Stacie Murray v. James Gray d/b/a Gray Trucking and Kevin Parke

• Court: Court of Appeals of Mississippi
• Decided: June 30, 2020
• Docket: NO. 2018-CA-01550-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01550-COA

STACIE MURRAY APPELLANT

v.

JAMES GRAY D/B/A GRAY TRUCKING AND APPELLEES KEVIN PARKER

DATE OF JUDGMENT: 06/28/2018 TRIAL JUDGE: HON. MARK SHELDON DUNCAN COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: S. MALCOLM O. HARRISON ATTORNEYS FOR APPELLEES: MICHAEL EARL PHILLIPS CLAIRE K. ROBINETT NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 06/30/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. Stacie Murray was driving north on Highway 35 in Scott County when her car

collided with a log truck traveling south. Murray sued the truck’s driver, Kevin Parker, and

his employer, James Gray d/b/a Gray Trucking, for damage to her car and personal injuries.

A jury trial ended in a 9-3 verdict for the defendants. On appeal, Murray argues that the trial

court erred (1) by overruling her hearsay objection to a highway patrol trooper’s testimony

about Parker’s statement at the crash scene; (2) by admitting into evidence the Uniform Crash

Report (UCR) prepared by the trooper, including a narrative and diagram reflecting the

trooper’s opinions about the vehicles’ paths and the cause of the crash, and by allowing defense counsel to cross-examine Murray’s expert about the UCR’s narrative; (3) by

allowing the trooper, who was not qualified as an expert, to opine as to the cause of the crash;

and (4) by allowing defense counsel to cross-examine Murray’s expert about a judicial

opinion and evidence from prior cases in which the expert testified or his testimony was

excluded. We conclude that a new trial is required because Murray’s hearsay objection

should have been sustained, the UCR should not have been admitted into evidence or read

during cross-examination of Murray’s expert, and Murray’s expert should not have been

cross-examined about a court’s opinion and evidence from other cases. Therefore, we

reverse and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2. On April 1, 2014, between 9 and 10 p.m., Stacie Murray was driving home from work

on a two-lane stretch of Highway 35 in Scott County. Murray was in the northbound lane.

Kevin Parker was driving a fully loaded log truck in the southbound lane on the same stretch

of Highway 35. Parker was in the course and scope of his employment for James Gray d/b/a

Gray Trucking. The two vehicles collided. Murray’s vehicle struck the driver’s side of

Parker’s truck before passing behind the truck, leaving the road, and finally coming to rest

on the west side of the highway. Murray sued Gray and Parker in the Scott County Circuit

Court, alleging that she suffered personal injuries and property damage as a result of Parker’s

negligence. The case eventually proceeded to a two-day jury trial in June 2018.

¶3. At trial, Murray testified that she was “alert” and driving with “no problems” when

suddenly she saw “lights.” Murray stated, “I was driving north in my lane, and I just saw

2 lights . . . .” Murray was “[p]ositive” she was in her own lane when she saw the lights. The

next thing that she could remember was being “disoriented” in her car on the side of the road.

A man told her not to move because her car had been hit by a truck. Emergency medical

technicians arrived and checked on Murray, but she did not go to the hospital that night.

When she awoke the next morning, her ankle was bruised, swollen, and painful, so she went

to the hospital.

¶4. On cross-examination, Murray reiterated that she was in her lane at the time of the

crash. However, she later stated, “I was driving. I saw lights. When the impact happened,

I don’t know anything about that. But I’m constantly driving in my lane.” In addition,

Murray agreed with defense counsel that she did not have a specific “memory of where this

collision took place.”

¶5. On redirect examination, Murray again testified that she had no doubt that she was in

her lane when the crash occurred and that she never deviated into the southbound lane.

However, on re-cross-examination, Murray again equivocated as to whether she was certain

that she was in her lane at the moment of the crash.

¶6. Parker testified that he was driving his truck in the southbound lane of Highway 35

when Murray’s car suddenly entered his lane and drove “head-on” toward his truck. The

shoulder of the road was narrow, but according to Parker, he tried to avoid Murray’s car by

swerving to the right. Parker testified that his passenger side tires went into the grass on the

west side of the road. However, Murray’s car still struck the side of Parker’s truck near his

door. Murray’s car continued to contact the driver’s side of the truck, causing damage along

3 the length of the truck before passing behind Parker’s truck and coming to rest off the road

on the west side of Highway 35. After the collision, Parker brought his truck to a stop along

the side of the highway. Parker testified that he never entered Murray’s lane and that the

crash occurred entirely in his lane.

¶7. James Hannah testified for Murray as an expert in accident reconstruction. Hannah

testified that he visited the scene about two months after the crash and found a “gouge mark”

in the road in what he believed to be the approximate location of the collision. Hannah

admitted that the highway patrolman who investigated the wreck, Trooper Greg Lucas, did

not find or photograph any gouge marks. Hannah also admitted that he did not know whether

the gouge mark was actually caused by the subject crash or predated the crash. In addition,

Hannah did not photograph the gouge mark during his initial visit to the crash scene. When

Hannah next visited the scene—about two years later—the highway had been overlaid, and

the gouge mark was no longer visible. Thus, other than Hannah’s testimony, there was no

evidence of the gouge mark. The defendants filed a pretrial motion to exclude Hannah’s

testimony regarding the alleged gouge mark. They argued that Hannah’s belief that the

gouge marked established the point of impact was speculative and unreliable.1 However, the

trial court denied the motion and allowed Hannah to testify about the gouge mark.

¶8. Curiously, Hannah testified that the location of the alleged gouge mark indicated that

the collision occurred slightly in the southbound lane—i.e., Parker’s lane. Thus, Hannah

1 The defendants relied in part on Burnham v. Austin, No. 3:14-cv-435-WHB (S.D. Miss. Sept. 11, 2015), an unpublished opinion in which a federal district court excluded similar testimony by Hannah that a gouge mark established the point of collision in a crash.

4 believed that part of Murray’s car crossed into Parker’s lane prior to the collision. In

addition, Hannah accepted as true Parker’s testimony that he swerved four to six feet in an

effort to avoid Murray’s car. However, Hannah disbelieved Parker’s testimony that he

swerved partially off the road because Hannah did not believe that there was any evidence

at the scene or in Trooper Lucas’s photographs that the log truck ever left the road. Thus,

Hannah theorized that Parker’s four-to-six-foot swerve must have started in Murray’s

lane—i.e., Parker must have invaded Murray’s lane before swerving back to his right at the

last moment. Accordingly, Hannah believed that Parker was at least partially at fault.

¶9. Over Murray’s objections, defense counsel cross-examined Hannah regarding the

Uniform Crash Report (UCR) that Trooper Lucas prepared regarding the accident. Defense

counsel read directly from the UCR’s narrative section, which reflected Trooper Lucas’s

opinions regarding the vehicles’ paths and the cause of the wreck. Also over Murray’s

objections, defense counsel cross-examined Hannah about the federal district court’s opinion

in Burnham, supra, and evidence in two other cases in which Hannah testified. These issues

are discussed in more detail below.

