Gray v. Allen, No. COA08-1092.

Docket NºNo. COA08-1092.
Citation677 S.E.2d 862
Case DateJune 02, 2009
CourtCourt of Appeal of North Carolina (US)
677 S.E.2d 862
Kimlen Dyess GRAY, Administratrix of the Estate of Rickey L. Gray, Plaintiff,
v.
Benjamin G. ALLEN, Charles A. Crumley and Albemarle Surgical Clinic, P.A., Defendants.
No. COA08-1092.
Court of Appeals of North Carolina.
June 2, 2009.

[677 S.E.2d 864]

Appeal by plaintiff from judgment entered 28 August 2007 by Judge Mark Klass in Stanly County Superior Court. Heard in the Court of Appeals 8 April 2009.

Katten Muchin Rosenman, LLP, by William L. Sitton, Jr., Charlotte, for plaintiff-appellant.

Shumaker, Loop & Kendrick, LLP, by Scott M. Stevenson, Stacy H. Stevenson, and Tasha L. Winebarger, Charlotte, for defendants-appellees.

ELMORE, Judge.


In 2003, Rickey Gray (decedent), husband of Kimlen Dyess Gray (plaintiff), died following complications from a laparoscopic abdominal procedure performed by Dr. Benjamin G. Allen (defendant Allen) and Dr. Charles A. Crumley (defendant Crumley). Plaintiff brought a medical malpractice claim against defendants Allen and Crumley and their medical facility, Albemarle Surgical Clinic (defendant Clinic), based on the treatment provided to decedent. At the close of trial, the jury returned a unanimous verdict in favor of defendants, and plaintiff appealed based on several questions of the admissibility of evidence. After careful review, we find no error.

I. Facts

On 2 December 2003, at defendant Clinic, defendants Crumley and Allen performed a laparoscopic hernia repair (also called a herniorrhaphy) on decedent to repair a chronic ventral hernia. Decedent had undergone two previous non-laparoscopic surgeries for the same hernia. Defendant Allen had performed numerous laparoscopic procedures, including eight or nine herniorrhaphies performed alongside defendant Crumley; defendant Crumley had performed eighteen such procedures himself at the time of decedent's procedure.

Decedent was discharged on 4 December 2003. Later the same day, plaintiff called defendant Clinic and reported to the receptionist who answered the phone that decedent was in a great deal of pain. Plaintiff received no return call from either defendant Crumley or defendant Allen and thus called again when defendant Clinic opened on 5 December, reporting decedent's condition. Plaintiff later received a phone call telling her to bring decedent in to defendant Clinic later that morning.

When plaintiff brought decedent back to defendant Clinic, defendant Crumley ordered a CT scan of decedent's abdomen. The scan revealed a bowel perforation and sepsis; this was confirmed by the ensuing emergency surgery performed by defendant

677 S.E.2d 865

Crumley.1 After the operation, decedent was placed in intensive care to be treated for septic shock. His condition continued to deteriorate, however, and decedent passed away in the evening of 6 December. Plaintiff then instigated this suit against defendants for negligence.

At trial, two motions in limine were made by defendants to exclude certain evidence. The first motion concerned defendant Crumley's taking and failing five times the board examination to become board certified by the American College of Surgeons (ACS), as well as the fact that, as a result, he is no longer eligible to take the examination again.

The second motion concerned details of what both sides refer to as "the Moore case." The Moore case refers to defendant Allen's overseeing the postoperative care of a patient following a laparoscopic liver biopsy who displayed the same symptoms as decedent after the procedure and who was eventually diagnosed with a bowel perforation and sepsis.

At trial, defendants moved in limine to exclude evidence of both defendant Crumley's status as to board certification and the Moore case. Both motions were granted by the trial court.

On 20 August 2007, judgment was entered pursuant to jury verdicts in favor of defendants. Plaintiff now appeals based on the admission of certain evidence by the trial court.

II. Standard of Review

"The conduct of a trial is left to the sound discretion of the trial judge, and absent abuse of discretion, will not be disturbed on appeal." Marley v. Graper, 135 N.C.App. 423, 425, 521 S.E.2d 129, 132 (1999) (quotation and citation omitted). On appeal, plaintiff has raised multiple evidentiary rulings as assignments of error. In reviewing these determinations by the trial court, we defer to the trial court and will reverse only if the record shows a clear abuse of discretion. State v. Peterson, 361 N.C. 587, 602, 652 S.E.2d 216, 227 (2007). In particular, we will review the trial court's rulings on motions in limine and on the admissibility of expert testimony at trial for an abuse of discretion. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004); State v. Wilson, 183 N.C.App. 100, 103, 643 S.E.2d 620, 622 (2007).

