Qualified to Testify

    Five adults were heading westbound on Interstate 74, a highway under construction in Decatur County, Ind., in an Aerostar Extended SUV.  Because of repaving work, traffic on the road was being routed onto what would ordinarily be the passing lane; which was about fiver inches higher than the level of the lane adjacent to it.

    The SUV’s passenger side wheels went on to the lower land and the driver reacted by maneuvering the passenger side wheels back onto the passing lane, which caused the vehicle to head in the direction of the median.  In order to keep the vehicle on the road, the driver steered to the right.  The side wheels lifted up and the vehicle went into a sideway roll down the highway, rolling over about five times.

    All five were thrown from the car; three of them were killed and one was permanently injured, including blindness.  The case against the driver was settled, and a trial proceeded against the manufacturer of the vehicle.

    The plaintiffs introduced expert testimony that demonstrated that the Aerostar Extended had an inadequate resistance to rollovers, failing to comply even with Ford’s own guidelines.  This accident, according to the plaintiff’s expert, was due to an on-road, friction rollover with steering maneuvers that were foreseeable to Ford.

    In addition to the defendant’s expert, the trial court allowed two investigating police officers to opine on the cause of the crash even though they did not witness it.  A deputy sheriff and an Indiana state trooper were called to the scene of the crash and measured distances on the pavement of tire marks and occupants of the vehicle.  Neither prepared a reconstruction of the occurrence.

    With no training in mechanical engineering, automotive engineering, vehicle dynamics, or kinematics including rollovers, these officers were allowed to state at trial that the driver’s over-correcting of the steering was the primary cause of the crash.  The plaintiffs took issue with the notion that these non-experts were allowed to testify about the cause of the crash, which really gets into the design, handling, stability, and maneuverability of the vehicle.

    The jury found for the defendants, and on appeal, the court affirmed.  Favia v.  Ford Motor Company, No. 1-06-2127 (1st Dist., decided March 31, 2008).  At t his writing, a petition for leave to appeal was filed before the Illinois Supreme Court and is pending on the issue, inter alia, of whether two officers who happened to be called to the scene of an accident are allowed to render an opinion on the proximate cause of a serious accident.


    It is well-established that, in vehicular accident cases, testimony is inadmissible if ‘“the trooper’s opinion was not based upon any special knowledge and application of principles of physics, engineering or other sciences beyond the ken of the average juror.’” Collier v. Avis Rent A Car System, Inc., 248 Ill.App.3d 1088, 618 N.E.2d 771 (1st Dist.1993), quoting Dauksch v. Chamness, 11 Ill.App.3d 346, 296 N.E.2d 592 (5th Dist.1973).  In Dauksch, a state trooper with 16 years’ experience in investigating accidents testified that he arrived on the scene after the accident but was not an accident reconstructionist, was not qualified as an expert, and had not based his opinion on any scientific knowledge or training.

    If the witness lacks the special skills or training that would assist the jury in resolving the dispute, the witness’ testimony amounts to mere speculation that invades the province of the jury.  Geisberger v. Quincy, 3 Ill.App.3d 437, 442, 43, 278 N.E.2d 404 (2d Dist.1972).

    The Illinois Supreme Court considered an analogous case in 1994 that involved a collision of two vehicles.  In Thurmond v. Monroe, 159 Ill.2d 240, 636 N.E.2d 544(1994), a factual issue arose as to whether the defendant’s tractor-trailer had crossed the center line of the road into the lane of oncoming traffic in which the plaintiff was driving.

    The trial court barred the investigating officer from testifying to an opinion about the point of impact on the ground that the officer was unqualified to render such an opinion.  The Supreme Court said that the officer’s “investigation training was strictly limited to taking measurements and collecting material at the scene of the collision.”  Id., at 249.

    “Rollover crashes are complex events that reflect the interaction of driver, road, vehicle, and environmental factors,” as the plaintiff quotes from the National Highway Transportation Safety Administration’s own rules and regulations in his petition for leave to appeal (Federal Register, Vol. 68, No. 198, Oct. 14, 2003, Department of Transportation, NHTSA, 49 CFR Part 575).  A determination of the cause of a rollover involves an equally complex analysis requiring expertise in vehicle design, vehicle dynamics, mechanical engineering and sophisticated accident reconstruction.

    Although police officers may have experience in collecting evidence, it does not necessarily make them qualified to testify as to opinions about the factors that can cause a rollover when they lack the requisite technical training and background.

    Perhaps the Illinois Supreme Court will accept the petition in order to reconcile the Favia case with Illinois precedent to set the record straight to the use of police testimony regarding proximate cause of a vehicular product liability case.