Opinion
No. COA15-880
07-05-2016
SAMMIE RAY USHER, JR., Plaintiff, v. THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, Defendant.
Tin Fulton Walker & Owen, by Sam McGee and Roane Law, by James Roane, for plaintiff-appellant. Parker Poe Adams & Bernstein, LLP, by Chip D. Holmes and Jami J. Farris, for defendant-appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Mecklenburg County, No. 11-CVS-21847 Appeal by plaintiff from judgment entered 17 September 2014 by Judge C. Thomas Edwards in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 February 2016. Tin Fulton Walker & Owen, by Sam McGee and Roane Law, by James Roane, for plaintiff-appellant. Parker Poe Adams & Bernstein, LLP, by Chip D. Holmes and Jami J. Farris, for defendant-appellee. DAVIS, Judge.
Sammie Ray Usher, Jr. ("Plaintiff") appeals from the trial court's entry of judgment upon the jury's verdict in favor of the Charlotte-Mecklenburg Hospital Authority ("Defendant"). On appeal, Plaintiff argues that the trial court erred by (1) admitting evidence of Plaintiff's prior alcohol and drug use; (2) allowing an expert witness for Defendant to testify regarding matters not previously disclosed during discovery; and (3) denying the jury's request to have certain exhibits sent to the jury room. After careful review, we affirm.
Factual Background
Plaintiff was involved in an automobile accident on 4 December 2010. After being stabilized at Scotland Memorial Hospital, he was transferred the following day to Carolinas Medical Center ("CMC"), which is operated by Defendant. Having sustained severe injuries in the wreck, Plaintiff required multiple surgeries and was hospitalized at CMC for several weeks. During his stay at CMC, Plaintiff developed a deep tissue injury (also called a pressure ulcer) on his sacrum.
This type of injury is caused by sustained pressure on the affected body part.
Plaintiff filed a negligence action against Defendant in Mecklenburg County Superior Court on 23 September 2011. In his complaint, Plaintiff alleged that the pressure ulcer had resulted from the failure of Defendant's employees to act in accordance with the applicable standard of care during their treatment of him, including their "[f]ailure to provide routine preventative and daily care to prevent skin breakdown, by conducting proper skin assessments, turning and proper positioning, applications of pressure relief devices, providing good skin care, providing clean and dry bed linens and maintaining adequate nutrition and hydration."
Prior to trial, Plaintiff filed a motion in limine to exclude evidence that Plaintiff was under the influence of alcohol and cocaine at the time of the accident. The trial court denied this motion, and the case proceeded to trial before the Honorable C. Thomas Edwards on 18 August 2014. The jury found in favor of Defendant, and the trial court entered judgment. Plaintiff filed a timely notice of appeal.
Analysis
I. Motion in Limine
Plaintiff's first argument on appeal is that the trial court erred by denying his motion in limine to exclude evidence that he was under the influence of alcohol and cocaine at the time of the accident. At trial, while giving testimony regarding Plaintiff's medical history, one of Defendant's expert witnesses, Christopher Delaney, M.D. ("Dr. Delaney"), stated that Plaintiff "had a history of substance abuse, including alcohol, cocaine, and nicotine." He later testified that cocaine is a vasoconstrictor, which is a class of drugs that restricts blood flow to the extremities of the body. Additionally, one of Defendant's nursing experts, Carolyn H. Cuttino, also testified that cocaine is a vasoconstrictor and explained that alcohol abuse can lower nutrition levels, which, in turn, can affect the development of wounds.
This Court will only review an issue if it was properly preserved for appellate review. Under Rule 10 of the North Carolina Rules of Appellate Procedure, unless an issue is automatically preserved by law,
[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.N.C.R. App. P. 10(a)(1).
Our appellate courts have consistently held that under Appellate Rule 10(a)(1) "a motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the movant fails to further object to that evidence at the time it is offered at trial." Martin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998) (per curiam) (citation, quotation marks, and brackets omitted and emphasis added); see also Clarke v. Mikhail, ___ N.C. App. ___, ___, 779 S.E.2d 150, 161 (2015), disc. review denied, ___ N.C. ___, 782 S.E.2d 892 (2016).
