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Mitchell v. Montgomery County10/2/1991
This case arose out of an unfortunate occurrence on November 28, 1986, when Johnny Mitchell, appellant in this case, was struck by a Montgomery County Ride-On Bus while walking along Route 355 in Gaithersburg near the intersection of Route 355 and Appledowre Way. As a result of this accident, Mitchell suffered serious injuries, including a fractured skull. He filed suit against Montgomery County, appellee in this case, alleging negligence on the part of the bus driver. Following a trial in Montgomery County Circuit Court, a jury returned a verdict for the County. In this appeal, Mitchell contends that the trial judge erred:
-- in admitting allegedly expert opinion testimony by Robert Merryman, a witness for the County, when the County failed to either designate Merryman as an expert in its responses to interrogatories or offer and qualify him as an expert witness at trial;
-- in admitting evidence purportedly showing that Mitchell was under the influence of alcohol, cocaine and PCP at the time of the accident;
-- in admitting, for impeachment purposes, evidence of Mitchell's 1982 conviction for theft of a golf cart;
-- in not granting Mitchell's motion for a directed verdict at the close of the evidence in the case; and
-- in his instructions to the jury on intoxication, contributory negligence and several other issues.
Because we agree (1) that Merryman was not designated or offered and qualified as an expert, although his testimony was in significant part expert opinion testimony on an issue vital to the outcome of the case, (2) that the probative value
of Dr. Caplan's testimony on the cocaine and PCP tests was outweighed by the potential for prejudice to Mitchell, and (3) that the drug paraphernalia found on Mitchell was improperly admitted, we will reverse and remand for a new trial. For the guidance of the trial judge, in the event this case is tried again, we will also address several of Mitchell's other arguments which are likely to arise on retrial.
THE FACTS
On November 28, 1986 Mitchell was walking north on the east side of Route 355 in Gaithersburg at about 5:30 p.m. He was wearing a light or white striped, blue flannel shirt. The area where he was walking was not well illuminated, as there were no street lights in the immediate area. The only lighting in the area was at the Pizza King restaurant on the west side of Route 355, which did not project across the road to any great degree. Mitchell had come out of an apartment complex south of Appledowre Way and was hitchhiking north of that intersection. It was later revealed that Mitchell had a blood alcohol level of 0.08 and he tested positive for both cocaine and PCP in his urine. He stated that he saw a Montgomery County Ride-On Bus proceeding north on Route 355. The bus stopped at a bus stop approximately 15-20 feet south of where Mitchell was standing. Mitchell was standing on the paved portion of the road approximately three to four feet from the curb. About 14 feet from the curb was a single, solid white line, on the other side of which was a northbound travel lane. In the center of the road was a double yellow line, and on the southbound side of the road were two lanes marked similarly to the northbound lanes. At all pertinent times, the bus had its low beam lights on. As the bus pulled away from the bus stop, the right front portion of the bus struck Mitchell, knocking him to the ground and causing severe injuries. The bus driver stated he did not see Mitchell until just prior to the impact and could not avoid striking Mitchell, inferring Mitchell had darted in front of the bus.
MERRYMAN'S TESTIMONY
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