FRED M. HOSBEIN AND COMMERCIAL CARRIER CORPORATION, APPELLANTS,
v.
ROSLYN SILVERSTEIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF NATHAN SILVERSTEIN, DECEASED, FOR THE BENEFIT OF ROSLYN SILVERSTEIN, SURVIVING WIFE, AND ARNOLD V. FEDELE AND HARTFORD ACCIDENT AND INDEMNITY COMPANY, APPELLEES
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In this wrongful death action arising from an automobile accident, the Florida Fourth District Court of Appeal reversed and remanded the trial court's judgment because the trial court improperly excluded expert engineering testimony regarding vehicle speed, reaction time, point of impact, and related accident reconstruction issues. The appellate court held that such expert testimony would have been helpful to the jury given the contradictory eyewitness accounts and was therefore not subject to exclusion under the trial court's discretion.
The trial court abused its discretion by excluding Dr. Fogarty's expert testimony. Although a trial judge has discretion to exclude expert testimony that relates to matters within common understanding or that merely reiterates eyewitness testimony, the exclusion was improper here because Dr. Fogarty's testimony would have addressed matters beyond what eyewitnesses testified to and would have been particularly useful given the contradictory versions of the accident.
[1] A trial court abuses its discretion by excluding expert testimony that would assist the jury in understanding matters beyond common experience, especially when eyewitness…
[2] Expert testimony is unnecessary when it merely reiterates what eyewitnesses have already stated.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial judge has the duty to determine whether an expert witness' testimony will assist the jury, and when such testimony relates to matters within the common understanding or experience of an average person, a trial judge can properly conclude that the jurors can resolve the issue without the benefit of such expert testimony.”
Establishes the general standard for trial court discretion in admitting expert testimony
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Join FLexlaw to unlock all legal intelligenceAn automobile accident resulted in the death of Nathan Silverstein. The trial involved testimony from numerous eyewitnesses whose accounts of the acci…
The full statement of facts, procedural history, and disposition for this case are member content.
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MOORE, Judge.
This appeal is from a final judgment in favor of plaintiffs in a wrongful death action arising out of an automobile accident.
We have considered all of appellants’ points on appeal and find only one to have merit. Appellants contend that it was error for the trial court to exclude a proffered testimony of their expert witness, Dr. Fo-garty, an engineer. Dr. Fogarty’s testimony would have related to the reaction time of the truck-driver defendant, the point of impact, the angle of impact, the speed of the vehicles involved in the accident and other related issues. The testimony of the numerous eyewitnesses to the accident was contradictory and the hypothetical questions posed to Dr. Fogarty were based upon facts and inferences derived from the testimony of some of those witnesses. The trial court, relying on Allen Morris Co. v. McNally, 305 So. 2d 79 (Fla. 3d DCA 1974), refused to permit Dr. Fogarty to testify because the testimony was “neither necessary or advisable as an aid to the jury.”
We hold that the trial court abused its discretion by refusing to permit Dr. Fogarty to testify. A trial judge has the duty to determine whether an expert witness’ testimony will assist the jury, and when such testimony relates to matters within the common understanding or experience of an average person, a trial judge can properly conclude that the jurors can resolve the issue without the benefit of such expert testimony. Atlantic Coast Line Railroad Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922). Similarly, when the expert’s testimony will merely reiterate what eyewitnesses have stated such testimony is unnecessary. Allen Morris Co., supra.
In Allen Morris Co., supra, several eyewitnesses testified regarding the speed of the plaintiff’s vehicle and the expert witness was going to give similar testimony as to the speed of the vehicle. The appellate court determined that there was no abuse of discretion on the part of the trial court by excluding such expert testimony, particularly when the expert’s testimony would have been based on scanty hypothetical facts. The subject matter of Dr. Fogarty’s testimony in the instant case would have gone far beyond what the eyewitnesses had previously testified to, and his testimony was not limited to the speed of the vehicles. Such testimony would have served a particularly useful purpose in the light of the contradictory versions of the accident presented by the various eyewitnesses. Furthermore, the proffered hypothetical were not based upon scanty hypothetical facts. The Allen Morris Co. case is, therefore, distinguishable and the exclusion of Dr. Fogarty’s testimony constituted prejudicial error. We have considered the remaining points raised on appeal and determine them to be without merit. In view of our holding above, the instant case is REVERSED and REMANDED for a new trial.
REVERSED and REMANDED.
CROSS, J., concurs.
ALDERMAN, C. J., dissents with opinion.
ALDERMAN, Chief Judge,
dissenting:
Although I do not think it would have been reversible error if the trial court had admitted Dr. Fogarty’s testimony, its failure to do so, in my opinion, was not such a gross abuse of discretion as to require a new trial. I would affirm.
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Williams v. State, 538 So. 2d 73 (Fla. 4th DCA 1989)…United States v. Spell, 789 F. 2d 143 (2d Cir.1986). We also find no error in allowing an officer with specialized knowledge to express his opinion on the relationship between large amounts of cash and drug transactions. Cf. Hosbein v. Silverstein, 358 So. 2d 43 (Fla. 4th DCA), cert. denied, 365.So. 2d 714 (Fla.1978); United States v. Ginsberg, 758 F. 2d 823 (2d Cir.1985); United States v. Daniels, 723 F. 2d 31 (8th Cir.1983). Therefore, the judgment and sentence are affirmed. GLICKSTEIN and STONE, JJ„ co…
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Allen v. State, 365 So. 2d 456 (Fla. 1st DCA 1978)…tudy or by practical experience that he can give the jury assistance and guidance in solving a problem to which their equipment of good judgment and average knowledge is inadequate. (See 13 Fla.Jur., Evidence, § 310, et seq.; Hosbein v. Silverstein, 358 So. 2d 43 (Fla. 4th DCA 1978); Seibels, Bruce & Company v. Giddings, 264 So. 2d 103 (Fla. 3rd DCA 1972) and Cromarty v. Ford Motor Co., 341 So. 2d 507 (Fla.1976).) The record reveals that Mr. Boercker had a Bachelor of Arts degree in Physics and as a graduate…
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State v. Gerry, 855 So. 2d 157 (Fla. 5th DCA 2003)…this opinion. Even if not properly excluded under section 90.403, the trial judge could have properly excluded it under section 90.702, Florida Statutes, by making the determination that it will not assist the trier of fact. Hosbein v. Silverstein, 358 So. 2d 43, 44 (Fla. 4th DCA 1978) (trial judge has broad discretion to exclude expert testimony if he or she determines it will not assist the trier of fact). Whether we as appellate judges would have reached the same conclusion is irrelevant. We should care…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Atl. Coast Line R.R. Co. v. Shouse, 83 Fla. 156 (Fla. 1922)
- The Allen Morris Co. v. McNALLY, 305 So. 2d 79 (Fla. 3d DCA 1974)