{ "id": 11469402, "name": "TIMOTHY MARK HEATHERLY, Executor of the Estate of FRED W. HEATHERLY, Deceased, Plaintiff v. INDUSTRIAL HEALTH COUNCIL, and ALLAN R. GOLDSTEIN, M.D., Defendants", "name_abbreviation": "Heatherly v. Industrial Health Council", "decision_date": "1998-09-01", "docket_number": "No. COA97-464", "first_page": "616", "last_page": "626", "citations": [ { "type": "official", "cite": "130 N.C. App. 616" } ], "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": "487 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11793672 ], "year": 1997, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0197-01" ] }, { "cite": "303 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575232, 8575267, 8575242, 8575255, 8575295 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0711-01", "/nc/303/0711-04", "/nc/303/0711-02", "/nc/303/0711-03", "/nc/303/0711-05" ] }, { "cite": "278 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "571" }, { "page": "570" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170131 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "239" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0234-01" ] }, { "cite": "255 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "765" }, { "page": "767", "parenthetical": "standard of care required of podiatrist cannot be established by orthopedic surgeon, but only by testimony of other podiatrist or one equally familiar with that field of practice" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551485 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "673" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0670-01" ] }, { "cite": "337 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "\"[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it\"" } ], "opinion_index": 0 }, { "cite": "315 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715712, 4720431, 4715122, 4720187, 4718559 ], "year": 1985, "pin_cites": [ { "parenthetical": "\"[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it\"" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0188-02", "/nc/315/0188-05", "/nc/315/0188-04", "/nc/315/0188-03", "/nc/315/0188-01" ] }, { "cite": "331 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "254", "parenthetical": "\"[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it\"" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526305 ], "year": 1985, "pin_cites": [ { "page": "548", "parenthetical": "\"[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0543-01" ] }, { "cite": "442 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "69", "parenthetical": "party asserting error \"must show from record not only that the trial court committed error, but that aggrieved party was prejudiced as a result\"" }, { "page": "62" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527523 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "319", "parenthetical": "party asserting error \"must show from record not only that the trial court committed error, but that aggrieved party was prejudiced as a result\"" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0297-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "510 U.S. 1028", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 231489, 230913, 231364, 234554, 234438, 234126, 232495, 232878, 230190, 230450, 231636, 235834, 230556 ], "year": 1993, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/510/1028-01", "/us/510/1028-11", "/us/510/1028-08", "/us/510/1028-06", "/us/510/1028-02", "/us/510/1028-13", "/us/510/1028-04", "/us/510/1028-10", "/us/510/1028-12", "/us/510/1028-05", "/us/510/1028-07", "/us/510/1028-03", "/us/510/1028-09" ] }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "203", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "year": 1993, "pin_cites": [ { "page": "610", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "177" }, { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "502 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "failure to object to introduction of evidence is waiver of right to do so, and admission of evidence, even if incompetent, is not proper basis for appeal" }, { "page": "679" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 182", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466070 ], "year": 1998, "pin_cites": [ { "parenthetical": "failure to object to introduction of evidence is waiver of right to do so, and admission of evidence, even if incompetent, is not proper basis for appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0182-01" ] }, { "cite": "497 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "Court \"declines to follow\" opinion \"inconsistent with prior decisions of this Court and our Supreme Court\"" } ], "opinion_index": 0 }, { "cite": "348 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659786 ], "year": 1998, "pin_cites": [ { "parenthetical": "Court \"declines