Goren v. United States Fire Insurance

HOLLANDER, Judge. Barbara Goren was killed on June 8, 1992, after the car she was driving crossed from the left lane of northbound Interstate 83 onto the southbound lanes, and was struck by an oncoming car. 1 Her husband, Robert Goren, appellant, brought suit in the Circuit Court for Baltimore City, individually and as personal representative of Ms. Goren’s estate, claiming that Elaine Moss, appellee, caused the accident by negligently operating her motor vehicle, which encroached into the decedent’s lane and forced Ms. Goren off the highway. Appellant also sued United States Fire Insurance Company (“United”), appellee, under the Gorens’ uninsured motorist ⁶⁷⁷ coverage, asserting, alternatively, that a phantom driver caused the accident. Additionally, appellant sued Genstar Stone Products Company (“Genstar”), appellee, claiming its negligent grading of the shoulder of the interstate caused Ms. Goren to lose control of her car when she swerved to avoid the other vehicle.

Genstar filed a third party complaint against the State Highway Administration (the “SHA”), appellee, claiming it had constructed the roadway according to SHA’s specifications. 2 After a jury found all defendants not liable, and Ms. Goren contributorily negligent, appellant brought this appeal, positing three questions for our review, which we have re-ordered: I. Did the court err by allowing a non-expert witness to render opinions regarding the causes of the traffic accident which he did not witness and to be cross-examined beyond the scope of his direct examination?

II

Did the trial court err in allowing all four appellees, whose interests were found to be adverse, to then combine together and exercise their peremptory challenges as a group concerted effort rather than separately?

III

Did the trial court err in permitting an accident reconstructionist to testify regarding opinions outside his scope of expertise? We answer the first question in the affirmative; the trial court erred in permitting appellees to elicit “expert opinions” from a lay witness. Thus, we shall reverse and remand for a new trial. For the guidance of the trial court on remand, we shall consider appellant’s second issue.

Although the court properly found that the appellees had adverse interests and were thus entitled to additional jury strikes, we conclude that the court erred in permitting defense counsel to confer in the exercise of their peremptory challenges. We decline to address the third question. ⁶⁷⁸ Factual Summary 3 On the morning of June 2, 1992, Barbara Goren was driving her car in Baltimore County, northbound on Interstate 83; when she was fatally injured in a car accident. Martin Droney, a telephone company employee, was driving in the same lane as Ms. Goren, approximately three cars behind her. Earl Harmon, a truck driver, was behind Droney.

Both men testified at trial about the events that they witnessed. According to Harmon and Droney, a car that was travelling in the lane to the right of Ms. Goren’s lane, and just slightly ahead of her car, gradually began to move into Ms. Goren’s lane. 4 Although the other car did not completely enter Ms. Goren’s lane, the driver’s-side wheels and some portion of that vehicle crossed into Ms. Goren’s lane. In response, Ms. Goren moved her car to the left (westerly), and the two left wheels of her car went off the roadway. Droney further testified that there was a “straight drop off’ between the paved road and the median, which he estimated measured four inches.

According to both witnesses, Ms. Goren’s car crossed the median of the highway, making between two and four 360 degree revolutions before coming to rest in a southbound lane of the highway. Ms. Goren was killed after her car was struck by an oncoming vehicle driven by Gene Campbell. Through the testimony of Charles Pembleton, an accident reconstruction expert, appellant sought to establish, inter alia, that the encroachment of the other vehicle contributed to the cause of the accident, and that the discrepancy between the roadway and the median caused Ms. Goren to lose control of her car. Appellant also called State Trooper Charles Robbins, the officer who investigated the accident, to testify to the ⁶⁷⁹ location of various items and to describe the scene of the crash.

In the defense case, Ms. Moss denied that she moved her vehicle into the lane occupied by Ms. Goren’s car. She said that she heard a loud noise, and then saw Ms. Goren’s car leave the paved highway, cross the median strip, and come to rest in an oncoming lane. The defense also called an accident reconstruction expert, Maryland State Trooper Sergeant Albert Leibnow, to refute the existence of a drop-off significant enough to cause the accident, and to establish that Ms. Goren was negligent. Additional facts will be included in our discussion of the issues.

