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Breedlove v. Aerotrim3/20/2001
n five days before trial began. The second deposition was shorter, updating Dr. Eglinton's previous testimony. Dr. Eglinton testified about Brian's current condition, including his opinion that Brian's "growth plates" were now closed. This closure limited the potential outcomes and eliminated potential treatments identified in the first deposition. Dr. Eglinton clearly testified to his updated diagnosis, and defense counsel extensively cross-examined him on these facts.
Defendant objected to portions of the first deposition regarding future treatments, disturbance of Brian's leg growth, potential medical problems, future prognosis, possibility of angular deformities and Brian's impairment rating. The trial court admitted both depositions in their entirety. The trial court limited the consideration of some of the accompanying exhibits to illustrative purposes only.
As a general rule, "a physician testifying as an expert to the consequences of a personal injury should be confined to certain consequences or probable consequences, and should not be permitted to testify as to possible consequences." Fisher v. Rogers, 251 N.C. 610, 614, 112 S.E.2d 76, 79 (1960). Defendant cites several instances in the first deposition where Dr. Eglinton testified as to the "possible" consequences of Brian's injuries. Defendant argues the admission of this testimony was reversible error. Defendant cites no authority where the testifying physician updated the diagnosis of the injured plaintiff in terms of "probable" consequences in a later deposition.
Reversible error is only found when the irrelevant evidence is of such a nature that it would mislead the jury or prejudice the opponent. Brandis and Broun, supra ยง81. The subsequent deposition identifies the conditions Brian had developed between dates of the depositions, and the treatments that were no longer necessary. Admission of Dr. Eglinton's depositions into evidence were neither misleading, nor prejudicial. This assignment of error is overruled.
(3) Motion for New Trial and Motion for Judgment Notwithstanding the Verdict
Defendant also argues that the trial court abused its discretion by denying its motion for Judgment Notwithstanding the Verdict, and in the alternative, for a New Trial. Defendant contends that the verdict was contrary to the greater weight of the competent evidence. In considering such a motion, the court considers "the evidence in a light most favorable to the non-movant, resolving all inconsistencies, contradictions and conflicts for non-movant, giving the non-movant the benefit of all reasonable inferences drawn from the evidence." Pruitt v. Powers, 128 N.C. App. 585, 590, 495 S.E.2d 743, 747, disc. rev. denied, 348 N.C. 284, 502 S.E.2d 848 (1998) (quoting McFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350, disc. rev. denied, 327 N.C. 140, 394 S.E.2d 177 (1990)).
We have ruled that the conversation between Mr. Gellert and Ms. Howard and the depositions of Dr. Eglinton were properly admitted into evidence, and hold that sufficient evidence exists to support the jury's verdict. Defendant's motion for a Judgment Notwithstanding the Verdict was properly denied. Also, the trial court did not abuse its discretion in denying defendant's motion for a New Trial. See Corwin v. Dickey, 91 N.C. App. 725, 729, 373 S.E.2d 149, 151 (1988) (reviewing denial of motion for a new trial under an abuse of discretion standard) disc. rev. denied, 324 N.C. 112, 377 S.E.2d 231 (1989).
No error.
Judges GREENE and JOHN concur.
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