to follow\" opinion \"inconsistent with prior decisions of this Court and our Supreme Court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0067-01" ] }, { "cite": "494 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551335, 551114, 551379, 551254, 551354 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0396-05", "/nc/347/0396-02", "/nc/347/0396-01", "/nc/347/0396-04", "/nc/347/0396-03" ] }, { "cite": "486 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "473-74" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712661 ], "year": 1997, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0667-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "431 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "334 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529622 ], "year": 1993, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0115-01" ] }, { "cite": "500 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "665", "parenthetical": "quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845-46" } ], "opinion_index": 0 }, { "cite": "348 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659827 ], "year": 1998, "pin_cites": [ { "page": "685", "parenthetical": "quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845-46" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0684-01" ] }, { "cite": "427 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546127 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0455-01" ] }, { "cite": "424 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504581, 2506265, 2507060, 2507545, 2506079 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0664-03", "/nc/332/0664-01", "/nc/332/0664-04", "/nc/332/0664-05", "/nc/332/0664-02" ] }, { "cite": "416 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 172", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313597 ], "year": 1992, "pin_cites": [ { "page": "176-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0172-01" ] }, { "cite": "133 L. Ed. 2d 153", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "516 U.S. 884", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 324545, 324386, 328131, 323172, 327332, 326430, 327472, 327185, 324946, 328048, 326327, 324376, 328606, 328191 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/516/0884-13", "/us/516/0884-01", "/us/516/0884-11", "/us/516/0884-03", "/us/516/0884-10", "/us/516/0884-09", "/us/516/0884-12", "/us/516/0884-04", "/us/516/0884-06", "/us/516/0884-07", "/us/516/0884-14", "/us/516/0884-08", "/us/516/0884-05", "/us/516/0884-02" ] }, { "cite": "453 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "845-46" }, { "page": "845-46" } ], "opinion_index": 0 }, { "cite": "339 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557546 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "521" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0487-01" ] }, { "cite": "483 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "to preserve for appeal evidentiary matter underlying motion in limine, general objection at least must be interposed to introduction of evidence at trial" } ], "opinion_index": 0 }, { "cite": "345 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54147, 54185, 53995, 53870, 54207 ], "year": 1997, "pin_cites": [ { "parenthetical": "to preserve for appeal evidentiary matter underlying motion in limine, general objection at least must be interposed to introduction of evidence at trial" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0641-01", "/nc/345/0641-03", "/nc/345/0641-05", "/nc/345/0641-02", "/nc/345/0641-04" ] }, { "cite": "473 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "430-31" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913893 ], "year": 1996, "pin_cites": [ { "page": "494-95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0489-01" ] }, { "cite": "486 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "ruling on motion in limine \"preliminary\" and objection to order granting or denying motion insufficient to preserve evidentiary issue for appeal" } ], "opinion_index": 0 }, { "cite": "346 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139553, 139621, 139351, 139480, 139647 ], "year": 1997, "pin_cites": [ { "parenthetical": "ruling on motion in limine \"preliminary\" and objection to order granting or denying motion insufficient to preserve evidentiary issue for appeal" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0185-02", "/nc/346/0185-05", "/nc/346/0185-01", "/nc/346/0185-04", "/nc/346/0185-03" ] }, { "cite": "481 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "348-49", "parenthetical": "ruling on motion in limine \"preliminary\" and objection to order granting or denying motion insufficient to preserve evidentiary issue for appeal" }, { "page": "348-49" }, { "page": "348-49" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11870405 