Daisy Frederick v. Daniel McDowell ( 2022 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Daisy Frederick, Respondent,
v.
Daniel Lee McDowell, Appellant.
Appellate Case No. 2020-000989
Appeal From Marlboro County
Paul M. Burch, Circuit Court Judge
Unpublished Opinion No. 2022-UP-303
Submitted June 1, 2022 – Filed July 20, 2022
AFFIRMED
R. Hawthorne Barrett, of Turner Padget Graham &
Laney, PA, of Columbia, and David Richard Sligh, of
Sligh Law Firm, P.A., of Conway, both for Appellant.
Eric Marc Poulin and Roy T. Willey, IV, both of
Anastopoulo Law Firm, LLC, of Charleston; James
Camden Hodge, of Anastopoulo Law Firm, LLC, of
Greenville; and Alexis Wimberly McCumber, of Athens,
Georgia, all for Respondent.
PER CURIAM: Daniel McDowell appeals the jury's verdict awarding Daisy
Frederick $5,000,000 and the trial court's denial of his post-trial motions. On
appeal, he argues the trial court erred (1) in failing to grant a new trial absolute or
new trial nisi remittitur due to the excessiveness of the verdict, (2) in denying his
motions for a directed verdict and judgment notwithstanding the verdict (JNOV)
because Frederick was contributorily negligent, (3) in admitting evidence of the
full amount of the medical bills in violation of North Carolina law, 1 and (4) in
allowing Frederick's expert to rely on the accident report prepared by the
investigating law enforcement officer. We affirm.
1. We hold the trial court did not abuse its discretion in denying McDowell's
motions for a new trial and new trial nisi remittitur. Frederick had a broken left
femur, crushed lower tibia and fibula in her right leg, lacerations and wounds on
her arm, and significant blood loss. Frederick's doctor stated her recovery was
long and that she likely still had some difficulties. She had three separate surgeries
to repair her broken legs, was bedbound for nine months, spent the next year and a
half relearning how to walk, and needed assistance for bathing and toileting.
Frederick testified about the tremendous pain she experienced from the accident,
which continued through the date of the trial, her worry for her children
immediately after the accident and not being able to see them while she was in the
hospital, her fear of dying or becoming addicted to pain killers, and the
uncomfortableness of being dependent on her family for assistance. We hold the
jury's verdict was not shockingly disproportionate to the severe injuries Frederick
suffered or excessive when considering the evidence presented of Frederick's
medical expenses, pain and suffering, mental anguish, and loss of enjoyment of
life. See Burke v. AnMed Health, 393 S.C. 48, 56, 710 S.E.2d 84, 88 (Ct. App.
2011) ("A trial judge . . . has the power to grant a new trial absolute . . . when the
verdict 'is shockingly disproportionate to the injuries suffered and thus indicates
that passion, caprice, prejudice, or other considerations not reflected by the
evidence affected the amount awarded.'" (quoting Becker v. Wal-Mart Stores, Inc.,
339 S.C. 629, 635, 529 S.E.2d 758, 761 (Ct. App. 2000))); id. (stating the granting
or denial of a new trial motion "rests within the discretion of the circuit court, and
its decision will not be disturbed on appeal unless its findings are wholly
1
Although the accident occurred in North Carolina, this case was tried in Marlboro
County because both parties were South Carolina residents. See Nash v. Tindall
Corp., 375 S.C. 36, 39, 650 S.E.2d 81, 83 (Ct. App. 2007) (explaining "the
substantive law governing a tort action is determined by . . . the law of the state in
which the injury occurred" and procedural matters are decided by the law of the
forum (quoting Boone v. Boone, 345 S.C. 8, 13, 546 S.E.2d 191, 193 (2001))).
unsupported by the evidence or the conclusions reached are controlled by error of
law." (quoting Brinkley v. S.C. Dep't of Corrs., 386 S.C. 182, 185, 687 S.E.2d 54,
56 (Ct. App. 2009)); id. at 57, 710 S.E.2d at 89 ("The denial of a motion for a new
trial nisi is within the trial court's discretion and will not be reversed on appeal
absent an abuse of discretion." (quoting James v. Horace Mann Ins. Co., 371 S.C.
187, 193, 638 S.E.2d 667, 670 (2006))); Proctor v. Dep't of Health & Envtl.
Control, 368 S.C. 279, 320, 628 S.E.2d 496, 518 (Ct. App. 2006) ("The trial court
alone has the power to grant a new trial nisi when [it] finds the amount of the
verdict to be merely inadequate or excessive."); Mims v. Florence Cnty.
