J-A22037-16


                              2016 PA Super 305

KEVIN A. ROHE                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

DARRIS D. VINSON AND FENTON
WELDING TRANSPORT, LLC

                         Appellees                     No. 2264 MDA 2015


           Appeal from the Judgment Entered December 15, 2015
             In the Court of Common Pleas of Bradford County
                    Civil Division at No(s): 12-CV-000287


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

OPINION BY GANTMAN, P.J.:                         FILED DECEMBER 28, 2016

      Appellant, Kevin A. Rohe, appeals from the judgment entered in the

Bradford County Court of Common Pleas, in favor of Appellees, Darris D.

Vinson and Fenton Welding Transport, LLC, in this negligence action.          We

reverse and remand for a new trial.

      The relevant facts and procedural history of this case are as follows.

On April 7, 2012, at approximately 7:15 p.m., Appellant was riding his

motorcycle southbound on Route 220 in Albany Township, Bradford County.

Route 220 is a two-lane highway, with one lane northbound and one lane

southbound. The weather conditions were clear and dry, and it was still light

outside at that time. Appellant was travelling in the southbound lane behind

two trucks, a tractor-trailer and a tri-axle truck, with the tri-axle truck in the
J-A22037-16


lead.    Appellee Mr. Vinson was operating the tri-axle truck; and his co-

worker, Dennis Perry, was operating the tractor-trailer. Appellant reached a

lawful passing zone that stretches approximately 750 feet, and he attempted

to pass both trucks on the left.    At the site of the passing maneuver, the

speed limit on Route 220 had just changed from 25 mph to 45 mph. Both

trucks were travelling below the 45 mph speed limit. In an effort to pass

both vehicles within the passing zone, Appellant increased his speed to

approximately 50 mph. After Appellant had successfully passed the tractor-

trailer, he noticed the tri-axle truck had its left turn signal activated and was

slowing down to turn into a gas station parking lot. Appellant pressed on his

horn to notify the driver that Appellant was attempting to pass, but Mr.

Vinson had already begun to turn left. Appellant struck the bumper of Mr.

Vinson’s vehicle and was ejected from the motorcycle.         Mr. Vinson called

911.    After aid from an Emergency Medical Services (“EMS”) crew at the

scene of the accident, Appellant was airlifted to a local hospital for medical

treatment.    As a result of the motor vehicle accident, Appellant sustained

serious injuries requiring an above-the-knee amputation of his right leg.

        On June 27, 2012, Appellant filed a complaint against Mr. Vinson and

Fenton Welding Transport, LLC, alleging negligence and vicarious liability.

Appellant alleged Mr. Vinson failed to activate his left turn signal early

enough, turned directly into Appellant’s path without ensuring the turn was

safe to make, failed to yield the right of way to Appellant, and did not stay in


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J-A22037-16


his own lane before Appellant completed his pass in the lawful passing zone.

Appellant claimed Appellee Fenton Welding Transport, LLC (Mr. Vinson’s

employer) was vicariously liable for Mr. Vinson’s negligence because Mr.

Vinson was acting in the course and scope of his employment at the time of

the accident.   Appellees filed an answer and new matter on September 7,

2012; Appellant filed a reply on September 27, 2012.

     Appellant filed a motion in limine on June 20, 2014, seeking to

preclude at trial any reference to alcohol consumption by Appellant or his

friend Carl Bird on the date of the accident.      Appellant also sought to

preclude any evidence showing that Appellant and Mr. Bird visited bars on

the date of the accident. Appellant’s motion contained the following eleven

exhibits: (1) a map of the accident scene; (2) an excerpt of Mr. Bird’s

deposition testimony; (3) an excerpt of Appellant’s deposition testimony; (4)

the EMS report; (5) the police crash report; (6) an excerpt of the deposition

testimony of Trooper Anthony Stempien, Jr.; (7) a report from Robert Packer

Hospital, where Appellant was treated following the accident; (8) laboratory

results from Geisinger Medical Center showing Appellant’s blood alcohol level

after the accident; (9) a letter from Dr. R.E. Hartman discussing the

methodology used in relation to Appellant’s blood alcohol level; (10) the

expert report of toxicologist Dr. Gary Lage (Appellees’ expert); and (11) an

excerpt from Mr. Vinson’s deposition testimony.

     At his deposition, Mr. Bird testified, inter alia, he has known Appellant


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over ten years and they typically ride motorcycles together once a week. On

the date of the accident, Mr. Bird and Appellant met between 12:00 p.m.

and 1:00 p.m. for a day-trip motorcycle ride. During the course of their trip,

Appellant and Mr. Bird stopped at six bars.       Appellant and Mr. Bird each

consumed one beer at every bar they visited. At the final bar they visited,

Mr. Bird and Appellant also ate dinner. Mr. Bird said Appellant might have

consumed two beers at the last bar because they were eating.           Appellant

and Mr. Bird left the last bar at approximately 7:00 p.m. to return to their

respective homes. Mr. Bird believed Appellant was capable of safe driving at

all points throughout the day and had no concern about Appellant’s ability to

drive safely. (See Appellant’s Motion in Limine, filed 6/20/14, at Exhibit 2

(Deposition of Carl Bird, 6/26/13); R.R. at 23a-47a).

