Bassett, Ralph Waldo, Jr.

English

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Volume 71 | Issue 1 Article 5December 1968Expert Witnesses--Traffic Accident AnalystRalph Waldo Bassett Jr.West Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Evidence CommonsThis Student Note is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted forinclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationRalph W. Bassett Jr., Expert Witnesses--Traffic Accident Analyst, 71 W. Va. L. Rev. (1968).Available at: https://researchrepository.wvu.edu/wvlr/vol71/iss1/5STUDENT NOTESExpert Witnesses-Traffic Accident AnalystSophisticated techniques available in the analyzation of physicalfacts have led to the increased use of traffic accident analysts as expertwitnesses. The main consideration in determining when such anexpert should be permitted to testify is whether the opinion of theexpert will aid the jury in making the correct determination of thefactual issues. Wigmore succinctly states this test to be as follows:"On this subject can a jury from this person receive appreciablehelp?". Recently, West Virginia recognized a traffic accident analystas an expert on accident reconstruction and admitted his opinion toaid the jury.' This represents the trend across the country.3 In anearly decision dealing with an accident reconstruction- expert, theIowa Court recognized that with the growing complexities of modernlife "a failure to make the fullest use of expert opinions in court pro-cedure means, in a great many cases, a denial of proof, and, neces-sarily, a denial of justice."4A traffic accident analyst might be defined as a person who useshis special skills and knowledge to reconstruct automobile accidents.His expertise consists of his knowledge of principles of science and hisability to critically analyze the physical facts. This ability and knowl-edge may be gained from a combination of higher education, exper-ience, and special training in accident reconstruction.' Analyzation ofthe physical evidence at the accident is the object of his training.From the skid marks, ruts, holes, debris, damaged vehicles, otherphysical evidence, and even photographs of the scene, the traffic ac-cident analyst reconstructs the events leading to the collision.Before the expert's opinion can be admitted into evidence, thecourt must determine if he is qualified. West Virginia seems to fol-low Wigmore's suggestion6 by holding that expert opinion is admis-1 7 J. WIGMORE, EVIDENCE § 1923 (3d ed. 1940).2 Lawrence v. Nelson, 145 W. Va. 134, 145, 113 S.E.2d 241, 249 (1960).3 Annot., 66 A.L.R.2d 1048, 1951 (1959).4 Grismore v. Consolidated Products Co., 232 Iowa 328, 343, 5 N.W.2d646, 655 (1942).5 Reath, Scientific Data and Expert Opinion-Its Use In AutomobileAccident Cases, 24 INS. COUNSEL J. 99, 101 (1957); Experience of twelveto fifteen years qualified a train engineer as an expert to testify on certainsteam pumps, Lambert v. Virginian Railway Co., 96 W. Va. 158, 162, 122S.E. 457, 459 (1924); A higher education may include degrees in engineering,physics, and metallurgy, Reath, supra at 101; Specialized training could begained at the Traffic Institute at Northwestern University, 24 INs. COUNSELJ., surra at 99.J. WIGMORE, EVIDENCE § 1923 (3d ed. 1940).196811Bassett: Expert Witnesses--Traffic Accident AnalystPublished by The Research Repository @ WVU, 1968WEST VIRGINIA LAW REVIEWsible when it will aid the jury in reaching a proper conclusion which itcould not reach without such help,' or when the jury could not befully informed regarding the facts upon which the expert's opinion isbased without his examination.' To qualify as an expert, the WestVirginia court has stated that a person need have only some knowl-edge superior to that of the jury." Determining the competency orqualification of an expert to testify falls within the