Kelvin McKenzie v. Supervalu, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01540-COA
KELVIN MCKENZIE
APPELLANT
v.
SUPERVALU, INC. AND BUSTER PEEPLES
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEES
3/28/2002
HON. MARGARET CAREY-MCCRAY
WASHINGTON COUNTY CIRCUIT COURT
JOHN H. COX
LAWRENCE D. WADE
CIVIL - PERSONAL INJURY
JURY VERDICT IN FAVOR OF THE APPELLEES
AFFIRMED: 10/5/2004
BEFORE KING, C.J., LEE, P.J., AND GRIFFIS, J.
GRIFFIS, J., FOR THE COURT:
¶1.
Kelvin McKenzie filed suit against Supervalu, Inc. and its employee, Buster Peeples, in the Circuit
Court of Washington County seeking damages for personal injuries sustained during an automobile
accident. The jury returned a verdict for Supervalu and Peeples. The trial court denied McKenzie's posttrial motions. On appeal, McKenzie asserts that the trial court erred in: (1) admitting certain testimony of
James Hannah in violation of Mississippi Rule of Evidence 704; (2) admitting certain testimony of James
Hannah in violation of Mississippi Rule of Civil Procedure 26 (b)(4) and 26(f); and (3) denying his post-trial
motions. Finding no error, we affirm.
FACTS
¶2.
On November 1, 2000, Investigator Kelvin McKenzie of the Washington County Sheriff's
Department was traveling in his unmarked squad car on Highway 82 between Leland and Greenville.
Buster Peeples was driving a tractor trailer, owned by Supervalu, ahead of McKenzie on Highway 82 in
route to Auto Body Rebuilders. Sometime before reaching the stretch of highway in front of Auto Body
Rebuilders, McKenzie passed a vehicle driven by Larry Evans and another vehicle. Upon reaching the
stretch of highway in front of Auto Body Rebuilders, McKenzie discovered the tractor trailer driven by
Peeples negotiating the turn into the Auto Body Rebuilders' driveway. McKenzie applied his brakes and
attempted to steer his car around the trailer. However, his attempt failed and his car skidded into the rear
of the trailer.
¶3.
McKenzie suffered severe injuries to his ankle and lower leg as the result of the accident. He
commenced his personal injury action and alleged that Peeples' negligence was the cause of the accident.
McKenzie sought to recover damages for his injuries. The jury returned a verdict in favor of Supervalu and
Peeples.
ANALYSIS
I.
¶4.
Whether the trial court erred in admitting certain testimony of expert
witness, James Hannah, in violation of Mississippi Rule of Evidence 704.
McKenzie argues that the court erred in admitting expert testimony from James Hannah, an
accident reconstructionist, based on paragraph six of his report, which stated:
Given the slow speed the Peeples's vehicle was turning, if Mr. McKenzie had been
keeping a proper look out and operating his vehicle under control at a safe speed, this
accident would not have happened.
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McKenzie asserts that this portion of the report goes beyond the type of expert opinion testimony ordinarily
admitted pursuant to Mississippi Rule of Evidence 704. McKenzie cites Havard v. State, 800 So. 2d
1193, 1199 (¶17) (Miss. Ct. App. 2001), which ruled that an expert's opinion which draws from the legal
definition of "negligence" is not within the witness's expertise. However, the Harvard court concluded:
the only objection made was that the witness could not "invade the province of the jury."
In fact, under Rule 704, such an invasion is not absolutely barred. Thus we find that the
Defense did not make an adequate objection to the specific problem that this testimony
raises.
Id. at 1199.
¶5.
Here, McKenzie's counsel made the following objection:
MR. COX: Your Honor, if I might respond to that? In fact, I'm glad Mr. Wade brought
that up because Number Six, first of all, is an opinion of this witness that is outside his
ability to express. That is a question for the jury. And I'm going to ask this Court to strike
from this report before it is [sic] admission. But that fact is –
THE COURT: To strike what?
MR. COX: Paragraph Number Six under his "My opinions in the case are:" . . . (repeating
Paragraph Six) . . . Your Honor, that is not admissible as far as an expert's opinion. That
is invading the province of the jury.