      Appellant testified at his deposition, inter alia, he visited six bars with

Mr. Bird over a six-to-seven-hour period on the day of the accident. At each

bar, Appellant consumed one 12-ounce Michelob Ultra light beer, except at

the last bar where Appellant consumed two 12-ounce Michelob Ultra light

beers. Appellant confirmed he and Mr. Bird ate dinner at the last bar they

visited.   Appellant also indicated he ate breakfast the morning of the

accident and had a snack around 10:00 a.m. before the motorcycle ride. On

Appellant’s way home from the last bar, he was driving behind two trucks—a

tractor-trailer and a tri-axle truck in the lead. Appellant had driven on Route

220 many times and knew the upcoming passing zone was the last


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opportunity he would have to pass the trucks before reaching his

destination.   Appellant was approximately 50-75 feet behind the tractor-

trailer when he decided to pass both trucks.       Appellant did not see any

oncoming traffic in the northbound lane, so he activated his left turn signal

and began the passing maneuver. Appellant admitted he was driving about

50 mph in a 45 mph zone to pass the trucks. After Appellant completed his

pass of the tractor-trailer, he stayed straight to pass the tri-axle truck.

Appellant then noticed the tri-axle truck had its left turn signal activated. At

that point, Appellant could not safely maneuver between the trucks due to

the limited amount of space.     Appellant also did not think he could safely

veer left into the gas station parking lot because that parking lot has

numerous large potholes. Appellant honked his horn to alert the driver of

the tri-axle truck that Appellant was trying to pass, but the vehicles collided

before Appellant had an opportunity to brake or slow down. (Id. at Exhibit 3

(Deposition of Appellant, 1/30/13); R.R. at 46a-67a).

      The EMS report indicated Appellant was alert upon the EMS crew’s

arrival.   The report stated Appellant admitted to alcohol use.     Aside from

Appellant’s admission, the report made no mention of Appellant’s alcohol use

or suggested Appellant was under the influence of alcohol. (Id. at Exhibit 4

(EMS report, 4/8/12); R.R. at 68a-72a).       The police crash report stated

police were dispatched to the accident scene at 7:26 p.m. and arrived at

7:32 p.m. The report indicated police spoke with Appellant at the accident


                                     -5-
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scene and did not suspect Appellant was under the influence of drugs or

alcohol. (Id. at Exhibit 5 (Police Crash Report, 4/7/12); R.R. at 73a-78a).

        Trooper Stempien testified at his deposition, inter alia, he spoke to

Appellant at the accident scene; and Appellant explained how he had

attempted to pass both trucks.       Trooper Stempien also interviewed Mr.

Vinson. Trooper Stempien confirmed he had no reason to believe, by smell

or otherwise, that Appellant was under the influence of drugs or alcohol.

(Id. at Exhibit 6 (Deposition of Trooper Stempien, 1/29/14); R.R. at 79a-

82a).

        The report from Robert Packer Hospital indicated Appellant’s toxicology

screen was negative except for alcohol.      (Id. at Exhibit 7 (Robert Packer

Hospital report, 4/11/12); R.R. at 83a-84a). Appellant’s laboratory results

stated the hospital drew Appellant’s blood at 9:10 p.m. (within two hours of

the accident), and Appellant’s blood alcohol level was 0.08%. (Id. at Exhibit

8 (Laboratory results, 4/7/12); R.R. at 85a). Dr. Hartman’s letter stated the

current methodology used to calculate Appellant’s blood alcohol level (as

reflected in the hospital and laboratory reports) uses only serum or plasma

and does not convert the specimen into a whole blood sample.           (Id. at

Exhibit 9 (Dr. Hartman letter, 7/23/13); R.R. at 86a).

        Dr. Lage’s expert report conceded Appellant’s blood alcohol level must

be converted to a whole blood sample to calculate Appellant’s blood alcohol

content (“BAC”) because serum levels are higher than whole blood by about


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J-A22037-16


16%. Using the proper whole blood conversion, Appellant’s BAC at the time

of the blood draw equaled 0.0706%. Dr. Lage’s report indicated Appellant is

5’11” and approximately 200 pounds. Dr. Lage’s report discussed how food

delays the absorption of alcohol and how beer acts as a food and delays the

absorption of alcohol.       Dr. Lage’s report described the typical effects of

alcohol on a person where the person’s BAC is between 0.05% and 0.10%.

Dr. Lage said Appellant’s BAC at the time of the blood draw was inconsistent

with the amount of alcohol Appellant admitted consuming.              Dr. Lage

estimated Appellant could have drunk approximately eleven beers on the

day of the accident. Dr. Lage’s report also stated the EMS personnel, airlift

crew, and hospital employees all detected an odor of alcohol on Appellant. 1

Using “relation back” calculations, Dr. Lage opined Appellant’s BAC was on

the decline at the time of the blood draw and was between 0.085% and

0.10% at the time of the accident, depending on when Appellant consumed

his final beer. Based on Dr. Lage’s calculation, he concluded Appellant was

impaired, incapable of safe driving at the time of the accident, and his

intoxication was a significant causative factor in the accident. (Id. at Exhibit

10 (Dr. Lage’s Expert Report, 5/8/14); R.R. at 87a-91a).

