Blanchard v. Britthaven, Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA12-1366
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
ANNE BLANCHARD, EXECUTRIX OF THE
ESTATE OF MARY LOU BARTHAZON,
Plaintiff,
v. Orange County
No. 09 CVS 1109
BRITTHAVEN, INC. and HILLCO,
LTD.,
Defendants.
Appeal by plaintiff from judgment and order entered 12
October 2011 and 13 January 2012 by Judge Shannon R. Joseph in
Orange County Superior Court. Heard in the Court of Appeals 23
May 2013.
Henson & Fuerst, P.A., by Anne Duvoisin; Connor & Connor,
LLC, by Kenneth L. Connor; and Brian G. Brooks, Attorney at
Law, PLLC, by Brian G. Brooks, for plaintiff-appellant.
Hurley Law Office, by Michael C. Hurley and Katherine L.
Jones, for defendants-appellees.
GEER, Judge.
Plaintiff Anne Blanchard, executrix of the Estate of Mary
Lou Barthazon, appeals from the trial court's entry of a final
judgment following a jury verdict in favor of defendants
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Britthaven, Inc. and Hillco, Ltd. Plaintiff had asserted claims
for ordinary and medical negligence arising out Britthaven's
allegedly improper care of Ms. Barthazon while she was a
resident at Britthaven's Chapel Hill, North Carolina nursing
home, which, plaintiff contended, resulted in Ms. Barthazon's
death.
On appeal, plaintiff primarily argues that the trial court
erred in excluding evidence of (1) documents produced by the
North Carolina Department of Health and Human Services ("NC
DHHS") following inspections of Britthaven's Chapel Hill, North
Carolina nursing home and (2) decisions resulting from
administrative appeals related to Ms. Barthazon's death.
Plaintiff's arguments on appeal regarding the admissibility of
the exhibits all hinge on plaintiff's assertion that the
documents were relevant to prove causation. However, plaintiff
did not, at trial, seek admission of the exhibits on that basis.
Plaintiff's appellate arguments were not, therefore, properly
preserved at trial for appeal.
Facts
On 21 June 2004, Ms. Barthazon was admitted as a resident
to a nursing home in Chapel Hill operated by Britthaven, a
wholly owned subsidiary of Hillco. At that time, Ms. Barthazon
was 95 years old, was non-ambulatory, and had severe Alzheimer's
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dementia and osteoporosis, making her at risk for broken bones
from falls. Pursuant to her resident care plan, Ms. Barthazon
was only to be transferred from a chair to her bed by use of a
certain mechanical lift. On 30 September 2007, Mack Weldon
Jones, Jr., who was working for Britthaven as a certified
nursing assistant, manually transferred Ms. Barthazon from a
chair to her bed without the use of a mechanical lift, in
violation of Ms. Barthazon's care plan.
Due to swelling and bruising in Ms. Barthazon's knees,
Britthaven staff ordered an x-ray of Ms. Barthazon's knees on 13
October 2007. The 13 October 2007 x-rays revealed that Ms.
Barthazon had two broken femurs. Because of her condition, Ms.
Barthazon was admitted to the University of North Carolina
Hospital's Emergency Department on 14 October 2007. Ms.
Barthazon died on 18 October 2007.
On 13 July 2009, plaintiff, Ms. Barthazon's daughter, filed
suit against defendants, asserting claims for (1) "ORDINARY
CORPORATE NEGLIGENCE" causing Ms. Barthazon's broken femurs but
not causing her death; (2) medical negligence causing various
lifetime injuries and Ms. Barthazon's death; and (3) "ORDINARY
NEGLIGENCE (NON-ADMINISTRATIVE BASIC CARE)" causing various
lifetime injuries and Ms. Barthazon's death. The complaint also
sought to pierce the corporate veil and obtain relief against
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Britthaven's parent company, Hillco, on the basis that Hillco
also owed duties of care to Ms. Barthazon and its breach of
those duties caused Ms. Barthazon's injury.
On 17 June 2011, defendants filed a motion for partial
summary judgment on plaintiff's claims for corporate negligence,
ordinary negligence, piercing the corporate veil, and punitive
damages. On or about 2 August 2011, defendants filed a "MOTION
FOR FINAL SUMMARY JUDGMENT" as to all of plaintiff's claims.
