One of the most vexing aspects of appellate law is trying to assess whether an appeal affects a substantial right. To date, the best analysis I've heard on the topic is from a friend of mine that also happens to practice some law form time-to-time: "The Court of Appeals is going to do whatever the Court of Appeals is going to do."
The message: Don't worry about, because there's only so much you can do anyway. I suspect those that have tried a number of cases to a jury feel the same way about how that body will decide, too.
In Hawkins v. Emergency Medicine Physicians of Craven County, PLLC, et. al, published today (April 7, 2015), the Court of Appeals may have given some guidance as to how it will now view the possibility of inconsistent verdicts. The case is available here, and if you are like some of my former colleagues practicing med-mal, you may like to read the Court's proximate cause analysis as well: http://appellate.nccourts.org/opinions/# (click on 2015, and go to the April 7th decisions).
As to our appellate issue, the trial court had granted summary judgment as to one defendant-doctor on proximate cause, but not the other defendants - a classically interlocutory order (final as to some but not all parties or claims). The trial court likewise did not certify the claim for immediate appeal.
In concluding that it had jurisdiction, however, the Court held that "[b]ecause plaintiff's suit alleges several overlapping acts of medical malpractice resulting in harm, we hold that it is best that one jury hears the case."
Having one jury hear a case is likely "best" in almost all negligence actions in which there are multiple defendants involving overlapping conduct. Whether that holding can be extended beyond the realm of medical negligence actions remains to be seen. If you have success in so doing, and just so long as it is not against me, please let me know.
On an unrelated note, I write a grudging congratulations to my mother-in-law and Duke fans the world over for yet another National Championship. One day, Deacs. One day.
Whether that holding can be extended beyond the realm of medical negligence actions remains to be seen. If you have success in so doing, and just so long as it is not against me, please let me know. Sure, why notEnjoyed looking at this,
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The Court of Appeals is going to do whatever the Court of Appeals is going to do.Appellate Law in North Carolina after reading through some of the post I realized it’s new to me. Anyways, I’m definitely delighted I found it and I’ll be book-marking and checking back often!Pretty nice post.
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