{ "id": 9248869, "name": "SANDRA P. SUAREZ, as Guardian Ad Litem for ANDERSON LUKE SUAREZ, and ALEX SUAREZ and SANDRA P. SUAREZ, Individually, Plaintiffs v. JAMES WILLIAM WOTRING, JR., M.D., SCOTT THOMAS CHATHAM, M.D., and CATAWBA WOMEN'S CENTER, P.A., Defendants", "name_abbreviation": "Suarez v. Wotring", "decision_date": "2002-12-31", "docket_number": "No. COA02-108", "first_page": "20", "last_page": "35", "citations": [ { "type": "official", "cite": "155 N.C. App. 20" } ], "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": "516 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "860-61", "parenthetical": "emphasis in original" }, { "page": "861", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "350 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132071 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "625", "parenthetical": "emphasis in original" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0621-01" ] }, { "cite": "480 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "345 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53948 ], "year": 1997, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0480-01" ] }, { "cite": "86 S.E. 1050", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "170 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659292 ], "year": 1915, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0365-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1982, "pin_cites": [ { "page": "602" }, { "page": "603" }, { "page": "603" }, { "page": "604" }, { "page": "605" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "482" }, { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "362 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "275-76", "parenthetical": "emphasis and alterations in original" } ], "opinion_index": 0 }, { "cite": "321 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569131 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0260-01" ] }, { "cite": "281 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "730-31" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 746", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523499 ], "year": 1981, "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0746-01" ] }, { "cite": "252 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549003 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0120-01" ] }, { "cite": "328 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "864", "parenthetical": "\"[a]ll or part of a deposition may be used only if the provisions of G.S. 1A-1, Rule 32(a) are met.\"" }, { "page": "864" }, { "page": "864" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524744 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "409", "parenthetical": "\"[a]ll or part of a deposition may be used only if the provisions of G.S. 1A-1, Rule 32(a) are met.\"" }, { "page": "409" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0402-01" ] }, { "cite": "464 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917470 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "659" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0650-01" ] }, { "cite": "413 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "273-74" }, { "page": "273", "parenthetical": "1992" } ], "opinion_index": 0 }, { "cite": "330 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513028 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "691-92" }, { "page": "690-91" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0681-01" ] }, { "cite": "864 F.2d 201", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525681 ], "year": 1988, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/f2d/864/0201-01" ] }, { "cite": "868 F.2d 1328", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536116 ], "year": 1989, "pin_cites": [ { "page": "1339" } ], "opinion_index": 0, "case_paths": [ "/f2d/868/1328-01" ] }, { "cite": "935 F.2d 1340", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 5681876, 10541438 ], "year": 1991, "pin_cites": [ { "page": "1342" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/290/0221-01", "/f2d/935/1340-01" ] }, { "cite": "11 F.3d 957", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11323893 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "962-63" }, { "page": "963" } ], "opinion_index": 0, "case_paths": [ "/f3d/11/0957-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 } ], "analysis": { "cardinality": 1202, "char_count": 34888, "ocr_confidence": 0.752, "pagerank": { "raw": 3.584984002628308e-07, "percentile": 0.8869573090940823 }, "sha256": "cecc88e17fb7e80d1af632e59e4b4d9ee7aeedb33d2be1298465a081f06e9d35", "simhash": "1:3fab5f2a5e4cb546", "word_count": 5641 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs.", "Chief Judge EAGLES concurs in a separate opinion." ], "parties": [ "SANDRA P. SUAREZ, as Guardian Ad Litem for ANDERSON LUKE SUAREZ, and ALEX SUAREZ and SANDRA P. SUAREZ, Individually, Plaintiffs v. JAMES WILLIAM WOTRING, JR., M.D., SCOTT THOMAS CHATHAM, M.D., and CATAWBA WOMEN\u2019S CENTER, P.A., Defendants" ], "opinions": [ { "text": "THOMAS, Judge.