I. Appellant argues that the trial court erred in permitting appellees to cross-examine Trooper Robbins, called by appellant as a fact witness, as if he were an expert witness. He asserts that the appellees improperly elicited opinions as to several critical aspects of the accident. Appellees counter that a trial judge has substantial discretion to permit a lay witness to testify to opinions that are helpful to the jury and rationally based on the witness’s observations. They also assert that the trial court did not abuse its discretion in this regard.

Trooper Robbins testified that he responded to the scene of the accident and investigated the crash, both on the morning of the accident and for several days afterward. He outlined the scene, including the location of the vehicles, the condition of the two cars involved in the accident, and the tire marks on the southbound lanes and in the median. The Trooper also described a construction barrel that was overturned on the northbound side of the highway, and explained that he found, near the barrel, the rear view mirror belonging to Ms. Goren’s car. Robbins further said that he took photographs and measurements of the scene and interviewed various witnesses, including Droney, Harmon, Campbell, Andrea McGill, the ⁶⁸⁰ driver behind Campbell, and Moss.

He also stated that he measured the drop-off at six or seven spots along the highway, which varied from 1/2 inch to 11/2 inches. It is undisputed that Trooper Robbins was not an accident reconstruction expert. 5 Indeed, he conceded that he had no special training in that field. Moreover, no party ever sought to offer him as an expert witness, and the court thus never received Robbins as an expert. 6 Nevertheless, on cross-examination, over appellant’s objection, Genstar introduced into evidence a diagram of the accident scene, drawn by Robbins before trial, that purported to show the location of various objects as well as his opinion of the travel path of Ms. Goren’s car. The following colloquy is relevant.

Counsel for appellant: I am objecting to his diagram because it is not what he found at the scene. It would be based on hear — it is what he heard as having happened. So it would be based on hearsay and based on a number of other things____ $ ^ ^ 4? In addition, it is an opinion and his testimony is based on opinion and I think that goes beyond the factual questions that I asked him.

I was very, very careful in asking questions about what he found at the scene and his interpretation. ⁶⁸¹ Counsel for Genstar: Well ... I am not saying this [diagram] is predicated upon hearsay. There is a photograph showing a barrel that he will identify as being down here in relation to obviously where everybody knows the car ended up. There are other photographs, Your Honor, showing tread marks, track marks across the median which would indicate the direction this was going and the fact there was no 360.

All of those are physical facts that he found at the time of his you know— The court: How does he know whether there was a 360 or not? Counsel for Genstar: Because you can tell from the tracks in the median, Your Honor. The court: And what difference does it make in this case whether there was a 360 or not? Counsel for Genstar: Because there are two witnesses who said there was a 360 and their credibility is being challenged right now.

The court: I am going to overrule the objection. Counsel for appellant: I am going to object and just trying to save my appellate rights. I am going to except to this coming in because, number one, it goes beyond the scope of his testimony. Number two, it goes beyond — and he was just called as a fact witness, as to what he found at the scene.

Number two, number two, it calls into — it permits him to testify as an expert in interpreting what he found and what information he was given. He has testified at deposition that he is not an accident reconstructionist. He has received no training in accident reconstruction. He is not a civil engineer and he has also received no training in the drawing of diagrams. ⁶⁸² Now, I think that on these matters that it goes beyond the scope the fact that he is not an expert, the fact that he is not an accident reconstructionist, the fact that he is basing his testimony partially on hearsay creates, I believe, reversible error to permit in this diagram and it is the last thing I want to see happen in this case.

The court: Let me do this. The only way for me to really rule on this matter is for me to hear all this testimony on the diagram out of the presence of the jury which I am not going to do. You have a continuing objection. Later, the court sustained appellant’s objections to testimony concerning Trooper Robbins’s opinion of the cause of the accident.

The court stated: Nobody ever asked him to be qualified as one. He has been called to the witness stand as a fact witness. He is going — As a result of his investigation he is going to make a big leap to a conclusion. At least it sounds like a big leap to me____ He is not an expert.

He has not been qualified as an expert. He has testified as to his investigation. It does go to the ultimate issue in this case as to causation. I am not satisfied without him being an expert witness, never having been qualified as an expert witness or even offered as an expert witness for purposes of this discussion that he should be allowed to testify as to that ultimate issue.

