dissenting. The sole issue before the court is not whether we should second-guess the discretion of a trial court judge but rather whether the trial court judge abused his discretion in not allowing expert testimony on the point of impact. While the syllabus promulgated is merely a restatement of Evid. R. 702 and is on its face beyond reproach, the results reached are incorrect for the following reasons.
It is well-established that close evidentiary questions are within the domain of the trial court. Calderone v. Sharkey (1982), 70 Ohio St. 2d 218, 223 [24 O.O.3d 322]. Although Evid. R; 704 expressly allows for the admis*84sion of testimony on the ultimate fact in issue, it does not, as the majority correctly points out, mandate such admission. The Advisory Committee, on Proposed Rules Note to Fed. R. Evid. R. 702 affirms this discretion in the trial court with reference to admission of expert testimony:
“Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. ‘There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having specialized understanding of the subject involved in the dispute.” In the present case appellant’s expert was allowed to testify extensively except as to one question concerning which side of the road the automobiles were on when the accident occurred. Prior testimony on this issue was adduced, however, by the two drivers, a passenger in one of the cars, and a police officer.
Contrary to the contention of the majority that Trebotich was cited by the trial judge herein to support an assertion that ultimate-issue testimony should be excluded, the trial judge stated:
“Trebotich was not an ‘ultimate issue’ case as the plaintiff argues.”
The trial judge, apparently having more faith in the jury system than the majority herein, felt the issue was one of credibility and sufficiency of evidence, not ultimate issue of fact. The trial judge quoted from Trebotich to this effect:
“The question here is not a complex one, nor is it beyond the comprehension of the average juror, but, rather, it is one we find a jury in this state would be qualified to determine.”
Previously, it was well-established in this state that a mere error in law or judgment was not an abuse of discretion requiring reversal. State v. Adams (1980), 62 Ohio St. 2d 151, 157 [16 O.O.3d 169]; Lee v. Jennings Transfer Co. (1967), 14 Ohio App. 2d 221, 223 [43 O.O.2d 452]; Granneman v. Cincinnati Street Ry. Co. (1941), 67 Ohio App. 536, 537 [21 O.O. 556]. Rather, the trial court must have made a decision implying an attitude that was unreasonable, arbitrary, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St. 3d 230, 232. Considering the testimony that was allowed, including virtually all the testimony by appellant’s expert, I perceive no basis to find the trial court committed an abuse of discretion in denying the expert’s ultimate conclusion on the evidence. Even if, arguendo, the trial judge may have erred in excluding the expert’s response to one question, such error was not shown by either appellant or the majority to be so prejudicial as to warrant reversal. As civil and criminal trials become more complex and sophisticated the chance for error increases, but mere nonprejudicial error should not, and as a practical matter cannot, serve as a basis for a new trial. By limiting the discretion of the trial court the majority now makes it difficult for a trial court to exclude expert testimony, no matter how redundant or irrele*85vant, for fear of reversal. The standard adopted today is puzzling because Evid. R. 402 and Evid. R. 403 are used to buttress a judgment call by the majority where reasonable minds might, and indeed do, disagree in the context of the case. The issue of whether testimony is relevant or irrelvant, confusing or misleading is best decided by the trial court judge who is in a significantly better position to analyze the impact of the evidence on a jury than this court two steps removed from the trial. Moreover, no justification is advanced of the sub silentio elimination of the abuse of discretion standard. Instead, a nebulous hindsight rule is implemented. This new hindsight rule removes discretion and creates the impression that because only one expert testified, all that expert’s testimony must be allowed. The question is thus raised as to whether a different result would have occurred if the defendant had presented his own experts. Surely litigation is sufficiently expensive without now requiring expert rebuttal testimony whenever one side presents an expert. Moreover, elimination of the abuse of discretion standard only serves to relegate the status of this court to that of “a super trier” of facts rather than an appellate court. Accordingly I would affirm the court of appeals, and the trial court, and therefore respectfully dissent.
Holmes and Wright, JJ., concur in the foregoing dissenting opinion.