Blanchard v. Britthaven, Inc.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA12-1366
NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

ANNE BLANCHARD, EXECUTRIX OF THE
ESTATE OF MARY LOU BARTHAZON,
Plaintiff,

v. Orange County
No. 09 CVS 1109
BRITTHAVEN, INC. and HILLCO,
LTD.,
Defendants.

Appeal by plaintiff from judgment and order entered 12

October 2011 and 13 January 2012 by Judge Shannon R. Joseph in

Orange County Superior Court. Heard in the Court of Appeals 23

May 2013.

Henson & Fuerst, P.A., by Anne Duvoisin; Connor & Connor,
LLC, by Kenneth L. Connor; and Brian G. Brooks, Attorney at
Law, PLLC, by Brian G. Brooks, for plaintiff-appellant.

Hurley Law Office, by Michael C. Hurley and Katherine L.
Jones, for defendants-appellees.

GEER, Judge.

Plaintiff Anne Blanchard, executrix of the Estate of Mary

Lou Barthazon, appeals from the trial court's entry of a final

judgment following a jury verdict in favor of defendants
 -2-
Britthaven, Inc. and Hillco, Ltd. Plaintiff had asserted claims

for ordinary and medical negligence arising out Britthaven's

allegedly improper care of Ms. Barthazon while she was a

resident at Britthaven's Chapel Hill, North Carolina nursing

home, which, plaintiff contended, resulted in Ms. Barthazon's

death.

On appeal, plaintiff primarily argues that the trial court

erred in excluding evidence of (1) documents produced by the

North Carolina Department of Health and Human Services ("NC

DHHS") following inspections of Britthaven's Chapel Hill, North

Carolina nursing home and (2) decisions resulting from

administrative appeals related to Ms. Barthazon's death.

Plaintiff's arguments on appeal regarding the admissibility of

the exhibits all hinge on plaintiff's assertion that the

documents were relevant to prove causation. However, plaintiff

did not, at trial, seek admission of the exhibits on that basis.

Plaintiff's appellate arguments were not, therefore, properly

preserved at trial for appeal.

Facts

On 21 June 2004, Ms. Barthazon was admitted as a resident

to a nursing home in Chapel Hill operated by Britthaven, a

wholly owned subsidiary of Hillco. At that time, Ms. Barthazon

was 95 years old, was non-ambulatory, and had severe Alzheimer's
 -3-
dementia and osteoporosis, making her at risk for broken bones

from falls. Pursuant to her resident care plan, Ms. Barthazon

was only to be transferred from a chair to her bed by use of a

certain mechanical lift. On 30 September 2007, Mack Weldon

Jones, Jr., who was working for Britthaven as a certified

nursing assistant, manually transferred Ms. Barthazon from a

chair to her bed without the use of a mechanical lift, in

violation of Ms. Barthazon's care plan.

Due to swelling and bruising in Ms. Barthazon's knees,

Britthaven staff ordered an x-ray of Ms. Barthazon's knees on 13

October 2007. The 13 October 2007 x-rays revealed that Ms.

Barthazon had two broken femurs. Because of her condition, Ms.

Barthazon was admitted to the University of North Carolina

Hospital's Emergency Department on 14 October 2007. Ms.

Barthazon died on 18 October 2007.

On 13 July 2009, plaintiff, Ms. Barthazon's daughter, filed

suit against defendants, asserting claims for (1) "ORDINARY

CORPORATE NEGLIGENCE" causing Ms. Barthazon's broken femurs but

not causing her death; (2) medical negligence causing various

lifetime injuries and Ms. Barthazon's death; and (3) "ORDINARY

NEGLIGENCE (NON-ADMINISTRATIVE BASIC CARE)" causing various

lifetime injuries and Ms. Barthazon's death. The complaint also

sought to pierce the corporate veil and obtain relief against
 -4-
Britthaven's parent company, Hillco, on the basis that Hillco

also owed duties of care to Ms. Barthazon and its breach of

those duties caused Ms. Barthazon's injury.

On 17 June 2011, defendants filed a motion for partial

summary judgment on plaintiff's claims for corporate negligence,

ordinary negligence, piercing the corporate veil, and punitive

damages. On or about 2 August 2011, defendants filed a "MOTION

FOR FINAL SUMMARY JUDGMENT" as to all of plaintiff's claims.