¶10. After Murray rested, the defendants called Trooper Lucas to testify. Defense counsel

asked Lucas what Parker told him about the crash when they talked at the scene, and Murray

asserted a hearsay objection. Defense counsel responded, “Judge, this would be potentially

an admission against interest, but this would be information obtained during the course of

his investigation.” The court overruled Murray’s objection, and Lucas testified, “I asked

[Parker] what happened. He stated to me that the car come in on him and he swerved right

5 to avoid the car.” Lucas testified that when he asked Murray what happened, “she replied

she did not know.”2

¶11. Lucas subsequently testified without objection that he concluded that Murray’s car

entered the southbound lane prior to the crash. Lucas testified that he based his conclusion

on the location of debris; tires marks to the west of the highway, which indicated that Parker

left the road in an effort to avoid Murray’s car; the fact that Murray’s car came to a final stop

on the west side of the highway; and the statements of the drivers involved. Lucas’s

photographs of the crash scene and debris were admitted into evidence.

¶12. Finally, over Murray’s objection, the UCR that Lucas prepared was admitted into

evidence. The final page of the report includes a diagram and narrative that reflect Lucas’s

conclusions that Murray’s car crossed the center line and caused the collision and that

Parker’s truck never crossed the center line.

¶13. Lucas was the defendants’ only witness. Following jury instructions and closing

arguments, the jury returned a 9-3 verdict for the defendants.3 Murray filed a motion for a

new trial, which was denied, and a notice of appeal.

ANALYSIS

2 Murray testified at trial that she was still disoriented when she talked to Lucas at the crash scene and that she could not remember what she told him. 3 See Miss. Const. art. 3, § 31 (“[T]he Legislature may, by enactment, provide that in all civil suits tried in the circuit . . . court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.”); Miss. Code Ann. § 13-5-93 (Rev. 2019) (“In the trial of all civil suits in the circuit . . . courts of this state, nine or more jurors may agree on the verdict and return it into court as the verdict of the jury.”); M.R.C.P. 48(a) (“Jurors in circuit . . . court actions shall consist of twelve persons, plus alternates . . . . A verdict or finding of nine or more of the jurors shall be taken as the verdict or finding of the jury.”).

6 ¶14. Murray argues that the trial judge erred (1) by allowing Trooper Lucas’s hearsay

testimony about Parker’s statement at the crash scene; (2) by allowing defense counsel to

read from the UCR’s narrative section during his cross-examination of Hannah and by then

admitting the entire UCR into evidence; (3) by allowing Trooper Lucas to opine as to the

cause of the crash; and (4) by allowing defense counsel to cross-examine Hannah about an

opinion and evidence in other cases in which Hannah testified or in which his testimony was

excluded. We address these issues in turn below.

I. The trial court abused its discretion by admitting Trooper Lucas’s hearsay testimony.

¶15. As noted above, defense counsel asked Trooper Lucas what Parker told him at the

crash scene. In response to a hearsay objection, defense counsel asserted that Parker’s out-

of-court statement “would potentially be an admission against interest” or would be

“information obtained during the course of [Lucas’s] investigation.” The trial court

overruled the hearsay objection, and Lucas testified that Parker told him that Murray’s “car

[came] in on him and he swerved right to avoid the car.”

¶16. Parker’s statement plainly was not an “admission against interest.” Parker told Lucas

that Murray caused the wreck. The statement was a self-serving one in Parker’s interest.4

¶17. On appeal, the defendants argue that Lucas’s testimony was admissible under

Mississippi Rule of Evidence 803(6), an exception to the hearsay rule for “Records of a

4 We note that Lucas’s answer to the question was not a surprise. Lucas previously gave the same answer when he was asked the same question in his deposition. Lucas also talked to defense counsel in person or by telephone on other occasions and provided the defendants with an affidavit contradicting Hannah’s claim about a gouge mark.

7 Regularly Conducted Activity.” However, Lucas’s trial testimony was not a “record.” Lucas

simply repeated on the witness stand what Parker had said on the side of the road. Parker’s

statement was not memorialized in any record. Moreover, even if Parker’s statement had

been memorialized, it still would not have been admissible under Rule 803(6). That

exception to the hearsay rule does not necessarily permit the introduction of “all the contents”

of a record of a regularly conducted activity. Copeland v. City of Jackson, 548 So. 2d 970,

975 (Miss. 1989). Mere “recitations of statements of others” (i.e., hearsay within hearsay)

are not admissible simply just because they are written down or typed in such a record. Id.

at 975-76. Our Supreme Court has explained:

[T]he source of the material [contained in the record] must be an informant with knowledge who is acting within the course of the regularly conducted activity. This is exemplified by the leading case of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), which is still the applicable law today under [Rule 803(6)]. That case held that a police report which contained information obtained from a bystander was inadmissible; the officer qualified as one acting in the regular course of a business, but the informant did not.

Minnick v. State, 551 So. 2d 77, 88-89 (Miss. 1988) (quoting M.R.E. 803(6) cmt.), rev’d on

other grounds, 498 U.S. 146 (1990), and overruled on other grounds by Willie v. State, 585

So. 2d 660, 681 (Miss. 1991).

¶18. Here, Parker was not acting in the course of any regularly conducted activity when he

gave Lucas his version of the wreck. Therefore, his statement to Lucas would not have been

admissible under Rule 803(6) even if it had been recorded, which it was not. A motorist’s

out-of-court statement to a law enforcement officer giving his or her own version of a wreck

8 is hearsay and may not be admitted in support of his or her own case.5 Swaggart v. Haney,

363 So. 2d 251, 254-56 (Miss. 1978); Gen. Motors Corp. v. Jackson, 636 So. 2d 310, 342

(Miss. 1992). The trial court erred by overruling Murray’s objection and permitting Lucas

to give inadmissible hearsay testimony.

II. The trial court abused its discretion by admitting the Uniform Crash Report into evidence and by allowing defense counsel to use the report’s narrative to cross-examine Murray’s expert.

¶19. On appeal, Murray argues that the trial court erred by admitting into evidence the

entire UCR, including its narrative and a diagram reflecting Trooper Lucas’s opinions

regarding the vehicles’ paths and the cause of the crash, and by allowing defense counsel to

cross-examine Murray’s expert regarding the narrative section of the UCR. The trial court

ruled that the UCR was admissible and that such cross-examination was permissible based

on the Mississippi Supreme Court’s decision in Rebelwood Apartments LP v. English, 48 So.

3d 483, 491-94 (¶¶35-47) (Miss. 2010), which applied the exception to the hearsay rule for

“public records” found in Mississippi Rule of Evidence 803(8). We begin with a discussion

of the Rebelwood case and then separately address the admissibility of the UCR and its use

on cross-examination.

