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Billy Kaye Wheaton and Becky Jo Childers v. Tom Bradford and Dane Bradford

May 7, 2013

BILLY KAYE WHEATON AND BECKY JO CHILDERS, CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF MARGARET HOWARD, AND BILLY WHEATON AND BECKY CHILDERS, INDIVIDUALLY, PLAINTIFFS AND APPELLANTS,
v.
TOM BRADFORD AND DANE BRADFORD, CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JOHN BRADFORD, DEFENDANTS AND APPELLEES.



APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DV 10-113 Honorable Blair Jones, Presiding Judge

The opinion of the court was delivered by: Jim Rice

Submitted on Briefs: January 3, 2013

Decided: May 7, 2013

Filed:

Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 Plaintiffs Billy Kaye Wheaton and Becky Jo Childers, co-personal representatives of the Estate of Margaret Howard (collectively "Howards"), filed a wrongful death and survivorship action against the co-personal representatives and the Estate of John Bradford (collectively "Bradfords"), alleging negligence. A jury found that John Bradford (John) was not liable in negligence for the death of Margaret Howard (Margaret). Howards appeal from the judgment entered in favor of the Bradfords. We affirm and address the following issues:

¶2 1. Did the District Court err by permitting the defense expert to offer opinions, including video simulations, without a sufficient evidentiary foundation?

¶3 2. Did Bradfords violate the Montana Rules of Civil Procedure by failing to supplement the disclosure of the defense expert?

¶4 3. Did the District Court err by denying Howards' motion for a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On June 12, 2010, Margaret was driving south and John was driving north on U.S. Highway 212, a two-lane highway, south of Red Lodge. The two vehicles collided, coming to rest along the fog line in Margaret's southbound lane. Neither Margaret nor John survived, and there were no witnesses who could testify to the events leading up to the crash.*fn1 Local resident Julia Higgins (Higgins) arrived at the scene shortly after the accident and provided a witness statement to Montana Highway Patrol (MHP). MHP troopers investigated the accident and ultimately prepared a report.

¶6 At her deposition, Higgins stated that she was traveling south on Highway 212. She said she saw John's truck approaching in the northbound lane but did not see Margaret's vehicle until she after she had arrived at the scene of the accident. Higgins said the crash occurred on a section of Highway 212 that was obscured by a small rise when traveling southbound. Howards' counsel asked: "Do you have any memory of seeing [Margaret's] car before the accident at all?" to which Julia responded, "No. Never saw it."

¶7 Both parties sought to reconstruct the accident. Howards retained two accident reconstructionists, but did not present the testimony of either at trial. Instead, they presented a partial accident reconstruction prepared by Trooper Hensley, who testified that, based on the final resting position of the vehicles, his opinion was that John's vehicle crossed the center line and hit Margaret's vehicle in the southbound lane.

¶8 Dr. Harry Townes (Townes), an engineer, was retained by Bradfords to reconstruct the accident. Townes visited the accident scene to take measurements and make observations. Townes used a computer program called the Engineering Dynamics Simulation Model of Automobile Collisions Version 4 (EDSMAC4) to simulate events leading up to the accident. The computer program pairs known variables with unknown pre-collision variables and runs trial scenarios to identify vehicle conditions before the accident. When a simulation of combined known and unknown variables results in a match of the known final resting positions of the vehicles, that combination of pre-collision conditions is considered, in Townes' opinion, to be a viable explanation of the vehicle trajectory leading to the accident.

ΒΆ9 Townes' expert witness disclosure statement included his opinion that Margaret "made an excursion into the northbound lane" and John "made an evasive maneuver" to avoid Margaret's oncoming vehicle. Townes' disclosure stated that he formed his opinion based upon the computer simulation results that incorporated MHP measurements and his measurements taken from the accident scene, the physical dimensions and weights of the vehicles, and data from the airbag control module in Margaret's vehicle. Townes' ...


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