Filed: Mar. 17, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6527 TIMOTHY HINES, Plaintiff - Appellant, v. CORRECT CARE SOLUTIONS, LLC; BRANDI BURNETTE; JAMES PENCE, Defendants - Appellees, and EDWARD J. MCMAHON, individually and in his official capacity as sheriff of New Hanover County, North Carolina; CAPTAIN MARTY ADAMS, individually and in his official capacity as Captain and Detention Division Commander, New Hanover County Sheriff's Department; NEW HANOVER COUNTY, NORTH CAROLINA
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6527 TIMOTHY HINES, Plaintiff - Appellant, v. CORRECT CARE SOLUTIONS, LLC; BRANDI BURNETTE; JAMES PENCE, Defendants - Appellees, and EDWARD J. MCMAHON, individually and in his official capacity as sheriff of New Hanover County, North Carolina; CAPTAIN MARTY ADAMS, individually and in his official capacity as Captain and Detention Division Commander, New Hanover County Sheriff's Department; NEW HANOVER COUNTY, NORTH CAROLINA;..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6527
TIMOTHY HINES,
Plaintiff - Appellant,
v.
CORRECT CARE SOLUTIONS, LLC; BRANDI BURNETTE; JAMES PENCE,
Defendants - Appellees,
and
EDWARD J. MCMAHON, individually and in his official
capacity as sheriff of New Hanover County, North Carolina;
CAPTAIN MARTY ADAMS, individually and in his official
capacity as Captain and Detention Division Commander, New
Hanover County Sheriff's Department; NEW HANOVER COUNTY,
NORTH CAROLINA; GEORGE BENYA, individually and in his
official capacity as Deputy United States Marshal; UNITED
STATES OF AMERICA,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:10-cv-00250-BO)
Submitted: October 15, 2014 Decided: March 17, 2015
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Keith L. Edmiston, GRIBBLE CARPENTER & ASSOCIATES, Maryville,
Tennessee, for Appellant. Jennifer B. Milak, TEAGUE CAMPBELL
DENNIS & GORHAM, LLP, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Timothy Hines, a federal inmate in the New Hanover County
Detention Center in North Carolina, commenced this action
against Correct Care Solutions, LLC, and two of its employees
for medical malpractice under North Carolina law. ∗ He alleged
that Dr. James Pence, the Medical Director at the Detention
Center, and Brandi Burnette, the Clinical Director, failed to
ensure that he receive his anti-rejection medication with
sufficient regularity to prevent his body from rejecting a
kidney transplant that he had received before his detention. As
a result, he alleged, he was forced to resume dialysis
treatments. He asserted that the defendants “breached the
accepted standard of care for members of their profession with
similar skill and training in Wilmington, North Carolina or
similar communities” and demanded $3 million in compensatory
damages and $3 million in punitive damages, as well as other
related relief.
The defendants filed a motion to dismiss, arguing that
Hines failed to allege elements required by North Carolina law
when bringing a medical malpractice claim. In particular, they
claim that Hines failed to satisfy North Carolina Rule of Civil
∗
As Hines also asserted claims arising under federal law,
the district court exercised supplemental jurisdiction over his
state-law medical malpractice claim under 28 U.S.C. § 1367.
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Procedure 9(j), which imposes a heightened pleading requirement.
Rule 9(j) provides:
Any complaint alleging medical malpractice by a
health care provider . . . in failing to comply with
the applicable standard of care . . . shall be
dismissed unless . . . [t]he pleading specifically
asserts that the medical care and all medical records
pertaining to the alleged negligence that are
available to the plaintiff after reasonable inquiry
have been reviewed by a person who is reasonably
expected to qualify as an expert witness under
Rule 702 of the Rules of Evidence and who is willing
to testify that the medical care did not comply with
the applicable standard of care . . . .
N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (emphasis added). The
North Carolina Supreme Court has made clear that the reference
in Rule 9(j) to “Rule 702 of the Rules of Evidence” is to North
Carolina Rule of Evidence 702, not Federal Rule of Evidence 702.
See, e.g., Moore v. Proper, 726 S.E.2d 812, 816 (N.C. 2012).