trial court's prov-ince and its judgment will not be reversed unless it clearly appearsthere has been an abuse of discretion.1"Once the witness has been qualified by the court, he may state hisopinion." This testimony must be elicited in the form of a hypo-thetical question, except where there is no conflict upon the ma-terial facts in evidence or where the expert is personally acquainted7 Attelli v. Laird, 106 W. Va. 717, 722, 146 S.E. 882, 885 (1929) (byimplication); see Walker v. Walker, 106 N.H. 282, 284, 210 A.2d 468, 470(1965).8 Real! v. Deiriggi, 127 W. Va. 662, 667, 34 S.E.2d 253, 256 (1945).9 Stenger v. Hope Natural Gas Co., 139 W. Va. 549, 567, 80 S.E.2d 889(1954). In Lester v. Rose, 147 W. Va. 575, 595, 130 S.E.2d 80, 94 (1963)in determining whether to accept the proffered expert the court appeared torely on the previous recognition of the witness as an expert in the earliercases of Kale v. Douthitt, 274 F.2d 476, 481 (4th Cir. 1960) and Lawrencev. Nelson, 145 W. Va. 134, 145, 113 S.E.2d 241, 249 (1960). A perusalof the opinion in this case lends no hint as to how heavily the courtrelied upon the previous acceptance of the witness in deciding whether toaccept the witness as an expert. But, if the court is relying on the previousacceptance as a qualifying factor, it should be noted that this representsa departure from the usual test in determining whether one qualifies as anexpert. Furthermore, using prior acceptance as the qualification test of anexpert invites a succession of errors. For, if the court that initially deter-mined the party to be an expert was wrong, subsequent use of this individual,predicated on the initial determination, would seriously magnify the effectof the first court's error. Another argument against using prior acceptanceas a qualification test is that one qualified as an expert under the previousfactual situation may not qualify on the facts existing in the present contro-versy. For example, the first court may qualify the witness to testify to thespeed of a vehicle from the length of the skid marks and in a subsequent casepermit the same witness to testify to the point of impact, a topic on whichhe may not be competent to testify.'0 Toppins v. Oshel, 141 W. Va. 152, 167, 89 S.E.2d 359, 367 (1955);State v. Brady, 104 W. Va. 523, 533, 140 S.E. 546, 550 (1927); Bank v.Hannaman, 63 W. Va. 358, 361, 60 S.E. 242, 243 (1908). The terms"qualifications" and "competency" are often used synonomously in WestVirginia. However, there is a distinction between the two terms. Bycompetency it is meant that under the complex facts and circumstances atraffic accident analyst would appreciably aid the jury. In certain situationsthe facts are so obvious that the jury would not need the aid of an expertto determine what led to the accident. But still, a traffic analyst would bea qualified person to reconstruct the accident; however, the simplicity ofthe situation renders his testimony incompetent.I IOverton v. Fields, 145 W. Va. 797, 808, 117 S.E.2d 598, 606 (1960);Sebrell v. Barrows, 36 W. Va. 212, 218, 14 S.E. 996, 997 (1892).[Vol. 712West Virginia Law Review, Vol. 71, Iss. 1 [1968], Art. 5https://researchrepository.wvu.edu/wvlr/vol71/iss1/5STUDENT NOTESwith the facts. 2 In the hypothetical question, the assumed factsneed not be based on undisputed evidence tending to prove them; 3but, the hypothetical should be based on a state of facts which the evi-dence in the case tends to prove."4 In both Lawrence v. Nelson"5and Lester v. Rose 6 an assignment of error was that the hypotheticalquestion posed to the expert omitted material facts. On appeal, inboth cases, the court reasoned that any errors in the hypotheticalquestion were cured by cross-examination of the expert or were sominor as not to affect the opinion of the expert."7 These holdings indi-cate that the court, in proper