An interesting expert witness case out of Oklahoma this past week, as the state’s Court of Appeals dismissed expert testimony regarding the cause of an accident that injured a 12-year-old boy who was struck by a car while walking in the street. On an appealed decision, Oklahoma’s second highest court rejected two accident reconstruction expert witnesses for taking their testimony beyond the facts, and speaking directly to the key determination of negligence.
Defense Accident Reconstruction Witnesses
The incident in Moore v Blackwell occurred in September of 2007 when 12-year-old Jerrit Moore was walking alongside an interstate service road in Norman, Oklahoma. The boys were walking at night without reflective clothing or lights of any kind, and decided to cross the street in order to walk with traffic. As they crossed, the defendant, Robert Blackwell, was driving along the road. Blackwell swerved to avoid the boys, who were in the middle of crossing, and clipped Jerrit, causing him injury. Jerrit’s father filed a negligence claim seeking $10,000 in damages for Jerrit’s injuries.
As part of his defense, Blackwell called the investigating police officer, Michael Thomson, and an accident reconstruction expert, Terry Harrison. Thomson testified that his investigation concluded that Jerrit, who was in the middle of the road, was more at fault than Blackwell. Officer Thomson did not issue a citation to Blackwell for the accident because, in his opinion, the driver had not acted inappropriately considering the circumstances.
Accident reconstruction expert Harrison reaffirmed Officer Thomson’s investigation by testifying that he found no negligence on the part of Blackwell. According to Harrison’s expert analysis of the accident, Blackwell was driving within the speed limit, recognized a danger in the road, and reacted appropriately considering the circumstances. Although striking Jerrit was unfortunate, accident experts Thomson and Harrison testified that, in their opinion, Blackwell was not negligent in striking the young man.
Oklahoma Court Rules Accident Reconstruction Expert Testimony Inadmissible
At trial, Moore unsuccessfully attempted to have both experts prevented from testifying before a jury ruled in favor of Blackwell due to lack of negligence. On appeal, the Oklahoma Court of Appeals agreed with Moore and sent the case back to trial without the specific testimony offered by Thomson and Harrison. Finding that the experts spoke to the ultimate issue in the case – negligence and the cause of the accident – the Oklahoma court found that both experts had failed to provide the type of testimony that was permissible for expert witnesses.
Judge Jane Wiseman wrote, “The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore’s negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.” Neither expert offered an analysis of the facts that required their particular expertise, but instead spoke only to which party’s negligence caused the accident. According to the Court, Oklahoma law requires experts to limit their testimony to opinions of the facts and not speak to issues of negligence or fault.
Dissent Supports Use of Accident Reconstruction Experts
The difference between testifying to negligence, and offering expert accident reconstruction opinion seems difficult to comprehend, and dissenting members of the Oklahoma Court of Appeals voiced a strong argument against the decision. Judge John Fischer claimed that the majority had misinterpreted the law, and under the Daubert standard, which has been adopted in Oklahoma, both of Blackwell’s experts offered reliable and scientifically sound testimony that interpreted the facts and allowed jurors to make the necessary decision regarding negligence.
Accident reconstruction experts walk a fine line between diagraming an accident and offering their opinion on which party is negligent. Attorneys in car accident negligence cases must be acutely aware of the relevant state law, and ensure that their accident reconstruction experts carefully word testimony to explain the cause of an accident without offering conclusions that experts are not permitted to make. In Moore v Blackwell, the defendant’s attorneys allowed his experts to drift away from offering technical analysis and instead speak directly to the ultimate question of negligence – violating Oklahoma’s standards for expert witness admissibility.
