Opinion
No. 2-230 / 00-1227.
Filed May 31, 2002.
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
The plaintiff appeals from a jury verdict for the defendant, contending the district court abused its discretion when it excluded evidence of the defendant's driving history and an expert's computer simulation. AFFIRMED.
Dennis A. Bjorklund and Don W. Schroeder, Coralville, for appellant.
James R. Hellman and Carolyn A. Rafferty of Dutton, Braun, Staack, Hellman, P.L.C., Waterloo, for appellee.
Heard by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Laralee Simmons is the mother of two children who were injured in a car accident. She appeals a jury verdict in favor of the defendant truck driver. She challenges the district court's rulings excluding evidence of the trucker's driving record and accident history and evidence of her expert's computer simulation. We affirm.
I. Background Facts and Scope of Review
Simmons left her two young children in the care of a friend. The friend placed the children in her car without using the car seats provided by Simmons, ran a red light, and collided with a semi-tractor trailer driven by Jody Eisentrager. Both children sustained injuries; the younger child sustained life-threatening injuries rendering him permanently disabled.
Simmons sued Eisentrager and his employer for negligence. Prior to trial, Eisentrager filed a motion in limine seeking to exclude evidence of his driving record and accident history. The district court granted the motion.
On the third day of trial, Simmons called an accident reconstruction expert to the stand. Eisentrager sought to exclude the expert's computer simulation of two sets of skid marks, contending the use of this technology was not disclosed prior to trial. The district court ruled that the expert could not use his computerized simulation but could refer to photographs of the skid marks and could draw on the photographs.
The jury returned a verdict in favor of Eisentrager. This appeal followed. Simmons contends the district court abused its discretion in excluding (1) Eisentrager's driving record and accident history and (2) the expert's computer simulation. We review both issues for abuse of discretion. Dettman v. Kruckenberg, 613 N.W.2d 238, 249 (Iowa 2000); Morris-Rosdail v. Schechinger, 576 N.W.2d 609, 611 (Iowa Ct.App. 1998).
II. Driving Record and Accident History
A. Error Preservation . As a preliminary matter, Eisentrager contends error was not preserved on Simmons' challenge to the exclusion of his driving record and accident history because Simmons did not make an offer of proof. Our courts have repeatedly stated that, in the absence of an offer of proof, there is nothing to review. See Trushcheff v. Abell-Howe Co., 236 N.W.2d 119, 122 (Iowa 1976). However, there is an exception where, on the whole record, what is sought to be proven is apparent. Id. As the nature of the challenged evidence is apparent on this record, we elect to proceed to the merits.
B. Merits . Eisentrager's driving record consisted of seven tickets or citations for various non-accident related infractions as well as evidence of three accidents over a twelve year period. Simmons contends this evidence established a habit of reckless driving that the jury should have been allowed to consider. The district court rejected her contention, reasoning:
[T]hose incidents are simply not numerous enough and not substantially similar enough to establish a habit or a routine practice to make that evidence admissible. Also, the other concerns that I stated on the record pertaining to that evidence remain concerns of mine. I believe that there is a danger that the issues would be confused, that we would be wasting time, that the evidence is more prejudicial than probative.
We agree with this reasoning. At common law, habit evidence was admissible where the specific instances (1) were "numerous enough to base an inference of systematic conduct" and (2) occurred under "substantially similar circumstances, so as to be naturally accountable for by a system only, and not as casual recurrences." Barrick v. Smith, 248 Iowa 195, 200, 80 N.W.2d 326, 329 (1957), quoting 1 Wigmore on Evidence, 2d Ed., section 376. Our current rules of evidence do not specify what constitutes habit evidence but continue to deem such evidence "relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." Iowa R. Evid. 5.406.
Here the prior driving-related incidents do not amount to habit evidence. They are not so numerous as to raise an inference of systemic conduct nor are they similar to each other or to the circumstances surrounding the accident with Simmons. Contrast Gamerdinger v. Schaefer, 603 N.W.2d 590, 593 (Iowa 1999) (noting forklift operator's erratic driving habits were discussed twice a month for five and a half to six years). For example, Eisentrager received only four speeding tickets over a seven-year period. While he also received three tickets or citations for having improper equipment on his vehicle, these types of infractions are not an issue in this case. His accident record includes an incident involving loss of control on a gravel road and two collisions, neither of which resulted in a ticket. Given the relatively few incidents and the differences in the circumstances of these incidents, we conclude the district court did not abuse its discretion in granting Eisentrager's motion in limine.
III. Exclusion of Expert's Computer Simulation
Iowa Rule of Civil Procedure 1.508 authorizes discovery sanctions where a party does not reveal the substance of an expert's testimony prior to trial. Sanctions include the exclusion of evidence. See Flom v. Stahly, 569 N.W.2d 135, 143 (Iowa 1997). Exclusion of evidence is the most severe sanction available under rule 125(c) and is justified only when prejudice would result. Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997).
Simmons contends the district court abused its discretion in excluding her expert's computer simulation of the accident scene for failure to disclose it in discovery. She essentially concedes she did not disclose her expert's reliance on the computer simulation either in answers to interrogatories or in responses to a request for production of documents served by Eisentrager. However, she notes that her expert did make reference to the simulation during a deposition. Specifically, the expert stated he scanned an accident scene photograph into his computer and attempted to determine whether it was "reasonably certain" that the dual tire tracks seen in the picture lined up. Simmons suggests this deposition testimony placed Eisentrager on notice that the computer simulation would be used at trial.
We agree with Simmons that the testimony placed Eisentrager on notice of her expert's reliance on computer technology. We disagree that the testimony placed him on notice of its potential use at trial. When asked if he produced a photographic enlargement of his computer simulation, the expert stated he had been unable to print out what appeared on the screen. He additionally stated he had no "objective tests" derived from his software that would show the skid marks lined up. The district court relied on this deposition testimony to exclude the computer simulation evidence. We find no abuse of discretion.
We recognize Eisentrager made only a minimal showing of prejudice. He pointed to the fact that Simmons did not disclose her expert's intended use of the simulation until the morning of his scheduled testimony, but did not deny he had prior knowledge of the simulation and an opportunity to cross-examine the expert at trial. See Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). Nevertheless, as Simmons' late disclosure minimized the time Eisentrager had to prepare for cross-examination of the expert, we conclude there was a sufficient showing of prejudice to justify the court's exclusion of the evidence. Conversely, we note that Simmons suffered little prejudice from the court's ruling, as the court expressly permitted her expert to draw the lines that would have appeared on his simulation and gave him broad latitude to testify about his opinions of the accident. For these reasons, we affirm the court's discovery sanction.
IV. Disposition
The judgment is affirmed.
AFFIRMED.