Fry v. King

950 N.E.2d 229, 192 Ohio App. 3d 692
CourtOhio Court of Appeals
DecidedMarch 4, 2011
DocketNo. 2010 CA 12
StatusPublished
Cited by1 cases

This text of 950 N.E.2d 229 (Fry v. King) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fry v. King, 950 N.E.2d 229, 192 Ohio App. 3d 692 (Ohio Ct. App. 2011).

Opinions

Donovan, Judge.

{¶ 1} This matter is before the court on the notice of appeal of Lloyd B. Fry, filed April 2, 2010. On April 7, 2008, Fry filed a complaint against Jack L. King, following a July 4, 2006 collision between Fry’s motorcycle and King’s vehicle at the intersection of Route 66 and Ziegler Road in Piqua. Fry alleged that King pulled his vehicle into the southbound lane of State Route 66 from Ziegler Road as Fry approached the intersection, requiring Fry to “lay his motorcycle down on the roadway in order to avoid a collision, thereby causing Fry multiple injuries.” Fry later amended his complaint to include Progressive Preferred Insurance Company, King’s insurer, and Progressive filed a counterclaim against Fry and a cross-claim against King. Fry filed a second amended complaint against the United States, demanding that the United States “set forth its claim in subrogation or for reimbursement for payments made pursuant to the Medicare program for Plaintiffs medical bills” resulting from the collision. King filed a third-party complaint against Joseph Adams and Julie Adams, alleging that they had parked their white SUV along State Route 66 “at a point so close to Ziegler Road as to create an obstruction for motorists using either State Route 66 or Ziegler Road.” Julie Adams is Fry’s daughter. King later dismissed his claims against Joseph Adams and Julie Adams. A trial to a jury resulted in a verdict in favor of King, and in response to an interrogatory, the jury determined that King was not negligent.

{¶ 2} Fry testified at trial that King pulled into the intersection in front of him. He identified the skid mark left by his motorcycle in a photograph of the scene of the accident, and he estimated that it was 17 to 18 feet in length. Fry further testified that he later measured, using a “wheel,” the distance between the beginning of the skid mark and the center line of Ziegler Road, and that the distance was 79 feet. In other words, according to Fry, he was about 79 feet [694]*694away from King’s vehicle when he began to skid. Fry stated that he was traveling between 40 and 45 miles per hour at the time.

{¶ 3} Marvin Adams, Joseph Adams, who is Marvin’s brother, Julie Adams, and Jeremy Adams, Marvin’s son, all of whom witnessed the accident, also testified for Fry. Marvin Adams lives at the corner of State Route 66 and Ziegler Road and was hosting a cookout for his family at the time of the accident. Each of Fry’s witnesses testified that they observed King’s vehicle reverse direction in the course of the accident. They also identified on a scaled drawing of the scene the placement of both vehicles as the accident progressed. Michael and Vicky Tufts, who were present to watch fireworks at a nearby location, and who also witnessed the accident, testified that King did not reverse his vehicle in the manner suggested by Fry’s witnesses.

{¶ 4} Fry asserts one assignment of error herein as follows:

{¶ 5} “The trial court committed prejudicial error in permitting the defendantappellee’s expert accident reconstructionist, Henry Lipian, to state his opinions when those opinions were based upon measurements of the scene of the incident that were neither ‘perceived by the expert or admitted in evidence at the hearing’ as required by Evid. Rule 703.”

{¶ 6} “ ‘In all proceedings involving matters of a scientific, mechanical, professional or other like nature, requiring special study, experience or observation not within the common knowledge of laymen, expert opinion testimony is admissible to aid the court or the jury in arriving at a correct determination of the litigated issue.’ ” Huffman v. Stone (1971), 26 Ohio St.2d 159,160, 55 O.O.2d 308, 270 N.E.2d 347, quoting McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77, 40 O.O.2d 87, 228 N.E.2d 304, paragraph one of the syllabus.

{¶ 7} Foundational requirements for admission of an expert’s opinion testimony are set forth in Evid.R. 703 and 705. Evid.R. 703 provides, “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing.” Evid.R. 705 provides, “The expert may testify in terms of opinion or inference and give the expert’s reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise.”

{¶ 8} “Where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied.” State v. Solomon (1991), 59 Ohio St.3d 124, 570 N.E.2d 1118, syllabus. In Solomon, the trial court excluded expert testimony because the experts’ opinions were based, in part, on medical and police reports not in evidence. The Supreme Court of Ohio held that the expert testimony should have been admitted because the experts had personally examined the defendant and “thus, had based [695]*695their opinions on facts or data perceived by them.” Id. at 126. See also State v. Hoover-Moore, Franklin App. No. 03AP-1186, 2004-Ohio-5541, 2004 WL 2341691, ¶ 35 (“the Ohio Supreme Court adopted a more relaxed interpretation of Evid.R. 703 in [Solomon ]”).

{¶ 9} By way of background, Lipian testified that he is board certified in the field of accident reconstruction by the Accreditation Commission of Traffic Accident Reconstruction. According to Lipian, “Accident reconstruction is part science and it’s part art. It’s a process of looking at the available information and data that comes from, say police agencies, depositions, photographs, * * * analyzing the physical evidence, doing necessary follow-up work on our own to fill in gaps for information that isn’t available, and then ultimately once you have enough data and information you determine how the crash occurred. * * * And part of it is basic understanding of physics and mathematics. A lot of it is analyzing the physical evidence, understanding what you’re looking at and what it means.”

{¶ 10} As Lipian began to testify regarding a drawing prepared by him and his staff that purported to depict the accident scene to scale, counsel for Fry approached the bench, and the following exchange occurred:

{¶ 11} “MR. THIEMAN: Mr. Lipian — I don’t think he can compare that. He didn’t scale it out. He didn’t perform these things and he doesn’t have personal knowledge. * * *
{¶ 12} “ * * *
{¶ 13} “MR. RODERER: Well, I think he has personally been there. I think his staff has gone which he relies on to maintain things. I think they’ve been created within the ordinary course of business and he’s got everything he needs to be able to testify about the area and the scale and all the matters incidental thereto.
{¶ 14} “MR. THIEMAN: His report says he didn’t — and he wasn’t there. He said his staff went out there.
{¶ 15} “MR. RODERER: He’s been there since his trip down here. You know, it’s just like any other expert. Any other expert can rely on data and staff members, such as nurse’s notes and things like that in a hospital.
{¶ 16} “MR. THIEMAN: Not in State court. Federal Court they can.”

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Bluebook (online)
950 N.E.2d 229, 192 Ohio App. 3d 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fry-v-king-ohioctapp-2011.