Myer v. Rygg

• Decision Date: 10 July 2001
• Docket Number: No. 20000257.,20000257.
• Citation: 630 N.W.2d 62,2001 ND 123
• Parties: Carmen MYER and Beth Myer, parents of Patrick J. Myer, deceased, Plaintiffs and Appellants, v. Charles O. RYGG, Defendant and Appellee.
• Court: North Dakota Supreme Court

630 N.W.2d 62

2001 ND 123

Carmen MYER and Beth Myer, parents of Patrick J. Myer, deceased, Plaintiffs and Appellants, v. Charles O. RYGG, Defendant and Appellee.

No. 20000257.

Supreme Court of North Dakota.

July 10, 2001.

James D. Hovey (appeared), Pearson Christensen, Grand Forks, for plaintiffs and appellants. Argued by Erin M. Diaz, third-year law student.

Patrick R. Morley, Morley Law Firm, Ltd., Grand Forks, for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Carmen and Beth Myer, parents of Patrick J. Myer, deceased, appealed the district court judgment dismissing their wrongful death action following a jury trial. A jury allocated an equal share of fault to Patrick Myer, the driver of a motorcycle, and Charles O. Rygg, driver of a pickup truck, for the collision of the two vehicles. The Myers claim the trial court abused its discretion by allowing the investigating police officer to testify that excessive speed of the motorcycle was a contributing factor to the accident because the police officer was not qualified as an expert witness, lacked sufficient foundation for the opinion and was never disclosed as a witness during the discovery process. We affirm.

I

[¶ 2] The motorcycle driven by Patrick Myer and the pick-up truck driven by Charles Rygg collided at an intersection in Grand Forks on June 4, 1996. Patrick Myer was fatally injured. Patrick's parents filed a wrongful death claim against Rygg, asserting the collision occurred as a result of Rygg's negligence.

[¶ 3] At the jury trial, four eyewitnesses to the collision testified. Both parties also had expert witnesses who were certified accident reconstructionists. Each of the accident reconstructionists offered their opinion about the cause of the accident including estimates of the speed the motorcycle was traveling.

[¶ 4] Following the presentation of the Myers' case, Rygg's attorney called as his first witness the police officer who investigated the scene of the accident immediately following the collision. Prior to the officer's testimony, the Myers' attorney raised an objection to the police officer testifying as an expert, saying he had been led to believe Rygg's attorney may elicit a statement from the police officer that would be an expert opinion. Rygg's attorney agreed he intended to ask the police officer whether excessive speed of the motorcycle was a contributing factor in the collision. The Myers' attorney requested the opportunity to voir dire the police officer as an expert witness. The trial court granted the Myers' attorney the opportunity to voir dire the witness. The objection and the voir dire were conducted without the jury present.

[¶ 5] The police officer testified he was a police officer for the City of Grand Forks, with basic and advanced training in accident investigation. At the time of the accident, he had been a police officer for eleven years, investigating 150 to 175 accidents a year. The police officer agreed he was not a certified accident reconstructionist. Included in the police officer's investigation were observations of the physical evidence at the scene and interviews of eyewitnesses. The Myers' attorney objected to the police officer's testimony, noting he was not listed as an expert witness and asserting he was not competent to render an expert opinion concerning the speed of the motorcycle because he was not an accident reconstructionist and had not done the calculations to determine speed.

[¶ 6] The trial court allowed the police officer to testify excessive speed of the motorcycle was a contributing factor to the collision. Because the police officer had experience in investigating accidents and had conducted the investigations and made the observations, the trial court allowed the testimony limited to whether excessive speed was a contributing factor in the accident. The trial court agreed the police officer had not done scientific calculations to determine precise speed, and therefore questions asking his opinion based on scientific knowledge as to specific speed would be outside the scope of his expertise. However, because of the police officer's experience and training, the trial court concluded he was qualified to render an opinion whether excessive speed of the motorcycle was a contributing factor in the accident.

[¶ 7] At the end of a four-day trial, the jury allocated fifty percent of the fault to each of the parties and the claim was dismissed in favor of Rygg.

