State v. Stringer , 292 Or. 388 ( 1982 )

DENECKE, C. J.

In our initial opinion in this case we held the trial court did not err in refusing to permit an expert called by the defendant to testify to his opinion where the victim was located when she was struck by the defendant. 291 Or 527, 633 P2d 770 (1981). We so held because a diagram relied upon by the expert in reaching his opinion was not in evidence and, therefore, was not considered by the jury. The defendant filed a petition for rehearing contending that the diagram was in evidence. The state filed no response to the petition.

In considering the petition, we re-examined the record. The transcript prepared by the court reporter indicates the diagram was not offered or received and the court reporter so stated in the list of exhibits prepared as part of the transcript. Remarks by counsel for both parties in the transcript indicate the diagram may have been delivered to the jury. The clerk’s record states the diagram was received. In this ambiguous state of the record we conclude we should assume the diagram was available for examination by the jury. Therefore, we must consider the other contention of the parties on the issue of whether the trial court should have admitted the testimony of the expert on the location of the victim.

The state objected to the testimony and the Court of Appeals affirmed the trial court’s refusal to receive the testimony on the basis of a line of cases of this court refusing to allow the admission of testimony of one who did not witness the accident as to the point of impact or other matters in issue. We cited those cases in our initial opinion in 291 Or at 531. We stated in our initial opinion:

“In deciding these cases we did not state any specific principles governing the admission of opinion testimony by experts who had no personal knowledge of the accident. We conclude that the admissibility of such evidence, including accident reconstruction evidence, should be judged by the same rules that are used in deciding the admissibility of the opinion evidence of experts on other issues.” 291 Or at 531.

The question arises whether our past decisions are consistent with the principle that the admissibility of accident reconstruction evidence should be judged by the same rules that govern the admissibility of the opinion evidence of experts on other issues.

In Thomas v. Dad’s Root Beer, Etc., 225 Or 166, 168-169, 356 P2d 418, 357 P2d 418 (1960), we held inadmissible the testimony of a police officer, not a witness to the accident, on the point of impact of two vehicles. We based our decision on the ground “that a jury is as well able to draw its own inferences and reach its own conclusions from the facts presented as is a witness who was not present at the time of the accident.” 225 Or at 168.

In Thomas, we cited in support of the above statement Bailey v. Rhodes, Adm., 202 Or 511, 519-525, 276 P2d 713 (1954). In Bailey, a police officer testified to the physical scene of the accident, including the marks made by the vehicle indicating its course, the curve in the highway, a pole knocked down by the car, the position and condition of the car after the accident. On the basis of this evidence, he was allowed to testify that in his opinion the car was going 70-90 miles per hour. This court held that was error. We so held partly because such testimony was “pure speculation and conjecture” on the officer’s part. We also so held because “opinion evidence is never admissible if all the pertinent facts can be sufficiently described and detailed to the jury so as to enable it to draw its own inferences and conclusions therefrom.” 202 Or at 524-525. (The two bases for our decision may be contradictory; however, we need not pursue that possibility.)¹

That quotation is not a completely accurate statement of Oregon law. The test is not whether a jury is capable of drawing its own inferences from the evidence presented. Rather, the test is whether the expert’s testimony, if believed, will be of help or assistance to the jury.

“The factor which determines if a subject is a proper one for expert testimony is whether the answer of an expert can be of appreciable help to the jury. * * *.” Koch v. Southern Pacific Co., 266 Or 335, 341, 513 P2d 770 (1973).

The statement of the rule as enacted by the legislature in the new Evidence Code, effective January 1, 1982, is that expert evidence is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue * * *.” Rule 702.

If a qualified expert offers to give testimony on the point of impact and such testimony is otherwise admissible and if believed would assist the jury in deciding the location of the point of impact, it should not be excluded.

In Marshall v. Martinson, 268 Or 46, 53-57, 518 P2d 1312 (1974), we again held the trial court did not err in refusing to receive testimony by an expert who did not witness the accident. The collision occurred when the defendant’s automobile was overtaking and passing the plaintiffs vehicle. Plaintiff called an expert and posed a hypothetical question. The expert was asked to assume, among other facts, the plaintiffs vehicle was in the right-hand lane, traveling at 35 miles per hour, veered into the path of defendant’s car which was traveling 70-75 miles per hour and moving straight ahead in the left lane within 12 to 18 inches of the center guard rail; and also to assume the right front corner of the defendant’s car made contact with the left wheel well of plaintiffs vehicle and that after the impact defendant’s car came to rest backward on the right-hand guard rail while plaintiffs vehicle went over the guard rail and broke a sign. Based upon these assumptions the expert was asked “whether the faster vehicle after the collision would make contact with the center guard rail on the left?” On the offer of proof the expert stated that the accident could not have been caused by the plaintiff veering into the defendant because that would have caused the defendant to go out of control and “rotate” and there was not “enough room” between the center lane line and the center guard rail for defendant to proceed without hitting the center guard rail.

