Sciarrilla v. Osborne

• Citation: 946 S.W.2d 919
• Decision Date: 26 June 1997
• Docket Number: No. 09-95-365,09-95-365
• Parties: Mary SCIARRILLA, Appellant, v. Michael K. OSBORNE, Appellee. CV.
• Court: Court of Appeals of Texas

Page 919

946 S.W.2d 919

Mary SCIARRILLA, Appellant, v. Michael K. OSBORNE, Appellee.

No. 09-95-365 CV.

Court of Appeals of Texas Beaumont.

Submitted Feb. 20, 1997.

Decided June 26, 1997.

Suzanne Werner, Richard J. Clarkson, Bob Wortham, Reaud, Morgan & Quinn, Beaumont, for appellant.

Christy Amuny, Pate & Dodson, Beaumont, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

WALKER, Chief Justice.

This is a suit for personal injuries brought by Mary Sciarrilla as a result of an automobile accident which occurred on September 12, 1991. Plaintiff, now appellant, Mary Sciarrilla, filed suit against defendant, now appellee, Michael K. Osborne, claiming that he was negligent in causing the automobile accident made the basis of this suit. Plaintiff contended that defendant came into her lane and forced her vehicle off the road, causing the plaintiff's vehicle to flip over numerous times. Plaintiff Sciarrilla claimed injuries to her neck, back and head as a result of the accident. Defendant Osborne claimed that he was not negligent and that he did not run plaintiff's vehicle off the road. Osborne contended that Sciarrilla herself was negligent in causing the accident.

The jury found plaintiff to be negligent in causing the accident, thus pursuant to court instructions, the jury did not answer the questions regarding damages. The trial court entered judgment in favor of defendant, Michael K. Osborne, and against plaintiff, Mary Sciarrilla, from which appellant Sciarrilla now appeals.

Appellant brings three points of error which we shall pursue in the order presented. Point of error one contends that the trial court erred in allowing Trooper Daniel Young to testify as an expert witness.

The accident was investigated by Trooper Daniel Young. At the time he testified, Trooper Young was a Trooper II with the Texas Department of Public Safety. Trooper Young has a Bachelor of Science Degree in Criminal Justice, majoring in law enforcement, from Southwest Texas State University. Trooper Young took science and engineering courses in college. Trooper Young had been with the Texas Department of Public Safety since September 12, 1989. During his twenty-two (22) weeks at the police academy, Young received training in accident investigation and in all areas of law enforcement, most of which was based on traffic laws. Trooper Young moved to the Highway Patrol Division in May 1991. In July and August 1991, Trooper Young attended a three week advanced accident reconstruction school through the Department of Public Safety in Austin. When Trooper Young began Highway Patrol Division in May 1991, he was required to ride with a senior officer for six months. Prior to the accident which was the subject-matter of the present suit, Trooper Young had investigated approximately thirty-five to forty automobile accidents. Trooper Young had completed the advanced accident reconstruction school approximately one month before the September 12, 1991 accident. He had investigated approximately ten to fifteen accidents between the time he completed the advanced accident investigation school and the time he investigated the accident in question. At the time of his testimony, Trooper Young had investigated probably between four hundred and five hundred accidents.

While attending the advanced accident reconstruction school, Trooper Young learned how to arrive at an accident scene, take physical evidence and use that evidence to reconstruct what happened in an accident. His training with regard to physical evidence included observing and evaluating the physical evidence left from the vehicles themselves, parts of the vehicle, where the vehicles may come to rest, skid marks, scuff marks, etc. Trooper Young learned to take the weights of vehicles, where such vehicles come to rest, and use different types of formulas to calculate speed, direction of travel, and the like. His training included how to take the physical evidence at the scene and work the accident just from physical evidence. Young learned to evaluate the physical evidence at an accident and tell what happened from the point where the physical evidence starts until the final act of an accident. Young learned how to forego what people tell him happened in an accident and to base his conclusion on the physical evidence left there at the scene. Trooper Young testified that when he investigates an accident, his investigation and any opinions or conclusions he may have are based upon his training at the academy, his training at the advanced accident reconstruction school and his experience in investigating accidents.

