interFIRE Home interFIRE Home interFIRE VR Support Training Calendar Training Center Resource Center Message Board Insurance Info

Breaking Legal Developments

12-22-2003

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Louisiana Court Interprets Daubert Not Applicable to an Expert's Qualifications


(1) LOUISIANA COURT INTERPRETS DAUBERT NOT APPLICABLE TO AN EXPERT'S QUALIFICATIONS

In Cheairs v. Louisiana, Dec. 3, 2003, the Louisiana Supreme Court interpreted the Supreme Court’s opinion of a Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) as not applying to an expert's qualifications.

Defendant, State of Louisiana, through the Department of Transportation and Development ("DOTD"), appealed a judgment of the First Circuit Court of Appeal, which affirmed a jury verdict allotting 55 percent fault to the DOTD for an accident that occurred when a vehicle being driven by plaintiff, Mark Cheairs, struck a stationary DOTD "Roadrunner" from the rear, causing him serious injuries. DOTD asserted that the jury's verdict was improperly based in part on opinion testimony from plaintiff's expert witness, Michael Gillen, that DOTD violated provisions of the Manual of Uniform Traffic Control Devices ("MUTCD"), an opinion that Gillen was purportedly not qualified to give because he was not a traffic engineer.

On the expert witness issue, the court found that the factors established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) did not directly address the issue presented here-i.e., whether an expert has the proper qualifications to testify, because the only issue directly addressed by Daubert was the reliability of an expert's methodology. The court found that the district court did not abuse its discretion when it found that Gillen was qualified to testify as an expert and admitted Gillen's expert testimony in part based on his application of the standards set forth in the MUTCD.

Sometime during the early morning hours of April 2, 1997, an unidentified vehicle dropped metal rods on the roadway of the Mississippi River Bridge in Baton Rouge, Louisiana. A passing motorist reported the presence of the rods to the Baton Rouge Police Department. Officers Frank Caruso and Tim Browning were dispatched to the bridge to investigate the report. When they saw the rods on the roadway, they called the DOTD to send someone to pick up the rods.

DOTD employee Adam Broussard, who was operating the department's "Roadrunner" vehicle on the day in question, proceeded to the bridge to pick up the rods. Testimony at trial established that the Roadrunner was a special maintenance vehicle used by DOTD employees to quickly pick up debris on the interstate. The Roadrunner was an orange pick-up truck with a lighted electronic arrow board measuring 60 inches by 30 inches mounted on top of the cab. The Roadrunner was also equipped with two revolving yellow lights mounted on top of the cab. The Roadrunner may also have had orange flags mounted at the back, but trial testimony on that issue was inconsistent.

Broussard arrived at the location of the rods in the eastbound lane of the bridge at approximately 8:15 a.m. or 8:30 a.m. When he saw thirty or so metal rods on the roadway, he stopped the Roadrunner in a travel lane, turned on the arrow board, got out of the truck and picked up the rods, without incident. While picking up the rods in the eastbound lane, Broussard noticed that some eight or nine additional rods were lying on the westbound side of the bridge. Accordingly, he drove the Roadrunner to an exit, then proceeded to return across the bridge in the westbound lane. Again, Broussard stopped the Roadrunner-this time in the far left travel lane-and got out of the vehicle. Because he had stopped the Roadrunner midway between the place where the dropped rods began and the place where they ended, Broussard testified that he walked past the back of the Roadrunner, while he was signaling the traffic to move over with his hand.

At about the same time, plaintiff was driving his vehicle up the ramp to the Mississippi River Bridge. Plaintiff testified that he was following a white sedan that obscured his vision, making it impossible for him to see the Roadrunner until the white sedan abruptly changed lanes in order to avoid the stationary Roadrunner. By the time he saw the Roadrunner, plaintiff stated, he did not have time to make a safe lane change, which would have involved checking his mirrors to see if another vehicle was coming in the lane to his right. He simply tried to go around the Roadrunner as safely as possible under the alarming circumstances confronting him. However, because he did not have sufficient time to move over, the left front driver's side of his vehicle struck the right back passenger side of the Roadrunner. Plaintiff was badly injured as a result of the accident.

