Summary

On April 30, 2008, Cynthia David was riding her motorcycle when she was struck by an SUV driven by James J. Kellner and owned by Patricia R. Bergerson. The Davids filed a negligence action against Kellner and Bergerson, and the trial jury returned a verdict in their favor. Kellner and Bergerson appealed the decision, raising three main issues: the exclusion of Kellner’s testimony regarding measurements at the accident scene, the award for loss of future earning capacity, and the admission of testimony about Kellner’s prescription drug use.

First, the exclusion of Kellner’s testimony was a focal point of the appeal. The trial court had excluded Kellner’s measurements of the accident scene because they were taken after the discovery deadline and were not disclosed in a timely manner. The appellate court upheld this exclusion, applying the Binger v. King Pest Control analysis. The Binger framework considers whether the late disclosure of testimony results in prejudice to the opposing party. 

In this case, the court found that allowing Kellner’s measurements would have prejudiced the Davids, as the measurements were taken just days before the trial without prior notice, and the Davids’ expert had already been excused from the trial. Although lay witnesses can testify about distance and speed, Kellner’s failure to disclose the measurements in a timely fashion was a critical factor in affirming the trial court’s decision to exclude his testimony.

Second, the appellants contested the $420,000 award for Cynthia David’s loss of future earning capacity. The appellate court found that the evidence supported an award of only $390,000, correcting calculation errors introduced during the trial. They remanded the case to the trial court to adjust the judgment accordingly.

Lastly, regarding the admission of testimony about Kellner’s prescription drug use, the appellate court affirmed the trial court’s decision without further elaboration, indicating that they found no merit in the appellants’ arguments on this issue.

The appellate court affirmed the trial court’s decision to exclude Kellner’s accident scene measurements, partially reversed the award for loss of future earning capacity, reducing it to $390,000, and upheld the admission of testimony about Kellner’s prescription drug use.