APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 77-0543)
Before Gibbons and Weis, Circuit Judges and Dumbauld, District Judge.*fn*
Exclusion of expert testimony on the effect of delayed medical attention to a motor vehicle accident victim constitutes reversible error in this diversity case. Because the evidentiary ruling prevented the plaintiff from presenting substantial claims to the jury, a new trial will be necessary.
Suit was filed in the district court to recover damages for the death of plaintiff's decedent caused by injuries received in a motorcycle-truck collision in Newark, New Jersey. Trial was to a jury that, applying New Jersey's comparative negligence law, assessed decedent's fault at 55%, and the defendant truck driver's fault at 45%. Accordingly, the district court entered judgment for the defendants.*fn1 N.J.Stat.Ann. § 2A:15-5.1 (West Supp. 1978).
The collision occurred at an intersection on the evening of May 28, 1976. The time was a critical element of the case and was the subject of conflicting testimony. According to the defendant Reilly, the accident occurred at approximately 9:45 P.M. However, the sole eyewitness, Abraham Evans, testified that the mishap took place about 30 minutes later.
Reilly testified that he was driving a tractor unit without a trailer attached and slowed to about 10 miles per hour as he approached the intersection. Although there was a stop sign against him, he did not pause but continued straight ahead. Reilly stated that he was unaware of an impact while passing through the intersection but that after proceeding 25 to 30 feet beyond it, be glanced in the rear view mirror and saw sparks coming from beneath the truck. At that point, he stopped, got out of the cab, and dislodged what appeared to be part of a motorcycle. He then remounted the truck, turned it around, and proceeded back to the intersection where the decedent, then seriously injured, was lying on the street. Defendant testified he did not see the decedent and proceeded on his way.
Evans, the eyewitness, testified that he observed the tractor and the decedent's motorcycle both entering the intersection, but did not see the impact. He watched the truck turn around, return to the intersection, and stop near the decedent's body. According to the witness, Reilly took a few steps toward the decedent, then walked back to the truck and drove away. The license plate from the front of the tractor was found at the scene and Reilly turned himself in to the Newark police on the following day.
The main dispute in this appeal centers on the testimony of various experts. An expert witness for the defense testified that an autopsy finding of a .067% Alcohol concentration in the brain tissue (equivalent to a .08% Blood alcohol concentration) indicated that the decedent's faculties were impaired at the time of the accident. The witness said that a .067% Concentration in the brain at time of death could be retrocalculated to a .127% Level at time of accident, some four hours earlier. Plaintiff objected to the retrocalculation on the ground that an inadequate foundation had been laid.
The plaintiff called a surgeon as an expert witness to opine that the defendant's failure to call for assistance reduced the decedent's chances of survival. The trial judge excluded this evidence because he found inadequate foundation for such an opinion. The plaintiff appeals from the denial of her motion for a new trial based on the admission of testimony from defendant's expert and the exclusion of the surgeon's opinion which she offered.
We have painstakingly reviewed the record and conclude there was no reversible error in the district court's ruling that defendant's expert could testify about decedent's probable impairment from alcohol at the time of the accident. After weighing the competing considerations with due respect for the rights of both parties, the trial judge concluded that the evidence was competent and relevant. We are required to review assertions of error in this connection under the standard set out by the Supreme Court in Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 1122, 8 L. Ed. 2d 313 (1962): "(T)he trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." We note that the expert was cross-examined at length and that the plaintiff produced rebuttal evidence from her own highly qualified expert. Under the circumstances, we cannot say that the ruling on this issue requires a new trial.
We come to a contrary result, however, with respect to the exclusion of plaintiff's expert testimony on the harmful effect of delay in securing medical treatment for the decedent. Plaintiff produced Dr. David Befeler, a well-qualified surgeon, who testified at some length on voir dire out of the jury's presence. In essence, his opinion was that an approximately 45-minute delay between the time of the accident and the arrival of medical assistance on the scene would reduce the decedent's chances of survival. He testified that the victim's injuries required prompt emergency and surgical care and that ambulance attendants did give proper treatment to the decedent once they reached him. After cross-examination concluded, the trial judge ruled that the doctor's opinion could be submitted to the jury.
The preliminary testimony of the doctor was then repeated in the jury's presence, but when the defendant objected to a hypothetical question on the effect of delayed medical attention, the court called for a side-bar conference. After some discussion, the objection was sustained and the expert was not permitted to answer.
The hypothetical given to the physician used as essential facts: the accident occurred "sometime after 9:45 P.M."; the police arrived at the scene at 10:28; the ambulance was called at 10:28; and it arrived at the intersection at 10:31. Given those assumptions, the physician was asked for an opinion on the decedent's ...