Plaintiff concedes that he did not object at trial when Defendant elicited the above-referenced testimony. In fact, Plaintiff was actually the first to testify — under direct examination by his attorney — about his cocaine and alcohol use. In his appellate brief, Plaintiff acknowledges that under existing North Carolina law the issue of whether the trial court erred in admitting the challenged evidence was not preserved for appeal because he failed to object when the evidence was offered at trial. Plaintiff requests, however, that we adopt an exception to this rule in cases where, as here, following the denial of a motion in limine to exclude certain evidence, the moving party feels compelled — for strategic reasons — to proactively introduce evidence on the topic during its case-in-chief. Plaintiff advocates for such an exception on the ground that under existing law a party must choose between (1) strategically addressing the "bad facts" proactively during its case-in-chief; and (2) preserving its ability to appeal from the trial court's ruling in limine allowing the opposing party to introduce evidence on the topic.
Although we acknowledge the strategic dilemma parties face in this scenario, we are, of course, bound by the decisions of our Supreme Court, see State v. Mills, 232 N.C. App. 460, 467, 754 S.E.2d 674, 678, disc. review denied, 367 N.C. 517, 762 S.E.2d 210 (2014), and the Court has long held that "a motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the movant fails to further object to that evidence at the time it is offered at trial." Martin, 348 N.C. at 685, 500 S.E.2d at 665 (citation, quotation marks, and brackets omitted). Accordingly, we overrule Plaintiff's argument on this issue.
II. Expert Testimony
In his next issue, Plaintiff argues that the trial court erred in allowing Dr. Delaney to testify about the type of bed CMC provided for Plaintiff during his hospital stay. Plaintiff asserts that the trial court should have barred this testimony due to Defendant's failure to disclose to Plaintiff in discovery the fact that Dr. Delaney intended to offer expert testimony on the issue.
A trial court's decision to admit or exclude evidence is generally reviewed under an abuse of discretion standard. Williams v. Bell, 167 N.C. App. 674, 678, 606 S.E.2d 436, 439, disc. review denied, 359 N.C. 414, 613 S.E.2d 26 (2005). That same standard of review is also used when reviewing a trial court's decision regarding whether to impose discovery sanctions. Swink v. Weintraub, 195 N.C. App. 133, 145, 672 S.E.2d 53, 61 (2009), disc. review denied, 363 N.C. 812, 693 S.E.2d 352 (2010). "The test for abuse of discretion is whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision." Beard v. WakeMed, 232 N.C. App. 187, 193, 753 S.E.2d 708, 712-13 (2014) (citation omitted).
A. Preservation
As a preliminary matter, Defendant asserts that Plaintiff failed to preserve this issue for appeal. Defendant argues that it is unclear from the record whether the ground for Plaintiff's objection at trial to Dr. Delaney's testimony on this issue was that the testimony was beyond the scope of Defendant's pre-trial disclosures, which is the basis for Plaintiff's appeal on this issue. As noted above, Appellate Rule 10(a)(1) provides that in order to preserve an issue for appellate review a party must have stated the "specific grounds" for its objection at trial unless the grounds are apparent from the context. N.C.R. App. P. 10(a)(1); see also State v. Rainey, 198 N.C. App. 427, 434, 680 S.E.2d 760, 767, (holding that "general objection" that fails to indicate specific grounds for objection is insufficient to preserve issue for review), appeal dismissed and disc. review denied, 363 N.C. 661, 686 S.E.2d 903 (2009).
During an earlier portion of Defendant's direct examination, Plaintiff specifically objected to Dr. Delaney testifying about certain aspects of Plaintiff's medical history on the ground that Dr. Delaney had not discussed them in his deposition. The trial court overruled this objection. Later in the examination, Dr. Delaney was asked whether Plaintiff's placement on a rigid backboard for several hours after the accident contributed to the development of his pressure ulcer. Plaintiff objected that "[t]his goes beyond the scope of [Dr. Delaney's] opinion." This objection was also overruled.
Shortly thereafter, the following exchange occurred:
Q Let's talk for a moment about what was done at CMC in light of [the risk of soft tissue injury].
Can you talk first about the specialty bed that was utilized.
Are you familiar with that particular type of bed?
A I am.
Q First of all, talk to us about what kind of bed this was.
A The type of bed was called a Total Care ICU Bed 2.
Just a few details about it. It's important. 92[ ] inches long, 42 inches high with the bed rails up.
