Gaines v. Campbell

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

Barbara Gaines, Respondent,

v.

Joyce Ann Campbell, Appellant.

Appellate Case No. 2013-002367

Appeal From Greenville County
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2015-UP-432
Heard June 3, 2015 – Filed August 19, 2015

REVERSED

Marcus Kirk McGarr, of Marcus K. McGarr, PA, of
Greenville, for Appellant.

John Robert Peace, of John Robert Peace, PA, of
Greenville, for Respondent.

PER CURIAM: Joyce Ann Campbell appeals the trial court's order granting
Barbara Gaines's motion for a new trial. Campbell asserts the trial court erred in
granting the new trial because its decision was based on the following
misapprehensions of law: (1) a defendant must present an expert to contradict an
opposing expert's testimony; (2) cross-examining an expert amounts to the pitting
of witnesses; (3) an expert cannot be cross-examined on other "possible" causes of
an injury; and (4) a closing argument with no direct appeal to any specific juror
violates the rule against appealing to a juror. Because the trial court's order
granting Gaines's motion for a new trial was controlled by an error of law, we
reverse.

FACTS/PROCEDURAL HISTORY

This appeal arises out of a car accident in which Campbell rear-ended Gaines in
January 2010. While Campbell admitted she was negligent and at fault in causing
the accident, she asserted her actions did not proximately cause the damages
alleged by Gaines. A trial was held in August 2013.

During the trial, Campbell asked the jury to return a verdict in the amount of
Gaines's emergency room bill, which totaled $3,941, while Gaines sought
compensation for all of her medical bills, including a spinal surgery she had after
the accident, and an award for her physical pain, suffering, and emotional distress.
The stipulated total of Gaines's medical bills was $77,966.56. After deliberating,
the jury returned a verdict for Gaines in the amount of $3,941.

After the trial, Gaines moved for a new trial, arguing the verdict was contrary to
both the law and the evidence of the case. After a hearing on Gaines's motion, the
trial court invoked the thirteenth juror doctrine and granted a new trial, finding an
award of damages for only the emergency room bill to be grossly inadequate and
unsupported by the evidence. This appeal followed.

LAW/ANALYSIS

We note at the outset the trial court's order granting Gaines's motion for a new trial
conflated the standards for a new trial pursuant to the thirteenth juror doctrine and
a new trial absolute. We address the two standards below as well as the language
of the trial court's order.

A trial court must grant a new trial absolute if the amount of the verdict is grossly
inadequate or excessive and clearly indicates the figure reached was the result of
prejudice, passion, caprice, or some other improper motive. O'Neal v. Bowles, 314
S.C. 525, 527, 431 S.E.2d 555, 556 (1993). However, the jury's determination of
damages is entitled to substantial deference. Vinson v. Hartley, 324 S.C. 389, 404,
477 S.E.2d 715, 723 (Ct. App. 1996). The trial court must explain the reasons for
granting or denying new trial motions based on inadequacy or excessiveness of the
verdict. Cf. Pelican Bldg. Ctrs. of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56,
61, 427 S.E.2d 673, 676 (1993) (stating compelling reasons must be given to
justify invading the jury's province). "The decision to grant a new trial
absolute . . . rests in the sound discretion of the trial court and ordinarily will not be
disturbed on appeal." Becker v. Wal-Mart Stores, Inc., 339 S.C. 629, 635, 529
S.E.2d 758, 761 (Ct. App. 2000). A trial court abuses its discretion if its
conclusions are controlled by an error of law or if its findings are wholly
unsupported by the evidence. Id.

