Appeal by plaintiff from judgment entered 9 July 2003 by Judge
L. Todd Burke in Guilford County Superior Court. Heard in the
Court of Appeals 14 September 2004.
Pinto Coates Kyre & Brown, PLLC, by Kenneth Kyre, Jr., for
plaintiff appellant.
Teague, Rotenstreich & Stanaland, LLP, by Kenneth B.
Rotenstreich and Paul A. Daniels, for defendant appellees.
McCULLOUGH, Judge.
Plaintiff Jeffrey S. Caudill appeals from the trial court's
order which denied his motion for a new trial. A brief summary of
the facts which gives rise to this dispute are listed below.
On 15 April 1999, plaintiff's vehicle was stopped at a traffic
signal on Holden Road, in Greensboro, North Carolina. Ellen Odoom
operated the vehicle that was stopped behind plaintiff. As the
vehicles waited at the red light, a 1998 Ford struck Odoom's
vehicle from behind. Because of the impact, Odoom's vehicle, in
turn, struck plaintiff's vehicle. Defendant Sandra Holt was thedriver of the Ford that caused the accident, and defendant Lawrence
Sharp was the owner of the vehicle.
As a result of the accident, plaintiff claimed that he
suffered bodily injury. He alleged that defendant Holt was
negligent in causing the accident, and her negligence should be
imputed to defendant Sharp under the family purpose doctrine.
Plaintiff sought over $10,000.00 in damages.
During discovery, plaintiff took the deposition of his
physician, Dr. Vincent Paul. Dr. Paul treated defendant for the
alleged injuries arising out of the accident at issue in this case;
he also assisted plaintiff for previous injuries that resulted from
a 1994 accident in which plaintiff was also rear-ended.
Dr. Paul stated that plaintiff received an injection of
cortisone into his lower back after the 1994 injury. At that time,
plaintiff was released with a 5% permanent partial impairment to
his spine.
The next time Dr. Paul saw plaintiff was on 23 April 1999.
This was after the accident at issue in this case. Dr. Paul gave
plaintiff prescriptions for muscle relaxers and pain relievers.
On 12 May 1999, Dr. Paul determined that plaintiff's symptoms
were resolving. The following week, Dr. Paul noted that plaintiff
had normal reflexes in his arms and no motor weakness. However, in
June, plaintiff had an episode of severe arm and neck pain and went
to the emergency room for treatment. Shortly thereafter, Dr. Paul
determined that plaintiff's cigarette smoking could have beendelaying his healing. He also believed that smoking may have
contributed to the failure of the 1994 injury to fully resolve.
In January of 2000, plaintiff began to suffer from lower back
pain. Dr. Paul opined that the low back pain was not related to
the accident and that plaintiff had preexisting degenerative disk
disease throughout his spine.
On 24 April 2003, the jury found that defendant Holt's
negligence was the cause of plaintiff's injuries. The jury awarded
plaintiff $1.00 in damages. Plaintiff filed a motion for a new
trial, but the trial judge denied that request. Plaintiff appeals.
On appeal, plaintiff argues that the trial court erred by (1)
denying plaintiff's motion for a new trial and (2) allowing
defendants to give the last argument to the jury. We disagree and
affirm the decision of the trial court.
I. Motion for a New Trial
Plaintiff argues that the trial court erred in denying his
motion for a new trial. We disagree.
N.C. Gen. Stat. § 1A-1, Rule 59(a) (2003) provides various
grounds for granting a new trial. For example, a new trial may be
warranted when passion or prejudice leads the jury to award
excessive or inadequate damages. N.C. Gen. Stat. § 1A-1, Rule
59(a)(6) (2003).
However, the trial court has broad discretion in
determining whether a motion for a new trial should be granted:
It has been long settled in our jurisdiction
that an appellate court's review of a trial
judge's discretionary ruling either granting
or denying a motion to set aside a verdict and
order a new trial is strictly limited to thedetermination of whether the record
affirmatively demonstrates a manifest abuse of
discretion by the judge.
Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602
(1982). Our courts have “evinced a positive hesitancy to review
such discretionary rulings by the trial court except in rare
cases[.]”
Id.
