Rohe, K. v. Vinson, D. and Felton Welding , 2016 Pa. Super. 305 ( 2016 )

J-A22037-16
2016 PA Super 305KEVIN A. ROHE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DARRIS D. VINSON AND FENTON
WELDING TRANSPORT, LLC
Appellees No. 2264 MDA 2015
Appeal from the Judgment Entered December 15, 2015
In the Court of Common Pleas of Bradford County
Civil Division at No(s): 12-CV-000287
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
OPINION BY GANTMAN, P.J.: FILED DECEMBER 28, 2016
Appellant, Kevin A. Rohe, appeals from the judgment entered in the
Bradford County Court of Common Pleas, in favor of Appellees, Darris D.
Vinson and Fenton Welding Transport, LLC, in this negligence action. We
reverse and remand for a new trial.
The relevant facts and procedural history of this case are as follows.
On April 7, 2012, at approximately 7:15 p.m., Appellant was riding his
motorcycle southbound on Route 220 in Albany Township, Bradford County.
Route 220 is a two-lane highway, with one lane northbound and one lane
southbound. The weather conditions were clear and dry, and it was still light
outside at that time. Appellant was travelling in the southbound lane behind
two trucks, a tractor-trailer and a tri-axle truck, with the tri-axle truck in the
J-A22037-16
lead. Appellee Mr. Vinson was operating the tri-axle truck; and his co-
worker, Dennis Perry, was operating the tractor-trailer. Appellant reached a
lawful passing zone that stretches approximately 750 feet, and he attempted
to pass both trucks on the left. At the site of the passing maneuver, the
speed limit on Route 220 had just changed from 25 mph to 45 mph. Both
trucks were travelling below the 45 mph speed limit. In an effort to pass
both vehicles within the passing zone, Appellant increased his speed to
approximately 50 mph. After Appellant had successfully passed the tractor-
trailer, he noticed the tri-axle truck had its left turn signal activated and was
slowing down to turn into a gas station parking lot. Appellant pressed on his
horn to notify the driver that Appellant was attempting to pass, but Mr.
Vinson had already begun to turn left. Appellant struck the bumper of Mr.
Vinson’s vehicle and was ejected from the motorcycle. Mr. Vinson called
911. After aid from an Emergency Medical Services (“EMS”) crew at the
scene of the accident, Appellant was airlifted to a local hospital for medical
treatment. As a result of the motor vehicle accident, Appellant sustained
serious injuries requiring an above-the-knee amputation of his right leg.
On June 27, 2012, Appellant filed a complaint against Mr. Vinson and
Fenton Welding Transport, LLC, alleging negligence and vicarious liability.
Appellant alleged Mr. Vinson failed to activate his left turn signal early
enough, turned directly into Appellant’s path without ensuring the turn was
safe to make, failed to yield the right of way to Appellant, and did not stay in
-2-
J-A22037-16
his own lane before Appellant completed his pass in the lawful passing zone.
Appellant claimed Appellee Fenton Welding Transport, LLC (Mr. Vinson’s
employer) was vicariously liable for Mr. Vinson’s negligence because Mr.
Vinson was acting in the course and scope of his employment at the time of
the accident. Appellees filed an answer and new matter on September 7,
2012; Appellant filed a reply on September 27, 2012.
Appellant filed a motion in limine on June 20, 2014, seeking to
preclude at trial any reference to alcohol consumption by Appellant or his
friend Carl Bird on the date of the accident. Appellant also sought to
preclude any evidence showing that Appellant and Mr. Bird visited bars on
the date of the accident. Appellant’s motion contained the following eleven
exhibits: (1) a map of the accident scene; (2) an excerpt of Mr. Bird’s
deposition testimony; (3) an excerpt of Appellant’s deposition testimony; (4)
the EMS report; (5) the police crash report; (6) an excerpt of the deposition
testimony of Trooper Anthony Stempien, Jr.; (7) a report from Robert Packer
Hospital, where Appellant was treated following the accident; (8) laboratory
results from Geisinger Medical Center showing Appellant’s blood alcohol level
after the accident; (9) a letter from Dr. R.E. Hartman discussing the
methodology used in relation to Appellant’s blood alcohol level; (10) the
expert report of toxicologist Dr. Gary Lage (Appellees’ expert); and (11) an
excerpt from Mr. Vinson’s deposition testimony.
At his deposition, Mr. Bird testified, inter alia, he has known Appellant
-3-
J-A22037-16
over ten years and they typically ride motorcycles together once a week. On
the date of the accident, Mr. Bird and Appellant met between 12:00 p.m.
and 1:00 p.m. for a day-trip motorcycle ride. During the course of their trip,
Appellant and Mr. Bird stopped at six bars. Appellant and Mr. Bird each
consumed one beer at every bar they visited. At the final bar they visited,
Mr. Bird and Appellant also ate dinner. Mr. Bird said Appellant might have
consumed two beers at the last bar because they were eating. Appellant
and Mr. Bird left the last bar at approximately 7:00 p.m. to return to their
respective homes. Mr. Bird believed Appellant was capable of safe driving at
all points throughout the day and had no concern about Appellant’s ability to
drive safely. (See Appellant’s Motion in Limine, filed 6/20/14, at Exhibit 2
(Deposition of Carl Bird, 6/26/13); R.R. at 23a-47a).
