Opinion
No. 4-758 / 03-1884
Filed January 26, 2005
Appeal from the Iowa District Court for Warren County, Peter A. Keller, Judge.
Plaintiff-appellant filed suit claiming defendant-appellee was negligent and that she was injured following a motor vehicle accident. AFFIRMED.
John Dougherty of Lawyer, Dougherty, Palmer Flansburg, P.L.C., West Des Moines, for appellant.
Matthew Haindfield of Bradshaw, Fowler, Procotor Fairgrave, P.C. Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
This case arose from a motor vehicle accident in Warren County, Iowa. The cars that plaintiff-appellant, Karen Strange, and defendant-appellee, Lloyd Glascock, were driving collided when defendant passed plaintiff as she was attempting a left turn into a farm field driveway. Plaintiff filed suit claiming defendant was negligent and that she was injured in the collision. A jury found plaintiff was 50.5 percent at fault in the accident and her claim was dismissed. On appeal plaintiff claims that (1) the district court should not have admitted defendant expert witness's computerized depictions of the accident sequence, and (2) the district court should not have admitted certain evidence that plaintiff claims went to her truthfulness. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Plaintiff was traveling east on a two-lane portion of Highway 92. Realizing that she needed to return home to pick up an item, she began the process of turning around. To turn around she intended to make a left turn into a farm field entrance. There was conflicting testimony as to whether or not plaintiff signaled that she was making a left turn. Plaintiff testified she did. Defendant testified she did not. As defendant approached the plaintiff's slow-moving vehicle, he moved into the left lane (the lane for oncoming traffic, which was empty) to pass. Near the time that defendant was moving into the left lane, plaintiff began to make a left turn into the farm field entrance. A "T-bone" collision resulted.
Prior to trial, plaintiff filed two motions in limine dealing with evidentiary issues that are the subject of this appeal. First, plaintiff sought to exclude defendant-expert's computer-animated recreations of the accident sequence. Plaintiff argued the animations were not fair and accurate presentations of the events. The animations show a number of views of how the expert thought the accident occurred. There are two aerial view animations, which are identical, except one shows plaintiff engaged her turn signal, and one shows she did not. There are also two animations depicting defendant's point of view looking through his windshield, which are also identical except one shows plaintiff engaged her turn signal, and one shows she did not. Finally, there is one view that shows what the expert believed plaintiff would have seen in her windshield rearview mirror and one showing her driver's side rearview mirror. The district court determined it would rule on the admissibility of the animations at the time of their introduction. At introduction of the exhibit the district court admitted the animations, finding sufficient foundation for their admission. Defendant's expert witness, a professional engineer experienced in accident reconstruction, used the animations to explain and illustrate his testimony as to how he thought the accident occurred.
The second motion in limine by plaintiff sought to exclude the testimony of two neuropsychologists as to whether the plaintiff was malingering in neuropsychology examinations administered to her. Plaintiff initially retained a neuropsychologist to examine her to determine whether she suffered a traumatic brain injury in the accident. The defense also retained a neuropsychologist to examine plaintiff. An examination done by each expert revealed that plaintiff was malingering, that is plaintiff was not putting forth her best effort in the neuropsychology tests apparently in an effort to magnify her symptoms. Further, defendant sought to solicit testimony from the neuropsychologists as to whether a person who malingers in such examinations would malinger as to other subjective physical complaints. The plaintiff argued that allowing this testimony invaded the province of the jury in determining her truthfulness concerning the nature and extent of her injuries. The district court allowed the witnesses to testify, but limited the words they could use in their testimony — words such as "malingering" and "dissimulation" were allowed but "lying" and "faking" were not allowed.
II. ANALYSIS.
The first issue raised by defendant concerns the animations admitted by the district court. "Admission or exclusion of demonstrative evidence rests largely within the trial court's discretion." State v. Sayles, 662 N.W.2d 1, 8 (Iowa 2003) (citing State v. Thornton, 498 N.W.2d 670, 674 (Iowa 1993)). We review for an abuse of discretion. Id.