A. Rebelwood

¶20. Rebelwood was a premises-liability/wrongful-death suit against an apartment complex

(Rebelwood). Id. at 485 (¶1). The decedent, Crystal Coleman, lived at Rebelwood, and her

5 Of course, a statement by an opposing party that “is offered against [that] party” is not hearsay. M.R.E. 801(d)(2) (emphasis added). Thus, defense counsel properly asked Lucas what Murray told him. However, the defendants could not ask Lucas to repeat Parker’s own self-serving version of events.

9 body was found in the passenger seat of her car in Rebelwood’s parking lot. Id. at (¶2). She

had died from a gunshot wound. Id. Coleman’s father, Dwight English, sued Rebelwood,

alleging that it failed to provide adequate security. Id. at (¶1). However, Cleveland Ellis, an

acquaintance of Coleman, had confessed to police and to his family that he killed Coleman

at another apartment complex (Woodbine Terrace) before driving Coleman’s body to

Rebelwood. Id. at (¶2). The Jackson Police Department (JPD) also obtained physical

evidence and other witness statements that corroborated Ellis’s confessions. Id. Prior to trial

in the civil case against Rebelwood, English filed a motion to exclude all JPD reports,

arguing that the reports contained inadmissible and prejudicial hearsay. Id. at (¶3). The trial

court agreed and granted the motion. Id. at (¶5).

¶21. At trial, English presented testimony from fact witnesses that “varied significantly

from [their prior] statements to JPD officers during the investigation.” Id. at (¶6). In

addition, two of English’s expert witnesses “testified that it was a fact that the shooting

occurred at Rebelwood.” Id. at 489 (¶27). Another of English’s expert witnesses, Tyrone

Lewis, then Deputy Chief of JPD, went so far as to testify that there was “no documentation,

no written statements or anybody to come forward to say that it did not happen at

Rebelwood.” Id. (brackets omitted). Nonetheless, based on the trial court’s in limine ruling,

“JPD investigating officers . . . were severely limited in their testimony,” and Rebelwood was

not allowed to cross-examine English’s experts regarding the findings of JPD’s investigation

and reports. Id. at 490-92, 494 (¶¶30, 35, 37-38, 47). The jury returned a $3,000,000 verdict

against Rebelwood. Id. at 486 (¶7).

10 ¶22. On appeal, the Supreme Court addressed two issues related to the JPD reports: (1)

whether the reports were admissible as substantive evidence, and (2) whether Rebelwood was

entitled to use the reports to cross-examine English’s experts. Id. at 491-94 (¶¶35-47).6 As

to the first issue, the Supreme Court stated that “[e]ven though police reports, if offered in

evidence to prove the truth of the matter asserted are hearsay . . . , they may be admissible

under the hearsay exception in Rule 803(8).” Id. at 491 (¶36) (citing Beech Aircraft Corp.

v. Rainey, 488 U.S. 153, 162 n.6, 167-68 (1988)). Rule 803(8) provides that a “record or

statement of a public office” is “not excluded by the rule against hearsay” if

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or

(iii) in a civil case or against the prosecution in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

M.R.E. 803(8). Thus, a “conclusion in a police report may be admitted if ‘based on a factual

investigation and it satisfies the Rule’s trustworthiness requirement.’” Rebelwood, 48 So.

3d at 493 (¶42) (brackets omitted) (quoting Fleming v. Floyd, 969 So. 2d 881, 885 (¶18)

(Miss. Ct. App. 2006), rev’d on other grounds, 969 So. 2d 868 (Miss. 2007)).

6 The trial court in the present case correctly recognized that although the Rebelwood opinion addresses these two issues together under a single heading, “it really talks about these police reports being used in two different ways,” i.e., as substantive evidence and “in cross-examination of the expert.”

11 ¶23. In Rebelwood, the Supreme Court concluded that the JPD reports at issue were

trustworthy because

Ellis’s statements to his mother, uncle, and cousin and his confession at the police station were consistent, were made soon after the crime, and were against his penal interest. The police statement was voluntary and was made after he had been apprised of his rights. The location of the shooting was neither exculpatory or inculpatory. Ellis had no reason to lie about the location, as he would not have known about this civil suit and any effect the location might have. His statement was corroborated by similar statements to his mother, cousin, and uncle. The similar statements to each were corroborated by separate statements taken from each of them. Physical evidence [also] corroborated the statements . . . .

Id. at 493 (¶43) (footnote omitted).

¶24. The Rebelwood Court also noted that in Beech Aircraft, supra, the United States

Supreme Court identified four factors that may be relevant to a report’s “trustworthiness”:

“(1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether

a hearing was held; and (4) possible bias when reports are prepared with a view to possible

litigation.” Rebelwood, 48 So. 3d at 493 (¶44) (quoting Beech Aircraft, 488 U.S. at 168

n.11). The Rebelwood Court found that those factors collectively supported the admission

of the JPD reports. Id. The Court ultimately held that the trial court abused its discretion by

“failing to perform a trustworthiness analysis before excluding the police report in its

entirety.” Id. at 494 (¶47).

¶25. The Supreme Court also held that the trial court abused its discretion by prohibiting

Rebelwood from using the JPD reports to cross-examine English’s experts. Id. On that

issue, the Court emphasized that “English’s experts testified that they had relied on portions

of the police reports to formulate their opinions, but Rebelwood was prohibited from

12 effective cross-examination designed to impeach their opinions by revealing the contents of

the reports they allegedly relied on.” Id. at 491 (¶38). For example, Lewis was allowed “to

testify with impunity and without fear of exposure” that he had read the JPD reports and that

there were no witness statements or other evidence indicating that the shooting occurred

anywhere other than Rebelwood. Id. at 492 (¶39). However, Rebelwood was prohibited

from cross-examining Lewis about the contents of the JPD reports, which would have shown

his testimony to be false. The Supreme Court concluded that the trial court’s ruling “left [the

jury] with a false impression” about the JPD reports, “violated the purpose” of the Rules of

Evidence (i.e., to determine “the truth”), and denied Rebelwood “a fundamentally fair

opportunity to cross-examine” English’s witnesses. Id.

B. The UCR’s narrative and diagram are not admissible under Rebelwood or Rule 803(8).

¶26. Murray argues that the trial court abused its discretion by admitting the UCR,

including the narrative and diagram reflecting Trooper Lucas’s opinions, into evidence. The

trial court admitted the UCR during the testimony of Trooper Lucas after concluding that it

satisfied Rule 803(8)’s “trustworthiness” requirement.

