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  "name": "NELLY LEATHERWOOD, individually, NELLY LEATHERWOOD and JAMES DAVID COOPER, Guardian Ad Litems for AMELIA JANENE COOPER, and NELLY LEATHERWOOD and JAMES DAVID COOPER, individually, Plaintiffs v. THOMAS M. EHLINGER, M.D., Defendant",
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      "NELLY LEATHERWOOD, individually, NELLY LEATHERWOOD and JAMES DAVID COOPER, Guardian Ad Litems for AMELIA JANENE COOPER, and NELLY LEATHERWOOD and JAMES DAVID COOPER, individually, Plaintiffs v. THOMAS M. EHLINGER, M.D., Defendant"
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      {
        "text": "WALKER, Judge.\nPlaintiffs Nelly Leatherwood (Ms. Leatherwood) and James David Cooper (Mr. Cooper), individually and as guardian ad litems for Amelia Janene Cooper (Amelia), filed this action on 18 May 1998 alleging defendant was negligent in the medical care and treatment he provided during the delivery of Amelia. Defendant denied liability and a trial commenced on 27 November 2000. At the end of plaintiffs\u2019 evidence, defendant moved to strike the testimony of plaintiffs\u2019 medical expert, Dr. Stephen Jones (Dr. Jones), and for a directed verdict. The trial court denied both of these motions. At the close of all the evidence, defendant again moved to strike Dr. Jones\u2019 testimony and for a directed verdict. The trial court denied the motion to strike but granted defendant a directed verdict on 22 December 2000.\nThe pertinent facts viewed in a light favorable to plaintiffs are summarized as follows: Defendant is a physician practicing as an obstetrician gynecologist at the Asheville Women\u2019s Medical Center (AWMC). In February 1992, Ms. Leatherwood became pregnant with Amelia and began prenatal treatment with AWMC under the care of Drs. Hill and Callahan. During this time, Ms. Leatherwood was diagnosed with gestational diabetes. Additionally, thirty-six weeks into pregnancy, her baby\u2019s fetal weight was estimated at eight and one-half pounds.\nOn the morning of 12 October 1992, Ms. Leatherwood experienced preliminary stages of labor and was admitted to a birthing room at Memorial Mission Hospital in Asheville. With her were her mother, Merceidith Bacon (Ms. Bacon), and Mr. Cooper. The nurse present, Janet McKendrick (Nurse McKendrick), took Ms. Leatherwood\u2019s vital signs and attached a fetal monitor across her stomach.\nAfter her labor began to intensify, defendant entered the birthing room and informed Ms. Leatherwood that Dr. Hill was unavailable and that he would be delivering her baby. This was the first contact Ms. Leatherwood had with defendant. According to Ms. Leatherwood and Ms. Bacon, at no time did defendant make any effort to estimate the baby\u2019s fetal weight. Ms. Leatherwood then started to push but experienced difficulty with the delivery. To assist her, defendant instructed Ms. Bacon to insert mineral oil inside Ms. Leatherwood\u2019s vagina. When this failed to produce Amelia\u2019s head, defendant directed Ms. Bacon and Nurse McKendrick to stand on either side of Ms. Leatherwood \u201cpulling [her] knees back against her chest.\u201d This maneuver also proved unsuccessful so defendant used a vacuum extractor to deliver Amelia\u2019s head.\nAlthough Amelia\u2019s head had been produced, Ms. Leatherwood was unable at this point to deliver the rest of Ameila\u2019s body. Defendant determined that this was due to shoulder dystocia; a condition in which the baby\u2019s shoulder is impacted behind the mother\u2019s pubic bone thereby preventing delivery of the rest of the body. To correct the problem, defendant first applied \u201clateral traction\u201d on Amelia\u2019s head attempting to roll her shoulder. According to Ms. Bacon\u2019s testimony, defendant pulled \u201cthe baby\u2019s head downward toward the floor in a left to right . . . motion . . . several times . . . tugging very hard.\u201d He next pulled \u201cthe baby\u2019s head which [was] facing [Ms. Leatherwood\u2019s] left interior thigh ... away from that thigh in a backwards motion, with the head going back towards the interior right thigh.\u201d Finally, as recounted by Ms. Bacon, defendant grasped Amelia\u2019s head \u201c[bringing it] toward the pubic bone in a right to left motion . . . twisting it upward.