Hutchison v. American Family Mut. Ins. Co.

• Decision Date: 20 April 1994
• Docket Number: No. 92-1990,92-1990
• Citation: 514 N.W.2d 882
• Parties: Connie Lee HUTCHISON, Leland Henry Hutchison, Sr.; and Dixie Hutchison, Robert Hutchison, and Salena Hutchison, by Their Next Friend Leland Henry Hutchison, Sr., Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 882

514 N.W.2d 882

Connie Lee HUTCHISON, Leland Henry Hutchison, Sr.; and Dixie Hutchison, Robert Hutchison, and Salena Hutchison, by Their Next Friend Leland Henry Hutchison, Sr., Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellee.

No. 92-1990.

Supreme Court of Iowa.

April 20, 1994.

Linda Hansen Robbins and Michael H. Irvine of Irvine & Robbins, Cedar Rapids, for appellants.

James P. Craig of Moyer & Bergman, Cedar Rapids, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

McGIVERIN, Chief Justice.

Plaintiff Connie Hutchison, her husband, and their children appeal from a judgment entered on a jury verdict denying recovery for underinsured motorist (UIM) benefits from Connie's insurer, defendant American Family Insurance Company (American Family). Connie made a claim for personal injury damages and her husband and children made consortium claims. They raise several assignments of error regarding the trial court's evidentiary rulings.

The Hutchisons contend the district court erred (1) in admitting testimony from defendant's expert witness, (2) in allowing that expert to express an opinion on Connie's injury solely on the basis of reports and data from other experts and not on the basis of any of his own observations, (3) in excluding a videotape that purported to demonstrate how car accidents can cause a head injury such as the one she alleges, and (4) in refusing to allow their counsel to voir dire jurors about a study that concludes that Iowans pay much less for automobile liability insurance than other Americans.

We affirm the trial court on all assignments of error.

I. Background facts and proceedings. On February 24, 1987, Connie Hutchison was driving her car in Cedar Rapids when her car was rear-ended by another car. The other driver's insurer paid the Hutchison family its policy limit of $20,000. The Hutchisons' insurer, defendant American Family, denied their claim for UIM benefits under defendant's policy.

The Hutchisons filed suit against American Family to recover these UIM benefits. They alleged that Connie suffered various mental and emotional problems stemming from a closed-head injury that occurred during her car accident. As a result of this injury, her experts opined that she suffered from partial complex seizure syndrome, an orbital frontal cortex injury, posttraumatic headaches, and an exacerbation and worsening of depression.

During voir dire of potential jurors, the district court barred the Hutchisons from using a report showing that Iowans pay much less for automobile liability insurance than other Americans.

During the testimony of their neurologist, the Hutchisons attempted to play a videotape demonstrating the general mechanism of head injuries. The district court sustained American Family's objections to showing the tape.

American Family's expert witness was a clinical psychologist and neuropsychologist, Dr. Raymond Moore. The Hutchisons began trying to exclude Dr. Moore's testimony with a motion in limine and raised a standing objection to his testimony at trial. Dr. Moore had never examined Connie. He based his opinion on the medical records, data, and other information generated by all of her experts, just as he does in his private practice. He testified that he believed Connie's injuries were preexisting and that she suffered no traumatic brain injury from the motor vehicle accident. ¹

The jury found the Hutchisons had not established that their total damages, excluding property damage to their automobile, exceeded $20,000. Thus, plaintiffs had no valid UIM claim against defendant American Family.

The Hutchisons appeal.

Because each of the Hutchisons' assignments of error attack the district court's evidentiary rulings, we will reverse the district court only upon a showing of abuse of discretion in its rulings. Henkel v. R & S Bottling Co., 323 N.W.2d 185, 193 (Iowa 1982).

II. Dr. Moore's competence as an expert witness. The Hutchisons contend that American Family's expert witness, Dr. Raymond Moore, was not competent to testify as to Connie's alleged head injury. First, the Hutchisons argue that the district court abused its discretion in allowing Dr. Moore to testify as a neuropsychologist because he lacked board certification. Second, the Hutchisons attack Dr. Moore's competence to testify as to the head injury because such testimony involves medical causation, an issue on which the Hutchisons contend a clinical psychologist such as Dr. Moore cannot express an expert opinion.

Iowa rule of evidence 702 is pertinent to our discussion of both contentions. It provides:

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.

