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1. Damages--collateral source rule--Medicaid--evidentiary
references
The trial court did not abuse its discretion by denying
plaintiffs' motions for a mistrial in a medical malpractice
action arising from a birth where plaintiffs alleged that
references were made to plaintiffs' application for and receipt
of Medicaid and other forms of public assistance for the victim
in violation of the collateral source rule. The record supports
the assertion that the first mention of Medicaid was inadvertent
and there was no abuse of discretion in view of the context
within which the second question was asked, the trial court's
prompt sustaining of plaintiff's objection and willingness to
give a limiting instruction to the jury, and plaintiffs' apparent
decision to decline the court's offer of such instruction.
2. Damages--collateral source rule--Medicaid--argument of
counsel
The trial court did not abuse its discretion in a medical
malpractice action by overruling the objection of plaintiffs to
an argument of a defense counsel characterized as a reference to
public assistance benefits. A challenge by defense counsel to
plaintiffs' failure to present particularized evidence in the
form of medical bills is far different from asserting to the jury
that damages would never be suffered by virtue of payments from
collateral sources.
3. Trial--motion for new trial--not timely
The trial court did not err in a medical malpractice action
by denying plaintiffs' motion for a new trial where judgment was
entered on 8 July 1996, plaintiffs' motion for a new trial was
dated 19 July 1996, had attached a certificate of service
reflecting mailing to defendants on the same date, and was filedwith the clerk on 22 July 1996. Under N.C.G.S. § 1A-1, Rule
59(b), the motion must be served within ten days of the entry of
judgment and failure to do so prevents the court from having
jurisdiction to entertain the motion.
4. Damages--collateral source rule--new trial denied
The trial court did not abuse its discretion in a medical
malpractice action by denying plaintiffs' motion for a new trial
due to references to collateral source benefits where plaintiff
complained of only four collateral source references in a trial
of several weeks, which comprised fourteen volumes and nearly
three thousand pages of transcripted proceedings; only one
reference was direct and made no mention of receipt of collateral
benefits or actual payment by collateral sources; and the
remaining three were tangential, with plaintiffs' objections to
two of those being promptly sustained by the trial court.
5. Evidence--expert witnesses--data on which opinion based
The trial court did not err in a medical malpractice action
by failing to compel a defense expert witness to produce data and
facts upon which he based his testimony where the expert relied
in deposition upon an article he had earlier published dealing
with the causes of brain injuries in newborns, indicated that he
was then engaged in additional unpublished research on the
subject, and declined as being unduly burdensome to produce
copies of the raw data upon which his current research was based.
Rule 705 is directed at disclosure in the context of testimony at
trial and is not the equivalent of a request for production of
documents. Plaintiffs here failed to utilize pretrial discovery
measures or subpoenas to secure the documentation and were
afforded ample opportunity to cross-examine the expert regarding
the basis of his opinions.
6. Appeal and Error--appealability--pretrial motion--withdrawn-
-waiver
In an appeal decided upon another issue, the procedural
context of plaintiffs' Rule 705 motion at trial was suggestive of
waiver of the right to raise the denial of the motion on appeal
where plaintiffs had filed a pretrial motion to strike an
expert's testimony based upon his refusal to produce materials
related to previous cases he had reviewed, defendants had moved
for a protective order, counsel subsequently appeared in courtand announced a compromise involving withdrawal of both motions,
the identical issues were again raised by the parties by motions
in limine at the outset of the trial as a result of the earlier
consent order having broken down, the trial court suggested that
the parties attempt to resolve the disputes, and counsel for
plaintiffs announced to the trial court the following morning
that his motion would be withdrawn. Arguably, plaintiffs are
precluded on appeal from pursuing contentions twice withdrawn in
the trial court; this circumstance reinforces the previous
holding that the court did not err in denying plaintiffs' motion
pursuant to N.C.G.S. § 8C-1, Rule 705.
7. Evidence--doctrine of corporate liability--collective
evidence rulings
The trial court did not err in a medical malpractice action
which included a hospital as a defendant where plaintiffs alleged
that the court made various erroneous rulings with the effect of
creating a trial setting in which plaintiffs would not be able to
prove their case under the doctrine of corporate liability. Appeal by plaintiffs from judgment entered 8 July 1996 by
Judge C. Walter Allen and orders entered by Judge Loto G.
Caviness and Judge James L. Baker, Jr., in Watauga County
Superior Court. Heard in the Court of Appeals 28 January 1998.
Egerton & Brenner, by Lawrence H. Brenner, L. Pierce
Egerton and Rebeccca A. Leigh, pro hac vice, for
plaintiffs-appellants.
Mitchell, Blackwell & Mitchell, by W. Harold Mitchell
and Keith W. Rigsbee, for defendants-appellees R. Bruce
Jackson, II, M.D. and R. Bruce Jackson, II, M.D., P.A.
Kurdys & Lovejoy, by Mark C. Kurdys, for defendant-
appellant Watauga Medical Center, Inc.
