Kilhullen v. Kansas City Southern Ry.

• Decision Date: 26 February 2009
• Docket Number: No. 2006-CT-01564-SCT.,2006-CT-01564-SCT.
• Citation: 8 So.3d 168
• Parties: Gigi KILHULLEN v. KANSAS CITY SOUTHERN RAILWAY and Robert W. Lay.
• Court: Mississippi Supreme Court

8 So.3d 168

Gigi KILHULLEN v. KANSAS CITY SOUTHERN RAILWAY and Robert W. Lay.

No. 2006-CT-01564-SCT.

Supreme Court of Mississippi.

February 26, 2009.

Rehearing Denied May 14, 2009.

Kenneth Martin Heard, III, Barry W. Gilmer, Reid Stuart Bruce, Jackson, attorneys for appellant.

Charles Edwin Ross, Jackson, William B. Lovett, attorneys for appellant.

EN BANC.

ON WRIT OF CERTIORARI

RANDOLPH, Justice, for the Court.

¶ 1. Following a fatal collision at a railroad crossing between the tractor-trailer driven by Thomas D. Kilhullen ("Thomas") and a train owned by Kansas City Southern Railway Company ("Kansas City Southern"), Thomas's widow, Gigi Kilhullen ("Kilhullen"), filed a wrongful-death suit against Kansas City Southern and the train's engineer, Robert W. Lay, in the Circuit Court of Scott County, Mississippi. Thereafter, Kansas City Southern and Lay moved for summary judgment, which was granted by the circuit court. The Mississippi Court of Appeals affirmed. See Kilhullen v. Kansas City S. Ry., 8 So.3d 186, 2008 Miss.App. LEXIS 195 at *26 (Miss. Ct.App. April 1, 2008). Kilhullen's subsequent "Petition for Writ of Certiorari" was then granted by this Court.

FACTS

¶ 2. On June 20, 2000, Thomas drove a tractor-trailer loaded with lumber onto the Herring Road railroad crossing in Morton, Mississippi. Thomas subsequently was killed when the truck was struck by a train owned by Kansas City Southern and operated by Lay. On December 4, 2001, Kilhullen filed a wrongful-death suit against Kansas City Southern and Lay. Discovery commenced on May 14, 2002. According to the circuit court, "following discovery ... the single issue which remain[ed] is the complaint that due to vegetation and other objects which were present near the right-of-way, [Thomas] had limited visibility of a train approaching said crossing, and this sight limitation was the proximate cause of the accident."

¶ 3. On October 21, 2004, Kansas City Southern and Lay filed a motion for summary judgment. On January 4, 2005, one day prior to hearing, Kilhullen produced affidavits from lay witness Jimmy Shelton and a registered professional engineer, Jimmy Halfacre, in opposition to the motion for summary judgment. Following the hearing, the circuit court entered an order on January 21, 2005, which "put a moratorium on any further discovery in the case, with the exception that [Kansas City Southern and Lay] could depose Halfacre and Shelton.... The court also held the motion for summary judgment in abeyance pending a hearing on whether Shelton and Halfacre's affidavits were admissible." Kilhullen, 8 So.3d at 188, 2008 Miss. App. LEXIS 195 at *4.

¶ 4. On April 20, 2006, Kilhullen filed an affidavit from accident reconstructionist Brett Alexander which agreed with Halfacre's opinion that a clear line of sight, adequate to react to the presence of a train, was not present at the railroad crossing, and that Halfacre utilized the proper methodology in reaching his conclusions. Specifically, Alexander's affidavit provided, in part, that:

[b]ased upon my training and experience, I agree with the engineering procedures and computations performed by [Halfacre]. I concur in [Halfacre's] opinion and it is my opinion that [Thomas], the operator of the tractor-trailer rig, was not provided a clear line of sight adequate to enable [Thomas] to see the approaching train, react to the presence of the train, and safely pass through the grade crossing.

Thereafter, the circuit court entered an order deeming Alexander's affidavit to be "further discovery, which was disallowed in [the] order of January 21, 2005[,]" and directing Kilhullen to file a motion "for leave to engage in further discovery" pursuant to Mississippi Rule of Civil Procedure 6(b)(2). On June 12, 2006, the circuit court held a subsequent hearing on the motion for summary judgment.

