An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA14-659
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 6 January 2015


SHERIE POWELL,
     Plaintiff,

      v.                                      Wake County
                                              No. 12 CVS 16552
EMILY CHRISTOPHERSON and UNNAMED
INSURANCE COMPANY,
     Defendants.


      Appeal     by   Defendant     Emily    Christopherson       from    judgment

entered 3 December 2013 and order entered 5 March 2014 by Judge

Robert F. Johnson in Wake County Superior Court.                    Heard in the

Court of Appeals 20 October 2014.


      Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney,
      for Plaintiff.

      Parker Poe Adams & Bernstein LLP, by Jonathan E. Hall and
      Michael J. Crook, for Defendant.


      STEPHENS, Judge.


                      Factual and Procedural Background

      On    29   July    2007,     Defendant      Emily    Christopherson       was

distracted as she approached an intersection and failed to see

the red traffic light for her direction of travel.                  As a result,
                                              -2-
Defendant’s car collided with the car driven by Plaintiff Sherie

Powell   who    had      a    green    traffic        signal    for    her    direction       of

travel and was driving through the intersection.                                Immediately

after the collision, Plaintiff complained of left shoulder and

neck   pain.        X    rays      taken     during    a   hospital     evaluation          were

negative, and Plaintiff was released the same day.                                   Plaintiff

later saw a chiropractor, who provided treatment in the form of

mechanical traction and a chiropractic adjustment of her neck.

       At the time of the collision, Plaintiff worked full time

for    the    United         States     Postal        Service    at     a     mail-handling

facility.      She continued to work without any restrictions until

an on-the-job accident on 3 December 2007 in which Plaintiff

injured her left shoulder.                    At a 14 December 2007 visit to

Raleigh Orthopaedic Clinic, Plaintiff reported pain and burning

in    areas    of   her       shoulder       and    neck.        Dr.    Hadley        Callaway

evaluated Plaintiff for a rotator cuff injury and prescribed a

brief course of physical therapy.

       In January 2009, Plaintiff presented to Dr. Callaway with

symptoms the doctor believed were likely related to a cervical

spine issue, rather than to Plaintiff’s work injury.                                A cervical

magnetic resonance imaging (“MRI”) study revealed a Chiari I

malformation        at       the      base     of     Plaintiff’s           skull     and    an
                                        -3-
accompanying    spinal    cord       syrinx.      Dr.    Callaway        immediately

referred    Plaintiff    to    Dr.   Peter     Grossi,     a    neurosurgeon,     who

ultimately   performed    three       surgical    procedures       on     Plaintiff.1

Plaintiff    continued    to    experience       various       residual    symptoms,

including headaches and pain in her left shoulder and behind her

left ear.      As a result, on 30 July 2009, Dr. Grossi referred

Plaintiff to a neurologist, Dr. Timothy Collins, who specializes

in pain management and treating headaches.                     Dr. Collins began

treating Plaintiff in September 2009, and they continued regular

appointments up until the time of trial.                 Dr. Collins testified

that, “[r]eviewing [Plaintiff’s medical] records led me to have

an opinion that her accident was the most likely trigger for the

symptoms she had that would have led to discovery of the Chiari

malformation.”

       On 28 November 2012, Plaintiff filed a complaint alleging

that    Defendant’s     negligence      caused     the     29     July     2007   car



1
   Dr. Grossi testified that a Chiari I malformation is a
congenital anatomical abnormality in which the cerebellum, which
is located at the base of the brain, extends below the skull
into the space where the brain joins the spinal cord. A Chiari
I malformation is usually asymptomatic for many years, but often
begins to cause neurological symptoms either in adolescence or
in the mid- to late 30s. A syrinx is a balloon of spinal fluid
which collects inside the spinal cord as a result of a Chiari I
malformation.   A syrinx creates outward pressure on the spinal
cord which results in neurologic deficits.
                                            -4-
collision which in turn proximately caused Plaintiff to suffer

permanent       injuries,       including         her     spinal     condition     and

associated pain and suffering.                    Defendant stipulated that her

negligence had caused the collision, but disputed Plaintiff’s

allegation      that    the   collision      had    proximately      exacerbated      or

activated her pre-existing congenital Chiari I malformation and

syrinx.

