New DWI Laws Allow Speed Testimony under Rule 702(i)
As of December 1, 2006, the new Rule 702(i) will allow accident reconstructionists who have been qualified as experts to give an opinion as to the speed of a vehicle, even if they did not observe the moving vehicle(s). Please note that this should apply to accidents occurring on or after December 1, 2006.
You can view the legislation as ratified on the General Assembly's website.
Speed Testimony not Allowed in Past
North Carolina case law over the last decade has not allowed expert speed testimony. The only speed testimony allowed has been from eye witnesses who actually had the opportunity to observe the vehicles. There have been several cases where qualified experts have attempted to give speed testimony, but have been blocked.
Speed Testimony a killer combined with Contributory Negligence
North Carolina is, of course, a contributory negligence state. That means that if the Plaintiff contributed to the negligence that caused the injury or damages, the Plaintiff is completely barred from recovery.
I think that with this new rule, we Plaintiff's will see a huge increase in the number of contributory negligence defenses. I particularly think this will be the case in Interstate collisions where the common juror knows that most people exceed the posted speed limit.
Also, I think we'll see this defense mounted in country road intersection cases. The type where the defendant pulls from a side road to the "main" country road that connects two rural towns. Many of these rural roads have speed limits of 45 mph, and local residents routinely exceed that speed when there are no cars present on the highway.
New Cottage Industry of Insurance Experts?
Because insurance companies have nearly unlimited financial resources, I think that we will see quick growth in the accident reconstruction trade and will routinely see "speed opinions" in personal injury cases. Insurance defense attorneys know that contributory negligence is an easy way to avoid paying on a claim, and that many juries are happy to point the blame both directions, at the Plaintiff and the Defendant.
Additionally, in smaller cases, the Plaintiff may not have the resources to spend several thousand dollars on an expert opinion to contradict the insurance expert's opinion. So as lawyers, we need to brace ourselves for this in the coming year.
I personally think this is bad law for North Carolina. I believe in science, but I also believe the old yard, "Statistics don't lie, liars use statistics." I think that these experts will be "telling" a jury what to do, using complicated formulas, and may be misleading.
Maybe this will lead our General Assembly to conclude, once and for all, that contributory negligence should be replaced with comparative fault and North Carolina should join 47 others states in the modern age.
Tips to Avoid Contributory Negligence and Expert Speed Testimony
Expert testimony based on speed is dependent on physical evidence for the most part. Experts measure skid marks, co-efficients of friction, tire wear, physical impact to vehicle parts, and other objective criteria to make educated guesses on speed.
I've found that it is important to collect the data early because opposing experts tend to only take photographs of what is favorable to their position. So I suggest that you get out as quickly as possible and document your crash.
- Spoliation Letters Should go out Immediately
You need to send a spoliation letter to the Defendant and his/her insurance company to make sure that their vehicle is preserved for your investigation. My guess is that because insurance companies are often very slow to process these items, you may find that the defendant's vehicle gets fixed or sold before they "preserve" the evidence. If the insurance company destroys the evidence before you can document it, you have an excellent chance to get their expert's opinion precluded with a motion in limine.
- Eye Witness Statements Trump Expert Opinions
I also suggest that you have a staff member or a private investigator take statements immediately from eye witnesses, including the defendant. If you have not filed a suit, you can contact the defendant directly. While this is not law, I believe that an eye-witness account of the speed of the vehicles will "trump" that of calculations of the expert. Additionally, eye-witnesses will be able to help establish a defense of "last clear chance" saying that your client had no way to avoid the collision, no matter what speed he or she may have been going.
In conclusion, I think the new law will present some challenges to plaintiff's lawyers but if we get the case moving early and prepare for the worst, we should be able to beat expert opinions that have been bought and paid for by the rich insurance industry.