SC Large Truck Accident Attorney – Dump Truck Accident – SCDOT

This serious accident case involving a large commercial dump truck illustrates how small facts can lead to big verdicts. It also demonstrates how these serious injury cases are aggressively defended. Here, the dispute involves whether the jury should be permitted to consider punitive damages because the SCDOT driver was allegedly speeding at the time of the crash. A statutory violation (speeding) is “negligence per se” which is at least some evidence of “recklessness.” That fact alone, if proven, is enough to submit punitive damages to the jury.

The next important issue discussed in this case is the effect intervening negligence by a third party can have on the outcome. Here, the defense wanted to plant the idea of malpractice allegedly committed by a treating physician, even though there was no evidence of same. The Court rightly declined to so instruct the jury. Again, the mere attempt shows the lengths to which insurance carriers and their lawyers will go to win or reduce a verdict.

Complex litigation in serious injury cases requires years of experience. The trial attorneys of Reeves, Aiken & Hightower LLP have over 70 years experience trying cases in court. Their unique backgrounds include former insurance defense experience and a former Intensive Care Unit Registered Nurse (RN). Together, they form a team ready to fight tirelessly for you and your family. For more information about our firm, please visit www.rjrlaw.com. Compare our attorneys’ credentials against any other law firm. Then call us for a private consultation at 877-374-5999.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Marilee B. Fairchild and Larry J. Fairchild, Plaintiffs,

Of whom Marilee B. Fairchild is Respondent,

v.

South Carolina Department of Transportation, William Leslie Palmer and Palmer Construction Co., Inc., Defendants,

Of whom William Leslie Palmer and Palmer Construction Co., Inc., are Petitioners.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From Colleton County
Perry M. Buckner, Circuit Court Judge


Opinion No. 27112
Heard November 15, 2011 – Filed April 11, 2012


AFFIRMED


Kirby D. Shealy, III and Bradley L. Lanford, both of Baker, Ravenel & Bender, of Columbia, for Petitioners.

Bert G. Utsey, III, of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Walterboro; and George D. Jebaily and Suzanne H. Jebaily, both of Jebaily Law Firm, of Florence, for Respondent.


JUSTICE BEATTY:  This Court granted a petition for a writ of certiorari to review the decision in Fairchild v. South Carolina Department of Transportation, 385 S.C. 344, 683 S.E.2d 818 (Ct. App. 2009).  The Court of Appeals affirmed in part, reversed in part, and remanded for a new trial a negligence action arising from a motor vehicle accident.  In relevant part, the Court of Appeals determined (1) Marilee Fairchild’s claim for punitive damages should have been submitted to the jury, (2) the trial court should have charged the jury on the intervening negligence of a treating physician, and (3) the trial court did not abuse its discretion in denying William Leslie Palmer’s motion under Rule 35, SCRCP for an independent medical examination (IME) to be performed by Dr. James Ballenger.  We affirm.

I.  FACTS

This action arises out of a motor vehicle accident that occurred on March 1, 2001 while several vehicles were traveling south on Interstate 95 in South Carolina.

Just before the accident, James Rabb, an employee with the South Carolina Department of Transportation (SCDOT), was driving a dump truck with an attached trailer transporting a backhoe.  Rabb was traveling in the left lane of the southbound traffic (closest to the median) when he pulled in to a paved “cross-over” in the median so he could turn around and enter the northbound lanes of I-95.  While Rabb was stopped waiting for the northbound traffic to clear, the back of his trailer allegedly protruded into the left traffic lane on the southbound side.

Several cars traveling south in the left lane directly behind Rabb saw Rabb’s trailer and simultaneously switched to the right lane.  When those cars moved over, Marilee Fairchild, who was behind them driving a minivan, saw Rabb’s trailer partially blocking the left lane where she was traveling.  Fairchild “flashed” her brakes and then continued to brake while staying ahead of the vehicle behind her.  Fairchild managed to avoid Rabb’s trailer, but she was struck by a truck traveling behind her that was driven by William Leslie Palmer.

Palmer, whose truck also had an attached trailer (which contained a motorcycle), hit his brakes and swerved to the right when he came upon Fairchild.  However, Palmer struck Fairchild’s minivan, and the force of the impact with Palmer’s large vehicle caused Fairchild’s minivan to flip over and roll before landing in the median.  Rabb’s truck was not hit in the accident.

On February 26, 2003, Fairchild[1] brought this negligence action against SCDOT, Palmer, and Palmer Construction Co., alleging she sustained physical injuries and property damage in the accident.  She sought both actual and punitive damages.  Fairchild thereafter entered into a covenant not to sue with SCDOT, and SCDOT was dismissed as a party.

At trial, the jury returned a verdict in favor of Fairchild for $720,000.  Both parties appealed.  The Court of Appeals affirmed in part, reversed in part, and remanded.  We thereafter granted Palmer’s[2] petition for a writ of certiorari.

II.  LAW/ANALYSIS

A.  Punitive Damages

Palmer first argues the Court of Appeals erred in holding the trial court should have submitted Fairchild’s claim of punitive damages to the jury based on its determination that the evidence and its reasonable inferences created a factual question as to whether he had acted recklessly.

The trial court granted Palmer’s motion for a directed verdict on Fairchild’s claim for punitive damages on the basis there was noevidence of reckless conduct by Palmer.  However, the trial court did conclude that two statutes governing traffic safety were implicated in this case and charged the jury on the same.   The first, section 56-5-1520(A), provides general rules as to maximum and safe speeds and states when lower speeds may be required:

A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.  Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.  S.C. Code Ann. § 56-5-1520(A) (2006).

In addition, the trial court charged the jury on section 56-5-1930(a), which prohibits following too closely:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.  Id. § 56-5-1930(a).

The Court of Appeals found the grant of a directed verdict on the claim for punitive damages was error as the evidence and its reasonable inferences created a factual question as to whether Palmer had acted recklessly.  Fairchild, 385 S.C. at 353, 683 S.E.2d at 823.  The court agreed with Fairchild that, based on Palmer’s conduct, which included driving a large commercial truck[3]into heavy traffic just before the accident without any reduction in his rate of speed, and his alleged statutory violations, the jury should have been permitted to consider whether Palmer acted recklessly.  Id. 

Citing long-standing South Carolina precedent, the Court of Appeals held the violation of a statute constitutes negligence per se, and negligence per se is some evidence of recklessness and willfulness that requires submission of the issue of punitive damages to the jury.  Id. at 354, 683 S.E.2d at 823.  The Court of Appeals cited this Court’s decision in Wise v. Broadway, 315 S.C. 273, 433 S.E.2d 857 (1993) as well as additional authorities to this effect:

Wise v. Broadway, 315 S.C. 273, 276, 433 S.E.2d 857, 859 (1993) (“The causative violation of a statute constitutes negligence per se and is evidence of recklessness and willfulness, requiring the submission of the issue of punitive damages to the jury.”); Rhodes v. Lawrence, 279 S.C. 96, 97-98, 302 S.E.2d 343, 344 (1983) (“In these circumstances, a jury question as to punitive damages was clearly presented given the well settled rule that a showing of statutory violation can be evidence of recklessness and willfulness.”); Austin v. Specialty Transp. Servs., Inc., 358 S.C. 298, 314, 594 S.E.2d 867, 875 (Ct. App. 2004) (“A factual question as to punitive damages is presented when there is evidence of a statutory violation.”).

