Appeal by defendant from an order entered 21 July 2006 by
Judge Abraham Penn Jones in Durham County Superior Court. Heard in
the Court of Appeals 24 May 2007.
Law Offices of Grover C. McCain, Jr., by Grover C. McCain,
Jr., for plaintiff-appellee.
Young Moore and Henderson P.A., by William P. Daniell and
Elizabeth P. McCullough, for defendant-appellant.
Durham Anesthesia Associates, P.A. (defendant) appeals from an
order entered 21 July 2006 granting judgment notwithstanding the
verdict and ordering a new trial. For the reasons stated herein we
reverse the order of the trial court.
Facts and Procedural History
On 16 January 2003, Calverine Obie underwent surgery on her
right eye at North Carolina Specialty Hospital in Durham, North
Carolina. The surgery was conducted by her ophthalmic surgeon, Dr.
J. Richard Marlon. Anesthesia services for the surgery were
provided by defendant, through Dr. Cathy W. Thomas, an
anesthesiologist, and Beverly Teal, a certified registered nurse
anesthetist, both of whom were employees of defendant. At the
outset of the surgery, Ms. Teal was present in the operating room
with Ms. Obie, and Dr. Thomas was tending to another patient in a
nearby room. Shortly after the surgery began, Ms. Obie began to
suffer complications ultimately resulting in permanent brain damage
leaving Ms. Obie in a comatose state. Ms. Obie's family decided to
withdraw life support on 23 January 2003, and she died the same
On 20 January 2005, Robin Y. Jones, acting as the
administrator of Ms. Obie's estate, (plaintiff) filed a wrongful
death action against defendant, Dr. Thomas, and the North Carolina
Specialty Hospital, LLC. Plaintiff alleged Ms. Obie died as the
result of medical negligence in connection with the providing of
anesthesia services during the 16 January 2003 surgery to
eviscerate her right eye. Plaintiff voluntarily dismissed herclaims against North Carolina Specialty Hospital and Dr. Thomas on
27 March 2006 and 7 April 2006.
This case was tried before a jury at the 24 April 2006 session
of Civil Superior Court in Durham County, the Honorable Abraham
Penn Jones, Judge presiding. On 4 May 2006, the jury returned a
verdict in favor of defendant, finding the death of Ms. Obie was
not proximately caused by the negligence of any employee of
defendant. On 15 May 2006, plaintiff filed a motion for judgment
notwithstanding the verdict and for a new trial.
The trial court entered its judgment, consistent with the jury
verdict, in favor of defendant on 23 May 2006. On 21 July 2006,
the trial court entered its order granting plaintiff's motion for
judgment notwithstanding the verdict and granting a new trial.
Defendant appeals from the entry of this order.
 We first address plaintiff's motion before this Court to
dismiss this appeal because it is from an interlocutory order.
Interlocutory orders and judgments are those made during the
pendency of an action which do not dispose of the case, but instead
leave it for further action by the trial court in order to settle
and determine the entire controversy. Carriker v. Carriker
N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citation omitted).
Generally, there is no right to immediate appeal from an
interlocutory order. Milton v. Thompson
, 170 N.C. App. 176, 178,
611 S.E.2d 474, 476 (2005) (citing N.C. Gen. Stat. § 1A-1, Rule54(b) (2005); Veazey v. City of Durham
, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950)). This Court has held that an interlocutory
order is immediately appealable if:
(1) the order is final as to some claims or
parties, and the trial court certifies
pursuant to N.C.G.S. § 1A-1, Rule 54(b) that
there is no just reason to delay the appeal,
or (2) the order deprives the appellant of a
substantial right that would be lost unless
Currin & Currin Constr., Inc. v. Lingerfelt
, 158 N.C. App. 711,
713, 582 S.E.2d 321, 323 (2003) (citations and quotations omitted).
As there is no Rule 54(b) certification in the record before this
Court, defendants are entitled to pursue this appeal only if the
trial court's order deprived them of a substantial right that would
be lost if we dismissed their appeal.
Our Courts have recognized that the 'substantial right' test
for appealability of interlocutory orders is more easily stated
than applied. It is usually necessary to resolve the question in
each case by considering the particular facts of that case and the
procedural context . . . . Davis v. Davis
, 360 N.C. 518, 525, 631
S.E.2d 114, 119 (2006) (citation and quotations omitted). Further,
[t]he reason for these rules is to prevent fragmentary, premature
and unnecessary appeals by permitting the trial divisions to have
done with a case fully and finally before it is presented to the
appellate division. Id.