cases, will bend the rule on hypotheticalquestions to allow pertinent expert opinion evidence into the case. 8In addition to problems incident to the admissibility of an expert'sopinion because of his competency or qualifications, the testimonymay be excluded because of its scope. The West Virginia SupremeCourt of Appeals originally indicated that an expert's opinion was notadmissible into evidence if it dealt directly with the ultimate issue inthe case. 9 If the expert's opinion directly reflected upon this ulti-mate issue, the court concluded this amounted to an invasion of the12 State v. Maier, 36 W. Va. 757, 761, 15 S.E. 991, 993 (1892). Anexpert's opinion, as indicated by the cases, could fall into one of three classi-fications. His testimony could be no more than an interpretation of scientificlaws, and never specifically deal with any facts in the case. Application ofscientific laws to the assumed facts propounded in the hypothetical questionwould be another class. 31 AM. JuR. 2D Expert and Opinion Evidence§ 17 at 512 (1967); Hanley v. W. Va. C. & P. Ry., 59 W. Va. 419, 430,53 S.E. 625, 628 (1906). West Virginia has recognized a third hybrid classby allowing the expert's opinion to be based partly upon his knowledge ofscientific laws and partly upon the assumed facts in the hypothetical question.Phenix Fire Ins. Co. v. Virginia-Western Power Co., 81 W. Va. 298, 303,94 S.E. 372, 374 (1917).13 Byrd v. Virginian Ry., 123 W. Va. 47, 51, 13 S.E.2d 273, 275(1941); Fairview Fruit Co. v. Brydon & Bro., 85 W. Va. 609, 611, 102S.E. 231, 232 (1920).'4 Byrd v. Virginian Ry., 123 W. Va. 47, 51, 13 S.E.2d 273, 275(1941); Kerr v. Lunsford, 31 W. Va. 659, 8 S.E. 493, 500 (1888). TheWest Virginia court has allowed the deposition of an expert to be readinto the record after the facts upon which the hypothetical question in thedeposition was based had been placed in evidence. Walker v. Strosnider, 67W. Va. 39, 71, 67 S.E. 1087, 1101 (1910).15 145 W. Va. 134, 145, 113 S.E.2d 241, 249 (1960).16 147 W. Va. 575, 595, 130 S.E.2d 80, 94 (1963).17 Lawrence v. Nelson, 145 W. Va. 134, 145, 113 S.E.2d 241, 249(1960); Lester v. Rose, 147 W. Va. 575, 595, 130 S.E.2d 80, 94 (1963).The West Virginia court may even continue to follow the precedent set inState v. Evans, 136 W. Va. 1, 6, 66 S.E.2d 545, 548 (1951), that an expert'sopinion is not objectionable where it "relates to whether a given effect mightresult from a certain cause." This is not considered speculative, but rathera common and proper method of examination.18 Butcher v. Stull, 140 W. Va. 31, 38, 82 S.E.2d 278, 283 (1954).'9 Redman v. Community Hotel Corp., 138 W. Va. 456, 469, 76 S.E.2d759, 766 (1953); State v. Hull, 45 W. Va. 767, 776, 32 S.E. 240, 244 (1899).196813Bassett: Expert Witnesses--Traffic Accident AnalystPublished by The Research Repository @ WVU, 1968WEST VIRGINIA LAW REVIEWjury's province since it was charged with determining this question.More recently, however, the West Virginia court has intimated it ismore concerned with getting the expert's opinion before the jurythan battling with the elusive issue of whether the opinion goes to theultimate issue.2 The court rationalizes this approach by statingthat the weight to be given the expert's opinion is a jury determina-tion,1 which should be based mainly upon a finding that the factsassumed in the hypothetical question have been proven."Once it has been determined that a properly qualified traffic ac-cident analyst is an expert competent to give an opinion and, theproper method for eliciting this opinion has been decided, the ques-tion still remains as to how such opinion may be employed.One of the most common instances is where a party calls an expertto corroborate testimony and thus hopefully substantiate his side ofthe controversy.23 It is argued that the main justification for utiliz-ing