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Matthews v. Food Lion12/7/1999
testimony on cross-examination regarding plaintiff's prior history of back problems unrelated to the slip-and-fall here. Defendant argues this testimony effectively nullified his testimony on direct regarding permanency and proximate cause. On cross-examination, Dr. Ebken testified:
Q: Would you agree with Dr. Shupeck that the weakening of Ms. Matthews' spine from her prior surgery contributed to the disk injury that she suffered?
A: Yes, I would.
Q: Would the weakening of Ms. -- would Ms. Matthews' injury from the car accident in 1990 contribute to a history that would lead to the possibility of future back pain for Ms. Matthews?
A: I mean I think it could, probably more likely than not.
Q: More likely than not Ms. Matthews could suffer future back pain as a result of her injuries from 1990 or that would accelerate the possibility of her having future --
A: I think both; combination.
Q: So it would be true, more likely than not, that even if Ms. Matthews had not slipped and fallen at Food Lion in March of 1997, that at some point she would continue to suffer residual back pain as a result of degeneration that everyone experiences over time coupled with the particular problems that she has suffered?
A: I agree.
Q: And that type of back pain -- future back pain, permanent back pain would not be attributable to a fall at Food Lion?
A: Right.
(Tr. at 293-94). This testimony, when read in the light most favorable to plaintiff, however, did not nullify Dr. Ebken's direct testimony. Taken together, his testimony suggests that plaintiff might have experienced some permanent back pain even without the slip-and-fall, but that her fall will cause her additional or further back pain. This is to be distinguished from Caison v. Cliff, 38 N.C. App. 613, 248 S.E.2d 362 (1978), in which the expert on cross expressly corrected himself and stated, "If I answered it to a reasonable medical probability, I was in error. It could, or might be the cause or a contributing cause to the thrombophlebitis." Id. at 615, 248 S.E.2d at 363. This Court held that, because the expert corrected himself on cross, his testimony only raised a speculation as to causation. Id. at 616, 248 S.E.2d at 364. Here, however, Dr. Ebken neither corrected nor contradicted himself in his cross-examination. Accordingly, defendant's argument is without merit.
Defendant next contests the introduction of the mortuary table set out in N.C. Gen. Stat. ยง 8-46. His argument, however, is conclusively resolved by our holding as to the first issue on permanency. Mortuary tables may be introduced to show life expectancy only if there is sufficient evidence to establish a permanent injury . Mitchem v. Sims, 55 N.C. App. 459, 462, 285 S.E.2d 839, 841 (1982). Because we have held that there was sufficient evidence here to establish plaintiff suffered permanent injuries, the introduction of the mortuary table was not error.
In its remaining assignments of error, defendant contests the introduction of certain testimony by Dr. Ebken. However, defendant has not argued these assignments in its brief. Accordingly, they are deemed abandoned pursuant to N.C. Appellate Rule 28(b)(5).
No error.
Judges WYNN and MARTIN concur.
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