Sullivan v. Fairmont Homes, Inc.

Decision Date20 September 1989
Docket NumberNo. 29A02-8902-CV-00049,29A02-8902-CV-00049
PartiesThomas J. SULLIVAN, Appellant (Plaintiff Below), v. FAIRMONT HOMES, INC., and Lynn L. Walker, Appellees (Defendants Below). 1
CourtIndiana Appellate Court

Charles T. Jennings, Mark R. Smith, Jennings & Maas, Indianapolis, Ind., for appellant.

Terrence L. Brookie, Todd J. Kaiser, Locke Reynolds Boyd & Weisell, Indianapolis, Ind., for appellees.


This appeal arises from a rear-end collision case in which the jury returned a verdict in favor of the defendants-appellees, Fairmont Homes, Inc. and Linn L. Walker. The plaintiff-appellant Thomas J. Sullivan raises multiple issues for our review, which we have recharacterized as the following:

1) whether the trial court committed reversible error by permitting Fairmont Homes's expert witness to read to the jury portions of a computer-generated interpretive report which the witness did not prepare;

2) whether the trial court committed reversible error when it ruled testimony from Fairmont Homes's in-house counsel privileged;

3) whether Sullivan's inability to introduce portions of deposition testimony during rebuttal was due to an abuse of discretion by the trial court;

4) whether the trial court abused its discretion when it permitted Fairmont Homes to utilize deposition testimony elicited by Edwards after Edwards settled and was no longer a party to the lawsuit;

5) whether the trial court properly disallowed impeachment of Edwards by use of a prior child molesting conviction;

6) whether the trial court committed reversible error by reading Fairmont Homes's tendered instruction on the sudden emergency doctrine;

7) whether the trial court committed reversible error in refusing Sullivan's tendered instruction on concurrent negligence;

8) whether the trial court committed reversible error in refusing Sullivan's tendered instruction on proof of damages;

9) whether Sullivan was denied a fair trial by a combination of errors or irregularities;

10) whether the judgment is contrary to law;

11) whether Sullivan was entitled to a judgment on the evidence on the issue of liability; and 12) whether the trial court erred in denying Sullivan a new trial.

We affirm.

On January 12, 1984, between 7:00 and 7:30 a.m., Walker, an employee of Fairmont Homes, was driving north in the east lane of U.S. 31 near Kokomo, Indiana in a semi-tractor/trailer with a load of five to six tons. It was rush hour. As Walker approached the stoplight at the intersection of U.S. 31 and Savoy Street, he observed the Curtis vehicle in which Sullivan was a passenger already stopped in the same lane. He also observed the Edwards vehicle in the east lane running alone toward the intersection. Walker was about 200-300 feet behind Edwards and moving about 30 to 35 m.p.h. at this time. Edwards and Walker applied their brakes at the same time, as the light changed to red. Edwards hit a patch of frost and the rear-end of his vehicle began to fishtail within the lane, but eventually he came to a stop four to five feet behind the Curtis vehicle. Edwards estimated that he traveled 100-200 feet after he first applied his brakes. Walker had slowed the truck down and was somewhat closer to Edwards than 200-300 feet when he saw Edwards's vehicle sliding.

Walker testified that it was only a matter of seconds between the time he saw Edwards come to a stop, the semi began to slide, and he collided with Edwards. Walker had applied his brakes and slowed the semi down on dry pavement but when he hit the frost, his wheels "turned loose" and the brakes apparently locked. He did not sound his horn because he was too busy trying to get the truck stopped. Edwards had only enough time to wipe his brow with relief, and look into the mirror. He saw the semi's headlights disappear and jerked his steering wheel to the left, in an attempt to avoid an impact with the Curtis vehicle. He estimated he had only about a twentieth of a second to react. Edwards reported Walker was not moving very fast at the time of collision. Walker testified he was going about 10 m.p.h. when he collided with Edwards and propelled Edwards's vehicle forward into the Curtis automobile, injuring Sullivan.


Sullivan argues the trial court committed reversible error when it permitted the defendants' expert witness, Dr. Bartleson, to read to the jury a computer-generated, interpretive report of a Minnesota Multiphasic Personality Inventory test (MMPI) given Sullivan after the collision, and when it admitted a letter authored by Dr. Bartleson which quoted the MMPI report. The report itself, which Sullivan contends constitutes inadmissible hearsay, was not otherwise admitted as substantive evidence.

