Hill v. Boone

• Decision Date: 21 September 2021
• Docket Number: No. COA20-488,COA20-488
• Parties: Hortense Pamela HILL, Plaintiff, v. David Warner BOONE, M.D., and Raleigh Orthopaedic Clinic, P.A., Defendants.
• Court: North Carolina Court of Appeals

865 S.E.2d 722

Hortense Pamela HILL, Plaintiff,

v.David Warner BOONE, M.D., and Raleigh Orthopaedic Clinic, P.A., Defendants.

No. COA20-488

Court of Appeals of North Carolina.

Filed September 21, 2021

Knott and Boyle, PLLC, by W. Ellis Boyle and Benjamin Van Steinburgh, Raleigh, for plaintiff-appellant.

Yates McLamb & Weyher, LLP, Raleigh, by John W. Minier and Alexandra L. Couch, for defendants-appellees.

MURPHY, Judge.

¶ 1 Evidence regarding damages may not typically be admitted during the liability portion of a bifurcated trial pursuant to N.C.G.S. § 1A-1, Rule 42(b)(3). However, as here, when Plaintiff opened the door to evidence relevant for impeachment purposes by testifying regarding her current health condition during the liability portion of such a bifurcated trial, the opposing party was allowed to ask questions and present relevant evidence for the limited purpose of impeaching that testimony, even though such evidence would otherwise be inadmissible due to its relation to damages. When using a videotape to impeach a party's testimony, the videotape must be properly authenticated, which was accomplished here by Plaintiff's admission that she is the person in the videotape and that the videotape portrayed a time period relevant for impeachment purposes. Finally, the trial court was not required to give a limiting instruction regarding evidence admitted for impeachment purposes in the absence of a request for such an instruction.

BACKGROUND

¶ 2 Plaintiff Hortense Pamela Hill sued Dr. David Warner Boone and Raleigh Orthopaedic Clinic, P.A. (collectively, "Defendants") for malpractice arising from surgeries to her right foot. On 2 May 2014, Dr. Boone operated on Plaintiff's right foot to remedy calcaneocuboid osteoarthritis

. He used a 45 mm screw, which traveled 7 to 10 mm past the bottom of Plaintiff's bone into soft tissue. When Plaintiff reported experiencing pain in different areas of her foot, Dr. Boone took an x-ray from a different angle than previous x-rays taken after surgery, discovered the screw used in the initial surgery was too long, and recommended an additional surgery. During the second surgery on 13 June 2014, Dr. Boone removed the original screw and replaced it with a 36 mm screw.

¶ 3 In her Complaint filed 15 March 2017, Plaintiff alleged Dr. Boone negligently performed the 2 May 2014 surgery, and claimed she suffers "unremitting pain in her right foot ... [which is] more intense after she walks for even a few feet" and that she "cannot stand more than a few minutes without severe pain in her right foot." She also claimed she could not "partake in activities she previously enjoyed such as dancing, bowling, going to the movies, being a spectator at sporting events, traveling, and walking her dog."

¶ 4 On 14 February 2019, Plaintiff moved to bifurcate the trial pursuant to N.C.G.S. § 1A-1, Rule 42(b)(3), which the trial court granted on 18 March 2019. The trial court's decision to bifurcate the trial is not challenged by either party on appeal.

¶ 5 At trial, Plaintiff testified she currently uses a scooter and that she was not using a scooter to get around in November of 2013 when she re-injured her foot or prior to that. She testified that she continues to take the same amount of nerve blocking medication because of pain in her right foot as she did in 2014, the pain decreased but never went away after the surgery, and that she could not find anything that could be done to take the pain away–"basically it is ... there and that's it." (Emphasis added). On cross-examination, she also stated "[t]he toes is what I meant can't touch anything.... It's my big toe and my three toes next to it is what can't touch anything."

¶ 6 On cross-examination and over Plaintiff's objection, Defendants played and asked questions regarding an exhibit compiling videos of Plaintiff obtained via private surveillance, which "shows Plaintiff walking, visiting various stores, navigating street curbs on her allegedly injured foot, climbing stairs, driving around town, loading her car with groceries, babysitting her grandson, pushing a stroller, and carrying her grandson while navigating curbs, among other things."

