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MOORE v. BLACKWELL2014 OK CIV APP 37325 P.3d 4Case Number: 109685Decided: 12/31/2013Mandate Issued: 04/29/2014DIVISION IITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IICite as: 2014 OK CIV APP 37, 325 P.3d 4
TERRY MOORE, individually and as next friend of JERRIT MOORE, a 
minor, Plaintiff/Appellant,v.ROBERT BLACKWELL and FARMERS INSURANCE 
COMPANY, INC., Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA
HONORABLE STEPHEN W. BONNER, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER 
PROCEEDINGS

David L. Smith, DAVID L. SMITH, ATTORNEY AT LAW, Oklahoma City, Oklahoma, for 
Plaintiff/AppellantPhillip P. Owens, II, CHRIS HARPER, INC., Edmond, 
Oklahoma, for Defendant/Appellee Robert BlackwellPaul B. Middleton, DOBBS 
& MIDDLETON, Oklahoma City, Oklahoma, for Defendant/Appellee Farmers 
Insurance Company, Inc.


JANE P. WISEMAN, JUDGE:
¶1 Plaintiff Terry Moore, individually and as next friend of Jerrit Moore, a 
minor, appeals a judgment entered in Defendants' favor resulting from a jury 
verdict rendered on April 11, 2011, in favor of Defendant Robert Blackwell. 
Having reviewed the record and pertinent law, we reverse and remand for further 
proceedings.
FACTS
¶2 According to Plaintiff's appellate brief, on September 1, 2007, Jerrit 
Moore, then a 12 year-old boy, was walking with a friend along an I-35 service 
road in Norman, Oklahoma. The boys were initially walking on the road against 
traffic, but because of an approaching hill, they decided it would be safer to 
cross "the center line to walk with the traffic, with the intent of returning to 
the other side of the road once they negotiated the hill." Because it was dark, 
only the moonlight and vehicle headlights illuminated the area in which they 
were walking. While driving on the service road, Robert Blackwell came upon the 
boys before he saw them, slammed on the brakes, and swerved to the left. 
Blackwell struck Jerrit Moore injuring him.
PROCEDURAL BACKGROUND
¶3 Plaintiff, Jerrit Moore's father, filed this negligence action against 
Defendants claiming: "The cause of the crash was the negligence of Robert 
Blackwell. As a direct and proximate cause of Robert Blackwell's [negligence], 
the plaintiffs have and will incur medical treatment and bills, suffered 
personal injury and been damaged in an amount in excess of Ten Thousand Dollars 
($10,000)." Plaintiff also asserted that at the time of the accident, "Defendant 
Farmers had a policy of uninsured/underinsured motorist coverage in force and 
effect in favor of the Plaintiffs for injuries received and caused by the 
negligence of an uninsured or underinsured motorist."
¶4 Blackwell filed an answer denying any negligence on his part and 
stating:


This Defendant admits that on September 1, 2007, he was traveling on 
    Interstate 35 service road in a legal and lawful manner when without notice 
    or knowledge, two young men/minors were walking down the middle of the lane 
    of traffic occupied by this Defendant, of course they were not wearing any 
    type of reflective clothing, had no lights, had no warning, for which said 
    minors, the Plaintiff Jerrit Moore, was negligent in common law negligence 
    per se which was the proximate cause and sole cause of this 
  accident.
¶5 Farmers Insurance Company, Inc., answered denying the allegations against 
Blackwell, alleging Jerrit Moore was negligent, and confirming the existence of 
the uninsured/underinsured policy described above. Farmers later moved to 
bifurcate the claims asserted against it and asked the trial court to exclude at 
trial any mention of Farmers or the existence of insurance. Farmers agreed not 
to participate in the trial and to be bound by the jury's verdict.
¶6 During trial, Plaintiff called fact witnesses Defendant Blackwell, Terry 
Moore, Jerrit Moore, and Phillip Cornelius, the friend walking with Jerrit Moore 
at the time of the accident. Defendant Blackwell then called Michael Thomson, 
the investigating officer, and Terry Harrison, an accident reconstructionist. 
Plaintiff objected to Blackwell's witnesses testifying as to fault or 
causation.
¶7 At the conclusion of trial, the jury found in favor of Defendant 
Blackwell. As a result, the jury's verdict in favor of Blackwell extinguished 
Plaintiff's claims against Farmers. The trial court entered judgment for both 
Defendants based on the jury's verdict and granted Blackwell "reimbursement of 
costs in the amount of $1,345.22 plus statutory interest and costs."
¶8 Plaintiff brings this appeal from the judgment in Defendants' favor 
entered as a result of the jury verdict.
STANDARD OF REVIEW
¶9 "Rulings concerning the admission of evidence are measured against the 
abuse of discretion standard." Holm-Waddle v. William D. Hawley, M.D., 
Inc., 1998 OK 
53, ¶ 5, 967 
P.2d 1180, 1182. We review a trial court's ruling on the admissibility of 
expert opinions on an abuse of discretion standard. Belle Isle v. Brady, 
2012 OK CIV APP 
99, ¶ 24, 288 
P.3d 259, 266 (citing Christian v. Gray, 2003 OK 10, ¶ 42, 65 P.3d 591, 608). 
"An abuse of discretion occurs when a decision is based on an erroneous 
conclusion of law or where there is no rational basis in evidence for the 
ruling." Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895 
(emphasis omitted).
¶10 "The test of reversible error in instructions is whether the jury was 
misled to the extent of rendering a different verdict than it would have 
rendered, if the alleged errors had not occurred." Johnson v. Ford Motor 
Co., 2002 OK 
24, ¶ 16, 45 
P.3d 86, 92-93.
ANALYSIS
I. Expert Testimony
¶11 Plaintiff argues the trial court abused its discretion in allowing, over 
repeated objections, Defendant's expert witnesses, Michael Thomson, the 
investigating officer on the day of the accident, and Terry Harrison, 
Defendant's accident reconstruction expert, to testify on issues that should 
have been reserved for the jury.
¶12 Plaintiff initially filed a motion in limine on March 29, 2010, and then 
an amended motion in limine on January 13, 2011, seeking to exclude such 
testimony. The trial court overruled these motions on January 18, 2011. When the 
case was subsequently reassigned to another judge, Plaintiff re-urged his motion 
to the new judge who overruled the renewed motion on April 8, 2011. At the 
beginning of trial on April 11, 2011, Plaintiff requested and was granted a 
continuing objection to Harrison's testimony "to every question that is asked 
and answered by that expert that is nonscientific." On the second day of trial, 
Plaintiff reurged his objection to Harrison's testimony before he testified. The 
trial court granted Plaintiff a "standing objection" to the "limited questions" 
of "causation and negligence."
¶13 Plaintiff on appeal asserts no expert testimony is necessary in this case 
on these issues as it is a "simple automobile-pedestrian accident." Plaintiff 
contends:


No scientific evidence is required for the jury to make a determination 
    of whether or not these individuals, [Blackwell] was negligent in operation 
    of his vehicle, or whether [Jerrit Moore] acted prudently, based upon his 
    age and experience, or whether he acted in negligent fashion. Expert 
    testimony was not needed, and did not assist the trier of 
  fact.
He primarily relies on the Oklahoma Supreme Court case of Gabus v. 
Harvey, 1984 OK 
4, 678 P.2d 
253, to support his argument that expert witnesses may not offer opinion 
testimony on the issues of negligence and the cause of a collision and the 
allowance of such opinion testimony is reversible error.
¶14 In Gabus, a negligence case also arising out of an 
automobile-pedestrian accident, a party sought to introduce an investigating 
police officer's opinion as to what caused the accident. The trial court allowed 
its introduction, and the officer testified that the pedestrian/plaintiff failed 
to yield the right of way to the defendant's moving vehicle. Id. at ¶ 5, 
678 P.2d at 254. The plaintiff's "counsel moved 
for a mistrial, asserting that the officer's opinion invaded the province of the 
jury because it determined the ultimate issue of fault." Id. at ¶ 6, 
678 P.2d at 254. The trial court denied the 
motion and the trial continued. Id. The jury found the plaintiff to be 75 
percent negligent and the defendant, 25 percent negligent. Id.
¶15 The Oklahoma Supreme Court reversed the judgment resulting from the jury 
verdict and remanded for a new trial. Id. at ¶ 30, 678 P.2d at 257. The Court based its holding on 
provisions of the Oklahoma Evidence Code, including 12 O.S.1981 § 2704 which stated: 
"Testimony in the form of an opinion or inference otherwise admissible is not 
objectionable because it embraces an ultimate issue to be decided by the trier 
of fact." Id. at ¶ 10, 678 P.2d at 255. 
The Court reviewed § 2704 in conjunction with § 2702, which provided that a 
qualified expert witness may testify in the form of an opinion "[i]f scientific, 
technical or other specialized knowledge will assist the trier of fact to 
understand the evidence or to determine a fact in issue."1 Id. at ¶ 13, 678 P.2d at 255. Pursuant to § 2702, "The test . . . is 
usefulness. Will the expert testimony assist the trier of fact? If not helpful, 
then expert conclusions or opinions are inadmissible." Id. at ¶ 16, 678 P.2d at 255.
¶16 In reviewing the admitted evidence under these statutory provisions, the 
Gabus Court ultimately held the expert's opinion on the cause of the 
collision did not assist the jury to understand the evidence because the opinion 
"concerned facts that could be readily appreciated by any person who drives an 
automobile or crosses streets" and "[n]o special skill or knowledge was needed 
to understand these facts and draw a conclusion from them." Id. at ¶ 18, 
678 P.2d at 256. The Court further held that 
"where the normal experiences and qualifications of lay[] jurors permit them to 
draw proper conclusions from the facts and circumstances, expert conclusions or 
opinions are inadmissible. The expert conclusion here was not helpful and should 
not have been admitted." Id.
¶17 The Supreme Court also concluded the testimony was plainly prejudicial 
because it "put the stamp of expertise upon an issue that the jury was fully 
competent to decide." Id. at ¶ 25, 678 P.2d at 
257. The Court held that it was prejudicial error to admit the expert 
testimony on the issue of fault: "We find it highly probable that in this case 
the jury was unduly influenced by the opinion of one whose opinion was not 
needed by them to reach an intelligent conclusion as to the cause of the 
accident." Id. at ¶ 28, 678 P.2d at 
257.
¶18 Faced with evidentiary circumstances almost identical to Gabus, we 
reach the same conclusion. Officer Michael Thomson testified on direct 
examination by Defendant's counsel that as an investigating officer, he tries to 
determine "what happened at the accident." He further testified that although he 
tries "to determine who's most at cause in the accident," he does not "try to 
determine fault."2 During later direct examination, defense counsel 
asked the trial court to allow Thomson to testify as to whether he thought 
Defendant was at fault. Plaintiff's counsel objected again citing Gabus. 
The trial court overruled the objection allowing defense counsel to inquire 
about fault.3 
Thomson testified as follows:
Q. Officer Thomson, after you completed your investigation using your 
background and experience, did you find any type of, as you call it "fault," on 
[Defendant]?A. Well, again, as I say, I have always been trained not to 
determine fault. As far as [Defendant] goes, I determined that there was nothing 
for me to be able to site [sic] him for. 4
When questioned further on cross-examination as to fault,5 Thomson testified as 
follows:
Q. So is it your testimony that [Defendant] is fault-free?A. I'm not 
saying fault on anybody. I'm just assessing who might have been most at cause in 
the accident--Q. Okay.A. -and due to the fact that [Jerrit Moore], from 
my information, went to the center of the roadway instead of to the edge of the 
roadway, I would lend more credence at him being more at fault in the accident 
or more responsible--Q. [Jerrit] Moore?A. Yes, sir. In this accident.6
In his closing argument to the jury, Defendant's counsel summarized this 
testimony by stating, "In fact, everything you heard from this case is that 
[Defendant] was innocent of negligence from the police officer who has nothing 
to gain or lose. . . . He testified [Defendant] did nothing wrong."
¶19 On defense counsel's direct examination, Terry Harrison, Defendant's 
accident reconstructionist who was also a police officer for the City of 
Oklahoma City, gave the following opinion on fault and causation:


