Bundy v. Jett

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Heather Anne Bundy, Appellant,

v.

Thomas Elroy Jett and Haier America Research &
Development Co., LTD, Respondents,

And

W.H. Bundy, Jr., Appellant,

v.

Thomas Elroy Jett and Haier America Research &
Development Co., LTD, Respondents.

Appellate Case No. 2018-001798

Appeal From Kershaw County
DeAndrea G. Benjamin, Circuit Court Judge

Unpublished Opinion No. 2021-UP-350
Submitted April 1, 2021 – Filed October 6, 2021

AFFIRMED

Michael Brent McDonald, of Bundy McDonald, LLC, of
Summerville, for Appellant.
John Martin Grantland and Rogers Edward Harrell, III,
both of Murphy & Grantland, PA, of Columbia, for
Respondents.

PER CURIAM: In 2015, Heather Bundy sued Thomas Jett and his employer,
Haier America Research and Development Co., Ltd. (collectively, Respondents),
for negligence arising out of a motor vehicle accident that occurred in Camden. In
addition, Bundy's husband filed a loss of consortium claim against Respondents. A
Kershaw County jury found in favor of Respondents on all causes of action. This
appeal followed. Bundy and Husband (collectively, Appellants) argue the trial
court erred in admitting Respondents' Exhibit 13, allowing Jett to testify about
events of which he had no first-hand knowledge, admitting Brian Boggess's
testimony, refusing to allow Appellants to publish a discovery request, and denying
Appellants' motion for a directed verdict and post-trial motions as to the issues of
liability and damages. We affirm.1

FACTS

Bundy testified that on the morning of September 3, 2013, she was driving to a
doctor's appointment. She was waiting in a median for about three to five minutes
to make a left turn when she was hit by an eighteen-wheeler truck driven by Jett.
Bundy claimed the truck "hit my right-hand side trying to get around me and struck
me and was dragging me with him." Bundy claimed the accident caused neck and
back problems that necessitated two surgeries. Appellants presented medical
testimony and expert accident reconstruction testimony to the jury.

Jett testified there were no cars in the median when he pulled into it. He explained
that a "truck and a car is not going to be able to be [there] . . . at the same time.
No, it would be poor judgment of a person even with a car coming up there behind
another car." Jett stated that when he took his foot off the clutch to go forward
from the median when traffic cleared, his truck did not move forward and he
"couldn't go nowhere because I felt just a bump." He said, "I didn't drag her like it
was said. . . . I got the friction part of the clutch up and that's when I felt the
sensation of the car and that's when I stopped and got out." Jett testified that when

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
he got out of his truck to see what caused the bump, Bundy was standing by her
car. Respondents presented expert accident reconstruction testimony to the jury.
The jury found in favor of Respondents. This appeal followed.

ISSUES

1. Did the trial court err in admitting Respondents' Exhibit 13 and allowing Jett
to testify about it?
2. Did the trial court err in allowing Respondents' expert to testify?
3. Did the trial court err in refusing to allow Appellants to publish their request
for production of the Sterling Truck?
4. Did the trial court err in denying Appellants' directed verdict and post-trial
motions as to liability and as to damages?

STANDARD OF REVIEW

"The admission of evidence is a matter left to the discretion of the trial judge and,
absent clear abuse, will not be disturbed on appeal." Stevens v. Allen, 336 S.C.
439, 447-48, 520 S.E.2d 625, 629 (Ct. App. 1999). "For this Court to reverse a
case based on the admission of evidence, both error and prejudice must be shown."
Id. at 448, 520 S.E.2d at 629. Here, prejudice means "there is a reasonable
probability the jury's verdict was influenced by the wrongly admitted or excluded
evidence." Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 480, 623 S.E.2d
373, 375 (2005).

"The admission or exclusion of expert testimony is a matter within the sound
discretion of the trial court, whose decision will not be disturbed on appeal absent
an abuse of discretion." Means v. Gates, 348 S.C. 161, 166, 558 S.E.2d 921, 923
(Ct. App. 2001).

"When reviewing a motion for directed verdict or JNOV, an appellate court must
employ the same standard as the trial court." Byrd ex rel. Julia B. v. McLeod
Physician Assocs. II, 427 S.C. 407, 412, 831 S.E.2d 152, 154 (Ct. App. 2019)
(quoting Wright v. Craft, 372 S.C. 1, 18, 640 S.E.2d 486, 495 (Ct. App. 2006)).
"Motions for directed verdict or JNOV should be denied if the evidence yields
more than one reasonable inference or its inference is in doubt." Id. (quoting
Allegro, Inc. v. Scully, 418 S.C. 24, 32, 791 S.E.2d 140, 144 (2016)). "An appellate
court will reverse the trial court's ruling only if no evidence supports the ruling
below." Id. (quoting Allegro, Inc., 418 S.C. at 32, 791 S.E.2d at 144).
LAW/ANALYSIS

1. Over Appellants' objection, Respondents introduced a diagram of the accident
(Exhibit 13) drawn by Jett for his employee personnel file. On the diagram, Jett
wrote "car pull in on my left side trying to beat me making a left turn." The trial
court allowed the introduction of Exhibit 13 under the business records exception
of Rule 803(6), SCRE. The trial court allowed Jett to testify about Exhibit 13
under Rule 701, SCRE.