Plaintiff acknowledges that the decision to grant a new trial
is reserved for exceptional cases. Nevertheless, he suggests that
a new trial is warranted here. In particular, plaintiff cites
Daum
v. Lorick Enterprises, 105 N.C. App. 428, 413 S.E.2d 559,
disc.
review denied, 331 N.C. 383, 417 S.E.2d 789 (1992). In that case,
plaintiff presented
uncontradicted evidence that a minor suffered
severe mental distress as a result of intentional sexual harassment
and molestation.
Id. at 431, 413 S.E.2d at 561. Although the jury
awarded medical expenses, it failed to grant future medical
expenses or emotional distress which was “the very essence of the
claim.”
Id. at 432, 413 S.E.2d at 561. Thus, the employee
received a new trial on the issue of damages.
Id.
We believe that the present case is distinguishable from
Daum
because in this case, the evidence regarding plaintiff's injuries
was contradicted. Although defendants did not call any witnesses
or present their own evidence, defendants effectively used cross-
examination to undermine the credibility of plaintiff and his
witnesses. Defendants elicited testimony which tended to show that
plaintiff had a long history of neck and back problems, that he had
received chiropractic treatment throughout much of his life, andthat he had many of the same symptoms after an earlier accident in
1994. There was also evidence that cigarette smoking may have
prevented the 1994 injury from fully resolving and that weight gain
may have caused increased pain in plaintiff's back and neck.
Finally, plaintiff's witness, Dr. Paul, admitted on cross-
examination that he was mistaken when he suggested that plaintiff
had no symptoms before the 1999 accident. All of this information
reveals that plaintiff's injuries could have been preexisting or
caused by something other than the 1999 accident. At the very
least, it shows that the extent of plaintiff's injuries was in
dispute.
Since the evidence regarding plaintiff's injuries was not
unequivocal, we believe that the present case is unlike
Daum and
more analogous to
Albrecht v. Dorsett, 131 N.C. App. 502, 508
S.E.2d 319 (1998). In that case, we stated that
the evidence . . . regarding plaintiffs'
injuries was not unequivocal. Although
defendant did not bring forth experts to
contradict the testimony of plaintiffs'
physicians, defendant contends, and the record
confirms, that the cross-examination of
plaintiffs' experts yielded responses
contradicting their direct testimony. Unlike
Daum, the evidence brought out on
cross-examination severely damaged the
credibility of plaintiffs' experts. Since
“credibility of the evidence is exclusively
for the jury,” . . . it was well within the
jury's power to minimize or wholly disregard
the testimony given by plaintiffs' medical
experts.
Id. at 506, 508 S.E.2d at 322 (citation omitted). As was the case in
Albrecht, the evidence of plaintiff's
injuries in this case was not unequivocal. Cross-examination
undermined the credibility of plaintiff and his experts.
Accordingly, we cannot conclude that the trial court engaged in a
manifest abuse of discretion by denying plaintiff's motion for a
new trial. This assignment of error is overruled.
(See footnote 1)
II. Last Argument to the Jury
Plaintiff argues that the trial court erred by allowing
defendants' attorney to give the last argument to the jury. Rule
10 of the North Carolina General Rules of Practice for the Superior
and District Courts states:
In all cases, civil or criminal, if no
evidence is introduced by the defendant, the
right to open and close the argument to the
jury shall belong to him. If a question
arises as to whether the plaintiff or the
defendant has the final argument to the jury,
the court shall decide who is so entitled, and
its decision shall be final.
Gen. R. Pract. Super. and Dist. Ct. 10, 2004 Ann. R. N.C. 9.
“As a general proposition, any testimony elicited during
cross-examination is 'considered as coming from the party calling
the witness, even though its only relevance is its tendency to
support the cross-examiner's case.'”
State v. Shuler, 135 N.C.
App. 449, 452, 520 S.E.2d 585, 588 (1999) (citation omitted). On
cross-examination, evidence may be “introduced” when the cross-examiner offers it into evidence.
Id. at 453, 520 S.E.2d at 588.
Additionally, evidence is introduced “when new matter is presented
to the jury during cross-examination and that matter is
not
relevant to any issue in the case.”
Id.
In this case, defendants' attorney did not call any witnesses.