State of Florida Agency for Health Care Administration,
by Paul A. Vazquez, amicus curiae.
JOHN, Judge.
Plaintiffs appeal the judgment and several orders in this
medical malpractice action. Plaintiffs contend the trial court
erred by: (1) denying their motions for mistrial and for new
trial based upon defendants' alleged references to plaintiffs'
receipt of collateral source benefits; (2) failing to compel a
defense expert to produce data and facts upon which he based his
testimony; and (3) entering certain evidentiary orders. For the
reasons set forth herein, we conclude the trial court committed
no prejudicial error.
Pertinent factual and procedural information includes thefollowing: On 5 March 1992 at about 2:15 p.m., plaintiff Heather
Fallis (Heather) sought evaluation at defendant Watauga Medical
Center, Inc. (Watauga) for potential early onset of labor
regarding her second child. Plaintiff was admitted to Watauga
under the care and treatment of defendant Dr. R. Bruce Jackson,
II (Dr. Jackson).
At 4:50 p.m. on that same date, Dr. Jackson prescribed
intravenous administration of oxytocin to augment the labor
process. At the time the drug was administered, an internal
electric fetal monitor was inserted to record the unborn baby's
heart rate and the strength and duration of Heather's
contractions. At 5:15 p.m., alteration of the baby's heartbeat
was observed by Janet Belden, R.N. (Nurse Belden), who was
attending Heather and who communicated the information to Dr.
Jackson. At 6:20 p.m., the oxytocin dosage was increased.
Shortly thereafter, Nurse Belden telephoned Dr. Jackson at home
to inform him of additional fetal heart rate abnormalities
revealed by the monitor. In the time period between 6:40 p.m.
and 8:05 p.m., Nurse Belden faxed the baby's heart monitor strips
to Dr. Jackson at his home and the latter adjusted Heather's
oxytocin dosage. At 8:10 p.m., Nurse Belden notified Dr. Jackson
that the baby's heart rate had dropped significantly for a full
minute and advised him to come to the hospital. Dr. Jacksonarrived at 8:25 p.m. The operating room crew was paged to
prepare for an immediate cesarean section and responded in
approximately ten minutes. Plaintiff Holly Fallis (Holly) was
born shortly thereafter.
Holly required major resuscitative efforts following birth
including intubation and external cardiac massage. She was
subsequently transferred to Baptist Hospital Neonatal Intensive
Care Unit in Winston-Salem, and was diagnosed as having cerebral
palsy and profound neurological damage.
Heather, in her own capacity and as guardian ad litem for
Holly, and her husband Richard (Richard) (collectively
“plaintiffs”) filed the instant complaint claiming the negligence
of defendants proximately caused Holly's condition. In
particular, plaintiffs alleged Dr. Jackson deviated from the
applicable standard of care in multiple respects, resulting in
oxygen deprivation and consequently Holly's subsequent
afflictions. Plaintiffs also alleged Watauga was negligent in
failing to curtail, limit or otherwise regulate the medical
practice of Dr. Jackson as it related to the delivery of infants
on its premises and that such failure likewise was a proximate
cause of Holly's injuries.
After extensive discovery, the case came to trial 20 May
1996. Plaintiffs offered evidence tending to show Holly sufferedprenatal asphyxia in consequence of the negligence of defendants.
Defendants' evidence indicated Holly's condition resulted from
septic shock prior to delivery occasioned by Haemophilus
influenza non-type B, a bacterial infection contracted by the
fetus in uteri. Defendants' evidence also suggested failure on
the part of Holly's parents to provide financial support,
violence or threatened violence between Holly's parents, and
their leaving Holly in the care of others for periods of time
while one or the other engaged in some personal pursuit. The
jury returned a verdict in favor of defendants 11 June 1996,
determining neither defendants' negligence was a proximate cause
of Holly's injuries. Judgment was entered 8 July 1996, and
plaintiffs moved for new trial 22 July 1996. The motion was
denied in an order entered 18 September 1996. Plaintiffs timely
appealed.
[1]In the main, plaintiffs insist “repeated references
during the trial” were made “to plaintiffs' application for and
receipt of Medicaid and other forms of public assistance for
Holly.” In this regard, plaintiffs assign error to denial of
their motions for mistrial, to the overruling of their objections
to the closing argument of counsel for Dr. Jackson, and to denial
of their new trial motion.
Plaintiffs' motions for mistrial occurred: (1) shortly afterDr. William Hickling (Dr. Hickling), a pediatric neurologist and
Holly's treating physician, read on cross-examination from his
records a telephone message from Heather which included a
reference to the latter's application for Medicaid; and (2) after
the trial court had sustained plaintiffs' objection to a question
on cross-examination of Heather regarding her establishment of
residency in Florida. Both mistrial motions were denied.
