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Guzzi v. Clarke

July 10, 1991

KATHLEEN GUZZI, PLAINTIFF,
v.
RICHARD L. CLARKE AND LINDA J. COMANDINI, DEFENDANTS. KATHLEEN GRANDER, PLAINTIFF, V. KATHLEEN GUZZI, RICHARD L. CLARKE AND LINDA J. COMANDINI, DEFENDANTS



Arnold, P.J.Cv.

Arnold

There are two novel issues raised in this lawsuit. First, whether expert testimony is admissible to prove that a person's driving ability was impaired because of the combined effect of drinking alcoholic beverages and taking prescription drugs despite the absence of "supplementary evidence" of intoxication as that term is defined in Gustavson v. Gaynor, 206 N.J. Super. 540, 503 A.2d 340 (App.Div.1985). Second, whether the deposition testimony of a person who had been a party to this lawsuit but who settled prior to trial is admissible even though that person is available as a witness. This opinion is intended to supplement this court's oral decision rendered at trial. Briefly, the material facts in this lawsuit are as follows.

At 10 p.m. on New Year's Eve 1988 on Highway 22 in Bridgewater Township, Robert Clarke drove his car into a stalled car driven by Kathleen Guzzi. Guzzi testified at trial

that her car stalled as she drove onto Route 22 and that, while attempting to restart the car, she could see in her rear view mirror the approaching headlights of the car that struck her. Officer Damino of the Bridgewater Township Police Department, who investigated the accident, testified that Clarke's car left 60 feet of skid marks and that the driver of a car approaching the stalled car had a 550-foot clear line of vision. In deposition testimony, Clarke stated that he did not see the stalled car until he was 100 feet from it although there was light traffic.

For several years prior to the accident, Clarke had been taking Norpramin, a tricyclic antidepressant, and Vistaril, an antihistaminergic anxiolytic, each of which was prescribed by his physician. These medicines were taken by Clarke twice a day every day including the day of the accident. In addition, at his deposition, Clarke testified that, on the evening of the accident, he had consumed a small quantity of alcoholic beverages.

Plaintiff offered the testimony of John Brick, Ph.D., a biologist/psychologist. Brick was prepared to testify, based upon Clarke's deposition testimony about the amount of alcoholic beverages he had consumed, that Clarke had a .02-.03% blood-alcohol level at the time of the accident. Brick was also prepared to testify that such a blood-alcohol level combined with the Norpramin and Vistaril taken earlier that day impaired Clarke's ability to drive by reducing his ability to attend to various stimuli. This testimony was offered by plaintiff on the issue of Clarke's negligence and to explain why Clarke was unable to observe or properly react to the presence of the stalled car. Defendant objected to this proffered evidence arguing that there was no "supplementary evidence" of intoxication as that term is defined in Gustavson v. Gaynor, supra. In Gustavson, the Appellate Division held that evidence of consumption of alcoholic beverages was inadmissible unless there was "supplementary evidence from which the trier of fact may reasonably conclude that the drinking affected the safe

operation of the vehicle." 206 N.J. Super. at 544-545, 503 A.2d 340. Specifically, the opinion of the court stated that "[t]he required supportive evidence includes conduct such as excessive drinking, driving at an excessive speed, recklessness or erratic driving, drunken behavior at the accident scene, or similar acts suggestive of an unfitness to drive." Id. at 545, 503 A.2d 340. Because Officer Damino observed nothing about Clarke at the scene of the accident that suggested that Clarke was intoxicated nor any condition suggesting that Clarke was unfit to drive, defendant argues that Brick's testimony should be excluded.

Preliminarily, it should be noted that defendant does not argue that Brick's testimony is inadmissible under Evid.R. 56. Under that rule expert testimony may be admitted if three criteria are met. Those criteria are:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. [ State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984)].

In this case defense counsel conceded that Brick is qualified. He is a biologist/psychologist who has devoted years of study to the combined effect of alcoholic beverages and drugs, including Norpramin and Vistaril, on the ability of the human mind to respond to multiple stimula which is necessary to drive a car. In addition, it appears to be conceded that both the first and second criteria set forth above have been met. However, defendant argues that the proffered evidence is inadmissible under Gustavson.

This court disagrees with the defense argument. The decision in Gustavson simply represents an analysis pursuant to Evid.R. 4 of whether the probative value of evidence of consumption of alcoholic beverages is substantially outweighed by its potential prejudice. This is apparent from the decision's reliance on Rovegno v. Geppert Bros., Inc., 677 F.2d 327 (3 Cir.1982) where the Third ...


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