Roy v. Gray

[Cite as Roy v. Gray, 197 Ohio App.3d 375, 2011-Ohio-6768.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROY et al.,
Appellees and Cross-Appellants,
v.
GRAY et al.,
Appellants and Cross-Appellees,
APPEAL NOS. C-100223 and C-100261
TRIAL NO. A-0711430
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 30, 2011
Keating Muething & Klekamp, P.L.L., Matthew K. Buck, Michael T. Cappel, and
Brandi M. Stewart, for appellees and cross-appellants.
Cors & Bassett, L.L.C., Robert Hollingsworth, and Jack B. Harrison, for appellants
and cross-appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶ 1} Defendants-appellants Daniel Gray and the Shaw Group, Inc., appeal the
trial court’s judgment, entered following a jury verdict in favor of plaintiffs-appellees
Lawrence and Kathy Roy, denying their motion for judgment notwithstanding the
verdict or, alternatively, for a new trial. We reverse the trial court’s judgment because
the jury’s verdict finding Gray and the Shaw Group negligent was based on improper
and prejudicial expert accident-reconstruction testimony from a police officer who had
investigated the accident and improper opinion from this police officer and the Roys’
accident-reconstruction expert that Gray and the Shaw Group had violated R.C. 5577.05.
I. A Collision Between a Utility Truck and a Van
{¶ 2} This lawsuit stems from a motor-vehicle collision that took place in a
construction zone during daylight hours with no adverse weather conditions. Lawrence
Roy was driving a van in which his wife, Kathy Roy, was a passenger. Gray was driving a
utility truck for his employer, the Shaw Group, hauling a wooden pole in cradles on the
right side of the truck. When Gray turned left at an intersection, the pole entered the
driver’s-side windshield of the Roys’ van, injuring Lawrence Roy.
{¶ 3} The Roys subsequently brought suit against Gray and the Shaw Group,
asserting that they had been negligent in transporting the pole and that they had also
acted maliciously, warranting an award of punitive damages. Testimony in the three-
day jury trial centered upon whether Gray, Roy, or both men had been responsible for
the accident. The Roys presented testimony from Lawrence Roy, Kathy Roy, their
daughter Kristin Roy, Hamilton County Sheriff’s Deputies Mike Tarr and John
Losekamp, accident-reconstruction expert Erin Higinbotham, Ph.D., eyewitness Dr.
Louis Thibodeaux, and neuropsychologist Dr. Thomas Sullivan, Ph.D.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶ 4} At the close of the Roys’ evidence, the trial court overruled a motion by
Gray and the Shaw Group for a directed verdict on the issue of punitive damages. The
trial court then permitted the Roys to reopen their case to present Gray’s testimony. At
the conclusion of Gray’s testimony, counsel for Gray and the Shaw Group again moved
for a directed verdict on the issue of punitive damages, which the trial court overruled.
{¶ 5} Gray and the Shaw Group then presented testimony from Gray, his co-
worker Randall Simmons, and accident-reconstruction expert Fred Lickert. At the close
of all evidence, Gray and the Shaw Group again renewed their motion for a directed
verdict on the Roys’ punitive-damages claim. The trial court overruled the motion and
instructed the jury accordingly.
{¶ 6} The jury rendered a verdict in favor of the Roys and against Gray and the
Shaw Group in the amount of $635,429.92, which included $300,000 in punitive
damages. The jury found that both parties had been negligent, with the causation of the
accident 80 percent attributable to Gray and the Shaw Group’s negligence and 20
percent attributable to the Roys’ negligence. The trial court reduced the Roys’
compensatory-damages award by 20 percent from $336,429.92 to $268,343.94.
II. Posttrial Motions
{¶ 7} The Roys subsequently filed a motion for prejudgment interest, attorney
fees, and costs, and to set a final verdict. Gray and the Shaw Group filed a motion to
compel descriptive time records of the Roys’ counsel, combined responses to the Roys’
posttrial motions, and a motion for, alternatively, judgment notwithstanding the verdict
or a new trial. The trial court granted the Roys’ motion for attorney fees, awarding the
Roys $125,993.05. It denied Gray and the Shaw Group’s posttrial motion for
alternatively judgment notwithstanding the verdict or a new trial and the Roys’ motion
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OHIO FIRST DISTRICT COURT OF APPEALS
for prejudgment interest. The trial court entered a final judgment in the amount of
$701,666.23.
III. Assignments of Error on Appeal
{¶ 8} Gray and the Shaw Group raise three assignments of error for our
review: (1) the trial court erred in not directing a verdict on the punitive-damages claim
and in subsequently overruling Gray and the Shaw Group’s posttrial motions seeking to
vacate the punitive-damage award or, alternatively, for a new trial, (2) the trial court
erred in allowing the Roys’ unqualified witnesses to offer “expert” opinions regarding
accident reconstruction and statutory interpretation of R.C. 5577.05, while refusing to
allow Gray and the Shaw Group to present evidence that they had been, in fact, acquitted
of any violation of the statute, and (3) the trial court erred in denying Gray and the Shaw
Group’s motion to reduce or vacate as unsupported the award of lost profits or, in the
alternative, for a new trial.
