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    "judges": [
      "Judges CALABRIA and STROUD concur."
    ],
    "parties": [
      "PHILIP SCHMIDT, as Administrator of the Estate of MARTHA JEAN SCHMIDT, Plaintiff v. SCOTT MILLER PETTY, MD and NANTAHALA RADIOLOGY ASSOCIATES, P.A., Defendants"
    ],
    "opinions": [
      {
        "text": "DAVIS, Judge.\nPlaintiff Philip Schmidt, administrator of the estate of Martha Jean Schmidt (\u201cPlaintiff\u201d), appeals from a judgment entered by the trial court upon a jury verdict in favor of Scott Miller Petty, M.D. (\u201cDr. Petty\u201d) and Nantahala Radiology Associates, P.A. (collectively \u201cDefendants\u201d) in a medical malpractice action. On appeal, he contends the trial court committed reversible error by granting a motion in limine filed by Defendants that had the effect of precluding his expert witnesses from offering certain opinion testimony at trial. After careful review, we affirm.\nFactual Background\nOn 12 May 2006, Plaintiff\u2019s decedent, Martha Jean Schmidt (\u201cMrs. Schmidt\u201d), sought medical care at Smokey Mountain Healthcare Associates (\u201cSMHA\u201d) based on symptoms of an upper respiratory infection. During her visit, a two-view x-ray was taken of Mrs. Schmidt\u2019s chest. Dr. Petty, a licensed, radiologist who reviewed x-rays for SMHA and Angel Medical Center, Inc. (\u201cAngel Medical\u201d), reviewed the x-ray but did not note in his report the presence of a lesion in the upper lobe of Mrs. Schmidt\u2019s left lung.\nOn 27 May 2007, Mrs. Schmidt sought medical care at Angel Medical, complaining of pain in her neck and chest. A chest x-ray was ordered by emergency room physician Dr. James Lapkoff. In his report interpreting the x-ray, Dr. Petty stated that \u201cthe lungs are clear and the heart size and pulmonary vasculature are within normal limits. No acute bony abnormalities are identified.\u201d Once again, Dr. Petty\u2019s report failed to detect the presence of a lesion in Mrs. Schmidt\u2019s left lung.\nOn 27 May 2008, Mrs. Schmidt sought medical care from her primary physician, Dr. Sondra K. Wolf (\u201cDr. Wolf\u2019), complaining of symptoms associated with pneumonia. Dr. Wolf ordered a chest x-ray, which was performed at Angel Medical. Dr. Petty reviewed the x-ray and reported that \u201c[b]ilaterai hyperinflation remains compatible with COPD. There are no new areas of infiltrate or atelectasis. The heart size is stable and there is no evidence for pulmonary edema.\u201d Dr. Petty\u2019s report again failed to note the presence of the lesion in Mrs. Schmidt\u2019s left lung.\nMrs. Schmidt subsequently sought treatment from Dr. Garland C. King (\u201cDr. King\u201d) on 16 June 2008 based on complaints of pleuritic chest pain and abdominal pain. Dr. King ordered a computed tomography (\u201cCT\u201d) scan of her abdomen and chest. Dr. Petty reviewed these images and reported that \u201cthe findings are indicative of primary lung neoplasm [cancer] until otherwise excluded.\u201d\nOn 21 February 2009, Mrs. Schmidt died of metastatic lung cancer. On 10 February 2011, Plaintiff initiated a medical malpractice action in Macon County Superior Court against Dr. Petty and his practice, Nantahala Radiology Associates, P.A. Plaintiff alleged in his complaint that from May 2006 through May 2008 Mrs. Schmidt\u2019s radiographic findings were \u201creasonably suspicious for cancer . . . and failure to timely diagnose and treat Mrs. Schmidt\u2019s lung cancer in May of 2006 and 2007 .. led to a progression of her lung cancer from treatable, curable stage in May of 2006 and 2007 to an incurable, terminal stage by June of 2008.\u201d Plaintiff further alleged that the two-year delay in diagnosis constituted negligence and was a proximate cause of her death.\nPlaintiff\u2019s expert oncologist, Dr. Gerald Sokol, testified in his deposition that had Mrs. Schmidt\u2019s lung cancer been diagnosed in May of 2006 or May of 2007, she would have had an 80% to 85% probability of being cured. He further opined that by May of 2008, however, Mrs. Schmidt\u2019s lung cancer was incurable.\nDr. Paul Molina (\u201cDr. Molina\u201d) and Dr. Philip Goodman (\u201cDr. Goodman\u201d) \u2014 Defendants\u2019 expert witnesses \u2014 testified at their depositions that Mrs. Schmidt\u2019s 2006 and 2007 chest x-rays did not contain a left upper lobe focal opacity that was suspicious for cancer such that no CT scan was required, and that, therefore, Dr. Petty had not violated the applicable standard of care with respect to his review of these x-rays.\nPlaintiff\u2019s expert witnesses, Dr. Karsten Konerding (\u201cDr. Konerding\u201d) and Dr. Randall Patten (\u201cDr. Patten\u201d), testified in their depositions, conversely, that Dr. Petty had in fact violated the standard of care by failing to report the presence of the focal opacity that was present on all three of Mrs. Schmidt\u2019s x-rays as a suspicious area that required follow-up study by means of a chest CT scan. Drs. Konerding and Patten also testified that the 27 May 2008 chest x-ray revealed a widened mediastinum that likewise should have been noted by Dr. Petty as indicative of metastatic disease with a recommendation for further study through a chest CT scan. Notably, however, both Dr. Patten and Dr. Konerding admitted that a finding to this effect by Dr. Petty on 27 May 2008 would not have prevented Mrs. Schmidt\u2019s death from metastatic lung cancer.