It has a working surface if the patient is on a ventilator surface, 500 pounds.
MR. ROANE: The plaintiffs [sic] object to this.
THE COURT: The objection is overruled.
Dr. Delaney then proceeded to testify in detail — without further objection from Plaintiff — about the specialty bed Plaintiff used at CMC, including how its air-filled bladder fluctuated automatically in order to relieve pressure on his body and reduce the need for frequent turning. Dr. Delaney also drew a diagram of the bed on a poster board for the jury to see.
On appeal, Plaintiff asserts that "it is clear from both words and context that Plaintiff objected to any opinion testimony beyond the scope of Dr. Delaney's disclosure and deposition, and specifically his testimony and drawings with regard to the bed." Plaintiff contends that his two earlier objections asserting that Dr. Delaney's testimony was beyond the scope of his deposition, both of which were overruled, made it apparent that Plaintiff's later objection to Dr. Delaney's testimony about the specialty bed was similarly based on Defendant's failure to disclose his opinion on this topic before trial.
We are not persuaded that specific grounds for Plaintiff's objection to the challenged portion of Dr. Delaney's testimony at trial regarding the specialty bed were either explicitly stated or "apparent from the context" of the objection as required by Appellate Rule 10(a)(1). Based on our reading of this portion of the transcript, Plaintiff's objection was merely a general one, and other possible grounds could have existed for Plaintiff's objection. Thus, Plaintiff failed to properly preserve this argument for appeal. See, e.g., Rainey, 198 N.C. App. at 434, 680 S.E.2d at 767 (holding that "objections made during trial were not sufficiently specific to preserve the issue for appellate review"); State v. Moore, 152 N.C. App. 156, 162, 566 S.E.2d 713, 717 (2002) ("[D]efendant lodged a general objection to [the witness'] statement and thus failed to preserve this issue for appeal.").
B. Admissibility
However, even assuming arguendo that this issue had been adequately preserved, we do not agree with Plaintiff that the trial court abused its discretion by allowing Dr. Delaney's testimony. Plaintiff contends that he was "given no prior notice either of the detailed testimony regarding the bed in question, nor of the opinion that the bed essentially could replace turning and repositioning."
Dr. Delaney's expert disclosure stated that he would offer testimony regarding, inter alia, the appropriate standard of care, the nurses' evaluation and care of Plaintiff, and Dr. Delaney's opinion that the nurses exercised sound judgment and reasonable care and did not deviate from the appropriate standard of care.
Moreover, when asked during his deposition how CMC could reduce the risk of pressure ulcers, Dr. Delaney stated that "there are a couple of ways. The first and most important probably is by providing appropriate pressure, modifying bed surfaces." Thus, the subject of bed surfaces was expressly raised in Dr. Delaney's deposition, and Plaintiff has not demonstrated that he was foreclosed from pursuing this topic in the deposition.
We are unable to conclude that Plaintiff has shown an abuse of discretion. Dr. Delaney's expert disclosure stated that he would discuss the actions taken by Defendant's nurses toward Plaintiff in conformity with the applicable standard of care. Then, during his deposition, Dr. Delaney specifically stated that "modifying bed surfaces" was important to reducing the risk of pressure ulcers. Thus, the trial court could have rationally concluded that Plaintiff was on notice that Dr. Delaney might — in the course of discussing whether Plaintiff's nurses acted within the standard of care for preventing pressure ulcers — discuss what bed surface was actually used for Plaintiff at CMC and why that was important. While the better practice is for parties' pre-trial disclosures regarding anticipated expert witness testimony to contain all of the specific opinions to be offered by the expert witness at trial, under the circumstances of this case, we cannot say that the trial court's decision to allow Dr. Delaney to testify on this issue constituted reversible error.
Defendant's citations to Willoughby v. Kenneth W. Wilkins, M.D., P.A., 65 N.C. App. 626, 310 S.E.2d 90 (1983), disc. review denied, 310 N.C. 631, 315 S.E.2d 697 (1984), and Green v. Maness, 69 N.C. App. 292, 316 S.E.2d 917, disc. review denied, 312 N.C. 622, 323 S.E.2d 922 (1984), are misplaced as both cases involved disclosure of expert witnesses mere days before trial. Here, Dr. Delaney was disclosed as an expert and deposed months before trial.
