As I previously posted, in 2011 North Carolina became a Daubert state which raised the bar for the admissibility of expert testimony in NC state courts.  In April of 2015, the NC Court of Appeals issued its first decision analyzing a civil case under Daubert in Estate of Fries v. Bridge Broom, Inc.  The case involved the death of Susan Fries who was riding on a motorcycle with her husband.  According to the opinion, Mrs. Fries was “thrown from the motorcycle and died after her husband tried to avoid one of Defendant’s trucks that was performing a street-sweeping operation.”

At trial, Plaintiff’s expert opined that Defendant’s operation violated several state and federal laws and failed to do such things “as placing advanced warning signs…before the work zone.”

In contrast, the testimony of Defendant’s expert (Timothy Cheek) included that the “reason for Mrs. Fries’ death was Mr. Fries’ inadequate braking of the motorcycle.”  Cheek testified that Mr. Fries  “was the cause of this accident because he only used his rear brake – if he had used both his front and rear brakes, he would have been able to safely stop.”  Cheek opined that Mr. Fries had a sight distance of 800 feet and he could have safely stopped at 133 feet if he’d used both brakes. These opinions were based, in part, on the skid marks at the scene and 2 measurements performed by Cheek that are outlined in detail starting on page 9 of the opinion.

The jury returned a no negligence verdict against Defendant and Plaintiff appealed arguing, inter alia, that Cheek’s testimony should have been excluded under Daubert. The NC Court of Appeals reviewed Cheek’s testimony under Daubert and concluded, inter alia, that the trial court did not abuse its discretion in allowing Cheek’s testimony.