\u201d\nDespite these efforts, Ms. Leatherwood still was unable to deliver the rest of Amelia\u2019s body. Nurse McKendrick then straddled Ms. Leatherwood and placed her hands on the upper portion of Ms. Leatherwood\u2019s stomach. Defendant next made an incision in Ms. Leatherwood\u2019s vaginal opening. Thereafter, with each ensuing contraction Nurse McKendrick applied pressure to Ms. Leatherwood\u2019s pelvic area while defendant continued to manipulate the baby\u2019s head. Following two or three contractions, the rest of Amelia\u2019s body was delivered.\nThe hospital\u2019s medical records noted that Amelia weighed nine pounds, fifteen ounces and that she had limited function in her left arm. Subsequent medical examinations and exploratory surgery determined that she had a complete tear of the C8-T1 nerve root in her left brachial plexus \u2014 a nerve structure located in the neck and armpit. Amelia was diagnosed as having Erb\u2019s Palsy \u2014 a condition whereby she cannot elevate her left arm at her shoulder and is unable to externally rotate her left arm. She has difficulty performing routine tasks at home and school without assistance.\nI.\nPlaintiffs first contend the trial court erred in granting defendant\u2019s motion for a directed verdict. A motion for a directed verdict requires the trial court to determine whether the evidence, when considered in the light most favorable to the non-movant, was sufficient for submission to the jury. Smith v. Wal-Mart Stores, Inc., 128 N.C. App. 282, 285, 495 S.E.2d 149, 151 (1998) (quoting Kelly v. International Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 398 (1971)). \u201cThe grounds for the motion must be specifically stated . . . and an appellate court will not consider grounds other than those stated to the trial court in reviewing the trial court\u2019s ruling on the motion.\u201d Stacy v. Jedco Const., Inc., 119 N.C. App. 115, 123, 457 S.E.2d 875, 881, disc. rev. denied, 341 N.C. 421, 461 S.E.2d 761 (1995) (citing La Grenade v. Gordon, 60 N.C. App. 650, 299 S.E.2d 809 (1983) and Feibus & Co. v. Godley Construction Co., 301 N.C. 294, 271 S.E.2d 385 (1980)). All evidentiary conflicts are resolved in favor of the non-movant. See Merrick v. Peterson, 143 N.C. App. 656, 661, 548 S.E.2d 171, 175, disc. rev. denied, 354 N.C. 364, 556 S.E.2d 572 (2001).\nIn negligence cases, a directed verdict is seldom appropriate in view of the fact that the issue of whether a defendant breached the applicable standard of care is normally a factual question which the jury must answer. See Barber v. Presbyterian Hosp., 147 N.C. App. 86, 88, 555 S.E.2d 303, 305 (2001). As our Supreme Court has aptly stated, \u201cWhere the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury.\u201d Manganello v. Permastone, Inc., 291 N.C. 666, 669-70, 231 S.E.2d 678, 680 (1977). Nevertheless, where there is an absence of evidence indicating that a defendant\u2019s failure to conform with the applicable standard of care proximately caused a plaintiffs injury, a directed verdict is proper. See Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466, 468 (1998) (citing Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570, disc. rev. denied, 303 N.C. 711 (1981) (outlining the elements a plaintiff must show in a medical malpractice action)).\nWith these principles in mind, we turn to plaintiffs\u2019 contention that they presented sufficient evidence to withstand defendant\u2019s motion for a directed verdict. Although the trial court did not specify the grounds upon which it granted defendant\u2019s motion, our review of the record reveals defendant\u2019s argument centered on the following: (1) plaintiffs\u2019 failure to establish the applicable standard of care in Asheville or similar communities at the time of Amelia\u2019s injury and that defendant had breached said standard, and (2) the lack of a causal link between defendant\u2019s care and Amelia\u2019s injury.\nA. Defendant\u2019s Breach of the Applicable Standard of Care\nThe guidelines for establishing the applicable standard of care in a medical malpractice action are set forth in N.C. Gen. Stat. \u00a7 90-21.12, which provides in pertinent part:\nThe defendant shall not be liable for the payment of damages unless the trier of 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.