\nPlaintiffs, Sandra P. Suarez, as guardian ad litem for Anderson Luke Suarez and in her individual capacity, and Alex Suarez, appeal the trial court\u2019s entry of judgment on the jury\u2019s verdict in favor of defendants in this medical negligence case. Plaintiffs also appeal the trial court\u2019s denial of their motion for a new trial as to defendant James William Wotring, M.D.\nPlaintiffs contend the trial court committed reversible error by (1) allowing defendants to read into the record selected portions of the depositions of three of plaintiffs\u2019 expert witnesses after they had been released from subpoena with defendants\u2019 consent following their testimony at trial; (2) allowing defendants to read into the record the deposition testimony of one of plaintiffs\u2019 designated expert witnesses who did not testify at trial, without finding the witness unavailable to testily; (3) allowing testimony from one of defendants\u2019 expert witnesses concerning the standard of care and whether defendants complied with the standard of care, when defendants\u2019 designation of expert witnesses did not state the expert would so testify; (4) denying their motion for a new trial based on the jury being informed prior to the close of defendants\u2019 case that Dr. Wotring\u2019s mother had died the previous evening; and (5) denying their motion for a new trial based on the evidence being insufficient to support the jury\u2019s verdict. For the reasons herein, we affirm the judgment and order of the trial court.\nOn 15 October 1998, plaintiffs filed the instant complaint alleging defendants, James William Wotring, M.D., Scott Thomas Chatham, M.D., and Catawba Women\u2019s Center, P.A., negligently caused injuries and other damages sustained by Anderson Suarez during his natural birth delivery. Defendants denied that their actions prior to and during the birth violated the applicable standard of care.\nPlaintiffs\u2019 evidence at trial tends to show that Sandra and Alex Suarez are the parents of two children. Sandra became pregnant with their first child in September 1989. She received prenatal care at defendant Catawba Women\u2019s Center and the delivery of her first child was accomplished with the aid of doctors and other employees at the Women\u2019s Center. The delivery, however, required an episiotomy and the use of forceps.\nIn February 1995, Sandra became pregnant with Anderson Suarez. At the time, she weighed 232 pounds and was five feet six inches in height. During her prenatal care at the Women\u2019s Center, she continuously reminded defendants that the birth of her first child was difficult. Sandra eventually began experiencing numbness in her leg, which she attributed to pressure being caused by the baby. She expressed her concerns to defendants that the baby was too large to deliver vaginally if she went to term.\nOn 6 October 1995, four days prior to the due date, Dr. Chatham performed an ultrasound which revealed the baby weighed approximately nine pounds. Sandra reminded him about the difficulties she experienced with her first delivery and asked if he would consider inducing labor. Chatham told her not to worry about delivering the baby vaginally.\nIn the early morning hours of 18 October 1995, Sandra began experiencing contractions and telephoned Dr. Wotring. He did not answer. Sandra left three messages, none of which were returned. When the Women\u2019s Center opened that morning, she called and was told to come in. Sandra was initially examined by Chatham and told to return home because Wotring would not send her to the hospital until she was dilated four centimeters and the contractions occurred every four minutes. Upon her insistence, Chatham reluctantly sent her to Catawba Memorial Hospital, where she was admitted around noon.\nAt the hospital, Sandra received an epidural, numbing her below the waist. After breaking Sandra\u2019s water, Wotring decided to proceed with a vaginal delivery, but to artificially shorten the second stage. Wotring attached a vacuum extractor suction unit to the baby\u2019s head and delivered the head on the fourth contraction.\nHowever, delivery of the rest of the baby\u2019s body proved extremely difficult. Because the baby was so large and Sandra\u2019s pelvis was borderline and her symphysis flat, there was \u201cshoulder dystocia\u201d involving the baby\u2019s left shoulder \u2014 the position of the shoulder prevented the body from proceeding down the birth canal.\nBefore performing any maneuvers to relieve the shoulder dysto-cia, Wotring applied pressure to Anderson\u2019s head in an attempt to deliver the rest of the body. According to Alex Suarez, who was present in the delivery room, Wotring had his fingers in the sockets of the baby\u2019s eyes and was leaning back with his full body weight trying to deliver the baby. When this proved unsuccessful, Wotring resorted to the McRoberts maneuver, a recognized method to relieve shoulder dystocia which does not involve manipulation of or pressure on the baby\u2019s head. Anderson was delivered during the second attempt at the McRoberts maneuver. He weighed nine pounds, eleven ounces.