Mall v. Horton
Mall v. Horton
Opinion of the Court
*320Plaintiff appeals from a judgment entered against defendant for noneconomic damages for injuries that plaintiff had suffered as a result of a car accident. Defendant admitted liability and that plaintiff had been injured in the accident, but denied the extent of the injuries, and the parties proceeded to trial solely on the issue of noneconomic damages. Plaintiff assigns as error the trial court's disqualification of plaintiff's expert witness, Dr. Jonathan McClaren, as an expert *732in (1) biomechanical engineering
Plaintiff was injured in a car accident in which defendant's pickup truck collided with plaintiff's car. In a negligence lawsuit, plaintiff alleged, among other things, that he suffered personal injuries, including severe neck and back strains, headaches, contusions, and abrasions. For his part, defendant admitted negligence and admitted that plaintiff sustained injuries, but denied the extent of those injuries. Having separately litigated economic damages, the case proceeded to a jury trial solely on the issue of plaintiff's noneconomic damages.
Before trial began, defendant requested an OEC 104 hearing-specifically, a hearing to determine the preliminary question of McClaren's qualifications to testify *321as an expert witness-because he questioned McClaren's qualifications as an expert in biomechanical engineering and accident reconstruction. At the hearing, McClaren testified that he had been a licensed chiropractic physician for approximately six years, primarily focusing on treating patients involved in car accidents. He further testified that he held a certification in spinal biomechanical engineering, along with an advanced certification in whiplash biomechanics and injury traumatology. Whiplash biomechanics, McClaren explained, is "the application of the science and physics of mechanics to the biology of the human body" and involves how different "crash vectors" "impart forces into the human body" and how injuries may occur. McClaren also added that his certification in spinal biomechanical engineering is similar to the whiplash biomechanics credential but focuses on the mechanics of the spine other than those related to whiplash.
According to his testimony, McClaren's certifications required successful completion of several courses, some of which were online through medical schools, some of which were completed in person. On cross-examination, McClaren testified that he had been qualified to testify as an expert in biomechanical engineering once before in Washington County, but that he had not published anything or taught any courses on the subject.
Plaintiff argued that, although McClaren did not have extensive experience testifying, he had sufficient qualifications under OEC 702 to testify as a biomechanical expert. Plaintiff reasoned that, because the issue in this case is the extent of plaintiff's injuries and the extent of pain and suffering as a result of the car accident, McClaren's testimony would be helpful to "explain to the jury how this accident happened and how it impacted [plaintiff's] body."
In urging the trial court to conclude that McClaren was not qualified under OEC 702 to testify as a biomechanical engineering expert, defendant argued that McClaren's "testimony isn't going to be helpful to the jury. The jury can look at the pictures and tell this accident is capable of causing an injury to the plaintiff. We don't need a biomechanical explanation of that."
*322The trial court agreed with defendant's argument:
"You may be a fabulous chiropractor, may not be, I don't know. But it doesn't appear to me that he is an expert in biomechanics, and he will be prohibited from testifying as such."
*733The parties then turned to whether McClaren qualified as an expert in accident reconstruction. McClaren explained that accident reconstruction involves "using physical evidence and testimony of people involved to reconstruct what occurred during an accident," and that it allows him "to extrapolate from that what [his patient's] injuries might be so [he] can order the appropriate diagnostic imaging, appropriate exams, * * * and better treat [his] patients." McClaren testified that he held an accident reconstruction certification from the Accreditation Commission for Traffic Accident Reconstructionists (ACTAR) and that he took a continuing education course at the Washington Association of Technical Accident Investigators about "flashing yellow turn arrows, the mechanism of function, how to reconstruct accidents based on who was getting a yellow turn arrow, who was getting a green turn arrow, et cetera." He explained that his ACTAR certification required 160 hours of training in crash investigation and 80 hours of crash reconstruction training, as well as several other weekend courses before passing an eight-hour examination on the subject. McClaren also explained that you have to first apply to take the exam, which involves a "look at your experience and/or training to determine if you're eligible to sit." McClaren testified that he has been employed as an accident reconstructionist in three cases since receiving his certification-once in the litigation context, twice outside of litigation.
Plaintiff argued that McClaren qualified as an expert in accident reconstruction because, under OEC 702, McClaren need only have qualifications in any of the following areas: knowledge, skill, experience, training, or education. Defendant countered that McClaren should be excluded as an expert witness in accident reconstruction because, although he was accredited, he did not have the requisite professional experience within the field. The trial court agreed with defendant and excluded McClaren as an expert in accident reconstruction.
*323Plaintiff now appeals, arguing that the trial court erred in disqualifying McClaren as an expert in (1) biomechanical engineering and (2) accident reconstruction. We review for legal error whether a trial court properly applied OEC 702 in deciding whether an expert is qualified to testify. State v. Dunning ,
The admissibility of expert evidence generally involves the application of three rules in the Oregon Evidence Code: OEC 401, OEC 702, and OEC 403. Thoens v. Safeco Ins. Co. of Oregon ,
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."
