Powell v. Christopherson ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-659
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
SHERIE POWELL,
Plaintiff,
v. Wake County
No. 12 CVS 16552
EMILY CHRISTOPHERSON and UNNAMED
INSURANCE COMPANY,
Defendants.
Appeal by Defendant Emily Christopherson from judgment
entered 3 December 2013 and order entered 5 March 2014 by Judge
Robert F. Johnson in Wake County Superior Court. Heard in the
Court of Appeals 20 October 2014.
Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney,
for Plaintiff.
Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall and
Michael J. Crook, for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
On 29 July 2007, Defendant Emily Christopherson was
distracted as she approached an intersection and failed to see
the red traffic light for her direction of travel. As a result,
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Defendant’s car collided with the car driven by Plaintiff Sherie
Powell who had a green traffic signal for her direction of
travel and was driving through the intersection. Immediately
after the collision, Plaintiff complained of left shoulder and
neck pain. X rays taken during a hospital evaluation were
negative, and Plaintiff was released the same day. Plaintiff
later saw a chiropractor, who provided treatment in the form of
mechanical traction and a chiropractic adjustment of her neck.
At the time of the collision, Plaintiff worked full time
for the United States Postal Service at a mail-handling
facility. She continued to work without any restrictions until
an on-the-job accident on 3 December 2007 in which Plaintiff
injured her left shoulder. At a 14 December 2007 visit to
Raleigh Orthopaedic Clinic, Plaintiff reported pain and burning
in areas of her shoulder and neck. Dr. Hadley Callaway
evaluated Plaintiff for a rotator cuff injury and prescribed a
brief course of physical therapy.
In January 2009, Plaintiff presented to Dr. Callaway with
symptoms the doctor believed were likely related to a cervical
spine issue, rather than to Plaintiff’s work injury. A cervical
magnetic resonance imaging (“MRI”) study revealed a Chiari I
malformation at the base of Plaintiff’s skull and an
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accompanying spinal cord syrinx. Dr. Callaway immediately
referred Plaintiff to Dr. Peter Grossi, a neurosurgeon, who
ultimately performed three surgical procedures on Plaintiff.1
Plaintiff continued to experience various residual symptoms,
including headaches and pain in her left shoulder and behind her
left ear. As a result, on 30 July 2009, Dr. Grossi referred
Plaintiff to a neurologist, Dr. Timothy Collins, who specializes
in pain management and treating headaches. Dr. Collins began
treating Plaintiff in September 2009, and they continued regular
appointments up until the time of trial. Dr. Collins testified
that, “[r]eviewing [Plaintiff’s medical] records led me to have
an opinion that her accident was the most likely trigger for the
symptoms she had that would have led to discovery of the Chiari
malformation.”
On 28 November 2012, Plaintiff filed a complaint alleging
that Defendant’s negligence caused the 29 July 2007 car
1
Dr. Grossi testified that a Chiari I malformation is a
congenital anatomical abnormality in which the cerebellum, which
is located at the base of the brain, extends below the skull
into the space where the brain joins the spinal cord. A Chiari
I malformation is usually asymptomatic for many years, but often
begins to cause neurological symptoms either in adolescence or
in the mid- to late 30s. A syrinx is a balloon of spinal fluid
which collects inside the spinal cord as a result of a Chiari I
malformation. A syrinx creates outward pressure on the spinal
cord which results in neurologic deficits.
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collision which in turn proximately caused Plaintiff to suffer
permanent injuries, including her spinal condition and
associated pain and suffering. Defendant stipulated that her
negligence had caused the collision, but disputed Plaintiff’s
allegation that the collision had proximately exacerbated or
activated her pre-existing congenital Chiari I malformation and
syrinx.