\nA motion in limine was filed by Defendants to exclude evidence regarding Dr. Petty\u2019s analysis of Mrs. Schmidt\u2019s 27 May 2008 chest x-ray. The motion was orally amended so as to seek the exclusion of \u201cany testimony that Dr. Petty violated the standard of care in reading that x-ray.\u201d\nThe motion was heard before the Honorable Sharon T. Barrett on 8 October 2012. Plaintiff argued that expert testimony that Dr. Petty violated the standard of care by failing to note a lesion in his analysis of the 27 May 2008 x-ray was relevant and admissible to \u201cshow how the lesion progressed].\u201d Plaintiff further contended such opinion testimony was relevant because the \u201cjury could infer . . . that since Dr. Petty did not report the 2.5 or 1.5 centimeter lesions, that he was not looking for cancer in the upper lobe of Mrs. Schmidt\u2019s [lung] on the two prior occasions.\u201d In response, Defendants asserted that this evidence lacked relevance because of \u201cthe fact that any alleged failure by Dr. Petty to report the lesion on the May 2008 x-ray could not have been the proximate cause of the injuries suffered.\u201d\nJudge Barrett made a relevancy determination based on Rules 404(b) and 406 of the North Carolina Rules of Evidence. She ruled that this evidence was inadmissible under Rule 406 because \u201cthere\u2019s not a sufficient showing of an adequate number of times that the alleged conduct occurred to establish it as a habit.\u201d Judge Barrett further determined that the evidence also lacked relevance under Rule 404(b) because the x-ray was \u201cthe final in a series of three x-rays in different years, and . . . the conduct is not conduct that proximately caused the decedent\u2019s injury----\u201d\nDespite its determination that this opinion testimony was not relevant, the trial court nevertheless proceeded to perform an analysis under Rule 403 of the North Carolina Rules of Evidence, weighing the probative value of this evidence against its prejudicial impact on Defendants and the likelihood of confusion of the issues. Judge Barrett concluded that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice to Defendants and that the admission of this evidence would lead to confusion by the jury. She proceeded to grant the motion in limine, ruling that \u201copinion evidence that the defendant violated the standard of care in May of 2008 ... shall not be admitted,\u201d and \u201cevidence regarding the defendant\u2019s failure to note in his report certain findings regarding the decedent\u2019s medical condition . . . shall be excluded.\u201d'Judge Barrett further ruled, however, that the report of the 27 May 2008 x-ray itself was admissible.\nThe case proceeded to trial on 9 October 2012. At the conclusion of the trial, the jury returned a verdict in favor of Defendants, and the trial court entered a judgment on 17 October 2012. Plaintiff filed a timely notice of appeal to this Court.\nAnalysis\nThe sole issue raised on appeal is whether the trial court erred in granting Defendants\u2019 motion in limine. \u201cA motion in limine seeks pretrial determination of the admissibility of evidence proposed to be introduced at trial; its determination will not be reversed absent a showing of an abuse of the trial court\u2019s discretion.\u201d Warren v. Gen. Motors Corp., 142 N.C. App. 316, 319, 542 S.E.2d 317, 319 (2001). An abuse of discretion exists when the record shows that the trial court\u2019s ruling was so arbitrary that it \u201c \u2018could not have been a result of competent inquiry.\u2019 \u201d Morris v. Gray, 181 N.C.App. 552, 556, 640 S.E.2d 737, 740 (2007)(quoting Wiencek-Adams v. Adams, 331 N.C. 688, 691, 417 S.E.2d 449, 451 (1992)). In our review, \u201cwe consider not whether we might disagree with the trial court, but whether the trial court\u2019s actions are fairly supported by the record.\u201d State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008)(citation omitted).\n' Plaintiff argues that: (1) the trial court committed error by failing to find the opinion testimony of Plaintiff\u2019s expert witnesses regarding Dr. Petty\u2019s allegedly negligent interpretation of the 27 May 2008 x-ray relevant under Rule 401 of the North Carolina Rules of Evidence; (2) the trial court abused its discretion by ruling that the probative value of this testimony was substantially outweighed by its prejudicial effect on Defendants and the likelihood of confusion of the issues in the minds of the jurors pursuant to Rule 403; and (3) the error prejudiced Plaintiff because a different result would likely have ensued had the error not occurred.\nEven assuming, without deciding, that the excluded evidence could be characterized as relevant under Rule 401, we hold that the trial court did not abuse its discretion in granting Defendant\u2019s motion in limine based on Rule 403. Rule 403 states, in pertinent part, that relevant evidence \u201cmay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....\u201d N.C. R. Evid. 403. The \u201capplication of the Rule 403 balancing test remains entirely within the inherent authority of the trial court.