Dr. Bartleson testified that the MMPI has been widely used for about fifty years as a screening device for emotional disorders. He could not say why he ordered the test for Sullivan. Although Dr. Bartleson indicated he thought the report must have influenced him in some way, he could not say he relied upon it in reaching a diagnostic conclusion. Dr. Bartleson does not consider himself to be an expert in the interpretation of the MMPI. The record does not show who programmed the computer, how the information provided by Sullivan was recorded and fed into the computer, or the scientific acceptability or reliability of the computerized result.

Again, Sullivan's complaint is not with Dr. Bartleson's use of the report in formulating his own expert opinion but with Dr. Bartleson's reading of another expert's interpretation of test results verbatim to the jury without appropriate foundational testimony or subjecting the author of the report to cross-examination. Generally, the observations or opinions of someone not present at trial are hearsay and cannot be introduced to confirm or bolster an expert witness's testimony where the observations or opinions are offered to show the truth of the matter asserted therein and where the expert witness arrived at his opinion independent of them. Indiana & Michigan Electric Co. v. Hurm (1981), Ind.App., 422 N.E.2d 371, 379; Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148, 155. See also, In re the Guardianship of Carrico v. Bennett (1974), 162 Ind.App. 330, 319 N.E.2d 625. An expert in one field cannot be a conduit for the opinions of an expert in another field. Duncan v. George Moser Leather Co. (1980), Ind.App., 408 N.E.2d 1332, 1343. Cf., also, Capital Improvement Bd. of Managers of Marion County v. Public Service Comm'n. (1978), 176 Ind.App. 240, 375 N.E.2d 616; Trinity Universal Ins. Co. v. Town of Speedway (1965), 137 Ind.App. 510, 210 N.E.2d 95.

Fairmont contends the report is not hearsay because the testimony was not offered to prove the truth of the various matters asserted in the report but to show one of the reports which Dr. Bartleson relied upon to form an opinion as to the cause of Sullivan's headaches. We find this argument disingenuous. Dr. Bartleson testified that while the report must have influenced him in some way, he did not rely upon it in diagnosing Sullivan's medical condition. Had Dr. Bartleson in fact relied upon the report, he necessarily would have taken the substance of the report to be true. Yet, the record does not show the witness knew anything more about the results of the test than he had read in the report to the jury. The examination and resulting profile were not before the court or offered to the witness. The reliability of the test's interpretation, dependent upon the method and qualifications of the tester as well as the expertise of the interpreter, could not be challenged through cross-examination, because Dr. Bartleson played no role in the preparation of the report. Dr. Bartleson was not testifying from his own personal knowledge of the exhibit. Hence, the court erred in admitting this hearsay evidence.

We cannot agree with Sullivan, however, that the admission of this evidence constitutes reversible error. The jury's verdict in favor of Fairmont Homes amounts to a determination of nonliability. Evidence directed toward the extent of Sullivan's injuries could have played no role in the jury's determination. Accord, Campbell v. City of Mishawaka (1981), Ind.App., 422 N.E.2d 334, trans. denied. Nonetheless, Sullivan maintains that the psychological profile read by Dr. Bartleson casts doubt on all of his testimony and necessarily affected the jury when it weighed the evidence and assessed witness credibility. Sullivan assumes that conflicts or inconsistencies in the evidence existed, requiring the jury to reconcile the testimony. We find, however, no contradiction. The jury could have accepted as true the testimony of each of the witnesses and still found Walker did not act negligently. None of the witnesses observed snow or ice on the road prior to the collision. All reported it to be a clear, crisp morning and the road conditions dry. Both Walker and Edwards, the driver of the vehicle directly behind the Curtis vehicle, testified that the road appeared dry yet each slid as he slowed to stop. Edwards crossed the patch without sliding into the Curtis vehicle. Walker's brakes locked as he crossed the patch. Neither of the occupants in the Curtis vehicle saw the accident happen.


Sullivan argues next that the trial court erred in prohibiting testimony from Fairmont Homes's in-house corporate counsel, Kenneth Brinker. Sullivan indicated before making an offer to prove that he intended to ask Brinker whether it was his opinion, based upon the facts that had been reported to him by employee Walker, that Walker was negligent in the operation of his truck at the time of the collision. The trial judge indicated he would sustain Fairmont Homes's objection to that question based upon attorney-client privilege. However, during the offer to prove, Sullivan instead asked Brinker what facts Walker related to him concerning the accident, not his legal opinion. The trial court...

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