¶27. During a hearing outside the presence of the jury, defense counsel initially sought to

qualify Trooper Lucas as an expert in the field of “accident investigation,” which counsel

argued was a recognized field of expertise distinct from accident reconstruction. Defense

counsel did not claim that Lucas was qualified to testify as an expert in accident

reconstruction. Rather, defense counsel stated that he was attempting to qualify Lucas as an

expert in “accident investigation” because he thought that was necessary to admit the

13 opinion-based portions of the UCR under the “trustworthiness” analysis of Rule 803(8) and

Rebelwood, supra. However, the trial court concluded that whether the UCR was

“trustworthy” was a “completely different” issue than whether Lucas was qualified to testify

as an expert under Mississippi Rule of Evidence 702. The trial court ultimately ruled:

[Rebelwood] says that, even though police reports, if offered into evidence to prove the truth of the matter asserted, are hearsay, they can be an exception under Rule 803(8).

The four factors that the case says to consider in making a trustworthiness determination [are] the timeliness of the investigation, which occurred within two hours of the incident.

The investigator’s skill or experience. He’s been a trooper for 24 years, I believe he said, and investigated, I don’t know how many accidents.

Whether a hearing was held, which we’re doing now.[7]

And possible bias when reports are prepared in view of possible litigation. I don’t see where this witness . . . would be biased one way or another.

I don’t really like it because I think it’s a way of getting in hearsay evidence, but based on this case, which says you’re supposed to do that trustworthiness analysis, I find that . . . it is trustworthy.

Based on the above analysis, the trial court ruled that the UCR, including its narrative and

7 A hearing during trial on the admissibility of the report is not the type of hearing contemplated by the Rebelwood/Beech Aircraft factors. Beech Aircraft adopted its four factors from the advisory committee’s note to Federal Rule of Evidence 803. See Beech Aircraft, 488 U.S. at 168 n.11. The advisory committee note states that one factor to be considered was “whether a hearing was held and the level at which [the hearing] was conducted.” F.R.E. 803 advisory committee’s note (citing Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944)). Franklin, in turn, makes clear that the type of hearing that may be an indicia of trustworthiness is a hearing held by the issuing agency that serves as a basis for the agency’s findings in the report. Franklin, 141 F.2d at 572. A hearing during trial years later does not make the agency’s findings any more or less trustworthy. There were not any hearings before Trooper Lucas completed the UCR in this case.

14 diagram, was admissible under Rule 803(8).

¶28. This case raises a different issue than Rebelwood. The JPD reports in Rebelwood

compiled evidence gathered by the investigating officers and reached certain factual

conclusions. But the JPD reports did not offer expert opinions. The UCR in this case, in

contrast, includes not only evidence based on Trooper Lucas’s direct observations of the

crash scene but also a narrative and diagram that essentially reconstruct the subject crash

based on Lucas’s opinions as to how that crash occurred. This is a material difference

between this case and Rebelwood.

¶29. In Mitchell v. Barnes, 96 So. 3d 771 (Miss. Ct. App. 2012), this Court held that a law

enforcement officer who was not present at the time and place of a crash would have to be

qualified under Mississippi Rule of Evidence 702 as an expert in accident reconstruction

before she could offer opinions as to how the crash occurred or its cause. Id. at 779-80

(¶¶29-32). In addition, we held that the trial “court erred in allowing the portion of [the

officer’s] accident report containing her opinions.” Id. at 780 (¶33). We explained that “[t]o

allow the portion of the accident report containing Rule 702 expert opinions would simply

circumvent the” requirements of Rule 702. Id. Therefore, we held that “the portion of the

accident report containing Rule 702 opinion testimony [was] inadmissible unless [the officer

was first] qualified as an expert witness under Rule 702.” Id.

¶30. In Rhoda v. Weathers, 87 So. 3d 1067 (Miss. Ct. App. 2011),8 this Court applied

8 The Supreme Court granted certiorari in Rhoda and reversed this Court on an issue related to alleged discovery violations. Rhoda v. Weathers, 87 So. 3d 1036, 1037 (¶1) (Miss. 2012). However, the Supreme Court “affirmed” this Court on “[a]ll other issues,” including the issue discussed in the text. Id.

15 Rebelwood, supra, and Rule 803(8), and held that the trial court did not abuse its discretion

by excluding a UCR on the ground that the officer’s “investigation was insufficient to reach

a trustworthy conclusion as to fault in causing the accident.” Rhoda, 87 So. 3d at 1070 (¶11).

The officer in that case “had some training in accident reconstruction” but “did not do a

reconstruction for [the] accident” at issue. Id. at (¶14). It appeared that all the officer “did

was consider conflicting accounts of who was at fault” and make “a credibility

determination” based on the same evidence that the jury was asked to consider at trial. Id.

at (¶15). We held that the trial court did not abuse its discretion by excluding the officer’s

conclusions in his Uniform Crash Report as “unreliable.” Id.

¶31. In Redhead v. Entergy Mississippi Inc., 828 So. 2d 801 (Miss. Ct. App. 2001), this

Court applied Beech Aircraft, supra, and Rule 803(8), and affirmed the exclusion of part of

a county forester’s report in which the forester opined that power lines were the cause of a

fire on a tree farm. Id. at 809-10 (¶¶22-24). The trial judge ruled that the forester’s opinion

was inadmissible “because it was a conclusory opinion offered by a person not qualified to

offer such an opinion.” Id. at 809 (¶24). This Court agreed that the forester’s opinion “was

a statement given by a person not qualified to make such a statement, and could hardly be

considered trustworthy” under Beech Aircraft or Rule 803(8). Id. at 809-10 (¶24). This

Court concluded that the attempt to introduce the report “was basically an attempt by [the

plaintiff] to get around the fact [the forester’s] lay opinion had already been ruled

inadmissible.” Id. at 810 (¶24).9

9 The Supreme Court agreed with Redhead’s analysis of this issue in Jones v. State, 918 So. 2d 1220, 1231-32 (¶¶29-31) (Miss. 2005).

16 ¶32. In addition, in Fleming, supra, this Court addressed the admissibility of parts of an

accident report that reflected a police officer’s opinions as to the cause of the accident.

Fleming, 969 So. 2d at 886 (¶¶20-21). This Court stated:

[B]efore an alleged expert on accident reconstruction may be permitted to testify, the qualifications of that witness must be supported by evidence of actual expertise. A law enforcement officer may not have sufficient expertise even when having substantial experience in preparing reports on accidents. A police officer who is not qualified as an expert in accident reconstruction should not be allowed to state opinions on causation or fault in an accident. . . . The fact that [such an] opinion is in a business record[10] does not insulate that opinion from the same rules.

Though police officer Jones’s report was a business record, there was no evidence that Jones was qualified to give an opinion on causation. Thus, Jones’s opinions were not admissible as a business record.

