MOORE v. BLACKWELL

2014 OK CIV APP 37, 325 P.3d 4, 2013 WL 8372641, 2013 Okla. Civ. App. LEXIS 137

Opinions

JANE P. WISEMAN, Judge.

T 1 Plaintiff Terry Moore, individually and as next friend of Jerrit Moore, a minor, appeals a judgment entered in Defendants' favor resulting from a jury verdict rendered on April 11, 2011, in favor of Defendant Robert Blackwell. Having reviewed the ree-ord and pertinent law, we reverse and remand for further proceedings.

FACTS

12 According to Plaintiff's appellate brief, on September 1, 2007, Jerrit Moore, then a 12 year-old boy, was walking with a friend along an I-85 service road in Norman, Oklahoma. The boys were initially walking on the road against traffic, but because of an approaching hill, they decided it would be safer to cross "the center line to walk with the traffic, with the intent of returning to the other side of the road once they negotiated the hill." Because it was dark, only the moonlight and vehicle headlights illuminated the area in which they were walking. While driving on the service road, Robert Blackwell came upon the boys before he saw them, slammed on the brakes, and swerved to the left. Blackwell struck Jerrit Moore injuring him.

PROCEDURAL BACKGROUND

13 Plaintiff, Jerrit Moore's father, filed this negligence action against Defendants claiming: "The cause of the crash was the negligence of Robert Blackwell. As a direct and proximate cause of Robert Blackwell's [negligence], the plaintiffs have and will incur medical treatment and bills, suffered personal injury and been damaged in an amount in exeess of Ten Thousand Dollars ($10,000)." Plaintiff also asserted that at the time of the accident, "Defendant Farmers had a policy of uninsured/underinsured motorist coverage in force and effect in favor of the Plaintiffs for injuries received and caused by the negli-genee of an uninsured or underinsured motorist."

{4 Blackwell filed an answer denying any negligence on his part and stating:

This Defendant admits that on September 1, 2007, he was traveling on Interstate 35 service road in a legal and lawful manner when without notice or knowledge, two young men/minors were walking down the middle of the lane of traffic occupied by this Defendant, of course they were not wearing any type of reflective elothing, had no lights, had no warning, for which said minors, the Plaintiff Jerrit Moore, was negligent in common law negligence per se which was the proximate cause and sole cause of this accident.

T5 Farmers Insurance Company, Inc., answered denying the allegations against Blackwell, alleging Jerrit Moore was negligent, and confirming the existence of the uninsured/underinsured policy described above. Farmers later moved to bifurcate the claims asserted against it and asked the trial court to exclude at trial any mention of Farmers or the existence of insurance. Farmers agreed not to participate in the trial and to be bound by the jury's verdict.

T6 During trial, Plaintiff called fact witnesses Defendant Blackwell, Terry Moore, Jerrit Moore, and Phillip Cornelius, the friend walking with Jerrit Moore at the time of the accident. Defendant Blackwell then called Michael Thomson, the investigating officer, and Terry Harrison, an accident recon-structionist, Plaintiff objected to Blackwell's witnesses testifying as to fault or causation.

T7 At the conclusion of trial, the jury found in favor of Defendant Blackwell. As a result, the jury's verdict in favor of Blackwell extinguished Plaintiff's claims against Farmers. The trial court entered judgment for both Defendants based on the jury's verdict and granted Blackwell "reimbursement of costs in the amount of $1,345.22 plus statutory interest and costs."

T8 Plaintiff brings this appeal from the judgment in Defendants' favor entered as a result of the jury verdict.

STANDARD OF REVIEW

T9 "Rulings concerning the admission of evidence are measured against the abuse of discretion standard." Holm-Waddle v. William D. Hawley, M.D., Inc., 1998 OK 53, ¶ 5, 967 P.2d 1180, 1182. We review a trial court's ruling on the admissibility of expert opinions on an abuse of discretion standard. Belle Isle v. Brady, 2012 OK CIV APP 99, ¶ 24, 283 P.3d 259, 266 (citing Christian v. Gray, 2003 OK 10, ¶ 42, 65 P.3d 591, 608). "An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895 (emphasis omitted).

