Tolliver v. Department of Transportation

SILVER, J.,

dissenting in part and concurring in part.

[¶ 53] I agree that MDOT is not entitled to discretionary function immunity and concur in Part A of the Court’s opinion, but disagree that the court erred in admitting the expert testimony of Laurent Lavigne, and I therefore respectfully dissent with respect to Part B. I would affirm the jury verdict in favor of Tolliver. Because the issue of Lavigne’s testimony ultimately turns on weight rather than admissibility, a distinction the majority fails to make, I would affirm the court’s admission of his testimony that the lack of an edge line was a substantial cause of the accident.

A. Lavigne’s Expert Witness Testimony

[¶ 54] Lavigne testified he had forty years of experience as a civil engineer working on road construction of major highway projects and nearly as many years working in paving and striping activities. Lavigne’s roles were primarily supervisory, including project engineer, superintendent, regional manager, and vice president of operations. Although the vast majority of Lavigne’s experience was with projects outside the State of Maine, he testified that the standard throughout most states is the same; that fine striping should be done within two or three days, *1240 no longer than a week after the paving of the surface course.

[¶ 55] While employed as the regional manager for Barrett Paving in Bangor from 1999-2004, Lavigne supervised thirteen highway construction projects with the State of Maine Department of Transportation. Lavigne testified that the MDOT required that line striping be done within two to three days, and no longer than a week, after the completion of the surface course, to ensure the safety of the pedestrian and driving population. He further testified that he visited the accident site and took photos; he reviewed construction consultant Ken Bun-ill’s report; and that in his opinion, the lack of an edge line was “a substantial contributing factor” to the accident.

[¶ 56] According to State v. Williams, the seminal case on the admissibility of the testimony of expert witnesses, and its progeny, it is the judge’s role to act as the gatekeeper to determine admissibility and the jury’s role to determine the weight of expert testimony. 388 A.2d 500, 504-05 (Me.1978) (holding that as long as the proffered expert is qualified, the controlling criteria regarding admissibility is whether in the sound judgment of the presiding Justice the testimony is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue). We review a court’s finding that an expert’s testimony is sufficiently reliable for clear error. Searles v. Fleetwood Homes of Pa., Inc., 2005 ME 94, ¶ 24 , 878 A.2d 509, 516 . The clear error standard is highly deferential. “The trial judge has the best vantage point to make judgments on issues such as credibility. The appellate court’s cold transcript is a pale substitute. As such, the facts are considered to be the sole province of the judge or jury.” Hon. Andrew M. Mead, Abuse of Discretion: Maine’s Application of A Malleable Appellate Standard, 57 Me. L.Rev. 519, 524 (2005). Further, we afford a trial court wide discretion to determine whether the danger of unfair prejudice posed by relevant evidence substantially outweighs the value of proffered evidence under M.R. Evid. 403. See State v. Millay, 2001 ME 177, ¶ 11 , 787 A.2d 129, 131-32 ; Todd v. Andalkar, 1997 ME 59, ¶ 6 , 691 A.2d 1215, 1217 .

[¶ 57] The Maine Rules of Evidence provide:

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.

M.R. Evid. 702.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

M.R. Evid. 703.

[¶ 58] Lavigne’s testimony was clearly admissible because his qualifications as a road construction expert and his knowledge of the safety purposes underlying edge lines on roads were established at trial. The touchstones of admissibility, namely (1) whether his testimony was relevant, and (2) whether it was useful to the jury in understanding the evidence or determining a fact in issue, see id, were clearly satisfied here. Cf. Castine Energy Const., Inc. v. T.T. Dunphy, Inc., 2004 ME 129, ¶¶ 13-14 , 861 A.2d 671, 677 (former state trooper permitted to testify with re *1241 gard to trucking safety issues because “he had extensive experience with enforcing safety regulations” and his “knowledge was useful with respect to safety standards and issues”).

[¶ 59] Federal case law also favors the admissibility of the evidence. F.R. Evid. 702 is identical to M.R. Evid. 702. In Daubert v. Merrell Dow Pharm., Inc., the Supreme Court held that expert testimony is admissible only if it is both relevant and reliable, and assigned trial judges the role of gatekeepers. 509 U.S. 579, 590-93 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993). The Court has reaffirmed these principles many times. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999).

