In numerous prior posts, we have explored how critical expert testimony often is in determining the outcome of a negligence trial. Although experts can play a pivotal role in helping a plaintiff build his case, they do present some limitations. Typically, expert witnesses are required to render an opinion based on the information that they or someone else (e.g., a police officer) gathered after the fact; this can mean that not all useful evidence is available, and may call for some level of educated speculation. Also, practically speaking, it can be expensive for a plaintiff to retain the services of an expert, especially when the value of the claim is not particularly substantial. It follows then that often a plaintiff must rely on non-expert, or “lay,” witnesses at trial. Commonly, lay witnesses are recruited bystanders who happened to observe the incident which gave rise to the plaintiff’s claim. Although lay witnesses are somewhat limited in the types of opinions they can offer in testimony, their input is often extremely valuable for a plaintiff.
In the recent case Mitchell v. Roy, the Louisiana Court of Appeals examined the handling of important lay witness testimony by the trial court. In March of 2008, Darion Mitchell, age 10, was riding his bicycle on 8th Avenue between 9th and 10th Streets in Lake Charles when he veered into the path of a Chevrolet minivan driven by Albert Roy, Jr. Mitchell, who was not wearing a helmet, was thrown onto the hood of the van and struck the windshield. He was transported by ambulance to Christus St. Patrick’s Hospital where he underwent a series of tests that revealed he suffered some minor soft tissue swelling but no brkoen bones. Mitchell was diagnosed with a head injury and scalp lacerations, and he received stitches before being discharged from the hospital later the same day. Within a few months, Mitchell’s mother filed suit against Roy, alleging that Roy had negligently caused the accident by driving in excess of the posted speed limit, by failing to keep a proper lookout, and by failing to take care to avoid the collision. A bench trial was held. One of Mitchell’s key witnesses was Angela Dodd, a neighborhood resident who happened to be sitting on her front porch at the time the accident occurred. Dodd offered testimony about the speed of Roy’s van: she estimated that Roy was driving between 35 and 40 MPH. This estimate was based on Dodd’s prior experience operating her own vehicle “at various speeds” and the fact that Roy’s vehicle “kicked up dust” on the street as it approached Mitchell. The trial resulted in a finding that Roy’s negligence was the sole cause of the collision, a verdict in Mitchell’s favor, and an award of damages. Roy appealed, citing as error, among other things, the trial court’s allowing Dodd to offer a lay opinion as to the speed of Roy’s vehicle.
The Third Circuit addressed this enumeration of error by first reviewing the standard in Louisiana for assessing the admissibility of a lay witness’s opinion testimony. The state Code of Evidence in Article 701 provides that such testimony is limited to opinions which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of her testimony or the determination of a fact in issue. Put another way, a lay witness is permitted to draw reasonable inferences from her personal observations, so long as she also explains what those observations were. As a general rule, when reviewing a trial court’s admission of lay opinion testimony, an appellate court must ask whether the testimony was an improper speculative opinion or simply an inference drawn from the witness’s observations and, if erroneously admitted, whether the testimony was so prejudicial as to constitute error that should be reversed. The court noted that in overruling Roy’s objections to Dodd’s testimony, the trial court stated that it would “take into consideration that [Dodd] is not an expert on speed” and that it would consider her opinion “in the context of just a lay impression.” After reviewing the record of Dodd’s “compelling” testimony about what she observed and how she arrived at her speed estimate, the court determined it was “satisfied that the trial court properly allowed Dodd to testify as to the inferences she drew based upon her personal observations, [and] that the trial court gave the proper weight to Dodd’s opinion testimony.” Furthermore, the court deemed the opinion, even if admitted in error, insufficiently prejudicial to Roy so as to warrant reversal.
The Mitchell case demonstrates Louisiana’s reasonable approach to the admission of lay witness opinions during a trial. It’s almost unavoidable that witnesses will include some type of opinion in the testimony they provide–this is simply the nature of the role of a person called to court to explain what she saw. It is up to the trial judge to weigh the potential harm to the other party when allowing a lay witness to offer an opinion, and to ensure that the opinion is based solidly on facts the witness personally observed. Naturally, an experienced trial attorney is invaluable to a plaintiff in identifying appropriate witnesses whose testimony will meet these requirements and help build the case.
If you have been injured due to someone else’s negligence, call the Berniard Law Firm today toll-free at 1-866-574-8005 and speak with a lawyer who can help.