Under this standard, a trial court may have abused its discretion when the record shows that its ruling was so arbitrary that it "`could not have been a result of competent inquiry.'" Morris v. Gray, 181 N.C.App. 552, 556, 640 S.E.2d 737, 740 (2007) (quoting Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992)). A court has abused its discretion where its "ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Peterson, 361 N.C. at 602, 652 S.E.2d at 227 (quotation and citation omitted). Moreover, "an error in the admission of evidence is not grounds for granting a new trial or setting aside a verdict unless the admission amounts to the denial of a substantial right." Suarez v. Wotring, 155 N.C.App. 20, 30, 573 S.E.2d 746, 752 (2002). "The burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have likely ensued had the error not occurred." Id.

III. Evidence of Dr. Crumley's Board Certification

The first issue raised by plaintiff is whether the trial court erred in ruling to exclude evidence of board certification and board eligibility as to defendant Crumley. The parties concede that defendant Crumley had failed the exam for board certification as a surgeon five times, and he was therefore ineligible for board certification at the time of the incident. Ruling in limine on defendants' motion to exclude the evidence, the trial court precluded plaintiff from introducing this evidence. Plaintiff argues that it was an abuse of the trial court's discretion to allow evidence of board certification as to certain expert witnesses but to exclude evidence that defendant Crumley was no longer eligible to obtain such certification. We disagree.

677 S.E.2d 866

Under North Carolina law, evidence is not relevant and not properly admissible if it has no "logical tendency . . . to prove a fact at issue in the case." State v. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986). We find that it is a reasonable conclusion by the trial court that defendant Crumley's credential shave no logical tendency to prove a fact at issue in the case. In other words, it was reasonable for the trial court to conclude that whether or not defendant...

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11 practice notes
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • 24 Novembre 2009
    ...This applies as well to rulings on motions in limine. See Dahlin v. Holmquist, 235 Mont. 17, 766 P.2d 239, 241 (1988); Gray v. Allen, 677 S.E.2d 862, 865 (N.C.Ct.App.2009). Although relevant evidence is generally admissible, SDCL 19-12-2 (Rule 402), it may be excluded "`if its probative val......
  • Jas Enters., Inc. v. BBS Enters., Inc., Nos. 26414
    • United States
    • Supreme Court of South Dakota
    • 17 Luglio 2013
    ...rulings on motions in limine.” Id. (citing Dahlin v. Holmquist, 235 Mont. 17, 766 P.2d 239, 241 (1988); Gray v. Allen, 197 N.C.App. 349, 677 S.E.2d 862, 865 (2009)). “With regard to the rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of evidence, not when ......
  • Rieder v. Segal, No. 19-0767
    • United States
    • United States State Supreme Court of Iowa
    • 14 Maggio 2021
    ...and mislead it. Lai v. Sagle , 373 Md. 306, 818 A.2d 237, 247 (2003) (emphasis added); see also Gray v. Allen , 197 N.C.App. 349, 677 S.E.2d 862, 867 (2009) ("[E]vidence of prior lawsuits against a defendant in a medical malpractice action is not relevant to whether a physician was negligen......
  • Wise v. Alcoa, Inc., No. COA13–29.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 3 Dicembre 2013
    ...or setting aside a verdict unless the admission amounts to the denial of a substantial right.” Gray v. Allen, 197 N.C.App. 349, 353, 677 S.E.2d 862, 865 (2009). “The burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have ......
  • Request a trial to view additional results
11 cases
  • Ferebee v. Hobart, No. 24918.
    • United States
    • Supreme Court of South Dakota
    • 24 Novembre 2009
    ...This applies as well to rulings on motions in limine. See Dahlin v. Holmquist, 235 Mont. 17, 766 P.2d 239, 241 (1988); Gray v. Allen, 677 S.E.2d 862, 865 (N.C.Ct.App.2009). Although relevant evidence is generally admissible, SDCL 19-12-2 (Rule 402), it may be excluded "`if its probative val......
  • Jas Enters., Inc. v. BBS Enters., Inc., Nos. 26414
    • United States
    • Supreme Court of South Dakota
    • 17 Luglio 2013
    ...rulings on motions in limine.” Id. (citing Dahlin v. Holmquist, 235 Mont. 17, 766 P.2d 239, 241 (1988); Gray v. Allen, 197 N.C.App. 349, 677 S.E.2d 862, 865 (2009)). “With regard to the rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of evidence, not when ......
  • Rieder v. Segal, No. 19-0767
    • United States
    • United States State Supreme Court of Iowa
    • 14 Maggio 2021
    ...and mislead it. Lai v. Sagle , 373 Md. 306, 818 A.2d 237, 247 (2003) (emphasis added); see also Gray v. Allen , 197 N.C.App. 349, 677 S.E.2d 862, 867 (2009) ("[E]vidence of prior lawsuits against a defendant in a medical malpractice action is not relevant to whether a physician was negligen......
  • Wise v. Alcoa, Inc., No. COA13–29.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 3 Dicembre 2013
    ...or setting aside a verdict unless the admission amounts to the denial of a substantial right.” Gray v. Allen, 197 N.C.App. 349, 353, 677 S.E.2d 862, 865 (2009). “The burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have ......
  • Request a trial to view additional results

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