Miller v. Forsyth Memorial Hosp., Inc.

• Decision Date: 20 September 2005
• Docket Number: No. COA04-1179.,COA04-1179.
• Citation: 618 S.E.2d 838
• Court: North Carolina Supreme Court
• Parties: Cynthia Gail MILLER and Guy Morris Miller, Plaintiffs, v. FORSYTH MEMORIAL HOSPITAL, INC. d/b/a "Piedmont Medical Specialists"; Piedmont Medical Specialists, P.L.L.C.; Novant Health, Inc.; and Novant Health Triad Region, L.L.C., Defendants.

618 S.E.2d 838

Cynthia Gail MILLER and Guy Morris Miller, Plaintiffs, v. FORSYTH MEMORIAL HOSPITAL, INC. d/b/a "Piedmont Medical Specialists"; Piedmont Medical Specialists, P.L.L.C.; Novant Health, Inc.; and Novant Health Triad Region, L.L.C., Defendants.

No. COA04-1179.

Court of Appeals of North Carolina.

September 20, 2005.

Appeal by plaintiffs from judgment entered 6 October 2003 and cross-appeal by defendants from judgment entered 31 October

2003 by Judge Lindsay R. Davis, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 12 May 2005.

Elliot Pishko Morgan, P.A., by David C. Pishko, Winston-Salem, for plaintiff-appellant.

Wilson & Iseman, L.L.P., by Tamura D. Coffey, Linda L. Helms, Kevin B. Cartledge and Maria C. Papoulias, Winston-Salem, for defendant-appellees.

Glenn, Mills & Fisher, P.A., by William S. Mills for the North Carolina Academy of Trial Lawyers; and Roberts & Stevens, P.A., by Peter Buckley McGuire, Durham, for the North Carolina Association of Defense Attorneys, amicus curiae.

STEELMAN, Judge.

Plaintiffs, Cynthia and Guy Miller, appeal the trial court's judgment dismissing their complaint based upon the jury's verdict. Defendants cross-appeal the trial court's denial of their motion to tax costs against plaintiffs.

Plaintiffs commenced this action seeking damages for Mrs. Miller's personal injuries, which were alleged to have been caused as a result of defendants' medical negligence. Piedmont Medical Specialists (Piedmont) is a physician practice owned by defendant Forsyth Memorial Hospital, which is in turn, a wholly-owned subsidiary of Novant Health, Inc. Plaintiff, Mr. Miller, sought damages for loss of consortium.

On 31 December 1999, Mrs. Miller was suffering from bronchitis and went to Piedmont's offices for treatment. John Edwards, a physician's assistant, examined Mrs. Miller and prescribed an injection of Rocephin, an antibiotic. Nurse Linda Smith administered the injection in Mrs. Miller's right buttock. Upon receiving the injection, Mrs. Miller contends she felt intense pain and a burning sensation in her buttock. Upon leaving the doctor's office, she became faint and was taken back to an examining room where Edwards ordered blood work to determine the cause. Since receiving the injection, Mrs. Miller contends she has suffered continuous pain and discomfort in her lower back, right hip, and right leg. She received medical treatment from Dr. Richard Bey, a neurologist, and Dr. T. Stuart Meloy, a pain management specialist. Dr. Bey diagnosed Mrs. Miller's condition as "sciatic neuropathy with demyelination" and stated the condition was caused by the injection she received from Nurse Smith.

The matter came on for jury trial at the 22 September 2003 session of superior court. The jury returned a verdict in favor of defendants on 1 October 2003, finding Mrs. Miller was not injured by defendants' negligence. Plaintiffs appealed. Following the entry of judgment, defendants filed a motion for the costs of the action to be taxed against plaintiffs. The trial court ordered plaintiffs to pay court costs, but denied defendants' motion seeking other costs, including deposition costs, mediation costs, expert witness fees, and exhibit costs. Defendants appeal.

I. Plaintiffs' Appeal

In plaintiffs' first argument, they contend the trial court erred in granting defendants' pretrial motion in limine, which found certain matters plaintiffs sought during discovery were protected under the peer review privilege. We disagree.

