Blackwell v. Herring

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

Vanessa Blackwell, a/k/a Jacqueline Blackwell,
Respondent,

v.

Andrew J. Herring, Individually and as an
employee/agent of Marion County Sheriff's Department;
and Marion County Sheriff's Department, Defendants,

Of which Marion County Sheriff's Department is the
Appellant.

Appellate Case No. 2017-000210

Appeal From Marion County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2019-UP-101
Heard December 5, 2018 – Filed March 6, 2019

AFFIRMED

Douglas Charles Baxter, of Richardson Plowden &
Robinson, of Myrtle Beach, and Carmen Vaughn
Ganjehsani, of Richardson Plowden & Robinson, of
Columbia, both for Appellant.
Eric Marc Poulin and Roy T. Willey, IV, of Charleston,
both for Respondent.

PER CURIAM: On appeal, the Marion County Sheriff's Department (MCSD)
argues the circuit court erred by (1) admitting Vanessa Blackwell's medical bills
into evidence without requiring a proper foundation, (2) excluding eyewitness
testimony that Blackwell was walking in the roadway minutes before MCSD
employee Andrew Herring struck her, (3) declining to inquire during voir dire
whether any juror had encountered MCSD or held strong opinions about either
MCSD or certain law enforcement practices, (4) allowing Blackwell to discuss
matters not in evidence and to impermissibly appeal to the passions of the jury
during closing argument, and (5) denying MCSD's motion for a new trial absolute.
We affirm.

On May 17, 2014, Blackwell was walking home, heading south on U.S. 501,
Business Highway, when she was struck by Herring, who was driving home from
work in a MCSD vehicle. The vehicle struck Blackwell in the leg, causing her to
fall down. EMS responded and transported Blackwell to McLeod Regional
Medical Center (McLeod), where she underwent surgery to repair her leg.
Blackwell remained in the hospital for approximately three-and-a-half weeks.
Thereafter, Blackwell underwent physical therapy for several months.

Blackwell brought suit against MCSD and Herring.1 Trial began on September 12,
2016, before the Honorable Thomas Russo. Ultimately, the jury awarded
Blackwell $500,000; however, the jury found Blackwell was thirty-five-percent
negligent, which reduced the award to $325,000. Applying the statutory cap of the
South Carolina Tort Claims Act, the circuit court entered a judgment of $300,000
against MCSD.2

Foundation for the Medical Bills

1
The circuit court subsequently dismissed Herring as a defendant, finding he was
acting within the course and scope of his official duties as a reserve officer with
MCSD at the time of the accident.
2
S.C. Code Ann. §§ 15-78-10 to -220 (2005 & Supp. 2018).
"The admission of evidence is within the trial court's discretion." Johnson v. Sam
English Grading, Inc., 412 S.C. 433, 448, 772 S.E.2d 544, 551 (Ct. App. 2015)
(quoting R & G Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424,
439, 540 S.E.2d 113, 121 (Ct. App. 2000)). "The court's ruling to admit or exclude
evidence will only be reversed if it constitutes an abuse of discretion amounting to
an error of law." Id. (quoting R & G Constr., 343 S.C. at 439, 540 S.E.2d at 121).
"An abuse of discretion occurs when the ruling is based on an error of law or a
factual conclusion that is without evidentiary support." Id. (quoting Menne v.
Keowee Key Prop. Owners' Ass'n, Inc., 368 S.C. 557, 568, 629 S.E.2d 690, 696
(Ct. App. 2006)).

"The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims." Rule 901(a), SCRE. "By way of
illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule: (1)
Testimony of Witness with Knowledge. Testimony that a matter is what it is
claimed to be." Rule 901(b)(1), SCRE. "'[T]he burden to authenticate . . . is not
high' and requires only that the proponent 'offer[ ] a satisfactory foundation from
which the jury could reasonably find that the evidence is authentic.'" Deep Keel,
LLC v. Atl. Private Equity Grp., LLC, 413 S.C. 58, 64, 773 S.E.2d 607, 610 (Ct.
App. 2015) (quoting United States v. Hassan, 742 F.3d 104, 133 (4th. Cir. 2014)).

