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Sterling v. Gil Soucy Trucking9/18/2001
Blankenship, 244 N.C. 518, 94 S.E.2d 489 (1956); Sumner v. Sumner, 227 N.C. 610, 44 S.E.2d 40 (1947). In the present case, the trial court initially sustained plaintiffs' objection to the records being passed to the jury. However, during redirect of Ms. Sterling, the plaintiffs implied that defendants had concealed favorable records from the jury. At that point that the judge allowed the distribution of copies of the school records to the jury. Moreover, plaintiffs made no objection to the publication of the records to the jury. N.C.G.S. § 8C-1, Rule 103(a)(1) requires one to make a timely objection to admission of the records into evidence to preserve the alleged error for appellate review. Therefore, by not objecting to their publication to the jury the plaintiffs forfeited the right to appeal the question of the admissibility of the school records.
With respect to items not included in the pre-trial order, whether to admit such evidence is entrusted to the discretion of the trial court. The trial court's decision will not be reviewed unless an abuse of discretion is shown. Beam v. Kerlee, 120 N.C. App. 203, 214, 461 S.E.2d 911, 920 (1995)(citing Pittman v. Barker, 117 N.C. App. 580, 588, 452 S.E.2d 326, 331 (1995)). In the present case, the plaintiffs also objected to admission of the school records on the grounds that they were not on the pre-trial order. The trial court responded that the plaintiffs would be given an opportunity to look at them. However, plaintiffs did not argue that they were surprised by the presentation of the school records, nor did they request additional time to investigate and prepare rebuttal evidence. Therefore, we find that there was no abuse of discretion by the trial court.
B.
Next, plaintiffs argue that the trial court erred in permitting the introduction of an article by Carl B. Dodrill, Ph.D., entitled "Myths of Neuropsychology". Plaintiffs make two contentions in support of their argument: 1) that the article was not qualified as reliable authority by any witness and therefore it was hearsay; and 2) that the article was not included in any pre-trial order. We disagree.
N.C.G.S. § 8C-1, Rule 803(18) Learned Treatises states:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
" hen no specific precedent exists, scientifically accepted reliability justifies admission of the testimony . . . and such reliability may be found either by judicial notice or from the testimony of scientists who are experts in the subject matter, or a combination of the two." State v. Bullard, 312 N.C. 129, 148, 322 S.E.2d 370, 381 (1984)(citations omitted).
Dr. Stephen Hooper testified for the defense as an expert in the area of neuropsychology. His testimony established the Dodrill article as reliable scientific authority. Therefore, a proper foundation was established for the admission into evidence of the Dodrill article pursuant to the requirements of Rule 803(18). Thus, the article was not inadmissible as hearsay and we find no error in the Court's admission of this scientific article.
C.
Finally, plaintiffs contend that the trial court
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