Plaintiff filed suit against a number of defendants, including the DOTD and another Louisiana State agency, the Department of Public Safety and Corrections. Also named as defendants were the Baton Rouge Police Department and State Farm Mutual Automobile Insurance Co. Liability and damages were bifurcated for trial, and liability alone was tried to a jury. The jury returned a verdict allotting 55 percent fault for the accident to DOTD, 41 percent fault to plaintiff, and 4 percent fault to the phantom vehicle that had apparently spilled the steel rods on the roadway of the bridge. The district court issued a judgment conforming to the jury verdict. The district court denied DOTD's motion for new trial. DOTD appealed to the First Circuit Court of Appeal, which, in an unpublished opinion, affirmed the trial court judgment, then denied DOTD's application for rehearing. Cheairs v. State of Louisiana, 2002-0083 (La. App. 1 Cir. 12/20/02), 837 So. 2d 761. This court granted DOTD's application for supervisory writs to review the judgment below. Cheairs v. State of Louisiana, 2003-0680 (La. 05/09/03), 843 So. 2d 383.

DOTD asserts that the district court erred as a matter of law by misapplying the standard governing admissibility of expert testimony established by the United States Supreme Court in Daubert and adopted by this court in State v. Foret, 628 So. 2d 1116 (La. 1993), and that the appellate court improperly failed to find that the district court abused its discretion when it allowed plaintiff's expert to testify.

In this case, plaintiff offered the expert testimony of Michael S. Gillen, a retired 20-year veteran of the Baton Rouge City Police Department, who had been employed since 1993 by a private corporation, National Collision Technologies, as a traffic reconstructionist. DOTD filed a motion in limine requesting that the district court hold a pre-trial Daubert hearing on the issue of whether Gillen was qualified to testify concerning application of the standards set forth in the MUTCD, which is a publication of the U.S. Department of Transportation, Federal Highway Administration, that "provides standards for design and application of traffic control devices." MUTCD § 1A-4 (1998 ed.). DOTD challenged Gillen's qualifications to apply the standards set forth in the MUTCD on the basis of the following highlighted language from § 1A-4 of MUTCD: The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traffic control devices, the manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation. Qualified engineers are needed to exercise the engineering judgment inherent in the selection of traffic control devices, just as they are needed to locate and design the roads and streets with the devices complement.

Jurisdictions with responsibility for traffic control, that do not have qualified engineers on their staffs, should seek assistance from the State highway department, their county, a nearby large city, or a traffic consultant. (Emphasis supplied by DOTD.) On the basis of the above language, DOTD argues that only traffic engineers are qualified to testify concerning the application of the standards set forth in the MUTCD.

Plaintiff points, however, to other provisions of the MUTCD, which seem to indicate that persons other than traffic engineers are qualified to apply the provisions of the manual. For example, plaintiff cites language from the official website of the United States Department of Transportation, Federal Highway Administration, found under the heading, "Who Uses the MUTCD? And How?" The answer given is, in pertinent part, as follows:

Probably many more folks in more diverse professions than you might imagine. And they use the information for very different reasons! Here's how.

* * * * *

Organizations with completely different charters and constituents depend on the MUTCD. For example, law enforcement personnel rely on the MUTCD as they monitor driver behavior and investigate traffic incidents. The insurance and legal communities frequently refer to the MUTCD when investigating claims or proceedings with legal activities that arise from traffic-related incidents. http://mutcd.fhwa.dot.gov/kno-users.htm.