\nN.C. Gen. Stat. \u00a7 90-21.12 (2001). Ordinarily, because the practice of medicine involves a specialized knowledge beyond that of the average person, the applicable standard of care must be established through expert testimony. See Mazza v. Huffaker, 61 N.C. App. 170, 175, 300 S.E.2d 833, 837, disc. rev. denied, 309 N.C. 192, 305 S.E.2d 734 (1983) (quoting Jackson v. Sanitarium, 234 N.C. 222, 226-27, 67 S.E.2d 57, 61 (1951)).\nHere, plaintiffs sought to establish the applicable standard of care through the testimony of Dr. Jones, an obstetrician gynecologist with a subspecialty in perinatology and licensed to practice in South Carolina and Alabama. The record shows that Dr. Jones initially testified that a baby with a large fetal weight and whose mother has developed gestational diabetes, has a \u201c20 to 50 percent risk\u201d of being born \u201chaving shoulder dystocia.\u201d He then testified as to the procedures an obstetrician employs to identify a shoulder dystocia emergency. According to Dr. Jones, after a baby\u2019s head is produced and the rest of the body fails to follow, the obstetrician should apply \u201cgentle traction down on the baby\u2019s head\u201d to confirm that shoulder dystocia exists. To illustrate for the jury what he meant by \u201cgentle traction,\u201d Dr. Jones used an anatomical model which depicted the anatomy of a pregnant female and a model baby. He placed one hand under the model baby\u2019s head and his other hand on top. He then applied pressure in a downward direction in reference to the female model\u2019s bottom and in a lateral direction in reference to the baby model\u2019s shoulders. Dr. Jones stated, \u201cI can\u2019t tell you the exact pressure, but I can tell you from my training and the other people that are trained, we know when to stop and when you pull too hard.\u201d\nDr. Jones further testified that once shoulder dystocia is evident, the obstetrician employs a series of drills designed to resolve the problem including: the \u201cMcRobert\u2019s procedure\u201d in which the mother\u2019s legs are pulled up to her chest thereby allowing a greater angle for the baby\u2019s shoulders to be delivered; \u201csupra pubic pressure\u201d which involves the application of pressure on the lower portion of the mother\u2019s stomach in an effort to push the baby\u2019s shoulder down and disengage the pubic bone; the \u201cWood screw maneuver\u201d in which the obstetrician reaches into the mother\u2019s vagina and pushes upward on the baby\u2019s shoulder; a \u201cposterior arm delivery\u201d where the obstetrician again reaches inside the mother\u2019s vagina and applies pressure to the baby\u2019s posterior arm in an effort to sweep it over the baby\u2019s head; and, as a last resort, the \u201cZavenelli Maneuver\u201d in which the obstetrician pushes the baby\u2019s head back inside and proceeds with a cesarean delivery.\nBased on his review of the medical records and the deposition testimony, Dr. Jones concluded that defendant failed to identify in Ms. Leatherwood the risk factors associated with shoulder dystocia and to properly utilize the procedures to be used in resolving a shoulder dystocia emergency. Specifically, he noted defendant did not take into account that Ms. Leatherwood had been diagnosed with gestational diabetes or that Amelia was likely to have a large fetal weight. Additionally, Dr. Jones stated the medical records and deposition testimony showed that the \u201cMcRobert\u2019s procedure\u201d was applied before and not after Amelia\u2019s head had been produced and that pressure had been applied to the upper rather than lower portion of Ms. Leatherwood\u2019s stomach. Ultimately, Dr. Jones opined that defendant had applied excessive lateral traction during Amelia\u2019s birth, which caused a tear of the C8-T1 nerve root in her left brachial plexus and resulted in her Erb\u2019s Palsy condition.