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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN RE PEDESTRIAN WALKWAY FAILURE
BRYAN HEATH BAKER, and wife, SUSAN D. BAKER; TAMMY L. HEPLER,
Individually and as ADMINISTRATRIX of the ESTATE of JOHN A.
HEPLER III; STEVEN P. VANDERHOOF; MARGARET F. LINDSEY; and WALTER
SUDDERTH, Plaintiffs, v. SPEEDWAY MOTORSPORTS, INC. and CHARLOTTE
MOTOR SPEEDWAY, INC. doing business as LOWE'S MOTOR SPEEDWAY, and
TINDALL CORPORATION, formerly TINDALL CONCRETE PRODUCTS, INC.,
Filed: 20 September 2005
1. Appeal and Error_appealability--interlocutory orders_discovery sanctions_order to
Plaintiff's appeals from an interlocutory order imposing sanctions for discovery violations
and compelling discovery were heard pursuant to Appellate Rule 2 given the need for finality and
certainty in this complex litigation.
2. Discovery_sanctions_failure to meet deadline
There was no abuse of discretion in the exclusion of an expert witness's testimony for
failure to meet a discovery deadline where the record was replete with admonitions from the
judge that discovery rules and orders should be complied with strictly and completely.
3. Discovery_failure to meet deadline_not raised immediately-not waived
Defendants did not waive objection to plaintiff's failure to meet a discovery deadline
where they did not schedule a deposition for the excluded expert or otherwise proceed with
discovery concerning his testimony, even though they waited two years to bring a motion to
4. Appeal and Error_preservation of issues--equitable estoppel--not raised at
An equitable estoppel argument not raised at trial was not considered on appeal.
5. Discovery_request for admission_failure to admit or deny_failure to
There was no abuse of discretion in deeming requests for admissions admitted where
plaintiff declined to admit or deny based on lack of expertise, and continued to assert that she
could not admit or deny even though supplementation was required. The judge could
permissibly find that plaintiff either did not make reasonable inquiry of her experts or, having
made such inquiry, was not in a position to contradict the information and should have made the
6. Discovery_sanctions_delay in seeking records_subsequent destruction of records
The trial court did not abuse its discretion by not allowing plaintiff to present evidence of
her back injury where she did not produce medical records of an earlier back injury. Although
since destroyed, the records were available when originally requested, and their absence
potentially prejudiced defendants' ability to dispute plaintiff's claim.
7. Discovery_entry of written order_reflection of earlier oral order
A discovery order which on its face seemed to require action prior to the date it was
entered was upheld because it concerned discovery instructions given by the judge clearly and
unambiguously at an earlier hearing, and because it required production of documents and
information which plaintiff should have produced under previous orders.
Appeal by plaintiff Tammy L. Hepler, individually and as the
administratrix of the estate of John A. Hepler, III, from an order
entered 23 April 2004 by Judge W. Erwin Spainhour in Mecklenburg
County Superior Court. Heard in the Court of Appeals 19 May 2005.
The Blount Law Firm, P.A., by Marvin K. Blount, Jr., Darren M.
Dawson, Rebecca Cameron Blount, and Harry H. Albritton, Jr.;
and Wyrick Robbins Yates & Ponton L.L.P., by K. Edward Greene
and Kathleen A. Naggs, for Tammy L. Hepler plaintiff
Parker Poe Adams & Bernstein, by David N. Allen, John E.
Grupp, and Lori R. Keeton, for Speedway Motorsports, Inc., and
Charlotte Motor Speedway, Inc., defendant appellants.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James
T. Williams, Jr., Reid L. Phillips, and John W. Ormand, III,
for Tindall Corporation defendant appellant.