Id.   The Court of Appeals noted “[t]hese cases limit their holdings to creating a jury question only and not recklessness per se.”  Id.  The court referenced the express limitation pronounced by this Court in Wise:

Violation of a statute does not constitute recklessness, willfulness, and wantonness per se, but is some evidence that the defendant acted recklessly, willfully, and wantonly.  It is always for the jury to determine whether a party has been reckless, willful, and wanton.  However, it is not obligatory as a matter of law for the jury to make such a finding in every case of a statutory violation.

Id. at 354, 683 S.E.2d at 823-24 (quoting Wise, 315 S.C. at 276-77, 433 S.E.2d at 859 (internal citations omitted)).

The Court of Appeals concluded that there was evidence Palmer was negligent per se in causing the accident, which consisted of following another vehicle too closely and speeding; consequently, a jury could have found Palmer violated sections 56-5-1930(a) and 56-5-1520(A), and the finding of a statutory violation may be considered by the jury as evidence of recklessness.  Id. at 357, 683 S.E.2d at 825.  As a result, the court reversed the grant of a directed verdict on punitive damages and remanded for a new trial. Id.

On appeal to this Court, Palmer asserts this was error, and that “evidence of a statutory violation alone, without more, is generally insufficient to send the issue of punitive damages to the jury.”  He contends the two statutes at issue codify the common law standards for safe speeds and following distances, and they do not establish bright-line standards; therefore, they should not form the basis for an award of punitive damages without other supporting evidence.

In reviewing a ruling on a motion for a directed verdict, this Court must view the evidence and all reasonable inferences from the evidence in the light most favorable to the party opposing the motion.  Weir v. Citicorp Nat’l Servs., Inc., 312 S.C. 511, 435 S.E.2d 864 (1993).  A case should be submitted to the jury when the evidence is susceptible of more than one reasonable inference. Unlimited Servs., Inc. v. Macklen Enters., Inc., 303 S.C. 384, 401 S.E.2d 153 (1991).   It is not the duty of the trial court to weigh the testimony in ruling on a motion for a directed verdict.  Young v. Bost, 241 S.C. 289, 128 S.E.2d 118 (1962).

Punitive damages are recoverable where there is evidence the defendant’s conduct was reckless, willful, or wanton.  Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986).  Recklessness is the doing of a negligent act knowingly; it is a conscious failure to exercise due care, and the element distinguishing actionable negligence from a willful tort is inadvertence.  Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011).  The terms “willful” and “wanton” when pled in a negligence action are synonymous with “reckless” and import a greater degree of culpability than mere negligence.  Id. at 288, 709 S.E.2d at 612.  “Evidence that the defendant’s conduct breached this higher standard entitles the plaintiff to a charge on punitive damages.”  Id. (quoting Marcum v. Bowden, 372 S.C. 452, 458 n.5, 643 S.E.2d 85, 88 n.5 (2007)); see also S.C. Code Ann. § 15-33-135 (2005) (“In any civil action where punitive damages are claimed, the plaintiff has the burden of proving such damages by clear and convincing evidence.”).

“Ordinarily, the test is whether the tort has been committed in such a manner or under circumstances that a person of ordinary reason or prudence would have been conscious of it as an invasion of the plaintiff’s rights.”  Cartee, 290 S.C. at 337, 350 S.E.2d at 390.  “The test may also be satisfied by evidence of the causative violation of an applicable statute.”  Id.  “However, before punitive damages may be submitted to the jury, there must be evidence the statutory violation proximately contributed to the injury.”  Id.  “Ordinarily, whether or not the statutory violation contributed as a proximate cause to the injury is a question for the jury.”  Id.

“There must be some inference of a causal link between the statutory violation and the injury to warrant submitting the issue of punitive damages to the jury.”  Id. at 337-38, 350 S.E.2d at 390.  For example, in Cartee the Court noted that if, in a case by beneficiaries against trustees for mismanaging assets, the trustees had been guilty of driving without their driver’s licenses, they would have been guilty of violating a statute; however, that violation could have nothing to do with the injuries claimed by beneficiaries and would not justify a charge on punitive damages because “[s]ome inference of causation must be shown.”  Id. at 338 n.3, 350 S.E.2d at 390 n.3; see also Austin v. Specialty Trans. Servs., Inc., 358 S.C. 298, 594 S.E.2d 867 (Ct. App. 2004) (stating the causative violation of a statute constitutes negligence per se and is evidence of recklessness and willfulness, requiring submission of the issue of punitive damages to the jury).

In Copeland v. Nabors, 285 S.C. 340, 329 S.E.2d 457 (Ct. App. 1985), the Court of Appeals found the record contained evidence from which the jury could have inferred that Nabors violated one or more statutes relating to maximum speed limits and to overtaking and passing vehicles proceeding in the same direction and that Nabors thereby engaged in conduct warranting an award of punitive damages.  Likewise, in Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15 (1956), this Court found evidence of the violation of at least three applicable traffic statutes, which resulted in a traffic collision, warranted the submission of punitive damages to the jury.  We stated, “The violation of an applicable statute is negligence per se, and whether or not such breach contributed as a proximate cause to [the] plaintiff’s injury is ordinarily a question for the jury.”  Id. at 44, 94 S.E.2d at 18 (citation omitted).  We observed that “[c]ausative violation of an applicable statute constitutes actionable negligence and is evidence of recklessness, willfulness and wantonness.”  Id. at 46, 94 S.E.2d at 19 (citing Morrow v. Evans, 223 S.C. 288, 295, 75 S.E.2d 598, 601 (1953)); accord Padgett v. Colonial Wholesale Dist. Co., 232 S.C. 593, 103 S.E.2d 265 (1958); Vernon v. Atlantic Coast Line R. Co., 221 S.C. 376, 70 S.E.2d 862 (1952); Ralls v. Saleeby, 178 S.C. 431, 182 S.E. 750 (1935); Lumpkin v. Mankin, 136 S.C. 506, 134 S.E. 503 (1926).

In Daniels v. Bernard, 270 S.C. 51, 240 S.E.2d 518 (1978), this Court held that testimony that a witness saw two vehicles traveling north on Highway 52, that Bernard’s vehicle was trailing the vehicle driven by Daniels and gaining on Daniels’s vehicle, and that the Bernard automobile rammed into the rear of Daniels’s vehicle was evidence from which the jury could have reasonably inferred that Bernard was following too closely and was failing to maintain a proper lookout.  Id. at 55, 240 S.E.2d at 519-20.  The Court noted following too closely was a violation of section 56-5-1930 and “the violation of a statute is negligence per se and is evidence of recklessness and willfulness, requiring the submission of the issue of punitive damages to the jury.”  Id. at 55, 240 S.E.2d at 520 (citing Jarvis v. Green, 257 S.C. 558, 186 S.E.2d 765 (1972) and Still v. Blake, 255 S.C. 95, 177 S.E.2d 469 (1970)).  The DanielsCourt concluded the trial court erred in holding there was no evidence of recklessness to sustain an award for punitive damages. Id. at 56, 240 S.E.2d at 520.