Appellant testified at his deposition, inter alia, he visited six bars with
Mr. Bird over a six-to-seven-hour period on the day of the accident. At each
bar, Appellant consumed one 12-ounce Michelob Ultra light beer, except at
the last bar where Appellant consumed two 12-ounce Michelob Ultra light
beers. Appellant confirmed he and Mr. Bird ate dinner at the last bar they
visited. Appellant also indicated he ate breakfast the morning of the
accident and had a snack around 10:00 a.m. before the motorcycle ride. On
Appellant’s way home from the last bar, he was driving behind two trucks—a
tractor-trailer and a tri-axle truck in the lead. Appellant had driven on Route
220 many times and knew the upcoming passing zone was the last
-4-
J-A22037-16
opportunity he would have to pass the trucks before reaching his
destination. Appellant was approximately 50-75 feet behind the tractor-
trailer when he decided to pass both trucks. Appellant did not see any
oncoming traffic in the northbound lane, so he activated his left turn signal
and began the passing maneuver. Appellant admitted he was driving about
50 mph in a 45 mph zone to pass the trucks. After Appellant completed his
pass of the tractor-trailer, he stayed straight to pass the tri-axle truck.
Appellant then noticed the tri-axle truck had its left turn signal activated. At
that point, Appellant could not safely maneuver between the trucks due to
the limited amount of space. Appellant also did not think he could safely
veer left into the gas station parking lot because that parking lot has
numerous large potholes. Appellant honked his horn to alert the driver of
the tri-axle truck that Appellant was trying to pass, but the vehicles collided
before Appellant had an opportunity to brake or slow down. (Id. at Exhibit 3
(Deposition of Appellant, 1/30/13); R.R. at 46a-67a).
The EMS report indicated Appellant was alert upon the EMS crew’s
arrival. The report stated Appellant admitted to alcohol use. Aside from
Appellant’s admission, the report made no mention of Appellant’s alcohol use
or suggested Appellant was under the influence of alcohol. (Id. at Exhibit 4
(EMS report, 4/8/12); R.R. at 68a-72a). The police crash report stated
police were dispatched to the accident scene at 7:26 p.m. and arrived at
7:32 p.m. The report indicated police spoke with Appellant at the accident
-5-
J-A22037-16
scene and did not suspect Appellant was under the influence of drugs or
alcohol. (Id. at Exhibit 5 (Police Crash Report, 4/7/12); R.R. at 73a-78a).
Trooper Stempien testified at his deposition, inter alia, he spoke to
Appellant at the accident scene; and Appellant explained how he had
attempted to pass both trucks. Trooper Stempien also interviewed Mr.
Vinson. Trooper Stempien confirmed he had no reason to believe, by smell
or otherwise, that Appellant was under the influence of drugs or alcohol.
(Id. at Exhibit 6 (Deposition of Trooper Stempien, 1/29/14); R.R. at 79a-
82a).
The report from Robert Packer Hospital indicated Appellant’s toxicology
screen was negative except for alcohol. (Id. at Exhibit 7 (Robert Packer
Hospital report, 4/11/12); R.R. at 83a-84a). Appellant’s laboratory results
stated the hospital drew Appellant’s blood at 9:10 p.m. (within two hours of
the accident), and Appellant’s blood alcohol level was 0.08%. (Id. at Exhibit
8 (Laboratory results, 4/7/12); R.R. at 85a). Dr. Hartman’s letter stated the
current methodology used to calculate Appellant’s blood alcohol level (as
reflected in the hospital and laboratory reports) uses only serum or plasma
and does not convert the specimen into a whole blood sample. (Id. at
Exhibit 9 (Dr. Hartman letter, 7/23/13); R.R. at 86a).
Dr. Lage’s expert report conceded Appellant’s blood alcohol level must
be converted to a whole blood sample to calculate Appellant’s blood alcohol
content (“BAC”) because serum levels are higher than whole blood by about
-6-
J-A22037-16
16%. Using the proper whole blood conversion, Appellant’s BAC at the time
of the blood draw equaled 0.0706%. Dr. Lage’s report indicated Appellant is
5’11” and approximately 200 pounds. Dr. Lage’s report discussed how food
delays the absorption of alcohol and how beer acts as a food and delays the
absorption of alcohol. Dr. Lage’s report described the typical effects of
alcohol on a person where the person’s BAC is between 0.05% and 0.10%.
Dr. Lage said Appellant’s BAC at the time of the blood draw was inconsistent
with the amount of alcohol Appellant admitted consuming. Dr. Lage
estimated Appellant could have drunk approximately eleven beers on the
day of the accident. Dr. Lage’s report also stated the EMS personnel, airlift
crew, and hospital employees all detected an odor of alcohol on Appellant. 1
Using “relation back” calculations, Dr. Lage opined Appellant’s BAC was on
the decline at the time of the blood draw and was between 0.085% and
0.10% at the time of the accident, depending on when Appellant consumed
his final beer. Based on Dr. Lage’s calculation, he concluded Appellant was
impaired, incapable of safe driving at the time of the accident, and his
intoxication was a significant causative factor in the accident. (Id. at Exhibit
10 (Dr. Lage’s Expert Report, 5/8/14); R.R. at 87a-91a).
