RENDERED: NOVEMBER 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-1320-MR
HAWA MOHAMED; IBRAHIM MUYA; AND F.I., A MINOR APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 17-CI-005185
LISA BERGER; AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.
EASTON, JUDGE: The Appellants, Hawa Mohamed (“Mohamed”), Ibrahim
Muya (“Muya”), and Hawa Mohamed, as next of kin for F.I., a minor (“F.I.”)
(collectively “Appellants”), appeal from the Jefferson Circuit Court’s Order of
Judgment dismissing the Appellants’ claims with prejudice after a jury returned a verdict in favor of the Appellee, Lisa Berger (“Berger”). The Appellants allege the
circuit court made evidentiary errors during the trial. Having reviewed the record
and the applicable law, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On October 27, 2016, Berger’s car rear-ended the car Mohamed was
driving. Passengers in Mohamed’s car included Muya, F.I., and another minor
child. Mohamed’s car was stopped in traffic at a red light when the impact
occurred. Mohamed was driving a rental car owned by Enterprise Rent-A-Car
(“Enterprise”), while Berger was driving her own car. After the collision, the
rental car was returned to Enterprise.
Appellants filed suit on October 2, 2017 in the Jefferson Circuit
Court. The Complaint alleged Berger’s negligent operation of her car caused the
collision. The Complaint stated all three Appellants suffered injuries because of
the accident. The Complaint also initially named State Farm Insurance (“State
Farm”) as a defendant. The allegations against State Farm were bifurcated, and
given the result of the trial, that claim has not proceeded further. State Farm is not
a participant in this appeal.
The Appellants indicated English is not their primary language.
Interpreters were utilized throughout the case. Language presented challenges,
especially when witnesses were impeached with prior testimony.
-2- Depositions of all three Appellants were taken. The first law
enforcement officer on the scene, Eric Brandes (“Officer Brandes”) was also
deposed. A representative of Enterprise, Christopher Buck, was deposed as well.
On September 18, 2019, the Appellants filed a Motion for Partial
Summary Judgment. Because Berger conceded liability for the accident in her
Answer, Appellants asked the court to grant them summary judgment on liability.
Berger’s response admitted liability, but she disputed the accident caused any
injuries that required medical care. The circuit court granted summary judgment to
the Appellants on liability, but the court found an issue of material fact regarding
causation of any claimed injuries.
Berger filed her expert witness disclosure in late 2019. She disclosed
C. Brian Tanner (“Tanner”), an engineer, as her expert. Appellants filed a motion
to exclude his testimony four days later. On October 6, 2020, the circuit court held
a Daubert1 hearing to determine if it would allow Tanner to testify. The circuit
court found he qualified as an expert in engineering and could testify about
biomechanics. The circuit court ruled, however, that Tanner could not testify
regarding any medical causation. It limited his causation testimony to generally
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). -3- giving examples of daily activities that would be consistent or inconsistent with the
force experienced by the Appellants in the accident.
The circuit court set an initial trial date of January 7, 2020. The
circuit court issued a pretrial order that outlined discovery deadlines and ordered
mediation. Multiple continuances of the trial occurred. Finally, a jury trial began
on September 13, 2022.
Prior to testimony beginning, Appellants renewed their motion to
exclude Tanner’s testimony. They claimed his math did not “add up” and that he
essentially “made up” the speed he used in his calculations. The circuit court
responded that Appellants were in possession of his calculations for quite some
time. The court stated the Appellants could have asked Tanner about all these
questions in a deposition, yet they chose not to do so. The court declined to
exclude Tanner’s testimony; however, the circuit court stated it may consider
questioning him outside the presence of the jury if it became necessary to do so.
Before jury selection, Berger’s counsel asked the court to make clear
to the Appellants that they may not mention “insurance” in their testimony in front
of the jury. There had been a prior ruling that the word “insurance” may not be
used, and the court reiterated this ruling at this time. The court stated to all the
parties that there shall be no mention of insurance coverage, insurance companies,
insurance agents, or insurance policies, and that if someone were to mention any of
-4- these, it would bring the trial “to a very fast halt.”2 At this point, the only objection
Appellants’ counsel raised to this ruling was that he likes to ask potential jurors
during voir dire if anyone worked for an insurance company. The court replied
that voir dire is a separate issue, and he would be allowed to ask this question.
