Smith v. Polsky , 251 N.C. App. 589 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-605
Filed: 17 January 2017
Iredell County, No. 12 CVS 2025
WALTER CALVERT SMITH, Plaintiff,
v.
STEWART POLSKY, M.D., CAROLINA UROLOGY PARTNERS, PLLC, and LAKE
NORMAN UROLOGY, PLLC, Defendants.
Appeal by defendants from order entered 8 March 2016 by Judge Julia Lynn
Gullett in Iredell County Superior Court. Heard in the Court of Appeals 15 November
2016.
Homesley, Gaines, Dudley & Clodfelter, LLP, by Edmund L. Gaines and
Christina Clodfelter, for plaintiff-appellee.
Parker Poe Adams & Bernstein LLP, by Chip Holmes and Bradley K. Overcash,
for defendants-appellants.
ZACHARY, Judge.
Stewart Polsky, M.D., Carolina Urology Partners, PLLC, and Lake Norman
Urology, PLLC (defendants) appeal an order denying certain portions of their pretrial
motion in limine. For the reasons that follow, we dismiss defendants’ appeal as
interlocutory.
SMITH V. POLSKY
Opinion of the Court
I. Background
Plaintiff Walter Smith (Smith) became a paraplegic in 1975 when he suffered
a spinal cord injury in a motor vehicle accident. In 1995, Smith underwent the
implantation of an inflatable penile prosthesis, which malfunctioned and ceased
operating in 2008. Dr. Polsky became Smith’s urologist in 2005. On 25 August 2009,
Dr. Polsky performed penile prosthesis revision surgery on Smith, a procedure that
involved removing the original inflatable penile prosthetic device and replacing it
with a new one.
Following the procedure, Smith experienced pain and swelling at the surgical
site, and he was eventually hospitalized on 19 September 2009. Dr. Polsky examined
Smith at the hospital, diagnosed him with a “possible scrotal infection,” and
prescribed three antibiotics. The antibiotics Gentamicin, Vancomycin, and
Ceftriaxone were administered intravenously. After being discharged from the
hospital on 23 September 2009, Smith was instructed to continue taking the three
antibiotics intravenously, and Advanced Home Care, Inc. (Advanced Home Care)
provided and administered the medications. Smith received his last dose of
Gentamicin—which is known to cause bilateral vestibulopathy, a condition caused by
damage to one’s inner ears that results in imbalance and impaired vision—on 9
October 2009. Shortly thereafter, Smith was diagnosed with bilateral vestibulopathy.
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Opinion of the Court
Smith had the infected, replacement penile prosthesis surgically removed
approximately three years later.
In February 2011, Smith filed for Chapter 7 Bankruptcy. On 21 August 2012,
the trustee of Smith’s bankruptcy estate filed a complaint in Iredell County Superior
Court against Dr. Polsky, his medical practice, and Advanced Home Care. The
complaint alleged numerous theories of medical negligence arising out of the surgical
care as well as the prescription and monitoring of the post-surgery antibiotic therapy
that Smith received from August through October of 2009. Pertinent to this appeal,
the complaint alleged that once Smith was diagnosed with a scrotal (or superficial
wound) infection on 19 September 2009, Dr. Polsky was negligent in choosing to
prescribe antibiotic therapy instead of surgically removing the infected penile
prosthesis. All claims against Advanced Home Care were eventually settled and
dismissed, and a portion of the settlement proceeds were used to satisfy the claims of
Smith’s bankruptcy estate. As a result, Smith was substituted as plaintiff against
Dr. Polsky and his practice, the remaining defendants in the medical negligence
action.
