COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70186, 70258 AND 70481 : JULIE MCCONAUGHY ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : JAMES M. HERHOLZ : : Defendant-Appellee : : DATE OF ANNOUNCEMENT JANUARY 30, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 217558, 220724, and 231951 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee Julie McConaughy: James Herholz: THOMAS G. KELLEY, ESQ. TERRENCE J. KENNEALLY, ESQ. 516 Standard Building Savoy, Bilancini, Flanagan 1370 Ontario Street & Kenneally Cleveland, Ohio 44113 595 West Broad Street Elyria, Ohio 44035 - i - For Plaintiff-Appellant JEREMY SANDERS: RICHARD W. DUNSON, ESQ. Dunson & Dunson 21851 Center Ridge Road Suite 410 Rocky River, Ohio 44116 CRAIG KOMAR: DANIEL J. RYAN, ESQ. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: A. J. HILL RICHARD C. TALBERT Meyers, Hentemann, Schneider & Rea 21st Fl. Superior Building 815 Superior Avenue Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, P.J.: Plaintiffs-appellants Craig T. Komar, Jeremy Sanders, and Julie McConaughy appeal from a judgment in favor of Defendant- 1 appellee James M. Herholz and assign six errors for our review. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. On March 15, 1990 at 3:30 p.m., a group of eighth grade students were returning to North Olmsted Middle School when they approached the intersection of Butternut Ridge Road and Dover Center Road. As they attempted to run across Butternut Ridge Road in the cross-walk, several of the children, Komar, Sanders, and McConaughy, were struck by a vehicle driven by Herholz. Komar did not see the pedestrian crossing signal before crossing the street. At the time of the accident, Herholz was driving his car eastbound on Butternut Ridge and the traffic light facing him was green. As soon as the children came into his field of vision, he applied his brakes but was unable to stop in time to avoid hitting them. The speed limit on Butternut Ridge was 35 m.p.h. During the trial, several witnesses gave their opinion regarding Herholz's speed. Jodi Bosak estimated the car was traveling at 40 m.p.h. Lois Wimmer estimated Herholz was not traveling at more than the posted speed limit. Jim Wilson estimated the car was traveling 1 See Appendix for assigned errors. -3- between 20 to 25 m.p.h. Herholz testified his speed was between 30 and 35 m.p.h. Officer Shenkelberg of the North Olmsted Police Department responded to the scene. He prepared the official accident report and conducted skid mark measurements to determine Herholz's speed. In his report, he concluded Herholz's minimum rate of speed was between 29.5 and 34 m.p.h. Shenkelberg, however, was unavailable to testify at trial. Instead, the plaintiffs produced the testimony of his assistant, Officer Walter J. Novak, who had assisted Shenkelberg at the scene and with the report. William Jackman testified as an accident reconstruction expert for the plaintiff. He stated the minimum rate of speed of the car was between 36 and 41 m.p.h. The case was submitted to the jury and, in response to interrogatories, they found Komar, Sanders, and McConaughy were negligent, their negligence was the proximate cause of the accident, and their share of the negligence was 100%, and Herholz was not negligent. Judgment was rendered in favor of Herholz. This appeal followed. Komar filed an Appellant's Brief and Sanders and McConaughy join in his assigned errors. In his first and second assignments of error, Komar argues the trial court abused its discretion in limiting the testimony of the plaintiffs' expert witness, William Jackman. Evid.R. 611(A) provides as follows: -4- (A) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. A trial court's control of the mode and order of interrogation under Evid.R. 611(A) is a matter within its discretion. Therefore, a reviewing court must determine whether the trial court abused its discretion in the control of the interrogation of witnesses. See State v. Davis (1992), 79 Ohio App.3d 450, 454; Sowers v. Middletown Hosp. (1993), 89 Ohio App.3d 572, 588. In this case, the issue is whether the trial court abused its discretion in limiting the testimony of plaintiffs' expert. Evid.R. 702 (Amended eff. 7-1-94) provides as follows: A witness may testify as an expert if all of the following apply: (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; -5- (3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result. Under