       Mr. Vinson testified, inter alia, he checked his rearview mirror

approximately twenty feet before turning left.        Mr. Vinson did not see
____________________________________________


1
 Nothing in the record supports Dr. Lage’s statement that Appellant had an
odor of alcohol on him at the time of the accident or thereafter.



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Appellant in his rearview mirror at that time. Mr. Vinson heard Appellant’s

horn as he began to make the left turn but, at that point, it was too late to

avoid a collision. Mr. Vinson said he slammed on his brakes but could not

escape the crash.        Mr. Vinson testified he did not see Appellant until a

fraction of a second before impact. (Id. at Exhibit 11 (Deposition of Darris

Vinson, 1/30/13); R.R. at 92a-97a).

       Appellant submitted a brief in support of his motion in limine on June

23, 2014. Appellees filed their brief opposing Appellant’s motion on August

11, 2014, along with the following seven exhibits: (1) Dr. Lage’s expert

report; (2) the full deposition testimony of Ronald Laxton, an eyewitness to

the accident; (3) Appellant’s full deposition testimony; (4) Carl Bird’s full

deposition testimony; (5) Trooper Stempien’s full deposition testimony; (6)

Mr. Vinson’s full deposition testimony; and (7) the EMS report.2

       At his deposition, eyewitness Mr. Laxton testified, inter alia, he saw

two large water trucks travelling on Route 220 on the day of the accident.

Mr. Laxton observed a motorcyclist attempting to pass both trucks and

thought to himself, “[L]ook at that fool, he’s gonna get hurt.”      (See Brief

Opposing Motion in Limine, filed 8/11/14, at Exhibit B (Deposition of Ronald

Laxton, 9/5/13, at 25); R.R. at 197a). Mr. Laxton acknowledged the passing

zone and said: “I don’t know if it was legal or not but I think it was kind of
____________________________________________


2
  Mr. Perry, the driver of the tractor-trailer, died before Appellant filed suit,
so no party was able to obtain his deposition testimony.



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J-A22037-16


stupid for what [Appellant] was trying to pass.”     (Id. 28; R.R. at 200a).

Notwithstanding the lawful passing zone, Mr. Laxton stated: “I wouldn’t pass

there. It’s not a safe place to pass.” (Id. at 29; R.R. at 201a). Mr. Laxton

explained there were a couple of accidents in that location in the past. Mr.

Laxton observed Appellant begin to pass the trucks before he entered the

lawful passing zone. Mr. Laxton said the tri-axle truck already had its turn

signal activated when Appellant initiated the pass.      Mr. Laxton thought:

“[L]ook at this sucker, he’s dead.” (Id. at 37; R.R. at 209a). Mr. Laxton

agreed Appellant could not have safely turned into the gas station parking

lot due to the potholes. After the collision, Mr. Laxton spoke to Appellant.

Appellant told Mr. Laxton “he [Appellant] fucked up.”     (Id. at 46; R.R. at

218a).

      In the full deposition transcript, Appellant’s friend Mr. Bird further

explained he had no concern about Appellant’s ability to drive safely on the

date of the accident because Appellant was acting “normal” and was not

slurring his words or exhibiting any other outward signs of intoxication. (Id.

at Exhibit D (Deposition of Carl Bird, 6/26/13, at 27); R.R. at 306a).

      In the full deposition transcript, Mr. Vinson said he spoke to Appellant

after the accident and asked if Appellant saw Mr. Vinson’s turn signal

activated, and Appellant responded affirmatively. Appellant told Mr. Vinson:

“[D]on’t worry about it, it’s my fault[.]”   (Id. at Exhibit F (Deposition of

Darris Vinson, 1/30/13, at 36); R.R. at 377a).     During his discussion with


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J-A22037-16


Appellant at the accident scene, Mr. Vinson made no observations

suggesting Appellant was under the influence of alcohol.

        Appellant filed a reply brief in support of his motion in limine on

September 18, 2014. The court held oral argument on the motion the next

day.     On September 24, 2014, Appellant submitted a report from Henry

Cifuni, an expert in motorcycle safety, indicating there was nothing Appellant

could have done differently to avoid the accident. Appellees submitted a sur

reply brief opposing the motion in limine on September 29, 2014. The trial

court denied Appellant’s motion in limine on December 9, 2014.

        Appellant proceeded to a jury trial on September 22, 2015.3 Based on

the earlier court’s pre-trial ruling, the jury heard all evidence related to

Appellant’s alcohol consumption. The next day, the jury returned a defense

verdict expressly finding Mr. Vinson was not negligent.           Consequently, the

jury did not address whether Appellant was contributorily negligent.

Appellant timely filed a motion for post-trial relief on September 28, 2015,

challenging the court’s ruling on his motion in limine and the admission at

trial of evidence related to his alcohol consumption.                 Following oral

argument, the court denied Appellant’s post-trial motion on December 1,

2015. On December 15, 2015, Appellant filed a praecipe for entry of final

judgment, which was entered that day.              Appellant timely filed a notice of

____________________________________________


3
    A different jurist presided over trial.



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appeal on December 21, 2015.          On January 6, 2016, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on January 15,

2016.

