Kozak v. StruthKozak v. Struth
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- Before:
- Hutchinson
Appellants, Patrick B. Kozak and Mary Ann Kozak, appeal by allowance a Superior Court order which affirmed Allegheny County Common Pleas’ judgment on a jury verdict for appellee Wayne Struth. They argue that the trial court abused its discretion in permitting appellee’s expert witness to comment on the totality of the evidence. Because an expert may not usurp the jury function by weighr ing and testing the credibility of other witnesses, we hold, under all the circumstances presented by this record, that admission of the particular expert testimony given was an abuse of the trial court’s discretion. We therefore reverse the order of Superior Court and remand to Common Pleas for a new trial.
On February 3, 1975, appellant Patrick B. Kozak, while enrolled in a swimming class at McKeesport Area High School, attempted to dive into the shallow end of the school’s swimming pool. Patrick, then 16 years of age, struck his head on the bottom of the pool, severing his spinal cord and leaving him paralyzed. He and his mother filed an action in trespass against the instructor in charge of the swimming class, appellee Wayne Struth. Struth then joined the McKeesport Area School District as an additional defendant. At the close of the evidence, the school district’s motion for a compulsory nonsuit was granted. The jury then returned a verdict for appellee Struth and against the appellants. Superior Court affirmed. 348 Pa.Super. 637, 501 A.2d 295.
At the trial, appellee offered the expert testimony of Carl Peterson to rebut appellants’ assertion that appellee was negligent in his supervision and instruction of the swim class. Following direct and cross-examination on Dr. Peterson’s qualifications as an expert, appellee’s counsel engaged his expert in the following colloquy:
BY MR. MILLS:
Q. Doctor Peterson, based upon the evidence that you have heard here in the courtroom, including the testimony of all the witnesses and the testimony that has been read to the jury, previously taken, and based upon your knowledge and understanding of the occurrence in question, do you have an opinion as to the capability of Wayne Struth as a water safety instructor.
MR. HAHALYAK: I continue the objection, your Honor.
THE COURT: Objection overruled.
THE WITNESS: Yes, I do.
BY MR. MILLS:
Q. All right.
A. In the first place — May I elaborate on my answer?
Q. What is that opinion?
A. He is a graduate of a reputable undergraduate school. I know personally the people who have been involved in certifying him as a teacher, Miss Kepfel at Slippery Rock, and Robert Evans. I work with most of those people.
And I give the most respect for the kind of people that they serve by.
Q. Again based solely upon the evidence that has been presented here in the courtroom, do you have an opinion with respect to the conduct of Wayne Struth at the time of the incident in question?
A. Yes, I do.
Q. And what is that opinion?
A. I believe that he acted as I would have under the same circumstances. It is standard procedure the way he conducted his class.
Q. Based upon the evidence that has been presented here in the courtroom, do you have an opinion as to the cause of the accident in question.
MR. HAHALYAK: Objected to, as a continuing objection.
THE WITNESS: Yes, I do.
BY MR. MILLS:
Q. What is that opinion?
A. I believe it was entirely a matter of poor judgment or no judgment on the part of the plaintiff.
In all athletics, and all of us have experienced injury in daily living, and after we are injured, we say “I didn’t think.”
And I believe that this is the situation in this case.
N.T. May 19, 1982 at 410-415 (emphasis added). Responding to these questions, the witness evaluated the totality of the evidence and also introduced extraneous and irrelevant factors. Moreover, in giving his final opinion on due care and causation, the witness directly evaluated the victim’s credibility on his knowledge or appreciation of the risky nature of his conduct. 1
When the jury is confronted with factual issues whose resolution requires knowledge beyond the ken of the ordinary layman a need for the employment of an expert arises. Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967); Commonwealth v. Leslie, 424 Pa. 331, 334-35, 227 A.2d 900, 903 (1967). Traditionally, the opinion testimony of an expert must be narrowly limited to evidence of which he has personal knowledge, which is uncontradicted on the record or which is proffered on an assumed state of facts reasonably shown by the record. Houston v. Canon Bowl, Inc., 443 Pa. 383, 385, 278 A.2d 908, 910 (1971); Battistone v. Benedetti, 385 Pa. 163, 170, 122 A.2d 536, 539 (1956); Jackson v. United States Pipe Line Co., 325 Pa. 436, 440, 191 A. 165, 166 (1937).
