{ "id": 4131890, "name": "HAROLD MANNING, AS ADMINISTRATOR OF THE ESTATE OF EVANGELINE REGINA MANNING, Plaintiff v. DR. JOHN WILLIAM ANAGNOST, Defendant", "name_abbreviation": "Manning v. Anagnost", "decision_date": "2013-02-19", "docket_number": "No. COA12-1030", "first_page": "576", "last_page": "582", "citations": [ { "type": "official", "cite": "225 N.C. App. 576" } ], "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": "626 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635203 ], "year": 2006, "pin_cites": [ { "page": "753", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0747-01" ] }, { "cite": "350 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "913" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358972 ], "year": 1986, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0520-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "833" }, { "page": "833", "parenthetical": "\"A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason . . . [or] upon a showing that [the trial court's decision] was so arbitrary that it could not have been the result of a reasoned decision.\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "777" }, { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "715-16" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "year": 1989, "pin_cites": [ { "page": "167-68" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] }, { "cite": "573 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248869 ], "year": 2002, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0020-01" ] }, { "cite": "176 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301223 ], "year": 2006, "pin_cites": [ { "page": "505", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0497-01" ] }, { "cite": "316 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "57-58", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "311 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686635 ], "year": 1984, "pin_cites": [ { "page": "280", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0277-01" ] }, { "cite": "547 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135841, 135938, 135760, 135894, 135895 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0396-04", "/nc/353/0396-05", "/nc/353/0396-03", "/nc/353/0396-01", "/nc/353/0396-02" ] }, { "cite": "540 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "395" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441303 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0354-01" ] } ], "analysis": { "cardinality": 594, "char_count": 13872, "ocr_confidence": 0.734, "pagerank": { "raw": 5.494494574994367e-08, "percentile": 0.3438961113176869 }, "sha256": "c1de558eddcd56cb3946bde6822c5a28b401f398c2e12fbd56590bf673e033a8", "simhash": "1:072baa2277d68767", "word_count": 2271 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and McCULLOUGH concur." ], "parties": [ "HAROLD MANNING, AS ADMINISTRATOR OF THE ESTATE OF EVANGELINE REGINA MANNING, Plaintiff v. DR. JOHN WILLIAM ANAGNOST, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere plaintiff challenged the credibility of defendant at trial, the trial court did not err in admitting character evidence of defendant\u2019s truthfulness. The trial court did not err in allowing defendant to present the deposition of a witness at trial in the interest of justice. Defendant was not required to tender a treating physician as an expert witness. The trial court did not abuse its discretion in holding that defendant had denied certain allegations contained in plaintiff\u2019s complaint in good faith.\nI. Factual and Procedural History\nHarold Manning (plaintiff) was married to Evangeline Regina Manning (decedent). On 19 September 2007, Dr. John William Anagnost (defendant) saw decedent in his medical office, at which time he instructed her to go immediately to the hospital. Decedent elected to go to choir practice that evening, and went to the hospital the next day, 20 September .2007. At the time that she was admitted to the hospital, decedent was taking Coumadin, which prevents blood clotting.\nAt 4:15 p.m., plaintiff left decedent\u2019s room. When he returned at 5:15 p.m., decedent was not in the room, and someone was mopping blood from the floor. Plaintiff was informed that decedent had fallen, struck her head, and been moved to a room across the hall. Decedent had been found after her fall by Nurse Karen Sullivan, who discovered decedent with injuries and facial swelling. Decedent complained of headaches.\nOn 21 September 2007, plaintiff received a telephone call from the hospital that his wife was in grave condition, and that he should come to the hospital immediately. Upon arrival, plaintiff was informed that decedent had suffered permanent brain damage from a subdural hematoma, and that her chances of recovery were slight. Decedent was given palliative care until her death on 27 September 2007.\nOn 24 September 2009, plaintiff filed this action seeking monetary damages for the wrongful death of his wife based upon the negligence of defendant and others. Claims against all of the other defendants were voluntarily dismissed by plaintiff after jury selection. The jury found that the death of plaintiffs decedent was not caused by defendant\u2019s negligence. On 15 March 2012, the trial court entered judgment, dismissing plaintiff\u2019s claim with prejudice.\nPlaintiff appeals.