(Tomas Rasl)

A plaintiff in a motorcycle accident case was prejudiced by the admission of evidence of his alcohol consumption because there were no signs that he was intoxicated at the time of the crash, the Pennsylvania Superior Court has ruled.

In Rohe v. Vinson, a three-judge panel ordered a new trial, reversing a Bradford County Court of Common Pleas judge’s decision to admit into evidence the plaintiff’s blood-alcohol content and the fact that he had consumed beers at several bars that day.

“As the jury verdict here could have been affected by the improperly admitted evidence, we cannot agree the error was harmless,” President Judge Susan Peikes Gantman wrote for the panel. “The potentially pernicious effect of admitting evidence of alcohol consumption in this case warrants a new trial.”

Gantman was joined by Judge Jack A. Panella and Senior Judge Patricia H. Jenkins.

According to Gantman’s opinion, plaintiff Kevin Rohe was riding his motorcycle southbound on Route 220 in Bradford County at about 7:15 p.m. on a clear, dry day in April 2012. He was traveling behind a tractor-trailer and a tri-axle truck, with the tri-axle truck in the lead.

Defendant Darris Vinson was driving the tri-axle truck for employer Fenton Welding Transport and his co-worker, Dennis Perry, was driving the tractor-trailer, Gantman said.

Rohe attempted to pass both trucks on the left-hand side in a lawful passing zone. However, once he passed the tractor-trailer, he realized the tri-axle truck had its turn signal on and was attempting to turn left into a gas station, according to Gantman.

Rohe pressed his horn but Vinson had already begun to turn left. Rohe struck the bumper of the tri-axle truck and was ejected from his motorcycle, sustaining serious injuries that eventually resulted in an above-the-knee amputation of his right leg, Gantman said.

Rohe filed suit in June 2012 against Vinson and Fenton Welding, arguing that Vinson failed to activate his turn signal early enough and failed to yield as Rohe attempted to pass, according to Gantman.

Rohe and his friend who had been riding with him earlier that day, Carl Bird, both testified at deposition that they had visited six bars over a six-to-seven-hour period prior to Rohe’s accident and had consumed one beer at each, except for at the last bar, where Rohe had two beers while they ate dinner, according to Gantman.

Rohe filed a motion in limine in June 2014 seeking to preclude any evidence of his or Bird’s alcohol consumption or bar visits on the day of the accident, Gantman said. Bradford County President Judge Maureen T. Beirne denied the motion and the case proceeded to trial in September 2015, during which the jury heard all evidence related to Rohe’s alcohol consumption on the date of the crash.

The jury returned a defense verdict and Williamson subsequently denied Rohe’s motion for post-trial relief.

But on appeal, the Superior Court held that “the evidence presented in this civil negligence case failed to establish a degree of intoxication reasonably demonstrating appellant’s unfitness to drive, notwithstanding appellant’s admission to drinking alcohol of the date of the accident.”

Dr. Gary Lage, the defendants’ toxicology expert, said Rohe’s whole-blood-conversion BAC, taken at the hospital within two hours of the crash, was 0.0706 percent, below Pennsylvania’s legal limit, according to Gantman.

“To admit appellant’s BAC results in this case, therefore, required additional conduct of appellant suggesting intoxication,” Gantman said. “Dr. Lage’s expert testimony interpreting and explaining the effects of alcohol on a person with this low BAC cannot, on its own, constitute the requisite ‘other’ evidence, where appellant’s BAC at the time of the blood draw was below the statutory legal limit.”

Gantman compared Lage’s opinion to the expert opinion at issue in the Superior Court’s 2016 ruling in Coughlin v. Massaquoi. In that case, the court allowed into evidence the BAC result of a pedestrian who was struck and killed, finding that an expert’s opinion that the pedestrian’s 0.313 percent BAC had rendered him unfit to safely cross a four-lane road at night was sufficiently corroborating. The ruling is now on appeal to the Supreme Court.

Gantman likewise said Lage’s opinion that Rohe’s BAC was higher than 0.0706 percent at the time of the accident and was on the decline by the time he had blood drawn could not be considered “other” evidence of Rohe’s intoxication. Gantman said Lage misstated several facts of record, including his assertion that the EMS team, airlift crew and hospital employees all smelled alcohol on Rohe.

The record showed Rohe spoke with numerous people following the accident, including Vinson, an eyewitness, EMS personnel, a state trooper, an airlift crew and hospital employees, according to Gantman.

“None of these people indicated that appellant displayed any of the classic signs of intoxication such as glassy eyes, an odor of alcohol, or incoherent mumbling,” Gantman said.

According to Gantman, Lage’s so-called “relation back” testimony, in which he opined that Rohe’s BAC was between 0.085 percent and 0.10 percent at the time of the crash, was “simply too speculative and highly prejudicial, where appellant’s BAC at the time of the blood draw was below the statutory limit, there was no other objective indicia appellant was unfit to drive, or any record evidence of when appellant consumed his last beer.”

Counsel for Rohe, Robert B. Elion of Elion Law, said the ruling “makes sense” because it took into account the “devastating” effect alcohol consumption evidence can have on a plaintiff’s case, particularly where the plaintiff was injured while riding a motorcycle—an activity juries already view as risky.

“The reality is that once you introduce the consumption of alcohol into any trial it’s like nitroglycerin—it totally trumps everything out and washes all objectivity out,” Elion said.

Counsel for Vinson and Fenton Welding, Michael J. Zicolello of Schemery Zicolello in Williamsport, said he expects he and his clients will follow Coughlin’s lead and appeal the ruling to the Supreme Court.

“This represents either a sea change in the law or just a speed bump that needs to be corrected,” Zicolello said.

Zack Needles can be contacted at ­215-557-2373 or zneedles@alm.com. Follow him on Twitter @ZackNeedlesTLI.

(Copies of the 26-page opinion in Rohe v. Vinson, PICS No. 17-0026, are available at http://at.law.com/PICS.) •