      The matter came on for trial in November 2013.                           At the

close of Plaintiff’s evidence, Defendant moved for a directed

verdict    in    her    favor    on    the    issue       of    whether   Defendant’s

negligence had caused Plaintiff’s injuries.                        The trial court

denied that motion, and Defendant presented her case.                       Defendant

then renewed her motion for directed verdict which the trial

court again denied.           Ultimately, the jury returned a verdict in

favor of Plaintiff, awarding $500,000.00 in damages for personal

injury.     The trial court entered judgment for Plaintiff on 3

December 2013.         On 6 December 2013, Defendant moved for judgment

notwithstanding the verdict (“JNOV”), or, in the alternative,

for   a   new   trial,    which       the   trial       court   denied    following   a

hearing.     The ruling was reduced to writing and filed on 5 March
                                     -5-
2014.   From the judgment entered 3 December 2013 and the order

denying her motion for JNOV, Defendant appeals.2

                              Discussion

     On appeal, Defendant argues that the trial court erred in

(1) denying her motions for a directed verdict and for JNOV, and

refusing   to   permit   Defendant    to   (2)   cross-examine   Plaintiff

about her admitted marijuana use and to (3) impeach Plaintiff

with her prior inconsistent statements.          We find no error.

I. Motions for directed verdict and JNOV

           In   determining  the  sufficiency  of  the
           evidence to withstand a motion for a
           directed verdict, all of the evidence which

2
    Defendant filed her notice of appeal on 11 February 2013,
after entry of the judgment, but before the trial court’s
written order denying her motion for JNOV was entered. A party
is “entitled to file and serve written notice of appeal any time
after [a] judgment [is] rendered in open court.”      Merrick v.
Peterson, 143 N.C. App. 656, 660, 548 S.E.2d 171, 174, disc.
review denied, 354 N.C. 364, 556 S.E.2d 572 (2001); see also
Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735,
738 (holding that rendering of an order denying a motion for
JNOV “commences the time when notice of appeal may be taken by
filing and serving written notice, while entry of an order
initiates the thirty-day time limitation within which notice of
appeal must be filed and served”) (citations omitted; emphasis
in original), disc. review denied, 347 N.C. 263, 493 S.E.2d 450
(1997).    Further, Defendant’s notice of appeal specifically
designates that appeal is taken from both the judgment and the
order denying her motion for JNOV, complying with N.C.R. App. P.
3(d) and vesting this Court with jurisdiction to consider the
judgment and the order.   See Yorke v. Novant Health, Inc., 192
N.C. App. 340, 347, 666 S.E.2d 127, 133 (2008), disc. review
denied, 363 N.C. 260, 677 S.E.2d 461 (2009).
                                           -6-
             supports the non-movant’s claim must be
             taken as true and considered in the light
             most favorable to the non-movant, giving the
             non-movant the benefit of every reasonable
             inference which may legitimately be drawn
             therefrom       and      resolving      [any]
             contradictions,        conflicts,         and
             inconsistencies in the non-movant’s favor.

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710

(1989) (citation omitted).                 “A motion for either a directed

verdict     or    JNOV    should     be    denied     if      there   is    more    than   a

scintilla        of    evidence     supporting      each       element     of    the    non-

movant’s claim.”             Springs v. City of Charlotte, 209 N.C. App.

271, 275, 704 S.E.2d 319, 323 (2011) (citations and internal

quotation        marks    omitted;     emphasis       added).         “On    appeal      the

standard of review for a [ruling on a motion for] JNOV is the

same   as   that       for     a   directed     verdict,       that   is    whether     the

evidence was sufficient to go to the jury.”                       Tomika Invs., Inc.

v. Macedonia True Vine Pentecostal Holiness Church of God, Inc.,

136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000) (citation

omitted).         “Proximate       cause   is    ordinarily       a   jury      question.”

Turner, 325 N.C. at 162, 381 S.E.2d at 712 (citations omitted).

       Because        Defendant     stipulated      to     her   negligence        in   this

case, the primary question before the jury was whether                                  that

negligence       was     the   proximate      cause      of    Plaintiff’s      injuries.

Defendant contends that Dr. Collins’ expert medical opinion that
                                      -7-
the car collision caused the onset of Plaintiff’s symptoms was

not    competent    evidence    and   that,    as    a    result,    there     was

insufficient evidence of causation to send the case to the jury.

Specifically,      Defendant   asserts      that    Dr.   Collins’    causation

opinion was      improperly    based on (1)        mere speculation or (2)

solely a temporal relationship.

