Cutliff v. Vis-Com, Inc.

NORMAN CUTLIFF, Plaintiff-Appellant, v. VIS-COM, INC. and JAMES HANCOCK, Defendants-Appellees.

NO. A-1-CA-35601

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 11, 2019

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

Jeff Foster McElroy, District Judge

Atkins & Walker, P.C.

Tyler J. Atkins

Samuel H. Walker

Albuquerque, NM

for Appellant

Doughty, Alcaraz & deGraauw, P.A.

John Andrew deGraauw

Jeffrey M. Mitchell

Albuquerque, NM

for Appellees

MEMORANDUM OPINION

B. ZAMORA, Judge.

{1} Appellant Norman Cutliff appeals the district court's decision admitting expert testimony that he claims exceeded the scope of the expert's qualifications and lacked a reliable evidentiary basis. Cutliff further contends the district court abused its discretion by failing to admit his medical records and denying his motions for mistrial. We affirm.

BACKGROUND

{2} Cutliff claims to have suffered concussion symptoms and neck and low back pain after being rear-ended by a vehicle driven by James Hancock, who was driving for his employer, Vis-Com, Inc. (collectively, Vis-Com), while Cutliff was stopped at a red light behind another vehicle. Cutliff filed a complaint alleging negligence against Vis-Com seeking damages for lost wages, pain and suffering, loss of household services, and loss of enjoyment of life. Vis-Com ultimately stipulated to liability, but disputed causation and damages.

{3} Prior to trial, Cutliff filed a motion to exclude the testimony of defense expert Dr. Joseph Peles, arguing that his opinion lacked a reliable basis and that Dr. Peles was not qualified to offer an opinion on medical causation.¹ The district court denied the motion, ruling orally that biomechanical engineering is a recognized field, Dr. Peles' testimony would assist the jury, and that Cutliff would have the opportunity to cross-examine Dr. Peles on the claimed lack of datasupporting his conclusions. The district court's written order denying Cutliff's motion stated no additional grounds in support of its ruling.

{4} At trial, Dr. Peles was qualified, without objection, as an expert in biomechanical engineering, occupant dynamics, and accident reconstruction. Dr. Peles explained that a biomechanical engineer looks at the forces resulting from an accident and determines how those forces move the body and, based on that movement, determines the potential for injury. Dr. Peles testified that he reviewed photographs, deposition testimony, discovery responses, police reports, Cutliff's medical records, and Cutliff's notes, along with data related to vehicle crashes, dimensions and weight, and stiffness. He acknowledged he was not qualified to render opinions on the medical causation of a specific injury, but opined that, assuming the most severe impact that could result from this accident, it is highly unlikely Cutliff's head would have contacted the steering wheel, and the forces to the head would be exceptionally low and unlikely to produce a concussion. Dr. Peles also explained that it is unlikely that the force to the back would trigger an injury mechanism, and stated there is a "99.9 percent chance that someone would not have a low back injury from this worst-case severity." When asked on cross-examination about his statement that there is "no mechanism . . . for a head injury or a low back injury," Dr. Peles responded, "We talked in my deposition about degeneration in the low back. That's a likely candidate for that." Cutliff's counselresponded, "You're not offering the jury an opinion that Mr. Cutliff has degenerative back disease, are you?" Peles replied, "Well, it's clear from his medical records. I'm not diagnosing him, but he clearly does." Dr. Peles explained that "biomechanical engineers study the progression of degeneration [of the back] and how compression causes [it]," but when asked again if he was qualified to diagnose degenerative back disease, he responded, "I didn't say I was. You were asking me from a biomechanical viewpoint."

{5} Dr. Peles also testified that the front bumper of Cutliff's vehicle had more damage than the rear of his vehicle. When asked if this had any significance, he responded, "It certainly could. It is . . . consistent with [Cutliff's vehicle] contacting [the first vehicle] first. I can't prove that without seeing [the first vehicle]." Cutliff's counsel objected and moved for a mistrial because Vis-Com had stipulated to liability before trial on the basis that Hancock was solely at fault for the crash. The district judge denied the motion but sustained the objection and instructed the jury to disregard this testimony.