A motion for mistrial rests within the sound discretion of
the trial court. Ferebee v. Hardison, 126 N.C. App. 230, 236,
484 S.E.2d 857, 861, rev'd on other grounds, 347 N.C. 346, 492
S.E.2d 354 (1997). Therefore,
unless the [trial court's] ruling is clearly
erroneous so as to amount to a manifest abuse
of discretion, it will not be disturbed on
appeal.
Id. Applying the foregoing test to the case sub judice, we
decline to disturb the trial court's rulings.
Plaintiffs allege each challenged instance was violative of
the collateral source rule, which
excludes evidence of payments made to the
plaintiff by sources other than the defendant
when this evidence is offered for the purpose
of diminishing the defendant tortfeasor's
liability to the injured plaintiff.
Badgett v. Davis, 104 N.C. App. 760, 764, 411 S.E.2d 200, 203
(1991), disc. review denied, 331 N.C. 284, 417 S.E.2d 248 (1992). The policy underlying the doctrine is that
[a] tort-feasor should not be permitted to
reduce his own liability for damages by the
amount of compensation the injured party
receives from an independent source.
Fisher v. Thompson, 50 N.C. App. 724, 731, 275 S.E.2d 507, 513
(1981).
Plaintiffs rely primarily upon Cates v. Wilson, 83 N.C. App.
448, 350 S.E.2d 898 (1986), aff'd in part, 321 N.C. 1, 361 S.E.2d
734 (1987). Defendant health care providers therein were allowed
to present evidence tending to show that Medicaid had paid and
would continue to pay all the plaintiff's medical bills, as well
as evidence of other welfare programs available to defray
plaintiff's expenses, child support received by plaintiff's
mother, free rent and other support provided by plaintiff's
grandmother, and evidence of excellent training for persons
suffering plaintiff's handicaps offered at a local public school.
Cates, 321 N.C. at 4-5, 361 S.E.2d at 737. In addition, the
defendants' closing argument contained assertions that in
consequence of the evidence of payment and available treatment,
plaintiff had suffered no damages. Id. at 10, 361 S.E.2d at 740.
Our Supreme Court agreed the foregoing violated the
collateral source rule and mandated a new trial, rejecting theargument that the jury's consideration of the liability issues
was unaffected “[i]n light of this kind of argument and the
nature of the collateral source evidence which was so freely
admitted.” Id. at 11, 361 S.E.2d at 740; see also Badgett, 104
N.C. App. at 762, 411 S.E.2d at 202 (new trial granted where
testimony revealed portions of medical bills either had been paid
by Medicare or “written off” upon receipt of Medicare payments by
the furnishing health care provider).
Defendants respond that the extensive evidence held in Cates
to contravene the collateral source rule was of a different
character than the instances complained of in the instant case,
and that the trial court did not abuse its discretion in denying
the motions for mistrial. We agree.
The solitary direct reference to the collateral source of
Medicaid transpired during cross-examination of Dr. Hickling by
Dr. Jackson's counsel. Counsel was conducting a thorough review
of Dr. Hickling's extensive records during which the latter read
from an office note of his staff as follows:
Heather called, stated Holly's blood levels
have not been checked, they are in Florida
temporarily, has applied for Medicaid, has a
question about meds, please call.
Counsel thereafter directed no follow-up questions to the
matter of Medicaid, nor does the record reflect any attempt todraw attention thereto. Significantly, unlike the circumstances
in Cates, this single Medicaid application reference within a
cross-examination covering over one hundred pages of transcript
contained no indication the application had been approved, that
plaintiffs had received any payments, or that any of Holly's
medical expenses had been defrayed by the program.
Moreover, the record supports defendants' assertion that Dr.
Hickling's mention of Medicaid in response to cross-examination
was inadvertent. Examination of the transcript of Dr. Hickling's
testimony reflects that the telephone message was part of his
extensive office records which were provided to defense counsel
at the time of Dr. Hickling's testimony, notwithstanding
assurances by the doctor at his deposition some two years earlier
that he would copy his rather sizable file to plaintiff's counsel
who would then forward same to counsel for defendants. It
appears defendants' counsel were afforded only a brief
opportunity to review the voluminous records during a recess
following Dr. Hickling's direct examination. At the hearing on
plaintiffs' motion for mistrial, the ignorance of Dr. Jackson's
counsel concerning the Medicaid notation prior to Dr. Hickling's
testimony was not disputed. In any event, the solitary,
apparently inadvertent reference herein pales beside the
multiple, varied and deliberate instances in Cates. Finally, the record reflects plaintiff tendered no objection
immediately upon the mention of Medicaid, see N.C.R. App. P.
10(b)(1) (“in order to preserve a question for appellate review,
a party must have presented to the trial court a timely . . .
objection . . . stating the specific grounds for the ruling the
party desired the court to make”), although counsel asked to
approach the bench shortly thereafter and, following an
unrecorded conference, the trial court stated, “We'll take that
up just before we recess today.” Later, outside the presence of
the jury, upon plaintiffs' request that the trial court “declare
a mistrial, [or] have a special instruction” in view of the
Medicaid reference, the court declined to order a mistrial.
