Appeal by plaintiffs from judgment entered 6 October 2003 and
cross-appeal by defendants from judgment entered 31 October 2003 by
by Judge Lindsay R. Davis, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 12 May 2005.
Petition for rehearing
granted on 31 October 2005.
Elliot Pishko Morgan, P.A., by David C. Pishko, for
Wilson & Iseman, L.L.P., by Tamura D. Coffey, Linda L. Helms,
Kevin B. Cartledge and Maria C. Papoulias, for
Glenn, Mills & Fisher, P.A., by William S. Mills for the North
Carolina Academy of Trial Lawyers; and Roberts & Stevens,
P.A., by Peter Buckley McGuire for the North Carolina
Association of Defense Attorneys, amicus curiae.
This matter was previously heard by this Court on 12 May 2005,
and a decision was rendered in Miller v. Forsyth Mem'l Hosp., Inc.
173 N.C. App. 385, 618 S.E.2d 838 (2005). Pursuant to Rule 31 of
the North Carolina Rules of Appellate Procedure, this Court granted
plaintiffs Cynthia and Guy Miller's petition for rehearing. ThisCourt granted the petition to rehear on the limited issue of
whether the trial court erred in denying plaintiffs' motion to
compel discovery and granting defendants' motion for protective
The facts in this matter are set forth in this Court's
previous opinion, Miller
, 173 N.C. App. 385, 618 S.E.2d 838.
Plaintiffs contend this Court failed to address or misapprehended
an issue raised on appeal. Specifically, plaintiffs contend we
failed to address whether the trial court erred in denying
plaintiffs' motion to compel discovery and granting defendants'
motion for protective order on the grounds that the information and
documents plaintiffs sought were discoverable and not protected by
the peer review privilege or the medical review committee
privilege. We adopt our previous opinion in this matter in full
and supplement it with the resolution of this issue.
It is well established that orders regarding discovery
matters are within the discretion of the trial court and will not
be upset on appeal absent a showing of abuse of that discretion.
Windman v. Britthaven, Inc
., 173 N.C. App. 630, 632, 619 S.E.2d
522, ___ (2005) (citations and internal quotation marks omitted).
In addition, the appellant must show not only that the trial court
erred, but that prejudice resulted from that error. See Bowers v.
, 122 N.C. App. 421, 427, 470 S.E.2d 346, 350 (1996). This
Court will not presume prejudice.
The record in this case contains a Privilege Log, which
briefly describes each of the documents defendants contend weresubject to the peer review privilege. The record also contains
several affidavits briefly describing the contents of some of these
documents. However, nothing in the log or the affidavits indicate
what, if any, information these documents contained that would have
been beneficial to plaintiffs' case to the extent necessary to show
plaintiffs' were prejudiced as a result of the trial court's denial
of their motion to compel.
This situation is analogous to that occurring at trial where
a party must proffer evidence or testimony that has been deemed
inadmissible in order to preserve an issue for appeal. Our Supreme
Court has stated that for a party to preserve the issue of the
exclusion of evidence or testimony for appellate review, its
importance must be made to appear in the record and a specific
offer of proof is required, unless the significance of the evidence
is discernable from the record. In re Dennis v. Duke Power Co.
341 N.C. 91, 102, 459 S.E.2d 707, 714 (1995). When a party objects
to the exclusion of evidence or testimony, but does not make an
offer of proof for the record of what that testimony or evidence
would be, we cannot assess the importance of the evidence sought to
be admitted or elicited. Id
Therefore, failure to make an offer
of proof prevents a determination of prejudice. Id
The significance of the documents in question is not obvious
from the record in this matter. Plaintiffs assert that in the face
of the trial court's ruling denying their motion to compel
discovery there was no way for them to preserve this evidence for
appellate review. Plaintiffs' are incorrect for two reasons. First, as noted in our original opinion, plaintiffs made no attempt
at the trial of this case to introduce any evidence regarding
defendants' peer review process or the internal investigation that
occurred following the injection. Miller
, 173 N.C. App. at 388,
618 S.E.2d at ___. Second, plaintiffs could have requested that
the trial court review the documents in camera
and then seal the
documents for possible appellate review. In camera
he trial court to direct that the requested information be
produced under seal for determination by it of relevancy or
potential for leading to discovery of admissible evidence. Shaw
, 125 N.C. App. 522, 529, 481 S.E.2d 365, 369 (1997).
Any material which the court determines not to be discoverable may
then be preserved under seal for review on appeal should further
consideration by this Court become necessary. Id
. See also State
328 N.C. 1, 18, 399 S.E.2d 293, 301 (1991); Maxwell v.
Michael P. Doyle, Inc.
, 164 N.C. App. 319, 329, 595 S.E.2d 759, 765
(2004) (appellate court able to review records defendant sought
through discovery after trial court held in camera
review and then
sealed the records for appellate review); In re Greene
, 152 N.C.
App. 410, 420, 568 S.E.2d 634, 640 (2002).
Without the relevant documents, we cannot determine that
plaintiffs have been prejudiced as a result of the trial court's
ruling. Plaintiffs are asking this Court to speculate about the
information the documents might have contained simply because
defendants resisted discovery; in essence they ask us to presume
prejudice. This Court will not order a new trial based uponconjecture and speculation. It was plaintiffs' duty to properly
preserve this question for appellate review. Because plaintiffs'
failed to demonstrate prejudice, it is unnecessary for this Court
to address the merits of the peer review privilege issue.
NO ERROR AS TO TRIAL.
AS PER PREVIOUS OPINION, AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART AS TO COSTS ORDERED.
Judge TIMMONS-GOODSON concurs prior to October 31, 2005.
Judge MCCULLOUGH concurs.
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