{6} In his closing argument to the jury, Vis-Com's attorney argued, "One other thing I think is really important for you guys to pay attention to—not a single medical bill is being submitted to you. Not a single one." Cutliff objected based on the parties' stipulation before trial that medical bills would not be introduced. The judge sustained the objection and instructed the jury to disregard this argument.

{7} The jury returned a verdict in favor of Cutliff for $10,000. This appeal followed.

DISCUSSION

A. The District Court Did Not Abuse Its Discretion in Determining That Dr. Peles' Expert Testimony Was Admissible

1. Admissibility of Expert Testimony

{8} This Court reviews the admission of expert testimony for an abuse of discretion. See Baerwald v. Flores, 1997-NMCA-002, ¶ 6, 122 N.M. 679, 930 P.2d 816. An abuse of discretion occurs where "the trial judge's action was obviously erroneous, arbitrary, or unwarranted" or is "clearly against the logic and effect of the facts and circumstances before the court." State v. Alberico, 1993-NMSC-047, ¶ 63, 116 N.M. 156, 861 P.2d 192.

{9} Rule 11-702 NMRA governs the admissibility of expert testimony and provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

See Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, ¶ 22, 370 P.3d 761 (stating Rule 11-702 requirements).

{10} Cutliff contends that the district court abused its discretion in admitting Dr. Peles' testimony, arguing that the testimony (1) lacked a reliable basis and (2)exceeded the scope of Peles' expertise as a biomechanical engineer. We address each argument in turn.

2. Dr. Peles' Opinion Had a Reliable Basis

{11} Cutliff contends that Dr. Peles' testimony did not rest upon a reliable basis because it lacked a sufficient factual foundation. To be admissible, expert testimony must be based on facts sufficient to permit a reasonably accurate conclusion, as opposed to mere conjecture. State v. Downey, 2008-NMSC-061, ¶ 32, 145 N.M. 232, 195 P.3d 1244. Experts may base their opinions upon factual assumptions only if those assumptions have an evidentiary foundation in the record. Id. ¶ 34.

{12} According to Cutliff, Dr. Peles' testimony lacked a reliable basis because Dr. Peles failed to do the following: personally inspect the vehicles involved in the crash, retrieve data from the event data recorder in Hancock's vehicle, conduct physical testing specific to the crash, or use precise measurements of the crash damage. Cutliff also contends that the data Dr. Peles relied on in reaching his conclusions was deficient because it consisted only of poor quality, black and white photos of Cutliff's vehicle and a vehicle repair estimate. We disagree.

{13} Dr. Peles reviewed both black and white and color photos of Cutliff's vehicle, a photograph of Hancock's vehicle, deposition testimony, discovery responses, police reports, Cutliff's medical records, Cutliff's notes, and datarelated to vehicle crashes, dimensions and weight, and stiffness in forming his opinions. Dr. Peles presumed the accident occurred as Cutliff described, and the information he reviewed enabled Dr. Peles to estimate the severity of impact to Cutliff's vehicle. Conceding that the available information was limited, Dr. Peles did not use a precise figure for impact severity but used "figures [that were] the most conservative or the ones that [were] most in [Cutliff's] favor." Dr. Peles also determined the motion of Cutliff's body by assuming the worst possible vehicle damage to ensure that he estimated impact at the most severe level. Dr. Peles thus addressed the limitations of the data by assuming the worst damage and most severe impact possible in estimating vehicle damage and the severity of the impact. Accordingly, we cannot conclude that the district court abused its discretion in determining that Cutliff's complaints about the adequacy of the data Dr. Peles relied on went to the weight of the evidence and could be addressed in cross-examination. See Acosta, 2016-NMSC-012, ¶ 28 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." (internal quotation marks and citation omitted)). In sum, we cannot say that Cutliff's unreliability argument supports the conclusion that the district court abused its discretion in denying Cutliff's motion to exclude Dr. Peles' testimony.

3. Dr. Peles' Testimony Did Not Exceed the Scope of His Expertise as Biomechanical Engineering Expert

{14} Cutliff claims that Dr. Peles gave opinion testimony on medical causation and therefore testified outside the scope of his expertise as a biomechanical engineer. Nonmedical experts cannot offer an opinion as to medical causation. See Baerwald, 1997-NMCA-...