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Graber v. City Of Ankeny9/7/2000
ess. At trial, the City called as a witness the city engineer who was responsible for determining the timing of the signals used at the intersection in question. The initial questions that sparked the plaintiff's objection included the following:
Q: And what role did you play in the change that was made in this plan?
A: I made the decision on what had to be done on those changes.
Q: All right. And what did you base your decision on?
A: When it was discovered that there was a discrepancy between the speed they used to determine those timings, we also found that they had used a method that would be . . . .
The plaintiff objected on the basis that the witness was giving expert testimony in violation of the court's pretrial ruling. The trial court overruled the objection and the witness was allowed to testify concerning the City's determination about the appropriateness of the timing and the reasons for the City's change of the timing. In addition, the witness testified that the City does not use an all-red clearance, but uses a change interval. He also testified as to his personal observations of the intersection in question.
Iowa Rule of Civil Procedure 125 governs the discovery of and testimony by expert witnesses. In pertinent part, it states:
Nothing in this rule shall be construed to preclude a witness from testifying as to (1) knowledge of the facts obtained by the witness prior to being retained as an expert or (2) mental impressions or opinions formed by the witness which are based on such knowledge. Iowa R. Civ. P. 125(a)(1)(C).
This court has previously examined the parameters of this rule in cases where a treating physician has not been designated as an expert. We have held the physician's testimony is, nonetheless, admissible under rule 125(a)(1)(C). See Carson v. Webb, 486 N.W.2d 278, 280-81 (Iowa 1992). The determining factor is not whether the witness's testimony is "opinion evidence that could not be the subject of lay testimony," but "whether evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation." Id. at 281.
The city engineer's testimony in the present case is analogous to the testimony of a treating physician. The city engineer, even if giving "opinion evidence that could not be the subject of lay testimony," was testifying as to facts obtained prior to the litigation and mental impressions and opinions formed upon the basis of such knowledge. Therefore, his testimony fell within rule 125(a)(1)(C) and was properly allowed by the trial court.
VII. Conclusion and Disposition.
The trial court erred in admitting evidence of the plaintiff's settlement with Allen. Although we find no merit to the other alleged errors by the trial court, the plaintiff is entitled to a new trial because her substantial rights were prejudiced by the improper admission of settlement evidence. Therefore, we reverse the judgment in favor of the defendant and remand for a new trial. Costs are taxed to the defendant.
REVERSED AND REMANDED.
All justices concur except Neuman, J., who takes no part.
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