In attempting to control the examination of experts, Pennsylvania courts have long used and recognized the hypothetical question as an aid in insuring that the role of the expert is kept properly separate from that of the jury. Moreover, experts are subject to the usual rules of relevance in giving their opinions and cannot base them on extraneous irrelevant factors not properly in evidence.
For over a century, we have consistently held that an expert’s comment on the totality of the evidence, where the evidence is in conflict, improperly impinges upon the jury’s exclusive province. In 1885, Mr. Justice Green declared that “[t]he [expert] witness can not be asked to state his opinion upon the whole case, because that necessarily includes the determination of what are the facts, and this can only be done by the jury.”
Yardley v. Cuthbertson,
108 Pa. 395, 450, 1 A. 765, 773 (1885). Following
Yardley,
a
We are aware that the drafters of the Federal Rules of Evidence have eliminated the necessity of using the hypothetical question by allowing an expert to testify to his opinion without elucidating underlying factual assumptions.
See
In rendering his opinion that Patrick was careless and did not think, appellee’s expert had to assume that Patrick knew the proper technique of entering the pool and that the class was properly supervised before concluding that Mr. Struth exercised a proper standard of care. Counsel’s examination of the expert not only required the expert to draw informed inferences from the record, but also to reject, without saying so, the credibility of testimony concerning a particular version of the controverted facts.
The record also shows that the opinions given were based at least in part on irrelevant and prejudicial facts which were not and could not otherwise have been put into evidence. When asked for his opinion of appellee’s “capability . . . as a water instructor” appellee’s expert answered over objection:
A. He is a graduate of a reputable undergraduate school. I know personally the people who have been involved in certifying him as a teacher, Miss Kepfel at Slippery Rock, and Robert Evans. I work with most of those people.
And I give the most respect for the kind of people that they serve by.
N.T., May 19, 1982 at 411. The basic maxim of relevance, res inter alia acta, is accepted in this Commonwealth. The question and the answer quoted above conflict with that maxim in a way likely to prejudice appellants’ case in the eyes of the jury. The expert’s respect for appellee’s college and its faculty is not relevant to appellee’s due care on the occasion in issue and its relation to the accident which paralyzed Patrick Kozak.
Finally, the expert’s answers to questions which do relate to appellee’s due care and the cause of the injury come dangerously close to improper testimonial opinion on the ultimate facts of due care and causation. Such expert testimony must be carefully scrutinized because issues of ultimate fact, especially those of credibility, are for the jury, not the expert.
Gulf Oil Corp. v. Philadelphia,
357 Pa. 101, 53 A.2d 250 (1947);
Lewis v. Mellor,
259 Pa. Superior Ct. 509, 393 A.2d 941 (1978)
(en
banc). In
Lewis,
Superior Court approved the principles set out in
The combination of problems posed by the instant examination of appellee’s expert requires a new trial. Accordingly, the order of Superior Court is reversed and the record is remanded to the Court of Common Pleas of Allegheny County for a new trial.
NIX, C.J., did not participate in the consideration or decision of this case.
Notes
. Appellee contends, and Superior Court held, that the appellants failed to preserve this issue for appellate review. Our examination of the record reveals that appellants’ counsel lodged a standing objection to appellee’s expert’s opinion which was expressed in the absence of a hypothetical question. At sidebar, Mr. Hahalyak, counsel for the appellants, stated: “He has failed in my opinion by reason of this to permit a proper basis for the recommended opinion.” N.T. May 19, 1982 at 409. Appellants’ post-trial motions included specific references to the improper questioning of the expert. R.R. at 344a-345a.