Id. (citations omitted).11

¶33. Similarly, although Trooper Lucas had substantial experience investigating accidents

and preparing accident reports, there was no evidence that he was qualified as an expert in

accident reconstruction. Indeed, as noted above, the defense stated that they would not

attempt to qualify him as an expert in that field. Accordingly, Murray properly objected to

the admission of the UCR because that document’s narrative and diagram reflected Lucas’s

10 The Fleming Court analyzed the accident report as a “business record” under Rule 803(6), but the Court applied the same “trustworthiness” requirement applicable to public records under Rule 803(8). See Fleming, 969 So. 2d at 885 (¶18) (quoting Beech Aircraft, 488 U.S. at 170; Jones, 918 So. 2d at 1231 (¶29)). 11 The Supreme Court reversed this Court’s decision in Fleming on other grounds; however, the Supreme Court expressly “agree[d] with and adopt[ed]” this Court’s “analysis and conclusions” with respect to the admissibility of opinion evidence in the accident report. Fleming v. State, 969 So. 2d 868, 875-76 (¶21) (Miss. 2007). In addition, in Rebelwood, the Supreme Court cited this Court’s analysis in Fleming with approval. See Rebelwood, 48 So. 3d at 493 (¶42).

17 otherwise inadmissible opinions regarding the vehicles’ paths, causation, and fault. Lucas

was not qualified to offer such opinions. The admission of Lucas’s opinions through the

UCR improperly “circumvent[ed]” the requirements for expert opinions under Rule 702.

Mitchell, 96 So. 3d at 780 (¶33).

¶34. Under Rule 702, a witness may testify in the form of an expert opinion only if the

“witness . . . is qualified as an expert by knowledge, skill, experience, training, or education,”

his testimony will assist the trier of fact, and his testimony is “reliable.” M.R.E. 702; Miss.

Transp. Comm’n v. McLemore, 863 So. 2d 31, 35, 38 (¶¶7, 16) (Miss. 2003). Similarly,

under Rule 803(8), findings or conclusions in a public record are not admissible to the extent

that the “circumstances indicate a lack of trustworthiness.” M.R.E. 803(8)(B). While

perhaps not identical, these two issues are closely related. See Daubert v. Merrell Dow

Pharms. Inc., 509 U.S. 579, 590 n.9 (1993) (stating that Federal Rule of Evidence 702

requires “evidentiary reliability—that is, trustworthiness”). We conclude that an opinion that

would not be admissible under Rule 702 if offered in court by a live witness cannot be

deemed “trustworthy” and admitted under Rule 803 just because it is contained in a public

record. Because Trooper Lucas was not qualified as an expert in accident reconstruction, his

opinions on the paths of the subject vehicles and fault did not satisfy Rule 803(8)’s

trustworthiness requirement. Accordingly, the trial court abused its discretion by admitting

the UCR’s narrative and diagram. Mitchell, 96 So. 3d at 780 (¶33); Fleming, 969 So. 2d at

886 (¶¶20-21); Redhead, 828 So. 2d at 809-10 (¶24).

C. The defendants were not entitled to cross-examine Hannah regarding the UCR’s narrative.

18 ¶35. With respect to the cross-examination of Hannah, this case is also materially different

from Rebelwood. On cross-examination, defense counsel asked Hannah whether he “relied

upon [the UCR], at least in part, in formulating [his] opinions.” Hannah answered, “The

answer to that, yes, but the further of that would be it gave me a location, a date, a time, and

there were photographs taken that I used then and now.” Hannah’s testimony did not mislead

the jury or give a false impression about the UCR. Nor did Hannah did make any factual

claims that the UCR would have shown to be false. Nor did Hannah state or imply that

Trooper Lucas agreed with his opinions about how the wreck occurred or which driver was

at fault. Indeed, it seems safe to say that any accident reconstructionist would testify as

Hannah did—i.e., that he had reviewed and relied on the UCR for the basic facts regarding

the time and location of a crash, along with any photographs taken. That alone should not

open the door to cross-examination of the expert about otherwise inadmissible opinions

contained in the UCR.

¶36. As discussed above, the problem in Rebelwood was that the plaintiff’s experts gave

testimony that affirmatively misrepresented the JPD reports and the evidence that JPD had

gathered. Rebelwood, 48 So. 3d at 492 (¶39). As a result, the trial court’s ruling prohibiting

cross-examination about the JPD reports “left [the jury] with a false impression” about the

reports and underlying evidence and “denied [Rebelwood] a fundamentally fair opportunity

to cross-examine” the plaintiff’s experts. Id. Here, in contrast, Hannah’s testimony did not

give the jury a false impression regarding the UCR, and the defendants could have conducted

a full and fair cross-examination of Hannah without injecting Trooper Lucas’s opinions into

19 the case. There is no general right to cross-examine an opposing party’s expert about the

inadmissible opinions of a non-expert. Moreover, Hannah’s acknowledgment that he

reviewed or relied on the UCR did not open the door to cross-examination about otherwise

inadmissible parts of the UCR. Accordingly, we also conclude that the trial court abused its

discretion by allowing cross-examination of Hannah concerning Trooper Lucas’s opinions,

as reflected in the narrative and diagram sections of the UCR.

III. Murray waived any objection to Trooper Lucas’s opinion testimony.

¶37. Prior to trial, Murray filed a motion in limine to prohibit any mention of the

conclusions and opinions that Trooper Lucas expressed in the UCR. In a pretrial hearing,

defense counsel stated, “Candidly, Judge, there is a narrative component of the [UCR] where

Trooper Lucas essentially states his opinion as to what happened and does a little diagram.

I believe the law is clear until you qualify him as an expert in accident investigation, that

narrative portion can’t come in.” The court stated that it would “wait to rule on that” issue

until it came up during trial. The court also added, “[Lucas] may not be an expert, but he can

give lay opinions.”

¶38. During trial, as discussed above, the court first allowed defense counsel—over

Murray’s objection—to cross-examine Hannah about the substance of Lucas’s conclusions

and opinions. Next, the defendants called Lucas as a witness in their case-in-chief, and

Lucas testified, without objection, that he concluded that Murray’s vehicle had crossed the

center line of the highway and entered into Parker’s (southbound) lane prior to the collision.

Lucas testified that he based his opinion on the physical evidence at the crash scene and what

20 the two drivers told him. After Lucas had already testified to that opinion, the defense asked

that he be “qualified as an expert in the field of accident investigation.” Murray objected,

and a hearing outside the jury’s presence ensued. The court asked defense counsel why

Lucas needed to be qualified as an expert witness when he had already offered his opinion

without objection. Counsel responded that he wanted the UCR to be admitted into evidence,

and he believed that qualifying Lucas as an expert was necessary to satisfy “trustworthiness

requirement” of Rebelwood, supra, and Rule 803(8).

¶39. The trial court then asked Murray’s attorney to respond. The court observed that

counsel “didn’t object when . . . [Lucas] said it was his opinion that the northbound vehicle

crossed over in the southbound lane.” Murray’s attorney responded, “Your Honor, first of

all, this has actually already been ruled on and it was denied. But this witness can—he can

testify to lay opinions. That’s permissible under the rules. But he cannot qualify as an expert

accident reconstructionist, number one, because he said it himself, he’s not.” Later, Murray’s

attorney stated, “Your Honor, . . . you said that he could testify about [his ‘lay opinion’].