The matter came on for trial in November 2013. At the
close of Plaintiff’s evidence, Defendant moved for a directed
verdict in her favor on the issue of whether Defendant’s
negligence had caused Plaintiff’s injuries. The trial court
denied that motion, and Defendant presented her case. Defendant
then renewed her motion for directed verdict which the trial
court again denied. Ultimately, the jury returned a verdict in
favor of Plaintiff, awarding $500,000.00 in damages for personal
injury. The trial court entered judgment for Plaintiff on 3
December 2013. On 6 December 2013, Defendant moved for judgment
notwithstanding the verdict (“JNOV”), or, in the alternative,
for a new trial, which the trial court denied following a
hearing. The ruling was reduced to writing and filed on 5 March
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2014. From the judgment entered 3 December 2013 and the order
denying her motion for JNOV, Defendant appeals.2
Discussion
On appeal, Defendant argues that the trial court erred in
(1) denying her motions for a directed verdict and for JNOV, and
refusing to permit Defendant to (2) cross-examine Plaintiff
about her admitted marijuana use and to (3) impeach Plaintiff
with her prior inconsistent statements. We find no error.
I. Motions for directed verdict and JNOV
In determining the sufficiency of the
evidence to withstand a motion for a
directed verdict, all of the evidence which
2
Defendant filed her notice of appeal on 11 February 2013,
after entry of the judgment, but before the trial court’s
written order denying her motion for JNOV was entered. A party
is “entitled to file and serve written notice of appeal any time
after [a] judgment [is] rendered in open court.” Merrick v.
Peterson, 143 N.C. App. 656, 660, 548 S.E.2d 171, 174, disc.
review denied, 354 N.C. 364, 556 S.E.2d 572 (2001); see also
Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735,
738 (holding that rendering of an order denying a motion for
JNOV “commences the time when notice of appeal may be taken by
filing and serving written notice, while entry of an order
initiates the thirty-day time limitation within which notice of
appeal must be filed and served”) (citations omitted; emphasis
in original), disc. review denied, 347 N.C. 263, 493 S.E.2d 450
(1997). Further, Defendant’s notice of appeal specifically
designates that appeal is taken from both the judgment and the
order denying her motion for JNOV, complying with N.C.R. App. P.
3(d) and vesting this Court with jurisdiction to consider the
judgment and the order. See Yorke v. Novant Health, Inc., 192
N.C. App. 340, 347, 666 S.E.2d 127, 133 (2008), disc. review
denied, 363 N.C. 260, 677 S.E.2d 461 (2009).
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supports the non-movant’s claim must be
taken as true and considered in the light
most favorable to the non-movant, giving the
non-movant the benefit of every reasonable
inference which may legitimately be drawn
therefrom and resolving [any]
contradictions, conflicts, and
inconsistencies in the non-movant’s favor.
Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710
(1989) (citation omitted). “A motion for either a directed
verdict or JNOV should be denied if there is more than a
scintilla of evidence supporting each element of the non-
movant’s claim.” Springs v. City of Charlotte, 209 N.C. App.
271, 275, 704 S.E.2d 319, 323 (2011) (citations and internal
quotation marks omitted; emphasis added). “On appeal the
standard of review for a [ruling on a motion for] JNOV is the
same as that for a directed verdict, that is whether the
evidence was sufficient to go to the jury.” Tomika Invs., Inc.
v. Macedonia True Vine Pentecostal Holiness Church of God, Inc.,
136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000) (citation
omitted). “Proximate cause is ordinarily a jury question.”
Turner, 325 N.C. at 162, 381 S.E.2d at 712 (citations omitted).
Because Defendant stipulated to her negligence in this
case, the primary question before the jury was whether that
negligence was the proximate cause of Plaintiff’s injuries.
Defendant contends that Dr. Collins’ expert medical opinion that
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the car collision caused the onset of Plaintiff’s symptoms was
not competent evidence and that, as a result, there was
insufficient evidence of causation to send the case to the jury.
Specifically, Defendant asserts that Dr. Collins’ causation
opinion was improperly based on (1) mere speculation or (2)
solely a temporal relationship.
Due to the complexities of medical science,
particularly with respect to diagnosis,
methodology and determinations of causation,
this Court has held that where the exact
nature and probable genesis of a particular
type of injury involves complicated medical
questions far removed from the ordinary
experience and knowledge of laymen, only an
expert can give competent opinion evidence
as to the cause of the injury. However,
when such expert opinion testimony is based
merely upon speculation and conjecture, it
can be of no more value than that of a
layman’s opinion. As such, it is not
sufficiently reliable to qualify as
competent evidence on issues of medical
causation. Indeed, this Court has
specifically held that an expert is not
competent to testify as to a causal relation
which rests upon mere speculation or
possibility.
Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d
912, 915 (2000) (citations and internal quotation marks
omitted).
Further, “[i]n a case where the threshold question is the
cause of a controversial medical condition, the maxim of post
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hoc, ergo propter hoc[] is not competent evidence of causation.”
Id. at 232, 538 S.E.2d at 916 (internal quotation marks
omitted). “The maxim post hoc, ergo propter hoc[] denotes the
fallacy of confusing sequence with consequence, and assumes a
false connection between causation and temporal sequence.” Id.
(citation, internal quotation marks, and ellipsis omitted).
Where such a temporal relationship is the sole basis for a
physician’s opinion on causation, the physician’s causation
opinion is not competent evidence. See id. For example, in
Young, our Supreme Court held that a physician’s expert medical
opinion regarding causation was not competent where that
physician’s
total reliance on this premise [post hoc,
ergo propter hoc wa]s shown near the end of
his deposition testimony wherein he states:
“I think that she does have fibromyalgia and
I relate it to the accident primarily
because, as I noted, it was not there before
and she developed it afterwards. And that’s
the only piece of information that relates
the two.”
Id. (emphasis added); see also Carr v. Dep’t of Health and Human
Servs., 218 N.C. App. 151, 156, 720 S.E.2d 869, 874 (2012)
(rejecting an argument asserting improper reliance on post hoc,
ergo propter hoc where the physician testified that, “although
‘a lot of it is based on timing,’ his opinion was based on the
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mechanism of injury as well as the temporal relationship between
the incident and symptoms”).
When asked about the basis of his opinion regarding
causation, Dr. Collins testified:
Q. Okay. How did you come to an opinion
as to whether or not [Plaintiff] incurred an
injury due to the motor vehicle collision of
July 29th, 2007?
A. From discussing with the — from
discussions with the patient, in the course
of providing her care, and from review of
Dr. Grossi’s clinic notes.
Dr. Collins went on to explain that he had also relied on Dr.
Callaway’s notes, the police report on the collision, his own
experience in treating other patients with Chiari I
malformations, and his review of the relevant medical literature
to form his causation opinion:
That — that takes a bit of an explanation.
Congenital Chiari malformations generally
don’t produce symptoms until people in — are
in their late 20s. I think the average age
of onset is around 35.3
There is medical literature looking at the
things that precipitate symptoms in Chiari
malformation. And upwards of 40 percent of
patients with a Chiari malformation start
having symptoms after some sort of mild head
trauma. In [Plaintiff]’s specific case, she
was in a car accident. Her car was struck
3
Plaintiff was 33 years old at the time of the collision.
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from the passenger side, according to the
police report, while she was driving, which
would have caused her head and neck to flop
back and forth from one side to the other,
putting a lot of unnatural strain on a
structure that’s really not put together in
a way to handle that. And her anatomy
inside was already abnormal. Her — her
brain — her brain stem and her upper
cervical spine weren’t normal, and because
of this trauma, started giving her symptoms.
Thus, Dr. Collins’ causation opinion was not “based merely upon
speculation and conjecture[.]” See Young, 353 N.C. at 230, 538
S.E.2d at 915. Rather, his opinion that “[i]t’s more likely
than not that the accident triggered the symptoms that
[Plaintiff] has from her Chiari malformation” was based upon
examination of Plaintiff, review of her medical records,
relevant medical literature, and, importantly, the mechanism of
injury, as well as Dr. Collins’s own skill and experience.
Further, although Dr. Collins did note that Plaintiff’s symptoms
began to appear only after the collision, his causation opinion
was plainly not based solely on this temporal relationship, but
instead upon all of the proper bases noted supra. In sum, Dr.
