SANDRA P. SUAREZ, as Guardian Ad Litem for ANDERSON LUKE SUAREZ,
and ALEX SUAREZ and SANDRA P. SUAREZ, Individually,
Plaintiffs
v
.
JAMES WILLIAM WOTRING, JR., M.D., SCOTT THOMAS CHATHAM, M.D., and
CATAWBA WOMEN'S CENTER, P.A.,
Defendants
Simpson Kuehnert Vinay & Bellas, P.A., by Eric R. Bellas and
Daniel A. Kuehnert, for plaintiff-appellants.
Dameron, Burgin & Parker, P.A., by Charles E. Burgin and
Phillip T. Jackson, for defendant-appellees.
THOMAS, Judge.
Plaintiffs, Sandra P. Suarez, as guardian ad litem for
Anderson Luke Suarez and in her individual capacity, and Alex
Suarez, appeal the trial court's entry of judgment on the jury's
verdict in favor of defendants in this medical negligence case.
Plaintiffs also appeal the trial court's denial of their motion for
a new trial as to defendant James William Wotring, M.D.
Plaintiffs contend the trial court committed reversible error
by (1) allowing defendants to read into the record selected
portions of the depositions of three of plaintiffs' expert
witnesses after they had been released from subpoena withdefendants' consent following their testimony at trial; (2)
allowing defendants to read into the record the deposition
testimony of one of plaintiffs' designated expert witnesses who did
not testify at trial, without finding the witness unavailable to
testify; (3) allowing testimony from one of defendants' expert
witnesses concerning the standard of care and whether defendants
complied with the standard of care, when defendants' designation of
expert witnesses did not state the expert would so testify; (4)
denying their motion for a new trial based on the jury being
informed prior to the close of defendants' case that Dr. Wotring's
mother had died the previous evening; and (5) denying their motion
for a new trial based on the evidence being insufficient to support
the jury's verdict. For the reasons herein, we affirm the judgment
and order of the trial court.
On 15 October 1998, plaintiffs filed the instant complaint
alleging defendants, James William Wotring, M.D., Scott Thomas
Chatham, M.D., and Catawba Women's Center, P.A., negligently caused
injuries and other damages sustained by Anderson Suarez during his
natural birth delivery. Defendants denied that their actions prior
to and during the birth violated the applicable standard of care.
Plaintiffs' evidence at trial tends to show that Sandra and
Alex Suarez are the parents of two children. Sandra became
pregnant with their first child in September 1989. She received
prenatal care at defendant Catawba Women's Center and the delivery
of her first child was accomplished with the aid of doctors and
other employees at the Women's Center. The delivery, however,required an episiotomy and the use of forceps.
In February 1995, Sandra became pregnant with Anderson Suarez.
At the time, she weighed 232 pounds and was five feet six inches in
height. During her prenatal care at the Women's Center, she
continuously reminded defendants that the birth of her first child
was difficult. Sandra eventually began experiencing numbness in
her leg, which she attributed to pressure being caused by the baby.
She expressed her concerns to defendants that the baby was too
large to deliver vaginally if she went to term.
On 6 October 1995, four days prior to the due date, Dr.
Chatham performed an ultrasound which revealed the baby weighed
approximately nine pounds. Sandra reminded him about the
difficulties she experienced with her first delivery and asked if
he would consider inducing labor. Chatham told her not to worry
about delivering the baby vaginally.
In the early morning hours of 18 October 1995, Sandra began
experiencing contractions and telephoned Dr. Wotring. He did not
answer. Sandra left three messages, none of which were returned.
When the Women's Center opened that morning, she called and was
told to come in. Sandra was initially examined by Chatham and told
to return home because Wotring would not send her to the hospital
until she was dilated four centimeters and the contractions
occurred every four minutes. Upon her insistence, Chatham
reluctantly sent her to Catawba Memorial Hospital, where she was
admitted around noon.
At the hospital, Sandra received an epidural, numbing herbelow the waist. After breaking Sandra's water, Wotring decided to
proceed with a vaginal delivery, but to artificially shorten the
second stage. Wotring attached a vacuum extractor suction unit to
the baby's head and delivered the head on the fourth contraction.