110 "The test of reversible error in instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered, if the alleged errors had not occurred." Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92-93.

ANALYSIS

I. Expert Testimony

1 11 Plaintiff argues the trial court abused its discretion in allowing, over repeated objections, Defendant's expert witnesses, Michael Thomson, the investigating officer on the day of the accident, and Terry Harrison, Defendant's accident reconstruction expert, to testify on issues that should have been reserved for the jury.

§12 Plaintiff initially filed a motion in li-mine on March 29, 2010, and then an amended motion in limine on January 18, 2011, seeking to exelude such testimony. The trial court overruled these motions on January 18, 2011. When the case was subsequently reassigned to another judge, Plaintiff re-urged his motion to the new judge who overruled the renewed motion on April 8, 2011. At the beginning of trial on April 11, 2011, Plaintiff requested and was granted a continuing objection to Harrison's testimony "to every question that is asked and answered by that expert that is nonscientific." On the second day of trial, Plaintiff reurged his objection to Harrison's testimony before he testified. The trial court granted Plaintiff a "standing objection" to the "limited questions" of "causation and negligence."

{13 Plaintiff on appeal asserts no expert testimony is necessary in this case on these issues as it is a "simple automobile-pedestrian accident." Plaintiff contends:

No scientific evidence is required for the jury to make a determination of whether or not these individuals, [Blackwell] was negligent in operation of his vehicle, or whether [Jerrit Moore] acted prudently, based upon his age and experience, or whether he acted in negligent fashion. Expert testimony was not needed, and did not assist the trier of fact.

He primarily relies on the Oklahoma Supreme Court case of Gabus v. Harvey, 1984 OK 4, 678 P.2d 253, to support his argument that expert witnesses may not offer opinion testimony on the issues of negligence and the cause of a collision and the allowanee of such opinion testimony is reversible error.

14 In Gabus, a negligence case also arising out of an automobile-pedestrian accident, a party sought to introduce an investigating police officer's opinion as to what caused the accident. The trial court allowed its introduction, and the officer testified that the pedestrian/plaintiff failed to yield the right of way to the defendant's moving vehicle. Id. at 1 5, 678 P.2d at 254. The plaintiff's "counsel moved for a mistrial, asserting that the officer's opinion invaded the province of the jury because it determined the ultimate issue of fault." Id. at 16, 678 P.2d at 254. The trial court denied the motion and the trial continued. Id. The jury found the plaintiff to be 75 percent negligent and the defendant, 25 percent negligent. Id.

{15 The Oklahoma Supreme Court reversed the judgment resulting from the jury verdict and remanded for a new trial. Id. at 30, 678 P.2d at 257. The Court based its holding on provisions of the Oklahoma Evidence Code, including 12 O.S8.1981 § 2704 which stated: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Id. at 110, 678 P.2d at 255. The Court reviewed § 2704 in conjunction with § 2702, which provided that a qualified expert witness may testify in the form of an opinion "[ilf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." ¹ Id. at ¶ 13, 678 P.2d at 255. Pursuant to § 2702, "The test ... is usefulness. Will the expert testimony assist the trier of fact? If not helpful, then expert conclusions or opinions are inadmissible." Id. at 1 16, 678 P.2d at 255.

{16 In reviewing the admitted evidence under these statutory provisions, the Gabus Court ultimately held the expert's opinion on the cause of the collision did not assist the jury to understand the evidence because the opinion "concerned facts that could be readily appreciated by any person who drives an automobile or crosses streets" and "[njo special skill or knowledge was needed to understand these facts and draw a conclusion from them." Id. at $18, 678 P.2d at 256. The Court further held that "where the normal experiences and qualifications of lay[ ] jurors permit them to draw proper conclusions from the facts and cireumstances, expert conclusions or opinions are inadmissible. The expert conclusion here was not helpful and should not have been admitted." Id.