Collins’s expert medical opinion on causation was competent and
constituted “more than a scintilla of evidence supporting” the
sole disputed element of Plaintiff’s personal injury claim. See
Springs, 209 N.C. App. at 275, 704 S.E.2d at 323. Accordingly,
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the trial court did not err in denying Defendant’s motions for
directed verdict and JNOV.
II. Cross-examination regarding Plaintiff’s misdemeanor
conviction
Defendant next argues that the trial court erred in
prohibiting her from cross-examining Plaintiff about Plaintiff’s
marijuana use at the time of the collision. Defendant
misperceives the trial court’s ruling, which was not error.
On appeal, Defendant asserts that she was prevented from
cross-examining Plaintiff about Plaintiff’s marijuana use in
2007, and that the trial court only permitted Defendant to
cross-examine Plaintiff about what Plaintiff told her doctors
regarding her marijuana use. However, a careful review of the
transcript reveals that Plaintiff did not object to Defendant’s
inquiry about her marijuana use in 2007, but rather only to a
question about a purported misdemeanor conviction for possession
of marijuana:
Q. Ma’am, were you also using marijuana
during this time [in 2007]?
A. No, I was not.
Q. Okay. You were convicted of possession
of marijuana in November of 2007, weren’t
you?
[PLAINTIFF’S COUNSEL]: Objection.
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The trial court then sent the jury out of the courtroom, and, on
voir dire, Defendant’s counsel asked Plaintiff about purported
drug possession and paraphernalia charges in Haywood County, of
which Plaintiff denied any knowledge. The court then engaged in
a lengthy exchange with Defendant’s counsel regarding Rule of
Evidence 609, and established that the marijuana possession
conviction was a Class 3 misdemeanor and that the drug
paraphernalia charge was dismissed. See N.C. Gen. Stat. § 8C-1,
Rule 609(a) (2013) (“For the purpose of attacking the
credibility of a witness, evidence that the witness has been
convicted of a felony, or of a Class A1, Class 1, or Class 2
misdemeanor, shall be admitted if elicited from the witness or
established by public record during cross-examination or
thereafter.”).
THE COURT: Under Rule 609 you
may cross-examine her about a felony, a
Class 1, a Class A1 or a Class 2
misdemeanor. Cross-examin[ing] her about a
Class 3 misdemeanor [such as Plaintiff’s
marijuana possession conviction] is not
allowed and the objection will be sustained.
[PLAINTIFF’S COUNSEL]: Your Honor, there
are a couple things that I would like to say
in reference to this.
I noticed on the second page — and I am not
a criminal attorney either.
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THE COURT: On the second page
there was a charge of possession of drug
paraphernalia which is a Class 1
misdemeanor. But counsel has indicated that
that was dismissed as part of a plea
arrangement.
[DEFENDANT’S COUNSEL]: Yes, sir. That’s
what it appears.
THE COURT: Therefore, if it
was dismissed you may not ask her about it.
He can ask about convictions. I don’t mean
to cut you off, [Plaintiff’s counsel], if
that’s where you were heading.
[Plaintiff’s counsel moves to strike,
requests an instruction for the jury to
disregard the question and response about
the conviction, and moves for a mistrial.]
THE COURT: At this point[,]
motion for mistrial will be denied. I don’t
think we are there. The question was asked,
the objection. I sent the jury out. I will
bring the jury in, I will sustain the
objection, I will instruct them to disregard
the question, that they are not to draw any
inference from it.
. . . .
THE COURT: The objection is
sustained.
[DEFENDANT’S COUNSEL]: Okay. Now, your
Honor, so you know where we are going next,
okay? She did tell her doctors after this
accident that she continues to use
marijuana. And that’s relevant because of
the nature of her symptoms.
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THE COURT: You may cross-
examine her [about] what she told her
doctors.
[DEFENDANT’S COUNSEL]: Yes, sir.
THE COURT: You may not cross-
examine her about —
[DEFENDANT’S COUNSEL]: A conviction.
THE COURT: — possession of
marijuana and alleged conviction of
paraphernalia. That is the ruling of the
[c]ourt.
[DEFENDANT’S COUNSEL]: Yes, sir. And we
will abide by that ruling. Yes, sir.
