Kozak v. Struth

• Decision Date: 21 September 1987
• Citation: 515 Pa. 554,531 A.2d 420
• Parties: , 42 Ed. Law Rep. 196 Patrick B. KOZAK and Mary Ann Kozak, Appellants, v. Wayne STRUTH and McKeesport Area School District, Appellees.
• Court: Pennsylvania Supreme Court

Page 420

531 A.2d 420

515 Pa. 554, 42 Ed. Law Rep. 196

Patrick B. KOZAK and Mary Ann Kozak, Appellants, v. Wayne STRUTH and McKeesport Area School District, Appellees.

Supreme Court of Pennsylvania.

Argued March 13, 1987.

Decided Sept. 21, 1987.

Michael Hahalyak, Pittsburgh, for appellants.

Richard Mills, Louis C. Long, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellees.

Before LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

Appellants, Patrick B. Kozak and Mary Ann Kozak, appeal by allowance a Superior Court order which affirmed Allegheny County Common Pleas' judgment on a jury verdict for appellee Wayne Struth. They argue that the trial court abused its discretion in permitting appellee's expert witness to comment on the totality of the evidence. Because an expert may not usurp the jury function by weighing and testing the credibility of other witnesses, we hold, under all the circumstances presented by this record, that admission of the particular expert testimony given was an abuse of the trial court's discretion. We therefore reverse the order of Superior Court and remand to Common Pleas for a new trial.

On February 3, 1975, appellant Patrick B. Kozak, while enrolled in a swimming class at McKeesport Area High School, attempted to dive into the shallow end of the school's swimming pool. Patrick, then 16 years of age, struck his head on the bottom of the pool, severing his spinal cord and leaving him paralyzed. He and his mother filed an action in trespass against the instructor in charge of the swimming class, appellee Wayne Struth. Struth then joined the McKeesport Area School District as an additional defendant. At the close of the evidence, the school district's motion for a compulsory nonsuit was granted. The jury then returned a verdict for appellee Struth and against the appellants. Superior Court affirmed. 348 Pa.Super. 637, 501 A.2d 295.

At the trial, appellee offered the expert testimony of Carl Peterson to rebut appellants' assertion that appellee was negligent in his supervision and instruction of the swim class. Following direct and cross-examination on Dr. Peterson's qualifications as an expert, appellee's counsel engaged his expert in the following colloquy:

BY MR. MILLS:

Q. Doctor Peterson, based upon the evidence that you have heard here in the courtroom, including the testimony of all the witnesses and the testimony that has been read to the jury, previously taken, and based upon your knowledge and understanding of the occurrence in question, do you have an opinion as to the capability of Wayne Struth as a water safety instructor.

MR. HAHALYAK: I continue the objection, your Honor.

THE COURT: Objection overruled.

THE WITNESS: Yes, I do.

BY MR. MILLS:

Q. All right.

A. In the first place--May I elaborate on my answer?

Q. What is that opinion?

A. He is a graduate of a reputable undergraduate school. I know personally the people who have been involved in certifying him as a teacher, Miss Kepfel at Slippery Rock, and Robert Evans. I work with most of those people.

And I give the most respect for the kind of people that they serve by.

....

Q. Again based solely upon the evidence that has been presented here in the courtroom, do you have an opinion with respect to the conduct of Wayne Struth at the time of the incident in question?

A. Yes, I do.

Q. And what is that opinion?

A. I believe that he acted as I would have under the same circumstances. It is standard procedure the way he conducted his class.

Q. Based upon the evidence that has been presented here in the courtroom, do you have an opinion as to the cause of the accident in question.

MR. HAHALYAK: Objected to, as a continuing objection.

THE WITNESS: Yes, I do.

BY MR. MILLS:

Q. What is that opinion?

A. I believe it was entirely a matter of poor judgment or no judgment on the part of the plaintiff.

In all athletics, and all of us have experienced injury in daily living, and after we are injured, we say "I didn't think."

And I believe that this is the situation in this case.

N.T. May 19, 1982 at 410-415 (emphasis added). Responding to these questions, the witness evaluated the totality of the evidence and also introduced extraneous and irrelevant factors. Moreover, in giving his final opinion on due care and causation, the witness directly evaluated the victim's credibility on his knowledge or appreciation of the risky nature of his conduct. ¹

When the jury is confronted with factual issues whose resolution requires knowledge beyond the ken of the ordinary layman a need for the employment of an expert arises. Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967); Commonwealth v. Leslie, 424 Pa. 331, 334-35, 227 A.2d 900, 903 (1967). Traditionally, the opinion testimony of an expert must be narrowly limited to evidence of which he has personal knowledge, which is uncontradicted on the record or which is proffered on an assumed state of facts reasonably shown by the record. Houston v. Canon Bowl, Inc., 443 Pa. 383, 385, 278 A.2d 908, 910 (1971); Battistone v. Benedetti, 385 Pa. 163, 170, 122 A.2d 536, 539 (1956); Jackson v. United States Pipe Line Co., 325 Pa. 436, 440, 191 A. 165, 166 (1937).