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "602", "parenthetical": "ruling on motion in limine \"preliminary\" and objection to order granting or denying motion insufficient to preserve evidentiary issue for appeal" }, { "page": "602" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0600-01" ] }, { "cite": "490 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "586", "parenthetical": "ruling of trial court on evidentiary matter constitutes issue on appeal, not ruling on motion in limine which is not appealable" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11797528 ], "year": 1997, "pin_cites": [ { "page": "468", "parenthetical": "ruling of trial court on evidentiary matter constitutes issue on appeal, not ruling on motion in limine which is not appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0464-01" ] }, { "cite": "140 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "492 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "347 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551315 ], "year": 1997, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0309-01" ] }, { "cite": "140 L. Ed. 2d 1099", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "493 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "274" }, { "page": "274", "parenthetical": "to preserve evidentiary issue raised by motion in limine for appeal, party must object to introduction of the evidence at trial" }, { "page": "274" }, { "page": "274" } ], "opinion_index": 0 }, { "cite": "347 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551151 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "293" }, { "page": "293" }, { "page": "293" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0275-01" ] }, { "cite": "130 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466006 ], "year": 1998, "pin_cites": [ { "parenthetical": "objection to denial of motion in limine sufficient \"to preserve [for appeal] the evidentiary issues which were the subject\" of the motion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0154-01" ] }, { "cite": "130 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467500 ], "year": 1998, "pin_cites": [ { "parenthetical": "no objection to introduction of evidence at trial required to preserve denial of motion in limine for appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0335-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "545" }, { "page": "545", "parenthetical": "motion in limine ruling interlocutory and subject to change at trial" }, { "page": "545" }, { "page": "545" } ], "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "686" }, { "page": "686" }, { "page": "686" }, { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "399 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541783 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0088-01" ] }, { "cite": "391 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524954 ], "year": 1990, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0432-01" ] }, { "cite": "265 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560030 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0180-01" ] }, { "cite": "261 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "508" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554361 ], "year": 1980, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0567-01" ] } ], "analysis": { "cardinality": 1094, "char_count": 24953, "ocr_confidence": 0.757, "pagerank": { "raw": 5.287792003837869e-07, "percentile": 0.9421105245904298 }, "sha256": "7d32911a3c1a5955d464c96efb11e0e576bab63ae23c8175020ee9b7ac283bed", "simhash": "1:65a0d6224fef8976", "word_count": 4018 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and SMITH concur." ], "parties": [ "TIMOTHY MARK HEATHERLY, Executor of the Estate of FRED W. HEATHERLY, Deceased, Plaintiff v. INDUSTRIAL HEALTH COUNCIL, and ALLAN R. GOLDSTEIN, M.D., Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals judgment entered upon adverse jury verdict in this wrongful death action. Plaintiff contends the trial court erred by: (1) denying his motion in limine and allowing defendants to offer evidence tending to show omissions of a non-party, (2) allowing the testimony of Carl Metzger (Metzger), a manager at Vulcan Materials Company (Vulcan), the former employer of plaintiff\u2019s decedent Fred W. Heatherly (decedent), (3) refusing to prohibit defendants from arguing intervening negligence and (4) excluding the testimony of Dr. H.F. Easom (Dr. Easom) regarding the applicable standard of care. We conclude the trial court did not err.\nRelevant facts and procedural history include the following: Decedent was employed as a heavy duty equipment mechanic by Vulcan at its Enka, North Carolina quarry. In order to maintain employment, decedent was required to possess a current \u201cdusty trades work card.