Greenwell v. Boatwright

• Decision Date: 10 June 1999
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,Nos. 98-5721,98-5722,s. 98-5721
• Citation: 184 F.3d 492
• Parties: (6th Cir. 1999) NANCY ROBIN GREENWELL, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF RICHARD W. GREENWELL,(98-5722), STATE AUTO INSURANCE COMPANY, INTERVENING(98-5721), v. DAVID L. BOATWRIGHT; PATRICIA CALLIS; KLLM, INC., Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 492

184 F.3d 492 (6th Cir. 1999)

NANCY ROBIN GREENWELL, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF RICHARD W. GREENWELL, PLAINTIFF-APPELLANT (98-5722),STATE AUTO INSURANCE COMPANY, INTERVENING PLAINTIFF-APPELLANT (98-5721), v.DAVID L. BOATWRIGHT; PATRICIA CALLIS; KLLM, INC., DEFENDANTS-APPELLEES.

Nos. 98-5721, 98-5722

U.S. Court of Appeals, Sixth Circuit

Argued: June 10, 1999

Decided and Filed: July 28, 1999

Rehearing and Rehearing En Banc Denied Oct. 8, 1999.^*

[Copyrighted Material Omitted]

Argued: Sheryl G. Snyder, Brown, Todd & Heyburn, Louisville, Kentucky, for Appellants.J. Denis Ogburn, Crafton, Martin, Ogburn & Zipperle, Louisville, Kentucky, for Appellees.ON Brief: William T. Donnell, Charles S. Cassis, Brown, Todd & Heyburn, Louisville, Kentucky, John F. Carroll, Jr., J. Chester Porter & Associates, Shepherdsville, Kentucky, Kelly Mark Easton, Coleman, Easton, Lochmiller & Hall, Elizabethtown, Kentucky, for Appellants.J. Denis Ogburn, Crafton, Martin, Ogburn & Zipperle, Louisville, Kentucky, Armer H. Mahan, Jr., Lynch, Cox, Gilman & Mahan, Louisville, Kentucky, for Appellees.

Appeal from the United States District Court for the Western District of Kentucky at Louisville.No. 94-00614--Charles R. Simpson, III, Chief District Judge.

Before: Merritt, Kennedy, and Siler, Circuit Judges.

Kennedy, J., delivered the opinion of the court, in which Siler, J., joined.Merritt, J.(pp. 14-29), delivered a separate Dissenting opinion.

OPINION

Kennedy, Circuit Judge.

PlaintiffsNancy Robin Greenwell, individually and as Executrix of the Estate of Richard W. Greenwell appeal the district court's denial of their Motion to Strike the Testimony of Kenneth Razak, defendantKLLM, Inc.'s accident reconstructionist, their Motion for a Directed Verdict as to Liability and their Motion for Judgment as a Matter of Law or Alternatively a New Trial.Plaintiffs request that we remand this case and order the district court to enter a judgment against the defendants on the issue of liability.In the alternative, plaintiffs request that we vacate the district court's judgment and remand the case for a new trial, with instructions that the district court Judge hold a Daubert hearing as to the admissibility of the expert testimony.Although the Plaintiffs raise many issues on appeal, the essence of this legal dispute turns on the admissibility of the testimony of Kenneth Razak, KLLM, Inc.'s accident reconstructionist.Because we believe the district court did not err in admitting the expert testimony, we AFFIRM the district court.

I.Facts and Procedural History

Plaintiffs and defendant Boatwright were involved in an auto accident on July 27, 1994 in Jefferson County, Kentucky.Plaintiffs were traveling southbound on I-265, as was Boatwright, when a collision occurred causing the plaintiffs' pickup truck to move from the left, across the expressway, into the right hand guardrail.Defendant Boatwright's Peterbilt truck also came to rest on the right hand side of the road.As a result of this accident Richard Greenwell was killed, Nancy Greenwell was slightly injured, and the plaintiffs' truck incurred major property damage.Plaintiffs filed a wrongful death and personal injury action against Boatwright, KLLM, Inc., who had an agency agreement with Boatwright, and Callis, the owner of the Peterbilt truck.

At trial defendantKLLM, Inc., introduced the testimony of an accident reconstructionist expert, Kenneth Razak.Prior to the expert's testimony, plaintiffs filed a Motion in Limine to exclude a videotape re-enactment of the accident and the expert's testimony.Because defendantKLLM, Inc., chose not to offer the videotape into evidence, the district court Judge did not rule on this motion.The plaintiffs renewed their objection to the expert testimony at trial.The district court Judge, however, allowed the expert to testify.During the course of this testimony, plaintiffs' counsel objected to a statement by the expert that focused on the reliability of eyewitness testimony.Although the district court Judge permitted defendant Boatwright's counsel to pursue this line of questioning, he did not.At the end of the evidence, plaintiffs made a Motion to Strike the Testimony of the expert and a Motion for a Directed Verdict as to Liability.Both motions were denied by the district court Judge and the case was sent to the jury.The jury returned a verdict finding no liability for the defendants.Plaintiffs filed a Motion for Judgment as a Matter of Law or Alternatively a New Trial, which was denied by the district court Judge.This appeal followed.

