Coe v. Young , 145 Ohio App. 3d 499 ( 2001 )

O P I N I O N On July 23, 1993, at approximately 10:30 p.m., a motorcycle-tractor accident occurred on U.S. 322, a two-lane highway, in Ashtabula, Ohio. The parties to this appeal are Michael Coe, individually, Michael Coe, Administrator for the estate of Marjorie Lynn Coe, appellants, and William A. Young, individually, and William A. Young, d.b.a. Wagner Farms, appellees. Appellee, William A. Young, a dairy farmer, was driving a 1955 Farmall tractor pulling a small trailer. Appellant, Michael Coe, was operating a 1959 Harley-Davidson motorcycle with his wife, Marjorie Coe, as his passenger.

The tractor and trailer were both equipped with slow moving vehicle ("SMV") signs. The tractor's red rear light had been replaced with a white light. Appellee carried a large flashlight which he used to signal his presence to motorists approaching from behind. The tractor and trailer were traveling approximately seven miles per hour. The posted speed limit was fifty-five miles per hour.

Appellant approached the tractor and trailer from the rear; there is no evidence that appellant was speeding. Appellant did not see the tractor and trailer until it was too late. In an attempt to pass the tractor and trailer and avoid a collision, appellant maneuvered the motorcycle towards the right hand berm. In doing so, the motorcycle struck the right rear wheel of the tractor causing appellant to lose control of the motorcycle. The motorcycle fell onto its side. Both appellant and his wife were thrown from the motorcycle. As a result of this accident, appellant sustained serious injuries and his wife was pronounced dead at the scene.

Appellant had been drinking alcoholic beverages on the day of the accident, although there is contradictory evidence of the amount. His blood alcohol concentration after the accident was .08 milligrams per deciliter, below the legal limit for driving under the influence, pursuant to RC 4511.19(A)(3). Both appellant and his wife were wearing helmets.

On January 12, 1995 appellant, individually and as the Administrator of Marjorie Coe's estate, filed a suit, based in negligence, against appellees; on November 3, 1998, appellant dismissed the suit, pursuant to Civ.R. 41(A). Subsequently, the estate of Marjorie Coe entered into a settlement with appellees' insurance company.

On March 18, 1999, appellant renewed his claim against appellee. A jury trial commenced on February 23, 2000. At the close of the case and prior to closing arguments, counsel for appellees moved that testimony of four of appellant's witnesses be stricken from the record. Appellant objected to the motion. The trial court judge granted appellee's motion based on his determination that Henry Lipian, David Schneider, Caroline Wolfe, and Norman Eckel did not indicate that they were able to give their "opinions within the reasonable degree of certainty or reasonable degree of certainty within the particular knowledge of their own professional experience." The testimony of each of these four witnesses was stricken in its entirety and the jury was instructed to disregard their testimony.

Additionally, the following interrogatories were submitted to the jury, over the objection of appellant's counsel:

"(A) Do you find by a preponderance of the evidence that Michael Coe was under the influence of alcohol at the time of the accident on July 23, 1993?

"(B) Do you find by a preponderance of the evidence that Michael Coe saw or should have seen the flashlight being waved by William A. Young prior to the accident of July 23, 1993?

"(C) Do you find by a preponderance of the evidence that Michael Coe saw or should have seen the SMV (slow moving vehicle) signs located on the tractor and trailer prior to the accident of July 23, 1993?"

On March 6, 2000, the jury returned a verdict in favor of appellee and the trial court issued judgment in favor of appellee. From this judgment appellant raises the following assignments of error:

"[1.] The trial court committed reversible error when it excluded the testimony of four expert witnesses on the basis of competency where there was no objection to their testimony, they had testified one week earlier, and a majority of their testimony was from direct personal knowledge.

"[2.] The trial court committed reversible error when it ignored the mandates of RC 2315.19 and permitted interrogatories to be submitted which clearly went to non-determinative issues."

The competency of an expert witness is within the discretion of the trial court and a court's ruling thereon will not be reversed absent a clear showing of an abuse of discretion. Alexander v. Mt. Carmel Medical Center (1978), 56 Ohio St.2d 155, 157. "An abuse of discretion requires more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Ohio v. Reiner (2000), 89 Ohio St.3d 342, 356.

