Hammel v. Usf Dugan, Inc.

• Decision Date: 05 July 2006
• Docket Number: No. COA05-849.,COA05-849.
• Citation: 631 S.E.2d 174
• Parties: Francis P. HAMMEL, Plaintiff, v. USF DUGAN, INC., Defendant.
• Court: North Carolina Court of Appeals

631 S.E.2d 174

Francis P. HAMMEL, Plaintiff, v. USF DUGAN, INC., Defendant.

No. COA05-849.

Court of Appeals of North Carolina.

July 5, 2006.

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Appeal by defendant from two orders entered 15 November 2004 by Judge Leon Stanback in the Superior Court in Wake County, an order entered 29 July 2004 by Judge Orlando F. Hudson, an order entered 21 September 2004 by Judge Donald W. Stephens, and denials by the court of defendant's motions to exclude evidence and to continue the trial date or to exclude testimony, and of pretrial motions in limine. Heard in the Court of Appeals 15 March 2006.

Twiggs, Beskind, Strickland & Rabenau, P.A., by Howard F. Twiggs, Donald R. Strickland and Donald H. Beskind, Raleigh, for plaintiff.

Smith Moore, L.L.P., by James G. Exum, Jr., Allison O. Van Laningham and Travis W. Martin, Greensboro, for defendant.

HUDSON, Judge.

On 19 July 2002, plaintiff Francis P. Hammel filed a complaint against defendant USF Dugan, Inc., ("defendant") and Allan Harvey Chappell, alleging negligence and seeking damages for injuries Hammel received as the result of a collision between his vehicle and defendant's truck. On 15 August 2002, defendant removed the case to the United States District Court for the Eastern District of North Carolina. On 8 October 2002, the case was remanded to the superior court in Wake County. The court entered a consent order on 26 July 2004 in which defendant admitted liability and plaintiff dismissed Chappell from the case. Following a trial, the jury awarded plaintiff $6,000,000 on 21 October 2004. Defendant moved for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for a new trial, which motion the court denied. Defendant appeals. As discussed below, we affirm.

On 31 August 1999, defendant's truck, driven by Chappell, collided with plaintiff's vehicle. Plaintiff, a self-employed truck driver alleged that he sustained orthopedic injuries and a closed head injury resulting in brain damage, and sought damages for pain and suffering, medical expenses, loss of enjoyment of life, and loss of income and future earning capacity. Pretrial, defendant moved for a mental and physical examination of plaintiff. Plaintiff had previously been examined twice by Dr. Edward Feldman, one of defendant's testifying expert witnesses. The court denied defendant's motion. At trial, defendant conceded plaintiff's orthopedic injuries, but contested his head injuries and brain damage, and any permanent consequences therefrom. Plaintiff's psychiatrist, Dr. Felicia Smith, his primary care physician, Dr. Frank Breslin, his speech pathologist, Robin Mirante, and his neurologist, Dr. Steve Massaquoi, each testified that plaintiff sustained a brain injury. Defendant offered testimony from Dr. Feldman, a neurologist, and from Dr. Robert Conder, a neuropsychologist. Plaintiff then called Patrick Logue, a neuropsychologist, in rebuttal.

Plaintiff also introduced evidence from Cynthia Wilhelm, Ph.D., a life care planner, and from Dr. Finley Lee, an economist, regarding the value of plaintiff's economic loss. Defendant objected to Dr. Lee's written report as being hearsay, since his analysis regarding plaintiff's future earning capacity was based on a report prepared by Maria Vargas, a vocational rehabilitation specialist who did not testify at trial. Ms. Vargas based her report on median wage data from the United States Bureau of Labor Statistics about truck drivers. The court overruled defendant's objection and admitted Dr. Lee's report. At the close of evidence, the court instructed the jury regarding damages as follows:

Damages for personal injury also include fair compensation for the partial loss of the use of Plaintiff's brain, left hip, left leg, left knee, left elbow, right wrist, lower back, mid back and neck experienced by the Plaintiff as a proximate result of the negligence of the defendant. There's no fixed formula for placing a value on the partial loss of the use of Plaintiff's brain, left hip, left leg, left knee, left elbow, right wrist, lower back, mid back and neck. You must determine what is fair compensation by applying logic and common sense to the evidence.

