Opinion
D069577
03-30-2017
GARY HYATT, Plaintiff and Appellant, v. METROPOLITAN TRANSIT SYSTEM, Defendant and Respondent.
Suppa, Trucchi and Henein and Teresa Trucchi for Plaintiff and Appellant. Ryan, Carvalho & White, Norman A. Ryan and Timothy M. White for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00028289-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Suppa, Trucchi and Henein and Teresa Trucchi for Plaintiff and Appellant. Ryan, Carvalho & White, Norman A. Ryan and Timothy M. White for Defendant and Respondent.
Plaintiff and appellant Gary Hyatt was injured while riding a bus operated by the Metropolitan Transit System (MTS). He sought damages for personal injury, alleging that the driver had negligently operated the two-part or articulated bus around a turn at an excessive rate of speed, causing Hyatt to be thrown into a stairwell where he broke his leg. The jury returned a special verdict finding that MTS was negligent but that its driver's conduct was not a substantial factor in causing Hyatt's injuries. The court entered a defense judgment.
On appeal, Hyatt contends the trial court abused its discretion by excluding opinion testimony offered by his retained accident reconstruction expert, Daniel Toneck, about the probable speed of the bus at the time of the accident, as determined from analysis of security videos with the use of GPS (global positioning software) technology to measure the distances involved. In connection with ruling on defense motions in limine, the trial court held a hearing under Evidence Code section 402, to inquire into the methodology used by Toneck. In forming his opinions, Toneck did not originally take any measurements at the accident scene, but he did so after his deposition. Pursuant to the first motion in limine, such later obtained evidence was excluded. After hearing Toneck's testimony and having numerous discussions with counsel, the trial court granted the second motion, determining that the expert opinion being offered on the probable speed of the bus during the turn was not sufficiently reliable to allow it into evidence.
All further statutory references are to the Evidence Code unless noted.
On review of this ruling on the admissibility of expert testimony, we apply an abuse of discretion standard. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon Enterprises).) The record shows that the trial court repeatedly addressed the issue in depth, allowing Hyatt several opportunities to bolster his showing that the opinion was arrived at in a reliable and scientifically accepted manner, but Hyatt was unable to do so. The ruling was well within the trial court's discretion and did not cause any discernible prejudice, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Accident and Investigation
Hyatt was a regular bus rider on a downtown MTS route. On December 11, 2013, he was riding in the back section of a MTS bus operated by a driver who had six years' experience with the system and was filling in for a vacationing driver. The bus was 60 feet long and made up of two parts connected with an accordion structure. As the bus was going uphill and approaching an intersection that the driver had been through many times before, he made a left turn. At the time, Hyatt was sitting on a sideways facing seat and was leaning over slightly, reaching for a nonalcoholic beverage bottle that he had been holding between his feet but that had started to roll along the floor. He thought the bus was going faster through the turn than it usually did. He lost his balance, fell onto the stairwell, and suffered a broken leg. Hearing a commotion, the driver pulled the bus over to the side. Emergency personnel arrived and Hyatt was taken to the hospital.
In August 2014, Hyatt filed his complaint against MTS only, and trial was set for October 2015. Discovery revealed that MTS had equipped the bus with a number of video cameras, which recorded the accident from nine or 10 angles, both inside and outside the bus. Among other things, these recordings showed the bus going around two corners, one before the accident and one at the time of the accident.
Hyatt's attorney retained Toneck as an accident reconstruction expert. Toneck had investigated accidents for about 10 years as a police officer, then retired but continued the same line of work privately for another 10 years. Toneck prepared a report dated September 8, 2015. He explained that he had reviewed the videos from the bus, which showed the passage of time in seconds, at about 15 frames per second (with each frame representing 0.067 seconds). Using landmarks in the roadway that the bus had passed over, as shown in the video, he applied distance measurements he obtained from a licensed GPS program, "Google Earth Pro" (the GPS program). For each of the calculations, he used the equation, velocity equals distance over time.