              Due to the complexities of medical science,
              particularly with respect to diagnosis,
              methodology and determinations of causation,
              this Court has held that where the exact
              nature and probable genesis of a particular
              type of injury involves complicated medical
              questions far removed from the ordinary
              experience and knowledge of laymen, only an
              expert can give competent opinion evidence
              as to the cause of the injury.        However,
              when such expert opinion testimony is based
              merely upon speculation and conjecture, it
              can be of no more value than that of a
              layman’s opinion.     As such, it is not
              sufficiently   reliable    to    qualify    as
              competent evidence on issues of medical
              causation.      Indeed,    this    Court   has
              specifically held that an expert is not
              competent to testify as to a causal relation
              which   rests  upon   mere    speculation   or
              possibility.

Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d

912,    915    (2000)   (citations     and     internal     quotation        marks

omitted).

       Further, “[i]n a case where the threshold question is the

cause of a controversial medical condition, the maxim of post
                                             -8-
hoc, ergo propter hoc[] is not competent evidence of causation.”

Id.     at   232,       538    S.E.2d   at    916    (internal       quotation        marks

omitted).       “The maxim post hoc, ergo propter hoc[] denotes the

fallacy of confusing sequence with consequence, and assumes a

false connection between causation and temporal sequence.”                              Id.

(citation,         internal     quotation     marks,       and    ellipsis     omitted).

Where    such      a    temporal     relationship     is    the     sole    basis    for   a

physician’s         opinion     on    causation,     the     physician’s       causation

opinion is not competent evidence.                    See id.         For example, in

Young, our Supreme Court held that a physician’s expert medical

opinion      regarding         causation     was    not     competent        where    that

physician’s

              total reliance on this premise [post hoc,
              ergo propter hoc wa]s shown near the end of
              his deposition testimony wherein he states:
              “I think that she does have fibromyalgia and
              I relate it to the accident primarily
              because, as I noted, it was not there before
              and she developed it afterwards. And that’s
              the only piece of information that relates
              the two.”

Id. (emphasis added); see also Carr v. Dep’t of Health and Human

Servs.,      218       N.C.   App.   151,   156,    720    S.E.2d    869,    874     (2012)

(rejecting an argument asserting improper reliance on post hoc,

ergo propter hoc where the physician testified that, “although

‘a lot of it is based on timing,’ his opinion was based on the
                                       -9-
mechanism of injury as well as the temporal relationship between

the incident and symptoms”).

       When    asked   about   the    basis   of   his   opinion    regarding

causation, Dr. Collins testified:

              Q.   Okay.   How did you come to an opinion
              as to whether or not [Plaintiff] incurred an
              injury due to the motor vehicle collision of
              July 29th, 2007?

              A.   From   discussing   with the   —  from
              discussions with the patient, in the course
              of providing her care, and from review of
              Dr. Grossi’s clinic notes.

Dr. Collins went on to explain that he had also relied on Dr.

Callaway’s notes, the police report on the collision, his own

experience      in     treating      other    patients    with     Chiari   I

malformations, and his review of the relevant medical literature

to form his causation opinion:

              That — that takes a bit of an explanation.
              Congenital Chiari malformations generally
              don’t produce symptoms until people in — are
              in their late 20s. I think the average age
              of onset is around 35.3

              There is medical literature looking at the
              things that precipitate symptoms in Chiari
              malformation.  And upwards of 40 percent of
              patients with a Chiari malformation start
              having symptoms after some sort of mild head
              trauma. In [Plaintiff]’s specific case, she
              was in a car accident.    Her car was struck

3
    Plaintiff was 33 years old at the time of the collision.
                                     -10-
             from the passenger side, according to the
             police report, while she was driving, which
             would have caused her head and neck to flop
             back and forth from one side to the other,
             putting a lot of unnatural strain on a
             structure that’s really not put together in
             a way to handle that.       And her anatomy
             inside was already abnormal.      Her — her
             brain — her brain stem and her upper
             cervical spine weren’t normal, and because
             of this trauma, started giving her symptoms.

Thus, Dr. Collins’ causation opinion was not “based merely upon

speculation and conjecture[.]”          See Young, 353 N.C. at 230, 538

S.E.2d at 915.        Rather, his opinion that “[i]t’s more likely

than   not     that   the    accident    triggered    the     symptoms    that

[Plaintiff] has from her Chiari malformation” was based upon

examination     of    Plaintiff,    review    of    her     medical   records,

relevant medical literature, and, importantly, the mechanism of

injury,   as   well   as    Dr.   Collins’s   own   skill    and    experience.

Further, although Dr. Collins did note that Plaintiff’s symptoms

began to appear only after the collision, his causation opinion

was plainly not based solely on this temporal relationship, but

instead upon all of the proper bases noted supra.                  In sum, Dr.