In May 2014, defendants filed a Motion for Summary Judgment, or in the
alternative, Motion for Partial Summary Judgment. However, before the trial court
ruled on defendants’ motion, the parties entered into a Voluntary Dismissal with
Prejudice and Stipulation (the Dismissal). Pursuant to the Dismissal, Smith
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Opinion of the Court
dismissed with prejudice the claims contained in Paragraph 41, subparagraphs (d)
through (k) of his complaint, which alleged the following theories of negligence:
(d) Having decided to initiate antibiotic therapy on
September 19, 2009, Defendant Dr. Polsky breached the
standard of care by choosing the antibiotic gentamicin as
opposed to choosing other more efficacious and less risky
agents.
(e) Having decided to administer gentamicin, Dr. Polsky
failed to communicate to the hospital pharmacists the
severity of the infection, and whether he was employing
gentamicin as a primary or synergistic agent.
(f) Having decided to administer gentamicin, Dr. Polsky
failed to adequately inform himself of what parameters
would be applied by the hospital pharmacists in calculating
“gentamicin daily dosing per pharmacy.”
(g) Having decided to administer gentamicin, Dr. Polsky
failed to select a proper dose of gentamicin for the target
infection assuming that it required treatment for more
than 3-5 days.
(h) Having decided to administer gentamicin, Dr. Polsky
failed to prudently balance the probability of success with
antibiotic treatment against the extremely high likelihood
that bilateral vestibulopathy would result from the
prolonged administration of 7 mg/kg/day of gentamicin.
(i) Having decided to administer gentamicin, Dr. Polsky
failed to order renal function testing with sufficient
frequency to detect rapidly deteriorating renal function.
This violation continued throughout the period of
gentamicin administration as changes in renal function
were noted. Defendant Dr. Polsky breached the standard
of care when he failed to discontinue gentamicin
immediately on October 1, 2009, when excessive
gentamicin and vancomycin trough levels were obtained in
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Opinion of the Court
conjunction with an increased serum creatinine.
(j) Defendant Dr. Polsky breached the standard of care
when he failed to discontinue gentamicin immediately on
October 6, 2009, when excessive gentamicin and
vancomycin trough levels were obtained in conjunction
with an increased serum creatinine.
(k) His care was also deficient in other respects as may be
discovered in the prosecution of this action.
The Dismissal also required Smith to file an amended complaint, and he did so
on 3 September 2014. Smith further stipulated that the “only remaining theories of
negligence alleged against [d]efendants . . . [were] enumerated in Paragraph 32,
subparagraphs (a) through (c)” of his amended complaint, which read:
(a) Defendant Dr. Polsky breached the standard of care by
failing to utilize a multiple wound irrigation technique at
the time of the AMS 700 reimplantation on August 25,
2009.
(b) On or about September 19, 2009, Defendant Dr. Polsky
breached the standard of care by failing to remove the
previously placed reservoir and attached tubing, along
with the AMS 700 device which was implanted on August
25, 2009.
(c) Defendant Dr. Polsky breached the standard of care by
initiating antibiotic treatment for the infected prosthetic
device on September 19, 2009. The risk of Dr. Polsky’s
prescribed long term therapy greatly outweighed the
extremely unlikely potential reward of salvaging the
device.
In exchange for Smith’s promises to dismiss the above-mentioned theories of
negligence and file an amended complaint, defendants agreed and stipulated that
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Opinion of the Court
material issues of fact remained concerning Smith’s surviving negligence claims.
Smith and defendants both filed pretrial motions between November and
December of 2015. Defendants’ motion in limine No. 1 requested that the trial court
exclude
[a]ny evidence and/or argument related to any theories of
liability that Dr. Polsky was negligent in any manner for
the selection and/or use of the antibiotic Gentamicin,
including but not limited to: (1) the decision not to choose
any alternative antibiotic; (2) testimony or evidence
relating to the individual toxicity characteristics of
Gentamicin; (3) that the “prolonged” use of Gentamicin was
negligent; and (4) evidence related to the “synergistic”
effect of the antibiotics as those claims have been
Dismissed, with Prejudice, by the Plaintiff.
The trial court held a hearing on the parties’ pretrial motions on 21 December 2015.