Notwithstanding numerous objections from appellant, the court permitted the defense to question Robbins about his ⁶⁸³ interpretation of other important aspects of the accident. 7 The following exchanges are illustrative. Counsel for Genstar: Did the marks made by that vehicle as it crossed the median into the southbound lane indicate any 360 degree revolution? Counsel for appellant: Objection. The court: Overruled.

Counsel for Genstar: I am sorry. Trooper Robbins: No, sir, they did not. JjC i«J ij: Counsel for Genstar: How many times did Mrs. Goren leave the roadway according to your investigation? Trooper Robbins: That was— Counsel for appellant: Objection.

The court: Overruled. Trooper Robbins: Twice that she left the road. Counsel for Genstar: Twice plus or twice including the time she crossed the median? Trooper Robbins: Including that time.

She never really got back up onto the roadway completely. Counsel for Genstar: So she hit the [construction] barrel and came back onto the grass how many times after that? Trooper Robbins: She hit the barrel and then came back on with two wheels on the grass, then came back completely into lane one northbound, and then went back into the grass with two wheels, and then in trying to correct, and then went completely off the road. Counsel for Genstar: So if my math is correct there were a total of three times that she went into the grass?

Counsel for appellant: Objection. The court: Let the witness tell us. ⁶⁸⁴ Counsel for Genstar: It is cross-examination, Your Honor. The court: Let the witness tell us. Counsel for Genstar: Yes, sir.

Trooper Robbins: I think it would have been basically three but she never really got all of her wheels out for the third time. H< Hí H< H* H* Counsel for SHA: Now, when the vehicle came back onto the road did there come a point where it went off the road again? Trooper Robbins: Yes, it did. Counsel for appellant: Same objection.

The court: Overruled. Counsel for SHA: How many wheels went back onto the median at that point? Trooper Robbins: Two wheels, sir. Counsel for SHA: Ókay, and did four wheels ever go onto the median at that point when the vehicle started going on a second time?

Trooper Robbins: Not immediately but they did not long after that. Counsel for SHA: Now, at that point when the vehicle went off a second time did it ever come back onto the road? Trooper Robbins: Not completely, no, sir. The two left wheels stayed in the median.

Hi ❖ * H* * Counsel for SHA: In the course of your accident investigation are you trained to determine whether a car has applied its brakes in a situation like this? Trooper Robbins: Yes, sir. Counsel for SHA: And how do you make that determination? Trooper Robbins: The marks left by the wheels are different depending on what the speed of the vehicle — whether it ⁶⁸⁵ was braking, whether it was moving to one side or whether it was moving at a constant speed.

Counsel for SHA: Okay, and the brake marks, the marks that are made from braking are different on pavement that on grass, correct? Trooper Robbins: Yes. Counsel for SHA: Now, did you make a determination as to whether or not Mrs. Goren applied her brakes between the time she first went off the road and the time she finally went off road and crossed the median? Counsel for appellant: Objection.

The court: Overruled. Trooper Robbins: Yes, sir, I did. Counsel for SHA: And what was your determination? Trooper Robbins: That she hadn’t.

She hadn’t braked at any time. “The rule in Maryland is that a lay witness is not qualified to express an opinion about matters which are either within the scope of common knowledge and experience of the jury or which are peculiarly within the specialized knowledge of experts.” King v. State, 36 Md.App. 124 , 373 A.2d 292 , cert. denied 281 Md. 740 (1977). A lay witness may opine “on matters as to which he or she has first-hand knowledge.” Waddell v. State, 85 Md.App. 54, 66 , 582 A.2d 260 (1990). See also Tedesco v. Tedesco, 111 Md.App. 648, 666 , 683 A.2d 1133 (1996); L. McClain, Maryland Evidence § 602.1 (1987). Only lay opinions that are “rationally based on the perceptions of the witness and helpful to the trier of fact” are admissible, however.

