2013 UT App 199

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

T RACIE P. J OHNSON

, Plaintiff and Appellee,

v.

L UZ A DRIONA M ONTOYA

, Defendant and Appellant.

Opinion

No. 20120223

‐ CA

Filed August 8, 2013

Third District, Salt Lake Department

The Honorable John Paul Kennedy

No. 080920603

Scott W. Christensen and Joel D. Taylor, Attorneys

for Appellant

David R. Ward, Steven R. Bangerter,

William E. Frazier, and Daniel P. Wilde, Attorneys

for Appellee

J UDGE G REGORY K. O RME authored this Opinion, in which J UDGES

J. F REDERIC V OROS J R

. and M ICHELE M. C HRISTIANSEN concurred.

ORME, Judge:

¶1 Luz Montoya appeals the trial court’s denial of her motion

for a new trial, arguing that the trial court abused its discretion in

permitting certain expert testimony. We affirm.

BACKGROUND

¶2 In August 2007, Montoya was driving northbound on I

‐ 15

in Salt Lake County. She entered a lane that was already occupied

by a tractor

‐ trailer being driven by Tracie Johnson. The twoJohnson v. Montoya

20120223

‐ CA 2013 UT App 199 2 collided, and Johnson was injured. Johnson sued for damages, and

the matter went to trial.

¶3 A vocational expert appeared on behalf of Johnson and

testified that the extent of Johnson’s injuries shortened her work

life and decreased her future earning capacity by at least 50%

and by as much as 69%. The vocational expert reached her

conclusions based on her own observations of Johnson, Johnson’s

medical records, accident reports, worker’s compensation records,

questionnaires she developed for the purpose of assessing

functionality, and employment data from sources that included the

American Community Survey and the Current Population Survey.

Montoya challenged the foundation of the vocational expert’s

testimony and was given the opportunity to conduct voir dire of

the expert outside of the jury’s presence. After some questioning,

the court overruled Montoya’s objections, stating, “Well, I think

we’ve taken enough time.

. . . [The vocational expert has] also

testified with respect to why she thinks that this particular study,

among others, applies. So I’m going to allow her to continue to

testify.”

¶4 An economic expert also testified for Johnson. He calculated

the earnings and benefits that Johnson would likely have earned

over the course of her career, had the injury not occurred, to be

$962,000 in future earnings and $277,879 in fringe benefits. He then

reduced that number by 50% based on the vocational expert’s

findings that Johnson’s future earning capacity had been reduced

by at least half. Based on that calculation, the economic expert

testified that Johnson’s injuries from the accident caused her a loss

of at least $619,955. Montoya objected to the economic expert’s

testimony, but the objection was overruled.

¶5 The jury found Montoya negligent and awarded Johnson

$475,725.16 in damages. Montoya made a motion for judgment

notwithstanding the verdict or, in the alternative, for a new trial.

Both motions were denied by the trial court. Montoya appeals.Johnson v. Montoya

20120223

‐ CA 2013 UT App 199 3 ISSUES AND STANDARDS OF REVIEW

¶6 Montoya argues that the trial court abused its discretion

when it permitted both experts to testify over her objections. A trial

court’s decisions about the admissibility of expert testimony are

reviewed for abuse of discretion. State v. Adams

, 2000 UT 4, ¶ 9, 5

P.3d 642.

¶7 Montoya also argues that the court improperly denied her

motion for a new trial. Rule 59 of the Utah Rules of Civil Procedure

gives trial courts “broad discretion to grant or deny a motion for a

new trial.” Crookston v. Fire Ins. Exch.

, 817 P.2d 789, 804 (Utah 1991).

A trial court’s denial of such a motion will be upheld unless there

“is no reasonable basis for the decision.” Id. at 805.

ANALYSIS

I. Admission of the Expert Witness Testimony

¶8 The admissibility of expert testimony is governed by rule

702 of the Utah Rules of Evidence. Witnesses qualified as experts

may testify “in the form of an opinion or otherwise if the expert’s

scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in

issue.” Utah R. Evid. 702(a). For an expert’s testimony to be

admissible, there must be a “threshold showing” that the principles

or methods forming the basis of the testimony (1) are “reliable,” (2)

are “based upon sufficient facts or data,” and (3) “have been

reliably applied to the facts.” Id. R. 702(b). This “threshold

showing” is met if the principles and methods used and their

application to the facts of the case are “generally accepted by the

relevant expert community.” Id. R. 702(c). Trial courts perform an

“important gatekeeping function” by screening out unreliable

expert testimony and ensuring that “only reliable expert testimony

will be presented to the jury.” Gunn Hill Dairy Props.