In this manner, Toneck divided up the distances traveled by the bus before and during the turn into two segments of 13 frames each, each representing 0.867 seconds of travel. Toneck then calculated the time taken by the bus to pass over the measured landmarks, allowing for feet per second. Before the turn started, he found the bus had been traveling 13.5 feet as shown in 13 frames of video, representing 0.867 seconds, which resulted in a probable speed of 10.580 miles per hour (mph). Secondly, to determine the speed of the bus going through the intersection, he measured the distance at 23 feet, which meant that the 13 frames of travel took 0.867 seconds, for a resulting speed calculation of 18.025 mph during the turn.
Thirdly, he measured the path traveled by the bus after the turn at 10 feet, as shown in five frames of the video, representing 0.333 seconds. He then determined that the speed of the bus coming out of the turn must have been 20.661 mph. His report also included a video frame of Hyatt seated normally on the bus before the turn. Toneck noted that in this picture, the handholds hanging from the ceiling of the bus were going straight up and down. He also included a picture taken during the turn, showing that Hyatt was leaning over, and the same handholds were tilting toward the left.
Toneck further noted in his report that the probable speed that the bus was going during the turn was well over the five mph limit that MTS regulations instructed the driver of an articulated bus to maintain during a curve. He concluded that the bus driver was at fault for negotiating the turn at a speed that was unsafe for conditions, about 18 mph.
MTS attorneys deposed Toneck on September 11, 2015, inquiring about his research. He explained his use of the bus videos to make measurements with the GPS program. He specifically identified the landmarks reflected in the pictures and figures that he had prepared in his report, and generally described the turn and how he had calculated the average speed during the turn. Toneck said he did not calculate the angle or degree of the turn of the bus all the way through the intersection, when it again started heading straight ahead.
B. Summary of Trial Proceedings
In preparation for the October 19, 2015 trial date, the parties reached stipulations about certain facts and evidence to be presented at trial, as well as their foundation and admissibility. The bus video recordings were deemed admissible and the amount of damages sought was established at the amount of a Medi-Cal lien (approximately $21,000).
At the outset of trial, MTS attorneys filed two motions in limine: (1) to limit Toneck's expert opinions to information to which he had testified at the time of his deposition, and (2) to exclude evidence and expert testimony to the extent it was based on unreliable science or methods. Alternatively, MTS requested a hearing under section 402, to determine the foundation and admissibility of such evidence and opinions. MTS cited to Google websites to contend that the GPS program was sold with limited warranties and terms of service that disclaim any promises of accuracy and suitability of the program for any particular use. The program supports measuring distances on a straight line, but it does not provide information about a margin of error in the accuracy of the measurements.
Just before trial began, Toneck went out to the accident site and physically measured the distances between landmarks as described in his report, verifying that they were the same as the GPS program had indicated. Hyatt's attorney offered to provide Toneck for a second deposition, but MTS declined.
Initially, Hyatt opposed both of the MTS motions in limine, but he ultimately decided not to oppose the first, since it was not disputed that Toneck had not gone out to the site to physically take measurements until after his deposition, a few days before trial. The court granted the first motion.
In opposition to the second in limine motion, Hyatt argued that Toneck's viewing of the videos corroborated his estimate of the relatively high speed of the bus during the second turn, because the video showed that the hanging handhold devices tilted over from the force of the second turn, although they had not done so during the first turn. Hyatt also pointed out that MTS had not presented any conflicting expert testimony demonstrating that Toneck's calculations as to speed were not accurate. Hyatt argued that the MTS arguments against the expert opinion only related to the weight that should be given to such evidence, not to the admissibility of the evidence itself. Hyatt lodged as opposing materials Toneck's curriculum vitae, deposition excerpts, and report, as well as the MTS policies setting regulations for the speed of an articulated bus when going around a corner (five mph).
Before the jury was selected, the trial court heard argument several times about the in limine matters, then deferred ruling until the section 402 hearing could take place. Opening statements were made and the jury viewed the bus videos. Hyatt testified about how the accident occurred, and said that the driver told him he was sorry afterwards.
The trial judge continued to inquire about the expert's methodology for calculating speed, saying that he had been agonizing about fulfilling the court's "gatekeeper" role under federal and state authorities. (Frye v. United States (D.C. Cir. 1923) 293 F. 1013; People v. Kelly (1976) 17 Cal.3d 24.) That evening, Hyatt's attorney supplied to opposing counsel additional materials about accident reconstruction standards and procedures, including the use of imaging software and security camera videos.