117 The Supreme Court also concluded the testimony was plainly prejudicial because it "put the stamp of expertise upon an issue that the jury was fully competent to decide." Id. at 1 25, 678 P.2d at 257. The Court held that it was prejudicial error to admit the expert testimony on the issue of fault: "We find it highly probable that in this case the jury was unduly influenced by the opinion of one whose opinion was not needed by them to reach an intelligent conclusion as to the cause of the accident." Id. at 128, 678 P.2d at 257.

18 Faced with evidentiary cireumstances almost identical to Gabus, we reach the same conclusion. Officer Michael Thomson testified on direct examination by Defendant's counsel that as an investigating officer, he tries to determine "what happened at the accident." He further testified that although he tries "to determine who's most at cause in the accident," he does not "try to determine fault." ² During later direct examination, defense counsel asked the trial court to allow Thomson to testify as to whether he thought Defendant was at fault. Plaintiffs counsel objected again citing Gabus. The trial court overruled the objection allowing defense counsel to inquire about faults.³ Thomson testified as follows:

Q. Officer Thomson, after you completed your investigation using your background and experience, did you find any type of, as you call it "fault," on [Defendant]?

A. Well, again, as I say, I have always been trained not to determine fault. As far as [Defendant] goes, I determined that there was nothing for me to be able to site [sic ] him for.⁴

When questioned further on cross-examination as to fault,⁵ Thomson testified as follows:

Q. So is it your testimony that [Defendant] is fault-free?

A. I'm not saying fault on anybody. I'm just assessing who might have been most at cause in the accident-

Q. Okay.

A. -and due to the fact that [Jerrit Moore], from my information, went to the center of the roadway instead of to the edge of the roadway, I would lend more credence at him being more at fault in the accident or more responsible-

Q. [Jerrit] Moore?

A. Yes, sir. In this accident.⁶

In his closing argument to the jury, Defendant's counsel summarized this testimony by stating, "In fact, everything you heard from this case is that [Defendant] was innocent of negligence from the police officer who has nothing to gain or lose.... He testified [Defendant] did nothing wrong."

19 On defense counsel's direct examination, Terry Harrison, Defendant's accident reconstructionist who was also a police officer for the City of Oklahoma City, gave the following opinion on fault and causation:

Q. Did you-based upon your background and experience and education as well as your on-the-job experience as well, do you have an opinion as what the cause of this accident was? ⁷

A. Yes. Based on all the evidence I have, based on the testimony of all the people involved, based on the physical evidence on the roadway, and my understanding of the State statutes and how they are applied here, I find that the plaintiff was walking in the middle of the roadway, which he is required to walk on the side of the roadway facing traffic or on the sidewalk if it's provided. And that [Defendant] took appropriate action and would be taking the same action I would have taken.

I find no negligence or any foult on [Defendant] that he did anything wrong. He was within the speed limit. He recognized the danger and he reacted to that, and he act{ed] appropriately.⁸

(Emphasis added.)

120 Defendant argues, "There is nothing prohibiting an expert from testifying as to the ultimate issue to be decided by the jury. This was an auto-pedestrian accident involving issues of lighting, visibility, road elevation, and other matters not within the knowledge of ordinary jurors." Both Thomson and Harrison could and did testify on such matters as "lighting, visibility, road elevation," and other observations of physical characteristics of the accident seene, physical evidence at the scene, and results of their investigations that were helpful to the jury. Plaintiff did not object at trial and does not on appeal take issue with such testimony.⁹ Unlike their opinions on "fault" and "cause," their testimony on these matters involved technical or specialized knowledge.

T21 Pursuant to 12 O0.8.2011 § 2702, to be admissible, the "scientific, technical or other specialized knowledge" must "assist the trier of fact to understand the evidence or to determine a fact in issue." Does the opinion of an investigating police officer or an accident reconstructionist as to whose fault caused the accident help the jury "understand the evidence" or "determine a fact in issue"? Does such an opinion make "the existence of any fact ... more probable or less probable" than it would be without that opinion? American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of Expert Evidence after Daubert, 157 F.R.D. 571, 573-175 (1994). We suggest that it has the effect, not of advancing the jury's understanding of the evidence to any degree or of promoting aceu-rate fact-finding, but of making a verdict of liability or no liability more probable by telling the jury what conclusion to draw.¹⁰ 29 Charles Alan Wright, Kenneth W. Graham, Jr., Victor James Gold, Michael H. Graham, Federal Practice and Procedure § 6264 (Ist ed.2013).