Thoens ,
*324An expert is one that has acquired certain habits of judgment based on *734experience or special observation that enables him or her to draw from the facts inferences that are uniquely beneficial to the jury. State Highway Com. v. Arnold et al,
As explained below, we conclude that the trial court erred in concluding that McClaren was not qualified as an expert witness in the fields of biomechanical engineering and accident reconstruction. Plaintiff adduced sufficient evidence at the OEC 104 hearing to establish McClaren's expertise in the respective fields to qualify him as an expert under OEC 702.
Defendant argues, relying on cases like Myers and Dunning , that McClaren's qualifications fall short. We disagree. As an initial matter, as we have previously observed, an expert may be qualified under OEC 702 by "knowledge, skill, experience, training, or education." State v. Woodbury ,
In Myers , the defendant argued that his expert was qualified as an accident reconstruction analyst to offer an opinion on the probable cause of a plane crash.
Myers is unhelpful because it is distinguishable on its facts.
Dunning is also distinguishable. In Dunning , we held that it was legal error for the trial court to allow a police officer to testify as an expert on memory recall after traumatic *326events.
Here, neither McClaren's biomechanical engineering expertise nor his accident reconstruction expertise is derived from minimal personal experience and review of publications on the topic. First, with respect to biomechanical engineering, McClaren earned two different certificates in the field, both of which required successful completion of several courses, and he has previously been qualified as a biomechanical engineering expert. That education and experience is the stuff of expertise. We do not simply assume disqualification from the lack of a biomechanical engineering degree. See Rogers ,
Second, with respect to accident reconstruction, McClaren earned a certificate that required 160 hours of crash investigation training, 80 hours of crash reconstruction training, and a passing score on an eight-hour examination. Further, McClaren has been employed three times *327as an accident reconstructionist since receiving that certification. Under OEC 702, McClaren need only be qualified as an expert by "knowledge, skill, experience, training, or education," and his certifications and experience are sufficient to satisfy that liberal standard. Woodbury ,
Our conclusion that the trial court erred in disqualifying McClaren's testimony under OEC 702 does not end the inquiry. Not every evidentiary error requires reversal. Despite an evidentiary error, we will affirm the judgment if there is "little likelihood that the particular error affected the verdict." State v. Davis ,
As illuminated by the OEC 104 hearing, the parties understood McClaren's expert testimony to address how the accident occurred and how that type of accident would have affected plaintiff's body. Plaintiff argues *736that McClaren's testimony would be helpful to explain to the jury the particulars of the accident and how the accident affected the extent of plaintiff's injuries. Plaintiff further contends that "[t]estimony demonstrating to the jury how exactly the side-impact collision occurred, and how that side-impact affected the physical integrity of Plaintiff's spine differently than, for instance, a rear-end collision, would stand as strong evidence that the collision was more likely than not the cause of Plaintiff's prolonged pain and suffering." Defendant asserts that the trial court's exclusion of McClaren's testimony was harmless because there was no dispute about who was at fault for the accident or that the accident caused plaintiff injuries. Defendant also argues *328that, because photographs of the accident were admitted into evidence, the jury "was equally as capable as an accident reconstructionist of drawing conclusions that the motor vehicle accident was capable of causing a person physical injuries." We agree with plaintiff.
In a case where the only issue before the jury is the amount of noneconomic damages that plaintiff suffered, we cannot conclude that an expert opinion in biomechanical engineering or in accident reconstruction had little likelihood to affect the verdict. Although it is true that defendant admitted liability for the accident, the nature and extent of plaintiff's injuries from the accident was disputed at trial. For instance, plaintiff argued that there was a "tremendous impact" that caused significant pain and suffering, whereas defendant's expert, Dr. Mangum, testified that it was a "decent accident" and that it caused a "moderate" amount of damage. Further, McClaren's testimony as a biomechanical engineer and an accident reconstructionist would have been qualitatively different from his testimony in his capacity as a chiropractic physician. McClaren's testimony as a chiropractor related to the treatment of patients with neck and back injuries from car accidents generally, without any specificity to this particular plaintiff and this particular accident. Testifying as a biomechanical engineer and accident reconstructionist, McClaren could have explained to the jury how this particular accident occurred and how it affected this particular plaintiff. That type of specificity is central to plaintiff's case, where the sole issue is the extent of plaintiff's pain and suffering due to the accident. In short, we cannot say that there was little likelihood that the exclusion of McClaren's testimony as an expert in biomechanical engineering and accident reconstruction affected the jury's verdict. Because the error was therefore not harmless, we reverse and remand.
Reversed and remanded.
We understand the references to "biomechanical engineering," "injury biomechanical expert," and "biomechanical expert" to all refer to the field of biomechanical engineering, and we use those terms interchangeably in this opinion.
OEC 702 provides:
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."
Given our disposition, we need not address plaintiff's remaining assignments of error.
In addition to being distinguishable on its facts, Myers was decided under a different standard of review. In Myers, the Supreme Court applied an abuse of discretion standard in reaching its conclusion that the trial court did not err.
Reference
- Full Case Name
- Sukhdev MALL v. Andrew HORTON, Defendant-Respondent.
- Cited By
- 9 cases
- Status
- Published