{¶ 9} The Roys have filed a timely cross-appeal, raising two assignments of
error: (1) the trial court erred in reducing the Roys’ award of compensatory damages by
20 percent to account for the finding of comparative negligence and (2) the trial court
erred in denying the Roys’ motion for prejudgment interest. We begin our analysis by
addressing the second assignment of error advanced by Gray and the Shaw Group
because it is dispositive of their remaining assignments of error and the two assignments
of error advanced in the Roys’ cross appeal.
IV. The Trial Court’s Admission of Improper and Prejudicial Testimony
{¶ 10} In their second assignment of error, Gray and the Shaw Group argue
that the trial court erred in allowing unqualified witnesses to offer “expert” opinions
regarding accident reconstruction and statutory interpretation of R.C. 5577.05, while
refusing to allow Gray and the Shaw Group to present evidence that they had been
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OHIO FIRST DISTRICT COURT OF APPEALS
acquitted of any violation of this statute. In their motion for new trial, they argued that
this improper and inadmissible opinion testimony was key to the jury’s verdict finding
that Gray was negligent.
{¶ 11} Ohio courts have held that a witness who testifies about the cause of an
accident must have some knowledge concerning, or experience in determining the cause
of, accidents. See Kolidakis v. Glenn McClendon Trucking Co., 7th Dist. No. 03 MA 64,
2004-Ohio-3638, ¶ 39. In Scott v. Yates (1994), 71 Ohio St.3d 219, 221, 643 N.E.2d 105,
the Ohio Supreme Court clarified that accident investigation involves the collection and
recording of information, while accident reconstruction involves the use of scientific
methodology to draw inferences from investigative data. See id. at 220. As a result,
police officers who have not been qualified as accident-reconstruction experts may not
give opinions on the cause of an accident, but rather, may testify only about their
collection of data and observations at the accident scene. See Ratliff v. Brannum, 2nd
Dist. No. 2008-CA-05, 2008-Ohio-6732, ¶ 85, citing Scott at 221; see also State v. Hall,
2nd Dist. No. 19671, 2004-Ohio-663, ¶ 11, fn.1.
A. Deputy Tarr’s Testimony
{¶ 12} Prior to trial, Gray and the Shaw Group filed a motion in limine to
preclude Hamilton County Sheriff’s Deputies Mike Tarr and John Losekamp from
offering any conclusions about the cause of the accident, because the Roys had never
disclosed the deputies as expert witnesses on accident reconstruction. The trial court
granted their motion in limine. But during the Roys’ direct examination of Deputy Tarr,
the trial court permitted Tarr, over defense objections, to use and explain diagrams
prepared by Higinbotham, the Roys’ expert on accident reconstruction, during his
testimony to the jury. The trial court then let the Roys’ counsel elicit Tarr’s opinions and
interpretations of evidence that he had found at the scene.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶ 13} Deputy Tarr testified that he had not witnessed the collision, but that he
had arrived at the scene an hour after the collision had occurred. When he arrived, both
vehicles were in a parking lot, and there was no physical evidence on the roadway
indicating the point of impact between the pole and the Roys’ vehicle. Nonetheless, the
trial court permitted Tarr to use Higinbotham’s diagrams to opine that Gray had not
straddled the two lanes before turning. Tarr also testified that the “physical evidence”
provided the basis for his opinion that the pole had entered from the left-hand lane to
the right-hand lane into the Roys’ lane of travel.
{¶ 14} Having reviewed Deputy Tarr’s testimony, we disagree with the Roys’
assertion that Tarr’s testimony was confined to the evidence that he had collected and
recorded at the accident scene. Instead, Tarr drew inferences from the data he had
collected, opining that the accident evidence showed that Gray was responsible for the
accident. As a result, the jury heard an apparently impartial public servant render an
expert accident-reconstruction opinion that supported the Roys’ case. Consequently, we
conclude that the trial court abused its discretion in permitting Tarr’s expert testimony.
See Am. Select Ins. Co. v. Sunnycalb, 12th Dist No. CA2005-02-018, 2005-Ohio-6275, ¶
16 (holding that a trial court abused its discretion in permitting a trooper to testify as an
expert witness, when he had not been previously disclosed as an expert).
B. Statutory Interpretation of R.C. 5577.05
{¶ 15} Gray and the Shaw Group also argue that the trial court abused its
discretion when it allowed the Roys to present evidence during the trial that Gray and
the Shaw Group had violated R.C. 5577.05. Even though he had never been qualified as
an expert witness, Deputy Tarr was permitted to express his opinion that R.C. 5577.05
had required Gray to use a pole trailer. Then the Roys’ expert, Higinbotham, was
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OHIO FIRST DISTRICT COURT OF APPEALS
permitted to offer not only his own interpretation of the statute, but also that of an
officer with the Ohio Highway Patrol with whom he had spoken.