The trial court granted in part and denied in part

defendants' motion for summary judgment as to corporate

negligence and granted defendants' motion for summary judgment

as to all of plaintiff's ordinary negligence claims other than

the corporate negligence claim.1 On or about 1 September 2011,

the trial court entered an order deferring a ruling on

defendants' motion for partial summary judgment as to
1
On 29 August 2011, the court entered an order on
defendants' motion for partial summary judgment on the ordinary
negligence claims which provided that "Defendants' Motion for
Partial Summary Judgment is granted as to all of Plaintiff's
claims for ordinary negligence that were not adjudicated as part
of this Court's Order of August 5, 2011." The 5 August 2011
partial summary judgment order does not appear to be included in
the record on appeal. However, a 14 August 2011 email from the
trial court to counsel regarding defendants' summary judgment
motions indicates that, on 5 August 2011, the court entered an
order granting in part and denying in part defendants' partial
summary judgment motion as to the corporate negligence claim.
That email also indicated that the court took defendants'
summary judgment motion as to plaintiff's claim for punitive
damages under advisement at that time. The trial court restated
the content of the email during a pretrial hearing.
 -5-
plaintiff's claim based on piercing the corporate veil and

denying defendant's motion for final summary judgment.

Although the record is not entirely clear, it appears that

the case proceeded to trial on plaintiff's claims for medical

negligence, corporate negligence, and liability against Hillco

based on piercing the corporate veil. During the charge

conference, following the presentation of all the parties'

evidence, the trial court, on its own initiative, suggested that

the verdict sheet set out an initial question of whether "any

conduct" of defendants proximately caused Ms. Barthazon's

injuries before asking the jury to decide whether defendants

breached any duty of care towards Ms. Barthazon.

In accordance with the court's suggestion, the first

question on the verdict sheet asked: "Was any conduct of

defendant Britthaven, Inc. a proximate cause of any injury to,

or the death of, Mary Lou Barthazon?" Following deliberation,

the jury answered that first question in the negative. The

trial court, therefore, entered final judgment in favor of

defendants on 12 October 2011.

On 19 October 2011, plaintiff filed a motion for a new

trial pursuant to Rule 59(a) of the Rules of Civil Procedure.

The trial court denied plaintiff's motion for a new trial in an
 -6-
order entered 13 January 2012. Plaintiff timely appealed to

this Court.

I

Plaintiff first argues that the trial court erred by

excluding (1) evidence of inspections (called "surveys")

conducted at Britthaven's Chapel Hill nursing home pursuant to

state and federal regulations and (2) evidence arising out of

Britthaven's administrative appeals from those surveys.

Plaintiff contends that this evidence was relevant to the issue

of causation and admissible under Rule 803(8)(c) of the Rules of

Evidence.

Britthaven is a long-term care facility that participates

in the federal Medicare program. Pursuant to state and federal

regulations, NC DHHS inspects, or "surveys," long-term care

facilities to ensure compliance with Medicare regulations. See

N.C. Admin. Code, tit. 10A, r. 13D.2109(a) (October 2013); 42

C.F.R. § 488.330(a)(1)(i) (2013); 42 C.F.R. § 488.330(b)(1).

If NC DHHS finds noncompliance with federal regulations

after a survey, NC DHHS produces a statement of deficiencies

("SOD") that outlines the specific instances of noncompliance

and the evidence on which the findings are made. NC DHHS also

certifies its findings to the federal Centers for Medicare &

Medicaid Services ("CMS"). 42 C.F.R. § 488.330(a)(1)(i)(C).
 -7-
The findings of NC DHHS surveyors are recommendations to CMS,

which then makes its own determination regarding the long-term

care facility's compliance with federal regulations. 42 C.F.R.

§ 488.12 (2013).

In this case, NC DHHS conducted surveys at Britthaven's

Chapel Hill nursing home on 19 October 2007 and 29 November

2007. NC DHHS reported its results from the October and

November 2007 surveys on "FORM CMS-2567" documents. Both forms

contained a summary SOD with supporting findings, and the

November 2007 form further contained a plan of correction for

the deficiencies found. In each form's SOD, NC DHHS reported

noncompliance with federal Medicare regulations.

