Bornn v. Madagan

414 N.W.2d 646, 1987 Iowa App. LEXIS 1714
CourtCourt of Appeals of Iowa
DecidedAugust 26, 1987
Docket85-1641
StatusPublished
Cited by11 cases

This text of 414 N.W.2d 646 (Bornn v. Madagan) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bornn v. Madagan, 414 N.W.2d 646, 1987 Iowa App. LEXIS 1714 (iowactapp 1987).

Opinions

SNELL, Judge.

On July 21, 1980, David M. Bomn was killed when the motorcycle which he was driving collided with a grain wagon on Highway 86 in Dickinson County, Iowa. At the time of the collision the wagon was being pulled by a tractor operated by defendant, John E. Madagan. Moments before the collision, Madagan had entered the highway from a farm driveway and was proceeding south. Bomn was also headed south when the accident occurred.

Brenda F. Bomn, administrator of David’s estate, initiated the present action on May 19, 1982. Her three-count petition alleged wrongful death as well as loss of parental and spousal consortium, support, and services. Trial to a jury commenced on October 8, 1985, and a verdict in favor of Madagan was returned three days later. This appeal followed. Our review is limited to the correction of errors at law. Iowa R.App.P. 4.

I.

Bomn maintains that several of the district court’s mlings constituted prejudicial error. These challenged mlings all pertain to the propriety of certain expert testimony. The admissibility of such testimony is a matter committed to the sound discretion of the district court. Poyzer v. McGraw, 360 N.W.2d 748, 752 (Iowa 1985). We will not interfere with the district court’s ruling unless a manifest abuse of discretion has resulted in prejudice to the complaining party. Miller v. Bonar, 337 N.W.2d 523, 528 (Iowa 1983). We employ a liberal rale which allows expert opinion testimony if it will aid the jury and is based on special training, experience, or knowledge with respect to the issue in question. Id. 528.

Although Bornn’s appellate brief states but one issue containing four allegations of district court error, we do not consider such issues en masse. We reaffirm our position that the admissibility of expert testimony must be determined independently as to each witness. Dougherty v. Boyken, 261 Iowa 602, 615, 155 N.W.2d 488, 495 (1968). Accordingly, we separately consider the following four allegations of district court error submitted by Bomn: (1) allowing Madagan’s expert witness to testify as to the cause of the collision; (2) allowing Madagan’s expert witness to testify that the decedent could have avoided the collision; (3) precluding two investigative police officers called by Bornn from testifying as to the cause of the collision; and (4) precluding an investigative officer called by Bomn from testifying as to whether the decedent could have avoided the collision.

II.

Armin Pavlovic, called as a witness by Madagan, is a mechanical engineer who possesses extensive experience in accident reconstruction. His area of expertise allows him to apply principles of physics and mathematics to evidence gathered following an automobile accident in order to theoretically reconstruct the accident. Following preliminary questioning, Madagan’s counsel asked Pavlovic whether he had reached “an opinion or conclusion as to what happened at the accident; that is, how the accident took place?” Receiving an affirmative response, counsel asked Pavlovic to “describe generally to the jury what your understanding is as to how the accident took place.” Following a voir dire examination by Bornn’s counsel, Pavlovic [648]*648did so. Bornn claims the allowance of this testimony was error.

There are several threshold difficulties to Bomn’s first claim of error. First, at no time during that part of Pavlovic’s extensive and detailed reconstruction testimony pertinent to this claim of error did Bornn enter an objection. Although immediately following his voir dire examination of Pav-lovic, Bomn’s counsel attempted to enter what was essentially a standing objection seeking to preclude Pavlovic from testifying “to ultimate conclusions which would invade the province of the jury as to fault,” the district court expressly disallowed such an objection and instructed counsel to make a specific objection “if and when the objectionable questions are asked.” This is consistent with the position taken by our appellate courts disfavoring the use of standing objections. E.g., Prestype, Inc. v. Carr, 248 N.W.2d 111, 117 (Iowa 1976). No specific objections to the substance of Pavlovic’s testimony, however, appear following the above-quoted instruction of the court. Accordingly, we have serious reservations as to whether this issue has been preserved for our review. E.g., Van Iperen v. Van Bramer, 392 N.W.2d 480, 486 (Iowa 1986).

A different, yet related, threshold issue concerns Bomn’s attempted standing objection that Pavlovic “not be allowed to testify to ultimate conclusions that would invade the province of the jury as to fault.” Even had the district court allowed the standing objection, and even were we persuaded that such an objection was sufficient in general to preserve error, the particular objection made by Bornn’s counsel would present a different question of error preservation. Our law refuses to sanction the objection that a qualified expert’s testimony “invades the province of the jury.” See, e.g., Schlichte v. Franklin Troy Trucks, 265 N.W.2d 725, 730 (Iowa 1978); Winter v. Honeggers’ & Co., Inc., 215 N.W.2d 316, 321 (Iowa 1974). Our courts have held such objections to be “of no force or effect.” Adams v. Deur, 173 N.W.2d 100,110 (Iowa 1969); see Grismore v. Consolidated Prods. Co., 232 Iowa 328, 344, 5 N.W.2d 646, 655 (1942). Although the objection would perhaps be sufficient had Pavlovic’s testimony been, in fact, directed at the relative fault of the parties, we disagree with such a characterization of Pavlovic’s testimony.

Bornn characterizes Pavlovic’s testimony as “testimony as to the cause of the collision.” Our reading of the trial transcript’s pertinent pages persuades us that Pavlovic’s testimony did not state the “cause” of the accident, in the sense of direct testimony allocating fault, but was rather a chronological description of the series of events the occurrence of which the evidence supported. Compiling and testifying to such conclusions is the nature of Pavlovic’s profession. He did not testify to either party’s fault or negligence. We think his testimony “assist[ed] the trier of fact to understand the evidence [and] to determine a fact in issue,” Iowa R. Evid. 702, and that Pavlovic was qualified to give such testimony. The district court did not abuse its discretion in allowing the testimony-

ill.

Bornn urges us to find error in the district court’s decision to allow Pavlovic to testify that the decedent could have avoided the collision. After Pavlovic’s testimonial reconstruction of the accident, the following colloquy occurred between Mada-gan’s counsel, Pavlovic, and Bornn’s counsel:

Q. Do you have an opinion, Mr. Pav-lovic, as to what the operator of the cycle could have done to avoid that impact? Do you have an opinion? A. Yes.
Q.

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Bornn v. Madagan
414 N.W.2d 646 (Court of Appeals of Iowa, 1987)

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414 N.W.2d 646, 1987 Iowa App. LEXIS 1714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bornn-v-madagan-iowactapp-1987.