For the reasons set forth below, we conclude that the trial court's decision to strike the entire testimony of Dr. David Schneider ("Schneider") constituted reversible error. Since this case must be reversed and remanded on this basis, we decline to address the reliability of the testimony of Henry Lipian ("Lipian"), regarding accident reconstruction, Caroline Wolfe (Wolfe), as to damages, and Dr. Eckel ("Eckel"), also regarding damages.

While we might find that the trial court's decision to strike the entire testimony of four of the plaintiff-appellant's expert witnesses, approximately a week after they testified in court, after the close of both parties' case-in-chief, and without prior objection by the defendant-appellant, was, in fact, unreasonable, arbitrary, or unconscionable, under the facts presented in the instant case we do not need to determine the issue of the timeliness of the trial court's decision. Instead, upon review of the record we conclude that Schneider's testimony was reliable and that the court abused its discretion in striking all of his testimony. Additionally, under the facts of this case, it is questionable whether the court's decision was based on the merits of the objection and not on the conduct demonstrated by appellant's counsel, which was not significantly prejudicial in this case.

In determining whether the testimony of an expert witness was proper, we must consider Evid.R. 702, which governs the admission of expert testimony.

Evid.R. 702 provides:

"A witness may testify as an expert if all of the following apply:

"(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

"(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

"(C) The witness' testimony is based on reliable scientific, technical, or other specialized information, To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

"(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

"(2) The design of the procedure, test, or experiment reliably implements the theory;

"(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result."

In the case sub judice, there is no dispute that Lipian, Schneider, Wolfe, and

Eckel are qualified experts who testified about subjects beyond the knowledge of lay persons. Evid.R. 702(A) and (B). Thus, our inquiry is whether the testimony complied with Evid.R. 702(C), i.e. the reliability of the testimony.

In Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, the SupremeCourt of Ohio designated the following four factors, adopted from Daubertv. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 593-594, to be considered in evaluating the reliability of scientific evidence: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance. Miller at 611, citing Daubert at 593-594. Both the United States Supreme Court, in Daubert, and the Supreme Court of Ohio, in Miller, emphasized that none of the factors is determinative: "[t]he focus is ``solely on principles and methodology, not on the conclusions that they generate." Miller at 613; citing Daubert at 595. Thus, there is no requirement that an expert utter any "magic language;"i.e. that his opinion was within the reasonable degree of certainty or reasonable degree of certainty within the particular knowledge of his professional experience.

In State v. Nemeth (1998) 82 Ohio St.3d 202, 211, the Supreme Court of Ohio explained that "[r]elevant evidence based on valid principles will satisfy the threshold reliability standard for the admission of expert testimony. Id. "The credibility to be afforded these principles and the expert's conclusions remain a matter for the trier of fact." Id. Thus, the reliability requirement under Evid.R. 702 "is a threshold determination that should focus on a particular type of scientific evidence, not the truth or falsity of an alleged scientific fact or truth." Id.

Doctor Schneider, an Associate Professor of Pharmacology at Wayne State University, Detroit, Michigan, was called by appellant to testify regarding blood alcohol concentrations. Schneider testified that he obtained a patent on a device that can measure alcohol based on saliva, instead of breath or blood. While conducting tests and gathering data to obtain the patent, he conducted two tests of 341 people comparing the level of alcohol in blood and saliva.

Schneider explained that blood is composed of two parts: cells which are essentially fat, and water which is the serum or plasma. He stated that there is a difference in serum B.A.C. versus whole blood B.A.C. because alcohol is water soluble, not fat soluble, which allows the alcohol to go to the water in the blood, not the fat. Thus, serum B.A.C. is always higher than the whole blood B.A.C. because the cellular elements have been removed, leaving less volume. Schneider opined that, in his ten or twelve years of clinical laboratory work experience, a serum B.A.C. is "about 35 percent too high most of the time." Schneider stated that his opinion was based "on [his] expertise and scientific opinion and * * * reading of literature and * * * actually carrying out some of these experiments."

Schneider testified that publications indicate that serum B.A.C. can be from twelve to fifty-nine percent too high, depending on the person taking the measurement and the criteria they are looking for. Schneider acknowledged that Dr. Staubus, defendant-appellee's expert, stated in his report that an accurate reading of appellant's B.A.C. is .068. However, Schneider opined that a more accurate B.A.C. would be "no more than .05, .052, somewhere in there and could be as low as .035 or so." Appellant's serum B.A.C. was measured at .08.

