Zimmerman v. Powell
| Decision Date | 23 July 2004 |
| Docket Number | No. S-02-1356.,S-02-1356. |
| Citation | 684 N.W.2d 1,268 Neb. 422 |
| Parties | Dona R. ZIMMERMAN, appellant, v. Nedra J. POWELL, appellee. |
| Court | Nebraska Supreme Court |
John P. Weis, Scottsbluff, 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. Specifically, the court noted that it was not convinced that either the HVE software or the manner in which Hamernik had used it was reliable. The court, as we understand it, ruled that Hamernik could not give his opinions on the vehicles' speeds at trial unless Powell first established the methodology's reliability.
At trial, Hamernik offered further explanation of the methodologies he used to determine how fast the vehicles were going before the collision. This testimony is set out later in our opinion. The court, over Zimmerman's objection, then allowed Hamernik to testify about Zimmerman's speed before braking. In overruling the objection, the court did not explain why it had determined that Hamernik's trial testimony had led it to conclude that his opinions were admissible under Daubert/Schafersman I.
We note that in addition to testifying about the vehicles' speeds, Hamernik had intended to offer opinions on the magnitude of force Zimmerman would have experienced in the collision and how this force compared to other forces experienced in human volunteer testing. Before trial, the court specifically ruled that Hamernik could not compare the force Zimmerman experienced to forces experienced in human volunteer testing. Furthermore, although the court did not preclude Hamernik from giving his opinion as to the magnitude of force experienced by Zimmerman, Hamernik did not give any such testimony at trial. Thus, we are concerned only with Hamernik's testimony about the vehicles' speeds.
The jury determined that both Powell and Zimmerman had been negligent and that Zimmerman had suffered $17,851.18 in damages from the collision. In determining the negligence of the parties, the jury concluded that Zimmerman bore 49 percent of the responsibility for the collision and reduced the damages that she could recover by that percentage. Zimmerman appealed.
Zimmerman assigns, reordered and consolidated, that the court erred in (1) failing to find that Hamernik's opinions were unreliable under Daubert/ Schafersman I, (2) refusing to exclude Hamernik's testimony as a sanction for Powell's filing of untimely discovery disclosures, (3) setting the Daubert hearing 7 days before trial, (4) placing the burden on Zimmerman at the Daubert hearing to show that Hamernik's testimony was unreliable, (5) refusing to allow Zimmerman's counsel to fully explore the basis for the assumptions made by Hamernik at the Daubert hearing, (6) failing to announce its ruling on the Daubert motion until the trial's commencement, and (7) allowing the jury to view computer-generated simulations of the collision prepared by Hamernik.
Zimmerman also assigns as error that the jury's verdict is contrary to the evidence. However, this assignment of error is not argued and therefore we do not consider it on appeal. See Gilroy v. Ryberg, 266 Neb. 617, 667 N.W.2d 544 (2003).
The standard of review is discussed in the analysis portion of our opinion.
Section 27-702 governs the admissibility of expert testimony. It provides: "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."
Until our decision in Schafersman I, we had employed the Frye test to evaluate the admissibility of an expert's testimony. Under the Frye test, when an expert relied on a scientific principle or discovery, the proponent of the expert's testimony had to prove that the principle or discovery had "`gained general acceptance in the particular field in which it belongs.'" Schafersman I, 262 Neb. at 222, 631 N.W.2d at 870 (2001) (quoting Frye v. United States, 293 F. 1013 (D.C.Cir.1923)).
In Schafersman I, however, we abandoned the Frye test and, in its place, adopted the framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Under the Daubert/Schafersman I framework, the trial court acts 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). 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. Schafersman I. In addition, 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 has applied the...
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