Mall v. Horton

292 Or.App. 319

423 P.3d 730

Sukhdev MALL, Plaintiff-Appellant,

v.Andrew HORTON, Defendant-Respondent.

A160303

Court of Appeals of Oregon.

Argued and submitted October 11, 2016.

June 6, 2018

Alexander Pletch, Certified Law Student, argued the cause for appellant. On the briefs were Richard Rizk and The Law Office of Richard Rizk.

Tom C. Spooner argued the cause for respondent. With him on the brief was Spooner & Much, P.C.

Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.^*

POWERS, J.

Plaintiff 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 in (1) biomechanical engineering¹ and (2) accident reconstruction. Plaintiff argues that McClaren qualified as an expert in both fields "by knowledge, skill, experience, training or education." OEC 702.² We agree with plaintiff that the trial court erred in disqualifying McClaren as an expert in biomechanical engineering and in accident reconstruction, and further conclude that that error was not harmless. Accordingly, we reverse and remand.³

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 as 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."

The 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."

The 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.

Plaintiff 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 , 245 Or. App. 582, 588-90, 263 P.3d 372 (2011).

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 , 272 Or. App. 512, 526, 356 P.3d 91 (2015). First, the expert evidence must be relevant under OEC 401, which is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Second, the expert evidence must pass muster under OEC 702, which serves a "gatekeeping function" for expert testimony and 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."

Thoens , 272 Or. App. at 526, 356 P.3d 91. Third, even if the evidence is relevant and passes muster under OEC 702, it may still nevertheless be excluded under OEC 403, which provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." Here, defendant did not raise an objection to McClaren's testimony under OEC 401 or OEC 403 at trial, nor does he make an argument under OEC 401 or OEC 403 in his brief on appeal. Plaintiff's only contention on appeal is that McClaren's credentials in the general fields of biomechanical engineering and accident reconstruction were sufficient to qualify him as an expert. Thus, our sole focus on appeal is but one aspect of OEC 702 —McClaren's general qualifications to testify as an expert in those two fields.

An expert is one that has acquired certain habits of judgment based on experience 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, 218 Or. 43, 64, 341 P.2d 1089 (1959). "No expert is competent to express an opinion on every subject." Myers v. Cessna Aircraft , 275 Or. 501, 521, 553 P.2d 355 (1976). However, "a witness who is qualified to give expert testimony in a general field need not demonstrate expertise in a specialized aspect of that field." Barrett v. Coast Range Plywood , 294 Or. 641, 647, 661 P.2d 926 (1983). Nonetheless, the Supreme Court has illustrated a "preference for examining the knowledge of each expert witness regarding the subject of his or her testimony, rather than adopting a rigid rule tied to a particular degree or specialty." Trees v. Ordonez , 354 Or. 197, 211, 311 P.3d 848 (2013). "Proper application of OEC 702 requires assessment of the particular qualifications of each witness. We do not assume a disqualification from the lack of a particular...