Opinion
COA23-142
11-07-2023
JACKIE E. SANDERFORD, JR., Plaintiff, v. ZYLPHIA A. DARK, Defendant.
Vincent-Pope Law Firm PA, by Judith Vincent-Pope, for plaintiff-appellee. Mcangus Goudelock &Couie, PLLC, by Luke A. Dalton, for unnamed defendant-appellant Progressive Southeastern Insurance Company.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 19 September 2023.
Appeal by unnamed defendant from a judgment entered on 7 March 2022 and two orders entered on 8 July 2022 by Judge Alyson Adams Grine in Chatham County No. 20CVS341 Court.
Vincent-Pope Law Firm PA, by Judith Vincent-Pope, for plaintiff-appellee.
Mcangus Goudelock &Couie, PLLC, by Luke A. Dalton, for unnamed defendant-appellant Progressive Southeastern Insurance Company.
FLOOD, Judge.
Progressive Southeastern Insurance Company ("Unnamed Defendant") appeals from the trial court's: judgment against Zlyphia Dark ("Defendant") in the amount of $193,124; order denying Unnamed Defendant's Motion in Limine; and order denying Unnamed Defendant's Motion for a New Trial. For the following reasons, we affirm.
I. Facts and Procedural Background
On the morning of 1 June 2017, Jackie E. Sanderford ("Plaintiff") was driving a tractor-trailer when Defendant failed to yield, pulling her car out in front of Plaintiff, causing the two automobiles to collide. Defendant admitted liability, and her motor vehicle liability carrier, Unnamed Defendant, tendered its policy limits of $30,000. Plaintiff entered into a Covenant Not to Enforce Judgment and put Unnamed Defendant on notice that he would be seeking underinsured motorist coverage. Unnamed Defendant and Plaintiff could not agree on the value of Plaintiff's damages so the parties moved forward with litigation.
On 28 May 2020, Plaintiff filed a Complaint alleging that "as a result of the collision, [he] received serious, painful, and permanent bodily and psychological injuries, and incurred medical and other expenses." Unnamed Defendant filed its Answer along with Interrogatories and Requests for Production. Among those Interrogatory requests, Unnamed Defendant asked Plaintiff for the following:
4. Identify each person who you expect to call as an expert witness at the trial of the action, and state the subject matter on which each of said experts is expected to testify and the substance of the facts and opinions to which the expert is excepted to testify, and a summary of the grounds for each opinion.
5. Identify or attach each and every document which summarizes, sets forth, gives any indication of, or bears
any other relationship to any of the said expert witnesses and/or their opinions, including any document upon which said expert may fully or in part base an opinion.
On 31 August 2020, Plaintiff responded to Unnamed Defendant's requests. In response to Interrogatory 4, Plaintiff noted he intended to "call any health care providers who have provided care and/or treatment to [him] and elicit any opinions regarding his injuries, care, treatment, causation and damages." Further, Plaintiff objected to Interrogatory 5 on the basis of it being "overly broad." Plaintiff indicated that answers to both Interrogatories 4 and 5 would be "supplemented when additional information [was] obtained."
Almost one year later, on 7 July 2021, Plaintiff served Unnamed Defendant with his "designation of experts," which included Haiyoung Liu, Ph.D. ("Dr. Liu"). Plaintiff proffered Dr. Liu as an expert in "all aspects of economics," noting that Plaintiff expected Dr. Liu's testimony to revolve around the calculation of Plaintiff's lost income due to his injuries and ongoing inability to work. Plaintiff then stated "[t]he foregoing is not expected to be an exhaustive summary of Dr. Liu's opinions in this case. Discovery is ongoing, and Plaintiff anticipates that Dr. Liu may have additional opinions as discovery progresses. Dr. Liu's opinions may be supplemented, modified, or amended as new or additional information is provided."
On 10 August 2021, counsel for Unnamed Defendant requested that Plaintiff supplement his response to Interrogatories 4 and 5 with respect to Dr. Liu. Counsel for Plaintiff responded by reiterating the objection to Interrogatory 5 and claiming "[t]here is no additional information."
On 16 December 2021, Plaintiff supplemented his answers to Unnamed Defendant's initial Interrogatories; however, the supplemental information provided did not include anything related to Dr. Liu's testimony.