Plaintiff Tammy L. Hepler, individually and as the
administratix of the estate of her husband, John A. Hepler, III,
appeals from an order sanctioning her for discovery violations and
requiring her to provide information and produce documents. We
On 20 May 2000, a pedestrian walkway collapsed at the Lowe's
Motor Speedway (hereinafter the Speedway)
(See footnote 1)
in Concord, North
Carolina, causing injuries to several people who were using the
walkway to leave a NASCAR event. Defendant Tindall Corporation
(hereinafter Tindall) had been involved in constructing the
As a result of the walkway collapse, approximately 100 people
filed actions against, inter alia
, the Speedway and Tindall
(hereinafter defendants). The present plaintiff, Tammy L. Hepler
(hereinafter Tammy Hepler or Mrs. Hepler) filed an action for
her own injuries and also filed an action as the administratrix of
the estate of her late husband, John A. Hepler, III, (hereinafter
Drew Hepler or Mr. Hepler). The complaint alleged that Mr.
Hepler's fall from the walkway caused injury to his right ankle and
, which required surgery, and that he died as a result of
multiple drug toxicity from the medications prescribed and taken
for the injuries sustained in the walkway collapse. The complaint
further alleged that Mrs. Hepler suffered injuries to her neck,
shoulders, and lower back as a result of the injury. It was also
alleged that both of the Heplers experienced lost wages and
The Honorable Chief Justice of the North Carolina Supreme
Court designated each case related to the walkway collapse anexceptional case pursuant to Rule 2.1 of the General Rules of
Practice for the Superior and District Courts, and each case was
assigned to be heard by Superior Court Judge W. Erwin Spainhour.
As such, the Hepler suits were designated exceptional and
assigned to Judge Spainhour.
In early 2003, the first pedestrian walkway case was tried.
In that case
, the jury found that the Speedway and Tindall were
liable. Judge Spainhour ruled that the issue of liability had been
established by collateral estoppel with respect to the remaining
plaintiffs. Thus, the Hepler lawsuits required only a trial to
On 23 March 2004, defendant Tindall filed a motion for
sanctions and to compel the production of certain items
(hereinafter Tindall's motion). A hearing on this motion was
held on 1 April 2004. During this hearing, Judge Spainhour orally
announced his rulings. These rulings were reduced to writing, and
a written order was signed by Judge Spainhour on 19 April 2004 and
filed on 22 April 2004 (hereinafter the 22 April 2004 order).
Tindall's motion addressed alleged violations of the North
Carolina Rules of Civil Procedure and Case Management Orders
(CMOs), which Judge Spainhour had entered to govern the voluminous
discovery involved in all of the pedestrian walkway litigation.
CMO No. 1, entered 20 September 2001, provided, inter alia
[t]he identification of all expert witnesses shall
include the subject matter on which the expert is
expected to testify, the substance of the facts and
opinions to which the expert is expected to testify, and
a summary of the grounds for each such opinion asprovided in Rule 26 of the North Carolina Rules of Civil
On or before March 15, 2002, all parties shall
identify all expert witnesses who shall be called to
testify at the trial of the particular Plaintiff(s)'
case. . . .
Any expert witness not identified in accordance with
the terms and conditions [of] this [CMO] shall not be
permitted to testify at trial absent a showing of good
CMO No. 2, entered 13 March 2002, slightly revised the
identification requirements and provided that [t]he identification
of all expert witnesses on or before March 15, 2002 shall be
limited to the name, business affiliation and address of each
expert. On or before March 29, 2002, all parties shall provide the
remaining identification of all expert witnesses as defined in
. . . [CMO] No. 1. CMO No. 5, entered 30 October 2002, required
all plaintiffs in the pedestrian walkway litigation to provide
supplemental responses to interrogatories and requests for
production of documents and to certify that a complete and updated
set of, inter alia,
medical records had been provided to
defendants. CMO No. 6, entered 16 May 2003, again required all
plaintiffs to provide defense counsel with updated medical
reports, medical bills, [and] expert witness reports and mandated
that plaintiffs notify defense counsel if such information had
already been provided.
Specifically, Tindall's motion and Judge Spainhour's 22 April
2004 order addressed the following topics:
i. Requests for Admissions Concerning an
Autopsy Performed on Mr. Hepler
An autopsy performed on Mr. Hepler revealed the presence of
certain drugs in his system. Defense attorneys sought to determine
whether these findings would be contested and whether the drugs
found in his system had been prescribed for Mr. Hepler in the
recent past. Therefore, the following requests for admissions were
served upon Mrs. Hepler:
2. The results shown in the toxicology section of
the Autopsy Report . . . accurately report the levels of
acetaminophen, alprazolam, hydrocodone, norpropoxyphene,
and propoxyphene which existed in Drew Hepler's blood and
liver at the time of [his] death.
