HELEN RUTH COCKRELL,
Plaintiff
v
.
Wilson County
No. 00 CVS 1190
PIERRE A. LEMAIRE, M.D.
and WILSON SURGICAL
ASSOCIATES, P.A.,
Defendants
Mast, Schulz, Mast, Mills, Stem & Johnson, P.A., by Charles D.
Mast, and David F. Mills, for plaintiff-appellant.
Yates, McLamb & Weyher, L.L.P., by John W. Minier, for
defendants-appellees.
CALABRIA, Judge.
Helen Ruth Cockrell (“plaintiff”) appeals the 11 June 2002
judgment in favor of Dr. Pierre A. Lemaire (“Dr. Lemaire”) and
Wilson Surgical Associates, P.A. (collectively “defendants”) based
upon the 16 May 2002 jury verdict finding Dr. Lemaire did not
negligently injure plaintiff. Plaintiff asserts the trial court
erred by admitting improper evidence, improperly instructing the
jury, and failing to grant a new trial. We find no error.
On 3 November 1997, Dr. Lemaire operated on plaintiff to
remove her gallbladder. After she was discharged from the
hospital, plaintiff became ill. During a second surgery, Dr.Lemaire discovered that he improperly cut and clipped the common
bile duct, which caused a bile leak and plaintiff's illness. Dr.
Lemaire repaired the duct and plaintiff was transferred to Duke
University Medical Center for further treatment. Thereafter,
plaintiff sued Dr. Lemaire for negligence. The jury found Dr.
Lemaire was not negligent and plaintiff appeals.
Plaintiff asserts the trial court erred by: (I) admitting
evidence regarding abnormal anatomies despite Dr. Lemaire's
testimony that plaintiff's anatomy appeared normal; (II) (A)
failing to instruct the jury of plaintiff's contention that Dr.
Lemaire negligently cut and clipped her common bile duct and (B)
instructing the jury regarding spoilation; and (III) failing to
grant plaintiff's motions for a directed verdict, judgment
notwithstanding the verdict and a new trial. We find no error.
I. Testimony regarding abnormal anatomy
Plaintiff asserts the trial court erred in permitting evidence
regarding anatomical abnormalities because Dr. Lemaire testified
that he found plaintiff's anatomy to be normal and therefore the
evidence was speculative and unfairly prejudicial. We disagree.
North Carolina law provides that relevant evidence is
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
N.C. Gen. Stat. § 8C-1, Rule 401 (2003). Moreover, experts may
offer an opinion based on their specialized knowledge to “assist
the trier of fact to understand the evidence or to determine a factin issue.” N.C. Gen. Stat. § 8C-1, Rule 702 (2003). However,
where the expert is merely speculating, he is in no better position
than the jury to form an opinion and his speculations should be
excluded. State v. Bowen, 139 N.C. App. 18, 31-32, 533 S.E.2d 248,
256-57 (2000). Generally, experts are limited to testifying
regarding probabilities and are prohibited from opining about mere
possibilities. Pruitt v. Powers, 128 N.C. App. 585, 589-90, 495
S.E.2d 743, 746 (1998).
In the case at bar, although plaintiff asserts the expert
testimony regarding abnormal anatomy was speculative, a review of
the testimony demonstrates the testimony was based on specialized
knowledge and was not speculative. In performing the first
surgery, Dr. Lemaire testified that although he believed he clearly
identified, clipped and cut the cystic duct and the cystic artery
before removing the gallbladder, when he performed the second
surgery, Dr. Lemaire discovered the common bile duct had also been
clipped and cut. Dr. Lemaire testified that when he performed the
first surgery he was able to identify plaintiff's anatomy, which
“looked like it was supposed to look to me. The anatomy didn't
look funny. You know, there was nothing confusing. It looked like
it's supposed to look.” Accordingly, Dr. Lemaire testified that he
could not “come up with a good answer” as to how he clipped and cut
the common bile duct. Plaintiff asserts that because Dr. Lemaire
testified that plaintiff's anatomy was normal, defendants should
not have been permitted to discuss whether plaintiff's anatomy was
abnormal. Indeed, on cross-examination plaintiff's expert Dr.David Countryman (“Dr. Countryman”) testified that a surgeon could
injure the common duct without violating the standard of care if
the patient's anatomy is abnormal, however Dr. Lemaire had not
found plaintiff's anatomy to be abnormal, and therefore Dr.
Countryman felt bound “to accept [Dr. Lemaire's] opinion [that the
anatomy was normal].” Defendant's expert, Dr. Steven Paul Kahn
(“Dr. Kahn”), proffered a different analysis. Dr. Kahn explained
that Dr. Lemaire's finding that plaintiff's anatomy was normal is
precisely what one would expect the operating surgeon to report
when an injury to the common bile duct occurs because if Dr.