We find the circuit court did not abuse its discretion in finding Blackwell's sister,
Wendy Arthur, provided a sufficient foundation for Blackwell's medical bills
because Arthur properly identified the medical bills during her testimony. See
Rule 901(b)(1), SCRE (providing evidence may be authenticated by "[t]estimony
that a matter is what it is claimed to be"). Arthur testified she was responsible for
Blackwell's finances and for transporting her to doctor's appointments.3 Under the
facts and posture of this case, we find Arthur's testimony that she was Blackwell's
caregiver and was familiar with Blackwell's medical care provided a "satisfactory
foundation from which the jury could reasonably find" that the medical bills were

3
Blackwell was diagnosed with schizophrenia in the early 1990s. Blackwell lives
with Arthur, and Arthur has taken care of her since the death of their grandmother
in the early 1990s.
"what they were claimed to be." See Deep Keel, 413 S.C. at 64, 773 S.E.2d at 610
(quoting Hassan, 742 F.3d at 133).4

Moreover, we find meritless MCSD's argument that Arthur lacked the ability to lay
a foundation as to the reasonableness and necessity of the medical bills because
MCSD did not present any evidence that any portion of the medical bills—other
than perhaps a single potassium shot for vitamin deficiency—were not properly
attributable to the accident. Contra Carlyle v. Tuomey Hosp., 305 S.C. 187, 190,
407 S.E.2d 630, 631 (1991) (holding the circuit court erred in admitting the
decedent's medical bills because the total bill did not provide apportionment of the
costs for the reconstruction surgery at issue versus treatment for a preexisting
condition, and surgeon's testimony that sixty to seventy-percent of decedent's care
was devoted to the reconstruction was insufficient to allow the jury to apportion
damages). In fact, despite the circuit court's statement that MCSD could cross-
examine the witnesses about the reasonableness and necessity of the medical bills,
MCSD did not cross-examine either Arthur or Blackwell about the treatment or
bills. We acknowledge that the medical reports contained in Plaintiff's Exhibit 6
seem to indicate Blackwell suffered from malnutrition prior to her admission to
McLeod. A medical report prepared by Dr. Eric Kerley on May 18, 2014,
indicated Blackwell suffered from "significant malnutrition" and that she had low
potassium. Yet, the only charge that appears to have been attributable to the
malnutrition was a single potassium shot. Therefore, we find the circuit court did
not abuse its discretion in allowing the medical bills to be admitted through Arthur.

Eyewitness Testimony

"The trial court has wide discretion in determining the relevancy of evidence."
Johnson, 412 S.C. at 448, 772 S.E.2d at 552. "'Relevant evidence' means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." Rule 401, SCRE. "Evidence which is not relevant is not
admissible." Rule 402, SCRE.

4
No hearsay objection was made with respect to the admission of Blackwell's
medical bills. See Rule 803(6), SCRE (providing for the business records
exception to the hearsay rule and noting the requirement of a records custodian or
"other qualified witness"). Although the parties stipulated as to the admission of
Blackwell's medical records, the record provided to the court does not include the
specifics of this stipulation.
Pretrial, Blackwell moved to exclude Rhiannon Herring's testimony that she
observed Blackwell walking in the roadway minutes before the accident occurred.
Blackwell argued Rhiannon's testimony that Blackwell was in the roadway five or
ten minutes before the accident had no probative value as to whether Blackwell
was in the road when the accident actually occurred. The circuit court stated that
as long as Blackwell did not open the door by testifying she was never in the road
on the night of the accident, Rhiannon's testimony was irrelevant, and the court
would "cross that bridge when we get to it."

MCSD then proffered Rhiannon's testimony. Rhiannon stated she had worked for
MCSD for thirteen years and was working for MCSD on the day of the accident.
At the time of the accident, she was married to Herring; they have since divorced.
Both she and Herring worked at the Foxtrot Festival on the day of the accident;
however, they drove separately. Rhiannon testified that on her way home, she
observed a black female walking in the roadway on Highway 501 leaving Marion,
with her back to traffic. About five to ten minutes later, after Rhiannon arrived
home, she received a call from Herring reporting he had been in an accident.
Rhiannon testified she went to the scene and learned Herring had struck a black
female. Rhiannon admitted she did not witness the accident, and she did not know
how long after she saw Blackwell that the accident occurred.

Ultimately, the circuit court excluded Rhiannon's testimony, finding it was
irrelevant to whether Blackwell was in the road at the time of the accident and that
its prejudicial effect substantially outweighed any probative value. The circuit
court found the probative value was vague, ambiguous, and "extremely weak" as to
either Herring or Blackwell's conduct.

