Marshall v. Mayflower Transit, Inc.

• Court: Kansas Supreme Court
• Writing for the Court: ABBOTT; HOLMES; JAMES M. MACNISH, Jr.
• Citation: Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 822 P.2d 591 (Kan. 1991)
• Decision Date: 06 December 1991
• Docket Number: No. 64877,64877
• Parties: Mary F. MARSHALL, et al., Plaintiffs/Appellees, v. MAYFLOWER TRANSIT, INC., Appellant, and Kansas Turnpike Authority, et al., Defendants.

Page 591

822 P.2d 591

249 Kan. 620

Mary F. MARSHALL, et al., Plaintiffs/Appellees, v. MAYFLOWER TRANSIT, INC., Appellant and Kansas Turnpike Authority, et al., Defendants.

No. 64877.

Supreme Court of Kansas.

Dec. 6, 1991.

Syllabus by the Court

1. In keeping with the requirements of K.S.A. 60-405, a proffer of evidence which has been excluded should make known the substance of the expected evidence. A formal offer of proof in question and answer form is not required provided an adequate record is made in some other manner which discloses the evidence sought to be introduced.

2. The standard for a satisfactory proffer is whether the proffer contains the substance of the excluded testimony.

3. An appellate court will not reverse a trial court's ruling excluding testimony unless the trial court has abused its discretion, resulting in prejudice to the party whose testimony was excluded.

4. If a witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.

5. Testimony in the form of opinions or inferences otherwise admissible under K.S.A. 60-456 is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact.

6. Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects with which the jury is not familiar or if such testimony will assist the jury in arriving at a reasonable factual conclusion from the evidence.

7. The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. If the normal experience and qualifications of jurors permit them to draw proper conclusions from the given facts and circumstances, expert conclusions or opinions are not necessary.

8. The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court's decision.

Hal D. Meltzer, Turner and Boisseau, Chartered, Overland Park, argued the cause and was on the brief, for appellant.

Charles S. Fisher, Jr., Fisher, Cavanaugh & Smith, P.A., Topeka, argued the cause, and Patrick C. Smith, of the same firm, was with him on the brief, for plaintiffs/appellees.

ABBOTT, Justice:

After a multi-vehicle accident on the Kansas Turnpike caused the death of Thomas Marshall, Sr., his family filed a wrongful death and survival action. All of the defendants settled with the Marshalls prior to trial except Mayflower Transit, Inc. (Mayflower). The jury awarded $2,914,087.27 and attributed 30 percent of the fault to Mayflower and 5 percent to Marshall. The verdict was reduced pursuant to K.S.A.1986 Supp. 60-1903 and Mayflower's responsibility ultimately was set at $688,226.18. The amount of damages is not in dispute.

Mayflower contends the trial court erred in the manner it required proffers to be made and in excluding the testimony of Mayflower's accident reconstruction expert, Kenneth Razak, and its two experts concerning paint, Mark Boese and Harry Wachob.

The accident involved a series of individual and multiple collisions among eight westbound vehicles (five semi-trailer trucks and three cars) on the Kansas Turnpike. The accident occurred during a snowstorm, and the highway was slick and hazardous. The accident will be described in greater detail as the issues are discussed.

The primary issue at trial was the percentage of fault attributable to the various drivers. The main thrust of Mayflower's defense was that most of the damage to Marshall's car and Marshall's injuries were caused when Marshall's car collided with the Earl Pile Trucking Co. tractor-trailer being driven by Roy Hamill and when the Marshall car was hit by a Frito-Lay tractor-trailer driven by Marlin Crouse, at a time when the Marshall car was against the Pile trailer's tandem wheels. Mayflower hoped to prove through Razak's testimony that the collision between the Mayflower tractor-trailer and the Marshall car occurred at a low speed and caused minimal damage to the Marshall car.

The two paint experts' testimony would have supported Razak's contention that the Frito-Lay tractor struck the Marshall car, as the Holton Livestock truck driver, LeRoy Dick, testified. The Frito-Lay driver testified he struck the Pile trailer, and that testimony was supported by the plaintiffs' paint expert, who testified that the paint on the bumper of the Frito-Lay tractor came from a trailer and not an automobile.