At the hearing, defendants argued that while Smith could present evidence that “any
antibiotic treatment would not have helped [him] because the only [prudent] decision
[was] the surgical removal,” he could not contend that Dr. Polsky was negligent in
choosing, administering, dosing, or monitoring the antibiotic Gentamicin.
In contrast, Smith argued that not allowing him to explain the risks of the
Gentamicin treatment “would be to hamstring . . . , prevent us from being able to give
the jury the rest of the story.” Smith’s position was that the term “initiating antibiotic
therapy” in Paragraph 32, subparagraph (c) of his amended complaint included and
preserved claims that Dr. Polsky was negligent in prescribing the long-term use of
Gentamicin.
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Opinion of the Court
Defendants responded by asserting that all negligence claims concerning the
specific, prolonged use of Gentamicin to treat Smith’s infection had been dismissed
with prejudice. According to defendants, the Dismissal acted as a prior adjudication
on the merits as to those claims, and all subparts of defendants’ motion in limine
should have been granted pursuant to the doctrine of res judicata.
In an order entered 8 March 2016, the trial court denied defendant’s motion in
limine No. 1, subparts (1) through (3), and granted defendants’ motion as to subpart
(4). Defendants appeal.
II. Standard of Review
It is well established that
[a] motion in limine seeks pretrial determination of the
admissibility of evidence proposed to be introduced at trial,
and is recognized in both civil and criminal trials. The trial
court has wide discretion in making this advance ruling . .
. . Moreover, the court’s ruling is not a final ruling on the
admissibility of the evidence in question, but only
interlocutory or preliminary in nature. Therefore, the
court’s ruling on a motion in limine is subject to
modification during the course of the trial.
Heatherly v. Indus. Health Council, 130 N.C. App. 616, 619, 504 S.E.2d 102, 105
(1998) (internal citations and quotation marks omitted). When this Court reviews a
decision to grant or deny a motion in limine, the determination will not be reversed
absent a showing that the trial court abused its discretion. Id.
In the instant case, because the trial court’s order denying portions of
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Opinion of the Court
defendants’ motion in limine No. 1 is interlocutory, we must first determine whether
this appeal is properly before us. Both Smith and defendants contend that the trial
court’s ruling is subject to immediate review, but “acquiescence of the parties does
not confer subject matter jurisdiction on a court.” McCutchen v. McCutchen, 360 N.C.
280, 282, 624 S.E.2d 620, 623 (2006).
“An interlocutory order is one made during the pendency of an action, which
does not dispose of the case, but leaves it for further action by the trial court in order
to settle and determine the entire controversy.” Veazey v. Durham, 231 N.C. 354,
362, 57 S.E.2d 377, 381 (1950). In most cases, a party has “no right of immediate
appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326
N.C. 723, 725, 392 S.E.2d 735, 736 (1990). This general rule prevents “fragmentary
and premature appeals that unnecessarily delay the administration of justice[.]”
Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980).
There are “at least two instances[,]” however, in which a party may
immediately appeal from an interlocutory order or judgment. Sharpe v. Worland, 351
N.C. 159, 161, 522 S.E.2d 577, 579 (1999). The first occasion arises when the trial
court certifies its order for immediate review under Rule 54(b) of the North Carolina
Rules of Civil Procedure. McConnell v. McConnell, 151 N.C. App. 622, 624, 566 S.E.2d
801, 803 (2002). In the second instance, immediate review is available where the
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Opinion of the Court
order affects a substantial right. Blackwelder v. Dept. of Human Res., 60 N.C. App.
331, 333, 299 S.E.2d 777, 779 (1983).
Our Supreme Court has defined a “substantial right” as “a legal right affecting
or involving a matter of substance as distinguished from matters of form: a right
materially affecting those interests which a [person] is entitled to have preserved and
protected by law: a material right.” Sharpe, 351 N.C. at 162, 522 S.E.2d at 579
(quotation marks and citation omitted) (alteration in original). “The burden is on the
appellant to establish that a substantial right will be affected unless he is allowed
immediate appeal from an interlocutory order.” Embler v. Embler, 143 N.C. App.