Schneider explained that certain variables can influence a B.A.C. measurement. By way of example, he explained that an "athlete" has more red blood cells than a "couch potato," thus, if both drank the same quantity of alcohol, the "athlete" would be more drunk, if you measure the serum, as compared to the "couch potato" because the alcohol goes to the water. Additionally, Schneider testified that the test result could vary due to fluctuations in alcohol because of physiological demands, the reliability of the instrument, the reliability of the operator, and how fresh the kit was.

Turning to the factors enumerated in Miller, the evidence presented reveals that testing to evaluate the differences in serum B.A.C. versus whole blood B.A.C. have been done and that such testing has been subject to peer review. While the testing reveals that a definite difference exists between serum B.A.C. and whole blood B.A.C., Schneider testified that there is a potential rate of error in determining the B.A.C. because of variables such as the person taking the test and the criteria measured.

This court has previously noted that general acceptance is no longer a prerequisite to the admissibility of expert testimony. Furness v. Pois (Dec. 22, 2000), Portage App. No. 99-P0014, 2000 WL 1876655, unreported at *16. However, "more than one doctor should find the idea to be beyond a hypothetical possibility before it would be considered admissible in a court of law." Id. In the instant case, appellee's expert witness, Dr. Alfred E. Staubus, also opined that appellant's B.A.C. was too high; in his opinion, appellant's serum B.A.C. was 18 percent too high. Additionally, both Dr. Schneider and Dr. Staubus testified that publications acknowledge that serum B.A.C. is higher than whole blood B.A.C. Both doctors also testified that they each have observed cases demonstrating a reliable ratio of serum B.A.C. versus whole blood B.A.C; the doctors do not, however, agree as to the ratio. Thus, the record demonstrates that Dr. Schneider, Dr. Staubus, and experts who have published in the field, have found the idea that B.A.C. differs from serum as compared to whole blood, "to be beyond a hypothetical possibility."

Thus, we conclude that the principles and methods employed by Schneider in reaching his opinion were reliable, his opinion certainly was relevant, and it would have assisted the jury in understanding the evidence relating to B.A.C. measurements. "Furthermore, the reliability requirement of Daubert should not be used to exclude such evidence simply because the evidence is confusing. Miller at 614. Thus, the court's decision to strike Schneider's testimony, in its entirety, constituted an abuse of discretion in the instant case. Appellant's first assignment of error has merit.

Civ.R. 49(B) provides that the Court shall submit written interrogatories to the jury, together with a general verdict form. Civ.R. 49(B) further provides that interrogatories may be directed to determinative issues of fact or mixed questions of fact and law. SeeGoldberg v. Board of Trustees of Lake Hospital Systems, Inc., et al. (July 21, 2000), Lake App. No. 99-L-010, unreported. The three interrogatories at issue in the instant case are directed to factual issues presented. Additionally, the judge instructed the jury as to the purpose of the interrogatories with the following instruction:

"I want to emphasize these are factual determinations for you to make and those questions, in and of themselves, do not relate to the questions of negligence. In the process of all of this, you're going to have to find all of the facts and determine whether or not those facts convince you by a preponderance of the evidence of negligence on the part of either the defendant or the plaintiff, but my only point is, those are simply factual determinations which you have been asked to make separately as part of your findings in this case."

Further, both Civ.R. 49(B) and case law permit interrogatories directed to evidentiary facts. "The purpose of an interrogatory is to ``test the jury's thinking in resolving the ultimate issue so as to not conflict with its verdict." Freeman v. Norfolk Western Ry, (1994), 69 Ohio St.3d 611, 613-614. The Supreme Court of Ohio stated that "[a] properly drafted interrogatory will elicit a statement of facts from which a conclusion of negligence or no negligence may be drawn. An interrogatory that is merely probative or evidentiary in nature, and does not touch on an ultimate issue, is improper." Id. (Citations omitted).

In the case sub judice, the interrogatories went directly to negligence and the issue of comparative negligence. Whether the appellant was under the influence of alcohol, saw appellee's flashlight, and/or saw the SMV signs on the tractor and trailer are evidentiary facts essential to the determination of comparative negligence. Appellant's second assignment of error is without merit.

Based on the forgoing analysis this case is reversed and remanded for a new trial consistent with this opinion.

__________________________________ JUDGE ROBERT A. NADER

FORD, P.J., concurs, CHRISTLEY, J., concurs with concurring opinion.