Q. Did you - based upon your background and experience and education as 
    well as your on-the-job experience as well, do you have an opinion as what 
    the cause of this accident was?7A. Yes. Based on all the evidence I have, 
    based on the testimony of all the people involved, based on the physical 
    evidence on the roadway, and my understanding of the State statutes and how 
    they are applied here, I find that the plaintiff was walking in the middle 
    of the roadway, which he is required to walk on the side of the roadway 
    facing traffic or on the sidewalk if it's provided. And that [Defendant] 
    took appropriate action and would be taking the same action I would have 
    taken.I find no negligence or any fault on [Defendant] that he did 
    anything wrong. He was within the speed limit. He recognized the danger 
    and he reacted to that, and he act[ed] appropriately.8
(Emphasis added.)
¶20 Defendant argues, "There is nothing prohibiting an expert from testifying 
as to the ultimate issue to be decided by the jury. This was an auto-pedestrian 
accident involving issues of lighting, visibility, road elevation, and other 
matters not within the knowledge of ordinary jurors." Both Thomson and Harrison 
could and did testify on such matters as "lighting, visibility, road elevation," 
and other observations of physical characteristics of the accident scene, 
physical evidence at the scene, and results of their investigations that were 
helpful to the jury. Plaintiff did not object at trial and does not on appeal 
take issue with such testimony.9 Unlike their opinions on "fault" and "cause," their 
testimony on these matters involved technical or specialized knowledge.
¶21 Pursuant to 12 O.S.2011 § 2702, to be 
admissible, the "scientific, technical or other specialized knowledge" must 
"assist the trier of fact to understand the evidence or to determine a fact in 
issue." Does the opinion of an investigating police officer or an accident 
reconstructionist as to whose fault caused the accident help the jury 
"understand the evidence" or "determine a fact in issue"? Does such an opinion 
make "the existence of any fact . . . more probable or less probable" than it 
would be without that opinion? American College of Trial Lawyers, Standards 
and Procedures for Determining the Admissibility of Expert Evidence after 
Daubert, 157 F.R.D. 571, 573-75 (1994). We suggest that it has the effect, 
not of advancing the jury's understanding of the evidence to any degree or of 
promoting accurate fact-finding, but of making a verdict of liability or no 
liability more probable by telling the jury what conclusion to draw.10 29 Charles 
Alan Wright, Kenneth W. Graham, Jr., Victor James Gold, Michael H. Graham, 
Federal Practice and Procedure § 6264 (1st ed. 2013).
¶22 There is clear case law prohibiting expert opinion testimony on 
negligence and causation because it "did not assist the jury" and "was not 
needed by them to reach an intelligent conclusion as to the cause of the 
accident." Gabus v. Harvey, 1984 OK 4, ¶¶ 22, 28, 678 P.2d 253, 257. 
The ultimate opinions of these two witnesses that Blackwell was fault-free and 
that Jerrit Moore's negligence caused the collision are not opinions requiring 
special skill or knowledge, nor do such opinions constitute technical matters 
requiring special skill to interpret the evidence and reach a conclusion.11 This case 
involves facts comprehensible by anyone who has walked on a roadway or driven an 
automobile at night and encountered pedestrians or other hazards in the roadway. 
In line with Gabus, these are situations within the common knowledge of 
most jurors who have driven a motor vehicle. Id. at ¶ 18, 678 P.2d at 256.
¶23 It is well-established in the holding in Gabus that the 
objected-to testimony about fault and causation dealt with matters well within 
the jury's "normal experiences and qualifications." Id. Was special 
knowledge or expertise, in the form of an opinion on the ultimate issue, of 
assistance here to understand whether either party was negligent and, if so, 
whether that negligence caused the collision?12 To grasp and evaluate the evidence 
and draw well-reasoned conclusions from it did not require an expert to tell the 
jury what conclusion to reach.13 As in Gabus, this testimony on negligence, 
fault and causation cannot be considered to have assisted the jury.14 The jury 
had the benefit of the testimony of the two experts detailing without objection 
what their investigations had revealed on numerous subjects--point of impact, 
speed of Defendant's vehicle both before and at impact, reaction time, stopping 
distance, the effect of antilock brakes, lighting conditions--testimony helpful 
to the jury in reaching its verdict.15 Plaintiff properly objected to any expert offering 
his opinion finding "no negligence or any fault on [Defendant]" and finding that 
Jerrit Moore was "more at fault in the accident."
¶24 In addition to being unneeded,16 such testimony was also prejudicial, because it 
"put the stamp of expertise upon an issue the jury was fully competent to 
decide." Id. at ¶ 25, 678 P.2d at 257. 
Thomson investigated the accident as an officer for the City of Norman police 
department, and Harrison was a police officer for the City of Oklahoma City at 
the time he testified, both thus occupying official positions that carry the 
undue "'stamp of authenticity'" found to be objectionable in Gabus. 
Id. at ¶ 26, 678 P.2d at 257 (quoting 
Maben v. Lee, 1953 OK 139, ¶ 11, 260 P.2d 1064, 
1067).
¶25 The Supreme Court has further stated that to allow such testimony permits 
the jury to substitute an expert witness's opinion for the "combined judgment of 
the jury, encouraging a contest by experts rather than a trial by witnesses."17 Id. 
at ¶ 25, 678 P.2d at 257. In the trial court's 
gatekeeping capacity, for the reasons elucidated in Gabus, it was 
reversible error to allow Thomson and Harrison to state opinions or conclusions 
on the questions of negligence, fault, or whose conduct did or did not cause the 
accident.
II. Impeachment Testimony 
¶26 Plaintiff next contends the trial court "improperly prevented [him] from 
examining witnesses and Defendant after giving perjured testimony." Plaintiff's 
counsel asked Defendant a question during trial regarding a prior recorded 
statement he had given. Plaintiff argues Defendant denied giving a recorded 
statement "in complete contradiction to his deposition testimony." Plaintiff 
argues the trial court should have granted "Plaintiff's counsel some leeway in 
questioning the Defendant on this issue" as "[p]erjured testimony goes directly 
to the credibility of the witness." Plaintiff asserts the trial court prevented 
him from attacking Defendant's credibility.
¶27 Defendant argues the trial court did not abuse its discretion in refusing 
to allow Plaintiff's counsel to question Defendant about his deposition 
testimony about a recorded statement given to his insurance company. Defendant 
asserts the trial court refused "because reading the deposition question and 
answer to the jury would disclose to the jury the existence of insurance, in 
violation of 12 O.S. 
§ 2411 and requir[e] a mistrial." Defendant further asserts that because no 
recorded statement existed and Plaintiff had none at trial with which to 
cross-examine Defendant, the trial court properly precluded Plaintiff from 
inquiring about it.
¶28 The admission of a prior inconsistent statement to attack the credibility 
of a witness is governed by 12 O.S. §§ 2607 and 2613. Crussel v. Kirk, 1995 OK 41, ¶ 8, 894 P.2d 1116, 
1118-19. The Crussel Court stated:


Before allowing evidence of a witness's prior inconsistent statements, 
    the nisi prius court must satisfy itself that the proffered testimony 
    is sufficiently inharmonious with the declarant's in-court testimony and is 
    relevant to a non-collateral matter. A proper foundation must be laid 
    before the extrinsic impeachment evidence may be 
admitted.
Id. at ¶ 8, 894 P.2d at 1119 (footnotes 
omitted).
¶29 Based on this criterion, Defendant argues Plaintiff failed to lay any 
foundation because no such statement existed. Instead, Plaintiff intended to 
impeach Defendant with his prior inconsistent testimony about whether he had 
actually given a prior statement instead of impeaching him with the substance of 
the "non-existent recorded statement." Defendant argues that by doing so, 
Plaintiff "would have created a mistrial by informing the jury of the existence 
of insurance. Further whether [Defendant] gave a recorded statement to his 
insurance company or not was wholly collateral to the issues of the case."
¶30 In response to Plaintiff's counsel's request during trial to question 
Defendant about the recorded statement, the trial court stated: "Counsel, I read 
that deposition. He gave a report. Now, that's what he said in the deposition 
and that was to the insurance company. No, sir. You know, you can't get it in 
directly when I would have to declare a mistrial if that's what it comes down 
to." After a review of the record, we conclude the trial court did not abuse its 
discretion by excluding this evidence. Plaintiff sought to impeach Defendant's 
trial testimony denying any previous recorded statement with his deposition 
testimony admitting giving a statement to his insurance company. This cannot be 
said to be relevant to a non-collateral matter. Id. 
¶31 We find the same to be true as to Plaintiff's contention that the trial 
court improperly refused to allow him "to ask Defendant a causation question--if 
you had driven slower, this accident would not have happened. This is the ISSUE 
of the case and his answer would clearly weigh on his credibility!!!" (Emphasis 
omitted.) A review of Defendant's trial testimony reveals Plaintiff did 
in fact ask Defendant this question and Defendant provided an answer. On direct 
examination, Plaintiff's counsel asked Defendant the following:


