Opinion
NO. 2011-CA-000883-MR
08-31-2012
ERNEST MEADOR APPELLANT v. CHRISTINA SANDAGE APPELLEE
BRIEFS FOR APPELLANT: Travis Brian Lock Bowling Green, Kentucky BRIEF FOR APPELLEE: Al Miller Karen E. Miller Central City, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 10-CI-00234
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES. ACREE, CHIEF JUDGE: The issue now before us is whether the circuit court properly admitted the testimony of the defendant's expert witness absent a Daubert hearing. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Because we believe any error was rendered harmless by the substantially similar testimony of the plaintiff's expert witness, we affirm.
I. Facts and procedure
On the evening of October 28, 2009, an automobile driven by Christina Sandage rear-ended a trailer being hauled by a pickup truck Ben Anderson was driving. Ernest Meador was a passenger in Anderson's truck. Trial testimony revealed the two vehicles were traveling in the same direction along an unlit portion of the Natcher Parkway. When the collision occurred, Sandage was traveling at seventy-three or seventy-four miles per hour, and approaching Anderson who was traveling between forty-five and fifty-five miles per hour. Anderson and Meador filed suit, alleging Sandage had been negligent.
The primary source of contention at trial was the lighting conditions at the time of the wreck. Sandage testified that it was completely dark and that she did not see the taillights of either the trailer or the truck prior to the crash. Anderson and Meador said that although dusk was approaching, the evening had not grown completely dark. Meador testified that he had connected the taillights of the trailer to a battery jumper box and that they were working the evening of the accident.
The parties each presented an expert who testified about the cause of the accident and whether the taillights of Anderson's trailer were illuminated at the time of the collision. Both gave testimony regarding a "hot shock" test, which can help determine whether a light bulb was illuminated at the time of impact. The only issue Meador has presented on appeal is whether the circuit court erroneously admitted the testimony of Sandage's expert witness regarding the hot shock test and the conclusions the expert reached on the basis of that test.
Although Meador has asserted multiple bases for his position, he alleges as error only that the circuit court failed to conduct a Daubert hearing and to enter findings on the record that the testimony of Sandage's expert, Ken Agent, was reliable and relevant, as required by Daubert.
While the plaintiff was conducting direct examination of his own witness, Brent Brown, this exchange occurred:
Meador's attorney: Did you come to any conclusion about whether the taillights on Mr. Anderson's truck were visible at the time of this collision?Meador's attorney did not object to this testimony or request an admonition on the basis that the answer was non-responsive, though he makes that argument on appeal. Hot shock was not mentioned again during direct examination.
Brown: No, I didn't.
Meador's attorney: What- what did you conclude?
Brown: I concluded that the- the trailer lights did not have hot ... shock, which is associated with them being on. It wasn't present in the light bulbs ... it was present in one of the truck bulbs.
Meador's attorney: So, did you rule out that the taillights on the truck were visible, or did you say they were out?
Brown: I didn't rule one way or the other.
On cross-examination, Sandage's attorney sought further explanation of the hot shock test. Brown agreed with the following description of hot shock: when a light bulb is illuminated, the filament inside becomes hot; if impact occurs near the lit bulb, the hot filament will stretch. He further stated his examination of the trailer's taillights did not indicate hot shock, meaning he found no evidence that the trailer's taillights were illuminated at the time of the wreck. There was no objection to this line of inquiry from counsel for the plaintiffs.
Sandage called expert witness Ken Agent to testify about the hot shock test in addition to his other findings concerning reconstruction of the accident. Meador's attorney objected to admission of the testimony and requested a hearing pursuant to Daubert to assess its reliability. The circuit judge declined to conduct a hearing, stating he was familiar with the test and had seen it used in other cases. The circuit judge further said there was no question regarding the physics behind the test and concluded the court was not required to conduct a Daubert hearing on the matter. The circuit court noted that Meador's own expert had already discussed the test.