        Appellant raises two issues for our review:

           WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
           ERROR IN ITS ORDER OF DECEMBER 9, 2014, DENYING
           [APPELLANT’S] MOTION IN LIMINE TO EXCLUDE EVIDENCE
           OF HIS ALCOHOL CONSUMPTION PRIOR TO HIS MOTOR
           VEHICLE CRASH, WHERE THE EVIDENCE DID NOT
           REASONABLY ESTABLISH A DEGREE OF INTOXICATION
           WHICH PROVED HE WAS UNFIT TO DRIVE, AND WHERE
           THE EVIDENCE OF ALCOHOL CONSUMPTION WAS UNDULY
           PREJUDICIAL.

           WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
           ERROR IN ITS ORDER OF DECEMBER 1, 2015 DENYING
           [APPELLANT’S] MOTION FOR A NEW TRIAL BASED UPON
           THE INTRODUCTION OF EVIDENCE OF ALCOHOL
           CONSUMPTION, WHERE THE EVIDENCE ADMITTED AT
           TRIAL DID NOT REASONABLY ESTABLISH A DEGREE OF
           INTOXICATION WHICH PROVED HE WAS UNFIT TO DRIVE,
           AND WHERE THE EVIDENCE WAS UNDULY PREJUDICIAL.

(Appellant’s Brief at 4).

        Appellate review of the denial of a post-trial motion for a new trial is

guided by the following principles:

           The Superior Court’s standard for reviewing the trial
           court’s denial of a motion for a new trial is whether the
           trial court clearly and palpably abused its discretion or
           committed an error of law which affected the outcome of
           the case. We will reverse the trial court’s denial of a new
           trial only where there is a clear abuse of discretion or an
           error of law which controlled the outcome of the case. The
           trial court abuses its discretion when it misapplies the law
           or when it reaches a manifestly unreasonable, biased or

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J-A22037-16


          prejudiced result. Abuse of discretion may occur through
          an honest, but erroneous use of discretion. A new trial
          may not be granted merely because the evidence conflicts
          and the jury could have decided for either party. The
          grant of a new trial is appropriate, however, where the
          jury verdict may have been based on improperly
          admitted evidence.

                                       *       *    *

          Questions regarding the admissibility or exclusion of
          evidence are also subject to the abuse of discretion
          standard of review. Pennsylvania trial judges enjoy broad
          discretion regarding the admissibility of potentially
          misleading and confusing evidence.         Relevance is a
          threshold consideration in determining the admissibility of
          evidence. A trial court may, however, properly exclude
          evidence if its probative value is substantially outweighed
          by the danger of unfair prejudice. Generally[,] for the
          purposes of this evidentiary rule, “prejudice” means an
          undue tendency to suggest a decision on an improper
          basis. The erroneous admission of harmful or prejudicial
          evidence constitutes reversible error.

Whyte v. Robinson, 617 A.2d 380, 382-83 (Pa.Super. 1992) (emphasis in

original) (internal citations omitted).

       For purposes of disposition, we combine Appellant’s issues. Appellant

asserts that the mere fact of drinking alcohol is inadmissible in a civil

negligence case, unless the evidence establishes a degree of intoxication

which proves unfitness to drive.           Appellant admits he consumed six beers

over a six-to-seven-hour period before the accident.4 Appellant argues no

evidence showed he was unfit to drive.                  Appellant emphasizes the EMS
____________________________________________


4
  At his deposition, Appellant conceded he drank seven beers over that
timeframe.



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J-A22037-16


report, Robert Packer Hospital records, police crash report, deposition

testimony of Trooper Stempien, and accounts from all persons in contact

with Appellant after the accident made no mention of any indicators that

Appellant was intoxicated. Appellant claims the most significant evidence is

that he did not exhibit any of the classic signs of intoxication before, during,

or after the accident, such as glassy or bloodshot eyes, incoherent

mumbling, slurred speech, an odor of alcohol, or erratic behavior. Appellant

further highlights Mr. Bird’s deposition testimony that he did not believe

Appellant was intoxicated. Appellant contends his admission to consuming

beers and his blood alcohol test results establish only that he had been

drinking on the day of the accident, but not that he was unfit to drive.

Appellant submits there was similarly no evidence that Mr. Bird was

intoxicated on the day of the accident.

      Appellant rejects the “relation back” testimony and opinion of

Appellees’ expert, Dr. Lage, as wholly inconsistent with the other evidence of

record and as highly speculative, where Dr. Lage failed to account for

several variables which could have affected Appellant’s BAC. For example,

Dr. Lage failed to account for Appellant’s consumption of food at the last

establishment he visited before the accident, the fact that beer is absorbed

more slowly than other alcoholic beverages, and that the severe trauma of

the accident could have affected his absorption rate. Appellant contends Dr.