Similarly, in the current appeal, we find the trial court erred in granting a directed verdict on the issue of punitive damages.  It is not the duty of a trial court to weigh the evidence.  Viewing the evidence and its reasonable inferences in the light most favorable to Fairchild, as both the trial court and this Court are required to do, we hold there is evidence to create a jury question as to whether or not Palmer acted with recklessness, thus requiring submission of the issue of punitive damages to the jury.

Palmer was driving a commercial-sized truck, towing a 28-foot trailer, and hauling a motorcycle, and his combined weight exceeded eight and one-half tons.  Palmer knew he was approaching an area of merging traffic and possible congestion on I-95 near several rest areas, and he acknowledged that it was an area “where a lot of accidents happen.”  Palmer further described the traffic around his truck prior to the collision as “typical crazy interstate 95 traffic, you know, everybody running together.”  He also was aware of the potential that traffic could slow down to a crawl due to a wreck or other conditions, and he knew of the need to maintain a safe stopping distance for such a large vehicle.

Palmer acknowledged that he maintained a “pretty steady speed” of 65 to 70 miles per hour to avoid “giving distance” that would let other vehicles cross into his lane ahead of him.  He also stated he was “maybe a hundred feet or more” behind Fairchild when she first applied her brakes.  Palmer maintained he did not even notice Fairchild until right before the impact.

We further agree with the Court of Appeals that there is evidence that Palmer might have violated section 56-5-1520(A) (circumstances requiring a reduction in speed) and section 56-5-1930(a) (following too closely), and there is an inference that the violations of these statutes were the proximate cause of the accident.  Therefore, Fairchild’s claim for punitive damages should have been submitted to the jury.

Moreover, even where the trial court has submitted the issue of punitive damages to a jury, the defendant still has an opportunity to challenge the propriety of any resulting punitive damages award.  The trial court has the authority to review the punitive damages award and if the court finds the award is inappropriate or excessive, it has the discretion to order a new trial or remittitur.  See generally Mitchell v. Fortis Ins. Co., 385 S.C. 570, 686 S.E.2d 176 (2009) (stating a reviewing court should consider the following set of factors in conducting a post-judgment review of an award of punitive damages:  (1) the degree of reprehensibility of the defendant’s conduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the amount of the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases).

B.  Intervening Negligence of Third Party 

Palmer next contends the Court of Appeals erred in determining the trial court should have charged the jury on the intervening negligence of a third party.

Fairchild submitted three proposed instructions (Plaintiff’s Requests to Charge #11, #12, & #13) regarding intervening negligence, which included several variations on the following principles:

The intervening negligence of a third party will not excuse the original wrongdoer if such intervention ought to have been foreseen in the exercise of due care.

It is the law in South Carolina that the negligence of a treating doctor is reasonably foreseeable.  It is the general rule that if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of the doctor as part of the immediate and direct damages which naturally flow from the original injury.

The trial court declined to give the requested instructions on the basis there was no evidence of negligent treatment by an attending physician.

The Court of Appeals held this was error, noting that during the trial Palmer had stressed the side effects of the drugs prescribed for Fairchild during treatment for her injuries and had suggested that she was overmedicated.  Fairchild, 385 S.C. at 352, 683 S.E.2d at 822.  Palmer had implied that the overmedication, rather than his own negligence, was the source of many of Fairchild’s ailments. Id.  The Court of Appeals additionally noted that, to support this theory, “Palmer called and questioned several doctors and nurses to discuss Fairchild’s course of treatment.”  Id.  The Court of Appeals found that “[t]he following statement by [Palmer’s] counsel made during closing arguments, in particular, was convincing that the charges were relevant:  ‘So ask yourself, is it the chronic post-traumatic headache that is the disabling headache, or is it the medication over-use that is the disabling headache?’ ”  Id. at 352, 683 S.E.2d at 822-23.  The court concluded it was error to refuse to give the requested instruction and further found that, “given the jury’s verdict and the amount of damages at issue,” the ruling could have impacted the jury’s verdict, resulting in prejudice.  Id. at 352, 683 S.E.2d at 823.

Palmer acknowledges that the proposed charges correctly state the current law in South Carolina,[4] but maintains there were no references made at trial to a negligent act or omission by a treating physician.  Palmer also states that he did not seek a charge on whether the intervening negligence of a third party severed the causal connection between Palmer’s negligence and Fairchild’s injury, and this is an affirmative defense, citing Small v. Pioneer Machinery, Inc., 316 S.C. 479, 450 S.E.2d 609 (Ct. App. 1994) (holding the defense of a third-party’s intervening acts of negligence does not break the causal chain if the acts are foreseeable).

“Ordinarily, a trial judge has a duty to give a requested instruction that correctly states the law applicable to the issues and evidence.”  Ross v. Paddy, 340 S.C. 428, 437, 532 S.E.2d 612, 617 (Ct. App. 2000).  “Where a request to charge is timely made and involves a controlling legal principle, a refusal by the trial judge to charge the request constitutes reversible error.”  Id.  “Moreover, when general instructions to the jury are insufficient to enable the jury to understand fully the law of the case and issues involved, a refusal to give a requested charge is reversible error.”  Id.

It is the court’s duty to instruct the jury on the law, and “[t]he jury ought not to be left to cut a way through the woods with no compass to guide it.”  Collins-Plass Thayer Co. v. Hewlett, 109 S.C. 245, 253-54, 95 S.E. 510, 513 (1918), cited in Eaddy v. Jackson Beauty Supply Co., 244 S.C. 256, 259, 136 S.E.2d 297, 298 (1964).

To warrant reversal, the refusal to give a requested jury charge must be both erroneous and prejudicial.[5]  Cole v. Raut, 378 S.C. 398, 663 S.E.2d 30 (2008); Pittman v. Stevens, 364 S.C. 337, 613 S.E.2d 378 (2005); Jones v. Ridgely Commc’ns, Inc., 304 S.C. 452, 405 S.E.2d 402 (1991); Daves v. Cleary, 355 S.C. 216, 584 S.E.2d 423 (Ct. App. 2003); Merritt v. Grant, 285 S.C. 150, 328 S.E.2d 346 (Ct. App. 1985).

We find the charge requested by Fairchild was necessary to allow the jury to properly evaluate proximate cause and resulting damages, and its omission resulted in prejudice to Fairchild.  There was an abundance of testimony elicited by Palmer on the allegation that overmedication by Fairchild’s physicians was a possible cause of many of Fairchild’s ailments.  Palmer’s message throughout the trial was that he should not be held responsible for any resulting symptoms in Fairchild that might have been caused by or exacerbated by overmedication or the treatment of Fairchild’s physicians.