\u201d Warren v. Jackson, 125 N.C. App. 96, 98, 479 S.E.2d 278, 280, disc. review denied, 345 N.C. 760, 485 S.E.2d 310 (1997). Hence, the trial court\u2019s determination as a result of this balancing test will not be disturbed on appeal absent a clear showing that the court abused its discretion. Id.\nHere, the trial court stated the following in connection with its application of Rule 403:\nThe next step in the analysis is to consider, even if this could have been admitted as habit or 404(b) evidence, whether under Rule 403, the probative value of this evidence vis-\u00e1-vis the danger of confusion of the issues in the minds of the jury, as this is a medical malpractice case, the factual finding by the jury about the standard of care and about proximate cause are so critical to the determination of liability, that this is a crucial finding by the jury.\nIf the jury were to hear opinion testimony about the violation of the standard of care that is not alleged as a proximate cause of injury, or if the jury were to hear evidence regarding whether or not the defendant failed to note in his May 2008 report certain findings regarding the decedent\u2019s medical condition at that time, I believe and have determined in the exercise of discretion that significant danger of confusion of the jury on a matter that is dispositive of the case would be presented.\nFurther, the Court finds that the probative value is greatly outweighed by the danger of unfair prejudice to the defendant. And all of this ruling is based on my evaluation of the forecast of the evidence, the pleadings and the contentions of the parties and the authorities submitted at this particular time.\nA jury is likely to attach great significance to expert testimony that a party violated the applicable standard of care. See U.S. v. Dorsey, 45 F.3d 809, 815 (4th Cir. 1995)(\u201c[E]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the [Rules of Evidence] exercises more control over experts than over lay witnesses.\u201d (citations omitted)).\nWe believe that the trial court acted within its discretion in granting Defendants\u2019 motion in limine. It was reasonable for Judge Barrett to conclude that had the jury been permitted to hear expert testimony by Drs. Konerding and Patten to the effect that Dr. Petty violated the standard of care in reviewing Mrs. Schmidt\u2019s 27 May 2008 x-ray \u2022 \u2014 an error that Plaintiff concedes was not a proximate cause of Mrs. Schmidt\u2019s death \u2014 confusion of the issues in the minds of the jurors and ensuing prejudice to Defendants were likely to occur. The key issues to be resolved by the jury in this case were whether (1) Dr. Petty violated the applicable standard of care in his reading of the 2006 and 2007 x-rays; and (2) whether these acts of alleged negligence by Dr. Petty proximately caused Mrs. Schmidt\u2019s death. We cannot say that the trial court abused its discretion in determining that the potential for harm stemming from the admission of expert testimony regarding a standard of care violation by Dr. Petty on a separate occasion substantially outweighed any limited probative value of this evidence \u2014 given the parties\u2019 agreement that any such violation did not proximately cause Mrs. Schmidt\u2019s death. See Home v. Roadway Package Sys., Inc., 129 N.C. App. 242, 244, 497 S.E.2d 436, 438 (1998)(\u201cExpert opinion testimony can be excluded when the trial court determines . . . the chance of misleading the jury outweighs the probative value of the evidence.\u201d). Thus, the trial court did not abuse its discretion in granting Defendants\u2019 motion in limine.\nConclusion\nFor the reasons stated above, we affirm.\nAFFIRMED.\nJudges CALABRIA and STROUD concur.",
        "type": "majority",
        "author": "DAVIS, Judge."
      }
    ],
    "attorneys": [
      "Fred D. Smith Jr., P.C., by Fred D. Smith, Jr. and Ron L. Moore, P.A., by Ron L. Moore, for plaintiff-appellant.",
      "Northup, McConnell & Sizemore PLLC, by Isaac N. Northup, Jr. and Katherine M. Bulfer, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "PHILIP SCHMIDT, as Administrator of the Estate of MARTHA JEAN SCHMIDT, Plaintiff v. SCOTT MILLER PETTY, MD and NANTAHALA RADIOLOGY ASSOCIATES, P.A., Defendants\nNo. COA13-278\nFiled 17 December 2013\nEvidence \u2014 medical malpractice \u2014 exclusion of evidence \u2014 standard of care violation \u2014 not proximate cause of death\nThe trial court did not abuse its discretion in a medical malpractice action by granting defendants\u2019 motion in limine to exclude certain expert testimony about a violation of the standard of care. Plaintiff conceded that the violation was not a proximate cause of the decedent\u2019s death and confusion of the issues in the minds of the jurors and ensuing prejudice to defendants were likely to occur.\nAppeal by plaintiff from judgment entered 22 October 2012 by Judge Sharon T. Barrett in Macon County Superior Court. Heard in the Court of Appeals 29 August 2013.\nFred D. Smith Jr., P.C., by Fred D. Smith, Jr. and Ron L. Moore, P.A., by Ron L. Moore, for plaintiff-appellant.\nNorthup, McConnell & Sizemore PLLC, by Isaac N. Northup, Jr. and Katherine M. Bulfer, for defendants-appellees."
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