Pelzer v. United Parcel Service, Inc.

• Decision Date: 20 May 1997
• Docket Number: No. COA96-906,COA96-906
• Citation: 484 S.E.2d 849,126 N.C.App. 305
• Court: North Carolina Court of Appeals
• Parties: Margaret PELZER, Plaintiff, v. UNITED PARCEL SERVICE, INC. and John Randall McGee, Defendants.

Page 849

484 S.E.2d 849

126 N.C.App. 305

Margaret PELZER, Plaintiff, v. UNITED PARCEL SERVICE, INC. and John Randall McGee, Defendants.

No. COA96-906.

Court of Appeals of North Carolina.

May 20, 1997.

Kennedy, Kennedy, Kennedy & Kennedy, L.L.P. by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for plaintiff-appellant.

Hutchins, Doughton & Moore by Kent L. Hamrick, Winston-Salem, for defendant-appellees.

JOHN C. MARTIN, Judge.

Plaintiff brought this action alleging that she was severely and permanently injured in a motor vehicle collision caused by the negligence of defendant McGee, an employee of defendant United Parcel Service (UPS). Defendants denied negligence and alleged that the collision had resulted from negligence on the part of plaintiff's husband, the driver of the vehicle in which plaintiff was a passenger.

Briefly summarized, the evidence at trial tended to show that on 7 December 1990 plaintiff was a right side passenger in a Ford F-150 pick-up truck driven by her husband. Defendant McGee was operating a UPS truck. Both vehicles were traveling in a northerly direction on Jonestown Road in Winston-Salem, and as the Pelzer vehicle moved into a left hand turn lane and pulled next to the UPS truck, defendant McGee also moved to his left and collided with the Pelzer vehicle.

The Pelzers' pick-up truck sustained slight damage to its right front quarter panel, and the side mirror on its right door was bent inward toward the door. There was no visible damage to the UPS truck. Plaintiff complained of pain in her right shoulder and was taken by ambulance to a hospital, where she was examined and released.

Plaintiff initially sought chiropractic treatment, and was subsequently treated by Dr. Gary Poehling, an orthopedic surgeon at Bowman Gray School of Medicine. Dr. Poehling diagnosed plaintiff as suffering from reflex sympathetic dystrophy and impingement syndrome in the right shoulder, which, in his opinion, was secondary to trauma sustained in the collision. Dr. Poehling performed sub-acromial decompression surgery on plaintiff's shoulder in October 1993, but plaintiff continues to suffer reflex sympathetic dystrophy.

Plaintiff also offered evidence tending to show that she has suffered from severe depression due to her injury, has twice attempted suicide, and has undergone psychiatric and psychological treatment. She offered medical opinion testimony that she is unable to work because of her physical and psychological disabilities. Plaintiff's medical bills exceeded $37,000.00 and she has lost earnings since the accident in the amount of nearly $100,000.00.

Other evidence tended to show, however, that functional capacity evaluations of plaintiff performed in 1991 and 1995 showed inappropriate illness behavior, movement patterns which were inconsistent with plaintiff's complaints of pain, symptom exaggeration, and capacity to engage in light-medium work. Plaintiff admitted that she had been involved in at least eight other motor vehicle collisions, before and after the one at issue in this case, and that she had sustained injuries in those collisions, including an injury to her right shoulder in a 1993 accident. Dr. Poehling attributed a portion of her disability to that accident. In addition, plaintiff sustained an injury to her right ankle in a fall down some steps sometime prior to the accident at issue here, and fell on her right shoulder at a fast food restaurant in August 1991. There was evidence tending to show that plaintiff had a history of anxiety before this accident, had a history of marital and parent-child problems which pre-existed this accident, and had attempted suicide at age nineteen.

The jury found that plaintiff had been injured by defendants' negligence and awarded her damages in the amount of $9,000.00. Plaintiff's motion, pursuant to G.S. § 1A-1, Rule 59, for a partial new trial on the issue of damages was denied. Plaintiff appeals from the judgment entered on the verdict and from the order denying her motion for a partial new trial.

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I.

Plaintiff sought to qualify Douglas Bradbury as an accident reconstruction expert and to elicit opinion testimony from him "as to whether [defendant] McGee violated those standards of care that govern travel by motor vehicles on public vehicular roads" and as to whether the manner in which the accident occurred would be consistent with the type and severity of the injuries sustained by plaintiff. After a voir dire examination, the trial court declined to admit Mr. Bradbury's opinion testimony into evidence, and plaintiff assigns error.

G.S. § 8C-1, Rule 702(a) provides: "[i]f 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." Opinion testimony is not objectionable because it embraces an ultimate issue of fact to be determined by the jury. N.C.Gen.Stat. § 8C-1, Rule 704. However, an expert may generally not testify that a certain legal standard has or has not been met, HAJMM Co. v. House of Raeford Farms, 328 N.C. 578, 403 S.E.2d 483 (1991), and "it is not error for a trial court to refuse to admit expert testimony embracing a legal conclusion that the expert is not qualified to make." State v. Weeks, 322 N.C. 152, 164, 367 S.E.2d 895, 903 (1988). The decision as to whether the witness possesses the requisite qualifications, and is in a better position than the jury to have an opinion on the matter so as to help the jury understand the evidence or determine the issue, is within the sound discretion of the trial court and will not be reversed by the appellate court unless there is a complete lack of evidence to support it. Griffith v. McCall, 114 N.C.App. 190, 441 S.E.2d 570 (1994).

In this case, though Mr. Bradbury is not a certified accident reconstructionist, he is a licensed professional engineer in South Carolina, taught at Clemson University for more than forty years, and has testified as an accident reconstruction witness in other cases. However, the evidence upon voir dire established, and the trial court found, that Mr. Bradbury first visited the scene of the accident nearly five years after it occurred and after the configuration of the roadway had been changed. He had never seen either of the vehicles involved in the accident and, in fact, had been provided conflicting information as to the type of UPS truck driven by defendant McGee. He took no measurements and had seen no photographs of the scene as it existed on the date of the accident. He testified that his understanding of how the accident occurred was based solely upon the investigating officer's report.

Mr. Bradbury's opinion that plaintiff's injuries were consistent with the manner in which the accident occurred was based upon the transfer of kinetic energy from the UPS truck to the Pelzer pick-up truck at the time of the collision, causing plaintiff to be thrown against the inside of the truck and to sustain the severe injuries which she claimed. However, he made no calculations as to the velocities of either vehicle prior to or at the time of the collision,...