Wheaton v. Bradford

• Decision Date: 07 May 2013
• Docket Number: No. DA 12–0322.,DA 12–0322.
• Citation: 370 Mont. 93,300 P.3d 1162
• Parties: Billy Kaye WHEATON and Becky Jo Childers, Co–Personal Representatives of the Estate of Margaret Howard, and Billy Wheaton and Becky Childers, individually, Plaintiffs and Appellants, v. Tom BRADFORD and Dane Bradford, Co–Personal Representatives of the Estate of John Bradford, Defendants and Appellees.
• Court: Montana Supreme Court

370 Mont. 93

300 P.3d 1162

Billy Kaye WHEATON and Becky Jo Childers, Co–Personal Representatives of the Estate of Margaret Howard, and Billy Wheaton and Becky Childers, individually, Plaintiffs and Appellants,

v.Tom BRADFORD and Dane Bradford, Co–Personal Representatives of the Estate of John Bradford, Defendants and Appellees.

No. DA 12–0322.

Supreme Court of Montana.

Submitted on Briefs Jan. 3, 2013.

Decided May 7, 2013.

For Appellant: Michael G. Eiselein; Eiselein & Grubbs, PLLP; Billings, Montana, Elizabeth A. Halverson; Elizabeth A. Halverson, P.C.; Billings, Montana.

For Appellee: Mark D. Parker, Shawn P. Cosgrove; Parker, Heitz & Cosgrove, PLLC; Billings, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[370 Mont. 94]¶ 1 Plaintiffs Billy Kaye Wheaton and Becky Jo Childers, co-personal representatives of the Estate of Margaret Howard (collectively “ Howards”), filed a wrongful death and survivorship action against the co-personal representatives and the Estate of John Bradford (collectively “ Bradfords”), alleging negligence. A jury found that John Bradford(John) was not liable in negligence for the death of Margaret Howard (Margaret). Howards appeal from the judgment entered in favor of the Bradfords. We affirm and address the following issues:

¶ 2 1. Did the District Court err by permitting the defense expert to offer opinions, including video simulations, without a sufficient evidentiary foundation?

¶ 3 2. Did Bradfords violate the Montana Rules of Civil Procedure by failing to supplement the disclosure of the defense expert?

¶ 4 3. Did the District Court err by denying Howards' motion for a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On June 12, 2010, Margaret was driving south and John was driving north on U.S. Highway 212, a two-lane highway, south of Red Lodge. The two vehicles collided, coming to rest along the fog line in Margaret's southbound lane. Neither Margaret nor John survived, and there were no witnesses who could testify to the events leading up to the crash.¹ Local resident Julia Higgins (Higgins) arrived at the scene shortly after the accident and provided a witness statement to Montana Highway Patrol (MHP). MHP troopers investigated the accident and ultimately prepared a report.

[370 Mont. 95]¶ 6 At her deposition, Higgins stated that she was traveling south on Highway 212. She said she saw John's truck approaching in the northbound lane but did not see Margaret's vehicle until she after she had arrived at the scene of the accident. Higgins said the crash occurred on a section of Highway 212 that was obscured by a small rise when traveling southbound. Howards' counsel asked: “Do you have any memory of seeing [Margaret's] car before the accident at all?” to which Julia responded, “No. Never saw it.”

¶ 7 Both parties sought to reconstruct the accident. Howards retained two accident reconstructionists, but did not present the testimony of either at trial. Instead, they presented a partial accident reconstruction prepared by Trooper Hensley, who testified that, based on the final resting position of the vehicles, his opinion was that John's vehicle crossed the center line and hit Margaret's vehicle in the southbound lane.

¶ 8 Dr. Harry Townes (Townes), an engineer, was retained by Bradfords to reconstruct the accident. Townes visited the accident scene to take measurements and make observations. Townes used a computer program called the Engineering Dynamics Simulation Model of Automobile Collisions Version 4 (EDSMAC4) to simulate events leading up to the accident. The computer program pairs known variables with unknown pre-collision variables and runs trial scenarios to identify vehicle conditions before the accident. When a simulation of combined known and unknown variables results in a match of the known final resting positions of the vehicles, that combination of pre-collision conditions is considered, in Townes' opinion, to be a viable explanation of the vehicle trajectory leading to the accident.

¶ 9 Townes' expert witness disclosure statement included his opinion that Margaret “made an excursion into the northbound lane” and John “made an evasive maneuver” to avoid Margaret's oncoming vehicle. Townes' disclosure stated that he formed his opinion based upon the computer simulation results that incorporated MHP measurements and his measurements taken from the accident scene, the physical dimensions and weights of the vehicles, and data from the airbag control module in Margaret's vehicle. Townes' disclosure did not reference witness Higgins or her statement. During Townes' subsequent deposition, the following exchange took place:

[Howards' counsel]: Is there any physical evidence at the scene ... to support my client being in your client's lane of travel.