Once the jury was selected, Appellants began their case in chief.
They called two chiropractors who treated the Appellants (Dr. Watley and Dr.
Krawchison), a family physician who treated F.I. (Dr. Lach), and a medical expert
(Dr. Barrett). All three Appellants also testified.
Both treating chiropractors and the family physician testified
similarly. They all testified that the parties complained of headaches, back pain,
neck pain, and shoulder pain. Dr. Lach and Dr. Krawchison testified that F.I.
suffered from muscle spasms after the accident. Additionally, Muya suffered from
pain in his right ankle and right wrist. Likewise, Mohamed had pain in her arms
and legs. All treatment providers testified the Appellants suffered from acute
injuries due to the motor vehicle accident that occurred on October 27, 2016.
None of the treatment providers believed Appellants were
exaggerating or falsifying their injuries. The treatment providers testified that all
three Appellants sought treatment for approximately three months and reached
maximum medical improvement. All treatment providers testified as to their bills,
2 Trial, 9/13/2021, 10:59:31. -5- and stated they believed all the treatment Appellants received was reasonable and
necessary, and that their bills were reasonable.
Much like their direct testimony, the treatment providers testified
similarly during their cross-examinations. They all stated that previous medical
history is important in treating patients. They testified they did not know of any
prior injuries the Appellants had. All were apparently unaware of a previous motor
vehicle accident Muya had been involved in approximately seven months prior to
the accident in question.
Appellants’ expert witness, Dr. Mark Barrett, confirmed the treatment
providers. He believed, based on his review of the parties’ medical records, that
the treating physician and chiropractors’ diagnoses of the Appellants were
accurate. Dr. Barrett noted they all had similar injuries, which he claimed was not
unusual. He saw nothing unexpected in their records, and he saw no reason to
question the diagnoses or their injuries as genuine. He stated there are ways to
determine if someone is faking or exaggerating an injury, and he saw no indication
of that in any of the records.
During his cross-examination, Dr. Barrett stated he did not treat or
speak with the Appellants himself. He admitted his opinions are based upon the
accuracy of the statements in the records, and if there were any inaccuracies, they
would impact his opinion. Dr. Barrett acknowledged it is important to have a
-6- correct history of the patient to give opinions and provide effective treatment. He
stated Muya’s prior motor vehicle accident was not referenced in any of the
chiropractic records he reviewed. He additionally said he was not provided with
any information regarding the damage to the vehicles, but he said this was
irrelevant. Dr. Barrett opined it is possible for the occupants of a vehicle to be
injured even if the damage to the vehicle was minimal.
F.I. was the first of the Appellants to testify. She was ten years old
when the accident occurred and sixteen at the time of the trial. She said she had no
previous injuries prior to the accident, and she was able to do normal daily
activities. After the accident, her activity was very limited because of pain. She
missed several days of school. The pain in her neck made it difficult to sleep.
On cross-examination, Berger’s counsel asked F.I. if she was wearing
her seat belt at the time of the accident. He also asked if her younger brother (age
two at the time of the accident) was in a car seat. She replied affirmatively to both
questions. Berger’s counsel then pointed to her deposition testimony (taken
approximately two years after the accident and four years prior to trial), in which
she stated she was not wearing a seat belt and that her brother was sitting in her lap
at the time the accident occurred. She replied she did not remember giving that
testimony.
-7- F.I. testified her mother was driving. During cross-examination, she
was asked if her parents had switched seats at any point. F.I. replied that they had
because her father wasn’t feeling well. Again, Berger referred to F.I.’s deposition
testimony where she stated her father has headaches often and asked if a headache
was the reason her mother took over driving. F.I. responded that she did not recall.