We find the circuit court did not abuse its discretion in excluding Rhiannon's
testimony because it did not make it any more or less probable that Blackwell was
walking in the road when Herring struck her. MCSD cites State v. Jenkins, 249
S.C. 570, 155 S.E.2d 624 (1967), DeLee v. Knight, 266 S.C. 103, 221 S.E.2d 844
(1975), and State v. Nathari, 303 S.C. 188, 399 S.E.2d 597 (Ct. App. 1990), in
support of its argument that Rhiannon's testimony was admissible because it was
relevant to show Blackwell was walking in the roadway minutes before the
accident. However, in each of those cases, the appellate court found evidence of
the defendant's manner of driving minutes before an accident was admissible to
show the defendant's mental state or intoxication, which related to an essential
element of the crimes for which the various defendants were charged. See DeLee,
266 S.C. at 107, 221 S.E.2d at 845 (holding testimony of two eyewitnesses
describing criminal defendant's manner of driving and excessive speed before the
accident was relevant because he was charged with involuntary manslaughter,
which required a finding of criminal negligence, and the testimony "tended to
prove [his] conscious indifference to the safety of the occupants of the bus");
Jenkins, 249 S.C. at 576, 155 S.E.2d at 627 (holding evidence of the defendant's
manner of driving and rate of speed fifteen minutes before the accident was
relevant to show his "condition and mental attitude" at the time of the accident
when "heedlessness or willfulness" was an essential element of reckless homicide);
Nathari, 303 S.C. at 194, 399 S.E.2d at 601 (holding testimony by several
witnesses about a criminal defendant's conduct and appearance prior to an
accident, after which he was charged with driving under the influence, was
relevant as "circumstantial evidence from which the jury could infer that [the
defendant] was under the influence of alcohol, other drugs, or a combination of the
two"). MCSD's reliance on these cases is misplaced because whether Rhiannon
witnessed Blackwell walking in the road minutes prior to the accident does not
tend to make it more or less probable that she was in the road when Herring struck
her. Therefore, we find the circuit court did not err in excluding Rhiannon's
testimony.5

Voir Dire

"The scope of voir dire and the manner in which it is conducted are generally left
to the sound discretion of the trial court." State v. Bixby, 388 S.C. 528, 542, 698
S.E.2d 572, 579 (2010) (quoting State v. Stanko, 376 S.C. 571, 575, 658 S.E.2d 94,
96 (2008)). "An abuse of discretion occurs when the trial court[']s ruling is based
on an error of law." Stanko, 376 S.C. at 575, 658 S.E.2d at 96. "To constitute
reversible error, a limitation on questioning must render the trial fundamentally
unfair." Bixby, 388 S.C. at 542, 698 S.E.2d at 579 (quoting Stanko, 376 S.C. at
576, 658 S.E.2d at 97).

"The responsibility of the trial court is to focus the scope of voir dire examination
as described in S.C. Code Ann. § 14-7-1020." Wilson v. Childs, 315 S.C. 431, 438,
434 S.E.2d 286, 291 (Ct. App. 1993). Section 14-7-1020, of the South Carolina
Code (2017) provides:

The court shall, on motion of either party in the suit,
examine on oath any person who is called as a juror to
know whether he is related to either party, has any

5
We note that despite the exclusion of Rhiannon's testimony, the jury found
Blackwell thirty-five-percent comparatively negligent.
interest in the cause, has expressed or formed any
opinion, or is sensible of any bias or prejudice therein,
and the party objecting to the juror may introduce any
other competent evidence in support of the objection. If
it appears to the court that the juror is not indifferent in
the cause, he must be placed aside as to the trial of that
cause and another must be called.

"The manner in which these questions are pursued and the scope of any additional
voir dire is within the sound discretion of the trial court. The trial court is not
required to ask every question submitted by counsel." Wilson, 315 S.C. at 438,
434 S.E.2d at 291 (citations omitted).

"The court may permit the parties or their attorneys to conduct the examination of
prospective jurors or may itself conduct the examination. In the latter event, the
court shall permit the parties or their attorneys to supplement the examination by
such further inquiry as it deems proper or shall itself submit to the prospective
jurors such additional questions submitted by the parties or their attorneys as it
deems proper." Rule 47(a), SCRCP.

Here, we find the circuit court did not abuse its discretion in declining to ask all of
MCSD's voir dire questions. See, e.g., Wilson, 315 S.C. at 438, 434 S.E.2d at 291
("The trial court is not required to ask every question submitted by counsel.").
Prior to trial, MCSD submitted voir dire requests to the circuit court. At the close
of voir dire, the circuit court indicated it had not asked all of MCSD's requested
voir dire questions. Specifically, the circuit court did not ask MCSD's requests
marked 8 through 12, which were as follows:

8. Have you or anyone in your immediate family ever
had a dispute with [MCSD]? If yes, then describe the
dispute.

9. Do any of you have strong opinions concerning law
enforcement officers (police) operation of their vehicles?
If yes, then describe that opinion.

10. Do any of you have any strong opinions either for or
against [MCSD]? If yes, then describe that opinion.
11. Have any of you or a family member ever been
arrested by [MCSD]?

