JOHN O. CARROLL,
Plaintiff-Appellant,
v
.
Edgecombe County
No. 01 CVS 1482
BENNY STRICKLAND, a/k/a
BENNY STRICTON, WILLIAM
HUNTER and MICHAEL BLACK,
Defendants-Appellees.
McGEE, Judge.
John O. Carroll (plaintiff) filed suit on 13 November 2001
against Benny Strickland a/k/a Benny Stricton (Strickland), William
Hunter (Hunter), and Michael Black (Black)(collectively defendants)
alleging negligent infliction of emotional distress. Although
originally designated a jury trial, plaintiff later waived his
right to a jury trial and the action proceeded as a bench trial.
In a judgment entered 29 October 2002, the trial court dismissed
plaintiff's complaint with prejudice. The evidence at trial tended to show that plaintiff and
defendants were employed in 1997 by Ansell Edmont Industrial, Inc.
(Ansell), which manufactured work gloves. The parties regularly
ate lunch together in Black's office. While all parties were in
Black's office at lunchtime on or about 29 May 1997, Strickland
revealed what appeared to be a pipe bomb ("bomb"). He held the
"bomb," which contained no gunpowder, in his hand and lit the fuse.
Strickland promptly put the fuse out. Plaintiff did not know at
the time of the incident that the "bomb" was fake. Plaintiff
reported the "bomb" incident to Ansell's human resources department
sometime in late 1997.
The "bomb," manufactured by Hunter, consisted of a piece of
plastic pipe with two plumbing caps. A hole had been drilled
through the "bomb" and a piece of cannon fuse inserted. Strickland
had supplied the cannon fuse and the two plumbing caps. Hunter and
Strickland had devised the "bomb" as a practical joke, hoping to
discourage what they perceived as plaintiff's repeated suicidal
remarks suggesting that he would be better off dead. Neither
Black, Hunter, nor Strickland intended any harm to come to
plaintiff.
Plaintiff alleged that he suffered severe emotional distress
as a result of the incident involving the "bomb" and that he
required psychiatric treatment. Plaintiff first saw Dr. Kathy
Diane Mayo (Dr. Mayo), a psychiatrist, on 13 March 1998. Plaintiff
sought to introduce at trial the deposition of Dr. Mayo. Black
and Strickland made motions in limine requesting that Dr. Mayo'stestimony be excluded. After reviewing the transcript of Dr.
Mayo's deposition, the trial court found that Dr. Mayo was unable
to render an opinion within a reasonable degree of certainty as to
whether the "bomb" incident could have caused plaintiff's psychotic
disorder. In an order entered 29 October 2002, the trial court
granted Black's and Strickland's motions in limine. Plaintiff
appeals the judgment and order of the trial court.
We first note that plaintiff has failed to comply with the
North Carolina Rules of Appellate Procedure. "The Rules of
Appellate Procedure are mandatory and failure to follow the rules
subjects an appeal to dismissal." Wiseman v. Wiseman, 68 N.C. App.
252, 255, 314 S.E.2d 566, 567-68 (1984). Plaintiff's sole
assignment of error is insufficient because he neglects to direct
"the attention of [this] [C]ourt to the particular error about
which the question is made, with clear and specific record or
transcript references." N.C.R. App. P. 10(c)(1) (emphasis added).
Plaintiff also failed to cite to his assignment of error in his
brief in violation of N.C.R. App. P. 28(b)(6). Furthermore,
plaintiff did not include in his brief a statement of the grounds
for appellate review as required by N.C.R. App. P. 28(b)(4).
Nonetheless, pursuant to N.C.R. App. P. 2, this Court elects in its
discretion to review the merits of plaintiff's argument.
Plaintiff's only contention on appeal is that the trial court
committed prejudicial error in granting Black's and Strickland's
motions in limine which resulted in the exclusion of Dr. Mayo's
deposition. Plaintiff sought to introduce the testimony of Dr.Mayo in order to establish that the "bomb" incident was the
proximate cause of plaintiff's severe emotional distress, and
plaintiff asserts that as a result of the trial court's decision,
he was unable to establish a prima facie case of negligent
infliction of emotional distress.
In order to state a claim for negligent infliction of
emotional distress, a plaintiff must allege that "(1) the defendant
negligently engaged in conduct, (2) it was reasonably foreseeable
that such conduct would cause the plaintiff severe emotional
distress (often referred to as 'mental anguish'), and (3) the
conduct did in fact cause the plaintiff severe emotional distress."
Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97
(1990). "Proof of 'severe emotional distress' does not necessarily
require medical evidence or testimony. However, appellate
decisions have consistently upheld dismissal of [negligent
infliction of emotional distress] and similar claims, where a
plaintiff fails to produce any real evidence of severe emotional
distress." Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445,
450, 579 S.E.2d 505, 508 (2003) (internal citations omitted).
As to the admissibility of expert testimony, N.C. Gen. Stat.
§ 8C-1, Rule 702(a) (2003) provides that
[i]f scientific, technical or other
specialized knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training, or education, may testify thereto in
the form of an opinion.
