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In re Pedestrian Walkway Failure9/20/2005
Plaintiff Tammy L. Hepler, individually and as the administratix of the estate of her husband, John A. Hepler, III, appeals from an order sanctioning her for discovery violations and requiring her to provide information and produce documents. We affirm.
FACTS
On 20 May 2000, a pedestrian walkway collapsed at the Lowe's Motor Speedway (hereinafter "the Speedway") in Concord, North Carolina, causing injuries to several people who were using the walkway to leave a NASCAR event. Defendant Tindall Corporation (hereinafter "Tindall") had been involved in constructing the collapsed walkway.
As a result of the walkway collapse, approximately 100 people filed actions against, inter alia, the Speedway and Tindall (hereinafter "defendants"). The present plaintiff, Tammy L. Hepler (hereinafter "Tammy Hepler" or "Mrs. Hepler") filed an action for her own injuries and also filed an action as the administratrix of the estate of her late husband, John A. Hepler, III, (hereinafter "Drew Hepler" or "Mr. Hepler"). The complaint alleged that Mr.Hepler's fall from the walkway caused injury to his right ankle and foot, which required surgery, and that he died as a result of multiple drug toxicity from the medications prescribed and taken for the injuries sustained in the walkway collapse. The complaint further alleged that Mrs. Hepler suffered injuries to her neck, shoulders, and lower back as a result of the injury. It was also alleged that both of the Heplers experienced lost wages and economic loss.
The Honorable Chief Justice of the North Carolina Supreme Court designated each case related to the walkway collapse an "exceptional" case pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts, and each case was assigned to be heard by Superior Court Judge W. Erwin Spainhour. As such, the Hepler suits were designated "exceptional" and assigned to Judge Spainhour.
In early 2003, the first pedestrian walkway case was tried. In that case, the jury found that the Speedway and Tindall were liable. Judge Spainhour ruled that the issue of liability had been established by collateral estoppel with respect to the remaining plaintiffs. Thus, the Hepler lawsuits required only a trial to determine damages.
On 23 March 2004, defendant Tindall filed a motion for sanctions and to compel the production of certain items (hereinafter "Tindall's motion"). A hearing on this motion was held on 1 April 2004. During this hearing, Judge Spainhour orally announced his rulings. These rulings were reduced to writing, anda written order was signed by Judge Spainhour on 19 April 2004 and filed on 22 April 2004 (hereinafter "the 22 April 2004 order").
Tindall's motion addressed alleged violations of the North Carolina Rules of Civil Procedure and Case Management Orders (CMOs), which Judge Spainhour had entered to govern the voluminous discovery involved in all of the pedestrian walkway litigation. CMO No. 1, entered 20 September 2001, provided, inter alia, that
he identification of all expert witnesses shall include the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each such opinion as provided in Rule 26 of the North Carolina Rules of Civil Procedure.
On or before March 15, 2002, all parties shall identify all expert witnesses who shall be called to testify at the trial of the particular Plaintiff(s)' case. . . .
Any expert witness not identified in accordance with the terms and conditions this shall not be permitted to testify at trial absent a showing o
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