Appellants argue the trial court erred in admitting Exhibit 13 and in allowing Jett's
testimony regarding the document.2 Appellants argue Rule 602, SCRE, prohibited
Jett's testimony regarding Exhibit 13 because Jett did not have firsthand knowledge
of Bundy's movements prior to the accident.

Regarding lay witness testimony, the South Carolina Rules of Evidence state:

If the witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited
to those opinions or inferences which (a) are rationally
based on the perception of the witness, (b) are helpful to
a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) do not require
special knowledge, skill, experience or training.

Rule 701, SCRE. Appellants argue that Rule 701 is subject to Rule 602. Rule 602,
SCRE, states a "witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not, consist of the
witness' own testimony. . . ."

2
Appellants also claim Exhibit 13 was improperly admitted as a business record
because a "person with knowledge" did not create it as required by Rule 803(6),
SCRE, and because it contains "subjective opinions and judgments" as prohibited
by the rule. However, Appellants did not argue this particular ground in its motion
in limine, at any point during the trial, or in its post-trial motion. "It is axiomatic
that an issue cannot be raised for the first time on appeal, but must have been
raised to and ruled upon by the trial judge to be preserved for appellate review."
Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998).
Here, before the admission of Exhibit 13, Jett testified there were no cars in the
median when he pulled into the median to make a left turn. Jett stated that because
there were no cars in the median when he pulled into it, he was not expecting a car
to be on his left when he was making the left turn. As Jett prepared to turn, he felt
a bump and his tractor-trailer would not move forward. He got out of the tractor-
trailer and saw Bundy standing outside of her car. After the trial court admitted
Exhibit 13, Jett explained he "wrote exactly what happened . . . and it's showing
where I was in the median like the picture is showing. And I was getting ready to
make a left turn and the car pulled over on the side of me."

We find the trial court did not err in admitting Exhibit 13 or allowing Jett's
testimony regarding Exhibit 13. As the trial court noted, Jett's testimony was
admissible under Rule 701 because the inference that Bundy's car came into the
median after Jett was rationally based on Jett's perception of the events, it was
helpful to the jury, and it did not require special knowledge. Jett's perception of
events was that Bundy was not in the median when he pulled into it, but she was in
the median when he got out of his tractor-trailer after feeling a bump. See Small v.
Pioneer Mach., Inc., 329 S.C. 448, 468-69, 494 S.E.2d 835, 845 (Ct. App. 1997)
(finding no abuse of trial court's discretion in admitting lay opinion testimony
when the witness based his opinions on his observations and perceptions as the
operator of the machinery). Rule 602 does not prohibit the testimony because Jett
had clear personal knowledge of the event. It was an accident that he was involved
in.

Further, while we find the testimony was properly admitted, even if the trial court
erred in admitting the testimony, Appellants have shown no prejudice. Jett's
testimony regarding Exhibit 13 was cumulative to and duplicative of his prior
testimony (elicited by Appellants) in every aspect. See McGee v. Bruce Hosp.
Sys., 321 S.C. 340, 345, 468 S.E.2d 633, 636 (1996) (finding even if it was error to
allow certain witnesses to testify about the ideal placement of a catheter, such error
was harmless because it was merely cumulative to other testimony).

2. Respondents proffered the testimony of Brian Boggess, and the trial court
qualified him as an expert in the area of biomechanics and accident reconstruction.
Appellants assign error to the trial court's admission of Boggess's expert testimony,
arguing the opinions contained in his testimony were based upon weighing the
credibility of the witnesses. Appellants claim the testimony was prejudicial
because it was the "only other piece of evidence (other than [Exhibit 13] . . .
offered [by Respondents]) to show the pre-crash actions of [Bundy]." Appellants
also argue Boggess improperly gave testimony regarding a hypothetical person,
which was irrelevant, misleading, and an error of law.

[A] witness qualified as an expert may testify when
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue. However, even if an expert's
testimony is admissible under the rules, the trial court
may exclude the testimony if its probative value is
outweighed by the danger of, among other things, unfair
prejudice, confusion of the issues, or misleading the jury.

Wilson v. Rivers, 357 S.C. 447, 452, 593 S.E.2d 603, 605 (2004).

