Swiney v. Overby

377 S.E.2d 372, 237 Va. 231, 5 Va. Law Rep. 1754, 1989 Va. LEXIS 30

• Court: Supreme Court of Virginia
• Decided: March 3, 1989
• Docket: Record 870188
• Status: Published

Opinions

CARRICO, C.J.,

delivered the opinion of the Court.

On September 4, 1985, the defendant, Andrew Overby, pulled his pickup truck to the side of the highway as a funeral procession proceeded in the opposite direction. The rear end of the pickup truck partially blocked the roadway. The plaintiffs decedent, Bradley Lynn Swiney, was driving a loaded logging truck when it collided with the defendant’s pickup truck.

The plaintiff sought damages from the defendant for wrongful death of the plaintiffs decedent. The jury was instructed that the defendant was negligent as a matter of law and that the only issue was whether the plaintiffs decedent was guilty of contributory negligence. To support his contention of contributory negligence, the defendant introduced expert testimony that the sight distance for stopping was 590 feet and that the stopping distance was 271 feet. The jury returned a verdict for the defendant, upon which the trial court entered judgment.

The plaintiffs appeal is based on the admission of the expert testimony of Trooper Ralph Howell and Ronald Kirk regarding stopping distances. In calculating stopping distances, both experts used an assumed brake condition and speed.

The plaintiff argues that the testimony of these experts, which undertakes to reconstruct an event, should not have been admitted because it did not consider every variable impacting on the event. Specifically, the plaintiff maintains the actual condition of the truck’s brakes was unknown. Therefore, the plaintiff concludes, under Thorpe v. Commonwealth, 223 Va. 609, 292 S.E.2d 323 (1982), and Grasty v. Tanner, 206 Va. 723, 146 S.E.2d 252 (1966), “missing variables” exist and the experts’ opinions were therefore inadmissible speculation.

The defendant argues that Grasty does not demand the exclusion of the experts’ testimony. First, the defendant argues that the issue of stopping distance is beyond the general knowledge of the trier of fact and therefore appropriate for expert testimony. The defendant notes that Code § 46.1-195, Tables of Speed and Stopping Distances, reflects legislative recognition of the need for expert evidence on this issue. The Code states that: “All courts shall take notice of the [included] . . . tables of speed and stopping distances of motor vehicles . . . .” It follows then, the defendant contends, that once an individual has been qualified as an expert in the area of stopping distances, all his testimony is admissible, and that it is up to the trier of fact to determine the credibility and weight to be given the testimony.

We will assume, without deciding, that expert testimony may be admitted to establish stopping distances. Nevertheless, the defendant’s main premise is erroneous. Qualification of an expert witness does not insure admission of his every statement and opinion. Code § 8.01-401.1 allows an expert to express an opinion without initially disclosing the basis for the opinion and to base the opinion on hearsay evidence otherwise inadmissible. It does not, however, relieve the court from its responsibility, when proper objection is made, to determine whether the factors required to be included in formulating the opinion were actually utilized. Gaalaas v. Morrison, 233 Va. 148, 157, 353 S.E.2d 898, 903 (1987). If all the factors are not utilized, the court should exclude the opinion evidence. Mary Washington Hosp. v. Gibson, 228 Va. 95, 99, 319 S.E.2d 741, 743 (1984).

Expert testimony is appropriate to assist triers of fact in those areas where a person of normal intelligence and experience cannot make a competent decision. See, e.g., Richmond Newspapers v. Lipscomb, 234 Va. 277, 296, 362 S.E.2d 32, 42 (1987); Peter v. Shortt, 214 Va. 399, 404, 200 S.E.2d 547, 551 (1973); Grasty v. Tanner, 206 Va. at 726, 146 S.E.2d at 254. But a predicate substantially duplicating each factor impacting on the original event must be established because of the significant weight the jury may give to this sort of testimony. Hypothetical events, unrelated in any major particular to the original event, can have little probative value and must be disallowed because of their prejudicial and confusing impact on the fact finder.

There is no dispute that the actual condition of the decedent’s brakes was not in evidence and therefore could not have been utilized by either expert in formulating his opinion. This omission is clearly a “missing variable” and falls precisely within the holding of Grasty. Accordingly, we will reverse the judgment of the court below and remand the case for a new trial.

Reversed and remanded.