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Johnson v. Piggly Wiggly of Pinetops2/4/2003
PUBLISHED
On the afternoon of 22 September 1997, plaintiff Betty L. Johnson, her daughter and granddaughter were shopping at the store of defendant Piggly Wiggly of Pine Tops, Inc. Unbeknownst to them, a physical confrontation was taking place inside the store, involving employees of defendant as well as others. Plaintiff moved toward the exit of the store as the group moved to the front of the store. The confrontation was broken up momentarily as some of the participants left the premises. However, an employee of defendant broke away from those restraining her and proceeded to give chase. As she did, she ran into plaintiff from behind as plaintiff was attempting to exit the store. As a result, plaintiff's arms were thrust forward and her head was jerked backwards.
Plaintiff filed a complaint alleging negligence on the part of defendant on 19 January 1999. Plaintiff alleged her injuries as ongoing pain and soreness, palsy and loss of sensation in the face, difficulty hearing, memory loss, an outbreak of painful shingles, and emotional distress stemming from the incident and subsequent injuries. Defendant filed its answer on 19 March 1999 denying any negligence on its part.
The trial took place during the 29 May 2001 Civil Session of Edgecombe County Superior Court before the Honorable Clifton W. Everett. On 31 May 2001, the jury found that plaintiff was in fact injured by negligence of defendant, and awarded her "medical expenses plus $6,000.00 pain and suffering for a total of $8,225.04."
After trial, plaintiff made a motion for attorney's fees pursuant to N.C. Gen. Stat. ยง 6-21.1 in open court. After a hearing on 2 July 2001, Judge Everett entered the judgment from the trial in the amount of $8,225.04, and an order granting plaintiff's motion in the amount of $8,000.00. Defendant appeals.
Defendant makes the following arguments on appeal: The trial court erred by (1) admitting the testimony of Dr. R. Brookes Peters with regard to damages resulting from shingles and the causation of said conditions, as it was mere conjecture, surmise and speculation as to causation and thus insufficient evidence as to causation, admitting such testimony was an abuse of discretion; and (2) allowing plaintiff's motion for attorneys' fees as they were excessive and not based upon sufficient findings of fact.
I.
The main thrust of defendant's appeal deals with the admission of testimony from plaintiff's expert, Dr. R. Brookes Peters.
Plaintiff testified that she was experiencing severe headaches in addition to ongoing pain in her neck, shoulder and back in the days after the incident on defendant's premises. As a result, on 24 September 1997, she visited Dr. Peters, her regular physician since 1986. She returned to Dr. Peters on 29 September 1997 as the pain continued. At this time, Dr. Peters noticed a rash developing on plaintiff's neck, face and head. He diagnosed the rash as herpes zoster, or shingles. Plaintiff's shingles were "all but cleared" on 30 October 1997, and resolved by 12 December 1997.
Dr. Peters was tendered as an expert witness in the general practice of medicine and testified at trial via his videotaped deposition. After speaking of his treatment of plaintiff, Dr. Peters described shingles as being "a very interesting complication of chicken pox," as the chicken pox virus lies dormant in the body's nerve roots. Shingles result when this dormant virus flares up, causing a blistering type rash. As to the causes of these flare-ups, Dr. Peters answered: "It's poorly understood why shingles appear when they appear, but one prevailing thought is that shingles tend to occur at times of stress."
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