12. Do any of you regularly walk on the road or shoulder
of a road?

Although the circuit court declined to ask these specific questions, it did inquire as
to whether any juror knew of any reason he or she could not remain impartial to
Blackwell or MCSD. Therefore, we find the circuit court's limitation on voir dire
was not controlled by an error of law. See Stanko, 376 S.C. at 575, 658 S.E.2d at
96 ("An abuse of discretion occurs when the trial court[']s ruling is based on an
error of law."). We do not find the jury's award to have been the result of passion,
caprice, or prejudice, as discussed infra; MCSD was not prejudiced by the circuit
court's refusal to ask all of its questions; nor has MCSD demonstrated that the trial
was rendered fundamentally unfair as a result. See Bixby, 388 S.C. at 542, 698
S.E.2d at 579 ("To constitute reversible error, a limitation on [voir dire] must
render the trial fundamentally unfair." (quoting Stanko, 376 S.C. at 576, 658
S.E.2d at 97)).

Closing Argument

"Closing arguments must be confined to evidence in the record and reasonable
inferences therefrom." O'Leary-Payne v. R.R. Hilton Head, II, 371 S.C. 340, 352,
638 S.E.2d 96, 102 (Ct. App. 2006). "A trial court is allowed broad discretion in
dealing with the range and propriety of closing argument to the jury." Id. "An
appellate court must review the argument in the context of the entire record." Id.

During the reply closing argument, Blackwell's counsel stated:

One thing that we do know is that this is the greatest civil
justice system in the world that we have because this is
probably one of the only countries where little miss
somebody like little Ms. Jackie can come in here in front
of the twelve of you and go up against with a Marion
County reserve sheriff deputy, the guy who as we heard
after the wreck was able to call his wife to come out to
the scene, his boss to come out to the scene. He was able
to get the favorable highway patrolman who came out to
the scene and said after five minutes you're free to go,
you're fine. He was able to get in the medical records,
you know, and EMS thing that, oh, she must have been
drunk, even though she wasn't drunk. He's able to do all
those things after the wreck and leading up to the trial,
but none of that matters now. None of that matters in
here because in our civil justice system the twelve of you
have the final decision. The twelve of you are the only
ones that can help Ms. Jackie get justice in this case. It
doesn't matter about all the strings he was able to pull
and about all those things he was able to do. The twelve
of you get to look at this evidence and you get to decide
whether this is gonna be the type of community where
people can go around look, driving, looking on their cell
phones, running people over, covering it up, and getting
away with it[.]

At that point, MCSD objected, stating Blackwell's argument was improper because
she was "supposed to address the facts of the case." The circuit court overruled the
objection. In its post-trial motion, MCSD argued it was entitled to a new trial
because the circuit court allowed Blackwell "to make improper arguments during
closing in contradiction to the rulings on the motions in limine." In its order
denying MCSD's post-trial motions, the circuit court found MCSD did not preserve
its argument regarding Blackwell's closing argument because it did not specify
which statements it found objectionable. The circuit court further noted that even
if MCSD did identify which statements were objectionable, a motion in limine is
not a final ruling. On appeal, MCSD argues these "cover up" references were
efforts to improperly appeal to the passions and prejudices of the jury.

We find unpreserved MCSD's argument that Blackwell's closing argument
improperly appealed to the passions of the jury because this argument was never
raised to the circuit court. See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 23, 602
S.E.2d 772, 779–80 (2004) ("Issues and arguments are preserved for appellate
review only when they are raised to and ruled on by the lower court."); Stevens &
Wilkinson of S.C., Inc. v. City of Columbia, 409 S.C. 563, 567, 762 S.E.2d 693,
695 (2014) ("[A] party cannot use a Rule 59(e) motion to advance an issue the
party could have raised to the circuit court prior to judgment, but did not.").

We note MCSD did object during Blackwell's closing argument and assert
Blackwell was "supposed to address the facts of the case." But, the facts alleged in
the portion of Blackwell's argument MCSD cites as improper in its brief are found
in the evidence: Herring testified his wife and boss responded to the scene;
Trooper Ellis testified he allowed Herring to leave the scene five to six minutes
after Trooper Ellis arrived; and although Campbell testified he smelled alcohol on
Blackwell's breath and noted it in his report, the hospital report indicated
Blackwell's blood alcohol test was negative. Because Blackwell's argument did
not exceed the scope of the evidence presented at trial, we find no error. See
O'Leary-Payne, 371 S.C. at 352, 638 S.E.2d at 102 ("Closing arguments must be
confined to evidence in the record and reasonable inferences therefrom.").

