ICA Examines Cumulative Evidence and Expert Testimony
Udac v. Takata Corp. (ICA August 19, 2009)
Background. Udac was driving a 1981 Nissan Pathfinder on the Big Island. The Pathfinder went off the road at around 55 mph, hit lava rocks, and rolled. Udac and his passenger were ejected. Udac was rendered a paraplegic. Udac sued Takata Corp. and Hawaii Motors alleging negligence, product liability, breach of warranties, negligent/intentional infliction of emotional distress, loss of consortium, and punitive damages. Udac contended that the Pathfinder's driver-side seatbelt designed by Takata failed to restrain Udac.
At trial, Udac called Dr. Renfroe, who testified that he examined the seatbelt in the Pathfinder and opined that Udac was wearing it at the time of the accident. He also opined that the marks showed a defect in the seatbelt. Takata called its own expert, Dr. Banks, who did a separate study on seatbelts in Pathfinders. Udac objected on the grounds that it was cumulative of testimony given by Takata's other expert in seatbelts and was outside the scope of Dr. Bank's expertise. The circuit court sustained the objection. The jury found for Udac and awarded $6.85 million in compensatory damages and $12.5 million in punitive damages. Takata appealed.
Cumulative Evidence Depends on Time. "In order for evidence to be considered 'cumulative' for [Hawai'i Rules of Evidence Rule] 403 purposes, it must be substantially the same as other evidence that has already been received." State v. Pulse, 83 Hawai'i 229, 247, 925 P.2d 797, 815 (1996). For example, when the witnesses have observed much of the same thing, but a few different things, it cannot be considered an abuse of discretion in admitting the testimony over a cumulative objection. State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516 (1992). The ICA also looked to federal jurisdictions for their analysis. Evidence is "cumulative" when "it adds very little to the probative force of the other evidence . . . so that if it were admitted its contribution to the determination of truth would be outweighed by its contribution to the length of trial[.]" United States v. Kizeart, 102 F.3d 320, 325 (7th Cir. 1996). According to the ICA, "when determining whether proffered evidence is cumulative, a trial court must weigh how much time it would take to present such evidence relative to the evidence's probative value."
The ICA concluded that Dr. Banks' testimony was not cumulative under HRE Rule 403. Takata's other expert, a seatbelt expert named Cooper, testified to aspects of the seatbelt that was different from Dr. Banks' proffered testimony. The ICA also concluded that there was no evidence in the record "that the circuit court attempted to ascertain how long it would take Dr. Banks to testify about" his study. The ICA held that the circuit court erred in sustaining on cumulative grounds.
Is Cumulative Evidence Always Going to take too much time at Trial? HRE Rule 403 allows the trial court to exclude evidence "if its probative value is substantially outweighed by the danger of . . . waste of time or needless presentation of cumulative evidence." The standards in Pulse and the example in Klafta do not seem to be concerned with whether it would take more time out of trial to present the evidence. So isn't the danger of wasted time distinct from the danger of cumulative evidence? For example, a document reflecting testimony can easily be considered "substantially the same as other evidence [like testimonial evidence] that has already been received" ala Pulse even though presenting the document would take very little time at trial. Apparently not. The ICA has incorporated from the federal courts the timing element into the HRE Rule 403 danger of cumulative evidence. The ICA noted that the circuit court failed to examine how much time it would take the proffered evidence to be presented. It seems that the danger of a waste of time has become part of the analysis in the danger of needless cumulative evidence.
Scope of Expert Testimony. The ICA examined the scope of Dr. Banks' qualifications to testify about the bruises and marks on Udac. "[A] witness may qualify as an expert if he or she possess a background in any one of the five areas listed under HRE Rule 702: knowledge, skill, experience, training, or education." Nielsen v. Am. Honda Motor Co., 92 Hawai'i 180, 188, 989 P.2d 264, 272 (App. 1999). "Once the basic requisite qualifications are established, the extent of an expert's knowledge of subject matter goes to the weight rather than the admissibility of the testimony." Estate of Klink ex rel. Klink v. State, 113 Hawai'i 332, 352, 152 P.3d 504,524 (2007).
The ICA held that Dr. Banks was qualified to testify about the results of the tests he took even though he was not a seatbelt expert. Any lack of expertise on that matter goes to the weight of his testimony, not his admissibility. Moreover, Dr. Banks should have been allowed to testify about the marks and bruises on Udac's body. Udac had his own expert testify that the marks and bruises were caused by a defect. According to the ICA, Dr. Banks' report rebutted this testimony. And because Dr. Banks was qualified to testify about his report and its result, it was within the scope of his expertise to touch upon these matters as a rebuttal. According to the ICA, the "[u]se of an expert to comment on or rebut other testimony presented at trial is allowable and expected." See Porter v. Hu, 116 Hawai'i 42, 62, 169 P.3d 994, 1016 (App. 2007).
Other Points. The ICA addressed the admissibility of certain reports offered by Udac, jury instructions on product liability theories, and punitive damages. It is interesting to note that the ICA quickly addressed whether evidence was improperly entered on the grounds that it was cumulative under HRE Rule 403. The ICA concluded that the circuit court did not abuse its discretion in admitting the evidence without mentioning the length of time it took at trial.