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Tabieros v. Clark Equipment Co.9/15/1997
hs read repeatedly from the NPCR and explicated its data and Conclusions without ever indicating in what manner the reports' contents formed a basis of his opinions or in what way he otherwise relied on it.
Second, even if Josephs actually relied in some way on the NPCR as a factual basis of his opinions, it was still necessary that the NPCR contain "facts or data . . . of a type reasonably relied upon by experts in the [engineering] field in forming opinions or inferences upon the subject" of the Series 510 straddle carrier in order to satisfy the criteria prescribed in HRE 703. In our view, the record is grossly deficient in this regard.
On cross-examination by Clark's counsel, Josephs acknowledged that he had never studied or inspected the Series 512, 520, or 521 straddle carriers, which were the sole subjects of the NPCR. He did not know the relative heights of the various models as compared to the straddle carrier involved in Tabieros's accident. He was unaware of the means by which the data appearing in the NPCR was collected, the credentials or qualifications of whoever was doing the collecting, or the number or identity of the NPCR's authors. In fact, Josephs indicated that he had essentially accepted on blind faith that data collected by a "quasi-governmental agency" would be reliable. Such uncritical reliance is hardly a hallmark of the scientific method.
It is patently obvious from a review of the trial transcript that Josephs's testimony regarding the NPCR served primarily as a conduit to publish its findings and Conclusions, which had already been ruled inadmissible as substantive evidence pursuant to HRE 403, to the jury and to bolster the credibility of Josephs's opinions. Many of the questions posed to Josephs regarding the NPCR by the plaintiffs' counsel, as well as his responses to them, had little or nothing to do with Josephs's area of expertise. For example, Josephs was questioned about (1) the cost of obtaining a copy of the NPCR and its availability to others, in an attempt to establish that Clark had, in fact, received notice of its existence and contents, (2) the NPCR's length and governmental authorship, (3) Clark's "role in providing resources for the report," and (4) Josephs's beliefs as to whether Clark had destroyed documents.
Moreover, the plaintiffs' counsel prominently displayed the NPCR's principal findings and salient contents to the jury through blow-up exhibits mounted on eight story boards. In this connection, the plaintiffs' counsel expressed his belief that the portions of the NPCR that Josephs read to the jury could be used for any purpose. That the circuit court shared his view is reflected by the following exchange:
[Clark's counsel]: I object to publication of the report.
THE COURT: Any response?
[Plaintiffs' counsel]: The response is that the publication of other material which the experts have relied on, but is not in evidence, has been allowed and these are --
THE COURT: I will overrule and permit the demonstrative proof.
[Clark's counsel]: This is improper use of a treatis in that Mr. Josephs is actually testifying to what the material contains. This goes far beyond what an expert is able to do with respect to references.
THE COURT: Under 70 --
[Plaintiffs' counsel]: 703, a report replied [sic: actually "relied"] upon by an expert can be used in any fashion.
THE COURT: I will overrule the objection and confirm my ruling.
(Emphases added.)
In light of our holding regarding the parameters of HRE 703 and 705, it is a
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