Martin v OSI Restaurant Partners, LLC, et al

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-226 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 VERNETTA MARTIN, Plaintiff, v. Forsyth County No. 09 CVS 1319 OSI RESTAURANT PARTNERS, LLC, OUTBACK STEAKHOUSE OF FLORIDA, LLC, AND PATRICE SANFORD, Defendants. Appeal by plaintiff from order entered 23 June 2010 by Judge James M. Webb in Forsyth County Superior Court. Heard in the Court of Appeals 29 August 2011. Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiffappellant. Ellis & Winters LLP, defendants-appellants. by Thomas D. Blue, Jr., for BRYANT, Judge. Where the trial court did not abuse its discretion by denying plaintiff s motion for a partial new trial on the issue of damages incurred by defendants negligence and where the -2trial court did not abuse its discretion by denying plaintiff s motion to exclude expert testimony, we affirm. We reverse and remand the award of costs to defendants. Facts and Procedural History On 16 February 2009, Vernetta Martin (plaintiff) filed a complaint against OSI Restaurant Partners, LLC (OSI), Outback Steakhouse of (collectively February Florida, LLC defendants). 2006, she was (Outback), Plaintiff a customer and Patrice alleged of restaurant in Winston-Salem, North Carolina. Sanford that Outback on 17 Steakhouse A waitress spilled a tray containing dishes on the back of plaintiff s head, neck, right shoulder and back. Plaintiff lost consciousness and was taken ambulance. to defendant a hospital waitress, by Patrice Sanford, Plaintiff was alleged negligent and that that defendants OSI and Outback were vicariously liable for the acts of Patrice Sanford, their employee and agent. As a result of defendants negligence, plaintiff alleged the following: [plaintiff] sustained and will sustain in the future severe personal injuries including but not limited to injuries to her head, neck, right shoulder and back, permanent injuries, loss of enjoyment of life, past and future medical expenses, past and future pain and suffering, past and future loss of earnings and loss of earning capacity, all to her damage for a sum in excess of Ten Thousand Dollars ($10,000.00) -3Thereafter, plaintiff voluntarily dismissed without prejudice her action against OSI. Following a jury trial, defendants were found negligent and plaintiff was awarded $5,500.00 in damages. Plaintiff then made a motion for a partial new trial on damages only. Plaintiff also made a motion for judgment notwithstanding the verdict. After a hearing held on 14 June 2010, both motions were denied in an order defendants filed motion 23 for June 2010. costs in The the trial amount court of granted $11,090.07. Plaintiff appeals. _________________________ Plaintiff advances the following issues on appeal: whether the trial court erred by (I) denying plaintiff s motion for a partial new trial; (II) by denying plaintiff s motion to exclude the testimony of defendants medical expert; and (III) by granting defendants motion for costs. I Plaintiff first argues that because the trial court erred in denying her motion for a partial new trial, the judgment should be vacated and the case remanded for re-trial on the issue of damages. Plaintiff contends that the jury ignored the stipulation of the parties regarding past medical expenses, as -4well as, the trial court s instruction on this issue, rendering an inconsistent verdict that was not in accordance with law. A trial court s ruling on a motion for a new trial under Rule 59 is usually subject to an abuse of discretion standard. A trial court may be reversed . . . only upon a showing that its actions are manifestly unsupported by reason. Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citations omitted). On 27 April 2010, the parties in the instant case made the following stipulation to plaintiff s medical expenses: It is hereby agreed and stipulated by the parties, through counsel, that the past medical expenses of Plaintiff in this case total $110,000.00. A stipulation is a judicial admission. Such agreements and admissions are of frequent occurrence and of great value, as they dispense with proof and save time in the trial of causes. The courts recognize and enforce [stipulations] as substitutes for legal proof, and there is no good reason why they should not. Quesinberry v. Quesinberry, __ N.C. App. __, __, 709 S.E.2d 367, 371 (2011) (citations omitted). Plaintiff presented evidence that when she was discharged from the hospital