\nII. Character Testimony\nIn his first argument, plaintiff contends that the trial court erred by permitting defendant to introduce the testimony of three witnesses who testified to defendant\u2019s character for truthfulness. We disagree.\nA. Standard of Review\n\u201c[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.\u201d State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427-28 (2001).\nB. Analysis\nOur Supreme Court has held that \u201c[w]here a party testifies and the credibility of his testimony is challenged, testimony that his general character is good is competent and proper evidence for consideration upon the truthfulness of his testimony.\u201d Holiday v. Cutchin, 311 N.C. 277, 280, 316 S.E.2d 55, 57-58 (1984) (citations omitted). A witness\u2019 credibility may be attacked or supported by evidence of reputation or opinion. N.C. R. Evid. 608(a). Evidence of truthful character is admissible once a witness\u2019 character for truthfulness has been attacked by opinion or reputation. Id.\nAt trial, plaintiff repeatedly attacked defendant\u2019s testimony that he had personally examined decedent on 20 September 2007, following her fall. The trial court conducted a hearing outside of the presence of the jury prior to admitting the testimony of the three character witnesses. During that hearing, counsel for plaintiff acknowledged that he had accused defendant of not personally performing an examination of decedent on 20 September 2007.\nBy calling into question the credibility of defendant, plaintiff opened the door for defendant to present the three witnesses who testified as to his character for truthfulness.\nPlaintiff further contends that the lay witnesses were not disclosed in defendant\u2019s discovery scheduling order. However, because plaintiff did not raise this objection at trial, it is not properly preserved on appeal. See N.C. R. App. P. 10(a)(1).\nThis argument is without merit.\nIII. Admission of Deposition Testimony\nIn his second argument, plaintiff contends that the trial court erred in permitting defendant to introduce the transcript of the deposition of Dr. George Alsina. We disagree.\nA. Standard of Review\n\u201cOn appeal, the standard of review of a trial court\u2019s decision to exclude or admit evidence is that of an abuse of discretion. An abuse of discretion will be found only when the trial court\u2019s decision was so arbitrary that it could not have been the result of a reasoned decision.\u201d Brown v. City of Winston-Salem, 176 N.C. App. 497, 505, 626 S.E.2d 747, 753 (2006) (internal quotations and citations omitted).\nThe 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; or upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting testimony of witnesses orally in open court, to allow the deposition to be used. . .\nN.C. R. Civ. P. 32 (a)(4).\nB. Analysis\nThe trial court allowed defendant to introduce Dr. Alsina\u2019s deposition transcript into evidence after finding that Dr. Alsina was unavailable to testify at trial. Plaintiff contends that this was improper under Rule 32 of the North Carolina Rules of Civil Procedure.\nRule 32 provides that a deposition may be used at trial against any party who was present at the taking of the deposition if the witness is at a greater distance than 100 miles from the place of trial, if the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or when circumstances exist to make it desirable, in the interest of justice, to admit the deposition. N.C. R. Civ. P. 32.\nIn the instant case, Dr. Alsina\u2019s office was located in New Hanover County, the county where the case was being tried. Plaintiff contends that, because Dr. Alsina was located within 100 miles, Rule 32 prohibited the use of his deposition at trial. However, we have previously held that a deposition is admissible so long as one of the foundational requirements of Rule 32 has been satisfied. Suarez v. Wotring, 155 N.C. App. 20, 28, 573 S.E.2d 746, 751 (2002). It is not necessary that Dr. Alsina be over 100 miles away, and unable to be procured by subpoena, and that justice demands his deposition be admitted; the presence of any one of the three requirements is sufficient.\nIn the instant case, Dr. Alsina was served with a subpoena both by plaintiff and defendant to appear at the trial of this case. At some point, plaintiff released Dr. Alsina from his subpoena. Dr. Alsina had advised all parties that he would be out of state at a conference during the projected first week of trial. It was agreed that he could go to the conference, since his testimony would not be required until the third week of trial. When plaintiff unexpectedly dismissed the other defendants following jury selection, the trial schedule was accelerated, and Dr. Alsina was still out of state when defendant had to present his evidence. The trial court held that Dr. Alsina\u2019s absence was \u201cacquiesced by both parties[,]\u201d and that \u201cin the interests of justice\u201d the deposition could be presented to the jury, \u201csubject to the usual completeness requirements of the rules.\u201d\nThe trial court did not abuse its discretion in ruling that, in the interest of justice, the transcript of Dr. Alsina\u2019s deposition could be presented to the jury.\nThis argument is without merit.\nIV. Dr. Alsina Was Not, Qualified as an Expert Witness\nIn his third argument, plaintiff contends that Dr. Alsina\u2019s testimony was impermissible expert testimony, as Dr. Alsina had not been formally admitted as an expert. We disagree.