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1. Appeal and Error--appealability--denial of motion for judgment on pleadings not
reviewable
Although defendant-appellants contend the trial court erred in a suit seeking
compensatory and punitive damages, as a result of injuries resulting from unwashed sperm
specimen in an insemination procedure, by denying defendant-appellants' motion for judgment
on the pleadings, this issue is not reviewable on appeal because the trial court rendered a final
judgment after a trial on the merits.
2. Damages and Remedies--punitive damages--motion for directed verdict--unwashed
sperm specimen in insemination procedure
The trial court did not err in a suit seeking damages as a result of injuries resulting from
an unwashed sperm specimen in an insemination procedure by denying defendant-appellants'
directed verdict motion at the close of all evidence on the issue of punitive damages because
appellant nurse admitted that though she was aware of the safety protocol in place at appellant
health center, she violated that protocol in several ways including failing to examine the sperm
specimen under a microscope prior to insemination, which evidence alone constituted more than
a scintilla of evidence regarding whether to submit the question of punitive damages to the jury.
3. Damages and Remedies--punitive damages--motion for judgment notwithstanding
verdict--unwashed sperm specimen in insemination procedure
The trial court did not err in a suit seeking damages as a result of injuries resulting from
an unwashed sperm specimen in an insemination procedure by denying defendant-appellants'
motion for judgment notwithstanding the verdict on the issue of punitive damages because: (1)
appellants failed to assign error to any of the trial court's findings of fact or conclusions of law,
and the failure to do so resulted in a waiver of the right to challenge the sufficiency of the
evidence; and (2) finding of fact number seven provided sufficient evidence for the jury to
determine that appellant nurse acted willfully and wantonly with reckless indifference to the
safety of her patient when she knowingly, consciously, and deliberately used an unlabeled
syringe containing an unknown substance in plaintiff's insemination procedure knowing that to
do so would expose plaintiff to a risk of harm.
4. Damages and Remedies--punitive damages--motion to reduce or set aside award
The trial court did not err in a suit seeking damages as a result of injuries resulting from
an unwashed sperm specimen in an insemination procedure by denying defendant-appellants'
request under N.C.G.S. § 1D-50 to set aside or reduce the punitive damages award because: (1)
the trial court outlined both the findings of fact and conclusions of law upon which the
determination of punitive damages was predicated; (2) since appellants failed to assign error to
the pertinent findings and conclusions, they are binding on appeal; and (3) the trial court
complied with the dictates of the statute by explaining in detail why punitive damages were
justified in the instant case and why such an award was appropriate and not excessive.
5. Damages and Remedies--punitive damages--motion for new trial
The trial court did not err in a suit seeking damages as a result of injuries resulting from
unwashed sperm specimen in an insemination procedure by denying defendant-appellants'
motion for a new trial, because the trial court acted within its discretion.
Shipman & Wright, L.L.P., by Gary K. Shipman and William G.
Wright for plaintiffs-appellees.
Cranfill, Sumner & Hartzog, L.L.P., by Edward C. LeCarpentier,
III, John D. Martin, Colleen Shea Collis and Meredith T. Black
for defendants-appellants.
Comerford & Britt, L.L.P., by Clifford Britt; and Holly M.
Bryan, for The North Carolina Academy of Trial Lawyers, amicus
curiae.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Robin K. Vinson, for The North Carolina Medical Society,
amicus curiae.
CALABRIA, Judge.
Health Sciences Foundation, Inc. (“Foundation”), Coastal Area
Health Education Center (“Coastal”), Women's Health Specialties-
North (“Specialties”), and Julie Ramsey (“Ramsey”) (collectively
known as “appellants”) appeal the 24 August 2004 judgment in favor
of Kelly Chambliss (“Kelly”) and Caroline Chambliss (“Caroline”)
(collectively known as “appellees”) for injuries resulting from an
unwashed sperm specimen in an insemination procedure). We affirm
in part and find no error in part.
Appellees Kelly and Caroline Chambliss, both female, are life
partners. Appellees desired to raise a family and concluded theirbest option was artificial insemination. Appellees looked to
appellants Coastal and Ramsey, as well as Dr. Mark M. Pasquarette
(“Dr. Pasquarette”), leader of a reproductive endocrinology and
fertility practice,
(See footnote 1)
for assistance. Appellees decided Kelly would
undergo monthly intrauterine insemination procedures
(See footnote 2)
whereby
Caroline would inject the sample sperm into Kelly's uterus.
Appellees obtained, with the help of Dr. Pasquarette, “pre-washed”
donor sperm
(See footnote 3)
from an accredited sperm bank in California. Non-
“pre-washed” sperm had to be placed into a Sperm Select kit for
cleansing while “pre-washed” sperm generally did not require such
treatment. Once clean, the “washed” sperm remains in the Sperm
Select syringe for the eventual insemination procedure). A Sperm
Select syringe, which has the non-“pre-washed” sperm, looks
completely different than the type of syringe used for “pre-washed”
specimens, like those of appellees, that come from sperm banks.
