Opinion
No. COA12–1118.
2013-04-16
Kimberly K. MOORE, as Executrix of Duff S. Moore, deceased, Plaintiff, v. Scott Trent SMITH, Defendant.
Jackson & McGee, LLP, by Sam McGee and Gary W. Jackson, for Plaintiff. Northup McConnell & Sizemore, PLLC, by Brady J. Fulton, for Defendant.
Appeal by Plaintiff from judgment entered 12 March 2012 by Judge Gary M. Gavenus in Buncombe County Superior Court. Heard in the Court of Appeals 14 February 2013. Jackson & McGee, LLP, by Sam McGee and Gary W. Jackson, for Plaintiff. Northup McConnell & Sizemore, PLLC, by Brady J. Fulton, for Defendant.
DILLON, Judge.
This action arises from a motorcycle accident in which Duff S. Moore (Moore) was struck and killed by a vehicle driven by Scott Trent Smith (Smith). Kimberly K. Moore, as executrix of Moore's estate (Plaintiff), appeals from a judgment entered upon a jury verdict finding that Smith was not negligent in causing Moore's death. We find no error.
I. Factual & Procedural Background
On the morning of 29 June 2009, Moore was traveling southbound on his Harley Davidson motorcycle on Cane Creek Road in Fairview, North Carolina. The posted speed limit for that portion of Cane Creek Road is 45 mph. As Moore approached the intersection of Cane Creek Road and Sharon Road, where he had the right-of-way, Smith, who was traveling eastbound on Sharon Road in his Ford F–350 truck, was stopped at a stop sign and preparing to turn left (northbound) onto Cane Creek Road. Smith proceeded to turn left onto Cane Creek Road in front of Moore. Moore applied his brakes in an unsuccessful attempt to avoid colliding with Smith's truck. The parties dispute whether Moore's motorcycle was within Smith's line of sight at the time Smith began his turn onto Cane Creek Road. Moore died as a result of the injuries sustained in the ensuing crash.
Two days after the accident, Robert Grayson, a collision reconstructionist with the North Carolina Highway Patrol, performed an accident reconstruction of the scene. Based upon his observations and calculations, Trooper Grayson compiled a report addressing the issue of whether Smith observed or should have observed Moore's motorcycle at the time he turned onto Cane Creek Road. The 51–page report contemplates factors such as the speed at which Moore was traveling prior to applying the brakes on his motorcycle, the extent to which Moore applied his brakes, the length of the skid marks left by the motorcycle's front and rear tires at the scene of the accident, Smith's line of sight (and sight distance), and the acceleration rate of Smith's vehicle. Trooper Grayson concludes in his report that Moore was traveling at a minimum speed of 48.53 mph at the time in question, and that, with “one hundred percent braking” at that speed, Moore's motorcycle would have been “approximately 16 feet inside of Mr. Smith's sight distance.” The report further concludes that with less than one hundred percent braking, this speed (48.53 mph) would have placed Moore “approximately 5 feet beyond the available sight distance for Mr. Smith.” Based upon the inconsistent results produced by six various scenarios, Trooper Grayson's report ultimately concludes that “[c]onclusive physical evidence was not found to indicate whether Mr. Smith observed (or should have observed) the Harley Davidson motorcycle operated by Duff Moore prior to executing his turn.”
Trooper Grayson conducted the accident reconstruction at the request of the Buncombe County District Attorney's Office. The purpose of Trooper Grayson's involvement, according to his deposition testimony, was to calculate the “speed of the motorcycle and sight distance at the area of the collision” in order to determine whether Smith was at fault in causing Moore's death and should be charged criminally.
On 18 August 2010, Plaintiff filed a complaint in Buncombe County Superior Court alleging that Smith had been negligent in causing Moore's death. Smith filed an answer on or about 25 October 2010, raising contributory negligence and Moore's “last clear chance to avoid the incident” as affirmative defenses to liability. Plaintiff thereafter filed a reply denying contributory negligence and contending that even if Moore had been negligent, Smith “had the last clear chance to avoid the collision....”
Counsel for Smith deposed Trooper Grayson on 14 June 2011. Citing his report, Trooper Grayson testified that Moore was traveling at a minimum speed of 48.53 mph prior to the accident. Trooper Grayson also testified that Moore's actual speed—as opposed to the “minimum speed” set forth in his report—at the relevant time was approximately 55 mph. Trooper Grayson opined that this estimated speed would have placed Moore beyond Smith's line of sight at the time Smith turned onto Cane Creek Road.
On 5 March 2012, Plaintiff filed a motion in limine “to exclude various estimates of vehicle speed.” Plaintiff's motion sought to exclude, inter alia, the portion of Trooper Grayson's deposition testimony indicating that Moore was traveling at a speed of 55 mph because that opinion “was not based on any physical evidence” and could not be stated “to a reasonable degree of scientific certainty .” Plaintiff's motion further asserted that “any opinions as to speed other than the 48.53 mph are not expert opinions with proper foundation and are not therefore within the scope of Rule 702(i).”