, LLC v. Los

Angeles Dep’t of Water & Power

, 2012 UT App 20, ¶ 31, 269 P.3d 980.Johnson v. Montoya

20120223

‐ CA 2013 UT App 199 4 To that end, trial courts are granted “broad discretion in that role,”

and we “will reverse [a trial court’s] decision only when it exceeds

the bounds of reasonability.” Id. (citation and internal quotation

marks omitted). See State v. Maestas

, 2012 UT 46, ¶ 122, 299 P.3d 892

(“We review a trial court’s decision to admit expert testimony for

an abuse of discretion and find error only if no reasonable person

would take the view the trial court adopted.”).

¶9 Montoya challenges the trial court’s decision to admit the

testimony of both the vocational expert and the economic expert.

She argues that the court’s decision to admit the testimony of the

vocational expert was an abuse of its discretion for two

reasons—first, because the methods employed by the vocational

expert were unreliable, and second, because the methodology was

not reliably applied to the facts of the case. Montoya argues that

because the testimony of the economic expert was based in part on

the testimony of the vocational expert, it too was admitted in

error. We address each of these arguments in turn.

A. Reliability of the Vocational Expert’s Testimony

¶10 Montoya argues that because the vocational expert “never

testified that her methodology was subject to peer review, and

never addressed whether there was any known potential rate of

error,” her methodology “lacked the foundational requirements to

ensure that her opinions had a reasonable degree of certainty.”

Montoya, however, misstates the standard that an expert’s

methodology must meet for admissibility. The Utah Rules of

Evidence do not require expert testimony to exhibit a “reasonable

degree of certainty” to be admissible but only a “threshold

showing” of reliability. Utah R. Evid. 702(b). This threshold

requirement “requires only a basic foundational showing of indicia

of reliability.” Id. R. 702 advisory committee note.

¶11 Montoya specifically calls into question the reliability of the

questionnaires that the vocational expert developed and used toJohnson v. Montoya

1. Administered by the United States Census Bureau, the American

Community Survey is an “ongoing survey that provides

data every year” about an expansive range of topics

relating to the make

‐ up and well

‐ being of the general

population. See American Community Survey

, United States

Census Bureau, http://www.census.gov/acs/www/about_the_sur

‐ vey/american_community_survey/ (last visited July 29, 2013).

2. The Current Population Survey “is a monthly survey of

households” administered by the United States Bureau of Labor

Statistics and “provides a comprehensive body of data on the labor

force, employment, unemployment, persons not in the labor force,

hours of work, earnings, and other demographic and labor force

characteristics.” Labor Force Statistics from the Current Population

(continued...)

20120223

‐ CA 2013 UT App 199 5 assess Johnson’s functional limitations because no testimony was

presented to show that the questionnaires were subjected to peer

review or to demonstrate the questionnaires’ potential rate of error.

Montoya’s argument overlooks the fact that the vocational expert

testified that the information she gathered through the use of her

own questionnaires was consistent with other evidence not

challenged here, such as the medical and worker’s compensation

reports as well as the vocational expert’s own observations of

Johnson. In the context of its evaluation of the vocational expert’s

credentials and experience, we cannot say that the trial court

exceeded “the bounds of reasonability,” see Gunn Hill

, 2012 UT

App 20, ¶ 31, by determining that the questionnaires developed by

the vocational expert to assess a client’s functionality and the

responses Johnson provided were supported by a “basic

foundational showing of indicia of reliability,” see Utah R. Evid. 702

advisory committee note, particularly when the results of the

questionnaires are supported by other evidence.

¶12 Montoya also takes issue with the vocational expert’s

reliance on statistics gathered through the American Community

Survey 1 and the Current Population Survey. 2 While she does notJohnson v. Montoya

2. (...continued)

Survey

, Bureau of Labor Statistics, http://www.bls.gov/cps/ (last

visited July 29, 2013).

20120223

‐ CA 2013 UT App 199 6 appear to challenge the reliability or validity of the two surveys

themselves, Montoya essentially argues that there was an

insufficient showing that the vocational expert’s use of these

surveys in formulating opinions is a reliable and generally accepted

methodology in the field of vocational rehabilitation. We disagree.

