Whitfield v. Schimpf

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jeane Whitfield, Appellant,

v.

Dennis K. Schimpf, M.D. and Sweetgrass Plastic
Surgery, LLC, Respondents.

Appellate Case No. 2019-001716

Appeal From Charleston County
Bentley Price, Circuit Court Judge

Unpublished Opinion No. 2022-UP-417
Heard September 15, 2022 – Filed November 23, 2022

AFFIRMED

Daniel Scott Slotchiver and Andrew Joseph McCumber,
both of Slotchiver & Slotchiver, LLP, of Mount Pleasant;
Jesse Sanchez, of The Law Office of Jesse Sanchez, of
Charleston; and Brent Souther Halversen, of Halversen &
Halversen, LLC, of Mount Pleasant, all for Appellant.

Todd W. Smyth and Kevin Richard Horton, both of
Smyth Whitley, LLC of Charleston; Stephen Tyler
Graves, of Graves & Davis, LLC, of Charleston, all for
Respondents.
PER CURIAM: This is a medical malpractice action in which Jeane Whitfield
contends plastic surgery performed by Dr. Dennis K. Schimpf and Sweetgrass
Plastic Surgery, LLC, caused her physical and psychological damages. On appeal,
Whitfield raises three allegations of error: (1) the trial court erred in excluding
testimony from defense experts Dr. James Ballenger and Dr. Jorge Perez relating
to their examination of Whitfield pursuant to Rule 35, SCRCP; (2) the trial court
erred in excluding evidence regarding a personal relationship between a witness
and Dr. Schimpf; and (3) the trial court erred in denying Whitfield's directed
verdict motion regarding the failure of Sweetgrass Plastic Surgery to maintain
certain medical records relating to her treatment pursuant to Regulation
61-91.703(D) of the South Carolina Code (2012 & Supp. 2022). We affirm
pursuant to Rule 220(b), SCACR and the following authorities:

1. As to the trial court's excluding certain testimony from Dr. Ballenger and Dr.
Perez: Davis v. Parkview Apartments, 409 S.C. 266, 280, 762 S.E.2d 535, 543
(2014) (stating "to challenge the specific rulings of [a] discovery order[], the
normal course is to refuse to comply, suffer contempt, and appeal from the
contempt finding"); Ex parte Whetstone, 289 S.C. 580, 580, 347 S.E.2d 881, 881-
82 (1986) ("An order directing a party to participate in discovery is interlocutory
and not directly appealable . . . . Instead of appealing immediately, a non-party has
two alternatives. He may either comply with the discovery order and waive any
right to challenge it on appeal, or refuse to comply with the order and appeal after
he is held in contempt for his failure to comply."); Green By & Through Green v.
Lewis Truck Lines, Inc., 314 S.C. 303, 304, 443 S.E.2d 906, 907 (1994) (hearing
the appeal of a civil contempt order against grandmother who refused to produce
her grandson for examination by clinical psychologist under Rule 35, SCRCP);
Enoree Baptist Church v. Fletcher, 287 S.C. 602, 604, 340 S.E.2d 546, 547 (1986)
("One [c]ircuit [c]ourt [j]udge does not have the authority to set aside the order of
another.").

2. As to the trial court's exclusion of testimony regarding a personal relationship
between a witness and Dr. Schimpf: Rule 608(c), SCRE ("Bias, prejudice or any
motive to misrepresent may be shown to impeach [a] witness either by
examination of the witness or by evidence otherwise adduced."); State v. Roper,
274 S.C. 14, 20, 260 S.E.2d 705, 708 (1979); ("It is well settled that a reviewing
court may not consider error alleged in exclusion of testimony unless the record on
appeal shows fairly what the rejected testimony would have been."); Greenville
Mem'l Auditorium v. Martin, 301 S.C. 242, 244, 391 S.E.2d 546, 547 (1990) ("An
alleged erroneous exclusion of evidence is not a basis for establishing prejudice on
appeal in absence of an adequate proffer of evidence in the court below."); Ellis v.
Oliver 323 S.C. 121, 132, 473 S.E.2d 793, 799 (1996) ("[A]ppellant failed to
proffer [the] records he sought to introduce. Consequently, this issue is not
preserved for review."); Martin, 301 S.C. at 244, 391 S.E.2d at 547 ("Because
appellant's trial counsel failed to make an offer of proof in order to preserve the
question for appeal, we do not need to address whether the trial judge erred in
excluding such testimony."); Rule 103(a)(2), SCRE ("Error may not be predicated
upon a ruling which . . . excludes evidence unless . . . the substance of the evidence
and the specific evidentiary basis supporting admission were made known to the
court by offer or were apparent from the context.").

3. As to the trial court's denial of Whitfield's directed verdict motion on her
negligence cause of action brought under Regulation 61-91.703 of the South
Carolina Code: McKaughan v. Upstate Lung & Critical Care Specialists, P.C.,
421 S.C. 185, 189, 805 S.E.2d 212, 214 (Ct. App. 2017) ("When reviewing the
trial court's decision on a motion for directed verdict, this court must employ the
same standard as the trial court by viewing the evidence and all reasonable
inferences in the light most favorable to the nonmoving party." (quoting Burnett v.
Family Kingdom, Inc. 387 S.C. 183, 188, 691 S.E.2d 170, 173 (Ct. App. 2010)));
Turner v. Med. Univ. of S.C., 430 S.C. 569, 582, 846 S.E.2d 1, 7 (Ct. App. 2020)
("This court will reverse the circuit court's ruling on a directed verdict motion only
when there is no evidence to support the ruling or when the ruling is controlled by
an error of law."); Whitlaw v. Kroger Co., 306 S.C. 51, 53-54, 410 S.E.2d 251,
252-53 (1991) ("[B]reach of [a] duty can be found with a showing of [the]
violation of [a] statute. The finding of a statutory violation, however, does not end
the inquiry. The causation of the injury must also be evaluated.").

AFFIRMED.

KONDUROS, HEWITT, and VINSON, JJ., concur.