CMS adopted NC DHHS' recommendations based on the November

2007 survey and resulting SOD, which CMS determined superseded

the SOD for the October 2007 survey. Findings of noncompliance

in both surveys were based upon Mr. Jones' manual transfer of

Ms. Barthazon from a chair to her bed in violation of Ms.

Barthazon's care plan.

Following completion of a survey and SOD, a facility

subject to CMS-imposed sanctions for noncompliance may appeal,

under certain conditions, to a federal administrative law judge

("ALJ"). See 42 C.F.R. § 498.5 (2013). A dissatisfied party

may further appeal the ALJ's decision to the United States
 -8-
Department of Health and Human Service's Departmental Appeals

Board (the "Board"). See 42 C.F.R. § 498.80 (2013).

Utilizing this process, Britthaven appealed CMS' decision

to an ALJ, and the ALJ issued a decision affirming CMS' findings

of noncompliance with two Medicare regulations, which resulted

in immediate jeopardy to resident health and safety at the

facility (the "ALJ decision"). Britthaven then appealed a

single legal issue to the Board, and the Board issued a decision

affirming the ALJ decision (the "Board decision").

In arguing that the trial court erred in excluding evidence

of the surveys and the ALJ and Board decisions, plaintiff argues

that the evidence was admissible to prove causation under Rule

803(8)(c). We need not address whether such evidence, if

relevant, would be admissible under the Rules of Evidence

because review of the record shows that plaintiff never argued

to the trial court that the exhibits were admissible to show

causation, the sole argument made on appeal.2

2
We note that our review of the record has revealed no
ruling by the trial court on the admissibility of the ALJ and
Board decisions. Although plaintiff contends that, when ruling
upon the admissibility of the "surveys" during the 15 and 16
August 2011 pretrial hearings, the trial court was, in fact,
ruling upon the admissibility of not only the surveys, but also
the ALJ and Board decisions, the specific arguments of the
parties at trial and the trial court's rulings indicate that
references to "surveys" were limited to the surveys alone. By
failing to obtain a ruling from the trial court on the
admissibility of the ALJ and Board decisions, plaintiff failed
 -9-
On 9 August 2011, defendants filed a motion in limine

seeking to exclude evidence of the findings and conclusions from

the surveys, while on 10 August 2011, plaintiff filed a motion

requesting that the trial court judicially notice and "admit[]

into evidence" the "surveys and ALJ opinions relating to Ms.

Barthazon's transfer by Mack Jones." Plaintiff asserted that

the records were "important public documents," but made no

argument that they were relevant to causation in the written

motion for judicial notice.

The trial court heard arguments on defendants' motion in

limine at a 15 August 2011 pretrial hearing. At the hearing,

the parties only argued regarding whether the surveys were

admissible to show the applicable standard of care. Plaintiff

did not argue at the hearing that the surveys were admissible to

show causation. The trial court announced at the hearing that

it was "inclined to exclude" the surveys.

At a continuation of the hearing on the following day, 16

August 2011, the court again addressed the admissibility of the

to preserve that issue for appeal. N.C.R. App. P. 10(a)(1)
(requiring, in order to preserve issue for appeal, that
"complaining party . . . obtain a ruling upon the party's
request, objection, or motion"). Nonetheless, even assuming
that the trial court ruled that the ALJ and Board decisions were
inadmissible, we hold that, as with the surveys, plaintiff
failed to preserve the specific argument made on appeal since
she failed to argue at trial that the ALJ and Board decisions
were admissible to show causation.
 -10-
surveys. Consistent with the fact that the parties had debated

only the relevance of the surveys to the standard of care, the

court explained that Rule 702, which addresses expert testimony

regarding the standard of care, "gave me some pause." At the 16

August 2011 hearing, plaintiff again failed to argue that the

surveys and the ALJ and Board decisions were admissible to show

causation. The trial court deferred any ruling on plaintiff's

motion for judicial notice.3

Plaintiff filed a motion for reconsideration of the rulings

on defendants' motion in limine on or about 19 August 2011. The

motion addressed admissibility of the "survey documents" and

asserted no arguments pertaining to causation. Plaintiff has

pointed to -- and we have found -- no ruling on the motion to

reconsider.

