An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-327


Filed: 20 January 2004


v .                         Wilson County
                            No. 00 CVS 1190

    Appeal by plaintiff from judgment entered 11 June 2002 by Judge Cy A. Grant, Sr., in Wilson County Superior Court. Heard in the Court of Appeals 19 November 2003.

    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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