Prior to trial beginning on 18 January 2022, Unnamed Defendant filed a Motion in Limine to exclude Dr. Liu's testimony on the basis of Plaintiff's failure to seasonably disclose requested information. Ultimately, the trial court denied Unnamed Defendant's motion to exclude Dr. Liu's testimony, but limited the scope of Dr. Liu's testimony to only what was stated in the expert designation and response to Interrogatories. The trial court further noted that "if there is any surprise or a new document that is introduced that [Unnamed Defendant] has not had any opportunity to review . . . then I will hear an objection to that at the time."
On the evening of 23 January 2022, Plaintiff's counsel emailed Unnamed Defendant's counsel with attached documents that had been received earlier that day from Dr. Liu. The attachments were reports generated by Dr. Liu expounding on profit loss comparisons, consumer price indexes, estimated loss of potential earnings, and potential future losses. The next day, counsel for Unnamed Defendant moved to exclude Dr. Liu's opinions on the basis that including such information would run afoul of Rule 26 of the North Carolina Rules of Civil Procedure. Ultimately, the trial court overruled the objection "given that the defense did have notice of the identity of the expert in July 2021," and because the sources used to generate Dr. Liu's reports were "publicly available." While Dr. Liu was permitted to testify, the tables of data and calculations he provided were not admitted into evidence.
The jury returned a verdict in favor of Plaintiff in the amount of $193,124, and on 7 March 2022, the trial court entered its judgment. Unnamed Defendant filed a Motion for Judgment Notwithstanding the Verdict and a Motion for a New Trial, both of which were denied. On 1 August 2022, Unnamed Defendant timely filed notice of appeal.
II. Jurisdiction
Appeal lies of right to this Court from the final judgment of a superior court. N.C. Gen. Stat. § 7A-27(b) (2021).
III. Analysis
On appeal, Unnamed Defendant makes two contentions: first, that the trial court abused its discretion by denying its Motion in Limine to exclude Dr. Liu's testimony, and second, by denying its Motion for a New Trial. For the following reasons, we disagree and affirm the trial court's judgment and orders.
A. Motion in Limine
Unnamed Defendant begins by arguing the trial court abused its discretion by denying its Motion in Limine because it allowed Dr. Liu to testify in violation of Rule 26 of the North Carolina Rules of Civil Procedure.
1. Standard of Review
On review, this Court considers a trial court's refusal to exclude evidence based on discovery violations for abuse of discretion. Midkiff v. Compton, 204 N.C.App. 21, 24, 693 S.E.2d 172, 175 (2010). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Further, "[a] motion in limine seeks pretrial determination of the admissibility of evidence proposed to be introduced at trial; its determination will not be reversed absent a showing of an abuse of the trial court's discretion." Warren v. Gen. Motors Corp., 142 N.C.App. 316, 319, 542 S.E.2d 317, 319 (2001) (citing Nunnery v. Baucom, 135 N.C.App. 556, 566, 521 S.E.2d 479, 486 (1999)). Finally, on appeal, a trial court's interpretation of a statute is reviewed de novo. Myers v. Myers, 269 N.C.App. 237, 241, 837 S.E.2d 443, 448 (2020).
2. Rule 26
Unnamed Defendant alleges Plaintiff violated Rule 26(b)(4)(a), (e), (g), and (f) by failing to seasonably supplement his response to Interrogatories involving Dr. Liu, and thus, Unnamed Defendant was unfairly prejudiced. Further, Unnamed Defendant urges this Court to interpret the provisions in Rule 26(b)(4)(a)(3) in pari materia with the rest of Rule 26 to find that there exists a mandate for the timeliness of pre-trial disclosures.
To support its proposition that this Court should consider Rule 26 in pari materia, Unnamed Defendant cites to this Court's 2020 decision in Myers v. Myers, a case in which the defendant hired an expert one week prior to trial and did not disclose the identity of the expert until one day before trial. 269 N.C.App. at 242, 837 S.E.2d at 448. This Court reasoned that, because the legislature had recently made amendments to Rule 26 that "incorporated the concept of required disclosure of expert witnesses but set no procedure or timing for disclosure," Rule 26(b)(4)(a)(1) was ambiguous. Id. at 247, 837 S.E.2d at 451.