\nAt birth, Anderson suffered from numerous injuries and currently suffers from Erb\u2019s Palsy, a permanent condition characterized by limited use of his left arm. The cause is severe damage to the nerves running between Anderson\u2019s left arm and spinal cord resulting from the nerves having been physically stretched to the breaking point. According to plaintiffs, the condition resulted from a brachial plexus nerve root injury suffered at Anderson\u2019s birth due to excessive lateral traction applied to his head during delivery. Plaintiffs\u2019 experts testified that defendants\u2019 care prior to and during the delivery of Anderson, particularly Wotring\u2019s use of excessive force on Anderson\u2019s head, was not in accordance with the standard of practice of members of the same health care profession with similar training and experience situated in the same or similar communities. See N.C. Gen. Stat. \u00a7 90-21.12 (2001). Defendants\u2019 experts testified that the standard of care was not violated.\nFollowing the trial, the jury returned the following verdict:\n1. Was Anderson Luke Suarez injured as a result of the negligence of James William Wotring, M.D.?\nANSWER: NO\n2. Was Anderson Luke Suarez injured as a result of the negligence of Scott Thomas Chatham, M.D.?\nANSWER: NO\nThe trial court subsequently entered judgment consistent with the jury\u2019s verdict.\nPlaintiffs filed a timely Rule 59 motion for a new trial as to Wotring alleging (1) irregularities by which they were prevented from having a fair trial, (2) accident or surprise which ordinary prudence could not have guarded against, (3) insufficiency of the evidence to justify the verdict, and (4) other errors in law entitling them to a new trial.\nPlaintiffs\u2019 motion was denied. They gave timely notice of appeal.\nDuring plaintiffs\u2019 case-in-chief, Dr. Robert Allen, their bio-medical engineering expert, testified regarding the forces exerted during a routine delivery, and the forces necessary to cause the injuries suffered by Anderson. Allen offered his opinion that approximately ten pounds of force is exerted on a baby in a normal delivery, whereas in shoulder dystocia cases, the average is twenty-two pounds. Allen further opined that, based on Anderson\u2019s injuries, at least thirty-five pounds of force were exerted on Anderson\u2019s head during delivery. Allen was cross-examined at trial by defendants, and then released from subpoena with defendants\u2019 consent.\nAfter plaintiffs rested, defense counsel stated his intention to read into evidence a portion of Allen\u2019s pretrial deposition. Plaintiffs objected. The trial court overruled the objection and defense counsel read part of the deposition to the jury.\nIn addition to the pretrial deposition of Allen, defense counsel also read into the record portions of the pretrial depositions of Dr. Andrew Roman, Anderson\u2019s treating orthopaedic surgeon, and Dr. Stuart Edelberg, both of whom had likewise testified in plaintiffs\u2019 case-in-chief and been released from subpoena with defendants\u2019 consent.\nPlaintiffs contend the depositions of Allen, Roman and Edelberg should not have been read into the record because defendants did not establish that the deponents were \u201cunavailable\u201d within the meaning of Rule 804(a) of the North Carolina Rules of Evidence. Rule 804 permits the admission of certain statements, including deposition testimony, which would otherwise be hearsay, if the declarant is \u201cunavailable.\u201d Defendants, meanwhile, maintain the depositions were admissible under Rule 32 of the North Carolina Rules of Civil Procedure without a showing of \u201cunavailability\u201d under Rule 804(a).\nRule 32(a) of the North Carolina Rules of Civil Procedure states, in pertinent part:\n(a) Use of depositions. \u2014 At the trial or upon the hearing of a motion or an interlocutory proceeding or upon a hearing before a referee, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:\nN.C.R. Civ. P. 32(a) (2001) (emphasis added). The above-italicized language in Rule 32(a) creates an exception to the hearsay rule. The Comment to the 1975 Amendment to Rule 32(a), which added the language, states:\nA change is made in new Rule 32(a), whereby it is made clear that the rules of evidence are to be applied to depositions offered at trial as though the deponent were then present and testifying at trial. This eliminates the possibility of certain technical hearsay objections which are based, not on the contents of deponent\u2019s testimony, but on his absence from court. . . .\nN.C.R. Civ. P. 32(a), comment.