* * * *
3. The propoxyphene and norpropoxyphene shown by
the Autopsy Report as found in Drew Hepler's blood and
liver did not result from any medication prescribed for
[him] during the six-month period prior to his death.
* * * *
4. No physician or other medical care provider
prescribed any medicines for Drew Hepler containing
propoxyphene . . . during the six month period prior to
* * * *
5. No physician or other medical care provider
prescribed Darvocet or Darvon for Drew Hepler during the
six-month period prior to his death.
(hereinafter the RFAs or RFAs Nos. 2-5"). On 13 March 2002,
Mrs. Hepler responded that she could not admit or deny any of the
foregoing items because she was not educated nor qualified to
interpret the findings of [the medical examiner] and lack[ed]
knowledge concerning medicine and the effect of medications
prescribed to and taken by Drew Hepler during the six-month period
prior to his death. Further, she stated that she had madereasonable inquiry and the information known or readily obtainable
to her [was] insufficient to enable her to admit or deny th[e]
[RFAs] for the reason that she lack[ed] knowledge concerning
medicine and the formulation, preparation, and interpretation of
autopsy reports. . . . On 11 December 2003, well after the
parties were required to be aware of the substance of their
experts' opinions pursuant to CMOs Nos. 1 and 2, Mrs. Hepler's
attorney indicated that these responses remained full and complete
In its motion, Tindall sought sanctions for the failure of
Mrs. Hepler to consult with her experts before responding to RFAs
Nos. 2-5. Specifically, Tindall requested that the Court strike
[the] non-responses . . . and . . . deem [RFAs Nos. 2-5] to be
admitted. In his 22 April 2004 order, Judge Spainhour determined
Tammy Hepler, by her response to Requests for Admissions
Nos. 2, 3, 4, and 5, either has no expert witness
qualified to testify about such matters or else, if she
does have such experts, she failed to make reasonable
inquiry of them. In either event, Plaintiff through her
responses to those requests has prejudiced Defendants in
their defense of Plaintiff's claims . . . .
As a sanction, Mrs. Hepler was prohibited from contradicting the
subject matter in RFAs Nos. 2-5 at trial.
ii. Mrs. Hepler's Late Identification of Dr.
Joseph Bederka as an Expert Witness
On 29 March 2002, Mrs. Hepler disclosed for the first time
that she might call Dr. Joseph Bederka as an expert in the field of
toxicology to provide testimony as to the cause of Mr. Hepler'sdeath. Pursuant to CMOs Nos. 1 and 2, all parties were required to
disclose the name, business affiliation, and address of all of
their expert witnesses by 15 March 2002 and were required to
disclose the substance of the facts and opinions to which the
experts were expected to testify and a summary of the grounds for
the experts' opinions by 29 March 2002. Judge Spainhour had
consistently enforced the deadlines in CMOs Nos. 1 and 2, and had
previously excluded a defense witness for the failure to meet the
15 March 2002 deadline.
Tindall sought to have Dr. Bederka's testimony excluded based
upon his late identification. At the 1 April 2004 hearing on this
issue, Mrs. Hepler's attorney asserted that the failure to disclose
Dr. Bederka's name, business affiliation, and address on 15 March
2002 was the result of a clerical error and was inadvertent.
Judge Spainhour indicated that he did not attribute any ill will to
the nondisclosure, but noted that he felt obligated to be as fair
as [he could] and to treat everybody the same. In his 22 April
2004 order, Judge Spainhour ruled that
Tammy Hepler failed to timely identify Dr. Joseph Bederka
in accordance with the deadline established by the Case
Management Orders for the identification of all expert
witnesses and, as with other expert witnesses identified
late by other parties, Dr. Bederka therefore should not,
and he will not, be permitted to testify.