an expert in any circumstance is that his testimony will contributeto an elucidation of the facts involved. Yet, when each side in thecontroversy employs an expert, some would note that instead ofclarifying the essential facts, the contradictory expert opinions simplyconfuse the triers of fact. However, upon a more critical analysisit could be argued that where two such experts reach differing opin-ions the jury without their aid could not possibly approach a propersolution.Establishing a prima facie claim is yet another means of employingan accident analyst. In a California case where the accident occur-red late at night during a heavy rain, the defendant's bus driver tes-tified that the bus was approximately thirty feet past a crosswalkwhen he heard a noise as if something had hit the side of the bus;he stopped the bus, and found plaintiff's decedent lying fifteen totwenty feet outside a crosswalk. The court allowed plaintiff to qual-ify the investigating officer as an expert whose opinion that plain-2 0 Lester v. Rose, 147 W. Va. 575, 598, 130 S.E.2d 80, 95 (1963); Dulingv. Bluefield Sanitarium Inc., 149 W. Va. 567, 142 S.E.2d 754 (1965).21 Bank v. Hannaman, 63 W. Va. 358, 361, 60 S.E. 242 (1908); Towerv. Whip, 53 W. Va. 158, 162, 44 S.E. 179, 181 (1903).22 31 AM. JuR. 2d Expert and Opinion Evidence § 183 at 79 (1967).23 West v. Jack Cooper Transport Co., 372 S.W.2d 642, 644 (Mo. Ct.App. 1963). Reath, Scientific Data and Expert Opinion-Its Use In Auto-mobile Accident Cases, 24 INS. COUNSEL J. 99 (1952). In West Virginia itappears that the only purposes to which a traffic analyst's opinion has beenapplied are corroboration and impeachment. Lester v. Rose, 147 W. Va.575, 597, 130 S.E.2d 80, 94 (1963).[Vol. 714West Virginia Law Review, Vol. 71, Iss. 1 [1968], Art. 5https://researchrepository.wvu.edu/wvlr/vol71/iss1/5STUDENT NOTEStiffs decedent was struck while within the marked safety zone es-tablished a prima facie case of negligence.2"Additionally, impeaching the credibility of witnesses provides an-other opportunity for utilization of an accident analyst. For example,plaintiff testified that his vehicle was struck in the right rear afterhaving nearly completed a right turn. But, defendant contended thatthe plaintiff turning right without a visible signal, pulled in front ofhim, at which instant the accident occurred. Defendant's expert wasthen permitted to testify that the accident could not have happenedas the plaintiff contended.2The subjects most frequently testified to by traffic accident analystsare speed and the point of impact."6 The basic process used by theexperts in determining speed consists of measuring tire skid marksand applying certain laws of physics. 7 It may also be necessary tocalculate the displacement of the vehicles at the point of impact inestablishing the speed.28 The point of impact is important in decidingthe issue of negligence and may be indicated by the debris, water andoil spots, gouges, and other physical evidence found at the accidentscene.2 924 Kastner v. Los Angeles Metropolitan Transit Auth., 63 Cal. 2d 52, 56,403 P.2d 385, 387, 45 Cal. Rptr. 129, 131 (1965). For another case inwhich an expert's opinion established a prima facie case in a wrongful deathaction see Richardson v. Buehre, 153 F. Supp. 120, 124 (D.C. Minn. 1957).For a case where defendant used an expert to establish a prima facie defensesee Campbell v. Clark, 283 F.2d 766 (10th Cir. 1960). Reath, ScientificData and Expert Opinion-Its Use In Automobile Accident Cases, 24 INs.COUNSEL J. 99 (1957).2 5 YoCU v. Kansas City Public Service Co., 349 S.W.2d 860, 864(Mo. 1961); accord Peterson v. Salt River Project Agricultural Improvement& Power District, 96 Ariz. 1, 391 P.2d 567, 572 (1964); Hughes v. Kilgore,233 Cal. App. 2d 541, 542, 43 Cal. Rptr. 820, 821 (1965). Reath, ScientificData and Expert