Mr. Vinson testified, inter alia, he checked his rearview mirror
approximately twenty feet before turning left. Mr. Vinson did not see
____________________________________________
1
Nothing in the record supports Dr. Lage’s statement that Appellant had an
odor of alcohol on him at the time of the accident or thereafter.
-7-
J-A22037-16
Appellant in his rearview mirror at that time. Mr. Vinson heard Appellant’s
horn as he began to make the left turn but, at that point, it was too late to
avoid a collision. Mr. Vinson said he slammed on his brakes but could not
escape the crash. Mr. Vinson testified he did not see Appellant until a
fraction of a second before impact. (Id. at Exhibit 11 (Deposition of Darris
Vinson, 1/30/13); R.R. at 92a-97a).
Appellant submitted a brief in support of his motion in limine on June
23, 2014. Appellees filed their brief opposing Appellant’s motion on August
11, 2014, along with the following seven exhibits: (1) Dr. Lage’s expert
report; (2) the full deposition testimony of Ronald Laxton, an eyewitness to
the accident; (3) Appellant’s full deposition testimony; (4) Carl Bird’s full
deposition testimony; (5) Trooper Stempien’s full deposition testimony; (6)
Mr. Vinson’s full deposition testimony; and (7) the EMS report.2
At his deposition, eyewitness Mr. Laxton testified, inter alia, he saw
two large water trucks travelling on Route 220 on the day of the accident.
Mr. Laxton observed a motorcyclist attempting to pass both trucks and
thought to himself, “[L]ook at that fool, he’s gonna get hurt.” (See Brief
Opposing Motion in Limine, filed 8/11/14, at Exhibit B (Deposition of Ronald
Laxton, 9/5/13, at 25); R.R. at 197a). Mr. Laxton acknowledged the passing
zone and said: “I don’t know if it was legal or not but I think it was kind of
____________________________________________
2
Mr. Perry, the driver of the tractor-trailer, died before Appellant filed suit,
so no party was able to obtain his deposition testimony.
-8-
J-A22037-16
stupid for what [Appellant] was trying to pass.” (Id. 28; R.R. at 200a).
Notwithstanding the lawful passing zone, Mr. Laxton stated: “I wouldn’t pass
there. It’s not a safe place to pass.” (Id. at 29; R.R. at 201a). Mr. Laxton
explained there were a couple of accidents in that location in the past. Mr.
Laxton observed Appellant begin to pass the trucks before he entered the
lawful passing zone. Mr. Laxton said the tri-axle truck already had its turn
signal activated when Appellant initiated the pass. Mr. Laxton thought:
“[L]ook at this sucker, he’s dead.” (Id. at 37; R.R. at 209a). Mr. Laxton
agreed Appellant could not have safely turned into the gas station parking
lot due to the potholes. After the collision, Mr. Laxton spoke to Appellant.
Appellant told Mr. Laxton “he [Appellant] fucked up.” (Id. at 46; R.R. at
218a).
In the full deposition transcript, Appellant’s friend Mr. Bird further
explained he had no concern about Appellant’s ability to drive safely on the
date of the accident because Appellant was acting “normal” and was not
slurring his words or exhibiting any other outward signs of intoxication. (Id.
at Exhibit D (Deposition of Carl Bird, 6/26/13, at 27); R.R. at 306a).
In the full deposition transcript, Mr. Vinson said he spoke to Appellant
after the accident and asked if Appellant saw Mr. Vinson’s turn signal
activated, and Appellant responded affirmatively. Appellant told Mr. Vinson:
“[D]on’t worry about it, it’s my fault[.]” (Id. at Exhibit F (Deposition of
Darris Vinson, 1/30/13, at 36); R.R. at 377a). During his discussion with
-9-
J-A22037-16
Appellant at the accident scene, Mr. Vinson made no observations
suggesting Appellant was under the influence of alcohol.
Appellant filed a reply brief in support of his motion in limine on
September 18, 2014. The court held oral argument on the motion the next
day. On September 24, 2014, Appellant submitted a report from Henry
Cifuni, an expert in motorcycle safety, indicating there was nothing Appellant
could have done differently to avoid the accident. Appellees submitted a sur
reply brief opposing the motion in limine on September 29, 2014. The trial
court denied Appellant’s motion in limine on December 9, 2014.
Appellant proceeded to a jury trial on September 22, 2015.3 Based on
the earlier court’s pre-trial ruling, the jury heard all evidence related to
Appellant’s alcohol consumption. The next day, the jury returned a defense
verdict expressly finding Mr. Vinson was not negligent. Consequently, the
jury did not address whether Appellant was contributorily negligent.
