{ "id": 8527617, "name": "RICHARD D. TURNER, Administrator of the Estate of Jane L. Turner v. DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, and ALLAN H. FRIEDMAN, M.D.", "name_abbreviation": "Turner v. Duke University", "decision_date": "1991-01-15", "docket_number": "No. 9014SC263", "first_page": "276", "last_page": "284", "citations": [ { "type": "official", "cite": "101 N.C. App. 276" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "109 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "250 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623661 ], "year": 1959, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0378-01" ] }, { "cite": "313 F.2d 809", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 182214 ], "year": 1963, "pin_cites": [ { "page": "814" } ], "opinion_index": 0, "case_paths": [ "/f2d/313/0809-01" ] }, { "cite": "333 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "admission of incompetent testimony not prejudicial when testimony is merely cumulative" } ], "opinion_index": 0 }, { "cite": "314 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4692056, 4694245, 4687773 ], "year": 1985, "pin_cites": [ { "parenthetical": "admission of incompetent testimony not prejudicial when testimony is merely cumulative" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0336-02", "/nc/314/0336-03", "/nc/314/0336-01" ] }, { "cite": "328 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "admission of incompetent testimony not prejudicial when testimony is merely cumulative" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524744 ], "year": 1985, "pin_cites": [ { "parenthetical": "admission of incompetent testimony not prejudicial when testimony is merely cumulative" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0402-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1989, "pin_cites": [ { "page": "717" }, { "page": "716" }, { "page": "717" }, { "page": "714" }, { "page": "714" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] } ], "analysis": { "cardinality": 797, "char_count": 17602, "ocr_confidence": 0.776, "pagerank": { "raw": 2.9747411753093204e-07, "percentile": 0.8505847252098482 }, "sha256": "558efffe672213af292c39c46c69a42ed62e04e45f2c2a335e049203a97ceb0a", "simhash": "1:6a32e023bea82462", "word_count": 2906 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and DUNCAN concur.", "Judge DUNCAN concurred in this opinion prior to 30 November 1990." ], "parties": [ "RICHARD D. TURNER, Administrator of the Estate of Jane L. Turner v. DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, and ALLAN H. FRIEDMAN, M.D." ], "opinions": [ { "text": "GREENE, Judge.\nThe defendant, Duke University (Duke), appeals from an Order of Sanctions entered by the trial court on 23 October 1989, pursuant to a remand from the North Carolina Supreme Court. The facts in this case have been set out in detail in Turner v. Duke University, 325 N.C. 152, 381 S.E.2d 706 (1989). Here, we limit the facts to those necessary to address the issues raised.\nThe plaintiff filed this wrongful death action on 25 July 1985, alleging medical malpractice on the part of the defendants Duke University, Private Diagnostic Clinic, and Allan H. Friedman, M.D. Trial was originally set for 16 February 1987, but the case was continued twice with trial finally set for 27 July 1987.\nOn 6 July 1987, Duke University delivered to plaintiff\u2019s counsel two Notices of Deposition, scheduling the deposition of Robert A. Havard, M.D., for 21 July 1987 in California, and scheduling the deposition of R. P. Scheerer, M.D., for 23 July 1987 in Florida. Dr. Havard was one of the attending physicians to the decedent while she was at Duke University Medical Center in 1983. Dr. Scheerer was an oncologist who had treated the decedent for cancer in Florida in 1982.\nOn 17 July 1987, the plaintiff gave notice that he would not attend the scheduled depositions, moved to strike the Notices of Deposition, and moved for sanctions under N.C.R. Civ. P. 11(a), 26(g) and 37(b), alleging that the intent behind the depositions was to harass the plaintiff, to disrupt pre-trial preparation and to needlessly increase the cost of litigation. The motion for sanctions was denied on 20 July 1987. The defendant took the depositions as scheduled and the plaintiff did not attend either deposition.\nTrial before a jury was held on 27 July 1987. Both depositions were admitted into evidence at trial. The trial court granted a directed verdict in favor of the defendants Dr. Friedman and the Private Diagnostic Center, and the jury returned a verdict in favor of the defendant Duke University. Judgment was entered upon the verdict on 7 August 1987.