The next morning, out of the presence of the jury, the court heard Toneck's testimony on how he reached his conclusions, as we will further discuss in connection with our analysis of the appellate arguments. (Pt. III, post.) Ultimately, the court excluded his opinion testimony regarding the speed that the bus might have been going around the corner, as lacking the required reliability. Hyatt decided not to present Toneck's testimony for any other reason.
The bus driver testified as the only witness for MTS. He described driving at about five mph through the curve that day, as he had been trained to do. He said he never told Hyatt he was sorry, as there was not anything to be sorry about. When Hyatt's attorney asked him how fast the back portion of the bus had been going as opposed to the front of the bus, and how the placement of the engine in the back affected the speed of the bus, the court sustained objections by MTS's attorney that the questions were vague and ambiguous or called for expert opinion. The court observed that the jury as laypersons could look at the videos that showed the swinging of the hanging handhold devices, then finalized its ruling that Toneck would not be allowed to testify about his opinions on the speed of the bus based on measurements he obtained through the GPS program.
The court admitted into evidence the bus videos and the MTS guidelines for speed limits on driving articulated buses. Following argument and instruction, the matter went to the jury. During its deliberations, the jury asked for the bus videos and to have a calculator provided. Its special verdict determined that although MTS had been negligent, its driver's conduct was not a substantial factor in causing Hyatt's injuries. The court entered a defense judgment, and Hyatt appeals.
DISCUSSION
I
STANDARDS ON APPEAL
The Evidence Code allows experts some latitude in utilizing sources of information in forming an opinion. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523-1524 (Korsak); § 801, subd. (b).) Trial courts have a "substantial 'gatekeeping' responsibility" concerning expert testimony, to determine whether the matter relied upon by the expert is "of a type on which an expert may reasonably rely." (Sargon Enterprises, supra, 55 Cal.4th 747, 769-770; italics omitted.) When making this determination, the court may inquire into the type of material on which the expert has relied, and whether that material actually supports the expert's reasoning. (Id. at p. 771.) This case-specific inquiry examines not only whether the expert opinion is founded on scientifically accepted theories and procedures, but also if they were adequately followed in the particular instance. (People v. Henderson (2003) 107 Cal.App.4th 769, 787 (Henderson); Sargon Enterprises, supra, at pp. 771-772 [inquiry includes whether opinion is based on unsupported reasons or is speculative].)
Section 801, subdivision (b) provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] . . . [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
On appeal, we review the trial court's determinations on the threshold reliability of an expert opinion for any abuse of discretion. (Sargon Enterprises, supra, 55 Cal.4th at p. 773; People v. Ramos (1997) 15 Cal.4th 1133, 1175.) "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.' " (Sargon Enterprises, supra, at p. 773.) In exercising its discretion, the trial court must act within the confines of the applicable legal principles and include consideration of whether the ruling "implicates a party's ability to present its case." (Ibid.)
In examining these discretionary determinations, we consider whether the record demonstrates that the questioned expert opinion was based on proper and relevant factors. (Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 275 (Box).) The factual assumptions made by the expert, in arriving at the opinion, must be sufficiently supported by the evidence being relied upon. (Richard v. Scott (1978) 79 Cal.App.3d 57, 63-64 (Richard).) We give deference to the trial court's factual determinations that underlie the ruling. (Henderson, supra, 107 Cal.App.4th 769, 781.)
Under section 802, the trial court may inquire into the factual predicates of an expert's opinion and whether a reasoned explanation connects the facts that were considered to the ultimate opinion being rendered. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) To assist in a causation determination, the expert must be able to explain why the researched facts convincingly led to a conclusion that it is more probable than not that a given negligent act was a cause-in-fact of the subject injury. (Id. at p. 1118; Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 578 (Cooper) [insufficient basis if expert gives opinion about theoretical possibilities or speculates about causation of injury].)