Appellant timely filed a motion for post-trial relief on September 28, 2015,
challenging the court’s ruling on his motion in limine and the admission at
trial of evidence related to his alcohol consumption. Following oral
argument, the court denied Appellant’s post-trial motion on December 1,
2015. On December 15, 2015, Appellant filed a praecipe for entry of final
judgment, which was entered that day. Appellant timely filed a notice of
____________________________________________
3
A different jurist presided over trial.
- 10 -
J-A22037-16
appeal on December 21, 2015. On January 6, 2016, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on January 15,
2016.
Appellant raises two issues for our review:
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN ITS ORDER OF DECEMBER 9, 2014, DENYING
[APPELLANT’S] MOTION IN LIMINE TO EXCLUDE EVIDENCE
OF HIS ALCOHOL CONSUMPTION PRIOR TO HIS MOTOR
VEHICLE CRASH, WHERE THE EVIDENCE DID NOT
REASONABLY ESTABLISH A DEGREE OF INTOXICATION
WHICH PROVED HE WAS UNFIT TO DRIVE, AND WHERE
THE EVIDENCE OF ALCOHOL CONSUMPTION WAS UNDULY
PREJUDICIAL.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN ITS ORDER OF DECEMBER 1, 2015 DENYING
[APPELLANT’S] MOTION FOR A NEW TRIAL BASED UPON
THE INTRODUCTION OF EVIDENCE OF ALCOHOL
CONSUMPTION, WHERE THE EVIDENCE ADMITTED AT
TRIAL DID NOT REASONABLY ESTABLISH A DEGREE OF
INTOXICATION WHICH PROVED HE WAS UNFIT TO DRIVE,
AND WHERE THE EVIDENCE WAS UNDULY PREJUDICIAL.
(Appellant’s Brief at 4).
Appellate review of the denial of a post-trial motion for a new trial is
guided by the following principles:
The Superior Court’s standard for reviewing the trial
court’s denial of a motion for a new trial is whether the
trial court clearly and palpably abused its discretion or
committed an error of law which affected the outcome of
the case. We will reverse the trial court’s denial of a new
trial only where there is a clear abuse of discretion or an
error of law which controlled the outcome of the case. The
trial court abuses its discretion when it misapplies the law
or when it reaches a manifestly unreasonable, biased or
- 11 -
J-A22037-16
prejudiced result. Abuse of discretion may occur through
an honest, but erroneous use of discretion. A new trial
may not be granted merely because the evidence conflicts
and the jury could have decided for either party. The
grant of a new trial is appropriate, however, where the
jury verdict may have been based on improperly
admitted evidence.
* * *
Questions regarding the admissibility or exclusion of
evidence are also subject to the abuse of discretion
standard of review. Pennsylvania trial judges enjoy broad
discretion regarding the admissibility of potentially
misleading and confusing evidence. Relevance is a
threshold consideration in determining the admissibility of
evidence. A trial court may, however, properly exclude
evidence if its probative value is substantially outweighed
by the danger of unfair prejudice. Generally[,] for the
purposes of this evidentiary rule, “prejudice” means an
undue tendency to suggest a decision on an improper
basis. The erroneous admission of harmful or prejudicial
evidence constitutes reversible error.
Whyte v. Robinson, 617 A.2d 380, 382-83 (Pa.Super. 1992) (emphasis in
original) (internal citations omitted).
For purposes of disposition, we combine Appellant’s issues. Appellant
asserts that the mere fact of drinking alcohol is inadmissible in a civil
negligence case, unless the evidence establishes a degree of intoxication
which proves unfitness to drive. Appellant admits he consumed six beers
over a six-to-seven-hour period before the accident.4 Appellant argues no
evidence showed he was unfit to drive. Appellant emphasizes the EMS
____________________________________________
4
At his deposition, Appellant conceded he drank seven beers over that
timeframe.
- 12 -
J-A22037-16
report, Robert Packer Hospital records, police crash report, deposition
testimony of Trooper Stempien, and accounts from all persons in contact
with Appellant after the accident made no mention of any indicators that
Appellant was intoxicated. Appellant claims the most significant evidence is
that he did not exhibit any of the classic signs of intoxication before, during,
or after the accident, such as glassy or bloodshot eyes, incoherent
mumbling, slurred speech, an odor of alcohol, or erratic behavior. Appellant
further highlights Mr. Bird’s deposition testimony that he did not believe
Appellant was intoxicated. Appellant contends his admission to consuming
beers and his blood alcohol test results establish only that he had been
drinking on the day of the accident, but not that he was unfit to drive.
Appellant submits there was similarly no evidence that Mr. Bird was
intoxicated on the day of the accident.
Appellant rejects the “relation back” testimony and opinion of
Appellees’ expert, Dr. Lage, as wholly inconsistent with the other evidence of
record and as highly speculative, where Dr. Lage failed to account for
several variables which could have affected Appellant’s BAC. For example,
Dr. Lage failed to account for Appellant’s consumption of food at the last
establishment he visited before the accident, the fact that beer is absorbed
more slowly than other alcoholic beverages, and that the severe trauma of
the accident could have affected his absorption rate. Appellant contends Dr.
