JOYCE FAYE MINTON,
Plaintiff
v
.
Wilkes County
No. 00 CVS 566
DAVID NEAL BOWMAN and
JAMES THOMAS BOWMAN,
Defendants
Franklin Smith for plaintiff-appellant.
Willardson Lipscomb & Miller, L.L.P, by William F. Lipscomb,
for defendants-appellees.
WALKER, Judge.
Plaintiff initiated this action on 13 April 2000 seeking
damages for injuries she sustained as a result of an automobile
accident involving her and David Neal Bowman (David) on 1 September
1999. At the time, David was driving an automobile owned by his
father, James Thomas Bowman. Defendants answered admitting David's
negligence. Thereafter, on 5 March 2001, a trial commenced with
the sole issue being the amount in damages, if any, plaintiff was
entitled to recover from defendants.
The jury determined that plaintiff was entitled to $4,000.00
in damages, and the trial court entered judgment in this amount on15 March 2001. On 19 March 2001, plaintiff moved the trial court
to set aside the jury's verdict and order a new trial on grounds
that the jury had awarded inadequate damages. Plaintiff also
argued that the trial court improperly admitted evidence of her
prior medical history. Plaintiff's motions were denied.
Plaintiff first contends the trial court erred in permitting
defendants to introduce evidence regarding medical treatment and a
disability rating she received more than ten years prior to the
accident. She asserts the admission of such evidence was unduly
prejudicial in violation of Rule 403 of the Rules of Evidence.
The record reveals plaintiff moved in limine that the trial
court prohibit defendants from introducing or asking questions
pertaining to any of her medical records dated more than ten years
prior to the trial date. However, the trial court reserved ruling
on plaintiff's motion until such time that it heard “what the
[trial] testimony would be” and could place her request into a
“proper context.”
Thereafter, during plaintiff's presentation of evidence, she
testified that since the accident she suffers pain “from [her] head
down to [her] feet” and that she is “taking shots for [her]
shoulder, the upper neck and points of [her] . . . lower back
area.” She also testified that in 1994 she had received medical
treatment for a lower back injury which resulted from a fall at her
workplace. Plaintiff's physician, Dr. Jerry Watson (Dr. Watson),
then testified that he treated plaintiff in September 1999 for pain
in her “neck, shoulder and left arm and low[er] back.” He furthertestified that plaintiff complained of pain in her lower back area
on several subsequent visits. Additionally, in response to
plaintiff's counsel's question, Dr. Watson stated his examination
of plaintiff revealed tenderness around a lumbar laminectomy scar.
Dr. Watson ultimately opined that plaintiff suffers from
fibromyalgia which is attributable to the injuries she suffered as
a result of the 1 September 1999 automobile accident.
During cross-examination, defendant questioned Dr. Watson
concerning his treatment of plaintiff and the basis of his opinion
regarding the cause of her fibromyalgia. Dr. Watson stated that
his opinion was based on his review of plaintiff's “whole [medical]
history” and a physical examination he had performed following the
accident. Over plaintiff's objection, the trial court ruled that,
in view of his testimony, defendant would be permitted to question
Dr. Watson concerning whether he knew that plaintiff underwent a
lumbar laminectomy in 1986 and received a twenty percent permanent
partial disability rating for her lower back in 1987. In response,
Dr. Watson stated he was unaware of these facts but he could not,
without more detail, form an opinion as to whether plaintiff had
developed fibromyalgia prior to 1 September 1999.
Plaintiff contends the admission of her prior surgery and
disability rating violates Rule 403 of the Rules of Evidence which
states in pertinent part, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. . . .” N.C. Gen. Stat. § 8C-1, Rule
403 (2001). The decision of whether to exclude evidence under thisrule is in the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of that discretion. See Tomika
Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God, 136
N.C. App. 493, 524 S.E.2d 591 (2000).