II
SCOPE OF ISSUES PRESENTED ABOUT USE OF TECHNOLOGY
In applying the prescribed standards of review, we observe that Hyatt's theoretical arguments on appeal are somewhat constrained by the record. First, his attorney did not continue to oppose the first motion in limine brought by MTS, and the court excluded any reliance by the expert on measurements or investigations that he made after his deposition was completed. Hyatt nevertheless continues to argue that it should not make any difference that the expert's opinion was fundamentally based on computer imaging technology and not upon any physical measurements taken at the scene, since those physical measurements essentially verified what the expert had already concluded. Hyatt gives no reason why the excluded information should still have been considered to a lesser extent, as part of the exercise of the trial court's gatekeeping function. In any event, we consider whether the court's discretionary decision was supported by all of the relevant factors.
It is also necessary to observe that Hyatt succeeded in persuading the jury that MTS, through its driver, was in fact negligent at the time of the incident, even though the jury went on to find that the driver's conduct was not a substantial factor in causing Hyatt's injuries. Our examination of the rulings in limine must take into account a prejudice component, to the extent that the proposed expert testimony would have addressed such causation questions. We inquire whether Hyatt was unfairly deprived of the opportunity to present his case. (Sargon Enterprises, supra, 55 Cal.4th at p. 773; P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1348 [showing required for reversal based on erroneous exclusion of evidence is that " 'a different result was probable if the evidence had been admitted' "].)
We disagree with Hyatt that it is a question of first impression here whether Google Earth technology, such as this GPS program, can be relied upon by an expert in a civil case to calculate distance for the purpose of estimating speed. In Sargon Enterprises, supra, 55 Cal.4th 747, 772, footnote 6, the Supreme Court reiterated that a "general acceptance" test for admissibility of expert testimony based on new scientific techniques still applies in California courts, regardless of the test utilized in federal courts (citing to Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579). The issue here is not simply whether the GPS program can be scientifically acceptable in a courtroom, but rather whether it was utilized in this case by the expert pursuant to recognized scientific methodologies considering and applying appropriate factors. (Sargon Enterprises, supra, at p. 772 [trial court determines whether the expert used information logically and pursuant to valid general theories or techniques].)
This preliminary determination by the trial court, on whether the expert opinion is logically sound, "is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies." (Sargon Enterprises, supra, 55 Cal.4th at p. 772.) Thus, the court may admit into evidence a properly supported expert opinion that disagrees with other similarly supported expert opinions, because any flaws in the respective reasonings can be "explored in detail through cross-examination and with the defense expert witnesses." (Cooper, supra, 239 Cal.App.4th 555, 593.) In such a case, it is the weight and not the admissibility of expert opinion testimony that is at stake and that is left to the jury to decide. (Ibid.)
Under this approach, Hyatt is not particularly persuasive in relying on several out-of-state cases to support his position that this expert opinion utilizing such GPS technology was well founded. (E.g., State v. Franklin (Ohio Ct. App. 2005) 843 N.E.2d 1267, 1270 [GPS software has been in use for over 20 years and is generally acceptable in court as reliable computer software]; Commonwealth v. Whitlock (Mass. App. Ct. 2009) 906 N.E.2d 995, 1000-1001 [sufficient foundation established to admit into evidence a measurement obtained by using a computer measuring tool].) We are able to consider decisions from other jurisdictions or scientific literature, when necessary to determine as a matter of law whether a given scientific procedure has gained general acceptance. (Henderson, supra, 107 Cal.App.4th 769, 781.) However, we do not decide whether GPS or Google Earth technology is always scientifically acceptable, but instead, determine on the facts of this case whether the trial court properly exercised its discretion in finding that this expert opinion, utilizing such technology, was reliable in terms of the methods he used. (Richard, supra, 79 Cal.App.3d 57, 63-64.) Likewise, if it is established that any of the expert's underlying factual assumptions were unsupported by the evidence in the record, the trial court would have an adequate basis to exercise its discretion to exclude an opinion that was demonstrably based upon inaccurate assumptions. (Box, supra, 57 Cal.App.3d 266, 275.)
