Volume 357 — North Carolina Reports

<bold>Workers' Compensation — findings of fact — causation —</bold> <bold>speculation — reasonable degree of medical certainty</bold> <block_quote> The Industrial Commission's findings of fact in a workers' compensation case were not supported by competent evidence establishing causation between an employment-related injury and the development of deep vein thrombosis (DVT), because: (1) although expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, it is insufficient to prove causation when there is additional evidence or testimony showing the expert's opinion to be a guess or mere speculation; (2) a review of the expert testimony revealed that neither of plaintiff employee's physicians could establish with any degree of medical certainty the required causal connection between plaintiff's accident and her DVT; and (3) evidence of plaintiff's age and medical history of hypertension, breast tumors, leg<page_number>Page 229</page_number> cramps, and estrogen use suggested other potential causes of plaintiff's DVT.</block_quote>

<bold>1. Witnesses — cross-examination — repetitive and</bold> <bold>confrontational</bold> <block_quote> The trial court did not err during a capital sentencing proceeding by denying defendant the opportunity to further cross-examine and impeach the credibility of a State's witness. The court limited cross-examination only after it became repetitive and confrontational.</block_quote> <bold>2. Sentencing — capital — prior inconsistent statement about</bold> <bold>another crime — extrinsic evidence excluded</bold> <block_quote> The trial court did not err in a capital sentencing hearing by refusing to admit a signed police report about another crime as extrinsic evidence of a witness's prior inconsistent statement. The point in contention was a collateral matter only tenuously relevant, and the court exercised its discretion properly to prevent this sentencing proceeding from becoming a second trial for the prior crime.</block_quote> <bold>3. Constitutional Law — double jeopardy — current murder</bold> <bold>introduced at sentencing for prior murder — life sentence not</bold> <bold>acquittal</bold> <block_quote> A sentence of life imprisonment for a prior murder did not amount to an "acquittal" for this murder even though evidence of this murder was introduced at the capital sentencing hearing to support the course of conduct aggravating circumstance. Neither defendant's guilt nor the appropriate sentence in the present case were fully litigated in the prior trial, and defendant was convicted and sentenced in this case for offenses quite distinct from the offenses in the prior trial.</block_quote><page_number>Page 346</page_number> <bold>4. Sentencing — capital — prior life sentence excluded</bold> <block_quote> There was no prejudicial error in a capital sentencing proceeding in the court's granting of the State's motion in limine to exclude defendant's life sentence in another case where the clerk of court testified about the earlier sentence without objection. Moreover, the sentence imposed for the prior murder was irrelevant to the sentencing recommendation in this case.</block_quote> <bold>5. Criminal Law — self-defense — instructions</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by instructing the jury that defendant's conduct could be excused if it appeared necessary to the defendant and he believed it to be necessary that he kill the victim to save himself from death or great bodily harm. Although defendant argued that this instruction deprived defendant of self-defense even if the jury found that the victim suffered injuries greater than defendant had intended, an instruction identical in all relevant respects was approved in <italic>State v.</italic> <italic>Richardson</italic>, 341 N.C. 585.</block_quote> <bold>6. Homicide — short-form indictment — constitutional</bold> <block_quote> A short-form first-degree murder indictment, which did not allege aggravating circumstances, was not unconstitutional. The structure and nature of the North Carolina capital punishment system provided defendant with reasonable and constitutionally sufficient notice of the aggravating circumstances that might be established by the State during defendant's capital sentencing proceeding. The indictment sufficiently alleged the elements of first-degree murder.</block_quote> <bold>7. Sentencing — capital-death penalty — not arbitrary</bold> <block_quote> The evidence fully supported the aggravating circumstances found by the jury in a capital sentencing proceeding, and there was no indication that the death sentences were imposed under the influence of passion, prejudice, or any other arbitrary consideration.</block_quote> <bold>8. Sentencing — capital-death penalty — proportionate</bold> <block_quote> A death sentence was proportionate where defendant was convicted of first-degree murder based on premeditation and deliberation, defendant was found guilty of two counts of murder, defendant had been convicted of a prior violent felony, the jury found the course of conduct aggravating circumstance, and<page_number>Page 347</page_number> the jury expressly refused to find the statutory mitigating circumstances of mental or emotional disturbance or age.</block_quote>

