Johnson v. Montoya

2013 UT App 199
_________________________________________________________

THE UTAH COURT OF APPEALS

TRACIE P. JOHNSON,
Plaintiff and Appellee,
v.
LUZ ADRIONA MONTOYA,
Defendant and Appellant.

Opinion
No. 20120223‐CA
Filed August 8, 2013

Third District, Salt Lake Department
The Honorable John Paul Kennedy
No. 080920603

Scott W. Christensen and Joel D. Taylor, Attorneys
for Appellant
David R. Ward, Steven R. Bangerter,
William E. Frazier, and Daniel P. Wilde, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

ORME, Judge:

¶1 Luz Montoya appeals the trial court’s denial of her motion
for a new trial, arguing that the trial court abused its discretion in
permitting certain expert testimony. We affirm.

BACKGROUND

¶2 In August 2007, Montoya was driving northbound on I‐15
in Salt Lake County. She entered a lane that was already occupied
by a tractor‐trailer being driven by Tracie Johnson. The two
Johnson v. Montoya

collided, and Johnson was injured. Johnson sued for damages, and
the matter went to trial.

¶3 A vocational expert appeared on behalf of Johnson and
testified that the extent of Johnson’s injuries shortened her work
life and decreased her future earning capacity by at least 50%
and by as much as 69%. The vocational expert reached her
conclusions based on her own observations of Johnson, Johnson’s
medical records, accident reports, worker’s compensation records,
questionnaires she developed for the purpose of assessing
functionality, and employment data from sources that included the
American Community Survey and the Current Population Survey.
Montoya challenged the foundation of the vocational expert’s
testimony and was given the opportunity to conduct voir dire of
the expert outside of the jury’s presence. After some questioning,
the court overruled Montoya’s objections, stating, “Well, I think
we’ve taken enough time. . . . [The vocational expert has] also
testified with respect to why she thinks that this particular study,
among others, applies. So I’m going to allow her to continue to
testify.”

¶4 An economic expert also testified for Johnson. He calculated
the earnings and benefits that Johnson would likely have earned
over the course of her career, had the injury not occurred, to be
$962,000 in future earnings and $277,879 in fringe benefits. He then
reduced that number by 50% based on the vocational expert’s
findings that Johnson’s future earning capacity had been reduced
by at least half. Based on that calculation, the economic expert
testified that Johnson’s injuries from the accident caused her a loss
of at least $619,955. Montoya objected to the economic expert’s
testimony, but the objection was overruled.

¶5 The jury found Montoya negligent and awarded Johnson
$475,725.16 in damages. Montoya made a motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial.
Both motions were denied by the trial court. Montoya appeals.

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Johnson v. Montoya

ISSUES AND STANDARDS OF REVIEW

¶6 Montoya argues that the trial court abused its discretion
when it permitted both experts to testify over her objections. A trial
court’s decisions about the admissibility of expert testimony are
reviewed for abuse of discretion. State v. Adams, 2000 UT 4, ¶ 9, 5
P.3d 642.

¶7 Montoya also argues that the court improperly denied her
motion for a new trial. Rule 59 of the Utah Rules of Civil Procedure
gives trial courts “broad discretion to grant or deny a motion for a
new trial.” Crookston v. Fire Ins. Exch., 817 P.2d 789, 804 (Utah 1991).
A trial court’s denial of such a motion will be upheld unless there
“is no reasonable basis for the decision.” Id. at 805.

ANALYSIS

I. Admission of the Expert Witness Testimony

¶8 The admissibility of expert testimony is governed by rule
702 of the Utah Rules of Evidence. Witnesses qualified as experts
may testify “in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). For an expert’s testimony to be
admissible, there must be a “threshold showing” that the principles
or methods forming the basis of the testimony (1) are “reliable,” (2)
are “based upon sufficient facts or data,” and (3) “have been
reliably applied to the facts.” Id. R. 702(b). This “threshold
showing” is met if the principles and methods used and their
application to the facts of the case are “generally accepted by the
relevant expert community.” Id. R. 702(c). Trial courts perform an
“important gatekeeping function” by screening out unreliable
expert testimony and ensuring that “only reliable expert testimony
will be presented to the jury.” Gunn Hill Dairy Props., LLC v. Los
Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 31, 269 P.3d 980.