We stated:

«* * * reason js that under the facts of this case the trial judge could properly find that there were so many varying factors involved in the problem presented by this question that the opinion of an expert witness in answer to that question would indeed have been ‘speculative,’ as observed by the trial judge in this case.” (Footnote omitted.) 268 Or at 56.

From other parts of the opinion it appears that by use of the phrase “varying factors” we meant that there was no “reliable foundation in fact for expert opinion testimony.” For example, there was no evidence of the angle at which the plaintiffs car allegedly “veered” into defendant’s car or the kind of “rotation” the defendant’s car would have made. A variation in these two elements could change the expert’s opinion.

Urbanski v. Johnson, 283 Or 1169, 581 P2d 948 (1978), relied upon Marshall v. Martinson, supra, 268 Or 46. In Urbanski, we were of the opinion “that the evidence offered was without sufficient foundation and therefore too speculative.”

In this case the admissible testimony of an expert on the issue of where the victim was when she was struck would be helpful to the jury. The jury did have the testimony of Jacqueline (the victim’s companion) on that issue, but the defendant has a right to have any admissible testimony received to support his version of the facts. In the present case the expert’s opinion purports to be based upon a sufficient foundation - the location of the victim’s body, the location of the victim’s shoes, the defendant’s speed, etc. The state introduced evidence that in some instances differed from that relied upon by the expert; however, that does not result in “varying factors” as that phrase was used in Martinson. When the evidence upon which an expert bases his opinion is contradicted by the other evidence, the jury determines which evidence is to be accepted as correct and judges the credibility of the expert’s testimony accordingly. On this general subject see Maguire and Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv L Rev 392 (1927); Morgan, Functions of Judge and Jury in the Determination of Preliminary Questions of Fact, 43 Harv L Rev, 165 (1929).

We asked the Oregon Association of Defense Counsel (OADC) as well as the Oregon Trial Lawyers Association to submit briefs on the issue. OADC suggested we restrict the receipt of accident reconstruction expert testimony to instances in which eye witness testimony is not available. Illinois has such a rule. McGrath v. Rohde, 53 Ill2d 56, 61, 289 NE2d 619, 622-623 (1972)

In admitting testimony by a qualified aircraft accident reconstruction expert we stated that one reason why such testimony should be admitted is that frequently all witnesses to the accident are killed in an aircraft crash and, therefore, reconstruction expert testimony is particularly appropriate. Myers v. Cessna Aircraft, 275 Or 501, 510, 553 P2d 355 (1976). While this observation about the usual absence of eye witnesses is undoubtedly correct, we are of the opinion that to restrict the use of experts who did not witness the accident to instances in which no eye witnesses are available is a distinction which unnecessarily clutters the law of evidence. If such expert testimony has probative value it should be admitted.

The trial court does have “a certain latitude of discretion” in deciding whether to admit opinion testimony of a qualified expert. Yundt v. D & D Bowl, Inc., 259 Or 247, 259, 486 P2d 553 (1971). See a full discussion of this problem in the majority and dissenting opinions in Yundt v. D & D Bowl, Inc., supra, 259 Or 247. As we earlier stated in this opinion, one of the criteria by which the admissibility of opinion evidence is determined is will such evidence “assist” or “help” the jury in performing its function. If the answer to that question is doubtful or reasonably could be decided either way, we hold the trial court has latitude in admitting the evidence and affirm whether the trial court admits the evidence or refuses to admit the evidence. Cooney v. McGee, 268 Or 521, 521 P2d 1051 (1974).

In this case, however, the answer is not doubtful. The location of the victim when she was struck was a key issue. As we earlier stated, the defendant was entitled to have his evidence of where she was located presented, if otherwise admissible, to rebut the testimony of Jacqueline offered by the state. By reason of his expertise, based upon the evidence, the witness purported to be able to form and express an opinion on the location of the victim at the time of impact. Ordinarily, a jury would not have the expertise which would give the jurors the capacity to make the calculations upon which the expert’s opinion rested. For this reason the proffered testimony would have assisted or helped the jury and should have been admitted.

The cause is reversed and remanded to the trial court for a new trial.

1 In neither Thomas v. Dad’s Root Beer, Etc., supra, nor Bailey v. Rhodes, Adm., supra, 202 Or 511, was there any evidence that the police officer had any special education or training in a relevant scientific method. Apparently, the party calling him assumed he was qualified to express an opinion merely because he was a police officer who had investigated other accidents.