Further, Judge Spainhour ruled that no other witnesses would be
permitted to refer to any opinions held by Dr. Bederka.
iii. Incomplete Discovery Concerning Mrs.
Hepler's Previous Back Injuries
Defense interrogatories served in August of 2001 requested
that Mrs. Hepler identify the names and addresses of all health
care providers who examined or treated her, as well as any
accidents, injuries, medical conditions, or illnesses she
experienced, during the ten years preceding the pedestrian walkway
collapse. A corresponding request for production of documents
sought [a]ll medical records . . . relating to every illness or
injury identified . . . in [the] answers to [i]nterrogatories
. . . .
Mrs. Hepler's answers indicated that she suffered a herniated
disc in 1994, for which she received treatment from Dr. F. Gary
Gieseke in Florida, and that she underwent back surgery in 1995.
In a 21 November 2003 letter, defense counsel requested additional
information about Dr. Gieseke's examination and treatment of Mrs.
Hepler. Specifically, the letter noted that the defense had
received hospital records pertaining to the back surgery, but
lacked records of other treatment provided by Dr. Gieseke. Prompt
production of such additional records was requested. Mrs. Hepler's
attorney responded on 11 December 2003 by indicating that Mrs.
Hepler had requested the information and documents pertaining to
her treatment by Dr. Gieseke and that she would supplement the
discovery requests when the information was provided. Dr.
Gieseke's office had a policy of keeping records for only seven
years; therefore, records relating to Dr. Gieseke's treatment of
Mrs. Hepler in 1995 were no longer available when Mrs. Heplerrequested them. An MRI taken of Mrs. Hepler's back was among the
documents that could no longer be produced.
Mrs. Hepler also failed to produce chiropractic records
relating to treatment of a pinched nerve in her lower spine during
the 1990's, and failed to produce records relating to treatment for
back pain in 1994, including records arising from her admission to
a hospital on 5 July 1994.
Tindall sought to have Mrs. Hepler precluded from introducing
any evidence tending to show that the back injuries referenced in
her complaint were the result of the pedestrian walkway failure.
Judge Spainhour found that
[t]he medical records that are missing, destroyed, or
have not been produced from Dr. Gieseke and other
providers who treated [Mrs. Hepler] for her history of
back problems, particularly the MRI, were relevant to the
defense of [her] claims relating to her back[,] and such
records should have been produced when first requested by
Defendants in 2001. [Her] failure to obtain and produce
such records requires that an appropriate remedy or
sanction be entered.
After considering other available remedies and sanctions, Judge
Spainhour ruled that Mrs. Hepler would be precluded from presenting
any testimony or offering any exhibits or documents that state,
imply or infer that any back injury or problem . . . [was] caused
or developed as a result of the pedestrian walkway failure.
iv. The Motion to Compel
Tindall also sought a court order compelling production of
additional medical records concerning the Heplers. In particular,
Tindall sought previous mental health records, which were alleged
to be important in defending Mrs. Hepler's claim that she sufferedemotional distress as a result of the pedestrian walkway collapse.
At the 1 April 2004 hearing, Judge Spainhour orally instructed Mrs.
Hepler's attorney to produce these records [w]ithin 20 days from
the date of the hearing. In the order entered 22 April 2004, Judge
Spainhour ruled that
Tammy Hepler has failed to identify all of her medical
care providers and has failed to produce all of the
medical records for herself . . . which she was required
to produce by the Rules of Civil Procedure and the Case
Management Orders. [Her] failures to do so have
prejudiced Defendants in their ability to prepare the
defense of her claims . . . , which are scheduled for
trial beginning June 21, 2004.
The written order repeated Judge Spainhour's previous verbal order
that all such records should be produced and all identification
should be made by [Mrs. Hepler] within 20 days of the date of the
hearing on this matter.
From the order imposing sanctions and compelling production of
medical records, Mrs. Hepler now appeals.
THE INTERLOCUTORY NATURE OF MRS. HEPLER'S APPEAL
 The order from which Mrs. Hepler appeals is interlocutory.
See Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (noting
that an interlocutory order "does not dispose of the case, but
leaves it for further action by the trial court in order to settle
and determine the entire controversy"), reh'g denied, 232 N.C. 744,
59 S.E.2d 429-30 (1950). As a general rule, appeals from
interlocutory orders will be dismissed by this Court unless thetrial court has entered a certification pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 54(b), or the appeal affects a substantial right. See
N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003) (making an interlocutory
order immediately appealable when the trial court enters a final
judgment as to one or more but fewer than all of the claims or
parties and the trial court certifies in the judgment that there is
no just reason to delay the appeal); N.C. Gen. Stat. § 1-277(a)
(2003) (permitting an appeal from an interlocutory order which
affects a substantial right claimed in any action or proceeding).
Judge Spainhour's 22 April 2004 order performs two functions:
it imposes sanctions for discovery violations, and it also requires
Mrs. Hepler to comply with previous oral rulings and written orders
governing discovery. Generally, discovery orders, including orders
compelling production, are not immediately appealable. Sharpe v.
Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999). However,
when [a discovery] order is enforced by sanctions pursuant
to . . . Rule 37(b), the order is appealable, Walker v. Liberty
Mut. Ins. Co., 84 N.C. App. 552, 554, 353 S.E.2d 425, 426 (1987),
and the appeal tests the validity of both the discovery order and
the sanctions imposed, Benfield v. Benfield, 89 N.C. App. 415, 420,
366 S.E.2d 500, 503 (1988).
In the instant case, Mrs. Hepler appeals from the sanctions
imposed pursuant to discovery orders without contesting the
validity of the underlying discovery orders themselves. Therefore,
it is questionable whether she has any right to immediately appeal
from the portion of the interlocutory order imposing sanctions. Further, she undoubtedly has no immediate right of appeal from the
portion of the interlocutory order compelling production.
Rule 2 of the North Carolina Rules of Appellate Procedure
permits this Court to suspend or vary the requirements of the Rules
"[t]o prevent manifest injustice to a party, or to expedite
decision in the public interest." Rule 21(a)(1) of the North
Carolina Rules of Appellate Procedure provides that [t]he writ of
certiorari may be issued in appropriate circumstances by [an]
appellate court to permit review . . . when no right of appeal from
an interlocutory order exists . . . ." This Court has discretion
under Rule 2 to treat [a] purported appeal as a petition for writ
of certiorari and address the merits [of the arguments presented to
this Court]. Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d
314, 316 (1988), disc. review denied, 323 N.C. 704, 377 S.E.2d 225
Given the number of parties, and trials, involved in the
pedestrian walkway cases, the need for finality and certainty in
this complex and exceptional litigation, and the likelihood that
dismissing the present appeal would only delay this Court's
ultimate review of the subject matter now at issue, we are
persuaded that a disposition on the merits in the instant case
would expedite decision in the public interest. See N.C. R. App.
P. 2 (2005). Accordingly, we exercise our authority under Rule 2
to consider Mrs. Hepler's appeal as a petition for certiorari, and
we grant certiorari to review Judge Spainhour's 22 April 2004
In her first set of arguments, Mrs. Hepler contends that Judge
Spainhour erred by excluding the testimony of her expert
toxicologist, Dr. Bederka, and by precluding her from contradicting
the subject matter contained in the requests for admissions
concerning the drugs found in Mr. Hepler's body during an autopsy.
 We first address Mrs. Hepler's arguments concerning the
exclusion of Dr. Bederka's testimony. These arguments lack merit.
If a party . . . fails to obey an order to provide or permit
discovery . . . the court in which the action is pending may make
such orders in regard to the failure as are just, and among others
. . . [a]n order . . . prohibiting [the disobedient party] from
introducing designated matters in evidence . . . . N.C. Gen.
Stat. § 1A-1, Rule 37(b)(2)(b) (2003). The imposition of sanctions
under Rule 37 is in the sound discretion of the trial judge and
cannot be overturned absent a showing of abuse of that discretion.
Bumgarner v. Reneau, 332 N.C. 624, 631, 422 S.E.2d 686, 690 (1992).