Agent's testimony on direct examination was largely identical to that of the plaintiffs' expert witness. He, too, stated that a stretched filament indicates a light bulb was illuminated at the time of impact. Like Brown, Agent found no evidence of hot shock in the trailer taillights, but did find hot shock in the truck's right taillight.
Agent also opined that the wreck was caused by darkness and the low speed of Anderson's vehicle; in the absence of lit taillights, Sandage was unable to see the Anderson vehicle until it was too late to avoid a collision. On cross-examination, Meador's attorney rigorously interrogated Agent about the validity of his findings and the methods he used to reach them.
The jury returned a verdict in favor of Sandage, and Meador appealed. The only issue on appeal is whether the circuit court's denial of Meador's motion to conduct a Daubert hearing was reversible error.
Anderson did not appeal the verdict.
II. Discussion
When a party seeks to present evidence of a scientific, technical, or specialized nature, she must demonstrate: "(1) [t]he testimony is based upon sufficient facts or data; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case." Kentucky Rules of Evidence (KRE) 702. In other words, "scientific testimony or evidence admitted [must be] not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795; Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995) (overruled on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999)).
To fulfill its function as a "gatekeeper" of proper opinion evidence, the circuit court must engage in a two-fold inquiry: (1) whether the proposed evidence consists of specialized, technical, or scientific knowledge (2) that "will assist the trier of fact to understand or determine a fact in issue." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000). To satisfy the first condition, the trial court must determine "whether the reasoning or methodology underlying the testimony is scientifically valid[,]" and the second condition requires a determination "of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 600, 113 S.Ct. at 2800 (citation omitted).
To complete a proper Daubert inquiry, the trial court must typically conduct a preliminary hearing on the proposed evidence and enter findings of fact and conclusions of law accordingly. See Commonwealth v. Christie, 98 S.W.3d 485, 488 (Ky.2002). A preliminary hearing is not necessary "when the record [before the trial court] is complete enough to measure the proffered testimony against the proper standards of reliability and relevance." Id. (quoting Jahn v. Equine Services, P.S.C., 233 F.3d 382, 393 (6th Cir. 2000)).
Evidentiary rulings are reviewed for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007).
Here, the circuit court should have conducted a Daubert inquiry. The "hot shock" test is precisely the kind of scientific, technical, or specialized knowledge which required explanation from an expert.
We find the presentation of Agent's testimony was harmless, however, because it was substantially the same as the testimony Meador presented through his own expert witness, Brown. Murrell v. Spillman, 442 S.W.2d 590, 592 (Ky. 1969). "The test for harmless error is whether there is any reasonable possibility that, absent the error, the verdict would have been different." Taylor v. Commonwealth, 995 S.W.2d 355, 361 (Ky. 1999) (citation omitted).
Both experts stated there was no hot shock present in either of the trailer's taillights, leading them both to the conclusion that the taillights were not on at the time of the collision. Given the near identity of their testimony regarding the hot shock test, we cannot say the verdict would have been different had Agent's testimony been excluded.
Meador argues that permitting Brown to testify regarding "hot shock" did not justify the circuit court's admission of the testimony of Agent absent a Daubert hearing. We agree. See Burton v. Commonwealth, 300 S.W.3d 126 (Ky. 2009) (concluding the circuit court's determination that "because the defense had an expert, the Commonwealth could have one[,] too[,]" was insufficient to justify admission of the testimony of the Commonwealth's expert witness). Simply because the plaintiff is permitted to submit expert testimony does not permit the defendant to do so where the trial court is obligated to inquire into the admissibility of the evidence. However, that is not the basis of our decision. We simply find that admission of Brown's testimony - which is not asserted as error on appeal - rendered the erroneous admission of Agent's duplicate hot-shock testimony harmless.
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III. Conclusion
Although the circuit court should have conducted a Daubert hearing and entered the requisite findings prior to admission of the testimony of the defendant's expert testimony, the error was harmless. The judgment in favor of Sandage is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Travis Brian Lock
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Al Miller
Karen E. Miller
Central City, Kentucky