\nA. Standard of Review\n\u201c[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.\u201d State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427-28 (2001).\nB. Analysis\nA treating physician in a medical malpractice action who testifies regarding the care rendered to a patient does not testify as an expert, but as a lay witness. Turner v. Duke Univ., 325 N.C. 152, 167-68, 381 S.E.2d 706, 715-16 (1989). In the instant case, Dr. Alsina was a treating physician for decedent. His testimony was lay testimony, and defendant was not required to tender him as an expert witness.\nThis argument is without merit.\nV. Effect of Defendant\u2019s Denials in Answer\nIn his fourth argument, plaintiff contends that the trial court erred in allowing defendant to refute allegations contained in plaintiff\u2019s complaint that he had denied in his answer on the basis of lack of knowledge and information. We disagree.\nA. Standard of Review\n\u201cIt is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). \u201cAbuse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see also White, 312 N.C. at 777, 324 S.E.2d at 833 (\u201cA trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason . . . [or] upon a showing that [the trial court\u2019s decision] was so arbitrary that it could not have been the result of a reasoned decision.\u201d).\nB. Analysis\nRule 8 of the North Carolina Rules of Civil Procedure specifically provides that if a party is \u201cwithout knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial.\u201d N.C. R. Civ. P. 8(b). A denial or qualification of an averment must be made in good faith. One not made in good faith may be stricken. WXQR Marine Broadcasting Corp. v. Jai, Inc., 83 N.C. App. 520, 521, 350 S.E.2d 912, 913 (1986).\nIn the instant case, defendant denied certain allegations contained in plaintiff\u2019s complaint based on \u201clack of knowledge and information.\u201d This denial was expressly based on the fact that the complete medical records were not available for review at the time the answer was filed. Plaintiff contends that this denial was in bad faith, and that defendant was estopped from refuting these allegations at trial.\nThe trial court held that defendant\u2019s denial of the allegations contained in plaintiff\u2019s complaint was made in good faith, and that this did not preclude him from responding to plaintiff\u2019s allegations at trial. The trial court did not abuse its discretion in making this ruling.\nThis argument is without merit.\nNO ERROR.\nJudges STEPHENS and McCULLOUGH concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Brent Adams & Associates, by Brenton D. Adams for plaintiff-appellant.", "Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "HAROLD MANNING, AS ADMINISTRATOR OF THE ESTATE OF EVANGELINE REGINA MANNING, Plaintiff v. DR. JOHN WILLIAM ANAGNOST, Defendant\nNo. COA12-1030\nFiled 19 February 2013\n1. Evidence \u2014 testimony\u2014character for truthfulness \u2014 opened door \u2014 failure to object\nThe trial court did not err in a wrongful death case by permitting defendant to introduce the testimony of three witnesses who testified to defendant doctor\u2019s character for truthfulness. By calling into question the credibility of defendant, plaintiff opened the door for defendant to present the three witnesses. Although plaintiff further contended that the lay witnesses were not disclosed in defendant\u2019s discovery scheduling order, this issue was not preserved because plaintiff did not object at trial.\n2. Evidence \u2014 transcript of deposition \u2014 unavailable witness\u2014 interest of justice\nThe trial court did not abuse its discretion in a wrongful death case by allowing defendant to present the transcript of a deposition of an unavailable witness at trial in the interest of justice.\n3. Witnesses \u2014 treating physician \u2014 lay witness \u2014 not required to be admitted as expert\nThe trial court did not abuse its discretion in a wrongful death case by concluding that the testimony of decedent\u2019s treating physician was permissible even though the doctor had not been admitted as an expert. A treating physician in a medical malpractice action who testifies regarding the care rendered to a patient does not testify as an expert, but as a lay witness. Defendant was not required to tender the treating physician as an expert witness.\n4. Pleadings \u2014 answer\u2014allegations denied in answer \u2014 refuted at trial \u2014 complete medical records not available when answer filed \u2014 good faith\nThe trial court did not abuse its discretion in a wrongful death case by allowing defendant doctor to refute allegations contained in plaintiffs complaint at trial that he had denied in his answer on the basis of lack of knowledge and information. Defendant had denied certain allegations contained in plaintiffs complaint in good faith since it was expressly based on the fact that the complete medical records were not available for review at the time the answer was filed.\nAppeal by plaintiff from judgment entered 15 March 2012 by Judge William R. Pittman in New Hanover County Superior Court. Heard in the Court of Appeals 9 January 2013.\nBrent Adams & Associates, by Brenton D. Adams for plaintiff-appellant.\nWalker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr., for defendant-appellee." }, "file_name": "0576-01", "first_page_order": 586, "last_page_order": 592 }