Thus, although plaintiff argued, both in support of her

motion for judicial notice and in opposition to defendants'

motion in limine, that the surveys were admissible as evidence,

plaintiff argued only that the surveys were admissible to show

the applicable standard of care and any breach of that standard

by defendants. In addition, we have found no indication in the

3
The record on appeal does not contain written orders
addressing either defendant's motion in limine or plaintiff's
motion for judicial notice.
 -11-
record that plaintiff argued at trial that the surveys should be

admitted to prove causation.4

Rule 10(a)(1) of the Rules of Appellate Procedure provides

that "[i]n order to preserve an issue for appellate review, a

party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the

ruling the party desired the court to make . . . ." (Emphasis

added.) The purpose of the rule "'is to require a party to call

the [trial] court's attention to a matter upon which he or she

wants a ruling before he or she can assign error to the matter

on appeal.'" Lathon v. Cumberland Cnty., 184 N.C. App. 62, 68,

646 S.E.2d 565, 568 (2007) (quoting Reep v. Beck, 360 N.C. 34,

37, 619 S.E.2d 497, 499 (2005)). Because plaintiff did not

specifically argue to the trial court that the surveys should be

4
Plaintiff filed a motion, which was denied by the trial
court, requesting that the trial court apply the doctrine of
collateral estoppel to findings made in the ALJ decision as
affirmed by the Board decision, including findings related to
causation. This motion did not, however, address the
admissibility of the surveys, the ALJ decision, or the Board
decision at trial. See Rymer v. Estate of Sorrells, 127 N.C.
App. 266, 268, 488 S.E.2d 838, 840 (1997) ("'Collateral estoppel
precludes relitigation of an issue decided previously in
judicial or administrative proceedings provided the party
against whom the prior decision was asserted enjoyed a full and
fair opportunity to litigate that issue in an earlier
proceeding.'" (quoting In re McNallen, 62 F.3d 619, 624 (4th
Cir. 1995))). Consequently, the collateral estoppel motion was
not sufficient to preserve the issue raised on appeal.
 -12-
admitted as relevant to causation, plaintiff did not preserve

this issue for appeal.

We note, however, that plaintiff's motion for a new trial

sought a new trial based upon the court's exclusion of the

surveys and ALJ and Board decisions since findings in those

documents supported plaintiff's "core allegations" at trial.

Among other findings, the motion specifically referenced the

ALJ's findings of fact regarding causation. Even if we assume -

- although it is not entirely clear from the record -- that

plaintiff was making the same argument in the motion for a new

trial as made on appeal, the motion for a new trial, standing

alone, is not sufficient to preserve the issue for appeal.

Rule 10(a)(1) of the Rules of Appellate Procedure provides

that in order to preserve an issue for appellate review, a party

must present a "timely request, objection, or motion," and an

issue raised for the first time in a post-trial motion is not

considered a timely request sufficient for appellate

preservation. (Emphasis added.) See Hanna v. Brady, 73 N.C.

App. 521, 528, 327 S.E.2d 22, 26 (1985) ("We do not feel that a

motion for a new trial made under Rule 59 [of the Rules of Civil

Procedure] is intended to serve as a substitute for the

obligation of counsel to timely object to the jury instructions.

The obvious purpose behind the requirement of a timely objection
 -13-
is to avoid the need to completely retry a case when a judge

could merely correct the instructions.").

However, even if plaintiff had preserved her causation

argument for appeal, plaintiff does not challenge in her brief

the trial court's ruling, pursuant to Rule 403 of the Rules of

Evidence, that any probative value of the surveys was

substantially outweighed by the danger of confusion of the

issues at trial. See id. ("Although relevant, evidence may be

excluded if its probative value is substantially outweighed by

the danger of . . . confusion of the issues . . . ."). Because

plaintiff has made no showing that the trial court abused its

discretion in excluding the evidence under Rule 403, see State

v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) ("We

review a trial court's decision to exclude evidence under Rule

403 for abuse of discretion."), she cannot show prejudice from

the error she asserts on appeal.

In sum, plaintiff failed to argue at trial that the surveys

and the ALJ and Board decisions were admissible to show

causation and, consequently, failed to preserve that issue for

review. Moreover, plaintiff has not shown prejudice because she

has failed, on appeal, to challenge the trial court's ruling

excluding the evidence under Rule 403.
 -14-
II

Plaintiff next argues that even if the surveys and the ALJ

and Board decisions were not otherwise admissible as evidence,

the trial court erred by not allowing plaintiff to cross-examine

defendants' expert witness on causation, Dr. Alexander Doman,

with those documents. Plaintiff contends that because Dr. Doman

stated on voir dire that he had taken the documents into

consideration when reaching his opinions, plaintiff was entitled

to cross-examine Dr. Doman with the surveys and the ALJ and

Board decisions.

