Houghton v. Bond, 94-1330

• Decision Date: 24 April 1996
• Docket Number: No. 94-1330,94-1330
• Citation: 680 So.2d 514
• Parties: 21 Fla. L. Weekly D1067 Donald F. HOUGHTON, as personal representative of the Estate of James Orville Houghton, and United Services Automobile Association, Appellants/Cross-Appellees, v. William E. BOND, Jr., as parent and guardian of William Emile Bond, III, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 514

680 So.2d 514

21 Fla. L. Weekly D1067

Donald F. HOUGHTON, as personal representative of the Estate of James Orville Houghton, and United Services Automobile Association, Appellants/Cross-Appellees, v. William E. BOND, Jr., as parent and guardian of William Emile Bond, III, Appellee/Cross-Appellant.

No. 94-1330.

District Court of Appeal of Florida First District.

April 24, 1996.

Alan R. Horky of Fuller, Johnson & Farrell, P.A., Pensacola, for Appellants/Cross-Appellees.

Robert G. Kerrigan of Kerrigan, Estess, Rankin & McLeod, Pensacola; and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Appellee/Cross-Appellant.

PER CURIAM.

This cause is before us on appeal and cross appeal from a final judgment entered on an order granting a post-trial motion for directed verdict and setting aside the jury's reduction of damages. We find the point raised on cross appeal to be without merit and affirm as to this issue without further comment. As to the appeal, we reverse and remand with directions to reinstate the jury's verdict and apportionment of damages.

James O. Houghton (hereinafter "Houghton") and William E. Bond, III (hereinafter "Bond") were involved in an automobile accident on the evening of June 16, 1988. Houghton, who was traveling alone, lost his life in the accident. Sixteen-year-old Bond, who was driving the family Chevrolet Blazer with a sixteen-year-old front seat passenger (Lindsay), was not wearing a seat belt and suffered life-threatening injuries. Passenger Lindsay, on the other hand, was wearing a seat belt and, although temporarily dazed at impact, was able to climb out of the Blazer and walk away from the accident with only a superficial injury to his chin and, in his words, a "cracked wrist."

After Bond was extricated from the Blazer, he was taken by ambulance to Baptist Hospital in Pensacola. Upon his arrival at the emergency room, he was comatose and in obvious and acute respiratory distress. During attempts by physicians to treat his breathing difficulty, Bond became combative and a paralyzing drug was administered so that an adequate air passage could be opened. In addition to his breathing problem, Bond suffered massive facial and scalp lacerations, a fractured deformity of his right leg, and internal bleeding resulting from a lacerated liver. Bond's mandible had been pushed up into the base of his skull, fracturing his jaw as well as causing a break in the base of his skull and the release of spinal fluid through his left ear. Other than some reactive brain stem response to stimuli, Bond's brain did not appear to be functioning. Chest x-rays revealed what turned out to be part of a dental plate or bridge lodged in his right lung. Considering the totality of his injuries, Bond's expert medical witness later testified that when he first arrived at the emergency room, Bond was not expected to survive the accident: "When he came in he should have possibly died or have been in a vegetative state."

In time, Bond made a dramatic recovery from his multiple injuries although, at the time of trial, he still suffered from some residual physical and psychological effects related to those injuries.

Bond, through his father, instituted a negligence action against Houghton's estate and Houghton's insurer, United Services Automobile Association (hereinafter "Defendants/Appellants"), for the injuries he received in the accident. Defendants/Appellants answered the allegations of Bond's complaint and asserted as an affirmative defense that his injuries were caused primarily by his failure to wear an available and operational seatbelt.

Among the witnesses called at trial by Plaintiff/Appellee was a mechanical engineer, Bruce Wiggins. Mr. Wiggins was qualified as an expert in accident reconstruction and, after questioning, offered his ultimate opinion that it was likely that Houghton's vehicle was partially in Bond's lane when the collision occurred. Mr. Wiggins was not qualified as an expert on the use of seatbelts and offered no testimony about crash tests or studies relating to the potential consequences involved in the failure of a motor vehicle's occupants to use seatbelts.

Passenger Lindsay testified by deposition on behalf of Plaintiff/Appellee that only moments before impact, it appeared to him that the headlights of Houghton's vehicle were in Bond's lane.