Berger additionally asked about her parents having pain prior to the
accident. F.I. said she was unaware of her parents having any issues prior to this
accident. Again, her deposition was referenced, in which she testified her father
had an injured leg prior to this accident. She further stated in her deposition that
she and her younger siblings would massage her mother’s arms and legs because of
pain before this accident. Again, F.I. stated she did not recall saying any of this.
Mohamed then testified. She stated she had no pain prior to the
accident, but afterwards, she had trouble sleeping due to the pain she experienced.
She first sought treatment the day after the accident.
During cross-examination, Berger brought up several inconsistencies
between Mohamed’s trial and deposition testimony. For example, in her
deposition, Mohamed stated she was driving because Muya had a headache. At
trial she was driving because she wanted to drive the rental car. At trial Mohamed
said she did not have a smartphone so she could not take pictures of the vehicles; at
her deposition, she said she did have a smartphone that had the ability to take
-8- photographs. Her trial testimony was that she sought treatment the day after the
accident; her deposition testimony was that she did not seek treatment for about a
week after the accident.
Mohamed’s chiropractor records stated she hit her left shoulder on the
door upon impact; she testified at trial that this did not occur. Upon being asked
about these inconsistencies, Mohamed states she did not understand many of the
questions being asked during the deposition and there was a miscommunication or
mistranslation. It was unclear if the translator present during the depositions was
certified or what agency employed the translator. Neither Appellants’ current
counsel nor Berger’s trial counsel were present at the depositions to give any
insight to the court regarding the translator.
Ibrahim Muya was the final witness to testify for Appellants. He
testified he had no issues prior to this accident. He acknowledged he had been in a
previous accident with similar injuries, but he stated those injuries had healed
completely before this accident. He stated he badly injured his neck, back,
shoulder, leg, and ankle. His first chiropractor visit was an after-hours emergency
visit, which occurred the evening of the accident. He stated the pain was so severe
he needed painkillers just to sleep.
During Muya’s cross-examination, Berger’s counsel again points to
significant disparities between Muya’s deposition testimony and his trial
-9- testimony. Muya stated the rental car they were in sustained heavy damage, while
his deposition testimony describes the damage as only a small dent in the bumper.
In his deposition, Muya denied going to the chiropractor the day of the accident.
Muya was hostile to Berger’s counsel during cross-examination. He
appeared to take issue with Berger’s counsel using the transcript of his deposition
testimony, to which he stated: “I am not the one who publishes this information, I
don’t use the computer; you are the one who publishing this information.”3 “You
are one of them.”4 “You should stop this line of questioning.”5 “You are the one
who wrote this.”6 “Do not try to force me to say something I did not say.”7
At this point, a bench conference occurred in which Berger’s counsel
requested to bring in deposition testimony from a separate lawsuit involving a
subsequent motor vehicle accident Muya was in. In this deposition, Muya
specifically states the chiropractor is lying when he said Muya was seen the day of
the accident which is the subject of the trial in this case. Appellants’ counsel
objected, as he claimed he had not seen this deposition transcript. The circuit court
3 Trial, 9/15/2022 at 4:03:09. 4 Id. at 4:03:24. 5 Id. at 4:04:41. 6 Id. at 4:05:18. 7 Id. at 4:06:57. -10- allowed some of the testimony to be brought in; however, it admonished counsel
that the court did not want to bring in any information about the subsequent
accident or lawsuit.
During this line of questioning, Muya also denies making the
statements in this deposition. He claims there was no interpreter during this
deposition. At a bench conference, the court determined based on the deposition
transcript that there was in fact an interpreter present, although the interpreter was
for Maay Maay, not Somali. Maay Maay is Mohamed’s native language, while
Somali is Muya’s native language. Upon further questioning regarding his
deposition testimony, Muya again denies making the statements quoted in the
deposition transcript. Muya states that English is not his first language. He again
accuses Berger’s attorney of creating the deposition transcript. He stated Berger’s
counsel is trying to take advantage of him. He claims the testimony being read
from the transcript did not occur. “I am getting angry right now, so please leave
me alone.”8 At this point, the circuit court concluded for the day.