\nFederal courts applying Federal Rule of Civil Procedure 32(a), the companion provision to N.C.R. Civ. P. 32(a), have consistently held that it creates an independent exception to the hearsay rule. See Angelo v. Armstrong World Industries, Inc., 11 F.3d 957, 962-63 (10th Cir. 1993); Southern Indiana Broadcasting, Ltd. v. F.C.C., 935 F.2d 1340, 1342 (D.C. Cir. 1991); U.S. v. Vespe, 868 F.2d 1328, 1339 (3d Cir. 1989); Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st. Cir. 1988). Under the federal rules and applicable case law, the proponent of deposition testimony has the burden of proving the deposition is admissible under Fed.R.Civ.P. 32(a) or Fed.R.Evid. 804(b)(1). Angelo, 11 F.3d at 963.\nThis interpretation is reinforced by subsection (b) of both Federal Rule 32 and North Carolina Rule 32, which states that \u201cobjection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.\u201d N.C.R. Civ. P. 32(b); Fed.R.Civ.P. 32(b).\nNonetheless, plaintiffs argue that deposition testimony is not admissible, for any purpose, unless the proponent proves admissibility under both Rule 32 of the Rules of Civil Procedure and Rule 804 of the Rules of Evidence. Since Allen, Roman and Edelberg all testified at trial and were released from subpoena with defendants\u2019 consent, plaintiffs maintain they were not \u201cunavailable\u201d within the meaning of Rule 804(a) and, therefore, their deposition testimony was inadmissible.\nPlaintiffs rely on our Supreme Court\u2019s decision in Investors Title Insurance Co. v. Herzig, 330 N.C. 681, 413 S.E.2d 268 (1992) and this Court\u2019s decision in Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d 47 (1995), to support their interpretation.\nIn both Investors Title and Pleasant Valley, the trial court found the witnesses whose deposition testimonies were offered to be \u201cunavailable\u201d under Rule 804(a). The Supreme Court concluded in Investors Title that (1) the \u201cunavailability\u201d test in the former testimony exception to the hearsay rule was met, and (2) the party against whom the deposition was offered had an opportunity and similar motive to develop the offered testimony by cross-examination at the deposition, thus meeting the requirements of Rule 804(b)(1). Investors Title, 330 N.C. at 691-92, 413 S.E.2d at 273-74; see also N.C.R. Evid. 804(b)(1) (an unavailable witness\u2019s deposition is admissible at trial \u201cif the party against whom the testimony is . . . offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination\u201d). Accordingly, the Court held the challenged deposition testimony was properly admitted.\nIn Pleasant Valley, the witness was \u201cunavailable\u201d under Rule 804(a) but the Court concluded the party against whom the deposition was offered at trial did not have a motive to develop the deposition testimony because, at the time of the deposition, no damages claim was pending against that party. Pleasant Valley, 120 N.C. App. at 659, 464 S.E.2d. at 55. Accordingly, the Court held the deposition testimony to have been properly excluded.\nUnlike the witnesses in Investors Title and Pleasant Valley, Allen, Roman, and Edelberg were all available to testify at trial. In fact, they all testified before being released from subpoena with defendants\u2019 consent. Thus, Investors Title and Pleasant Valley are not binding precedent on the issue presented here \u2014 whether the deposition of a witness who is available to testify is admissible under Rule 32(a).\nHaving reviewed the text of Rule 32(a) of the North Carolina Rules of Civil Procedure, the comment to the 1975 amendment to Rule 32(a), and applicable case law interpreting the companion federal rule, we hold that the deposition of an available witness is admissible under Rule 32(a), so long as one of the enumerated purposes set forth in Rule 32(a) have been met. When a witness is available, Rule 32(a) creates an independent exception to the hearsay rule and the proponent of that witness\u2019s deposition testimony need only show that (1) the party against whom the deposition is offered was present or represented at the deposition or had reasonable notice thereof, and (2) one of the enumerated purposes of Rule 32 is met. N.C.R. Civ. P. 32(a).\nRule 32 states as one of its purposes:\n(2) The deposition of a person called as a witness may also be used as substantive evidence by any party adverse to the party who called the deponent as a witness ....\nN.C.R.Civ. P. 32(a)(2).\nHere, Allen, Roman, and Edelberg were all called as witnesses by plaintiffs. Defendants, in turn, are \u201cadverse to the party who called the deponent as a witness.\u201d Plaintiffs were present and represented at the taking of the depositions thereby meeting the requirement found in the introductory paragraph of Rule 32(a). Accordingly, Rule 32(a) permitted defendants to use any part or all of the depositions of Allen, Roman and Edelberg, who were available, as substantive evidence. The trial court did not commit error.\nPlaintiffs next contend the trial court erred in allowing the admission of selected portions of the deposition testimony of Dr. Ronald Foote.