For example, Palmer called Dr. James Ballenger, a psychiatrist, as an expert witness for the defense.  Dr. Ballenger testified “that the most likely reason [Fairchild’s] headaches got so much worse from ’02 to at least ’05 or maybe into ’06, was that . . . a decision was made to go into big-time medications.  Oxycontin was the first one.”  (Emphasis added.)  He opined that Fairchild’s difficulties were likely linked to “rebound headache syndrome . . . meaning you have the headache; you take very strong medicines; it goes away, it comes out of your system, and you get a headache ultimately caused by taking the medicine.”  Although Palmer also states there was testimony that the overmedication could also be based on Fairchild’s own conduct, the implication here clearly was that a treating physician made the decision “to go into big-time medications” and that this was not the best course of treatment.  Palmer also called Dr. Robert Richey, an internist who had treated Fairchild.  Dr. Richey asserted Fairchild “was on a cornucopia of medicine,” and he expressed reservations about several drugs, including Sulfasalazine and Indocin, prescribed by Fairchild’s other physicians and he detailed the potential side effects from these drugs.

Further, in cross-examining Fairchild’s witnesses, Palmer repeatedly questioned the type of medical treatment she had received and whether she had suffered adverse effects, such as increased pain and medical “intoxication,” from the prescribed treatment.  The clear purpose of Palmer’s repeated line of questioning in this regard was to reduce the assessment of damages by distinguishing any harm he believed was caused by Fairchild’s medical treatment and alleged overmedication from any harm he allegedly caused in the motor vehicle collision.

Under these particular circumstances, where Fairchild’s treatment and medical condition were the focus of so much of the testimony, the charge should have been given to avoid confusion for the jury and to aid it in properly evaluating proximate cause and damages.  We agree with the Court of Appeals that the failure to give the requested charge was error warranting reversal.  See, e.g., Eaddy, 244 S.C. at 259, 136 S.E.2d at 298 (concluding where the request to charge was of a controlling principle of law and was timely made, the refusal of the charge was error requiring reversal and a new trial).

C.  Palmer’s Motion for an IME by Dr. James Ballenger   

Palmer next contends the Court of Appeals erred in holding the trial court did not abuse its discretion in denying his motion for an IME to be performed by Dr. James C. Ballenger.

Palmer filed a pretrial motion, pursuant to Rule 35 of the South Carolina Rules of Civil Procedure, for an IME to be performed on Fairchild by Dr. Ballenger.  Dr. Ballenger is a psychiatrist who had been retained by Palmer as an expert witness regarding Fairchild’s alleged injuries.

Fairchild did not oppose an IME, but objected to Dr. Ballenger being designated the examining physician because he had a pre-existing relationship with Palmer.  Specifically, Fairchild asserted the following:  (1) some four months earlier, Palmer had named Dr. Ballenger as an expert witness for the defense and had paid him a retainer; (2) Dr. Ballenger had already examined some of Fairchild’s medical records that were sent to him by Palmer; (3) Dr. Ballenger had already formed opinions about her condition prior to an IME; (4) Dr. Ballenger was expected to testify as a defense witness at trial; and (5) Dr. Ballenger had been referred to Palmer by another expert who had also been retained by Palmer to question the extent of Fairchild’s injuries.

The trial court denied Palmer’s motion to have Dr. Ballenger perform an IME.  The trial court found Dr. Ballenger’s prior work on Fairchild’s case as a retained expert for the defense and the fact that Palmer had sent Dr. Ballenger not only Fairchild’s medical records, but also the transcripts of depositions of some of Fairchild’s treating physicians in advance of his request for an IME, formed the basis for a reasonable objection to the appointment of Dr. Ballenger.  The trial court further stated that, upon being instructed to submit a list of alternative physicians for the court to consider for the IME, Palmer had informed the court that he was unwilling to pay for an examination to be made by any physician other than Dr. Ballenger.  The trial court concluded that, “given this election by [Palmer], [it was] left with no alternative other than to deny the motion.”

The Court of Appeals determined the trial court did not abuse its discretion in denying Palmer’s motion to have Dr. Ballenger perform an IME on Fairchild.  Fairchild, 385 S.C. at 360, 683 S.E.2d at 827.  Palmer argues this was error, as Fairchild did not assert a “reasonable objection” under Rule 35(a), SCRCP to the appointment of Dr. Ballenger.  Palmer contends a physician’s prior relationship with the defendant and his or her familiarity with the case should not preclude the physician from being selected by the defendant to perform the examination.[6]  Both parties have observed that there are no South Carolina decisions specifically addressing the provision for a “reasonable objection” under Rule 35(a), SCRCP.

“In interpreting the meaning of the South Carolina Rules of Civil Procedure, the Court applies the same rules of construction used to interpret statutes.”  Maxwell v. Genez, 356 S.C. 617, 620, 591 S.E.2d 26, 27 (2003).  “If a rule’s language is plain, unambiguous, and conveys a clear meaning, interpretation is unnecessary and the stated meaning should be enforced.”  Id.see also Stark Truss Co. v. Superior Constr. Corp., 360 S.C. 503, 508, 602 S.E.2d 99, 102 (Ct. App. 2004) (stating where the language of a court rule is clear and unambiguous, the court is obligated to follow its plain and ordinary meaning without resort to forced construction to limit or expand the rule); cf. Muci v. State Farm Mut. Auto. Ins. Co., 732 N.W.2d 88, 93 (Mich. 2007) (“The interpretation of court rules and statutes presents an issue of law that is reviewed de novo.”).

A trial court’s rulings in matters related to discovery generally will not be disturbed on appeal in the absence of a clear abuse of discretion.  Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Creighton v. Coligny Plaza Ltd. P’ship, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998).  An abuse of discretion occurs when the trial court’s order is controlled by an error of law or when there is no evidentiary support for the trial court’s factual conclusions.  Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 681 S.E.2d 885 (2009).

Rule 35 of the South Carolina Rules of Civil Procedure governs requests for physical and mental examinations and provides in relevant part as follows:

In any case in which the amount in controversy exceeds $100,000 actual damages, and the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.  The order may be made only on motion for good cause shown . . . .

The physician of the party to be examined may be present at the examination.  Unless the parties agree, or the court for good cause shown determines otherwise, the examination shall be in the county where the person to be examined, or his physician, resides.  . . .  Upon reasonable objection to the physician designated to make the examination, and if the parties shall fail to agree as to who shall make the examination, the court may designate a physician; but the fact that a physician was so designated shall not be admissible upon the trial.

Rule 35(a), SCRCP (emphasis added).  The official Notes to Rule 35(a), SCRCP observe that the first paragraph of Rule 35(a) is based on the Federal Rule on this subject, but the second paragraph is not included in the Federal Rule.  The second paragraph was specifically added by this Court to establish limits on the use of this procedure.[7]

Under the plain language of Rule 35(a), the defendant clearly does not have the right to unilaterally select the examining physician; rather, the court alone has the right to make the appointment.  The rule contemplates that the parties will confer on this point to make suggestions, but where a “reasonable objection” has been interposed and the parties cannot agree, the court will make the selection.  See Rule 35(a), SCRCP (providing upon reasonable objection and “if the parties shall fail to agree as to who shall make the examination, the court may designate a physician”); see also Rule 11(a), SCRCP (stating motions should generally contain an affirmation that the movant’s counsel communicated with opposing counsel prior to filing the motion to make a good faith effort to resolve the matter).