However, delivery of the rest of the baby's body proved
extremely difficult. Because the baby was so large and Sandra's
pelvis was borderline and her symphysis flat, there was "shoulder
dystocia" involving the baby's left shoulder--the position of the
shoulder prevented the body from proceeding down the birth canal.
Before performing any maneuvers to relieve the shoulder
dystocia, Wotring applied pressure to Anderson's head in an attempt
to deliver the rest of the body. According to Alex Suarez, who was
present in the delivery room, Wotring had his fingers in the
sockets of the baby's eyes and was leaning back with his full body
weight trying to deliver the baby. When this proved unsuccessful,
Wotring resorted to the McRoberts maneuver, a recognized method to
relieve shoulder dystocia which does not involve manipulation of or
pressure on the baby's head. Anderson was delivered during the
second attempt at the McRoberts maneuver. He weighed nine pounds,
eleven ounces.
At birth, Anderson suffered from numerous injuries and
currently suffers from Erb's Palsy, a permanent condition
characterized by limited use of his left arm. The cause is severe
damage to the nerves running between Anderson's left arm and spinal
cord resulting from the nerves having been physically stretched to
the breaking point. According to plaintiffs, the conditionresulted from a brachial plexus nerve root injury suffered at
Anderson's birth due to excessive lateral traction applied to his
head during delivery. Plaintiffs' experts testified that
defendants' care prior to and during the delivery of Anderson,
particularly Wotring's use of excessive force on Anderson's head,
was not in accordance with the standard of practice of members of
the same health care profession with similar training and
experience situated in the same or similar communities. See N.C.
Gen. Stat. § 90-21.12 (2001). Defendants' experts testified that
the standard of care was not violated.
Following the trial, the jury returned the following verdict:
1. Was Anderson Luke Suarez injured as a
result of the negligence of James William
Wotring, M.D.?
ANSWER: NO
2. Was Anderson Luke Suarez injured as a
result of the negligence of Scott Thomas
Chatham, M.D.?
ANSWER: NO
The trial court subsequently entered judgment consistent with the
jury's verdict.
Plaintiffs filed a timely Rule 59 motion for a new trial as to
Wotring alleging (1) irregularities by which they were prevented
from having a fair trial, (2) accident or surprise which ordinary
prudence could not have guarded against, (3) insufficiency of the
evidence to justify the verdict, and (4) other errors in law
entitling them to a new trial.
Plaintiffs' motion was denied. They gave timely notice ofappeal.
During plaintiffs' case-in-chief, Dr. Robert Allen, their bio-
medical engineering expert, testified regarding the forces exerted
during a routine delivery, and the forces necessary to cause the
injuries suffered by Anderson. Allen offered his opinion that
approximately ten pounds of force is exerted on a baby in a normal
delivery, whereas in shoulder dystocia cases, the average is
twenty-two pounds. Allen further opined that, based on Anderson's
injuries, at least thirty-five pounds of force were exerted on
Anderson's head during delivery. Allen was cross-examined at trial
by defendants, and then released from subpoena with defendants'
consent.
After plaintiffs rested, defense counsel stated his intention
to read into evidence a portion of Allen's pretrial deposition.
Plaintiffs objected. The trial court overruled the objection and
defense counsel read part of the deposition to the jury.
In addition to the pretrial deposition of Allen, defense
counsel also read into the record portions of the pretrial
depositions of Dr. Andrew Koman, Anderson's treating orthopaedic
surgeon, and Dr. Stuart Edelberg, both of whom had likewise
testified in plaintiffs' case-in-chief and been released from
subpoena with defendants' consent.
Plaintiffs contend the depositions of Allen, Koman and
Edelberg should not have been read into the record because
defendants did not establish that the deponents were "unavailable"
within the meaning of Rule 804(a) of the North Carolina Rules ofEvidence. Rule 804 permits the admission of certain statements,
including deposition testimony, which would otherwise be hearsay,
if the declarant is "unavailable." Defendants, meanwhile, maintain
the depositions were admissible under Rule 32 of the North Carolina
Rules of Civil Procedure without a showing of "unavailability"
under Rule 804(a).