Lage offered nothing to support his assertion that Appellant’s blood alcohol


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J-A22037-16


level was declining at the time of the blood draw, which is particularly

troubling where Dr. Lage had no information regarding what time Appellant

had consumed his last beer.      Appellant submits the court erred when it

denied his motion in limine and allowed at trial evidence of his alcohol

consumption, as the admission of that evidence was unfairly prejudicial.

Appellant stresses the error was not harmless, because evidence of alcohol

consumption in a civil negligence case like his has a pernicious influence,

which might have led to the defense verdict. Appellant concludes this Court

must grant him a new trial. For the following reasons, we agree.

      Pennsylvania law makes clear: “[W]hile proof of intoxication is relevant

where reckless or careless driving of an automobile is the matter at issue,

the mere fact of drinking intoxicating liquor is not admissible, being unfairly

prejudicial, unless it reasonably establishes a degree of intoxication which

proves unfitness to drive.” Fisher v. Dye, 386 Pa. 141, 148, 125 A.2d 472,

476 (1956).      The “objective criteria normally required to establish

intoxication include evidence of staggering, stumbling, aimless wandering,

glassy eyes or incoherent mumbling.”       Locke v. Claypool, 627 A.2d 801,

804 (Pa.Super. 1993) (internal quotation marks omitted).

      An individual’s blood alcohol level can also be relevant circumstantial

evidence of intoxication.      Ackerman v. Delcomico, 486 A.2d 410

(Pa.Super. 1984). “However, blood alcohol level alone may not be admitted

for the purpose of proving intoxication.     There must be other evidence


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J-A22037-16


showing the actor’s conduct which suggests intoxication.” Id. at 414

(emphasis added). The “other” evidence necessary to render admissible a

BAC in excess of the legal limit “may also consist of expert testimony

interpreting the significance of the results of blood alcohol tests with respect

to unfitness to drive.” Gallagher v. Ing, 532 A.2d 1179, 1183 (Pa.Super.

1987), appeal denied, 519 Pa. 665, 548 A.2d 255 (1988).

          The rationale behind this rule is that when a person’s blood
          alcohol content exceeds [the legal limit], our legislature
          has determined that he is presumptively unfit to drive.
          The “presumption” of unfitness to drive, however, is
          inapplicable to civil cases, and a jury may not be instructed
          regarding the presumption. Therefore, expert testimony is
          helpful to explain the significance of a blood alcohol
          content above [the legal limit], without reference to the
          “presumption.”

Locke, supra at 805 (internal citations omitted).5       “[I]n cases that have

admitted blood alcohol tests, not only did independent evidence corroborate

an inference that the person was intoxicated, but his…blood alcohol level

was above…the statutorily presumptive level of unfitness to operate a
____________________________________________


5
  At the time of this Court’s decision in Locke, Gallagher, and other earlier
cases, the legal limit for driving under the influence (“DUI”) of alcohol was
0.10%. On September 30, 2013, the legislature lowered the legal limit to
0.08%. See 75 Pa.C.S.A. § 3731(a)(4)(i) (effective September 30, 2003 to
January 31, 2004).       The current legal limit (in effect at the time of
Appellant’s accident) remains 0.08%.         See 75 Pa.C.S.A. § 3802(a)(2)
(explaining under general impairment provision of statute, individual may
not drive, operate or be in actual physical control of movement of vehicle
after imbibing sufficient amount of alcohol such that alcohol concentration in
individual’s blood or breath is at least 0.08% but less than 0.10% within two
hours after individual has driven, operated or been in actual physical control
of movement of vehicle).



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vehicle.” Locke, supra at 804-05.

     In civil negligence cases, “there is no precise type or amount of

evidence necessary to establish the requisite degree of intoxication[.]”

Braun v. Target Corp., 983 A.2d 752, 760 (Pa.Super. 2009), appeal

denied, 604 Pa. 701, 987 A.2d 158 (2009). Nevertheless:

        [T]his Court has found the following intoxication evidence
        admissible as unfitness to perform the task at hand:
        Kraus v. Taylor, 710 A.2d 1142 (Pa.Super. 1998), appeal
        dismissed as improvidently granted, 560 Pa. 220, 743 A.2d
        451 (2000) (holding trial court properly admitted evidence
        of pedestrian’s alcohol consumption where (1) responding
        officer detected scent of alcohol on pedestrian’s breath
        following accident; (2) hospital measured pedestrian’s BAC
        level in excess of 0.25 percent within forty (40) minutes of
        accident; and (3) expert testimony established that, given
        BAC results, pedestrian’s judgment and motor skills would
        have been severely impaired at time of accident); Crosby
        v. Com., Dept. of Transp., [548 A.2d 281 (Pa.Super.
        1988), appeal denied, 522 Pa. 576, 559 A.2d 37 (1989)]
        (holding evidence revealed more than mere hint of
        intoxication where (1) officer testified he smelled odor of
        alcohol on plaintiff; (2) plaintiff’s BAC was 0.101 percent;
        (3) expert toxicologist opined plaintiff’s BAC rendered him
        unfit to drive; and (4) plaintiff was familiar with road, but
        drove off of it, straight into tree); Ackerman, supra
        (holding trial court properly admitted evidence of
        intoxication, and such evidence was not prejudicial where
        (1) plaintiff’s girlfriend and roommate stated plaintiff had
        been drinking beer since late afternoon on day of accident;
        (2) defendant and medical personnel testified plaintiff
        strongly smelled of beer; (3) plaintiff’s BAC was 0.195
        percent; (4) hospital records revealed plaintiff admitted
        drinking heavily; and (5) plaintiff had slurred speech and
        low level of alertness following accident).