In an analogous situation involving the use of digital evidence in trials of red light traffic camera cases (automated traffic enforcement system, or ATES), our Supreme Court explained that the courts must continue to enforce evidentiary requirements for "carefully assess[ing] the specific nature of the photographic image being offered into evidence and the purpose for which it is being offered in determining whether the necessary foundation for admission has been met." (People v. Goldsmith (2014) 59 Cal.4th 258, 272, fn. 8 (Goldsmith).) In that case, the court distinguished on their facts certain other authorities that set standards for admissibility of opinions applying other technologies, such as computer enhanced photographic images or digital imaging technology (e.g., computer animations or simulations). The court in Goldsmith found distinguishable a case that concerned the admission of a photograph found on a social media website, since it "presented questions of accuracy and reliability different from the [ATES] evidence here." (Ibid.; see People v. Rekte (2015) 232 Cal.App.4th 1237, 1244 [presumptions set forth in §§ 1552 and 1553 affect the burden of producing evidence but do not establish weight to be given to the evidence, and an opportunity is provided to rebut its presumed reliability].)
The court in Goldsmith, supra, 59 Cal.4th 258, was discussing, in part, the proper extent to which the evidentiary presumptions provided by sections 1552 and 1553 could be applied to digital evidence generated by devices such as traffic cameras, without the use of expert testimony. (Goldsmith, supra, at p. 268 [statutory presumptions "partly, but not completely, supply the foundation for admission of ATES evidence"].) The court clarified that ATES images and data are secondary evidence that is subject to other authentication requirements of the Evidence Code (e.g., §§ 1401 and 1521, subd. (c)). (Goldsmith, supra, at p. 271; People v. Skiles (2011) 51 Cal.4th 1178, 1187.) --------
In contrast to the factual context giving rise to Goldsmith, supra, 59 Cal.4th 258, our case squarely presents questions of accuracy and reliability of an expert analysis, as next discussed.
III
ANALYSIS
A. Applicable Standards
The trial court has an obligation to require a showing of an adequate foundation for the expert's opinion. (Korsak, supra, 2 Cal.App.4th 1516, 1523; Sargon Enterprises, supra, 55 Cal.4th at p. 772 ["the gatekeeper's role 'is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field' "].) Based on an examination of the expert's disclosed principles and methodology, " '[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' " (Id. at p. 771.) But assuming an adequate threshold showing of reliability can be made, any questions concerning the soundness of the material underlying an opinion are matters of weight for the jury, not admissibility. (Cooper, supra, 239 Cal.App.4th at p. 593; People v. Sundlee (1977) 70 Cal.App.3d 477, 484-485 [strength of expert's assumptions that are based upon special knowledge and foundational matters will affect weight, not admissibility of opinion].)
B. Types of Factors Considered by Expert Witness
In this context, an accident reconstruction expert is required to rely on operational factors that are relevant to and that explain the dynamic situation contributing to the accident. (Box, supra, 57 Cal.App.3d 266, 274-275.) At the section 402 hearing, Toneck explained that the bus's security camera film consisted of 10 separate videos taken from different angles and perspectives, some inside and some outside of the bus. He was familiar with the vicinity of the accident and had visually inspected the bus. He had frequently utilized GPS software technology in his work. He said that when he later took measurements at the scene, they confirmed the measurements he had obtained from the GPS program.
During the hearing, the trial court focused on the types of factors arising from the physical layout of the accident site and the structure of the articulated bus, and whether Toneck had accounted for them in forming his opinion about the conditions existing at the time of the accident. The bus was going uphill at the time, which could have made a difference. Although Toneck acknowledged that the rear of an articulated bus probably swings faster around the turn than the front does, he had not calculated the angle of the curve. Instead, he visually inspected the bus and studied the videos, and used his basic knowledge of physics to perform his calculations.
In using the GPS program, Toneck created small straight line measurements which divided the path of the bus into three sections, precollision, collision, and postcollision. This was a total distance of about 80 to 100 feet. For the section involving the collision (the turn), he considered 13 frames of video which represented 0.867 seconds, to calculate the speed. He concluded that at the time of the curve, the bus had accelerated to a speed of 18.025 mph. He also had considered the whole turn as a unit, endeavoring to provide an average speed while also accounting for the acceleration into the turn. In utilizing his basic equation (velocity equals distance over time), he did not factor in the angle of the curve or provide any evidence about the force exerted on Hyatt's body from the turning action, to explain how he concluded the bus driver had caused the accident by negotiating the turn at a speed that was unsafe under those particular conditions.