Lage offered nothing to support his assertion that Appellant’s blood alcohol
- 13 -
J-A22037-16
level was declining at the time of the blood draw, which is particularly
troubling where Dr. Lage had no information regarding what time Appellant
had consumed his last beer. Appellant submits the court erred when it
denied his motion in limine and allowed at trial evidence of his alcohol
consumption, as the admission of that evidence was unfairly prejudicial.
Appellant stresses the error was not harmless, because evidence of alcohol
consumption in a civil negligence case like his has a pernicious influence,
which might have led to the defense verdict. Appellant concludes this Court
must grant him a new trial. For the following reasons, we agree.
Pennsylvania law makes clear: “[W]hile proof of intoxication is relevant
where reckless or careless driving of an automobile is the matter at issue,
the mere fact of drinking intoxicating liquor is not admissible, being unfairly
prejudicial, unless it reasonably establishes a degree of intoxication which
proves unfitness to drive.” Fisher v. Dye, 386 Pa. 141, 148, 125 A.2d 472,
476 (1956). The “objective criteria normally required to establish
intoxication include evidence of staggering, stumbling, aimless wandering,
glassy eyes or incoherent mumbling.” Locke v. Claypool, 627 A.2d 801,
804 (Pa.Super. 1993) (internal quotation marks omitted).
An individual’s blood alcohol level can also be relevant circumstantial
evidence of intoxication. Ackerman v. Delcomico, 486 A.2d 410(Pa.Super. 1984). “However, blood alcohol level alone may not be admitted
for the purpose of proving intoxication. There must be other evidence
- 14 -
J-A22037-16
showing the actor’s conduct which suggests intoxication.” Id. at 414(emphasis added). The “other” evidence necessary to render admissible a
BAC in excess of the legal limit “may also consist of expert testimony
interpreting the significance of the results of blood alcohol tests with respect
to unfitness to drive.” Gallagher v. Ing, 532 A.2d 1179, 1183 (Pa.Super.
1987), appeal denied, 519 Pa. 665, 548 A.2d 255 (1988).
The rationale behind this rule is that when a person’s blood
alcohol content exceeds [the legal limit], our legislature
has determined that he is presumptively unfit to drive.
The “presumption” of unfitness to drive, however, is
inapplicable to civil cases, and a jury may not be instructed
regarding the presumption. Therefore, expert testimony is
helpful to explain the significance of a blood alcohol
content above [the legal limit], without reference to the
“presumption.”
Locke, supra at 805 (internal citations omitted).5 “[I]n cases that have
admitted blood alcohol tests, not only did independent evidence corroborate
an inference that the person was intoxicated, but his…blood alcohol level
was above…the statutorily presumptive level of unfitness to operate a
____________________________________________
5
At the time of this Court’s decision in Locke, Gallagher, and other earlier
cases, the legal limit for driving under the influence (“DUI”) of alcohol was
0.10%. On September 30, 2013, the legislature lowered the legal limit to
0.08%. See 75 Pa.C.S.A. § 3731(a)(4)(i) (effective September 30, 2003 to
January 31, 2004). The current legal limit (in effect at the time of
Appellant’s accident) remains 0.08%. See 75 Pa.C.S.A. § 3802(a)(2)
(explaining under general impairment provision of statute, individual may
not drive, operate or be in actual physical control of movement of vehicle
after imbibing sufficient amount of alcohol such that alcohol concentration in
individual’s blood or breath is at least 0.08% but less than 0.10% within two
hours after individual has driven, operated or been in actual physical control
of movement of vehicle).
- 15 -
J-A22037-16
vehicle.” Locke, supra at 804-05.
In civil negligence cases, “there is no precise type or amount of
evidence necessary to establish the requisite degree of intoxication[.]”
Braun v. Target Corp., 983 A.2d 752, 760 (Pa.Super. 2009), appeal
denied, 604 Pa. 701, 987 A.2d 158 (2009). Nevertheless:
[T]his Court has found the following intoxication evidence
admissible as unfitness to perform the task at hand:
Kraus v. Taylor, 710 A.2d 1142 (Pa.Super. 1998), appeal
dismissed as improvidently granted, 560 Pa. 220, 743 A.2d
451 (2000) (holding trial court properly admitted evidence
of pedestrian’s alcohol consumption where (1) responding
officer detected scent of alcohol on pedestrian’s breath
following accident; (2) hospital measured pedestrian’s BAC
level in excess of 0.25 percent within forty (40) minutes of
accident; and (3) expert testimony established that, given
BAC results, pedestrian’s judgment and motor skills would
have been severely impaired at time of accident); Crosby
v. Com., Dept. of Transp., [548 A.2d 281 (Pa.Super.
1988), appeal denied, 522 Pa. 576, 559 A.2d 37 (1989)]
(holding evidence revealed more than mere hint of
intoxication where (1) officer testified he smelled odor of
alcohol on plaintiff; (2) plaintiff’s BAC was 0.101 percent;
(3) expert toxicologist opined plaintiff’s BAC rendered him
unfit to drive; and (4) plaintiff was familiar with road, but
drove off of it, straight into tree); Ackerman, supra(holding trial court properly admitted evidence of
intoxication, and such evidence was not prejudicial where
(1) plaintiff’s girlfriend and roommate stated plaintiff had
been drinking beer since late afternoon on day of accident;
(2) defendant and medical personnel testified plaintiff
strongly smelled of beer; (3) plaintiff’s BAC was 0.195
percent; (4) hospital records revealed plaintiff admitted
drinking heavily; and (5) plaintiff had slurred speech and
low level of alertness following accident).