Appellees attempted, unsuccessfully, to get pregnant eleven
times prior to arriving at appellants' facility on 26 August 2002
for their twelfth insemination procedure. On each prior occasion,appellees used the donor sperm from California in the insemination
procedures. Two days earlier, 24 August 2002, Karen Hale (“Hale”),
a registered nurse who worked at appellants' facility, prepared a
sperm specimen for another patient. Hale and another registered
nurse at the appellants' facility, Debbie Cushing (“Cushing”),
along with Ramsey, were the only three nurses authorized to prepare
specimens for artificial insemination procedures. Hale did the
following in preparation for the 24 August 2002 procedure: drew a
portion of the sperm into a Sperm Select syringe and cleaned it
(the sperm used was not pre-washed); drew up a smaller sample of
the now cleaned sperm into a second Sperm Select syringe for
insemination; transferred a smaller portion of the cleaned sperm
from this second syringe into a catheter for actual use; drew up
the surplus, unwashed sperm into the second syringe and placed it
in the incubator. This unwashed sperm specimen remained in the
incubator in the syringe over the weekend.
The policies and procedures in place at appellants' facility
for preparing a sperm specimen for insemination included confirming
the donor number with the patient, matching the donor number in a
log book, logging the donor sperm out of the sperm freezer, having
two individuals initial this process, labeling the specimen,
showing the vial of sperm to the patient and reconfirming the donor
number, checking the specimen under a microscope and charting this
process in the patient's medical chart. The intent of these
policies and procedures was to protect patient safety and maximize
patient health. On 26 August 2002 Ramsey used the remainder 24 August 2002
unwashed sperm specimen from the incubator in the insemination
procedure with Kelly and not Kelly's “pre-washed” donor sperm. The
unwashed sperm specimen used by Ramsey was in the same unlabeled
Sperm Select syringe. Kelly became violently ill almost
immediately. Two days later on 28 August 2002 both Hale and Ramsey
recognized the wrong sperm specimen was used in the insemination
procedure. Ramsey and Dr. Pasquarette informed appellees of this
error immediately. None of the policies and procedures in effect
at appellants' facility to prepare a sperm specimen for
insemination and protect patient health and safety were performed
on 26 August 2002.
Appellees filed suit against appellants on 21 March 2003
seeking both compensatory and punitive damages. After a week long
trial (21 June 2004 to 28 June 2004), the jury awarded appellees
both compensatory and punitive damages. The trial court entered
judgment in favor of appellees on 24 August 2004. On 1 September
2004 the trial court entered an order denying both appellants'
motion for judgment notwithstanding the verdict and motion for a
new trial as well as affirming a finding that the punitive damages
award was in accordance with N.C. Gen. Stat. §§ 1D-1 and 1D-35.
Appellants appealed from the judgment and orders on 22 September
2004.
I. Judgment on the Pleadings:
[1] Appellants argue in their first assignment of error the
trial court erred in denying their motion for a judgment on thepleadings. Appellants contend the complaint contains no
allegations which, as a matter of law, would constitute evidence
sufficient to support an award of punitive damages. This Court has
held “[a] trial court's denial of...defendants' motion[]
for...judgment on the pleadings is not reviewable on appeal because
the trial court rendered a final judgment after a trial on the
merits.” Wilson v. Sutton, 124 N.C. App. 170, 173, 476 S.E.2d 467,
470 (1996) (emphasis added).
In the instant case, the trial court rendered a final judgment
after a trial on the merits. Thus, we reject appellants' assertion
it is reviewable here. This assignment of error is overruled.
II. Directed Verdict:
[2] Appellants next argue the trial court erred in denying
their directed verdict motion at the close of appellees' evidence
and at the close of all the evidence. The appellants contend the
evidence presented was insufficient to support an award of punitive
damages. We disagree.
First, appellants waived their initial directed verdict motion
at the close of appellees' evidence by presenting evidence. “By
offering evidence...a defendant waives its motion for directed
verdict made at the close of plaintiff's evidence.” Boggess v.
Spencer, 173 N.C. App. 614, 617, 620 S.E.2d 10, 12 (2005) (citation
omitted). Second, regarding appellants' renewal of their directed
verdict motion at the close of all the evidence, “[i]n deciding
whether to grant or deny a motion for directed verdict, 'the trial
court must accept the non-movant's evidence as true and view allthe evidence in the light most favorable to him.'” Id., 620 S.E.2d
at 13 (quoting Williamson v. Liptzin, 141 N.C. App. 1, 9-10, 539
S.E.2d 313, 318 (2000)). Further, “[t]he trial court should deny
the motion if there is more than a scintilla of evidence supporting
each element of the non-movant's claim.” Id. (citation and
internal quotation marks omitted). “The standard of review of a
denial of a motion for directed verdict is whether the evidence,
considered in a light most favorable to the non-moving party, is
sufficient to be submitted to the jury.” Id.