Recently, our Supreme Court stated that regarding expert testimony:
It is well-established that trial courts must
decide preliminary questions concerning the
qualifications of experts to testify or the
admissibility of expert testimony. N.C.G.S. §
8C-1, Rule 104(a) (2003). When making such
determinations, trial courts are not bound by
the rules of evidence. Id. In this capacity,
trial courts are afforded "wide latitude of
discretion when making a determination about
the admissibility of expert testimony." State
v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370,
376 (1984).
Howerton v. Arai Helmet, Ltd., ___ N.C. ___, ___, ___ S.E.2d ___,
___ (2004). Thus, our appellate standard of review is whether the
trial court's decision as to the admissibility of an expert's
opinion or on the qualifications of an expert amounted to an abuse
of discretion. Id.
Our Supreme Court, citing State v. Goode, 341 N.C. 513, 461
S.E.2d 631 (1995), recently directed the use of a three-step
inquiry for ruling on the admissibility of expert testimony under
Rule 702:
(1) Is the expert's proffered method of proof
sufficiently reliable as an area for expert
testimony? (2) Is the witness testifying at
trial qualified as an expert in that area of
testimony? (3) Is the expert's testimony
relevant?
Id. at ___, ___ S.E.2d at ___ (internal citations omitted). The
issue before this Court concerns solely the third step of the
inquiry. Defendants do not dispute that Dr. Mayo was a qualified
expert in the field of psychiatry, nor do they question her
methodology. Thus, the issue is whether Dr. Mayo's testimony was
rightly excluded on the basis of its relevancy. See Id. at ___.
___ S.E.2d at ___. The North Carolina Rules of Evidence define relevant evidence
as
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.G.S. § 8C-1, Rule 401. "Further, in judging relevancy, it
should be noted that expert testimony is properly admissible when
such testimony can assist the jury to draw certain inferences from
facts because the expert is better qualified than the jury to draw
such inferences." Goode, 341 N.C. at 529, 461 S.E.2d at 641.
Although an expert witness, depending on the general state of
the evidence, may use terms such as "could" or "might" when the
expert lacks complete certainty, "an opinion based upon inadequate
facts and data should be excluded." Kenneth S. Broun, Brandis and
Broun on North Carolina Evidence, § 188 (6th ed. 2004); see Johnson
v. Piggly Wiggly of Pinetops, Inc., 156 N.C. App. 42, 49-50, 575
S.E.2d 797, 803, disc. review denied, 357 N.C. 251, 582 S.E.2d 271
(2003) (Expert testimony on the issue of causation based on mere
speculation or possibility is incompetent.). Typically, those
"[c]ases finding 'could' or 'might' expert testimony to be
sufficient often share a common theme - additional evidence which
tends to support the expert's testimony." Poole v. Copland, Inc.,
125 N.C. App. 235, 241, 481 S.E.2d 88, 92 (1997), reversed on other
grounds, 348 N.C. 260, 498 S.E.2d 602 (1998).
During Dr. Mayo's deposition, she indicated that she
tentatively diagnosed plaintiff as suffering from a psychoticdisorder, which served as a general diagnosis based on apparent
paranoia. She noted that plaintiff, throughout the course of his
treatment, repeatedly focused on an incident where a "'cherry bomb'
[had been] thrown at him while he was at work" and referred as well
to other work-related stresses. Dr. Mayo stated that she was never
able to make a more specific diagnosis during her treatment of
plaintiff because she "could not verify what happened on his job."
Dr. Mayo relied entirely on plaintiff's representations to her
regarding past psychological or emotional problems and she made no
independent investigation. Furthermore, she was unable to recall
at the time of her deposition what plaintiff had told her as to the
"cherry bomb" incident. Dr. Mayo was unaware as to whether
plaintiff had accounted as to when the incident had occurred, who
had been involved, or whether plaintiff had mentioned the "bomb"
was not real.
Furthermore, during her deposition, Dr. Mayo was unable to
render an opinion as to the cause of plaintiff's emotional
distress:
Q: So is it fair to say at this point in time
that you do not have an opinion as to whether
or not the cherry bomb incident in and of
itself more likely than not was the cause of
[plaintiff's] psychotic disorder?
A: I cannot say whether it was the cause or
not.
Dr. Mayo was asked later during the deposition:
Q: [Y]ou were asked to set aside information
that you've been given today. I'm going to
ask you not to do that. I'm going to ask you
to deal with the facts as you know them to be.
And [plaintiff] is suing these three men notfor anything but the cherry bomb joke.
And with you now knowing that there are
other things out there that you've never been
made aware of before, my question to you is do
you have an opinion within a reasonable degree
of medical certainty as to whether or not the
cherry bomb incident by itself caused the
psychotic disorder that you treated
[plaintiff] for?
. . .
A: I would not be able to make an opinion
because I would need more information.
After reviewing Dr. Mayo's deposition, we conclude that she
was unable to form an opinion as to a causal relationship between
the "cherry bomb" incident and plaintiff's alleged emotional
distress. She admitted that she was unable to opine as to the
cause of plaintiff's psychotic disorder. As such, her opinion
would not serve to demonstrate whether plaintiff did or did not
suffer severe emotional distress as a result of defendants'
actions, and as such her testimony would not have assisted the jury
in drawing a conclusion. We hold that the trial court did not err
in excluding Dr. Mayo's deposition.
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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