Thompson v. Holliman

• Decision Date: 24 October 2019
• Docket Number: NO. 2018-CA-01225-SCT,2018-CA-01225-SCT
• Citation: 283 So.3d 718
• Parties: Maria E. THOMPSON v. Dennis L. HOLLIMAN and Allstate Property and Casualty Insurance Company
• Court: Mississippi Supreme Court

283 So.3d 718

Maria E. THOMPSON

v.Dennis L. HOLLIMAN and Allstate Property and Casualty Insurance Company

NO. 2018-CA-01225-SCT

Supreme Court of Mississippi.

October 24, 2019

ATTORNEYS FOR APPELLANT: MICHAEL SCOTT BISHOP, SUSAN CHRISTINA DEHGHANI-SANICH

ATTORNEYS FOR APPELLEES: ROBERT W. ATKINSON, GULFPORT, MYLES ETHAN SHARP

EN BANC.

BEAM, JUSTICE, FOR THE COURT:

¶1. Maria Thompson filed a complaint against Dennis Holliman and Allstate Property and Casualty Insurance Company ("Allstate") in the County Court of the Second Judicial District of Harrison County, alleging that Holliman had negligently operated his motor vehicle while pulling a trailer in a gas-station parking lot, resulting in a collision in which she was injured. A Harrison County jury returned a verdict in favor of Holliman, and the circuit court entered a judgment consistent with the jury verdict. Aggrieved, Thompson appealed, alleging that the trial court had abused its discretion by excluding her expert witness.

FACTS AND PROCEDURAL HISTORY

¶2. On April 7, 2013, Thompson and Holliman were involved in a motor-vehicle collision in the parking lot of a privately owned gas station in Biloxi, Mississippi. Holliman's Chevrolet Silverado and attached trailer collided with Thompson's Nissan Maxima as Holliman was driving through the gas-pump bay and as Thompson was exiting the lot.

¶3. On June 9, 2014, Thompson sued Holliman in the County Court of Harrison County, Mississippi, Second Judicial District, alleging that Holliman negligently drove through the gas-station parking lot. According to Thompson, she sustained serious bodily injuries and sought damages for bills and medical treatment, loss of wages, physical pain and suffering, and mental and emotional distress.

¶4. On March 22, 2016, Thompson filed a supplemental designation of expert witness¹ designating Jason Walton as an accident-reconstruction expert. Attached to the motion were Walton's curriculum vitae and expert report, which included a review of the Harrison County Sheriff's Department parking-lot accident report, a photograph taken at the scene of the collision, photographs of both vehicles involved in the collision, Google Earth imagery of the collision area, and deposition testimony of Thompson and Holliman.

¶5. Holliman filed a motion in limine to strike Walton's expert testimony because his report did not provide calculations or data supporting his opinions. On June 9, 2016, the trial court entered an order granting Holliman's motion to strike. The trial court stated that an opinion of an expert "must be based on some scientific data with certain principals and methodology .... [and] the facts of the case at hand." The court found that Walton's use of a "typical" vehicle standard was inadequate. The court concluded that Walton's report was not "the product of reliable principles and methods"; he was in "no better position than the trier of fact to conclude whether [Holliman's] actions were negligent"; and his opinion would not be helpful to the jury.

¶6. Thompson redesignated Walton and provided the court with an amended expert report. In this amended report, Walton measured the average speed of vehicles at the collision site. Holliman again filed another motion to strike Walton's testimony. On October 7, 2016, the trial court held a hearing on the matter and entered an order granting Holliman's motion to strike. In a trial held on October 19 and 20, 2016, a jury found in Holliman's favor.

¶7. Thompson appealed the decision to the Circuit Court of the Second Judicial District of Harrison County to review the trial court's exclusion of Walton's testimony. On July 27, 2018, the circuit court entered an order affirming the judgment of the trial court. In the order, the court stated that, "[w]ithout a set of protocols [for driving in a parking lot], an opinion as to fault or negligence would not have basis."

¶8. Additionally, the court held that Walton's methodology of "observing the speed of ... vehicles [in the] gas pump bays and calculating an average speed fails to ... give consideration to the tow load of Holliman's truck [and those used in the experiment], ... compare the tested vehicles with the vehicles of the parties, ... and adequately describe the conditions of the parking lot." The court also found no evidence that "Walton's methodology was generally accepted in the field of accident reconstruction."