\nDuring discovery, plaintiffs designated Foote as an expert witness who was expected to testify that defendants failed to comply with the applicable standard of care in their delivery of Anderson Suarez. Foote\u2019s deposition was subsequently taken by defendants\u2019 counsel.\nHowever, plaintiffs did not call Foote to testify during their casein-chief. After plaintiffs rested, defense counsel, over objection, read excerpts from Foote\u2019s deposition to the jury. Plaintiffs argue this was error because the trial court made no finding that Foote was \u201cunavailable\u201d within the meaning of Rule 804.\nWe agree with plaintiffs that the trial court erred in allowing the admission of Foote\u2019s deposition testimony. However, we do so for a reason different than the one cited by plaintiffs.\nInvestors Title and Pleasant Valley hold: \u201cTo be admissible at trial, the deposition of an unavailable non-party witness must meet the requirements of both N.C.R. Civ. P. 32 and N.C.R. Evid. 804(b)(1).\u201d Pleasant Valley, 120 N.C. App. at 659, 464 S.E.2d at 55 (citing Investors Title, 330 N.C. at 690-91, 413 S.E.2d at 273 (1992). In the instant case, we hold that the deposition of an available witness is admissible under Rule 32, so long as one of the stated purposes set forth in Rule 32(a)(l)-(5) has been met. Therefore, regardless of whether a witness is available or unavailable, one of the stated purposes in Rule 32(a) must be met before that witness\u2019s deposition testimony can be admitted for any purpose. See Warren v. City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864 (1985) (\u201c[a]ll or part of a deposition may be used only if the provisions of G.S. 1A-1, Rule 32(a) are met.\u201d); Nytco Leasing v. Southeastern Motels, 40 N.C. App. 120, 252 S.E.2d 826 (1979).\nDefendants maintain the reading of Foote\u2019s deposition was permitted under Rule 32(a)(4), which states:\n(4) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . that the witness is at a greater distance than 100 miles from the place of trial or hearing . . .; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena....\nN.C.R. Civ. P. 32(a)(4).\nHowever, the trial transcript does not contain a finding by the trial court that Foote was more than 100 miles away from the place of the trial or that defendants had been unable to procure his attendance by subpoeana. The record does show the trial court was informed by defense counsel that Foote resided in Buffalo, New York. Following this declaration, a bench conference was held, the contents of which were not transcribed. The trial court then overruled plaintiffs\u2019 objection and Foote\u2019s deposition was read to the jury. Although the trial court was informed that Foote lived in Buffalo, which is well over 100 miles from Catawba County, it made no findings to support its admission of Foote\u2019s deposition. Absent any findings, we refuse to speculate as to the grounds for the trial court\u2019s ruling. Thus, we conclude the trial court erred in allowing the reading of Foote\u2019s deposition to the jury.\nHowever, an error in the admission of evidence is not grounds for granting a new trial or setting aside a verdict unless the admission amounts to the denial of a substantial right. See N.C.R. Civ. P. 61 (2001); N.C.R. Evid. 103(a) (2001). The burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have likely ensued had the error not occurred. Warren, 74 N.C. App. at 409, 328 S.E.2d at 864; Hasty v. Turner, 53 N.C. App. 746, 750, 281 S.E.2d 728, 730-31 (1981). The erroneous admission of testimony will not be held prejudicial when its import is abundantly established by other competent testimony, or the testimony is merely cumulative or corroborative. Warren, 74 N.C. App. at 409, 328 S.E.2d at 864.\nThe portion of Foote\u2019s deposition read to the jury indicted the following: (1) shoulder dystocia is an unpredictable event; (2) in Dr. Foote\u2019s opinion, the maneuvers documented by Dr. Wotring as having been used in the delivery of Anderson Suarez did not violate the standard of care; and (3) if Wotring delivered Anderson with the force described by Alex Suarez, he violated the standard of care.\nPlaintiffs and defendants both elicited other expert evidence that shoulder dystocia is an unpredictable event. Dr. Donald Homer, one of plaintiffs\u2019 experts, and Dr. Joseph Ernest, defendants\u2019 obstetrical expert, both testified to this fact. Ernest also opined that, based on the information documented by Wotring in Anderson\u2019s medical charts, Wotring performed the right maneuvers at the right time. Thus, the reading of Foote\u2019s deposition served only to corroborate competent evidence already before the jury as to issues (1) and (2) above. In addition, Foote\u2019s opinion that Wotring violated the standard of care if he used the force described by Alex Suarez is supportive of plaintiffs\u2019 case and in no way prejudicial. Accordingly, plaintiffs cannot show prejudice in the admission of Foote\u2019s deposition testimony, and we hold the admission of the evidence to be harmless error.