Rule 32(a) of the North Carolina Rules of Civil Procedure
states, in pertinent part:
(a) Use of depositions. -- At the trial or
upon the hearing of a motion or an
interlocutory proceeding or upon a hearing
before a referee, any part or all of a
deposition, so far as admissible under the
rules of evidence applied as though the
witness were then present and testifying, may
be used against any party who was present or
represented at the taking of the deposition or
who had reasonable notice thereof, in
accordance with any of the following
provisions:
. . . .
N.C.R. Civ. P. 32(a) (2001) (emphasis added). The above-italicized
language in Rule 32(a) creates an exception to the hearsay rule.
The Comment to the 1975 Amendment to Rule 32(a), which added the
language, states:
A change is made in new Rule 32(a),
whereby it is made clear that the rules of
evidence are to be applied to depositions
offered at trial as though the deponent were
then present and testifying at trial. This
eliminates the possibility of certain
technical hearsay objections which are based,
not on the contents of deponent's testimony,
but on his absence from court. . . .
N.C.R. Civ. P. 32(a), comment.
Federal courts applying Federal Rule of Civil Procedure 32(a),the companion provision to N.C.R. Civ. P. 32(a), have consistently
held that it creates an independent exception to the hearsay rule.
See Angelo v. Armstrong World Industries, Inc., 11 F.3d 957, 962-63
(10th Cir. 1993); Southern Indiana Broadcasting, Ltd. v. F.C.C.,
935 F.2d 1340, 1342 (D.C. Cir. 1991); U.S. v. Vespe, 868 F.2d 1328,
1339 (3d Cir. 1989); Carey v. Bahama Cruise Lines, 864 F.2d 201,
204 (1st. Cir. 1988). Under the federal rules and applicable case
law, the proponent of deposition testimony has the burden of
proving the deposition is admissible under Fed.R.Civ.P. 32(a) or
Fed.R.Evid. 804(b)(1). Angelo, 11 F.3d at 963.
This interpretation is reinforced by subsection (b) of both
Federal Rule 32 and North Carolina Rule 32, which states that
"objection may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any reason which would
require the exclusion of the evidence if the witness were then
present and testifying." N.C.R. Civ. P. 32(b); Fed.R.Civ.P. 32(b).
Nonetheless, plaintiffs argue that deposition testimony is not
admissible, for any purpose, unless the proponent proves
admissibility under both Rule 32 of the Rules of Civil Procedure
and Rule 804 of the Rules of Evidence. Since Allen, Koman and
Edelberg all testified at trial and were released from subpoena
with defendants' consent, plaintiffs maintain they were not
"unavailable" within the meaning of Rule 804(a) and, therefore,
their deposition testimony was inadmissible.
Plaintiffs rely on our Supreme Court's decision in Investors
Title Insurance Co. v. Herzig, 330 N.C. 681, 413 S.E.2d 268 (1992)and this Court's decision in Pleasant Valley Promenade v. Lechmere,
Inc., 120 N.C. App. 650, 464 S.E.2d 47 (1995), to support their
interpretation.
In both Investors Title and Pleasant Valley, the trial court
found the witnesses whose deposition testimonies were offered to be
"unavailable" under Rule 804(a). The Supreme Court concluded in
Investors Title that (1) the "unavailability" test in the former
testimony exception to the hearsay rule was met, and (2) the party
against whom the deposition was offered had an opportunity and
similar motive to develop the offered testimony by cross-
examination at the deposition, thus meeting the requirements of
Rule 804(b)(1). Investors Title, 330 N.C. at 691-92, 413 S.E.2d at
273-74; see also N.C.R. Evid. 804(b)(1) (an unavailable witness's
deposition is admissible at trial "if the party against whom the
testimony is . . . offered . . . had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect
examination"). Accordingly, the Court held the challenged
deposition testimony was properly admitted.