However, the court offered plaintiffs the option of a special
instruction formulated by the court or one drafted by plaintiffs.
Plaintiffs initially responded that an instruction would be
produced the following morning, but at that time indicated “two
typed proposals” would be presented to the court the morning
thereafter. However, nothing in the record reveals plaintiffs
subsequently proffered a proposed limiting instruction to the
trial court.
Based on the foregoing, we cannot say the trial court's
denial of plaintiffs' initial mistrial motion was “clearly
erroneous so as to amount to a manifest abuse of discretion.” See Ferebee, 126 N.C. App. at 236, 484 S.E.2d at 861.
Plaintiffs' second mistrial motion was occasioned by the
following exchange on cross-examination of Heather by Dr.
Jackson's counsel.
Q. You indicated that Dr. Hickling told you
that he thought it would be good for [Holly]
to move to Florida.
A. That's correct.
Q. Because the heat would be good for Holly?
A. Yeah.
Q. Yet you have decided that the heat is bad
for Holly?
A. The humidity is extremely hot down there,
now that I'm there, although the sea is very
good for her, the sea air.
. . . .
Q. After you got down to Florida, you did
establish a residence in Florida, did you
not?
A. Yes, sir, we did.
Q. And you had to do that in order to
be able to get the health care that was
needed by Holly, didn't you?
MR. BRENNER: Objection.
MS. LEIGH: Objection.
THE COURT: Objection
sustained.
When further questioning revealed Heather had taken Holly tohealth care providers in Florida, including a hospital stay,
counsel for Dr. Jackson asked to approach the bench to register
his concern that the appropriate medical records from Florida had
not been furnished by plaintiffs. In the absence of the jury and
prior to responding, counsel for plaintiffs moved for a mistrial,
asserting “that [the residency] question was asked to plant in
this jury's mind Medicaid, which is a collateral source.” In
reply, counsel for Dr. Jackson explained as follows:
Your Honor, we took her deposition February
29, 1996, and I had asked her if she had
established a relationship with any health
care providers down there. Her response was
no, she had to establish residency; she was
doing that at that time. And quite frankly,
that's exactly what she said and that didn't
have anything to do with Medicaid . . . .
The trial court denied plaintiffs' mistrial motion, noted it
had been several days since plaintiffs' counsel had indicated it
would present a limiting instruction, and stated it would “offer
the same thing” to plaintiffs regarding the instance then at
issue. We again note the record reveals no tender by plaintiffs
to the trial court of the promised instruction. Indeed,
following the conclusion of all the evidence and prior to the
closing arguments of counsel, the trial court inquired if either
plaintiffs or defendants requested further instructions. None
were sought by plaintiffs. In view of the context within which the question challenged
on plaintiffs' mistrial motion was asked, as well as the trial
court's prompt sustaining of plaintiffs' objection and
willingness to give a limiting instruction to the jury, as well
as plaintiffs' apparent decision to decline the court's offer of
such instruction, we conclude the trial court did not abuse its
discretion in denying plaintiffs' second motion for mistrial.
[2]Plaintiffs next contend the trial court erred in
overruling their objections during the following portion of the
closing argument of counsel for Dr. Jackson:
We have heard about Holly having been in
the hospital. We have heard about Holly
having received medical care. But you
have not seen a single medical bill.
The first case I've ever been in my life
where they're suing for damages and have
not put in all of the medical bills that
have been incurred up until this time.
You haven't seen it. I haven't seen it.
The Court hasn't seen it.
Why, why, Mr. Brenner, have you
brought this lawsuit and --
MR. BRENNER: Your Honor, I
object. This is --
THE COURT: Objection
sustained to directing remarks to Mr.
Brenner.
MR. BRENNER: We went over
this issue. I'd ask the jury be
instructed to disregard it.
THE COURT: Objection is
overruled.
MR. MITCHELL: Why have they
not put the medical bills into evidence?
MR. BRENNER: Object again,
Your Honor.
THE COURT: Overruled.
MR. MITCHELL: . . . It may be
that the medical bills were so small
that they felt like that they would be
so contradictory to [the experts']
figures or it may be that because of
their own actions they felt that it just
wouldn't be right to come here and ask
for recovery of medical expenses.
Plaintiffs characterize the foregoing as a
transparent reference to the plaintiffs'
actions in seeking and obtaining public
assistance benefits . . . and impermissibly
suggested to the jury that the plaintiffs
were already fully compensated and were
seeking a windfall recovery.
We do not agree.
Initially, we note it is well established that counsel are
accorded wide latitude in argument to the jury, and that
[i]t is left to the trial judge's sound
discretion to determine whether counsel has
abused [that] latitude accorded him in the
argument of hotly contested cases. [The
appellate courts] will not review the judge's
exercise of discretion unless there exists
such gross impropriety in the argument as
would likely influence the jury's verdict.
State v. Hockett, 309 N.C. 794, 799, 309 S.E.2d 249, 252 (1983).