You have been consistent with that part of it.” Murray also argued that “accident

investigation” was not a recognized field of expertise under Rule 702.

¶40. On appeal, Murray argues that “[t]he trial court erred in allowing Trooper Lucas to

opine as to the cause of the accident” because Lucas “was neither an expert nor an accident

reconstructionist.” However, Lucas testified to that opinion without objection. As stated

above, the trial court expressly reserved ruling on this issue prior to trial, stating that he

would “wait to rule” on it until it came up during the trial. The judge did add that Lucas

21 could “give lay opinions” even if he was not an “expert witness,” but there was no discussion

or any specific ruling as to what sort of “lay opinions” would be permitted.12

¶41. In the absence of a definitive ruling in advance of trial, Murray was required to make

a contemporaneous objection during Lucas’s testimony. M.R.E. 103 advisory committee

note (“[W]hen the trial court has reserved its ruling [on a motion in limine] or has indicated

that the ruling is provisional,” the objecting party must “bring the issue to the court’s

attention subsequently.”). We conclude that Murray waived any objection to Lucas’s

testimony by failing to make such an objection. Canadian Nat’l/Ill. Cent. R.R. Co. v. Hall,

953 So. 2d 1084, 1096-97 (¶42) (Miss. 2007).

IV. The trial court abused its discretion by permitting the defendants to cross-examine Hannah about a judicial opinion in another case and the evidence in two other cases.

¶42. Murray finally argues that the trial court erred by allowing defense counsel to cross-

examine Hannah about a judicial opinion and evidence in prior cases in which Hannah

testified or his testimony had been excluded. Over objection, defense counsel was allowed

to ask Hannah if he knew whether the court in Burnham (see supra note 1) “struck

[Hannah’s] opinions as not being sufficiently tied to the facts or evidence in the record so as

to be admissible.” Over objection, defense counsel also was allowed to cross-examine

Hannah about eyewitness testimony and other evidence in two other cases that allegedly

contradicted Hannah’s opinions in those cases.

12 Murray may have thought it pointless to object to Lucas’s opinion testimony given that the court had already allowed the defense to cross-examine Hannah about Lucas’s opinions. However, Murray did not make that argument at trial or on appeal.

22 ¶43. An expert witness is subject to “wide-open cross-examination” on “any matter that

is relevant.” Redding v. Miss. Transp. Comm’n, 169 So. 3d 958, 964 (¶21) (Miss. Ct. App.

2014) (quoting Anthony v. State, 108 So. 3d 394, 397 (¶6) (Miss. 2013)); see also M.R.E.

611(b) (“The court may not limit cross-examination to the subject matter of the direct

examination and matters affecting the witness’s credibility.”); M.R.E. 616 (“Evidence of a

witness’s bias, prejudice, or interest—for or against any party—is admissible to attack the

witness’s credibility.”). For example, an expert may be cross-examined about how often he

testifies and what percentage of his testimony is for plaintiffs or defendants. See Wright v.

Turan-Foley Motors Inc., 269 So. 3d 160, 168-69 (¶33) (Miss. Ct. App. 2018). In addition,

it is entirely proper to impeach an expert witness by showing that he has offered inconsistent

opinions in prior litigation. See 1 McCormick on Evidence § 35 (8th ed. 2020) (“If a witness,

such as an expert, testifies in terms of opinion, all courts permit impeachment by showing

the witness’s previous expression of an inconsistent opinion.”).

¶44. The issue in this case is significantly different. The question here is whether a witness

whose testimony has survived a Daubert/McLemore13 challenge and who the trial court has

deemed qualified to testify as an expert may be cross-examined at trial about a ruling in

another case in which another court excluded his testimony under Daubert or McLemore.

The parties have not cited and we have not found any Mississippi precedent that is on point.

However, we find persuasive the reasoning of a federal district court that addressed the same

13 Daubert, 509 U.S. at 588-95 (holding that expert testimony is admissible under Federal Rule of Evidence 702 if it assists the trier of fact and is reliable); McLemore, 863 So. 2d at 38 (¶16) (holding that Mississippi Rule of Evidence 702 requires the same).

23 issue. Estate of Thompson v. Kawasaki Heavy Indus. Ltd., 933 F. Supp. 2d 1111, 1152 (N.D.

Iowa 2013). The court in that case had already denied a pretrial motion to exclude the

expert’s testimony. Id. The court reasoned that any “attempt to present a Daubert ruling of

another court . . . would be an attempt to circumvent [this court’s] role as the ‘gatekeeper’

in this case by asking the jurors to substitute . . . the judgment of another court, in another

case, about whether or not an expert is qualified.” Id. The court also reasoned that “allowing

such evidence would, inevitably, result in delay, while the parties conduct a ‘mini-trial’ over

the issues” in the prior case, the expert’s testimony in the prior case, the reasons that the other

court excluded his testimony, and the differences between the two cases. Id.

¶45. We agree with this reasoning. Trial courts routinely instruct juries not to infer

anything from the court’s rulings on motions or objections. See, e.g., Trigg v. State, 803 So.

2d 1229, 1236 (¶20) (Miss. Ct. App. 2002). Certainly, then, juries should not be asked to

infer anything from evidentiary rulings by other courts in other cases. The federal district

court in Burnham, supra, was critical of Hannah’s opinions in that case and ruled that they

were not admissible because they were not sufficiently tied to the facts of that case. To be

sure, Hannah’s testimony in Burnham involved similar issues related to a “gouge mark,” and

the defendants properly relied on the Burnham opinion as persuasive authority in support of

their motion to exclude Hannah’s testimony in this case. However, once the trial court ruled

that Hannah could testify in this case, the opinion in Burnham was not a proper subject of

cross-examination before the jury because its only purpose was to ask the jury to substitute

the judgment of another court for the ruling of the trial court in this case. We conclude that

24 the trial court abused its discretion by allowing cross-examination about the Burnham

opinion because it had no relevance to the present case and yet created a risk of unfair

prejudice, misleading the jury, and confusing the issues. M.R.E. 401-403.14

¶46. We reach the same conclusion regarding questions about alleged contradictions

between Hannah’s opinions in two other cases and eyewitness testimony or other evidence

in those cases. The purpose of those questions was not to show that Hannah’s opinions in

the present case were somehow inconsistent with his testimony in prior cases. That would

have been a proper method of impeachment, see 1 McCormick on Evidence, supra, § 35, but

the defendants do not make any such claim. Rather, the apparent purpose of the questions

was to suggest that Hannah had given opinions in other cases that were faulty. Murray’s

objection to these questions should have been sustained because the questions had no

relevance to Hannah’s opinions in this case. The defendants have a right to cross-examine