Opinion-Its Use In Automobile Accident Cases, 24 INs.COUNSEL J. 99 (1957).26Other subjects where a traffic analyst has been declared competent totestify are: where the windshield of plaintiff's car was struck by poles whichdefendant was towing, Peterson v. Salt River Project Agricultural Improve-ment & Power District, 96 Ariz. 1, 391 P.2d 567 (1964); whether a tirewas cut from the outside or ruptured from the inside, Cribbs v. Daily, 67 IM.App. 2d 441, 449, 214 N.E.2d 588, 592 (1966); to decipher the events oftwo nearly simultaneous accidents, City of Phoenix v. Schroeder, 1 Ariz.Appeals 510, 405 P.2d 301 (1965); whether the damage was caused by therear or front collision in a three car mishap, McCormick v. Sexton, 239Ark. 29, 286 S.W.2d 930, 933 (1965); and, where the expert offered hisopinion as to who was the driver of the vehicle involved in an accident,Walker v. Walker, 106 N.H. 282, 287, 210 A.2d 468, 472 (1965).27 10 PROOF OF FACTS, Skidmarks & Stopping Distances 661 (1961).28 10 PROOF OFFAcTS, Reconstruction of Accident 137 (1961).29 Id. at 146.196815Bassett: Expert Witnesses--Traffic Accident AnalystPublished by The Research Repository @ WVU, 1968WEST VIRGINIA LAW REVIEWAlthough the expert has been catagorized as a traffic accidentanalyst, courts have qualified people with different vocations asexperts to voice their opinions based upon reconstruction of theaccident. As early as 1934, a police officer was unsuccessfullyoffered as an expert to analyze skid marks, but on appeal it was helderror to have excluded his testimony." Now, as a matter of course,many courts accept police officers as qualified experts competentto give their opinion from their observations at the accident scene."Even automobile mechanics,32 insurance investigators,33 and, in oneinstance, a professor of science34 have been qualified to state theiropinion as an accident analyst.Recent developments in the utilization of accident reconstructionexperts seem to indicate that the courts favor the use of such experts.Evidencing this, a recent case allowed a patrolman to give hisopinion without being qualified as an expert by holding that thepatrolman's qualifications as an expert could not be doubted."5It should seem fair to predict that as scientific techniques ofanalysis become more sophisticated, use of those skilled in thesemethods to elucidate the probabilities, by analysis of the physicalfacts, will become even more prevalent.Ralph Waldo Bassett, Jr.3 0 Saladow v. Keystone Transp. Co., 241 App. Div. 161, 271 N.Y.S. 293,294 (1934).3, Rhynard v. Filori, 315 F.2d 176, 179 (8th Cir. 1963); McCormickv. Sexton, 239 Ark. 29, 386 S.W.2d 930 (1965); Kastner v. Los AngelesMetropolitan Transit Auth., 45 Cal. Rptr. 129, 131, 403 P.2d 385, 387 (1965);Grant v. Clarks, 78 Idaho 412, 422, 305 P.2d 752, 757 (1956); Lucas v.Duccini, 258 Iowa 77, 137 N.W.2d 634, 637 (1965); Tuck v. Buller, 311 P.2d212, 215 (Okla. 1957).2 Dibert v. Ross Pattern & Foundry Development Co., 105 Ohio App.264, 267, 152 N.E.2d 369, 374 (1957); McBroom v. Orner, 64 Wash. 2d887, 889, 395 P.2d 95, 96 (1964).33 Burleson v. Champion, 283 F.2d 653, 654 (5th Cir. 1960).34 Wentzel v. Huebner, 78 S.D. 481, 485, 104 N.W.2d 695, 697 (1960).Is Bonner v. Polacari, 350 F.2d 493, 496 (10th Cir. 1965).[Vol. 716West Virginia Law Review, Vol. 71, Iss. 1 [1968], Art. 5https://researchrepository.wvu.edu/wvlr/vol71/iss1/5STUDENT NOTESLOWlVNDES~c~~ti6ved dve-Ita 6amk624-7445CLARKSBURG, WEST VIRGINIAMember F.D.I.C.COMPLIMENTS OFTHE FIRST NATIONAL BANKOF BLUEFIELDBLUEFIELD, WEST VIRGINIA1968]7Bassett: Expert Witnesses--Traffic Accident AnalystPublished by The Research Repository @ WVU, 1968

Expert Witnesses--Traffic Accident Analyst

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Expert Witnesses--Traffic Accident Analyst

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