{ "id": 8353587, "name": "CYNTHIA GAIL MILLER and GUY MORRIS MILLER, Plaintiffs v. FORSYTH MEMORIAL HOSPITAL, INC. d/b/a \"PIEDMONT MEDICAL SPECIALISTS\"; PIEDMONT MEDICAL SPECIALISTS, P.L.L.C.; NOVANT HEALTH, INC.; and NOVANT HEALTH TRIAD REGION, L.L.C., Defendants", "name_abbreviation": "Miller v. Forsyth Memorial Hospital, Inc.", "decision_date": "2005-09-20", "docket_number": "No. COA04-1179", "first_page": "385", "last_page": "393", "citations": [ { "type": "official", "cite": "173 N.C. App. 385" } ], "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": "611 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632668 ], "year": 2005, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0423-01" ] }, { "cite": "171 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438167 ], "year": 2005, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] }, { "cite": "487 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "814-15" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11791526 ], "year": 1997, "pin_cites": [ { "page": "12-13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0001-01" ] }, { "cite": "537 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130703 ], "year": 2000, "pin_cites": [ { "page": "539-40" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0536-01" ] }, { "cite": "571 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251005 ], "year": 2002, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0618-01" ] }, { "cite": "519 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155931 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0027-01" ] }, { "cite": "500 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "129 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651029 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0464-01" ] }, { "cite": "586 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956641 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0461-01" ] }, { "cite": "169 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472014 ], "year": 2005, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0600-01" ] }, { "cite": "596 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "895" }, { "page": "895" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8901300 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "734" }, { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0730-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-20", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "225 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "290 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560772 ], "year": 1976, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0203-01" ] }, { "cite": "166 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412078 ], "year": 2004, "pin_cites": [ { "page": "560", "parenthetical": "quoting State v. Phifer, 290 N.C. 203, 213, 225 S.E.2d 786, 793 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0548-01" ] }, { "cite": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "686" }, { "page": "686" }, { "page": "686", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "458" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "594 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "251-52", "parenthetical": "citing 2003 N.C. Sess. Laws ch. 101" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920388 ], "year": 2004, "pin_cites": [ { "page": "701", "parenthetical": "citing 2003 N.C. Sess. Laws ch. 101" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0696-01" ] }, { "cite": "565 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082468 ], "year": 2002, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0601-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 850, "char_count": 19348, "ocr_confidence": 0.765, "pagerank": { "raw": 1.4651136836404258e-07, "percentile": 0.6581258212351376 }, "sha256": "b9b7bb0e01499d830744be7c36f5eca1384e38f85bb642d2ad18aa405531fdc4", "simhash": "1:c368d763f43a5d76", "word_count": 3158 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and McCULLOUGH concur." ], "parties": [ "CYNTHIA GAIL MILLER and GUY MORRIS MILLER, Plaintiffs v. FORSYTH MEMORIAL HOSPITAL, INC. d/b/a \u201cPIEDMONT MEDICAL SPECIALISTS\u201d; PIEDMONT MEDICAL SPECIALISTS, P.L.L.C.; NOVANT HEALTH, INC.; and NOVANT HEALTH TRIAD REGION, L.L.C., Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nPlaintiffs, Cynthia and Guy Miller, appeal the trial court\u2019s judgment dismissing their complaint based upon the jury\u2019s verdict. Defendants cross-appeal the trial court\u2019s denial of their motion to tax costs against plaintiffs.