Rule 705 of the Rules of Evidence provides that an expert

"may testify in terms of opinion or inference and give his

reasons therefor without prior disclosure of the underlying

facts or data, unless an adverse party requests otherwise, in

which event the expert will be required to disclose such

underlying facts or data on direct examination or voir dire

before stating the opinion." Rule 705 states further: "The

expert may in any event be required to disclose the underlying

facts or data on cross-examination."

In this case, plaintiff questioned Dr. Doman on voir dire

regarding whether Dr. Doman had reviewed the surveys:

Q. Have you taken into account in this
case, in arriving at your opinions, the
conclusions of the interdisciplinary survey
team that cited the nursing home in this
 -15-
case for multiple violations of the federal
regulations as it related to the care of
Mary Lou Barthazon?

A. Yes.

Q. What were the opinions that the State
arrived at in that regard?

A. That there were some deficiencies.

Q. And on what basis do you conclude that
that was in error?

A. I'm not expressing an opinion regarding
federal investigations. I'm expressing
opinions today regarding the cause of the
fractures.

Q. What qualifies you to express opinions
about the basis for confusion about these
issues as opposed to merely offering your
opinions about the cause of the injuries?

A. There is no difference. . . . I'm
expressing an opinion as to the cause of the
injury; and someone else is expressing the
opinion that's different from my opinion,
apparently. People -- the jury can reach
their conclusion as to which opinion . . .
they choose to accept.

Plaintiff then asked the court to permit cross-examination

of Dr. Doman before the jury regarding the content of the

surveys:

[PLAINTIFF'S COUNSEL]: In view of the
fact that the witness has indicated that he
has taken into account the survey issued by
the State and the conclusions reached
therein with respect to his opinion,
respectfully I ask that I be permitted to
query him in the presence of the jury on the
contents of the survey.
 -16-

THE COURT: Denied at this point.

(Emphasis added.)

On appeal, plaintiff asserts that the trial court erred in

excluding evidence of the surveys and the ALJ and Board

decisions because "Dr. Doman admitted on voir dire that he

considered and reviewed the surveys and the ALJ record in

forming his opinions." However, plaintiff questioned Dr. Doman

only as to whether he had taken into account "the conclusions of

the interdisciplinary survey team" and "the State." He did not

testify whether he considered the ALJ and Board decisions.

Plaintiff then moved the court only for permission to cross-

examine Dr. Doman with "the survey issued by the State and the

conclusions reached therein." Since plaintiff did not ask the

court for leave to cross-examine Dr. Doman with the ALJ and

Board decisions, plaintiff has failed to preserve for appeal any

argument regarding cross-examination of Dr. Doman with those

records. N.C.R. App. P. 10(a)(1).

With respect to the surveys, we initially observe that "'an

expert may be . . . cross-examined with respect to material

reviewed by the expert but upon which the expert does not

rely.'" Dep't of Transp. v. Blevins, 194 N.C. App. 637, 644,

670 S.E.2d 621, 626 (quoting Williams v. CSX Transp., Inc., 176

N.C. App. 330, 336, 626 S.E.2d 716, 723 (2006)), aff'd per
 -17-
curiam as modified on other grounds sub nom. N.C. Dep't of

Transp. v. Blevins, 363 N.C. 649, 686 S.E.2d 134 (2009). Dr.

Doman's voir dire testimony indicating he had taken into account

the surveys was, therefore, sufficient to lay a foundation for

plaintiff to cross-examine him regarding the contents of the

surveys.

However, despite laying a sufficient foundation at the

trial level for use of the evidence, plaintiff then failed to

make any offer of proof as to what Dr. Doman's testimony would

have been before the jury if cross-examined regarding the

surveys. "'In order to preserve an argument on appeal which

relates to the exclusion of evidence, including evidence

solicited on cross-examination, the defendant must make an offer

of proof so that the substance and significance of the excluded

evidence is in the record.'" State v. Ryals, 179 N.C. App. 733,

740-41, 635 S.E.2d 470, 475 (2006) (quoting State v. Ginyard,

122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996)).

