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Cox v. Steffes11/18/2003
PUBLISHED
Plaintiffs Keith and Linda Cox appeal from the trial court's order granting defendants' motion for judgment notwithstanding the verdict. In setting aside the jury verdict in favor of plaintiffs, the trial court erred by considering only plaintiffs' evidence and not the entire body of evidence submitted to the jury. Based on our review of the record, we conclude that the jury was presented with sufficient evidence to support its verdict and, therefore, we reverse.
This medical malpractice case arose out of Mr. Cox's treatment for chronic gastroesophagel reflux and esophagitis. On 7 April 1994, defendant Bruce C. Steffes, M.D. performed a laparoscopic Nissen fundoplication procedure on Mr. Cox at the Cape Fear Valley Medical Center ("Cape Fear"). The purpose of the surgery was to eliminate the reflux of stomach acid from the stomach into the esophagus.
Shortly after the surgery, Mr. Cox began experiencing severe abdominal pain when eating or sipping water, nausea, sweating, an increased heart rate, and increased blood pressure on standing. He was readmitted to Cape Fear on 12 April and 18 April 1994 with no alleviation of his symptoms. By the time Mr. Cox was admitted at Duke University Medical Center on 10 May 1994, a month after the surgery, he had lost 30 pounds. At Duke, the surgeon first inserted a feeding tube and then later, once Mr. Cox was strong enough, performed corrective surgery.
This case was tried before a jury during the 30 July 2001 civil session of the Robeson County Superior Court with the Honorable John R. Jolly, Jr. presiding. At trial, plaintiffs relied upon the expert testimony of Dr. Joseph C. Donnelly, Jr., a physician board-certified in both general and thoracic surgery. Dr. Donnelly, who is now retired, estimated that he had performed between 50 to 75 (and maybe 100) Nissen fundoplication surgeries.
After conducting voir dire, defendants objected to Dr. Donnelly's testifying as to the standard of care on the grounds that he could not comply with the requirements of N.C. Gen. Stat. ยง 90-21.12 (2001) and Rule 702(b) of the Rules of Evidence. The trial judge overruled defendants' objection although he indicated that he would revisit his ruling at the directed verdict stage because of concern regarding whether plaintiffs' expert testimony met the requirements of Rule 702.
Defendants moved for a directed verdict at the close of plaintiffs' evidence. After again noting concerns about compliance with Rule 702(b), the trial court took the motion "under advisement" and announced that he would rule at the end of the case. He explained to plaintiffs, "I want to give you an opportunity to show your whole case and I want to hear their defense." Defendants then proceeded to present evidence, including the testimony of expert witness Dr. John McGuire.
Although defendants renewed their motion for a directed verdict at the close of all of the evidence, the trial court chose to defer ruling on that motion and submit the case to the jury. On 7 August 2001, the jury returned a verdict in favor of Mr. Cox in the amount of $300,000.00 and in favor of plaintiff Linda Cox for $75,000.00 for loss of consortium.
Defendants moved pursuant to Rules 50 and 59 for judgment notwithstanding the verdict ("JNOV") and in the alternative for a new trial, arguing primarily that plaintiffs' sole expert witness, Dr. Donnelly, was not qualified to testify as to the standard of care in Fayetteville or similar communities. The trial court granted defendants' JNOV motion in an order filed on 23 October 2001.
I.
As a preliminary matter, we address defendants' cross-appeal from the trial c
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