Lemaire saw an “anomaly [of the cystic or common bile duct] he
would say, 'Uh-oh, this is a red flag. We're going to stop this
[laproscopic] operation, open' _ _ open the abdomen _ _ 'and do it
the old-fashioned way.'” Moreover, the explanation that
plaintiff's anatomy was abnormal is not speculative where reliable
data demonstrates that abnormal anatomies are more common than
normal anatomies. Furthermore, plaintiff's common bile duct was
smaller in diameter than the average common bile duct and her
cystic duct was “very short.” Accordingly, under Dr. Kahn's
theory, although Dr. Lemaire claimed plaintiff's anatomy was
normal, his testimony supports the explanation that plaintiff's
anatomy was probably abnormal. Moreover, considering the majority
of anatomies would be considered abnormal and the available
measurements of plaintiff's anatomy illustrated that her ducts were
smaller and shorter than average, the explanation that plaintiff's
anatomy, although appearing normal to Dr. Lemaire, may have beenabnormal is not purely speculative or a mere possibility.
Plaintiff's assignment of error is overruled.
II. Jury Instructions
A. Plaintiff's requested instruction on negligence
Plaintiff asserts the trial court erred in submitting to the
jury the following instruction:
In this case the plaintiff contends and the
defendant denies that the defendant was
negligent in one or more of the following
ways:
The first contention is that the defendant
failed to use his best judgment in the
treatment and care of his patient in one or
more of the following ways:
(A) The defendant failed to properly identify
the bile duct anatomy before clipping and
cutting the appropriate structures involved
with the removal of the gallbladder;
(B) The defendant failed to properly identify
an injury to the plaintiff's bile duct based
on her signs and symptoms and failed to react
and timely institute appropriate care
following the November 3, 1997, surgery;
And (C) the defendant opted to reoperate on
the plaintiff on November 14, 1997, instead of
immediately transferring plaintiff to a
qualified surgeon who was experienced in
repairing any injury to the ductal system.
Plaintiff asserts the trial court erred in failing to also submit
to the jury her contention that defendant was negligent and failed
to use his best judgment in her treatment and care by “clipp[ing]
and cut[ting] more than two tubular structures in the bile duct
system without identifying any need to clip and cut more than two
tubular structures.”
It is well established that “[w]here an instruction is
requested by a party, and where that instruction is supported by
the evidence, it is error for the trial court not to instruct insubstantial conformity with the requested instruction.” State v.
Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428 (1988). In the case
at bar, Dr. Countryman's testimony that Dr. Lemaire breached the
standard of care by clipping and cutting the common bile duct
supports plaintiff's requested instruction. However, Dr.
Countryman believed Dr. Lemaire's actions breached the standard of
care “[d]ue to the misidentification of the common bile duct.”
Accordingly, the trial court's instruction to the jury that
plaintiff contended Dr. Lemaire was negligent by “fail[ing] to
properly identify the bile duct anatomy before clipping and cutting
the appropriate structures” incorporated the specific allegation
that following this misidentification he improperly clipped and cut
the common bile duct. We find no error.
B. Defendant's requested instruction on spoilation
Plaintiff also asserts the trial court erred in giving the
following instruction to the jury:
Now, evidence has been received which tends to
show that the handwritten notes of Dorothy
Sorrell [plaintiff's sister] were in the
exclusive possession of Mrs. Cockrell and they
have been destroyed even though Mrs. Cockrell
was aware of Dr. Lemaire's defense. From
this, you may infer, though you are not
compelled to do so, that the handwritten notes
of Dorothy Sorrell would be damaging to Mrs.
Cockrell. You may give this inference such
force and effect as you think it should have
under all of the facts and circumstances. You
are permitted to make this inference even
though there is no evidence Mrs. Cockrell
acted intentionally or negligently or in bad
faith. You should not make this inference if
you find that there is a fair, frank, and
satisfactory explanation of what happened to
the handwritten notes of Dorothy Sorrell.
In fact, Dorothy Sorrell testified that she retyped her handwritten
notes, and although she rephrased portions, she firmly maintained
that the meaning was not altered. She further testified that
although she had copies of the typewritten notes, the handwritten
notes were thrown away. Mrs. Cockrell testified that her sister
gave her the handwritten notes, but she could not locate or produce
them for trial. Accordingly, the evidence plainly supports the
instruction by the court, and we find no error.
III. Motions for directed verdict, JNOV and new trial
Finally, plaintiff asserts the trial court erred in failing to
grant its motion for a directed verdict, a judgment notwithstanding
the verdict and a new trial on the basis that “[t]aking the
evidence in the light most favorable to Dr. Lemaire, he was unable
to produce any evidence explaining how or why he placed a third set
of clips on the common bile duct without identifying any need to do
so.” However, considering the evidence in the light most favorable
to Dr. Lemaire, we find the trial court did not err in failing to
grant these motions. There is ample evidence to support the jury's
verdict, and we find no error.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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