[¶ 60] The Court in Kumho Tire expanded Daubert’s general holding, setting forth the trial judge’s gatekeeping function, to apply to testimony based on technical and other specialized knowledge in addition to scientific knowledge. 526 U.S. at 147-48 , 119 S.Ct. 1167 . The Court quoted Judge Learned Hand, who explained that the role of experts, not just scientific experts, is to help the jury understand principles or theories that are beyond life’s common experiences: “Experts of all kinds tie observations to conclusions through the use of ... ‘general truths derived from ... specialized experience.’ ” Id. at 148 , 119 S.Ct. 1167 . Judge Hand further observed that the expert’s specialized experience will be “confessedly foreign in kind to [the jury’s] own.” Id. at 149 , 119 S.Ct. 1167 . Kumho Tire linked Judge Hand’s insights to the current role of the trial courts: “The trial judge’s effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.” Id.

[¶ 61] In United States v. Salimonu, a criminal case in which the defendant used a code name to illegally import drugs, the First Circuit affirmed a district court’s decision to exclude a linguistic expert’s testimony. 182 F.3d 63 (1st Cir.1999). Voir dire revealed that the witness had no training in voice recognition, had engaged in voice recognition only two or three times before, did not know whether the voices on the tapes had been disguised, and that a lay person without linguistics training would be able to discern the same differences in the tapes, if any, that he had found. Id. at 73 . Relying on Kumho Tire, the First Circuit held that the district court properly exercised its sound discretion to exclude the linguistic expert’s testimony because the opinion lacked any indi-cia of reliability. Id. at 74 .

[¶ 62] Contrary to the testimony proffered by the expert in Salimonu, Lavigne’s testimony offered many indicia of reliability, including his decades of experience as an engineer and supervisor on road construction projects, his firsthand knowledge of the accident site, and his unique expertise as a consultant to MDOT paving and striping projects. See id'. There is no question that Lavigne’s knowledge as to the requisite MDOT paving/striping time-frame and its implications on safety for both pedestrians and vehicles were clearly “specialized” and “foreign” to that possessed by the jury. See Kumho Tire, 526 U.S. at 149 , 119 S.Ct. 1167 .

[¶ 63] It was therefore appropriate for the judge in this case to admit Lavigne’s testimony and then allow the jury to determine whether the lack of striping was in fact a proximate cause of this particular accident. The existence of proximate cause is a question of fact, not law, see, e.g., Grover v. Boise Cascade Corp., 2003 *1242 ME 45, ¶ 11 , 819 A.2d 822, 324 , and further, it is permissible for “an expert to testify regarding factual issues that also concern legal standards.” Castine Energy, 2004 ME 129, ¶ 15 , 861 A.2d at 677 .

[¶ 64] Contrary to the majority’s contention that Lavigne’s testimony was speculative and therefore infringed on the role of the jury, the primary purpose of witness testimony is to provide the fact-finder with an opportunity to weigh competing evidence from different perspectives. To prevent a witness with the credentials and expertise of Lavigne from testifying altogether, however, would be a considerable impediment to plaintiffs seeking justice. Cross-examination allows opposing counsel to demonstrate to the jury that an expert witness’s opinion should not be accorded significant weight if, for example, as in this case, the witness lacked knowledge of the victim’s state of intoxication or the tortfea-sor’s story of how the accident was caused.

B. Proximate Cause

[¶ 65] The majority also errs in finding that Tolliver failed to otherwise present sufficient evidence on proximate cause such that a reasonable fact-finder could conclude that the lack of an edge line was a proximate cause of the accident in this case. Because there is ample evidence, even absent Lavigne’s testimony, to support a finding of proximate cause by the jury, I would affirm the trial court’s denial of MDOT’s motion for judgment as a matter of law.

[¶ 66] We review the denial by the trial court of a motion for a judgment as a matter of law “to determine if any reasonable view of the evidence and those inferences that are justifiably drawn from that evidence supports the jury verdict.” Kaechele v. Kenyon Oil Co., Inc., 2000 ME 39, ¶ 17 , 747 A.2d 167, 173 (citations omitted); see also Houde v. Millett, 2001 ME 183, ¶ 11 , 787 A.2d 757, 759 (the question of proximate cause is a question of fact, and “a judgment as a matter of law is improper if any reasonable view of the evidence could sustain a finding of proximate cause”).

