Ollis v. Knecht

• Decision Date: 20 July 2001
• Docket Number: No. 16A05-0011-CV-00492.,16A05-0011-CV-00492.
• Parties: Jimmie Hayes OLLIS, and Underwood and Weld Company, Inc., Appellants-Defendants, v. Edward KNECHT, as the administrator of the estate of Cynthia M. Knecht, deceased, Appellee-Plaintiff.
• Court: Indiana Appellate Court

751 N.E.2d 825

Jimmie Hayes OLLIS, and Underwood and Weld Company, Inc., Appellants-Defendants, v. Edward KNECHT, as the administrator of the estate of Cynthia M. Knecht, deceased, Appellee-Plaintiff.

No. 16A05-0011-CV-00492.

Court of Appeals of Indiana.

July 20, 2001.

Rehearing Denied September 4, 2001.

William Deer, McTurnan & Deer, Indianapolis, IN, Attorney for Appellants.

J. Lee McNeely, McNeely, Stephenson, Thopy & Harrold, Shelbyville, IN, Attorney for Appellee.

OPINION

SHARPNACK, Chief Judge.

Jimmie Hayes Ollis and Underwood and Weld Company, Inc. (collectively, "Appellants") appeal from the trial court's denial of their motion to correct errors. Appellants raise two issues, which we restate as:

1. whether the trial court abused its discretion when it denied Appellants' motion to correct errors, which alleged that the trial court abused its discretion when it excluded the testimony of Appellants' expert witness; and

2. whether the trial court abused its discretion when it refused to give to the jury a portion of Appellants' tendered instruction on witness credibility.

We affirm.

The relevant facts follow. Cynthia M. Knecht died in an automobile accident on July 28, 1999. Edward Knecht, Cynthia's widower, was named administrator of Cynthia's estate ("Knecht") and filed a wrongful death suit against Appellants. Appellants admitted liability, and the case proceeded to trial on the issue of damages only. The jury awarded $2,800,000.00 to Knecht. Appellants filed a motion to correct errors, claiming that the trial court erred in excluding the testimony of Appellants' expert witness and that the jury's verdict was excessive. The trial court denied Appellants' motion to correct errors.

I.

The first issue is whether the trial court abused its discretion when it denied Appellants' motion to correct errors, which alleged that the trial court abused its discretion when it excluded the testimony of Appellants' expert witness. In their motion, Appellants requested that the trial court order a new trial. A trial court has broad discretion to grant or deny a motion requesting a new trial. Barnard v. Himes, 719 N.E.2d 862, 865 (Ind.Ct.App. 1999), trans. denied. We review the trial court's decision for an abuse of discretion. Id. An abuse of discretion has occurred if the trial court's decision is against the logic and effect of the facts and circumstances or the reasonable inferences therefrom or if the trial court's decision is "without reason or ... based upon impermissible reasons or considerations." DeVittorio v. Werker Bros., Inc., 634 N.E.2d 528, 530 (Ind.Ct.App.1994).

Appellants claim that they were entitled to a new trial because the trial court abused its discretion when it excluded the testimony of Appellants' expert witness. Appellants' expert, Dr. Terrance Parks, was prepared to testify regarding the loss of income caused by Cynthia's death. Knecht moved to exclude the testimony of Dr. Parks, and the trial court held a hearing on Knecht's motion. Subsequently, the trial court granted Knecht's motion, providing in pertinent part:

6. After considering both the scope and content of Dr. Parks' proposed testimony and the assumptions and basis upon which Dr. Parks' proposed testimony would rest, as well as the arguments of both plaintiff's and defendants' counsel, and after due consideration, this Court FINDS that the proposed testimony to be offered by Terrance Parks, Ph.D. should be and is excluded from this cause under the standards set forth in Indiana Evidence Rule 403 and Indiana Evidence Rule 702.

Record, pp. 123. Because the trial court judge excluded Dr. Parks's testimony based on both Ind. Evidence Rule 702 and Ind. Evidence Rule 403, we will review the exclusion on each of those grounds individually.

A.

Ind. Evidence Rule 702 provides:

(a) 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.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

A trial court judge has broad discretion to admit or exclude the testimony of an expert witness under Ind. Evidence Rule 702. Hottinger v. Trugreen Corp., 665 N.E.2d 593, 596 (Ind.Ct.App.1996), trans. denied. We will not disturb that decision unless the trial court's decision was manifestly erroneous. Id.