On 7 February 2003, plaintiffs served Forsyth with their first set of interrogatories and first request for production of documents. Defendants asserted that certain documents were protected from discovery under the peer review privilege as set forth in N.C. Gen.Stat. § 90-21.22 and refused to produce these documents. Plaintiffs filed a motion to compel discovery, and also sought an order compelling Edwards, the physician's assistant, and Dr. Marx to answer related questions asked during their respective depositions. On 6 August 2003, Judge L. Todd Burke denied plaintiffs' motion to compel and granted defendants' motion for a protective order prohibiting plaintiffs from obtaining the requested documents. Before trial, defendants filed a motion in limine to prohibit plaintiffs from offering evidence regarding the peer review process, certain affidavits, and offering evidence that defendants failed to prepare an incident report. On 22 September 2003, prior to the commencement of the trial, Judge Davis granted defendant's motion in limine, but emphasized the conditional nature of his ruling, instructing the parties:

Well, all orders in limine are conditional and even if a motion is granted that does not mean that the party affected may not raise an issue during trial if evidence has been received that would make it necessary or desirable for portions of evidence that is subject to the order in limine to be presented to the jury.

In that light, I will grant the motion which we will call for convenience sake the peer review motion and the three elements that are delineated in that. And that is, of course, subject to the conditional nature of such orders.

During the hearing on the motion in limine, plaintiffs indicated they understood the conditional nature of the judge's ruling, stating they would question certain witnesses during the trial concerning the peer review process, and upon defendants' objection, they understood the trial court would determine whether the elicited testimony was privileged. The case then proceeded to trial before a jury.

A trial court's pretrial ruling on a motion in limine is merely "preliminary and subject to change during the course of trial, depending upon the actual evidence offered at trial." Gregory v. Kilbride, 150 N.C.App. 601, 611, 565 S.E.2d 685, 693 (2002). The trial court's grant or denial of a motion in limine is not appealable. Id. In order to preserve the evidentiary issues for appeal where such a motion had been granted, the party objecting to the grant of the motion "must attempt to introduce the evidence at trial." Id. In this case, even though the trial court brought the conditional nature of its ruling to plaintiffs' attention, they did not attempt to introduce any evidence regarding defendants' peer review process or that an internal investigation had occurred following the injection.

Effective 1 October 2003, the rule requiring that a party attempt to offer evidence in order to preserve the evidentiary issue for appeal was changed, so that "[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) (2004)¹. However, the amendment applies only to rulings on evidence made on or after 1 October 2003. State v. Pullen, 163 N.C.App. 696, 701, 594 S.E.2d 248, 251-252 (2004) (citing 2003 N.C. Sess. Laws ch. 101).

The trial court granted defendants' motion in limine on 22 September 2003. Plaintiffs rested their case-in-chief on 29 September 2003. Defendants presented their evidence on 29 and 30 September 2003. Plaintiffs offered no rebuttal evidence. The trial court conducted the charge conference and counsel made their final arguments to the jury on 30 September 2003. On 1 October 2003 the trial court instructed the jury, the jury deliberated, and returned its verdict. At no time during the trial did plaintiffs attempt to present the evidence, which was the subject of the motion in limine, to the jury. Plaintiffs did not move to reopen the evidence. The only ruling upon this evidence was made on 22 September 2003. As such, the ruling is governed by the previous version of Rule 103(a)(2) of the Rules of Civil Procedure and not the version applicable to rulings made on or after 1 October 2003. By failing to offer this evidence at trial, plaintiffs failed to preserve this issue on appeal. This argument is without merit.

In plaintiffs second argument, they contend the trial court erred in excluding the opinion testimony of Dr. Meloy as to the cause of Mrs. Miller's nerve injury. We disagree.

Rule 702 of the North Carolina Rules of Evidence governs the admissibility of expert testimony, providing: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion." N.C. Gen.Stat. § 8C-1, Rule 702(a) (2004). "It is well-established that trial courts must decide preliminary questions concerning . . . the admissibility of expert testimony." Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004). As such, trial courts are afforded a wide latitude when determining the admissibility of expert testimony. Id. at 458, 597 S.E.2d at 686. Therefore, we will not overturn the trial judge's ruling in such a situation absent a showing that the trial court abused its discretion. Id. An abuse of discretion occurs when the trial court's ruling is "manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision." Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).

Howerton sets forth a three-step test for determining the admissibility of expert testimony: "(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?" 358 N.C. at 458, 597 S.E.2d at 686 (internal citations omitted). The issue presented in this case concerns only the second step of the inquiry, since plaintiffs do not challenge the trial court's ruling based upon the first or third steps.

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