JAN CHRISTOPHER ZAREK, and
SOOSAN ZAREK,
Plaintiffs,
v
.
Cumberland County
No. 99 CVS 4878
RICHARD EUGENE STINE, and
CARTS & PARTS, INC.,
Defendants.
Twiggs, Abrams, Strickland & Rabenau, P.A., by Jerome P.
Trehy, Jr., for plaintiff-appellants.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Lee B.
Johnson, for defendant-appellees.
EAGLES, Chief Judge.
Jan Christopher Zarek and Soosan Zarek (“plaintiffs”) appeal
from judgment entered on jury verdict finding Richard Stine
negligent and Jan Christopher Zarek contributorily negligent.
After careful consideration of the briefs and record, we affirm.
On 20 July 1996, Jan Christopher Zarek, Soosan Zarek, Samatha
Zarek, plaintiffs' eighteen-month-old daughter , and Ghasem
Ebrahimi, Soosan Zarek's father, were traveling in plaintiffs' 1995
Chrysler van. Jan Christopher Zarek was operating the van while
Richard Stine was operating a tractor-trailer truck. Both partieswere traveling north on Interstate 95 in Cumberland County when
they collided at approximately 10:00 p.m. near Exit 44.
Plaintiffs' evidence tended to show that plaintiffs and
defendant Stine were traveling in the left hand northbound lane.
Plaintiffs were immediately in front of defendant Stine and for a
period of ten minutes, the distance between their vehicles would
fluctuate. Defendant Stine would drive his tractor-trailer very
close to the rear of plaintiffs' van and then plaintiffs would
accelerate to create space. Plaintiffs then approached a motor
home in the left hand lane. As an opening in traffic appeared in
the right hand lane, plaintiffs signaled a right hand turn and
began to move into the right hand lane. At the same time, the
motor home signaled a right hand turn and began slowly moving into
the right hand lane in front of plaintiffs. The distance between
the motor home and plaintiffs was decreasing so plaintiffs turned
on their left hand turn signal and “recenter[ed] [themselves] in
the left lane.” Plaintiffs were then “struck from the rear” by
defendant Stine's truck and plaintiffs' “vehicle lunged forward.”
After the collision, plaintiffs' van flipped and rolled.
Defendant Stine's evidence tended to show that defendant Stine
was traveling in the left hand lane behind a motor home when he saw
plaintiffs' van approaching in the right hand lane. Plaintiffs
passed defendant Stine on the right and “ducked in to [defendant
Stine's] lane between [defendant Stine] and [the] camper.” The
motor home's brake lights came on followed by plaintiffs' brake
lights. Defendant Stine activated his high beam lights and soundedhis air horn. Plaintiffs turned on their right hand turn signal
and moved into the right hand lane. The lane in front of defendant
Stine was clear and defendant Stine accelerated. Plaintiffs then
turned on their left hand turn signal and began to move back into
the left hand lane. Defendant Stine “grabbed the air horn and hit
the brakes” and the “left rear quarterpanel” of plaintiffs' van
struck defendant Stine's right front wheel. At the time of the
collision, plaintiffs' van was “coming into the left lane . . . .”
The matter proceeded to trial at the 24 April 2000 civil
session of Cumberland County Superior Court before Judge Robert F.
Floyd, Jr. The jury returned a verdict finding defendant Stine
negligent and plaintiff Jan Christopher Zarek contributorily
negligent in the collision. The jury awarded Soosan Zarek
$25,000.00 for her personal injuries. The trial court found as a
matter of law that defendant Stine's negligence was imputed to
defendant Carts & Parts, Inc. The trial court also ordered that
Soosan Zarek recover from defendant Stine, defendant Carts & Parts,
Inc., and Jan Christopher Zarek as joint tort-feasors. Plaintiffs
appeal.
Plaintiffs contend that the trial court committed error by (1)
excluding plaintiffs' rebuttal evidence of prior driving incidents
of defendant Stine which were offered to show that defendant Stine
was acting in a conscious and heedless disregard for the laws of
the road and for the rights and safety of the traveling public at
the time of the collision; and (2) allowing defendants' expertwitness to testify regarding the collision. After careful review,
we affirm.
