Olson v. Ford Motor Co.
| Decision Date | 26 January 2006 |
| Docket Number | Case No. 4:04-cv-102. |
| Citation | 411 F.Supp.2d 1149 |
| Parties | Diana OLSON, on behalf of herself and her children as heirs at law of Richard Olson, deceased; and Diana Olson as Personal Representative of the Estate of Richard Olson, Plaintiff, v. FORD MOTOR COMPANY, a Corporation, Defendant. |
| Court | U.S. District Court — District of North Dakota |
Edgar F. Heiskell, III, Kevin W. Ryan, Michie Hamlett Lowry Rasmussen & Tweel PLLC, Charlottesville, VA, Steven A. Storslee, Storslee Law Firm, Bismarck, ND, for Plaintiff.
Janice K. O'Grady, Bowman and Brooke LLP, Los Gatos, CA, Jennifer K. Huelskoetter, John D. Sear, Wayne D. Struble Bowman & Brooke, Minneapolis, MN, Jonathan P. Sanstead, Pearce & Durick, Bismarck, ND, for Defendant.
ORDER ON MOTIONS IN LIMINE (ALCOHOL EVIDENCE)
Before the Court are four motions in limine concerning alcohol-related evidence: Ford Motor Company's Motion in Limine No. 7 to Exclude Alcohol Opinion of Todd Polumbo (Docket No. 80); Ford Motor Company's Motion in Limine No. 9 to Exclude Expert Testimony of Anne Rummel Manly (Docket No. 82); Olson's Motion in Limine No. 2 to Exclude Reference to Alcohol Consumption (Docket No. 86); and Olson's Motion in Limine No. 13 Regarding Cumulative Expert Testimony by Ford Regarding Alcohol (Docket No. 97). Each motion was filed on January 6, 2006. Responses have been filed as to each motion.
During the evening hours of September 17, 2002, Richard Olson consumed alcoholic beverages at the clubhouse of the Minot Country Club. Olson departed the Minot Country Club shortly after 11:00 p.m. At approximately 11:12 p.m., Olson was killed in a one-car automobile accident approximately a quarter mile from the clubhouse. Olson's body was taken directly to the funeral home in Minot, North Dakota.
On September 18, 2002, the Ward County Coroner, Dr. John Smith, came to the funeral home. Dr. Smith attempted to draw a blood sample but was unable to do so. See Deposition of John C. Smith, pp. 22-23. Instead, Dr. Smith drew urine and vitreous humor. Id. at 39. Vitreous humor is the fluid in the eye that maintains the shape of the globe of the eye. Id. at 25. It was removed using a disposable needle and syringe provided to Dr. Smith in a toxicology kit from the North Dakota State Crime Lab. Id. at 29. The particular needle and syringe used on Olson had never been used before. Id. After removing the vitreous humor from both eyes, it was combined and placed into a clear plastic screw-top tube. Id. at 43-44. The tube containing the vitreous humor did not contain preservative. Id. at 79. A urine sample was also drawn with an unused needle and syringe and placed in a plastic screw-top tube. Id. at 44, 46. The tube of urine did contain preservative. Id. at 79. The samples were mailed to the North Dakota State Crime Lab that same day. Id. at 45.
The next day, September 19, 2002, the samples were logged in at the North Dakota State Crime Lab. See Deposition of Claudia Meberg, p. 21. Upon receipt, Claudia Meberg, an employee at the North Dakota State Crime Lab did not observe spillage in either sample. Id. at 26. Meberg ran standards to test the equipment prior to testing the samples — the standards tested out. Id. at 28-29. The urine sample was not tested for alcohol concentration in September 2002. Id. at 36. The vitreous humor sample was found to contain .22 percent alcohol by weight. See Toxicology Report dated 10/30/2002.
On September 21, 2002, Ward County Sheriff's Deputy Todd Polumbo completed a Motor Vehicle Crash Report regarding the Olson accident. In the "Officer's Narrative" section of that report, Deputy Polumbo wrote "It does not appear alcohol was a contributing factor to the crash." See Motor Vehicle Crash Report, dated September 21, 2002. Deputy Polumbo based that conclusion on two things: (1) he did not smell an odor of alcohol in the vehicle shortly after the accident; and (2) Bruce Ruppert, the Minot Country Club superintendent, told him that Olson had consumed only a limited number of alcoholic beverages. See Deposition of Deputy Todd Polumbo, pp. 36-39. Ruppert had spoke with the bartender at the clubhouse and the individual who drives the drink cart out on the golf course. Id. at 37-38.
