Opinion
No. COA11–1008.
2012-06-5
Marie Ann SWINGLE, Plaintiff, v. Jessama Emelene ALLENDER, Defendant.
Ferikes & Bleynat, PLLC, by Mary March Exum, for plaintiff. Robinson Elliott & Smith, by William C. Robinson and Caitlin A. Carson, for defendant.
Appeal by plaintiff from judgment entered 6 August 2010 and order entered 17 December 2010 by Judge James L. Baker in Buncombe County Superior Court. Heard in the Court of Appeals 23 February 2012. Ferikes & Bleynat, PLLC, by Mary March Exum, for plaintiff. Robinson Elliott & Smith, by William C. Robinson and Caitlin A. Carson, for defendant.
ELMORE, Judge.
Marie Ann Swingle (plaintiff) and Jessama Emelese Allender (defendant) were in a car accident admittedly caused by defendant's negligence. However, a jury found that plaintiff was not injured as a proximate cause of defendant's negligence, and therefore plaintiff recovered nothing from defendant. Plaintiff appeals both that judgment and an order denying her motion for new trial. After careful consideration, we find no error in the trial court's judgment and order.
On 30 December 2003, defendant drove into plaintiff's lane of travel and hit plaintiff's car with her own. Plaintiff testified that, after she exited the car following the accident, she “felt a burst of heat go up the back of [her] neck because [her] head jerked really hard.” She felt “a good bit of neck pain” and was dizzy, “like somebody hit [her] at the back of the head like [she] had been smacked at the back of the head.” Although the 911 operator asked plaintiff multiple times if she needed an ambulance, plaintiff elected not to call an ambulance or go to the hospital immediately following the collision. However, after driving herself to her office, plaintiff did call a physician, Dr. Maxwell, and obtained a prescription for pain medication. Dr. Maxwell, an orthopedist, had performed neck surgery on plaintiff in 1996.
A week after the accident, plaintiff first saw Dr. Maxwell for the injuries she claimed to have sustained in the collision. Plaintiff was not satisfied with Dr. Maxwell's treatment, so, on 12 March 2004, she saw Dr. Larry Schulhof, a neurosurgeon. She had neck, shoulder, arm, back, and leg pain, though Dr. Schulhof testified that the “main problem” was that she was having pain in her neck and down her arm, with numbness, tingling, and a perceived weakness in the arm. After three months of more conservative treatment, Dr. Schulhof performed a surgery to address a disc herniation at the C–6 and C–7 vertebrae. These discs were adjacent to the cervical discs that Dr. Maxwell had surgically fused in 1996.
Plaintiff and several other witnesses testified that, following the car accident, plaintiff suffered significantly decreased mobility and strength, as well as chronic pain and difficulty concentrating. As a result, she had to sell her successful financial planning business and could no longer actively participate in her son's activities. Plaintiff now lives on Social Security disability payments and describes herself as a “recluse” who can no longer engage in the activities that she previously enjoyed.
In 2009, plaintiff sued defendant for negligence, alleging that defendant's negligence was the proximate cause of her injuries. She sought both compensatory and punitive damages. However, on its verdict sheet, the jury unanimously concluded that plaintiff was not injured by defendant's negligence. Plaintiff moved for a new trial, arguing that the jury's finding was “in manifest disregard of the instructions of the Court, with the verdict being contrary to law.” The trial court denied plaintiff's motion. Plaintiff now appeals both the order denying her motion for a new trial and the judgment itself, which she argues was in error because the trial court improperly admitted evidence about her prior medical history.
At trial, defense counsel questioned plaintiff about her prior medical history, which included several neck injuries and the 1996 cervical fusion surgery. In 1990, plaintiff was involved in a head-on collision, which caused neck strain at C5–6. She experienced neck and arm pain intermittently until 1996. In 1996, plaintiff fell over a log, which caused the disc at C5–6 to rupture, leading to the fusion surgery. The 1996 surgery resolved plaintiff's intermittent neck and arm pain; she had full range of motion in her neck. Later, in 1996, plaintiff was involved in another car accident, which one of her doctors noted had caused a “cervical sprain and strain.”