Upon reconvening the next morning, Muya’s cross-examination
continued. Berger’s counsel commented that Muya acknowledged in his direct
testimony the day before that he had been in a prior motor vehicle accident. But in
his deposition Muya denied ever having been in an accident before. Muya testified
8 Id. at 4:48:59. -11- he probably did not understand the question. Berger’s counsel points to further
deposition testimony in which Muya denies ever having any prior injuries or
problems with the body parts he injured in the previous accident. Muya then stated
it was because his prior injuries had healed completely before this accident took
place. In response to Berger’s final cross-examination question, Muya stated he
did not miss any work following this accident.
The first witness Berger called was Officer Brandes, a retired LMPD9
officer who responded to the accident scene. He testified he had no issues
communicating with the parties in English, which gives us some pause about the
translation difficulties claimed. Officer Brandes said he asked if anyone was
injured or needed medical attention, and they all said no. Officer Brandes saw
only minor damage to both vehicles. He elaborated that the car Appellants were
driving had mostly transfer marks or paint damage and no structural damage. The
damage to the front of Berger’s car was a little more pronounced.
Officer Brandes estimated Berger’s speed upon impact to be between
fifteen and twenty miles per hour. He stated this speed was his best “guess,” as no
speed had been clocked with radar or observed. He stated this was consistent with
rolling into someone’s bumper.
9 Louisville Metro Police Department. -12- Lisa Berger testified next. She remembered travelling approximately
twenty miles per hour before applying the brakes when she saw Appellants’
vehicle in front of her. She estimates the speed at impact was less than five miles
per hour. Berger testified the damage to the vehicles was very minimal. She stated
her vehicle already had several scratches on its front, and she could not tell if there
was any additional damage to it after the accident occurred. She did not take any
pictures of the damage to the vehicles, because it was so minor it didn’t occur to
her to do so.
Muya was the only occupant in Appellants’ vehicle she spoke to. She
claimed Muya did not appear to be injured or in pain. She stated he did not appear
dazed or confused. Berger testified he appeared very alert. Muya responded to her
questions quickly, so she believed he understood her.
Berger’s next witness was Christopher Buck, who is a group risk
manager for Enterprise. He testified as to the protocol when a rental car is returned
to them. He stated that after a vehicle is returned, an agent does a walk-around
inspection for any damages. He testified that if a car is returned with damage,
Enterprise will open a claim. He states that damage is documented, and it goes
into their system. For them to open a claim, the damage must meet a certain
threshold to not be considered normal wear and tear. Buck testified that examples
of damage to a bumper which would exceed the threshold would be cracks,
-13- scratches longer than two to three inches, dents, or a misalignment. He stated that
a dent would need to be at least the size of a quarter on a plastic bumper for them
to open a claim.
While he did not inspect Muya’s rental vehicle himself, Buck testified
that Enterprise’s system had no documented damage to the vehicle after Muya
returned it to them. Buck said there would have been a notation in the system if
any repairs were made to the vehicle after Muya returned it, and there were none.
On cross-examination Buck admitted the vehicle was rented out again the morning
following Muya’s return, and there was noted damage to it after that return.
Berger’s final witness was her expert witness, C. Brian Tanner.
Tanner stated his ultimate opinion is that the collision between the vehicles
resulted in a speed change of no more than five miles per hour to Mohamed’s
vehicle, with the acceleration being no more than 5G.10 He further stated the
Appellants’ joints would not have moved more than their normal range of motion.
He opined that the forces on their bodies would be like forces exerted by
performing normal activities, such as rapidly descending a set of stairs, opening a
heavy door, or flopping back onto a chair or bed.
10 G is a unit for measuring forces, comparing them to the force of gravity, where Earth gravity equals 1G. John Papiewski, What Does G Force Mean?, SCIENCING.COM, Sciencing.com/what- does-g-force-mean-13710432.html (last updated Mar. 29, 2018). -14- Tanner testified that to reach his conclusions, he reviewed the
accident report, the Complaint and response in the circuit court action, depositions
of the Appellants and the investigating officer, the email and deposition of the
Enterprise employee, data for the vehicles involved, and street level and aerial
views of the accident scene. Additionally, he referenced previous tests he had
performed with similar vehicles regarding the amount of damage the vehicles
sustained when it hit an object while moving at a certain speed. Based on this
information, he performed several calculations which led to his conclusions.
