Gabus v. Harvey

HODGES, Justice,

dissenting.

The ultimate issue to be determined is whether the Oklahoma Evidence Code is applicable to automobile negligence cases. It is my concern that if the majority may exclude the application of 12 O.S.1981 §§ 2403, 2702, 2704 to such cases, it may also carve exceptions in other areas. I am also concerned that the majority continues to cling to pre-Code law in order to validate its anachronous position. 1

The standard to be applied under the Code is not the pre-Code standard of the inability of the trier of the fact to otherwise understand and determine issues based on scientific and technical knowledge; rather, the test is one of usefulness. The question is will the testimony assist the trier of the fact to understand or determine a fact in issue?

It is obvious from a plain reading of § 2704 that the Code liberalizes testimony on the ultimate fact. 2 The qualification for *258 an expert witness is quite broad. Under § 2702, any witness qualified as an expert by knowledge, skill, experience, training or education may testify if his knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Based on this definition, an expert may be an ordinary person whose experience provides him with knowledge which concerns some matter involved in the trial. Before an opinion is admissible, under the Code, it must be offered either by a lay person with personal knowledge of the facts or an expert witness with special qualifications, and must be found to be helpful to the trier of the fact. Section 2704 does not permit meaningless opinions to be admitted. They are excluded by the requirement that opinions must assist the trier of the fact. 3

The expert’s opinion, relating to the cause of the accident, was based substantially on his determination of the point of impact of the collision. Opinion testimony concerning the point of impact is proper if the expert witness first details the facts upon which his conclusion is based. We find that the evidence was helpful to the jury on the issue of causation because there was contradictory testimony between the witnesses and the appellant. The officer testified that the point of impact was seven feet out into the roadway rather than one foot from the curb. The officer’s testimony concerning the point of impact based upon the physical evidence at the scene directly contradicted the testimony of the appellant. 4

Although the jury could have decided the case without the expert testimony, it does not mean that the evidence was not of some assistance to the jury in reaching its verdict. 5 The weight to be accorded to expert testimony is for jurors, who may follow their own experiences, observations, and common knowledge and reject opinions of experts. 6 It is obvious that the conclusion, based upon the facts of the particular case, as to what caused an accident, may be so obvious that any reasonable person, trained or untrained, can draw that inference from the facts. It is equally clear that cases may occur where the opinion of an expert will greatly assist members of the jury. Necessarily, much must be left to the discretion of the trial court.

The trial court is vested with wide latitude in the determination of the admissibility of expert testimony or opinions and its ruling will not be reversed on appeal in the absence of a clear abuse of discretion. 7 I find the opinion of the officer assisted the trier of the fact to understand the evidence and to determine a fact in issue, and that the probative value of his testimony was not substantially outweighed by unfair prejudice to the appellant. The trial court did not abuse its discretion in admitting the expert testimony of the investigating officer.

I also find the majority’s reliance on Lollis v. Superior Sales Co., 224 Kan. 251 , 580 P.2d 423, 431 (1978) to be misplaced. The dissent in Lollis noted that the Kansas Court nullified the Kansas statute when it held that an expert witness in an automobile negligence case may not give an opinion on what actions of the parties, if any, contributed to the accident. The majority has adopted the Kansas rationale which results in an arbitrary exercise of judicial sanction by imposition of a different standard for cases which involve automobile *259 negligence. In other areas, 8 Kansas continues to acknowledge the Frase v. Henry, 444 F.2d 1228 (10th Cir.1971) doctrine, and permits an expert witness to give an opinion on an ultimate issue if it aids in the interpretation of technical facts or assists the trier of the fact in understanding the material in question.

The cardinal rule of statutory construction is that the language of the statute should be considered to ascertain legislative intent. There is no room for construction or provision for further inquiry when the legislative intent is plainly expressed; nor may the court read exceptions into the statute which were not made by the legislature. 9 An exception for automobile negligence cases cannot be discerned either implicitly or explicitly from a perusal of the Code. Because there is no statute tailored to these circumstances, 10 we should not create one by judicial fiat.

I, therefore, respectfully dissent.

. See Maben v. Lee, 260 P.2d 1064, 1067 (Okl.1953) cited in the majority opinion.

. Title 12 O.S.1981 § 2704 states:

"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

7 Wigmore, p. 17 §§ 1920, 1921 (1978) discusses the common law basis for the rule that to permit the expert witness to testify concerning the ultimate issue invaded the province of the jury. *258 Wigmore characterizes the rule as unduly restrictive, difficult to apply, and generally serving to deprive the trier of the fact of useful information.

. W.J. Blakey, "An Introduction To The Oklahoma Evidence Code: Relevancy, Competency, Privileges, Witnesses, Opinion, And Expert Witnesses," 14 Tulsa L.J. 227 , 313-14 (1978).

. Brown v. AAA Wood Products, Inc., 380 So.2d 784, 786 (Ala.1980).

. Shover v. General Motors Corp., 198 Neb. 470 , 253 N.W.2d 299 (1977).

. Boxberger v. Martin, 552 P.2d 370 (Okl.1976).

. Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th Cir.1981); Missouri State Life Ins. Co. v. Everett, 167 Okl. 350 , 29 P.2d 575, 576 (1934).

. See State v. Moore, 230 Kan. 495 , 639 P.2d 458, 460 (1982), where the court acknowledged the doctrine but refused to permit the expert to testify because his testimony was general and not based on the specific facts of the case.

. Hughes Drilling Co. v. Morgan, 648 P.2d 32, 35 (Okl.1982); Seventeen Hundred Peoria, Inc. v. City of Tulsa, 422 P.2d 840 (Okl.1966).

. See Simms, J., Specially Concurring in Matter of Adoption of V.A.J., 660 P.2d 139, 145 (Okl.1983).