the Vivion Road overpass on I-35 in Kansas City, Missouri. Witnesses reported that the car simply left the road in a gradual manner, hit many large rocks in the embankment, and eventually struck a concrete pillar supporting the overpass. During the accident the car spun around several times before hitting the pillar. Witnesses who first arrived at the scene testified that both victims had been thrown from the car. Extensive damage was done to the car. Derek Fox sustained severe head injuries and died in the hospital three days later. Todd Dannenberg also sustained severe injuries, but survived.

Derek's father brought this suit against Dannenberg under the Missouri wrongful death statute, Mo.Rev.Stat. Sec. 537.080 (1986). He claims that Dannenberg was driving the car at the time of the accident and that his negligence caused it. Dannenberg denies that he was driving. No witnesses to the accident had knowledge as to who was driving. At trial, Fox sought to introduce the expert opinions of two engineers who would testify that based on the damage to the car, the position the car was in and the path it took during the accident, and the boys' injuries, it could be determined within a reasonable degree of engineering certainty that Dannenberg was driving the car at the time of the accident. The district court refused to admit Fox's experts' testimony, ruling that they were not competent to state an expert opinion on who was driving because neither one had medical training. However, the district court allowed Dannenberg's expert to testify that it would not be possible to determine who was driving the car based on the available facts in this case.

Two other rulings at trial are important in this appeal. First, the district court refused Fox's request for a jury instruction on res ipsa loquitur. Second, the district court, over Fox's objection, instructed the jury that it may find from the fact that Derek was driving when the boys left Manhattan that he was also driving at the time of the accident.

After the jury rendered its verdict for Dannenberg, Fox filed a motion for a new trial raising the following issues: (1) the court's exclusion of his experts' testimony as to who was driving the car; (2) the court's admission of Dannenberg's expert's testimony that the driver of the car could not be determined; (3) the court's refusal to instruct on res ipsa loquitur; and (4) the court's instruction to the jury regarding the inference that Derek was driving because he was driving when the boys left Manhattan.

The district court denied Fox's motion for a new trial. Fox now appeals, raising the same issues.

II. DISCUSSION

A. Expert Testimony

Fox first argues that the district court abused its discretion by excluding his experts' testimony that Dannenberg was driving the car at the time of the accident. As an initial matter, we reject Dannenberg's argument that Fox failed to preserve this issue for appellate review in that he failed to put the expert witnesses on the stand to elicit the proffered testimony. Putting a proffered witness on the stand is not the only way to adequately make an offer of proof. It is also sufficient for counsel to "state with specificity what he or she anticipates will be the witness' testimony...." Strong v. Mercantile Trust Co., 816 F.2d 429, 432 n. 4 (8th Cir.1987), cert. denied, 484 U.S. 1030, 108 S.Ct. 759, 98 L.Ed.2d 771 (1988). That was accomplished in this case. Thus, we may review this issue.

The question of whether expert testimony should be admitted or excluded is a matter governed by federal, rather than state, law. See Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1351 n. 6 (8th Cir.1984); Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1054 (4th Cir.1986); Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 292 (5th Cir.1975). Federal Rule of Evidence 702 provides the standard for the admissibility of expert testimony in federal court. It 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.

Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. See J. Weinstein & M. Berger, Weinstein's Evidence, p 702 at 702-30 (1988). The Advisory Notes to the Rule comment that "[t]he rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the 'scientific' and 'technical' but extend to all 'specialized' knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by 'knowledge, skill, experience, training or education.' " Fed.R.Evid. 702, Advisory Note. In Larabee v. M M & L Intern. Corp., 896 F.2d 1112 (8th Cir.1990), we quoted with approval a leading scholar's statement that " 'doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility.' " Id. at 1116 n. 6 (quoting Weinstein, p 702 at 702-30). That point is also implied in our statement in Hurst v. United States, 882 F.2d 306 (8th Cir.1989), that "[a] trial court should exclude an expert opinion only if it is so fundamentally unsupported that it cannot help the factfinder." Id. at 311 (citation omitted). See also Loudermill v. Dow Chemical Co., 863 F.2d 566, 570 (8th Cir.1988) (stating that "if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted" (citation omitted)). We believe that these authorities stand for the proposition that Rule 702 was intended to function as a broad rule of admissibility. See also Mannino v. International Mfg. Co., 650 F.2d 846, 849 (6th Cir.1981).

It is important also to note that Rule 702 "does not rank academic training over demonstrated practical experience...." Circle J Dairy, Inc. v. A.O. Smith Harvestore Products, Inc., 790 F.2d 694, 700 (8th Cir.1986). That is, an individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise. See, e.g., Davis v. United States, 865 F.2d 164, 168 (8th Cir.1988) (witness with relevant practical experience but no medical training competent to testify as to the probabilities of transmitting gonorrhea); Loudermill, 863 F.2d at 569-70 (witness who was not a medical doctor but who had other substantial scientific training held competent to testify as to the cause of plaintiff's cirrhosis of the liver); Circle J Dairy, 790 F.2d at 700 (witness who was not a veterinarian and had no advanced degrees qualified to testify as an expert as to damage to cattle because he had significant practical experience with health problems in dairy cattle).

The threshold question of whether a witness is competent as an expert is solely for the trial judge, and, as the text of Rule 702 suggests, the central issue is whether the expert's testimony will assist the trier of fact. The weight of the testimony is for the trier of fact. See Mannino, 650 F.2d at 851; Weinstein, p 702 at 702-7. The trial court's decision "will not be reversed unless there is a clear abuse of discretion or a clear error of law." Federal Crop Ins. Corp. v. Hester, 765 F.2d 723, 728 (8th Cir.1985) (citations omitted). See also Sweet v. United States, 687 F.2d 246, 249 (8th Cir.1982).

Once the trial court has determined that a witness is competent to testify as an expert, challenges to the expert's skill or knowledge go to the weight to be accorded the expert testimony rather than to its admissibility. See Davis v. American Jet Leasing, Inc., 864 F.2d 612, 615 (8th Cir.1988); Davis v. United States, 865 F.2d at 168. The question of the expert's credibility and the weight to be accorded the expert testimony are ultimately for the trier of...