Collins’s expert medical opinion on causation was competent and

constituted “more than a scintilla of evidence supporting” the

sole disputed element of Plaintiff’s personal injury claim.                See

Springs, 209 N.C. App. at 275, 704 S.E.2d at 323.                  Accordingly,
                                          -11-
the trial court did not err in denying Defendant’s motions for

directed verdict and JNOV.

II.     Cross-examination           regarding           Plaintiff’s        misdemeanor

conviction

      Defendant       next    argues      that     the    trial    court    erred    in

prohibiting her from cross-examining Plaintiff about Plaintiff’s

marijuana      use    at     the   time    of     the     collision.        Defendant

misperceives the trial court’s ruling, which was not error.

      On appeal, Defendant asserts that she was prevented from

cross-examining       Plaintiff       about      Plaintiff’s      marijuana    use   in

2007,   and    that    the    trial    court      only   permitted     Defendant     to

cross-examine Plaintiff about what Plaintiff told her doctors

regarding her marijuana use.               However, a careful review of the

transcript reveals that Plaintiff did not object to Defendant’s

inquiry about her marijuana use in 2007, but rather only to a

question about a purported misdemeanor conviction for possession

of marijuana:

              Q.   Ma’am, were you also              using     marijuana
              during this time [in 2007]?

              A.     No, I was not.

              Q.   Okay. You were convicted of possession
              of marijuana in November of 2007, weren’t
              you?

              [PLAINTIFF’S COUNSEL]:             Objection.
                                        -12-


The trial court then sent the jury out of the courtroom, and, on

voir dire, Defendant’s counsel asked Plaintiff about purported

drug possession and paraphernalia charges in Haywood County, of

which Plaintiff denied any knowledge.                The court then engaged in

a lengthy exchange with Defendant’s counsel regarding Rule of

Evidence   609,      and   established      that    the   marijuana     possession

conviction    was     a    Class    3   misdemeanor       and    that   the   drug

paraphernalia charge was dismissed.                See N.C. Gen. Stat. § 8C-1,

Rule   609(a)     (2013)     (“For      the     purpose     of   attacking     the

credibility of a witness, evidence that the witness has been

convicted of a felony, or of a Class A1, Class 1, or Class 2

misdemeanor, shall be admitted if elicited from the witness or

established     by     public      record      during     cross-examination     or

thereafter.”).

           THE COURT:                Under Rule 609 you
           may cross-examine her about a felony, a
           Class   1,   a  Class   A1   or  a  Class   2
           misdemeanor.   Cross-examin[ing] her about a
           Class 3 misdemeanor [such as Plaintiff’s
           marijuana possession conviction]      is not
           allowed and the objection will be sustained.

           [PLAINTIFF’S COUNSEL]:   Your Honor, there
           are a couple things that I would like to say
           in reference to this.

           I noticed on the second page — and I am not
           a criminal attorney either.
                    -13-
THE COURT:              On the second         page
there was a charge of possession of           drug
paraphernalia  which    is   a    Class          1
misdemeanor. But counsel has indicated        that
that was dismissed as part of a               plea
arrangement.

[DEFENDANT’S COUNSEL]:     Yes,   sir.    That’s
what it appears.

THE COURT:               Therefore,   if   it
was dismissed you may not ask her about it.
He can ask about convictions.    I don’t mean
to cut you off, [Plaintiff’s counsel], if
that’s where you were heading.

[Plaintiff’s   counsel   moves   to   strike,
requests an instruction for the jury to
disregard the question and response about
the conviction, and moves for a mistrial.]

THE COURT:               At  this   point[,]
motion for mistrial will be denied. I don’t
think we are there. The question was asked,
the objection. I sent the jury out. I will
bring the jury in, I will sustain the
objection, I will instruct them to disregard
the question, that they are not to draw any
inference from it.

. . . .

THE COURT:                 The    objection     is
sustained.

[DEFENDANT’S COUNSEL]:   Okay.     Now, your
Honor, so you know where we are going next,
okay?   She did tell her doctors after this
accident   that   she    continues   to  use
marijuana.   And that’s relevant because of
the nature of her symptoms.
                      -14-
THE COURT:                You       may  cross-
examine her   [about]    what     she told her
doctors.

[DEFENDANT’S COUNSEL]:       Yes, sir.

THE COURT:                   You may not cross-
examine her about —

[DEFENDANT’S COUNSEL]:       A conviction.

THE COURT:              —  possession  of
marijuana   and   alleged  conviction  of
paraphernalia.  That is the ruling of the
[c]ourt.

[DEFENDANT’S COUNSEL]:   Yes, sir.   And     we
will abide by that ruling. Yes, sir.