In Pleasant Valley, the witness was "unavailable" under Rule
804(a) but the Court concluded the party against whom the
deposition was offered at trial did not have a motive to develop
the deposition testimony because, at the time of the deposition, no
damages claim was pending against that party. Pleasant Valley, 120
N.C. App. at 659, 464 S.E.2d. at 55. Accordingly, the Court held
the deposition testimony to have been properly excluded.
Unlike the witnesses in Investors Title and Pleasant Valley,Allen, Koman, and Edelberg were all available to testify at trial.
In fact, they all testified before being released from subpoena
with defendants' consent. Thus, Investors Title and Pleasant
Valley are not binding precedent on the issue presented here--
whether the deposition of a witness who is available to testify is
admissible under Rule 32(a)?
Having reviewed the text of Rule 32(a) of the North Carolina
Rules of Civil Procedure, the comment to the 1975 amendment to
Rule 32(a), and applicable case law interpreting the companion
federal rule, we hold that the deposition of an available witness
is admissible under Rule 32(a), so long as one of the enumerated
purposes set forth in Rule 32(a) have been met. When a witness is
available, Rule 32(a) creates an independent exception to the
hearsay rule and the proponent of that witness's deposition
testimony need only show that (1) the party against whom the
deposition is offered was present or represented at the deposition
or had reasonable notice thereof, and (2) one of the enumerated
purposes of Rule 32 is met. N.C.R. Civ. P. 32(a).
Rule 32 states as one of its purposes:
(2) The deposition of a person called as a
witness may also be used as substantive
evidence by any party adverse to the party who
called the deponent as a witness . . . .
N.C.R.Civ. P. 32(a)(2).
Here, Allen, Koman, and Edelberg were all called as witnesses
by plaintiffs. Defendants, in turn, are "adverse to the party who
called the deponent as a witness." Plaintiffs were present and
represented at the taking of the depositions thereby meeting therequirement found in the introductory paragraph of Rule 32(a).
Accordingly, Rule 32(a) permitted defendants to use any part or all
of the depositions of Allen, Koman and Edelberg, who were
available, as substantive evidence. The trial court did not commit
error.
Plaintiffs next contend the trial court erred in allowing the
admission of selected portions of the deposition testimony of Dr.
Ronald Foote.
During discovery, plaintiffs designated Foote as an expert
witness who was expected to testify that defendants failed to
comply with the applicable standard of care in their delivery of
Anderson Suarez. Foote's deposition was subsequently taken by
defendants' counsel.
However, plaintiffs did not call Foote to testify during their
case-in-chief. After plaintiffs rested, defense counsel, over
objection, read excerpts from Foote's deposition to the jury.
Plaintiffs argue this was error because the trial court made no
finding that Foote was "unavailable" within the meaning of Rule
804.
We agree with plaintiffs that the trial court erred in
allowing the admission of Foote's deposition testimony. However,
we do so for a reason different than the one cited by plaintiffs.
Investors Title and Pleasant Valley hold: "To be admissible at
trial, the deposition of an unavailable non-party witness must meet
the requirements of both N.C.R. Civ. P. 32 and N.C.R. Evid.
804(b)(1)." Pleasant Valley, 120 N.C. App. at 659, 464 S.E.2d at55 (citing Investors Title, 330 N.C. at 690-91, 413 S.E.2d at 273
(1992). In the instant case, we hold that the deposition of an
available witness is admissible under Rule 32, so long as one of
the stated purposes set forth in Rule 32(a)(1)-(5) has been met.
Therefore, regardless of whether a witness is available or
unavailable, one of the stated purposes in Rule 32(a) must be met
before that witness's deposition testimony can be admitted for any
purpose. See Warren v. City of Asheville, 74 N.C. App. 402, 409,
328 S.E.2d 859, 864 (1985) ("[a]ll or part of a deposition may be
used only if the provisions of G.S. 1A-1, Rule 32(a) are met.");
Nytco Leasing v. Southeastern Motels, 40 N.C. App. 120, 252 S.E.2d
826 (1979).
Defendants maintain the reading of Foote's deposition was
permitted under Rule 32(a)(4), which states:
(4) The deposition of a witness, whether or
not a party, may be used by any party for any
purpose if the court finds: . . . that the
witness is at a greater distance than 100
miles from the place of trial or hearing . .
