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Loevsky v. Carter5/4/1989
ions as to when the hypothetical female consumed the two beers, therefore, were based on speculation. We agree.
" pinions of expert witnesses must be based upon facts in evidence[.]" Padilla v. Warren , 44 Colo. App. 189, 190, 610 P.2d 1352, 1353 (1980); see also HRE Rule 703.
Our review of the trial transcripts reveals that Dr. Coleman's assumptions that the hypothetical female consumed both beers at points somewhere between 10:00 - 10:30 a.m. were based on: 1) her review of Laurie's deposition transcript, wherein Laurie testified that she woke up around 10:00 a.m. on the morning of the accident; and 2) her review of certain records which indicated that the accident was reported at approximately 10:52 a.m.
It is clear that Dr. Coleman's assumptions as to when the hypothetical female consumed the two beers were not based on facts in evidence. Both Laurie and Michael denied that Laurie had consumed any alcoholic beverages prior to the accident. Moreover, assuming that they left Laurie's home at 10:30 a.m. to go on the motorcycle ride, see note 4, supra , when Laurie allegedly consumed the first and second beers was still open to question.
Since Dr. Coleman testified that the absorption rate of alcohol in the human body generally takes 15 minutes, when Laurie allegedly consumed both beers was relevant in determining whether her judgment, coordination and perception were adversely affected prior to the accident.
We find that Dr. Coleman's assumptions as to when the hypothetical female consumed both beers were based on mere speculation. Cf. First Ins. Co. of Haw. v. International Harvester Co. , 66 Haw. 185, 659 P.2d 64 (1983) (there was no abuse of discretion in the trial court rejecting some of the expert testimony offered by the City where a proper foundation for its introduction was lacking, where it was of questionable relevance, and where it was speculative, respectively). Dr. Coleman's subsequent testimony on the range of blood alcohol content the hypothetical female would have been experiencing at approximately 10:45 - 10:50 a.m., in turn, was inadmissible as untrustworthy. See HRE Rule 703.
Accordingly, we hold that the circuit court abused its discretion in allowing Dr. Coleman to testify on the range of the hypothetical female's blood alcohol content on the basis of speculative factual assumptions.
Plaintiffs further contend the circuit court erred by giving instruction 15 when it was not warranted by the evidence. We agree, based on additional reasoning.
The trial court does not err where it gives an instruction which is a correct statement of the law and which does not render the instructions as a whole prejudicially insufficient, erroneous, inconsistent or misleading. Johnson , 4 Haw. App. 175, 664 P.2d 262.
Instruction 15, as originally proffered by County, we believe, "entangles" in a misleading manner civil negligence with a driving under the influence of intoxicating liquor (DUI) penal standard. Compare note 8, supra, with Kaeo , 68 Haw. 447, 451, 719 P.2d 387, 390, and HRS § 291-4(a)(1) (1985). Moreover, the instruction as given, subsequent to its modification by the circuit court, in our view, is not an accurate statement of the statutory provision at issue herein.
HRS § 291-4(a)(1) provides:
Driving under influence of intoxicating liquor. (a) A person commits the offense of driving under the influenc
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