The trial court granted in part and denied in part
defendants' motion for summary judgment as to corporate
negligence and granted defendants' motion for summary judgment
as to all of plaintiff's ordinary negligence claims other than
the corporate negligence claim.1 On or about 1 September 2011,
the trial court entered an order deferring a ruling on
defendants' motion for partial summary judgment as to
1
On 29 August 2011, the court entered an order on
defendants' motion for partial summary judgment on the ordinary
negligence claims which provided that "Defendants' Motion for
Partial Summary Judgment is granted as to all of Plaintiff's
claims for ordinary negligence that were not adjudicated as part
of this Court's Order of August 5, 2011." The 5 August 2011
partial summary judgment order does not appear to be included in
the record on appeal. However, a 14 August 2011 email from the
trial court to counsel regarding defendants' summary judgment
motions indicates that, on 5 August 2011, the court entered an
order granting in part and denying in part defendants' partial
summary judgment motion as to the corporate negligence claim.
That email also indicated that the court took defendants'
summary judgment motion as to plaintiff's claim for punitive
damages under advisement at that time. The trial court restated
the content of the email during a pretrial hearing.
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plaintiff's claim based on piercing the corporate veil and
denying defendant's motion for final summary judgment.
Although the record is not entirely clear, it appears that
the case proceeded to trial on plaintiff's claims for medical
negligence, corporate negligence, and liability against Hillco
based on piercing the corporate veil. During the charge
conference, following the presentation of all the parties'
evidence, the trial court, on its own initiative, suggested that
the verdict sheet set out an initial question of whether "any
conduct" of defendants proximately caused Ms. Barthazon's
injuries before asking the jury to decide whether defendants
breached any duty of care towards Ms. Barthazon.
In accordance with the court's suggestion, the first
question on the verdict sheet asked: "Was any conduct of
defendant Britthaven, Inc. a proximate cause of any injury to,
or the death of, Mary Lou Barthazon?" Following deliberation,
the jury answered that first question in the negative. The
trial court, therefore, entered final judgment in favor of
defendants on 12 October 2011.
On 19 October 2011, plaintiff filed a motion for a new
trial pursuant to Rule 59(a) of the Rules of Civil Procedure.
The trial court denied plaintiff's motion for a new trial in an
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order entered 13 January 2012. Plaintiff timely appealed to
this Court.
I
Plaintiff first argues that the trial court erred by
excluding (1) evidence of inspections (called "surveys")
conducted at Britthaven's Chapel Hill nursing home pursuant to
state and federal regulations and (2) evidence arising out of
Britthaven's administrative appeals from those surveys.
Plaintiff contends that this evidence was relevant to the issue
of causation and admissible under Rule 803(8)(c) of the Rules of
Evidence.
Britthaven is a long-term care facility that participates
in the federal Medicare program. Pursuant to state and federal
regulations, NC DHHS inspects, or "surveys," long-term care
facilities to ensure compliance with Medicare regulations. See
N.C. Admin. Code, tit. 10A, r. 13D.2109(a) (October 2013); 42
C.F.R. § 488.330(a)(1)(i) (2013); 42 C.F.R. § 488.330(b)(1).
If NC DHHS finds noncompliance with federal regulations
after a survey, NC DHHS produces a statement of deficiencies
("SOD") that outlines the specific instances of noncompliance
and the evidence on which the findings are made. NC DHHS also
certifies its findings to the federal Centers for Medicare &
Medicaid Services ("CMS"). 42 C.F.R. § 488.330(a)(1)(i)(C).
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The findings of NC DHHS surveyors are recommendations to CMS,
which then makes its own determination regarding the long-term
care facility's compliance with federal regulations. 42 C.F.R.
§ 488.12 (2013).
In this case, NC DHHS conducted surveys at Britthaven's
Chapel Hill nursing home on 19 October 2007 and 29 November
2007. NC DHHS reported its results from the October and
November 2007 surveys on "FORM CMS-2567" documents. Both forms
contained a summary SOD with supporting findings, and the
November 2007 form further contained a plan of correction for
the deficiencies found. In each form's SOD, NC DHHS reported
noncompliance with federal Medicare regulations.
