Appeal by plaintiff from judgment entered 26 February 2007 by
Judge W. Erwin Spainhour in Davidson County Superior Court. Heard
in the Court of Appeals 15 November 2007.
Charles Peed and Associates, P.A., by Charles O. Peed, Jr.,
and J. William Snyder, Jr., for plaintiff-appellant.
Elizabeth Horton, for defendants-appellees.
Caroleen Myers Hamilton, Executor of the Estate of Ronnie C.
Hamilton, Sr. (executrix), appeals from an order granting
Thomasville Medical Associates, Inc.'s and Dr. Oscar M. Blackwell's
(Dr. Blackwell) (collectively, defendants) motion for summary
judgment. We reverse and remand.
On 18 March 2003, Ronnie C. Hamilton, Sr. (Mr. Hamilton)
filed a complaint, which alleged claims of medical malpractice,
against defendants and several other parties. Mr. Hamilton alleged
he would not have suffered a stroke on 1 December 1999 if
defendants and several other parties had taken earlier and
different actions concerning his medical treatment. All other
parties were dismissed from this action. Mr. Hamilton died 10
January 2006 from pancreatic cancer. Executrix was substituted as
plaintiff by consent order filed 13 April 2006.
On 2 October 2006, the trial court heard arguments on
defendants': (1) motion in limine
to exclude plaintiff's experts'
testimony and (2) motion for summary judgment on the grounds
plaintiff had no competent evidence to support the causation
element of the medical malpractice claim. In an order entered 3
November 2006, Judge Larry Ford denied defendants' motion in limine
and motion for summary judgment. The case was continued until 12
On 1 February 2007, defendants filed a motion in limine
exclude from evidence a DVD purporting to show [Mr. Hamilton] at
various family occasions . . . . On 6 February 2007, defendantsfiled a notice of hearing on motions in limine
and an affidavit of
Dr. Travis Jackson, a North Carolina neurologist. On 9 February
2007, defendants filed a motion in limine
to prohibit the
introduction or mention of certain evidence by plaintiff, her
counsel, or any other witnesses.
In open court on 12 February 2007, plaintiff filed her
response to motion in limine
of defendants . . . to exclude
causation testimony of internist Dr. Michael Williams and
neurologist Dr. David Roeltgen and for summary judgment. On 26
February 2007, the trial court filed its final order, which
granted: (1) defendants' motions in limine
to exclude causation
testimony by plaintiff's purported expert witnesses . . . . and
(2) defendants' motion for summary judgment . . . on the basis
that plaintiff has no competent evidence with regard to causation,
an essential element of any medical malpractice claim . . . . The
trial court dismissed plaintiff's action. Plaintiff appeals.
Plaintiff argues the trial court erred by: (1) considering
and granting defendants' motion in limine
to exclude plaintiff's
experts' testimony and (2) granting defendants' motion for summary
III. Motion in Limine
 Plaintiff argues the trial court erred by considering and
granting defendants' motion in limine
because defendants failed to
file and serve upon  [p]laintiff any purported motion in limine
to exclude  [p]laintiff's expert witness testimony on the elementof causation between November 2, 2006 and February 12, 2007. We
review these issues separately.
A. Consideration of Motion in Limine
A motion in limine
determination of the admissibility of evidence
proposed to be introduced at trial, and is
recognized in both civil and criminal trials.
The trial court has wide discretion in making
this advance ruling and will not be reversed
absent an abuse of discretion. Moreover, the
court's ruling is not a final ruling on the
admissibility of the evidence in question, but
only interlocutory or preliminary in nature.
Therefore, the court's ruling on a motion in
limine is subject to modification during the
course of the trial.
Heatherly v. Industrial Health Council
, 130 N.C. App. 616, 619, 504
S.E.2d 102, 105 (1998) (emphasis supplied) (internal citations and
Judge Ford's denial of defendants' motion in limine
plaintiff's experts' testimony on 3 November 2006 was subject to
modification during the course of the trial. Id
. The trial court
did not err by revisiting and considering defendants' motion in
on 12 February 2007. This assignment of error is overruled.