In support of her position, plaintiff relies on this Court's
holding in Sitton v. Cole, 135 N.C. App. 625, 521 S.E.2d 739
(1999). Like the case before us, Sitton involved a negligence
action which arose out of an automobile accident. Plaintiff
testified that, as a result of the accident, she suffered injury to
her neck, shoulder and thoracic spine and that, prior to the
accident, she had never experienced problems in these areas. The
defendant then sought to introduce the plaintiff's medical record,
compiled ten years prior to the accident, which contained a
notation stating that plaintiff had complained of “longstanding
mid-thoracic pain” and “paraspinal muscle pain.” However, the
plaintiff's physician testified that, at the time the medical
record was made, he did not know who made the notation and he had
no personal knowledge of how it came to be included in the
plaintiff's medical record. This Court held: “Because the medical
record was remote in time and [the plaintiff's treating physician]
could not specify who made this vague notation . . . the trial
court properly exercised its discretion in excluding the evidence
under Rule 403.” Id. at 626, 521 S.E.2d at 740-41.
Unlike the medical evidence in Sitton, there is no dispute
here that plaintiff underwent surgery on her lower back in 1986 and
received a rating of twenty percent permanent partial disability in1987. Moreover, the record is devoid of any evidence indicating
that, prior to 1 September 1999, plaintiff's disability rating had
been upgraded or removed. Furthermore, plaintiff and her physician
both testified that, following the automobile accident, she
complained of pain in her lower back area. Dr. Watson also
testified that his opinion as to the cause of plaintiff's
fibromyalgia was based on plaintiff's “whole [medical] history.”
As such, we cannot conclude the probative value of plaintiff's
prior lower back surgery and disability rating was substantially
outweighed by the danger of unfair prejudice to plaintiff. Hence,
the trial court did not abuse its discretion by admitting this
evidence.
Next, plaintiff contends the trial court erred in its
instructions to the jury on the “thin skull” doctrine. She
maintains the instruction “was not of sufficient clarity to enable
the jury to evaluate [her] injuries in light of any preexisting
injuries that she had.” We disagree.
The record shows that the trial court, with respect to the
“thin skull” doctrine, instructed the jury as follows:
In deciding whether . . . the injury to the
Plaintiff was a reasonably foreseeable
consequence of the Defendant's negligence, you
should determine whether such negligent
conduct under the same . . . or similar
circumstances could reasonably have been
expected to injure a person of ordinary
physical condition.
If so, the harmful consequences resulting from
the Defendant's negligence would be reasonably
. . . foreseeable, and therefore would be a
proximate cause of the Plaintiff's injury.
If not, then the harmful consequences
resulting from the Defendant's negligence
would not be . . . reasonably foreseeable, and
therefore would not be a proximate cause of
the Plaintiff's injury.
Now, under such circumstances, the Defendant
would be liable for all harmful consequences
which occurred, even though those . . .
harmful consequences may be unusually
extensive, because of a peculiar, abnormal
physical condition, which happened to be
present in the Plaintiff.
Plaintiff concedes this instruction tracks the model
instruction for “peculiar susceptibility” provided in the North
Carolina Pattern Jury Instructions. See N.C.P.I.--Civ. 102.20
(gen. civ. vol. 1994). Nevertheless, she asserts the trial court
erred by failing to “tailor” the instruction to the facts of the
case.
This Court has previously held that where the trial court has
sufficiently instructed the jury on the law governing the case, a
party desiring greater elaboration must tender a request for a
special instruction. See Prevette v. Bullis, 12 N.C. App. 552,
554, 183 S.E.2d 810, 811-12 (1971); and Hendrix v. All American
Life and Cas. Co., 44 N.C. App. 464, 467, 261 S.E.2d 270, 272
(1980); see also N.C. Gen. Stat. § 1A-1, Rule 51(b)(2001)(outlining
the procedures for requesting a special instruction). Here,
plaintiff objected to the instruction as given, but neither
tendered to the trial court a written request for a special
instruction nor provided it with any specifics as to how the
instruction should be “tailored” to the facts of the case.
Accordingly, we overrule this assignment of error. Lastly, plaintiff argues the trial court erred in failing to
grant her motion to set aside the jury verdict and order a new
trial. However, plaintiff's argument on this issue is based on her
contentions that the trial court had erroneously admitted evidence
of her past medical treatment and had improperly instructed the
jury on the “thin skull” doctrine. Having determined the trial
court did not err with respect to these matters, we likewise
conclude the trial court did not err in denying plaintiff's request
to set aside the jury's verdict and order a new trial.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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