162, 166, 545 S.E.2d 259, 262 (2001). Put differently, an appellant must demonstrate
that the challenged “order deprives the appellant of a substantial right that ‘will
clearly be lost or irremediably adversely affected if the order is not review[ed] before
final judgment.’ ” Edmondson v. Macclesfield L-P Gas Co., 182 N.C. App. 381, 391,
642 S.E.2d 265, 272 (2007) (quoting Blackwelder, 60 N.C. App. at 335, 299 S.E.2d at
780). In making this determination, our appellate courts take a “restricted view of
the ‘substantial right’ exception to the general rule prohibiting immediate appeals
from interlocutory orders.” Blackwelder, 60 N.C. App. at 334, 299 S.E.2d at 780.
III. Analysis
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Opinion of the Court
According to defendants, “[a]llowing [Smith] to resurrect his Gentamicin-
specific claims that were previously dismissed undermines the doctrine of res judicata
and violates [d]efendants’ substantial right to avoid inconsistent verdicts on the same
claims.” Defendants further argue that if the trial court’s preliminary ruling on their
motion in limine is not addressed, they will be forced “to re-litigate the previously-
adjudicated Gentamicin claims.” Defendants’ res judicata defense rests on their
contention that the Dismissal operated as a final judgment on the merits releasing
them from any further exposure to Gentamicin claims at trial. In sum, while
acknowledging the interlocutory nature of their appeal, defendants insist that the
denial of their motion in limine No. 1, subparts (1) through (3), affects a substantial
right. We disagree.
The longstanding rule in North Carolina is that a voluntary dismissal with
prejudice is, by operation of law, a final judgment on the merits implicating the
doctrine of res judicata. Riviere v. Riviere, 134 N.C. App. 302, 306, 517 S.E.2d 673,
676 (1999); Kabatnik v. Westminster Co., 63 N.C. App. 708, 712, 306 S.E.2d 513, 515
(1983); Barnes v. McGee, 21 N.C. App. 287, 290, 204 S.E.2d 203, 205 (1974). “Under
the doctrine of res judicata or ‘claim preclusion,’ a final judgment on the merits in one
action precludes a second suit based on the same cause of action between the same
parties or their privies.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d
870, 880 (2004) (citations omitted). By its very operation, the doctrine precludes the
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Opinion of the Court
relitigation of “all matters . . . that were or should have been adjudicated in the prior
action.” Id. (citation omitted).
This Court has previously held that “when a trial court enters an order
rejecting the affirmative defense[] of res judicata . . ., the order can affect a substantial
right and may be immediately appealed.” Strates Shows, Inc. v. Amusements of Am.,
Inc., 184 N.C. App. 455, 459, 646 S.E.2d 418, 422 (2007) (emphasis added; citation
and internal quotation marks omitted). Even so, it is clear that invocation of res
judicata “does not . . . automatically entitle a party to an interlocutory appeal of an
order rejecting” that defense. Foster v. Crandell, 181 N.C. App. 152, 162, 638 S.E.2d
526, 534, disc. review denied, 361 N.C. 567, 650 S.E.2d 602 (2007). For example, the
“denial of a motion for summary judgment based upon the defense of res judicata may
involve a substantial right so as to permit immediate appeal only where a possibility
of inconsistent verdicts exists if the case proceeds to trial.” Country Club of Johnston
County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. App. 159, 167, 519 S.E.2d 540,
546 (1999) (citation and quotation marks omitted), disc. review denied, 351 N.C. 352,
542 S.E.2d 207 (2000). Thus, motions based upon res judicata serve to “prevent[] the
possibility that a successful defendant, or one in privity with that defendant, will
twice have to defend against the same claim by the same plaintiff, or one in privity
with that plaintiff.” Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161
(1993).