Evid.R. 702(C), expert testimony must meet a "threshold standard of reliability." Evid.R. 702, Staff Note (July 1, 1994). Under Ohio law, "***reliability is properly determined only by reference to the principles and methods employed by the expert witness, without regard to whether the court regards the witness's conclusions themselves as persuasive or correct." Id. Although reliability generally goes to the weight of expert testimony rather than to its admissibility, the threshold criteria for the admissibility of reliable expert testimony is set forth in Evid.R. 702(C). See, also, State v. Pierce (1992), 64 Ohio St.3d 490, 498 (absent evidence of deficient testing standards, the court could not find DNA test results unreliable as a matter of law). Here, Jackman testified as the plaintiffs' expert. The fact that his testimony involved specialized knowledge was not disputed. See Evid.R. 702(A). He testified at length as to his qualifications, which also is not in dispute. See Evid.R. 702(B). During his testimony as to his qualifications, the trial court interrupted plaintiffs' counsel and called a side bar conference off the record. After the side bar conference, the following colloquy took place in open court before the jury: Q Mr. Jackson, I believe that there has been entered into an understanding that I will be able to inquire into your opinions as to the speed of the vehicle and as to your investigation of this accident is my understanding. So I'm going to take you directly to we're not going to inquire any more into your background. Everybody agrees that you're qualified, okay? -6- What I'm going to do now is take you directly to that accident scene on March 15, 1990, okay? A Yes, sir. Q All right. You received a contact from me to investigate an accident THE COURT: Now, just a minute. MR. RYAN: I'm sorry. THE COURT: What we agreed was that you would ask basically one question, did he have an opinion, did this man formulate an opinion based upon the skid marks as to what the probable minimum speed of the vehicle was prior to the time and about the time of the collision. That was we agreed that's the question. Whatever answer he gave MR. RYAN: I THE COURT: Now, just a minute. We've got five other lawyers or four other. They all agreed that would end his testimony. Do you have a question? MR. RYAN: I have to discuss it further with the Court then. THE COURT: Nothing further to discuss. That's what we had you out in chambers for, so that each one of you wouldn't pick up and go over the whole thing and go into his background and a few other things. MR. RYAN: But, I THE COURT: The jury has heard what his background is. Sir, you're restricted to one question. The question is, has he formulated an opinion as to what the minimum speed of that vehicle was prior to the time of the collision. That's it. That's what we agreed on. Everybody else agreed to go along with it. MR. RYAN: That the agree THE COURT: I'll ask the question then. [MR] RYAN: But that's not the agreement, your Honor. -7- THE COURT: That's what we agreed on. MR. RYAN: There is underlying THE COURT: The jury's been listening to, you know, figures, statistics, papers out of files and a lot of other things that's not necessary, not necessary because we had this conference back here. Sir, did you formulate an opinion, based upon your expertise and your experience and the fact you've been in court a few times before, haven't you? THE WITNESS: Yes, sir. THE COURT: as to what the minimum speed of the vehicle was as it was proceeding along the road there and prior to the time of the impact with the children? THE WITNESS: Yes. THE COURT: What's your opinion? THE WITNESS: 36 to 41 miles per hour. THE COURT: So that was what our agreement was. MR RYAN: Not my agreement. THE COURT: Sir, you're finished. MR. RYAN: That's your Honor please. Please, your Honor, can I discuss this? THE COURT: Thank you very much. MR. RYAN: There is more. He has five or six other things he got into. THE COURT: It isn't necessary. That's the reason we took the time to go over it with you people, so that you all wouldn't be asking the same questions and repeating it MR. RYAN: I could complete in five minutes. I could complete in five minutes what I need to do. THE COURT: Sir, he is finished. Thank you, sir, for being with us. -8- Thereafter, the trial judge indicated on the