We find the trial court did not err in admitting Boggess's testimony. Its probative
value was not outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. At trial, Boggess did not improperly comment on
Bundy's credibility in front of the jury. Boggess's conclusion ̶ that Jett was in the
median first ̶ was directly contrary to Bundy's testimony, but that does not make
Boggess's testimony inadmissible. As the trial court noted, Boggess was a well-
qualified expert and he based his opinion on multiple factors. His specialized
knowledge assisted the jury to determine the dispositive issue at trial. See id.
(noting expert "was better qualified than the jury to evaluate the force of a moving
vehicle on the human body"); Small, 329 S.C. at 470, 494 S.E.2d at 846 ("Where
the expert's testimony is based upon facts sufficient to form the basis for an
opinion, the trier of fact determines its probative value.").

We also find that Boggess did not improperly give testimony regarding a
hypothetical person.

An expert's opinion testimony may be based upon a
hypothetical question. Even though the hypothetical
question must be based on facts supported by the
evidence, counsel may pose the hypothetical "on any
theory which can reasonably be deduced from the
evidence and select as a predicate for it such facts as the
evidence proves or reasonably tends to prove."

Gazes v. Dillard's Dep't Store, Inc., 341 S.C. 507, 514-15, 534 S.E.2d 306, 310
(Ct. App. 2000) (citation omitted) (quoting Gathers ex rel. Hutchinson v. S.C. Elec.
& Gas Co., 311 S.C. 81, 83, 427 S.E.2d 687, 688 (Ct. App. 1993)). Here, Boggess
used a person with the same physical characteristics as Bundy to estimate the
amount of force that would have been exerted on a person in the driver's seat of the
car involved in the accident as a result of the impact. Boggess based the
hypothetical person on facts supported by the evidence, and it was not an abuse of
the trial court's discretion to allow the testimony.

3. Appellants urge this court to find the trial court erred in not allowing
publication to the jury of the request for production of the truck involved in the
accident (the Sterling Truck). We find no error. During redirect examination,
Appellants asked their expert whether he knew if Respondents had been asked to
produce the Sterling Truck. The expert affirmed that Respondents failed to
produce it. This was effectually the same point Appellants wished to make by
publishing the request for production to the jury. Appellants have shown no
prejudice. Further, we agree with the trial court's reluctance to air a discovery
dispute in front of the jury. See N. H. Ball Bearings, Inc. v. Jackson, 969 A.2d
351, 361 (N.H. 2009) ("[D]iscovery is generally within the province and discretion
of the trial judge, not the jury."); Hudak v. Fox, 521 A.2d 889, 891 (N.J. Super. Ct.
App. Div. 1987) ("[T]he discovery issue before us is interlocutory in nature and
entirely outside the province of a jury.").

4. Appellants argue the trial court erred in failing to grant their directed verdict
motions and post-trial motions as to liability and damages. As to liability,
Appellants ask for a new trial in light of the evidence they claim was improperly
admitted. Because we find no abuse of discretion by the trial judge in allowing the
testimony of Boggess and Jett, and in admitting Exhibit 13, we find the trial court
did not err in denying these motions. Even without the disputed testimony, there
was testimony from Jett regarding the events of the accident that yielded more than
one reasonable inference. Thus, the evidence supported the trial court's ruling.

"To establish a cause of action for negligence, a plaintiff must prove the following
three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that
duty by a negligent act or omission; and (3) damages proximately resulting from
the breach of duty." Bailey v. Segars, 346 S.C. 359, 366, 550 S.E.2d 910, 913 (Ct.
App. 2001). "Ordinarily, the question of proximate cause is one of fact for the
jury." Id. at 367, 550 S.E.2d at 914. "If there is a fair difference of opinion
regarding whose act proximately caused the injury, then the question of proximate
cause must be submitted to the jury." Id.
Appellants presented testimony from Sarah Lustig, a registered nurse, who
prepared a life care plan estimating that Bundy's future medical costs would be
$1,358,805. Appellants argue there was no question of fact on the issue of the
reasonableness of the amount of the life care plan and medical bills.

As to Appellants' directed verdict motion and post-trial motions on the issue of
damages for Bundy's medical bills and life care plan, evidence supported the trial
court's ruling. Respondents elicited testimony from Bundy and her husband
regarding previous accidents that could have caused back and neck injury. Bundy
admitted to previous treatment for neck and back pain. Bundy's surgeon testified
that Bundy's back injury must have been present before the accident with Jett. The
jury could have found the accident with Jett did not contribute to Bundy's injuries
and did not cause the need for neck and back surgeries or future care. The trial
court did not err in denying Appellants' directed verdict and post-trial motions.

CONCLUSION

Accordingly, we affirm the trial court's order denying Appellants' motion for
JNOV, motion for a new trial, and motion to alter or amend the judgment.

AFFIRMED.

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.