It is true that, when statutes are ambiguous, "our Court must determine the legislature's intent[,]" construing the words together and harmonizing the provisions wherever possible. State v. Mayo, 256 N.C.App. 298, 301, 807 S.E.2d 654, 657 (2017). Our Court in Myers conceded that the absence of a procedure or timeframe for making such disclosure of an expert's identity renders Rule 26(b)(4)(a)(1)'s requirements "vague," but it did not conclude that Rule 26, taken in pari materia, mandates a required timeframe for pre-trial disclosures-as Unnamed Defendant posits. See Myers, 269 N.C.App. at 249, 837 S.E.2d at 452. Instead, this Court's analysis in Myers clarifies a key point in the case before us: the trial court is vested with the inherent authority and discretion to determine what constitutes an untimely disclosure and the appropriate remedy for such violation. Id. at 255, 837 S.E.2d at 456. While a party's duty to timely disclose information pertaining to expert witnesses under Rule 26 was previously unclear, this Court's holding in Myers clarified any ambiguity.
Put simply, Unnamed Defendant asks this Court to cure the lack of a specified timeframe in which discovery of experts must happen pursuant to Rule 26(b)(4)(a) by applying the mandates from other subsections of Rule 26 to subsection (b)(4)(a). Our Court in Myers, however, explicitly stated that Rule 26 "does not set a particular time or method for disclosure" and therefore the trial court must make a "discretionary determination based on the particular circumstances." Id. at 255, 837 S.E.2d at 456. Because our holding in Myers clarifies any lingering ambiguity regarding timeliness of disclosures, we reject Unnamed Defendant's argument that the statute should be construed in pari materia such that information related to expert witnesses must be disclosed at least ninety days prior to trial.
Generally, Rule 26 of the North Carolina Rules of Civil Procedure governs pretrial discovery. See generally N.C. R. Civ. P. 26. At issue in the case sub judice is Rule 26(b) titled "Discovery scope and limits." N.C. R. Civ. P. 26(b). For the sake of clarity, we will proceed in analyzing each relevant subsection of Rule 26 individually.
i. 26(b)(4)(a)(3)
Rule 26(b)(4) begins by stating that obtaining facts and opinions held by experts may only be done as provided by subdivision (a). N.C. R. Civ. P. 26(b)(4). (emphasis added). The precise language of Rule 26(b)(4)(a)(3), addressing "Witnesses not providing expert reports" is as follows:
Unless otherwise stipulated to by the parties, or ordered by the court, 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 pursuant to Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence 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. R. Civ. P. 26(b)(4)(a)(3).
The language of the statute makes clear two things: first, Rule 26(b)(4)(a) enumerates the only acceptable methods of obtaining expert facts and opinions, and second, the only information required when answering an interrogatory regarding an expert witness who is "not providing expert reports" is the identity of the expert witness; "the subject matter on which the expert is expected to testify pursuant to Rule 702, Rule 703, or Rule 705 of the North Carolina Rules of Evidence"; "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. R. Civ. P. 26(b)(4)(a)(3).
Here, our review of the Record reveals Plaintiff comported with all of Rule 26(b)(4)(a)'s requirements when he sent the designation of experts to Unnamed Defendant on 7 July 2021-a full six months before trial. Plaintiff identified Dr. Liu as an expert witness and stated the subject matter of his testimony (opinions on lost income, earning capacity, and economic impacts on Plaintiff's business); the substance of the facts (economic losses faced by Plaintiff); and the grounds for his opinions (tax records and other documents of record). Additionally, Plaintiff stated "[t]he foregoing is not expected to be an exhaustive summary of Dr. Liu's opinions in this case .... Dr. Liu's opinions may be supplemented, modified, or amended if new or additional information is provided." Further, Plaintiff's response to Unnamed Defendant's interrogatory regarding his expert witness essentially mirrored the wording of Unnamed Defendant's response to Plaintiff's interrogatory seeking the same information.
The more difficult issue in this case is the timing of the supplementation of the response, as Plaintiff did not provide any detailed information until immediately before trial. While all parties had known for months that Dr. Liu would be called as an expert witness, his reports and data sets were provided the night before he was set to testify. Plaintiff immediately shared those reports and data sets with counsel for Unnamed Defendant, and further, Plaintiff did not offer any of the reports or data sets into evidence. Rather than rely on the reports he created, Dr. Liu during cross-examination referenced mathematical calculations from spreadsheets prepared by an accountant who was called as Plaintiff's expert witness. Unnamed Defendant has not raised any objection to the discovery responses as to the accountant or the spreadsheets prepared by that expert witness.
Because some of the sources of the information sought by Unnamed Defendant were publicly available and the rest of the information was provided in response to discovery regarding Plaintiff's other expert witness, the accountant, it cannot be said that the trial court abused its discretion when concluding Unnamed Defendant was not prejudiced by Plaintiff's disclosures as required under Rule 26(b)(4)(a)(3).
ii. 26(e)
Rule 26(e) governs the supplementation of discovery responses and states the following:
A party is under a duty seasonably to supplement the party's response with respect to any question directly addressed to (i) the identity and location of persons having knowledge of discoverable matters, and (ii) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony.N.C. R. Civ. P. 26(e)(1).