Plaintiffs nonetheless refer us once more to Cates. However, defendants' counsel therein pointedly argued “that this
child would [not suffer the loss of] a penny with its Medicaid,
its Aid to Dependent Children.” Cates, 321 N.C. at 10, 361
S.E.2d at 740. We believe the challenge by Dr. Jackson's counsel
to plaintiffs' failure to present particularized evidence of
damages in the form of medical bills is far different from
asserting to the jury that claimed damages would never be
suffered by virtue of payments from collateral sources.
The context of counsel's argument also mitigates against our
determination it constituted “gross impropriety.” Hockett, 309
N.C. at 799, 309 S.E.2d at 252. Immediately prior to the
statements at issue, counsel for Dr. Jackson had, without
objection, addressed certain actions and inactions of Heather and
Richard indicating shortcomings as parents. Counsel referred to
evidence the couple had separated, that Heather had begun seeing
another man and followed him to Florida, that Richard was under
court order to pay child support and as of March 1996 was
$3000.00 behind in those payments, and that Heather had at one
point left Holly and gone to Tennessee with her boyfriend for two
weeks. Counsel then questioned the absence of medical bills in
evidence and referred to the “actions” of Heather and Richard as
a possible explanation for the failure to present documentation
of medical expenses. In short, we hold the trial court did not abuse its
discretion in overruling the objection of plaintiffs to the
argument of Dr. Jackson's counsel as set out above.
[3]Lastly, citing the three instances above and one
additional statement by Dr. Hickling to which the trial court
sustained plaintiffs' objection, plaintiffs maintain the trial
court erred “in failing to order a new trial due to references
and argument regarding plaintiffs' receipt of collateral source
benefits.” We also reject this argument.
N.C.G.S. § 1A-1, Rule 59(b) (1990) (Rule 59(b)) provides in
pertinent part as follows:
(b) Time for motion.--A motion for a new
trial shall be served not later than 10 days
after entry of the judgment.
Judgment was entered in the case sub judice 8 July 1996. See
N.C.G.S. 1A-1, Rule 58 (Supp. 1997) (“judgment is entered when it
is reduced to writing, signed by the judge, and filed with the
clerk of court”). Plaintiffs' motion for new trial was dated 19
July 1996, had attached thereto a certificate of service
reflecting mailing to counsel for defendants on the same date,
and was filed with the clerk of court 22 July l996.
Under Rule 59(b),
the motion must be served within 10 days of
the entry of judgment, for a failure to do so
prevents the court from having jurisdictionto entertain the motion. Rule 6(b)
specifically prohibits enlargement of the
time for serving a motion for a new trial
either by order of the court or by agreement
of the parties.
W. Brian Howell, Howell's Shuford N.C. Civ. Prac. & Proc. § 59-13,
718 (5th ed. 1998).
Accordingly, the trial court lacked jurisdiction to
entertain plaintiffs' Rule 59 motion, see Coats v. Coats, 79 N.C.
App. 481, 482, 339 S.E.2d 676, 676 (1986) (“trial court has no
authority to alter or amend a judgment under [Rule 59] pursuant
to a motion made more than 10 days after entry of the judgment
sought to be altered or amended”), and plaintiffs may not now
complain the motion was denied. See Garrison ex rel. Chavis v.
Barnes, 117 N.C. App. 206, 210, 450 S.E.2d 554, 557 (1994)
(“[b]ecause defendant's motion for new trial was filed . . . more
than ten days after entry of . . . judgment . . . [the trial
court] correctly denied that motion”).
Moreover,
[t]he granting or denial of a motion for new
trial rests within the sound discretion of
the trial judge, and his ruling will not be
disturbed on appeal in the absence of a
manifest abuse of such discretion or
determination that his ruling is clearly
erroneous.
Pinckney v. Van Damme, 116 N.C. App. 139, 148, 447 S.E.2d 825,831 (1994).
[4]Assuming arguendo plaintiffs' argument asserting the
necessity of a new trial was properly before us, therefore,
having determined no abuse of discretion in the matters cited as
grounds for the motion, we perceive no manifest abuse of the
trial court's discretion in its denial of the motion. Plaintiff
complains of but four collateral source references in this trial
of several weeks, comprising fourteen volumes and nearly three
thousand pages of transcribed proceedings. Only one reference
was direct and made no mention of receipt of collateral benefits
or actual payment by collateral sources, and the remaining three
were tangential, plaintiffs' objections to two of those being
promptly sustained by the trial court. The trial court's ruling
therefore may not fairly be characterized as “clearly erroneous,”
see id., and thus it did not err in denying plaintiffs' new trial
motion.
[5]Plaintiffs' second assignment of error asserts the trial
court erred by failing to compel a defense expert witness “to
produce data and facts upon which he . . . bas[ed] his
testimony.” Plaintiffs' argument misses the mark.