<bold>Constitutional Law — Confrontation Clause — capital sentencing —</bold> <bold>absent witness — transcript of prior trial</bold> <block_quote> The trial court erred during a capital sentencing proceeding by admitting the trial transcript of the testimony of an out-of-state rape victim in support of the prior violent felony aggravating circumstance. The record does not reflect any attempt to locate and produce the witness, as required by the Confrontation Clause.</block_quote>

<bold>1. Appeal and Error — Supreme Court review of Court of Appeals</bold> <bold>— flawed Court of Appeals analysis</bold> <block_quote> A Court of Appeals analysis of the exclusion of experts from a medical negligence case was fundamentally flawed because it reviewed the lower court order as a sanction for failure to comply with a discovery order, but defendants had moved for summary judgment rather than for sanctions. However, the appeal was considered in the interests of justice.</block_quote><page_number>Page 493</page_number> <bold>2. Discovery — deadline — extension after expiration —</bold> <bold>excusable neglect required</bold> <block_quote> A judge may allow enlargement of time after the expiration of a court-ordered deadline only upon a showing of excusable neglect. Plaintiff's motion to extend the time for filing a discovery document related that a new attorney in the firm had taken over the case but cited neither rule nor statute and was properly denied.</block_quote> <bold>3. Medical Malpractice — expert testimony excluded — summary</bold> <bold>judgment</bold> <block_quote> Summary judgment was properly granted in a medical negligence and medical malpractice action where plaintiff's expert testimony was excluded.</block_quote>

<bold>Employer and Employee; Workers' Compensation — Woodson exception</bold> <bold>— intentional misconduct</bold> <block_quote> The trial court did not err in a negligence case arising out of an employee maintenance worker's death while collecting garbage by granting summary judgment in favor of defendants based on the fact that plaintiffs failed to raise a genuine issue of material fact as to defendants' civil liability under the <italic>Woodson</italic> exception to the general exclusivity provisions of the North Carolina Workers' Compensation Act, because: (1) the six-factor test created by the Court of Appeals in <italic>Wiggins</italic>, <cross_reference>132 N.C. App. 752</cross_reference> (1999), misapprehends the narrowness of the substantial certainty standard set forth in <italic>Woodson</italic>, <cross_reference>329 N.C. 330</cross_reference> (1991), and is therefore explicitly rejected; (2) the <italic>Woodson</italic> exception applies only in the most egregious cases of employer misconduct where there is uncontroverted evidence of the employer's intentional misconduct and where such misconduct is substantially certain to lead to the employee's serious injury or death; (3) there was insufficient evidence in the present case to reasonably support plaintiffs' contention that defendants intentionally engaged in misconduct knowing that it was substantially certain to cause serious injury or death to decedent; (4) simply having knowledge of some possibility, or even probability, of injury or death is not the same as knowledge of a substantial certainty of injury or death; and (5) the facts of this case involve defective equipment and human error that amount to an accident rather than intentional misconduct.</block_quote>

<bold>Judges — censure of superior court judge</bold> <block_quote> A superior court judge is censured by the Supreme Court for conduct prejudicial to the administration of justice that brings the judicial office into disrepute based upon the following actions: (1) making unwarranted critical remarks to an attorney, during the attorney's argument in support of a motion, accusing the attorney of being insensitive and heartless and suggesting that she was an incompetent attorney; and (2) assaulting a deputy sheriff by reaching for his genitals after directing him to get out of the way as the judge entered a clerk of court's office and making improper remarks to the deputy.</block_quote>