We must first determine whether computer-animated recreations, such as the one utilized in this case, are admissible evidence in Iowa courts. The great weight of authority indicates that such animations are admissible if they provide a fair and accurate depiction of the evidence. See, e.g., State v. Farner, 66 S.W.3d 188, 209 (Tenn. 2001); Clark v. Cantrell, 529 S.E.2d 528, 536 (S.C. 2000); Sommervold v. Grevlos, 518 N.W.2d 733, 738 (S.D. 1994). A similar issue was addressed by the Iowa Supreme Court in State v. Sayles, where the court held that such animations are admissible where proper factual foundation has been laid by the proponent to authenticate the exhibit as an accurate depiction. Sayles, 662 N.W.2d at 7-11.
To properly establish the foundation the exhibit must be authenticated in accordance with Iowa Rule of Evidence 5.901, which pertinently provides:
a. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
b. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
Id. at 8.
The Iowa Supreme Court has stated that a witness who authenticates demonstrative evidence "need only know about the facts represented or the scene or objects photographed, and once this knowledge is shown he can say whether the [exhibit] correctly and adequately portrays these facts." Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 890 (Iowa 1994) (quoting 2 John W. Strong, McCormick on Evidence § 214, at 13-14 (4th ed. 1992)). An animation, such as the one in the present case, which was used for illustrative purposes by the expert witness, as opposed to a simulation, which is based on scientific or physical principles and data entered into a computer that is programmed to analyze the data and draw conclusions, requires less in the way of foundation for admission. Sayles, 662 N.W.2d at 9 (citing Farner, 66 S.W.3d at 208). The determination of whether an exhibit has been properly authenticated lies in the discretion of the district court, which must also apply the standards of relevance and prejudice in Iowa Rules of Evidence 5.402 and 5.403. Id.
Having determined such animations are admissible where the proper foundation has been laid, we must determine whether the defendant provided sufficient factual foundation for the animations in this case. Plaintiff sets forth three arguments as to why the foundation for the animations was insufficient. First, plaintiff argues the animations inaccurately depict when plaintiff's brake lights were illuminated. Second, plaintiff argues the animations inaccurately depict the point at which defendant initiated his passing maneuver. Finally, plaintiff argues the animations inaccurately depict the point at which defendant engaged his brakes.
The trial court did not abuse its discretion in admitting the animations in this case. The animations were prepared by an experienced expert in the field of accident reconstruction based on numerous factors. The animations incorporated evidence compiled by the Iowa State Patrol, including field measurements, eyewitness statements, tire marks, and photographs; crush damage to the vehicles used to determine speeds, the point of impact, and angles of departure; witness testimony; information obtained by the expert's field visits; and aerial photographs of the scene and topography. Additionally, the animations were displayed for defendant who, after viewing the animations, asserted they were a fair and accurate depiction of the accident.
Though some testimony is contrary to other testimony there is evidence in the record to support each element of the expert witness's depiction of the auto accident in the animations. Defendant's testimony was conflicting regarding when he saw the brake lights of plaintiff's vehicle. In his deposition testimony defendant stated he did not see plaintiff's brake lights illuminated, then in response to questions during cross-examination at trial defendant stated that he saw brake lights but could not say at what distance, then stated that he saw brake lights "at several hundred feet behind" plaintiff, and later stated that he saw plaintiff's brake lights at approximately two hundred feet behind the plaintiff.
In regards to the brake lights, the defense expert testified that he could not be certain at which point the defendant saw brake lights; this statement by the expert is consistent with the inconsistent testimony of defendant as to the brake lights. Furthermore, we do not believe the animations' lack of brake lights at a two hundred foot distance is a material inaccuracy of the animation. The testimony was inconsistent, and we do not find that brake lights were critical to the accident, as they simply would have put defendant on notice that the plaintiff was slowing down, but would not have put defendant on notice that plaintiff was going to make a left turn.