CMS adopted NC DHHS' recommendations based on the November
2007 survey and resulting SOD, which CMS determined superseded
the SOD for the October 2007 survey. Findings of noncompliance
in both surveys were based upon Mr. Jones' manual transfer of
Ms. Barthazon from a chair to her bed in violation of Ms.
Barthazon's care plan.
Following completion of a survey and SOD, a facility
subject to CMS-imposed sanctions for noncompliance may appeal,
under certain conditions, to a federal administrative law judge
("ALJ"). See 42 C.F.R. § 498.5 (2013). A dissatisfied party
may further appeal the ALJ's decision to the United States
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Department of Health and Human Service's Departmental Appeals
Board (the "Board"). See 42 C.F.R. § 498.80 (2013).
Utilizing this process, Britthaven appealed CMS' decision
to an ALJ, and the ALJ issued a decision affirming CMS' findings
of noncompliance with two Medicare regulations, which resulted
in immediate jeopardy to resident health and safety at the
facility (the "ALJ decision"). Britthaven then appealed a
single legal issue to the Board, and the Board issued a decision
affirming the ALJ decision (the "Board decision").
In arguing that the trial court erred in excluding evidence
of the surveys and the ALJ and Board decisions, plaintiff argues
that the evidence was admissible to prove causation under Rule
803(8)(c). We need not address whether such evidence, if
relevant, would be admissible under the Rules of Evidence
because review of the record shows that plaintiff never argued
to the trial court that the exhibits were admissible to show
causation, the sole argument made on appeal.2
2
We note that our review of the record has revealed no
ruling by the trial court on the admissibility of the ALJ and
Board decisions. Although plaintiff contends that, when ruling
upon the admissibility of the "surveys" during the 15 and 16
August 2011 pretrial hearings, the trial court was, in fact,
ruling upon the admissibility of not only the surveys, but also
the ALJ and Board decisions, the specific arguments of the
parties at trial and the trial court's rulings indicate that
references to "surveys" were limited to the surveys alone. By
failing to obtain a ruling from the trial court on the
admissibility of the ALJ and Board decisions, plaintiff failed
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On 9 August 2011, defendants filed a motion in limine
seeking to exclude evidence of the findings and conclusions from
the surveys, while on 10 August 2011, plaintiff filed a motion
requesting that the trial court judicially notice and "admit[]
into evidence" the "surveys and ALJ opinions relating to Ms.
Barthazon's transfer by Mack Jones." Plaintiff asserted that
the records were "important public documents," but made no
argument that they were relevant to causation in the written
motion for judicial notice.
The trial court heard arguments on defendants' motion in
limine at a 15 August 2011 pretrial hearing. At the hearing,
the parties only argued regarding whether the surveys were
admissible to show the applicable standard of care. Plaintiff
did not argue at the hearing that the surveys were admissible to
show causation. The trial court announced at the hearing that
it was "inclined to exclude" the surveys.
At a continuation of the hearing on the following day, 16
August 2011, the court again addressed the admissibility of the
to preserve that issue for appeal. N.C.R. App. P. 10(a)(1)
(requiring, in order to preserve issue for appeal, that
"complaining party . . . obtain a ruling upon the party's
request, objection, or motion"). Nonetheless, even assuming
that the trial court ruled that the ALJ and Board decisions were
inadmissible, we hold that, as with the surveys, plaintiff
failed to preserve the specific argument made on appeal since
she failed to argue at trial that the ALJ and Board decisions
were admissible to show causation.
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surveys. Consistent with the fact that the parties had debated
only the relevance of the surveys to the standard of care, the
court explained that Rule 702, which addresses expert testimony
regarding the standard of care, "gave me some pause." At the 16
August 2011 hearing, plaintiff again failed to argue that the
surveys and the ALJ and Board decisions were admissible to show
causation. The trial court deferred any ruling on plaintiff's
motion for judicial notice.3
Plaintiff filed a motion for reconsideration of the rulings
on defendants' motion in limine on or about 19 August 2011. The
motion addressed admissibility of the "survey documents" and
asserted no arguments pertaining to causation. Plaintiff has
pointed to -- and we have found -- no ruling on the motion to
reconsider.