A “reasonable objection” in this context simply means the reason for the objection must not be frivolous.  What is reasonable will depend on the individual facts and circumstances of the case, which is precisely why the determination of this matter, as in other discovery and evidentiary disputes, is best left to the sound discretion of the trial court.  See generally LeBlanc v. Cambo, 223 A.2d 311 (Conn. C.P. 1966) (observing what is a reasonable objection to a particular physician named to perform a physical examination is a matter that must of necessity be left to the trial court’s inherent discretion).

The purpose of the rule for an IME is to materially aid the jury, not just the defendant, in evaluating the actual damages sustained and arriving at a just verdict.  This purpose was recognized long before South Carolina law permitted such examinations.  See Best v. Columbia Elec. St. Ry., Light & Power Co., 85 S.C. 422, 428, 67 S.E.1, 3 (1910) (Woods, J., dissenting) (stating nothing can be more helpful to the jury in reaching a just estimate of the damages in a personal injury suit than knowledge of the true nature of the injury, and whenever it appears to the circuit court that an examination by impartial experts would materially aid the jury, the circuit court should order such examination to be made by disinterested experts).  Thus, the better rule is that the physician should not be affiliated with either party in order to serve the purposes of Rule 35.

In Richardson v. Johnson, 444 S.W.2d 708, 710 (Tenn. Ct. App. 1969), the Tennessee court, echoing these sentiments, listed a series of guidelines regarding court-ordered physical examinations, including, “The physician must be selected by the court, not the defendant, and must be competent and disinterested.”  The court stated “it is clear that the power so vested in the court is a discretionary power, and not an absolute right in the applicant, and that the physician or physicians so appointed act as officers of the court, and not as agents of either party.”  Id. at 712.  The court further observed that where claims concern injuries or disabilities that are based upon the subjective complaints of the plaintiff, “an impartial physician may have objective means of testing the subjective claims of the plaintiff[.]”  Id. As is further explained in a case from a Missouri court:

The law invests the trial court with authority to appoint physicians to make [a] physical examination of the plaintiff in a physical injury suit.  The defendant cannot demand it as a matter of right, but the court in its discretion may do it in the furtherance of justice.  When the court makes such an appointment, [it] does so because [it] determines in [its] discretion that the case calls for the opinion of disinterested and unbiased physicians, not friends of either parties, whose testimony is likely to be biased.

Atkinson v. United Rys. Co., 228 S.W. 483, 485 (Mo. 1921) (emphasis added) (internal citations omitted).  The Missouri court also recognized that a “court could not compel [a] plaintiff to submit to [a physical] examination by the witnesses for the other side,” and “[t]he physicians appointed in such cases are the officers of the court.”  Id.

In the current appeal, the finding of the trial court that Fairchild had interposed a reasonable objection to Dr. Ballard’s designation as the examining physician was a proper exercise of the trial court’s inherent discretion to rule on discovery matters and is amply supported by the record.  Dr. Ballenger was retained as a defense witness and had reviewed not only Fairchild’s medical records, but also the deposition testimony of other potential witnesses, and it was alleged that he had already formed adverse opinions regarding Fairchild’s injuries before the IME was requested.[8]  Under the circumstances present here, we agree with the Court of Appeals that Palmer has shown no abuse of discretion in this regard.

IV.  CONCLUSION

We affirm the decision of the Court of Appeals, which found reversible error in the trial court’s failure to submit the issue of punitive damages to the jury and to charge the jury on the intervening negligence of a treating physician, and found the trial court did not abuse its discretion in denying Palmer’s motion for an IME to be performed by Dr. Ballenger.

AFFIRMED.

TOAL, C.J., PLEICONES, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.

[1]  Fairchild’s husband was also a plaintiff, but he is not a party to this appeal.

[2] “Palmer” shall also include his construction company, where applicable.

[3]  Palmer’s truck weighed 13,740 pounds, the trailer weighed 2,760 pounds, and the motorcycle he was transporting was 655.6 pounds.

[4]  See, e.g., Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (1984); Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978).

[5]  The Court of Appeals correctly cited this standard in its opinion.  However, Palmer takes issue with one case the court cited,Wells v. Halyard, 341 S.C. 234, 237, 533 S.E.2d 341, 343 (Ct. App. 2000), which states:  “An alleged error is harmless if the appellate court determines beyond a reasonable doubt that the alleged error did not contribute to the verdict.”  Palmer contends the “beyond a reasonable doubt” reference is a criminal standard that is not applicable in this civil case.  We agree, but find the citation to Wells did not affect the propriety of the conclusion reached by the Court of Appeals in Fairchild.

[6]  Palmer cites, e.g., Timpte v. District Court, 421 P.2d 728, 729 (Colo. 1966) (“So long as a plaintiff may select his own doctor to testify as to his physical condition, fundamental fairness dictates that a defendant shall have the same right, in the absence of an agreement by the parties as to who the examining physician will be.”).  The Timpte case applying Colorado state court rules, as well as other authority cited by Palmer applying Rule 35 of the Federal Rules of Civil Procedure, are inapposite because those rules do not contain the same provision present in Rule 35(a), SCRCP.  Further, we do not agree that a plaintiff chooses his or her own physician.  See John E. Parker & Jack L. Nettles, Automobile and Truck Accidentsin 1 The South Carolina Practice Manual199 (William Howard, Sr. & E. Warren Moise eds., 2000) (noting the plaintiff usually did not choose his or her physician; instead, treatment was provided by the physician on call at the hospital or the person was referred to the physician by another physician).

[7]  A somewhat similar procedure exists under workers’ compensation law, which allows the appointment of “a disinterested and duly qualified physician or surgeon” to examine the injured claimant.  S.C. Code Ann. § 42-17-30 (Supp. 2011).

[8]  Fairchild notes that, immediately after the denial of the motion for an IME, Palmer supplemented his discovery responses with a listing of adverse opinions regarding Fairchild’s injuries that Dr. Ballenger planned to testify to at trial.  Thus, Dr. Ballenger must have already formed these adverse opinions prior to the time an IME could have been scheduled.  Further, Dr. Ballenger did testify at trial as a defense witness for Palmer in accordance with these adverse opinions.

 

SC DUI Attorney – What Juries Really “See” When They “Hear” DUI

This recent article shows how dangerous truly impaired drivers can be. Here, the DUI suspect lost control of his vehicle, striking a marked police car first and then a building. High speed in conjunction with drunk driving can be fatal and cause serious damage to innocent drivers and pedestrians. Sadly, anyone charged, whether guilty or not, is associated with the pictures below. The public now has an implanted image of what “drunk drivers” can do, and frankly, it scares all of us.