To support its contention that Plaintiff violated Rule 26(e)(1), Unnamed Defendant likens itself to the plaintiffs in Willoughby v. Kenneth W. Wilkins, M.D., P.A., a case in which this Court considered whether the plaintiff was prejudiced by their inability to adequately prepare for cross examination of the defendants' expert witness when the identity of that witness was revealed just ten days before trial was set to begin. 65 N.C.App. 626, 642, 310 S.E.2d 90, 100 (1983). In its reasoning, the Willoughby Court stated:
Clearly, the opportunity for plaintiff's counsel to depose defendants' expert witnesses only five days before trial, one day before trial, and the evening of the second day of trial was not sufficient to allow plaintiff's counsel a fair opportunity to prepare. The defendants' supplemental answers identifying the defendants' experts came so close to the time of trial that plaintiff was prevented from preparing adequately for cross examination of defendants' expert witness.Id. at 100-01, 310 S.E.2d at 643.
The facts of Willoughby are distinguishable from the case at bar for two reasons. First, in Willoughby, the plaintiff learned the identity of the defendants' expert witness just ten days before trial, while here, Unnamed Defendant knew Dr. Liu's identity for six months before trial commenced. Second, unlike in Willoughby, the "basis for the opinion evidence that is in question" in this case was either provided through the accountant or was publicly available for months leading up to the trial. Because the sources relied on by Dr. Liu were either publicly available or provided in discovery as to the Plaintiff's accountant prior to trial, the trial court did not abuse its discretion when concluding Unnamed Defendant was not prejudiced by Plaintiff's responses to requests for supplementation of discovery under 26(b)(4)(e).
iii. 26(b)(4)(g)
Unnamed Defendant further contends Plaintiff violated Rule 26(b)(4)(g) when he failed to "seasonably supplement his interrogatory response," resulting in its prejudice. The language of Rule 26(b)(4)(g) states "[t]he parties must supplement these disclosures when required under subsection (e) of this rule." N.C. R. Civ. P. 26(b)(4)(g). As discussed above, Unnamed Defendant had access to Plaintiff's tax returns and other publicly available information upon which Dr. Liu's calculations were made well before the trial was set to begin. Thus, Unnamed Defendant cannot show it was prejudiced by Plaintiff's failure to timely supplement interrogatory responses, and the trial court did not abuse its discretion when concluding no prejudice existed under N.C. R. Civ. P. 26(b)(4)(g). See N.C. R. Civ. P. 26(b)(4)(g).
iv. 26(b)(4)(f)
Finally, Unnamed Defendant argues the "statutory language in Rule 26(b)(4)(f), by use of the word 'shall,' clearly mandates that parties provide the substance of expert opinions and grounds therefore at least ninety days prior to trial." Having concluded that the designation of expert witness Dr. Liu fell under the purview of Rule 26(b)(4)(a)(3), and that Plaintiff complied with the rule's mandate- because there was no agreement to submit written reports, and the interrogatory was conducted at least ninety days before the trial-Rule 26(b)(4)(f) is not applicable to the case at bar.
Given the aforementioned facts, we hold that Unnamed Defendant cannot show the trial court's denial of its Motion in Limine was "manifestly unsupported by reason." See Hennis, 323 N.C. at 285, 372 S.E.2d at 527. Thus, we hold the trial court did not abuse its discretion and affirm the trial court's denial of Unnamed Defendant's Motion in Limine.
B. Motion for a New Trial
Unnamed Defendant next argues the trial court abused its discretion by denying Unnamed Defendant's Motion for a New Trial on the grounds that Dr. Liu's testimony was improperly admitted. We disagree.
"[A]n appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge." Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982).
As we concluded above, the trial court did not abuse its discretion when it allowed Dr. Liu to testify; therefore, the trial court correctly denied Unnamed Defendant's Motion for a New Trial. See Worthington, 305 N.C. at 482, 290 S.E.2d at 602.
IV. Conclusion
For the aforementioned reasons, we hold the trial court did not abuse its discretion when denying either Unnamed Defendant's Motion in Limine or Motion for a New Trial. Accordingly, we affirm the trial court's judgment and orders.
AFFIRMED.
Chief Judge STROUD and Judge MURPHY concur.
Report per Rule 30(e).