Ostler v. Albina Transfer Co., Inc.

• Decision Date: 08 September 1989
• Docket Number: No. 880228-CA,880228-CA
• Citation: 781 P.2d 445
• Parties: Ralph OSTLER, Plaintiff and Appellant, v. ALBINA TRANSFER COMPANY, INC., Stanley E. Wheeler, and F & R Roe, Inc., Defendants, Third-Party Plaintiffs and Respondents, v. Wanda OSTLER, Stephen K. Ostler, Gary W. Ostler, Vyron R. Ostler, Dale F. Ostler, Donnell B. Ostler, Sonda Mae Ostler, Ralph O. Ostler, Brian L. Ostler, Carlyle E. Ostler, Margaret Ostler, and Nathan J. Ostler, as heirs of Stephen Ostler, Gary Ostler, Dale Ostler, and Eugene Ostler, d/b/a Go Cars, Third-Party Defendants.
• Court: Utah Court of Appeals

Page 445

781 P.2d 445

Ralph OSTLER, Plaintiff and Appellant, v. ALBINA TRANSFER COMPANY, INC., Stanley E. Wheeler, and F & R

Roe, Inc., Defendants, Third-Party Plaintiffs and Respondents, v. Wanda OSTLER, Stephen K. Ostler, Gary W. Ostler, Vyron R.

Ostler, Dale F. Ostler, Donnell B. Ostler, Sonda Mae Ostler,

Ralph O. Ostler, Brian L. Ostler, Carlyle E. Ostler,

Margaret Ostler, and Nathan J. Ostler, as heirs of Stephen

Ostler, Gary Ostler, Dale Ostler, and Eugene Ostler, d/b/a

Go Cars, Third-Party Defendants.

No. 880228-CA.

Court of Appeals of Utah.

Sept. 8, 1989.

Rehearing Denied Oct. 19, 1989.

Robert J. DeBry, Daniel F. Bertch, Warren W. Driggs, and Dale F. Gardiner (argued), Salt Lake City, for plaintiff and appellant.

M. Dayle Jeffs (argued) and Robert L. Jeffs, Provo, for defendants, third-party plaintiffs and respondents.

Before BENCH, GREENWOOD and JACKSON, JJ.

OPINION

BENCH, Judge:

Plaintiff appeals from a jury verdict against him in a negligence action. We affirm.

On the night of April 18, 1984, plaintiff Ralph Ostler was accompanying his father Stephen home to Utah from a business trip to California. At approximately 3:00 a.m., the Ostler's compact pickup was northbound on Interstate 15, a few miles south of Payson, Utah. Stephen Ostler was driving. For unknown reasons, the pickup left the lane of traffic and struck the rear of a truck and semitrailer unit parked on the paved shoulder of the roadway. Stephen Ostler was killed instantly. Plaintiff, who had been sleeping on the bed of the pickup, was thrown onto the roadway and critically injured.

Plaintiff was paralyzed from the waist down as a result of his injuries. He brought a personal injury action in the district court against the driver of the semitrailer (defendant Stanley E. Wheeler), the driver's employer (defendant Albina Transfer Co., Inc.), and the semitrailer owner (defendant F & R Roe, Inc.). During the five-day trial, plaintiff conceded that Stephen Ostler was negligent and partially at fault for the accident. Early in the trial, the court determined that Wheeler was also negligent and directed a verdict of negligence against him. The basis for this ruling was that Wheeler had parked his semitrailer on the shoulder of a controlled access highway in violation of Utah Code Ann. § 41-6-103(1)(i) (1988). The court reserved the issue of whether Wheeler's negligence was a "proximate cause" of the accident. The jury eventually concluded that Stephen Ostler's negligence was the "intervening and sole proximate cause" of plaintiff's injuries, and rendered a special verdict for defendants. Plaintiff appeals from the verdict, alleging numerous errors.

VOIR DIRE

We first address plaintiff's claim that jury voir dire was inadequate to reveal bias related to a "tort reform" advertising campaign conducted by a national insurance company. It is obvious from the trial transcript that the gist of plaintiff's questions went to the issue of potential juror bias against large monetary awards.

Rule 47(a) of the Utah Rules of Civil Procedure requires the court to permit the parties to supplement voir dire with questions that are material and proper. However, the court has considerable discretion to "contain voir dire within reasonable limits." Hornsby v. Corporation of the Presiding Bishop, 758 P.2d 929, 932-33 (Utah Ct.App.1988). Whether that discretion has been abused is determined from the totality of the questioning. Doe v. Hafen, 772 P.2d 456, 457-58 (Utah Ct.App.1989).