Braun, supra at 761 (holding evidence demonstrated more than mere hint
of intoxication where (1) Mr. Braun consumed alcohol throughout day before
- 16 -
J-A22037-16
accident; (2) witnesses observed Mr. Braun drink beer at lunch shortly
before accident; (3) Mr. Braun ascended eighteen feet above ground on
scissor lift and failed to tie off, even though safety equipment on railed
platform was readily accessible to him; (4) Mr. Braun inexplicably and
unnecessarily stepped off railed platform onto eight inch wide steel beam;
(5) Mr. Braun’s BAC was 0.27%; and (6) expert opined Mr. Braun’s high BAC
would render him physically and behaviorally impaired and drastically
increase his risk of falling). See also Gallagher, supra (holding evidence
of alcohol consumption was admissible where evidence showed (1) decedent
had been drinking scotch for approximately 1½ hours before getting in car
to drive home; (2) several witnesses observed decedent driving at high rate
of speed on dark, winding, and hilly road approximately one mile from
accident scene; (3) decedent’s BAC was 0.18%; (4) expert testified
extensively regarding significance of such high alcoholic content with respect
to decedent’s ability to drive safely). Compare Vignoli v. Standard Motor
Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965) (holding evidence of
alcohol consumption was inadmissible where only evidence of driver’s
intoxication was his admission to consuming two beers prior to driving and
several hours had elapsed between alcohol consumption and accident; and
(2) two people stated driver was acting “funny” at accident scene; such
evidence falls far short of reasonably establishing requisite degree of
intoxication); Locke, supra (holding evidence of alcohol consumption was
- 17 -
J-A22037-16
inadmissible where only evidence of plaintiff’s intoxication was (1) officer’s
testimony that he smelled odor of beer emanating from ambulance which
housed plaintiff at scene of accident; (2) blood test indicating plaintiff’s BAC
was 0.06%, which was below statutory limit; and (3) testimony from expert,
who extrapolated test results and concluded plaintiff would have
exaggerated reaction to alcohol because he was underage; significantly,
plaintiff exhibited no physical signs to indicate he was unfit to operate his
bicycle, such as riding his bike erratically, slurring his speech, or otherwise
appearing intoxicated; sole independent evidence which might indicate
plaintiff was intoxicated was police officer’s testimony that he smelled beer
emanating from plaintiff; without more, however, this evidence proves only
that plaintiff consumed alcohol; it is insufficient to prove intoxication).
This Court has viewed with skepticism expert testimony in civil cases
that extrapolates (or “relates back”) blood test results. Id. at 805(explaining expert’s “relation back” testimony that plaintiff’s BAC was
between 0.075% and 0.08% at time of accident is entirely speculative and
highly prejudicial where plaintiff’s BAC at time of blood draw was below
statutory legal limit and absent any objective indicia plaintiff was unfit to
operate bicycle). See also generally Whyte, supra (discussing
speculative nature of “relation back” testimony).
Instantly, the evidence presented to the court in Appellant’s motion in
limine, and in Appellees’ opposition showed: Appellant and Mr. Bird met
- 18 -
J-A22037-16
between 12:00 p.m. and 1:00 p.m. on the date of the accident for a
motorcycle day-trip. During their ride, Appellant and Mr. Bird stopped at six
bars. Appellant and Mr. Bird consumed one beer each at the first five bars.
At the last establishment, Appellant consumed two 12-ounce Michelob Ultra
light beers. Appellant and Mr. Bird ate dinner at the last establishment.
Appellant and Mr. Bird departed the last bar at approximately 7:00 p.m. to
go home. Mr. Bird had no concern about Appellant’s ability to drive safely
because Appellant was acting “normal” and was not slurring his words or
exhibiting any other outward signs of intoxication.
While driving home on Route 220, Appellant noticed two trucks in front
of him—a tractor-trailer and a tri-axle truck in the lead. Appellant was
familiar with Route 220, as he had previously travelled that road numerous
times. Appellant knew the upcoming legal passing zone would be his only
opportunity to pass the trucks before arriving at his destination, so Appellant
activated his left turn signal and began to pass both trucks. After Appellant
successfully completed his pass of the tractor-trailer, Appellant noticed the
tri-axle truck had its left turn signal activated. Appellant pressed his horn to
alert Mr. Vinson but neither of them was able to avoid the collision. Henry
Cifuni, an expert in motorcycle safety, opined there was nothing Appellant
could have done differently to avoid the accident.
Ronald Laxton witnessed the accident. Mr. Laxton acknowledged the
lawful passing zone, but he said the passing zone is not well situated and
- 19 -
J-A22037-16
pointed out that other accidents occurred in that location. Mr. Laxton
thought Appellant was a “fool” and “stupid” for trying to pass the trucks. Mr.