Admissibility of expert testimony in Louisiana is governed by La. Code of Evid. art. 702, which provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The above article follows Fed. Rule of Evid. 702, according to Official Comment (b) (1988) to La. Code of Evid. art. 702. A district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Official Comment (d), citing 3 J. Weinstein & M. Berger, Weinstein's Evidence P 702[02] (1981). See also Merlin v. Fuselier Const., Inc. 2000-1862, p. 12 (La. App. 5 Cir. 5/30/01), 789 So. 2d 710, 718 ["Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the discretion of the trial court."] A district court's decision to qualify an expert will not be overturned absent an abuse of discretion. Id.; State v. Castleberry, 1998-1388 (La. 4/13/99),758 So. 2d 749, 776.

In Daubert, the United States Supreme Court set a new standard to assist district courts in evaluating the admissibility of expert testimony. The new standard required the district courts to perform a "gatekeeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589. See also State v. Chauvin 2002-1188 (La. 5/20/03), 846 So. 3d 647, 700-01. In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999), the United States Supreme Court held that the analysis established by Daubert is to be applied to determine the admissibility of all expert testimony, not just scientific testimony. Merlin, 2000-1862 at p. 12, 789 So. 2d at 718. The Kumho Tire case dealt specifically with the issue of whether Daubert applies to engineering expert testimony. 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167. Daubert established the following non-exclusive factors to be considered by district courts to determine the admissibility of expert testimony:

  1. The "testability" of the scientific theory or technique;
  2. Whether the theory or technique has been subjected to peer review and publication;
  3. The known or potential rate of error; and
  4. Whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. 579 at 592 at 592-94, 125 L. Ed. 2d 469, 113 S. Ct. 2786. This court in Foret characterized the Daubert factors as "observations" which provide a "helpful guide for our lower courts in considering this difficult issue." 628 So. 2d at 1123.

As is evident from the nature of the factors listed above, the United States Supreme Court was concerned in Daubert with determining the admissibility of new techniques as a basis for expert scientific testimony. Foret, 628 So. 2d at 1121. The Daubert factors are designed to "assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue." Chauvin, 2002-1188 at 5, 846 So. 2d at 701. Daubert requires that the reliability of expert testimony is to be ensured by a requirement that there be "a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Foret, 628 So. 2d 1116 at 1122, quoting Daubert, 509 U.S. at 580. Significantly, the Daubert court was clearly not concerned with the issue raised by DOTD herein-whether the expert is qualified solely by education to give opinion testimony concerning a particular matter. Therefore, an important consideration in this case is the fact that DOTD does not question methodology regarding Gillen's testimony, methodology being the primary concern of the Daubert case.

Moreover, determination of the admissibility of expert testimony under La. C.E. art. 702 "turns upon whether it would assist the trier of fact to understand the evidence or to determine a fact in issue." Official Comment (c), citing 3 Weinstein & Berger, P 702[02]. Generally, the fact that a witness does not have a college degree does not disqualify him from testifying as an expert if the witness has sufficient experience. Manchack v. Willamette Industries, Inc., 24,599 (La. App. 2 Cir. 8/12/93), 621 So. 2d 649, 653. Experience alone is normally sufficient to qualify a witness as an expert. Id.

The above principles should not, however, be interpreted to mean that a court should not consider an expert's qualifications when deciding whether to admit a particular expert's testimony, only that the Daubert case does not directly address that issue. In fact, Daubert itself notes that Fed. Rule of Evid. 702, the counterpart of La. Code of Evid. art. 702, "is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." 509 U.S. at 592. Apparently in recognition of the fact that Daubert does not directly address that issue, the United States Eleventh Circuit Court of Appeal has developed a three-part inquiry to more fully assist district courts in determining all the relevant issues related to the admissibility of expert testimony, with the Daubert analysis serving as one of the three prongs. The three-prong inquiry was first set forth in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998), in which the court stated that the admission of expert testimony is proper only if all three of the following things are true:

