Chamberlain v. Thames

509 S.E.2d 443, 131 N.C. App. 705, 1998 N.C. App. LEXIS 1565
Court of Appeals of North Carolina·Decided December 29, 1998·No. COA97-943·Published·Cited by 16 cases

Opinions

HORTON, Judge.

Defendant contends that the trial court erred in the admission of hearsay evidence by (I) allowing a medical expert to testify about the findings and opinions of a non-testifying medical expert; (II) allowing plaintiff to testify to what she was told by her non-testifying physician; (III) allowing the admission of certain medical bills and records; and (IV) denying his motion for a new trial.

I

At trial, Dr. Loehr testified by videotaped deposition about his course of treatment for plaintiff. He also testified over objection about the findings of Dr. Donna Maneice (Dr. Maneice), a Duke physician who did not testify at trial. Defendant assigns error to the admission of the findings and opinions of Dr. Maneice. The parties stipulated prior to Dr. Loehr’s videotaped deposition that “[objections to questions and motions to strike answers need not be made during the taking of this deposition, but may be made for the first time during the progress of the trial of this cause, or at any pretrial hearing held before any judge for the purpose of ruling thereon . . . .”

[709] Pursuant to that stipulation, defendant objected prior to trial to the following excerpts from the testimony of Dr. Loehr:

Q. All right. And did you — were you able to ascertain from the Duke medical records what the diagnosis was from Dr. Donna Maneice at Duke?
A. The diagnosis was fibromyalgia.
Q. All right. And did you review any conclusions that she made about the cause of that fibromyalgia?
A. Her records indicated she felt it was related to the injury she had sustained on December 25, 1991.
Mr. Landauer: Objection.

Defendant also objected to the following excerpt from the redirect examination of Dr. Loehr:

Q. I want to direct your attention — Mr. Landauer asked you about a letter that was written by Dr. Maneice. I want to direct your attention to a memo or a letter that was written on a Duke University Medical Center all-purpose form by Dr. Maneice, dated December 11, 1992. Have you reviewed that?
A. Yes, I have.
Q. And does she express an opinion regarding the causation of Ms. Chamberlain’s problems in that letter?
A. Yes, she does.
Q. And what does she relate them to?
Mr. Landauer: Objection.
A. She believes that the patient’s problems are a result of her initial injury on December 25, 1991.
Q. All right. And does she give a provisional diagnosis in her December 11, 1992, letter?
A. Yes. A provisional diagnosis of fibromyalgia and supra-spinatus tendonitis.

Defendant argues that the testimony of Dr. Loehr regarding the findings and opinions of Dr. Maneice were inadmissible hearsay so [710] prejudicial to defendant’s case that he is entitled to a new trial. Defendant agrees that pursuant to Rule 703 of the North Carolina Rules of Evidence, a testifying expert may reasonably rely on the opinion of a non-testifying expert in formulating opinions, but argues that (A) Dr. Loehr had completed his treatment of plaintiff and formulated his opinions before plaintiff was treated by Dr. Maneice and there is no evidence that Dr. Loehr relied on the opinions of Dr. Maneice in his testimony; and (B) that Dr. Loehr was never tendered or qualified as an expert witness. We disagree.

A

Dr. Loehr treated plaintiff from a time shortly after the 25 December 1991 automobile accident until 14 April 1993 when he last saw her. He recommended that plaintiff see a specialist in rheumatology at Duke, and plaintiff saw Dr. Maneice in December 1992. Prior to his deposition testimony being taken, Dr. Loehr had received records from Dr. Maneice which set out her findings and opinions about plaintiff. Those records, which were in Dr. Loehr’s file, were marked as “Plaintiff’s Exhibit 8” and introduced into evidence at the trial without objection. Dr. Loehr also had medical records in his file from the emergency room at Durham County General Hospital and from a physical therapist who had treated plaintiff. After stating his qualifications, Dr. Loehr was specifically asked if he was “prepared to give ... an opinion about [plaintiff’s] condition based on [his] examination of her and review of her medical records." (Emphasis added.) He replied that he was prepared to do this.

Dr. Loehr also testified that he had reviewed some of the records of plaintiff from Duke. Moreover, when Dr. Loehr was asked whether he talked with plaintiff when he last saw her in April 1993 regarding any permanent disability she might have, he answered that “[b]ased on the symptoms which she still described to me, the medications that the specialist at Duke had placed her on, I told her that I felt she was going to have a chronic, permanent problem.” (Emphasis added.) This evidence indicates that Dr. Loehr’s opinion testimony was based, at least in part, on his review of the findings and opinions of other medical experts, including Dr. Maneice. That is permissible under the provisions of Rule 703.

Defendant’s contention that Dr. Loehr had completed his treatment of plaintiff prior to receiving the medical records from Duke, and therefore could not have relied on them in forming his opinion, is unpersuasive. Although Dr. Loehr had completed his active treatment [711] of plaintiff as defendant suggests, he expressed his opinion as to plaintiff’s functional capacity in a form he completed when he saw plaintiff for an office visit on 14 April 1993. This form was introduced' into evidence without objection as “Plaintiffs Exhibit 2.” Further, Dr. Loehr testified in the videotaped deposition and expressed his expert opinion that plaintiff has a “chronic, permanent problem.” Rule 703 does not prevent an expert from using the findings and opinions of other experts in forming an opinion of his own.

We further note that on cross-examination of Dr. Loehr, defendant questioned him extensively about matters contained in the Duke medical records. Defendant’s cross-examination was far broader than the matters brought out by plaintiff on Dr. Loehr’s direct examination, and thus he waived any objection to the use of the Duke records by Dr. Loehr in his testimony. State v. Adams, 331 N.C. 317, 328, 416 S.E.2d 380, 386 (1992).

Lastly, the trial court gave a limiting instruction to the jury following Dr. Loehr’s videotaped testimony stating that his “testimony was allowed into evidence for a limited purpose of corroborating information contained in the Duke medical records. You are instructed that you are to consider the testimony regarding Dr. Maneice’s opinions only to the extent that you find that the testimony corroborates the information contained in the Duke medical records.” Therefore, even if error had occurred, it was cured.

B

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Chamberlain v. Thames, 509 S.E.2d 443, 131 N.C. App. 705, 1998 N.C. App. LEXIS 1565 (N.C. Ct. App. 1998).

509 S.E.2d 443 (Chamberlain v. Thames) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Chamberlain v. Thames
509 S.E.2d 443 (Court of Appeals of North Carolina, 1998)