Q. Had you been driving slower, do you believe this incident would have 
    happened?A. I don't know if slower--how much slower? I mean, five miles 
    an hour slower? No. I think it would still have occurred, the same 
    thing.
(Emphasis added.) On redirect, Plaintiff's counsel asked the same question: 
"At the end of the day, had you taken precautions and driven slower, would this 
crash have happened?" Before Defendant could respond, the trial court sustained 
defense counsel's objection that the question was outside his 
recross-examination of the witness. We find no abuse of discretion in this 
ruling and Defendant had previously answered it on direct examination.
III. Jury Instructions
¶32 Plaintiff asserts Defendant failed to meet his burden of proof to show 
that Jerrit Moore "was negligent resulting in the trial court failing to 
properly instruct the jury." Plaintiff argues the trial court improperly 
instructed the jury based on Thomson's and Harrison's testimony regarding Jerrit 
Moore's negligence. Plaintiff argues "Harrison improperly attempted to establish 
the knowledge and education of his eight-year-old grandson, the grandson of a 
police officer, as a 'standard' to be applied in this case" when the "evidence 
to overcome the presumption [Moore] was not negligent must be determined 
based on his particular facts and circumstances, education and 
experiences, not by what some 8 year old grandson of an expert witness was 
taught." Plaintiff states, "Had the Trial Court appropriately excluded the 
testimony of Thomson and Harrison, the Plaintiff's modified jury instruction, 
OUJI 9.4 [Child's Capacity for Negligence] would have been given as there was no 
other evidence overcoming the presumption [Moore] was not negligent. This would 
have resulted in a verdict for the Plaintiffs."
¶33 Because we conclude the admission of opinion testimony by Thomson and 
Harrison is reversible error requiring a new trial--at which neither of these 
two witnesses may give opinion testimony as to the negligence or fault of any 
party, including Jerrit Moore, or as to causation of the collision--we do not 
further address this issue.
CONCLUSION
¶34 Because the conclusions of expert witnesses admitted into evidence, 
contrary to the strictures of Gabus, on the issues of whether either 
party was negligent and to what extent that negligence, if any, caused the 
collision, were not needed or helpful to the jury and were plainly prejudicial, 
we reverse and remand for a new trial consistent with the views expressed in 
this Opinion. Further, we decline to address any issues raised in the amended 
petition in error that were omitted from the appellate briefs. Oklahoma Supreme 
Court Rule 1.11(k)(1), 12 O.S.2011, ch. 15, app. 1 ("Issues raised in the 
Petition in Error but omitted from the brief may be deemed waived.").

¶35 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

BARNES, V.C.J., concurs, and FISCHER, P.J., concurs in part and dissents in 
part.

FOOTNOTES

1 
Although additions were made to this provision in 2009, those additions do not 
change the fact that the "scientific, technical or other specialized knowledge" 
must still "assist the trier of fact to understand the evidence or to determine 
a fact in issue."

2 We 
conclude that Thomson cannot circumvent the well-understood holding in Gabus 
by consistently denying doing exactly what he is in fact doing. Despite 
Thomson's protestations, we see no distinction, for testimony purposes in the 
jury's eyes, between "at cause" and "at fault." If "at cause" refers to any 
party receiving a citation, Officer Thomson may not testify to this any more 
than he may testify as to which party is liable, i.e., "at fault," for 
the collision. We disagree with the dissent that Thomson "did not answer" the 
"fault" question and further disagree that a reasonable juror would interpret 
Thomson's use of the word "fault" as a "misstatement which [he] immediately 
corrected with the language 'or more responsible.'"

3 
Experience tells us that when "fault" questioning is allowed, "citation" 
testimony will not be far behind. And, defense counsel told the jury in closing 
argument, "[The police officer] says that [Defendant] violated no 
laws."

4 We 
disagree with the dissent's conclusion that it is unlikely that the jury was 
"unduly influenced" by Thomson's opinion that there was nothing to cite 
Defendant for and that allowing this evidence was not a clear abuse of 
discretion. The dissent does note that this "citation" testimony is 
objectionable because it states a legal conclusion. We believe the same 
characterization could be said to apply to "fault" and "negligence" 
testimony.

5 Once 
Defendant's counsel on direct examination breached the Gabus prohibition 
over Plaintiff's repeated objections, Plaintiff's counsel's cross-examination on 
Thomson's "fault" testimony cannot, in our view, constitute "invited error." One 
would be hard-pressed to know how much more to object to preserve the error, and 
once the cat was out of the bag, Plaintiff could not be expected to ignore the 
substance of Thomson's "fault" testimony. In light of the trial court's 
continued allowance of such testimony over Plaintiff's objections, we cannot 
characterize Plaintiff's counsel as "solely responsible for the error," as the 
dissent does. In light of the trial court's blanket allowance of "expert" 
testimony on fault, negligence, and who caused the collision, we see no basis, 
as the dissent does, for requiring Moore to file a motion for directed verdict 
or for new trial on the citation testimony in order to preserve the error on 
appeal.

6 Officer 
Thomson's testimony on these issues should not have been allowed after he 
testified on direct examination, "I don't try to determine fault. That's not my 
job as a police officer." Tr., p. 127. And when asked on direct whether he found 
any "fault" on Defendant, Thomson testified, "I have always been trained not to 
determine fault." Tr., p. 138. This would seem to indicate that this sort of 
determination is not within his training and expertise. After an overnight 
recess, before Defendant called his accident reconstructionist to the stand, 
Plaintiff again objected to any testimony by Harrison as to fault or causation 
and further argued it would be cumulative to Thomson's fault testimony the day 
before. The trial court remembered that Thomson stated he could not determine 
fault for either one of the parties, but the court believed incorrectly that 
Thomson had not rendered an opinion as to fault. Tr., p. 156.

7 The 
dissent finds nothing improper about asking "What caused this accident?" We view 
this, and believe most jurors would view this, as the equivalent of asking "Who 
caused this accident?," i.e., who was negligent in causing this 
collision? Harrison apparently understood it this way when he answered the 
question by saying he found "no negligence or any fault on [Defendant] that he 
did anything wrong."

8 
Although Plaintiff objected in his amended motion in limine to Harrison's 
testimony on more than twenty subjects, Plaintiff did not preserve his objection 
on all these points at the time of trial. Before Harrison testified, Plaintiff 
asked for, and was granted, a continuing objection to Harrison giving expert 
opinion testimony on only two subjects, "causation and negligence." Tr., pp. 
157-58. Plaintiff did not claim error on these twenty or so subjects, or brief 
them in his appellate briefs where he specifically argued trial court error in 
allowing Thomson and Harrison to testify "as to causation and negligence." 
Moore's brief in chief, pp. 23-24; Moore's reply brief, pp. 10-11. To be clear, 
we do not find improper Harrison's testimony about where the point of impact 
was, or the speed of Defendant's vehicle, or what the physical evidence showed 
about Defendant's braking or attempts to take evasive action. In addition, 
Plaintiff states in his appellate brief that he stipulated Defendant was not 
speeding. But, to allow an expert to testify further that Jerrit Moore's 
improper conduct caused the collision, and that Defendant was not negligent, is 
error.

9 The 
dissent discusses the testimony of both Thomson and Harrison on these matters, 
such as swerve and skid marks, point of impact, and conditions at the time of 
the accident. As we believe the Opinion makes clear, this testimony is not 
prohibited--nor was it objected to, complained of on appeal, or the basis for 
our reversal of this judgment. But we do not believe that such admissible 
testimony constitutes a license for an expert to then cross the Gabus 
threshold and offer his legal conclusion on an issue that, without the 
expert's opinion, "the jury was fully competent to decide." Gabus v. 
Harvey, 1984 OK 
4, ¶ 25, 678 P.2d 
253, 257.

10 We 
are persuaded that expert opinions should not be admitted that "'merely tell the 
jury what result to reach.'" Hooks v. State, 1993 OK CR 41, ¶ 13, 862 P.2d 1273, 
1278, cert. denied, 511 U.S. 1100, 114 S. Ct. 1870 (quoting Moore v. 
State, 1990 OK 
CR 5, ¶ 49, 788 
P.2d 387, 399).

11 The 
question to be answered here, pursuant to the Evidence Code, is not whether 
these opinions go to the "ultimate issue" before the jury, which they may, if 
admissible, but whether such opinions constitute "scientific, technical 
or other specialized knowledge" that will assist the jury. 12 O.S.2011 § 2702 
(emphasis added). We do not conclude that such testimony can never be admissible 
in a vehicular negligence case, but it is not admissible in this one.

12 We 
think such questions very clearly tell jurors what conclusion to reach about a 
party's conduct.

13 
"[E]xpert testimony fails to assist if unfair prejudice outweighs probative 
value . . . ." 29 Charles Alan Wright, Kenneth W. Graham, Jr., Victor James 
Gold, Michael H. Graham, Federal Practice and Procedure § 6264 (1st ed. 
2013).

14 To 
the extent the dissent argues that "fault" and "causation" testimony should be 
allowed as part of "the entirety of the evidence," this in our estimation 
renders Gabus meaningless. Although the dissent does not find such 
testimony to be sufficiently "prejudicial," Gabus clearly does as 
discussed below.

15 The 
dissent finds no distinction between this case and Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705. The 
primary holding in Covel on the admissibility of expert testimony turned 
on whether the objecting party challenged the testimony by a timely objection. 
The Supreme Court said, "This Court has held that a party cannot after 
introduction of evidence without objection, have it stricken on grounds that 
it is incompetent." Id. at ¶ 8, 272 P.3d at 
709 (emphasis added). The Court would not condone allowing a party to 
object to expert witness testimony after it was admitted without objection: "By 
failing to object, the error is waived on appeal . . . ." Id. at ¶ 9, 
272 P.3d at 710. One cannot allow an expert's 
testimony to be admitted and then try to discredit that testimony after all the 
evidence is in. Id. There are clear distinctions between this case and 
Covel.

16 As 
the Supreme Court concluded in Gabus, "This is not a case where the jury 
needed the opinion of an expert about fault." Gabus v. Harvey, 1984 OK 4, ¶ 25, 678 P.2d at 253, 
257. As to characterizing either Thomson's or Harrison's testimony on whose 
fault caused the collision as permissibly "suggesting an inference," as the 
dissent does, we note the Evidence Subcommittee's Note to Section 2702: "Since 
much of the criticism of expert testimony has centered upon the hypothetical 
question, it seems wise to recognize that opinions are not indispensable and to 
encourage the use of expert testimony in non-opinion form when counsel believes 
the trier can itself draw the requisite inference." Okla. Stat. tit. 12, § 2702 
(West 2009).

17 To 
follow the dissent's reasoning in allowing expert opinions on fault and 
causation would in our view, by endorsing a "contest of experts," unnecessarily 
drive up the cost of litigating cases when these issues, according to our 
Supreme Court, are within a jury's "normal experiences and 
qualifications."