Wyatt v. Johnson, 103 Md.App. 250, 268 , 653 A.2d 496 (1995); McLain, supra, § 701.1, at 192. The admissibility of a lay opinion is vested in the sound discretion of the trial court. Tedesco, 111 Md.App. at 666 , 683 A.2d 1133 ; Wyatt, 103 Md.App. at 268 , 653 A.2d 496 ; Waddell, 85 Md.App. at 66 , 582 A.2d 260 ; Yeagy v. State, 63 Md.App. 1, 22 , 491 A.2d 1199 (1985). ⁶⁸⁶ The general principle governing lay opinions is embodied in Maryland Rule 5-701, which states: If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. The two requirements in Rule 5-701 for the admissibility of lay opinions are conjunctive.

Thus, a lay opinion must be based on the perceptions of the witness and must be helpful to the trier of fact. A classic example of the type of lay opinion that is properly admissible is found in Brown v. Rogers, 19 Md.App. 562 , 313 A.2d 547 (1974), in which a mother testified that after her child was struck by a car, the child was in great pain during her hospital stay. We said: Such testimony has generally been admitted where all the transient physical conditions which the witness observed— tone of voice, expression of the face, the movement of the limbs-which indicated the injured person was in pain could not be reproduced for the jury in such precision and fullness as to impress the jury in the same manner as the observer was impressed and as to permit the jury to draw its own inference. Id. at 568-69 , 313 A.2d 547 .

See also Beahm v. Shortall, 279 Md. 321, 336 , 368 A.2d 1005 (1977) (finding that a lay witness could testify as to the speed of an object); Mulligan v. Pruitt, 244 Md. 338 , 223 A.2d 574 (1966) (finding that a lay witness could testify to the length of skid marks). We recognize that “[t]he distinction between fact and opinion is often difficult to draw.” Joseph F. Murphy, Jr., Maryland Evidence Handbook § 603(B), at 330 (1993). Appellees seem to concede that the Trooper offered opinion testimony in various respects. They argue, however, that the testimony was properly admitted as lay opinion, because it was based on the Trooper’s perceptions of the evidence and was helpful to ⁶⁸⁷ the jury, to explain the path of Ms. Goren’s car after she lost control of the vehicle, and other matters.

We are of the view that Robbins’s opinions were not properly admitted as lay opinion testimony. “[W]hen ... the witness is ‘pulling together’ his observations and is therefore testifying to conclusions, the trial judge should not admit such testimony.” Murphy, supra, § 603(B), at 328. See, e.g., In re Nawrocki, 15 Md.App. 252 , 289 A.2d 846 (1972) (finding that officer’s testimony that juvenile used “profane” language was conclusory; it was for the trier of fact to determine if the language was “profane”). Much of the Trooper’s testimony included his conclusions based on his investigation of the occurrence. For example, he testified about the following: Ms. Goren never applied her brakes during the occurrence; her vehicle left the roadway twice; she struck the construction barrel; after she hit the barrel, she had two wheels on the grass and then returned to the northbound lane before again going completely off the road; her car did not make any 360 degree revolutions.

This testimony certainly exceeded a recitation of facts that Robbins observed at the scene. Moreover, Robbins’s testimony did not satisfy the requirements of Rule 5-701. First, it is clear that the Trooper’s opinions were not based upon events that he witnessed; he acknowledged that he was not present at the time of the accident. Second, Robbins’s opinions were not helpful to the jury, within the meaning of the rule, because they were the type of opinions that required an expertise in accident reconstruction, which Robbins admittedly did not possess.

See McLain, supra, at 195-96 (“[I]mpermissible opinions can be broken down further into two sub-categories.... The second sub-category is comprised of matters as to which a person would have to be an expert in order to be able to reach a rational conclusion.” (Emphasis added)). See also Bruce v. State, 328 Md. 594, 630 , 616 A.2d 392 (1992) (stating that, historically, non-expert opinions have been excluded from evidence in areas in which only an expert could reach a rational conclusion), cert. denied, 508 U.S. 963 , 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993). ⁶⁸⁸ Our decision in Mitchell v. Montgomery County, 88 Md.App. 542 , 596 A.2d 93 (1991) is instructive. There, the County called as a “fact witness” an employee of the Maryland Department of Transportation, who was not present at the time of the accident, to “describe the road” on which the plaintiff had been struck by a County-owned .bus.