.; or that the party offering the deposition
has been unable to procure the attendance of
the witness by subpoena . . . .
N.C.R. Civ. P. 32(a)(4).
However, the trial transcript does not contain a finding by
the trial court that Foote was more than 100 miles away from the
place of the trial or that defendants had been unable to procure
his attendance by subpoeana. The record does show the trial court
was informed by defense counsel that Foote resided in Buffalo, New
York. Following this declaration, a bench conference was held, the
contents of which were not transcribed. The trial court thenoverruled plaintiffs' objection and Foote's deposition was read to
the jury. Although the trial court was informed that Foote lived
in Buffalo, which is well over 100 miles from Catawba County, it
made no findings to support its admission of Foote's deposition.
Absent any findings, we refuse to speculate as to the grounds for
the trial court's ruling. Thus, we conclude the trial court erred
in allowing the reading of Foote's deposition to the jury.
However, an error in the admission of evidence is not grounds
for granting a new trial or setting aside a verdict unless the
admission amounts to the denial of a substantial right. See N.C.R.
Civ. P. 61 (2001); N.C.R. Evid. 103(a) (2001). The burden is on
the appellant to not only show error, but also to show that he was
prejudiced and a different result would have likely ensued had the
error not occurred. Warren, 74 N.C. App. at 409, 328 S.E.2d at
864; Hasty v. Turner, 53 N.C. App. 746, 750, 281 S.E.2d 728, 730-31
(1981). The erroneous admission of testimony will not be held
prejudicial when its import is abundantly established by other
competent testimony, or the testimony is merely cumulative or
corroborative. Warren, 74 N.C. App. at 409, 328 S.E.2d at 864.
The portion of Foote's deposition read to the jury indicted
the following: (1) shoulder dystocia is an unpredictable event; (2)
in Dr. Foote's opinion, the maneuvers documented by Dr. Wotring as
having been used in the delivery of Anderson Suarez did not violate
the standard of care; and (3) if Wotring delivered Anderson with
the force described by Alex Suarez, he violated the standard of
care. Plaintiffs and defendants both elicited other expert evidence
that shoulder dystocia is an unpredictable event. Dr. Donald
Horner, one of plaintiffs' experts, and Dr. Joseph Ernest,
defendants' obstetrical expert, both testified to this fact.
Ernest also opined that, based on the information documented by
Wotring in Anderson's medical charts, Wotring performed the right
maneuvers at the right time. Thus, the reading of Foote's
deposition served only to corroborate competent evidence already
before the jury as to issues (1) and (2) above. In addition,
Foote's opinion that Wotring violated the standard of care if he
used the force described by Alex Suarez is supportive of
plaintiffs' case and in no way prejudicial. Accordingly,
plaintiffs cannot show prejudice in the admission of Foote's
deposition testimony, and we hold the admission of the evidence to
be harmless error.
Plaintiffs next contend the trial court erred in allowing the
testimony of Dr. Gary Hankins regarding the standard of care
required of defendants and whether they complied with that
standard.
Prior to trial, the court entered a discovery scheduling order
(DSO) pursuant to Rule 26(f1) of the North Carolina Rules of Civil
Procedure. The DSO required defendants to designate all expert
witnesses they intended to call to render expert opinions at trial,
and provide the experts' curriculum vitae (CV) and the information
set forth in Rule 26(b)(4) of the Rules of Civil Procedure. Rule
26(b)(4) provides that a party may be required to identify eachexpert witness the party anticipates calling at trial, "the subject
matter on which the expert is expected to testify, . . . the
substance of the facts and opinions to which the expert is expected
to testify, and a summary of the grounds for each opinion." N.C.R.
Civ. P. 26(b)(4) (2001).
Defendants subsequently filed their designation of expert
witnesses which identified Hankins and stated "he is expected to
testify that shoulder dystocia can be, as was in this case, an
obstetrical emergency." Plaintiffs had no disagreement with this
opinion, and because Hankins was not expected to testify regarding
the applicable standard of care, plaintiffs elected not to depose
him.