Laxton conceded Appellant could not have safely veered left into the gas
station parking lot because of the potholes and rough terrain. After the
collision, Mr. Laxton spoke to Appellant; Appellant told Mr. Laxton “he
[Appellant] fucked up.” Mr. Laxton did not mention any behavior by
Appellant that would suggest Appellant was under the influence of alcohol.
Mr. Vinson spoke to Appellant at the accident scene and called 911.
During their conversation, Appellant said: “[D]on’t worry about it, it’s my
fault.” Mr. Vinson did not notice any signs indicating Appellant was under
the influence of alcohol. EMS personnel arrived at the scene shortly
thereafter. Appellant was alert during treatment and admitted to alcohol
use. No member of the EMS crew noted that Appellant displayed any signs
indicating he was under the influence of alcohol or otherwise impaired.
Trooper Stempien spoke with Appellant at the accident scene. During their
conversation, Appellant explained what took place. Trooper Stempien made
clear during his deposition he had no reason to believe Appellant was under
the influence of alcohol.
Appellant was airlifted to Robert Packer Hospital. The hospital
performed a toxicology screen which tested negative except for alcohol. A
blood draw taken within two hours of the accident showed a blood alcohol
level of 0.08%. Dr. Hartman confirmed that the current methodology for
- 20 -
J-A22037-16
analyzing Appellant’s blood draw (as reflected in the hospital and laboratory
reports) uses only serum or plasma.
Appellees’ expert, Dr. Lage, conceded in his expert report that
Appellant’s blood alcohol level must be converted to a whole blood sample to
calculate the proper BAC because serum levels are higher than whole blood
by about 16%. Using the proper conversion, Appellant’s BAC at the time of
the blood draw equaled 0.0706%. Dr. Lage said the level of alcohol in
Appellant’s blood at the time of the blood draw is inconsistent with the
amount of alcohol Appellant admitted consuming. Dr. Lage estimated
Appellant must have drunk approximately eleven beers prior to the accident.
Dr. Lage’s report also erroneously stated the EMS personnel, airlift crew, and
hospital employees all detected an odor of alcohol on Appellant, which is
inconsistent with the record. Using “relation back” calculations, Dr. Lage
opined Appellant’s BAC was on the decline at the time of the blood draw and
was between 0.085% and 0.10% at the time of the accident, depending on
when Appellant consumed his final beer, which Dr. Lage did not know.
Based on this calculation, Dr. Lage opined Appellant was incapable of safe
driving at the time of the accident, and Appellant’s intoxication was a
significant causative factor in the accident.
Under these facts, we cannot agree with the trial court’s decision that
the evidence presented reasonably establishes a degree of intoxication which
demonstrated Appellant was unfit to drive. See Fisher, supra. The
- 21 -
J-A22037-16
deposition testimony from Appellant and Mr. Bird unequivocally establish the
men drank beer over a six-to-seven-hour period on the day of the accident;
such testimony, however, proves only that Appellant consumed alcohol and
is insufficient to prove intoxication. See Locke, supra. Following the
accident, Appellant spoke with numerous individuals including Mr. Vinson,
Mr. Laxton, EMS personnel, Trooper Stempien, an airlift crew, and hospital
employees. None of these people indicated that Appellant displayed any of
the classic signs of intoxication such as glassy eyes, an odor of alcohol, or
incoherent mumbling. See id.Additionally, Mr. Laxton’s opinion that Appellant was a “fool” and
“stupid” for trying to pass both trucks simply suggests Appellant’s poor
judgment. Appellant’s comment to Mr. Laxton that Appellant “fucked up”
and his statement to Mr. Vinson accepting fault similarly do not tend to
prove intoxication, only Appellant’s poor judgment in his passing maneuver.
See id. at 804 n.2 (rejecting trial court’s consideration of plaintiff’s “lack of
prudent judgment” in riding bicycle in dark on major highway at 2:10 a.m.
without reflectors as evidence of intoxication; whether plaintiff acted with
prudent judgment is matter of contributory negligence which jury must
decide; evidence of plaintiff’s poor judgment does not necessarily show he
acted under effects of alcohol).
Appellant’s whole-blood-conversion BAC, taken at the hospital within
two hours of the accident, was 0.0706%, according to Dr. Lage, which is
- 22 -
J-A22037-16
below the legal limit in Pennsylvania. See 75 Pa.C.S.A. § 3802(a)(2). To
admit Appellant’s BAC results in this case, therefore, required additional
conduct of Appellant suggesting intoxication.6 See Ackerman, supra. Dr.
Lage’s expert testimony interpreting and explaining the effects of alcohol on
a person with this low BAC cannot, on its own, constitute the requisite
“other” evidence, where Appellant’s BAC at the time of the blood draw was
below the statutory legal limit. Compare Coughlin v. Massaquoi, 138
A.3d 638 (Pa.Super. 2016), appeal granted, ___ Pa. ___, 144 A.3d 925(2016) (holding expert’s testimony that pedestrian/decedent’s BAC of
0.313% rendered him unfit to cross safely four-lane avenue intersection at
night was sufficient corroborating evidence for admission of his BAC result) 7;
Braun, supra (holding evidence demonstrated more than mere hint of
intoxication where, inter alia, Mr. Braun’s BAC was 0.27%, and expert
opined Mr. Braun’s high BAC would render him physically and behaviorally
impaired and drastically increase his risk of falling); Gallagher, supra(holding evidence of alcohol consumption was admissible where evidence
showed, inter alia, decedent’s BAC was 0.18%, and expert testified
____________________________________________
6
At trial, Appellant produced expert testimony from forensic toxicologist Dr.
