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2004-UP-633 - Bryant v. Conner

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Pearl C. Bryant,        Appellant,

v.

William M. Conner,        Respondent.


Appeal From Kershaw County
J. Ernest Kinard, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-633
Submitted October 1, 2004 – Filed December 15, 2004


AFFIRMED


Edward C. Boggs and William Walker, Jr., both of Lexington, for Appellant.

Jonathan M. Robinson and J. Kennedy DuBose, Jr., both of Camden, for Respondent.

PER CURIAM:  Pearl C. Bryant sued William M. Conner following an automobile accident in which Bryant allegedly suffered injuries.  The jury found in favor of Connor.  Bryant appeals arguing the trial judge erred in permitting Conner’s biomechanical expert to testify on medical causation and by failing to disqualify a juror.  We affirm.

FACTS

This accident occurred while Bryant was attempting a left turn into the Lexington Post Office.  The cause of the accident was disputed at trial.  Bryant testified that she had come to a complete stop before turning when Conner hit her “full force” from behind.  Conner testified that he was either stopped or in the process of stopping when Bryant’s car cut over in front of his car.  Conner stated that the front of his car caught the back of Bryant’s car causing a very slight impact. 

Immediately following the accident, Bryant requested an ambulance because she claimed her heart was beating rapidly and she was concerned about her history of heart problems.  Bryant also testified that she had excruciating pain in her neck, shoulder, and back following the accident.  An ambulance transported Bryant to the hospital where her cardiologist, Dr. Saunders, examined her.  Dr. Saunders performed x-rays on Bryant’s back and prescribed medication for muscle spasms.  Bryant’s back pain persisted over the next several months, and Dr. Saunders referred her to an orthopedist.  The orthopedist treated Bryant for approximately a month and a half before obtaining her MRI results indicating she suffered from a sequestered disk.  Upon further examination, an orthopedic surgeon diagnosed Bryant with a slippage of the vertebra and a herniated disk.  After a course of steroid treatments, the orthopedic surgeon performed two surgeries on Bryant’s back to correct the slippage of her vertebra. 

During the course of the trial, over Bryant’s objection, Conner presented a videotaped deposition of Dr. Robert Cargill, a biomechanical engineer.  Dr. Cargill testified that based on his analysis of the forces involved in the accident, no biomechanical mechanism in the collision could have caused Bryant’s back injury. 

Also, during the trial and just after Conner’s testimony, a juror notified the trial judge that although she did not know Conner personally, she realized that Conner’s stepdaughter and her children were good friends.  The trial judge asked the juror whether she could be fair and impartial.  The juror responded, “I feel like I can be fair.”  The judge decided not to set aside the juror.  Before the jury received the case for deliberation, Bryant’s counsel requested the trial judge reconsider his decision not to set aside the juror, stating that “[the juror] was obviously very emotional, very upset, I believe she was crying and very uncomfortable, at least on the appearance, from an appearance standpoint, about her continuing role as a juror in this case and her ability to be impartial.”  The judge recalled the juror and again asked if she felt she could be fair and impartial.  The juror responded, “I feel like I could be fair and impartial, but if somebody feels I can’t be, then ---.”  The trial judge declined to disqualify the juror over the objection of Bryant’s counsel. 

LAW/ANALYSIS

I.                  Admissibility of Biomechanical Expert’s Testimony

On appeal, Bryant does not argue that the trial judge erred in permitting Conner’s expert to testify as an expert in biomechanical engineering. [1]   Rather, Bryant argues that the judge improperly permitted the expert to testify on medical causation, which is outside the scope of his expertise. 

The qualification of a witness as an expert and the admissibility of expert testimony are matters left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion and prejudice to the opposing party.  See Crawford v. Henderson, 356 S.C. 389, 404, 589 S.E.2d 204, 212 (Ct. App. 2003); Nelson v. Taylor, 347 S.C. 210, 214, 553 S.E.2d 488, 490 (Ct. App. 2001).  “An abuse of discretion arises from an error of law or a factual conclusion that is without evidentiary support.”  Lee v. Suess, 318 S.C. 283, 285, 457 S.E.2d 344, 345 (1995) (citation omitted).  “Permitting an expert witness to testify beyond the scope of his or her expertise can constitute reversible error.”  Pirayesh v. Pirayesh,  359 S.C. 284, 298, 596 S.E.2d 505, 513 (Ct. App. 2004).

Conner presented the deposition testimony of Dr. Cargill to the jury as an expert in the field of accident reconstruction and biomechanical engineering.  Bryant objected, arguing Dr. Cargill testified about medical causation within his deposition, which was outside the scope of his expertise. The judge stated that “[h]e will not be qualified to give any opinions medically,” but noted that: “[h]is opinions that they can accept have to be within his field of expertise.  That’s all.  But you can’t keep him from saying other things.  All I can do is give instructions to the jury.”  Bryant consented to the jury instruction stating: “In a perfect world you would keep him from saying that, but it is not a perfect world and I understand that.”  Bryant made no further objection and Dr. Cargill’s videotaped deposition was played for the jury. 