\u201d Pursuant to N.C.G.S. \u00a7 97-60 (1991), such cards are issued biannually based upon results of periodic medical examinations, including chest x-rays, provided by the holder\u2019s employer under the auspices of the North Carolina Department of Environment, Health and Natural Resources (DEHNR) Dusty Trades Program. Defendant Industrial Health Council (IHC) performed the required periodic examinations and testing for decedent and approximately four hundred other Vulcan employees in North Carolina.\nOn 17 April 1992, IHC\u2019s portable x-ray lab traveled to Enka to administer medical examinations to a group of Vulcan employees, including decedent. In the course of decedent\u2019s exam, an x-ray of his chest was taken and thereafter transported to IHC offices in Birmingham, Alabama for evaluation by defendant Dr. Allan R. Goldstein (Dr. Goldstein), IHC\u2019s medical director.\nOn 20 April 1992, Dr. Goldstein examined decedent\u2019s chest x-ray and found it to be within normal limits, revealing no abnormality. Dr. Goldstein noted his findings in a signed written report dated 22 June 1992. IHC mailed copies of the report to decedent and his personal physician, as well as to DEHNR.\nUpon receipt by DEHNR, decedent\u2019s chest x-ray was reviewed in July 1992 by Dr. Easom of the Occupational Health Section, Division of Epidemiology. Dr. Easom noted the x-ray showed a \u201c[p]oorly outlined round shadow rt. base \u2014 not seen 1990 film.\u201d DEHNR consequently forwarded written notification to Metzger, manager of safety and health for Vulcan, to obtain repeat x-rays of decedent\u2019s chest. However, no additional x-rays were taken and decedent learned of the request only in December 1992, when Dr. Easom\u2019s administrative assistant mailed an additional notice.\nX-rays were thereafter obtained of decedent and revealed a mass on his right lung subsequently diagnosed as large cell carcinoma. Decedent died 14 November 1993 as the result of metastatic lung cancer.\nPlaintiff instituted the instant action 7 March 1994, alleging decedent\u2019s death was proximately caused by the medical malpractice of Dr. Goldstein, whose actions were imputed to his employer IHC. Following denial of his motion to dismiss for lack of personal jurisdiction, Dr. Goldstein filed answer 24 March 1995, setting forth as a defense the intervening negligence of Vulcan and Metzger. IHC\u2019s motion for summary judgment was denied immediately prior to trial.\nAt trial, the jury answered the issue of Dr. Goldstein\u2019s negligence in the negative. The trial court accordingly entered judgment in favor of defendants 11 September 1996, and plaintiff filed timely notice of appeal.\nPlaintiff first assigns as error the trial court\u2019s denial of his motion in limine which requested that the trial court\n[p]rohibit[] the defendants . . . from arguing or suggesting to the jury in any manner that the actions or inactions of Vulcan ... in any way contributed to [decedent\u2019s] injuries and/or death or in any way lessons [sic] or relieves defendants\u2019 liability to the Plaintiff on account of their negligence.\nPlaintiff contends the trial court erred by\nallowing the defendants to offer evidence that Vulcan . . . had failed to obtain repeat chest x-rays on the decedent because such omissions of a nonparty, as a matter of law did not constitute intervening negligence and were otherwise irrelevant to the issues presented.\nPlaintiff\u2019s argument is unpersuasive.\nIn a related assignment of error, plaintiff argues the trial court committed reversible error in allowing Metzger\u2019s testimony. Characterizing it as the \u201cmost direct evidence on Vulcan\u2019s failure to obtain repeat chest x-rays on the decedent,\u201d plaintiff maintains the evidence was irrelevant or, alternatively, that the dangers of prejudice, confusion of issues, or misleading the jury substantially outweighed its probative value. We remain unpersuaded.\nA motion in limine seeks \u201cpretrial determination of the admissibility of evidence proposed to be introduced at trial,\u201d and is recognized in both civil and criminal trials. State v. Tate, 44 N.C. App. 567, 569, 261 S.E.2d 506, 508, rev\u2019d, on other grounds, 300 N.C. 180, 265 S.E.2d 223 (1980). The trial court has wide discretion in making this advance ruling and will not be reversed absent an abuse of discretion. Webster v. Powell, 98 N.C. App. 432, 439, 391 S.E.2d 204, 208 (1990), aff\u2019d, 328 N.C. 88, 399 S.E.2d 113 (1991). Moreover, the court\u2019s ruling is not a final ruling on the admissibility of the evidence in question, but only interlocutory or preliminary in nature. Therefore, the court\u2019s ruling on a motion in limine is subject to modification during the course of the trial. State v. Swann III, 322 N.C. 666, 686, 370 S.E.2d 533, 545 (1988).