We find the instant appeal to raise issues similar to those
addressed by our Supreme Court in Bowden v. Latta
, 337 N.C. 794,
448 S.E.2d 503 (1994). In Bowden
, the trial court (1) set asidethe jury verdict and judgment entered thereon as to the decedent's
contributory negligence, (2) entered judgment for the plaintiff
upon the issue of contributory negligence, and (3) ordered a new
trial on the issue of damages. Id.
at 795, 448 S.E.2d at 504.
This Court, relying on Unigard Carolina Ins. Co. v. Dickens
N.C. App. 184, 254 S.E.2d 197 (1979), had held that the order
appealed from in Bowden
was interlocutory and no substantial right
was affected thereby. Bowden
, 337 N.C. at 795, 448 S.E.2d at 405.
However, our Supreme Court reversed, holding:
the only way judicial economy can be served is
by a determination of the underlying
substantive appeal at this time. Such a
determination will not fragment the case. To
the contrary, it will significantly shorten
the process and clear the path toward finality
for all concerned. . . . Regardless of
whether an appellate court undertakes a
substantive appeal now or after the parties
have gone through a trial on damages, the
issue of whether the trial judge was correct
in overturning the jury verdict on
contributory negligence remains central and
will, in any event, need to be addressed.
Deciding the matter now would streamline the
process by delineating, as well as limiting,
the remaining issues that could be litigated
at 797, 448 S.E.2d at 505.
While an appeal from a trial court's order accepting the
jury's verdict fixing liability but ordering a new trial solely on
the issue of damages [is] interlocutory and not immediately
appealable[,] Loy v. Martin
, 144 N.C. App. 414, 416, 547 S.E.2d
843, 845 (2001) (citation and quotations omitted), here the trial
court did not accept the jury's verdict fixing liability. Instead,
the trial court granted plaintiff's motion for judgmentnotwithstanding the verdict and granted plaintiff a new trial on
the remaining issues of causation and damages. Here, defendant has
already gone through one trial on the issue of liability and
damages and is now being forced to undertake a second trial on the
same issues. We hold that a substantial right of defendant's is
affected by the trial court's order and the order is thus
immediately appealable. See also Roberts v. Heffner
, 51 N.C. App.
646, 650, 277 S.E.2d 446, 449 (1981) (holding the possibility of
being forced to undergo two full trials on the merits and to incur
the expense of litigating twice makes it clear that the judgment in
question works an injury to defendants if not corrected before an
appeal from a final judgment). Accordingly we deny plaintiff's
motion to dismiss this appeal.
Standard of Review
[T]he questions concerning the sufficiency of the evidence to
withstand a Rule 50 motion for directed verdict or judgment
notwithstanding the verdict present an issue of law, while a motion
for a new trial for insufficiency of the evidence pursuant to Rule
59(a)(7) is addressed to the discretion of the trial court. In re
Will of Buck
, 350 N.C. 621, 624, 516 S.E.2d 858, 860 (1999). On
appeal, this Court thus reviews an order granting a motion for
judgment notwithstanding the verdict de novo
. See Denson v.
, 159 N.C. App. 408, 411, 583 S.E.2d 318, 320
The standard of review of a ruling entered
upon a motion for judgment notwithstanding the
verdict is whether upon examination of all
the evidence in the light most favorable tothe non-moving party, and that party being
given the benefit of every reasonable
inference drawn therefrom, the evidence is
sufficient to be submitted to the jury.
Branch v. High Rock Realty, Inc.
, 151 N.C. App. 244, 249-50, 565
S.E.2d 248, 252 (2002) (quoting Fulk v. Piedmont Music Ctr.