New Trial Absolute

"A new trial may be granted . . . in an action in which there has been a trial by jury,
for any of the reasons for which new trials have heretofore been granted in actions
at law in the courts of the State. . . ." Rule 59(a)(1), SCRCP. "The grant or denial
of new trial motions rests within the discretion of the circuit court, and its decision
will not be disturbed on appeal unless its findings are wholly unsupported by the
evidence or the conclusions reached are controlled by error of law." Brinkley v.
S.C. Dep't of Corr., 386 S.C. 182, 185, 687 S.E.2d 54, 56 (Ct. App. 2009).

[A]s an appellate court, we sit neither to determine
whether we agree with the verdict nor to decide whether
we agree with the trial judge's decision not to disturb it.
As described above, we employ a highly deferential
standard of review when considering the trial judge's
ruling on each of the grounds for a new trial. In
exercising this deference, we recognize the unique
position of the trial judge to hear the evidence firsthand,
evaluate the credibility of the witnesses, and assess the
impact of the wrongful conduct on the plaintiff in terms
of damages.

Burke v. AnMed Health, 393 S.C. 48, 57, 710 S.E.2d 84, 89 (Ct. App. 2011).

"A jury's determination of damages is entitled to 'substantial deference.'" Id. at 56,
710 S.E.2d at 88. "When considering a motion for a new trial based on the
inadequacy or excessiveness of the jury's verdict, the trial court must distinguish
between awards that are merely unduly liberal or conservative and awards that are
actuated by passion, caprice, or prejudice." Elam, 361 S.C. at 27, 602 S.E.2d at
781.
"A circuit court may grant a new trial absolute on the ground that the verdict is
excessive or inadequate." Brinkley, 386 S.C. at 185, 687 S.E.2d at 56. "However,
this power may be exercised only when the verdict 'is shockingly disproportionate
to the injuries suffered and thus indicates that passion, caprice, prejudice, or other
considerations not reflected by the evidence affected the amount awarded.'" Burke,
393 S.C. at 56, 710 S.E.2d at 88 (quoting Becker v. Wal-Mart Stores, Inc., 339 S.C.
629, 635, 529 S.E.2d 758, 761 (2000)).

Here, Blackwell suffered a bilateral, left leg tibia fracture with an open wound,
which required surgery to repair. Blackwell remained in the hospital for
approximately three-and-a-half weeks, and she underwent physical therapy for
several months after being discharged. As a result of her injury and the remaining
pain to her leg, Blackwell can no longer walk to town to visit the library, the track,
the park, and her friends. Blackwell is a diagnosed schizophrenic, and Arthur
testified Blackwell's daily walks helped to relieve her stress and depression. Now,
Blackwell can only walk to a store about a four-minute walk from her house, and
she spends much more time at home because she must rely on Arthur for
transportation.

Blackwell presented evidence of more than $100,000 in medical bills. In fact, her
medical bills from her hospitalization at McLeod alone were $100,000. We
acknowledge the medical bills, admitted as Plaintiff's Exhibit 6, do not track
exactly with the billing summary Blackwell presented at trial. The summary
reflects Blackwell's medical bills as follows:

McLeod Florence $100,058
Advanced Medical Associates $1,704
Carolina's Hospital-Marion $3,469.92
Florence Radiology $1,943
Marion County EMS $875
Medical Anesthesia Consultants, LLC $2,800

TOTAL: $110, 849.92

However, the exhibit also contains a document showing $4,678.34 in medical bills
from Carolina's Hospital and documents supporting $2,760 from CNRA and
$1,232 from McLeod-CBO; the billing summary does not include these figures. It
is undisputed that Blackwell presented evidence that she suffered in excess of
$100,000 in medical bills as a result of the accident.
We must give substantial deference to the jury's award, and we find nothing in the
record indicates the jury's award of $500,000—reduced by $175,000 due to the
jury's 35% comparative negligence finding—was the result of passion, caprice, or
prejudice. In addition to the evidence set forth in the medicals, Blackwell
presented evidence of her pain and suffering following the accident. See id. at 56,
710 S.E.2d at 88 ("A jury's determination of damages is entitled to 'substantial
deference.'"); Elam, 361 S.C. at 27, 602 S.E.2d at 781 ("When considering a
motion for a new trial based on the inadequacy or excessiveness of the jury's
verdict, the trial court must distinguish between awards that are merely unduly
liberal or conservative and awards that are actuated by passion, caprice, or
prejudice."). Therefore, we find the circuit court did not err in denying MCSD's
motion for a new trial.

AFFIRMED.

KONDUROS, MCDONALD, and HILL, JJ., concur.