Defendants then elicited at trial Hankins' opinion that
Wotring had provided treatment to Sandra and Anderson Suarez in
accordance with the standard of care. Plaintiffs objected and now
argue admission of such evidence was erroneous because it violated
the discovery scheduling order.
However, plaintiffs have failed to show how they were
prejudiced by the admission of Hankins' opinion. His testimony was
cumulative and corroborative of substantially similar testimony
given by defendants' other expert, Dr. Ernest. Plaintiffs have
failed to show how introduction of Hankins' testimony influenced
the jury's verdict. Accordingly, assuming the trial court erred,
we hold the error was harmless. See N.C.R. Civ. P. 61.
Plaintiffs next contend the trial court erred in denying their
motion for a new trial against defendant Wotring based on "accidentor surprise which ordinary prudence could not have guarded against"
caused by the jury being informed near the close of defendants'
case that Wotring's mother had died the preceding afternoon. We
find no manifest abuse of discretion on the trial court's part.
The standard of appellate review for discretionary rulings
granting or denying motions for new trials was set forth by the
Supreme Court in Campbell v. Pitt County Memorial Hospital, 321
N.C. 260, 362 S.E.2d 273 (1987), as follows:
Appellate review "is strictly limited to the
determination of whether the record
affirmatively demonstrates a manifest abuse of
discretion by the judge." Worthington v.
Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602
(1982). The trial court's discretion is
"'practically unlimited.'" Id., 290 S.E.2d at
603 (quoting from Settee v. Electric Ry., 170
N.C. 365, 367, 86 S.E. 1050, 1051 (1915)). A
"discretionary order pursuant to [N.C.]G.S.
1A-1, Rule 59 for or against a new trial upon
any ground may be reversed on appeal only in
those exceptional cases where an abuse of
discretion is clearly shown." Id. at 484, 290
S.E.2d at 603. "[A] manifest abuse of
discretion must be made to appear from the
record as a whole with the party alleging the
existence of an abuse bearing that heavy
burden of proof." Id. at 484-85, 290 S.E.2d
at 604. "[A]n appellate court should not
disturb a discretionary Rule 59 order unless
it is reasonably convinced by the cold record
that the trial judge's ruling probably
amounted to a substantial miscarriage of
justice." Id. at 487, 290 S.E.2d at 605.
Id. at 264-65, 362 S.E.2d at 275-76 (emphasis and alterations in
original), quoted in Anderson v. Hollifield, 345 N.C. 480, 483, 480
S.E.2d 661, 663 (1997).
On the morning of 14 March 2001, the last day of testimony in
this case, court reconvened and Wotring returned to the stand forre-cross examination. During re-cross, plaintiffs' counsel asked
Wotring if he had a good night's sleep and Wotring answered he did
not.
Following re-cross, defense counsel returned for a second
redirect examination of Wotring. At the conclusion of this
redirect, the following exchange occurred:
Q: Doctor, I didn't hear what you said when Mr
Britt asked you if you had a good night. Is
that what he asked you?
A: Yeah.
Q: Well, what did you say? I didn't hear the
answer.
A: I told him I did not.
Q: Why did you not have a good night?
A: Well, unfortunately, my mother passed away
yesterday afternoon, and we were up most of
the night making arrangements. And it was --
she was ninety, but -- and not unexpected, but
it was still a shock.
Plaintiffs argue defense counsel elicited the testimony
regarding the death of Wotring's mother in a manner designed for
maximum effect and the result of such testimony was that everyone
in the courtroom, including the jurors, "felt profound sympathy for
Dr. Wotring." Plaintiffs maintain such a reaction was natural and
unavoidable and prevented plaintiffs from having a fair trial. We
disagree.
The jury was instructed "to perform [its] duty fairly and
objectively and without bias, sympathy or partiality toward any
party" and "not to be swayed by pity, sympathy, partiality or
public opinion." Absent some evidence in the record, we cannotassume the jury here disregarded the trial court's instruction and
ignored its solemn duty to fairly and impartially decide the case.
Therefore, the trial court's ruling denying plaintiffs' motion for
a new trial on this ground did not amount to a substantial
miscarriage of justice or a manifest abuse of discretion.