II

[¶ 8] Whether a witness is qualified as an expert is a decision largely within the sound discretion of the trial court. Kluck v. Kluck, 1997 ND 41, ¶ 7, 561 N.W.2d 263. The determination by the trial court that an expert witness is qualified will not be reversed on appeal unless that discretion is abused. Endresen v. Beretta USA Corp., 1997 ND 38, ¶ 10, 560 N.W.2d 225. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Barta v. Hinds, 1998 ND 104, ¶ 5, 578 N.W.2d 553. Appellate courts are reluctant to interfere with the broad discretion given to the trial courts to determine the qualifications and usefulness of expert witnesses. Endresen, 1997 ND 38, ¶ 14, 560 N.W.2d 225.

III

[¶ 9] The Myers argue the trial court abused its discretion by allowing the investigating police officer to testify excessive speed of the motorcycle was a contributing factor in the collision because the police officer was not properly qualified. Relying on Stein v. Ohlhauser, 211 N.W.2d 737, 743 (N.D.1973), the Myers claim the police officer should not "be allowed to testify as an expert until he has been shown to have some degree of expertise in the field in which he is to testify." Despite the police officer's experience and specialized knowledge, the Myers assert the trial court erred in allowing him to testify because he is not a certified accident reconstructionist.

[¶ 10] It is the district court's responsibility to make certain expert testimony is reliable as well as relevant. Weisgram v. Marley Co., 169 F.3d 514, 517 (8th Cir.1999),aff'd,528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000). See N.D.R.Ev. 702. Expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Kluck v. Kluck, 1997 ND 41, ¶ 7, 561 N.W.2d 263. Rule 702 of the North Dakota Rules of Evidence "envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify." Anderson v. A.P.I. Company of Minnesota, 1997 ND 6, ¶ 9, 559 N.W.2d 204.

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. N.D.R.Ev. 702.

[¶ 11] In Stein, 211 N.W.2d at 739, the trial court granted a new trial concluding it had erred in permitting the expert witness to testify to the precise speed of the car. The trial court granted the new trial because, in its opinion, using the physical damage to the vehicles as a factor in arriving at the opinion the car was traveling just over fifty-one miles per hour immediately prior to braking, was not sound or reasonably scientific. Id. The expert based his speed estimate on tests conducted by dropping cars from cranes unto concrete. Id. He admitted the tests did not prove how cars behave in actual accidents. Id. at 740.

[¶ 12] Stating there was "nothing in the record to show that there is any scientific way to determine speed from crash damage other than gross estimation, based to some extent on experience and judgment" this Court affirmed the trial court's granting a new trial. Stein, 211 N.W.2d at 740. Although aware of the tendency to allow more expert testimony, as indicated by the then Proposed Rules of Evidence, this Court recognized these are matters for the trial judge to determine and that no trial judge should yield to a litigant's insistence he be allowed to "use an expert on witchcraft or water-well dowsing or astrology." Id. at 742-43. However, this Court clarified:

And we do not mean to cast any doubt whatever on the admissibility of testimony of eyewitnesses as to speed or to suggest that our ruling should have any bearing on the entirely different question of the admissibility of estimates of speed by persons with entirely different methods of acquiring expertise in the field, such as highway patrolmen or policemen. Id. at 742.

[¶ 13] In Stein we affirmed the trial court's use of its discretion to grant a new trial conceding it had erred in admitting this particular expert who used questionable methods to determine precise speed. In contrast, we are here asked to hold the trial court abused its discretion in allowing an investigating police officer to make an estimation that excessive speed was a contributing factor in the collision.

[¶ 14] An expert need not be a specialist in a highly particularized field if his knowledge, training, education, and experience will assist the trier of fact. Kluck, 1997 ND 41, ¶ 10, 561 N.W.2d 263. The rule does not require an expert to have a formal title or to be licensed in any particular field, but recognizes it is the witness's actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990).

[¶ 15] We have previously held a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification. Botnen v. Lukens, 1998 ND 224, ¶ 13, 587 N.W.2d 141 (holding trial...