\nThe plaintiff appealed and the Supreme Court held that the trial court erred by granting the directed verdict for the defendants Dr. Friedman and the Private Diagnostic Clinic. Turner at 171, 381 S.E.2d at 717. The Court also held that the trial court erred in denying the plaintiff\u2019s motion for Rule 11 and Rule 26 sanctions, finding several of the plaintiff\u2019s arguments in support of sanctions to be meritorious. First, the Court found, that the defendant failed to identify Dr. Havard in response to discovery requests. Id. at 169, 381 S.E.2d at 716. Second, the Court found that by noticing and taking the depositions so close to trial, the defendant had threatened to increase the plaintiff\u2019s litigation costs and cause unnecessary delay of the trial. Id. at 171, 381 S.E.2d at 717. This conclusion was further supported by a finding that Dr. Scheerer\u2019s deposition testimony was cumulative and duplicative of another physician\u2019s expert opinion. Id. Third, the Court found persuasive the plaintiff\u2019s argument that by scheduling the depositions so close to trial such that the plaintiff\u2019s counsel would not be able to adequately prepare for trial had counsel attended the depositions, the noticing and taking of the depositions represented an attempt to harass the plaintiff\u2019s counsel. Id. The Supreme Court, after reversing the denial of sanctions, ordered that the case be remanded for entry of sanctions. Id.\nOn remand, the plaintiff, on 11 October 1989, filed a \u201cSupplement to Motion for Sanctions\u201d requesting inter alia that \u201ca new trial be granted plaintiff against Duke University.\u201d The sanctioning court ordered defendant\u2019s counsel to pay attorney\u2019s fees to the plaintiff\u2019s counsel in the amount of $6,445.00. (The award of attorney fees was subsequently paid and is not at issue on appeal.) The sanctioning court also entered the following pertinent conclusions of law:\n10. Plaintiff is entitled to have the notices of deposition of Drs. Havard and Scheemer [sic] stricken and therefore, the existing depositions may not be introduced into evidence at any subsequent trial.\n11. The plaintiff is entitled to a new trial against Duke University as a Rule 11(a) sanction due to the prejudicial effect of the testimony of Dr. Havard, a person whom the jury may well have considered to be a key witness.\nFinally, the sanctioning court ordered:\n2. That the notices of depositions of Drs. Havard and Scheerer are struck and the existing depositions of Drs. Havard and Scheerer may not be used in any subsequent trial.\n5. That a new trial is granted to plaintiff against Duke University for the violation of the Superior Court\u2019s order to identify witnesses, this being a Rule 11(a) sanction.\nThe issues are: (I) whether the sanctioning court abused its discretion by (A) striking Dr. Havard\u2019s deposition, and (B) ordering a new trial upon the grounds that the admission of Dr. Havard\u2019s testimony at trial was prejudicial to the plaintiff; and (II) whether the failure of the plaintiff to object at trial to the introduction of the deposition precluded plaintiff from asserting it as a basis for sanctions.\nI\nNorth Carolina statutes authorizing the imposition of Rule 11 and Rule 26 sanctions do not authorize specific types of sanctions, as are provided in Rule 37(b)(2), but instead authorize a trial court to impose \u201cappropriate sanction[s].\u201d See N.C.G.S. \u00a7 1A-1, Rule 11(a) (1990); N.C.G.S. \u00a7 1A-1, Rule 26(g) (1990). In the absence of statutory specificity relating to the selection of sanctions, our Supreme Court has approved an abuse of discretion standard as a proper means for reviewing the appropriateness of a particular sanction. Turner at 165, 381 S.E.2d at 714. See also Federal Judicial Center, The Rule 11 Sanctioning Process, 127 (1988) (\u201c[t]he options available to a . . . judge in tailoring a sanction for a given case seem limited only by the judge\u2019s imagination and the possibility of appellate review under an abuse-of-discretion standard\u201d). The trial court abuses its discretion \u201conly upon a showing that its actions are manifestly unsupported by reason.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).\nA\nThe first question is whether the striking of the notice of the taking of the deposition of Dr. Havard in light of the circumstances of this case is a reasoned and just result. We believe the selection of this sanction was both logical and supported in reason and therefore not an abuse of discretion. In fact Duke abandoned its assignment of error on this issue and submitted in its brief that the striking of the notices of deposition of Dr. Havard \u201cmay arguably be considered a reasonable sanction under the circumstances of this case and therefore not an abuse of discretion.\u201d Indeed, it is very reasonable that the deposition procured in violation of deposition rules be prohibited at trial. See Manual for Complex Litigation Second \u00a7 42.3 (listing 21 categories of sanctions employed by federal courts, including the preclusion of evidence for failure to comply with discovery orders).