Braun, supra at 761 (holding evidence demonstrated more than mere hint

of intoxication where (1) Mr. Braun consumed alcohol throughout day before


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accident; (2) witnesses observed Mr. Braun drink beer at lunch shortly

before accident; (3) Mr. Braun ascended eighteen feet above ground on

scissor lift and failed to tie off, even though safety equipment on railed

platform was readily accessible to him; (4) Mr. Braun inexplicably and

unnecessarily stepped off railed platform onto eight inch wide steel beam;

(5) Mr. Braun’s BAC was 0.27%; and (6) expert opined Mr. Braun’s high BAC

would render him physically and behaviorally impaired and drastically

increase his risk of falling). See also Gallagher, supra (holding evidence

of alcohol consumption was admissible where evidence showed (1) decedent

had been drinking scotch for approximately 1½ hours before getting in car

to drive home; (2) several witnesses observed decedent driving at high rate

of speed on dark, winding, and hilly road approximately one mile from

accident scene; (3) decedent’s BAC was 0.18%; (4) expert testified

extensively regarding significance of such high alcoholic content with respect

to decedent’s ability to drive safely). Compare Vignoli v. Standard Motor

Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965) (holding evidence of

alcohol consumption was inadmissible where only evidence of driver’s

intoxication was his admission to consuming two beers prior to driving and

several hours had elapsed between alcohol consumption and accident; and

(2) two people stated driver was acting “funny” at accident scene; such

evidence falls far short of reasonably establishing requisite degree of

intoxication); Locke, supra (holding evidence of alcohol consumption was


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inadmissible where only evidence of plaintiff’s intoxication was (1) officer’s

testimony that he smelled odor of beer emanating from ambulance which

housed plaintiff at scene of accident; (2) blood test indicating plaintiff’s BAC

was 0.06%, which was below statutory limit; and (3) testimony from expert,

who   extrapolated    test   results   and      concluded   plaintiff   would   have

exaggerated reaction to alcohol because he was underage; significantly,

plaintiff exhibited no physical signs to indicate he was unfit to operate his

bicycle, such as riding his bike erratically, slurring his speech, or otherwise

appearing intoxicated; sole independent evidence which might indicate

plaintiff was intoxicated was police officer’s testimony that he smelled beer

emanating from plaintiff; without more, however, this evidence proves only

that plaintiff consumed alcohol; it is insufficient to prove intoxication).

      This Court has viewed with skepticism expert testimony in civil cases

that extrapolates (or “relates back”) blood test results.               Id. at 805

(explaining expert’s “relation back” testimony that plaintiff’s BAC was

between 0.075% and 0.08% at time of accident is entirely speculative and

highly prejudicial where plaintiff’s BAC at time of blood draw was below

statutory legal limit and absent any objective indicia plaintiff was unfit to

operate   bicycle).    See    also     generally    Whyte,     supra     (discussing

speculative nature of “relation back” testimony).

      Instantly, the evidence presented to the court in Appellant’s motion in

limine, and in Appellees’ opposition showed: Appellant and Mr. Bird met


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between 12:00 p.m. and 1:00 p.m. on the date of the accident for a

motorcycle day-trip. During their ride, Appellant and Mr. Bird stopped at six

bars. Appellant and Mr. Bird consumed one beer each at the first five bars.

At the last establishment, Appellant consumed two 12-ounce Michelob Ultra

light beers.   Appellant and Mr. Bird ate dinner at the last establishment.

Appellant and Mr. Bird departed the last bar at approximately 7:00 p.m. to

go home. Mr. Bird had no concern about Appellant’s ability to drive safely

because Appellant was acting “normal” and was not slurring his words or

exhibiting any other outward signs of intoxication.

      While driving home on Route 220, Appellant noticed two trucks in front

of him—a tractor-trailer and a tri-axle truck in the lead.       Appellant was

familiar with Route 220, as he had previously travelled that road numerous

times. Appellant knew the upcoming legal passing zone would be his only

opportunity to pass the trucks before arriving at his destination, so Appellant

activated his left turn signal and began to pass both trucks. After Appellant

successfully completed his pass of the tractor-trailer, Appellant noticed the

tri-axle truck had its left turn signal activated. Appellant pressed his horn to

alert Mr. Vinson but neither of them was able to avoid the collision. Henry

Cifuni, an expert in motorcycle safety, opined there was nothing Appellant

could have done differently to avoid the accident.

      Ronald Laxton witnessed the accident. Mr. Laxton acknowledged the

lawful passing zone, but he said the passing zone is not well situated and


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pointed out that other accidents occurred in that location.       Mr. Laxton

thought Appellant was a “fool” and “stupid” for trying to pass the trucks. Mr.

