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Ditto v. Stoneberger8/28/2002
Court Erred in Accepting Roger Campbell as an Expert Concerning the Subject of Occupational Safety and the Operation of Cranes
The standard for admissibility of expert testimony in Maryland is set forth in Maryland Rule 5-702. Expert testimony is admissible if the court determines that the testimony will assist the trier of fact to understand the evidence or determine a fact in issue. In making that determination, the court must determine "(1) whether the witness is qualified as an expert by knowledge, skill, experience, training or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony." Buxton v. Buxton, 363 Md. 634, 650 (2001).
" t is within the sound discretion of the trial judge to determine the admissibility of expert testimony and . . . the trial court's action in the area of admission of expert testimony seldom provides a basis for reversal." Id. at 651. The broad discretion of the trial judge "will not be disturbed on appeal absent an error of law or fact, a serious mistake, or clear abuse of discretion." Johnson & Higgins of Pennsylvania, Inc. v. Hale Shipping Corp., 121 Md. App. 426, 444 (1998). " bjections attacking an expert's training, expertise, or basis of knowledge go to the weight of the evidence and not its admissibility." Id.
Appellant's present criticisms of Mr. Campbell's expertise are four in number: (1) As an agent of the Maryland Occupational Safety and Health Department ("MOSH"), he inspected the accident site to determine if Mr. Ditto violated MOSH requirements that he provide a safe workplace for employees - but, inasmuch as Edward Stoneberger was not an employee, he "did not investigate the Stoneberger accident"; (2) he has never operated a crane; (3) he had never worked in the demolition business; and (4) he was not present at the time of the accident.
Prior to allowing Mr. Campbell to testify as an expert, the following facts relevant to Mr. Campbell's expertise were established:
The witness was a graduate of the University of Southern California Safety Center and has a Masters of Science degree in Safety Studies; he has been certified as a safety professional and was at the time of trial a hazard control manager; he had twenty-six years of work experience in safety; he has worked for MOSH as a compliance specialist since June 1992. On behalf of MOSH, he had the responsibility for conducting "complex . . . accident investigations, employee complaints." When he first commenced working for MOSH, he attended approximately 120 hours of classroom instruction and seminars concerning cranes put on by Grove Cranes (manufacturers of cranes and other lifting equipment) and by one Bob Smith, a former employee of MOSH who was MOSH's "resident crane expert." He has also attended a class on loading at Catonsville Community College.
At trial, counsel for appellees said: "Your Honor, I tender Mr. Campbell as an expert with regard to occupational safety and for the purpose of this case specifically regarding to the use of operational cranes, which effected demolition activities in construction relative to demolition." Appellant's counsel objected, saying: "Objection, your Honor. Mr. Campbell has already said he wasn't investigating this accident." Counsel for appellant thereafter asked Mr. Campbell several questions, concerning his qualifications, which were followed by additional questions by appellees' counsel. The court then said he would receive Mr. Campbell "as an expert in occupational safety" and as an expert in the "operation of cranes." Counsel did not note an objection to that designation at the time
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