However, plaintiff asserts that defendants introduced substantive
evidence by reading portions of plaintiff's deposition while cross-
examining Dr. Paul. Therefore, plaintiff argues that he should
have been entitled to make the last argument to the jury.
After reviewing the transcript closely, we believe that
defendant's attorney did not offer substantive evidence. In this
case,
plaintiff's attorney called Dr. Paul to testify
that
plaintiff was asymptomatic or had no symptoms before the 1999
accident. On cross-examination, defendants' attorney simply tried
to refute the validity of this claim. The following exchange took
place between defendant's attorney and Dr. Paul:
Q. Has counsel for Plaintiff given you the
deposition of the Plaintiff to read?
A. No.
Q. Okay. Asymptomatic means no complaints,
correct?
A. Correct.
Q. I'd like to draw your attention to several
portions of Plaintiff's deposition and ask you
to consider them as additional history in this
deposition; would that be fine?
A. That's fine.
At that point, defendants' attorney read portions of
plaintiff's deposition in which plaintiff admitted to having pain
in his neck, arm, and hand before 15 April 1999. Defendants'
attorney also referenced parts of the deposition in which plaintiff
admitted to taking medication for neck pain before the 1999
accident.
Based upon this information, defendants' attorney sought to
challenge Dr. Paul's prior assertion that plaintiff was
asymptomatic or symptomless before the accident:
[Q.] So with -- if we assume that the sworn
testimony given to the Plaintiff -- by the
Plaintiff is true in his deposition, at least
now you know that his history given to us was
that he was having ongoing problems, although
in his mind not significant, even up to the
time of the accident; is that accurate?
A. Yes.
Q. And if, in fact, he's having ongoing
problems up until the time of the accident,
that is not being asymptomatic as you
previously thought, correct?
A. Correct.
We do not believe that defendants introduced evidence thereby
waiving their right to make the final argument to the jury.
Even
though this testimony was elicited during cross-examination, it is
considered as coming from plaintiff, the party that called the
witness, rather than defendants, the parties that did the cross-
examination.
Shuler, 135 N.C. App. at 452, 520 S.E.2d at 588. We
have also mentioned that evidence can be introduced “when new
matter is presented to the jury during cross-examination and thatmatter is
not relevant to any issue in the case.”
Id. at 453, 520
S.E.2d at 588. We do not believe that defendants' attorney offered
new matter by questioning Dr. Paul as to whether plaintiff was
asymptomatic before the accident because this was an issue that
plaintiff brought up on direct examination. Even if this could be
classified as new matter, it would be relevant to the issue of
whether the 1999 accident caused plaintiff's injuries.
Plaintiff cites only one case in support of his position.
State v. Macon, 346 N.C. 109, 484 S.E.2d 538 (1997). In
Macon,
Officer Mickey Denny testified on direct examination regarding the
investigation of the victim's death.
Id. at 113, 484 S.E.2d at
540. On cross-examination, defendant's attorney asked Officer
Denny about an interview with defendant that occurred shortly after
the shooting.
Id. Defendant's attorney also asked Officer Denny
to read notes another officer made to the jury.
Id. The issue was
whether defendant offered evidence thereby prohibiting him from
making the final argument to the jury.
Id. at 113, 484 S.E.2d at
540-41. Our Supreme Court held that defendant did offer evidence
because
defendant brought up the issue of his post-arrest statement
to police before the State offered any such evidence.
Id. More
importantly,
[t]he jury received the contents of
defendant's statement as substantive evidence
without any limiting instruction, not for
corroborative or impeachment purposes, as
defendant did not testify at trial and the
statement did not relate in any way to Officer
Denny.
Id. at 114, 484 S.E.2d at 541. The present case is distinguishable from
Macon because here
,
plaintiff was the first party to introduce evidence that he was
asymptomatic before the 1999 accident. Thus, unlike the cross-
examiner in
Macon, defendants were reacting to evidence that was
already in the record. Furthermore, in the present case, we have
established that defendants questioned Dr. Paul to impeach his
earlier statement that plaintiff was asymptomatic; it was not
offered as new substantive evidence. Accordingly, the outcome in
Macon does not control the outcome of this case. We dismiss this
assignment of error.
After considering all of plaintiff's arguments, we conclude
that he is not entitled to a new trial. The order of the trial
court is
Affirmed.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
Footnote: 1