On the other hand, under the thirteenth juror doctrine, the trial court may grant a
new trial if it finds the verdict is unsupported by the evidence. Folkens v. Hunt,
300 S.C. 251, 254, 387 S.E.2d 265, 267 (1990). "This ruling has also been termed
granting a new trial upon the facts." Id. Basically, the court, "as the thirteenth
juror[,] 'hangs' the jury." Id. "Neither [the court] nor the jury is required to give
reasons for this outcome. Similarly, because the result of the 'thirteenth juror' vote
by the [court] is a new trial rather than an adjustment to the verdict, no purpose
would be served by requiring the trial [court] to make factual findings." Id. When
acting as the thirteenth juror, the trial court "possess[es] the veto power to the Nth
degree" and is presumed to recognize and appreciate this responsibility and
exercise its discretion with fairness and impartiality. Worrell v. S.C. Power Co.,
186 S.C. 306, 313-14, 195 S.E. 638, 641 (1938). "A trial [court's] order granting
or denying a new trial upon the facts will not be disturbed unless [its] decision is
wholly unsupported by the evidence, or the conclusion reached was controlled by
an error of law." Vinson, 324 S.C. at 403, 477 S.E.2d at 722.

In the instant case, the trial court gave several reasons for granting Gaines's
motion, and it found the jury's award of damages "grossly inadequate," which are
typically characteristics of a new trial absolute. However, at the end of the order,
the court discussed case law on the thirteenth juror doctrine and stated it was
"invoking the 'Thirteenth Juror Doctrine'" to grant a new trial. Thus, in light of this
express wording, we will review this case under the thirteenth juror doctrine.

As discussed above, the trial court is not required to explain its rationale for
granting a new trial under the thirteenth juror doctrine. Folkens, 300 S.C. at 254,
387 S.E.2d at 267. However, if the trial court chooses to do so, this court will
review the reasons provided by the trial court. See Lane v. Gilbert Constr. Co., 383
S.C. 590, 597-600, 681 S.E.2d 879, 883-84 (2009) (reviewing the trial court's
rationale for granting a new trial despite the fact the trial court granted the new trial
under the thirteenth juror doctrine and was not required to provide any reasons for
the outcome); Youmans v. S.C. Dep't of Transp., 380 S.C. 263, 282, 287-88, 670
S.E.2d 1, 10, 13 (Ct. App. 2008) (holding that despite the discretion given the trial
court by the thirteenth juror doctrine, it could not grant a new trial based on the
brevity of the jury deliberations); id. at 282, 670 S.E.2d at 10 ("[G]ranting a new
trial due to suspicions of deliberation quality is a flagrant deviation from premising
a new trial upon the facts.").

In the present case, the court gave several reasons for granting Gaines's motion.
We discuss these reasons below.

I. Expert Witness Requirement

Campbell argues the trial court erroneously believed she was required to present
expert witness testimony to contradict an opposing expert's testimony and failed to
consider the fact that the credibility of the experts' statements was at issue.

We agree with Campbell that she was not required to present her own expert
witness as the jury could choose not to believe the testimony of Gaines's expert
witnesses. See Terwilliger v. Marion, 222 S.C. 185, 188, 72 S.E.2d 165, 166
(1952) (finding the fact that testimony is not directly contradicted does not render
it undisputed because questions remain on the inherent probability of the testimony
and the credibility of the witness). However, we disagree with Campbell's claim
that the trial court was requiring her to produce her own expert witness when it
stated in its order that she "did not present any evidence to refute [Gaines's] experts
and relied solely on [Campbell's] cross examination of the witnesses to contest the
proximate cause issue." It appears, in making this statement, the trial court was
merely recounting the events of the trial. The court never stated Campbell was
required to present her own expert witness, and, furthermore, it agreed when
Campbell's attorney stated during the new trial hearing that he did not have to
bring in an expert. Accordingly, we disagree with Campbell's assertion of error.

II. Pitting of Witnesses

Campbell next contends the trial court erred when it found her cross-examination
of Dr. Christie B. Mina objectionable because Campbell asked Dr. Mina to
comment on Gaines's veracity and asked Dr. Mina if she was calling the
emergency room physicians "quacks." Campbell argues she needed to question
Dr. Mina about the discrepancies in Gaines's testimony regarding her prior neck
injuries because Dr. Mina had agreed it would be difficult to connect an incident to
an injury, absent the patient giving an accurate and proper history. The trial court
found Campbell's cross-examination of Dr. Mina objectionable because Campbell
"repeatedly and argumentatively questioned Dr. Mina about the veracity of other
witnesses," which "was in clear violation of South Carolina's long standing and
basic rule prohibiting the 'pitting' of witnesses."