This case came on for trial in Buncombe County Superior Court on 5 March 2012. The trial court denied Plaintiff's motion to exclude Trooper Grayson's opinion regarding Moore's speed, and, over objection, Trooper Grayson offered testimony consistent with his deposition testimony—namely, that Moore was traveling 55 mph at the time in question and that this speed placed Moore beyond Smith's line of sight at the time Smith turned onto Cane Creek Road. Additionally, Smith took the stand on his own behalf and testified that Moore was traveling “at least sixty” mph. Plaintiff countered with testimony from her own accident reconstruction expert, Edward Livesay, who testified that Trooper Grayson's 55 mph estimate was “not possible” because there was “no physical evidence to support it.” He also stated his opinion that Moore was traveling at a speed of 43 to 48.5 mph.
We recognize, as Plaintiff points out, that Trooper Grayson's trial testimony departed from his deposition testimony in some instances. For example, Trooper Grayson testified at trial that if Moore had been traveling at 48.53 mph and applied less than one hundred percent braking, then Moore would have been ten feet outside of Smith's line of sight at the time in question. This testimony deviated from his deposition testimony, in which he stated that Moore would have been thirteen feet within Smith's line of sight under these conditions, and also deviated from his report, which stated that Moore would have been five feet outside of Smith's line of sight under these conditions. These discrepancies, however, are immaterial in light of our resolution of this appeal.
Plaintiff's motion in limine also sought to exclude Smith's testimony regarding the speed of Moore's vehicle.
On 8 March 2012, the jury returned a verdict finding that Smith had not been negligent in causing Moore's death. In light of its verdict, the jury did not reach the additional questions of whether Moore had been contributorily negligent or whether Smith had had the last clear chance to avoid the accident. On 12 March 2012, the trial court entered a judgment based upon the jury's verdict and dismissed the action. From this judgment, Plaintiff appeals.
II. Analysis
Plaintiff contends that the trial court erred in denying her motion in limine and further erred in allowing Trooper Grayson to testify at trial that Moore was traveling at a speed of 55 mph at the time of the accident. Plaintiff contends that this portion of Trooper Grayson's testimony constituted an improper opinion in that it failed to comport with the requirements for admissible expert testimony set forth under Rule 702 of our Rules of Evidence. We disagree.
At the outset, we note the applicable standard of review:
[We] review the trial court's rulings on motions in limine and on the admissibility of expert testimony at trial for an abuse of discretion. Under this standard, a trial court may have abused its discretion when the record shows that its ruling was so arbitrary that it could not have been a result of competent inquiry. A court has abused its discretion where its ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.
Gray v. Allen, 197 N.C.App. 349, 352–53, 677 S.E.2d 862, 865 (2009) (citations and quotation marks omitted).
Rule 702 of the North Carolina Rules of Evidence governs the admission of expert testimony and provides, in pertinent part, as follows:
(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
....
(i) A witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash, or has reviewed the report of investigation, with proper foundation may give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving.
N.C. Gen.Stat. § 8C–1, Rule 702 (2011).
Here, Plaintiff acknowledges that Trooper Grayson was qualified to testify as an expert in accident reconstruction. Plaintiff's contention, essentially, is that Trooper Grayson exceeded the scope of his expertise when he offered his opinion that Moore was traveling 55 mph, as that portion of his testimony “departed from his expert report and analysis[,] ... was not based upon the physical evidence ... [and] was not arrived upon by the application of mathematics” and, therefore, could not have been “based upon sufficient facts or data” as required by Rule 702(a)(1) and lacked a “proper foundation” as required by Rule 702(i). Plaintiff directs this Court's attention to the following portion of Trooper Grayson's testimony on cross examination:
Q: Your report says forty-eight point fifty-three miles an hour?
A: Yes.
Q: And that is based on physical evidence?
A: Yes.
Q: And you've told us at your deposition that that is your opinion of the speed to a reasonable degree of scientific certainty?
A: That's what the evidence showed on the roadway.
Q: And that the fifty-five-mile-an-hour number that you're using cannot be stated to a reasonable degree of scientific certainty?
A: Right. I cannot quantify energy losses.
Q: So the fifty-five-miles-an-hour is not based upon mathematics?
A: Well, you can get the forty-eight, so the forty-eight part is mathematics and the other part is an estimate.
Q: And part of the basis for that estimate is how fast people generally drive on that roadway?
A: Fifty-five is common on that roadway.
Q: But you can't quantify or do mathematics on that?
A: No.
Q: And the impending skids, you're not able to tell us whether there were impending skids at all in this case?