FISCHER, P.J., concurring in part and dissenting in part:
¶1 The central issue in this case is the scope of admissible 
testimony from expert witnesses. The Majority relies on Gabus v. Harvey, 
1984 OK 4, 678 P.2d 253, and 
that Court's interpretation of section 2702 of the Evidence Code to conclude 
that it was reversible error to allow Terry Harrison and Michael Thomson "to 
state opinions or conclusions on the questions of negligence, fault, or whose 
conduct did or did not cause the accident." The Majority also concludes, in 
reliance on Gabus, that this testimony was prejudicial because Thomson 
and Harrison were police officers and that a new trial is required. Although I 
agree with the Majority that the district court failed to follow Gabus in 
determining the admissibility of Harrison's and Thomson's expert opinion 
testimony, I respectfully dissent because I believe Gabus has been 
abrogated and is no longer the law in Oklahoma.1
I. The Scope of Admissible Expert Opinion Testimony
¶2 Title 12 
O.S.2011 § 2702 is the controlling statute on the central evidentiary issue 
and provides:


If scientific, technical or other specialized knowledge will assist the 
    trier of fact to understand the evidence or to determine a fact in issue, a 
    witness qualified as an expert by knowledge, skill, experience, training or 
    education may testify in the form of an opinion or otherwise. . . 
  .
This statute is "identical in substance" to Federal Rule of Civil Procedure 
702 and, therefore, "federal court decisions may be examined for persuasive 
value." Christian v. Gray, 2003 OK 10, ¶ 16, 65 P.3d 591, 596 
(adopting the federal standard announced in Daubert v. Merrell Dow 
Pharm., 509 U.S. 579, 113 S. Ct. 2786 (1993), and Kumho Tire Co., 
Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999), for determining 
the admissibility of expert witness testimony). The federal courts have 
determined that the statute establishes a two-pronged test for determining the 
admissibility of expert witness testimony: "whether the expert is proposing to 
testify to (1) scientific knowledge that (2) will assist the trier of fact to 
understand or determine a fact in issue." Daubert, 509 U.S. at 
592, 113 S. Ct. at 2796. The first prong is not an issue in this case with 
respect to either Harrison or Thomson. Both witnesses were qualified as expert 
witnesses by their "knowledge, skill, training [and] education" without 
objection from Moore. It is the Majority's application of the second prong of 
the section 2702 test with which I disagree.
A.The Daubert Test
¶3 When the federal counterpart to section 2702 was adopted, there was some 
uncertainty as to what the second prong required.


The courts disagree over the precise meaning of Rule 702's assist 
    requirement. Expert testimony was admissible under prerules common law only 
    where the subject of that testimony was beyond the experience or knowledge 
    of ordinarily lay people and would provide "appreciable help" to the trier 
    of fact. The "assist" requirement of Rule 702 seems less demanding but the 
    provision's language is ambiguous. Some courts restate the test by asking 
    whether expert testimony would be "helpful," but this adds no clarity. Many 
    modern courts interpret the "assist" requirement of Rule 702 as if it 
    restates the common law. For example, some courts take the position that 
    expert testimony does not "assist" if the jury can use its common sense to 
    comprehend the evidence at some reasonable level. Other courts believe that 
    Rule 702 adheres to the common-law principle that expert testimony must be 
    of "appreciable help."
29 Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure § 6264 (1st ed. 1980).
¶4 Gabus focuses on the second prong of section 2702 and adopts the 
"prerules common law approach."


The testimony as to causation introduced here did not assist the jury. It 
    concerned facts that could be readily appreciated by any person who drives 
    an automobile or crosses streets. No special skill or knowledge was needed 
    to understand these facts and draw a conclusion from them. In such a case as 
    this, where the normal experiences and qualifications of laymen jurors 
    permit them to draw proper conclusions from the facts and circumstances, 
    expert conclusions or opinions are inadmissible.
Gabus, 1984 
OK 4, ¶ 18, 678 P.2d at 256. The Majority 
follows this same approach concluding that Harrison's and Thomson's expert 
testimony did not assist the jury because this case "involves facts 
comprehensible by anyone who has walked on a roadway or driven an automobile at 
night and encountered pedestrians or other hazards in the roadway."
¶5 Gabus was decided six years after the enactment of section 2702 by 
a seven-member Court with three members dissenting. The Gabus Majority 
recognized that the new statute "expand[s] slightly the pre-Code standard which 
admitted expert testimony only where the trier of fact was otherwise unable to 
understand the issues." Id. ¶ 14, 678 P.2d at 
255. Nonetheless, the Court found the investigating officer's opinion 
that the plaintiff failed to yield the right-of-way was inadmissible. As 
Gabus articulates the second prong: "The test under § 2702 is 
usefulness." Id. ¶ 16, 678 P.2d at 255. 
"[W]here the normal experiences and qualifications of laymen jurors permit them 
to draw proper conclusions from the facts and circumstances, expert conclusions 
or opinions are inadmissible." Id. ¶ 18, 678 P.2d 
at 255. The "conclusion of the officer . . . was not useful since the 
jury was just as capable of drawing a proper conclusion from those facts as was 
the officer." Id. ¶ 22, 678 P.2d at 
257.
¶6 The usefulness test announced in Gabus is determined by the common 
law focus on "the normal experiences and qualifications of laymen jurors," 
id. ¶ 18, 678 P.2d at 256, and whether the 
expert's testimony is "beyond the experience or knowledge of ordinary lay 
people." 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure § 6264 (1st ed. 1980). In my view, that approach was rejected in 
Daubert in favor of the relevance test.


Rule 702 further requires that the evidence or testimony "assist the 
    trier of fact to understand the evidence or to determine a fact in issue." 
    This condition goes primarily to relevance. "Expert testimony which does not 
    relate to any issue in the case is not relevant and, ergo, non-helpful." 3 
    Weinstein & Berger ¶ 702[02], p. 702-18.
Daubert, 509 U.S. at 591, 113 S. Ct. at 2795. As explained in American 
College of Trial Lawyers, Standards and Procedures for Determining the 
Admissibility of Expert Evidence after Daubert:


The [Daubert] Court noted that the second prong of its test -- 
    that the evidence assist the trier of fact -- is related to the concept of 
    "relevancy" set forth in Federal Rules of Evidence 401 and 402. Rule 401 
    defines relevant evidence as that evidence which has "any tendency to make 
    the existence of any fact that is of consequence to the determination of the 
    action more probable or less probable than it would be without the 
    evidence." The Court in effect held that evidence meeting the foregoing 
    definition would necessarily "assist the trier of fact" and thereby satisfy 
    that prong of Rule 702.
157 F.R.D. 571, 574-75 (1994). Consequently, Daubert is among the 
courts that:


[I]mplicitly reject the notion that Rule 702 merely preserves the common 
    law. These courts assume that even where the jury can understand the 
    evidence at some level, expert testimony satisfies the "assist" requirement 
    if it advances the jury's understanding to any degree. The drafters seemed 
    to adopt the latter interpretation.
29 Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure § 6264 (1st ed. 1980).
¶7 The Daubert articulation of the second prong is also consistent 
with the Advisory Committee Notes to Rule 702:


Most of the literature assumes that experts testify only in the form of 
    opinions. The assumption is logically unfounded. The rule accordingly 
    recognizes that an expert on the stand may give a dissertation or exposition 
    of scientific or other principles relevant to the case, leaving the trier of 
    fact to apply them to the facts. . . . The use of opinions is not abolished 
    by the rule, however. It will continue to be permissible for the experts to 
    take the further step of suggesting the inference which should be drawn from 
    applying the specialized knowledge to the facts.
Fed. R. Evid. 702. The Oklahoma Evidence Subcommittee's Note to Okla. Stat. 
tit. 12, § 2702 (West 2009) is identical and further states that section 2702 
"reflects Oklahoma law."
¶8 Almost twenty years after Gabus was decided, Oklahoma adopted the 
Daubert rule in Christian v. Gray: "Oklahoma courts should apply 
Daubert and Kumho . . . when determining the admissibility of an 
expert's opinion." Christian, 2003 OK 10, ¶ 53, 65 P.3d at 611. In doing so, Christian 
specifically adopted the Daubert articulation of the second prong test: 
"The evidence must also 'assist the trier of fact to understand the evidence or 
to determine a fact in issue.' This requirement 'goes primarily to relevance.'" 
Id. ¶ 9, 65 P.3d at 597 (citing 
Daubert, 509 U.S. at 591). Therefore, after Christian was decided, 
the common law test for usefulness described in Gabus was abrogated in 
favor of the relevance test, in my view.
B. Application of the Relevance Prong of the Daubert Test 
in Covel
¶9 Not only has the Oklahoma Supreme Court adopted the Daubert 
relevance test for determining the admissibility of expert witness testimony, 
but also it has applied that test in Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705, the 
Court's most recent treatment of expert witness testimony in automobile accident 
cases. Covel involved a tort claim on behalf of the driver of a vehicle 
who died after colliding with a bus. The Court found no fundamental error in 
admitting opinion testimony from the investigating officer that the brakes on 
the bus were not working properly because there was only one skid mark and there 
was no antilock braking system.
¶10 The Court also found no error in permitting the defendants' expert to 
testify that the bus could not have avoided the collision because within the 
time, speed and distance facts of the case the driver could not have reacted any 
faster than he did, and the bus could not have slowed any faster than it did. 
The Majority accurately notes the procedural difference between Covel and 
this case based on the lack of objection during trial to the expert testimony in 
Covel and the repeated objections to that testimony in this case. 
However, I cannot read Covel as narrowly as the Majority and therefore 
conclude that the procedural difference does not distinguish Covel from 
this case.
¶11 First, the fact that Gabus is neither cited nor discussed in 
Covel is, in my view, significant. The relevant facts in Gabus are 
different, but only to the extent that the police officer in Gabus testified 
without the benefit of any physical evidence and based his opinion solely on the 
statements of the plaintiff. Both Thomson and Harrison as well as the experts in 
Covel testified based on extensive physical evidence independent of the 
statements of the parties about what occurred. However, that distinction is not 
determinative. "In Oklahoma a physician treating a patient may use a medical 
history provided by the patient when making an opinion on causation of the 
patient's injury." Christian, 2003 OK 10, ¶ 29, 65 P.3d at 605). Nothing in the language of section 
2702 prevents an expert in any other kind of case from "making an opinion on 
causation," whether that opinion is based solely on statements of the parties or 
also on physical evidence.
¶12 Second, the Majority distinguishes Covel based on its conclusion 
that the "primary holding in Covel on the admissibility of expert 
testimony turned on whether the objecting party challenged the testimony by a 
timely objection." The Majority supports this conclusion by quoting a portion of 
paragraph 9 of the Covel Opinion: "'By failing to object, the error is 
waived on appeal . . . .'" (Majority Opinion, n.15). Although the lack of 
objection is a difference between this case and Covel, the holding in 
Covel is not solely dependent on, or limited to that fact, in my 
view.
¶13 I conclude that the Covel Court also reached the fundamental error 
issue based on the portion of the Covel quotation omitted by the 
Majority: "By failing to object, the error is waived on appeal, in the 
absence of fundamental error." (emphasis added). Covel, 2012 OK 5, ¶ 9, 
272 P.3d at 710. In addition, I reach this 
conclusion because in the next paragraph, the Covel Court defines 
"fundamental error," analyzes the testimony of Dr. Strauss, the plaintiff's 
expert, pursuant to that definition and concludes: "The admission of Dr. 
Strauss' opinions on causation, where defendants failed to object to those 
opinions, did not . . . constitute[] fundamental error." Id. ¶ 10, 272 P.3d at 710.
¶14 In doing so, the Covel Court followed long established Oklahoma 
law. "[E]rrors in admission or rejection of evidence which [result] in 
miscarriage of justice or constitute substantial violation of some 
constitutional or statutory right require reversal of a cause by this Court." 
Davon Drilling Co. v. Ginder, 1970 OK 51, ¶ 16, 467 P.2d 470, 474. 
"Nothing in [section 2104(A)(1) requiring a timely objection to preserve error 
in rulings on evidence] precludes taking notice of plain errors affecting 
substantial rights although they were not brought to the attention of the 
court." 12 O.S.2011 
§ 2104(D). "Oklahoma courts are committed in civil cases to protecting 
litigants from the commission of fundamental error in the trial cases." Oklahoma 
Evidence Subcommittee's Note to Section 2104, Okla. Stat. tit. 12, § 2104 (West 
2009). The Majority finds such fundamental error in the Gabus rule, the 
Covel Court did not. "We agree with the Court of Civil Appeals that there 
was no fundamental error." Covel, 2012 OK 5, ¶ 10, 272 P.3d at 710.
¶15 Third, the Covel Court not only affirmed the district court 
judgment despite the admission of the challenged expert testimony, but also 
discussed the plaintiff's evidentiary obligation in that case.


