Marley v. Graper

• Decision Date: 02 November 1999
• Docket Number: No. COA98-1445.,COA98-1445.
• Citation: 135 NC App. 423,521 S.E.2d 129
• Court: North Carolina Court of Appeals
• Parties: Carla S. MARLEY and Kenneth R. Marley, Plaintiffs, v. Robert G. GRAPER, M.D. and Peter R. Young, M.D., Defendants.

521 S.E.2d 129

135 NC App. 423

Carla S. MARLEY and Kenneth R. Marley, Plaintiffs, v. Robert G. GRAPER, M.D. and Peter R. Young, M.D., Defendants.

No. COA98-1445.

Court of Appeals of North Carolina.

November 2, 1999.

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, for plaintiff-appellants.

Golding Holden Cosper Pope & Baker, LLP, by John G. Golding, Charlotte, for defendant-appellee Graper.

Carruthers & Roth, P.A., by Richard L. Vanore and Norman F. Klick, Jr., Greensboro, for defendant-appellee Young.

EDMUNDS, Judge.

Plaintiffs appeal from judgment and order entered in a medical malpractice trial. We find no error.

On 1 February 1991, plaintiff Carla Marley (Marley) was admitted to Moses H. Cone Memorial Hospital in Greensboro, North Carolina, for a modified radical mastectomy, to be performed by defendant Peter R. Young, M.D. (Young), and reconstructive surgery, to be performed by defendant Robert G. Graper, M.D. (Graper). Following surgery, Marley experienced memory loss, confusion, hallucinations, and vision impairment. On 7 February 1991, an oncologist diagnosed that Marley suffered from hypoxia and anemia and ordered a blood transfusion and oxygen. On 19 February 1991, a neuro-ophthalmologist examined Marley and diagnosed bilateral ischemic optic neuropathy, a condition caused by decreased blood flow to the end of the optic nerve, leading to tissue death.

Plaintiffs (Marley and her husband) filed suit against Young and Graper, alleging negligence, which proximately caused Ms. Marley's loss of vision, and loss of consortium. The trial began 18 August 1997. The jury returned a verdict of no negligence, and the court entered judgment in favor of defendants. Plaintiffs' motion for a new trial was denied by order entered 12 January 1998. Plaintiffs appeal.

I.

Plaintiffs first contend that the trial court's comment, when accepting one of defendants' witnesses as an expert, was an impermissible expression of opinion. Although the trial court responded to the tender of other experts by both plaintiffs and defendants with statements to the effect that the witness was qualified as an expert and would be permitted to offer an opinion in the appropriate area of expertise, the trial court accepted defendants' witness as an expert in the fields of ophthalmology, pediatric ophthalmology, and neuro-ophthalmology, by stating, "[h]e's certainly qualified and accepted for those purposes in each of those areas. He may offer an opinion as appropriate in his area of expertise." Plaintiffs argue that "the court's manner and words recorded in the record clearly demonstrate that the court placed more significance and more credibility on the testimony of [defendants' witness]."

Although defendants initially contend that plaintiffs did not preserve this issue by objecting to the judge's comment, we need not address this argument because, preserved or not, this issue lacks merit. "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." Marcoin, Inc. v. McDaniel, 70 N.C.App. 498, 508, 320 S.E.2d 892, 899 (1984). More specifically, our Supreme Court has held:

It is well recognized in this jurisdiction that a litigant has a right by law to have his cause tried before an impartial judge without any expressions from the trial judge which would intimate an opinion by him as to weight, importance or effect of the evidence. However, this prohibition applies only to an expression of opinion related to facts which are pertinent to the issues to be decided by the jury, and it is incumbent upon the appellant to show that the expression of opinion was prejudicial to him.

Kanoy v. Hinshaw, 273 N.C. 418, 426, 160 S.E.2d 296, 302 (1968) (citations omitted).

This Court reviews remarks made by the trial judge in the presence of the jury through a two-step process: (1) we first determine whether the comments were improper and, if so, (2) whether they were prejudicial. The trial court's remark

must be considered in the light of the circumstances under which it was made. This is so because "a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."

Colonial Pipeline Co. v. Weaver, 310 N.C. 93, 103, 310 S.E.2d 338, 344 (1984) (citations omitted). Additionally, "[m]ore than a bare possibility of prejudice from a remark of the judge is required to overturn a verdict or judgment," and "[w]here a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial." Id. at 104, 310 S.E.2d at 345.