Defendants called Richard L. Naeye, M.D. (Dr. Naeye), Chair
of the Department of Pathology at Penn State University, as an
expert witness. At the time of Dr. Naeye's 17 April 1996deposition, he relied upon an article he had earlier published
dealing with the causes of brain injuries in newborns. He also
indicated he was then engaged in additional unpublished research
on the subject, but declined as being unduly burdensome to
produce copies of the raw data upon which his current research
was based. Upon direct examination at trial, defendants' counsel
inquired as to Dr. Naeye's recent research, and the latter
responded he had reviewed sixty cases that he relied upon in
forming his opinion. Finally, Dr. Naeye expressed his opinion
that Holly sustained irreversible brain damage from septic shock
approximately eighteen hours prior to her delivery.
Upon commencement of plaintiffs' cross-examination of Dr.
Naeye, the following transpired:
Q. Dr. Naeye, before I get into my
examination, you made reference to materials
upon which you based your decision, research
involving 60 cases, research involving sudden
infant death syndrome and research involving
cases other than your published article. Do
you recall that?
A. Yes.
Q. Okay. Could you make those available to
me?
A. Sure, what would you like? I don't have
them here.
Q. Okay. Do you have available to you the
research that you referred to in your direct
testimony that occurred after the November1995 article?
. . . .
A. . . . Yeah, we're working on cases right
now.
Q. Okay. Well, the 60 cases you referred
to, the infant death syndrome and the other
cases, could you when you go back make them
available for me by Federal Express so I can
analyze them?
. . . .
A. Some of [the data] is available. But
it's not reasonable. You have no idea what
you're asking, because in many cases there
are volumes of information that are six or
eight inches thick. You're asking my to stop
everything else I'm doing in my life and sit
down and have thousands of pages of charts,
many of which are on microfilm, copied. It's
not practical.
Thereafter, outside the presence of the jury, plaintiffs'
counsel phrased the above request as a motion, proffered pursuant
to N.C.G.S. § 8C-1, Rule 705 (1986) (Rule 705), that Dr. Naeye
“go back and make [the data] available for us and we'll deal with
it on rebuttal” through plaintiffs' expert witness. The record
reflects no prior written request by plaintiffs for production of
the data of Dr. Naeye, either pursuant to N.C.G.S. § 1A-1 Rule
26(b)(4) (1990) (Discovery--Trial Preparation: Experts), N.C.G.S.
§ 1A-1, Rule 34 (1990) (Production of Documents) or N.C.G.S. §
1A-1, Rule 45(c) (1990) (Subpoena--For Production of DocumentaryEvidence).
The trial court denied plaintiffs' motion, but explained
that plaintiffs' counsel was not restricted in examining Dr.
Naeye regarding the basis for his opinions, including the ongoing
research. Plaintiffs' counsel thereafter cross-examined Dr.
Naeye at length, specifically inquiring as to the basis for his
opinions, including his research and publications.
Plaintiffs now argue the trial court erred under Rule 705 by
failing “to require disclosure of the underlying facts or data of
the expert's opinion prior to his testimony and on cross-
examination.” In the context of the case sub judice, we conclude
the trial court did not err.
Rule 705 reads in pertinent part as follows:
The expert may testify in terms of opinion or
inference and give his reasons therefor
without prior disclosure of the underlying
facts or data, unless an adverse party
requests otherwise, in which event the expert
will be required to disclose such underlying
facts or data on direct examination or voir
dire before stating the opinion. The expert
may in any event be required to disclose the
underlying facts or data on cross-
examination.
G.S. § 8C-1, Rule 705.
The Commentary to Rule 705 explains that:
[u]pon the request of an adverse party, the
judge must require the expert to disclose the
underlying facts on direct examination orvoir dire before stating the opinion. . . .
The second sentence of Rule 705
gives the opposing side the right to require
disclosure of the underlying facts or data on
cross-examination. The cross-examiner is
under no compulsion to bring out any facts or
data except those unfavorable to the opinion.
N.C. Civ. Pro. Rule 26(b)(4) provides for
substantial discovery of the facts underlying
the opinion prior to trial.
G.S. § 8C-1, Rule 705, Commentary (emphasis added).
A careful reading of Rule 705 and the Commentary reveal that
the Rule is directed at disclosure in the context of testimony at
trial. The clear purport of the section is that, “unless an
adverse party requests otherwise,” G.S. § 8C-1, Rule 705, an
expert's testimony at trial may properly be limited merely to a
statement of qualifying credentials and rendition of the expert's
opinion, whereupon opposing counsel might then elect to cross-
examine the expert regarding any “unfavorable” facts or data.
See G.S. § 8C-l, Rule 705, Commentary (N.C. Rule 705 differs from
equivalent federal rule in that the former leaves it to “opposing
counsel [rather than the court] to determine whether to require
prior disclosure of the underlying facts”). As defendants
correctly assert, therefore, “Evidence Rule 705 is not the
equivalent of a request for production of documents,” which
vehicle the Commentary to the Rule pointedly notes is available
“prior to trial.” Id. We therefore conclude the trial court did not err in denying
plaintiffs' motion pursuant to Rule 705 to “make [Dr. Naeye's
research] available [to plaintiffs] by Federal Express.”