Plaintiffs first contend that the trial court erred in
excluding rebuttal evidence related to defendant Stine's prior
driving record. Plaintiffs argue that they should have been
permitted to introduce rebuttal evidence of defendant Stine's
moving violations provided in defendant Stine's responses to
interrogatories. These violations included ten speeding
convictions. Plaintiffs also argue that they should have been
permitted to introduce evidence of a prior reprimand of defendant
Stine for tailgating contained in the deposition of Charles
Redmond, owner of defendant Carts & Parts, Inc. Plaintiffs contend
that this evidence was offered to show whether defendant Stines's
acts were willful or wanton in nature. The trial court denied
admission of this as rebuttal evidence.
The general rule is that it is in the
discretion of the trial judge whether to allow
additional evidence by a party after that
party has rested or whether to allow
additional evidence after the close of the
evidence. The exercise of the trial court's
discretion in such cases will not be disturbed
on appeal absent an abuse of that discretion.
Gay v. Walter, 58 N.C. App. 360, 363, 283 S.E.2d 797, 799-800
(1981), modified on other grounds, 58 N.C. App. 813, 294 S.E.2d 769
(1982) (citations omitted). “Moreover, plaintiff must show that
the trial court's denial of plaintiff's request to introduce
rebuttal evidence in some way prejudiced plaintiff's case.” Wentz
v. Unifi, Inc., 89 N.C. App. 33, 41, 365 S.E.2d 198, 202, disc.
review denied, 322 N.C. 610, 370 S.E.2d 257 (1988). “Abuse ofdiscretion results where the court's ruling is manifestly
unsupported by reason or so arbitrary that it could not have been
the result of a reasoned decision.” Thorpe v. Perry-Riddick, 144
N.C. App. 567, 570, 551 S.E.2d 852, 855 (2001) (citations and
quotations omitted).
Here, at the close of defendants' evidence , plaintiffs sought
to introduce this rebuttal evidence. The transcript reveals that
the trial court heard argument by both parties with respect to the
admission of this rebuttal evidence and considered among other
things “the prejudicial weight versus probative value” of this
evidence in deciding to deny its admission. We cannot say that the
decision of the trial court to deny admission of the rebuttal
evidence was unsupported by reason or so arbitrary that it could
not have been the result of a reasoned decision to constitute an
abuse of its discretion. But see State v. Goodman, __ N.C. App.
__, __, __ S.E.2d __, __ (March 5, 2002) (No. COA00-1417).
Plaintiffs next contend that the trial court erred by allowing
defendant Stine's accident reconstruction expert to testify
regarding his opinion about the cause of the collision. We are not
persuaded.
David C. McCandless, defendant Stine's expert witness,
developed three conclusions with respect to the collision.
Plaintiffs object to his second conclusion. At trial, McCandless
testified that:
Q. And your conclusion number two?
A. Both the damages to the exterior and the
post-impact travel of the vehiclessuggests that the van was changing lanes
from the right, or outside, lane of
travel to the left, or inside, lane of
travel which, when the two vehicles came
into contact with one another at the time
of impact, it appears that the Stine
vehicle was in the left inside lane of
Interstate 95.
McCandless prepared a report which was admitted into evidence which
contained the following conclusion:
2. Both the damage to the vehicles and the
post-impact travel of the vehicles
suggest that the van was changing lanes
from the right (outside) lane of travel
to the left (inside) lane of travel when
the two vehicles came into contact with
one another. At the time of impact, it
appears that the Stine vehicle was in the
left (inside) lane of I-95.
Plaintiffs contend that the trial court did not properly apply
State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995) in determining
the admissibility of this evidence.
[W]hen a trial court is faced with a proffer
of expert testimony, it must determine whether
the expert is proposing to testify to
scientific, technical, or other specialized
knowledge that will assist the trier of fact
to determine a fact in issue. As recognized
by the United States Supreme Court in
[Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 125 L. Ed. 2d 469 (1993)]
addressing the admissibility of expert
scientific testimony, this requires a
preliminary assessment of whether the
reasoning or methodology underlying the
testimony is sufficiently valid and whether
that reasoning or methodology can be properly
applied to the facts in issue.