\nPlaintiffs commenced this action seeking damages for Mrs. Miller\u2019s personal injuries, which were alleged to have been caused as a result of defendants\u2019 medical negligence. Piedmont Medical Specialists (Piedmont) is a physician practice owned by defendant Forsyth Memorial Hospital, which is in turn, a wholly-owned subsidiary of Novant Health, Inc. Plaintiff, Mr. Miller, sought damages for loss of consortium.\nOn 31 December 1999, Mrs. Miller was suffering from bronchitis and went to Piedmont\u2019s offices for treatment. John Edwards, a physician\u2019s assistant, examined Mrs. Miller and prescribed an injection of Rocephin, an antibiotic. Nurse Linda Smith administered the injection in Mrs. Miller\u2019s right buttock. Upon receiving the injection, Mrs. Miller contends she felt intense pain and a burning sensation in her buttock. Upon leaving the doctor\u2019s office, she became faint and was taken back to an examining room where Edwards ordered blood work to determine the cause. Since receiving the injection, Mrs. Miller contends she has suffered continuous pain and discomfort in her lower back, right hip, and right leg. She received medical treatment from Dr. Richard Bey, a neurologist, and Dr. T. Stuart Meloy, a pain management specialist. Dr. Bey diagnosed Mrs. Miller\u2019s condition as \u201csciatic neuropathy with demyelination\u201d and stated the condition was caused by the injection she received from Nurse Smith.\nThe matter came on for jury trial at the 22 September 2003 session of superior court. The jury returned a verdict, in favor of defendants on 1 October 2003, finding Mrs. Miller was not injured by defendants\u2019 negligence. Plaintiffs appealed. Following the entry of judgment, defendants filed a motion for the costs of the action to be taxed against plaintiffs. The trial court ordered plaintiffs to pay court costs, but denied defendants\u2019 motion seeking other costs, including deposition costs, mediation costs, expert witness fees, and exhibit costs. Defendants appeal.\nI. Plaintiffs\u2019 Appeal\nIn plaintiffs\u2019 first argument, they contend the trial court erred in granting defendants\u2019 pretrial motion in limine, which found certain matters plaintiffs sought during discovery were protected under the peer review privilege. We disagree.\nOn 7 February 2003, plaintiffs served Forsyth with their first set of interrogatories and first request for production of documents. Defendants asserted that certain documents were protected from discovery under the peer review privilege as set forth in N.C. Gen. Stat. \u00a7 90-21.22 and refused to produce these documents. Plaintiffs filed a motion to compel discovery, and also sought an order compelling Edwards, the physician\u2019s assistant, and Dr. Marx to answer related questions asked during their respective depositions. On 6 August 2003, Judge L. Todd Burke denied plaintiffs\u2019 motion to compel and granted defendants\u2019 motion for a protective order prohibiting plaintiffs from obtaining the requested documents. Before trial, defendants filed a motion in limine to prohibit plaintiffs from offering evidence regarding the peer review process, certain affidavits, and offering evidence that defendants failed to prepare an incident report. On 22 September 2003, prior to the commencement of the trial, Judge Davis granted defendant\u2019s motion in limine, but emphasized the conditional nature of his ruling, instructing the parties:\nWell, all orders in limine are conditional and even if a motion is granted that does not mean that the party affected may not raise an issue during trial if evidence has been received that would make it necessary or desirable for portions of evidence that is subject to the order in limine to be presented to the jury.\nIn that light, I will grant the motion which we will call for convenience sake the peer review motion and the three elements that are delineated in that. And that is, of course, subject to the conditional nature of such orders.\nDuring the hearing on the motion in limine, plaintiffs indicated they understood the conditional nature of the judge\u2019s ruling, stating they would question certain witnesses during the trial concerning the peer review process, and upon defendants\u2019 objection, they understood the trial court would determine whether the elicited testimony was privileged. The case then proceeded to trial before a jury.\nA trial court\u2019s pretrial ruling on a motion in limine is merely \u201cpreliminary and subject to change during the course of trial, depending upon the actual evidence offered at trial.\u201d Gregory v. Kilbride, 150 N.C. App. 601, 611, 565 S.E.2d 685, 693 (2002). The trial court\u2019s grant or denial of a motion in limine is not appealable. Id. In order to preserve the evidentiary issues for appeal where such a motion had been granted, the party objecting to the grant of the motion \u201cmust attempt to introduce the evidence at trial.