Plaintiff/Appellee's expert medical witness, Dr. E. Fletcher Eyster, a neurological surgeon, testified live to Bond's injuries. He also offered the opinion that these injuries were occasioned when the young man struck the steering wheel of the Blazer upon impact with Houghton's vehicle. This testimony was objected to on the ground that Dr. Eyster was not qualified to express an opinion on the dynamics of body movement within a vehicle involved in a collision. Defendants/Appellants' objection was sustained, and Dr. Eyster was not permitted to express the opinion he offered. During the trial Dr. Eyster was not asked, nor did he express an opinion, on whether medically-based evidence existed which would support a conclusion that, in the collision, Bond struck the steering wheel a glancing blow or whether it could be medically ascertained what Bond struck inside the vehicle that produced his grievous injuries.

For their part, Defendants/Appellants engaged the services of Dr. Charles Benedict and qualified him at trial as an expert in accident reconstruction, occupant kinematics ¹ and biomechanics ² related to an automobile seat belt restraint system in a motor vehicle involved in a crash.

In that portion of his testimony dealing with accident reconstruction, Benedict concluded that the Blazer in which Bond and Lindsay were riding drove off onto the shoulder of the road, and Bond overcorrected and swerved across the center line of the highway into the path of Houghton's vehicle. Further, Benedict used videotaped re-enactments to cast doubt on the accuracy of Bond's accident reconstructionist, Bruce Wiggins, and Lindsay relative to the speeds and position of the automobiles involved at the time of collision.

Because Bond objected to and moved in limine to prevent Dr. Benedict from testifying on occupant kinematics, which Bond's counsel labeled as "pseudo-science, junk science with no scientific reliability whatsoever," a proffer of the witness' testimony was first made. Dr. Benedict expressed the opinion on the closing speed and stopping speed of the vehicles involved in the collision and that Bond's head hit the Blazer's dashboard at 45 mph because he was not buckled in. Benedict also concluded that the impact pressures on Bond were upwards of 100 times greater because he was not belted and that with such a restraint in place, Bond, at most would have hit the steering wheel a glancing blow on the left side of his head as his body traveled to the right and forward rather than a full frontal blow to the dashboard. The witness also expressed the view that, had Bond been wearing his seatbelt, the forces he experienced and the injuries he sustained would have been less than or, at most, equal to those sustained by Lindsay. ³

Dr. Benedict also testified regarding a government study (the New Car Assessment Program) produced by the National Highway Traffic Safety Administration which contains crash data on cars (e.g., speeds, amount of crush, accelerations of occupants, femur load, force of the chest against the lap belt) including head injury criteria, which is "the measure of what the accelerations to the brain and head are." He testified that when the criteria for a vehicle occupant exceeds 1000, the "serious injury threshold" is reached and "that means you're beginning to hit something internally to the vehicle and cause impact to the skull." "Anything above that number [serious injury threshold], you're likely to get serious brain injury. Anything below that number, you're going to have not serious brain injury. It doesn't mean you're not going to have injuries. It means that you're not going to have serious enough injury that they consider it a real problem." Benedict explained how he extrapolated from the figures produced in the study to determine the forces acting on the occupants of Bond's vehicle in regard to the collision in this case. His opinion was that had Bond worn a seatbelt, the forces acting on him would not be sufficient for him to sustain a serious head injury.

At the close of the proffered testimony, the trial court ruled that Dr. Benedict could testify as to what seatbelts allow and what they prevent, the forces acting upon Bond during the collision, where he was thrown, and what he hit and how hard. The court also indicated that Benedict would be permitted to compare the forces experienced by the seatbelted passenger, Lindsay, to those experienced by Bond. When Bond objected to Benedict's recitation of figures from the government study, the court ruled that the witness "could give the basis and the data that he used in formulating his opinion." "Of course, an expert can use other data as a basis to formulate their [sic] opinion, but as both sides agreed before he came in here, he can't say, well, witness so-and-so or the trooper agreed that this is the way it happened, and I agree with it too; in other words, you can't bootstrap up your opinion by saying other people agreed with me. And quite candidly, I did not hear that from his testimony. He referred to government studies and dummy crash tests and all that, which is what people do. I mean, that's the things that they study to arrive at opinions. I've got no problem with him testifying to that."

Before the jury, Dr. Benedict testified consistently with the proffer of his testimony. During cross-examination by Bond's counsel, the following exchange occurred:

Q. What portion of this young man's brain injury that you have called severe would you say was attributed to the seat belt problem? I mean, are you going...