Without an offer of proof -- which could have been

accomplished by plaintiff's counsel asking during voir dire the

questions that he wanted to ask before the jury -- we cannot

determine whether plaintiff was prejudiced by the trial court's

ruling. As our Supreme Court has explained, "'the essential

content or substance of the witness' testimony must be shown
 -18-
before we can ascertain whether prejudicial error occurred.'"

State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010)

(quoting State v. Raines, 362 N.C. 1, 20, 653 S.E.2d 126, 138

(2007)). See also State v. Williams, 355 N.C. 501, 534-35, 565

S.E.2d 609, 629 (2002) (holding defendant failed to preserve for

appeal argument that trial court erroneously sustained State's

objection to question during cross-examination of witness when,

on voir dire, defendant failed to make offer of proof as to what

witness would have testified to on cross-examination had

objection been overruled).

III

Plaintiff also argues that several other "developments in

the conduct of the trial" made evidence of the surveys and the

ALJ and Board decisions admissible. Specifically, plaintiff

argues that five statements by defense counsel during jury

selection -- four asserting that no one had decided whether

there was any truth in plaintiff's allegations and one asserting

that no one had made any decision about this case -- were untrue

in light of the surveys and the ALJ and Board decisions.

Plaintiff also argues that defense counsel's opening statement

incorrectly framed plaintiff's allegations as, in plaintiff's

words, "those of hysterical, over-reacting family members" when
 -19-
the evidence of the surveys and the ALJ and Board decisions

showed her allegations to be sound.

Plaintiff did not, however, argue at trial that the jury

selection questions or defendants' opening statement opened the

door for admission of the surveys and the ALJ and Board

decisions. Although plaintiff did argue in her motion for a new

trial that defendants' jury selection statements opened the door

for admissibility of the evidence, her argument made for the

first time in that motion did not give the trial court an

opportunity to revisit, during trial, its pretrial ruling

excluding the surveys or to make, during trial, a ruling on

whether to exclude the ALJ and Board decisions. The argument in

her motion for a new trial did not, therefore, preserve the

issue for appeal. See Hanna, 73 N.C. App. at 528, 327 S.E.2d at

26.

Plaintiff additionally contends that prejudice to her from

exclusion of the surveys and the ALJ and Board decisions was

compounded by defense counsel's closing argument assertion that

Mr. Jones was fired as a scapegoat for not transferring Ms.

Barthazon with a mechanical lift. Plaintiff objected to

defendants' closing argument in front of the jury, asserting

that the challenged statement "misstates the evidence," and the

trial court sustained the objection.
 -20-
Because plaintiff's argument on appeal regarding whether

the evidence was erroneously excluded was not preserved for

appeal, the question whether the exclusion prejudiced plaintiff

is immaterial. Moreover, the trial court sustained the

objection, and plaintiff did not request a limiting instruction

from the court or seek a mistrial. See Smith v. Hamrick, 159

N.C. App. 696, 699, 583 S.E.2d 676, 679 (2003) ("[T]his Court

has held that when an objection is made to an improper argument

of counsel and the court sustains the objection, that court does

not err by failing to give a curative instruction if one is not

requested.").

Given plaintiff's failure to request a limiting instruction

and failure to move for a mistrial on this issue, we are not

persuaded by plaintiff's argument that she was unduly prejudiced

even though the trial court sustained her objection. See State

v. Barber, 93 N.C. App. 42, 49, 376 S.E.2d 497, 501 (1989)

(rejecting argument defendant was entitled to new trial based on

prosecutor's improper closing argument since defendant failed to

request limiting instruction when court sustained objection to

argument and since evidence against defendant was overwhelming).

IV

Plaintiff's final argument is that "[t]he undue prejudice

to Plaintiff's case by the exclusion of [the surveys and the ALJ
 -21-
and Board decisions] [were] compounded and made exponentially

greater when combined with the trial court's decision to place

causation in a verdict sheet all by itself and outside the

context of negligence by asking whether any 'conduct' caused

injury to Mrs. Barthazon." While, as with the above remarks by

defense counsel, the question of prejudice is not material given

our determination that plaintiff failed to preserve at trial her

arguments regarding admissibility, plaintiff's brief arguably

challenges the propriety of the trial court's verdict sheet.