Hannah vigorously to expose faulty or unsupported assumptions and flawed reasoning or

methods, but their vigorous cross-examination of him must still relate to his “opinions in this

case, based on his reasoning, methodology, and the facts and assumptions on which he relied

14 The partial dissent argues that the cross-examination in this case was comparable to the questions permitted in Nagle v. Gusman, No. 12-1910, 2016 WL 9411379, at *1 (E.D. La. Mar. 3, 2016). See post at ¶¶57-58 & n.18. We respectfully disagree. In Nagle, the cross-examination concerned another court’s factual findings that were “probative of [the expert’s] potential bias” because the findings “arguably demonstrate[d]” that the expert was “willing[] to disregard . . . evidence in order to achieve a desired result.” Nagle, 2016 WL 9411379, at *1. That ruling seems correct to us. Cross-examination to show bias is entirely proper. See M.R.E. 616. Here, in contrast, defense counsel cross-examined Hannah about another court’s Daubert ruling, i.e., “whether the [Burnham] [c]ourt struck [Hannah’s] opinions as not being sufficiently tied to the facts or evidence in the record so as to be admissible.” For the reasons explained in Estate of Thompson, supra, such a ruling is not a proper subject of cross-examination.

25 in this case.” Estate of Thompson, 933 F. Supp. 2d at 1152.

V. Murray is entitled to a new trial based on the cumulative effect of errors during the first trial.

¶47. We will not reverse a judgment entered on a jury verdict because evidence was

admitted or excluded in error unless the error actually prejudiced a party or adversely

affected a party’s substantial rights. Ill. Cent. R.R. Co. v. Brent, 133 So. 3d 760, 779 (¶42)

(Miss. 2013). Under the harmless error doctrine, “if the weight of the evidence . . . is

sufficient to outweigh any harm done by [the error] then reversal is not warranted.” Id.

(quotation marks and brackets omitted); accord M.R.C.P. 61. However, there is a corollary

to the harmless error doctrine. Under the cumulative error doctrine, multiple errors that

individually are not reversible “may constitute reversible error if the cumulative effect of the

errors resulted in an unfair trial.” Lacoste v. Lacoste, 197 So. 3d 897, 913 (¶58) (Miss. Ct.

App. 2016) (citing Blake v. Clein, 903 So. 2d 710, 732 (¶68) (Miss. 2005)).

¶48. In this appeal, we have identified four errors in the trial: (1) the admission of Trooper

Lucas’s hearsay testimony about what Parker said at the crash scene, (2) the admission of the

UCR, (3) the cross-examination of Hannah about Lucas’s opinions, as reflected in the UCR’s

narrative, and (4) the cross-examination of Hannah about the court’s opinion in the Burnham

case and evidence in two other unrelated cases.

¶49. The defendants argue that “at the very worst, the issues complained of in this appeal

amount to nothing more than harmless error” because Murray’s “own expert witness

ultimately testified . . . that the collision occurred within . . . Parker’s southbound lane of

26 traffic, and that [Murray], not [Parker], crossed the centerline and caused the accident.”15 In

essence, the defendants argue that any error was harmless because the trial court could have

directed a verdict based on Hannah’s testimony regarding the location of the accident.

¶50. We disagree. Murray denied that she crossed the centerline, and she testified that her

vehicle was in her lane when the crash occurred. A jury could have credited her testimony

on this issue rather than Hannah’s opinion. The jury was not required to accept Hannah’s

testimony regarding the location of the collision. The weight and credibility of witnesses’

testimony, including expert testimony, is for a jury to determine, and a jury is free to accept

parts of an expert’s testimony even while rejecting other parts. Knight v. Clark, 283 So. 3d

1111, 1119 (Miss. Ct. App. 2019), cert. denied, 283 So. 3d 735 (Miss. 2019). Indeed, there

was ample reason for the jury to reject Hannah’s testimony regarding the location of the

collision because Hannah based his opinion entirely on the location of an alleged “gouge

mark” that only Hannah saw and failed to photograph. The jury could have concluded that

Hannah’s testimony on this point was baseless because there was no evidence that the alleged

gouge mark had anything to do with the subject crash.16

¶51. With respect to Trooper Lucas’s hearsay testimony about Parker’s post-crash

statement, our Supreme Court has concluded that such an error is not “harmless” just because

15 This is not an entirely accurate summary of Hannah’s testimony. Hannah opined that both vehicles crossed the center line, and he concluded that Parker was at fault in causing the accident. 16 The defendants did not cross-appeal the pretrial ruling denying their motion to exclude or limit Hannah’s testimony. Therefore, we do not address whether Hannah should be allowed to testify about the alleged gouge mark at a new trial.

27 it is “cumulative” of the driver’s own in-court testimony. Swaggart, 363 So. 2d at 255. In

Swaggart, a deputy sheriff testified that a few days after a two-vehicle wreck, one of the

drivers involved (Haney) gave a statement that the other vehicle was on the wrong side of

the road and caused the crash. Id. at 255. On appeal, the Supreme Court held that the trial

court committed reversible error by overruling an objection to the testimony. Id. The

Supreme Court reasoned that the error was not harmless because the deputy’s testimony

addressed “a highly disputed and hotly contested question of fact as to how the accident

occurred,” and because the trial court improperly “allow[ed] . . . Haney’s out-of-court

testimony to supplement his in-court testimony making his testimony double-barrelled in the

sense that it came from two witnesses, one of them a law officer.” Id. The Supreme Court

acknowledged that the deputy’s hearsay testimony was “cumulative” in a sense, but the Court

concluded that “coming from a witness (deputy sheriff) wearing the badge of the law, it

could very likely have been given more weight and worth than it would have had it come

from only [Haney] himself.” Id. The Court further stated:

[T]he issue of which driver was negligent was a very close factual question, making the [deputy’s] testimony of greater significance than would be the case if the proof were overwhelming that Haney did not invade [the other driver’s] traffic lane. The absence of any eye-witness to the collision (except [the two drivers]) added to the likelihood that the [deputy’s] testimony improperly influenced the jury.

Id. at 255-56.

¶52. The defendants attempt to distinguish Swaggart on the ground that the evidence in this

case supposedly was “overwhelming” that Murray invaded Parker’s lane. The defendants

again rely on the fact that Murray’s own expert testified that the collision occurred slightly

28 within the southbound lane. However, as discussed above, the jury was free to reject

Hannah’s testimony regarding the location of the collision, which was based entirely on the

undocumented gouge mark. Apart from Hannah’s gouge-mark testimony, the fact dispute

in this case essentially mirrored the fact dispute in Swaggart: there were no eyewitnesses

other than the two drivers, whose testimonies were in conflict. In addition, there is the same

risk that Trooper Lucas’s hearsay testimony carried greater weight than either of the drivers’

testimonies and “improperly influenced the jury.” Id. Moreover, it would be difficult, if not

impossible, for us as an appellate court to say that the evidence was “overwhelming”—or to

declare with confidence that the error was “harmless”—when we know that three of the

twelve jurors, who listened to and observed the witnesses firsthand, found in favor of Murray

despite the admission of hearsay that improperly bolstered Parker’s testimony.

