Zimmerman v. Powell, 268 Neb. 422 (NE 4/23/2004)
| Decision Date | 23 April 2004 |
| Docket Number | No. S-02-1356.,S-02-1356. |
| Citation | 268 Neb. 422 |
| Parties | DONA R. ZIMMERMAN, APPELLANT, v. NEDRA J. POWELL, APPELLEE. |
| Court | Nebraska Supreme Court |
1. Trial: Rules of Evidence: Expert Witnesses. Neb. Rev. Stat. § 27-702 (Reissue 1995) requires that the trial court act as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. This entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.
2. ____: ____: ____. In performing its gatekeeping duty, it is not enough for the trial court to determine that an expert's methodology is valid in the abstract. The trial court must also determine if the witness applied the methodology in a reliable manner. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
3. ____: ____: ____. The objective of the trial court's gatekeeping responsibility to ensure that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
4. ____: ____: ____. In performing its gatekeeping duty, the trial court has considerable discretion in deciding what procedures to use in determining if an expert's testimony satisfies Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). See Neb. Rev. Stat. § 27-702 (Reissue 1995).
5. ____: ____: ____. In performing its gatekeeping duty, the trial court's discretion extends to deciding what factors are reasonable measures of reliability in each case. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
6. ____: ____: ____. Once a party opposing an expert's testimony has sufficiently called into question the testimony's factual basis, data, principles, methods, or their application, the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
7. ____: ____: ____. The trial court does not have the discretion to abdicate its gatekeeping duty imposed by Neb. Rev. Stat. § 27-702 (Reissue 1995).
8. ____: ____: ____. A trial court, when faced with an objection under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), must adequately demonstrate by specific findings on the record that it has performed its duty as a gatekeeper. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
9. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. In performing its gatekeeping duty, the trial court must explain its choices so that the appellate court has an adequate basis to determine whether the analytical path taken by the trial court was within the range of reasonable methods for distinguishing reliable expert testimony from false expertise. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
10. Trial: Rules of Evidence: Expert Witnesses. A trial court adequately demonstrates that it has performed its gatekeeping duty when the record shows (1) the court's conclusion whether the expert's opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
11. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the record de novo to determine whether a trial court has abdicated its gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
12. ____: ____: ____. When the trial court has not abdicated its gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), an appellate court reviews the trial court's decision to admit or exclude the evidence for an abuse of discretion.
13. New Trial: Verdicts: Appeal and Error. Not every error justifies a new trial; only an error which is prejudicial to the rights of the unsuccessful party does so. In the absence of such an error, the successful party, having sustained the burden and expense of trial, may keep the benefit of the verdict.
14. Trial: Rules of Evidence: Expert Witnesses. Only if the admission or exclusion of the expert's testimony did not affect the result of the trial unfavorably for the party against whom the ruling was made will a court's abdication of its gatekeeping duty be deemed nonprejudicial. See Neb. Rev. Stat. § 27-702 (Reissue 1995).
15. New Trial: Appeal and Error. Partial retrials are permissible if it clearly appears from the record that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. If the issues are so interwoven that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty, then a retrial on all interwoven issues is required.
Appeal from the District Court for Scotts Bluff County: Robert O. Hippe, Judge. Affirmed as modified.
John P. Weis for appellant.
Ronald R. Kappelman, of Banks, Johnson, Colbath, Sumner & Kappelman, for appellee.
The appellant, Dona R. Zimmerman, alleged that she was injured in an automobile collision caused by the negligence of the appellee, Nedra J. Powell. Over Zimmerman's objection, the court allowed Powell's accident reconstructionist, Jubal D. Hamernik, Ph.D., to testify that Zimmerman was driving above the speed limit when the vehicles collided. The jury determined that Zimmerman had suffered $17,851.18 in damages, but also determined that she bore 49 percent of the responsibility for the collision and reduced the damages to $9,104.10.
Under Neb. Rev. Stat. § 27-702 (Reissue 1995), the trial court must act as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004). The issue is whether the court made adequate findings on the record to show that it had performed its gatekeeping duty when it allowed Hamernik to testify. Because the court's findings were inadequate, we determine that it failed to perform its gatekeeping duty. However, because Hamernik's testimony did not taint the issue of damages, we do not remand for a new trial. Instead, in accordance with concessions made by Powell in her appellate brief, we modify the verdict so that Zimmerman recovers 100 percent of the amount of her damages.
The collision occurred at an intersection in Scottsbluff, Nebraska. A yield sign at the intersection required east-west traffic to yield to north-south traffic. As Powell approached the intersection from the west, Zimmerman approached from the south. Although Powell claims that she looked to the south before entering the intersection, she admitted that she did not see Zimmerman. Powell proceeded into the intersection without yielding. Zimmerman slammed on her brakes, but was unable to stop. She struck Powell's vehicle in the center of the passenger's side.
The main focus of this appeal is whether Zimmerman was driving above the 25-m.p.h. speed limit before braking. According to Zimmerman, she approached the intersection at 15 to 20 m.p.h. She testified that before entering the intersection she slowed down and looked both ways. She noticed Powell's vehicle approaching from the left. Zimmerman claims that she could tell that Powell had not seen her and that Powell was not slowing down. Zimmerman then slammed on her brakes, leaving 20 feet of tread marks.
To contradict Zimmerman's claim that she was traveling below the speed limit, Powell relied on Hamernik's testimony. Hamernik has a master's degree in civil engineering from the University of Connecticut and a doctorate in computational mechanics from the University of Colorado. He is employed by a private engineering firm and has analyzed over 2,000 accidents.
Hamernik testified that before braking, Zimmerman was traveling 30 to 35 m.p.h. He also testified that at impact, Zimmerman was traveling at 15 m.p.h. and Powell was traveling at 20 to 22 m.p.h.
Because of our ruling, we need not recite in detail Hamernik's testimony on how he arrived at his opinions. Instead, we include only what is necessary to provide context.
Generally, two well-accepted methods for determining the speed of a vehicle involved in a collision are used within the engineering community: the conservation of momentum method and the conservation of energy method. Hamernik claims to have relied on both methodologies. However, to provide reliable results, each method must have reliable underlying data. Despite 160 pages of testimony, it is not clear what data Hamernik needed to make his calculations reliable, nor is it clearly explained where he got the data that he used. Apparently, some of the data were derived from simulations he ran using a "state-of-the-art" computer program called Human Vehicle Environment (HVE).
Before trial, Zimmerman moved to prevent Hamernik from testifying at trial. In the motion, Zimmerman argued that Hamernik's opinions were unreliable under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) (Schafersman I). In Schafersman I, we adopted the framework for evaluating expert testimony set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and its progeny.
Seven days before trial, the court held a hearing under Neb. Rev. Stat. § 27-104 (Reissue 1995), i.e., a Daubert hearing, to determine whether to admit Hamernik's opinions. After both parties presented evidence, the court took the motion under advisement.
Before opening statements, the court told the parties that it was still unsure whether Hamernik's testimony concerning the vehicles' speeds would be admissible. Spec...
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Zimmerman v. Powell
... 684 N.W.2d 1 268 Neb. 422 Dona R. ZIMMERMAN, appellant, ... Nedra J. , appellee ... No. S-02-1356 ... Supreme Court of Nebraska ... July 23, 2004 ... ...