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Opinion of the Court
According to defendants, “[p]roceeding with the present case under the trial
court’s ruling will force [them] to re-litigate the previously-adjudicated Gentamicin
claims” and to “confront the likelihood of inconsistent verdicts[.]” In making this
argument, defendants equate the Dismissal with a prior decision on the merits in a
court of law.
Previous decisions, however, have specifically restricted interlocutory appeals
based on the doctrine of res judicata.
Interlocutory appeals [are limited] to the situation when
the rejection of . . . defenses [based upon res judicata or
collateral estoppel] g[i]ve rise to a risk of two actual trials
resulting in two different verdicts. See, e.g., Country Club
of Johnston County, Inc. . . . , 135 N.C. App. . . . [at] 167,
519 S.E.2d . . . [at] 546 . . . (holding that an order denying
a motion based on the defense of res judicata gives rise to
a “substantial right” only when allowing the case to go
forward without an appeal would present the possibility of
inconsistent jury verdicts) . . . ; Northwestern Fin. Group,
Inc. v. County of Gaston, 110 N.C. App. 531, 536, 430
S.E.2d 689, 692 (holding that the defense of res judicata
gives rise to a “substantial right” only when there is a risk
of two actual trials resulting in two different verdicts), disc.
review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). One
panel, however, has held that a “substantial right” was
affected when defendants raised defenses of res judicata
and collateral estoppel based on a prior federal summary
judgment decision rendered on the merits. See Williams v.
City of Jacksonsville Police Dep’t, 165 N.C. App. 587, 589-
90, 599 S.E.2d 422, 426 (2004).
Foster, 181 N.C. App. at 162-63, 638 S.E.2d at 534.
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Opinion of the Court
The Foster Court dismissed the defendants’ appeal and had no need to reconcile
Country Club, Northwestern, and Williams, because in Foster, as here, there was no
possibility of a result inconsistent with a prior jury verdict or a prior decision on the
merits by a judge. Id. at 163, 638 S.E.2d at 534. Indeed, defendants’ res judicata
defense in the instant case rests solely on the Dismissal with the accompanying
stipulations. A review of the pertinent case law reveals that, in the context of
interlocutory appeals involving the defense of res judicata, this Court has drawn a
distinction between claims of a substantial right based on prior voluntary dismissals
with prejudice and claims based on prior adjudications by a judge or jury. Id.;
Robinson v. Gardner, 167 N.C. App. 763, 769, 606 S.E.2d 449, 453, disc. review denied,
359 N.C. 322, 611 S.E.2d 417 (2005); Allen v. Stone, 161 N.C. App. 519, 522, 588
S.E.2d 495, 497 (2003); see also Anderson v. Atl. Cas. Ins. Co., 134 N.C. App. 724, 727,
518 S.E.2d 786, 789 (1999) (holding that the defendant was not entitled to immediate
appeal based on argument that action was barred by a release because “[a]voidance
of trial is not a substantial right”).
In Allen, the plaintiff had dismissed her claims pursuant to Rule 41(a) of the
North Carolina Rules of Civil Procedure on two previous occasions. 161 N.C. App. at
519-20, 588 S.E.2d at 496. After the plaintiff filed a third action, the defendant filed
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Opinion of the Court
a motion to dismiss based on the ground that Rule 41(a)(1)’s two-dismissal rule1
barred the action. The trial court denied the motion to dismiss, and the defendant
appealed, arguing that the denial of his motion based on the prior dismissals affected
a substantial right. Id. at 521, 588 S.E.2d at 496. However, this Court rejected the
defendant’s argument and explained “that avoidance of a trial, no matter how tedious
or unnecessary, is not a substantial right entitling an appellant to immediate review.”
Id. at 522, 588 S.E.2d at 497 (emphasis added).
The procedural facts in Robinson were virtually identical to those in Allen.
