Heatherly v. Industrial Health Council

• Decision Date: 01 September 1998
• Docket Number: No. COA97-464.,COA97-464.
• Citation: 130 NC App. 616,504 S.E.2d 102
• Court: North Carolina Court of Appeals
• Parties: Timothy Mark HEATHERLY, Executor of the Estate of Fred W. Heatherly, Deceased, Plaintiff, v. INDUSTRIAL HEALTH COUNCIL, and Allan R. Goldstein, M.D., Defendants.

504 S.E.2d 102

130 NC App. 616

Timothy Mark HEATHERLY, Executor of the Estate of Fred W. Heatherly, Deceased, Plaintiff, v. INDUSTRIAL HEALTH COUNCIL, and Allan R. Goldstein, M.D., Defendants.

No. COA97-464.

Court of Appeals of North Carolina.

September 1, 1998.

Lindsay & Hensley by John C. Hensley, Jr., Asheville, for plaintiff-appellant.

Roberts & Stevens, P.A. by James W. Williams, Asheville, for defendant-appellee Allan R. Goldstein, M.D.

Dameron and Burgin by Charles E. Burgin, Marion, for defendant-appellee Industrial Health Council.

JOHN, Judge.

Plaintiff appeals judgment entered upon adverse jury verdict in this wrongful death action. Plaintiff contends the trial court erred by: (1) denying his motion in limine and allowing defendants to offer evidence tending to show omissions of a non-party, (2) allowing the testimony of Carl Metzger (Metzger), a manager at Vulcan Materials Company (Vulcan), the former employer of plaintiff's decedent Fred W. Heatherly (decedent), (3) refusing to prohibit defendants from arguing intervening negligence and (4) excluding the testimony of Dr. H.F. Easom (Dr. Easom) regarding the applicable standard of care. We conclude the trial court did not err.

Relevant facts and procedural history include the following: Decedent was employed as a heavy duty equipment mechanic by Vulcan at its Enka, North Carolina quarry. In order to maintain employment, decedent was required to possess a current "dusty trades work card." Pursuant to N.C.G.S. § 97-60 (1991), such cards are issued biannually based upon results of periodic medical examinations, including chest x-rays, provided by the holder's employer under the auspices of the North Carolina Department of Environment, Health and Natural Resources (DEHNR) Dusty Trades Program. Defendant Industrial Health Council (IHC) performed the required periodic examinations and testing for decedent and approximately four hundred other Vulcan employees in North Carolina.

On 17 April 1992, IHC's portable x-ray lab traveled to Enka to administer medical examinations to a group of Vulcan employees, including decedent. In the course of decedent's exam, an x-ray of his chest was taken and thereafter transported to IHC offices in Birmingham, Alabama for evaluation by defendant Dr. Allan R. Goldstein (Dr. Goldstein), IHC's medical director.

On 20 April 1992, Dr. Goldstein examined decedent's chest x-ray and found it to be within normal limits, revealing no abnormality. Dr. Goldstein noted his findings in a signed written report dated 22 June 1992. IHC mailed copies of the report to decedent and his personal physician, as well as to DEHNR.

Upon receipt by DEHNR, decedent's chest x-ray was reviewed in July 1992 by Dr. Easom of the Occupational Health Section, Division of Epidemiology. Dr. Easom noted the x-ray showed a "[p]oorly outlined round shadow rt. base—not seen 1990 film." DEHNR consequently forwarded written notification to Metzger, manager of safety and health for Vulcan, to obtain repeat x-rays of decedent's chest. However, no additional x-rays were taken and decedent learned of the request only in December 1992, when Dr. Easom's administrative assistant mailed an additional notice.

X-rays were thereafter obtained of decedent and revealed a mass on his right lung subsequently diagnosed as large cell carcinoma. Decedent died 14 November 1993 as the result of metastatic lung cancer.

Plaintiff instituted the instant action 7 March 1994, alleging decedent's death was proximately caused by the medical malpractice of Dr. Goldstein, whose actions were imputed to his employer IHC. Following denial of his motion to dismiss for lack of personal jurisdiction, Dr. Goldstein filed answer 24 March 1995, setting forth as a defense the intervening negligence of Vulcan and Metzger. IHC's motion for summary judgment was denied immediately prior to trial.

At trial, the jury answered the issue of Dr. Goldstein's negligence in the negative. The trial court accordingly entered judgment in favor of defendants 11 September 1996, and plaintiff filed timely notice of appeal.

Plaintiff first assigns as error the trial court's denial of his motion in limine which requested that the trial court

[p]rohibit[] the defendants ... from arguing or suggesting to the jury in any manner that the actions or inactions of Vulcan... in any way contributed to [decedent's] injuries and/or death or in any way lessons [sic] or relieves defendants' liability to the Plaintiff on account of their negligence.