record, outside the presence of the jury, that he was following the procedure agreed upon during the side bar conference. The trial judge excused Jackman from the witness stand and plaintiffs' counsel requested an opportunity to proffer additional evidence. After some discussion, the trial court ruled that there was "no need for any proffer." The trial judge's limitations of Jackman's expert testimony precluded the plaintiffs from meeting the threshold standard of reliability as set forth in Evid.R. 702(C). Although Jackman gave an opinion as to the rate of speed at which Herholz's car was traveling, he was not permitted to testify to the underlying theory behind his analysis, the reliability of his method of analysis, and the accuracy of the calculations used in determining the speed of the vehicle. Essentially, Jackman was precluded from giving the jury any information with respect to which evidence he considered and how he arrived at his decision. Absent testimony with respect to the principles and methods employed by Jackman in reaching his conclusions, he was prohibited from giving reliable expert testimony. Furthermore, there was no evidence upon which the jury could determine that Jackman's conclusion was reliable. Nothing illustrates this point more than defense counsel's closing argument in which he highlighted the shortcomings of Jackman's testimony. In part, defense counsel commented, "And Bill Jackman, a supposed expert, who was hired by the plaintiffs to come in and render an -9- opinion, who gave no basis for his opinion, who said nothing about how he arrived at it." In addition to the obvious importance of offering reliable expert testimony, the issue of the rate of speed of Herholz's car was critical in this case. The testimony of the lay witnesses was inconsistent as to the rate of speed at which Herholz was driving. Reliable expert testimony would have aided the jury in determining whether Herholz was exceeding the speed limit when he struck the children, which was critical to determining whether he was negligent. Although Jackman's testimony as to his qualifications was exhaustive, it was arbitrary and unreasonable to then limit counsel to only one more question without considering the import of Evid.R. 702. Therefore, we conclude the trial court abused its discretion under Evid.R. 611(A) by so severely limiting Jackman's testimony. Accordingly, this appeal must be reversed and remanded for a new trial. The remaining assignments of error are moot in light of this determination. Judgment reversed and remanded for a new trial. -10- This cause is reversed and remanded. It is, therefore, considered that said Appellants recover of said Appellee their costs herein. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. NAHRA, J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). -11- APPENDIX ASSIGNMENTS OF ERROR I. THE TRIAL COURT ABUSED ITS DISCRETION IN PROHIBITING APPELLANT'S COUNSEL FROM ELICITING TESTIMONY FROM HIS EXPERT WITNESS CONCERNING THE UNDERLYING BASIS OF HIS OPINION. II. THE TRIAL COURT'S DECISION TO PROHIBIT APPELLANT'S COUNSEL FROM QUESTIONING APPELLANT'S OWN EXPERT WITNESS AS TO THE UNDERLYING BASIS OF HIS OPINION INVADED THE PROVINCE OF THE JURY AS THE FACT FINDER IN THAT IT PREVENTED THE JURY FROM HAVING NECESSARY FACTS BEFORE THEM IN ORDER TO JUDGE THE OPINION AND WEIGH THE CREDIBILITY OF THE APPELLANT'S EXPERT SO THAT THEY COULD RETURN A FAIR AND IMPARTIAL VERDICT CAUSING PREJUDICIAL ERROR. III. DEFENSE COUNSEL'S CLOSING ARGUMENT THAT APPELLANT'S FAILURE TO PRESENT EXPERT TESTIMONY PROVIDED LACK OF NEGLIGENCE BY DEFENDANT WHEN APPELLANT HAD BEEN PREVIOUSLY PRECLUDED FROM OFFERING SUCH EVIDENCE BECAUSE OF THE ACQUIESCENCE OF DEFENSE COUNSEL TO RULINGS OF THE TRIAL COURT AS TO EXPERT TESTIMONY WHEN APPELLANT HAD ATTEMPTED TO BE OFFER [sic] SUCH EVIDENCE DEMONSTRATING NEGLIGENCE OF APPELLEE CONSTITUTED ATTORNEY MISCONDUCT WHICH WAS PREJUDICIAL TO APPELLANT. IV. DEFENSE COUNSEL'S CRITICISM AND MISLEADING REMARKS CONCERNING APPELLANT'S COUNSEL CONSTITUTED ATTORNEY MISCONDUCT WHICH WAS PREJUDICIAL TO APPELLANT. V. THE TRIAL COURT'S REFUSAL TO ADMIT APPELLANT'S PROPOSED JURY INSTRUCTIONS ON COMPARATIVE NEGLIGENCE STANDARDS AND AS TO PERSONS IN CROSS WALKS AS COVERED BY STATUTE WAS PREJUDICIAL ERROR. VI. THE TRIAL COURT'S ADMISSION OF POLICE OFFICER'S [sic] CONCLUSIONS WHICH WERE CONTAINED IN A DOCUMENT WHEN SUCH .