Plaintiffs failed to utilize pre-trial discovery measures or
subpoenas to secure the documentation and were afforded ample
opportunity to cross-examine Dr. Naeye regarding the basis of his
opinions.
[6]Additionally, defendants maintain plaintiffs waived
their right to raise denial of their Rule 705 motion on appeal.
While it is unnecessary to so hold in view of our determination
the trial court did not err in this regard, the procedural
context of plaintiffs' motion at trial is indeed suggestive of
waiver. While tendering no written request for production of Dr.
Naeye's data, plaintiffs filed a pre-trial motion 23 April 1996
to strike his testimony based upon his refusal to produce as
orally requested at deposition all materials related to previous
cases he had reviewed or in which he had served as consultant or
expert witness and all the raw data supporting his research.
Defendants meanwhile had moved 9 April 1996 for a protective
order seeking to exclude the testimony of Dr. Bahig Shehata,
identified by plaintiffs as an expert to rebut the testimony of
Dr. Naeye. On 29 April 1996, counsel appeared in court and
announced a compromise involving withdrawal of both motions. The identical issues were again raised by the parties by
motions in limine at the outset of trial as a result of the
earlier “consent order [having] broke[n] down.” Following day-
long arguments covering over sixty pages of transcript, the trial
court suggested that the parties attempt overnight to resolve the
disputes. The following morning, counsel for plaintiffs
announced to the trial court:
[the] resolution is that we withdraw our
motion as to Dr. Naeye, he's withdrawing his
motion as to rebuttal witnesses . . . . That
would resolve all of those issues with regard
to Dr. Naeye.
It thus appears plaintiffs had raised on two prior occasions
the identical issues forming the basis of the motion at trial
pursuant to Rule 705, and that plaintiffs had ultimately elected
to withdraw those issues from the trial court's consideration.
Arguably, therefore, plaintiffs are precluded from pursuing
before us contentions twice withdrawn in the trial court. See
State v. Larrimore, 340 N.C. 119, 149, 456 S.E.2d 789, 805 (1995)
(where “defendant withdraws challenged questions . . . the
court's ruling [thereon] has [not] been preserved for review”;
“defendant abandoned his position at trial and cannot now resume
the battle in [appellate] forum”). Such circumstance simply
reinforces our holding that the trial court did not err in
denying plaintiffs' motion as proffered pursuant to Rule 705. [7]Lastly, plaintiffs assert the trial court made various
erroneous rulings with the effect of creating “a trial setting in
which Plaintiffs would not be able to prove their case against
Watauga under the doctrine of corporate liability.”
Specifically, plaintiffs allege the court erred by: (1) granting
defendants' motion for protective order; (2) granting defendants'
motions in limine regarding evidence of past performance problems
of Dr. Jackson; and (3) restricting impeachment of Nurse Belden
during cross-examination regarding the professional conduct of
Dr. Jackson. In each instance, we disagree.
Initially, we observe that plaintiffs were afforded
extensive avenues of opportunity to advance their claim of
corporate liability, especially through the testimony of their
expert witness on hospital quality assurance, Susan DesHarnais,
Ph.D. Plaintiffs' evidence, for example, tended to indicate
failure of Watauga to develop adequate policies and procedures
regarding labor and delivery, and to train labor and delivery
nurses concerning such policies and procedures. In addition,
evidence tended to reflect inadequate clinical monitoring and/or
skills verification in electronic fetal monitoring and other
clinical skills, failure of Watauga to establish appropriate
lines of communication with labor and delivery services and
contingencies, and lack of appropriate avenues for nurses toexpress their feelings relating to patient care issues.
Turning now to plaintiffs' complaints addressed to the
issuance of protective orders, we note plaintiffs through
discovery had sought (a) from Watauga the complete labor and
delivery records for Dr. Jackson from the time he joined the
medical staff at Watauga through 5 March 1992; (b) answers to
interrogatories to Dr. Jackson regarding whether his performance
at Watauga had ever been evaluated by an expert from outside the
hospital and whether he had ever been reported to the National
Practitioner Data Base (NPDB); and (c) answers to interrogatories
and production of documents from Watauga concerning similar
information. The motions for protective orders of both Dr.
Jackson and Watauga as to the foregoing information were allowed.
N.C.G.S. § 1A-1, Rule 26(c) (1990) provides for the issuance
of protective orders for “good cause shown” in order to protect
against “unreasonable annoyance, embarrassment, oppression, or
undue burden or expense.” Further, discovery orders are
generally within the discretion of the trial court and will not
be upset on appeal absent a showing of abuse of discretion.
