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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1211

NORTH CAROLINA COURT OF APPEALS

Filed: 5 June 2007

SUNNY D. LOVETTE and
JIM LOVETTE,
        Plaintiffs,

     v .                                 Wilkes County
                                        No. 04 CVS 2354
LISA S. YORK,
Executrix of the Estate of Gypsy
H. Stallings,
        Defendant.

    Appeal by plaintiffs from judgment entered 20 March 2006 and order entered 22 March 2006 by Judge Catherine C. Eagles in Wilkes County Superior Court. Heard in the Court of Appeals 11 April 2007.

    Vannoy, Colvard, Triplett & Vannoy, PLLC, by Jay Vannoy, for plaintiff appellants.

    Willardson Lipscomb & Miller, L.L.P., by John S. Willardson, for defendant appellee.

    McCULLOUGH, Judge.

    Sunny Lovette and Jim Lovette (“plaintiffs”) appeal from judgment entered consistent with the jury's verdict that plaintiff Sunny Lovette was not injured by the negligence of Gypsy Stallings and order entered denying plaintiffs' motion for judgment notwithstanding the verdict.
    On 23 September 2003, plaintiff Sunny Lovette was stopped at a traffic light in Wilkesboro, North Carolina, when a pickup truck driven by Gypsy Stallings collided with the rear end of Mrs.Lovette's vehicle. The impact caused Mrs. Lovette's vehicle to be propelled forward into the rear of the car in front of it and then caused it to collide with a sign. Mrs. Lovette and Mr. Stallings were transported to the hospital following the accident and Mr. Stallings subsequently died several days later.
    Plaintiffs filed a complaint following the automobile accident for recovery of damages resulting therefrom, alleging negligence on the part of Mr. Stallings. Lisa Stallings York, executrix of Mr. Stallings' estate (“defendant”) thereafter filed an answer in which they asserted the defenses of sudden incapacitation and unavoidable accident as a bar to any alleged negligence.
    Prior to trial, plaintiffs filed a motion to exclude portions of the testimony of Dr. Preston Miller which pertained to the cause of the accident asserting that such testimony failed to meet the criteria set forth under N.C. Gen. Stat. § 8C-1, Rule 702 and was mere speculation. The trial court denied the motion prior to trial.
    At trial Dr. Miller testified by deposition that based on a review of the records and referring records, Mr. Stallings experienced some type of event which caused him to be incapacitated and unable to respond resulting in the accident. Dr. Miller further testified that it was impossible to say exactly what incapacitating event Mr. Stallings experienced but opined that it could have been a fainting event, seizure or heart attack.
    At the close of defendant's evidence, plaintiffs moved for a directed verdict on the defense of sudden incapacitation and such motion was denied by the trial judge. The case was then submittedto the jury who returned a verdict finding that Ms. Lovette was not injured by the negligence of Mr. Stallings. Plaintiffs thereafter motioned the court for judgment notwithstanding the verdict which was denied by the trial judge. Judgment was entered consistent with the jury verdict. Plaintiffs appeal.
    Plaintiffs contend on appeal that the trial court erred in admitting Dr. Miller's expert opinion testimony regarding sudden incapacitation.
    Specifically, plaintiffs aver that Dr. Miller's testimony regarding causation was improper where he was not qualified as an expert to give such testimony and further that his testimony amounted to speculation and an improper conclusion on a legal standard.
    N.C. Gen. Stat. § 8C-1, Rule 702 states:
        If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion.

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2005). It is well established that trial courts must decide preliminary questions concerning the qualifications of experts to testify or the admissibility of expert testimony. N.C. Gen. Stat. § 8C-1, Rule 104(a) (2005). In determining the admissibility of expert testimony, the trial judge is afforded wide discretion and as such “a trial court's ruling on the qualifications of an expert or the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse ofdiscretion.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004).
    Dr. Miller is board certified as a critical care and general surgeon. He testified by way of deposition that he treated Mr. Stallings at North Carolina Baptist Hospital after the accident on 23 September 2003 and that in preparation for his deposition, he reviewed Mr. Stallings' chart, medical records, EMS transfer records from the scene of the accident to Wilkes Regional Hospital and transfer records from Wilkes Regional to North Carolina Baptist. During the deposition, Dr. Miller testified:
            Q. The _- if the jury should find from the evidence and by its greater weight that on the day of the automobile accident that is the subject of this lawsuit Mr. Stallings' vehicle collided with a line of stopped vehicles at a stoplight at an intersection in Wilkesboro and that his vehicle left no tire impressions, would you have an opinion, satisfactory to yourself and to a reasonable medical certainty based upon your knowledge of his condition, as to what could or might have caused that accident?

            A. Yes.

            Q. And what is that opinion, sir?

            A. As to__- Well, let me _- let me qualify that. He had _- based on review of the record and based on review of the referring records, it's clear that he had some event that caused him to be unable to respond. That could__- But what that was is _- is difficult or impossible to say, but it would have been a syncopal _- that's a fainting event. Other possibilities would have [been] seizure or heart attack.    