Thus, although plaintiff argued, both in support of her
motion for judicial notice and in opposition to defendants'
motion in limine, that the surveys were admissible as evidence,
plaintiff argued only that the surveys were admissible to show
the applicable standard of care and any breach of that standard
by defendants. In addition, we have found no indication in the
3
The record on appeal does not contain written orders
addressing either defendant's motion in limine or plaintiff's
motion for judicial notice.
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record that plaintiff argued at trial that the surveys should be
admitted to prove causation.4
Rule 10(a)(1) of the Rules of Appellate Procedure provides
that "[i]n order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make . . . ." (Emphasis
added.) The purpose of the rule "'is to require a party to call
the [trial] court's attention to a matter upon which he or she
wants a ruling before he or she can assign error to the matter
on appeal.'" Lathon v. Cumberland Cnty., 184 N.C. App. 62, 68,
646 S.E.2d 565, 568 (2007) (quoting Reep v. Beck, 360 N.C. 34,
37, 619 S.E.2d 497, 499 (2005)). Because plaintiff did not
specifically argue to the trial court that the surveys should be
4
Plaintiff filed a motion, which was denied by the trial
court, requesting that the trial court apply the doctrine of
collateral estoppel to findings made in the ALJ decision as
affirmed by the Board decision, including findings related to
causation. This motion did not, however, address the
admissibility of the surveys, the ALJ decision, or the Board
decision at trial. See Rymer v. Estate of Sorrells, 127 N.C.
App. 266, 268, 488 S.E.2d 838, 840 (1997) ("'Collateral estoppel
precludes relitigation of an issue decided previously in
judicial or administrative proceedings provided the party
against whom the prior decision was asserted enjoyed a full and
fair opportunity to litigate that issue in an earlier
proceeding.'" (quoting In re McNallen, 62 F.3d 619, 624 (4th
Cir. 1995))). Consequently, the collateral estoppel motion was
not sufficient to preserve the issue raised on appeal.
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admitted as relevant to causation, plaintiff did not preserve
this issue for appeal.
We note, however, that plaintiff's motion for a new trial
sought a new trial based upon the court's exclusion of the
surveys and ALJ and Board decisions since findings in those
documents supported plaintiff's "core allegations" at trial.
Among other findings, the motion specifically referenced the
ALJ's findings of fact regarding causation. Even if we assume -
- although it is not entirely clear from the record -- that
plaintiff was making the same argument in the motion for a new
trial as made on appeal, the motion for a new trial, standing
alone, is not sufficient to preserve the issue for appeal.
Rule 10(a)(1) of the Rules of Appellate Procedure provides
that in order to preserve an issue for appellate review, a party
must present a "timely request, objection, or motion," and an
issue raised for the first time in a post-trial motion is not
considered a timely request sufficient for appellate
preservation. (Emphasis added.) See Hanna v. Brady, 73 N.C.
App. 521, 528, 327 S.E.2d 22, 26 (1985) ("We do not feel that a
motion for a new trial made under Rule 59 [of the Rules of Civil
Procedure] is intended to serve as a substitute for the
obligation of counsel to timely object to the jury instructions.
The obvious purpose behind the requirement of a timely objection
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is to avoid the need to completely retry a case when a judge
could merely correct the instructions.").
However, even if plaintiff had preserved her causation
argument for appeal, plaintiff does not challenge in her brief
the trial court's ruling, pursuant to Rule 403 of the Rules of
Evidence, that any probative value of the surveys was
substantially outweighed by the danger of confusion of the
issues at trial. See id. ("Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of . . . confusion of the issues . . . ."). Because
plaintiff has made no showing that the trial court abused its
discretion in excluding the evidence under Rule 403, see State
v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) ("We
review a trial court's decision to exclude evidence under Rule
403 for abuse of discretion."), she cannot show prejudice from
the error she asserts on appeal.
In sum, plaintiff failed to argue at trial that the surveys
and the ALJ and Board decisions were admissible to show
causation and, consequently, failed to preserve that issue for
review. Moreover, plaintiff has not shown prejudice because she
has failed, on appeal, to challenge the trial court's ruling
excluding the evidence under Rule 403.