An abuse of discretion may arise if there is no record evidence
which indicates that defendant acted improperly, or if the law will
not support the conclusion that a discovery violation has occurred.
See Cloer v. Smith, 132 N.C. App. 569, 573, 512 S.E.2d 779, 782
(1999) (discussing a trial court's findings with respect to
discovery violations and holding that the deposition transcript
supports the trial court's findings that counsel for [one of the
parties] refused to allow [the party] to answer some questions,and, in other instances, 'told [the party] what to say'); King v.
Koucouliotes, 108 N.C. App. 751, 754, 425 S.E.2d 462, 464
(conducting a legal analysis to determine whether . . . trial
witnesses and trial exhibits are discoverable), disc. review
improvidently allowed, 335 N.C. 164, 436 S.E.2d 132 (1993).
Further, [t]he choice of sanctions under Rule 37 is within the
trial court's discretion and is reviewable only for an abuse of
discretion. Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d
236, 239 (1992), aff'd, 334 N.C. 303, 432 S.E.2d 339 (1993).
Mrs. Hepler contends that Judge Spainhour was compelled to
find that she had shown good cause for allowing Dr. Bederka to
testify despite his late identification as an expert witness. As
already indicated, CMOs Nos. 1 and 2 required a brief
identification of all experts to occur on 15 March 2002 and more
detailed information on each identified expert to be provided on 29
March 2002. CMO No. 1 further provided that [a]ny expert witness
not identified in accordance with the[se] terms and conditions
. . . shall not be permitted to testify at trial absent a showing
of good cause. Mrs. Hepler admits that she did not provide any
information concerning Dr. Bederka on the 15 March deadline.
However, she insists that the failure was due to inadvertence on
her attorney's part, that she ultimately identified Dr. Bederka on
the 29 March deadline, and that his eventual disclosure, although
untimely, still occurred more than two years prior to the trial of
the case in which Dr. Bederka was supposed to testify. It follows,Mrs. Hepler insists, that there was necessarily good cause to allow
Dr. Bederka to testify notwithstanding her technical failure to
abide by the CMOs.
However, the record is replete with information which reveals
the importance of the deadlines in each of the pedestrian walkway
cases and with admonitions by Judge Spainhour that the parties
should strictly and completely comply with rules and orders
governing discovery. On the facts of this case, we are unpersuaded
that Judge Spainhour was compelled to find that there was good
cause to permit Dr. Bederka to testify, and we discern no abuse of
discretion in the decision to exclude Dr. Bederka's testimony.
 Mrs. Hepler further argues that, even if she did not make
a showing of good cause, defendants waived their right to object to
the late designation of Dr. Bederka. Waiver 'is always based upon
an express or implied agreement. There must always be an intention
to relinquish a right, advantage, or benefit. The intention to
waive may be expressed or implied from acts or conduct that
naturally lead the other party to believe that the right has been
intentionally given up.' Patterson v. Patterson, 137 N.C. App.
653, 667, 529 S.E.2d 484, 492 (citation omitted), disc. review
denied, 352 N.C. 591, 544 S.E.2d 783-84 (2000).
Mrs. Hepler notes that Tindall waited approximately two years
after the late identification before bringing its motion to exclude
Dr. Bederka's testimony. However, it also appears from the record
that defendants did not schedule a deposition for Dr. Bederka anddid not otherwise proceed with discovery concerning the testimony
he would offer if called as a witness. Thus, assuming arguendo
that a waiver analysis is appropriate, we are unpersuaded that the
facts of the instant case compelled a finding of waiver.
 Mrs. Hepler also contends that Judge Spainhour was
compelled to find that defendants were equitably estopped from
seeking sanctions for the late identification of Dr. Bederka. Our
review of the record reveals that Mrs. Hepler did not make an
equitable estoppel argument before Judge Spainhour. Therefore, she
has waived appellate review of this issue. See N.C. R. App. P.
