Tort/Negligence – Wrongful Death – Evidence – Expert Witness – Motorcycle Speed

Moore v. Smith (Lawyers Weekly No. 13-16-0388, 14 pp.) (Chris Dillon, J.) Appealed from Buncombe County Superior Court (Gary M. Gavenus, J.) N.C. App. Unpub.

Holding: Although a state trooper’s report indicated that plaintiff’s decedent’s motorcycle was traveling at a minimum of 48.53 mph (in a 45 mph zone) when defendant pulled his truck out onto the same road, the trial court did not abuse its discretion when it allowed the trooper to give his opinion that the motorcycle was going 55 mph.

We affirm judgment for defendant.

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 the decedent 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 N.C. R. Evid. 702(a)(1) and lacked a “proper foundation” as required by Rule 702(i).

The totality of Trooper Grayson’s testimony reveals a factual basis sufficient to support his opinion regarding the decedent’s “actual speed” of 55 mph. Significantly, Trooper Grayson states in his report that 48.53 mph was the minimum speed at which the decedent could have been traveling.

Moreover, Trooper Grayson testified in detail concerning the basis for his 55 mph estimate of the decedent’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 55 miles per hour.” We cannot say that the trial court’s admission of this testimony was arbitrary or unsupported by reason.

Plaintiff essentially asks this court to reject the contested testimony because it was not supported by physical evidence or mathematical calculation. 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. 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.

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.

No error.