The plaintiffs had the burden of proving that defendants' brakes 
    malfunctioned and that the malfunction was more probably than not the cause 
    of Mr. Covel's death.
Id. ¶ 17, 272 P.3d at 712. To discharge 
that burden, the Covel Court recognized that the plaintiffs were entitled 
to rely on Dr. Strauss' "opinions on causation." Id. ¶ 10, 272 P.3d at 710.


By being qualified as an expert in accident reconstruction, biomechanics 
    and human factors, Dr. Strauss was qualified to give opinions and 
    conclusions based on his training and experience in those 
  fields.
Id. ¶ 15, 272 P.3d at 712. Dr. Strauss 
testified that in his opinion the cause of the plaintiff's death was the 
"head-on" nature of the impact caused by the failure of the bus to stop sooner 
because of its defective brakes. "The admission of Dr. Strauss' opinions on 
causation . . . did not seriously affect the fairness or integrity of the trial. 
Dr. Strauss' testimony was not so manifestly unreasonable that its admission 
constituted fundamental error." Id. ¶ 10, 272 
P.3d at 710.
¶16 As I read Covel, the Court distinguishes between testimony as to 
the cause of an accident and testimony about which party was negligent. A tort 
claim based on alleged negligence is determined by proof that the plaintiff's 
interest was entitled to protection from the defendant's conduct, that the 
defendant invaded that interest pursuant to conduct that failed to conform to 
the applicable standard of care, and that the resulting damage was a foreseeable 
consequence of the defendant's conduct. Brewer v. Murphy, 2012 OK CIV APP 
109, 292 P.3d 
41 (approved for publication by the Supreme Court). The Covel Court 
found that although the plaintiffs had to prove that the malfunctioning brakes 
caused the accident: "Whether defendants were negligent and, if negligent, 
whether the consequences could reasonably have been foreseen or anticipated, 
were questions for the jury to decide." Covel, 2012 OK 5, ¶ 17, 272 P.3d at 712. The Majority and I agree that 
testimony by an expert witness that one party was or was not negligent is not 
permitted. I dissent from the Majority's view that an expert is not permitted to 
render an opinion about the cause of an accident.
¶17 In my view, Gabus and Covel cannot be reconciled with 
respect to the admissibility of expert witness opinion testimony on causation. I 
conclude that Christian abrogated the Gabus "usefulness test" for 
determining the admissibility of expert witness opinion testimony pursuant to 
the second prong of section 2702. Consequently, after Christian, as 
evidenced by Covel, expert witness testimony concerning causation is 
admissible if it is relevant, absent some supervening constitutional provision 
or section of the Evidence Code, even if that testimony is well within "the 
normal qualifications and experience of laymen jurors." Gabus, 1984 OK 4, ¶ 18, 
678 P.2d at 256.
II. Improper Testimony
A. Harrison's Negligence Testimony
¶18 Like the Majority, I find the following testimony was improper, but only 
as to the first sentence of the last paragraph:


Q. Did you - based upon your background and experience and education as 
    well as your on-the-job experience as well, do you have an opinion as what 
    the cause of this accident was?
A. Yes. Based on all the evidence I have, based on the testimony of all 
    the people involved, based on the physical evidence on the roadway, and my 
    understanding of the State statutes and how they are applied here, I find 
    that the plaintiff was walking in the middle of the roadway, which he is 
    required to walk on the side of the roadway facing traffic or on the 
    sidewalk if it's provided. And that [Defendant] took appropriate action and 
    would be taking the same action I would have taken.
I find no negligence or any fault on [Defendant] that he did anything 
    wrong. He was within the speed limit. He recognized the danger and he 
    reacted to that, and he act[ed] appropriately.
For the reasons previously stated, I find counsel's question as to the cause 
of the accident entirely proper pursuant to the Daubert/Christian 
relevance test. However, when Harrison volunteered that he found "no negligence" 
on the part of Blackwell, Moore's continuing objection to any testimony about 
negligence should have been sustained.
¶19 In my view, that conclusion is not compelled by either rationale relied 
on in Gabus: "[T]he officer's opinion as to appellant's failure to yield 
right of way should have been excluded not just because it bore on an ultimate 
issue, but because the conclusion of the officer did not assist the jury in its 
deliberations." Gabus, 1984 OK 4, ¶ 22, 678 P.2d at 256-57. First, the exclusion of evidence 
because it "bore on an ultimate issue" is, at best, problematic. "Testimony in 
the form of an opinion or inference otherwise admissible is not objectionable 
because it embraces an ultimate issue to be decided by the trier of fact." 12 O.S.2011 § 2704. 
This Court correctly stated the rule in Madden v. Board of County Comm'rs of 
Hughes County, No. 97,832, slip op. at 11, (Okla. Civ. App. Feb. 24, 2004) 
(citing Gabus, 1984 OK 4, ¶¶ 14-16, 678 P.2d at 255): "An expert may testify on the 
ultimate issue . . . ."
¶20 Second, testimony that one party was negligent would certainly assist the 
jury in determining which of the parties was negligent. However, Harrison's 
statement that Blackwell was not negligent is objectionable because that was the 
ultimate issue in this case.2 As the Gabus court noted, Section 2702 
"expanded" the scope of admissible opinion testimony regarding the ultimate 
issue in a case. Nonetheless:


[A]bolition of the ultimate issue rule does not lower the bars so as to 
    admit all opinions. Under Rules [2701] and [2702], opinions must be helpful 
    to the trier of fact, and Rule [2403] provides for exclusion of evidence 
    which wastes time. These provisions afford ample assurances against the 
    admission of opinions which would merely tell the jury what result to reach, 
    somewhat in the manner of the oath-helpers of an earlier 
day.
Oklahoma Evidence Subcommittee's Note to Section 2704, Okla. Stat. tit. 12, § 
2704 (West 2009). In this case, Harrison's voluntary statement that Blackwell 
was not negligent merely told the jury what result to reach. The Majority and I 
agree: "No witness should be permitted to give his opinion directly . . . that a 
person was negligent or not negligent." General Supply Co. v. Virgil 
D. Goucher and Bud Stevens d/b/a Bar S Trucking, No. 95,415, slip op. at 6, 
(Okla. Civ. App. May 28, 2002) (emphasis in original) (citing Gabus, ¶ 
16, n.2, 678 P.2d at 255, quoting Grismore v. 
Consol. Prods., 5 N.W.2d 646, 663 (Iowa 1942) with approval).
B. Thomson's Citation Testimony
¶21 Thomson was the Norman police officer who investigated the accident. 
Although Thomson was listed as a fact witness by both parties in the pretrial 
conference order, he was called by Blackwell. During direct examination, Thomson 
testified regarding his education, training and experience in automobile 
accident investigation as a member of Norman's Collision Investigation and 
Response Team. He described what he did to investigate the accident involving 
Moore and Blackwell. He identified photographs of the accident scene and a 
diagram he prepared from which he described the accident scene for the jury, the 
conditions on the night of the accident, the length of skid marks, and the 
location of Moore at the point of impact. He relayed what he had learned from 
witnesses about how the accident occurred. He testified that the posted maximum 
speed on the road was fifty miles per hour and that there was a City ordinance 
in effect requiring pedestrians to walk facing oncoming traffic. He then 
testified that, based on the information he had obtained, the boys were not in 
the location required by the ordinance at the time of the accident. All of this 
testimony was provided without objection from Moore's counsel, is not challenged 
in this appeal and was properly admitted.
¶22 At the conclusion of Thomson's direct examination, counsel for Blackwell 
asked to approach the bench, where the following exchange took place:


MR. HARPER: Judge, I do believe he qualifies to the jury as to opinions 
    as an expert due to his education and training. And I would like to ask him: 
    Does he find any fault in Mr. Blackwell's driving? I will ask that only with 
    your permission. He is a police officer and not designated as an expert, but 
    I do believe under his testimony, he does qualify to answer that 
    question.
MR. SMITH: My objection will be back to Gabus v. Harvey that says 
    that an investigating officer or accident reconstructionist cannot give an 
    opinion as to fault or argue facts, which suggest fault. I know your 
    previous ruling, but I'm renewing that objection.
THE COURT: I understand. You may ask the question, 
sir.
Although Thomson was originally tendered as a fact witness, he was offered as 
an expert at this point without objection from Moore. From Thomson's testimony, 
it appears that he had sufficient additional training and experience in accident 
investigation to be qualified as an expert in that field pursuant to the 
requirements set out in Christian, 2003 OK 10, 65 P.3d 591, satisfying the first 
prong of section 2702. Consequently, like Harrison's expert testimony, the 
admissibility of Thomson's testimony as an expert is determined by the second 
prong of section 2702.
¶23 However, and unlike Harrison who was asked his opinion about the cause of 
the accident, the question put to Thomson solicited his opinion about who was at 
fault. I understand the Majority's concern that a jury might equate "fault" and 
"negligence." However, the jury in this case was properly instructed regarding 
the law of negligence and the weight to be given the testimony of expert 
witnesses. Therefore, I agree with this Court's statement in General Supply 
Co. v. Virgil D. Goucher and Bud Stevens d/b/a Bar S Trucking, No. 95,415, 
slip op. at 6, (Okla. Civ. App. May 28, 2002) (affirming a judgment favorable to 
the defendant despite testimony from a Highway Patrol trooper regarding the 
unsafe driving of the plaintiff's driver): "It is the jury that finally decides 
what was safe, unsafe, or whether an action or inaction was the cause of the 
collision."
¶24 Nonetheless, to the extent the district court erred in overruling Moore's 
objection to the question posed, the record when viewed in its entirety 
mitigates that error, in my view. First, Thomson consistently testified on 
direct and cross-examination that he was not testifying to who was at fault and 
when asked by Blackwell's counsel if he found any "'fault,' on Mr. Blackwell," 
Thomson did not answer that question.