Laxton conceded Appellant could not have safely veered left into the gas

station parking lot because of the potholes and rough terrain.      After the

collision, Mr. Laxton spoke to Appellant; Appellant told Mr. Laxton “he

[Appellant] fucked up.”     Mr. Laxton did not mention any behavior by

Appellant that would suggest Appellant was under the influence of alcohol.

      Mr. Vinson spoke to Appellant at the accident scene and called 911.

During their conversation, Appellant said: “[D]on’t worry about it, it’s my

fault.” Mr. Vinson did not notice any signs indicating Appellant was under

the influence of alcohol.    EMS personnel arrived at the scene shortly

thereafter.   Appellant was alert during treatment and admitted to alcohol

use. No member of the EMS crew noted that Appellant displayed any signs

indicating he was under the influence of alcohol or otherwise impaired.

Trooper Stempien spoke with Appellant at the accident scene. During their

conversation, Appellant explained what took place. Trooper Stempien made

clear during his deposition he had no reason to believe Appellant was under

the influence of alcohol.

      Appellant was airlifted to Robert Packer Hospital.        The hospital

performed a toxicology screen which tested negative except for alcohol. A

blood draw taken within two hours of the accident showed a blood alcohol

level of 0.08%.   Dr. Hartman confirmed that the current methodology for


                                    - 20 -
J-A22037-16


analyzing Appellant’s blood draw (as reflected in the hospital and laboratory

reports) uses only serum or plasma.

      Appellees’ expert, Dr. Lage, conceded in his expert report that

Appellant’s blood alcohol level must be converted to a whole blood sample to

calculate the proper BAC because serum levels are higher than whole blood

by about 16%. Using the proper conversion, Appellant’s BAC at the time of

the blood draw equaled 0.0706%.         Dr. Lage said the level of alcohol in

Appellant’s blood at the time of the blood draw is inconsistent with the

amount of alcohol Appellant admitted consuming.          Dr. Lage estimated

Appellant must have drunk approximately eleven beers prior to the accident.

Dr. Lage’s report also erroneously stated the EMS personnel, airlift crew, and

hospital employees all detected an odor of alcohol on Appellant, which is

inconsistent with the record.    Using “relation back” calculations, Dr. Lage

opined Appellant’s BAC was on the decline at the time of the blood draw and

was between 0.085% and 0.10% at the time of the accident, depending on

when Appellant consumed his final beer, which Dr. Lage did not know.

Based on this calculation, Dr. Lage opined Appellant was incapable of safe

driving at the time of the accident, and Appellant’s intoxication was a

significant causative factor in the accident.

      Under these facts, we cannot agree with the trial court’s decision that

the evidence presented reasonably establishes a degree of intoxication which

demonstrated Appellant was unfit to drive.        See Fisher, supra.      The


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deposition testimony from Appellant and Mr. Bird unequivocally establish the

men drank beer over a six-to-seven-hour period on the day of the accident;

such testimony, however, proves only that Appellant consumed alcohol and

is insufficient to prove intoxication.    See Locke, supra.       Following the

accident, Appellant spoke with numerous individuals including Mr. Vinson,

Mr. Laxton, EMS personnel, Trooper Stempien, an airlift crew, and hospital

employees. None of these people indicated that Appellant displayed any of

the classic signs of intoxication such as glassy eyes, an odor of alcohol, or

incoherent mumbling. See id.

      Additionally, Mr. Laxton’s opinion that Appellant was a “fool” and

“stupid” for trying to pass both trucks simply suggests Appellant’s poor

judgment.    Appellant’s comment to Mr. Laxton that Appellant “fucked up”

and his statement to Mr. Vinson accepting fault similarly do not tend to

prove intoxication, only Appellant’s poor judgment in his passing maneuver.

See id. at 804 n.2 (rejecting trial court’s consideration of plaintiff’s “lack of

prudent judgment” in riding bicycle in dark on major highway at 2:10 a.m.

without reflectors as evidence of intoxication; whether plaintiff acted with

prudent judgment is matter of contributory negligence which jury must

decide; evidence of plaintiff’s poor judgment does not necessarily show he

acted under effects of alcohol).

      Appellant’s whole-blood-conversion BAC, taken at the hospital within

two hours of the accident, was 0.0706%, according to Dr. Lage, which is


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J-A22037-16


below the legal limit in Pennsylvania. See 75 Pa.C.S.A. § 3802(a)(2). To

admit Appellant’s BAC results in this case, therefore, required additional

conduct of Appellant suggesting intoxication.6 See Ackerman, supra. Dr.

