Darren O. Smith and Bill White Volkswagen-Audi, Inc. v. Kevin M. Cholousky and Tonya R. Williams

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA02-272

December 23, 2002

DARREN O. SMITH and AN APPEAL FROM CRAWFORD

BILL WHITE VOLKSWAGEN- COUNTY CIRCUIT COURT

AUDI, INC. [CIV00-257]

APPELLANTS

V. HON. FLOYD G. ROGERS, JUDGE

KEVIN M. CHOLOUSKY and

TONYA R. WILLIAMS

APPELLEES AFFIRMED

Darren Smith and Bill White Volkswagen-Audi, Inc., appeal a jury verdict awarding separate appellees, Kevin Cholousky and Tonya Williams, compensatory damages for injuries they suffered in an automobile accident. Appellants seek a new trial, or in the alternative, remittitur on the grounds that the jury's verdicts were excessive and that the trial judge erred by not applying the Daubert test. We find no error and affirm.

Darren Smith, an employee of Bill White Volkswagen-Audi, Inc., was driving a delivery truck in the course of his employment when various boxes and auto parts flew off the back of his truck onto Interstate 540 just past the top of a bridge. Tonya Williams was driving behind Kevin Cholousky but switched lanes when she noticed herself drawing closer in distance to him. However, when Williams switched lanes, she immediately struck thedebris in the road that had fallen from Smith's truck. Williams testified that she applied her brakes, but that the vehicle did not slow down, causing her to hit Betty Brasuell from behind. As a result of this impact, both Williams's vehicle and Brasuell's vehicle spun and hit Cholousky's vehicle.

Cholousky sued appellants for negligence seeking compensatory damages. Appellants then filed a third party complaint against Williams alleging that her negligence was the proximate cause of the accident and seeking contribution from her as a joint tortfeasor. Williams counterclaimed against appellants for damages stemming from the injuries she sustained in the accident. The case was tried before a jury, and the jury returned a verdict of $1,750,000 for Cholousky and $250,000 for Williams. After the trial court entered judgment in the amount of the verdicts, appellants filed a motion for new trial or, in the alternative, a remittitur of the verdicts, which was denied. Appellants appeal from the judgment and the order denying their motion for new trial, or, in the alternative remittitur.

I. Expert Testimony

For their first argument, appellants contend that the trial court abused its discretion in failing to apply the Daubert test to the expert testimony of John Featherston. Appellants allege that because of this error, they are entitled to at least a new trial on the comparative fault of the appellee Williams and appellant Smith.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the admissibility of scientific evidence was to be determined in accordance with the Federal Rules of Evidence, in particular Rule 702, which requires the trial court to bea "gatekeeper," allowing expert testimony only if it is relevant and reliable. 509 U.S. 579, 597 (1993). Federal Rule of Evidence 702, which is identical to Ark. R. Evid. 702 provides:

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.

In Daubert, the Supreme Court listed several factors upon which a trial court could rely in determining the reliability of an expert's testimony. 509 U.S. at 592-593. In Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), the Arkansas Supreme Court adopted the holding in Daubert. However, whether the factors articulated in Daubert are, or are not, reasonable measures of reliability in a particular case is for the trial court to determine, and the trial court's decision will not be reversed absent an abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

During the trial, Williams called John Featherston, owner of J and F Auto Paint, an automobile paint and body repair shop, as a witness. Featherston was to testify that he examined Williams's vehicle after the accident and observed that the brake line going into the right wheel was pinched flat. According to Featherston's testimony, if Williams's brakes had become pinched before she hit Brasuell, the brake fluid could not have gotten to the brake line and her brakes would not have worked. The implication from that opinion was that Williams's brakes were pinched when she hit the debris that had fallen from Smith's truck and thus, that she was unable to stop her car from hitting Brasuell and Cholousky. Appellants objected to Featherston's testimony alleging that it was "speculative."