{¶ 16} This court has held that expert testimony “is not admissible to interpret
statutory terms which create the [standard of care].” See Dawson v. Williamsburg of
Cincinnati Mgt. Co. (Feb. 4, 2000), 1st Dist No. C-981022, 2000 WL 125891; accord
Hinkston v. Sunstar Acceptance Corp. (Dec. 29, 2000), 1st Dist. Nos. C-990681 and C-
990701, 2000 WL 1886388. Other Ohio courts have likewise excluded expert testimony
on the meaning of statutes. See, e.g., Payne v. A.O. Smith Corp. (S.D. Ohio 1985), 627
F.Supp. 226, 229; Nicholson v. Turner Cargile (1995) 107 Ohio App.3d 797, 809, 669
N.E.2d 529. Consequently, we conclude that the trial court abused its discretion in
permitting Deputy Tarr and Higinbotham to offer expert opinions concerning the legal
interpretation of the statute and concerning whether Gray and the Roys had violated
that statute.
{¶ 17} In response, the Roys argue that even if the trial court’s admission of this
testimony was erroneous, Gray and the Shaw Group suffered no prejudice because Gray
had admitted during his testimony that he had consciously disregarded the safety of the
Roys by turning a truck with a utility pole extending 15 to 16 feet behind it. But our
review of Gray’s testimony reveals that he made no such admission. Rather, he testified
that it was possible that the utility pole “could” swing into the right lane during a left
turn and “could” cause an accident, which is why he took a number of precautions before
hauling the pole. Gray’s testimony does not demonstrate that he had acted with malice,
but rather, that he had, at most, acted recklessly or negligently. See Estate of Schmidt v.
Derenia, 158 Ohio App.3d 738, 2004-Ohio-5431, 822 N.E.2d 401, ¶ 22-25; Meeker v.
Graves, 9th Dist No. 24057, 2008-Ohio-3109, ¶ 9-20; Behrman v. Kryder Bros., Inc.
(May 13, 1996), 3rd Dist. No. 7-95-12, 1996 WL 255874.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶ 18} Having concluded that the trial court’s admission of this testimony was
erroneous, we must now determine whether its admission was so prejudicial to Gray and
the Shaw Group that it required the granting of a new trial. Here, the jury heard
conflicting eyewitness accounts of the accident from Mr. Roy, Gray, and Simmons. The
only impartial eyewitness to the accident, Dr. Thibodeaux, gave conflicting testimony
about the placement of the vehicles at the time of the accident. Because there was no
physical evidence on the roadway to indicate the vehicles’ placement at the point of
impact, each party’s expert witness relied heavily on his own party’s testimony, as well as
selected portions of Dr. Thibodeaux’s testimony, to support his explanation of how the
accident had occurred. Given these facts, the jury could have believed either the Roys’
version of the facts or the version of the facts offered by Gray and the Shaw Group.
{¶ 19} Thus, Deputy Tarr’s inadmissible opinion testimony that Gray had
caused the accident could serve only to prejudice Gray and the Shaw Group. Police
officers’ statements carry with them a naturally high level of prestige and
authoritativeness. Consequently, the jury could have given greater credibility to Tarr’s
testimony solely because of his status. When the jury heard Tarr, an impartial and
neutral party, opine that Gray had caused the accident, it is highly likely that Tarr’s
testimony bolstered the Roys’ theory that Gray had caused the accident, particularly
after the Roys’ counsel in closing argument asked the jury to give heightened credence to
Tarr’s testimony.
{¶ 20} Because there was conflicting testimony about the cause of the collision,
and because the Roys’ counsel compounded the error by asking the jury to follow Deputy
Tarr’s inadmissible opinion, we cannot say that the jury had not been swayed to render a
verdict for the Roys on their negligence claim by improperly admitted opinion testimony
that Gray had failed to follow Ohio law by using a pole trailer and that he had caused the
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OHIO FIRST DISTRICT COURT OF APPEALS
accident. See, e.g., Kolidakis v. Glenn McClendon Trucking Co., 2004-Ohio-3638, ¶ 54.
As a result, we sustain that part of the second assignment of error challenging the
admission of Tarr and Higinbotham’s expert testimony on R.C. 5577.05 and Tarr’s
opinion testimony on the cause of the accident.
V. Conclusion
{¶ 21} Our determination that Gray and the Shaw Group are entitled to a new
trial renders moot their first and third assignments of error and the balance of their
second assignment of error, as well as the Roys’ two cross-assignments of error
challenging the reduction of their compensatory-damages award and the failure to
award them prejudgment interest. We, therefore, remand this case to the trial court for
further proceedings in accordance with this opinion and the law.
Judgment reversed
and cause remanded.
CUNNINGHAM, P.J., and SUNDERMANN and HENDON, JJ., concur.
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