COURT OF APPEALS DECISION DATED AND RELEASED March 25, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0975
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
Jef G. Spalding,
Plaintiff-Appellant,
West Bend Mutual
Insurance Co.,
Plaintiff,
v.
Ammco Tools, Inc.,
Defendant-Respondent,
ABC Insurance Co.,
Coats-Hennessey,
Inc., DEF Insurance
Co., Auto Parts
& Service, Inc.
and American States
Insurance Co.,
Defendants.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS P. DOHERTY, Judge. Reversed
and cause remanded.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Jef G. Spalding appeals from the trial
court's judgment dismissing his action against Ammco Tools, Inc. He argues that the trial court erred in
disqualifying his expert witness from testifying, and denying his request for a
continuance to obtain other expert testimony.
Because we conclude that the trial court erred in disqualifying
Spalding's expert witness, we reverse.[1]
Spalding sued Ammco and
others claiming that he was injured while using an Ammco tire changing machine
to change a tire at the service station where he worked. In his complaint, Spalding alleged that
Ammco was “negligent in the design, testing, manufacturing and sale” of the
tire changing machine and that such negligence “was a substantial factor
causing the injuries.” He also claimed
strict liability, alleging that the Ammco machine “was defective and
unreasonably dangerous.”
Ammco filed a motion in
limine asking the trial court “to preclude [Spalding] from calling William
Max Nonnamaker as an expert witness.” Evaluating Spalding's offer of proof in response to the motion,
the trial court considered extensive testimony from Nonnamaker.
Nonnamaker described his
substantial experience and expertise regarding auto tires. He also explained, however, that although he
had considerable experience with tire changing machines, he never had been
involved in the design or manufacture of such machines. This gap in Nonnamaker's background led the
trial court to conclude that he was not qualified to testify as an expert. Commenting on Nonnamaker's testimony at the
offer of proof, the trial court granted Ammco's motion explaining, in relevant
part:
[Nonnamaker]
has voiced opinions ... to the effect that indeed [the Ammco tire changer] was
defective basically for three reasons, as I understand them: That there were no restraints that
presumably would catch the tire and rim ... if, in fact, there was an explosion
by reason of ... the beads not being ... properly seated. There is a view that the platform upon which
the tire and the rim set ... should have been smaller. And, lastly, that the inflation hose,... an
extension of the machine, did not have a governor on it, in effect....
....
Now
in viewing ... his qualifications, I have to view them in the context of what
relevant testimony ... would be offered ... in the context of those [three] ...
aspects.
...
It is clear ... that the witness is not an expert by reason of educational
background in the context of what we are talking about. He is not an engineer....
....
...
[H]e has no special training ... in the design of this type of equipment, nor
does he have any experience in the designing of this equipment, nor does he
have any demonstrable skill....
But
it does leave open the aspect of knowledge.
There is no question ... that this proffered witness is an expert in the
manufacture of tires and on the subject matter of tires. He, himself, indicates he is an expert on
the problems with the beading, of leaks in tires, which he offered a great deal
of opinions and that ... is one of the aspects of this case. It is apparently going to be uncontested
there was some type of beading that caused this explosion, that ... was a cause
of the unfortunate injuries to ... Mr. Spalding.
...
My judgment, and it is really a discretionary judgment I have to make, is based
upon do I find his knowledge such that he can testify as an expert in this case
on the relevant aspects of it, and specifically those being with regard to the
design and alleged design defects in this machine.
His
knowledge is based upon observing, having made an observation of this machine,
fairly limited, but made an observation of it, not in a functioning capacity, but
as it stands here in court apparently today, and making observations....
....
But
the critical flaw, even though he has some observational knowledge,... is he
does not have that foundational background of being an engineer or design
engineer ... in order to really make an intelligent evaluation of the various
pieces of equipment that he's testified to.
....
...
And I'm just very uncomfortable with his ... background, and insofar as his
ability to really give integrity to—and credibility to his opinions.
....
I
guess as I sit here and I think as the jury would sit here they would say to
themselves, why don't we have somebody in here who manufactures these pieces of
equipment? Or is an engineer in
designing these or ... has worked with these machines? Rather than somebody who is an expert in
tires.
It may be that Mr. Nonnamaker's testimony would
be very compatible and very supportive and relevant to,
in conjunction with an expert on design, but standing alone he does not
substitute for it in his lack of expertise in design.
(Emphases
added.)
Section 907.02, Stats., in part provides that “a
witness qualified as an expert by knowledge, skill, experience, training or
education, may testify thereto in the form of an opinion or otherwise.” “Opinion evidence is admissible if it can
help the jury decide a contested issue of fact.” James v. Heintz, 165 Wis.2d 572, 578, 478 N.W.2d
31, 34 (Ct. App. 1991).
Under § 901.04(1), Stats., “[p]reliminary questions
concerning the qualifications of a person to be a witness ... or the
admissibility of evidence shall be determined by the judge.” The trial court's decision to allow
testimony from a proposed expert is discretionary. State v. Blair, 164 Wis.2d 64, 74, 473 N.W.2d 566,
571 (Ct. App. 1991). The trial court's
decision, however, must have “a reasonable basis” and be “‘“in accordance with
accepted legal standards and in accordance with the facts of record.”’” Id. (quoting State v.
Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983) (citation
omitted)). In this case, we conclude
that the trial court's conclusions were inconsistent with Nonnamaker's
testimony and, therefore, were not “in accordance with the facts of record.”