Lage’s expert testimony interpreting and explaining the effects of alcohol on

a person with this low BAC cannot, on its own, constitute the requisite

“other” evidence, where Appellant’s BAC at the time of the blood draw was

below the statutory legal limit.         Compare Coughlin v. Massaquoi, 138

A.3d 638 (Pa.Super. 2016), appeal granted, ___ Pa. ___, 144 A.3d 925

(2016) (holding expert’s testimony that pedestrian/decedent’s BAC of

0.313% rendered him unfit to cross safely four-lane avenue intersection at

night was sufficient corroborating evidence for admission of his BAC result) 7;

Braun, supra (holding evidence demonstrated more than mere hint of

intoxication where, inter alia, Mr. Braun’s BAC was 0.27%, and expert

opined Mr. Braun’s high BAC would render him physically and behaviorally

impaired and drastically increase his risk of falling); Gallagher, supra

(holding evidence of alcohol consumption was admissible where evidence

showed, inter alia, decedent’s BAC was 0.18%, and expert testified
____________________________________________


6
  At trial, Appellant produced expert testimony from forensic toxicologist Dr.
Michael Coyer, who testified Appellant’s BAC at the time of the blood draw
was 0.069% using the proper conversion rate. The experts agreed at trial
that the difference in their calculations was statistically insignificant.
7
  On August 24, 2016, our Supreme Court granted allowance of appeal in
Coughlin to decide whether the trial court erred by admitting the
pedestrian/decedent’s BAC results and the expert’s testimony.



                                          - 23 -
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extensively regarding significance of such high alcoholic content with respect

to decedent’s ability to drive safely).

       Further, we cannot accept that Dr. Lage’s opinion itself was the

sufficient “other” evidence of Appellant’s intoxication.      Importantly, Dr.

Lage’s expert report misstates facts of record.       Dr. Lage’s report falsely

states the EMS team, airlift crew, and hospital employees all detected an

odor of alcohol on Appellant. (See Appellant’s Motion in Limine at Exhibit 10

(Dr. Lage’s Expert Report at 4); R.R. at 90a). The record, however, belies

that premise.      Moreover, we cannot know if Dr. Lage relied on his own

misstatement when he conducted his “relation back” analysis.8           In this

scenario, Dr. Lage’s “relation back” testimony is simply too speculative and

highly prejudicial, where Appellant’s BAC at the time of the blood draw was

below the statutory limit, there was no other objective indicia Appellant was

unfit to drive, or any record evidence of when Appellant consumed his last

beer.9   See Locke, supra; Whyte, supra.           For these reasons, the trial

____________________________________________


8
  Appellant’s expert Dr. Coyer hotly disputed Dr. Lage’s conclusions at trial.
Dr. Coyer opined Appellant’s BAC level was rising following the accident and
calculated Appellant’s BAC at the time of the accident as less than 0.05%,
possibly 0.03% or 0.04%. Appellant did not retain Dr. Coyer until closer to
trial so his findings do not appear in the filings relevant to the motion in
limine.
9
  Appellant properly preserved his challenge to Dr. Lage’s “relation back”
testimony and report in Appellant’s motion in limine and supporting brief, so
he did not need to renew his objection at trial. See Pa.R.E. 103(b) (stating:
“Once the court rules definitively on the record—either before or at trial—a
(Footnote Continued Next Page)


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court should have excluded from trial any reference to alcohol consumption

by Appellant or Mr. Bird or that they visited bars on the date of the accident.

See Vignoli, supra; Locke, supra; Whyte, supra. See also Morreale v.

Prince, 436 Pa. 51, 53, 258 A.2d 508, 508-09 (1969) (stating: “In terms of

the possible prejudice there is no functional difference between evidence

that a litigant was drinking and evidence that he was in a bar. Both pieces

of evidence give rise to the insidious inference that the individual involved

was intoxicated or under the influence of alcohol, which inference, without

some proof of intoxication, has no role to play in any case”).

      As the jury verdict here could have been affected by the improperly

admitted evidence, we cannot agree the error was harmless. The potentially

pernicious effect of admitting evidence of alcohol consumption in this case

warrants a new trial.        See Whyte, supra (stating trial court’s erroneous

admission of harmful and prejudicial evidence of alcohol consumption, with

its potentially pernicious effects, warranted new trial).    See also Locke,

supra (explaining that, without independent evidence to corroborate

defendant’s contention that plaintiff was intoxicated while operating his

bicycle, possibility was too great that jury placed undue emphasis on mere

                       _______________________
(Footnote Continued)

party need not renew an objection or offer of proof to preserve a claim of
error for appeal”); Blumer v. Ford Motor Co., 20 A.3d 1222 (Pa.Super.
2011), appeal denied, 616 Pa. 649, 49 A.3d 441 (2012) (explaining that
under Rule 103, ruling on merits of motion in limine on record is sufficient to
preserve issue for appeal, without renewal of objection at trial).



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fact that plaintiff had consumed alcohol on evening of accident).

      Based upon the foregoing, we hold the evidence presented in this civil

negligence case failed to establish a degree of intoxication reasonably

demonstrating Appellant’s unfitness to drive, notwithstanding Appellant’s

admission to drinking alcohol of the date of the accident. Therefore, the trial

court erred when it denied Appellant’s motion in limine and allowed at trial

any evidence of Appellant’s or Mr. Bird’s alcohol consumption or visits to

bars on the day of the accident, including Appellant’s BAC results and expert

testimony discussing those results.         The erroneous admission of this

evidence was not harmless error under the facts of this case, and Appellant

should have a new trial. Accordingly, we reverse and remand.

      Judgment     reversed;    case    remanded   for   further    proceedings.

Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2016




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