With respect to the background for his opinion, Toneck admitted that he had not reviewed or utilized any of the backup documents on accident reconstruction procedures or the use of imaging software, which had been supplied to opposing counsel after the first day of trial. He had not participated in any studies or had any specific training regarding the speed of the back of an articulated bus as it goes around a corner, but he felt that the probable speed difference of the back of the bus was not enough to consider. He based that opinion on his inspection of the bus and knowledge of basic physics, such as he had used before in cases involving semitractors hauling trailers. He felt that the level of reconstruction that he performed was reasonable for this particular crash, utilizing the videos and the GPS program. Although he attempted to explain his methods to the trial court, he was somewhat inconsistent in doing so. The court had a sufficient basis in the record to find that his opinion was unsupported by the type of factors normally to be considered by an expert in the field of studying the motion of articulated buses.
C. Sufficiency of Evidentiary Support for Expert's Factual Assumptions
The issue of admissibility of the expert's opinion involves mixed questions of fact and law. (Richard, supra, 79 Cal.App.3d 57, 63-64.) The factual aspect of the question is whether there was evidentiary support for the assumptions made by the expert in formulating his opinion. The trial judge, having heard the evidence, is in a better position than a reviewing court to determine whether factual assumptions made by the expert were adequately supported by the evidence, or whether they were based on conjecture, guess or speculation. (Ibid.)
Although Toneck represented that he understood how the GPS program worked and had independently verified the types of measurements it provided, he did not acknowledge that its "terms of service" documentation appeared to disclaim reliance upon its accuracy. His original investigation assumed that he did not have to take the physical features of the intersection into account, such as its slope or the angle of a turn through it, since he had used three straight line measurements based on landmarks that showed up in the video clips. Earlier, at his deposition, Toneck said that even though his opinions were complete, he was reserving the right to make later measurements if the client thought it was necessary. After he ultimately did so, defense counsel did not want to depose him again, and was not required to do so. To the extent his later investigation would have changed his opinions, the court had an adequate basis to exclude such changes, since Hyatt was not opposing the first motion in limine brought on that basis.
During argument, Hyatt's attorney suggested that the questioning of the expert was going beyond the original scope of MTS's second motion in limine. The court asked for further clarification, and Toneck drew diagrams showing how he had calculated the speed by using the landmarks in the videos. He did not explain whether the turn in the road made any difference in his speed calculations that had used straight line distance measurements from the GPS program.
Although Toneck represented that he was a qualified expert in the field of collision investigation, he had not had any specialized training or credentials about investigating any particular problems presented by articulated buses, and had not participated in any such investigations of bus accidents. He had worked on cases involving trucks that had trailers, but he did not show how they were comparable. He explained to the court that the video camera in the rear of the bus had a fisheye lens, and he took that view into account as creating potential distortions, by using measurements only from the lower position of the cameras. He did not feel it was necessary to reconstruct the accident with a different bus or models, since it would be difficult to duplicate the exact conditions.
The court was aware that Toneck had presented similar testimony without challenge in other cases, but it justifiably treated this case as having its own unique set of circumstances. The court ensured that the adequacy of the underlying assumptions for the expert's opinion on speed was fully addressed, both in terms of the precise requests made in the motion in limine, and more generally in pursuit of the gatekeeper function. It was appropriate to focus upon the methodology used in applying the GPS technology to a given set of facts, and to find that the methods described did not account for all the relevant criteria and were more likely than not to lead to unreliable results, that would not have assisted the jury in an appropriate fashion. This was a conscientious exercise of discretion that did not amount to impermissible weighing of the evidence.
Finally, since the jury found MTS was negligent, it must have accepted Hyatt's argument that the bus was most likely traveling through the turn well over five mph, the speed mandated by the MTS policy. No other expert was presented, and the jury saw the bus videos and how they showed the hanging handhold devices changed position somewhat, as Hyatt was leaning over and reaching for a bottle during the ride. Under all the circumstances, we cannot conclude that if the expert testimony had been admitted, it would likely have led the jury to make a different finding on substantial factor causation of the fall from the bus seat. No abuse of discretion appears on this record.