\u201d Id. In this case, even though the trial court brought the conditional nature of its ruling to plaintiffs\u2019 attention, they did not attempt to introduce any evidence regarding defendants\u2019 peer review process or that an internal investigation had occurred following the injection.\nEffective 1 October 2003, the rule requiring that a party attempt to offer evidence in order to preserve the evidentiary issue for appeal was changed, so that \u201c[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 103 (a)(2) (2004). However, the amendment applies only to rulings on evidence made on or after 1 October 2003. State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 251-52 (2004) (citing 2003 N.C. Sess. Laws ch. 101).\nThe trial court granted defendants\u2019 motion in limine on 22 September 2003. Plaintiffs rested their case-in-chief on 29 September 2003. Defendants presented their evidence on 29 and 30 September 2003. Plaintiffs offered no rebuttal evidence. The trial court conducted the charge conference and counsel made their final arguments to the jury on 30 September 2003-. On 1 October 2003 the trial court instructed the jury, the jury deliberated, and returned its verdict. At no time during the trial did plaintiffs attempt to present the evidence, which was the subject of the motion in limine, to the jury. Plaintiffs did not move to reopen the evidence. The only ruling upon this evidence was made on 22 September 2003. As such, the ruling is governed by the previous version of Rule 103(a)(2) of the Rules of Civil Procedure and not the version applicable to rulings made on or after 1 October 2003. By failing to offer this evidence at trial, plaintiffs failed to preserve this issue on appeal. This argument is without merit.\nIn plaintiffs second argument, they contend the trial court erred in excluding the opinion testimony of Dr. Meloy as to the cause of Mrs. Miller\u2019s nerve injury. We disagree.\nRule 702 of the North Carolina Rules of Evidence governs the admissibility of expert testimony, providing: \u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2004). \u201cIt is well-established that trial courts must decide preliminary questions concerning . . . the admissibility of expert testimony.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004). As such, trial courts are afforded a wide latitude when determining the admissibility of expert testimony. Id. at 458, 597 S.E.2d at 686. Therefore, we will not overturn the trial judge\u2019s ruling in such a situation absent a showing that the trial court abused its discretion. Id. An abuse of discretion occurs when the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.\u201d Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).\nHowerton sets forth a three-step test for determining the admissibility of expert testimony: \u201c(1) Is the expert\u2019s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert\u2019s testimony relevant?\u201d 358 N.C. at 458, 597 S.E.2d at 686 (internal citations omitted). The issue presented in this case concerns only the second step of the inquiry, since plaintiffs do not challenge the trial court\u2019s ruling based upon the first or third steps.\n\u201c \u2018The essential question in determining the admissibility of opinion evidence is whether the witness, through study and experience, has acquired such skill that he is better qualified than the jury to form an opinion as to the subject matter to which his testimony applies.\u2019 \u201d State v. Fuller, 166 N.C. App. 548, 560 (2004) (quoting State v. Phifer, 290 N.C. 203, 213, 225 S.E.2d 786, 793 (1976)). Dr. Meloy is an anesthesiologist who specializes in pain medicine. He graduated from an accredited medical school, is board-certified by the American Board of Anesthesia, and holds a sub-certification in pain medicine.\nPlaintiffs tendered Dr. Meloy as an expert in the fields of anesthesiology and pain management. Defendants objected to Dr. Meloy testifying in the field of neurology or giving an opinion concerning the etiology of Mrs. Miller\u2019s pain. During a brief voir dire hearing, Dr. Meloy testified he was not a neurologist, he did not interpret any EMG or nerve conduction studies, and had not performed any independent diagnostic studies to determine the cause of Mrs. Miller\u2019s pain. The trial court ruled that Dr. Meloy could testify as an expert witness in the fields of anesthesia and pain management, but deferred ruling on the objection to potential causation testimony until further testimony was received.\nUpon defendants\u2019 objection to a question concerning the causation of Mrs. Miller\u2019s pain, a second voir dire hearing was conducted. Dr. Meloy testified his diagnosis was based upon Dr. Bey\u2019s EMG study showing demyelination with the sciatic nerve. He further stated he made his own diagnosis, independent of Dr. Bey, of sciatic neuropa-thy, but that \u201cthe demyelination aspect was based on the test that [Dr. Bey] had performed.