10(b)(1) (2005) (In order to preserve a question for appellate
review, a party must have presented to the trial court a timely
request, objection or motion, stating the specific grounds for the
ruling the party desired the court to make . . . .); Westminster
Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298,
309, 554 S.E.2d 634, 641 (2001) ([I]ssues and theories of a case
not raised below will not be considered on appeal[.]).
 We next address Mrs. Hepler's argument that Judge
Spainhour erred by deeming defense RFAs Nos. 2-5 admitted and
precluding her from presenting contradictory evidence. This
argument lacks merit.
N.C. Gen. Stat. § 1A-1, Rule 36 (2003) provides as follows:
(a) Request for admission. -- A party may
serve upon any other party a written request
for the admission . . . of the truth of anymatters within the scope of [N.C. Gen. Stat. §
1A-1] Rule 26(b) set forth in the request that
relate to statements or opinions of fact or of
the application of law to fact . . . .
The matter is admitted unless, within 30
days after service of the request, or within
such shorter or longer time as the court may
allow, the party to whom the request is
directed serves upon the party requesting the
admission a written answer or objection
addressed to the matter . . . . The answer
shall specifically deny the matter or set
forth in detail the reasons why the answering
party cannot truthfully admit or deny the
matter. A denial shall fairly meet the
substance of the requested admission, and when
good faith requires that a party qualify his
answer or deny only a part of the matter of
which an admission is requested, he shall
specify so much of it as is true and qualify
or deny the remainder. An answering party may
not give lack of information or knowledge as a
reason for failure to admit or deny unless he
states that he has made reasonable inquiry and
that the information known or readily
obtainable by him is insufficient to enable
him to admit or deny.
. . . The party who has requested the
admissions may move to determine the
sufficiency of the answers or
objections. . . . If the court determines
that an answer does not comply with the
requirements of this rule, it may order either
that the matter is admitted or that an amended
answer be served.
(b) Effect of admission. -- Any matter
admitted under this rule is conclusively
established unless the court on motion permits
withdrawal or amendment of the admission.
In the instant case, Mrs. Hepler declined to admit or deny the
subject matter of RFAs Nos. 2-5 on the ground that she lacked the
necessary expertise. Furthermore, although supplementation ofthese responses was required, she continued to assert that she
could not admit or deny the subject matter of the RFAs long after
she was required to report the subject matter of all of her
experts' opinions. Therefore, Judge Spainhour could permissibly
find that Mrs. Hepler either did not make reasonable inquiry of her
experts or that, if she had made such inquiry, she was not in a
position to contradict the information contained in the RFAs and
should have admitted them. Thus, Judge Spainhour did not err by
concluding that Mrs. Hepler had not complied with the dictates of
Further, Rule 36 provides that a trial court may order that
a matter be deemed admitted upon determining that a response to a
request for admission is noncompliant; therefore, trial courts are
vested with the discretion to impose this sanction. See Whitley v.
Coltrane, 65 N.C. App. 679, 681, 309 S.E.2d 712, 715 (1983)
(holding that use of the word may in subsection (b) of Rule 36
indicates that the ruling . . . [is] discretionary with the trial
court). Therefore, this Court's review of a trial court's
decision to deem a matter admitted under Rule 36(a) is limited to
determining whether the trial court abused its discretion. See id.
Given the facts of the instant case, we discern no abuse of
discretion in Judge Spainhour's decision to deem RFAs Nos. 2-5
The corresponding assignments of error are overruled.
 Mrs. Hepler next argues that Judge Spainhour erred by
precluding her from presenting evidence of her back injury at
trial. This contention lacks merit.
As a sanction for failing to comply with a discovery order, a
trial court may refus[e] to allow the disobedient party to support
or oppose designated claims or defenses, or prohibit him from
introducing designated matters in evidence. N.C. Gen. Stat. § 1A-
1, Rule 37(b)(2)(b). As already indicated, the decision to impose
sanctions pursuant to Rule 37, and the choice of sanction, are
consigned to the discretion of trial court. Ante, slip op. at 13,
173 N.C. App. 254, 264, 618 S.E.2d 796, 805 (2005).
In the instant case, Mrs. Hepler failed to produce records of
her office visits with Dr. Gieseke, an MRI taken of her back,
chiropractic records relating to treatment of a pinched nerve in
her lower spine during the 1990's, and documents, including
hospital records, relating to treatment for back pain in 1994.