¶13 The vocational expert testified that she knows “numerous

individuals in [her] profession that use this data to help persons

understand the impact of functional limitation or disability on their

ability to get a job” and that these surveys are “ the source of

employment experiences of persons in the United States. There

isn’t any other—there’s not any other source.” (Emphasis in

transcript.) She also testified that in addition to being the sole

source of the statistics that the federal government routinely relies

on, the surveys are the “primary sources that [vocational experts]

use” in making determinations about “not only employment

experience, but also wages and how long a person stays in the

work force.” We conclude that the trial court did not abuse its

discretion when it admitted the vocational expert’s testimony

because there was a “threshold showing” that her use of the

surveys as part of her methodology was reliable and generally

accepted in her field. While Montoya’s expert witness criticized the

vocational expert’s methodology as being too general and stated

that he was unaware of anyone else in the field of vocational

rehabilitation who uses the surveys as part of their methodology,

rule 702 “is broad enough to permit testimony that is the product

of competing principles or methods in the same field of expertise.”

Utah R. Evid. 702 advisory committee note. Indeed, “[c]ontrary and

inconsistent opinions may simultaneously meet the threshold; it is

for the factfinder to reconcile—or choose between—the different

opinions.” Id. We conclude that the vocational expert’s testimony

that the surveys are used by others in her field satisfies the

required “basic foundational showing of indicia of reliability.” Id.Johnson v. Montoya

20120223

‐ CA 2013 UT App 199 7 B. Application to the Facts

¶14 Montoya next argues that the vocational expert “relied upon

non

‐ existent facts for her foundation when testifying that Johnson

would have a shortened work life and that her lost earning capacity

would be reduced by 50% to 69%.” Montoya’s argument centers on

the fact that the vocational expert assumed and subsequently

testified that Johnson would have answered “yes” to question 18b

of the American Community Survey and question 4 of the Current

Population Survey. The question in both surveys asks, “Does

anyone have serious difficulty walking or climbing stairs?” An

affirmative answer to this question would have placed Johnson

within the American Community Survey’s “ambulatory disability”

category and would change the statistics from both surveys that

would be relevant to Johnson’s situation. Montoya argues that

there is nothing in the record to support the vocational expert’s

contention that Johnson has serious difficulty going up or down

stairs and, therefore, that the statistics the vocational expert

considered were not reliably applied to the facts in this case.

¶15 We conclude that there is sufficient evidence in the record

to support the proposition that Johnson has serious difficulty

walking up and down stairs and would have so answered had

questions 18b and 4 been put to her. Johnson herself testified at

trial that she has “a hard time even just going up stairs by myself”

and has to “calculate my steps and make sure that my foot is set so

that my ankle will not roll out on my left foot.” She also testified

that part of her left leg is “dead numb,” that she cannot play soccer

with her son, and that she is no longer able to go dancing with her

husband. Given Johnson’s testimony, we cannot conclude that “no

reasonable person would take the view the trial court adopted,” see

State v. Maestas

, 2012 UT 46, ¶ 122, 299 P.3d 892, when it permitted

the vocational expert’s testimony, based in part on her conclusion

that Johnson had serious difficulty walking up stairs, rather than

striking it for lack of foundation.Johnson v. Montoya

20120223

‐ CA 2013 UT App 199 8 ¶16 Montoya also argues that the statistics relied upon by the

vocational expert were too general to be reliably applied to the

facts of this case because the statistics provided by the American

Community Survey and Current Population Survey are calculated

at a national level and include people with a large range of

functional abilities and injuries. Montoya relies on then

‐ Chief

Justice Durham’s opinion in State v. Barzee

, 2007 UT 95, 177 P.3d 48,

for support. In Barzee

, the Utah Supreme Court ruled on the

admissibility of expert testimony concerning whether the

defendant could be restored to competency if involuntarily

medicated. Id. ¶¶ 1, 3. Chief Justice Durham stated, “I am

persuaded that the State witnesses lacked adequate foundation for

their opinions in many respects, including a reliance on general

statistics rather than statistics particular to the defendant.” Id. ¶ 51

(opinion by Durham, C.J.). She also stated, “I am not persuaded

that the rates of restoration for the general population at the state

hospital would have any bearing on [the defendant’s] particular

case without any showing that the population resembled [the

defendant].” Id. ¶ 53. Although Chief Justice Durham’s statements

were made in a part of her lead opinion that did not enjoy majority

support, they cannot, on that basis alone, be summarily dismissed.