\u201d On cross-examination, Dr. Meloy acknowledged he did not make his own neurological diagnosis of Mrs. Miller. Following the voir dire hearing, the court ruled Dr. Meloy was \u201c[p]ermitted to testify with respect to his finding or determination consistent with sciatic neuropathy.\u201d Subsequent to this ruling, plaintiffs elicited testimony from Dr. Meloy on voir dire that Mrs. Miller had sciatic neuropathy caused by the Rocephin injection on 31 December 1999.\nThe trial court permitted Dr. Meloy to testify as to the diagnosis he made, that of sciatic neuropathy. However, the trial court refused to allow him to testify as to the diagnosis of demyelination of the sciatic nerve since he did not make such a diagnosis himself, but relied on Dr. Bey\u2019s diagnosis. Further, the trial court did not allow Dr. Meloy to testify as to causation since he had not performed any independent diagnostic studies to determine the cause of Mrs. Miller\u2019s pain. Further, Dr. Meloy never testified that he relied upon Dr. Bey\u2019s reports or diagnosis in giving an opinion that Mrs. Miller\u2019s sciatic neu-ropathy was caused by the injection of Rocephin. It should be noted that Dr. Bey did testify that Mrs. Miller\u2019s condition was caused by the Rocephin injection. Based on the evidence presented to the trial court, we discern no abuse of discretion on the part of the trial judge. This argument is without merit.\nII. Defendants\u2019 Cross-Appeal\nDefendants cross-appeal from the trial court\u2019s denial of their motion to tax costs following a favorable jury verdict.\nN.C. Gen. Stat. \u00a7 6-1 provides: \u201cTo the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter.\u201d N.C. Gen. Stat. \u00a7 7A-305 governs the costs which are assessable in civil actions. In addition, N.C. Gen. Stat. \u00a7 6-20 provides for the taxation of costs in the court\u2019s discretion. In analyzing whether the trial court properly denied defendants\u2019 motion for cost we must undertake a three-step analysis. Lord v. Customized Consulting Specialty, Inc., 164 N.C. App. 730, 734, 596 S.E.2d 891, 895 (2004). First, we must determine whether the cost sought is one enumerated in N.C. Gen. Stat. \u00a7 7A-305(d); if so, the trial court is required to assess the item as costs. Id. Second, where the cost is not an item listed under N.C. Gen. Stat. \u00a7 7A-305(d), we must determine if it is a \u201ccommon law cost\u201d under the rationale of Charlotte Area. Id. (defining \u201c \u2018common law\u2019 costs as being those costs established by case law prior to the enactment of N.C. Gen. Stat. \u00a7 7A-320 in 1983.\u201d) Third, if the cost sought to be recovered is a \u201ccommon law cost,\u201d we must determine whether the trial court abused its discretion in awarding or denying the cost under N.C. Gen. Stat. \u00a7 6-20. Id.\nIn this case, defendants seek recovery for costs related to (1) deposition fees; (2) mediation costs; (3) expert witness fees; and (4) trial exhibit costs. We address each of these in turn.\nA. Deposition Costs\nDeposition costs are not listed as a recoverable cost under N.C. Gen. Stat. \u00a7 7A-305(d). However, they have been allowed at common law. Cunningham v. Riley, 169 N.C. App. 600, 605, 611 S.E.2d 423, 426 (2005); Dep\u2019t of Transp. v. Mfd. Housing, Inc., 160 N.C. App. 461, 586 S.E.2d 780 (2003). We may only overturn the trial court\u2019s denial of defendants\u2019 deposition costs upon a showing of abuse of discretion. Id. Defendants do not argue in their brief that the trial court abused its discretion in refusing to award this item as costs, nor do we discern any abuse of discretion.\nB. Mediation Costs\nN.C. Gen. Stat. \u00a7 7A-38.1 mandates that a mediated settlement conference be held in all civil actions. In this case, the parties participated in mediation with a court-appointed mediator. As a result, defendants\u2019 incurred a mediator fee of $350.00. Mediation fees are recoverable under N.C. Gen. Stat. \u00a7 7A-305(d)(7), thus the trial court was required to tax this cost against plaintiffs. Lord, 164 N.C. App. at 736, 596 S.E.2d at 896 (citing Sara Lee Corp. v. Carter, 129 N.C. App. 464, 500 S.E.2d 732 (1998), rev\u2019d on other grounds, 351 N.C. 27, 519 S.E.2d 308 (1999)). The trial court erred in failing to assess this item as costs against plaintiffs.\nC. Expert Witness Fees\nPursuant to N.C. Gen. Stat. \u00a7 7A-305(d)(l) witness fees are assessable as costs \u201cas provided by law.\u201d \u201cThis refers to the provisions of N.C. Gen. Stat. \u00a7 7A-314 which provides for witness fees where the witness is under subpoena.