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Mall v. Horton

Court of Appeals of Oregon

June 6, 2018

Sukhdev MALL, Plaintiff-Appellant
v.
Andrew HORTON, Defendant-Respondent.

          Argued and submitted October 11, 2016

          Washington County Circuit Court C145895CV Eric Butterfeld, Judge.

          Alexander Pletch, Certified Law Student, argued the cause for appellant. On the briefs were Richard Rizk and The Law Office of Richard Rizk.

          Tom C. Spooner argued the cause for respondent. With him on the brief was Spooner & Much, P.C.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge. [*]

         Case Summary:

         Plaintiff appeals from a judgment entered against defendant for noneconomic damages for injuries that plaintiff had suffered as a result of a car accident. Plaintiff assigns error to the trial court's disqualification of his expert witness, Dr. Jonathan McClaren, as an expert in biomechanical engineering and in accident reconstruction, arguing that McClaren qualified as an expert in both fields under OEC 702 "by knowledge, skill, experience, training or education."

         Held:

         The trial court erred in concluding that McClaren was not qualified as an expert witness in biomechanical engineering and accident reconstruction. Plaintiff adduced sufficient evidence to establish McClaren's expertise in the respective fields to qualify him as an expert under OEC 702. Further, the trial court's error was not harmless, because the excluded testimony would have been relevant to plaintiff's theory of the case and it would have been qualitatively different from the other evidence presented.

         Reversed and remanded.

         [292 Or. 320] POWERS, J.

         Plaintiff appeals from a judgment entered against defendant for noneconomic damages for injuries that plaintiff had suffered as a result of a car accident. Defendant admitted liability and that plaintiff had been injured in the accident, but denied the extent of the injuries, and the parties proceeded to trial solely on the issue of noneconomic damages. Plaintiff assigns as error the trial court's disqualification of plaintiff s expert witness, Dr. Jonathan McClaren, as an expert in (1) biomechanical engineering[1] and (2) accident reconstruction. Plaintiff argues that McClaren qualified as an expert in both fields "by knowledge, skill, experience, training or education." OEC 702.[2] We agree with plaintiff that the trial court erred in disqualifying McClaren as an expert in biomechanical engineering and in accident reconstruction, and further conclude that that error was not harmless. Accordingly, we reverse and remand.[3]

         Plaintiff was injured in a car accident in which defendant's pickup truck collided with plaintiff's car. In a negligence lawsuit, plaintiff alleged, among other things, that he suffered personal injuries, including severe neck and back strains, headaches, contusions, and abrasions. For his part, defendant admitted negligence and admitted that plaintiff sustained injuries, but denied the extent of those injuries. Having separately litigated economic damages, the case proceeded to a jury trial solely on the issue of plaintiff's noneconomic damages.

         Before trial began, defendant requested an OEC 104 hearing-specifically, a hearing to determine the preliminary question of McClaren's qualifications to testify as an expert witness-because he questioned McClaren's [292 Or. 321] qualifications as an expert in biomechanical engineering and accident reconstruction. At the hearing, McClaren testified that he had been a licensed chiropractic physician for approximately six years, primarily focusing on treating patients involved in car accidents. He further testified that he held a certification in spinal biomechanical engineering, along with an advanced certification in whiplash biomechanics and injury traumatology. Whiplash biomechanics, McClaren explained, is "the application of the science and physics of mechanics to the biology of the human body" and involves how different "crash vectors" "impart forces into the human body" and how injuries ...


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