\nPlaintiffs next contend the trial court erred in allowing the testimony of Dr. Gary Hankins regarding the standard of care required of defendants and whether they complied with that standard.\nPrior to trial, the court entered a discovery scheduling order (DSO) pursuant to Rule 26(fl) of the North Carolina Rules of Civil Procedure. The DSO required defendants to designate all expert witnesses they intended to call to render expert opinions at trial, and provide the experts\u2019 curriculum vitae (CV) and the information set forth in Rule 26(b)(4) of the Rules of Civil Procedure. Rule 26(b)(4) provides that a party may be required to identify each expert witness the party anticipates calling at trial, \u201cthe subject matter on which the expert is expected to testify, . . . the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.\u201d N.C.R. Civ. P. 26(b)(4) (2001).\nDefendants subsequently filed their designation of expert witnesses which identified Hankins and stated \u201che is expected to testify that shoulder dystocia can be, as was in this case, an obstetrical emergency.\u201d Plaintiffs had no disagreement with this opinion, and because Hankins was not expected to testify regarding the applicable standard of care, plaintiffs elected not to depose him.\nDefendants then elicited at trial Hankins\u2019 opinion that Wotring had provided treatment to Sandra and Anderson Suarez in accordance with the standard of care. Plaintiffs objected and now argue admission of such evidence was erroneous because it violated the discovery scheduling order.\nHowever, plaintiffs have failed to show how they were prejudiced by the admission of Hankins\u2019 opinion. His testimony was cumulative and corroborative of substantially similar testimony given by defendants\u2019 other expert, Dr. Ernest. Plaintiffs have failed to show how introduction of Hankins\u2019 testimony influenced the jury\u2019s verdict. Accordingly, assuming the trial court erred, we hold the error was harmless. See N.C.R. Civ. P. 61.\nPlaintiffs next contend the trial court erred in denying their motion for a new trial against defendant Wotring based on \u201caccident or surprise which ordinary prudence could not have guarded against\u201d caused by the jury being informed near the close of defendants\u2019 case that Wotring\u2019s mother had died the preceding afternoon. We find no manifest abuse of discretion on the trial court\u2019s part.\nThe standard of appellate review for discretionary rulings granting or denying motions for new trials was set forth by the Supreme Court in Campbell v. Pitt County Memorial Hospital, 321 N.C. 260, 362 S.E.2d 273 (1987), as follows:\nAppellate review \u201cis strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge.\u201d Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). The trial court\u2019s discretion is \u201c \u2018practically unlimited.\u2019 \u201d Id., 290 S.E.2d at 603 (quoting from Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E. 1050, 1051 (1915)). A \u201cdiscretionary order pursuant to [N.C.] G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.\u201d Id. at 484, 290 S.E.2d at 603. \u201c[A] manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof.\u201d Id. at 484-85, 290 S.E.2d at 604. \u201c[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Id. at 487, 290 S.E.2d at 605.\nId. at 264-65, 362 S.E.2d at 275-76 (emphasis and alterations in original), quoted in Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997).\nOn the morning of 14 March 2001, the last day of testimony in this case, court reconvened and Wotring returned to the stand for re-cross examination. During re-cross, plaintiffs\u2019 counsel asked Wotring if he had a good night\u2019s sleep and Wotring answered he did not.\nFollowing re-cross, defense counsel returned for a second redirect examination of Wotring. At the conclusion of this redirect, the following exchange occurred:\nQ: Doctor, I didn\u2019t hear what you said when Mr Britt asked you if you had a good night. Is that what he asked you?\nA: Yeah.\nQ: Well, what did you say? I didn\u2019t hear the answer.\nA: I told him I did not.\nQ: Why did you not have a good night?\nA: Well, unfortunately, my mother passed away yesterday afternoon, and we were up most of the night making arrangements. And it was \u2014 she was ninety, but \u2014 and not unexpected, but it was still a shock.\nPlaintiffs argue defense counsel elicited the testimony regarding the death of Wotring\u2019s mother in a manner designed for maximum effect and the result of such testimony was that everyone in the courtroom, including the jurors, \u201cfelt profound sympathy for Dr. Wotring.\u201d Plaintiffs maintain such a reaction was natural and unavoidable and prevented plaintiffs from having a fair trial. We disagree.\nThe jury was instructed \u201cto perform [its] duty fairly and objectively and without bias, sympathy or partiality toward any party\u201d and \u201cnot to be swayed by pity, sympathy, partiality or public opinion.