In lieu of plaintiff's proposed questions, the judge informed the venire that plaintiff's claim may exceed a million dollars and asked if any would object to an award of that magnitude. None did. The judge also asked if any of the prospective jurors believed that people should not resort to the courts to settle disputes or recover damages for injuries. Again, none did. The judge followed with a question asking whether any believed they were incapable of rendering a fair and true verdict based on the evidence. None responded affirmatively. In their totality, and in context with the remainder of voir dire, these questions are substantively responsive to plaintiff's concerns and appear sufficient to reveal "tort reform" bias in the manner discussed in Doe, 772 P.2d at 458-59. Plaintiff, therefore, has not shown an abuse of discretion in the court's voir dire of prospective jurors.

EXPERT TESTIMONY

Plaintiff argues that the trial court improperly rejected his evidence on the issue of proximate cause, resulting in prejudicial error. All of this evidence was in the form of proffered testimony from two experts. The excluded evidence covered a variety of topics, including a scientific theory referred to as the "moth phenomenon," certain federal motor carrier regulations, road safety and design, and a videotape prepared for plaintiff that purported to show what would have happened if the semitrailer had not been unlawfully parked.

The general rule regarding the admission or exclusion of evidence is that the trial court's decision will not be overturned in the absence of an abuse of discretion. Pearce v. Wistisen, 701 P.2d 489, 491 (Utah 1985). Witnesses qualified as experts may testify if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Utah R.Evid. 702. However, "[i]t is within the discretion of the trial court to determine the suitability of expert testimony in a case and the qualifications of the proposed expert." State v. Clayton, 646 P.2d 723, 726 (Utah 1982) (decided under former rule). Although such testimony may be relevant, it may be excluded if the court determines "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." Utah R.Evid. 403. The probative value of evidence is determined on the basis of need and "its ability to make the existence of a consequential fact either more or less probable." State v. Johnson, 115 Utah Adv.Rep. 6, 8 (1989) (quoting State v. Williams, 773 P.2d 1368, 1370 (Utah 1989)).

We have examined the record and can find no abuse of discretion in the trial court's decision to exclude the testimony of two of plaintiff's seven experts. It is quite clear that the reason or reasons why Stephen Ostler's vehicle slammed into the rear of Wheeler's semitrailer could not be established. Plaintiff's case relied significantly on scientific evidence of the "moth phenomenon," a theory that motorists are "lured" at night to the lights of parked vehicles. Even if such a theory is admissible under the threshold requirement of inherent reliability, see State v. Rimmasch, 775 P.2d 388, 398-99 (Utah 1989), the theory is premised on the fact that a driver must be awake in order to be so "lured." Plaintiff's own expert admitted that there was no conclusive way to determine Stephen Ostler's state of consciousness prior to the accident. Nor does the theory necessarily establish causation because plaintiff's expert conceded that none of the factors triggering the moth phenomenon were proven. Without this foundation, the court determined that the expert testimony on the moth phenomenon would not be helpful to the jury, and furthermore, that it would be prejudicial to present an opinion based on such pure conjecture.

This is consistent with the principle that "any expert evidence, scientifically based or otherwise" must, on balance, "be helpful to the trier of fact." Id. at 398 n. 8. Such evidence must be scrutinized carefully to avoid the "tendency of the finder of fact to abandon its responsibility to decide the critical issues and simply adopt the judgment of the expert despite an inability to accurately appraise the validity of the underlying science." Id. at 396. Whether the probative value of evidence is substantially outweighed by its prejudicial effect is a determination within the sound discretion of the trial court. State v. Johnson, 115 Utah Adv.Rep. at 9. Under rules 403 and 702 of the Utah Rules of Evidence, we conclude that the trial judge was within his discretion to exclude the testimony.

Similarly, the trial court concluded that plaintiff's videotaped demonstration was more apt to be confusing to the jury than helpful. The videotape depicted a compact pickup truck driving off the roadway at the actual accident location. It purported to show that no mishap would have occurred had Wheeler's truck not been parked on the road shoulder. Plaintiff first argues that the videotape was for illustrative purposes and was proper under Millers Nat'l Ins. Co. v. Wichita Flour Mills Co., 257 F.2d 93 (10th Cir.1958) and other cases. It is obvious, however, that the film did not illustrate the accident, but rather portrayed plaintiff's prediction of events under a different set of facts. As such, the potential for unfair prejudice as illustrative evidence was significant, and the trial court was within its discretion to exclude it.

Plaintiff alternatively argues that the videotape was admissible as evidence. Plaintiff cites DiRosario v. Havens, 196 Cal.App.3d 1224, 242 Cal.Rptr. 423 (1987) for the proposition that experimental evidence is admissible provided it is conducted under substantially similar conditions as that of the actual incident. "The standard that must be met in determining whether the proponent of the experiment has met the burden of proof of establishing the preliminary fact essential to the admissibility of the experimental evidence is whether the conditions were substantially identical, not absolutely identical." Id. 242 Cal.Rptr. at 426 (quoting Culpepper v. Volkswagen of America, Inc., 33 Cal.App.3d 510, 521, 109 Cal.Rptr. 110 (1973)). DiRosario imposes two other requirements--that the experimental evidence be relevant and not consume undue time, confuse the issues, or...