Tanner stated he estimated Berger’s speed to be about four miles per
hour upon impact with Mohamed’s vehicle. He testified he determined this speed
because he had performed a controlled test with an equivalent vehicle. During this
test, the vehicle sustained significantly more damage than Berger’s vehicle when it
impacted a fixed barrier travelling at five miles per hour.
During his cross-examination, Tanner stated he disregarded Officer
Brandes’ speed estimate of fifteen to twenty miles per hour, because the amount of
damage to the vehicles would have been significantly greater than the damage
sustained in this collision if Berger had been travelling at that speed.
Appellants’ counsel asked Tanner to “show his work” and solve his
equations for the jury. Over objection, the circuit court initially agreed to allow it,
although deemed “unusual.” However, Tanner then stated to counsel and the court
-15- that while he could solve the equations, he did not solve them by hand in his
analysis. He stated he used a computer program called “Mathcad” to solve the
equations. This program is used by engineers to save time and solve standard
mathematical equations. Tanner stated it would take him one to two hours to solve
them by hand and he would need a lot of paper. The court ruled that it would have
no probative value to have Tanner solve his equations using pen and paper if that is
not how he reached his conclusion.
At this point, Appellants renewed their motion to exclude
Tanner’s testimony. They alleged his method was never disclosed to them, and
that no computer program was ever mentioned. They argue they have no
information on this program or how reliable it is. After some argument, the court
overruled Appellants’ motion. The circuit court stated Appellants had the
opportunity to challenge the calculations at the Daubert hearing, by deposition, or
by hiring their own expert.
The jury returned with a verdict in favor of Berger. They found
unanimously that the collision on October 27, 2016 was not a substantial factor in
causing injuries alleged by Hawa Mohamed or Ibrahim Muya. Ten out of twelve
jury members found that the collision on October 27, 2016 was not a substantial
factor in causing the injuries alleged by F.I. They awarded nothing to the
Appellants. The circuit court entered an Order of Judgment dismissing with
-16- prejudice the claims against Lisa Berger on October 10, 2022. This appeal timely
followed.
STANDARD OF REVIEW
“In reviewing the exclusion of expert witness testimony, this Court
applies an abuse of discretion standard.” Jackson v. Ghayoumi, 419 S.W.3d 40, 43
(Ky. App. 2012). “The trial court has discretion to control the presentation of
evidence. In the absence of any abuse, the reviewing court will not reverse the
decision of the trial judge.” Pendleton v. Commonwealth, 685 S.W.2d 549, 554
(Ky. 1985). Likewise, “the standard of review of an evidentiary ruling is abuse of
discretion.” Cox v. Commonwealth, 553 S.W.3d 808, 814 (Ky. 2018). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles.” Woodard v.
Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004).
ANALYSIS
Appellants claim the circuit court made several errors during
the jury trial. First, they allege the circuit court erred in allowing defense expert
Tanner to testify. They first claim that Tanner’s methodology was not properly
disclosed, and second, that his methodology did not meet the requirements of
Daubert. Appellants also contend the circuit court erred in denying their request
for Tanner to solve his equations in front of the jury.
-17- Appellants’ second contention of error is that the circuit court erred in
barring any mention of the word “insurance” in the presence of the jury. They
argue KRE11 411 does not require such a broad prohibition. Finally, Appellants
claim the circuit court erred in allowing Muya to be cross-examined regarding
deposition testimony from an unrelated case when it was not disclosed prior to
trial.
The Circuit Court Did Not Abuse Its Discretion in Allowing Tanner to Testify
Appellants claim the circuit court abused its discretion by not
excluding the testimony of defense expert Tanner. They claim Berger failed to
properly comply with the disclosure requirements of CR12 26.02(4)(a)(i).
