Whitaker v. L.A. Drew, Inc.

• Court: New Hampshire Supreme Court
• Writing for the Court: DALIANIS, J.
• Citation: Whitaker v. L.A. Drew, Inc., 816 A.2d 984, 149 N.H. 55 (N.H. 2003)
• Decision Date: 17 January 2003
• Docket Number: No. 2001–755.,2001–755.
• Parties: Steven WHITAKER v. L.A. DREW, INC.

149 N.H. 55

816 A.2d 984

Steven WHITAKER

v.L.A. DREW, INC.

No. 2001–755.

Supreme Court of New Hampshire.

Argued Nov. 13, 2002.

Opinion Issued Jan. 17, 2003.

Normand & Shaughnessy, P.A., of Manchester (James B. Kazan on the brief, and Brian C. Shaughnessy orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Richard E. Mills and Donald L. Smith on the brief, and Mr. Smith orally), for the defendant.

DALIANIS, J.

The plaintiff, Steven Whitaker, appeals the dismissal of his negligence action against the defendant, L.A. Drew, Inc. On appeal, he argues that the Superior Court (Fauver , J.) erred by: (1) requiring him to present expert testimony to support his claim of negligence; (2) granting the defendant's motion to exclude his expert because he missed a disclosure deadline; and (3) dismissing the case prior to trial because he could not present expert testimony. We affirm in part, reverse in part and remand.

The record contains the following relevant facts. On June 18, 1996, the plaintiff was instructed to drive a vibratory roller (roller), leased from the defendant, from the top of Mount Washington down the Mount Washington Auto Road. Prior to driving the roller, the plaintiff notified his supervisor that the roller's brakes did not apply any braking force. Despite this concern, the supervisor instructed him to drive the roller, apparently because of the braking capabilities of the roller's hydrostatic transmission. The hydrostatic transmission controlled the roller's speed and could stop the roller without the use of the brakes. Because of this design, the hydrostatic transmission acted as the roller's primary braking mechanism, and the brakes were a secondary or back-up mechanism.

The plaintiff had descended approximately half-way down the road when the transmission failed to control the roller's speed, which reached twenty miles per hour. The normal top speed of the roller is approximately twelve miles per hour. The plaintiff could no longer control the roller, so he drove it into the side of the mountain to avoid hitting on-coming traffic. The plaintiff was thrown from the roller and sustained bodily injuries.

The plaintiff sued the defendant, claiming that the accident resulted from the defendant's negligent inspection and maintenance of the roller. The plaintiff specifically claimed that the roller's hydrostatic transmission and brakes failed, but conceded that the defendant was not responsible for the failure of the transmission. He based his negligence claim solely upon the lack of properly functioning brakes.

Prior to trial, the trial court established an April 1, 2000 deadline for the plaintiff to disclose information about expert witnesses whose opinions or testimony would be presented at trial. See Super. Ct. R. 35(f). The plaintiff did not disclose any expert witnesses. The defendant filed a motion in limine on August 30, 2000, requesting that the trial court rule that the plaintiff was precluded from presenting expert testimony at trial for failure to meet the April 1 deadline. The trial court granted the motion and also ruled that the plaintiff must introduce expert testimony to prove that the lack of properly functioning brakes caused the accident.

The defendant filed a motion to dismiss, arguing that the plaintiff could not prove a prima facie case of negligence without expert testimony. The plaintiff objected and requested that the trial court rule that he did not need an expert witness to prove his case, or, in the alternative, grant him more time to disclose an expert witness. On March 30, 2001, the trial court denied the defendant's motion and granted the plaintiff an extension until June 15, 2001, to disclose all expert witness information pursuant to Superior Court Rule 35(f), stating: "This deadline must be strictly adhered to, failing which the plaintiff will be finally precluded from calling an expert at trial."

On April 12, 2001, the plaintiff disclosed to the defendant that Robert Holt would be his expert and included Holt's curriculum vitae with the notification letter. The plaintiff requested that the defendant locate the roller and arrange a time for Holt to examine it.

Between April 12, 2001, and August 2, 2001, the plaintiff made repeated efforts to locate the roller and to obtain its serial number in order to acquire the specifications from the manufacturer, noting to the defendant that the disclosure deadline was imminent. The defendant did not respond to the plaintiff's inquiries until June 7, 2001, when it explained by letter that the roller had been sold and that it would obtain the sale information so that the plaintiff could locate the roller. The defendant provided the plaintiff with the sale information on June 26, 2001, and the roller's serial number on July 12, 2001. On August 2, 2001, the plaintiff notified the defendant that the roller had been located at a construction site in Maine and that an inspection would take place sometime within the next several weeks. Holt inspected the roller on August 13, 2001, and produced a report on August 31, 2001.

On August 13, 2001, for the first time, the defendant notified the plaintiff that it would object to the plaintiff's use of an expert because the plaintiff had not met the disclosure deadline. On September 14, 2001, the defendant filed a motion to exclude Holt's testimony. The trial court granted the motion, and the case was dismissed. The plaintiff filed a motion for reconsideration, which the trial court denied. This appeal followed.

The plaintiff first argues that the trial court erroneously ruled that he was required to present expert testimony to support his negligence claim. Where scientific issues would be beyond the capacity of persons of common experience and knowledge to form a valid judgment by themselves, expert evidence is required to assist a jury in its decision. Lemay v. Burnett, 139 N.H. 633, 634, 660 A.2d 1116 (1995).

We agree with the trial court that, in this case, an expert was required to prove that the lack of properly functioning brakes...