\nDefendant initially argues that plaintiffs failed to meet their required burden of establishing that he had breached the applicable standard of care by reason that Dr. Jones could not articulate the precise amount of lateral traction an obstetrician in Asheville or a similar community would have used when faced with a shoulder dystocia emergency. However, the record reveals that, after reviewing all of the medical records and deposition testimony, Dr. Jones concluded that defendant had not properly performed the procedures utilized in resolving a shoulder dystocia emergency. In his opinion, defendant had used excessive lateral traction beyond that which was the applicable standard of practice among obstetricians who practiced in Asheville and similar communities. Although Dr. Jones was unable to articulate precisely what amount of lateral traction he considered to be excessive, the record shows he visually demonstrated his testimony though the use of the anatomical models in which he illustrated for the jury the amount of pressure to be applied. When considered in the light most favorable to plaintiffs, we conclude Dr. Jones\u2019 testimony established an issue of fact to be resolved by the jury.\nDefendant also argues that plaintiffs failed to establish the applicable standard in that Dr. Jones was unfamiliar with the standard of care in Asheville or similar communities at the time of Amelia\u2019s injury. He maintains that, as a result, Dr. Jones\u2019 testimony related only to a national standard of care which is not permitted under N.C. Gen. Stat. \u00a7 90-21.12.\nIn support of this argument, defendant cites Henry v. Southeastern OB-GYN Assoc., P.A., 145 N.C. App. 208, 550 S.E.2d 245, aff\u2019d, 354 N.C. 570, 557 S.E.2d 530 (2001). Like the case before us, Henry involved a medical malpractice claim concerning the delivery of a baby involving a shoulder dystocia emergency. The plaintiffs offered the testimony of an expert obstetrician gynecologist with a practice in Spartanburg, South Carolina, against a defendant who practiced in Wilmington. However, at trial the plaintiffs\u2019 expert failed to testify that he was familiar with the standard of care in Wilmington or like communities and, in fact, stated in a pretrial deposition that he did not know anything about Wilmington. Nevertheless, the plaintiffs maintained that their expert was familiar with the standard of care in Spartanburg and that the standard was the same as that applied at Duke Hospital in Durham and UNC-Hospital in Chapel Hill. Therefore, they argued, the expert could testify as to the applicable standard of care in Wilmington. Id. at 208-09, 543 S.E.2d at 912. This Court disagreed and held the expert did not satisfy the requirements set forth in N.C. Gen. Stat. \u00a7 90-21.12. Id. at 213-14, 543 S.E.2d at 914.\nWe find the facts in Henry notably distinguishable from those in this case. In contrast with the expert in Henry, Dr. Jones specifically testified that he had \u201cknowledge of the standards of practice among obstetricians with similar training and experience as that of [defendant] in Asheville and similar communities [at the time of Amelia\u2019s injury] with regard to the appropriate management of shoulder dys-tocia in delivering children.\u201d Additionally, he testified that, as a medical student, he attended rounds at the hospital in which Amelia was delivered. Further, the record shows that Dr. Jones practices in Greenville, South Carolina and has practiced in communities in Alabama and Mississippi, which are similar in size to Asheville. Finally, he specifically testified that \u201cAsheville and other communities that size practice in the same national standards\u201d with respect to the management of shoulder dystocia. See Baynor v. Cook, 125 N.C. App. 274, 278, 480 S.E.2d 419, 421, disc. rev. denied, 346 N.C. 275, 487 S.E.2d 537 (1997) (noting that the \u201csimilar community\u201d requirement of N.C. Gen. Stat. \u00a7 90-21.12 is not confined to North Carolina but would apply to adjoining and nearby communities \u201cwithin or without our State\u201d). As such, Dr. Jones made \u201cthe statutorily required connection to the community in which the alleged malpractice took place or to a similarly situated community\u201d which this Court found was lacking in Henry. See Henry, 145 N.C. App. at 210, 543 S.E.2d at 913 (quoting Tucker v. Meis, 127 N.C. App. 197, 198, 487 S.E.2d 827, 829 (1997)); see also Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973); Haney v. Alexander, 71 N.C. App. 731, 323 S.E.2d 430 (1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985); Howard v. Piver, 53 N.C. App. 46, 279 S.E.2d 876 (1981).\nWe conclude plaintiffs provided sufficient evidence with respect to the applicable standard of care and defendant\u2019s breach of that standard to raise an issue of fact for the jury. Therefore, defendant was not entitled to a directed verdict on these grounds.