[¶ 67] The testimony given by Stephen Landry, the MDOT traffic engineer, that the edge line is intended as a safety measure for vehicles and pedestrians, and Karen Simone, the MDOT toxicologist, about the' process of “tracking,” whereby a driver or pedestrian follows some form of marker on the road, in order to stay in their lane of travel, support the conclusion that the presence of an edge line would have assisted both Ms. Knight in staying out of the breakdown lane and Mr. Tolliver in staying further away from the travel lane. Sgt. Estabrook testified that, on the days preceding the accident, he observed vehicles traveling at high rates of speed on Route 302, in what he knew to be the unstriped breakdown lane, which was atypical, further supporting Tolliver’s conclusion that the lack of an edge line created greater confusion for drivers, including Ms. Knight.

[¶ 68] The court’s denial of the MDOT’s motion should be upheld if there is “any reasonable view of the evidence” that would support the jury’s verdict. Kaechele, 2000 ME 39, ¶ 17 , 747 A.2d at 173 . The evidence presented by Landry, Simone, and Estabrook was clearly sufficient for the jury to conclude that the MDOT’s failure to apply an edge line within a reasonable timeframe was a proximate cause of Tolliver’s injuries. The majority seeks to circumvent the jury’s verdict for the plaintiff by taking away both the trial judge’s and jury’s discretionary powers in this case for reasons that are unclear.

C. Discretionary Function Immunity

[¶ 69] I also write separately to address the arguments raised in the concur *1243 ring opinion. Painting fog lines on roads does not require any particular expertise that is unique to the function of a government entity, in this case, MDOT. As La-vigne’s testimony demonstrates, his four decades of experience with road construction brought him around the country paving and striping roads with both governmental and non-governmental entities, with the same processes and results, regardless of the entity in charge.

[¶ 70] As our holdings in Rodriguez v. Town of Moose River, 2007 ME 68 , 922 A.2d 484 and Adriance v. Town of Standish, 687 A.2d 238 (Me.1996) illustrate, discretionary function immunity may not be invoked “where the questioned conduct has little or no purely governmental content but instead resembles decisions or activities carried on by people generally.” Rodriguez, 2007 ME 68, ¶ 22 , 922 A.2d at 490 (quotation marks omitted). Taken to its logical conclusion, the concurring opinion’s broad interpretation of discretionary function immunity would insulate virtually every governmental entity from any kind of tort suit because all operational, policy, and scheduling decisions would be treated as uniquely governmental and therefore subject to immunity under the Maine Tort Claims Act.

[¶ 71] Here, one MDOT employee was wholly in charge of implementing all striping activities. This striping was a routine operational function that did not implicate any policy evaluation or judgment on his part. He did not hold a degree in engineering and did not decide whether Route 302 needed to be striped. He was not making decisions for the MDOT on its overall schedule of operations or its prioritization of projects, and he was not juggling the Route 302 repaving with other projects. See, e.g., Carroll v. City of Portland, 1999 ME 131, ¶¶ 2-3, 9 , 736 A.2d 279, 281, 283 (denying discretionary function immunity to police officer who mistakenly identified plaintiff as a wanted person to the local television station and clarifying that “ministerial” as opposed to discretionary acts, are “those to be carried out by employees, by the order of others or of the law, with little personal discretion as to the circumstances in which the act is done”). This is simply not the type of policy-related activity that discretionary function immunity was designed to protect. A function cannot be defined as discretionary merely because it involves some aspect of choice. If that were the case, almost any activity, no matter how routine or lacking in policy-related content, would be shielded by immunity. The concurring opinion also implies that tight budget concerns and constraints on resources would permit a less stringent application of the MTCA. I find that argument to be far-reaching and implausible because this is clearly not the case here.

[¶ 72] In essence, under the concurring opinion’s definition, any kind of choice made by a governmental entity would invoke protection under the MTCA, therefore rendering such tort claims meaningless and leaving the public with no recourse against unchecked, unsafe, and negligent government tortfeasors. I therefore agree with the majority and read discretionary function immunity much more narrowly, to distinguish ministerial acts as decisions carried out on a day-to-day operational level from actions entitled to discretionary function immunity because they “serve[ ] the basic governmental objective of public safety,” Norton v. Hall, 2003 ME 118, ¶¶ 7-9 , 834 A.2d 928, 931 , and are “essential,” Doucette v. City of Lewiston, 1997 ME 157, ¶ 6 , 697 A.2d 1292, 1294 . I agree that road striping and paving in this context was ministerial and MDOT should not be entitled to the protection of discretionary function *1244 immunity under the Maine Tort Claims Act.