            Q. In your opinion, based upon your review of all of the medical records and your personal knowledge of the condition of Mr.Stallings, did he have either one of those three events that incapacitated him?

            A. I believe he did.

After discussing each of the three possible events which caused Mr. Stallings to be incapacitated, Dr. Miller was again asked whether, based on his review of the records, “from a medical certainty standpoint” Mr. Stallings had some type of incapacitating event that occurred prior to the accident. Dr. Miller responded in the affirmative. Dr. Miller further reiterated that Mr. Stallings was unable to move his arms or legs before the accident occurred and that such could have been caused by any of three conditions: seizure, syncopal event, or heart attack.
    Where Dr. Miller testified to his qualifications as a board- certified surgeon, the use of medical records as the basis for his opinion and opined to a reasonable degree of medical certainty that Mr. Stallings experienced one of three conditions which caused him to be incapacitated, it cannot be said that the admission of such opinion testimony was an abuse of discretion.
    N.C. Gen. Stat. § 8C-1, Rule 704 states “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” N.C. Gen. Stat. § 8C-1, Rule 704 (2005). While an expert may testify as to an ultimate issue, no opinion may be given which amounts to a legal conclusion. Williams v. Sapp, 83 N.C. App. 116, 118-20, 349 S.E.2d 304, 305-07 (1986). In Williams, this Court explained that “'the question, “Did T have capacity to make awill?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed.'” Id. at 119, 349 S.E.2d at 306.
    
In plaintiffs' brief on appeal the following portions of Dr. Miller's testimony are cited as those to which plaintiffs except:
            Q. Do you have an opinion, sir, based upon your review of the records and your knowledge of the condition of Mr. Stallings, based upon your personal inspection of him, your personal examination of him and your review of all of the medical records, as to whether Mr. Stallings suffered a sudden incapacitating event that rendered the automobile accident in question unavoidable by him?

            A. I do. I base that mostly on review of the medical record and mostly on review of the folks that spoke to him about _- at the time of the accident.

            Q. And what is that opinion, sir?

            A. That he did have some event that caused him to be incapacitated.

    While the question posed by counsel for defendant seems to seek an opinion as to a legal conclusion, Dr. Miller's answer to such question did not amount to a conclusion regarding a legal standard. Instead of stating that Mr. Stallings suffered an incapacitating event that rendered the accident unavoidable, Dr. Miller only testified that Mr. Stallings did indeed sustain an event that caused him to be incapacitated. This opinion is certainly within the bounds of permissible opinion testimony.    Plaintiffs further aver that the trial court erred in denying plaintiffs' motion for directed verdict and plaintiffs' motion for judgment notwithstanding the verdict where there was insufficient evidence.
    A motion for directed verdict under Rule 50 of the Rules of Civil Procedure presents the question of whether the evidence on the claim is sufficient to go to the jury. Dockery v. Hocutt, 357 N.C. 210, 216, 581 S.E.2d 431, 436 (2003). In ruling upon the motion, “'the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor.'” Id. at 216-17, 581 S.E.2d at 436 (citations omitted). The motion must be granted by the court where the evidence is insufficient to support a verdict in the nonmovant's favor. Id. The same standard applies to a motion for judgment notwithstanding the verdict. Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002).
    In order to prove the defense of sudden incapacitation, evidence must be presented which tends to show: “(i) the defendant was stricken by a sudden incapacitation, (ii) this incapacitation was unforeseeable to the defendant, (iii) the defendant was unable to control the vehicle as a result of this incapacitation, and (iv) this sudden incapacitation caused the accident.” Word v. Jones, 350 N.C. 557, 562, 516 S.E.2d 144, 147 (1999).
    Plaintiffs contend there was insufficient evidence as to the second element to submit the defense of sudden incapacitation tothe jury. There was evidence presented at trial that Mr. Stallings was in an automobile accident in 2000 which resulted from a syncopal episode and that less than a year before the accident involved in the instant case, in February, Mr. Stallings experienced a syncopal episode that resulted in hospitalization. The evidence further tended to show that, after the initial syncopal episode which resulted in an automobile accident, Mr. Stallings had a pacemaker installed and had no further heart problems. Also, Dr. Stutesman testified that the second syncopal episode was a result of an attempt to wean Mr. Stallings from the medication Lithium, due to a toxic interaction between Lithium and Vioxx, which was thus alleviated. Dr. Stutesman testified that in his opinion there was no reason to believe that it was unsafe for Mr. Stallings to drive and that following the installation of the pacemaker there had been no problems with loss of consciousness.
    Viewing the evidence in the light most favorable to defendant, it appears that there was sufficient evidence to submit the issue of sudden incapacitation to the jury and let the jury decide based on the conflicting evidence as to whether the incapacitation was unforeseeable to Mr. Stallings. It was an issue to be decided by the ultimate trier of fact, and therefore we find no error in the denial of both motions.
    Accordingly, the order and judgment of the trial court is free from error.
    

    No error.
    Judges CALABRIA and STROUD concur.
    Report per Rule 30(e).

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