\nB. Proximate Causation\nAdditionally, defendant argues a directed verdict was proper in that plaintiffs failed to provide sufficient evidence showing a causal link between his care and Amelia\u2019s injury. Specifically, he maintains Dr. Jones\u2019 conclusion that excessive lateral traction can cause a tearing of the C8-T1 nerve root in the brachial plexus is not supported by the relevant \u201cmedical literature.\u201d\nAt its core, defendant\u2019s argument raises the question of whether Dr. Jones\u2019 causation opinion was sufficiently reliable to be presented to the jury. It is a well established principle that unless an expert\u2019s testimony on the issue of medical causation is sufficiently reliable, it is not considered competent evidence and therefore should not be presented to the jury. See Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000). \u201c[A]n expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\u201d Id. (citations omitted). Whether scientific opinion evidence is sufficiently reliable and relevant is a matter entrusted to the sound discretion of the trial court. State v. Spencer, 119 N.C. App. 662, 664, 459 S.E.2d 812, 814, disc. rev. denied, 341 N.C. 655, 462 S.E.2d 524 (1995) (citations omitted).\nImplicit in the rules governing the admissibility of an expert\u2019s opinion is a precondition that the matters or data upon which the expert bases his opinion be recognized as sufficiently reliable and relevant by the scientific community. Id. (citing Daubert v. Merrell Dow, 509 U.S. 579, 125 L. Ed. 2d 469 (1993); State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984) and N.C. Gen. Stat. \u00a7 8C-1, Rule 703 (1992)). Further, our Supreme Court has identified several indices of reliability including: \u201cthe expert\u2019s use of established techniques, the expert\u2019s professional background in the field, the use of visual aids before the jury so that the jury is not asked \u2018to sacrifice its independence by accepting [the] scientific hypotheses on faith,\u2019 and independent research conducted by the expert.\u201d State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852-53 (1990); sec also State v. Berry, 143 N.C. App. 187, 203-04, 546 S.E.2d 145, 157, disc. rev. denied, 353 N.C. 729, 551 S.E.2d 439 (2001).\nAgain, the record shows that Dr. Jones reviewed the medical records and deposition testimony. He based his opinion with respect to the cause of Amelia\u2019s injury on his training as an obstetrician gynecologist and his extensive experience with shoulder dystocia emergencies and brachial plexus injuries. He testified that birth simulated studies using manikin and cadaver models support his conclusion that, if during delivery an obstetrician applies a downward level of traction involving excessive pressure, an injury to the C8-T1 area of the baby\u2019s brachial plexus could result. This testimony clearly demonstrates his opinion that Amelia\u2019s injury was causally linked to defendant\u2019s care, was based on more than mere speculation, and was sufficiently reliable to be submitted to the jury.\nMoreover, \u201c[c]ausation is an inference of fact to be drawn from other facts and circumstances.\u201d Turner v. Duke University, 325 N.C. 152, 162, 381 S.E.2d 706, 712 (1989) (citing Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984)). Accordingly, proximate cause is normally a question best answered by the jury. Id.; see also Felts v. Liberty Emergency Service, P.A., 97 N.C. App. 381, 390, 388 S.E.2d 619, 624 (1990). Thus, we conclude plaintiffs presented sufficient evidence as to the proximate cause of Amelia\u2019s injury to overcome defendant\u2019s motion for a direct verdict.\nFor the reasons set forth above, we conclude that plaintiffs presented sufficient evidence to establish the applicable standard of care, a breach of the standard of care and proximate causation. Therefore, we hold the trial court improperly granted defendant\u2019s motion for a directed verdict. We reverse and remand the case for a new trial.\nII.\nIn view of the likelihood that defendant will again seek to exclude Dr. Jones\u2019 testimony, we address defendant\u2019s contention that Dr. Jones is not properly qualified to give expert testimony. Rule 702(b) controls the admissibility of expert testimony on behalf of or against a medical \u201cspecialist.