Ambulance Serv. Comm'n, 296 S.C. 4, 7, 370 S.E.2d 96, 99 (Ct. App. 1988) ("The
amount of damages a jury may award for physical pain and suffering and for
mental pain and suffering is incapable of exact measurement and is therefore left
for determination by the jury."); Harper v. Bolton, 239 S.C. 541, 548, 124 S.E.2d
54, 57 (1962) ("Pain and suffering have no market price. They are not capable of
being exactly and accurately determined, and there is no fixed rule or standard
whereby damages for them can be measured."); Hawkins v. Pathology Assocs. of
Greenville, P.A., 330 S.C. 92, 98, 112, 498 S.E.2d 395, 399, 406 (Ct. App. 1998)
(holding jury's verdict of $3,500,000 in a survival action to be reasonably reflective
of the pain, physical and mental suffering, and lack of quality of life a patient
endured during her seven-month fight with cancer following a misdiagnosed Pap
smear).
Because the jury returned a general verdict, it is impossible for this court to
determine if the award included future damages and therefore whether McDowell
was prejudiced by the trial court's allegedly erroneous charge of the mortality
tables. See Pearson v. Bridges, 344 S.C. 366, 372 n.5, 544 S.E.2d 617, 619 n.5
(2001) (noting that because the jury returned a general verdict, "[t]here is simply
no way to determine if the jury allocated any money for future medical expenses");
Stokes v. Spartanburg Reg'l Med. Ctr., 368 S.C. 515, 520, 629 S.E.2d 675, 678 (Ct.
App. 2006) ("An erroneous jury charge will not result in a verdict being reversed
unless the charge prejudiced the appellant's case.").
2. We hold the trial court did not err in denying McDowell's motions for a directed
verdict and JNOV because the record contains evidence that the accident was not
proximately caused by a lack of due care by Frederick, leaving the issue for the
jury to decide. Testimony from Frederick, McDowell, and their respective experts
established to the jury two possible circumstances for the accident. McDowell's
expert acknowledged that the accident was not avoidable if Frederick's account
was true. See RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 399 S.C. 322, 331-32,
732 S.E.2d 166, 171 (2012) ("When reviewing the trial court's ruling on a motion
for a directed verdict or a JNOV, [the appellate c]ourt must apply the same
standard as the trial court by viewing the evidence and all reasonable inferences in
the light most favorable to the nonmoving party."); id. at 332, 732 S.E.2d at 171("The trial court must deny a motion for a directed verdict or JNOV if the evidence
yields more than one reasonable inference or its inference is in doubt."); id. ("In
deciding such motions, neither the trial court nor the appellate court has the
authority to decide credibility issues or to resolve conflicts in the testimony or the
evidence."); Daisy v. Yost, 794 S.E.2d 364, 366 (N.C. Ct. App. 2016) ("In order to
prove contributory negligence on the part of a plaintiff, the defendant must
demonstrate: '(1) [a] want of due care on the part of the plaintiff; and (2) a
proximate connection between the plaintiff's negligence and the injury.'" (quoting
West Constr. Co. v. Atlantic Coast Line R.R. Co., 113 S.E. 672, 673 (N.C. 1922))).
3. This court cannot review McDowell's argument that the trial court erred in
admitting into evidence an exhibit that showed the entire amount of Frederick's
medical bills in violation of Rule 414 of the North Carolina Rules of Evidence
because McDowell failed to include the contested exhibit in the record on appeal
and the court cannot tell if its admission prejudiced the jury's verdict. See Rule
210(h), SCACR ("[T]he appellate court will not consider any fact that does not
appear in the Record on Appeal."); Helms Realty, Inc. v. Gibson-Wall Co., 363
S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (explaining the appellant has the
burden of providing a sufficient record); Vaught v. A.O. Hardee & Sons, Inc., 366
S.C. 475, 480, 623 S.E.2d 373, 375 (2005) ("To warrant reversal based on the
admission or exclusion of evidence, the appellant must prove both the error of the
ruling and the resulting prejudice, i.e., there is a reasonable probability the jury's
verdict was influenced by the wrongly admitted or excluded evidence.").
4. We hold the trial court did not abuse its discretion in admitting Frederick's
expert's testimony because the expert relied on objective, factual information in the
law enforcement accident investigation report, which Rule 703, SCRE allows. See
State v. Jones, 423 S.C. 631, 636, 817 S.E.2d 268, 270 (2018) ("The admissibility
of an expert's testimony is a matter within the trial court's sound discretion and the
determination will not be reversed on appeal absent an abuse of discretion.");
Watson v. Ford Motor Co., 389 S.C. 434, 446, 699 S.E.2d 169, 175 (2010)
(explaining that under Rule 703 "an expert witness is permitted to state an opinion
based on facts not within his firsthand knowledge or may base his opinion on
information made available before the hearing so long as it is the type of
information that is reasonably relied upon in the field to make opinions").
AFFIRMED. 2
WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.