In their final assignment of error, plaintiffs contend the
trial court erred in denying their motion for a new trial against
Wotring because the jury's verdict was contrary to the
uncontradicted evidence at trial. We disagree.
"Like any other ruling left to the discretion of a trial
court, the trial court's appraisal of the evidence and its ruling
on whether a new trial is warranted due to the insufficiency of the
evidence is not to be reviewed on appeal as presenting a question
of law." In re Buck, 350 N.C. 621, 625, 516 S.E.2d 858, 860-61
(1999) (emphasis in original). It is well-settled that a trial
judge's discretionary ruling either granting or denying a motion
for a new trial is strictly limited to the determination of whether
the record affirmatively demonstrates a manifest abuse of
discretion. Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d
599, 602 (1982).
It is impossible to place precise
boundaries on the trial court's exercise of
its discretion to grant a new trial. However,
we emphasize that this power must be used with
great care and exceeding reluctance. This is
so because the exercise of this discretion
sets aside a jury verdict and, therefore, will
always have some tendency to diminish the
fundamental right to trial by jury in civil
cases which is guaranteed by our Constitution.
In re Buck, 350 N.C. at 626, 516 S.E.2d at 861 (emphasis inoriginal).
Here, plaintiffs argue that every medical expert witness
testified that the standard of care required Wotring to attempt a
variety of different maneuvers to relieve Anderson's shoulder
dystocia before applying excessive traction to Anderson's head.
According to plaintiffs, the only witness who testified to the
details of Anderson's delivery was Alex Suarez, who stated that
Wotring panicked when Anderson's shoulder got stuck and immediately
starting pulling hard on Anderson's head. Thus, plaintiffs contend
the uncontradicted evidence shows that Wotring violated the
standard of care.
However, defendants introduced into evidence Wotring's medical
notes detailing the steps he took to effectuate the delivery of
Anderson. Two of defendants' expert witnesses testified that
Wotring's actions, as documented in his notes, did not violate the
standard of care.
It is the jury's function to weigh the evidence and to
determine the credibility of witnesses. In this case, the jury was
presented with all of the evidence, was instructed properly on the
law, and made its decision accordingly. We cannot conclude from
the record that the trial court's denial of plaintiffs' motion for
a new trial based on insufficiency of the evidence to support the
verdict probably amounted to a substantial miscarriage of justice.
For the reasons stated herein, we conclude the trial court did
not err in entering judgment on the jury's verdict and in denying
plaintiffs' motion for a new trial as to defendant Wotring. Affirmed.
Judge TYSON concurs.
Chief Judge EAGLES concurs in a separate opinion.
EAGLES, Chief Judge, concurring.
I concur in the result reached by the majority. However, I
write separately to express my uneasiness and disagreement with the
extensive use of a witness's deposition testimony to impeach the
witness after the witness testifies in person, has been examined in
person and has been excused.
Here, defendants used deposition testimony to impeach
plaintiff's expert witnesses after those same witnesses had been
present in court, testified in person, and defendants had the
opportunity to cross-examine them on the witness stand. Defendants
agreed to excuse those witnesses and allowed the witnesses to leave
the courtroom. Relying upon Rule 32(a) of the North Carolina Rules
of Civil Procedure, defendants then proceeded to read the
witnesses' deposition testimony into the record in order to impeach
their live testimony. The depositions were read into evidence
without the witnesses' presence or ability to explain their
previous deposition testimony. This practice smacks of trial by
ambush. Use of deposition testimony without the deponent's
presence is technically allowed by N.C. R. Civ. P. 32 and N.C. R.
Evid. 804. However, this practice impairs the fact-finder's
ability to perform its traditional role of sorting truth from
fiction by judging witness credibility during live testimony attrial. Although the parties in this case behaved in strict
compliance with the rules, I believe that use of a witness's
deposition testimony when that witness has been excused should be
discouraged. The rules which appear to authorize this practice,
N.C. R. Civ. P. 32 and N.C. R. Evid. 804, should be revisited by
the General Assembly.
*** Converted from WordPerfect ***