The trial court premised
its conclusion, in part, on what it said was Nonnamaker's failure to do
anything more than observe the tire changing machine involved in this
case. Nonnamaker, however, testified
that he did more than observe. He
stated that he “inspected” the machine, its turntable, inflation hose and
nozzle, and that he also saw that the machine lacked a tire restraint
device. Under cross-examination, he
also described his testing of the machine.
Q:Okay.
And you can't tell us today whether you tested that tire changer in any
respect, right?
A:Oh, yes. My deposition again speaks to the inflator unit, and checking
that, and I note it's almost a full circle, on literature, inflator 6 to 8
inches long, inflator takes two hands and you have to be over machine. Air chuck hold down valve can be pulled
off—and/or blown off, very flimsy, set for 16 inch,....
Q:Okay.
You didn't test that day whether the air chuck could, in fact, be blown
off during operation, correct?
A:Not blown off. I had a valve and I put it in and pulled on
it and it pulled off very easily.
Q:You didn't measure the force necessary
to allow you to pull the grip chuck off the valve that day, right?
A:No, sir, I did not.
Q:You didn't have an inflated tire with a
valve on it, did you?
A:No, I did not.
Q:So you had a little valve in one hand
and the grip chuck in your other hand, you put them on and pulled them around?
A:That is correct, sir.
Q:And you didn't measure how much force
it took?
A:Other
than it took very little force as far as I was concerned but I did not measure
precisely the force.[2]
The trial court also
based its conclusion on the premise that Nonnamaker was an expert on tires and
tire breaks, but not on factors relating to tire mounting machines and their
possible relationship to tire breaks.
Once again, however, the record refutes the trial court's conclusion;
Nonnamaker's testimony establishes that he was qualified in both areas.
Unquestionably,
Nonnamaker's primary experience and expertise related to tires, not changing
machines. He also testified, however,
that his tire consulting company, Nonnamaker & Associates, has expertise
covering “tires, wheels, inner tubes, valves, flaps, anything that is part of
the assembly and also the tire mounting machine, if it's involved in a bead
break case.” (Emphasis added.) In the course of his work in this latter
area, Nonnamaker testified:
I
came to realize and recognize that the tire mounting machine, if it were
designed so that there was no platform in which to launch the assembly upward
once the bead of the tire went over the flange on the rim, that in essence,
there would be little if any movement of the assembly, that the bead would just
go out into space.
Nonnamaker
went on to relate that he had been involved in the examination and preparation
of reports and had studied tire failures and explosions occurring “during the mounting
or demounting process.”
Nonnamaker testified
that he is an expert “in the facet of bead breaks on mounting machines,” and
“on tire mounting machines that involve the breakage of the bead.” He offered numerous opinions on what he
viewed as the design deficiencies of the Ammco machine and their causation of
Spalding's alleged injuries. In his
opinion, “the bead of the tire broke on the bottom and went over the flange,
and because of the platform being present, hurled the assembly upward and
injured Mr. Spalding.”
In sum, Nonnamaker
described many years of experience that, he said, had provided him with
expertise on the subjects surrounding the anticipated issues of this case. As this court has explained:
A witness called to give expert testimony may,
like any other witness, establish a proper testimonial foundation by his or her
own testimony. Cf. Rule 906.02, Stats. (A witness' requisite personal knowledge may be proven
by his or her own testimony.). This
testimony must be accepted by the trial court in making its determination under
Rule 901.04(1), Stats., unless it
finds the testimony not credible or there is contrary credible evidence that
undercuts the proffered foundation.
James, 165
Wis.2d at 579, 478 N.W.2d at 34 (emphasis added).
Despite commenting “that
experts who are experts by reason of their profession tend to be somewhat
suspect, tend to ... fall into that cliche designation, many times, of the
hired gun,” the trial court never found that Nonnamaker's testimony was not
credible. Commenting on the
“credibility” and “integrity” of Nonnamaker's views, the trial court clearly
was offering its assessment of the potential weight of his testimony, given his
professional background. No contrary
evidence undercut Nonnamaker's professed experience and expertise and,
therefore, under James, the trial court was required to accept
Nonnamaker's assessment that he had expertise in the area of bead breakage and
its relationship to tire changing machines during the mounting and demounting
process.
This court recently
reiterated:
[T]he
rule remains in Wisconsin that the admissibility of scientific evidence is
not conditioned upon its reliability.
Rather, scientific evidence is admissible if: (1) it is relevant, § 904.01, Stats.; (2) the witness is qualified as an expert, §
907.02, Stats.; and (3) the
evidence will assist the trier of fact in determining an issue of fact, §
907.02. If these requirements are
satisfied, the evidence will be admitted.
State
v. Peters, 192 Wis.2d 674, 687-88, 534 N.W.2d 867, 872 (Ct. App.
1995) (emphasis added; footnotes and citation omitted).
Nonnamaker's testimony
was relevant. Indeed, while doubting
the value of Nonnamaker's testimony, standing alone, the trial court
acknowledged its relevance. Nonnamaker
was qualified to testify as an expert, for the reasons we have explained. His opinions, addressing the very subjects
surrounding the issues in this case, may very well assist the jury. Thus, although ultimately a jury might come
to share the trial court's concerns about the “integrity” and “credibility” of
Nonnamaker's opinions, such concerns relate to the reliability, not the
admissibility, of his testimony.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Accordingly, we do not address the argument regarding the trial court's denial of a continuance. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).
[2] We do not mean to imply that mere observation necessarily would be insufficient to establish a witness's qualifications. That would depend on the issues of the case and the nature of the observations. Thus, in this regard, we also note that Nonnamaker testified that although he had not conducted tests “designed to break the beads of tires during the mounting process” involving other tire changing machines, he had observed such tests.