As a DUI criminal defense attorney with Reeves, Aiken & Hightower LLP, the first thing that has to be done at trial is to “reset” the jury to understand that our clients are “presumed innocent” and that cases like the one below almost never go to trial. Instead, our clients are everyday people who have had a drink with dinner, or a beer with friend, but are perfectly safe to drive. Because of news stories like the one below, police are aggressively arresting virtually anyone who has alcohol on their breath when stopped for any reason. At checkpoints, they may say they are looking for license and registration infractions, but they are really there to arrest “drunk drivers.” You can be certain that if they smell “alcohol on or about (your) person,” you are going to spend the night in jail no matter what you do or say at that point. If you decline to participate in field sobriety tests, you will be arrested. If you attempt these awkward tests, you will invariably fail and be put in the back of the police car. You get the idea.

If arrested for a SC DUI, it is critical that you retain an experienced DUI attorney who focuses their criminal practice on this specialized area. We would also recommend that you look at firms with former DUI prosecutors as these individuals have unique insights on how to address the various legal issues raised. At Reeves, Aiken & Hightower LLP, our criminal defense lawyers are seasoned trial attorneys. With over 70 years combined litigation experience. Please visit our website www.rjrlaw.com to find out more about our lawyers. Compare our attorneys’ credentials to any other law firm. Then call us at 877-374-5999 for a confidential consultation of your case.

Recent DUI crashes lead to weekend checkpoints

Posted: Jan 27, 2012 6:11 PM ESTUpdated: Feb 06, 2012 6:11 PM EST
Car crashed into Greek Boys restaurant (Source: CPD)Car crashed into Greek Boys restaurant (Source: CPD)

Police car from crash at Sumter and Hampton streets (Source: CPD)Police car from crash at Sumter and Hampton streets (Source: CPD)

Police car from crash at Sumter and Hampton streets (Source: CPD)Police car from crash at Sumter and Hampton streets (Source: CPD)

COLUMBIA, SC (WIS) – Columbia-area police agencies are teaming up to operate DUI safety checkpoints this weekend following a string of recent DUI-related crashes.

Officers from Columbia Police, University of South Carolina Police Department and the South Carolina Highway Patrol  will focus their efforts on areas throughout Columbia where DUI related collisions and offenses have occurred.  Those areas include the Vista, Five Points, and along main roadways like Assembly Street, Elmwood Avenue, Gervais Street, Huger Street and Blossom Street.

The checkpoints run from Friday night through Sunday night.

Officers will be looking for impaired drivers, drivers license violations and checking child safety seats.

Columbia Police Chief Randy Scott says in the past several months, five Columbia police officers have been hit by drunk drivers.

Two crashes occurred last weekend. Fort Jackson Military Police Officer Joshua Waters was charged with DUI and open container after investigators say he crashed into a police cruiser at Sumter and Hampton Streets in downtown Columbia Saturday morning.  After hitting the police car, investigators say Waters’ vehicle crashed into the Greek Boys Restaurant on Sumter Street.

And Sunday, a suspected drunk driver crashed into a police officer at the intersection of Gervais and Washington Streets.

The officers involved in those wrecks were treated at local hospitals.  None of them sustained serious injuries.

Copyright 2012 WIS.  All rights reserved.


Charlotte DWI Lawyer – Implied Consent Warnings – Non-English Speaking Defendants – Part II

Below is the second part of the thought provoking article by Ms. Denning addressing whether due process requires that implied consent warnings be advised in a defendant’s native language in order to assure understanding of same. Ironically, the relatively simple question has no current appellate answer. Common sense has taken a backseat to legal analysis. That which would appear rhetorical has countervailing arguments and strong positions for both sides. Of course, we forget that there are other countries represented in immigration matters besides hispanic. Certainly, people from central and latin america are the predominant immigrants to the United States, but there are other nationalities involved as well. It would seem, nevertheless, in this enlightened computer age that use of a language converter program easily available on the internet could translate the implied consent warnings into virtually any dialect and provide defendants with fair notice of their rights. Only lawyers take the simple and make it unnecessarily complex.

The criminal defense attorneys of Reeves, Aiken & Hightower LLP provide aggressive representation of those individuals accused on a crime. Our primary focus in criminal court is DWI, but we also routinely fight charges of DWLR, CDV, drug offenses, as well as all NC traffic violations. Our lawyers are available to speak with you directly, and we have spanish-speaking staff onsite to help our non-English speaking clients. For more information about our firm, please visit www.rjrlaw.com. Compare our attorneys’ credentials to any other law firm. Then call us for a private, confidential consultation at 704-499-9000.

Providing Notice of Implied Consent Rights to Persons Who Do Not Speak English (Part II)

February 2nd, 2011

By Shea Denning

Part I of this post left for another day consideration of whether a defendant who does not speak English may be deemed to have willfully refused a chemical analysis when notice of the implied consent rights is provided only in English and whether providing notice only in English may violate such a defendant’s constitutional rights. That day has arrived. [Editor’s note: already!]

Rather than considering notice of implied consent rights as properly provided when the rights are read as set out in the statute, even if they are read in English to a non-English speaking defendant, the appropriate focus may be upon whether the officer used reasonable methods to convey those warnings. The Supreme Court of Wisconsin in State v. Piddington, 623 N.W.2d 528 (Wis. 2001), employed such an approach to determine whether an officer appropriately conveyed implied consent warnings to a deaf defendant. The Supreme Court of Iowa adopted the Piddington approach in State v. Garcia, 756 N.W.2d 216 (Iowa 2008), determining that the officer in that case used reasonable methods to convey implied consent warnings to a defendant who understood limited English.

If reasonableness is the touchstone, then it must require something more than stating the rights in English to a person who does not understand the language, though it may not require than an interpreter be provided in every instance. Cf. State v. Ortez, 178 N.C. App. 236, 245 (2006) (holding that grammatical errors in Raleigh Police Department’s Spanish translation of Miranda warnings did not render warnings inadequate as adequacy is determined by whether warnings reasonably convey Miranda rights). For example, providing a copy of implied consent warnings translated into Spanish for literate Spanish-speaking defendants—a practice already utilized by many chemical analysts—may be sufficient. But see People v. Garcia-Cepero, 2008 WL 4681928 (N.Y. Super. Ct. October 23, 2008) (holding that a defendant who did not speak English was not provided warnings about taking a breath test in “clear and unequivocal language,” even though the defendant, who spoke Spanish, was shown a video in which the warnings were translated into Spanish). Utilization of a telephonic interpreter service, such as that provided for use of judicial officials by the Administrative Office of the Courts, also might be a reasonable option for conveying the warnings, if such a service was available. Evaluation of the reasonableness of the warnings requires consideration of the fact that alcohol dissipates from breath and blood over time and that the very purpose of the implied consent law is to facilitate the gathering of evidence as to a defendant’s alcohol concentration. See Piddington, 623 N.W.2d at 542. Thus, it may be unreasonable for the State to delay testing for hours awaiting the arrival of an interpreter.