\u201d See FormyDuval v. Bunn, 138 N.C. App. 381, 383-84, 530 S.E.2d 96, 98-99, disc. rev. denied, 353 N.C. 262, 546 S.E.2d 93 (2000). To qualify as an expert, the witness must be a licensed health care provider in this or another state and meet the following two criteria:\n(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:\na. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or\nb. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.\n(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:\na. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or\nb. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the . same specialty.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702(b). Defendant maintains plaintiffs failed to qualify Dr. Jones pursuant to either of the criteria set forth in Rule 702(b) in that Dr. Jones is not of the same or similar specialty as defendant and that he did not actively practice as an obstetrician in the year prior to Amelia\u2019s injury.\nWith respect to whether Dr. Jones is of the same or similar specialty as defendant, this Court recently addressed a similar issue in Edwards v. Wall, 142 N.C. App. 111, 542 S.E.2d 258 (2001). In Edwards, the plaintiffs sought to establish the applicable standard of care through the testimony of an expert certified as a pediatrician with a subspecialty in pediatric gastroenterology. However, the defendant was certified as a pediatrician. This Court held that the expert\u2019s certification as a pediatric gastroenteronologist, nevertheless, satisfied the criteria of Rule 702(b)(1). Edwards, 142 N.C. at 116, 542 S.E.2d at 263.\nDefendant contends Edwards is distinguishable from this case arguing that, unlike the expert in Edwards, Dr. Jones\u2019 subspecialty training \u201cheightened the standard of care\u201d against which the jury was to judge defendant\u2019s performance. We disagree.\nThe record shows that both Dr. Jones and defendant belong to the American College of Obstetrics and Gynecology. Dr. Jones testified that \u201c[a]ll perinatologists are first obstetrician gynecologists\u201d and that perinatology, like obstetrics, includes \u201cthe performance in management of shoulder dystocia.\u201d He also testified that even though he is considered a perinatologist, he continues to practice as an obstetrician gynecologist. Thus, we conclude Dr. Jones is of the same or similar specialty as defendant such that he meets the criteria set forth in Rule 702(b)(1).\nAdditionally, Dr. Jones testified that, in the year preceding Amelia\u2019s birth, he devoted a majority of his time \u201cto the clinical practice of obstetrics and gynecology\u201d including \u201cthe performance of management of shoulder dystocia.\u201d Hence, we also conclude Dr. Jones satisfied the criteria set forth in Rule 702(b)(2). Therefore, the trial court did not err in denying defendant\u2019s motion to strike Dr. Jones\u2019 testimony.\nIII.\nLastly, we note that plaintiffs have assigned as error the sequestration of Dr. Jones. The record shows that, upon defendant\u2019s motion, the trial court sequestered all witnesses called by the parties. Plaintiffs then requested that Dr. Jones be allowed to be present so that he might \u201chear the lay witness testimony from our clients\u201d as \u201cnot all the questions that need[ed] to be asked in their depositions were asked.\u201d Defendant objected citing his concern that Dr. Jones would be forming new opinions based on new testimony. The trial court then denied plaintiffs\u2019 request.\nThe sequestration of witnesses rest within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. See State v. Stanley, 310 N.C. 353, 357, 312 S.E.2d 482, 485 (1984) and Stanback v. Stanback, 31 N.C. App. 174, 179, 229 S.E.2d 693, 696 (1976), disc. rev. denied, 291 N.C. 712, 232 S.E.2d 205 (1977). While the sequestering of witnesses in civil cases of this nature is ordinarily not raised as an issue, we note the record here is unclear as to why the trial court ordered the sequestering of all witnesses. However, we decline to address the issue as it is likely not to arise on remand.\nIn sum, the trial court did not err in denying defendant\u2019s motion to strike Dr. Jones\u2019 testimony. The trial court\u2019s granting of a directed verdict for defendant is reversed.\nNew trial.\nJudge HUNTER and BRYANT concur.\n. Defendant also argued that Dr. Jones was not qualified under Rule 702(b) to provide expert testimony concerning the applicable standard of care. However, the trial court\u2019s denial of defendant\u2019s motion to strike Dr. Jones\u2019 testimony makes it unlikely that it granted defendant a directed verdict on these grounds. We address defendant\u2019s cross-assignment of error related to this issue in Section II of the opinion.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Long, Parker, Warren & Jones, P.A., by Steve Warren, for plaintiff s-appellants.",