¶ 5. In its "Opinion and Order," the circuit court deemed the motion for summary judgment and discovery issues to be "inextricably joined or intertwined...." Addressing Halfacre's affidavit, the circuit court stated that, "applying the Daubert standard to the case sub judice it is clear that accident reconstruction is a specified field in which a witness must be qualified by education and experience specific to the field in order to testify as an expert."¹ The circuit court then found that Halfacre lacked "any specialized knowledge, training or expertise in the field of accident reconstruction[,]" and, therefore, deemed his affidavit inadmissible. Regarding Alexander's affidavit, the circuit court likewise found it inadmissible, determining that it was impermissible "further discovery" and irrelevant under Mississippi Rule of Evidence 402. After striking the affidavits of both Halfacre and Alexander,² the circuit court concluded that "[d]ue to the nature of the cause, wherein there were no eyewitnesses and wherein [Kilhullen's] proof was dependent upon accurate reconstruction expert testimony the [c]ourt finds there to be no genuine issue of material fact, and the Motion for Summary Judgment is sustained."

¶ 6. The Court of Appeals affirmed. See Kilhullen, 8 So.3d at 186, 2008 Miss.App. LEXIS 195 at *26. Regarding Halfacre's affidavit, the Court of Appeals found that the circuit court did not abuse its discretion in finding it inadmissible because his testimony, "regardless of ... arguments to the contrary, [was] clearly an attempt at accident reconstruction[,]" and "[w]hile [Halfacre] was an engineer, his education was in electrical engineering and the majority of his experience was in conducting home inspections." Id. at 191, 2008 Miss. App. LEXIS 195 at *12-13. Given Halfacre's purported lack of experience "in any field relevant to his opinion[,]" the Court of Appeals concluded that:

[t]his case cannot be disposed of by a simple calculation without taking into account the numerous other factors that had an impact on the accident.[³] While extensive accident reconstruction testimony might not have been required to overcome summary judgment, Kilhullen still must provide testimony regarding line of sight from someone qualified to do so.

Id. at 195, 2008 Miss.App. LEXIS 195 at *16, 23. As to Alexander's affidavit, the Court of Appeals found that the circuit court "correctly ruled ... as Alexander did not offer any opinion as to Halfacre's qualifications or expertise." Id. at 194, 2008 Miss.App. LEXIS 195 at *20. Accordingly, the Court of Appeals concluded that "[s]ince we have found that Kilhullen's proposed affidavits were properly rejected by the court, we also find that summary judgment was properly entered against Kilhullen." Id. Thereafter, Kilhullen filed her "Petition for Writ of Certiorari," which was granted by this Court.

ISSUES

¶ 7. On petition for writ of certiorari, see Mississippi Rule of Appellate Procedure 17, this Court will consider:

(1) Whether the circuit court abused its discretion in rejecting the affidavit of engineer Jimmy Halfacre.

(2) Whether the circuit court abused its discretion in rejecting the affidavit of accident reconstructionist Brett Alexander.

(3) Whether the circuit court erred in granting summary judgment for Kansas City Southern and Lay.

ANALYSIS

I. Whether the circuit court abused its discretion in rejecting the affidavit of engineer Jimmy Halfacre.

¶ 8. "[T]he admission of expert testimony is within the sound discretion of the trial judge.... Therefore, the decision of a trial judge will stand `unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.'" Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citation omitted).

¶ 9. "Mississippi law requires the trial court to ensure that proposed [expert] testimony satisfies Rule 702 of the Mississippi Rules of Evidence." Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (Miss.2007) (citing Donaldson v. Covington County, 846 So.2d 219, 226 (Miss.2003)). Mississippi Rule of Evidence 702 provides:

[i]f 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702 (emphasis added). This Rule "recognizes the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable." Miss. R. Evid. 702 cmt. (emphasis added).

¶ 10. By his own admission, Halfacre is not an accident reconstructionist. However, for purposes of admitting his affidavit, such terminology or certification is unnecessary. See Pounders, 970 So.2d at 146 ("a witness need not be a specialist in any particular profession to testify as an expert.... The scope of the witness's knowledge and experience, and not any artificial classification, governs the question of admissibility.") (citations omitted); Sacks v. Necaise, 991 So.2d 615, 622 (Miss. Ct.App.2007). Halfacre possessed the professional qualifications to take the requisite measurements at the accident site and then input those figures into an accepted mathematical equation, in order to calculate Thomas's line of sight.⁴ According to his resume, Halfacre received his Bachelor of Science degree in Engineering from Mississippi State University in 1974 and has been a registered professional engineer⁵ since March 1, 1980. Furthermore, he is an member of the National Society of Professional Engineers, the Mississippi Engineering Society, and the American Society of Civil Engineers. As a "licensed, professional engineer[,]" Halfacre examined photographs of the accident site, reviewed relevant deposition testimony, and then...