[PLAINTIFF’S COUNSEL]:   And your Honor, as
it relates to what she told her doctors as
it relates to marijuana or any other
circumstance, what we would object to is the
relevance as it relates to the motor vehicle
collision unless they are declaring that the
motor vehicle collision and the marijuana
are related and the fact of the symptoms —
symptomology that she experienced after the
motor vehicle collision which again has
nothing to do with marijuana.

THE COURT:               Well — and I don’t
know what context the question will come up
that she — what she told the doctor in terms
of using marijuana, if he was asking her for
a history of my medications that she may
have used or anything relative to his
treatment.   And that would go toward the
basis of any opinions that a medical
professional would reach, I would think.
And I don’t know if that’s why he wants to
ask the question or not. But if he asks the
questions and there is an objection I will
rule on it at the time.    If I need to send
                                         -15-
               the jury out I will           send    the     jury    out.
               Bring the jury in.

These are the only portions of the transcript cited by Defendant

in support of her argument.             As the discussion among counsel and

the     court     makes      clear,     Defendant     only     asked     about       the

permissibility of cross-examining Plaintiff regarding what she

told her doctors about marijuana use.                The trial court responded

that     asking    about     Plaintiff’s    conviction       was    prohibited,      but

that Defendant could ask about Plaintiff’s conversations with

her doctor regarding marijuana use, noting that if objections

were made to such questions, the court would rule on them at

that time.

       Following a recess, Defendant’s counsel again raised the

issue     of      cross-examining        Plaintiff     about        marijuana       use,

observing       that   Plaintiff’s      medical    records     included      a   social

history     which      stated    that   Plaintiff     “does    endorse      marijuana

use.”4     The trial court first noted, correctly, that “endorsing”

marijuana       use    was      different   from     “using”       marijuana.         In

addition, when the trial court asked Defendant’s counsel for

what permitted purpose under Rule of Evidence 404(b) such “bad

act”     evidence      was   admissible,    Defendant’s        counsel      could   not

4
  We observe that Defendant has not cited and does not discuss
this portion of the transcript in her brief.
                                      -16-
provide an answer and additionally revealed that the doctor to

whom the “endorse[s] marijuana use” statement was made was not

even a witness at the trial.            The trial court thus prohibited

cross-examination of Plaintiff about any statements regarding

marijuana use she might have made to her physicians.

       On appeal, however, Defendant makes no argument that the

trial court erred in refusing to permit cross-examination under

Rule    404(b)   regarding   the      statement    in     Plaintiff’s   medical

record.      Further, contrary to Defendant’s assertions, Defendant

was    not   prohibited   from   asking       Plaintiff    about     Plaintiff’s

marijuana use in 2007.       As noted supra, that question was asked

without objection, and Plaintiff answered it.                This argument is

overruled.

III. Impeachment with Plaintiff’s prior inconsistent statements

       In her final argument, Defendant contends that the trial

court   erred    in   refusing   to   allow    Defendant     to    cross-examine

Plaintiff regarding Plaintiff’s prior inconsistent statements.

In support of this contention, Defendant returns to the issue of

Plaintiff’s alleged marijuana use and conviction.

       Defendant notes that, “during voir dire and outside the

presence of the jury,” Plaintiff responded to a question about

whether she had ever been convicted of marijuana possession by
                                       -17-
saying, “Not that I know of.”              We first observe that Plaintiff

was never inconsistent in her statements regarding convictions

for drug possession.         Both on voir dire and in her deposition,

Plaintiff consistently stated that she had not been convicted of

drug possession, although in her deposition she admitted that

she     had   received       a    “ticket”      for      possession        of     drug

paraphernalia.          She did not, as Defendant asserts, make any

inconsistent statement to her physicians.                   As discussed supra,

Plaintiff’s      medical   record     indicates      only   that   she    “endorses

marijuana use” and says absolutely nothing about any convictions

for marijuana possession.             Further, as Defendant acknowledges,

Plaintiff’s      denials     of   having      been    convicted     of    marijuana

possession       were    statements    made     during      the    voir    dire     on

admissibility under Rule 609 of evidence about Plaintiff’s Class

3 misdemeanor conviction of marijuana possession, not statements

made during Plaintiff’s testimony.              As previously discussed, the

trial    court    properly    ruled    that    Defendant     could       not    cross-

examine Plaintiff about her Class 3 misdemeanor conviction for

possession.      This argument is overruled.

      NO ERROR.

      Chief Judge MCGEE and Judge DIETZ concur.

      Report per Rule 30(e).