"It is improper to cross-examine in a way that requires a witness to attack another
witness's credibility." State v. Benning, 338 S.C. 59, 63, 524 S.E.2d 852, 855 (Ct.
App. 1999); see also Burgess v. State, 329 S.C. 88, 91, 495 S.E.2d 445, 447 (1998)
("No matter how a question is worded, anytime a solicitor asks a defendant to
comment on the truthfulness or explain the testimony of an adverse witness, the
defendant is in effect being pitted against the adverse witness. This kind of
argumentative questioning is improper."). "[A]n expert is not to comment on the
veracity of another witness's statements." S.C. Dep't of Soc. Servs. v. Lisa C., 380
S.C. 406, 418, 669 S.E.2d 647, 653 (Ct. App. 2008).

In the present case, Campbell informed Dr. Mina that Gaines had stated during a
deposition she had never had a problem with her neck significant enough to seek
medical treatment before the accident. Subsequently, Campbell asked Dr. Mina to
examine Gaines's medical records, which showed Gaines experienced neck pain
from 1987 to 2009. Campbell proceeded to question Dr. Mina about Gaines's
statement in the following manner:

Q. Would you agree that her history was not true, with
regard to what she told me in her deposition?

A. That particular answer appears to not have been true.
....
Q. And again, when you compare that along with these
other records, does it appear that what the history Ms.
Gaines gave me in her deposition would appear to be
incorrect and/or false?

A. Yes.
....
Q. But if she's capable of telling someone, while under
oath, I've never had a problem with that neck -- and
we've seen a discrepancy with her saying I was knocked
out in the accident versus saying to the ER I was never
knocked out -- is it possible that she could be giving
histories to fit whatever she wanted to fit? It is possible?

A. Anything is possible, but unlikely.[1]

While we acknowledge this line of questioning is markedly different from a
situation in which a witness is asked to pit her own credibility against that of
another testifying witness, we find the trial court correctly determined it was
improper to question Dr. Mina on the veracity of Gaines's deposition statements.

However, we find little harm in this line of questioning as Dr. Mina ultimately
stated during cross-examination that Gaines "told [her] the truth" and was a "pretty
reliable historian" because Gaines told her when "not under oath, when she was not
obliged to do so, the truth about her previous long neck history." These statements
are important as they show Dr. Mina was aware of Gaines's medical history when
she determined Gaines's surgery was more probably than not necessitated by the
car accident.

III. Cross-Examination of Expert Witnesses on Proximate Cause

Campbell also asserts the trial court erred when it found Campbell's cross-
examination of both witnesses regarding the issue of proximate cause
objectionable because Campbell asked them whether "it was 'possible' for a
disputed intervening event to have caused the necessity for surgery." The court
believed this line of questioning was inappropriate because South Carolina law
"requires that opinion testimony by medical experts must be to a reasonable degree
of medical certainty and more probably than not." However, Campbell believes
the practice of using hypothetical scenarios to cross-examine witnesses is an
appropriate and "viable means of cross-examination." We agree with Campbell.

1
Gaines's attorney objected after Dr. Mina answered the last question, stating Dr.
Mina was "not qualified as an expert in any legal matter or credibility of
witnesses."
"When one relies solely upon the opinion of medical experts to establish a causal
connection between the alleged negligence and the injury, the experts must, with
reasonable certainty, state that in their professional opinion, the injuries
complained of most probably resulted from the defendant's negligence." Ellis v.
Oliver, 323 S.C. 121, 125, 473 S.E.2d 793, 795 (1996). When expert testimony is
the only evidence of proximate cause relied upon, the testimony "must provide a
significant causal link between the alleged negligence and the plaintiff's injuries,
rather than a tenuous and hypothetical connection." Id.