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To that end, trial courts are granted “broad discretion in that role,”
and we “will reverse [a trial court’s] decision only when it exceeds
the bounds of reasonability.” Id. (citation and internal quotation
marks omitted). See State v. Maestas, 2012 UT 46, ¶ 122, 299 P.3d 892
(“We review a trial court’s decision to admit expert testimony for
an abuse of discretion and find error only if no reasonable person
would take the view the trial court adopted.”).

¶9 Montoya challenges the trial court’s decision to admit the
testimony of both the vocational expert and the economic expert.
She argues that the court’s decision to admit the testimony of the
vocational expert was an abuse of its discretion for two
reasons—first, because the methods employed by the vocational
expert were unreliable, and second, because the methodology was
not reliably applied to the facts of the case. Montoya argues that
because the testimony of the economic expert was based in part on
the testimony of the vocational expert, it too was admitted in
error. We address each of these arguments in turn.

A. Reliability of the Vocational Expert’s Testimony

¶10 Montoya argues that because the vocational expert “never
testified that her methodology was subject to peer review, and
never addressed whether there was any known potential rate of
error,” her methodology “lacked the foundational requirements to
ensure that her opinions had a reasonable degree of certainty.”
Montoya, however, misstates the standard that an expert’s
methodology must meet for admissibility. The Utah Rules of
Evidence do not require expert testimony to exhibit a “reasonable
degree of certainty” to be admissible but only a “threshold
showing” of reliability. Utah R. Evid. 702(b). This threshold
requirement “requires only a basic foundational showing of indicia
of reliability.” Id. R. 702 advisory committee note.

¶11 Montoya specifically calls into question the reliability of the
questionnaires that the vocational expert developed and used to

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assess Johnson’s functional limitations because no testimony was
presented to show that the questionnaires were subjected to peer
review or to demonstrate the questionnaires’ potential rate of error.
Montoya’s argument overlooks the fact that the vocational expert
testified that the information she gathered through the use of her
own questionnaires was consistent with other evidence not
challenged here, such as the medical and worker’s compensation
reports as well as the vocational expert’s own observations of
Johnson. In the context of its evaluation of the vocational expert’s
credentials and experience, we cannot say that the trial court
exceeded “the bounds of reasonability,” see Gunn Hill, 2012 UT
App 20, ¶ 31, by determining that the questionnaires developed by
the vocational expert to assess a client’s functionality and the
responses Johnson provided were supported by a “basic
foundational showing of indicia of reliability,” see Utah R. Evid. 702
advisory committee note, particularly when the results of the
questionnaires are supported by other evidence.

¶12 Montoya also takes issue with the vocational expert’s
reliance on statistics gathered through the American Community
Survey1 and the Current Population Survey.2 While she does not

1. Administered by the United States Census Bureau, the American
Community Survey is an “ongoing survey that provides
data every year” about an expansive range of topics
relating to the make‐up and well‐being of the general
population. See American Community Survey, United States
Census Bureau, http://www.census.gov/acs/www/about_the_sur‐
vey/american_community_survey/ (last visited July 29, 2013).

2. The Current Population Survey “is a monthly survey of
households” administered by the United States Bureau of Labor
Statistics and “provides a comprehensive body of data on the labor
force, employment, unemployment, persons not in the labor force,
hours of work, earnings, and other demographic and labor force
characteristics.” Labor Force Statistics from the Current Population
(continued...)

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appear to challenge the reliability or validity of the two surveys
themselves, Montoya essentially argues that there was an
insufficient showing that the vocational expert’s use of these
surveys in formulating opinions is a reliable and generally accepted
methodology in the field of vocational rehabilitation. We disagree.