Plaintiff contends the trial court erred by

allowing the defendants to offer evidence that Vulcan ... had failed to obtain repeat chest x-rays on the decedent because such omissions of a nonparty, as a matter of law did not constitute intervening negligence and were otherwise irrelevant to the issues presented.

Plaintiff's argument is unpersuasive.

In a related assignment of error, plaintiff argues the trial court committed reversible error in allowing Metzger's testimony. Characterizing it as the "most direct evidence on Vulcan's failure to obtain repeat chest x-rays on the decedent," plaintiff maintains the evidence was irrelevant or, alternatively, that the dangers of prejudice, confusion of issues, or misleading the jury substantially outweighed its probative value. We remain unpersuaded.

A motion in limine seeks "pretrial determination of the admissibility of evidence proposed to be introduced at trial," and is recognized in both civil and criminal trials. State v. Tate, 44 N.C.App. 567, 569, 261 S.E.2d 506, 508, rev'd on other grounds, 300 N.C. 180, 265 S.E.2d 223 (1980). The trial court has wide discretion in making this advance ruling and will not be reversed absent an abuse of discretion. Webster v. Powell, 98 N.C.App. 432, 439, 391 S.E.2d 204, 208 (1990), aff'd, 328 N.C. 88, 399 S.E.2d 113 (1991). Moreover, the court's ruling is not a final ruling on the admissibility of the evidence in question, but only interlocutory or preliminary in nature. Therefore, the court's ruling on a motion in limine is subject to modification during the course of the trial. State v. Swann III, 322 N.C. 666, 686, 370 S.E.2d 533, 545 (1988).

Preliminarily, we note that while two recent simultaneous opinions of this Court may appear to state a new and different rule regarding preservation of the right to challenge on appeal the trial court's denial of a motion in limine, see Pack v. Randolph Oil Co., ___ N.C.App. ___, 502 S.E.2d 677 (1998)(no objection to introduction of evidence at trial required to preserve denial of motion in limine for appeal), and State v. Hayes, ___ N.C.App. ___, 502 S.E.2d 853 (1998)(objection to denial of motion in limine sufficient "to preserve [for appeal] the evidentiary issues which were the subject" of the motion), we believe the existing rule is well established.

Decisions of the North Carolina Supreme Court and this Court have repeatedly held that:

"a motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence." "Rulings on these motions ... are merely preliminary and subject to change during the course of the trial, depending upon the actual evidence offered at trial and thus an objection to an order granting or denying the motion `is insufficient to preserve for appeal the question of the admissibility of the evidence.'" "A party objecting to an order granting or denying a motion in limine, in order to preserve the evidentiary issue for appeal, is required to object to the evidence at the time it is offered at the trial (where the motion was denied) or attempt to introduce the evidence at the trial (where the motion was granted)."

State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997),cert. denied, ___ U.S. ___, 118 S.Ct. 1850, 140 L.Ed.2d 1099 (1998) (citations omitted); see also State v. Warren, 347 N.C. 309, 318, 492 S.E.2d 609, 613 (1997),cert. denied, ___ U.S. ___, 118 S.Ct. 1681, 140 L.Ed.2d 818 (1998); State v. Williams, 127 N.C.App. 464, 468, 490 S.E.2d 583, 586 (1997)(ruling of trial court on evidentiary matter constitutes issue on appeal, not ruling on motion in limine which is not appealable); T & T Development Company, Inc. v. Southern National Bank of South Carolina, 125 N.C.App. 600, 602, 481 S.E.2d 347, 348-49,disc. review denied, 346 N.C. 185, 486 S.E.2d 219 (1997)(ruling on motion in limine "preliminary" and objection to order granting or denying motion insufficient to preserve evidentiary issue for appeal); Hartford Underwriters Insurance Company v. Becks, 123 N.C.App. 489, 494-95, 473 S.E.2d 427, 430-31 (1996), cert. denied and disc. review denied, 345 N.C. 641, 483 S.E.2d 708 (1997)(to preserve for appeal evidentiary matter underlying motion in limine, general objection at least must be interposed to introduction of evidence at trial); State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46,cert. denied, 516 U.S. 884, 116 S.Ct. 223, 133 L.Ed.2d 153 (1995); and Beaver v. Hampton, 106 N.C.App. 172, 176-77, 416 S.E.2d 8, 11,disc. review allowed, 332 N.C. 664, 424 S.E.2d 398 (1992), aff'd in part on other grounds and vacated in part on other grounds, 333 N.C. 455, 427 S.E.2d 317 (1993).

Most recently, the North Carolina Supreme Court reiterated the long-standing rule:

"[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 the evidence at the time it is offered at trial."

Martin v. Benson, 348 N.C. 684, ___, 500 S.E.2d 664, 665 (1998) (quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845-46).

Without question, this Court is required to follow decisions of our Supreme Court until the Supreme Court orders otherwise. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993). Similarly, where one panel of this Court has decided an issue, a subsequent panel is bound by that precedent, albeit in a different case, unless it has been overturned by a higher court. In the Matter of Appeal...