The second inaccuracy alleged by plaintiff is the animation inaccurately depicts the point at which defendant initiated his passing maneuver. The expert testified that in the animation the passing maneuver begins while defendant is three hundred feet behind plaintiff, and plaintiff argues that defendant's testimony indicates the passing maneuver was really initiated when defendant was less than one hundred-seventy feet from plaintiff. Plaintiff argues that defendant indicated, in depositions and accident reports, that he only passed upon realizing he could not stop behind plaintiff's slow-moving vehicle. Thus, plaintiff asserts the passing maneuver must have been initiated when defendant was within one hundred-seventy feet of plaintiff's vehicle because defendant's expert testified one hundred-seventy feet was the stopping distance that defendant needed under the conditions. However, in his testimony at trial defendant was adamant that his previous statements were not intended to indicate he only passed after realizing he could not stop in time. Defendant testified that he passed upon determining plaintiff was moving slowly and there was no oncoming traffic that would have prevented passing. We determine this testimony provided proper foundation for the animations' depiction of the passing maneuver.
Finally, plaintiff argues the animations inaccurately depict the point at which defendant engaged his brakes. Defendant testified he did not engage his brakes until fifteen to eighteen feet before the collision with plaintiff's vehicle. However, the animation shows defendant began to brake at one hundred-forty-four feet before collision. The expert stated he believes the braking began at one hundred-forty-four feet based on accident reconstruction principles, working backwards from the point of collision. We conclude that the expert's testimony as to accident reconstruction principles provides sufficient foundation for the depiction of the defendant's braking, even though the depiction is inconsistent with defendant's testimony. Further, we find this to not be a material part of the animation.
The expert witness sufficiently authenticated the animations by demonstrating that he knew about the facts represented in the animations and upon demonstrating this knowledge he affirmed that the animations correctly and adequately portrayed these facts. See Hutchison, 514 N.W.2d at 890 (Iowa 1994). Proper foundation for admission was laid in this case.
Plaintiff further argues that we should apply a heightened standard for the admission of this evidence. In Hutchison the court noted that:
A somewhat more troublesome problem is presented by posed or artificially reconstructed scenes, in which people, automobiles, and other objects are placed so as to conform to the descriptions of the original crime or collision given by the witness. When the posed photographs go no further than to portray the positions of persons and objects as reflected in the undisputed testimony, their admission has long been generally approved. Frequently, however, a posed photograph will portray only the version of the facts supported by the testimony of the proponent's witness. The dangers inherent in this situation, i.e., the tendency of the photographs unduly to emphasize certain testimony and the possibility that the jury may confuse one party's reconstruction with objective fact, have led some courts to exclude photographs of this type.
Id.
We find that the "troublesome problem" suggested in Hutchison is not present in this case. The question of whether defendant was signaling a left turn was the most relevant disputed fact. One version showed plaintiff using her turn signal to signal the turn. The other showed she did not signal the turn. The other discrepancies perceived by the plaintiff were properly left to be resolved through extensive cross-examination and presentation of contrary evidence. See Williams v. Hedican, 561 N.W.2d 817, 832 (Iowa 1997). "Allowing extensive cross-examination so as to elicit the expert's assumptions and test the expert's data may be a more appropriate method of enabling the jury to perform its function than excluding information that passes the tests of relevancy and prejudice." Id. (citing 3 Jack B. Weinstein Margaret A. Berger, Weinstein's Evidence ¶ 703[03], at 703-42 (1994)). "We have every confidence in a jury's ability to listen to all the evidence and reach a reasoned verdict based on proper instructions from the court." Id. Further, this court has viewed the particular animations admitted by the district court. The animations are short renditions of what the expert believed to be the sequence of the events. They show no more than graphic designs of a highway and two cars moving on it. They are not such that they would cause the jury to confuse the animations with objective fact nor are they such as would cause the jury to give them more weight than the testimony of the respective witnesses. We affirm on this issue.