¶6.
Mississippi Rules of Evidence 704 provides that "[t]estimony 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." The comment to the Rule provides:
Rule 704 abolishes the "ultimate issue rule" which existed in pre-rule Mississippi practice.
. . . An opinion is no longer objectionable solely on the grounds that it "invades the
province of the jury."
The abolition of the ultimate issue rule does not result in the admission of all opinions. It
is an absolute requirement under Rules 701 and 702 that opinions must be helpful to a
determination of the case before they are admissible....
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¶7.
The sole objection, expressed at trial by McKenzie, was that Hannah’s testimony invaded the
province of the jury. Rule 704 leaves no doubt that this is insufficient grounds for exclusion.
¶8.
Given the court's decision to overrule McKenzie's objection and admit paragraph six of the report,
it is evident that the court determined that the testimony was helpful to the determination of the case. The
decision to hold certain expert testimony admissible is within the trial judge's discretion absent an abuse of
that discretion. Crawford v. State, 754 So. 2d 1211, 1216 (¶7) (Miss. 2000). We hold that the judge's
decision to admit the testimony did not constitute an abuse of discretion. This assignment of error is without
merit.
II.
¶9.
Whether the trial court erred in admitting certain testimony of expert
witness, James Hannah, in violation of Mississippi Rules of Civil Procedure
26 (b)(4) and 26 (f).
In his initial calculations, Hannah relied on the speeds and distances that Peeples reported during
pretrial discovery. During discovery, there were differing accounts about the speeds, the distances between
the vehicles, and the distances to certain locations. Hannah considered these differences in making his
calculations.
¶10.
At trial, witnesses gave different estimates about the speeds and distances. Thus, Hannah used
different numbers in his calculations. McKenzie claims that the court erred in allowing Hannah to use
different numbers in calculating the speed at which he believed McKenzie's vehicle was traveling.
McKenzie argues that Hannah's prior report should have been supplemented, pursuant to Mississippi Rules
of Civil Procedure 26 (f). Absent such supplementation, Hannah's testimony and report were inadmissible.
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¶11.
McKenzie's counsel objected on the grounds that Hannah based his calculations at trial on evidence
that was not contained in his report. McKenzie's counsel argued that it was improper for Hannah to use
different figures in calculating the vehicle speeds. The court found that:
based on what has been presented as the report of Mr. Hannah, that Mr. Hannah did give
notice that he would be talking about distances, speeds, and times the vehicles would be
traveling; that his opinion does speak about not only the speed of Mr. McKenzie's vehicle
which does go into greater detail, but it also makes or gives the opinions about not the
specific speed but the fact that Buster Peeples' vehicle or the vehicle he was driving was
traveling at a slow speed; within the deposition of this witness there was much questioning
and discussion about his calculations and the speeds that he calculated. The Court doesn't
find that he is doing anything inconsistent with that in the testimony that is sought to be
elicited. He's using the same formulas -- unless you want to tell me that it's different -- that
he used both in his report and in his deposition's testimony, applying those to the facts of
this case. And one of the major facts of the case that was taken into consideration and he's
now being asked to testify about is the speed and the time that it would have taken for Mr.
Peeples's vehicle to travel during the course of or relatively close to the time of the
accident. I don't find it to be beyond what has been provided.
***
Okay. The Court is going to find that, at least, what has been presented and what I have
seen is not a defense of method of calculations, and that the witness is using the -- he has
indicated that he's using the facts as they have been brought out at trial today. He has sat
and heard the testimony of witnesses during this trial. The issues that are subject of
objection are subjects for cross-examination.
¶12.
Mississippi Rules of Civil Procedure 26 (b)(4)(A)(i) provides guidelines of what information
regarding experts must be disclosed during discovery. The Rule provides that:
A party may through interrogatories require any other party to identify each person whom
the other party expects to call as an expert witness at trial, to state the subject matter on
which the expert is expected to testify, and to state the substance of the facts and opinions
to which the expert is expected to testify and a summary of the grounds of each opinion.
¶13.
