Zepp v. Hofmann

• Decision Date: 27 April 1989
• Docket Number: No. 16351,16351
• Citation: 444 N.W.2d 28
• Parties: Frank ZEPP, Plaintiff and Appellee, v. Robert HOFMANN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 28

444 N.W.2d 28

Frank ZEPP, Plaintiff and Appellee, v. Robert HOFMANN, Defendant and Appellant.

No. 16351.

Supreme Court of South Dakota.

Considered on Briefs April 27, 1989.

Decided July 12, 1989.

Rehearing Denied Aug. 11, 1989.

David R. Gienapp of Arneson, Issenhuth and Gienapp, Madison, for defendant and appellant.

Rodney Freeman, Jr. of Churchill, Manolis, Freeman & Kludt, Huron, for plaintiff and appellee.

SABERS, Justice.

Frank Zepp sustained substantial injuries and damages while he was riding his motorcycle in an alley behind Robert Hofmann's home. He claimed he was struck in the face with a board and the jury agreed. Hofmann claims error in regard to certain expert and deposition testimony.

Facts

Zepp commenced an action against Hofmann and his son, Kevin Hofmann (Kevin), alleging that they intentionally swung a board at Zepp resulting in serious injuries. The testimony at trial was generally disputed.

Hofmann testified that he had taken some garbage out to the garbage cans near the alley. He stated that he heard a motorcycle coming down the alley as he started back toward the house. He then heard a thud and went back to the alley where he saw Zepp lying near the motorcycle in the alley. He testified that he did not strike Zepp with a board or with any other object. Portions of his testimony were corroborated by his wife and Kevin.

Several of Zepp's friends, who may have been drinking, testified that they witnessed the incident from Zepp's home one block away. They testified that Hofmann struck Zepp in the face with what appeared to be a board, though no board was found. Zepp testified that he remembered nothing after turning into the alley behind Hofmann's house. A blood test revealed that Zepp had a blood alcohol content of .20 at the time. Another witness, Dick Biel, who apparently had nothing to drink, testified that he was riding his bicycle near the alley and saw Hofmann swing a board which struck Zepp in the face. He testified that Zepp's body was propelled forward off the motorcycle after the motorcycle landed and slid along the alley until his body came to rest forward of the motorcycle. There was medical testimony that wood splinters were removed from Zepp's face.

Both parties introduced expert testimony at trial. Hofmann called Lewis Dirks (Dirks), an accident reconstructionist, as an expert witness. Hofmann attempted to elicit several opinions from Dirks concerning the incident. Zepp's objections to certain of these opinions were sustained. To prove his injuries, Zepp introduced deposition testimony of two doctors. Before the depositions were read to the jury, Hofmann objected to certain portions of the deposition of Dr. George Nicholas (Dr. Nicholas). The court overruled these objections and the entire deposition was read to the jury.

At the close of Zepp's case, a directed verdict was granted in favor of the son, Kevin. The jury returned a verdict against Hofmann and awarded Zepp $99,522. Hofmann appeals. We affirm.

1. Denial of certain expert testimony.

Dirks was qualified as an expert witness in accident reconstruction. In preparation for trial, he inspected the alley behind Hofmann's home and studied the materials in the police file. This file included measurements of the alley, the skid marks, and location of Zepp's body and motorcycle immediately following the incident. Based on this information, Dirks was asked to give several expert opinions. ¹ Objections were consistently sustained, resulting in three offers of proof and claims of error. They are:

a. First, Dirks was asked to give his opinion as to where Zepp's body would have been located in relation to the motorcycle if Zepp had been struck by a two-by-four board. Zepp's objection for lack of foundation was sustained. Hofmann attempted to lay additional foundation, but Dirks was not permitted to give his opinion. Hofmann made an offer of proof.