Dr. Cargill testified to the relative changes in velocity of Bryant’s vehicle and the impact this would have had on Bryant’s body, including the load on her back.  This testimony is consistent with the court’s definition of biomechanics.  In addition, Dr. Cargill testified:

Then I compared the forces, again, that I calculated or established for her lower back in this accident and compared those to everyday forces in the low back.  And my conclusion was that there was no biomechanical mechanism in this - - in this collision to produce the sequestered disk pathology that she was diagnosed with in September of ’96.

Dr. Cargill further concluded that this accident was a very minor collision and that the change in velocity of the vehicles at the time of the collision was very small, at most three miles per hour.  Dr. Cargill performed a crash test using a change in velocity of 3.5 miles per hour and determined the weight load exerted on the test dummy’s spine to be eighty-five pounds.  He opined that the load exerted in every day activities such as bending over, lifting a trash can, or running involve heavier spine loads than that exerted in the crash test. 

In charging the jury on expert testimony, the trial judge stated, “to the extent that an expert offers an opinion outside his or her field of expertise, you are not bound to accept it.”  No objection was made to this jury charge.  Generally, a curative instruction, such as the one given in this case, is deemed to have cured any alleged error.  See State v. Kelsey, 331 S.C. 50, 70, 502 S.E.2d 63, 73 (1998) (explaining that instruction to disregard inadmissible evidence will usually cure any error in its admission); State v. George, 323 S.C. 496, 510, 476 S.E.2d 903, 911-12 (1996) (stating that when a trial judge sustains a timely objection to testimony and gives the jury a curative instruction to disregard testimony, any error is deemed to be cured); State v. Patterson,  337 S.C. 215, 226, 522 S.E.2d 845, 850-51 (Ct. App. 1999); see also Jackson v. Speed,  326 S.C. 289, 307, 486 S.E.2d 750, 759 (1997).  Bryant was required to contemporaneously object to the sufficiency of the jury instruction or move for a mistrial to preserve the issue for review.  See State v. McCord, 349 S.C. 477, 486, 562 S.E.2d 689, 694 (Ct. App. 2002).  Therefore, we decline to address this issue on appeal.

II.                           Juror Disqualification

Bryant argues the trial judge improperly failed to excuse a juror who informed the court during the trial that her children were good friends with Conner’s stepdaughter.  We find no error.

“The determination whether a juror is disqualified is within the discretion of the trial judge and will not be reversed on appeal unless wholly unsupported by the evidence.”  State v. Tucker, 320 S.C. 206, 211, 464 S.E.2d 105, 108 (1995).

Section 14-7-1020 of the South Carolina Code (Supp. 2003), explains the duties of a trial judge when a party makes a motion asserting a juror has an interest in the cause of action or has the appearance of bias or prejudice.  This section instructs the trial judge to disqualify the juror if it appears that the juror is not indifferent.  Id.  A juror who is acquainted with a party typically will not be excused when the failure to disclose the relationship is inadvertent and there is an indication that the juror has the ability to be fair and impartial.  See State v. Stone, 350 S.C. 442, 448, 567 S.E.2d 244, 247-48 (2002) (holding removal of a juror acquainted with the defendant’s aunt was in error when the juror was only casually acquainted with the juror’s aunt and the juror indicated to the trial judge her ability to be fair and impartial); Wilson v. Childs, 315 S.C. 431, 437, 434 S.E.2d 286, 290 (Ct. App. 1993) (declining to find an abuse of discretion when the trial judge refused to excuse jurors due to relationships with either a party or the party’s attorney because the jurors voluntarily disclosed the relationships and stated his or her ability to be impartial). 

In the case at bar, the juror voluntarily disclosed her relationship to Conner and stated her ability to be impartial.  The juror notified the trial judge upon her discovery that she knew of Conner and later clarified that she did not know Conner personally but knew his stepdaughter.  Despite the statement from Bryant’s counsel that the juror appeared to be emotional and crying, we could discern no independent indication that this juror was acting in any such manner.  Moreover, on each occasion she was questioned, the juror stated that she felt she could be fair and impartial.  Thus, we find the trial judge did not abuse his discretion in declining to excuse the juror. 

CONCLUSION

We find Bryant’s issue concerning the admission of Conner’s biomechanics expert testimony not to be preserved for appeal.  Additionally, we find the trial judge did not err in declining to excuse a juror based on her relationship with Conner’s stepdaughter.  Accordingly, the decision of the trial court is

AFFIRMED.

HEARN, C.J., HUFF and KITTREDGE, JJ., concur. 


[1] The trial judge did not make any specific finding qualifying Conner’s witness as an expert in biomechanical engineering or accident reconstruction.   However, Bryant conceded that the witness was a biomechanical engineer expert.