      "Dean & Gibson, L.L.P., by Rodney A. Dean and John W. Ong, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "NELLY LEATHERWOOD, individually, NELLY LEATHERWOOD and JAMES DAVID COOPER, Guardian Ad Litems for AMELIA JANENE COOPER, and NELLY LEATHERWOOD and JAMES DAVID COOPER, individually, Plaintiffs v. THOMAS M. EHLINGER, M.D., Defendant\nNo. COA01-728\n(Filed 18 June 2002)\n1. Medical Malpractice\u2014 standard of care \u2014 injury during birth \u2014 directed verdict\nThe trial court erred by granting a directed verdict for defendant in a medical malpractice action arising from a birth on the ground that plaintiffs had been unable to establish breach of the applicable standard of care where plaintiffs\u2019 expert concluded that defendant had not properly performed the procedures utilized in resolving this emergency and that defendant had used excessive traction. Although the expert was unable to articulate precisely the amount of lateral traction he considered excessive, the record shows that he visually demonstrated his testimony with models and illustrated the amount of pressure to be applied.\n2. Medical Malpractice\u2014 standard of care \u2014 obstetrics\u2014familiarity of expert\nDefendant was not entitled to a directed verdict in a medical malpractice action on the ground that plaintiffs failed to establish the applicable standard of care in Asheville where plaintiffs\u2019 expert specifically testified that he had knowledge of the standards of practice among obstetricians with similar training and experience in Asheville and similar communities; he had attended rounds as a medical student in the hospital in which this delivery occurred; he had practiced in communities similar in size to Asheville; and he specifically testified that Asheville and other communities of that size practice the same national standards with respect to this condition.\n3. Medical Malpractice\u2014 injury during birth \u2014 proximate cause \u2014 sufficiency of evidence\nThe plaintiffs in a medical malpractice action arising from an injury during birth presented sufficient evidence as to proximate cause to overcome a motion for directed verdict where defendant contended that the testimony of plaintiffs\u2019 expert was not supported by the relevant medical literature, but the record shows that the expert reviewed the medical records and deposition testimony and based his opinion as to the cause of the injury on his training and extensive experience with these injuries. His testimony clearly demonstrates that his opinion was based on more than speculation and was sufficiently reliable to be submitted to the jury.\n4. Medical Malpractice\u2014 obstetrician \u2014 qualified as expert\nThe trial court did not err in a medical malpractice action arising from a birth by denying defendant\u2019s motion to strike the testimony of plaintiffs\u2019 expert on the ground that plaintiffs\u2019 expert was not of the same or similar specialty as defendant and did not actively practice as an obstetrician in the year prior to the delivery in question. The record shows that both doctors belong to the American College of Obstetrics and Gynecology; the expert, a perinatologist, testified that all perinatologists are first obstetrician gynecologists; that perinatology, like obstetrics, includes the management of this injury; and that he continued to practice as an obstetrician gynecologist with the majority of his time in the year preceding this birth being devoted to the clinical practice of obstetrics and gynecology.\nAppeal by plaintiffs from judgment entered 22 December 2000 by Judge James R. Vosburgh in Swain County Superior Court. Heard in the Court of Appeals 13 March 2002.\nLong, Parker, Warren & Jones, P.A., by Steve Warren, for plaintiff s-appellants.\nDean & Gibson, L.L.P., by Rodney A. Dean and John W. Ong, for defendant-appellee."
  },
  "file_name": "0015-01",
  "first_page_order": 45,
  "last_page_order": 57
}