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II
Plaintiff next argues that even if the surveys and the ALJ
and Board decisions were not otherwise admissible as evidence,
the trial court erred by not allowing plaintiff to cross-examine
defendants' expert witness on causation, Dr. Alexander Doman,
with those documents. Plaintiff contends that because Dr. Doman
stated on voir dire that he had taken the documents into
consideration when reaching his opinions, plaintiff was entitled
to cross-examine Dr. Doman with the surveys and the ALJ and
Board decisions.
Rule 705 of the Rules of Evidence provides that an expert
"may testify in terms of opinion or inference and give his
reasons therefor without prior disclosure of the underlying
facts or data, unless an adverse party requests otherwise, in
which event the expert will be required to disclose such
underlying facts or data on direct examination or voir dire
before stating the opinion." Rule 705 states further: "The
expert may in any event be required to disclose the underlying
facts or data on cross-examination."
In this case, plaintiff questioned Dr. Doman on voir dire
regarding whether Dr. Doman had reviewed the surveys:
Q. Have you taken into account in this
case, in arriving at your opinions, the
conclusions of the interdisciplinary survey
team that cited the nursing home in this
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case for multiple violations of the federal
regulations as it related to the care of
Mary Lou Barthazon?
A. Yes.
Q. What were the opinions that the State
arrived at in that regard?
A. That there were some deficiencies.
Q. And on what basis do you conclude that
that was in error?
A. I'm not expressing an opinion regarding
federal investigations. I'm expressing
opinions today regarding the cause of the
fractures.
Q. What qualifies you to express opinions
about the basis for confusion about these
issues as opposed to merely offering your
opinions about the cause of the injuries?
A. There is no difference. . . . I'm
expressing an opinion as to the cause of the
injury; and someone else is expressing the
opinion that's different from my opinion,
apparently. People -- the jury can reach
their conclusion as to which opinion . . .
they choose to accept.
Plaintiff then asked the court to permit cross-examination
of Dr. Doman before the jury regarding the content of the
surveys:
[PLAINTIFF'S COUNSEL]: In view of the
fact that the witness has indicated that he
has taken into account the survey issued by
the State and the conclusions reached
therein with respect to his opinion,
respectfully I ask that I be permitted to
query him in the presence of the jury on the
contents of the survey.
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THE COURT: Denied at this point.
(Emphasis added.)
On appeal, plaintiff asserts that the trial court erred in
excluding evidence of the surveys and the ALJ and Board
decisions because "Dr. Doman admitted on voir dire that he
considered and reviewed the surveys and the ALJ record in
forming his opinions." However, plaintiff questioned Dr. Doman
only as to whether he had taken into account "the conclusions of
the interdisciplinary survey team" and "the State." He did not
testify whether he considered the ALJ and Board decisions.
Plaintiff then moved the court only for permission to cross-
examine Dr. Doman with "the survey issued by the State and the
conclusions reached therein." Since plaintiff did not ask the
court for leave to cross-examine Dr. Doman with the ALJ and
Board decisions, plaintiff has failed to preserve for appeal any
argument regarding cross-examination of Dr. Doman with those
records. N.C.R. App. P. 10(a)(1).
With respect to the surveys, we initially observe that "'an
expert may be . . . cross-examined with respect to material
reviewed by the expert but upon which the expert does not
rely.'" Dep't of Transp. v. Blevins, 194 N.C. App. 637, 644,
670 S.E.2d 621, 626 (quoting Williams v. CSX Transp., Inc., 176
N.C. App. 330, 336, 626 S.E.2d 716, 723 (2006)), aff'd per
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curiam as modified on other grounds sub nom. N.C. Dep't of
Transp. v. Blevins, 363 N.C. 649, 686 S.E.2d 134 (2009). Dr.
Doman's voir dire testimony indicating he had taken into account
the surveys was, therefore, sufficient to lay a foundation for
plaintiff to cross-examine him regarding the contents of the
surveys.
However, despite laying a sufficient foundation at the
trial level for use of the evidence, plaintiff then failed to
make any offer of proof as to what Dr. Doman's testimony would
have been before the jury if cross-examined regarding the
surveys. "'In order to preserve an argument on appeal which
relates to the exclusion of evidence, including evidence
solicited on cross-examination, the defendant must make an offer
of proof so that the substance and significance of the excluded
evidence is in the record.'" State v. Ryals, 179 N.C. App. 733,
740-41, 635 S.E.2d 470, 475 (2006) (quoting State v. Ginyard,
122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996)).
