ALCOHOL-RELATED LITIGATION: DAUBERT/ROBINSON HEARING TO EXCLUDE TESTIMONY
A small passenger car collided with a farm tractor towing a trailer across a highway at 9:20 p.m. The driver of the tractor was arrested for failure to yield right of way from private drive, driving without headlights, and no driver's license. The driver of the passenger car was not cited. Approximately four hours after the accident, blood was drawn from the driver of the passenger vehicle and analyzed in the hospital laboratory using an alcohol dehydrogenase procedure and reported as 2 mg%, with normals stated as 0-5. A suit was filed by the occupants of the passenger vehicle against the driver of the tractor and others.
The driver of the passenger vehicle testified by deposition that she had ingested two drinks consisting of "Crown and Coke" at approximately 4:00 p.m., or five hours prior to the accident. She denied ingestion of any other alcohol-containing beverage prior to the accident.
DEFENSE POSITION: The driver of the passenger vehicle was intoxicated based upon the alcohol test. The defense toxicology expert opined in reasonable medical probability that the blood alcohol of the automobile 'driver was 0.08% at the time of the accident, resulting in substantial impairment of the driver's ability to operate a motor vehicle. This opinion was based upon the presence of alcohol in the driver's blood of 0.002% alcohol four hours after the accident. Using a dispositional rate of alcohol of 0.02% per hour extrapolated to the time of the accident, he arrived at a concentration of 0.08%. He further relied upon pictures showing the presence of a Coca-Cola can, a bottle of whiskey and a glass in the vehicle after the accident.
PLAINTIFF POSITION: The plaintiff toxicology expert opined there to be no evidence which rises to the level of reasonable medical probability that alcohol was present in the blood of the driver of the automobile at the time of the accident.
DISCUSSION: During a pre-trial hearing, the testimony of the defense expert was excluded. It was shown that the defense expert was unaware of the nature of the specimen analyzed, whether whole blood or serum. He was unaware of the method used to measure alcohol. He had no knowledge of the instrument used in the analysis or its reliability at concentrations of alcohol reported by the laboratory. The plaintiff expert produced at the time of hearing the operations manual for the instrument used for the measurement of alcohol. The manual specified that the reliable range for alcohol measurement was 10-300 mg%. It further was specified that any result less than 10 mg% should be considered zero. Since the alcohol concentration in blood drawn four hours after the accident was zero, any extrapolation from zero alcohol concentration would apply equally well to a person who had ingested no alcohol. If the deposition testimony is correct, When all alcohol ingested at 4:00 p.m. would have been metabolized prior to the accident. The information available does not preclude the possibility that some amount of alcohol was present in the driver's blood at the time of the accident if the drinking history was misrepresented.
CONCLUSION: This case illustrates a failure of adequate discovery concerning the laboratory procedures which were the cornerstone of the defense position. Any analytical toxicology report must be interpreted with knowledge of the type of specimen analyzed; the basis for the analytical procedure; the instrument used; and the limits of reliability. Much of this information is ordinarily contained in the manufacturer's operations manual with citations to the literature. A search of the Internet for the manufacturer's Web page often will reveal details concerning operational parameters.
Eric G. Comstock, M.D., expert for the Plaintiff (9376); Mike Jacobellis, Attorney at Law, Tonahill Law Firm, Beaumont, TX.
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