CR 26.02(4)(a)(i) states:
A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
Appellants argue that because Tanner did not disclose that he had performed his mathematical calculations through a particular computer program, Berger did not sufficiently comply with discovery rules. While Berger did not initially disclose Tanner as an
11 Kentucky Rules of Evidence. 12 Kentucky Rules of Civil Procedure. -18- expert in her answer to Appellants’ interrogatories, she did file her expert witness disclosure naming Tanner as her expert on November 8, 2019, well within the discovery timeframe.
Appellants do not argue that Berger failed to disclose Tanner’s
opinions or the basis of his opinions. Appellants take issue with the fact that
Tanner performed the calculations he testified to by using a computer program,
rather than doing them himself by hand.
The purpose of CR 26.02(4)(a)(i) is “to give the opposing party a
chance to prepare for the trial itself.” Hicks v. Cole, 566 S.W.2d 169, 171 (Ky.
App. 1977). Berger’s disclosure gave notice to Appellants what the basis of his
testimony would be, and why. The only missing piece is what format was used to
solve the calculations, whether by hand, use of a calculator, or even a computer
application. Additionally, while Appellants claim they had no notice that Tanner
used a computer program to solve his equations, that is simply not accurate.
During the Daubert hearing, Tanner testified that he used software to solve his
equations. He references “the software” several times. Appellants failed to ask
any follow up questions. The circuit court stated:
If you want to ask the questions how he got there, then there is enough information in the disclosure to point opposing counsel in that direction. So, the fact that there has not yet been a deposition, I don’t think, that, to me, is important, but more importantly, the disclosures
-19- themselves give the blueprint for the testimony and the outline for any questions that would be asked.[13]
The circuit court noted the expert witness disclosure was not simply
conclusory; the disclosure here outlined the conclusions and the bases for them.
The circuit court believed the expert witness disclosure was adequate to put
Appellants on notice as to what the expert would testify to, and we agree.
Appellants seem to ignore the remainder of CR 26.02(4)(a), which
states:
After a party has identified an expert witness in accordance with paragraph (4)(a)(i) of this rule or otherwise, any other party may obtain further discovery of the expert witness by deposition upon oral examination or written questions pursuant to Rules 30 and 31. The court may order that the deposition be taken, subject to such restrictions as to scope and such provisions, pursuant to paragraph (4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.
CR 26.02(4)(a)(ii).
The circuit court repeatedly asked Appellants if they had taken
Tanner’s deposition. As the circuit court determined in its decision to overrule
their motion to exclude Tanner’s testimony during trial, Appellants were in
possession of Tanner’s equations for at least a year, and they could have deposed
13 Hearing of 10/6/2020 at 09:28:26. -20- him or hired their own expert to challenge his calculations. They chose to do
neither, despite having ample opportunity to do so.
Appellants further argue that Tanner should not be allowed to testify
as an expert under Daubert because the methods he employed in reaching his
conclusions are unreliable. KRE 702 is the rule that applies to expert testimony. It
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, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Pursuant to Stringer v. Commonwealth:
Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702.
-21- 956 S.W.2d 883, 891 (Ky. 1997).
The circuit court held a Daubert hearing in this action specifically to
determine if Tanner would be able to testify as an expert at trial. After hearing
Tanner testify, the court determined he was qualified as an expert in his field.
Appellants did not object to Tanner’s qualifications as an engineer, but as to his
methods. The circuit court ruled that his calculations rest upon sound principles of
mechanics and biomechanics. The circuit court believed his opinions regarding the
forces put upon Appellants’ bodies during the accident are within the expertise of a
biomechanical engineer who deals with force acting upon other objects. The
circuit court did rule, however, that Tanner could not testify as to medical
causation, or lack thereof.
The factors for a trial court to apply to determine the admissibility of
an expert's proffered testimony include: “(1) whether a theory or technique can be
and has been tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) whether, with respect to a particular technique, there is
a high known or potential rate of error and whether there are standards controlling
the technique's operation; and (4) whether the theory or technique enjoys general
acceptance within the relevant scientific, technical, or other specialized
community.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578-79
(Ky. 2000).
