# Brinegar v. Robertson Corp.

> Indiana Court of Appeals · February 28, 1990 · 550 N.E.2d 812

URL: https://www.frixlaw.com/law-library/cases/9713232

## Case

- **Full name:** Gladys BRINEGAR and Harold F. Hodges, Appellants, v. ROBERTSON CORPORATION, Appellee
- **Court:** Indiana Court of Appeals
- **Decided:** February 28, 1990
- **Citations:** 550 N.E.2d 812; 1990 Ind. App. LEXIS 233; 1990 WL 18433
- **Precedential status:** Published
- **Opinion:** Concurrence by Ratliff
- **Judges:** Miller, Ratliff, Conover
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

RATLIFF, Chief Judge,
concurring.
I concur completely with Judge Miller's opinion on the Issues One and Three. I concur in result as to Issue Two for the reasons hereinafter stated.
In discussing the admissibility of expert testimony, Judge Miller appears to follow the archaic rule that for expert testimony to be admitted, the subject must be beyond the range of common knowledge and experience. I cannot accept this view of the law.
In Summers v. State (1986), Ind.App., 495 N.E.2d 799 , we laid the holding of the older cases to rest in favor of the modern view that expert testimony is admissible if the witness is qualified by knowledge, skill, experience, training, or education to give such testimony and that testimony would aid the jurors in understanding the facts. In Summers we said:
''The trend of recent cases seems to focus more attention on the knowledge and skill of the expert and whether the expert's opinion will be helpful to the trier of fact than on the question of the knowledge of the jury. See EW. Cleary, McCormick on Evidence, at 38 (8d ed. 1984).
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The modern trend is away from strict application of the rule excluding expert testimony on subjects within the common knowledge of jurors. Carlson v. Hudson (1974), 19 Ill.App.3d 576 , 312 N.E.2d 19 ; Stanley v. Board of Education (1973), 9 Ill.App.3d 963 , 293 N.E.2d 417 .
"Traditionally, expert testimony has not been permitted when its subject matter is not beyond the knowledge and experience of the average juror [citation omitted], but more recently, the trend is to permit it if the expert has some special knowledge and his testimony is of aid to the jury even though the average juror would also have some knowledge of the subject matter. [Citations omitted.]
Binge v. J.J. Borders Construction Co. (1981), 95 Ill.App.3d 238 , 50 Ill.Dec. 788, 791 , 419 N.E.2d 1237, 1240 . The modern standard for admissibility of expert testimony is whether that testimony will aid the jurors in understanding the facts. Johnson v. Commonwealth Edison Co. (1985), 133 Ill.App.3d 472 , 88 Ill.Dec. 449 , 478 N.E.2d 1057 . In order to be admitted into evidence, the expert testimony must assist the trier of fact in understanding the evidence or deciding a factual issue, and the witness must be qualified by knowledge, skill, experience, training, or education to give such testimony. Ruffiner v. Material Service Corp. (1985), 184 Ill.App.3d 747 , 89 Ill.Dec. 414 , 480 N.E.2d 1157 ."
495 N.E.2d at 802-3 .
Our supreme court appeared to have adopted the Summers test in Mihay v. State (1987), Ind., 515 N.E.2d 498 . Unfortunately, as pointed out by Judge Miller in Estate of Hunt v. Board of Commissioners of Henry County (1988), Ind.App., 526 N.E.2d 1230 , our supreme court in Brooke v. State (1987), Ind., 516 N.E.2d 9 , reverted *820 to the old rule. Again, in Henson v. State (1989), Ind., 535 N.E.2d 1189 , the court reiterated the traditional rule. However, in Wissman v. State (1989), Ind., 540 N.E.2d 1209, 1218 , our supreme court stated:
"Expert testimony is inappropriate and may be excluded when it concerns mat ters within the common knowledge and experience of ordinary persons and which the jury may determine as well as the expert. Grimes v. State (1983), Ind., 450 N.E.2d 512 . However, even if evidence is not beyond the knowledge and expertise of the average juror, the expert may nevertheless testify concerning his special knowledge of the subject. Summers v. State (1986), Ind.App., 495 N.E.2d 799 ."
Therefore, I remain steadfast in my belief that the rule announced in Summers is the proper test for the admissibility of expert testimony. My opinion is buttressed further by the recognition of the holding in Summers in Justice Givan's opinion in Wissman.
The standards embodied in the modern rule as espoused in Summers were met here. Further, I quite agree that a qualified expert witness may give an opinion as to an ultimate fact in issue. Breese v. State (1983), Ind.App., 449 N.E.2d 1098 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713232. Public record. Not legal advice.