on 17 February 2006, she had an acute cervical strain[, a] right shoulder contusion and a herniated -5disc with S-1 nerve root compression. The jury returned a verdict of negligence against defendants and awarded plaintiff $5,500.00 in damages for personal injury. Plaintiff s post- trial motions were denied. Plaintiff argues that our Supreme Court s holding in Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974), is controlling in the case sub judice. The law is well settled in this jurisdiction that in cases of personal injuries resulting from defendant s recover the negligence, present worth the of plaintiff all is damages naturally proximately resulting from defendant s tort. S.E.2d at 193. verdict against entitled to and Id. at 565, 206 Plaintiff urges that if she was entitled to a defendants by reason of personal injuries suffered as a result of defendants negligence, then she was entitled to all damages that the law provides in such case. Id. at 566, 206 S.E.2d at 194. Plaintiff compensatory correctly damages when states there the is general injury to rule the for person. However, we believe the effect of the stipulation is the main issue in contention and that issue is controlled by Coletrane v. Lamb, 42 N.C. App. 654, 257 S.E.2d 445 (1979). In Coletrane, the parties stipulated that the plaintiff incurred medical bills -6in the amount of $8,716.79 as a result of an auto accident, yet the jury returned a verdict of $3,215.59 in damages. 656, 257 S.E.2d at 447. Id. at The plaintiff argued that the trial court erred in denying her motion to vacate and set aside the verdict of the jury as to damages. Id. Our Court held there was no abuse of discretion as to the trial court s denial of the plaintiff s motions to set aside the verdict because: The parties stipulated plaintiff incurred medical bills in the sum total of $8,617.79. However, this stipulation did not state that such medical bills were incurred by plaintiff in the treatment of injuries resulting from defendant s negligence. There was evidence of illness of nature other than the type that defendant s negligence could have caused. Id. at 657, 257 S.E.2d at 447 (emphasis added). Similar to Coletrane, the stipulation in the instant case failed to specifically state that plaintiff s medical bills were incurred for defendant s Charles the treatment negligence. Goodno of injuries Plaintiff s (Goodno), a expert physician resulting witness, from Doctor specializing occupational and environmental medicine, testified as follows: [Defendant:] Is it your opinion that the impairment to [plaintiff s] cervical spine is a direct result of the incident at Outback Steakhouse? [Goodno:] Yes, it is. in -7[Defendant:] Is it your opinion that the impairment of [plaintiff s] lumbar spine is a direct result of the incident at Outback Steakhouse? [Goodno:] To a reasonable degree of medical certainty, no. [Defendant:] Is it your opinion that the impairment to [plaintiff s] shoulder is the direct result of the incident at Outback Steakhouse? [Goodno:] To a reason[able] medical certainty, yes. degree of . . . [Defendant:] Is it your opinion that the incident at Outback Steakhouse caused an immediate herniation and disc extrusion . . . that caused it that night? [Goodno:] I don t know. Goodno testified that none of the records he reviewed predated the 17 February 2006 incident at Outback. Defendant s expert witness, Dr. Tally Edward Lassiter, Jr. (Dr. Lassiter), testified [t]hat the injury at Outback did not cause her back problem or necessitate back surgery, [t]hat at most, [the incident at Outback] caused a transient cervical strain/sprain, stretching of the ligaments and muscles in the neck, that [plaintiff] [t]here had was no preexisting rotator cuff degenerative tear , changes and that in her -8shoulder[.] Therefore, there was significant evidence before the jury as to the causes, nature, and extent of plaintiff s injuries. Plaintiff argues that the jury ignored the stipulation of the parties regarding past medical expenses and returned a verdict that was inconsistent and not in accordance with the law. However, plaintiff fails to acknowledge that it was up to the jury to determine what amount expenses were proven as damages. of plaintiff s medical Here, based on the medical testimony before the jury, there was evidence that plaintiff s injuries were not solely caused by the incident at Outback. There was significant evidence of plaintiff s past medical history consisting of