A: That's correct.
Q: And if there were impending skids, you're not able to tell us how long they were?
A: That's right.
Q: And so I guess between fifty-five miles per hour and forty-eight point fifty-three there's six point four seven miles an hour difference?
A: Yes.
Q: And can you tell us how, mathematically, you go from forty-eight point fifty-three to fifty-five?
A: It's an estimate. There's energy losses I cannot account for. The forty-eight is a minimum speed on this.
Q: And why did you choose to include the forty-eight point fifty-three but not the fifty-five in your report?
A: That's what the physical evidence showed on the roadway.
While it may be true that this particular excerpt from the trial transcript fails to reflect a proper foundation for the testimony at issue, our review of the totality of Trooper Grayson's testimony reveals a factual basis that was sufficient to support his opinion regarding Moore's “actual speed” of 55 mph. Significantly, Trooper Grayson states in his report that 48.53 mph was the minimum speed at which Moore could have been traveling, and he reiterated this point both in his deposition and at trial. Moreover, Trooper Grayson testified in detail concerning the basis for his 55 mph estimate of Moore's “actual speed.” Trooper Grayson explained that the 48.53 mph figure does not account for certain factors, such as impending skid marks and other energy losses, which he believed had occurred but could not be quantified for purposes of his report, as the physical evidence associated with these factors had dissipated prior to his accident reconstruction. When accounting for all of the circumstances—and not just those that were “quantifiable” for purposes of his report—Trooper Grayson testified that his “opinion was the motorcycle was traveling fifty-five miles per hour.” Upon careful examination of Trooper Grayson's testimony, we cannot say that the trial court's admission of this testimony was “arbitrary” or “unsupported by reason.”
Plaintiff cites this Court's decision in Allen v. Hinson, 12 N.C.App. 515, 183 S.E.2d 852 (1971), for the proposition that “just because a witness is qualified to give certain opinions as an expert does not mean the witness can then give opinions which are not supported by his expertise.” Plaintiff's reliance on Hinson is misplaced. There, we held that a chiropractor's expert witness testimony exceeded the scope of his expertise when he testified to matters which were more properly within the expertise of a general medical doctor. Id. at 519, 183 S.E.2d at 855 (“Doctors with unlimited licenses are competent to give expert testimony in the entire medical field. Chiropractors, on the other hand, are limited in their testimony to their special field as defined and limited by statute.”). Here, in contrast, it is undisputed that Trooper Grayson was qualified to testify regarding the speed of Moore's motorcycle; the issue for this Court is not whether Trooper Grayson's testimony exceeded the scope of his expertise, but whether there was a sufficient foundation for his testimony.
We note that—despite her assertions otherwise—Plaintiff essentially asks this Court to reject the contested testimony because it was not supported by physical evidence or mathematical calculation. While this degree of scientific certainty may have governed the contents of Trooper Grayson's report, we believe that such an exacting assessment of purported expert testimony is contrary to the standard adopted by our Supreme Court, which does not “go so far as to require the expert's testimony to be proven conclusively reliable or indisputably valid before it can be admitted into evidence.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 460, 597 S.E.2d 674, 687 (2004). Our trial courts have “broad discretion to limit the admissibility of expert testimony,” Id. at 469, 597 S.E.2d at 692, and “once the trial court makes a preliminary determination that the scientific or technical area underlying a qualified expert's opinion is sufficiently reliable (and, of course, relevant), any lingering questions or controversy concerning the quality of the expert's conclusions go to the weight of the testimony rather than its admissibility.” Id. at 461, 597 S.E.2d at 688 (emphasis added). Here, Trooper Grayson's 55 mph opinion was thoroughly vetted on cross examination and was challenged by Plaintiff's own expert witness. With the benefit of this context, it was the jury's function to determine the quantum of weight to assign to Trooper Grayson's testimony. Id.; McLean v. Mech., 116 N.C.App. 271, 277, 447 S.E.2d 459, 463 (1994) (holding that where the parties offer conflicting expert testimony, “ ‘the issue becomes one of credibility of the experts[,] and ... the jury is obligated to determine what weight each expert's testimony should receive’ “ (citation omitted)).
III. Conclusion
Because we discern no abuse of discretion in the trial court's admission of Trooper Grayson's testimony, we do not reach the issue of whether admission of this testimony prejudiced Plaintiff. See Johnson v. Heath, 240 N.C. 255, 258, 81 S.E.2d 657, 659–60 (1954) (“The burden is on the appellant not only to show error, but to show prejudicial error amounting to the denial of some substantial right; [i.e., the appellant must] show that if the error had not occurred, there is a reasonable probability the result of the trial might have been materially more favorable to him.”).
NO ERROR. Judges STEPHENS and STROUD concur.
Report per Rule 30(e).