(Emphasis supplied.) Counsel for defendant objected to this instruction on grounds that it suggested that plaintiff in fact had suffered a brain injury, a matter which was contested at trial. The court overruled defendant's objection. After the jury returned its verdict awarding $6,000,000 to plaintiff, defendant moved for JNOV, which motion the court denied.

Defendant first argues that the trial court erred by inserting the word "plaintiff's" at two points and in listing the brain along with other body parts in the pattern jury instruction given. We disagree.

On appeal,

this Court considers a jury charge contextually and in its entirety. Jones v. Development Co., 16 N.C.App. 80, 86, 191 S.E.2d 435, 439, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972). The charge will be held to be sufficient if "it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. . . ." Id. at 86-87, 191 S.E.2d at 440. The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by an omitted instruction. Robinson v. Seaboard System Railroad, 87 N.C.App. 512, 524, 361 S.E.2d 909, 917, disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). "Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury." Id.

Boykin v. Kim, ___ N.C.App. ___, ___, 620 S.E.2d 707, 713 (2005).

Defendant contends that by including the contested brain injury in the list along with the conceded orthopedic injuries, the court "essentially removed a factually contested issue from the jury's consideration." The corresponding sentence in the pattern instruction reads:

Damages for personal injury also include fair compensation for the partial loss use of (list body parts affected) experienced by Plaintiff as a proximate result of the negligence of the defendant.

N.C.P.I.—Civil 810.12. "This Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." Caudill v. Smith, 117 N.C.App. 64, 70, 450 S.E.2d 8, 13 (1994), disc. review denied, 339 N.C. 610, 454 S.E.2d 247 (1995). As in the instruction given here, the pattern instruction would have included both the conceded and contested body parts in the same list.

Defendant also contends that the court's insertion of the word "Plaintiff's" immediately before the list of body parts created what "amounted to a peremptory instruction." However, we look to the entirety of the jury instruction on damages. Here, the court made numerous statements to the jury properly describing the jury's duty in this case, including: "[t]he plaintiff has the burden of proving that the defendant's negligence was a proximate cause of the plaintiff's injuries and damages" and "[t]his means that the plaintiff must prove by the greater weight of the evidence the amount of actual damages proximately caused by the negligence of the defendant." Even were the court's inclusion of the word "Plaintiff's" in the instruction error, in light of these statements and numerous others, defendant cannot show that the jury was likely to be misled as to its duty. We overrule this assignment of error.

Defendant next argues that trial court erred in admitting inadmissible hearsay evidence regarding plaintiff's lost future earning capacity. We disagree.

Defendant USF Dugan, Inc., assigns as error:

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(3) The trial court's denial of Defendant's Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial on the ground that the errors cited therein, and set forth below in sub-paragraphs [below], in their cumulative effect necessitated the trial court's awarding of a new trial:

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(e) The admission through the testimony of Finley Lee, PhD., of the incompetent opinions of Maria Vargas, an occupational therapist who opined without foundation regarding the plaintiff's lost earning capacity;

Defendant thus argues error in the admission of Dr. Lee's testimony as one of a cumulative list of errors which would entitle it to JNOV or a new trial. Defendant has failed to argue this assignment of error in its brief, and thus it is abandoned. N.C. R.App. P. 28(b)(6). In its brief, defendant focuses solely on whether the trial testimony of Dr. Lee was inadmissable hearsay or inherently reliable. The argument says nothing about why these issues would entitle defendant to JNOV.

Even if the assignment of error and argument adequately brought forward the issue, it has no merit. Rule 703 governs the bases of opinion testimony by experts:

The facts or data in the particular case upon...