Although the witness was never offered or received as an expert witness, “it quickly became apparent that he was testifying, in significant part, to matters which constituted expert opinion.” Id. at 550 , 596 A.2d 93 . The County, for example, elicited opinions from the employee that the road was a “major arterial highway,” “a limited access highway,” and that the right hand lane of the road was an “acceleration, deceleration lane for ingress.” We reasoned that the testimony concerned “technical terms about which the average layman cannot testify based on his or her own perceptions and experiences.” Id. at 552, 596 A.2d 93 . Because the testimony “was central to both [appellant’s] theory of primary negligence and the County’s affirmative defense that Mitchell was contributorily negligent,” id. at 553, 596 A.2d 93 , appellant was prejudiced. 8 Similarly, the opinions offered by Robbins concerned areas about which the average lay person, without the benefit of training in accident reconstruction techniques, could not testify. Robbins provided a “cloak of ‘expertise’ without the trouble or the formalities of qualification [as an expert].” Mitchell, 88 Md.App. at 552 n. 6, 596 A.2d 93 .

Even if the court erred, appellees vigorously assert that appellant was not prejudiced, because the Trooper’s testimony concerned only the question of Ms. Goren’s contrib ⁶⁸⁹ utory negligence, and not the alleged negligence of appellees. They reason that since the jury found them not liable, irrespective of Ms. Goren’s contributory negligence, reversal is not appropriate on this issue. We disagree. In our view, Trooper Robbins’s testimony cannot be so neatly cabined.

At trial, appellees stated that their questions of Trooper Robbins were directed at attacking the credibility of Droney and Harmon, two of appellant’s witnesses. Unlike Robbins, however, Droney and Harmon were eyewitnesses to portions of the occurrence. Further, while the jury could have used much of the Trooper’s testimony to decide the issue of contributory negligence, we cannot say that it did not rely on some of the objectionable testimony to resolve the issues of appellees’ primary negligence. For example, appellant postulated that the drop-off from the roadway to the median caused Ms. Goren to lose control of her car and spin into oncoming traffic.

Robbins’s testimony that Ms. Goren’s car left the roadway twice, and did not make 360 degree revolutions in the median strip, arguably bears on the grading of the shoulder, an important factor in deciding Genstar and SHA’s liability. If the jury believed that Ms. Goren was able to return to the roadway at least once, and that her car did not make revolutions in the median, they may have concluded that the drop off was not a significant factor in causing the accident. Further, with respect to the issue of proximate cause, independent of any consideration of Ms. Goren’s contributory negligence, the jury may have relied on the Trooper’s opinions about the path of Ms. Goren’s car, the distance the car travelled, and whether the car left the road way twice. Moreover, although appellee’s accident reconstruction expert, Leibnow, testified to some of the same conclusions that Trooper Robbins offered, Robbins’s testimony was clearly more damaging to appellant.

After all, Robbins was appellant’s witness. While the jury may have viewed Leibnow as a “hired gun,” damaging information from a witness called by ⁶⁹⁰ the plaintiff provided an unfair and powerful advantage to appellees. In sum, the court erred in permitting Robbins to offer his opinions that Ms. Goren struck the construction barrel, whether and how often Ms. Goren’s car left the road, the path that her car travelled, whether Ms. Goren applied her brakes, and whether her car performed 360 degree revolutions. Further, to the extent that the Trooper’s diagram depicted Robbins’s opinion of the travel path of the vehicle, it, too, was improperly admitted.

Our view is premised on the fact that the Trooper lacked the expertise to evaluate the underlying facts that formed the basis of his testimony. The error warrants a new trial.

II

For the benefit of the court on remand, we shall address appellant’s claim that the court erred in permitting the defense to collaborate in the exercise of their peremptory challenges. 9 Md. Rule 8-131(a). In particular, we shall consider whether co-parties, to whom the trial court properly awarded additional peremptory challenges, are entitled to confer and cooperate in using those strikes. We conclude that co-parties are not permitted to do so. As a result of its finding of adverse interests between the co-defendants, the court awarded each defendant five peremptory challenges.

After the removal of certain veniremen for cause, however, there was an insufficient number of potential jurors remaining in the pool when compared to the total number of combined strikes available to the parties. Accordingly, all counsel agreed, with the trial court’s approval, that each party would exercise three peremptory strikes. Prior to the actual selection of the jury, appellant asked the court to