Mrs. Hepler asserts that she committed no discovery violations
because some of these records had been destroyed by the time she
acted upon the realization that she had not produced them. In
support of this position, Mrs. Hepler correctly notes that if a
party is unable to answer discovery requests because of
circumstances beyond its control, an answer cannot be compelled.
Atlantic Veneer Corp. v. Robbins, 133 N.C. App. 594, 598, 516
S.E.2d 169, 172 (1999). However, the record reveals, and Judge
Spainhour found, that the now unavailable records would have beenavailable if Mrs. Hepler had produced them when they were
originally requested. Accordingly, Judge Spainhour did not err by
concluding that Mrs. Hepler had committed a discovery violation.
Furthermore, given that the absence of these documents potentially
prejudiced the defendants' ability to dispute Mrs. Hepler's claim
that the pedestrian walkway collapse caused her back injury, we are
unpersuaded that Judge Spainhour abused his discretion by
precluding Mrs. Hepler from presenting evidence of this claim at
The corresponding assignments of error are overruled.
 In her final argument, Mrs. Hepler challenges portions of
Judge Spainhour's 22 April 2002 order which require the production
of documents and compliance with the Rules of Civil Procedure and
the CMOs entered in the pedestrian walkway litigation. She
contends that the order should be reversed because it requires the
impossible. This contention lacks merit.
In Conclusion of Law No. 4, Judge Spainhour's written order
states that production of certain records must occur within 20
days of the date of the hearing on [Tindall's motion to compel].
Paragraph four of the decretal portion of the written order also
[b]y April 21, 2004, Plaintiff shall identify all medical
care providers and produce all the documents which
Plaintiff was obligated to identify and produce in
response to the Discovery Requests, the Rules of Civil
Procedure and the Case Management Orders of th[e] Court
. . . , and also by April 21, 2004, Plaintiff's counsel
shall certify to Defendant's counsel in writing that suchhas been done and that all health care providers have
been identified and all medical records previously
requested have been produced[.]
Mrs. Hepler insists that she could not comply with these directives
because they require action to be taken prior to the day on which
the order was entered (22 April 2004).
However, Conclusion of Law No. 4 in the written order
corresponds to a verbal instruction given by Judge Spainhour at the
1 April 2004 hearing on Tindall's motion to compel. Specifically,
at the hearing, Judge Spainhour clearly and unambiguously
instructed Mrs. Hepler's attorney to produce the documents
subsequently referenced in Conclusion of Law No. 4 [w]ithin 20
days. Furthermore, paragraph four of the decretal portion of the
written order merely requires production of documents and
information that Mrs. Hepler already should have produced pursuant
to previous orders entered by Judge Spainhour.
We are unpersuaded that the circumstances surrounding the
filing of Judge Spainhour's 22 April 2004 order in any way excused
Mrs. Hepler from complying with Judge Spainhour's prior rulings in
open court and previously entered CMOs. See State v. Smith, 320
N.C. 404, 415-16, 358 S.E.2d 329, 335 (1987) (affirming order where
the trial court passed on each part of [a corresponding]
motion . . . in open court as it was argued and later reduced its
ruling to writing, signed the order, and filed it with the clerk);
Danielson v. Cummings, 43 N.C. App. 546, 547-48, 259 S.E.2d 332,
333 (1979) (The law is not so impractical as to require written
notice of legal action to effectuate such action when the partiesalready have actual notice of the action taken from the proceedings
in open court.), aff'd, 300 N.C. 175, 265 S.E.2d 161 (1980).
The corresponding assignments of error are overruled.
For the foregoing reasons, the order appealed from is
Judges TIMMONS-GOODSON and TYSON concur.
As used in this opinion, the phrase the Speedway refers
to defendants Speedway Motorsports, Inc., and Charlotte Motor
Speedway, Inc., doing business as Lowe's Motor Speedway.
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