\u201d Absent some evidence in the record, we cannot assume the jury here disregarded the trial court\u2019s instruction and ignored its solemn duty to fairly and impartially decide the case. Therefore, the trial court\u2019s ruling denying plaintiffs\u2019 motion for a new trial on this ground did not amount to a substantial miscarriage of justice or a manifest abuse of discretion.\nIn their final assignment of error, plaintiffs contend the trial court erred in denying their motion for a new trial against Wotring because the jury\u2019s verdict was contrary to the uncontradicted evidence at trial. We disagree.\n\u201cLike any other ruling left to the discretion of a trial court, the trial court\u2019s appraisal of the evidence and its ruling on whether a new trial is warranted due to the insufficiency of the evidence is not to be reviewed on appeal as presenting a question of law.\u201d In re Buck, 350 N.C. 621, 625, 516 S.E.2d 858, 860-61 (1999) (emphasis in original). It is well-settled that a trial judge\u2019s discretionary ruling either granting or denying a motion for a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion. Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982).\nIt is impossible to place precise boundaries on the trial court\u2019s exercise of its discretion to grant a new trial. However, we emphasize that this power must be used with great care and exceeding reluctance. This is so because the exercise of this discretion sets aside a jury verdict and, therefore, will always have some tendency to diminish the fundamental right to trial by jury in civil cases which is guaranteed by our Constitution.\nIn re Buck, 350 N.C. at 626, 516 S.E.2d at 861 (emphasis in original).\nHere, plaintiffs argue that every medical expert witness testified that the standard of care required Wotring to attempt a variety of different maneuvers to relieve Anderson\u2019s shoulder dystocia before applying excessive traction to Anderson\u2019s head. According to plaintiffs, the only witness who testified to the details of Anderson\u2019s delivery was Alex Suarez, who stated that Wotring panicked when Anderson\u2019s shoulder got stuck and immediately starting pulling hard on Anderson\u2019s head. Thus, plaintiffs contend the uncontradicted evidence shows that Wotring violated the standard of care.\nHowever, defendants introduced into evidence Wotring\u2019s medical notes detailing the steps he took to effectuate the delivery of Anderson. Two of defendants\u2019 expert witnesses testified that Wotring\u2019s actions, as documented in his notes, did not violate the standard of care.\nIt is the jury\u2019s function to weigh the evidence and to determine the credibility of witnesses. In this case, the jury was presented with all of the evidence, was instructed properly on the law, and made its decision accordingly. We cannot conclude from the record that the trial court\u2019s denial of plaintiffs\u2019 motion for a new trial based on insufficiency of the evidence to support the verdict probably amounted to a substantial miscarriage of justice.\nFor the reasons stated herein, we conclude the trial court did not err in entering judgment on the jury\u2019s verdict and in denying plaintiffs\u2019 motion for a new trial as to defendant Wotring.\nAffirmed.\nJudge TYSON concurs.\nChief Judge EAGLES concurs in a separate opinion.", "type": "majority", "author": "THOMAS, Judge." }, { "text": "EAGLES, Chief Judge,\nconcurring.\nI concur in the result reached by the majority. However, I write separately to express my uneasiness and disagreement with the extensive use of a witness\u2019s deposition testimony to impeach the witness after the witness testifies in person, has been examined in person and has been excused.\nHere, defendants used deposition testimony to impeach plaintiff\u2019s expert witnesses after those same witnesses had been present in court, testified in person, and defendants had the opportunity to cross-examine them on the witness stand. Defendants agreed to excuse those witnesses and allowed the witnesses to leave the courtroom. Relying upon Rule 32(a) of the North Carolina Rules of Civil Procedure, defendants then proceeded to read the witnesses\u2019 deposition testimony into the record in order to impeach their live testimony. The depositions were read into evidence without the witnesses\u2019 presence or ability to explain their previous deposition testimony. This practice smacks of trial by ambush. Use of deposition testimony without the deponent\u2019s presence is technically allowed by N.C. R. Civ. P. 32 and N.C. R. Evid. 804. However, this practice impairs the fact-finder\u2019s ability to perform its traditional role of sorting truth from fiction by judging witness credibility during live testimony at trial. Although the parties in this case behaved in strict compliance with the rules, I believe that use of a witness\u2019s