\nPreliminarily, we note that while two recent simultaneous opinions of this Court may appear to state a new and different rule regarding preservation of the right to challenge on appeal the trial court\u2019s denial of a motion in limine, see Pack v. Randolph Oil Co. 130 N.C. App. 335, - S.E.2d - (1998) (no objection to introduction of evidence at trial required to preserve denial of motion in limine for appeal), and State v. Hayes, 130 N.C. App. 154, - S.E.2d - (1998) (objection to denial of motion in limine sufficient \u201cto preserve [for appeal] the evidentiary issues which were the subject\u201d of the motion), we believe the existing rule is well established.\nDecisions of the North Carolina Supreme Court and this Court have repeatedly held that:\n\u201ca motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence.\u201d \u201cRulings on these motions . . . are merely preliminary and subject to change during the course of the trial, depending upon the actual evidence offered at trial and thus an objection to an order granting or denying the motion \u2018is insufficient to preserve for appeal the question of the admissibility of the evidence.\u2019 \u201d \u201cA party objecting to an order granting or denying a motion in limine, in order to preserve the evidentiary issue for appeal, is required to object to the evidence at the time it is offered at the trial (where the motion was denied) or attempt to introduce the evidence at the trial (where the motion was granted).\u201d\nState v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997), cert. denied, -U.S. -, 140 L. Ed. 2d 1099 (1998) (citations omitted); see also State v. Warren, 347 N.C. 309, 318, 492 S.E.2d 609, 613 (1997), cert. denied, \u2014 U.S. \u2014, 140 L. Ed. 2d 818 (1998); State v. Williams, 127 N.C. App. 464, 468, 490 S.E.2d 583, 586 (1997) (ruling of trial court on evidentiary matter constitutes issue on appeal, not ruling on motion in limine which is not appealable); T & T Development Company, Inc. v. Southern National Bank of South Carolina, 125 N.C. App. 600, 602, 481 S.E.2d 347, 348-49, disc. review denied, 346 N.C. 185, 486 S.E.2d 219 (1997) (ruling on motion in limine \u201cpreliminary\u201d and objection to order granting or denying motion insufficient to preserve evidentiary issue for appeal); Hartford Underwriters Insurance Company v. Becks, 123 N.C. App. 489, 494-95, 473 S.E.2d 427, 430-31 (1996), cert. denied and disc. review denied, 345 N.C. 641, 483 S.E.2d 708 (1997) (to preserve for appeal evidentiary matter underlying motion in limine, general objection at least must be interposed to introduction of evidence at trial); State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995); and Beaver v. Hampton, 106 N.C. App. 172, 176-77, 416 S.E.2d 8, 11, disc. review allowed, 332 N.C. 664, 424 S.E.2d 398 (1992), aff\u2019d in part on other grounds and vacated in part on other grounds, 333 N.C. 455, 427 S.E.2d 317 (1993).\nMost recently, the North Carolina Supreme Court reiterated the long-standing rule:\n\u201c[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the [movant] fails to further object to the evidence at the time it is offered at trial.\u201d\nMartin v. Bensen, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998) (quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845-46).\nWithout question, this Court is required to follow decisions of our Supreme Court until the Supreme Court orders otherwise. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993). Similarly, where one panel of this Court has decided an issue, a subsequent panel is bound by that precedent, albeit in a different case, unless it has been overturned by a higher court. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 33 (1989). In view of these principles, we believe we are bound by the long line of decisions from our Supreme Court and this Court precluding consideration on appeal of a trial court\u2019s ruling on a motion in limine absent objection to introduction of the challenged evidence at trial. See Cissell v. Glover Landscape Supply, Inc., 126 N.C. App. 667, 670, 486 S.E.2d 472, 473-74, disc. review denied, 347 N.C. 396, 494 S.E.2d 408 (1997), rev\u2019d on other grounds, 348 N.C. 67, 497 S.E.2d 283 (1998) (Court \u201cdeclines to follow\u201d opinion \u201cinconsistent with prior decisions of this Court and our Supreme Court\u201d).\nThe evidence at trial of Vulcan\u2019s failure to obtain additional chest x-rays of decedent essentially came from two witnesses, Dr. Easom, whose videotaped deposition was introduced by plaintiff, and Metzger, called as a witness by IHC.\nOn direct examination by plaintiff\u2019s counsel, Dr. Easom described his review of decedent\u2019s 17 April 1992 x-ray, noted his observation of \u201ca poorly outlined round shadow in the base of the right lung,\u201d characterized the shadow as an \u201cimportant\u201d abnormality, and testified that he entered into his report the statement, \u201c[r]equest for PA and right lateral films now,\u201d indicating that \u201cnow\u201d denoted a sense of urgency and that he \u201cwas in a hurry to find out what this was.