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Gregory v. Kilbride6/18/2002
49, 516 S.E.2d 159, 164, review denied, 351 N.C. 117, 540 S.E.2d 744 (1999).
First, we conclude that the trial court did not abuse its discretion by excluding expert testimony of several of plaintiff's witnesses. The witnesses - two police officers and a nurse - were prepared to testify on the issue of whether Mark met the "dangerous" standard, set forth under the involuntary commitment statutes, when he was examined by Dr. Kilbride. Plaintiff contends that the witnesses should have been allowed to testify because N.C.G.S. § 122C-261(a) provides:
Anyone who has knowledge of an individual who is mentally ill and either (i) dangerous to self, as defined in G.S. 122C-3(11)a., or dangerous to others, as defined in G.S. 122C-3(11)b. . . . may appear before a clerk or assistant or deputy clerk of superior court or a magistrate and execute an affidavit to this effect, and petition the clerk or magistrate for issuance of an order to take the respondent into custody for examination by a physician or eligible psychologist. N.C.G.S. § 122C-261(a) (2001) (emphasis added).
This portion of the involuntary commitment statutes refers to the process for petitioning the clerk or magistrate to make an initial determination as to whether an individual should be taken into custody for an examination. Other relevant portions of the involuntary commitment statutes require the ultimate determination of dangerousness to self or others as defined in N.C.G.S. § 122C-3(11)(a) and (b) to be made by a physician or eligible psychologist, and it is the physician or psychologist who makes the recommendation for inpatient commitment. Therefore, the trial court did not err in finding that plaintiff's witnesses did not qualify as experts on the issue of "dangerousness" as defined by the involuntary commitment statutes.
Second, with respect to defendants' experts, plaintiff contends they do not meet the Rule 702 standard. Plaintiff asserts that defendant's experts did not qualify as experts because they did not spend the majority of their time in clinical practice or teaching. Plaintiff wanted the trial court to use the 702(b) requirements that the expert witness must: 1) specialize in the same specialty as the defendant; and 2) during the year preceding the date of the involuntary commitment proceedings, the expert witness must have devoted a majority of his or her professional time to either or both of the following: a) active clinical practice of the same or similar specialty that is the subject of the complaint; or b) teaching in an accredited health professional school or residency or clinical research program in the same health profession as the defendant. FormyDuval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96, review denied, 353 N.C. 262, 546 S.E.2d 93 (2000). However, plaintiff relies on 702(b), which applies to medical malpractice actions and this is not a classic medical malpractice case. The trial court properly found that these witnesses qualified as experts under the general provisions of Rule 702. Therefore, we hold that the trial court did not abuse its discretion by determining that all three witnesses were qualified to give expert testimony. VI.
Plaintiff's final argument is that the trial court erred by failing to grant plaintiff a new trial on the basis that the jury considered prejudicial extrinsic information during their deliberations.
Plaintiff contends that the defense verdict for Dr. Kilbride was based in large part on extrinsic evidence brought into the jury room. The alleged extrinsic evidence was a copy of N.C.G.S. § 122C-3, which contained the definition of "mental illness" of which the court took judicial notice. The "next of kin" definition was one o
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