In the instant case, a thorough review of the record and trial
transcripts and testimony illustrates sufficient evidence existed
to support submitting the question of punitive damages to the jury
and consequently, to deny appellants' renewed directed verdict
motion. In fact, appellant Ramsey admitted that though she was
aware of the safety protocol in place at appellant Coastal, she
violated that protocol in several ways including failing to examine
the sperm specimen under a microscope prior to insemination. This
evidence alone qualifies as more than a scintilla of evidence
regarding whether to submit the question of punitive damages to the
jury. This assignment of error is overruled.
III. Judgment Notwithstanding the Verdict:
[3] Appellants next argue the trial court erred in denying
their motion for judgment notwithstanding the verdict (“jnov”).
Appellants contend the evidence presented was insufficient to
support an award of punitive damages. We disagree. Appellants failed to assign error to any of the trial court's
findings of fact or conclusions of law. “Where findings of fact
are challenged on appeal, each contested finding of fact must be
separately assigned as error, and the failure to do so results in
a waiver of the right to challenge the sufficiency of the
evidence.” Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App.
587, 591, 525 S.E.2d 481, 484 (2000) (citations omitted) (emphasis
added). Thus, “[w]here an appellant fails to assign error to the
trial court's findings of fact, the findings are presumed to be
correct.” Id. (citation and internal quotation marks omitted).
Consequently, “our review...is limited to the question of whether
the trial court's findings of fact, which are presumed to be
supported by competent evidence, support its conclusion of law and
judgment.” Id., 136 N.C. App. at 591-92. In its 1 September 2004
order denying appellants' jnov motion, the trial court's finding of
fact number seven states, in pertinent part, “[v]iewing the
evidence in the light most favorable to the [p]laintiff, and
resolving all inferences from the evidence in her favor...there was
sufficient evidence for the jury to determine that Defendant Ramsey
acted willfully and wantonly, i.e. with reckless indifference to
the safety of her patient, when she knowingly, consciously and
deliberately used an unlabeled syringe containing an unknown
substance in [p]laintiff's insemination procedure...knowing that to
do so would expose the [p]laintiff to a risk of harm.” Therefore,
finding of fact number seven supports conclusion of law number one,
“there was sufficient evidence to submit the issue of punitivedamages to the jury,” and consequently, appellants' jnov motion was
properly denied. This assignment of error is overruled.
IV. Punitive Damages:
[4] Appellants next argue the trial court improperly denied
their request pursuant to N.C. Gen. Stat. § 1D-50 to set aside or
reduce the punitive damages award as there was insufficient
evidence in the record. We disagree.
N.C. Gen. Stat. § 1D-50 states:
When reviewing the evidence regarding a
finding by the trier of fact concerning
liability for punitive damages in accordance
with G.S. 1D-15(a), or regarding the amount of
punitive damages awarded, the trial court
shall state in a written opinion its reasons
for upholding or disturbing the finding or
award. In doing so, the court shall address
with specificity the evidence, or lack
thereof, as it bears on the liability for or
the amount of punitive damages, in light of
the requirements of this Chapter.
N.C. Gen. Stat. § 1D-50 (2005) (emphasis added). The trial court
outlined, in exhaustive fashion, both the findings of fact and
conclusions of law upon which the determination of punitive damages
was predicated. Furthermore, since appellants failed to assign
error to the pertinent findings and conclusions, they are
conclusive on appeal. The trial court complied with the dictates
of the statute in explaining in detail why punitive damages were
justified in the instant case and why such an award was appropriate
and not excessive. Thus, we hold the trial court committed no
error in denying appellants' request pursuant to N.C. Gen. Stat. §
1D-50.
V. New Trial: [5] Appellants next assign error to the trial court's denial
of their motion for a new trial. “An appellate court's review of
a trial judge's discretionary ruling denying a motion to set aside
a verdict and order a new trial is limited to a determination of
whether the record clearly demonstrates a manifest abuse of
discretion by the trial judge.” Pittman v. Nationwide Mut. Fire
Ins. Co., 79 N.C. App. 431, 434, 339 S.E.2d 441, 444 (1986).
“During review, we accord 'great faith and confidence in the
ability of our trial judges to make the right decision, fairly and
without partiality, regarding the necessity for new trial.'” City
of Charlotte v. Ertel, 170 N.C. App. 346, 353, 612 S.E.2d 438, 434
(2005) (citing Burgess v. Vestal, 99 N.C. App. 545, 550, 393 S.E.2d
324, 327 (1990)) (quoting Worthington v. Bynum, 305 N.C. 478, 487,
290 S.E.2d 599, 605 (1982)).
In its 1 September 2004 order denying appellants' new trial
motion, the trial court reviewed the evidence, including
transcripts of jury instructions and trial testimony, and
determined no grounds existed to support appellants' motion. We
conclude the trial court acted within its discretion. This
assignment of error is overruled.
Affirmed in part; no error in part.
Judges HUDSON and LEVINSON concur.
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