Hannah's testimony and calculations relied on distances and speeds that were reported to him. At
trial, when the reports of speed and distance changed, Hannah recalculated his opinion using the same
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methods and formulas that were admitted into evidence. The subject matter or substance of Hannah's
testimony did not change.
¶14.
In Square D. Co. v. Edwards, 419 So. 2d 1327, 1329 (Miss. 1982), the supreme court held that:
a party must not only supplement interrogatories to reveal the identity of expert witnesses
expected to be called at trial, but must also supplement interrogatories to reveal the
substance of the testimony of such experts, if not stated in answers to the original
interrogatories.
Based on the record we find that the interrogatory responses, expert designation, and deposition testimony
gave McKenzie sufficient notice of the substance of Hannah's testimony. Therefore, this assignment of error
is without merit.
III.
¶15.
Whether the trial court erred in denying McKenzie's post-trial motions.
McKenzie argues that the trial court erred in failing to grant him a directed verdict, JNOV, or new
trial because the verdict was against the overwhelming weight of the evidence. Supervalu and Peeples
respond that the jury was properly allowed to consider the conflicting accounts of the circumstances leading
up to the accident.
¶16.
McKenzie also submits that his testimony and Paul Evans’ testimony established that Peeples
violated Mississippi Code Annotated Sections 63-3-603 (Rev. 2000) and 63-3-707 (Rev. 2000).
However, this conclusion disregards the fact that differing accounts of the accident were given at trial.
¶17.
"The standard of review for denial of a judgment notwithstanding the verdict and a directed verdict
are identical." American Fire Protection, Inc. v. Lewis, 653 So. 2d 1387, 1390 (Miss. 1995) (citing
Sperry-New Holland v. Prestage, 617 So. 2d 248, 252 (Miss. 1993)). We are required to consider the
evidence in the light most favorable to the non-moving party, and if the facts are so overwhelmingly in favor
of the moving party that a reasonable juror could not have agreed with the verdict at hand, we must
reverse. Sperry-New Holland, 617 So. 2d at 252. If there is substantial evidence, however, in support
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of the verdict, such that a reasonable person may have reached different conclusions, we must affirm. Id.
In regard to a motion for a new trial, this decision is within the sound discretion of the trial judge. Green
v. Grant, 641 So. 2d 1203, 1207 (Miss. 1994). A motion for new trial should only be granted when the
entire evidence, viewed in the light most favorable to the non-moving party, leaves the trial judge with a
"firm and a definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice."
Id. That is not the case here.
¶18.
Due to the conflicting facts presented at trial, the outcome of the case hinged on the jury's
determination of which rendition of facts the jury believed occurred.
¶19.
McKenzie testified that, upon approaching the tractor trailer driven by Peeples, he moved his car
into the left lane to pass the tractor trailer. Then, the tractor trailer moved into the left lane. McKenzie,
attempting to pass the tractor trailer to the right, moved his car into the right lane. McKenzie testified that
this was when Peeples suddenly and without signal turned to the right across the right lane.
¶20.
On cross-examination, McKenzie testified that after he turned onto Highway 82 he began pursuit
of a car he witnessed commit a traffic violation. However, he testified that he abandoned the chase and
slowed to fifty-five miles per hour before nearing the area where the accident occurred. ¶21. Peeples
testified that, before he turned, he checked behind him and was certain that the traffic was at a far enough
distance for him to make the turn. He signaled and then made the turn.
¶22.
Hannah testified that, according to his calculations, it was his opinion that McKenzie’s car was
traveling seventy miles per hour. Evans testified that McKenzie passed him shortly before reaching Auto
Body Rebuilders at a speed of what he estimated to be sixty-five miles per hour. Robert Upshur of Auto
Body Rebuilders testified that he heard the Supervalu tractor trailer's brakes, walked outside, told his
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employees to raise the door, and then heard the squealing of tires and the crash. Upshur testified that he
remembered the truck's turn signal being on when he examined the tractor trailer.
¶23.
The jury considered the evidence and determined that Supervalu and Peeples were not liable for
the injuries McKenzie suffered as a result of the accident. Based on the record, there was substantial
evidence presented to support this verdict. Thus, this assignment of error is without merit.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER AND
BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.
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