Plaintiff next contends the district court abused its discretion when it allowed certain expert testimony that she claims allowed the experts to opine as to her truthfulness. She contends the testimony of the neuropsychologists regarding her malingering in neuropsychological tests and the testimony that such malingering could be extrapolated to her other subjective physical complaints, invaded the province of the jury and constituted reversible error.
We generally review evidentiary rulings for abuse of discretion and do so here. Williams, 561 N.W.2d at 822.
An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law. Even if an abuse of discretion is found, reversal is not required unless prejudice is shown.
Sayles, 662 N.W.2d at 8 (internal quotation marks and citations omitted).
Plaintiff claimed to have suffered a brain injury as a result of the accident. When specifically asked by defendant's attorney she said she was claiming damages for a brain injury. Prior to trial she had two separate neuropsychological examinations by two different neuropsychologists, one of her choosing and one designated by the defendant. Both experts determined that plaintiff malingered on the tests and testified generally that one who malingers on neuropsychological tests may also be likely to malinger as to subjective physical complaints.
Malingering was not explicitly defined for the jury but at times malingering was referred to as a lack of effort on the neuropsychology tests, as not trying on the tests, as magnifying symptoms, and as an intentional effort to do worse. The dictionary definition of malingering is (1) "to pretend to be ill or otherwise physically or mentally incapacitated so as to avoid duty or work. . . ." and (2) "to deliberately induce, protract, or exaggerate actual illness or other incapacity so as to avoid duty or work." Webster's Third New International Dictionary 1367 (2002).
Plaintiff does not question the reliability of the test the experts gave her nor does she challenge the qualifications of the experts or the validity of their opinions. She argues that the experts' testimony went to her general truthfulness and invaded the province of the jury, contending it was an improper use of extrinsic evidence to demonstrate character for truthful or untruthfulness under Iowa Rule of Evidence 5.608, which pertinently provides:
a. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:
(1) The evidence may refer only to character for truthfulness or untruthfulness.
b. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crime as provided in rule 5.609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
(Emphasis added).
We agree with plaintiff that the truthfulness of a witness is not "a fact in issue," but a matter to be generally determined solely by the jury and that expert opinions as to the truthfulness of a witness are not admissible. See State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). However, Iowa is "generally committed to a liberal rule which allows opinion testimony if it will aid the jury in screening the properly admitted evidence to ascertain the truth." State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997) (quoting Myers, 382 N.W.2d at 93); see also State v. Hall, 297 N.W.2d 80, 84 (Iowa 1980). The expert testimony about the mental condition of a victim is admissible where the victim's mental capacity is a key element of the crime charge. See State v. Chancy, 391 N.W.2d 231, 234 (Iowa 1986). A key element in this case, if the jury had gotten to the issue of assessing plaintiff's damages, was whether or not plaintiff suffered a brain injury and other injuries to her person. Therefore, the expert testimony was admissible on the issue of plaintiff's personal injury, and the testimony was such that it would aid the jury in screening the properly admitted evidence to ascertain the truth as to the injuries she sustained. Griffin, 564 N.W 2d at 375. This is as opposed to Myers where the testimony in question was not directed at "a fact in issue." Myers, 382 N.W.2d at 97; see also Griffin, 564 N.W.2d at 375. The district court did not abuse its discretion in admitting the evidence in question.
Furthermore, plaintiff was not prejudiced by admission of the testimony. The testimony as to malingering went only to the extent of damages suffered by plaintiff. The jury determined defendant was only 49.5 percent at fault for the auto accident and, thus, defendant was not liable for any damages to plaintiff under Iowa's comparative fault statute. Iowa Code § 668.3 (2003). Therefore, having determined that the neuropsychologist's testimony as to malingering went solely to extent of damages, we conclude the testimony did not prejudice plaintiff in this case. The district court did not commit reversible error by admitting the neuropsychologist's testimony concerning plaintiff's malingering.
AFFIRMED.
Hecht, J., concurs in part and dissents in part.