In the offer of proof, Dirks testified that Zepp's body would have been much closer to the point of impact than the motorcycle, if he had been struck by a board. This opinion was based on a motorcycle speed of twenty-five miles per hour at the point of impact and that Zepp was struck by a two-by-four. Dirks stated that this was sufficient data to give such an opinion. Zepp argued that there was no clear evidence as to the speed of the motorcycle at the point of impact. He further argued lack of foundation because no board was found and that it was not clear whether or not the board was swung. Dirks admitted that he could not calculate foot pounds of energy to determine the exact degree of retardation on Zepp's body without knowing the weight and the velocity of the board. The court ruled there was insufficient foundation for Dirks' opinion.

b. Second, Dirks was asked the following question:

Mr. Dirks, based on your knowledge, investigation in this matter, the documents that you have examined, have you formed an opinion as to whether or not this accident is consistent with an accident caused by a motorcycle driven by an individual down an alley at 25 miles an hour being hit by either a two-by-four or one-by-six four to six foot long?

Zepp objected for lack of foundation. The court sustained the objection on the basis that it was an ultimate issue of fact for the jury. Hofmann made an offer of proof in which Dirks gave his opinion that the evidence was inconsistent with Zepp being struck by a two-by-four or a one-by-six while on the motorcycle. Dirks again stated that he believed he had sufficient data to make such an opinion.

c. Third, Dirks was asked where the accident began in relation to the garbage cans on Hofmann's property. Zepp's objection was sustained. Hofmann made an offer of proof in which Dirks gave his opinion that the accident began thirty-two feet prior to the garbage cans on Hofmann's property. This was based on skid marks showing that Zepp's motorcycle was out of control thirty-two feet before the garbage cans. The court denied this opinion stating that it was for the jury to determine whether the accident actually began at the start of the skid marks.

Hofmann claims the court erred in denying these opinions. He claims that the objections went to the weight of the testimony and not to admissibility. Zepp argues that the court ruled correctly and there was no abuse of discretion.

The trial court's evidentiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion. Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986); Durham v. Ciba-Geigy Corp., 315 N.W.2d 696 (S.D.1982); Krumm v. Feuerhelm, 298 N.W.2d 184 (S.D.1980). The trial court has broad discretion concerning qualification of experts and admission of expert testimony. State v. Iron Shell, 301 N.W.2d 669 (S.D.1981). South Dakota has several statutes dealing with admissibility of expert opinions. ² Though these statutes remove some of the rigid standards for admission of expert testimony, we have held that there must be some factual data to support an expert's opinion. Buckley v. Fredericks, 291 N.W.2d 770 (S.D.1980).

In this case, Dirks had some of the data necessary to give the requested opinions but admitted that he could not give a specific opinion without additional information, such as the size and velocity of the board. He could only testify generally as to the location of Zepp's body in relation to the motorcycle and whether the accident was consistent with the eye witness testimony. This court has expressed a preference for eyewitness testimony, but this does not preclude the additional use of expert testimony. Buckley, supra. SDCL 19-15-2 provides that an expert witness may testify in the form of an opinion or otherwise if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Without additional information, it is questionable whether Dirks could testify to technical, scientific, or specialized knowledge beyond that of the average lay person. There may even be a valid question as to whether his evidence would assist the trier of fact to understand the evidence or determine a fact in issue. While SDCL 19-15-4 permits expert opinions lacking in foundation, ³ the trial court could have concluded that Dirks' opinions went to ultimate issues and improperly invaded the province of the jury under Vogt v. Billion, 405 N.W.2d 635 (S.D.1987). Although it may be better practice to resolve doubt on the side of admissibility, these opinions were speculative. In view of all the circumstances and evidence in this case, especially the testimony of the eye witnesses and the testimony concerning the removal of wood splinters from Zepp's face, we cannot say that the trial court abused its discretion in refusing to allow Dirks to give these opinions.

2. Deposition Testimony.

a. In his deposition, Dr. Nicholas was asked the following question by Zepp's counsel:

Okay. Now, Doctor, based upon a reasonable degree of medical certainty, do you have an opinion as to whether or not the injuries that you observed during the course of your treatment are consistent with the description of what happened that day in May; i.e. being hit in the face with a broad wooden object? ⁴

Hofmann objected at trial stating that Dr. Nicholas was not competent to give such an opinion. However, Hofmann had not objected to the question at the deposition. The trial court refused to rule on the objection stating that it was waived by failure to object at the deposition. Hofmann claims this was error under SDCL 15-6-32(d)(3)(A) and (B) as the objection went to the competence of the witness and not the form of the question.

SDCL 15-6-32(d)(3)(A) provides:

Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been...