A majority of justices in Barzee apparently agreed that general

statistics cannot be used in isolation and without regard to

information specific to the relevant individual. See id. ¶¶ 91–93

(opinion by Durrant, J.). The majority did conclude, however, that

because the State’s experts used general statistics in combination

with their own first

‐ hand knowledge to support their conclusions,

the testimony was admissible. Id. ¶ 92 (“Futhermore, we conclude

that the State’s experts did not disregard [the defendant’s]

particular case, although it is true that they relied on federal and

state statistics taken from general hospital populations.”). We

believe the same analysis applies here.

¶17 While statistics more narrowly tailored to Johnson’s specific

field of work, capabilities, location, injuries, and functional

limitations may have made the vocational expert’s testimony all the

more reliable, we conclude that the trial court did not abuse itsJohnson v. Montoya

20120223

‐ CA 2013 UT App 199 9 discretion when it permitted testimony based only in part on

general statistics from the American Community Survey and

Current Population Survey. The vocational expert testified that she

came to her conclusions after relying on her own assessment of

Johnson, Johnson’s medical records, accident reports, worker’s

compensation records, and multiple sources of employment data

and demographic information of which the American Community

Survey and Current Population Survey, while certainly key pieces

of her methodology, were just two. When asked about her reliance

on the surveys, the vocational expert testified:

I also am looking at the individual to see what she’s

doing. We can’t just use broad statistics to say what’s

going to happen, you know? That’s why we do a

vocational assessment; we look at every—every

aspect of an individual and then determine what

impact this particular limitation has on the

individual.

When asked on cross

‐ examination if the statistics related to the

employability of persons with disabilities, including disabilities as

severely limiting as quadriplegia, were actually relevant to

assessing the employability of a person in Johnson’s situation, the

vocational expert responded:

First of all, I did not lump her in with those kinds of

persons because

. . . based on the criteria, she is an

individual with a non

‐ severe work disability. These

folks that you’re talking about have

. . . a severe

disability and would be highly unlikely to even be

working.

. . . Secondly, my profession is not a science

like engineering, and there are human factors that we

take into consideration, which I did in this particular

case.

The vocational expert further testified that “[b]ecause the American

Community Survey tracks labor force participation ofJohnson v. Montoya

20120223

‐ CA 2013 UT App 199 10 individual[s of] various ages, various educational achievements,”

and because “it shows us that persons that have different

functional limitations have a different experience in the labor

force,” it is a resource for determining what type of future

employment experience Johnson might be likely to have. She

explained, “[T]his is why we look at things in terms of a range. We

can’t just pinpoint and say this is exactly where she is. But it helps

us understand what the changes are in a person’s ability to

participate in the labor force.” We conclude that the vocational

expert did not rely on general statistics in isolation, and thus, that

the trial court did not abuse its discretion in finding that there were

sufficient “indicia of reliability” to make a threshold showing that

the expert’s methodology was reliably applied to the facts. See Utah

R. Evid. 702 advisory committee note.

C. The Economic Expert

¶18 Montoya argues that the economic expert’s testimony was

also admitted in error because it was based in part on the

conclusions of the vocational expert. Because we determine that the

vocational expert’s testimony was admissible and no other

challenge has been made to the economic expert’s testimony, we

conclude that the trial court did not abuse its discretion when it

admitted this testimony as well.

II. Motion for New Trial

¶19 Rule 59 of the Utah Rules of Civil Procedure grants the trial

court discretion to grant or deny a motion for a new trial. Utah

R. Civ. P. 59(a). Montoya argues that the trial court erred

when it denied her motion for a new trial because there was

no evidentiary support for the jury’s verdict. See id. R. 59(a)(6).

Montoya’s argument rests on her claim that the testimony of both

experts should have been excluded. Having determined that the

testimony of both experts was admissible, we conclude that the

trial court had a reasonable basis for denying the motion for a new

trial.Johnson v. Montoya

20120223

‐ CA 2013 UT App 199 11 CONCLUSION

¶20 The trial court did not exceed the bounds of reasonability

when it determined that there was a sufficient threshold

showing that the vocational expert’s testimony was both based

on reliable methodology and reliably applied to the facts. See Utah

R. Evid. 702(b)–(c). Because the vocational expert’s testimony was

admissible, the trial court’s decision to admit the economic expert’s

testimony was also not an abuse of discretion. Having determined

that neither experts’ testimony was improperly admitted, we also

conclude that the trial court had a reasonable basis for denying

Montoya’s motion for a new trial.