Keesee v. Donigan

Present: 	All the Justices
APRIL A. KEESEE
v. 	Record No. 990181 	OPINION BY JUSTICE BARBARA MILANO KEENAN
January 14, 2000
HOWARD ALEXANDER DONIGAN
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
In this appeal from a judgment for the defendant in a
negligence action, we determine whether the trial court abused
its discretion in admitting the testimony of an automobile
accident reconstruction expert concerning "average" human
perception and reaction times.
In June 1997, April A. Keesee filed a motion for judgment
against Howard Alexander Donigan alleging that Donigan
negligently operated his motor vehicle, which collided with the
vehicle she was driving and caused her to sustain personal
injuries. 	Keesee alleged, among other things, that Donigan
failed to keep a proper lookout while driving and failed to keep
his vehicle under proper control.
The following evidence was presented in a jury trial. 	On
September 8, 1996, at about 3:15 a.m., Keesee was injured when
the car she was driving on State Route 655 in Amherst County
collided with Donigan's vehicle. 	The accident occurred on the

two-lane roadway as Donigan approached Keesee's vehicle from the
opposite direction.
A large fallen tree limb blocked Donigan's lane of travel
from the shoulder of the road to a point near the center line
mark. 	When Donigan saw the tree limb, he was able to steer his
vehicle so that the tires on the driver's side passed through
the small clearing between the end of the limb and the center
line mark of the road. 	The front tire on the passenger's side
rolled over the tree limb, but the rear tire on that side hit
the limb and the vehicle was "thrown" into the path of Keesee's
oncoming vehicle. 	The front left corners of the two vehicles
collided.
Donigan testified that he was travelling at a maximum speed
of 35 miles per hour when he saw the limb blocking his lane of
travel. 	He stated that the headlights on his vehicle
illuminated the roadway ahead for a distance of about 75 to 100
feet.
Michael Gould, a friend of Keesee's, testified that he was
driving his vehicle on Route 655 in the same direction as Keesee
about 50 yards ahead of Keesee's car. 	When Gould saw the tree
limb blocking the lane in which Donigan's vehicle was
approaching, Gould "flashed" his vehicle's high beam headlights
several times to warn Donigan of the approaching danger.
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Donigan testified that he thought Gould was trying to inform him
that Donigan had his own high beam headlights activated.
Over Keesee's objection, the trial court permitted Donigan
to present the testimony of Stephen B. Chewning, who qualified
as an expert in accident reconstruction, concerning "average"
human perception and reaction times. 	Before ruling on Keesee's
objection, the trial court permitted counsel to question
Chewning outside the jury's presence. 	During this questioning,
Chewning agreed that many factors, including a person's physical
condition, visual acuity, and cognitive abilities, affect the
length of time required for that person to perceive and react to
an unexpected highway danger. 	Chewning stated that an older
person would have slower than "average" reaction times, while an
athlete or an airplane pilot would react to sudden events faster
than "average." 	Chewning acknowledged that he had not tested
Donigan's vision or assessed his cognitive and physical
abilities but assumed that they were "normal." 	The trial court
overruled Keesee's objection to Chewning's testimony.
Chewning testified before the jury regarding a person's
perception of and reaction to an unexpected hazard while
driving. 	He testified that based on numerous industry studies
conducted by universities and government agencies over the past
sixty years, a driver requires three-quarters of a second, "on
average," to perceive a hazard. 	That driver also takes another
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three-quarters of a second to react to what he has perceived.
Thus, Chewning concluded that a driver requires an average of
1.5 seconds between the time he first recognizes a hazard and
the time he executes an action to avoid the hazard. 	Chewning
stated that this figure is subject to a variation of as much as
four-tenths of a second, depending on the individual involved.
Chewning explained that this "average" period of 1.5
seconds is an "industry standard" that has remained constant
since the 1930's, and generally is used in accident
reconstruction unless there is a specific reason not to use it.
He also testified, based on mathematical calculations, that a
vehicle traveling 35 miles per hour covers 51.3 feet per second.
In his closing argument, Donigan's counsel used Chewning's
testimony to support his argument that since Donigan required
1.5 seconds to perceive and react to the presence of the tree
limb, he did not have sufficient time to avoid the accident.
The jury returned a verdict in favor of Donigan, and the trial
court entered judgment in accordance with the jury verdict.
On appeal, Keesee argues that the trial court erred in
admitting Chewning's testimony concerning "average" perception
and reaction times. 	She contends, among other things, that
Chewning's testimony concerning this test data was inadmissible
because it failed to consider whether Donigan's physical and
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mental condition may have affected his perception and reaction
times.
In response, Donigan contends that the challenged testimony
was properly admitted because it assisted the trier of fact in
understanding the process by which a person perceives and reacts
to an unexpected hazard while driving. 	He asserts that Chewning
did not express an opinion concerning Donigan's specific
reaction and perception times during the accident, but simply
"educated the jury" regarding a technical aspect of the case.