122 There is clear case law prohibiting expert opinion testimony on negligence and causation because it "did not assist the jury" and "was not needed by them to reach an intelligent conclusion as to the cause of the accident." Gabus v. Harvey, 1984 OK 4, ¶¶ 22, 28, 678 P.2d 253, 257. The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore's negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.¹¹ This case involves facts comprehensible by anyone who has walked on a roadway or driven an automobile at night and encountered pedestrians or other hazards in the roadway. In line with Gabus, these are situations within the common knowledge of most jurors who have driven a motor vehicle. Id. at 1 18, 678 P.2d at 256.

23 It is well-established in the holding in Gabus that the objected-to testimony about fault and causation dealt with matters well within the jury's "normal experiences and qualifications." Id. Was special knowledge or expertise, in the form of an opinion on the ultimate issue, of assistance here to understand whether either party was negligent and, if so, whether that negligence caused the collision?¹² To grasp and evaluate the evidence and draw well-reasoned conclusions from it did not require an expert to tell the jury what conclusion to reach.¹³ As in Go-bus, this testimony on negligence, fault and causation cannot be considered to have assisted the jury.¹⁴ The jury had the benefit of the testimony of the two experts detailing without objection what their investigations had revealed on numerous subjects-point of impact, speed of Defendant's vehicle both before and at impact, reaction time, stopping distance, the effect of antilock brakes, lighting conditions-testimony helpful to the jury in reaching its verdict.¹⁵ Plaintiff properly objected to any expert offering his opinion finding "no negligence or any fault on [Defendant]" and finding that Jerrit Moore was "more at fault in the accident."

124 In addition to being unneeded,¹⁶ such testimony was also prejudicial, because it "put the stamp of expertise upon an issue the jury was fully competent to decide." Id. at 125, 678 P.2d at 257. Thomson investigated the accident as an officer for the City of Norman police department, and Harrison was a police officer for the City of Oklahoma City at the time he testified, both thus occupying official positions that carry the undue "'stamp of authenticity'" found to be objectionable in Gabus. Id. at ¶ 26, 678 P.2d at 257 (quoting Maben v. Lee, 1953 OK 139, ¶ 11, 260 P.2d 1064, 1067).

1 25 The Supreme Court has further stated that to allow such testimony permits the jury to substitute an expert witness's opinion for the "combined judgment of the jury, encouraging a contest by experts rather than a trial by witnesses." ¹⁷ Id. at T 25, 678 P.2d at 257. In the trial court's gatekeeping capacity, for the reasons elucidated in Gabus, it was reversible error to allow Thomson and Harrison to state opinions or conclusions on the questions of negligence, fault, or whose conduct did or did not cause the accident.

II. Impeachment Testimony

26 Plaintiff next contends the trial court "improperly prevented [him] from examining witnesses and Defendant after giving perjured testimony." Plaintiffs counsel asked Defendant a question during trial regarding a prior recorded statement he had given. Plaintiff argues Defendant denied giving a recorded statement "in complete contradiction to his deposition testimony." Plaintiff argues the trial court should have granted "Plaintiff's counsel some leeway in questioning the Defendant on this issue" as "[pler-jured testimony goes directly to the credibility of the witness." Plaintiff asserts the trial court prevented him from attacking Defendant's credibility.

27 Defendant argues the trial court did not abuse its discretion in refusing to allow Plaintiffs counsel to question Defendant about his deposition testimony about a recorded statement given to his insurance company. Defendant asserts the trial court refused "because reading the deposition question and answer to the jury would disclose to the jury the existence of insurance, in violation of 12 0.8. § 2411 and requir[e] a mistrial." Defendant further asserts that because no recorded statement existed and Plaintiff had none at trial with which to cross-examine Defendant, the trial court properly precluded Plaintiff from inquiring about it.