Plaintiffs raise four issues on appeal: (1) whether the district court erred to the substantial prejudice of the plaintiff when it permitted the defendant's expert to testify as to the validity of eyewitness testimony; (2) whether the district court erred in permitting the expert's testimony as to his findings regarding the accident; (3) whether the district court erred in denying plaintiffs' Motions for a Directed Verdict and Judgment Notwithstanding the Verdict; (4) whether the district court abused its discretion in denying the plaintiffs' Motion for a New Trial.

II.Discussion

The first issue that the plaintiffs raise on appeal concerns statements that the defendant's expert made during his testimony.Plaintiffs argue that the district court erred in allowing the expert to testify as to the validity of statements made by other witnesses.This Court reviews a trial court Judge's ruling as to the admissibility of evidence for abuse of discretion.SeeSnyder v. AG Trucking, Inc., 57 F.3d 484, 492(6th Cir.1995)."A finding of abuse of discretion will be made only where the reviewing court is firmly convinced that a mistake has been made."United States v. Williams, 952 F.2d 1504, 1518(6th Cir.1991).Although we agree with the plaintiffs that the expert's statements were inadmissible opinion testimony, we do not find that the admission of these statements resulted in substantial prejudice to the plaintiffs.

At trial, defendantKLLM, Inc.'s expert introduced a theory as to liability that contradicted aspects of the eyewitnesses' testimony.During this testimony, defendant Boatwright's counsel asked the expert to give his opinion as to the accuracy of a statement that conflicted with his analysis.The exchange was as follows:

"Q: Let me ask you to assume that one person who was a witness to this accident has testified that the semi tractor being operated by Mr. Boatwright spun in a counter clockwise direction.Based upon the analysis that you made of the damage to the vehicles and their location, do you have an opinion as to whether or not that is an accurate or inaccurate statement?"

"A: In evaluating eye-witness testimony, I will not charge an eyewitness with fabricating testimony.I'll merely say that's the best judgment of what they saw and their interpretation of what they saw within the knowledge that they have and to the extent it's a sincere statement on their part.But I also have to observe that an event which takes place in a few seconds, only a certain type of recollection can exist of any person trying to witness, trying to recall an event that takes place in a short time."

"Plaintiff's counsel: Your Honor, this witness is not being responsive to this question at all.He's definitely not qualified to recollect events of people unless he's some kind of mental therapist or psychologist or psychiatrist.It's obviously not being responsive to the question."

"The Court: I think he's getting to it."

"Witness: May I hear the question again, please."

"Q: Sure.Let's go with based upon the analysis that you made and all of the information you gathered, do you have an opinion on the basis of scientific probability as to whether or not Mr. Boatwright's semi tractor when it spun, spun in a counter clockwise direction to cause this accident as opposed to some other direction after the accident."

"A: I have an opinion on that point."

"Q: And what is that opinion?"

"A: That the spin out of the truck was induced after the contact between the truck and pickup.That it was in a clockwise direction."

"Q: Why do you say it was a clockwise direction?"

"A: Two reasons: Number one, the physical facts, particularly the way the tractor came up to and collided with the guardrail at Exit 25.The way it collided with the sign at Exit 25 damage to the truck, and the gaging in the grass and throwing of dirt onto the pavement of the Gene Snyder Freeway.All of those could have occurred only if the truck were spinning in a clockwise manner viewed from above.Those are the physical facts."

(J.A. 648-49).

Plaintiffs' counsel objected to the expert's response commenting on the credibility of eyewitness testimony as non-responsive, but did not move to strike the testimony.The district court Judge permitted the response.

Plaintiffs argue that the expert's testimony as to the credibility of eyewitness testimony was beyond the scope of his expertise.Defendants contend that this testimony was not intended to discredit the eyewitnesses' testimony, but rather was intended only to explain the expert's reasons for basing his theory on physical evidence, rather than the testimony of the eyewitnesses.Regardless of the intent or motivation of the expert in commenting on the eyewitness testimony, we agree with the plaintiffs that the testimony regarding the credibility of eyewitness testimony was improper; however, we also believe that the admission of this testimony amounts to harmless error.

In assessing whether this opinion testimony resulted in substantial prejudice to the plaintiffs, we must consider the statement in the context of the expert's entire testimony.After plaintiffs' objection to the testimony, the defendants did not pursue the line of questioning further.In the ninety-five recorded pages of the expert's testimony, this statement is the only one addressing...