\nFurthermore, the fact that Duke\u2019s counsel, and not Duke itself, committed the acts giving rise to the sanction is not a bar to its imposition. Such lack of misconduct by a party to a lawsuit can mitigate against the use of severe sanctions. See, e.g., Fed. R. Civ. P. 11 Advisory Committee Notes (\u201cin considering the nature and severity of the sanctions to be imposed, the court should take account of the state of the attorney\u2019s or party\u2019s actual or presumed knowledge when the pleading or other paper was signed\u201d). However, the selection of sanctions remains within the discretion of the trial court, and Rules 11 and 26 specifically authorize imposition of appropriate sanctions not only against the person who commits the improper act, but also against the person on whose behalf the improper act was committed. N.C.R. Civ. P. 11, 26. See also Manual for Complex Litigation \u00a7 42.22 (referring to sanctions in general, \u201c[sanctions that affect the client . . . may, if otherwise warranted, be imposed although the attorney is solely responsible\u201d). Here, while there was no misconduct by Duke, and while Duke is greatly affected by the sanction, we are unaware of any other sanction which would have corrected the prejudice to plaintiff. Therefore, we find no abuse of discretion by the sanctioning court.\nB\nThe second question is whether the granting of the new trial is a reasoned and just result of the striking of Dr. Havard\u2019s deposition testimony. Again, we find this sanction to be both logical and supported in reason and therefore not an abuse of discretion.\nPlaintiff argues that he was unfairly prejudiced by the admission of Dr. Havard\u2019s deposition testimony because he was denied an opportunity to cross-examine Dr. Havard. Duke contends that Dr. Havard\u2019s testimony was not prejudicial because Duke introduced other evidence essentially the same as Dr. Havard\u2019s deposition testimony. See Warner v. City of Asheville, 74 N.C. App. 402, 328 S.E.2d 859, disc. rev. denied, 314 N.C. 336, 333 S.E.2d 496 (1985) (admission of incompetent testimony not prejudicial when testimony is merely cumulative). Specifically, Duke argues that another physician, Dr. Weber, offered live testimony at trial very similar to Dr. Havard\u2019s deposition testimony.\nPlaintiff offered evidence that the decedent\u2019s colon had been perforated during the administration of an enema. Both Dr. Havard and Dr. Weber examined the decedent after the administration of the enema, and both testified that while the decedent complained of abdominal cramping, she did not have symptoms consistent with a perforated colon. Dr. Weber, however, was cross-examined by the plaintiff and during that cross-examination the plaintiff elicited the following:\nQ. Do you know about what time it was that you actually wrote your notes down, or when you actually saw her?\nA. I don\u2019t know exactly. I don\u2019t have any independent recollection of that. The best that I can put it together is that I know that it was in the morning, and it was after we ordinarily do rounds. My guess is late morning or midday.\nQ. Well, you have, moaning and complaining of abdominal pain post enema. You are aware that the notes indicate that the enema was administered around 11:00 o\u2019clock that morning?\nA. Right. I heard that this morning.\nQ. And I believe she was transferred sometime around 2:00 o\u2019clock?\nA. It was somewhere between 11:00 and 2:00 o\u2019clock. I saw her on Reed Ward.\nQ. You were there for a neurosurgery consult that day, is that correct?\nA. Mrs. Turner was admitted to the neurosurgical service. I wasn\u2019t there as a consultant. She was admitted to our service and it was a portion of the evaluation that every patient gets when they come to our service or to any service in the hospital.\nQ. When you did your examination you were primarily interested in her neurosurgical status?\nA. Yes, sir.\nQ. You were not there to evaluate her necessarily for her gastronomical problems if she had any of those?\nA. No, sir.\nQ. Do you remember what she looked like?\nA. No, sir.\nQ. When did you come to work, do you recall that?\nA. We begin our day at 6:30 in the morning.\nQ. Had you worked like 36 hour shift?\nA. Yes, sir.\nQ. A lot of residents work pretty long hours in a hospital, don\u2019t they?\nA. Yes, sir.\nQ. How long would you have been basically constantly working up until... You started at 6:00 on the 25th at the a.m.?\nA. Yes, sir.\nQ. And then you would have seen her sometimes around 11:00 . . . well, between 11:00 and 2:00 on the following day, is that right?\nA. Yes.\nQ. Had you had any sleep between those . . . that entire time?\nA. I don\u2019t recall that day specifically, but unlikely or I wouldn\u2019t have done her evaluation, but prior to that time.\nPlaintiff\u2019s cross-examination had the capacity to reduce the credibility of Dr. Weber\u2019s direct testimony to the jury on the issue of whether decedent\u2019s colon had been perforated during or after the administration of the enema. Since plaintiff did not have an opportunity to cross-examine Dr. Havard, a significant distinction between Dr. Havard\u2019s testimony and Dr. Weber\u2019s testimony is presented. This distinction precludes any conclusion that Dr. Havard\u2019s testimony was cumulative and supports a conclusion that plaintiff was unfairly prejudiced by the introduction of Dr. Havard\u2019s testimony. Furthermore, it is not required, as Duke contends, \u201cthat the record developed without [the assistance of cross-examination] affirmatively pin-point the harm in so many words. It is sufficient if we can see [as we can in this case] . . . that the development of this record and the development of the testimony of [Dr. Havard] as a witness might well have been quite different had the Plaintiff been accorded the right to put [Dr. Havard] through all of the rigors of a sharp, relentless, pressing, vigorous cross examination ...