N.C. App. 425, 429, 531 S.E.2d 476, 479 (2000)), disc. review
, 356 N.C. 667, 576 S.E.2d 330 (2003). A motion for . . .
judgment notwithstanding the verdict 'should be denied if there is
more than a scintilla of evidence supporting each element of the
non-movant's claim.' Denson
, 159 N.C. App. at 412, 583 S.E.2d at
320 (quoting High Rock Realty
, 151 N.C. App. at 250, 565 S.E.2d at
 Defendant argues the trial court erred in granting
plaintiff's motion for a judgment notwithstanding the verdict and
a new trial on the grounds that an employee of defendant made a
judicial admission concerning the applicable standards of care. We
In its order granting plaintiff's motion for judgment
notwithstanding the verdict and a new trial, the trial court held:
[Dr.] Thomas made a binding judicial admission
pursuant to Body v. Varner
, 107 N.C. App. 219
(1992), based on the following testimony given
by her at the trial and that Plaintiff's
motions should be granted[:]
Q. So then do I hear you agreeing
that you did not comply with the
standard of care for
anesthesiologists in 2003 by not
being present at the beginning of
the case? ........
A. In that regard, sir, I was not
compliant to what you just said.
Based on this finding, the trial court granted plaintiff's motion
for judgment notwithstanding the verdict pursuant to Rule 50 and
granted a new trial on the issues of:
1. Was the death of Catherine Obie caused, in
whole or in part, by the negligence of Dr.
Thomas in not being present at the beginning
of the case of Calverine Obie?
2. What amount of damages, if any, should the
Estate of Calverine Obie recover for the
wrongful death of Calverine Obie?
It is well established that a judicial admission is
a formal concession made by a party (usually
through counsel) in the course of litigation
for the purpose of withdrawing a particular
fact from the realm of dispute . . . . Such an
admission is not evidence, but rather removes
the admitted fact from the field of evidence
by formally conceding its existence. It is
binding in every sense.
Woods v. Smith
, 297 N.C. 363, 374, 255 S.E.2d 174, 181 (1979)
(citations and quotations omitted). In contrast, an evidential or
extrajudicial admission consists of words or other conduct of a
party, or of someone for whose conduct the party is in some manner
deemed responsible, which is admissible in evidence against such
party, but which may be rebutted, denied, or explained away and is
in no sense conclusive. Id.
at 374, 255 S.E.2d at 181 (citations
and quotations omitted). Generally, a party's statements, given
in a deposition or at trial of the case, are to be treated as
evidential admissions rather than as judicial admissions. Id.
373-74, 255 S.E.2d at 181. However, there are two exceptionswherein a party's statements made at trial or in a deposition are
treated as judicial admissions:
First, when a party gives unequivocal, adverse
testimony under factual circumstances such as
were present in Cogdill
(See footnote 1)
, his statements should
be treated as binding judicial admissions
rather than as evidential admissions. Second,
when a party gives adverse testimony, and
there is insufficient evidence to the contrary
presented to support the allegations of his
complaint, summary judgment or a directed
verdict would in most instances be properly
granted against him.
at 374, 255 S.E.2d at 181. Further, when reviewing whether or
not a statement made by a party at trial or in a deposition is a
judicial admission, we must look to their testimony as a whole.
at 372, 255 S.E.2d at 180.
Here, a review of the record before this Court shows that
neither of the two exceptions apply and Dr. Thomas' statement must
be treated as an evidential admission. The testimony of Dr.
Thomas, when viewed as a whole does not show that she gave
unequivocal, adverse testimony under factual circumstances as towhether or not she had breached the applicable standard of care.
Dr. Thomas initially stated that she had not breached the standard
of care, then admitted she breached the standard of care, and then
later again denied that she had breached the standard of care.
Further, Dr. Thomas' testimony regarding whether or not she
breached the applicable standard of care is by its very nature a
matter of opinion and does not concern concrete facts. Finally,
there is sufficient evidence in the record to support that Dr.
Thomas did not breach the applicable standard of care. Thus,
neither of the two Woods
exceptions apply and the trial court erred
in concluding that Dr. Thomas' statement constituted a judicial
All contradictions, conflicts, and inconsistencies in the
evidence are resolved in the non-movant's favor when the trial
court decides whether to grant or deny a party's motion for
judgment notwithstanding the verdict. Bryant v. Nationwide Mut.
Fire Ins. Co.
, 313 N.C. 362, 369, 329 S.E.2d 333, 337-38 (1985).
As Dr. Thomas' statement is an evidential admission, the trial
court erred in holding that a new trial on the issues of causation
and damages was necessary because the issue of whether defendant
breached the applicable standard of care was not conclusively
established at trial.
Judges McCULLOUGH and CALABRIA concur.