-22- Tanner has a master’s degree in engineering mechanics. He works in
the areas of mechanical engineering and biomechanics. He’s been employed with
a forensic engineering firm since 1994. His work has an emphasis on motor
vehicle accident reconstruction and biomechanical analysis. He has also worked
with the National Highway Traffic Safety Administration. He has contributed to
more than twenty peer reviewed publications. He has an engineering license in six
states.
Tanner testified that based upon the description of the damage of the
vehicles, he estimated the speed of Berger’s vehicle. He stated visiting the actual
scene would not be helpful, as there would be no relevant evidence remaining after
the passage of that much time. Additionally, he stated the collision itself was the
basis of his calculations, and the actual scene wouldn’t add much value. He
subsequently described his calculations, how he chose the values he did, and how
he reached his conclusions. He used manufacturing information of the vehicles
involved to determine the weight and build of the vehicles involved. He
referenced collision tests he performed himself on the same or substantially similar
vehicles when making his analysis. While no pictures of the vehicles involved in
this collision existed for his review, the description of the damage to the vehicles
was relatively consistent among all witnesses, and he took that information into
account when estimating the speed of Berger’s vehicle upon impact.
-23- The fact that Tanner did not perform the actual calculations himself
but used a computer program accepted in his field of study to solve the calculations
does not necessarily render those calculations unreliable. As stated by the circuit
court judge during trial, it is not unusual for an expert to employ a computer
program to assist in performing complicated mathematical calculations. Tanner
testified that the program he utilized was widely used and accepted in the
engineering field.
Appellants argue that Tanner was not employed as an expert until
approximately three years after the accident in question occurred. They claim that
because he did not visit the scene, did not review the vehicles or pictures of the
vehicles in question, or examine any black box data from the vehicles, did not
interview any of the parties, or take any measurements of the scene, he does not
have sufficient facts or data with which to make his opinion. They claim there is
no factual basis to support his equations. However, these arguments all go to the
weight of the evidence, not the admissibility. See Clephas v. Garlock, Inc., 168
S.W.3d 389, 394 (Ky. App. 2004); City of Nicholasville Police Department v.
Abraham, 565 S.W.3d 639, 645 (Ky. App. 2018).
Appellants’ counsel did, in fact, cross-examine Tanner thoroughly on
these matters during the trial. It should also be noted that the circuit court properly
limited Tanner’s testimony; he was not allowed to testify as to his conclusion
-24- stated in his report, which was that the force of the accident did not cause the
Appellants’ injuries. The circuit court ruled this was a conclusion within the realm
of medical causation, to which Tanner was not qualified to testify. We do not
believe the court abused its discretion in allowing Tanner’s testimony at trial.
Appellants still argue the circuit court erred in not allowing them to
have Tanner perform his calculations in front of the jury. “[Q]uestions concerning
the scope of evidence are left to the discretion of the trial court to determine
whether to admit and exclude evidence.” Baptist Healthcare Systems, Inc. v.
Miller, 177 S.W.3d 676, 684 (Ky. 2005). The circuit court determined that
because solving the equations by hand was not how Tanner solved the equations in
reaching his conclusion, it had little probative value, especially considering the
amount of time it would take. “The trial court also has ‘discretion ‘to . . . control
. . . the amount of evidence produced on a particular point.’” Addison v. Addison,
463 S.W.3d 755, 762 (Ky. 2015) (citations omitted).
Tanner informed the court that it was possible for him to do the
calculations by hand in front of the jury; however, it would take between one to
two hours and many sheets of paper. We do not believe the circuit court abused its
discretion in its ruling. Waste of time is properly avoided. KRE 403. A trial court
“is vested with a large discretion in the conduct of the trial of causes and an
appellate court will not interpose to control the exercise of such discretion by a
-25- court of original jurisdiction, unless there has been an abuse or a most unwise
exercise thereof.” Transit Auth. of River City (TARC) v. Montgomery, 836 S.W.2d
413, 416 (Ky. 1992).