In response to the defendants’ motion, Hines contended that
Rule 9(j) did not “specifically refer to the North Carolina
version of Rule 702, but instead merely refer[red] to ‘Rule 702
of the Rules of Evidence’” and thus that the Rule, “on its face,
[did] not require specification to” the North Carolina Rule. He
further argued that his complaint satisfied “the purpose and
literal requirements” of Rule 9(j). Hines acknowledged that
there was a dispute as to whether his expert’s qualifications
complied with North Carolina Rule of Evidence 702 because it
could be argued that his expert had not spent a majority of his
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time within the past year in active clinical practice, as
required by the Rule. He argued, nonetheless, that there was no
dispute that his expert would qualify under Federal Rule of
Evidence 702.
The district court granted the defendants’ motion to
dismiss, concluding that because the complaint did not meet
Rule 9(j)’s requirements, it was “both facially and
substantively deficient” and that therefore it had to be
dismissed.
On appeal, Hines no longer argues, as he did in the
district court, that Rule 9(j) contemplates compliance with
Federal Rule 702. Instead, he argues that the complaint’s
reference to Federal Rule 702 was “clearly inadvertent” and that
the district court should have granted him leave to amend the
complaint because the error “did not cause any prejudice and did
not destroy the principal purpose of Rule 9(j).” He also argues
that his expert’s time spent supervising physicians, physicians’
assistants, and nurses “is in fact clinical practice,” which,
when counted, would bring his total time in active clinical
practice in compliance with the qualifications requirement of
North Carolina Rule of Evidence 702. We reject both arguments.
First, Hines’ argument that his complaint’s reference to
Federal Rule 702 was “clearly inadvertent” must be rejected. In
his response to the defendants’ motion in the district court
5
that the malpractice claim should be dismissed because of the
complaint’s reference to Federal Rule 702, Hines did not claim
that the reference was inadvertent. Instead, he maintained that
“the text of Rule 9(j) [did] not specifically refer to North
Carolina version of Rule 702, but instead merely refer[red] to
Rule 702 of the Rules of Evidence. Thus, on its face it did not
require a specification to the North Carolina version of
Rule 702.” It is apparent that to accept Hines’ inadvertence
argument now would prejudice the defendants, in that Hines would
be allowed to argue for a more lenient pleading standard in the
district court and then, upon failing, to claim disingenuously
that his allegations were merely inadvertent and seek leave to
amend. We cannot accept this type of gamesmanship as a
legitimate argument.
Moreover, Hines is wrong to suggest that his expert
satisfies the requirement of North Carolina Rule of Evidence 702
that he have spent “a majority of his . . . professional time”
in the year preceding the alleged medical malpractice in “active
clinical practice” in the same health profession as the party
against whom the testimony will be offered. See N.C. R.
Evid. 702(b)(2). Hines’ complaint did not adequately allege
that his expert spent “a majority” of his time in “active
clinical practice,” maintaining only that the “majority”
requirement was satisfied by including the time his expert spent
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supervising physicians’ assistants and nurse practitioners.
But, under North Carolina law, supervising others is not
considered to be “active clinical practice.” See FormyDuval v.
Bunn, 530 S.E.2d 96, 103 (N.C. Ct. App. 2000) (defining
“[c]linical” in the context of Rule 702 to mean “based on or
pertaining to actual experience in the observation and treatment
of patients” (emphasis added)). Hines’ failure to comply with
the requirements of Rule 702 -- and thus Rule 9(j) -- in his
medical malpractice claim is a complete barrier to recovery in
North Carolina. See Barringer v. Forsyth Cnty. Wake Forest
Univ. Baptist Med. Ctr.,
677 S.E.2d 465, 477 (N.C. Ct. App.
2009) (stating that Rule 9(j) “unambiguously requires a trial
court to dismiss a complaint if the complaint’s allegations do
not facially comply with the rule’s heightened pleading
requirements”).
Finally, the requirements of North Carolina Rule 9(j) and
North Carolina Rule of Evidence 702 are not a trivial deviation
from the requirements of Federal Rule of Evidence 702. The
North Carolina General Assembly specifically enacted Rule 9(j)
with its reliance on North Carolina Rule 702 “in part, to
protect defendants from having to defend frivolous medical
malpractice actions by ensuring that before a complaint for
medical malpractice is filed, a competent medical professional
has reviewed the conduct of the defendants and concluded that
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the conduct did not meet the applicable standard of care.”
Estate of Waters v. Jarman, 547 S.E.2d 142, 144 (N.C. Ct. App.
2001) (quoting Webb v. Nash Hosps., Inc.,
516 S.E.2d 191, 194
(N.C. Ct. App. 1999)).
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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