Q: Officer Thomson, after you completed your investigation using your 
    background and experience, did you find any type of, as you call it, 
    "fault," on Mr. Blackwell?A. Well, again, as I say, I have always been 
    trained not to determine fault. As far as Mr. Blackwell goes, I determined 
    that there was nothing for me to be able to site [sic] him 
  for.
Only when pressed on the issue by Moore's counsel as to whether in his 
opinion Blackwell was "fault-free," did Thomson use the word "fault."


Q. So is it your testimony that Mr. Moore is fault-free?A. I'm not 
    saying fault on anybody. I'm just assessing who might have been most at 
    cause in the accident -Q. Okay.A. - and due to the fact that Mr. 
    Moore, from my information, went over to the center of the roadway instead 
    of to the edge of the roadway, I would lend more credence at him being more 
    at fault in the accident or more responsible - .
¶25 Second, Thomson's use of the word "fault" at this point is capable of 
being interpreted as a misstatement which Thomson immediately corrected with the 
language "or more responsible." The district court, with the benefit of 
observing Thomson during this testimony, concluded the following day that "my 
recollection yesterday is [Thomson] would not determine fault for either one of 
the parties from his testimony." "[T]he credibility of witnesses and effect and 
weight to be given to conflicting testimony are questions of fact for the trier 
of fact, either the court or jury, and are not questions of law for the Supreme 
Court on appeal." Loftis v. Collins, 1966 OK 94, ¶ 11, 415 P.2d 927, 
929.
¶26 Nonetheless, Thomson's voluntary testimony that he "determined that there 
was nothing to be able to site [sic] [Blackwell] for," was improper. Generally, 
evidence that one was or was not issued a citation in conjunction with an 
accident is not admissible. See 8 Am. Jur.2d, Automobiles & 
Highway Traffic § 1157 (2007).3 This testimony is objectionable because it is in the 
form of a legal conclusion, as was the objectionable testimony in Gabus 
that the pedestrian "failed to yield the right-of-way." 2 Leo H. Whinery, 
Oklahoma Evidence, Commentary on the Law of Evidence § 25.13 (1994).
III. Fundamental Error
¶27 Even though Harrison should not have testified that Blackwell was not 
negligent and Thomson should not have testified that he did not issue Blackwell 
a citation, the issue in this appeal is whether that improper testimony requires 
reversal of the judgment in favor of Blackwell. "The court, in every stage of 
action, must disregard any error or defect in the pleadings or proceedings which 
does not affect the substantial rights of the adverse party; and no judgment 
shall be reversed or affected by reason of such error or defect." 12 O.S.2011 § 78. 
"Fundamental error compromises the integrity of the proceeding to such a degree 
that the error has a substantial effect on the rights of one or more of the 
parties. See 12 O.S.1991 § 2104." Sullivan v. 
Forty Second West Corp., 1998 OK 48, ¶ 7, 961 P.2d 801, 803. "A case will not 
be reversed for error in the admission or rejection of evidence unless it 
appears, upon examination of the entire record, that such error resulted in a 
miscarriage of justice or constitutes a substantial violation of a 
constitutional or statutory right." Allen v. Oklahoma State Bank of Enid, 
1928 OK 577, ¶ 
0, 270 P. 838 
(syllabus 3). "[T]he settled rule is that only those errors in admission or 
rejection of evidence which resulted in miscarriage of justice or constitute 
substantial violation of some constitutional or statutory right require reversal 
of a cause by this Court." Davon, 1970 OK 51, ¶ 16, 467 P.2d at 474.
A. Thomson's Citation Testimony
¶28 Determining any prejudicial effect of Thomson's testimony requires a 
review of the entire record. First, Moore objected to one question and answer at 
the end of twenty pages of Thomson's direct testimony. The remainder of 
Thomson's testimony that Moore finds objectionable was elicited on 
cross-examination. To the extent this testimony would be prohibited pursuant to 
Oklahoma law, Moore is solely responsible for the error. "A party on appeal is 
not permitted to secure a reversal of a judgment based on invited error." 
State ex rel. Oklahoma Bar Ass'n v. Perkins, 1988 OK 65, ¶ 17, 757 P.2d 825, 
830.
¶29 Second, despite the fact that Thomson should not have testified that he 
did not issue Blackwell a citation, Moore did not request to have that testimony 
stricken, even though the issue of citations had not been previously introduced 
or discussed and was not solicited by the question. In addition, Moore did not 
file a motion for directed verdict or a motion for new trial to address this 
error. "Trial courts are not traditionally reversed for error unless the error 
was called to their attention at a time when they themselves could reasonably be 
expected to correct it." Gaines v. Sun Refinery & Mktg., 1990 OK 33, ¶ 20, 
790 P.2d 1073, 
1080 (overruled on other grounds by Davis v. B.F. Goodrich, 1992 OK 14, 826 P.2d 587).
¶30 Third, Moore has not shown that the jury's verdict would have been in his 
favor if Thomson's "citation testimony" had been excluded. See Montgomery v. 
Murray, 1970 OK 
226, 481 P.2d 
755. Consequently, I do not find that it was "highly probable" that "the 
jury was unduly influenced" by Thomson's testimony about citations. 
Gabus, ¶ 28, 678 P.2d at 257. Therefore, I 
cannot conclude that the admission of Thomson's citation testimony, when viewed 
in its entirety along with "the accumulation of eyewitness testimony and 
photographic evidence . . . was a clear abuse of discretion." Madden 
v. Board of County Comm'rs of Hughes County, No. 97,832, slip op. at 14, 
(Okla. Civ. App. Feb. 24, 2004) (emphasis in original) (affirming judgment in 
favor of driver despite testimony from the investigating officer that the driver 
could not have avoided the accident because of a washed out portion of the 
county road). With respect to the citation testimony provided by Thomson, I find 
no error requiring reversal of the judgment in favor of Blackwell.
B. Harrison's Negligence Testimony
¶31 Although I agree with the Majority that Harrison's voluntary statement 
that Blackwell was not negligent was improper, we review error in the admission 
of that testimony for fundamental error. First, Harrison was not asked if he 
thought Blackwell was negligent. Harrison was asked what he thought the cause of 
the accident was - two entirely different questions in my view. Second, although 
the district court should have stricken Harrison's statement based on Moore's 
continuing objection, Moore bears some responsibility for failing to point out 
that Harrison did not answer the question that was asked or the difference 
between testimony about the cause of the accident and testimony about who was 
negligent. Ultimately, I find no basis on which to conclude that a different 
verdict would have been rendered if the challenged testimony had been excluded. 
See Montgomery v. Murray, 1970 OK 226, ¶ 20, 481 P.2d 755, 761 
(reversing order granting plaintiff a new trial in an automobile collision case 
because there was nothing in the record to show the verdict would have been in 
plaintiff's favor if the objectionable evidence had been excluded). As stated by 
counsel for Moore in this case:


Q. And if I understand your opinion correctly, Mr. Blackwell was in a 
    no-win situation that night. Would that be a fair summary?
A. Basically, I would say that's a fair 
summary.
The evidence in this record fully supports Harrison's opinion that Blackwell 
could not have avoided hitting Moore.
IV. Moore's Objection to the Remainder of Harrison's 
Testimony
¶32 Moore's objection to Harrison's testimony is not just limited to the 
statement about Blackwell's lack of negligence. Proposition I of Moore's appeal 
argues the district court "improperly allowed defendant's expert witnesses to 
testify on issues properly reserved for the jury." In substance, Harrison 
testified on direct examination that in his opinion Blackwell took evasive 
action when he saw Moore by applying his breaks and swerving to the left and 
that they collided across the centerline of the road because Moore crossed the 
centerline in an effort to avoid Blackwell's car. Harrison testified that after 
impact, Moore hit the windshield of Blackwell's car and traveled approximately 
68 feet on the hood before Blackwell's car stopped and Moore was thrown off. He 
also testified that tire marks from Blackwell's swerve maneuver showed that 
maneuver began approximately 64 feet before the point of impact.
¶33 From these facts, Harrison testified that he was unable to determine the 
exact speed of Blackwell's vehicle at the time of impact but in his opinion the 
maximum speed would have been no more than 35 miles per hour. In part, he 
reached this conclusion based on the location of the damage to Blackwell's 
windshield and the severity of Moore's injuries. Based on the physical evidence 
and the calculations he made from that evidence, Harrison testified that in his 
opinion Blackwell could not have been traveling more than 40 miles an hour when 
he began the swerve maneuver. As a result, Harrison testified, Blackwell was 
approximately 100 to 150 feet from the boys when he would have first been able 
to see them, that he would have had only one and a half to two seconds to react 
as he did and that Blackwell's reaction time was "very, very good" and "above 
average." Harrison testified that the boys would have been able to see 
Blackwell's headlights from 1200 to 1500 feet away. Finally, Harrison stated 
that in his opinion Blackwell took appropriate action and the accident occurred 
because Moore jumped into the path of Blackwell's car. Harrison concluded his 
direct examination by stating his opinion that the accident would not have 
happened if Moore had gone the same way as the other boy or if Moore had just 
stood still when Blackwell swerved.
¶34 The basis for Moore's objection to Harrison's statement that he did not 
find Blackwell negligent is clear. The "specific ground" for his objection to 
the remainder of Harrison's testimony is somewhat illusive.