[Townes]: Yes, there's a witness. Physical evidence, no; there is a witness, yes.

[Howards' counsel]: And I'm asking you about physical evidence.

[Townes]: No.

[Howards' counsel]: Okay. And the witness you're referring to is Julia Higgins?

[Townes]: Yes.

[Howards' counsel]: Okay. And that's the only evidence that supports my client being in your client's lane of travel prior to this accident, correct?

[Townes]: No, the simulation is also evidence that supports it.

Townes was asked about Higgins again later in the deposition:

[Howards' counsel]: Would you agree with me that we don't know—Julia Higgins' statement, and I understand that you're relying on that—

[Townes]: No, I'm not.

[Howards' counsel]: You're not, okay.

[Townes]: No. It's not anywhere in my disclosure.

[Howards' counsel]: Well, then, setting aside Julia Higgins' statement ...

¶ 10 Howards filed a motion in limine prior to trial seeking exclusion of Townes' opinions and the computer model simulations on the grounds they were “speculative, unscientific or not proper subjects for expert opinion.” The District Court did not rule on Howards' motion in limine before trial.

¶ 11 At trial, Townes testified, “I reviewed the information that was available to me. And that would include the Montana Highway Patrol report, the witness—one witness statement that Montana Highway Patrol took.” He further stated that he used known physical information as input variables in the computer simulations, including the MHP measurements of the final resting positions of the vehicles, his measurements from the accident scene, the physical properties of the vehicles, and the data from the control module sensor in Margaret's vehicle. Townes testified that the computer program was “a well-recognized program, widely used, tested extensively.” Townes explained that his computer simulations led him to conclude that Margaret “made an excursion into the northbound lane” and John “made an evasive maneuver” to avoid Margaret's vehicle.

¶ 12 The jury returned a verdict for Bradfords, finding John not negligent. Howards filed a motion for a new trial, which was denied by the District Court. Howards appeal.

STANDARD OF REVIEW

¶ 13 Admissibility of evidence is a question for the district court, which we review for an abuse of discretion. Cottrell v. Burlington N. R.R., 261 Mont. 296, 301, 863 P.2d 381, 384 (1993). A district court has broad discretion in determining whether evidence is relevant and admissible. McCormack v. Andres, 2008 MT 182, ¶ 22, 343 Mont. 424, 185 P.3d 973. “The trial court is vested with great latitude in ruling on the admissibility of expert testimony.” Cottrell, 261 Mont. at 301, 863 P.2d at 384 (emphasis in original). We review a district court's denial of a motion of a new trial for an abuse of discretion. Perdue v. Gagnon Farms, Inc., 2003 MT 47, ¶ 8, 314 Mont. 303, 65 P.3d 570. “A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or so exceeds the bounds of reason as to work a substantial injustice.” McCormack, ¶ 22.

DISCUSSION

¶ 14 1. Did the District Court err by permitting the defense expert to offer opinions, including video simulations, without a sufficient evidentiary foundation?

¶ 15 Howards do not dispute that Townes was qualified to testify as an expert but argue that he laid insufficient factual information for his opinion testimony and that his methods of reconstruction were not reliable. They argue that Townes' offered “nothing more than a mere possibility ” and that his opinion was “so utterly lacking in foundation that it should never have seen the light of day in the courtroom.” (Emphasis in original.) Bradfords respond that Townes premised his expert opinion upon a sufficient foundation, and that the accident simulation program and the methods employed by Townes are widely accepted in the accident reconstruction field.²

¶ 16 M.R. Evid. 702 provides the criteria for admission of expert opinions:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Before a district court may allow an expert to express an opinion, an evidentiary foundation must be laid to demonstrate that the expert has adequate knowledge, by training or education, and sufficient factual information on which to base an opinion. Cottrell, 261 Mont. at 301, 863 P.2d at 384–85;Hulse v. State, 1998 MT 108, ¶ 48, 289 Mont. 1, 961 P.2d 75. We have stated that “it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation.” Hulse, ¶ 53 (citations omitted).³

¶ 17 Generally, accident reconstruction is not a novel science and has been commonly recognized and used in the courts. See Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 48, 366 Mont. 491, 288 P.3d 218;Peterson v. St. Paul Fire and Marine Ins. Co., 2010 MT 187, ¶ 3, 357 Mont. 293, 239 P.3d 904;State v. Schauf, ...