The advisory committee on the Iowa rules of evidence anticipated arguments such as the Hutchisons' in its comment to rule 702:

If [pursuant to Iowa rule of evidence 104(a) ] the Court is satisfied that the threshold requirements have been met, the witness should be allowed to testify. All further inquiry regarding the extent of his qualifications goes to the weight that the fact finder can give such testimony under Rule 104(e).

There is concern that under both the proposed Rule 702 and existing state practice, persons with marginal credentials will be given "expert" status and thereby automatically gain unwarranted recognition of their ideas. However, it is the Committee judgment that through proper use of Rules 104 and 403 more safeguards exist than under the common law.

Rule 702 thus codified Iowa's existing "liberal rule on the admission of opinion testimony." Ganrud v. Smith, 206 N.W.2d 311, 314 (Iowa 1973). The United States Supreme Court recently reaffirmed this approach in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469, 485 (1993). In Daubert, the Court rejected the Frye test of admissibility, which required the expert opinion to be based on a scientific technique that is "generally accepted" as reliable in the relevant scientific community. Id. at ----, 113 S.Ct. at 2792, 125 L.Ed.2d at 477 (citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). The Court stated that "the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id. at ----, 113 S.Ct. at 2799, 124 L.Ed.2d at 485; see also State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981) (rejecting Frye test if reliability can be otherwise established).

We now turn to each of plaintiffs' contentions.

A. Board certification. Although licensing carries a presumption of qualification to testify in the given field, " 'learning and experience may provide the essential elements of qualification.' " Ganrud, 206 N.W.2d at 315 (quoting Jones on Evidence § 14.13, at 619 (6th ed. 1972)); see also Bandstra v. International Harvester Co., 367 N.W.2d 282, 289 (Iowa App.1985) (lack of license not a bar to accepting a person as an expert witness). Indeed, a trial court may commit an abuse of discretion if it refuses to allow an expert qualified by experience. Van Wyk v. Norden Laboratories, Inc., 345 N.W.2d 81, 86-87 (Iowa 1984). Specifically, in cases involving medical issues, the expert need not be a specialist in a particular field of medicine to give an expert opinion. DeBurkarte v. Louvar, 393 N.W.2d 131, 138 (Iowa 1986).

Dr. Moore has board certification as a clinical psychologist, holds a Ph.D. in clinical psychology, and has substantial experience in neuropsychology. Although Dr. Moore lacked board certification in neuropsychology, we believe this fact went to the weight of his testimony, not its admissibility. Neither the American Psychological Association nor Iowa law, see Iowa Code ch. 154B (1991), require board certification in neuropsychology, and only two neuropsychologists have board certification in Iowa. Indeed, one of the Hutchisons' own expert witness neuropsychologists, Dr. John Bayless, also lacked board certification.

We therefore conclude that the trial court properly overruled plaintiffs' objection regarding Dr. Moore's lack of board certification in clinical neuropsychology.

B. Causation. We also believe that the district court did not abuse its discretion in admitting Dr. Moore's testimony as a neuropsychologist disputing the existence of a causal relationship between Connie's car accident and her alleged injury.

The Hutchisons cite Iowa Code section 154B.2, which specifically excludes the practice of medicine from the practice of psychology. The Hutchisons also rely on Iowa Code section 147.139, which limits expert testimony regarding the standard of care in medical malpractice actions to persons whose "medical ... qualifications relate directly to the medical problem ... at issue and the type of treatment administered in the case."

There seems little dispute that a psychologist may testify as to the existence of a brain injury, or at least the condition of the brain in general. United States v. Riggleman, 411 F.2d 1190, 1191 (4th Cir.1969); Jenkins v. United States, 307 F.2d 637, 643-44 (D.C.Cir.1962); Ross v. State, 386 So.2d 1191, 1195 (Fla.1980); Executive Car & Truck Leasing, Inc. v. DeSerio, 468 So.2d 1027, 1029 (Fla.App.1985); Buckler v. Sinclair Refining Co., 60 Ill.App.2d 283, 216 N.E.2d 14, 19 (1966); Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892, 898 (1974); see generally J.A. Bock, Annotation, Qualification of Nonmedical Psychologist to Testify as to Mental Condition or Competency, 78 A.L.R.2d 919 (1961 & Supp.1986).

The courts have split, however, over the question involved in this...