However, "[o]pinion testimony of an expert witness may be based upon a
hypothetical question." Brown v. La France Indus., 286 S.C. 319, 326, 333 S.E.2d
348, 352 (Ct. App. 1985). The hypothetical question must be based on facts
supported by the evidence. Id. Counsel posing the hypothetical may, however,
frame the question on any theory that "can reasonably be deduced from the
evidence and select as a predicate therefor such facts as the evidence proves or
reasonably tends to establish." Id. at 328, 333 S.E.2d at 353; see Wilder v.
Eberhart, 977 F.2d 673, 676 (1st Cir. 1992) (stating the defendant "may produce
other 'possible' causes of the plaintiff's injury" in proving his alleged negligence
was not the legal cause of the plaintiff's injury); id. at 676-77 (holding that
requiring a defendant to identify a specific cause to a medical probability standard
when rebutting the plaintiff's prima facie case would improperly shift the burden to
the defendant); see, e.g., McKnight v. State, 378 S.C. 33, 40-41, 661 S.E.2d 354,
357-58 (2008) (discussing the fact that the State's expert witness admitted there
were other possible causes of death and the defense's two expert witnesses testified
regarding possible alternative causes of death); see also Ala. Power Co. v. Bruce,
96 So. 346, 348 (Ala. 1923) (finding the "question was relevant and the answer
permissible" when the plaintiff cross-examined the defendant's expert witness
using a hypothetical question based on facts introduced in evidence and sought an
opinion as to whether the existence of such facts would cause the plaintiff's
appendicitis and ovarian condition and the witness replied it was possible).

In this case, Campbell asked both of Gaines's expert witnesses whether it was
possible an injury Gaines sustained while mulching her yard after the car accident
could have been the reason for Gaines's surgery, to which one expert replied, "It's
possible." Campbell also asked that expert whether it was possible the car accident
had nothing to do with the surgery but instead Gaines's arthritis had necessitated
the surgery, and the expert again replied, "It's possible." At the close of Gaines's
case, Campbell moved for a directed verdict. After denying the motion, the trial
court informed Campbell she "had the opportunity to present evidence to show that
your claims of the other two or three things that you think possibly could have
caused this injury, you could have put evidence -- you could have brought
evidence in, if it existed." It further stated, "But you cannot use -- you can't come
in here and try to use your opponent[']s expert and not live up to the same standard.
You can't require him to have more probably than not to a reasonable degree of
medical certainty and you just mere possibility."

During a hearing on Gaines's motion for a new trial, Campbell's attorney stated that
the jury could have found that Gaines's surgery occurred as the result of a
"natural . . . worsening of [her] pre-existing" condition. The trial court responded,
"Was there any evidence in the record to show that? The only opinion testimony
was that this accident caused it." When Campbell referenced the mulching
accident that occurred in between the car accident and the surgery, the trial court
referred to the mulching accident as "[a] disputed supposed intervening cause
where there was no testimony to what [it] consider[ed] to be the required standard
to say that it more probably than not caused it." It is clear the trial court failed to
consider the testimony elicited on cross-examination when granting Gaines's new
trial motion as it found the evidence that required a verdict to compensate Gaines
for her surgery to be "[t]he only competent evidence admitted at trial."

In its new trial order, the trial court found this type of questioning "objectionable"
and stated it "should have . . . been excluded." However, we believe Campbell was
permitted to pose hypothetical questions to the expert witnesses to challenge the
experts' testimony that the car accident necessitated the surgery. See Ala. Power
Co., 96 So. at 348 (permitting cross-examination of the expert witness on other
possible causes of the plaintiff's medical conditions). These questions were
supported by the evidence as Campbell produced medical records in which Gaines
complained of arthritis and described suffering an injury when she fell while
mulching. See Brown, 286 S.C. at 326, 333 S.E.2d at 352 (stating hypothetical
question must be based on facts supported by the evidence).

Thus, this finding by the trial court was erroneous. Because the trial court failed to
consider these other possible causes of Gaines's injury when weighing the evidence
as the thirteenth juror, we find its order was controlled by an error of law. See
Vinson, 324 S.C. at 403, 477 S.E.2d at 722 ("A trial [court's] order granting or
denying a new trial upon the facts will not be disturbed unless [its] decision is
wholly unsupported by the evidence, or the conclusion reached was controlled by
an error of law.").
IV. Appealing to the Jury

Finally, Campbell asserts the trial court erred when it found she violated Rule
43(i), SCRCP, by personally addressing and appealing to the jury during closing
arguments. We agree.