Error may not be predicated upon a ruling which admits or excludes 
    evidence unless a substantial right of a party is affected, and: 1. If the 
    ruling is one admitting evidence, a timely objection . . . appears of 
    record, stating the specific ground of objection, if the specific ground was 
    not apparent from the context.
12 O.S.2011 § 
2104(A). As the Majority Opinion documents, Moore's objection to Harrison's 
testimony and the basis for his objection to Thomson's testimony was presented 
to and rejected by the district court on several occasions. However, the scope 
of Moore's objection evolved from the time it was originally made.
¶35 In his March 29, 2010, motion in limine, Moore sought to exclude 
all of Harrison's testimony. Harrison had been listed by Blackwell as an expert 
witness in accident reconstruction. The motion cited Gabus and Jackson 
v. Brown, 1961 
OK 88, 361 P.2d 
270,4 as 
authority for the proposition that (1) the matters about which Harrison would 
testify were within the common knowledge of jurors; and (2) testimony by police 
officers is prejudicial and invades the province of the jury.5 On January 13, 2011, Moore 
amended that motion and listed twenty-three "opinions" about which he 
anticipated Harrison would testify based on Harrison's recent deposition 
testimony.6 
Both motions argued:


Oklahoma law expressly prohibits a police officer or other expert from 
    testifying and rendering an opinion regarding the wrongfulness or 
    correctness of the parties' actions in connection with a vehicle collision, 
    which of the parties was at fault or which acts of the parties contributed 
    to the accident.
Although Moore's original motion argued that all of Harrison's testimony was 
inadmissible, his amended motion argued that only a portion of Harrison's 
testimony, i.e., the twenty-three "opinions," was inadmissible.
¶36 Many of the twenty-three "opinions" listed in the amended motion are not 
opinions, such as: the plaintiff was walking in the dark, on a dark road wearing 
dark clothes; plaintiff was walking with the traffic in defendant's lane; 
defendant's headlights were working properly; and defendant traveled 
approximately 68 feet from the point of impact until his vehicle stopped. The 
Majority and I agree that Harrison was permitted to testify regarding facts 
evident from the physical evidence.
¶37 As to Harrison's opinion testimony, Moore's amended motion concedes that 
Harrison could testify about what he "saw, measured or calculated." Moore's 
Reply to Blackwell's response to his motion in limine states: "Terry 
Harrison will testify concerning speed of defendant's vehicle which is 
admissible. Plaintiffs [sic] only seek to exclude his testimony outside of the 
speed calculations."7 And, in a motion to "clarify" the order overruling 
his motion in limine, Moore argued that Harrison "should be limited to 
scientific evidence only, such as speed, skid marks and calculations. Items 
which are beyond the common understanding of the jury."
¶38 At the beginning of trial, Moore's counsel argued that he needed a 
"running objection to [Harrison's] testimony based on Gabus v. Harvey to 
every question that is asked and answered by that expert that is nonscientific." 
Counsel explained that he needed the objection "to preserve my objection for 
appeal" of the "Motion in Limine that you overruled on Friday." Counsel was also 
concerned that repeated objections would be "jumping and interfering in front of 
the jury." The district court deferred ruling until Harrison was called to 
testify. From the exchange the following day when Harrison was called to 
testify, it is clear that Counsel for Blackwell and the trial judge understood 
that Moore was requesting a continuing objection to questions involving 
Harrison's opinion about the cause of the accident rather than his background 
and qualifications as an expert.
¶39 Counsel for Moore agreed and continued to argue, based on Gabus, 
"that an investigating police officer or an accident reconstructionist cannot 
give an opinion as to who was at fault, who was not at fault, or argue facts 
which would suggest fault." In this exchange, Moore did not reurge his second 
objection based on Gabus, that even if relevant, testimony from a police 
officer or accident reconstructionist is "overly prejudicial and invades the 
province of the jury." He did add that Harrison's testimony was cumulative 
because Thomson had already been allowed to testify that Blackwell "was 
fault-free in this crash." The district court granted Moore a continuing 
objection as to Harrison's "expert opinion evidence" regarding "causation and 
negligence." Fairly interpreted on the basis of this record, that continuing 
objection was to any testimony by Harrison (1) about the cause of the accident, 
(2) about which party was at fault, (3) about which party was negligent and, (4) 
that was duplicative to Thomson's testimony that Blackwell was, as Moore put it, 
"fault-free."
¶40 However, Moore's brief in chief is not limited to these issues. First, he 
argues, and for the first time, that permitting Thomson to be qualified as an 
expert "was a surprise to the Plaintiff, to say the least." The only objection 
Moore made to the trial judge when Thomson was tendered as an expert was "back 
to Gabus v. Harvey that says an investigating officer or an accident 
reconstructionst cannot give an opinion as to fault or argue facts, which would 
suggest fault." Generally, this Court does not reach issues the appealing party 
fails to raise in the trial court. Bottles v. State ex rel. Oklahoma State 
Bd. of Med. Licensure and Supervision, 1996 OK 59, ¶ 4, 917 P.2d 471, 472. In addition to 
failing to preserve this issue for appeal, Moore has failed to demonstrate the 
nature of the "surprise." Thomson was listed as a witness Moore intended to 
call. Further, cross-examination shows that Thomson and Moore's counsel met in 
Moore's counsel's office prior to the trial.
¶41 Second, Moore argues in his brief in chief that permitting both Harrison 
and Thomson to opine that Blackwell was not negligent, but that Moore was 
negligent, constituted cumulative evidence and "piling on." No authority is 
cited in support of this proposition. Issues not supported by argument and 
authority in the party's brief may be deemed waived. In re Estate of Walker 
v. Walker, 1985 
OK 2, ¶ 1, 695 
P.2d 1; Okla. Sup. Ct. R. 1.11(k)(1), 12 O.S.2011, ch. 15, app. 1.
¶42 Third, in this appeal Moore attempts to revive his motion in 
limine argument that the testimony of these experts was prejudicial and 
put the "'stamp of expertise' on an issue the jury is fully capable to decide - 
in other words, invading the province of the jury." That was not an argument 
presented to the trial judge when Moore was granted his continuing 
objection.
¶43 Fourth, Moore argues that the experts relied solely on the statements of 
witnesses and that their opinions were not based on any independent scientific 
evidence. "NO SCIENTIFIC EVIDENCE was needed to defend this case, therefore, 
this testimony does not assist the jury in understanding the facts of this 
case." It is difficult to take this argument seriously when Moore concedes that 
at least some of Harrison's testimony was "beyond the common understanding of 
the jury." Nonetheless, neither the record nor the exchange with the trial judge 
when requesting a continuing objection support this contention. Moore justifies 
this argument by pointing out that he never argued that Blackwell was speeding. 
However, the central theme of Moore's case was that Blackwell was "driving too 
fast for the lighting conditions."
¶44 Harrison's opinion as to the cause of this accident, if believed by the 
jury, established that given the lighting conditions and speed of Blackwell's 
car he did not have enough time to avoid hitting Moore unless Moore had stood 
still or had gone in the same direction as the other boy. Clearly, Harrison's 
opinion was based on what he "saw, measured [and] calculated." Just as clearly, 
Harrison relied on the calculations he made utilizing his "specialized 
knowledge" to estimate the speed of Blackwell's car, the point of impact and the 
time and distance Blackwell had from the time he saw the boys to the point of 
impact. From his arguments to the district court it is unclear whether Moore 
finds this testimony objectionable because these "facts . . . would suggest 
fault."
¶45 Nonetheless, the admissibility of opinion testimony regarding the speed 
of a vehicle was determined long before section 2702 was adopted. "Opinion 
evidence of a duly qualified expert as to the speed of a motor vehicle, 
traveling upon a highway, based on skid marks on the highway and other physical 
facts, is admissible." Continental Oil Co. v. Elias, 1956 OK 343, ¶ 0, 
307 P.2d 849, 
851 (syllabus 4). Accord, Covel, 2012 OK 5, 272 P.3d 705. Further, "[o]pinion 
testimony concerning the point of impact is proper if the expert witness first 
details the facts upon which his conclusion is based." Gabus, 1984 OK 4, ¶ 4, 
678 P.2d at 258 (Hodges, J., dissenting). That 
was also the law in Oklahoma even prior to the adoption of section 2702. See 
Graves v. Graves, 1970 OK 177, 475 P.2d 171 (finding no error in 
overruling objection to investigating officer's opinion about the point of 
impact).
¶46 Despite Moore's objection, I do not understand the Majority Opinion as 
holding this kind of testimony about speed and point of impact, for example, was 
improper. But Harrison also testified that given the time, distance and speed in 
this case Blackwell was unable to avoid hitting Moore unless Moore stood still 
or went the same way as the other boy. From my interpretation of Moore's 
"causation and negligence" objection, it is this last testimony that he finds 
particularly objectionable. The Majority agrees. I do not. In my view, it was 
"permissible for [Harrison] to take the further step of suggesting the inference 
which should be drawn from applying [his] specialized knowledge to the facts." 
Oklahoma Evidence Subcommittee's Note to Section 2702, Okla. Stat. tit. 12, § 
2702 (West 2009).
¶47 Even if Gabus has not been abrogated, this case, in my view, is 
"arguably more complex" than Gabus. Cf., Madden v. Board of 
County Comm'rs of Hughes County, No. 97,832, slip op. at 14, (Okla. Civ. 
App. Feb. 24, 2004) (affirming judgment in favor of driver despite testimony 
from the investigating officer that the driver could not have avoided the 
accident because of a washed out portion of the county road). Further, Moore 
argued Blackwell did not brake but accelerated; Blackwell argued he immediately 
braked and swerved to the left. Moore argued that although Blackwell was not 
speeding, he was driving "too fast for the lighting conditions." Therefore, the 
evidence about what Blackwell did or did not do when he saw the boys or should 
or should not have done was disputed. Cf., Gabus, 1984 OK 4, ¶ 4, 
678 P.2d at 258 (Hodges, J., dissenting) ("[T]he 
[expert witness] evidence was helpful to the jury on the issue of causation 
because there was contradictory testimony . . . .").
¶48 And, even assuming it accepted all of Harrison's testimony on causation, 
the jury still had to determine whether Blackwell's conduct conformed to the 
standard of care in order to resolve the ultimate issue of who was negligent. 
Moore consistently argued that even though Blackwell was not speeding, he should 
have been driving even slower because it was dark. Harrison did not testify 
about what speed he thought was appropriate for the conditions. He did not 
testify about the applicable standard of care or whether Blackwell conformed to 
that standard. He only testified that given the circumstances of the case, 
Blackwell took appropriate action but that if he had been driving slower he 
could have avoided the accident. Harrison did not tell the jury how to decide 
the case except with respect to the one statement he made about Blackwell's lack 
of negligence. In my view, the vast majority of Harrison's testimony tended "to 
make the existence of any fact that is of consequence to the determination of 
the action more probable or less probable than it would be without the 
evidence." 12 
O.S.2011 § 2401 (defining relevant evidence). As Daubert and 
Christian confirm: "All relevant evidence is admissible, except as 
otherwise provided by the Constitution of the United States, the Constitution of 
the State of Oklahoma, by statute or by this Code." 12 O.S.2011 § 2402. Consequently, 
Harrison's testimony about the cause of this accident and the acts of the 
parties that did or did not contribute to that cause was admissible, in my view. 
I find no basis on which to exclude this evidence other than Gabus.
V. Conclusion
¶49 Finally, I share the Majority's concern about the increased litigation 
expense of regularly employing expert witnesses and the "vice of . . . 
encouraging a contest by experts rather than a trial by witnesses." 
Gabus, 1984 OK 
4, ¶ 25, 678 P.2d at 257. However, the law 
regarding the admissibility of expert witness testimony has changed since 
Gabus was decided, and the "vice" of concern to the Court in Gabus 
almost twenty years ago is now a common aspect of litigation. Therefore, I 
respectfully dissent to the Majority's reversal and would affirm the judgment in 
favor of Blackwell.