Prior to Trooper Young's testimony, his credentials were proved up outside the presence of the jury. Opposing counsel had an opportunity to voir dire Trooper Young regarding his credentials also outside the presence of the jury. While outside the presence of the jury, and prior to Trooper Young's testimony, opposing counsel stated the following:

Factual testimony, we have no objections to him testifying to as to what he observed out there. It's the conclusions that we object to, Your Honor, as being a trooper for less--I mean, actually being a trooper for less than five months, only out of school a month, still a trainee. I just don't see any way that he can be classified on December [sic] 12th, 1991 as an expert.

This was the only objection to Trooper Young's testimony made by opposing counsel. The trial court gave serious consideration regarding Trooper Young's qualifications to testify as an expert as we see from the following colloquy by the court:

THE COURT: Well, an interesting question this has turned out to be. I'm not going to mind stating on the record a close question. Let me think about this for a little bit.

. . . . .

[Appellee's trial counsel] They can testify that police officers also give testimony as lay witnesses based on what they perceive when they get there as well as their experience as a police officer.

. . . . .

THE COURT: The Court will allow the officer to testify. Bring in the jury.

We find nothing in the record designating Trooper Young as an expert witness, though we recognize that his opinion regarding physical evidence was offered and considered as that of an expert.

In challenging Trooper Young's qualifications as an expert, appellant primarily relies on the cases of Clark v. Cotten, 573 S.W.2d 886 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.); Estate of Brown v. Masco Corp., 576 S.W.2d 105 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.); and E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). In Clark, plaintiff attempted to introduce testimony from a State Trooper as to the ultimate cause of the accident. This Beaumont Court of Appeals determined that even though the State Trooper had been with the Department of Public Safety for eight and one-half years, received seventeen weeks of training and investigated three hundred and fifty accidents, these credentials failed to qualify the trooper to opine the ultimate cause of the accident. We distinguish Clark from the present case in that in Clark, there was no showing that the trooper had any specialized training in accident investigation or accident reconstruction. The seventeen weeks training referenced in Clark, does not indicate the type of training and whether such training was simply basic academy training or some other type of training. In the present case, Trooper Young specifically testified that he had additional and specialized training in the area of accident investigation by his attendance to advanced accident reconstruction school through the Texas Department of Public Safety. Even though Trooper Young had less time and service with the Department of Public Safety than did the trooper in Clark, Young was shown to have specialized training and education in the area in which expert opinion was given.

With regard to the Brown case, the qualifications of the police officer in question substantially differ from those of Trooper Young. The officer in Brown had only three days of accident investigation training, had investigated only twenty accidents prior to the trial, and his degree was in elementary education. Brown, 576 S.W.2d at 108. Recall that Trooper Young's degree was in criminal justice and had received accident training not only in the police academy but also had attended a three-week advanced accident reconstruction school about one month prior to the accident in question, and that prior to the accident in question Trooper Young had investigated approximately thirty-five to forty accidents.

Our Texas Supreme Court has issued two recent opinions discussing the law with regard to qualifications of individuals being proffered as expert witnesses, as opposed to the scientific reliability of the data used by an already acknowledged expert in forming his or her opinion, as was the issue raised in E.I. du Pont de Nemours & Co. v. Robinson, supra. In June of 1996, the Court handed down Broders v. Heise, 924 S.W.2d 148 (Tex.1996), and then in January of 1997, the Court issued United Blood Serv. v. Longoria, 938 S.W.2d 29 (Tex.1997). We quote from Longoria:

Whether a witness is qualified to offer expert testimony is a matter committed to the trial court's discretion. Broders v. Heise, 924 S.W.2d 148 (Tex.1996). The trial court must determine if the putative expert has "knowledge, skill, experience, training, or education" that would "assist the trier of fact." See TEX.R. CIV. EVID. 702. The burden of establishing an expert's qualifications is on the offering party. Broders, 924 S.W.2d at 151. We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).

Longoria, 938 S.W.2d at 30-31.

To all of the above, the Court in Broders added the following observation, "What is required is that the offering part...