After appellants' objection, the trial court reviewed the testimony and conducted its own voir dire inquiry of Featherston, which is all that Daubert requires. In this case, it was not necessary for the trial court to determine the admissibility of Featherston's testimony under the specific factors set out in Daubert because his testimony did not raise any novel scientific evidence, theory, or methodology. Featherston's testimony was based on his personal observation of Williams's vehicle and his experience. Expert testimony may be given by individuals qualified by experience, knowledge or training, and they need not be licensed professionals. John H. Parker Constr. Co. v. Aldridge, 312 Ark. 69, 847 S.W.2d 687 (1993). The trial court did not abuse its discretion in allowing Featherston to testify, and it properly instructed appellants that any deficiencies in Featherston's testimony could be explored on cross-examination. While the trial court did not use the specific factors set forth in Daubert, it took reasonable measures to evaluate the reliability and relevance of Featherston's testimony before allowing it, and thus, the trial court properly performed its duty as a "gatekeeper" as advocated in Daubert.

II. Damages

Appellants argue that the compensatory damages awards of $1,750,000 for Cholousky and of $250,000 for Williams were excessive and not supported by substantial evidence; thus, the trial court erred in not granting a new trial or, in the alternative, remittitur.

In addressing an argument that a verdict is excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock the court's conscience or as to demonstrate passion or prejudice on thepart of the jury. United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). Remittitur is appropriate when the compensatory damages award cannot be sustained by the evidence. Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995). The jury was instructed to consider the following elements in determining damages: (1) the nature, extent, duration, and permanency of any injury; (2) the reasonable expenses of any necessary medical care, treatment and services received and the present value of such expenses reasonably certain to be required in the future; (3) any pain and suffering and mental anguish experienced in the past and reasonably certain to experience in the future; and (5) with respect to Cholousky, the value of any earnings lost.

Here, the jury awarded $1,750,000 in compensatory damages to Cholousky. The evidence presented to the jury of Cholousky's damages was that prior to the accident, Cholousky was a twenty-one-year-old college student who had no apparent health problems, was an avid body builder, and was working earning approximately $6.75 per hour. As a result of the car accident, Cholousky sustained permanent injuries and experiences continual and intense pain in his neck, back, and shoulders. Cholousky testified that immediately after the accident, he had to sell his boat and rifles to pay for basic necessities, medicines, and medical care and that he had to drop out of school, which delayed his graduation date by two years and his opportunity to earn between $35,000 and $40,000 as an entry-level accountant. Dr. Lance Hamilton testified that Cholousky suffers from myofascial pain syndrome. According to Dr. Hamilton, this condition is not curable and Cholousky will need to continue with medications, physical therapy, mental imagery, biofeedback, and consideralternative and complementary care such as acupuncture and stress reduction techniques. Dr. Hamilton estimated that Cholousky's monthly expenses for the medicines and medical care that he needs total $1,050. In closing arguments, Cholousky's counsel argued that Cholousky's present medical bills are $38,154.91; that he will have future medical expenses of $683,424 ($1,050 per month x 54.24 years) if he was expected to live another 54.24 years; and that he lost earnings and earning capacity because he had to push school back a couple of years.

The jury awarded $250,000 in compensatory damages to Williams. The evidence presented to the jury of Williams's damages was the testimony of Williams and Dr. Cyril Raben that as a result of the car accident, she sustained a permanent jaw injury and suffers from myofascial pain syndrome. Williams will need to be in a splint at night for the rest of her life. Williams presented evidence that her past medical expenses amount to $28,125 and that her future medical expense will be $587 a year for a splint that has to be replaced every year, $191 per month for the orthodontist, and $70 per month for the splint therapist. When reviewing this evidence and considering all the elements of damages that the jury was instructed to consider, the amount of compensatory damages awarded Cholousky and Williams was not excessive. Thus, we hold that the trial court did not err in denying appellants' motion for new trial or, in the alternative, remittitur.

Affirmed.

Pittman and Neal, JJ., agree.