¶9. On August 23, 2018, Thompson filed a notice of appeal to this Court. This Court finds that the trial court did not err by excluding Walton as an expert witness.

DISCUSSION

I. Standard of Review

¶10. The standard of review for the admission or exclusion of evidence, such as expert testimony, is abuse of discretion. Inv'r Res. Servs., Inc. v. Cato , 15 So. 3d 412, 416 (Miss. 2009) (citing Adcock v. Miss. Transp. Comm'n , 981 So. 2d 942, 946 (Miss. 2008) ).

II. Whether the trial court abused its discretion by excluding Thompson's expert witness.

¶11. Mississippi Rule of Evidence 702 states,

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

M.R.E. 702.

¶12. "The trial court is vested with a ‘gatekeeping responsibility.’ " Miss. Transp. Comm'n v. McLemore , 863 So. 2d 31, 36 (Miss. 2003) (quoting Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 588-89, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) ). "The trial court must make a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.’ " Id. (quoting Daubert , 509 U.S. at 592-93, 113 S.Ct. 2786 ). "This rule makes it necessary for a trial court to apply a two-pronged inquiry when evaluating the admissibility of expert testimony: (1) is the witness qualified, and (2) is the testimony relevant and reliable?" McKee v. Bowers Window & Door Co. , 64 So. 3d 926, 932 (Miss. 2011) (internal quotation marks omitted) (quoting Watts v. Radiator Specialty Co. , 990 So. 2d 143, 146 (Miss. 2008) ).

¶13. Walton concluded that Holliman's actions had been the sole proximate cause of the collision. Specifically, Walton stated that Holliman failed to yield to oncoming traffic and failed to maintain a proper lookout in a situation that would require a heightened level of awareness. Holliman stated that he did not see Thompson until just before impact. Thompson stated that she saw Holliman and thought he was pulling into the gas-pump bay and not exiting the parking lot. Walton opined that had Holliman stopped at the bay and then moved forward, Thompson would have been aware that Holliman was exiting the parking lot.

¶14. We find that Walton was qualified to testify in the field of accident reconstruction. "Mississippi recognizes and allows the use of accident reconstruction experts at trial." Poirrier v. Degrande , 604 So. 2d 268, 270 (Miss. 1992) (citing Miller ex rel. Miller v. Stiglet, Inc. , 523 So. 2d 55, 60 (Miss. 1988) ). " Mississippi Rule of Evidence 702 ... indicates that a witness may be qualified as an expert by knowledge, skill, experience, training, or education." Miller , 523 So. 2d at 59.

¶15. According to Walton's curriculum vitae , he has served as a state trooper for the Mississippi Department of Public Safety for ten years. He is trained and certified in the field of accident reconstruction by the Mississippi Highway Patrol. He has investigated more than nine hundred collisions and has peer reviewed at least two thousand accident reports submitted for district approval over a three-year period. Specifically, Walton has received training on human factors in traffic-crash reconstruction, forensic mapping, technical-accident investigation, vehicle-acceleration rates, pedestrian walking speeds, and GPS data analysis of commercial vehicle-braking events. Holliman concedes that Walton's qualifications are not in question, and we agree.

¶16. Next, for expert testimony to be admissible, it must be both relevant and reliable. Daubert , 509 U.S. at 592–94, 113 S.Ct. 2786.

In Hollingsworth v. Bovaird Supply Co. , 465 So. 2d 311, 315 (Miss. 1985), this Court first held that a properly qualified and examined expert witness could provide testimony on issues of ultimate fact regarding the cause of car wrecks without invading the jury's province-essentially placing accident reconstructionist experts on equal footing with other experts. Under Daubert , however, [Walton's] testimony must still be both relevant and reliable. Daubert , 509 U.S. at 591-[9]2, 113 S.Ct. 2786.

Denham v. Holmes ex rel. Holmes , 60 So. 3d 773, 785 (Miss. 2011).

¶17. The trial judge struck Walton's first report because he found that "whatever opinion he hopes to give has got to be based upon this case and it's replete with a typical driver." Holliman maintains that Walton's second report, in which he had substituted the "typical" language with estimations, still did not meet the requisite criteria for admissibility under Daubert. Comparing the two opinions, Holliman argues that "it is clear that the observation and resulting calculations of average speed were not the basis for his opinion as to the fault for the accident and, as such, his opinion was not based in any scientific procedure." In Daubert , the Supreme Court ruled that a trial judge, when faced with a proffer of expert scientific testimony, must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine the fact in issue. Da...