C. Prejudice
Even assuming arguendo that the trial court did err in admitting the above-referenced testimony of Dr. Delaney, Plaintiff has failed to demonstrate that he was prejudiced by its admission. See Swink, 195 N.C. App. at 145, 672 S.E.2d at 62 (holding that in order for erroneous admission of evidence to warrant new trial, appellant must demonstrate prejudice stemming from admission of challenged testimony).
Plaintiff's prejudice argument is undermined not only by the fact that — as shown above — Dr. Delaney expressly mentioned in his deposition the relationship between bed surfaces and the prevention of pressure ulcers but also because Plaintiff's own expert witness, Richard Bonfiglio, M.D. ("Dr. Bonfiglio"), discussed at length during his own deposition the value of specialized bed surfaces in helping prevent pressure ulcers. For instance, he stated that "[a] Clinitron bed is a specialized bed that helps to reduce the amount of pressure in any one location" on the body and that it was his "understanding from looking at [CMC's] policies and procedures that they do have fluidized Clinitron type beds available."
In addition, another of Plaintiff's experts, Penny Jones, a nurse, testified during trial that Plaintiff was on a "low air loss" "specialty bed" while at CMC, which "decreases some pressure" on the patient's body. Thus, Plaintiff cannot establish that he was unfairly prejudiced by Dr. Delaney's testimony on this subject. For all of these reasons, Plaintiff's argument on this issue lacks merit.
III. Jury's Request for Exhibits
In Plaintiff's final argument, he contends that the trial court erred by denying the jury's request during its deliberations to review copies of two medical journal articles discussed by both parties and admitted into evidence. We review for abuse of discretion a trial court's decision whether to grant a request by the jury to review evidence. State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009), cert. denied, 559 U.S. 1052, 176 L.Ed.2d 568 (2010).
N.C. Gen. Stat. § 1-181.2(b) states, in pertinent part, as follows:
Upon request by the jury, the court may in its discretion and after permitting the parties an opportunity to be heard permit the jury to take into the jury room admitted exhibits which have been passed to the jury, photographs admitted into evidence and shown to the jury and used by any witnesses in their testimony before the jury, and any illustrative exhibits admitted into evidence and used by any witnesses in their testimony before the jury.N.C. Gen. Stat. § 1-181.2(b) (2015). Under this standard, the trial court retains "the sole discretion to permit the jury to . . . take evidence admitted at trial into the jury room . . . , provided that the parties are permitted to be heard before the trial court makes its decision." Redd v. Wilcohess, L.L.C., 227 N.C. App. 293, 295, 745 S.E.2d 10, 12, disc. review denied, 367 N.C. 253, 749 S.E.2d 860 (2013).
Here, the jury requested to view two medical journal articles on the topic of pressure ulcers that were referenced extensively by both parties and entered into evidence as Plaintiff's Exhibits 13 and 14. Defendant objected to sending the articles back to the jury, while Plaintiff argued in favor of doing so. After hearing the parties' arguments, the trial court denied the jury's request.
Rule 803(18) of the North Carolina Rules of Evidence lists the following exception to the hearsay rule:
Learned Treatises. - To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.N.C.R. Evid. 803(18) (emphasis added).
The commentary to Rule 803(18) explains that the rule
avoids the danger of misunderstanding and misapplication by limiting the use of treatises as substantive evidence to situations in which an expert is on the stand and available to explain and assist in the application of the treatise if desired. The limitation upon receiving the publication itself physically in evidence, contained in the last sentence, is designed to further this policy.N.C.R. Evid. 803(18) cmt. (emphasis added).
In his brief, Plaintiff appears to be arguing that because the trial court allowed the articles to be admitted as exhibits and they were discussed extensively by witnesses, the trial court should have granted the jury's request to review them during deliberations. However, the fact that the actual admission of the articles into evidence violated Rule 803(18) belies the notion that the trial court was obligated to allow the jury to review them. Indeed, to the contrary, granting the request would have compounded the error of allowing their admission in the first place. Accordingly, Plaintiff's argument lacks merit.
Conclusion
For the reasons stated above, the trial court's judgment is affirmed.
AFFIRMED.
Judges CALABRIA and TYSON concur.
Report per Rule 30(e).