In March of 2003, Olson's attorney requested that the vitreous humor sample be retested and that the urine sample be tested for alcohol concentration. See Letter from Steven Storslee to Margaret Pearson, dated March 19, 2003. The alcohol concentration in the urine sample was .06 grams per 67 mls of urine. See Letter from Margaret Pearson to Steven Storslee, dated May 5, 2003. The vitreous humor sample was retested four times. The lab reported the following results in conjunction with the original result:
Vitreous Analyses Dates Alcohol Concentrations
09/19/02 0.226
03/14/03 0.128
03/20/03 0.135
04/02/03 0.125
04/16/03 0.095
Id. In her letter of May 5, 2003, State Toxicologist Margaret Pearson explained that the gradual decrease in the alcohol concentration may be attributed to the use of a screw-top tube as opposed to a vacutainer tube.
The defendant, Ford Motor Company ("Ford"), has retained three expert witnesses to testify about the conversion of vitreous humor results to blood alcohol concentration. Each expert utilized the vitreous sample result of .22 generated on September 19, 2002. The experts have varying opinions as to the exact blood alcohol concentration, but all agree that Olson's blood alcohol concentration exceeded .10 percent. See Deposition of Alan C. Donelson, p. 52; Deposition of Richard T. Mason, p. 33; Deposition of Lowell C. Van Berkom, p. 33. Ford's experts also intend to offer opinions regarding the urine sample. Olson has retained expert Anne Rummel Manly to contest the scientific reliability of the vitreous humor and urine samples.
The plaintiff, Diana Olson, seeks to exclude any and all evidence regarding alcohol consumption. Alternatively, Olson seeks to exclude all such evidence except testimony from eyewitnesses who actually saw Richard Olson in an intoxicated state at the Minot Country Club during the evening of the accident.
It is undisputed that several people witnessed Olson consume alcohol before leaving the Minot Country Club the evening of September 17, 2002. None of the eyewitnesses will apparently testify that Richard Olson was intoxicated. Under the Federal Rules of Evidence, all "relevant evidence" is admissible, unless otherwise prohibited. See Fed.R.Evid. 402. "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is in consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R.Evid. 401. The trial court has broad discretion in deciding whether to admit evidence at trial. See Fortune Funding LLC v. Ceridian Corp., 368 F.3d 985, 990 (8th Cir.2004).
There is no question that testimony concerning Olson's alcohol consumption or lack of consumption is relevant in this wrongful death action. The relevancy of the decedent's alcohol consumption is bolstered by the fact that Ford has pled contributory negligence or comparative negligence as an affirmative defense. Olson has cited no authority for the proposition that such eyewitness testimony should be inadmissible.1 The jury will be charged with the ultimate task of determining the cause of the fatal accident. The Court finds that evidence relating to alcohol consumption on the part of the decedent, Richard Olson, will aid the jury in that determination. The use of alcohol and its effects, if any, on Olson are factors that should be considered by the jury in their determination of whether Olson's action contributed in any manner to the cause of the fatal accident. All parties will have sufficient opportunity to examine and cross-examine the witnesses who testify regarding this subject. There is no question that evidence of the decedent's alcohol consumption and level of impairment will be of significant importance in this case, but such evidence is without question relevant to the issues of fault and causation.
It is well-established that even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Unfair prejudice relates to the risk that the jury will decide the case on an improper basis. Nichols v. American Nat. Ins. Co., 154 F.3d 875, 885 (8th Cir.1998). No such concerns exist with respect to eyewitness testimony in this case. Both parties will be allowed to present evidence regarding Olson's alcohol consumption in the form of eyewitness testimony.
As an extension of the previous argument, Olson seeks to exclude the testimony of Ford's three expert witnesses concerning the conversion of the vitreous humor fluid to a blood alcohol concentration level. Olson cites to Section 39-20-07 of the North Dakota Century Code to support her argument. Olson also challenges the admissibility of such testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Ford also seeks to exclude Olson's expert witness, Anne Rummel Manly, on Daubert grounds. In addition, if testimony is allowed on the subject, Olson requests that Ford be limited to a single expert.
Section 39-20-07 of the North Dakota Century Code provides, in part, as follows:
Interpretation of chemical tests. Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual...
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