However, the defendants in Robinson claimed that their appeal affected a substantial
right because the plaintiff’s prior dismissal with prejudice gave rise to the defense of
res judicata. 167 N.C. App. at 768, 606 S.E.2d at 452-53. After holding that it was
bound by Allen, the Robinson Court explained that the defendants’ assertion of a res
judicata defense had no talismanic effect on the substantial right inquiry:
The present appeal does not involve possible inconsistent
jury verdicts or even an inconsistent decision on the merits
since, as in Allen, there was only a voluntary dismissal that
would—if not set aside—result in an adjudication on the
merits only by operation of law. There has been no decision
by any court or jury that could prove to be inconsistent with
a future decision. Defendants do not seek to avoid
inconsistent decisions; they seek to avoid any litigation at
all.
1 Rule 41(a)(1) of the North Carolina Rules of Civil Procedure provides “that a notice of
dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed
. . . an action based on or including the same claim.”
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Id. at 769, 606 S.E.2d at 453.
In Foster, the defendants appealed the denial of their motion for judgment on
the pleadings. The defendants’ claim of a substantial right was based on their
contention that a prior settlement and voluntary dismissal with prejudice afforded
them the defenses of collateral estoppel and res judicata. 181 N.C. App. at 162, 638
S.E.2d at 533. This Court disagreed, held that it was bound by the decisions in Allen
and Robinson, and dismissed the defendants’ appeal as interlocutory. Id. at 163, 638
S.E.2d at 534. The Foster Court reasoned as follows: “Like the defendants in
Robinson and Allen, defendants in this case base their claim of res judicata on a prior
voluntary dismissal with prejudice that does not reflect a ruling on the merits by any
jury or judge.” Id. at 163-64, 638 S.E.2d at 534.
As in Foster, defendants in the present case base their claim of a substantial
right exclusively on Smith’s dismissal with prejudice and the parties’ accompanying
stipulations. In making this claim, defendants ignore the fact that no judge or jury
has ruled on the merits of the claims affected by the Dismissal. Instead, the
Dismissal represents “an adjudication on the merits only by operation of law.”
Robinson, 167 N.C. App. at 769, 606 S.E.2d at 453. This appeal does not involve
possible inconsistent jury verdicts, much less an inconsistent decision on the merits.
See Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (while
the possibility of two trials on the same issue can give rise to a substantial right
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Opinion of the Court
justifying an interlocutory appeal, the appellant must show that a judgment or order
creates “the possibility that a party will be prejudiced by different juries in separate
trials rendering inconsistent verdicts on the same factual issue”); Country Club of
Johnston County, Inc., 135 N.C. App. at 167, 519 S.E.2d at 546 (dismissing appeal
based on res judicata because prior decisions involved summary judgment orders and
not verdicts, and, therefore, the case “present[ed] no possibility of inconsistent
verdicts”).
In addition, despite defendants’ assertion that res judicata “controls” our
substantial right analysis, it is not insignificant that this appeal arises from the
partial denial of a motion in limine. A preliminary ruling “on a motion in limine is
subject to change during the course of trial, depending upon the actual evidence
offered at trial.” Xiong v. Marks, 193 N.C. App. 644, 647, 668 S.E.2d 594, 597 (2008)
(citation and quotation marks omitted). Consequently, the trial court may, in its
discretion, modify its ruling on the Gentamicin claims before or during trial of this
matter.
For the reasons stated above, defendants have failed to establish that their
appeal affects a substantial right that will be lost or inadequately addressed absent
immediate review. As such, the trial court’s order on the motion in limine is not
subject to immediate appeal.
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Opinion of the Court
IV. Conclusion
Because defendants have not demonstrated the existence of a substantial
right, their appeal from the trial court’s denial of a portion of their motion in limine
is not eligible for immediate review. Accordingly, defendants’ appeal is dismissed as
interlocutory.
DISMISSED.
Judges CALABRIA and INMAN concur.
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