Without an offer of proof -- which could have been
accomplished by plaintiff's counsel asking during voir dire the
questions that he wanted to ask before the jury -- we cannot
determine whether plaintiff was prejudiced by the trial court's
ruling. As our Supreme Court has explained, "'the essential
content or substance of the witness' testimony must be shown
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before we can ascertain whether prejudicial error occurred.'"
State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010)
(quoting State v. Raines, 362 N.C. 1, 20, 653 S.E.2d 126, 138
(2007)). See also State v. Williams, 355 N.C. 501, 534-35, 565
S.E.2d 609, 629 (2002) (holding defendant failed to preserve for
appeal argument that trial court erroneously sustained State's
objection to question during cross-examination of witness when,
on voir dire, defendant failed to make offer of proof as to what
witness would have testified to on cross-examination had
objection been overruled).
III
Plaintiff also argues that several other "developments in
the conduct of the trial" made evidence of the surveys and the
ALJ and Board decisions admissible. Specifically, plaintiff
argues that five statements by defense counsel during jury
selection -- four asserting that no one had decided whether
there was any truth in plaintiff's allegations and one asserting
that no one had made any decision about this case -- were untrue
in light of the surveys and the ALJ and Board decisions.
Plaintiff also argues that defense counsel's opening statement
incorrectly framed plaintiff's allegations as, in plaintiff's
words, "those of hysterical, over-reacting family members" when
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the evidence of the surveys and the ALJ and Board decisions
showed her allegations to be sound.
Plaintiff did not, however, argue at trial that the jury
selection questions or defendants' opening statement opened the
door for admission of the surveys and the ALJ and Board
decisions. Although plaintiff did argue in her motion for a new
trial that defendants' jury selection statements opened the door
for admissibility of the evidence, her argument made for the
first time in that motion did not give the trial court an
opportunity to revisit, during trial, its pretrial ruling
excluding the surveys or to make, during trial, a ruling on
whether to exclude the ALJ and Board decisions. The argument in
her motion for a new trial did not, therefore, preserve the
issue for appeal. See Hanna, 73 N.C. App. at 528, 327 S.E.2d at
26.
Plaintiff additionally contends that prejudice to her from
exclusion of the surveys and the ALJ and Board decisions was
compounded by defense counsel's closing argument assertion that
Mr. Jones was fired as a scapegoat for not transferring Ms.
Barthazon with a mechanical lift. Plaintiff objected to
defendants' closing argument in front of the jury, asserting
that the challenged statement "misstates the evidence," and the
trial court sustained the objection.
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Because plaintiff's argument on appeal regarding whether
the evidence was erroneously excluded was not preserved for
appeal, the question whether the exclusion prejudiced plaintiff
is immaterial. Moreover, the trial court sustained the
objection, and plaintiff did not request a limiting instruction
from the court or seek a mistrial. See Smith v. Hamrick, 159
N.C. App. 696, 699, 583 S.E.2d 676, 679 (2003) ("[T]his Court
has held that when an objection is made to an improper argument
of counsel and the court sustains the objection, that court does
not err by failing to give a curative instruction if one is not
requested.").
Given plaintiff's failure to request a limiting instruction
and failure to move for a mistrial on this issue, we are not
persuaded by plaintiff's argument that she was unduly prejudiced
even though the trial court sustained her objection. See State
v. Barber, 93 N.C. App. 42, 49, 376 S.E.2d 497, 501 (1989)
(rejecting argument defendant was entitled to new trial based on
prosecutor's improper closing argument since defendant failed to
request limiting instruction when court sustained objection to
argument and since evidence against defendant was overwhelming).
IV
Plaintiff's final argument is that "[t]he undue prejudice
to Plaintiff's case by the exclusion of [the surveys and the ALJ
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and Board decisions] [were] compounded and made exponentially
greater when combined with the trial court's decision to place
causation in a verdict sheet all by itself and outside the
context of negligence by asking whether any 'conduct' caused
injury to Mrs. Barthazon." While, as with the above remarks by
defense counsel, the question of prejudice is not material given
our determination that plaintiff failed to preserve at trial her
arguments regarding admissibility, plaintiff's brief arguably
challenges the propriety of the trial court's verdict sheet.
