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May 24, 2008
Possible Cause vs. Proximate Cause: Supreme Judicial Court Of Maine Vacates $400,000 Award Against The Maine Department of Transportation
The Supreme Judicial Court of Maine has vacated a jury verdict in the amount of $400,000 against the Maine Department of Transportation in an opinion finely parsing between what testimony an expert witness could and could not give. In Tolliver v. Department of Transportation (MDOT), 2008 WL 2025325 (ME. 2008), the Court was presented with the following factual scenario:
In the early morning of June 20, 2004, Caroline M. Knight was driving when she struck Lucas E. Tolliver, a pedestrian. The portion of Route 302 where the accident occurred was under construction by the MDOT and had recently been repaved. The only markings on the road were yellow reflective markers delineating the center of the road, and there were no white edge lines separating the travel lanes from the breakdown lanes. After hitting Lucas, Knight drove away and did not call 911 or notify any other emergency service. Lucas sustained serious bodily injuries as a result of the accident, including a brain injury. Thereafter, Robert L. Tolliver, as sole guardian and conservator for his son Lucas, filed a complaint alleging negligence on the part of the MDOT and Knight, with the claim against the MDOT alleging that the MDOT had been negligent in failing to stripe Route 302 in a timely fashion, and in failing to maintain safe conditions on Route 302 through the use of temporary edge line markings. After trial, a jury awarded Tolliver $400,000 in damages against the MDOT
Now, there are a lot other facts and issues in the case relating, inter alia, to Knight's alleged intoxication, but I want to focus on one issue, which is the expert testimony of Laurent Lavigne, who provided the central testimony relating to causation. Lavigne was designated as an expert witness by Tolliver, and testified that he was currently working as a road construction consultant. Lavigne testified that he
-had a degree in civil engineering with a major in transportation;
-had previously worked for a paving company that performed road construction in Maine, including paving and striping activities;
-had worked on numerous highway construction projects, many of which involved striping and paving;
-(in connection with his company) was the MDOT subcontractor responsible for striping on some state road projects,
After Lavigne had testified to his experience working on highway construction projects in general, and specifically as an MDOT subcontractor, Tolliver asked Lavigne if, "based upon [his] training, education, experience and [his] examination of the site conditions at the scene of the accident,” he had “an opinion as to whether or not the failure of [MDOT] to stripe the fog line or sideline prior to the accident on June 20th was a substantial contributing factor in causing the accident." After MDOT's objection was overruled, Lavigne stated that he believed the lack of an edge line would be confusing to drivers and pedestrians in general and then stated that he believed the lack of an edge line was "a substantial contributor to the accident."
On appeal, the MDOT contended that Lavigne was not qualified to testify, inter alia, that the lack of an edge line was a substantial contributing factor to the accident. The Supreme Judicial Court of Maine agreed, finding that Lavigne was a road construction expert and not an accident reconstructionist; it thus concluded that "Lavigne's training and experience may have permitted him to opine that the lack of an edge line created an unsafe condition that was a possible cause of the accident, but not that it was a proximate cause of the accident. The mere possibility of causation is not enough to establish proximate cause, or, in Lavigne's words, "substantial contribut[ion]." The Court thus found that because there was no evidence of proximate causation, the MDOT was entitled to judgment as a matter of law and vacated the judgment.
Now, in fairness to the Supreme Judicial Court of Maine, there were other issues with Lavigne's testimony, such as the fact that he only visited the accident scene once and had only basic knowledge of the area where the accident occurred. Putting those issues aside, though, does the Court's distinction make sense in that, ostensibly, and accident reocnstructionist could testify about proximate causation, but a road construction expert could only testify about possible causation? I don't think so.
"Proximate cause is a legal term representing the common-sense notion that a closer causal connection should be required for liability than an act being the cause in-fact of an injury. Whether defendants' acts are the proximate cause of an injury depends upon whether the injury was of a type that a reasonable person would see as a likely result of their conduct." Webb v. Amato, 210 F.Supp.2d 1015, 1016 (N.D. Ill. 2002). Now, I'm no expert in the work of accident reocnstructionists, but it seems to me that they use crime scene evidence to paint a picture of how an accident occurred, which seems highly relevant to help decide whose story of an accident is true, but which doesn't seem especially relevant in establishing whether a reasonable person should have expected that the accident would occur (e.g., whether the MDOT should have known that the lack of an edge line would likely cause an accident).
So, who would I want providing that testimony? I would imagine that my first choice would be a road construction consultant, and preferably one who had worked in the state where the accident occurred, who had done the type of work involved in the accident (striping), and who had done work for one of the parties involved in the accident. Lavigne filled all three bills, and it seems very strange to me that the Supreme Judicial Court of Maine nonetheless found that he could not render expert opinion testimony on proximate causation. What do readers think?
(Hat tip to Professor Deirdre Smith)
May 24, 2008 | Permalink
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The Supreme Judicial Court's decision in this case is correct. In this case, the plaintiff had to establish that the failure of Maine DOT to provide striping along the side of the roadway was negligence AND that the lack of striping was a proximate cause of this collision. The trial court's instruction to the jury indicated that in order for proximate (legal) cause to be established, one must establish that the act or failure to act "played a substantial part in bringing about or actually causing" the injury. Interestingly, the SJC's decision adds emphasis to the words "this particular accident" when analyzing the expert's testimony.
While the civil engineer in this case may have established that the lack of striping was negligence, his testimony lacked the proper foundation to opine that the lack of striping was in any way related to the outcome of this collision. One could easily conclude that the lack of striping alongside the travel lane would result in a greater number of vehicles straying into the "breakdown lane," but there was no foundational testimony to establish that the reason the driver strayed into the breakdown lane was because there was no stripe, therefore, there is no link between the negligence of MDOT's failure to act and the results of this accident. That is where the accident reconstructionist's testimony is helpful. Had the plaintiff offered testimony from an accident reconstruction expert as to the circumstances and causes of the collision, that testimony would have dovetailed nicely with Mr. Lavigne's testimony as to the negligence of the MDOT.
Posted by: Bruce F. McNally | Dec 11, 2008 9:45:31 AM