Powers v. Parisher, 104 N.C. App. 400, 409, 409 S.E.2d 725, 730
(1991), appeal dismissed and disc. review denied, 331 N.C. 286,
417 S.E.2d 254 (1992). We conclude no abuse of discretion isreflected in the instant record.
Dr. Jackson represented that his medical records covered
approximately five hundred and forty (540) patients, averaged one
hundred (100) to one hundred thirty (130) pages in length each,
and were replete with confidential information specifically
protected by N.C.G.S. § 131E-76 (1997) so as to necessitate
exhaustive scrutiny and extensive redaction. Moreover,
plaintiffs' request was filed more than thirty months following
filing of suit and but three months prior to the commencement of
trial on 20 May 1996. Based on these circumstances alone, we
believe the trial court might properly have determined the
request to constitute an undue burden or expense or to be
unreasonably tardy, and thus it did not err in allowing a
protective order concerning Dr. Jackson's records.
With regard to the interrogatories concerning the exchange
of information between Watauga and the NPDB, defendants maintain
such disclosure is specifically prohibited by the federal
statutory scheme creating the data base. See 42 U.S.C. §
11137(b)(1) (1986); Pub. L. No. 99-660, Title IV, § 427, 100
Stat. 3791 (1986) and 45 C.F.R. § 60.13. Plaintiffs do not take
issue with this analysis. Accordingly, the trial court did not
err in protecting NPDB information from disclosure.
Finally, in interrogatories addressed to both Dr. Jacksonand Watauga, plaintiffs requested as follows:
In his deposition, John R. Marchese, M.D.
states that if there were “some question as
to performance of a physician [at Watauga
Medical Center] . . . the Executive Committee
would evaluate the situation, usually obtain
expert opinion outside the hospital . . ..”
With regard to this statement, please state
whether any expert opinion with respect to
[Dr. Jackson's] performance at Watauga
Medical Center was obtained . . . ?
Defendants argue medical review committee proceedings are
specifically protected from discovery under N.C.G.S. § 131E-95(b)
(1997) (no person “in attendance at a meeting of the committee
shall be required to testify in any civil action as to any
evidence or other matters produced or presented during the
proceedings of the committee”) and N.C.G.S. § 131E-97 (1997).
See also Shelton v. Morehead Memorial Hospital, 318 N.C. 76, 82-
84, 347 S.E.2d 824, 828-29 (1986) (sections protect proceedings
of medical review committee, records and materials produced
therein, as well as materials considered). Plaintiffs respond by
pointing to the portion of the statute providing that
information, documents, or records otherwise
available are not immune from discovery or
use in a civil action merely because they
were presented during proceedings of the
committee.
G.S. § 131E-95(b).
In our view, plaintiffs' interrogatory, in seeking
information generated by Watauga's medical review committee, onits face requests material protected by the statute which was not
“otherwise available,” id., that is, the decision whether or not
to obtain outside evaluation of Dr. Jackson's performance--a
matter indisputably “produced,” G.S. § 131-95(b), during quality
assurance or credentialing activities of Watauga's medical review
committee. In this context, we find particularly pertinent the
purpose of G.S. § 131E-95 as expressed by our Supreme Court,
“i.e., the promotion of candor and frank exchange in peer review
proceedings.” Shelton, 318 N.C. at 82, 347 S.E.2d at 828.
Finally, plaintiffs question the trial court's grant of
defendants' motions in limine and restriction of cross-
examination of Nurse Belden regarding evidence of Dr. Jackson's
professional performance, notably evidence of deliveries by Dr.
Jackson in March 1989 and 30 March 1992.
The trial court's decision on a motion in limine will not be
reversed on appeal absent an abuse of discretion, see Carter v.
Food Lion, Inc., 127 N.C. App. 271, 276, 488 S.E.2d 617, 621,
disc. review denied, 347 N.C. 396, 494 S.E.2d 408 (1997), i.e.,
the ruling must be “so unreasonable under the facts of the case
as to constitute reversible error.” Id. Moreover, the trial
court has broad discretion in controlling the scope of
cross-examination, and such a ruling may likewise not be
disturbed absent abuse of discretion and a showing the ruling wasso arbitrary it could not have been the product of a reasoned
decision. Jones v. Rochelle, 125 N.C. App. 82, 85-86, 479 S.E.2d
231, 233, disc. review denied, 346 N.C. 178, 486 S.E.2d 205
(1997).
Suffice it to state that after careful review of the record
in the instant case, we conclude the trial court did not abuse
its discretion in either matter at issue. We elaborate only to
note, as an example, that the 30 March 1992 delivery took place
subsequent to the delivery of Holly and therefore was not
relevant to Watauga's alleged negligence on 5 March 1992. Cf.
Strubhart v. Perry Mem. Hosp. Trust Auth., 903 P.2d 263 (Okla.
1995) (“testimony about a doctor's prior conduct is admissible if
the hospital . . . knows or should know with the exercise of
ordinary care of the prior conduct”).
Having thus carefully considered each of plaintiffs'
contentions on appeal, we conclude the trial court committed no
prejudicial error.
No error.
Judges GREENE and MARTIN, Mark D. concur.
Judge MARTIN, Mark D. concurred prior to 4 January 1999.
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