Tort/Negligence – Causation – Directed Verdict – JNOV – Punitive Damages – Costs – Expert Witness Fees

Springs v. City of Charlotte. (Lawyers Weekly No. 11-07-0070, 21 pp.) (Martha A. Geer, J.) Appealed from Mecklenburg County Superior Court. (Timothy L. Patti, J.) N.C. App. Click here for the full text of the opinion.

Holdings: Even though there was conflicting evidence as to whether plaintiff’s permanent injuries were caused by the accident or by her multiple sclerosis (or the treatments for her MS), plaintiff presented sufficient evidence of causation to go to the jury.

We affirm the trial court’s denial of defendants’ motions for a directed verdict and judgment notwithstanding the verdict. We remand to allow the trial court to enter a written opinion setting out its reasons for upholding the jury’s punitive damages award. We also remand for reconsideration of the cost award in light of the controlling statutes.

Facts

Mr. Springs was driving Mrs. Springs (plaintiff), home from a medical appointment when the Springses’ van was rear-ended by a city bus driven by defendant Dennis Napier and operated by defendant Transit Management of Charlotte (TMOC). Plaintiff suffered from multiple sclerosis and was secured in a wheelchair in the van.

Following the accident plaintiff was diagnosed with an acute cervical strain, a sprained dorsal spine and contusions to the right shoulder and elbow. Five months later plaintiff was diagnosed with avascular necrosis in her right shoulder. A lack of blood supply resulted in bone death. Her continued shoulder problems significantly limited her mobility.

Plaintiff sued the city, TMOC and Napier alleging negligence. At trial, defendants stipulated to Napier’s negligence and agreed that the collision caused injuries to plaintiff.

Defendants disputed that any of plaintiff’s permanent conditions were caused by the accident.

The jury returned a verdict in plaintiff’s favor: $800,000 in compensatory damages and $250,000 in punitive damages due to TMOC’s willful or wanton conduct. The trial court entered a judgment on the verdict.

Defendants moved for judgment notwithstanding the verdict and for a new trial. Plaintiff moved to tax the costs of the action against defendants. The trial court entered an order granting plaintiff costs in excess of $58,000 and denied defendants’ motions.

Defendants appealed.

JNOV & Directed Verdict Motions

Defendants argued that plaintiff did not present sufficient evidence to submit to the jury the issue of whether her permanent injuries were a result of the negligence of the defendants.

Testimony from a board-certified expert and one of plaintiff’s treating physicians was, they argued, speculative.

A defense expert testified that plaintiff’s shoulder injury was preexisting and she would have been in the same condition if the accident had never occurred.

Plaintiff produced evidence showing her arm and shoulder had been bruised in the accident. Two doctors, one of whom had treated plaintiff for 20 years, testified that she had never had a shoulder problem before the accident.

Although one doctor acknowledged that there are various possible causes for avascular necrosis, he testified that, in his opinion, to a reasonable degree of medical certainty, the accident caused or aggravated plaintiff’s condition.

Plaintiff presented sufficient evidence to permit a jury to attribute her avascular necrosis and right-shoulder pain to the accident.

Conflicts in the evidence and contradictions within a particular witness’ testimony are for the jury to resolve.

The trial court did not err in denying defendants’ motion for a directed verdict and in instructing the jury on the issue of permanent injuries.

Punitive Damages

TMOC challenged the punitive damages award entered against it. Under G.S. § 1D-15(a), punitive damages may only be awarded if the plaintiff proves the existence of one of three aggravating factors by clear and convincing evidence.

The jury awarded punitive damages to plaintiff in the amount of $250,000 based on TMOC’s willful or wanton conduct.

G.S. § 1D-15(a) provides that the trial court shall state in a written opinion its reasons for upholding or disturbing the finding or award. The trial court failed to comply with G.S. § 1D-50 because it did not set out in a written opinion its reasons for upholding the jury’s punitive-damages award.

Since the trial court’s order addressing TMOC’s motion for JNOV simply stated that the motion was denied without complying with G.S. § 1D-50, we must remand to allow the trial court to enter a written opinion setting out its reasons for upholding the punitive-damages award.

Costs

G.S. § 7A-305(d)(11) requires an award of costs to include expert fees for time spent by the witness actually testifying.

G.S. § 7A-314(a) provides that a witness under subpoena shall be entitled to receive $5 per day, or a fraction thereof, during his attendance. Logically, this provision allows for a fee for attendance at trial. G.S. § 7A-314(d) modifies § 7A-314(a) by permitting the trial court, in its discretion, to increase a subpoenaed expert witness’ compensation for attendance at trial.

G.S. § 7A-305(d)(11) and G.S. § 7A-314 can both be given effect. If a cost is set forth under G.S. § 7A-305(d), the trial court is required to assess the item as costs.

Under G.S. § 7A-314(d), the trial court has discretion to award expert fees for an expert witness’ time in attendance at trial even when not testifying. Furthermore, the trial court has the discretion to award travel expenses for experts as provided under G.S. § 7A-314(b).

However, we find no statutory authority for the trial court to assess costs for an expert witness’ preparation time.

The trial court erred to the extent that it awarded as costs expert witness fees not specifically provided for by G.S. § 7A-305(d)(11) or § 7A-314.

We reverse the award of costs and remand for reconsideration in light of the controlling statutes.

Affirmed in part; reversed and remanded in part.