Donigan argues that Chewning's testimony provided the jury with
the knowledge necessary to consider Donigan's perception and
reaction in determining whether he acted as a reasonable person
would have acted under the circumstances presented. 	We disagree
with Donigan's arguments.
The standard of review that we apply is well established.
The admission of expert testimony is a matter within the sound
discretion of the trial court, and we will reverse the trial
court's judgment only when the court has abused this discretion.
Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166,
458 S.E.2d 462, 465 (1995); Brown v. Corbin, 244 Va. 528, 531,
423 S.E.2d 176, 178 (1992).
We first note that Keesee did not raise a hearsay objection
to the admission of the disputed testimony or argue that the
testimony failed to qualify for admission under the provisions
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of Code § 8.01-401.1. 	See, e.g., Todd v. Williams, 242 Va. 178,
182-83, 409 S.E.2d 450, 452-53 (1991). 	Therefore, we consider
Keesee's argument apart from these legal principles.
Expert testimony generally is admissible in civil cases if
it will aid the trier of fact in understanding the evidence.
See Code §§ 8.01-401.1 and –401.3; Tittsworth v. Robinson, 252
Va. 151, 154, 475 S.E.2d 261, 263 (1996). 	However, the
admission of expert testimony is subject to certain fundamental
requirements, including the requirement that the evidence be
based on an adequate foundation. 	Id.; Tarmac Mid-Atlantic,
Inc., 250 Va. at 166, 458 S.E.2d at 465-66; Lawson v. Doe, 239
Va. 477, 482-83, 391 S.E.2d 333, 336 (1990). 	Thus, expert
testimony is inadmissible if it is founded on assumptions that
have an insufficient factual basis. 	Tittsworth, 252 Va. at 154,
475 S.E.2d at 263; Tarmac Mid-Atlantic, Inc., 250 Va. at 166,
458 S.E.2d at 466; see Gilbert v. Summers, 240 Va. 155, 160, 393
S.E.2d 213, 215 (1990).
In addition to these basic principles, we also consider two
recent decisions in which we have addressed the admissibility of
expert testimony offered to assist a trier of fact in
understanding general scientific or technical principles. 	In
Holmes v. Doe, 257 Va. 573, 578, 515 S.E.2d 117, 120 (1999), we
held that the trial court did not abuse its discretion in
permitting an expert witness to explain the general relationship
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between a vehicle "hydroplaning" and the factors of wet road
conditions, tire tread depth, and vehicular speed. 	In Breeden
v. Roberts, 258 Va. 411, 414-16, 518 S.E.2d 834, 836-37 (1999),
we held that the trial court abused its discretion in excluding
expert testimony from a mechanic regarding the effect that a
frozen brake adjuster has on the operation and performance of a
vehicle.
In these two cases, the expert testimony concerning those
general scientific and technical principles did not require any
specific information about the drivers involved in the cases,
the condition of their vehicles, or other circumstances in which
the accidents occurred. 	Thus, the expert testimony concerning
general principles in these cases was appropriate to aid the
triers of fact in drawing their own conclusions from the factual
evidence received from the other witnesses. 	See Holmes, 257 Va.
at 578, 515 S.E.2d at 120.
The expert testimony at issue in the present case presents
a distinct contrast from the type of expert testimony approved
in Breeden and Holmes. 	In those cases, the experts did not
attempt to relate the scientific principles about which they
testified to a particular driver or vehicle. 	Here, however,
Chewning applied his testimony to a particular driver, Donigan,
in the absence of foundation evidence that would place him
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within the subject matter of Chewning's testimony concerning the
"average" driver.
As stated above, Chewning acknowledged that the "average"
driver response times are subject to variation, depending on a
driver's physical condition, visual acuity, and cognitive
abilities. 	However, he performed no tests to establish that
Donigan fell within the average range with regard to such
variables. 	When asked whether he performed tests to determine
Donigan's perception time, Chewning replied, "No, I've put him
into an average category." 	When questioned whether he merely
assumed that Donigan's reaction times are "the standard,"
Chewning stated, "Yes."
This testimony was insufficient to lay a foundation for
admission of the challenged evidence because the probative value
of that evidence rested on assumptions about Donigan that had no
factual basis in the record. 	See Tittsworth, 252 Va. at 154,
475 S.E.2d at 263; Tarmac Mid-Atlantic, Inc., 250 Va. at 166,
458 S.E.2d at 466. 	Thus, we conclude that the trial court
abused its discretion in allowing Chewning's testimony, absent
foundation evidence that Donigan's physical and mental
characteristics relevant to his perception and reaction times
placed him within the average range of persons tested.
Contrary to Donigan's assertion, this error was not
harmless. 	Chewning was the only expert witness who testified on
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this subject, Donigan's counsel emphasized this evidence in his
closing argument and, thus, the testimony may well have made a
lasting impression on the jury to Keesee's prejudice. 	See CSX
Transp., Inc. v. Casale, 250 Va. 359, 367, 463 S.E.2d 445, 450
(1995).
For these reasons, we will reverse the trial court's
judgment and remand the case for a new trial consistent with the
principles expressed in this opinion.
Reversed and remanded.
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