\u201d During cross-examination, Dr. Easom explained that he \u201cdidn\u2019t know what the shadow was,\u201d and that his administrative assistant sent a letter on 20 July 1992 to Vulcan requesting a repeat x-ray of decedent. A second letter was sent on 17 December 1992 upon receiving no response to the first.\nPlaintiff also called Julian McLellan, Vulcan\u2019s plant manager at Enka, as a witness. He reviewed in detail his role in coordinating the dusty trades medical screening program. He also explained Metzger\u2019s role in the program as Vulcan\u2019s manager of safety and health.\nIn his testimony, Metzger acknowledged receipt, in his capacity as a Vulcan manager, of the 20 July 1992 letter from Dr. Easom. Metzger conceded he placed the letter on the side of his desk and did not order a repeat x-ray for decedent until the 17 December 1992 communication from Dr. Easom\u2019s office. Plaintiff\u2019s objections to Metzger\u2019s statements were overruled by the trial court.\nHowever, while plaintiff entered objections to the challenged cross-examination of Dr. Easom during deposition, he did not renew those objections at trial. Moreover, prior to the jury\u2019s viewing of Dr. Easom\u2019s videotaped deposition, the trial court conducted a comprehensive review of the parties\u2019 objections thereto. Indeed, the discussion between the court and counsel concerning the deposition fills more than twenty pages of transcript. At the conclusion thereof is reflected the following exchange:\nThe Court: All right, [counsel for plaintiff], you made several objections during your cross, do you wish for me to address any of those at this time?\n[Counsel For Plaintiff]: I don\u2019t... I don\u2019t see any, Your Honor, that. . .\nThe Court: Is [sic. ] there any other objections we\u2019d need to take up before we bring the jury in?\n[Counsel For Defendants]: No.\nThe record indicates no response from plaintiff\u2019s counsel to the court\u2019s additional inquiry.\nBased on the foregoing, we hold plaintiff failed to preserve his objection to introduction at trial of the cross-examination of Dr. Easom at issue. See N.C.R. App. P. 10(b)(1) (to preserve question for appellate review, party \u201cmust have presented to the trial court a timely . . . objection . . . stating the specific grounds for the ruling the party desired\u201d; complaining party must also obtain a ruling on the objection); see also Swann III, 322 N.C. at 686, 370 S.E.2d at 545 (motion in limine ruling interlocutory and subject to change at trial), and Hill, 347 N.C. at 293, 493 S.E.2d at 274 (to preserve evidentiary issue raised by motion in limine for appeal, party must object to introduction of the evidence at trial). Likewise, plaintiff waived his objection to the presentation of Dr. Easom\u2019s cross-examination. See Curry v. Baker, 130 N.C. App. 182, 502 S.E.2d 667 (1998) (failure to object to introduction of evidence is waiver of right to do so, and admission of evidence, even if incompetent, is not proper basis for appeal).\nWe note that the apparent rule change in Pack and Hayes came well after trial of the case sub judice, so plaintiff could in no wise have been prejudiced by any language therein. Moreover, the statements in Pack and Hayes regarding preservation of in limine orders for appellate review limit application thereof to instances wherein, inter alia, \u201cthere is no suggestion that the trial court would reconsider\u201d the matter at trial. Pack, 130 N.C. App. at 338, 502 S.E.2d at 679. Suffice it to state that, in addition to the trial court\u2019s invitation to counsel to contest introduction of the evidence noted above, the record reflects multiple indications the trial court properly viewed its in limine ruling as preliminary, tentative and subject to modification as presentation of the evidence progressed. See Swann III, 322 N.C. at 686, 370 S.E.2d at 545, Hill, 347 N.C. at 293, 493 S.E.2d at 274, and T & T Development Company, Inc., 125 N.C. App. at 602, 481 S.E.2d at 348-49.\nAssuming arguendo plaintiff properly preserved his objection to the testimony of Dr. Easom, defendants also maintain plaintiff opened the door to the testimony of both Dr. Easom and of Metzgar. Defendants\u2019 argument is valid.\nThe law is well-settled that\n[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\nState v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).