deposition testimony when that witness has been excused should be discouraged. The rules which appear to authorize this practice, N.C. R. Civ. P. 32 and N.C. R. Evid. 804, should be revisited by the General Assembly.", "type": "concurrence", "author": "EAGLES, Chief Judge," } ], "attorneys": [ "Simpson Kuehnert Vinay & Bellas, P.A., by Eric R. Bellas and Daniel A. Kuehnert, for plaintiff-appellants.", "Darner on, Bur gin & Parker, PA., by Charles E. Bur gin and Phillip T. Jackson, for defendant-appellees." ], "corrections": "", "head_matter": "SANDRA P. SUAREZ, as Guardian Ad Litem for ANDERSON LUKE SUAREZ, and ALEX SUAREZ and SANDRA P. SUAREZ, Individually, Plaintiffs v. JAMES WILLIAM WOTRING, JR., M.D., SCOTT THOMAS CHATHAM, M.D., and CATAWBA WOMEN\u2019S CENTER, P.A., Defendants\nNo. COA02-108\n(Filed 31 December 2002)\n1. Evidence\u2014 hearsay \u2014 deposition testimony \u2014 available witness \u2014 Rule 32 exception\nThe trial court did not err in a medical malpractice case by admitting under N.C.G.S. \u00a7 1A-1, Rule 32(a) the deposition testimony of three witnesses without establishing that the deponents were unavailable within the meaning of N.C.G.S. \u00a7 8C-1, Rule 804(a), because: (1) Rule 32(a) creates an independent exception to the hearsay rule and the proponent of that witness\u2019s deposition testimony need only show that the party against whom the deposition is offered was present or represented at the deposition or had reasonable notice thereof, and that one of the enumerated purposes of Rule 32 is met; (2) plaintiffs were present and represented at the taking of the depositions; and (3) Rule 32 allows the deposition of a person called as a witness to be used as substantive evidence by any party adverse to the party who called the deponent as a witness, and the pertinent witnesses in this case were all called by plaintiffs thus allowing defendants to use any part or all of the depositions of these witnesses.\n2. Evidence\u2014 hearsay \u2014 deposition testimony \u2014 available witness \u2014 Rule 32 exception\nAlthough the trial court erred in a medical malpractice case by allowing the admission of selected portions of the deposition testimony of an available expert witness without showing that a stated purpose under Rule 32(a) was met, the error was harmless because plaintiffs cannot show prejudice in the admission of this deposition testimony.\n3. Discovery\u2014 scheduling order \u2014 subject of expert testimony\nEven assuming the trial court erred in a medical malpractice case by allowing defendants to elicit expert testimony regarding the standard of care required of defendants and whether defendants complied with that standard when defendants only provided on their discovery scheduling order that the pertinent expert would testify that shoulder dystocia can be an obstetrical emergency, the error was harmless because: (1) plaintiffs have failed to show how they were prejudiced by the admission of the expert\u2019s opinion when it was cumulative and corroborative of substantially similar testimony given by another of defendants\u2019 experts; and (2) plaintiffs have failed to show how introduction of this testimony influenced the jury\u2019s verdict.\n4. Trials\u2014 motion for new trial \u2014 accident or surprise\u2014 sympathy\nThe trial court did not abuse its discretion in a medical malpractice case by denying plaintiffs\u2019 motion for a new trial against defendant doctor based on alleged accident or surprise which ordinary prudence could not have guarded against caused by the jury being informed near the close of defendants\u2019 case that this defendant\u2019s mother had died the preceding afternoon, because: (1) the jury was instructed to perform its duty fairly and objectively and without bias, sympathy, or partiality toward any party and not to be swayed by pity, sympathy, partiality, or public opinion; and (2) there is no evidence that the jury disregarded the trial court\u2019s instruction and ignored its solemn duty to fairly and impartially decide the case.\n5. Trials\u2014 motion for new trial \u2014 sufficiency of evidence\nThe trial court did not abuse its discretion in a medical malpractice case by denying plaintiffs\u2019 motion for a new trial against defendant doctor based on the jury\u2019s verdict allegedly being contrary to the evidence at trial, because the jury was presented with all of the evidence, was instructed properly on the law, and made its decision accordingly.\nChief Judge Eagles concurring.\nAppeal by plaintiffs from judgment entered 27 March 2001 and order entered 19 July 2001 by Judge L. Oliver Noble in Catawba County Superior Court. Heard in the Court of Appeals 14 October 2002.\nSimpson Kuehnert Vinay & Bellas, P.A., by Eric R. Bellas and Daniel A. Kuehnert, for plaintiff-appellants.\nDarner on, Bur gin & Parker, PA., by Charles E. Bur gin and Phillip T. Jackson, for defendant-appellees." }, "file_name": "0020-01", "first_page_order": 50, "last_page_order": 65 }