It is well established that "[t]he form and the number of

issues submitted to the jury is within the trial court's

discretion." Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 80,

598 S.E.2d 396, 404 (2004). In this case, the verdict sheet

included eight interrogatories. The first two interrogatories

appeared as follows:

ISSUE ONE

Was any conduct of defendant Britthaven,
Inc. a proximate cause of any injury to, or
the death of, Mary Lou Barthazon?

ANSWER: ____________
(If you answer Issue One "Yes," you are to
proceed to Issue Two. If you answer Issue
One "No," stop here. You have reached your
verdict.)

ISSUE TWO
 -22-
Was any injury to, or the death of, Mary Lou
Barthazon proximately caused by any medical
negligence of defendant Britthaven, Inc.?

Answer: ______________
(Proceed to Issue Three.)

The remaining six interrogatories asked: (1) whether any

injury or death to Ms. Barthazon was caused by any "corporate

negligence" of Britthaven; (2) whether Ms. Barthazon's death was

proximately caused by any medical negligence of Britthaven; (3)

what amount, if any, was Ms. Barthazon's estate entitled to

recover by reason of her death; (4) other than injuries

resulting in her death, was any injury to Ms. Barthazon

proximately caused by any medical or corporate negligence of

Britthaven; (5) what amount, if any, was Ms. Barthazon's estate

entitled to recover for injury to Ms. Barthazon other than

injuries resulting in her death; and (6) did Hillco control

Britthaven with regard to the acts or omissions that injured Ms.

Barthazon.

The jury answered the first interrogatory in the negative

and, accordingly, proceeded no further. Plaintiff contends that

by making the causation issue the first interrogatory, the trial

court placed "substantial and unwarranted emphasis" on

causation. She further asserts that the verdict sheet's

organization harmed her since it allowed the jury to decide

causation first, without first addressing duty and breach, and
 -23-
therefore "truncated" the "collective sharing process that

allows for correction of errors in memory or factual errors and

that may lead to changes of opinion or strengthening of initial

opinions."

We initially note that plaintiff cites no authority in

support of her arguments. However, Rule 28(b)(6) of the Rules

of Appellate Procedure provides that "[t]he body of the argument

. . . shall contain citations of the authorities upon which the

appellant relies." Because of the omission of any authority,

this Court would be entitled under the Rules of Appellate

Procedure to decline to address this issue. See Works v. Works,

___ N.C. App. ___, ___, 719 S.E.2d 218, 222 (2011) ("Moreover,

we decline to consider the remaining assertions raised in wife's

brief for which wife failed to present supporting legal

authority. See N.C.R.App. P. 28(b)(6).").

In any event, this Court has previously rejected the

argument that a defendant was prejudiced by the "order of the

charges on the verdict form" when the form "began with the most

serious charge and listed alternative verdicts in descending

order of severity, contrary to defendant's request that the

possible verdicts be listed in the opposite order." State v.

Bates, 70 N.C. App. 477, 480, 319 S.E.2d 683, 685 (1984), aff'd

on other grounds, 313 N.C. 580, 330 S.E.2d 200 (1985). The
 -24-
Court in Bates reasoned that the defendant "cite[d] no authority

in support of this contention and we know of none." Id.

Here, we similarly find plaintiff's unsupported argument

regarding the order of interrogatories on the verdict sheet to

be unpersuasive. See also State v. Watson, 169 N.C. App. 331,

339, 610 S.E.2d 472, 478 (2005) ("There is no rule in North

Carolina indicating the order choices must be listed on verdict

sheets.").

Plaintiff additionally argues that the first interrogatory

-- asking whether any "conduct" of Britthaven caused Ms.

Barthazon's injury or death -- was improper since "conduct" is

not part of the three-part negligence inquiry of duty, breach,

and causation. As with the prior argument regarding the order

of the interrogatories, plaintiff cites no authority for this

contention. Nevertheless, we fail to see how the wording of the

first interrogatory prejudiced plaintiff. We find that the

language -- asking broadly whether any "conduct" of Britthaven

caused Ms. Barthazon injury -- was actually helpful to plaintiff

since it did not limit the question to one or more acts of

negligence but rather allowed the jury to consider any conduct

at all of Britthaven. Plaintiff has not, therefore, shown

prejudicial error.
 -25-
No error.

Judges ELMORE and DILLON concur.

Report per Rule 30(e).