Michael Coyer, who testified Appellant’s BAC at the time of the blood draw
was 0.069% using the proper conversion rate. The experts agreed at trial
that the difference in their calculations was statistically insignificant.
7
On August 24, 2016, our Supreme Court granted allowance of appeal in
Coughlin to decide whether the trial court erred by admitting the
pedestrian/decedent’s BAC results and the expert’s testimony.
- 23 -
J-A22037-16
extensively regarding significance of such high alcoholic content with respect
to decedent’s ability to drive safely).
Further, we cannot accept that Dr. Lage’s opinion itself was the
sufficient “other” evidence of Appellant’s intoxication. Importantly, Dr.
Lage’s expert report misstates facts of record. Dr. Lage’s report falsely
states the EMS team, airlift crew, and hospital employees all detected an
odor of alcohol on Appellant. (See Appellant’s Motion in Limine at Exhibit 10
(Dr. Lage’s Expert Report at 4); R.R. at 90a). The record, however, belies
that premise. Moreover, we cannot know if Dr. Lage relied on his own
misstatement when he conducted his “relation back” analysis.8 In this
scenario, Dr. Lage’s “relation back” testimony is simply too speculative and
highly prejudicial, where Appellant’s BAC at the time of the blood draw was
below the statutory limit, there was no other objective indicia Appellant was
unfit to drive, or any record evidence of when Appellant consumed his last
beer.9 See Locke, supra; Whyte, supra. For these reasons, the trial
____________________________________________
8
Appellant’s expert Dr. Coyer hotly disputed Dr. Lage’s conclusions at trial.
Dr. Coyer opined Appellant’s BAC level was rising following the accident and
calculated Appellant’s BAC at the time of the accident as less than 0.05%,
possibly 0.03% or 0.04%. Appellant did not retain Dr. Coyer until closer to
trial so his findings do not appear in the filings relevant to the motion in
limine.
9
Appellant properly preserved his challenge to Dr. Lage’s “relation back”
testimony and report in Appellant’s motion in limine and supporting brief, so
he did not need to renew his objection at trial. See Pa.R.E. 103(b) (stating:
“Once the court rules definitively on the record—either before or at trial—a
(Footnote Continued Next Page)
- 24 -
J-A22037-16
court should have excluded from trial any reference to alcohol consumption
by Appellant or Mr. Bird or that they visited bars on the date of the accident.
See Vignoli, supra; Locke, supra; Whyte, supra. See also Morreale v.
Prince, 436 Pa. 51, 53, 258 A.2d 508, 508-09 (1969) (stating: “In terms of
the possible prejudice there is no functional difference between evidence
that a litigant was drinking and evidence that he was in a bar. Both pieces
of evidence give rise to the insidious inference that the individual involved
was intoxicated or under the influence of alcohol, which inference, without
some proof of intoxication, has no role to play in any case”).
As the jury verdict here could have been affected by the improperly
admitted evidence, we cannot agree the error was harmless. The potentially
pernicious effect of admitting evidence of alcohol consumption in this case
warrants a new trial. See Whyte, supra (stating trial court’s erroneous
admission of harmful and prejudicial evidence of alcohol consumption, with
its potentially pernicious effects, warranted new trial). See also Locke,
supra (explaining that, without independent evidence to corroborate
defendant’s contention that plaintiff was intoxicated while operating his
bicycle, possibility was too great that jury placed undue emphasis on mere
_______________________
(Footnote Continued)
party need not renew an objection or offer of proof to preserve a claim of
error for appeal”); Blumer v. Ford Motor Co., 20 A.3d 1222 (Pa.Super.
2011), appeal denied, 616 Pa. 649, 49 A.3d 441 (2012) (explaining that
under Rule 103, ruling on merits of motion in limine on record is sufficient to
preserve issue for appeal, without renewal of objection at trial).
- 25 -
J-A22037-16
fact that plaintiff had consumed alcohol on evening of accident).
Based upon the foregoing, we hold the evidence presented in this civil
negligence case failed to establish a degree of intoxication reasonably
demonstrating Appellant’s unfitness to drive, notwithstanding Appellant’s
admission to drinking alcohol of the date of the accident. Therefore, the trial
court erred when it denied Appellant’s motion in limine and allowed at trial
any evidence of Appellant’s or Mr. Bird’s alcohol consumption or visits to
bars on the day of the accident, including Appellant’s BAC results and expert
testimony discussing those results. The erroneous admission of this
evidence was not harmless error under the facts of this case, and Appellant
should have a new trial. Accordingly, we reverse and remand.
Judgment reversed; case remanded for further proceedings.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2016
- 26 -