  1. the expert is qualified to testify competently regarding the matters he intends to address;
  2. the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and
  3. the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Id. at 562. When the Eleventh Circuit adopted this three-part inquiry in Harcros Chemicals, it cited, inter alia, the United States Third Circuit Court of Appeals' decision in Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir.), cert. denied sub nom, Moyer Packing Co. v. Petruzzi's IGA Supermarkets, Inc., 510 U.S. 994, 126 L. Ed. 2d 455, 114 S. Ct. 554 (1993), in which the court set forth the same basic three-prong inquiry in a different way, as follows:

There are three intertwined bases for excluding testimony under [Federal] Rule 702:

  1. if the testimony will not assist the trier of fact;
  2. if scientific evidence is not sufficiently reliable; and
  3. if the particular expert does not have sufficient specialized knowledge to assist the jurors.

See Jack B. Weinstein & Margaret A. Berge, Weinstein's Evidence P 702(01] (1992). Id. at 1238. As is evident from the above statement, the three factors set forth in the Eleventh Circuit's three-prong inquiry are derived directly from Fed. Rule of Evid. 702, which is identical to La. Code of Evid. art. 702. Further, both the third circuit in Petruzzi's IGA Supermarkets and the eleventh circuit in Harcros Chemicals cite language from Daubert in support of the inquiries they have established.

Because we find that this three-part inquiry provides more comprehensive guidance to district courts determining the admissibility of expert testimony, the court adopted the eleventh circuit's inquiry here. The adoption of this three-prong inquiry should not be interpreted as a repudiation of the excellent principles for evaluating the methodology employed by expert witnesses set forth in Daubert and its progeny, including Foret. Those principles will continue to govern the second of the three prongs in the inquiry the court adopted. It adopted the three-part inquiry only because the court recognized that Daubert did not address all of the issues pertinent to the decision to admit expert testimony.

DOTD challenges Gillen's testimony in this case solely on the basis of the first prong of the inquiry listed above, i.e., whether he "is qualified to testify competently regarding the matters he intends to address." At the pre-trial Daubert hearing in this case, Gillen testified that he had worked in the development of traffic control plans, including lane closure issues and rerouting of traffic for incident management. Further, Gillen stated that he had been involved in the implementation of plans designed by others in compliance with the standards set forth in the MUTCD, which he referred to as a "reference manual." Gillen's curriculum vitae also listed the training he had received regarding application of the standards set forth in the MUTCD, as well as his work experience related to that document. Following the Daubert hearing, the district court qualified Gillen as an expert in the field of traffic reconstruction, and rejected DOTD's argument that Gillen was not qualified to apply the standards set forth in the MUTCD.

At trial, Gillen's testimony included his opinion concerning the actions the DOTD should have taken in order to comply with both the standards of Part VI of MUTCD, relative, among other things, to "Incident Management Operations," as well as the standards contained in the "Maintenance Traffic Control Handbook," published by DOTD. Gillen testified that both documents recommend the use of two vehicles for lane closures even for the short period of time it would take to pick up the metal rods in this case. Gillen opined that the applicable standards of both MUTCD and the DOTD handbook were designed to encourage redundancy and conspicuity in the use of warning devices. DOTD improperly failed to use redundant, conspicuous warning devices to manage the incident in question, Gillen said.

The court closely reviewed the district court's decision to qualify Gillen as an expert in traffic reconstruction and to allow him to testify concerning application of the standards set forth in the MUTCD in light of the evidence presented at the pre-trial "Daubert" hearing, and find no abuse of the district court's exercise of its broad discretion in its determination to allow expert testimony in this case and to allow Gillen to testify as an expert. In response to DOTD's reliance on § 1A-4 of the 1988 edition of the MUTCD, the court believed that the circumstances to which Gillen applied the standards set forth in the MUTCD in this case did not involve the type of "decision to use a particular device at a particular location," which that section requires be based on "an engineering study of the location." Similarly, despite the fact that MUTCD § 1A-4 specifically says that the standards provided therein are "not a substitute for engineering judgment," engineering judgment is not regularly employed in the type of situation that resulted in plaintiff's injuries herein. Obviously, engineers are not regularly involved in making the type of decision Broussard made concerning lane closure in response to a specific unpredictable incident. Those decisions are regularly made by police officers, like Gillen, and people like Broussard, who was assigned by DOTD to perform debris pickup duties on the date in question. In fact, DOTD allowed whatever employee was assigned to the Roadrunner to make decisions about lane closures and other traffic control devices necessary to incident control on a regular basis. Certainly, DOTD did not consider it necessary to undertake an engineering study of the location before allowing Broussard to close the lane in order to pick up the metal rods.

