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State v. Burbank

Supreme Court of Maine

March 7, 2019


          Argued: October 25, 2018

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant John M. Burbank

          Matthew R. Gerety, Esq. (orally), Lincoln County District Attorney's Office, Wiscasset, for appellee State of Maine


          HJELM, J.

         [¶1] John M. Burbank appeals from a judgment convicting him of operating under the influence (Class D), 29-AM.R.S. § 2411(1-A)(A) (2018), and operating beyond a license condition or restriction (Class E), 29-A M.R.S. § 1251(1)(B) (2018), issued by the trial court (Lincoln County, Billings, J.) after Burbank entered a conditional plea of nolo contendere to each charge, see M.R.U. Crim. P. 11(a)(2). Burbank contends that the trial court erred by excluding testimony of two witnesses whom Burbank had designated- seriatim-as experts to testify that at the time of his arrest he had a condition known as "auto-brewery syndrome, "[1] a phenomenon associated with the production of alcohol within the body itself under certain circumstances. The record supports the court's findings that Burbank's first witness was not sufficiently qualified to testify about auto-brewery syndrome generally and did not have a sufficient basis to express an opinion that Burbank had that condition at the time of his arrest or that any such condition accounted for the blood alcohol level detected in a breath test administered after he was arrested. Additionally, the trial court acted within its discretion by excluding testimony of Burbank's second proposed expert witness because Burbank designated her far too belatedly. We therefore affirm the judgment.

         I. CASE HISTORY

         [¶2] On August 9, 2016, Burbank was arrested and charged with operating under the influence and operating beyond a license condition or restriction.[2] He pleaded not guilty to both charges, and the court scheduled a jury trial to be held in August of 2017. During the pretrial proceedings, Burbank designated an expert witness-a toxicologist to testify that, at the time of his arrest, Burbank was suffering from auto-brewery syndrome, a condition associated with the endogenous production of alcohol that could be detected in a breath alcohol test. The State filed a pretrial motion requesting that the court hold a hearing pursuant to Maine Rule of Evidence 104 to determine whether the expert's testimony was admissible, see M.R. Evid. 702.

         [¶3] The court postponed the trial and, in December of 2017, held a hearing on the admissibility of the expert's testimony. At the conclusion of the hearing, where the court heard testimony from several witnesses, including Burbank's designated expert witness, the court orally ruled that the proffered expert testimony was not admissible. The court first concluded that, although auto-brewery syndrome may well exist as a physiological phenomenon, Burbank's witness was not qualified to testify about it because she had no training or work experience relating to the condition and instead relied only on a limited number of case studies in this area of science, which is still emerging and is not the subject of much literature. The court also concluded that, because significant differences existed between Burbank's purported condition and that of patients with auto-brewery syndrome as revealed in the case studies, the witness's testimony did not sufficiently relate the syndrome to Burbank and to matters pertinent to this case.

         [¶4] After the court excluded the first witness's testimony in December of 2017, Burbank designated a second expert on January 10, 2018, to testify that his alleged blood alcohol level at the time of his arrest was caused by auto-brewery syndrome. The State promptly filed a motion in limine, requesting that the court exclude the second expert's testimony as a sanction pursuant to M.R.U. Crim. P. l6A(d). In its motion, the State asserted that despite its multiple requests to Burbank, starting as early as November of 2016, for the production of an expert report and other expert-related material, Burbank had failed to provide that material at least fourteen days before the date set for the dispositional conference, which was January 9, 2017-more than a year earlier-as required by M.R.U. Crim. P. 16A(b)(2). The court granted the State's motion, issued an order excluding testimony from Burbank's second designated expert witness, and scheduled the jury trial to be held about two weeks later.

         [¶5] After moving unsuccessfully for the court to reconsider the exclusion order and on the day before the jury trial was to be held, Burbank entered conditional pleas of nolo contendere to both charges, reserving his right to appeal and challenge the orders excluding testimony of the two proffered experts. See M.R.U. Crim. P. 11(a)(2). The court accepted Burbank's pleas and sentenced him to seven days in jail and a $750 fine on the OUI charge, with a concurrent jail sentence on the charge of operating beyond a license restriction or condition. This appeal followed. See 15 M.R.S. § 2115 (2018).


         [¶6] Burbank first asserts that the court erred by excluding the testimony of the first witness based on its alternative conclusions, cast as foundational matters, that she was not sufficiently qualified to render expert testimony on the medical condition of auto-brewery syndrome and that Burbank had not adequately related the basis of her opinion to the facts of this case.[3] He next contends that the court erred by excluding the testimony of his second proffered expert witness because of the late designation. Burbank finally asserts that the exclusion orders operated to deprive him of the constitutional right to present a defense. We address these challenges in turn.

         A. The First Expert's Testimony

         [¶7] Maine Rule of Evidence 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if such testimony will help the trier of fact to understand the evidence or to determine a fact in issue." We review the court's ruling on the admissibility of expert testimony for an abuse of discretion. State v. Rourke, 2017 ME 10, ¶ 10, 154 A.3d 127; State v. Diana, 2014 ME 45, ¶ 35, 89 A.3d 132.

         [¶8] For expert testimony to be admissible under Rule 702, "the trial court must determine that the testimony (1) is relevant in accordance with M.R. Evid. 401, and (2) will assist the trier of fact in understanding the evidence or determining a fact at issue." State v. Ericson, 2011 ME 28, ¶ 11, 13 A.3d 777 (quotation marks omitted); see also State v. Williams, 388 A.2d 500, 504 (Me. 1978). Expert testimony can be relevant only if it is reliable, see Ericson, 2011 ME 28, ¶¶ 12, 14, 13 A.3d 777, and so, for the evidence to be admissible, the court must make a preliminary determination that the proponent has presented a sufficient demonstration of reliability, see Rourke, 2017 ME 10, ¶ 11, 154 A.3d 127.[4] Indicia of reliability include "whether any studies tendered in support of the testimony are based on facts similar to those at issue; . . . whether an expert's conclusion has been tailored to the facts of the case; ... [and] the nature of the expert's qualifications." Ericson, 2011 ME 28, ¶ 12, 13 A.3d 777 (quotation marks omitted).

         [¶9] The court made findings supported by the record and acted within the bounds of its discretion by excluding the first expert's testimony for the two reasons it explained on the record.

         [¶10] First, the court did not err by finding that the proffered expert lacked the qualifications necessary to offer an opinion as to whether Burbank was suffering from auto-brewery syndrome. See Tolliver v. Dept. of Transp., 2008 ME 83, ¶ 35, 948 A.2d 1223 (holding that an expert witness was not qualified to give an opinion on accident causation because he lacked training on accident reconstruction and was unfamiliar with the scene of the car crash at issue). The expert testified that, although she has a Ph.D. in toxicology and physiology, she had not taken any classes on auto-brewery syndrome and had neither performed any studies nor worked directly on matters relating to the syndrome. Instead, her knowledge regarding the syndrome appears to have stemmed entirely from her review of four articles and four abstracts of different articles she cited during her testimony-sources that predominantly consist of individual case studies. As the court properly observed while addressing the framework set out in Rule 702, because the witness had no hands-on, experience-based understanding of auto-brewery syndrome, in order for her to qualify as an expert witness any expertise needed to be derived from some other informational source, which here were the articles and abstracts in the professional literature. See M.R. Evid. 702. But as the court found with support in the record, the amount ...

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