\nPlaintiff argues that by the time Metzger was called to testify, it should have been clear to the trial court that Vulcan\u2019s lack of intervention was irrelevant to the case and that Metzgar\u2019s testimony should thus have been excluded. As an aside, we note with interest that plaintiffs argument appears to concede that the trial court considered its ruling on plaintiff\u2019s motion in limine to have been preliminary and subject to modification as the evidence progressed. See Swann III, 322 N.C. at 686, 370 S.E.2d at 545, Hill, 347 N.C. at 293, 493 S.E.2d at 274, and T & T Development Company, Inc., 125 N.C. App. at 602, 481 S.E.2d at 348-49.\nIn any event, plaintiff opened the door to Metzger\u2019s statements by his prior presentation, without objection, of the videotaped cross-examination contained within Dr. Easom\u2019s deposition and of the testimony of Julian McLellan concerning Metzger\u2019s role in the x-ray screening program at Vulcan. The jury learned of Dr. Easom\u2019s sense of urgency in July 1992, and defendants were entitled \u201cto introduce evidence in explanation,\u201d Albert, 303 N.C. at 177, 277 S.E.2d at 441, that Vulcan, rather than defendants, had knowledge of Dr. Easom\u2019s request for repeat x-rays of decedent and failed to respond thereto.\nMoreover, assuming arguendo Metzger\u2019s testimony was erroneously admitted, plaintiff has waived any appellate challenge thereto. Plaintiff failed to show prejudice in that Metzger\u2019s testimony merely corroborated that given earlier by Dr. Easom without objection to the effect that Vulcan failed to respond to his first notification. See State v. Jennings, 333 N.C. 579, 610, 430 S.E.2d 188, 203, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993) (citation omitted) (under rule of waiver, \u201cassuming timely objections to [introduction of] evidence,... benefit of these objections [lost] because similar evidence was theretofore and thereafter admitted without objection\u201d); see also Clark v. Perry, 114 N.C. App. 297, 319, 442 S.E.2d 57, 69 (1994) (party asserting error \u201cmust show from record not only that the trial court committed error, but that aggrieved party was prejudiced as a result\u201d). In short, plaintiff\u2019s first and second assignments of error are unfounded.\nWith his third assignment of error, plaintiff insists the trial court committed reversible error by refusing to prohibit defendants from arguing intervening negligence to the jury. However, the closing arguments of counsel are not transcribed in the record before this Court, and we are thereby precluded from addressing plaintiff\u2019s contention. See N.C.R. App. P. 9(a) (\u201c[i]n appeals . . . review is solely upon the record on appeal and the verbatim transcript of the proceedings\u201d); see also State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985) (\u201c[a]n appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it\u201d).\nFinally, plaintiff argues the trial court erred by excluding Dr. Easom\u2019s testimony addressing Dr. Goldstein\u2019s breach of the applicable standard of care. We disagree.\nAt his videotaped deposition, Dr. Easom was asked whether he had an opinion to a reasonable degree of medical certainty \u201cwhether a physician with training and experience similar to yours\u201d would have interpreted decedent\u2019s 22 July 1992 chest x-ray as being within normal limits. Dr. Goldstein\u2019s objection to the form of the question was sustained at trial.\nAs a general rule, testimony of a qualified expert is required to establish the standard of care and breach thereof in medical malpractice cases. Clark, 114 N.C. App. at 306, 442 S.E.2d at 62. The plaintiff bears the burden of proof to establish the standard of care required of practitioners in the defendant health care provider\u2019s field of practice. Whitehurst v. Boehm, 41 N.C. App. 670, 673, 255 S.E.2d 761, 765 (1979).\nSuch testimony is governed by N.C.G.S. \u00a7 90-21.12 (1997) which provides in pertinent part\nthe defendant shall not be liable ... unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.\nG.S. \u00a7 90-21.12 (emphasis added).\nThe standard of care must be established by other practitioners in the particular field of practice of the defendant heath care provider or by other expert witnesses equally familiar and competent to testify as to that limited field of practice. Lowery v. Newton, 52 N.C. App. 234, 239, 278 S.E.2d 566, 571, disc. review denied, 303 N.C. 711, - S.E.2d -(1981); see also Whitehurst, 41 N.C. App. at 677, 255 S.E.2d at 767(standard of care required of podiatrist cannot be established by orthopedic surgeon, but only by testimony of other podiatrist or one equally familiar with that field of practice).\nWhile we agree \u201cthe phrasing of the questions used to elicit the standard of care need not follow G.S. \u00a7 90-21.12 verbatim,\u201d Tucker v. Meis, 127 N.C. App. 197, 198, 487 S.E.2d 827, 829 (1997), a review of the record reveals plaintiff failed to establish Dr. Easom was familiar with the standard of care for a physician board certified in the fields of internal medicine and pulmonary diseases practicing in Birmingham, Alabama during the relevant time period. Rather, plaintiff inquired if Dr. Easom was\nfamiliar with the standards of practice existing in the spring and summer of 1992 among medical doctors with training and experience similar to yours who read and interpreted chest x-rays files as a part of a medical screening program.