Further, regarding the other sentence from MUTCD § 1A-4 highlighted by DOTD, the court believed it was axiomatic that "qualified engineers are needed to exercise the engineering judgment inherent in the selection of traffic control devices, just as they are needed to locate and design the roads and streets which the devices complement." However, that fact does not mean that Gillen, who is not an engineer by education, is not qualified to express his opinion concerning the application of the standards set forth in the MUTCD to lane closures necessary for incident management. The MUTCD is a massive work with provisions covering numerous areas of traffic control; engineers are obviously required to implement its provisions regarding such matters as traffic control devices at particular locations for long-term construction projects, as well as the design of streets and roads and the selection of attendant traffic control devices. However, as demonstrated by DOTD's own procedures, neither the MUTCD nor the DOTD handbook can logically be interpreted to mean that traffic engineers must be employed to make decisions about management of every incident that affects traffic control.

Ultimately, DOTD's argument is counterintuitive. It would be illogical and impractical for the court to conclude that highway department employees must consult an engineer before making any decisions related to traffic control, even when such decisions are necessitated by an unpredictable incident of very short duration, such as the incident at issue herein. In fact, DOTD allowed Broussard to make the decisions challenged in this case and Broussard clearly is not an engineer. Policemen and highway department employees must be allowed to make some decisions on the scene. As indicated by the information from the Federal Highway Department website quoted by plaintiff, the MUTCD is expressly intended to provide guidance to people other than engineers. Further, MUTCD § 1A-4, relied upon by DOTD, specifically permits "jurisdictions with responsibility for traffic control, that do not have qualified engineers on their staffs" to "seek assistance from the State highway department, their county, a nearby large city, or a traffic consultant," which seems to allow persons other than traffic engineers to apply the standards set forth in the MUTCD. The same conclusion could be reached concerning the DOTD handbook, which contains flow charts to guide persons making decisions about incident management that would surely be insultingly simple to a traffic engineer. If engineers alone are to be allowed to make such decisions, the need for the MUTCD and the DOTD handbook would be greatly diminished. If people other than traffic engineers can use the documents, people other than traffic engineers are obviously qualified to testify concerning their use. If Roadrunner operator Broussard is qualified to make decisions about lane closures, expert accident reconstructionist Gillen is certainly qualified to testify concerning the propriety of those decisions.

It should also be noted that the jury heard evidence regarding Gillen's qualifications and was free to afford his testimony whatever weight it deemed appropriate. Prior to the receipt of the testimony, the district court properly found that Gillen was qualified to testify concerning the standards set forth by the MUTCD and properly admitted the expert testimony of Gillen, who is qualified by experience, skill, and training, to state his opinion concerning the propriety of DOTD's actions, based on the standards set forth in the MUTCD and the DOTD's own handbook.

The court affirmed the judgment of the court of appeal on the liability portion of the bifurcated trial finding DOTD 55 percent at fault for the plaintiff's accident. The case was remanded to the district court for trial of the second of the bifurcated phases, i.e., the damages suffered by plaintiff.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

Home | interFIRE VR Support | Training Calendar | Training Center | Resource Center | Message Board | Insurance Info
Sponsorship Opportunities
Web Site Designed for 800 x 600 by Stonehouse Media Incorporated® Copyright © 2014 All Rights Reserved.