Is it a violation of the constitutional right to equal protection under the law for the State to provide notice of implied consent rights solely in English since non-English speaking defendants, unlike their English-speaking counterparts, are unable to understand the warnings? State supreme courts in Georgia and Illinois have held that it is not. SeeRodriguez v. State, 565 S.E.2d 458 (Ga. 2002); People v. Wegielnik, 605 N.E.2d 487 (Ill. 1992). The implied consent statutes in Georgia and Illinois, like North Carolina’s, are silent regarding the language in which the warnings must be given. Thus, the statutes, on their face, create no classification differentiating among similarly situated persons. Noting that a facially neutral statute violates equal protection only when enacted or applied with a discriminatory purpose, Rodriguez and Wegielnik determined that the defendant had failed to demonstrate any such discriminatory purpose.

Rodriguez further held that even if Georgia’s implied consent law does classify defendants based upon whether they speak English, it nevertheless is constitutional. In so holding, Rodriguez rejected the notion that a classification based on language is a proxy for a suspect classification, such as one based on national origin. Other courts likewise have rejected this argument. See Flores v. Texas, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995) (en banc) (rejecting defendant’s argument that different treatment based on his inability to speak English is equivalent to discrimination based on race or national origin); Kustura v. Department of Labor and Industries, 175 P.3d 1117, 1132-33 (Wash. App. 2008) (“While there is some authority that singling out speakers of a particular language merits strict scrutiny, no case had held that the provision of services in the English language amounts to discrimination against non-English speakers based on ethnicity or national origin.”). Because language classification is not a suspect classification, the Rodriguez court determined that the statute need only survive rational basis review, a test it easily met on the bases that reading rights in English informs most drivers, providing notice of rights in each driver’s native language would impose severe administrative costs, and waiting for an interpreter could delay obtaining a driver’s blood alcohol concentration, which dissipates over time.

The defendant in Rodriguez also argued that due process required that a driver be meaningfully advised of implied consent rights so that he or she could exercise those rights in a meaningful fashion. The court disagreed, characterizing implied consent warnings as “a matter of legislative grace,” and concluding that due process does not require that the warnings be given in a language that the driver understands. 565 S.E.2d at 462. The Weigelnik court likewise concluded that “[b]ecause due process does not require that the summary suspension warnings be given at all, it does not require that they be given in a language the defendant understands.” 605 N.E.2d at 491. This language brings to mind the North Carolina Supreme Court’s characterization of the right to refuse testing as “a matter of grace” granted by the legislature and not a constitutional right. State v. Howren, 312 N.C. 454, 457 (1984).

Garcia-Cepero , an unpublished decision of a trial judge in New York, is the only opinion I’ve discovered that deems the failure to provide an interpreter to deliver implied consent warnings in a language the defendant understands a violation of the defendant’s constitutional rights. 2008 WL 4681928. The analysis in Garcia-Cepero is muddied by the court’s finding that defendants who did not speak English were given only chemical tests, while English speakers were given field sobriety and chemical tests, and by the court’s analysis of the due process violation as one of procedural, rather than substantive, due process. Nevertheless, Garcia-Cepero merits review for its conclusion that the failure to provide an interpreter for the chemical analysis and field sobriety tests violates a defendant’s Sixth Amendment right to present a complete defense.

I previously noted that no North Carolina appellate opinions address the providing of implied consent warnings to persons who do not speak English. I’m guessing, however, that some readers have litigated this issue in district and superior court. I’d love to hear from you about how the issue was raised and resolved, whether there are procedures employed to advise non-English speakers of their rights that I have failed to mention, and your thoughts about the appropriate analysis.

Charlotte DWI Lawyer – Implied Consent Warnings – Non-English Speaking Defendants – Part I

The first of a two part article below raises and discusses an interesting point regarding implied consent warnings prior to submitting to a breathalyzer chemical analysis. With the growth of non-English speaking defendants, is there actually a right to be explained in a defendant’s native language? How many different languages would be necessary? Would interpreters be required? Currently, the NC caselaw is silent on this issue. However, Ms. Denning explores legislative intent in drafting the implied consent statute. It is an interesting debate of whether the statute just requires a robotic reading of the implied consent rights in English or whether some form of meaningful understanding is actually envisioned.

The criminal attorneys at Reeves, Aiken & Hightower LLP appreciate the subtle nuances of DWI laws and will fight to make certain the State proves each and every element required beyond a reasonable doubt. Our lawyers are aggressive trial attorneys and are not afraid to go to court. To find out more about our credentials and qualifications, please visit our firm’s website at www.rjrlaw.com. We welcome an opportunity to review your case. Call us today at 704-499-9000 and schedule a private consultation.

Providing Notice of Implied Consent Rights to Persons Who Do Not Speak English

February 1st, 2011

By Shea Denning

Several earlier posts addressed the requirement that a person arrested for an implied consent offense be informed of statutory implied consent rights before being asked to submit to a chemical analysis. Subsequent posts addressed the remedy for failure to adhere to these statutory requirements.

None of those posts, and indeed no North Carolina appellate court decision, addresses the circumstance in which a chemical analyst advises a defendant of the implied consent rights by reading them and providing a copy in writing, but the oral advice and the writing are in English, a language the defendant does not speak or comprehend.

If such a defendant submits to a chemical analysis, are the results subject to suppression at trial? What if the defendant refuses? Is the refusal admissible at trial as evidence of the defendant’s guilt?

G.S. 20-16.2 does not require that notice of implied consent rights be provided in any particular language, though the practice is to read the rights in English and provide a copy of the rights written in English. Perhaps the inquiry ends there, at least for determining whether results of a chemical analysis are admissible at trial. The argument in support of this view is that notice provided in English is provided in accordance with the statute; thus, there is no basis for suppression. This view is supported by the purpose of the warnings, which is “to provide scientific evidence of intoxication not only for the purpose of convicting the guilty and removing them from the public highways for the safety of others, but also to protect the innocent by eliminating mistakes from objective observation such as a driver who has the odor of alcohol on his breath when in fact his consumption is little or those who appear to be intoxicated but actually suffer from some unrelated cause.” Seders v. Powell, 298 N.C. 543, 552 (1979). The warnings “ensure cooperation in providing scientific evidence and avoid incidents of violence in testing by force.” Id.

Since notice is provided to secure submission to a chemical analysis rather than to procure a knowing, voluntary and intelligent waiver of rights, the statutory purposes are met when the person submits to testing, regardless of whether the person knew of the right to refuse testing. See Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830, 831 (Minn. App. 1984) (rejecting the argument of a petitioner who “willingly blew into the testing machine” that he had a statutory right to have the implied consent advisory read to him in Japanese and finding that he “understood he was being asked to take the test,” which was the only understanding required). Adherents of the view that informing a defendant of the rights in English is sufficient, regardless of the person’s subjective understanding, might further conclude that such a person can refuse testing by exhibiting a positive intention to disobey the chemical analyst’s instructions, regardless of whether the person understands the consequences of that conduct. See Martinez v. Peterson, 322 N.W.2d 386, 388 (Neb. 1982) (holding that person is required to understand only that he or she has been asked to take a test and that “[t]here is no defense to refusal that [the person] does not understand the consequences of refusal or is not able to make a reasonable judgment as to what course of action to take”).