¶13 The vocational expert testified that she knows “numerous
individuals in [her] profession that use this data to help persons
understand the impact of functional limitation or disability on their
ability to get a job” and that these surveys are “the source of
employment experiences of persons in the United States. There
isn’t any other—there’s not any other source.” (Emphasis in
transcript.) She also testified that in addition to being the sole
source of the statistics that the federal government routinely relies
on, the surveys are the “primary sources that [vocational experts]
use” in making determinations about “not only employment
experience, but also wages and how long a person stays in the
work force.” We conclude that the trial court did not abuse its
discretion when it admitted the vocational expert’s testimony
because there was a “threshold showing” that her use of the
surveys as part of her methodology was reliable and generally
accepted in her field. While Montoya’s expert witness criticized the
vocational expert’s methodology as being too general and stated
that he was unaware of anyone else in the field of vocational
rehabilitation who uses the surveys as part of their methodology,
rule 702 “is broad enough to permit testimony that is the product
of competing principles or methods in the same field of expertise.”
Utah R. Evid. 702 advisory committee note. Indeed, “[c]ontrary and
inconsistent opinions may simultaneously meet the threshold; it is
for the factfinder to reconcile—or choose between—the different
opinions.” Id. We conclude that the vocational expert’s testimony
that the surveys are used by others in her field satisfies the
required “basic foundational showing of indicia of reliability.” Id.

2. (...continued)
Survey, Bureau of Labor Statistics, http://www.bls.gov/cps/ (last
visited July 29, 2013).

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B. Application to the Facts

¶14 Montoya next argues that the vocational expert “relied upon
non‐existent facts for her foundation when testifying that Johnson
would have a shortened work life and that her lost earning capacity
would be reduced by 50% to 69%.” Montoya’s argument centers on
the fact that the vocational expert assumed and subsequently
testified that Johnson would have answered “yes” to question 18b
of the American Community Survey and question 4 of the Current
Population Survey. The question in both surveys asks, “Does
anyone have serious difficulty walking or climbing stairs?” An
affirmative answer to this question would have placed Johnson
within the American Community Survey’s “ambulatory disability”
category and would change the statistics from both surveys that
would be relevant to Johnson’s situation. Montoya argues that
there is nothing in the record to support the vocational expert’s
contention that Johnson has serious difficulty going up or down
stairs and, therefore, that the statistics the vocational expert
considered were not reliably applied to the facts in this case.

¶15 We conclude that there is sufficient evidence in the record
to support the proposition that Johnson has serious difficulty
walking up and down stairs and would have so answered had
questions 18b and 4 been put to her. Johnson herself testified at
trial that she has “a hard time even just going up stairs by myself”
and has to “calculate my steps and make sure that my foot is set so
that my ankle will not roll out on my left foot.” She also testified
that part of her left leg is “dead numb,” that she cannot play soccer
with her son, and that she is no longer able to go dancing with her
husband. Given Johnson’s testimony, we cannot conclude that “no
reasonable person would take the view the trial court adopted,” see
State v. Maestas, 2012 UT 46, ¶ 122, 299 P.3d 892, when it permitted
the vocational expert’s testimony, based in part on her conclusion
that Johnson had serious difficulty walking up stairs, rather than
striking it for lack of foundation.

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¶16 Montoya also argues that the statistics relied upon by the
vocational expert were too general to be reliably applied to the
facts of this case because the statistics provided by the American
Community Survey and Current Population Survey are calculated
at a national level and include people with a large range of
functional abilities and injuries. Montoya relies on then‐Chief
Justice Durham’s opinion in State v. Barzee, 2007 UT 95, 177 P.3d 48,
for support. In Barzee, the Utah Supreme Court ruled on the
admissibility of expert testimony concerning whether the
defendant could be restored to competency if involuntarily
medicated. Id. ¶¶ 1, 3. Chief Justice Durham stated, “I am
persuaded that the State witnesses lacked adequate foundation for
their opinions in many respects, including a reliance on general
statistics rather than statistics particular to the defendant.” Id. ¶ 51
(opinion by Durham, C.J.). She also stated, “I am not persuaded
that the rates of restoration for the general population at the state
hospital would have any bearing on [the defendant’s] particular
case without any showing that the population resembled [the
defendant].” Id. ¶ 53. Although Chief Justice Durham’s statements
were made in a part of her lead opinion that did not enjoy majority
support, they cannot, on that basis alone, be summarily dismissed.
A majority of justices in Barzee apparently agreed that general
statistics cannot be used in isolation and without regard to
information specific to the relevant individual. See id. ¶¶ 91–93
(opinion by Durrant, J.). The majority did conclude, however, that
because the State’s experts used general statistics in combination
with their own first‐hand knowledge to support their conclusions,
the testimony was admissible. Id. ¶ 92 (“Futhermore, we conclude
that the State’s experts did not disregard [the defendant’s]
particular case, although it is true that they relied on federal and
state statistics taken from general hospital populations.”). We
believe the same analysis applies here.

