Sunday, April 24, 2011
Moving Violations: Middle District Of Florida Finds No Problem With Lay Witness' Conclusions Under Rule 701
Federal Rule of Evidence 701 provides that
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
It is well established under this rule that lay witnesses can offer opinion testimony regarding a car's rate of speed. But did the lay witness go too far in a recent case? According to the recent opinion of the United States District Court for the Middle District of Florida in Hardiman v. Stevens, 2011 1480401 (M.D.Fla. 2011), the answer is "no." I disagree.In Hardiman,
John Stevens...and Gregory Hardiman...were involved in a motor vehicle accident. Mr. Hardiman, a Pinellas County school bus driver was sitting in stopped traffic on U.S. Highway 19 when a white van driven by Mr. Stevens approached at a high rate of speed....Mr. Hardiman observed that the road was wet because it had been raining throughout the day.... ccording to Mr. Hardiman, Mr. Stevens did not try to stop until he was immediately approaching stopped vehicles on U.S. Highway 19...The van driven by Mr. Stevens struck a curb and then "became airborne."...The airborne van then struck the left side of the school bus "with such impact that the entire suspension (wheels, axles and springs) were entirely disengaged from the bus and the van proceeded to collide with other southbound vehicles."
Mr. Hardiman and his wife thereafter brought an action against (1) Stevens for negligence and loss of consortium; and (2) Liberty Mutual for uninsured motorist benefits. Stevens thereafter brought a motion for partial summary judgment as to the Hardimans' demand for punitive damages. In denying this motion, the Middle District of Florida considered, over Stevens' objection, the following evidence:
At his deposition, Mr. Hardiman estimated Mr. Stevens was driving at a speed of "at least 50, 55" while "coming up on stopped traffic."...Furthermore, Mr. Hardiman testified that it rained intermittently that day approximately "[e]very 20 minutes."...In his affidavit, Mr. Hardiman averred that Mr. Stevens was driving at "such a high rate of speed" that "a traffic accident was absolutely unavoidable."...In addition, "there was absolutely no indication that [Mr. Stevens] made any evasive action," including engaging the brakes, until "he turned the wheels on the van sharply to the left in an obvious effort to avoid colliding with the stopped vehicles immediately in front of the van."
In finding this evidence to be admissible, the Middle District of Florida concluded that
Contrary to Mr. Stevens's arguments, it is appropriate for Mr. Hardiman to opine as to the rate of speed of Mr. Stevens's car and the weather conditions on the date of the accident. Rule 701, Fed.R.Evid., allows opinion testimony by lay witnesses that is “rationally based on the perception of the witness.” See United States v. Carlock, 806 F.2d 535, 552 (5th Cir. 1996) (noting that one of the "common illustrations” of Rule 701 lay opinion testimony is “an expression of opinion by a lay observer of a car's speed.")
My response? I have no problem with Hardiman estimating Stevens' speed at "at least 50, 55...." I also have no problem with Hardiman testifying about the intermittent rain. Indeed, I don't even see this latter testimony as opinion testimony; instead, it is simply factual testimony properly based upon Hardiman's personal knowledge under Federal Rule of Evidence 602. For the same reason, I have no problem with Hardiman's testimony about Stevens seemingly not making any evasive action and then turning the wheels sharply. Again, this was proper factual testimony under Rule 602.
But what about Hardiman's testimony that Mr. Stevens was driving at such a high rate of speed that a traffic accident was absolutely unavoidable? I don't see how such a conclusion is rationally based on the perception of a lay witness or helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Instead, it is exactly the type of baseless legal conclusion that the Rules preclude.