The Circuit Court Did Not Err in Barring the Word “Insurance” in the Presence of the Jury
Appellants argue the circuit court’s prohibition against mentioning
“insurance” prejudiced their cross-examination of Tanner. Appellants allege they
wished to question Tanner regarding his history of testifying as an expert for
insurance companies.
The Appellants have not properly preserved this issue. Their citation
in their brief to where they objected to the prohibition was during the testimony of
Dr. Lach, not Tanner. At no point during Tanner’s testimony did Appellants bring
up the possibility of bias based upon any history with an insurance company.
“[T]he critical point in preservation of an issue remains: was the question fairly
brought to the attention of the trial court.” MV Transp., Inc. v. Allgeier, 433
S.W.3d 324, 331 (Ky. 2014).
Likewise, during pretrial motions, when Berger’s counsel moved to
exclude the use of the word “insurance,” the only argument Appellants’ counsel
made is that he likes to ask if any potential jurors work for an insurance company
during voir dire.
-26- Nowhere in the record do Appellants express their wish to cross-
examine Tanner as to any bias he may have by his history of working with
insurance companies. Appellants’ counsel did, in fact, ask Tanner if he ever
worked as an expert for plaintiffs and what percentage of his cases testifying as an
expert would be attributed to plaintiffs. Thus, the Appellants exposed any bias
Tanner may have had for the jury to consider. They make no reference as to what
precisely would have been asked or what the testimony would have been had they
been allowed to use the term “insurance” in their line of questioning. At any rate,
we determine that even if the circuit court erred in barring any use of the word
“insurance,” it was harmless. An error is harmless if it does not affect the
substantial rights of the parties. Morgan v. Scott, 291 S.W.3d 622, 637 (Ky. 2009).
The Circuit Court Did Not Err in Allowing Muya to be Impeached with Prior Deposition Testimony from Another Case
Appellants allege it was error for the circuit court to allow Berger’s
counsel to cross-examine Muya regarding deposition testimony he gave in an
unrelated civil matter. They argue this deposition was never disclosed in discovery
and therefore, should have been excluded. We find this argument to be without
merit.
CR 32.01 governs the use of depositions in court proceedings.
Subsection (a) states: “Any deposition may be used by any party for the purpose of
-27- contradicting or impeaching the testimony of deponent as a witness.” (Emphasis
added.)
“A trial court has broad discretion in ruling upon the admissibility of
impeaching evidence . . . . The law favors the admission of evidence that is
relevant to a jury’s determination of a witness’s credibility.” MV Transp., Inc.,
supra, at 333. “[T]he credibility of any witness, including one’s own witness, may
be impeached by showing that the witness has made prior inconsistent statements.
This rule applies in both criminal and civil proceedings.” Wise v. Commonwealth,
600 S.W.2d 470, 472 (Ky. App. 1978). “The credibility of a witness’ relevant
testimony is always at issue, and the trial court may not exclude evidence that
impeaches credibility even though such testimony would be inadmissible to prove
a substantive issue in the case.” Sanborn v. Commonwealth, 754 S.W.2d 534, 545
(Ky. 1988), receded on other grounds by Hudson v. Commonwealth, 202 S.W.3d
17 (Ky. 2006). “It is well-settled that prior inconsistent statements by a witness
may be received as substantive evidence.” Porter v. Commonwealth, 892 S.W.2d
594, 596 (Ky. 1995).
The court did not abuse its discretion in allowing this line of
questioning by Berger. While the circuit court had previously ruled that any
mention of subsequent motor vehicle accidents and lawsuits should be excluded as
irrelevant, it properly balanced Berger’s ability to impeach Muya with his prior
-28- testimony while still excluding the fact that this deposition testimony came from a
separate action. Berger’s counsel was able to ask about the testimony without
eliciting explicitly where it came from. Moreover, Berger did not introduce these
statements as substantive evidence, but only to impeach Muya’s credibility. It was
not an abuse of discretion for the circuit court to allow this line of questioning.
CONCLUSION
Because the circuit court did not abuse its discretion in its evidentiary
rulings during the jury trial, the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE LISA BERGER: Michael A. Landisman Louisville, Kentucky Scott A. Davidson Louisville, Kentucky
-29-