The complexity of issues before our trial courts increasingly requires expert testimony. The increased use and importance of such testimony requires careful examination of the rules governing its admission to prevent invasion of the jury's function by experts whose frequently conflicting opinions leave the jury incapable of rationally examining them except on the basis of the expert's appearance, manner or verbal skills. The proper function of an expert is to "instruct the court and jury in matters so far removed from the ordinary pursuits of life, that accurate knowledge of them can only be acquired by a continued study and experience." Commonwealth v. Fugmann, 330 Pa. 4, 26, 198 A. 99, 110 (1938) (quoting Coyle v. Commonwealth, 104 Pa. 117, 131 (1883)). See also Brueckner v. Pittsburgh, 368 Pa. 554, 558, 84 A.2d 197, 199 (1951). In Pennsylvania, experts have not been permitted to speak generally to the ultimate issue nor to give an opinion based on conflicting evidence without specifying which version they accept. These principles have been designed to permit the expert to enlighten the jury with his special skill and knowledge but leave the determination of the ultimate issue for the jury after it evaluates credibility.

In attempting to control the examination of experts, Pennsylvania courts have long used and recognized the hypothetical question as an aid in insuring that the role of the expert is kept properly separate from that of the jury. Moreover, experts are subject to the usual rules of relevance in giving their opinions and cannot base them on extraneous irrelevant factors not properly in evidence.

For over a century, we have consistently held that an expert's comment on the totality of the evidence, where the evidence is in conflict, improperly impinges upon the jury's exclusive province. In 1885, Mr. Justice Green declared that "[t]he [expert] witness can not be asked to state his opinion upon the whole case, because that necessarily includes the determination of what are the facts, and this can only be done by the jury." Yardley v. Cuthbertson, 108 Pa. 395, 450, 1 A. 765, 773 (1885). Following Yardley, a litany of decisions have reiterated the principle that an expert cannot weigh contradictory evidence and place his imprimatur upon a particular version. Battistone, supra at 169, 122 A.2d at 539; Commonwealth v. Marshall, 287 Pa. 512, 526, 135 A. 301, 306 (1926); Wissinger v. Valley Smokeless Coal Co., 271 Pa. 566, 571, 115 A. 880, 881-82 (1922); McDyer v. Eastern Pennsylvania Ry. Co., 227 Pa. 641, 647, 76 A. 841, 843 (1910); Gillman v. Media, 224 Pa. 267, 274, 73 A. 342, 344 (1909). Our general commitment to the sanctity of the jury's role as factfinder was recently re-emphasized in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). See also Colosimo v. Pennsylvania Elec. Co., 513 Pa. 155, 518 A.2d 1206 (1986).

We are aware that the drafters of the Federal Rules of Evidence have eliminated the necessity of using the hypothetical question by allowing an expert to testify to his opinion without elucidating underlying factual assumptions. See Fed.R.Evid. 705. This practice is also advocated by the text writers. See, e.g., McCormick on Evidence § 16 (E. Cleary 3d ed. 1984); 2 Wigmore, Evidence § 686 (Chadbourn rev. 1979). They believe that the proponent's adversary can protect his client by competent cross-examination exploring facts or data underlying the opinion. Appellee urges us to adopt this theory. We have declined, believing that requiring the proponent of an expert opinion to clarify for the jury the assumptions upon which the opinion is based avoids planting in the juror's mind a general statement likely to remain with him in the jury room when the disputed details are lost. Relying on cross-examination to illuminate the underlying assumptions may further confuse jurors already struggling to follow complex testimony. Additionally, total reliance on cross-examination permits the party propounding the expert's evidence to introduce it generally in a conclusory manner without relation to the record and casts the whole burden of disqualifying it on the opponent. This is contrary to the usual practice of allocating to the proponent of evidence, as the party with the laboring oar, the duty of laying a logically understandable foundation.

The problems this can create are illustrated by this record to which we now return. The gravamen of appellants' lawsuit is that appellee was negligent in his instruction and supervision of the swim class. Appellant Patrick Kozak testified that he knew he was diving into the shallow end of the swimming pool, that he intended to make a racing dive but altered his...