It is well established that "[t]he form and the number of
issues submitted to the jury is within the trial court's
discretion." Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 80,
598 S.E.2d 396, 404 (2004). In this case, the verdict sheet
included eight interrogatories. The first two interrogatories
appeared as follows:
ISSUE ONE
Was any conduct of defendant Britthaven,
Inc. a proximate cause of any injury to, or
the death of, Mary Lou Barthazon?
ANSWER: ____________
(If you answer Issue One "Yes," you are to
proceed to Issue Two. If you answer Issue
One "No," stop here. You have reached your
verdict.)
ISSUE TWO
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Was any injury to, or the death of, Mary Lou
Barthazon proximately caused by any medical
negligence of defendant Britthaven, Inc.?
Answer: ______________
(Proceed to Issue Three.)
The remaining six interrogatories asked: (1) whether any
injury or death to Ms. Barthazon was caused by any "corporate
negligence" of Britthaven; (2) whether Ms. Barthazon's death was
proximately caused by any medical negligence of Britthaven; (3)
what amount, if any, was Ms. Barthazon's estate entitled to
recover by reason of her death; (4) other than injuries
resulting in her death, was any injury to Ms. Barthazon
proximately caused by any medical or corporate negligence of
Britthaven; (5) what amount, if any, was Ms. Barthazon's estate
entitled to recover for injury to Ms. Barthazon other than
injuries resulting in her death; and (6) did Hillco control
Britthaven with regard to the acts or omissions that injured Ms.
Barthazon.
The jury answered the first interrogatory in the negative
and, accordingly, proceeded no further. Plaintiff contends that
by making the causation issue the first interrogatory, the trial
court placed "substantial and unwarranted emphasis" on
causation. She further asserts that the verdict sheet's
organization harmed her since it allowed the jury to decide
causation first, without first addressing duty and breach, and
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therefore "truncated" the "collective sharing process that
allows for correction of errors in memory or factual errors and
that may lead to changes of opinion or strengthening of initial
opinions."
We initially note that plaintiff cites no authority in
support of her arguments. However, Rule 28(b)(6) of the Rules
of Appellate Procedure provides that "[t]he body of the argument
. . . shall contain citations of the authorities upon which the
appellant relies." Because of the omission of any authority,
this Court would be entitled under the Rules of Appellate
Procedure to decline to address this issue. See Works v. Works,
___ N.C. App. ___, ___, 719 S.E.2d 218, 222 (2011) ("Moreover,
we decline to consider the remaining assertions raised in wife's
brief for which wife failed to present supporting legal
authority. See N.C.R.App. P. 28(b)(6).").
In any event, this Court has previously rejected the
argument that a defendant was prejudiced by the "order of the
charges on the verdict form" when the form "began with the most
serious charge and listed alternative verdicts in descending
order of severity, contrary to defendant's request that the
possible verdicts be listed in the opposite order." State v.
Bates, 70 N.C. App. 477, 480, 319 S.E.2d 683, 685 (1984), aff'd
on other grounds, 313 N.C. 580, 330 S.E.2d 200 (1985). The
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Court in Bates reasoned that the defendant "cite[d] no authority
in support of this contention and we know of none." Id.Here, we similarly find plaintiff's unsupported argument
regarding the order of interrogatories on the verdict sheet to
be unpersuasive. See also State v. Watson, 169 N.C. App. 331,
339, 610 S.E.2d 472, 478 (2005) ("There is no rule in North
Carolina indicating the order choices must be listed on verdict
sheets.").
Plaintiff additionally argues that the first interrogatory
-- asking whether any "conduct" of Britthaven caused Ms.
Barthazon's injury or death -- was improper since "conduct" is
not part of the three-part negligence inquiry of duty, breach,
and causation. As with the prior argument regarding the order
of the interrogatories, plaintiff cites no authority for this
contention. Nevertheless, we fail to see how the wording of the
first interrogatory prejudiced plaintiff. We find that the
language -- asking broadly whether any "conduct" of Britthaven
caused Ms. Barthazon injury -- was actually helpful to plaintiff
since it did not limit the question to one or more acts of
negligence but rather allowed the jury to consider any conduct
at all of Britthaven. Plaintiff has not, therefore, shown
prejudicial error.
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No error.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).