\nThe question thus was directed at Dr. Easom\u2019s familiarity with the standard of care applicable to him, not to Dr. Goldstein. The trial court therefore did not err in excluding Dr. Easom\u2019s responses regarding the standard of care applicable to Dr. Goldstein.\nPlaintiff cites Lowery in asserting the trial court \u201cplac[ed] form over substance\u201d in rejecting Dr. Easom\u2019s testimony. In Lowery, this Court held substitution of \u201cunder the same or similar circumstances\u201d in lieu of \u201cwith similar training and experiences\u201d in establishing the standard of care constituted harmless technical error. Lowery, 52 N.C. App. at 238, 278 S.E.2d at 570. However, the case sub judice is readily distinguishable in that the \u201cform\u201d of plaintiff\u2019s question to Dr. Easom failed to make inquiry as to the \u201csubstance\u201d of his familiarity with the standard of care applicable to Dr. Goldstein.\nNo error.\nJudges MARTIN, John C. and SMITH concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Lindsay & Hensley, by John C. Hensley, Jr., for plaintiff - appellant.", "Roberts & Stevens, P.A., by James W. Williams, for defendant-appellee Allan R. Goldstein, M.D.", "Dameron and Burgin, by Charles E. Burgin, for defendant-appellee Industrial Health Council." ], "corrections": "", "head_matter": "TIMOTHY MARK HEATHERLY, Executor of the Estate of FRED W. HEATHERLY, Deceased, Plaintiff v. INDUSTRIAL HEALTH COUNCIL, and ALLAN R. GOLDSTEIN, M.D., Defendants\nNo. COA97-464\n(Filed 1 September 1998)\n1. Appeal and Error\u2014 denial of motion in limine \u2014 admissibility of evidence \u2014 preservation of issue for appeal \u2014 objection at trial\nPlaintiff failed to preserve for appeal the question of the admission in this medical malpractice action of evidence by defendants tending to show omissions of a nonparty where the trial court had denied plaintiffs motion in limine to exclude such evidence, and defendant failed to object to this evidence at the time it was offered at trial despite the trial court\u2019s invitation to do so; and the record reflects that the trial court considered its in limine ruling as tentative and subject to modification as presentation of the evidence progressed.\n2. Evidence\u2014 omissions of nonparty \u2014 opening door to testimony\nIn a wrongful death action against defendant IHC and its medical director based upon alleged negligence by the director in certifying, pursuant to the dusty trades program, that decedent\u2019s chest x-ray was within normal limits, plaintiff executor opened the door to testimony by a manager of decedent\u2019s former employer about the employer\u2019s failure to obtain repeat x-rays on the decedent after being requested to do so by a doctor in the DEHNR when he introduced deposition testimony by the DEHNR doctor concerning his request to the former employer for a repeat x-ray of decedent and testimony by another witness concerning the manager\u2019s role in the former employer\u2019s x-ray screening program. Defendants were entitled to introduce evidence in explanation that decedent\u2019s former employer, rather than defendants, had knowledge of the DEHNR doctor\u2019s request for repeat x-rays of decedent and failed to respond thereto.\n3. Appeal and Error\u2014 refusal to prohibit argument \u2014 arguments not in record on appeal \u2014 question not presented for appeal\nThe appellate court was precluded from addressing plaintiff\u2019s contention that the trial court erred by refusing to prohibit defendants from arguing intervening negligence to the jury where the closing arguments were not transcribed in the record on appeal.\n4. Medical Malpractice\u2014 standard of care \u2014 improper question\nThe trial court in a medical malpractice case did not err in excluding a medical expert\u2019s response regarding the applicable standard of care where the question eliciting this response was directed to the witness\u2019s familiarity with the standard of care applicable to himself rather than to defendant physician.\nAppeal by plaintiff from judgment entered by Judge Ronald K. Payne on 11 September 1996. Heard in the Court of Appeals 4 December 1997.\nLindsay & Hensley, by John C. Hensley, Jr., for plaintiff - appellant.\nRoberts & Stevens, P.A., by James W. Williams, for defendant-appellee Allan R. Goldstein, M.D.\nDameron and Burgin, by Charles E. Burgin, for defendant-appellee Industrial Health Council." }, "file_name": "0616-01", "first_page_order": 648, "last_page_order": 658 }