[PLAINTIFF’S COUNSEL]: And your Honor, as
it relates to what she told her doctors as
it relates to marijuana or any other
circumstance, what we would object to is the
relevance as it relates to the motor vehicle
collision unless they are declaring that the
motor vehicle collision and the marijuana
are related and the fact of the symptoms —
symptomology that she experienced after the
motor vehicle collision which again has
nothing to do with marijuana.
THE COURT: Well — and I don’t
know what context the question will come up
that she — what she told the doctor in terms
of using marijuana, if he was asking her for
a history of my medications that she may
have used or anything relative to his
treatment. And that would go toward the
basis of any opinions that a medical
professional would reach, I would think.
And I don’t know if that’s why he wants to
ask the question or not. But if he asks the
questions and there is an objection I will
rule on it at the time. If I need to send
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the jury out I will send the jury out.
Bring the jury in.
These are the only portions of the transcript cited by Defendant
in support of her argument. As the discussion among counsel and
the court makes clear, Defendant only asked about the
permissibility of cross-examining Plaintiff regarding what she
told her doctors about marijuana use. The trial court responded
that asking about Plaintiff’s conviction was prohibited, but
that Defendant could ask about Plaintiff’s conversations with
her doctor regarding marijuana use, noting that if objections
were made to such questions, the court would rule on them at
that time.
Following a recess, Defendant’s counsel again raised the
issue of cross-examining Plaintiff about marijuana use,
observing that Plaintiff’s medical records included a social
history which stated that Plaintiff “does endorse marijuana
use.”4 The trial court first noted, correctly, that “endorsing”
marijuana use was different from “using” marijuana. In
addition, when the trial court asked Defendant’s counsel for
what permitted purpose under Rule of Evidence 404(b) such “bad
act” evidence was admissible, Defendant’s counsel could not
4
We observe that Defendant has not cited and does not discuss
this portion of the transcript in her brief.
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provide an answer and additionally revealed that the doctor to
whom the “endorse[s] marijuana use” statement was made was not
even a witness at the trial. The trial court thus prohibited
cross-examination of Plaintiff about any statements regarding
marijuana use she might have made to her physicians.
On appeal, however, Defendant makes no argument that the
trial court erred in refusing to permit cross-examination under
Rule 404(b) regarding the statement in Plaintiff’s medical
record. Further, contrary to Defendant’s assertions, Defendant
was not prohibited from asking Plaintiff about Plaintiff’s
marijuana use in 2007. As noted supra, that question was asked
without objection, and Plaintiff answered it. This argument is
overruled.
III. Impeachment with Plaintiff’s prior inconsistent statements
In her final argument, Defendant contends that the trial
court erred in refusing to allow Defendant to cross-examine
Plaintiff regarding Plaintiff’s prior inconsistent statements.
In support of this contention, Defendant returns to the issue of
Plaintiff’s alleged marijuana use and conviction.
Defendant notes that, “during voir dire and outside the
presence of the jury,” Plaintiff responded to a question about
whether she had ever been convicted of marijuana possession by
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saying, “Not that I know of.” We first observe that Plaintiff
was never inconsistent in her statements regarding convictions
for drug possession. Both on voir dire and in her deposition,
Plaintiff consistently stated that she had not been convicted of
drug possession, although in her deposition she admitted that
she had received a “ticket” for possession of drug
paraphernalia. She did not, as Defendant asserts, make any
inconsistent statement to her physicians. As discussed supra,
Plaintiff’s medical record indicates only that she “endorses
marijuana use” and says absolutely nothing about any convictions
for marijuana possession. Further, as Defendant acknowledges,
Plaintiff’s denials of having been convicted of marijuana
possession were statements made during the voir dire on
admissibility under Rule 609 of evidence about Plaintiff’s Class
3 misdemeanor conviction of marijuana possession, not statements
made during Plaintiff’s testimony. As previously discussed, the
trial court properly ruled that Defendant could not cross-
examine Plaintiff about her Class 3 misdemeanor conviction for
possession. This argument is overruled.
NO ERROR.
Chief Judge MCGEE and Judge DIETZ concur.
Report per Rule 30(e).