Regarding Ind. Evidence Rule 702, the trial court judge specifically found:

8. In further support of this finding, the Court FINDS that the proposed testimony of Terrance Parks is inadmissible under Indiana Evidence Rule 702 for the reason that the Court is not persuaded, based upon the scope of the evidence submitted in this hearing, that the proposed testimony is based upon economic principles which are either sufficiently reliable or scientifically supportable.

9. The Court further FINDS that, based upon the evidence submitted in this hearing, that there is insufficient support for the proposition that the proposed testimony of the witness is based upon sound or valid economic principles and methodologies which have been sufficiently or adequately examined, published, tested, peer reviewed and/or accepted within the economic community, thus making the proposed testimony excludable under the standards set forth in Indiana Rule of Evidence 702.

Record, pp. 123-124. These findings indicate that the trial court excluded Dr. Parks's testimony under section (b) of Ind. Evidence Rule 702.

Appellants first argue that the trial court abused its discretion when it excluded Dr. Parks's testimony under Ind. Evidence Rule 702(b) because economics is not a science. Appellants contend that economics is a social science and that social sciences are not subject to an analysis under Ind. Evidence Rule 702(b). We disagree.

Economics is "the science that deals with the production, distribution, and consumption of wealth, and with the various related problems of labor, finance, taxation, etc." WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, 430 (3d college ed.1988). Contrary to Appellants' argument, whether a field of study is, or is not, a science is not determined by where a discipline is listed in a "typical college catalog." Appellants' reply brief, p. 6. Disciplines that are sciences employ the scientific method: "[t]he totality of principles and processes regarded as characteristic of or necessary for scientific investigation, generally taken to include rules for concept formation, conduct of observations and experiments, and validation of hypotheses by observations or experiments." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 1163 (10th ed.1981). Consequently, social sciences like economics and psychology, which employ the scientific method, are sciences, and experts from those fields should be prepared to have their opinions and theories subjected to an analysis under Ind. Evidence Rule 702(b). See, e.g., Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 748-751 (Ind.1999)

(discussing the admissibility of psychologist's testimony regarding repressed memories); Time Warner Entm't. Co., L.P. v. Whiteman, 741 N.E.2d 1265, 1273-1275 (Ind.Ct.App.2001) (discussing the admissibility of accountant's expert testimony).

Next, Appellants argue that even if Ind. Evidence Rule 702(b) applies, the trial court improperly excluded Dr. Parks's testimony because it met the requirements of Ind. Evidence Rule 702(b). Specifically, Appellants contend that the trial court abused its discretion because (1) case law establishes that Dr. Parks's discount rates are appropriate; (2) Dr. Parks's methodology has been published; and (3) Dr. Parks's methodology is generally accepted by economists.

When determining whether scientific evidence is admissible under Ind. Evidence Rule 702(b), courts consider the factors discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Hottinger, 665 N.E.2d at 596

. In Daubert, the Supreme Court held that for scientific knowledge to be admissible under Federal Evidence Rule 702, the trial court judge must determine that the evidence is based on reliable scientific methodology. Id. at 592-593, 113 S.Ct. at 2796. To assist trial courts in making this determination, the Supreme Court outlined a non-exclusive list of factors that may be considered: whether the theory or technique can be or has been tested, whether the theory has been subjected to peer review and publication, whether there is a known or potential error rate, and whether the theory has been generally accepted within the relevant field of study. Id. at 593-595, 113 S.Ct. at 2796-2798. Publication in a peer-reviewed journal, while relevant, is not to be dispositive of the issue of scientific validity. Id. at 594, 113 S.Ct. at 2797. The focus of the admissibility test must remain on the methodology of the theory or technique, not on the conclusions generated. Id. at 595, 113 S.Ct. at 2797.

When discussing the application of Ind. Evidence Rule 702(b), the Indiana Supreme Court has held that:

The concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. Thus, although not binding upon the determination of the state evidentiary law issues, the federal evidence law of Daubert and its progeny is helpful to the bench and bar in applying Indiana Rule of Evidence 702(b).

Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995),reh'g denied. Consequently, we consider the factors enunciated in Daubert when deciding whether the trial court erred in refusing to admit Dr. Parks's testimony. Furthermore, we note that the party...