28 The admission of a prior inconsistent statement to attack the credibility of a witness is governed by 12 O.S. §§ 2607 and 2618. Crussel v. Kirk, 1995 OK 41, ¶ 8, 894 P.2d 1116, 1118-19. The Crussel Court stated:

Before allowing evidence of a witness's prior inconsistent statements, the nisi pri-us court must satisfy itself that the proffered testimony is sufficiently inharmonious with the declarant's in-court testimony and is relevant to a non-collateral matter. A proper foundation must be laid before the extrinsic impeachment evidence may be admitted.

Id. at 18, 894 P.2d at 1119 (footnotes omitted).

129 Based on this criterion, Defendant argues Plaintiff failed to lay any foundation because no such statement existed. Instead, Plaintiff intended to impeach Defendant with his prior inconsistent testimony about whether he had actually given a prior statement instead of impeaching him with the substance of the "non-existent recorded statement." Defendant argues that by doing so, Plaintiff "would have created a mistrial by informing the jury of the existence of insurance. Further whether [Defendant] gave a recorded statement to his insurance company or not was wholly collateral to the issues of the case."

130 In response to Plaintiffs counsel's request during trial to question Defendant about the recorded statement, the trial court stated: "Counsel, I read that deposition. He gave a report. Now, that's what he said in the deposition and that was to the insurance company. No, sir. You know, you can't get it in directly when I would have to declare a mistrial if that's what it comes down to." After a review of the record, we conclude the trial court did not abuse its discretion by excluding this evidence. Plaintiff sought to impeach Defendant's trial testimony denying any previous recorded statement with his deposition testimony admitting giving a statement to his insurance company. This cannot be said to be relevant to a non-collateral matter. Id.

131 We find the same to be true as to Plaintiff's contention that the trial court improperly refused to allow him "to ask Defendant a causation question-if you had driven slower, this accident would not have happened. This is the ISSUE of the case and his answer would clearly weigh on his eredi-bility!!!" (Emphasis omitted.) A review of Defendant's trial testimony reveals Plaintiff did in fact ask Defendant this question and Defendant provided an answer. On direct examination, Plaintiff's counsel asked Defendant the following:

Q. Had you been driving slower, do you believe this incident would have happened?

A. I don't know if slower-how much slower? I mean, five miles an hour slower? No. I think it would still have occurred, the same thing.

(Emphasis added.) On redirect, Plaintiff's counsel asked the same question: "At the end of the day, had you taken precautions and driven slower, would this crash have Before Defendant could respond, the trial court sustained defense counsel's objection that the question was outside his recross-examination of the witness. We find no abuse of discretion in this ruling and Defendant had previously answered it on direct examination.

II. Jury Instructions

T32 Plaintiff asserts Defendant failed to meet his burden of proof to show that Jerrit Moore "was negligent resulting in the trial court failing to properly instruct the jury." Plaintiff argues the trial court improperly instructed the jury based on Thomson's and Harrison's testimony regarding Jerrit Moore's negligence. Plaintiff argues "Harrison improperly attempted to establish the knowledge and education of his eight-year-old grandson, the grandson of a police officer, as a 'standard' to be applied in this case" when the "evidence to overcome the presumption [Moore] was not negligent must be determined based on his particular facts and cireumstances, education and experiences, not by what some 8 year old grandson of an expert witness was taught." Plaintiff states, "Had the Trial Court appropriately excluded the testimony of Thomson and Harrison, the Plaintiff's modified jury instruction, OUJI 9.4 [Child's Capacity for Negligence] would have been given as there was no other evidence overcoming the presumption [Moore] was not negligent. This would have resulted in a verdict for the Plaintiffs."

{33 Because we conclude the admission of opinion testimony by Thomson and Harrison is reversible error requiring a new trial-at which neither of these two witnesses may give opinion testimony as to the negligence or fault of any party, including Jerrit Moore, or as to causation of the collision-we do not further address this issue.