FOOTNOTES

1 I agree 
with the Majority that the district court did not err with respect to the 
impeachment issue and concur in that portion of the Majority Opinion. Finally, I 
would reach the jury instruction issue deferred by the Majority, and finding no 
error with respect to the jury instructions, I would affirm the judgment in 
favor of Blackwell.

2 The 
ultimate issue in any tort case is liability. Most often, liability is 
determined by which party was negligent. In some circumstances, however, proof 
of liability may require more than proof of negligence. Thompson v. 
Presbyterian Hosp., Inc., 1982 OK 87, ¶ 12, 652 P.2d 260, 263-64: "Negligence is 
not actionable unless it proximately causes the harm for which liability is 
sought to be imposed." Pepsi-Cola Bottling Co. of Tulsa, Okla. v. Von 
Brady, 1963 OK 
236, ¶ 21, 386 
P.2d 993, 997: "[A]n injury which could not have been foreseen nor 
reasonably anticipated as the probable result of an act of negligence is not 
actionable." Sturdevant v. Kent, 1958 OK 48, ¶ 3, 322 P.2d 408, 409: "If the 
negligence complained of merely furnished a condition by which the injury was 
possible and a subsequent independent act caused the injury, the existence of 
such condition is not the proximate cause of the injury." None of those 
circumstances are present in this case.

3
In Gabus, the investigating officer testified not only regarding who 
failed to yield the right-of-way, but also that "there was no charges filed." 
Gabus, 1984 OK 
4, ¶ 7 n.1, 678 P.2d at 254. The Gabus 
Court did not address the propriety of that testimony or any prejudicial effect 
from its admission without objection.

4 The 
Jackson holding is stated in the Court's syllabus:
1. An expert witness may testify only as to the physical facts disclosed in 
course of his investigation of an automobile collision. He may not state his 
opinion as to the cause of the collision.
2. In a negligence action growing out of a motor vehicle collision, it was 
reversible error to admit, over timely objection of the plaintiff, conclusions 
of investigating officer, that the plaintiff was making an improper turn at the 
time of the collision.
Jackson, 1961 OK 88, ¶ 0, 361 P.2d at 270 (syllabus 1). First, 
as Moore notes, Jackson was decided before the Evidence Code was enacted. 
Second, its value is further questionable because the Court found that the 
officer gave his opinion on an ultimate issue in the case: "It is thus clear 
that the opinion evidence elicited from the officer purports and contemplates to 
decide the very cause of the collision - an ultimate issue the jury is sworn to 
determine." Id. ¶ 12, 361 P.2d at 272. As the Gabus Court 
recognized, section 2704 now makes clear that expert testimony is not 
objectionable because it embraces an ultimate issue the jury is to decide in the 
case.

5 
Although Harrison was listed and testified as an expert witness, he was also 
employed as a police officer during the relevant time. The Gabus Court, 
in holding that the investigating officer's testimony was prejudicial, focused 
on his position as a police officer citing Maben v. Lee, 1953 OK 139, ¶ 11, 
260 P.2d 1064, 
1067: "Such testimony given by a witness occupying an official position, 
assuredly must have greatly impressed the jury, particularly since the average 
laymen undoubtedly would be inclined to place the stamp of authenticity upon 
testimony by such an officer." On this point, I find both Gabus and 
Maben distinguishable. Harrison was not the investigating officer in this 
case. The fact that he was employed by the Oklahoma City Police Department is 
coincidental. It was a fact perhaps relevant to his qualifications as an expert. 
But Harrison was not acting in an official capacity in this case, a fact clearly 
established by Moore's counsel. Harrison was cross-examined in detail regarding 
who paid him for his work on this case, the number of times he had been hired as 
an expert witness by Blackwell's counsel in other cases and the number of times 
he had been hired as an expert witness by defendants as opposed to plaintiffs. 
He was not cross-examined regarding his qualifications as an expert in accident 
reconstruction, the scientific methods he used, or the facts he relied on to 
form the opinions about which he testified. In my view, the Gabus 
rationale for determining the prejudicial effect of an investigating officer's 
testimony is inapplicable to the testimony by Harrison.

6 
"Therefore the following opinions offered by defendant's expert, Terry Harrison, 
should be excluded:
1. "At the time of this accident the plaintiffs were walking in the dark, on 
a dark road, wearing dark clothes."2. "The plaintiff and his friend was 
walking with traffic in the lane of defendant."3. "The defendant was 
operating his vehicle in a proper manner prior to and at the time of this 
accident."4. "The defendant was operating his vehicle in a proper manner 
prior to and at the time of this accident."5. "The defendant saw the 
plaintiffs in the roadway and was too close to try to avoid."6. "The 
defendant swerved to the left believing that any nature person walking down the 
middle of his lane would go to the right."7. "The defendant had no way of 
knowing that the pedestrians would go in the opposite directions."8. "The 
defendant was not speeding."9. "The plaintiff should be walking against 
traffic."10. "If the plaintiff would have been walking against traffic he 
would have had unlimited vision to see the defendant approaching."11. 
"Pedestrians must yield to the traffic which they failed to do."12. "The 
defendant is not expected to have to observe to young boys walking in his lane 
of traffic in the dark."13. "The defendant's lights were working properly as 
the plaintiff and boys are invisible to the lights that aluminate [sic] against 
a dark back ground."14. "If the plaintiff had went to the right there would 
have of been no accident."15. "The plaintiff's father is also at fault as to 
properly instruct his son how to walk properly at night and against 
traffic."16. "Due to the breakage area on the windshield it shows the 
estimated speed at impact at approximately 25 - 35 mph."17. "Mr. Harrison 
will testify that no fault exist upon the defendant."18. "The defendant 
traveled approximately 72 feet from the point of impact until the vehicle 
totally stopped."19. "if the defendant had total lock-up after impact the 
maximum speed hewould have been traveling would have been 38 mph at impact. 
However, the defendant did not have total lock-up thus his speed at contact 
would have been 35 mph or less."20. "The lights along I-35 interfere with 
the eyesight of the defendant."21. "The kids available sight of the 
defendant's headlights are unlimited except for the terrain."22. "If 
plaintiff had just walked straight or went right then the defendant would have 
missed him."23. "From the aerial map, I have placed Mr. Blackwell's vehicle 
at four different locations on the access road, as well as circles of the 
children involved. . . . Mr. Blackwell observed the young men appropriately for 
the time of night and the lighting in the area."

7 The 
trial judge determined this Reply was filed out of time and did not consider it 
when denying Moore's motion the Friday before trial.


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Name
Level
Oklahoma Court of Criminal Appeals Cases CiteNameLevel 1990 OK CR 5, 788 P.2d 387, MOORE v. STATEDiscussed 1993 OK CR 41, 862 P.2d 1273, HOOKS v. STATEDiscussedOklahoma Court of Civil Appeals Cases CiteNameLevel 2012 OK CIV APP 99, 288 P.3d 259, ISLE v. BRADYDiscussed 2012 OK CIV APP 109, 292 P.3d 41, BREWER v. MURRAYDiscussedOklahoma Supreme Court Cases CiteNameLevel 1988 OK 65, 757 P.2d 825, State ex rel. Oklahoma Bar Ass'n v. PerkinsDiscussed 1990 OK 33, 790 P.2d 1073, 61 OBJ        870, Gaines v. Sun Refinery and MarketingDiscussed 1992 OK 14, 826 P.2d 587, 63 OBJ        369, Davis v. B.F. GoodrichDiscussed 1953 OK 139, 260 P.2d 1064, MABEN v. LEEDiscussed at Length 1956 OK 343, 307 P.2d 849, CONTINENTAL OIL COMPANY v. ELIASDiscussed 1958 OK 48, 322 P.2d 408, STURDEVANT v. KENTDiscussed 1961 OK 88, 361 P.2d 270, JACKSON v. BROWNDiscussed at Length 1963 OK 236, 386 P.2d 993, PEPSI-COLA BOTTLING CO OF TULSA, OKL. v. VON BRADYDiscussed 2002 OK 24, 45 P.3d 86, JOHNSON v. FORD MOTOR CO.Discussed 1966 OK 94, 415 P.2d 927, LOFTIS v. COLLINSDiscussed 1995 OK 41, 894 P.2d 1116, 66 OBJ        1422, Crussel v. KirkDiscussed 1970 OK 51, 467 P.2d 470, DAVON DRILLING COMPANY v. GINDERDiscussed at Length 1970 OK 177, 475 P.2d 171, GRAVES v. GRAVESDiscussed 1970 OK 226, 481 P.2d 755, MONTGOMERY v. MURRAYDiscussed at Length 2003 OK 10, 65 P.3d 591, CHRISTIAN v. GRAYDiscussed at Length 1996 OK 59, 917 P.2d 471, 67 OBJ        1598, Bottles v. State ex rel. Okla. State Bd. of Medical LicensureDiscussed 2007 OK 76, 171 P.3d 890, SPENCER v. OKLAHOMA GAS & ELECTRIC COMPANYDiscussed 2012 OK 5, 272 P.3d 705, COVEL v. RODRIGUEZDiscussed at Length 1928 OK 577, 270 P. 838, 133 Okla. 14, ALLEN v. OKLAHOMA STATE BANK of ENIDDiscussed 1982 OK 87, 652 P.2d 260, Thompson v. Presbyterian Hosp., Inc.Discussed 1998 OK 48, 961 P.2d 801, 69 OBJ        2135, SULLIVAN v. FORTY SECOND WEST CORP.Discussed 1998 OK 53, 967 P.2d 1180, 69 OBJ        2341, HOLM-WADDLE v. HAWLEYDiscussed 1984 OK 4, 678 P.2d 253, Gabus v. HarveyDiscussed at Length 1985 OK 2, 695 P.2d 1, Estate of Walker, Matter ofDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 78, Court to Disregard Insignificant ErrorsCited 12 O.S. 2104, Rulings on EvidenceDiscussed at Length 12 O.S. 2401, Relevant Evidence DefinedCited 12 O.S. 2402, Relevant Evidence Generally Admissible - Irrelevant Evidence InadmissibleCited 12 O.S. 2411, Liability InsuranceCited 12 O.S. 2702, Testimony by ExpertsDiscussed at Length 12 O.S. 2704, Opinion on Ultimate IssueDiscussed