degenerative disk disease in her back and pain in her shoulders. It is the province of the jury to weigh the evidence and determine questions of fact. (citation omitted). Unlike Id. at 657, 257 S.E.2d at 447 in Robertson, the jury in the instant case did not arbitrarily ignore evidence of plaintiff s injuries; instead it appears the jury determined that plaintiff was injured as a result of defendant s negligent act at the amount of $5,500.00, and, thus, that the amount of her damages -9was much less than the stipulated amount of past medical expenses. Therefore, we hold, consistent with Coletrane, that [e]ven though, upon plaintiff s evidence, reasonable minds might well differ as to the amount of damages to which she is entitled, . . . an abuse of discretion is not manifest. S.E.2d at 447-48 (citation omitted). Id. at 658, 257 The trial court did not err by denying plaintiff s motion for a partial new trial on the issues of damages. Plaintiff s argument is overruled. II Plaintiff next argues that the trial court erred by denying her motion to exclude expert, Dr. Lassiter. the testimony of defendants medical Plaintiff asserts it was an abuse of discretion for the trial court to deny her motion because she was denied an opportunity to depose Dr. Lassiter prior to trial due to insufficient notice. In the alternative, plaintiff asserts she should have been allowed to conduct a voir dire of Dr. Lassiter outside the presence of the jury, prior to trial. [T]rial concerning the admissibility Med. courts Assocs., must qualifications of expert 187 N.C. decide of experts testimony. App. 789, preliminary to testify Hamilton 792, 654 questions v. or the Thomasville S.E.2d 708, 710 -10(2007). The motion in trial limine court seeking has wide discretion pretrial in making [a of the determination admissibility of evidence] and will not be reversed absent an abuse of discretion. Id. (citation omitted). Discovery responses pursuant to N.C. Gen. Stat. § 1A-1, Rule 26(b)(4) provides the following: Discovery of facts known and opinions held by experts . . . may be obtained only as follows: (A)(1) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. N.C.G.S. § 1A-1, Rule 26(b)(4) (2009). The goal of the discovery rules is to facilitate the disclosure, prior to trial, of any unprivileged information that is relevant and material to the lawsuit so as to permit the narrowing and sharpening of basic issues and facts to go to trial. Coffman v. Roberson, 153 N.C. App. 618, 626, 571 S.E.2d 255, 260 (2002) (citation omitted). Plaintiff filed this action for negligence on 16 February 2009. her Almost a year later, on 11 February 2010, plaintiff filed first set of interrogatories requesting information on -11witnesses defendants were expecting to call at trial. On 9 April 2010 defendants filed responses to plaintiff s first set of interrogatories, listing Dr. Lassiter as an expert witness who was expected damages. to testify as to issues of causation and Plaintiff did not depose Dr. Lassiter prior to trial. Trial commenced on 19 April 2010. On 20 April 2010 plaintiff filed a motion in limine [r]equest[ing] that Defendants expert, Talley E. Lassiter, Jr., M.D. be precluded from testifying at the trial of this case because of the late disclosure of this expert. The trial in this case is set for April 19, 2010. Defendants did not disclose Dr. Lassiter as their expert until April 9, 2010. This did not give Plaintiff s counsel an opportunity to take the deposition of Dr. Lassiter. On 26 April 2010, the trial court denied plaintiff s motion to exclude Dr. Lassiter s testimony but allowed plaintiff to voir dire Dr. Lassiter prior to his testimony. Because defendants timely entered their answers to plaintiff s first set of interrogatories and the purpose of the discovery rules was achieved, we do not believe the trial court abused its discretion by denying plaintiff s motion in limine. Further, even assuming arguendo it was an abuse of discretion to deny plaintiff s motion to exclude Dr. Lassiter s testimony, where plaintiff was unable to depose Dr. Lassiter -12prior to trial, we find plaintiff s alternative argument dispositive. Here, despite plaintiff s argument, plaintiff was allowed to conduct a voir dire of Dr. Lassiter prior to his testimony before the jury. Plaintiff cannot show an abuse of discretion. Therefore, we affirm the trial court s ruling. III In her last argument, plaintiff contends the trial court erred in granting defendants motion for