North Carolina appellate courts have been somewhat reluctant to find comments by a trial court to be either erroneous or prejudicial. Factors the courts have considered include whether the comment occurred in isolation, any ambiguity in the comment, and the degree to which the comment suggested lack of impartiality. See, e.g., Colonial Pipeline, 310 N.C. 93,

310 S.E.2d 338 (holding not prejudicial judge's comment during colloquy with counsel that he did not believe particular evidence to be relevant); Ward v. McDonald, 100 N.C.App. 359, 396 S.E.2d 337 (1990) (holding that judge's comment to jury about need to shorten length of trial not prejudicial); Lenins v. K-Mart Corp., 98 N.C.App. 590, 391 S.E.2d 843 (1990) (holding that judge's explanatory statement to venire during jury selection for shoplifting trial that "[o]f course, [defendant] denies that she had engaged in shoplifting, and of course, for that reason she was stopped" was not a comment on whether any fact had been proved); Marcoin, 70 N.C.App. 498,

320 S.E.2d 892 (holding that trial judge's comments such as "I don't want you gentlemen to play games" to attorneys for both parties not erroneous); Financial Corp. v. Transfer, Inc., 42 N.C.App. 116, 256 S.E.2d 491 (1979) (holding the following statement by the trial court not improper in the context of entire instruction: "Ladies and gentlemen, you have been handed plaintiff's Exhibit 2. Each of you may examine it to the extent that you feel appropriate and necessary. Examine it very carefully."); Lawrence v. Insurance Co., 32 N.C.App. 414, 232 S.E.2d 462 (1977) (holding that, when expert stated that he was not telling jury he knew what caused the fire in question, judge's comment "[w]ell, I think that's exactly what he has done" at most harmless error).

By contrast, where trial courts have made repeated or unambiguous comments indicating a lack of impartiality, reviewing courts have found prejudice so manifest as to require reversal. See, e.g., Sherrod v. Nash General Hospital, 348 N.C. 526, 500 S.E.2d 708 (1998)

(finding error in trial court's statement in presence of jury that defendant psychiatrist was expert in general psychiatry); McNeill v. Durham County ABC Bd., 322 N.C. 425, 368 S.E.2d 619 (1988) (finding reversible error in cumulative effect of trial judge's thirty-seven hostile remarks toward defendant); Key v. Welding Supplies, 273 N.C. 609, 160 S.E.2d 687 (1968) (finding error where trial judge provided jury with extended review of defendant's contentions but failed to review plaintiffs' contentions); Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861 (1966) (finding error in trial court's statement in the presence of the jury that defendant physician was expert in surgery); Burkey v. Kornegay, 261 N.C. 513, 135 S.E.2d 204 (1964) (holding that trial court's statement that witness was "of perhaps weak mentality" was prejudicial expression of opinion); State v. Watson, 1 N.C.App. 250, 161 S.E.2d 159 (1968) (finding prejudicial error in trial court's statement, "it is not in evidence so maybe it could not even be explained that this car went out of control on this slight curve").

Here, we find no impropriety in the court's statement. A judge is not required to recite an unvarying mantra every time an expert witness is qualified. The declaration that "[h]e's certainly qualified and accepted for those purposes in each of those areas" was no more indicative of judicial partiality than was the court's earlier statement that "I am satisfied with his qualifications," made upon accepting one of plaintiffs' experts. This assignment of error is overruled.

II.

Plaintiffs next contend the trial court erred in allowing into evidence the video deposition of one of defendants' expert witnesses. Plaintiffs argue that "the questions by defense counsel did not comply with the statutory requirements for experts testifying in a medical malpractice case" in that the witness never testified that "he was familiar with the standard of practice among practitioners with similar training and experience in Greensboro or the same or similar communities."

N.C. Gen.Stat. § 90-21.12 (1997) sets out the standard of proof necessary to establish medical malpractice:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

We have observed that section 90-21.12 "was designed to overcome the strict `locality' rule that had previously existed in this State. Therefore, it is apparent that the `similar community' requirement in the statute is not confined to North Carolina but would apply to communities within and without our State." Baynor v. Cook, 125 N.C.App. 274, 278, 480 S.E.2d 419, 421...