Assuming, for now, that the arguments set forth above reflect how a North Carolina court would analyze the admissibility of a chemical analysis or evidence of refusal in a criminal trial on impaired driving charges, let’s progress to the more complicated question.  May a person who does not speak the language in which the notice of implied consent rights is provided be deemed to have willfully refused a chemical test?

Recall that a willful refusal occurs when a person (1) is aware that he or she has a choice to submit to or refuse a chemical analysis, (2) is aware of the time limit within which he or she must submit, and (3) voluntarily elects not to submit or knowingly permits the prescribed thirty minute time limit to expire before electing to submit. Etheridge v. Peters, 301 N.C. 76, 81 (1980). What does it mean for a person to be “aware” of the choice and time limit? Given that there must be probable cause to believe that a person has committed an implied consent offense—many of which require proof of impairment— before a person may be requested to submit to such a test, the legislature must have anticipated that some defendants’ abilities to understand the warnings would be compromised by their present condition. Presumably, the legislature did not intend for the very defendants whose behavior is targeted by the law to escape the sanction of a twelve-month license revocation for willfully refusing a chemical analysis.

Indeed, the state supreme court in Joyner v. Garrett, 279 N.C. 226 (1971), rejected the defendant’s contention that he was too drunk to have willfully refused the breath test, finding the officer’s testimony that defendant refused to submit saying “‘he was a taxpayer and he didn’t have to take it’” sufficient evidence of willful refusal. The officer’s testimony that he did not know whether the defendant understood what he told him did not figure in the court’s analysis. Likewise, in Rice v. Peters, 48 N.C. App. 697 (1980), the court of appeals rejected the defendant’s argument that he had not willfully refused a breath test when he refused to cooperate by speaking in “a loud and boisterous manner drowning out [the chemical analyst’s] words” and making no response when the chemical analyst said he was being marked as a refusal, notwithstanding the defendant’s assertion at the time the rights were read that he did not understand them. Explaining that the purpose of the implied-consent testing statute is fulfilled when a person is given the opportunity to submit or refuse to submit to a chemical analysis and his decision is made after having been advised of his rights in a manner provided by statute, the court held that the defendant had willfully refused by refusing to cooperate. The court did not inquire into the defendant’s subjective understanding of his rights. Thus, it would be a departure from precedent to conclude that subjective understanding of the warnings on the part of the defendant is required; moreover, such an interpretation would absurdly afford relief to the obstreperous or highly intoxicated defendant, a result the legislature surely did not intend.

If subjective understanding is not relevant and G.S. 20-16.2 does not require that implied consent rights be conveyed to a defendant in a language that he or she understands, then the matter of willful refusal isn’t any more complicated than that of refusal, discussed earlier in this post.  See, e.g., People v. Wegielnik, 605 N.E.2d 487, 491 (Ill. 1992) (finding “no meaningful distinction between a motorist who cannot comprehend the statutory warnings because of injury or intoxication, and one who does not understand them due to insufficient English language skills.”). Yet I wonder whether our courts would view lack of understanding resulting from a language barrier differently from lack of understanding caused by intoxication or belligerence.  See, e.g., People v. Garcia-Cepero, 2008 WL 4681928 (N.Y. Sup. Ct. October 23, 2008) (distinguishing case of a defendant who does not speak or understand English from that of a person too intoxicated to understand implied consent warnings). Moreover, might our courts find a constitutional violation in the failure to afford non-English speaking defendants notice of implied consent rights?  Part II of this Post will explore these issues.

SC Workers’ Compensation Attorney – Use of Interpreters / Translators at Hearings

Recognizing the growing influx of immigrants into our State, the Commission is currently developing guidelines for the use of interpreters and translators. More and more agricultural and production workers are from foreign countries, and injuries are starting to be reported. As many of these employees are here illegally, their accidents, many times serious, go unreported for fear of deportation. However, there has been a significant and increasing number of foreign worker claims. In order to adjudicate same, interpreters and translators become necessary to ensure a fair hearing and due process.

The attorneys of Reeves, Aiken and Hightower LLP have two full-time hispanic paralegals ready to help answer questions from foreign workers injured on-the-job here is SC. With over 22 years of workers’ compensation experience, 7 as an insurance defense attorney, Robert J. Reeves is a seasoned trial lawyer who has successfully represented almost every type of serious injury case. He is also a former intensive care unit Registered Nurse (RN) and understands complex injuries and the impact on you as well as your family. We welcome an opportunity to meet with you and personally review your situation. Please review our attorneys’ credentials at www.rjrlaw.com. Then, call us today at 877-374-5999 for a private consultation.

SCWCC Accepts Administrative Guidelines for Interpreters / Translators

At the South Carolina Workers’ Compensation Commission’s recent regular business meeting, the SCWCC accepted administrative guidelines for the use of interpreters and translators in workers’ compensation proceedings. The guidelines are intended to ensure translators and interpreters render complete and accurate translation or interpretation without altering, omitting or adding anything to what is said or written by a witness. The guidelines are for administrative purposes only. It is not the intent of the Commission to propose the guidelines as a new regulation of statute.

The guidelines provide:

All parties must make a good faith effort to ensure any interpretations or translations are rendered completely and accurately.

A party obtaining the services of a translator or interpreter must make a good faith effort to obtain a translator or interpreter who possesses the necessary certifications, training and pertinent experience to render a complete and accurate translation.

The Commission presumes an interpreter or translator who is certified pursuant to the South Carolina Court Interpreter Certification Program possess the requisite certifications, training and pertinent experience; however, the Commission may permit the use of uncertified translators who possess sufficient training and/or experience. Translators and interpreters are expected to comply with Rule 511, S.C.A.C.R., Rules of Professional Conduct for Court Interpreters (2006).

A party obtaining a translator or interpreter must make a good faith effort to ensure the translator or interpreters is impartial, unbiased and refrains from conduct that may give the appearance of bias.

Translators and interpreters must disclose any real or perceived conflicts of interest.

After qualifications and conflicts of interest are disclosed, the parties may stipulate their consent to using the interpreter or translator’s services. If a party objects to the use of a translator or interpreter due to a perceived lack of qualifications or conflict of interest, the Commissioner will decide on a case-by-case base whether the proffered interpreter or translator is sufficient.

Interpreters and translators will be required to complete an affidavit certifying the above guidelines have been met.

Finally, to ensure conflicts are disclosed and all parties are provided notice of any perceived conflicts, the Commissioner will ask the following questions prior to the commencement of translation or interpretation, on the record and under oath:

Are you a friend, associate or relative of a party or counsel for a party in the proceedings?

Have you served in an investigative capacity for any party involved in the case?

Do you or your spouse or child have a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that would be affected by the outcome of the case?

Have you been involved in the choice of counsel or law firm in this case?

Are you an attorney or an employee of an attorney in the case?

Have you previously been retained for private employment by one of the parties to interpret in the case?

Is there any other reason your independence of judgment would be compromised in the course of providing services in the case?