CONCLUSION

4 34 Because the conclusions of expert witnesses admitted into evidence, contrary to the strictures of Gabus, on the issues of whether either party was negligent and to what extent that negligence, if any, caused the collision, were not needed or helpful to the jury and were plainly prejudicial, we reverse and remand for a new trial consistent with the views expressed in this Opinion. Further, we decline to address any issues raised in the amended petition in error that were omitted from the appellate briefs. Oklahoma Supreme Court Rule 1.11(k)(1), 12 0.9.2011, ch. 15, app. 1 ("Issues raised in the Petition in Error but omitted from the brief may be deemed waived.").

185 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

BARNES, V.C.J., concurs, and FISCHER, P.J., concurs in part and dissents in part.

1 . Although additions were made to this provision in 2009, those additions do not change the fact that the "scientific, technical or other specialized knowledge" must still "assist the trier of fact to understand the evidence or to determine a fact in issue."

2 . We conclude that Thomson cannot circumvent the well-understood holding in Gabus by consistently denying doing exactly what he is in fact doing. Despite Thomson's protestations, we see no distinction, for testimony purposes in the jury's eyes, between "at cause" and "at fault." If "at cause" refers to any party receiving a citation, Officer Thomson may not testify to this any more than he may testify as to which party is liable, tie., "at fault," for the collision. We disagree with the dissent that Thomson "did not answer" the "fault" question and further disagree that a reasonable juror would interpret Thomson's use of the word "fault" as a "misstatement which [he] immediately corrected with the language 'or more responsible." "

3 . Experience tells us that when "fault" questioning is allowed, "citation" testimony will not be far behind. And, defense counsel told the jury in closing argument, "[The police officer] says that [Defendant] violated no laws."

4 . We disagree with the dissent's conclusion that it is unlikely that the jury was "unduly influenced" by Thomson's opinion that there was nothing to cite Defendant for and that allowing this evidence was not a clear abuse of discretion. The dissent does note that this "citation" testimony is objectionable because it states a legal conclusion. We believe the same characterization could be said to apply to "fault" and "negligence" testimony.

5 . Once Defendant's counsel on direct examination breached the Gabus prohibition over Plaintiff's repeated objections, Plaintiff's counsel's cross-examination on Thomson's "fault" testimony cannot, in our view, constitute "invited error." One would be hard-pressed to know how much more to object to preserve the error, and once the cat was out of the bag, Plaintiff could not be expected to ignore the substance of Thomson's "fault" testimony. In light of the trial court's continued allowance of such testimony over Plaintiff's objections, we cannot characterize Plaintiff's counsel as "solely responsible for the error," as the dissent does. In light of the trial court's blanket allowance of "expert" testimony on fault, negligence, and who caused the collision, we see no basis, as the dissent does, for requiring Moore to file a motion for directed verdict or for new trial on the citation testimony in order to preserve the error on appeal.

6 . Officer Thomson's testimony on these issues should not have been allowed after he testified on direct examination, "'I don't try to determine fault. That's not my job as a police officer." Tr., p. 127. And when asked on direct whether he found any "fault" on Defendant, Thomson testified, "I have always been trained not to determine fault." Tr., p. 138. This would seem to indicate that this sort of determination is not within his training and expertise. After an overnight recess, before Defendant called his accident reconstructionist to the stand, Plaintiff again objected to any testimony by Harrison as to fault or causation and further argued it would be cumulative to Thomson's fault testimony the day before. The trial court remembered that Thomson stated he could not determine fault for either one of the parties, but the court believed incorrectly that Thomson had not rendered an opinion as to fault. Tr., p. 156.

7 . The dissent finds nothing improper about asking "What caused this accident?" We view this, and believe most jurors would view this, as the equivalent of asking "Who caused this accident?," i.e., who was negligent in causing this collision? Harrison apparently understood it this way when he answered the question by saying he found "no negligence or any fault on [Defendant] that he did anything wrong."