costs. Specifically, plaintiff contends that expert witness fees are not recoverable where the expert witness is not under subpoena and that the costs of enlarging and mounting documents are not allowable. Defendants filed a motion for costs pursuant to N.C. Gen. Stat. § 1A-1, $11,090.07. Rule 68(a) on 7 June 2010 for a total of The motion for costs alleged that defendants had incurred witness fees in the amount of $9,083.00 which included the time reviewing the experts medical spent records. outside trial Defendants also and time spent claimed their deposition expenses as taxable including the following: courtreporting fees, expert witness appearance fees, travel expenses. The two separate depositions defendants conducted and attended -13amounted to $1,408.15. Defendants also incurred $568.92 in trial exhibit preparation costs and $30.00 for service fees. In its 20 June 2010 order on plaintiff s post-trial motions, the trial court granted defendants motion for costs in the amount of $11,090.07. At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. . . . An offer not accepted within 10 days after its service shall be deemed withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. N.C.G.S. § 1A-1, Rule 68(a) (2009). On 5 April 2010, defendants filed an offer of judgment, offering to allow judgment to be taken against them in the action, jointly and severally, in the lump sum of Eighty-Seven Thousand Five Hundred and Dollars ($87,500.00) which plaintiff did not accept. 00/100 Because the jury only returned $5,500.00 in damages, the trial court s granting of defendants motion for costs was proper pursuant to Rule 68(a). -14Plaintiff asserts that the trial court has long held that expert witness fees are not recoverable where the expert witness is not under subpoena. Plaintiff also contends that the costs of enlarging and mounting documents are not permitted pursuant to N.C. Gen. Stat. § 7A-305 which governs the costs that are assessable in civil actions. In regards to expert witness fees, N.C. Gen. Stat. § 7A305(d) states that provided by law. a court may award [w]itness fees, N.C. Gen. Stat. § 7A-305(d)(1) (2009). as If a cost is set forth in N.C. Gen. Stat. § 7A-305(d), the trial court is required to assess the item as costs. Springs v. City of Charlotte, __ N.C. App. __, __, 704 S.E.2d 319, 328 (2011) (citation omitted). not, however, be read N.C. Gen. Stat. § 7A-305(d) may alone, but rather must be read in conjunction with N.C. Gen. Stat. § 7A-314 (2009), which governs fees for witnesses. Id. at __, 704 S.E.2d at 327. Pursuant to N.C.G.S. § 7A-314 the cost of an expert witness cannot be taxed unless the witness has been subpoenaed. Jarrell v. Charlotte- Mecklenburg Hosp. Auth., __ N.C. App. __, __, 698 S.E.2d 190, 194 (2010) (citation omitted). We believe that N.C. Gen. Stat. § 7A-305(d)(11) and N.C. Gen. Stat. § 7A-314 can both be given effect. Springs, __ N.C. App. at __, 704 S.E.2d at 328. -15In the plaintiff present whether case, he was when Dr. subpoenaed Lassiter was asked by to to court, he come replied, I don t know that I ve seen a subpoena, to be honest with you. Where the record fails to show that the expert witnesses were testifying pursuant to a subpoena, costs should not be awarded. Coffman, 153 N.C. App. at 628, 571 S.E.2d at 261 (citation omitted). Here, because the record does not show Dr. Lassiter was testifying pursuant to a subpoena, the trial court erred by awarding costs for defendants expert witness. Plaintiff contends that under N.C.G.S. § 7A-305(d), trial exhibit preparation costs are not enumerated. In North Carolina costs are taxed on the basis of statutory authority. [N.C.G.S. § 620] G.S. § 7A-305 sets forth certain costs which may be assessed in a civil action. . . . Since the enumerated costs sought by [defendants] are not expressly provided for by law, it was within the discretion of the trial court whether to award them. Plaintiff[] has shown no abuse of discretion. Smith v. Underwood, 127 N.C. App. 1, 12-13, 487 S.E.2d 807, 815 (1997). However, here, as in Smith, plaintiff fails to show an abuse of discretion by the trial court in allowing recovery of these costs. -16In light of the foregoing, we reverse the award of costs for defendant s expert witness only and remand reconsideration in light of the controlling statutes. Affirmed in part; reversed and remanded in part. Chief Judge MARTIN and Judge CALABRIA concur. Report per rule 30(e). for

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