Id. at 527, 461 S.E.2d at 639. Plaintiffs argue that the trial
court should have examined the methodology behind the controverted
conclusion and precluded this evidence from being admitted since itwould not assist the jury to understand the evidence or to
determine a fact in issue. We are not persuaded.
Rule 702 of the North Carolina Rules of Evidence governs the
admissibility of expert testimony and provides:
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.
G.S. § 8C-1, Rule 702(a). The test for admissibility is whether
the expert's opinion is of assistance to the trier of fact. State
v. Purdie, 93 N.C. App. 269, 275, 377 S.E.2d 789, 792 (1989).
“Preliminary questions concerning the qualifications of a witness
to testify and the admissibility of evidence shall be determined by
the trial court.” Goode, 341 N.C. at 527, 461 S.E.2d at 639; G.S.
§ 8C-1, Rule 104(a). “[T]he trial judge is afforded wide latitude
of discretion when making a determination about the admissibility
of expert testimony.” State v. Bullard, 312 N.C. 129, 140, 322
S.E.2d 370, 376 (1984).
“Daubert merely requires that the expert testimony be both
relevant and reliable . . . .” Benedi v. McNeil-P.P.C., Inc., 66
F.3d 1378, 1384 (4th Cir. 1995). Further, Daubert requires that “a
preliminary assessment of whether the reasoning or methodology
underlying the testimony is sufficiently valid and whether that
reasoning or methodology can be properly applied to the facts in
issue.” Goode, 341 N.C. at 527, 461 S.E.2d at 639 (emphasis
added). Accident reconstruction analysis has been accepted by thecourts of this state. See State v. Purdie, 93 N.C. App. 269, 377
S.E.2d 789 (1989); Griffith v. McCall, 114 N.C. App. 190, 441
S.E.2d 570 (1994). In Purdie, the accident reconstruction expert
“based his testimony on information he gleaned from the police
accident report, an interview with the investigating officer,
photographs of the accident scene, an aerial photograph of the
area, review of a transcript of a State witness's testimony, and
listening to the witnesses at trial.” Purdie, 93 N.C. App. at 273,
377 S.E.2d at 791. The expert in Purdie further stated that his
opinion that the accident occurred in a certain lane was based “on
the rotation and final resting position of the cars, the location
of the debris, the gouge marks in the pavement, and the contact
between the cars . . . .” Id. In Griffith, the accident
reconstruction expert “testified that in preparation for his expert
testimony he used” the following: the accident report; a photograph
of the vehicle; photographs of the accident scene; depositions and
statements of witnesses; aerial photographs; and a visit to the
accident scene. Griffith, 114 N.C. App. at 193, 441 S.E.2d at 572.
McCandless was called as an expert witness in the field of
accident reconstruction. We begin by noting that plaintiffs did
not object to McCandless's qualifications as an expert in the field
of accident reconstruction. McCandless investigated the accident
in order to prepare an accident report. McCandless stated that he
investigated the scene of the accident, examined the plaintiffs'
van and documents relating to plaintiffs' van, reviewed photographs
and documents relating to defendant Stine's tractor-trailer,discussed the accident with defendant Stine and Trooper Hammonds,
the investigating officer.
The trial court allowed a voir dire of McCandless. During
voir dire, McCandless was asked how he developed the basis for his
opinion in Conclusion #2 of his accident report. He stated that
his opinion was based on the type and location of the damage to
defendant Stine's tractor-trailer and plaintiffs' van, the
statements from Trooper Hammonds, the investigating officer, the
police accident report, and defendant Stine's statements regarding
the accident.
“We note that '[i]t is the function of cross-examination to
expose any weaknesses in [expert opinion testimony.]'” Griffith,
114 N.C. App. at 194, 441 S.E.2d at 573 (quoting Hairston v.
Alexander Tank & Equipment Co., 310 N.C. 227, 244, 311 S.E.2d 559,
571 (1984)). The trial court did not abuse its discretion in
permitting McCandless to testify.
Finally, plaintiffs contend that the trial court erred by
denying plaintiffs the opportunity to call as an expert a witness
that defendants had previously designated as an expert. However,
plaintiffs expressly abandoned this assignment of error in their
brief.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
Judges McCULLOUGH and CAMPBELL concur.
Report per Rule 30(e).
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