8 . Although Plaintiff objected in his amended motion in limine to Harrison's testimony on more than twenty subjects, Plaintiff did not preserve his objection on all these points at the time of trial. Before Harrison testified, Plaintiff asked for, and was granted, a continuing objection to Harrison giving expert opinion testimony on only two subjects, "causation and negligence." Tr., pp. 157-58. Plaintiff did not claim error on these twenty or so subjects, or brief them in his appellate briefs where he specifically argued trial court error in allowing Thomson and Harrison to testify "as to causation and negligence." Moore's brief in chief, pp. 23-24; Moore's reply brief, pp. 10-11. To be clear, we do not find improper Harrison's testimony about where the point of impact was, or the speed of Defendant's vehicle, or what the physical evidence showed about Defendant's braking or attempts to take evasive action. In addition, Plaintiff states in his appellate brief that he stipulated Defendant was not speeding. But, to allow an expert to testify further that Jerrit Moore's improper conduct caused the collision, and that Defendant was not negligent, is error.

9 . The dissent discusses the testimony of both Thomson and Harrison on these matters, such as swerve and skid marks, point of impact, and conditions at the time of the accident. As we believe the Opinion makes clear, this testimony is not prohibited-nor was it objected to, complained of on appeal, or the basis for our reversal of this judgment. But we do not believe that such admissible testimony constitutes a license for an expert to then cross the Gabus threshold and offer his legal conclusion on an issue that, without the expert's opinion, "the jury was fully competent to decide." Gabus v. Harvey, 1984 OK 4, ¶ 25, 678 P.2d 253, 257.

10 . We are persuaded that expert opinions should not be admitted that " 'merely tell the jury what result to reach.' " Hooks v. State, 1993 OK CR 41, ¶ 13, 862 P.2d 1273, 1278, cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 LEd.2d 490 (1994) (quoting Moore v. State, 1990 OK CR 5, ¶ 49, 788 P.2d 387, 399).

11 . The question to be answered here, pursuant to the Evidence Code, is not whether these opinions go to the "ultimate issue" before the jury, which they may, if admissible, but whether such opinions constitute "scientific, technical or other specialized knowledge" that will assist the jury. 12 0©.S.2011 § 2702 (emphasis added). We do not conclude that such testimony can never be admissible in a vehicular negligence case, but it is not admissible in this one.

12 . We think such questions very clearly tell jurors what conclusion to reach about a party's conduct.

13 . "[Elxpert testimony fails to assist if unfair prejudice outweighs probative value...." 29 Charles Alan Wright, Kenneth W. Graham, Jr., Victor James Gold, Michael H. Graham, Federal Practice and Procedure § 6264 (1st ed.2013).

14 . To the extent the dissent argues that "fault" and "causation" testimony should be allowed as part of "the entirety of the evidence," this in our estimation renders Gabus meaningless. Although the dissent does not find such testimony to be sufficiently "prejudicial," Gabus clearly does as discussed below.

15 . The dissent finds no distinction between this case and Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705. The primary holding in Covel on the admissibility of expert testimony turned on whether the objecting party challenged the testimony by a timely objection. The Supreme Court said, "This Court has held that a party cannot after introduction of evidence without objection, have it stricken on grounds that it is incompetent." Id. at 18, 272 P.3d at 709 (emphasis added). The Court would not condone allowing a party to object to expert witness testimony after it was admitted without objection: "By failing to object, the error is waived on appeal...." Id. at 19, 272 P.3d at 710. One cannot allow an expert's testimony to be admitted and then try to discredit that testimony after all the evidence is in. Id. There are clear distinctions between this case and Cov-el.

16 . As the Supreme Court concluded in Gabus, ''This is not a case where the jury needed the opinion of an expert about fault." Gabus v. Harvey, 1984 OK 4, ¶ 25, 678 P.2d at 253, 257. As to characterizing either Thomson's or Harrison's testimony on whose fault caused the collision as permissibly "suggesting an inference," as the dissent does, we note the Evidence Subcommittee's Note to Section 2702: "Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference." Okla. Stat. tit. 12, § 2702 (West 2009).

17 . To follow the dissent's reasoning in allowing expert opinions on fault and causation would in our view, by endorsing a "contest of experts," unnecessarily drive up the cost of litigating cases when these issues, according to our Supreme Court, are within a jury's "normal experiences and qualifications."