Defense counsel then began to ask her about another 1996 incident, in which plaintiff became tangled up in a dog run. Plaintiff asserted that this incident occurred after her surgery, but Dr. Maxwell's notes indicated that the incident occurred just prior to her surgery (“About a week after the tree incident she got tangled up in her dog run and fell and struck the back of her neck again on the wire. This exacerbated her symptoms.”). Plaintiff asserted throughout the trial that Dr. Maxwell kept inaccurate medical records, which was one reason she left his care for Dr. Schulhof's. She and defense counsel argued back and forth about whether the dog run incident had happened before or after her first neck surgery. After several exchanges, plaintiff's counsel objected:
I'm going to object on the increasingly attenuated lack of relevance of any of this to the issues that we are here for. This has been beaten to death throughout the course of this. There's nothing about a dog run that has been shown up in any time since a surgery that was successful. It's not an issue to the controversy. This is cumulative, and it is not helpful to the jury and it faces to confuse the issues.
The trial court overruled the objection, explaining, “Questions about incidents in the past leading up to the accident would have to be considered relevant, so the objection is overruled.” Plaintiff's counsel objected a second time when defense counsel asked plaintiff about Dr. Maxwell's poor recordkeeping. Again, plaintiff's counsel asserted, “The relevance of this is very attenuated and it's cumulative and it's gone on forever.” The trial court again overruled the objection, noting, “I don't know what the question is going to be, so overruled at this point.” Defense counsel then questioned plaintiff about falling down an embankment in 2001 and an MRI taken of her neck in 2002.
On appeal, plaintiff argues that the trial court erred by admitting this evidence because her previous medical condition was not relevant and its prejudicial effect outweighed any probative value. We disagree.
We review a trial court's decision to admit evidence for abuse of discretion. Jackson v. Carland, 192 N.C.App. 432, 439, 665 S.E .2d 553, 557–58 (2008). “A trial court abuses its discretion when its decision lacks any basis in reason.” Id. (citation and quotations omitted).
Here, we cannot conclude that the trial court abused its discretion by admitting the objected-to evidence. Dr. Schulhof had already testified, without objection, about the 1990 car accident, the 1996 surgery, the 1996 car accident, the 1996 fall over the log, the 2001 fall down the embankment, the 2002 cervical MRI, and Dr. Maxwell's records. Thus, these events from plaintiff's prior medical history had already been admitted into evidence—without objection—by the time she was cross-examined about them. See In re Yopp, ––– N.C.App. ––––, ––––, 720 S.E.2d 769, 773 (2011) (“Our Supreme Court has stated that ‘[a]n exception is waived when other evidence of the same import is admitted without objection.’ ”) (quoting Rushing v. Polk, 258 N.C. 256, 260, 128 S.E.2d 675, 679 (1962)). On cross-examination, plaintiff was merely asked to provide additional information about events that the jury had already heard about. The trial court did not abuse its discretion in admitting her testimony.
Plaintiff next argues that the trial court erred by denying her motion for a new trial because the jury had committed a “palpable error” by finding that plaintiff was not injured by defendant's negligence. We disagree.
A party may obtain a new trial pursuant to Rule 59 of our Rules of Civil Procedure “either for errors of law committed during trial or for a verdict not sufficiently supported by the evidence.” Eason v. Barber, 89 N.C.App. 294, 297, 365 S.E.2d 672, 674 (1988) (citation omitted). We review the trial court's denial of plaintiff's motion for a manifest abuse of discretion. Mumford v. Hutton & Bourbonnais Co., 47 N.C.App. 440, 445, 267 S.E.2d 511, 514 (1980). Here, no such manifest abuse of discretion is apparent. A reasonable jury could conclude from the evidence presented that plaintiff's injuries were not proximately caused by her collision with defendant, given plaintiff's history of previous neck injuries and surgery. As we held earlier, the trial court did not abuse its discretion by admitting plaintiff's previous medical history. Accordingly, the trial court properly denied plaintiff's motion.
No error. Judges STEELMAN and STROUD concur.
Report per Rule 30(e).