¶ 7 Plaintiff had been deposed on 30 August 2017, where she described the current condition of her foot extensively. At trial, Defendants’ first reference to that deposition occurred prior to playing the videotape surveillance and during a question by Defendants about Plaintiff quitting a job in 1999, to which Plaintiff objected. After that initial reference to the deposition, Defendants showed the videotape surveillance for the purpose of impeaching her testimony; then, Defendants played a video of Plaintiff's deposition testimony where Plaintiff claimed she could not drive, walk, or wear shoes as she used to, could not walk her dog, would not be able to take her new grandchild in a stroller because she "can't walk," "[n]o one can touch [her] foot[,]" and "can't have a blanket, a sock or shoe or anything on [her] foot ... [i]t feels like it's on fire ... [and she is] in pain constantly." Although Plaintiff objected to the prior reference to the deposition, Plaintiff did not object to Defendants playing the video of the deposition.¹

¶ 8 While Defendants cite the 26 March 2019 transcript to claim the deposition was introduced without objection "while cross-examining Plaintiff at trial," the introduction without objection referenced in Defendants’ brief occurred on 26 March 2019, upon Defendants’ re-direct examination of their own witness. While Plaintiff was on the stand, after the initial objected-to reference to the deposition and subsequent playing of the videotape surveillance, Defendants played the deposition video while cross-examining Plaintiff, without further objection. Plaintiff reaffirmed her deposition testimony, stating:

[DEFENDANTS’ COUNSEL:] And during that deposition there were a number of questions where I was asking how you were doing after Dr. Boone's surgeries?

[PLAINTIFF:] Yes.

[DEFENDANTS’ COUNSEL:] And at that point you told me that you had to be in bed most of time, right?

[PLAINTIFF:] To keep my foot up, yes.

¶ 9 Outside of the presence of the jury, the trial court allowed the videotape surveillance to be admitted for Defendants’ purported impeachment purposes only.

¶ 10 During closing arguments, Defendants made the following statement regarding the videotape surveillance and Plaintiff's testimony, to which Plaintiff did not object:

You've seen the surveillance tapes, and a picture paints 1,000 words. But -- and this thing about $20,000[.00] -- $22,000[.00], how dare you spend $22,000[.00] following her around, sneaking around videoing her -- she attacked Dr. Boone and his livelihood and his profession and his integrity. And on that deposition that you saw on the video, she didn't know we were going to get all her medical records and double-check, and we were going to do surveillance and double-check. And she attacked him aggressively on that. She said she couldn't dance anymore because of his surgery.

Remember that. That's pretty aggressive.

That's just a -- to attribute her ability to dance to this surgery, given all the past, is an unfair attack and goes to her credibility. That's why we showed you all that stuff.

(Emphasis added).

¶ 11 The jury found for Defendants on liability on 29 March 2019. The trial judge entered judgment in favor of Defendants on 17 September 2019.

¶ 12 Plaintiff timely appealed pursuant to N.C.G.S. § 7A-27(b)(1) and argues the trial court improperly allowed Defendants to play the videotape surveillance, as it did not pertain to the liability portion of the bifurcated trial and was not properly authenticated. According to Plaintiff, Defendants improperly introduced the videotape surveillance as evidence and "featured" the videotape surveillance in their closing argument. Plaintiff also argues the trial court was required to give a limiting instruction regarding the videotape surveillance, and that Defendants improperly referenced the videotape surveillance in the closing of the liability portion of the trial, implying Defendants used the videotape surveillance as substantive evidence.

ANALYSIS

A. Standard of Review

¶ 13 According to N.C.G.S. § 1A-1, Rule 42(b)(3) :

Upon motion of any party in an action in tort wherein the plaintiff seeks damages exceeding one hundred fifty thousand dollars ($150,000[.00]), the [trial] court shall order separate trials for the issue of liability and the issue of damages, unless the [trial] court for good cause shown orders a single trial. Evidence relating solely to compensatory damages shall not be admissible until the trier of fact has determined that the defendant is liable. The same trier of fact that tries the issues relating to liability shall try the issues relating to damages.

N.C.G.S. § 1A-1, Rule 42(b)(3) (2019) (emphasis added).

¶ 14 Both parties argue the standard of review is abuse of discretion for this appeal, which is incorrect. See State v. Coleman , 254 N.C. App. 497, 501-02, 803 S.E.2d 820, 824 (2017) (noting we apply the correct standard of review, despite an appellant's incorrect assertion of the standard of review). We note

[t]he paramount duty of the trial judge is to supervise and control the course of the trial so as to prevent injustice. In discharging this duty, the [trial] court possesses broad discretionary powers sufficient to meet the circumstances of each case. This supervisory power encompasses the authority to structure the trial logically and to set the order of proof. Absent an abuse of discretion, the trial judge's decisions in these matters will not be disturbed on appeal.

The North Carolina Rules of Civil Procedure [specifically, Rule 42(b),] expressly preserve these inherent supervisory powers with regard to severance and bifurcation.

In re Will of Hester , 320 N.C. 738, 741-42, 360 S.E.2d 801, 804 (citations omitted), reh'g denied , 321 N.C. 300, 362 S.E.2d 780 (1987) ; see Clarke v. Mikhail , 243...