1. Proffer of Razak Testimony

Mayflower maintains it repeatedly asked to make a proffer of Razak's testimony in question and answer form, but the court ruled that Razak's deposition would serve as the proffer. Mayflower argues that the deposition could not serve adequately as an offer of proof because it was not taken for the purpose of preserving testimony. The deposition was taken about a year before the trial during the normal course of discovery, and, as such, Mayflower contends it did not include "the heart of [Razak's] trial testimony." Although Mayflower did file a written proffer of Razak's testimony after the trial was over, Mayflower claims even the written proffer was "not a fair substitute for Mr. Razak's actual answers on the highly technical mathematical, and complicated physical and analytical topics involved."

Mayflower correctly cites State v. Hodges, 241 Kan. 183, Syl. p 3, 734 P.2d 1161 (1987), for the proposition that if a trial court determines certain expert testimony is not admissible, "it is error [for the trial court] to refuse a proffer of that testimony into the record." In Hodges, the trial court refused the State's request to proffer its expert's testimony. 241 Kan. at 185, 734 P.2d 1161. Here, the trial court admitted Razak's deposition as an offer of proof and also allowed Mayflower to submit written proffers regarding the excluded testimony of Razak. As the Marshalls point out, a more accurate statement of Mayflower's complaint is that Mayflower was not allowed to choose the form for making its proffer. The Marshalls also argue it would be unreasonable to require a trial court to stop in the middle of a lengthy trial to allow the defendant to spend as much as a day and a half presenting a proffer in question and answer form.

We previously have considered the sufficiency of a proffer. In Carrick v. McFadden, 216 Kan. 683, Syl. p 3, 533 P.2d 1249 (1975), this court stated that

"[i]n keeping with the requirements of K.S.A. 60-405, a proffer of evidence which has been excluded should make known the substance of the expected evidence. A formal offer of proof in question and answer form is not required provided an adequate record is made in some other manner which discloses the evidence sought to be introduced." (Emphasis added.)

The standard for a satisfactory proffer is whether the proffer contains the substance of the excluded testimony.

The trial court was exposed repeatedly to the proposed testimony. The court read Razak's deposition. Prior to trial, Mayflower's response to the Marshalls' motion to exclude Razak's testimony outlined Razak's testimony. Additionally, the trial court heard oral arguments on the matter. The trial court reserved judgment on the motion until after testimony from other witnesses was presented. The trial court briefly allowed the parties to present their positions once again before refusing to allow Razak to testify. The trial court, as does this court, understood the substance of and the basis for Razak's proposed testimony.

The record amply supports a finding that the trial court and this court were informed of the substance of the excluded testimony. Although a verbatim accounting of the excluded testimony in question and answer form is not required, the record does not indicate that the trial court limited what Mayflower could include in the written proffer. If Mayflower's proffer was incomplete, it is because Mayflower did not utilize its opportunities to inform the court of the substance of the proposed testimony.

2. Proffer of Paint Experts' Testimony

Mayflower makes the same arguments concerning the two experts who would have testified concerning paint examinations they made. We reach the same conclusions for the same reasons set forth above. In addition, the trial court asked if further proffers by Mayflower could be handled by written statement. The trial court then granted Mayflower's request that further proffers be in the form of oral statements. When the opportunity arose at the conclusion of the trial to make an oral proffer, Mayflower stated it would submit a written statement. In its motion for a new trial, Mayflower again declared it had been denied the opportunity to make a proper proffer. The issue was discussed further at the hearing concerning Mayflower's motion.

The trial court was aware of the proposed testimony of Boese and Wachob. Mayflower had an opportunity to submit any type of proffer it wished (other than stopping the trial for a question and answer proffer). Here, the trial court and this court are aware of the substance of the excluded testimony and the basis for the testimony. Having examined Mayflower's proffers, it is hard to imagine the excluded evidence being presented in a more favorable form.

3. Exclusion of Boese and Wachob Testimony

Trial courts have wide latitude concerning the admission of impeachment testimony. An appellate court will not reverse a trial court's ruling excluding...