In its recent non-precedential decision in the case of
Coughlin v. Massaquoi, No. 3367 WDA 2014
(Pa. Super. 2016 Ford Elliot, P.J.E., Stapile, and Strassburger, J.J.)
(Strassburger, J., concurring) (Mem. Op. by Ford Elliot, P.J.E.) the majority
of the Superior Court concluded that the expert testimony presented at the
trial below in this matter was sufficient corroborating evidence to permit the
admission of the decedent’s BAC in a civil litigation matter.
This matter involves a Plaintiff’s decedent, who was struck
and killed by a motor vehicle while the decedent was crossing the street.
Evidence was presented in the
matter that the decedent was heavily
intoxicated at the time of the accident.
The trial court had denied the Plaintiff’s Pre-Trial Motion
In Limine to exclude evidence of the decedent’s intoxication, including the
toxicology report and the expert testimony of a toxicologist.
Ultimately, the jury determined that the
Defendant’s negligence was not a factual cause of the Plaintiff’s decedent’s
fatal injuries.
On appeal, the Plaintiff argued, in part, that the trial
court had erred in denying its Motion In Limine seeking to preclude evidence of
the Plaintiff’s decedent’s post-mortem BAC of .313 when there was allegedly no
additional independent cooperative evidence of intoxication.
The Plaintiff also asserted that the trial
court erred in allowing the testimony of the Defendant’s toxicologist expert.
The Pennsylvania Superior Court noted that the Plaintiff was
arguing that the decedent’s BAC was inadmissible as a matter of law where there
is no independent corroborated evidence of intoxication such as slurred speech,
odor of alcohol, unsteady gait, etc.
Moreover, the Plaintiff asserted that there was no evidence as to the
decedent’s whereabouts prior to the accident or any independent eyewitness
testimony to support any inference that the decedent had been drinking and/or
was heavily intoxicated prior to the accident.
The Plaintiff further asserted that the decedent’s BAC, in and of
itself, was insufficient for the issue of intoxication to go to the jury.
In response to these contentions by the
Plaintiff, the Pennsylvania Superior Court wrote, “We disagree.”
See Coughlin at p. 6.
The Pennsylvania Superior Court stated its analysis by
noting that the trial court judges enjoy a broad discretion regarding the
admissibility of evidence.
The court
also noted that it is well-settled law of this Commonwealth since 1927, under
the case of
Critzer v. Donovan, 289
Pa. 381, 137 A. 655 (1927), that, where recklessness or carelessness is at
issue, proof of intoxication is relevant, but the mere fact of consuming
alcohol is inadmissible as unfairly prejudicial, unless it reasonably
establishes intoxication.
[Other
citations omitted].
The court noted that Pennsylvania law also provides that
evidence of intoxication must reasonably establish a degree of intoxication
with producing unfitness to drive or reckless or careless driving is the matter
at issue in a case.
This rule was
extended under Pennsylvania law regarding the admissibility of evidence tending
to establish intoxication on the part of a pedestrian.
With regard to pedestrians, evidence of intoxication is
inadmissible unless it proves unfitness to be crossing the street.
Furthermore, the rule of law is that no
reference should be made to a pedestrian’s use of alcohol unless there is
evidence of excessive or copious drinking.
The court also noted that, under Pennsylvania law, the
theory behind allowing a blood alcohol level to be admitted into evidence of a
civil case is that it is relevant circumstantial evidence relating to
intoxication.
However, blood alcohol
level alone may not be admitted for the purpose of proving intoxication.
Generally, there must be other evidence
showing the actor’s conduct which suggests intoxication.
In such instance, and if other safe guards
are present, the courts would allow the admission of blood alcohol level
evidence.
See Coughlin at p. 8-9.
In this matter, the defense toxicologist expert testified
that an individual with a BAC greater than .31 would be unfit to cross the
street safely.
The expert therefore
testified that, with a BAC of .313, the decedent would have been unable to
safely cross the street.
The court
noted that, although there was no eyewitness testimony to corroborate the fact
of the decedent’s intoxication, no evidence of slurred speech, staggered gait,
etc., no witness who saw the decedent consume alcohol prior to the accident,
and no witness who saw the decedent attempt to cross the street, the court
stated that it has been held, under Pennsylvania law that the “other” evidence
of intoxication necessary to render admissible the results of a blood alcohol
test do not have to consist of third-party eyewitness testimony, but may
consist of expert testimony describing the effects of a particular BAC level on
a person.
See Coughlin at p. 11. [citations
omitted].
In the matter before it, the Pennsylvania Superior Court
found that the Defendant’s toxicologist’s expert testimony was sufficient
corroborating evidence for the admission of the decedent’s BAC result.
As such, the Superior Court found that the
trial court did not abuse its discretion in denying the Plaintiff’s Motion In Limine
or Post-Trial Motion for a New Trial.
Anyone wishing to review this currently non-precedential Majority
Opinion may click this
LINK.
The non-precedential Concurring Opinion by Judge Strassburger can be viewed HERE
I note that
the handling defense attorney, Joseph Hudock of the Pittsburgh office of Summers McDonnell, Hudock & Guthrie noted his intention to petition the court to
make this decision a published Opinion (and therefore precedential).
UPDATE: This decision has since been published by the Pennsylvania Superior Court and is, therefore, precedential.
Commentary: It is believed that this may be the first time that a
Pennsylvania appellate court has ruled that the “other” evidence necessary to
secure the admission of a blood alcohol content (BAC) reading before a jury can consist of
merely testimony from an expert toxicologist.