\u201d Id. at 735, 596 S.E.2d at 895. The trial judge only has the authority to award witness fees where the witness was under subpoena. Id. In this case, none of defendants\u2019 expert witnesses were under subpoena. As a result, the trial court could not award defendants\u2019 expert witness fees pursuant to N.C. Gen. Stat. \u00a7 7A-305(d). Accord id. Nor does the authority to tax expert witness fees exist as a \u201ccommon law\u201d cost under N.C. Gen. Stat. \u00a7 6-20. Id.\nD. Exhibit Costs\nCosts associated with trial exhibits are not listed as a recoverable expense under N.C. Gen. Stat. \u00a7 7A-305(d). However, opinions of this Court have, at times, found exhibit costs allowable at common law, see Coffman v. Roberson, 153 N.C. App. 618, 629, 571 S.E.2d 255, 262 (2002); Lewis v. Setty, 140 N.C. App. 536, 539-40, 537 S.E.2d 505, 507 (2000); Smith v. Underwood, 127 N.C. App. 1, 12-13, 487 S.E.2d 807, 814-15 (1997), and at other times, disallowed exhibit costs, see Charlotte Area, 160 N.C. App. at 472, 586 S.E.2d at 786. The trial court chose not to allow the request for exhibit costs. Thus, we are unable to say the trial court erred in denying defendants these costs.\nWe hold that defendants were entitled to recover costs from plaintiffs as provided by law, and should recover from plaintiffs $350.00 for the cost of court ordered mediation. We reverse and remand to the trial court for entry of an order consistent with this opinion.\nNO ERROR AS TO TRIAL; AFFIRMED IN PART AND REVERSED AND REMANDED IN PART AS TO COSTS ORDERED.\nJudges TIMMONS-GOODSON and McCULLOUGH concur.\n. We note that on 19 July 2005 this Court, in State v. Tutt, 171 N.C. App. 518, 524, \u2014 S.E.2d \u2014, \u2014 (2005), held the 2003 amendment to Rule 103 of the Rules of Civil Procedure was unconstitutional. This holding does not impact our analysis in this case as we are applying the pre-amendment version of Rule 103.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Elliot Pishko Morgan, P.A., by David C. Pishko, for plaintiff - appellant.", "Wilson & Iseman, L.L.P., by TamuraD. Coffey, Linda L. Helms, Kevin B. Cartledge and Maria C. Papoulias, for defendant-appellees.", "Glenn, Mills & Fisher, P.A., by William S. Mills for the North Carolina Academy of Trial Lawyers; and Roberts & Stevens, P.A., by Peter Buckley McGuire for the North Carolina Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "CYNTHIA GAIL MILLER and GUY MORRIS MILLER, Plaintiffs v. FORSYTH MEMORIAL HOSPITAL, INC. d/b/a \u201cPIEDMONT MEDICAL SPECIALISTS\u201d; PIEDMONT MEDICAL SPECIALISTS, P.L.L.C.; NOVANT HEALTH, INC.; and NOVANT HEALTH TRIAD REGION, L.L.C., Defendants\nNo. COA04-1179\n(Filed 20 September 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 motion in lim-ine \u2014 failure to object at trial\nPlaintiff did not object at trial and therefore did not preserve for appeal the question of whether the trial court erred in granting defendants\u2019 pretrial motion in limine. The ruling on the evidence was made before 1 October 2003, the effective date of the amendment to N.C.G.S. \u00a7 8C-1, Rule 103, concerning the need for renewing objections.\n2. Witnesses\u2014 expert \u2014 doctor\u2014testimony limited \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a medical malpractice trial where plaintiffs presented a doctor as an expert in anesthesiology and pain management; the court permitted him to testify concerning his diagnosis of sciatic neuropathy, but did not allow him to testify concerning demyelination of the sciatic nerve since he relied on another doctor\u2019s diagnosis in that regard; the court did not allow him to testify about causation because he had not performed any independent diagnostic studies; and the doctor who performed the diagnostic studies was allowed to testify about causation.\n3. Costs\u2014 mediation fees \u2014 witness fees \u2014 depositions\u2014 exhibits\nThe trial court erred in a medical malpractice case by not taxing mediation costs against plaintiffs, but did not err by not taxing costs for expert witness fees, exhibits, and depositions. N.C.G.S. \u00a7\u00a7 6-20, 7A-305(d).\nAppeal by plaintiffs from judgment entered 6 October 2003 and cross-appeal by defendants from judgment entered 31 October 2003 by Judge Lindsay R. Davis, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 12 May 2005.\nElliot Pishko Morgan, P.A., by David C. Pishko, for plaintiff - appellant.\nWilson & Iseman, L.L.P., by TamuraD. Coffey, Linda L. Helms, Kevin B. Cartledge and Maria C. Papoulias, for defendant-appellees.\nGlenn, Mills & Fisher, P.A., by William S. Mills for the North Carolina Academy of Trial Lawyers; and Roberts & Stevens, P.A., by Peter Buckley McGuire for the North Carolina Association of Defense Attorneys, amicus curiae." }, "file_name": "0385-01", "first_page_order": 415, "last_page_order": 423 }