¶53. Finally, when assessing possible prejudice to Murray, we must take into account not

only the improperly admitted hearsay but also the error in admitting the UCR and the

improper cross-examination of Hannah. See Lacoste, 197 So. 3d at 913 (¶58); Blake, 903

So. 2d at 732 (¶68). Given the divided jury verdict, we cannot say that the evidence was so

overwhelming that the cumulative effect of these errors can be dismissed as harmless.

Accordingly, we conclude that the judgment must be reversed and the case remanded for

further proceedings consistent with this opinion and a new trial.

CONCLUSION

¶54. Based on the cumulative effect of errors in the first trial, Murray is entitled to a new

trial. We do not address the admissibility of Trooper Lucas’s opinion testimony because

29 Murray waived that issue by failing to obtain a definitive ruling on her pretrial motion in

limine and by not objecting during trial. If that issue arises again in the context of a new

trial, the court should consider the relevant caselaw discussed in Part II.B, supra. We also

do not address the admissibility of Hannah’s testimony regarding the alleged gouge mark

because the defendants did not file a cross-appeal on that ruling. The trial court may revisit

that issue if it arises again on remand.

¶55. REVERSED AND REMANDED.

BARNES, C.J., WESTBROOKS, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J. McCARTY, J., NOT PARTICIPATING.

CARLTON, P.J., CONCURRING IN PART AND DISSENTING IN PART:

¶56. I agree with the majority’s decision with respect to the first three issues discussed

above, namely that the trial court abused its discretion (1) by allowing Trooper Lucas’s

hearsay testimony about Parker’s statement at the crash scene; (2) by allowing defense

counsel to read from the UCR’s narrative section during his cross-examination of Hannah

and by then admitting the entire UCR into evidence; and (3) by allowing Trooper Lucas to

opine as to the cause of the crash. I also find that reversal and remand is necessary due to

the cumulative effect of these errors. Therefore, I concur in part and in the result with

respect to these issues.

¶57. However, I do not agree with the majority’s determination that the trial court abused

its discretion by permitting the defendants to cross-examine Hannah (the plaintiff’s expert)

30 about a judicial opinion in another case, namely the Burnham decision.17 The majority

believes that this was improper because “once the trial court ruled that Hannah would be

allowed to testify in this case, the opinion in Burnham was not a proper subject of

cross-examination before the jury because its only purpose was to ask the jury to substitute

the judgment of another court for the ruling of the trial court in this case.” Maj. Op. at ¶45.

Because there is no Mississippi caselaw on this particular point, the majority relies on Estate

of Thompson, 933 F. Supp. 2d at 1152, in support of its analysis. I find the analysis in Nagle

v. Gusman, No. 12-1910, 2016 WL 9411379 (E.D. La. Mar. 3, 2016), more persuasive.

¶58. In Nagle, the federal district court allowed defendants to cross examine the plaintiffs’

expert (Dr. Schwartz) about another court’s “findings [in Hudson v. Preckwinkle, No. 13 C

8752, 2015 WL 1541787 (N.D. Ill. March 31, 2015),] regarding Dr. Schwartz’s objectivity

as an expert.” Nagle, 2016 WL 9411379, at *1. As the Nagle court explained, the Hudson

case was “another inmate lawsuit regarding prison conditions,” and the court in Hudson

“accorded ‘little weight’ to Dr. Schwartz’s expert opinion due to his ‘heavy reliance’ on

unsworn, self-serving statements by prison inmates and summary statements written by the

lawyers who hired him.” Id. (citing Hudson, 2015 WL 1541787, at *11).18 Given the

17 For the reasons stated in the majority opinion, I agree that it was an abuse of discretion for the trial court to allow defense counsel to cross-examine Hannah about alleged contradictions between Hannah’s opinions in two other cases and eyewitness testimony or other evidence in those cases. The record reflects that these cases do not appear to concern Hannah’s testimony regarding gouge marks or any other relevant similarities to Hannah’s opinions in this case. 18 I recognize that Hudson is not a case in which the court excluded the expert’s opinions under Daubert. Rather, in Hudson the district court denied the defendants’ Daubert motion to exclude Dr. Schwartz’s opinions, but at the preliminary injunction

31 similarities between Hudson and the case before it, the Nagle court found “that this evidence

regarding Dr. Schwartz’s experience in a prior lawsuit is relevant to his potential bias and

credibility as an expert witness in this case.” Id. Continuing, the court explained:

Dr. Schwartz’s conduct as an expert in the Hudson litigation (which involved allegations similar to plaintiffs’ claims here) arguably demonstrates Dr. Schwartz’s willingness to disregard the quality of evidence in order to achieve a desired result . . . . In addition, the supposed prejudicial effect of this line of questioning is not substantially unfair. See Scordill v. Louisville Ladder Grp. LLC, No. 02-2565, 2004 WL 307475, at *12 [(E.D. La. Feb. 17, 2004)] (“Use of previous exclusion of an expert’s testimony is permissible to impeach the credibility and credentials of the expert.”).

Id.

¶59. As the majority recognizes in this case, Burnham concerned “similar testimony by

Hannah that a gouge mark established the point of collision in a crash.” See Maj. Op. at ¶7

& n.1. Further, I do not find that the defendants’ use of Burnham in this case was unfairly

prejudicial. The jury was not specifically told that Hannah’s testimony had been excluded

by the federal district court in Burnham.19 Given these factors, and the broad scope of

hearing the court gave his opinions “little weight” for the reasons identified. See Hudson, 2015 WL 1541787, at *9-11. In contrast, the federal district court in Burnham excluded Hannah’s testimony that a gouge mark established the point of collision in a crash. However, I do not find that this is a distinguishing factor in this case. The relevant point to me is that Burnham arguably shows “[Hannah’s] willingness to disregard the quality of evidence in order to achieve a desired result,” Nagle, 2016 WL 9411379, at *1, which I find is a proper use of this opinion. I find that this is particularly true here because the jury was not told that Hannah’s testimony was excluded by the Burnham court, as I address above. 19 The questioning on this issue proceeded as follows:

Q. Mr. Hannah, in this Burnham case . . . . Do you have any knowledge whether the Court struck your opinions as not being sufficiently tied to the facts or evidence in the record so as to be admissible?

32 cross-examination of expert witnesses recognized under Mississippi law (as delineated in the

majority’s opinion in paragraph 43, above), I do not find that it amounted to an abuse of

discretion on the trial court’s part to allow plaintiff’s expert to be cross-examined on the

Burnham decision. For this reason, I dissent with respect to this particular issue.

GREENLEE, J., JOINS THIS OPINION.

A. I do not. What I do know is, I gave a deposition and I knew nothing else about the case, as I do in a lot of my cases.