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Unpublished Opinion No. 2004-UP-633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.