Sells v. Wamser

158 F.R.D. 390, 1994 U.S. Dist. LEXIS 19506, 1994 WL 621585
CourtDistrict Court, S.D. Ohio
DecidedOctober 20, 1994
DocketNo. C2-93-1062
StatusPublished
Cited by3 cases

This text of 158 F.R.D. 390 (Sells v. Wamser) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sells v. Wamser, 158 F.R.D. 390, 1994 U.S. Dist. LEXIS 19506, 1994 WL 621585 (S.D. Ohio 1994).

Opinion

OPINION AND ORDER

KEMP, United States Magistrate Judge.

This is a wrongful death case arising from a collision between a vehicle driven by Gregory K. Sells, plaintiff's deceased, and a tractor trailer being operated by defendant Wamser and owned by defendant Tollie Freightways, Inc. On September 9, 1994, plaintiff filed a motion advising the Court that both parties had retained the same engineering firm, S.E.A., Inc., to serve as an expert witness in this case. In her motion, plaintiff asked the Court both to prohibit defendants from using any information gained from S.E.A., and to disqualify defendants’ counsel. The Court held a hearing on the motion on October 6, 1994. At the conclusion of the hearing, the request to disqualify counsel was withdrawn. The following represents the Court’s findings of fact, discussion, and order with respect to the balance of plaintiffs motion.

I. THE BACKGROUND OF THE CONFLICT

The accident which gave rise to this lawsuit occurred on May 2, 1993 in Fairfield County, Ohio. Wamser was attempting to turn her tractor-trailer around on State Route 37, and the trailer was blocking both lanes of traffic. There were some efforts made to stop oncoming traffic while Wamser completed this maneuver. However, Sells, who was driving a 1985 Dodge Ram sport utility vehicle, was unable to stop his vehicle, and it collided with the tractor trailer somewhere near the back tires of the tractor. Sells was killed in the accident.

Within days, Sells’ widow, Gail L. Sells, who is the plaintiff in this ease, retained counsel, and counsel retained Dr. John Wie-chel of S.E.A. to serve as an expert witness. Dr. Wiechel is a mechanical engineer with substantial experience in accident reconstruction. On Friday, May 7,1993, five days after the accident, Dr. Wiechel travelled to Lancaster, Ohio, met with counsel, inspected the two vehicles which were involved in the accident, examined the scene of the collision, and took notes and pictures. He was paid a $500 retainer at that time. Subsequently, he has billed plaintiff for various services, has been paid in excess of $2600. Recently, he was asked to perform some type of reconstruction of the conditions which existed at the time of the accident, and, based upon that reconstruction, to testify as to his opinion of the discemibility of the tractor trailer rig on the night in question. He has not yet done that task.

Approximately a year after the accident, in anticipation of being required to identify an expert witness by September 30, 1994, as required by this Court’s pretrial conference order, defendants, through counsel, approached Ricky Stansifer, who is also employed by S.E.A. Like Dr. Wiechel, Mr. Stansifer is a mechanical engineer, and his experience in performing accident reconstructions is similar to Dr. Wiechel’s. As discussed below, he made efforts to verify that S.E.A. did not have a conflict of interest in this matter, and, believing the results of that search to be negative, proceeded to undertake certain tasks at the request of defense counsel.

It is important at this point to describe the process used by S.E.A. to determine if a conflict of interest exists. Generally, the engineer accepting employment in a particular matter is required to enter into a computer certain information concerning the accident, including the date, the scene of the accident, and the name of the party who proposes to retain SEA Dr. Wiechel did so on this case, entering the correct date of the accident, the location as Route 37 in Fairfield County, and [392]*392the name of the client as Gail Sells. Mr. Stansifer did the same, using the correct date, the location of the accident as Lancaster, Ohio (which turned out to be incorrect), and the client name as Tollie Freightways. When this information was searched through the computer, a match was obtained based upon the date, but because the other information was different, Mr. Stansifer concluded that a different accident was being investigated by Dr. Wiechel. Without determining who was in the best position to avoid this type of mistake, it is clear that plaintiff played no role in it, and that everyone involved acted in good faith.

Mr. Stansifer was retained to perform a discernibility study based upon a reenactment of the accident. After reviewing the facts of the case and pictures of the scene, and determining the appropriate weather and visibility conditions, he arranged for a reenactment. He obtained a two-wheel drive Ford pickup as a substitute for Gregory Sells’ vehicle, and although the pickup differed somewhat with respect to the spacing and the height of the headlights, he believed those variations were insignificant. He then obtained a tractor trailer rig from Tollie Freightways which was very similar to the one involved in the accident, and laid out a 500 foot course in 50 foot increments. He tested the visibility of the vehicle up to 500 feet. While doing the test, he obtained the assistance of law enforcement officials in keeping traffic from entering the test scene. He spent approximately twelve hours on this reenactment, including his travel time to Fairfield County, Ohio, daytime measurements of the course, the set-up of the vehicles, and photography. All of this work was performed before he and Dr. Wiechel discovered, purely by chance, that they were working on the same case. Dr. Wiechel and Mr. Stansifer have not discussed any of their substantive conclusions in this case, and have not shared information concerning their respective, independent investigations.

II. THE SIGNIFICANCE OF THE CONFLICT

A substantial amount of time was spent at the hearing determining how either the plaintiff or the defendants would be affected by their inability to use S.E.A. if that firm were disqualified from representing one or both parties. The following discussion focuses on that issue.

A Dr. Wiechel

Dr. Wiechel has bachelor’s, master’s, and doctor’s degrees in mechanical engineering, has worked with S.E.A. for 14 years, and has performed approximately 1,500 accident reconstructions. He has testified a number of times in court, including six to twelve times in nighttime visibility cases. Although he is a recognized expert in his field, there are a number of other persons both within the State of Ohio, and outside the State of Ohio, who have similar qualifications.

Dr. Wiechel has not yet performed an accident reconstruction or a discernibility study. He did, however, visit the site within five days of the accident, and observed the vehicles first-hand. In some types of cases, firsthand observations of this type are of benefit in formulating opinions and testifying as to the validity of those opinions. Photographs, which are necessarily two-dimensional, cannot capture certain features of the vehicles which are apparent upon first-hand observation. Additionally, certain details may be observed but not photographed. Thus, if there were a significant issue in this case concerning the manner in which the accident occurred, the angle of the impact, or the mechanics of the injury, first-hand observations might improve the accuracy of Dr. Wie-chel’s testimony by a factor of as much as 20 percent. Another expert who is limited to reviewing Dr. Wiechel’s notes and photographs would not be able to provide testimony which could be enhanced by virtue of first-hand observations.

In this ease, however, it appears that any enhancement of Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
158 F.R.D. 390, 1994 U.S. Dist. LEXIS 19506, 1994 WL 621585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sells-v-wamser-ohsd-1994.