B. Granting of Motion in Limine
1. Standard of Review
It is well-established that trial courts must
decide preliminary questions concerning the
qualifications of experts to testify or the
admissibility of expert testimony. When making
such determinations, trial courts are not
bound by the rules of evidence. In this
capacity, trial courts are afforded wide
latitude of discretion
when making a
determination about the admissibility of
expert testimony. Given such latitude, it
follows that a trial court's ruling
qualifications of an expert or theadmissibility of an expert's opinion will not
be reversed on appeal absent a showing of
abuse of discretion
Howerton v. Arai Helmet, Ltd.
, 358 N.C. 440, 458, 597 S.E.2d 674,
686 (2004) (emphasis supplied) (internal citations and quotation
omitted). A trial court may be reversed for an abuse of
discretion only upon a showing that its ruling was so arbitrary
that it could not have been the result of a reasoned decision.
State v. Wilson
, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)
In State v. Goode
, 341 N.C. 513, 461 S.E.2d 631 (1995), our
set forth a three-step inquiry for evaluating
the admissibility of expert testimony: (1) Is
the expert's proffered method of proof
sufficiently reliable as an area for expert
testimony? (2) Is the witness testifying at
trial qualified as an expert in that area of
testimony? (3) Is the expert's testimony
, 358 N.C. at 458, 597 S.E.2d at 686 (internal citations
Here, the trial court found plaintiff's experts were not
qualified as experts in the area of neurosurgery and ruled
plaintiff could not forecast evidence of causation. We evaluate
this ruling under the second factor of the Goode
test. 341 N.C. at
529, 461 S.E.2d at 640.
As our Supreme Court explained in Howerton
[i]n the second step of analysis under Goode
the trial court must determine whether the
witness is qualified as an expert in thesubject area about which that individual
intends to testify. 341 N.C. at 529, 461
S.E.2d at 640. Under the North Carolina Rules
of Evidence, a witness may qualify as an
expert by reason of knowledge, skill,
experience, training, or education, where
such qualification serves as the basis for the
expert's proffered opinion. N.C.G.S. § 8C-1,
Rule 702(a). As summarized in Goode
It is not necessary that an expert be
experienced with the identical subject matter
at issue or be a specialist, licensed, or even
engaged in a specific profession
. It is
enough that the expert witness 'because of his
expertise is in a better position to have an
opinion on the subject than is the trier of
341 N.C. at 529, 461 S.E.2d at 640 (citations
omitted). Whether a witness has the requisite
skill to qualify as an expert in a given area
is chiefly a question of fact, the
determination of which is ordinarily within
the exclusive province of the trial court.
State v. Goodwin
, 320 N.C. 147, 150, 357
S.E.2d 639, 641 (1987).
358 N.C. at 461-62, 597 S.E.2d at 688 (emphasis supplied).
The record shows plaintiff's tendered expert witnesses
included an internist and a neurologist. In an affidavit submitted
by defendants, neurologist Dr. Travis Jackson stated:
4. As a neurologist, I order and interpret
films and scans including MRI and other
films and scans of the brain. I regularly
order and interpret MRI's of the brain
like the one ordered by Dr. Blackwell on
November 29, 1999.
5. However, and even though I read and
interpret these films, I am not a
surgeon. If the films show what appears
to be a stenotic vessel which may be
amenable to surgery then I refer to a
surgeon because only a surgeon can
determine whether it is a stenotic vessel
amenable to the surgical procedure known
as carotid endarterectomy (assuming thepatient is otherwise an appropriate
candidate for surgery).
Plaintiff's expert witnesses are in a better position than the
trier of fact to have an opinion on the subject of whether Mr.
Hamilton would have suffered a stroke but for Dr. Blackwell's
failure to read the 29 November 1999 MRI. Goode
, 341 N.C. at 529,
461 S.E.2d at 640.
The trial court erred by granting defendants' motion in limine
to exclude plaintiff's experts' testimony regarding causation.
Because the trial court erred by granting defendants' motion in
, the trial court also erred by granting defendants' motion
for summary judgment on the basis that plaintiff has no competent
evidence with regard to causation, an essential element of any
medical malpractice claim . . . .
The trial court did not err by revisiting defendants' motion
. The trial court erred by granting defendants' motion in
to exclude plaintiff's experts. Id
. The trial court also
erred by granting defendants' motion for summary judgment. Id
The trial court's order granting defendants' motion in limine
motion for summary judgment is reversed. This case is remanded for
further proceedings not inconsistent with this opinion.
Reversed and Remanded.
Judges JACKSON and STROUD concur.
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