\u201d Degelos v. Fidelity and Cas. Co. of New York, 313 F.2d 809, 814 (1963). \u201cIndeed, one of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary\u2019s witnesses . . . .\u201d Barnes v. Highway Commission, 250 N.C. 378, 394, 109 S.E.2d 219, 232 (1959).\nDuke contends that plaintiff cannot use its failure to cross-examine Dr. Havard to support a finding of prejudice because plaintiff did not appear at the taking of the deposition. We disagree. Duke should not now be heard to argue that plaintiff waived his right to cross-examine Dr. Havard when he failed to appear for the taking of a deposition which was improperly noticed in violation of Rules 11 and 26.\nWe therefore conclude that the sanctioning court\u2019s order striking the notice of deposition and prohibiting its further use and the order of the new trial were authorized sanctions under Rules 11 and 26 and there is no evidence of an abuse of discretion.\nII\nDuke next argues that since the plaintiff did not object, at trial, to the admission into evidence of Dr. Havard\u2019s deposition testimony, he should not be permitted to assert that testimony as a basis for the selection of an appropriate sanction. Generally, \u201c[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record.\u201d N.C.G.S. \u00a7 8C-1, Rule 103(a)(1) (1988). However, since the trial court may impose sanctions \u201cupon its own initiative . . . ,\u201d see Rules 11 and 26, plaintiff\u2019s objection at trial to the use of Dr. Havard\u2019s deposition is not essential to the imposition of sanctions. To hold otherwise would unduly limit the wide discretion vested in the trial court in its selection of appropriate sanctions. Turner at 165, 381 S.E.2d at 714.\nAffirmed.\nJudges ORR and DUNCAN concur.\nJudge DUNCAN concurred in this opinion prior to 30 November 1990.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Leonard T. Jernigan, Jr., P.A., by Leonard T. Jemigan, Jr., for plaintiff-appellee.", "Maxwell & Hutson, P.A., by John C. Martin, and Yates, Fleishman, McLamb & Weyher, by Beth R. Fleishman, for defendant-appellant." ], "corrections": "", "head_matter": "RICHARD D. TURNER, Administrator of the Estate of Jane L. Turner v. DUKE UNIVERSITY, PRIVATE DIAGNOSTIC CLINIC, and ALLAN H. FRIEDMAN, M.D.\nNo. 9014SC263\n(Filed 15 January 1991)\n1. Rules of Civil Procedure \u00a7\u00a7 11, 26 (NCI3d)\u2014 deposition stricken \u2014appropriate sanction \u2014actions of counsel rather than party \u2014sanction not barred\nThe sanctioning court in a medical malpractice case did not abuse its discretion in striking a doctor\u2019s deposition taken in California six days before trial, which took place two years after plaintiff initiated the action, since it was logical and reasonable that the deposition procured in violation of deposition rules be prohibited at trial; furthermore, the fact that defendant\u2019s counsel and not defendant itself committed the acts giving rise to the sanction was not a bar to its imposition.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 193, 196.\n2. Rules of Civil Procedure \u00a7 11 (NCI3d)\u2014 admission of deposition prejudicial \u2014 opportunity to cross-examine denied \u2014 new trial properly ordered\nThe sanctioning court in a medical malpractice case did not err in ordering a new trial on the ground that the admission of a doctor\u2019s deposition at trial was prejudicial to plaintiff, since plaintiff was denied an opportunity to cross-examine the doctor; there was no merit to defendant\u2019s contention that the deposed doctor\u2019s testimony was cumulative as plaintiff\u2019s cross-examination had the capacity to reduce the credibility of the doctor\u2019s direct testimony to the jury, and there was thus a significant distinction between the deposed testimony and the live testimony; defendant could not argue that plaintiff waived his right to cross-examine the doctor when he failed to appear for the taking of a deposition which was improperly noticed in violation of N.C.G.S. \u00a7 1A-1, Rules 11 and 26; and the granting of the new trial was a reasoned and just result of the striking of the doctor\u2019s deposition testimony.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 193, 196.\n3. Rules of Civil Procedure \u00a7 11 (NCI3d|\u2014 sanctions for improper deposition \u2014 objection to deposition at trial not essential\nSince the trial court may impose sanctions upon its own initiative, plaintiffs objection at trial to the use of a deposition improperly noticed was not essential to the imposition of sanctions.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 193, 196.\nAPPEAL by defendant Duke University from order entered 23 October 1989 by Judge Robert H. Hobgood in DURHAM County Superior Court. Heard in the Court of Appeals 26 September 1990.\nLeonard T. Jernigan, Jr., P.A., by Leonard T. Jemigan, Jr., for plaintiff-appellee.\nMaxwell & Hutson, P.A., by John C. Martin, and Yates, Fleishman, McLamb & Weyher, by Beth R. Fleishman, for defendant-appellant." }, "file_name": "0276-01", "first_page_order": 304, "last_page_order": 312 }