Rule 43(i) states, "Counsel shall not address or refer to by name any member of the
jury he is addressing, or otherwise personally appeal to any member thereof." See,
e.g., City of Columbia v. Myers, 278 S.C. 288, 289, 294 S.E.2d 787, 788 (1982)
(finding a statement in closing argument that the failure to render a verdict for the
City would cause the damages to be paid from tax funds had no relevance to the
merits of the case, "constituted an appeal to the self-interest of the jurors as
taxpayers," and was "of such a prejudicial nature as to require reversal"); Wall v.
Keels, 331 S.C. 310, 320-21, 501 S.E.2d 754, 759 (Ct. App. 1998) (finding a
party's statement during closing argument that a suit against the defendant, Santee
Electric Cooperative, was "a suit against the members of the Co-op" appealed to
the economic self-interest of the cooperative members who were sitting on the jury
and who would ultimately bear the cost of any verdict against the defendant).
Additionally, "[i]n a closing argument to the jury, an attorney may not make such
remarks which are unfairly calculated to arouse passion or prejudice." Gathers v.
Harris Teeter Supermarket, Inc., 282 S.C. 220, 231, 317 S.E.2d 748, 755 (Ct. App.
1984).

In the instant case, the trial court took exception to several comments by
Campbell's attorney, including (1) "I request jury trials in Greenville County
because when I do, I know that my Greenville County jurors are going to be fair
and decent to me. And be honest with themselves with regard to what a case is
about."; (2) "[Y]ou're bright enough and have the brains enough to know that that's
what I said on Monday."; and (3) "[Y]ou guys are not so foolish or dumb and it's
disingenuous to pretend like you are, that you didn't hear that the doctor says, She's
got a bone spur that is squishing on that nerve that's causing a problem and makes
it go down her arm."

We find Campbell is correct in her assertion that the above statements do not
violate Rule 43(i). Counsel did not "address or refer to by name any member of
the jury" nor did he "personally appeal to any member." Rule 43(i), SCRCP.
Furthermore, while counsel's statement that his "Greenville County jurors are
going to be fair and decent to [him]" could possibly be construed as "unfairly
calculated to arouse passion or prejudice," see Gathers, 282 S.C. at 231, 317
S.E.2d at 755, the trial court subsequently instructed the jury to "consider the
evidence calmly and with measured reason, without passion, prejudice, bias or
emotion." A similar instruction was deemed to have cured any error from the
statements made during closing arguments in Gathers. See id. at 231-32, 317
S.E.2d at 755-56 (finding that plaintiff's attorney's statement during closing
arguments in which he told the jury not to "think too hard with your head but to
think with your heart" was cured by the trial court's instruction that the jury
"cannot act through emotion" but needed to "weigh the evidence and do what is
just"). Accordingly, the trial court's finding was in error.

CONCLUSION

Although the trial court correctly determined that questioning Dr. Mina regarding
Gaines's veracity was improper, we find the trial court's new trial order was
controlled by an error of law. See Vinson, 324 S.C. at 403, 477 S.E.2d at 722 ("A
trial [court's] order granting or denying a new trial upon the facts will not be
disturbed unless [its] decision is wholly unsupported by the evidence, or the
conclusion reached was controlled by an error of law."). The trial court's
determination that Campbell could not cross-examine Gaines's experts on other
possible causes of Gaines's injury and its finding that Campbell violated Rule 43(i)
by personally appealing to the jury were incorrect. Furthermore, if the trial court
had believed Campbell's hypothetical questions were permissible, it could have
considered other "possible" causes of Gaines's injury when it weighed the evidence
as the thirteenth juror. Based on the foregoing reasons, the trial court's order
granting a new trial is

REVERSED.

THOMAS, KONDUROS, and GEATHERS, JJ., concur.