¶17 While statistics more narrowly tailored to Johnson’s specific
field of work, capabilities, location, injuries, and functional
limitations may have made the vocational expert’s testimony all the
more reliable, we conclude that the trial court did not abuse its

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discretion when it permitted testimony based only in part on
general statistics from the American Community Survey and
Current Population Survey. The vocational expert testified that she
came to her conclusions after relying on her own assessment of
Johnson, Johnson’s medical records, accident reports, worker’s
compensation records, and multiple sources of employment data
and demographic information of which the American Community
Survey and Current Population Survey, while certainly key pieces
of her methodology, were just two. When asked about her reliance
on the surveys, the vocational expert testified:

I also am looking at the individual to see what she’s
doing. We can’t just use broad statistics to say what’s
going to happen, you know? That’s why we do a
vocational assessment; we look at every—every
aspect of an individual and then determine what
impact this particular limitation has on the
individual.

When asked on cross‐examination if the statistics related to the
employability of persons with disabilities, including disabilities as
severely limiting as quadriplegia, were actually relevant to
assessing the employability of a person in Johnson’s situation, the
vocational expert responded:

First of all, I did not lump her in with those kinds of
persons because . . . based on the criteria, she is an
individual with a non‐severe work disability. These
folks that you’re talking about have . . . a severe
disability and would be highly unlikely to even be
working. . . . Secondly, my profession is not a science
like engineering, and there are human factors that we
take into consideration, which I did in this particular
case.

The vocational expert further testified that “[b]ecause the American
Community Survey tracks labor force participation of

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individual[s of] various ages, various educational achievements,”
and because “it shows us that persons that have different
functional limitations have a different experience in the labor
force,” it is a resource for determining what type of future
employment experience Johnson might be likely to have. She
explained, “[T]his is why we look at things in terms of a range. We
can’t just pinpoint and say this is exactly where she is. But it helps
us understand what the changes are in a person’s ability to
participate in the labor force.” We conclude that the vocational
expert did not rely on general statistics in isolation, and thus, that
the trial court did not abuse its discretion in finding that there were
sufficient “indicia of reliability” to make a threshold showing that
the expert’s methodology was reliably applied to the facts. See Utah
R. Evid. 702 advisory committee note.

C. The Economic Expert

¶18 Montoya argues that the economic expert’s testimony was
also admitted in error because it was based in part on the
conclusions of the vocational expert. Because we determine that the
vocational expert’s testimony was admissible and no other
challenge has been made to the economic expert’s testimony, we
conclude that the trial court did not abuse its discretion when it
admitted this testimony as well.

II. Motion for New Trial

¶19 Rule 59 of the Utah Rules of Civil Procedure grants the trial
court discretion to grant or deny a motion for a new trial. Utah
R. Civ. P. 59(a). Montoya argues that the trial court erred
when it denied her motion for a new trial because there was
no evidentiary support for the jury’s verdict. See id. R. 59(a)(6).
Montoya’s argument rests on her claim that the testimony of both
experts should have been excluded. Having determined that the
testimony of both experts was admissible, we conclude that the
trial court had a reasonable basis for denying the motion for a new
trial.

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CONCLUSION

¶20 The trial court did not exceed the bounds of reasonability
when it determined that there was a sufficient threshold
showing that the vocational expert’s testimony was both based
on reliable methodology and reliably applied to the facts. See Utah
R. Evid. 702(b)–(c). Because the vocational expert’s testimony was
admissible, the trial court’s decision to admit the economic expert’s
testimony was also not an abuse of discretion. Having determined
that neither experts’ testimony was improperly admitted, we also
conclude that the trial court had a reasonable basis for denying
Montoya’s motion for a new trial.

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