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Segrest v. Gillette12/5/1989
hout an instruction limiting its use to providing the basis for the experts' opinions. Since the IgM slip was a crucial piece of evidence supporting defendant's contention that Epstein-Barr virus, not Halothane anesthesia, was the cause of Amy Segrest's death, its admission as substantive evidence in violation of the rule against hearsay constitutes prejudicial error and justifies a new trial.
Since we are awarding plaintiff a new trial, we need not address plaintiff's remaining assignments of error.
Defendants, Gillette, Greenhoot and Southeast Anesthesia Associates, P.A., raise two cross-assignments of error. In the first, defendants Gillette, et al., contend the trial court erred in refusing to instruct the jury about allegedly improper statements made by plaintiff's counsel in closing arguments. Rule 10 of the N.C. Rules of Appellate Procedure in pertinent part provides:
(d) Exceptions and Cross-Assignments of Error by Appellee. Without taking an appeal an appellee may set out exceptions to and cross-assign as error any action or omission of the trial court . . . which deprived the appellee of an alternative basis in law for supporting the judgment. . . .
Appellate Rule 10(d) protects "appellees who have been deprived in the trial court of an alternative basis in law on which their favorable judgment could be supported, and who face the possibility that on appeal prejudicial error will be found in the ground on which their judgment was actually based." Carawan v. Tate, 304 N.C. 696, 701, 286 S.E.2d 99, 102 (1982). The judge's refusal to give the requested instruction did not deprive the defendants Gillette, et al., of an alternative basis in law for the verdict in their favor. Hence, this issue is not properly before us and we will not decide it.
In their second cross-assignment of error, defendants Gillette, et al., argue the trial court erred in sanctioning their failure to make discovery by limiting them to one expert witness. Just over two months before the deadline set by the trial court for completion
of discovery, plaintiff served an interrogatory upon all defendants seeking information about the expert opinion witnesses that defendants expected to testify -- subject matter of testimony, substance of facts and opinions and summary of grounds for each opinion. When defendants failed to answer within the thirty days allowed by Rule 33, plaintiff moved pursuant to Rule 37 for sanctions for defendants' failure to answer the interrogatory. Plaintiff's motion for sanctions was made approximately four and a half months after service of interrogatories on defendants, over three months after the deadline set for completion of discovery, and just over two months before the case was set for trial. Following plaintiff's motion for sanctions, defendants Gillette, et al., responded to plaintiff's interrogatory by identifying the expert witnesses they expected to use at trial and the subject matter and grounds of the expert testimony. The judge granted plaintiff's motion for sanctions. The order prohibited defendants Gillette, et al., from presenting testimony from five doctors listed as expert witnesses and allowed the testimony of a single expert witness (apart from the named doctor-defendants who also testified in the case).
Rule 37 of the N.C. Rules of Civil Procedure in pertinent part provides:
(d) . . . If a party . . . fails . . . (ii) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, . . . the court in which the action is pending on motion . . . may take
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