DISPOSITION
The judgment is affirmed. Costs on appeal to Respondent.
/s/_________
HUFFMAN, Acting P. J. I CONCUR: /s/_________
AARON, J. Dato, J., concurring.
"When maps were first created, they represented a cartographer's 'best estimate' of where things were located. Since then, measuring wheels, odometers, airplane photography and now global satellite imaging have moved cartography from the realm of human estimating to satellite-verified pinpoint accuracy. When the legal system needs to establish distance with precision, it should not eschew the accuracy that technology now affords in favor of more flawed and primitive means of measurement." (Commonwealth v. Suarez-Irizzary (Pa. Com. Pl., Aug. 6, 2010, No. CP-38-CR-1204-2009) 2010 WL 5312257 at p. *108.)
Daniel Toneck, plaintiff's expert in this case, calculated the speed of the bus through the turn based on distances measured by a GPS computer program (Google Earth Pro). The use of similar programs has become a ubiquitous feature of our modern world. People in all walks of life rely on them. Courts do too. (See, e.g., State v. Franklin (Ohio App. 2005) 843 N.E.2d 1267, 1269-1270; Dickerson v. Miller's TLC, Inc. (Ohio App., June 7, 2012, No. 96995) 2012 WL 2046505, at *3-4; Pope v. Bridge Broom, Inc. (N.C. App. 2015) 770 S.E.2d 702, 711; Padgett v. Kmart Corporation (S.D. Ga., July 8, 2016, No. CV 315-048) 2016 WL 3746671, at *6.) Toneck testified at his deposition that he relied on the measurements because he previously confirmed distances obtained from the software by taking physical measurements.
Although it expressly "agree[d]" with the methodology utilized by Toneck, the trial court nonetheless excluded his testimony regarding the bus's speed because it found the distances he employed insufficiently reliable. According to the court, "He should have measured it himself." In effect, Toneck's use of Google Earth to measure the distances was pointless.
Even assuming the trial court could properly require confirmation of the Google Earth distances, the simple answer is that Toneck did exactly that. Roughly a week before trial, when it became clear MTS would seek to challenge the reliability of the GPS distances, Toneck went to the intersection, physically measuring and confirming the distances he obtained from the Google Earth software. Plaintiff's counsel then offered to make Toneck available for a supplemental deposition. MTS declined the offer and instead moved to preclude any presentation to the jury of the postdeposition physical measurements, a motion that plaintiff did not oppose.
The trial court refused to acknowledge Toneck's confirmation of the Google Earth distances, assertedly because the measurements were made after, rather than before, his deposition. But the fact that the plaintiff did not seek to introduce the physical measurements into evidence does not mean the trial court could completely disregard the reality that physical measurement had validated the GPS distances used by Toneck in his calculations. MTS makes no attempt to explain why a short supplemental deposition a week before trial could not have addressed any legitimate concern regarding the exceedingly narrow issue whether the physical measurements confirmed calculations that had already been the subject of a thorough deposition.
We all agree that a trial court's decision to exclude expert testimony based on its "gatekeeping" responsibility is reviewed for an abuse of discretion, keeping in mind that "its exercise implicates a party's ability to present its case." (Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747, 773.) I part company with my colleagues because I believe there was no legally permissible reason to exclude Toneck's testimony as to the speed of the bus based on concerns that the physically confirmed Google Earth distances were unreliable. And had the jury in this case found MTS was not negligent without hearing Toneck's opinion testimony that the bus traveled through the turn at 18 miles per hour, I think we would be compelled to reverse the judgment. But that is not what happened.
Plaintiff's only theory of negligence was that the bus driver took the corner too fast. Despite the lack of expert testimony, the jury here agreed with plaintiff and found MTS was negligent. It concluded, however, that MTS's negligence was not a substantial factor in causing the injuries, presumably because plaintiff's own actions would have caused him to fall even had the bus been traveling at a safe speed. Expert testimony as to the exact speed of the bus was unlikely to have affected the jury's conclusion on causation. It is thus not reasonably probable that the error affected the particular result in this case.
/s/_________
DATO, J.