I concur with that part of the majority opinion which affirms the district court's admission of the accident animation evidence. I respectfully dissent, however, from that part of the opinion affirming the district court's ruling admitting Glasscock's expert's opinion that neuropsychological tests established Strange malingered (feigned) a brain injury; and that those who malinger in one aspect of their lives are more likely to malinger in other aspects of their lives. Although I acknowledge that Iowa courts apply a liberal rule of admissibility when ruling on evidentiary objections to expert opinions, I believe the challenged testimony in this case falls outside the rule.
Our supreme court has concluded that expert opinions as to the truthfulness of witnesses are not admissible pursuant to Iowa Rule of Evidence 5.702. State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986) (reversing district court's evidentiary ruling admitting expert testimony that "it is very rare for a child to lie about [sexual abuse]"). Similarly, we "generally will not admit expert opinion testimony that essentially passes on the guilt or innocence of the defendant" because such opinions "go a step beyond merely aiding the fact finder in understanding the evidence and actually invade the exclusive domain of the jury." Id. at 95. "The ultimate determination of the credibility or truthfulness of a witness is not `a fact in issue,' but a matter to be generally determined solely by the jury." Id. at 97. In my view, the challenged testimony in this case crossed that "fine but essential line" between an opinion which would be truly helpful to the jury and that which merely conveys an inadmissible conclusion that Strange is a faker or liar who should not be believed. Id. at 98.
The district court's limine ruling ineffectually restricted Glasscock's efforts to attack Strange's credibility by characterizing and extrapolating from the neuropsychological test results. Although characterizations such as "faker" and "liar" were prohibited by the district court, the defendant was permitted to elicit testimony describing Strange as a malingerer and a dissimulator. Because these permitted characterizations are synonymous with and functionally indistinguishable from the proscribed scurrilous terms, the district court's limine ruling did not avoid the prejudice which in my view justifies a new trial in this case.
Glasscock argues, and the majority concludes, that the challenged evidence in this case is admissible because the question of whether Strange in fact suffered a brain injury was directly at issue. I conclude the district court abused its discretion when it admitted over Strange's objection expert testimony that went far beyond whether Strange did in fact suffer a brain injury in the accident. The expert was permitted to characterize Strange as a malingerer (faker), and was further allowed to opine that those who malinger in one area of their lives tend to malinger in other areas. Such extrapolation took the witness far beyond the realm of helpful testimony on the issue of whether Strange suffered a brain injury, and prejudiced Strange by commenting directly on the question of whether she was telling the truth. The admission of such evidence was, in my view, an abuse of discretion.
Strange disclosed in her motion in limine filed more than two weeks before trial that she had decided not to attempt to prove a brain injury in this case. It was then apparent that she did not intend to call a neuropsychologist to testify on her behalf. Strange thereafter offered no evidence and made no statement to the jury that she claimed a brain injury until defense counsel raised the subject during cross-examination. When he asked Strange whether she claimed she sustained a brain injury in the accident, she answered in the affirmative. Thus, defense counsel was permitted to "open the door" for the admission of neuropsychological evidence which would arguably not otherwise have been relevant to any issue, and which was calculated solely to attack Strange's credibility.
The experts in this case generally defined "malingerer" as a person who feigns injury. Such evidence is tantamount to expert opinion that Strange is a dishonest person.
I cannot join the majority's conclusion that no reversible error resulted because the jury found no liability on the part of the Glasscock, whereas the challenged testimony went only to damage issues. I am unwilling to assume that the jury was able to neatly compartmentalize such exquisitely prejudicial evidence attacking Strange's credibility and ignore it when considering liability issues. In this case, Strange's evidence as to the crucial physical facts of the crash was very much at odds with Glasscock's version of the incident. In such a "he said, she said" conflict, Strange's credibility on the crucial liability issues was central to the outcome. Because I find the challenged expert testimony was unfairly prejudicial, I would therefore reverse and remand for a new trial.