HUNTER, JR., ROBERT N., Judge.
Janet E. Moore ("Plaintiff") sought treatment for a toothache on 16 January 2006 and was treated by Dr. Proper, a dentist in Dr. Shaun O'Hearn's office. On 12 January 2009, Plaintiff's counsel filed a motion and obtained an order from the court pursuant to Rule 9(j) extending the statute of limitations in a medical malpractice action to 16 May 2009 to seek an appropriate expert witness. Plaintiff's 5 March 2009 Complaint alleges Dr. Proper fractured her jaw while extracting a tooth, and thereafter discharged her without notifying her of the fracture and providing the proper care. Plaintiff alleges Dr. O'Hearn was negligent in failing to provide Plaintiff care after the fracture and that O'Hearn's office and Affordable Care are liable under the theories of respondeat superior, agency, or vicarious liability.
As required by Rule 9(j) of the North Carolina Rules of Civil Procedure, the Complaint contained the following language: "[t]he medical care in this case has been reviewed by Dr. Joseph C. Dunn, who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is willing to testify that the medical care provided by the Defendants did not comply with the applicable standard of care." Defendants, in answering this allegation, denied the allegation for lack of information and belief.
Pursuant to an order of the trial court dated 10 August 2009 (which does not appear in the record), Plaintiff provided an "Expert Witness Designation" which identified Dr. Joseph C. Dunn as Plaintiff's expert witness. The designation describes Dr. Dunn as a 1966 graduate of the University of North Carolina at Chapel Hill and a 1970 graduate
Defendants served 10 interrogatories pursuant to Rule 9(j). Dr. Dunn answered the interrogatories, in part, as follows:
After receipt of these Answers, Defendants did not immediately seek to dismiss Plaintiff's Complaint. Discovery continued.
On 29 April 2010, Dr. Dunn was deposed by Defendants. Among the answers given in his deposition were the following responses:
Based upon the deposition responses, Defendants made a Motion for Summary Judgment, contending Dr. Dunn's expert witness testimony could not support a malpractice claim under Rule 9(j) of the North Carolina Rules of Civil Procedure and Rule 702 of the Rules of Evidence. Plaintiff then filed a motion under Rule 702(e), requesting that even if Dr. Dunn does not meet the Rule 702 requirements, he be recognized as an expert. Plaintiff also filed an affidavit by Dr. Dunn clarifying that in his deposition testimony, he stated that he spent one hundred percent of his professional time in the clinical practice of dentistry and that any other activities were personal, not professional.
Following the hearing on these motions, the trial court made two rulings. In the first ruling, the trial court granted summary judgment in favor of Defendants and dismissed Plaintiff's Complaint, stating Plaintiff did not comply with Rule 9(j), as no reasonable person would have expected Dr. Dunn to qualify as an expert witness under Rule 702. In the second ruling, the trial court ruled that no extraordinary circumstances existed to qualify Dr. Dunn to serve as an expert witness under Rule 702(e). We note that Defendants did not move to strike Dr. Dunn as an expert witness or to disqualify him pursuant to a motion in limine.
This Court has jurisdiction of this appeal pursuant to N.C. Gen.Stat. § 7A-27(b) (2009).
Rule 9(j) of the N.C. Rules of Civil Procedure and Rule 702 of the Rules of Evidence provide the statutory framework for resolving this dispute. It is undisputed in this controversy that Dr. Dunn was a licensed dental professional who had extensive experience treating patients, that he did not provide instruction for students at a professional school or clinic, that he was prepared to offer testimony that Dr. Proper did not provide medical care which complied with the applicable standard of care, and that he practiced in the same specialty as Dr. Proper.
The portions of Rule 9(j) relevant to this controversy read as follows:
N.C. Gen.Stat. § 1A-1, Rule 9(j).
Rule 702 provides, in pertinent part:
N.C.R. Evid. 702(b).
As a textual matter, Rule 9(j) is straightforward. The statute requires the trial court to answer a series of three questions, which if answered in sequential order will inevitably lead the trial court to the proper resolution of the issues raised by Rule 9(j). The statute requires the complaint to be dismissed unless one of the questions is affirmatively answered.
All three questions involve matters of pleading and therefore require an examination of Plaintiff's Complaint akin to a Rule 12(b)(6) motion to dismiss. First, does the Complaint specifically assert "that the medical care has 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). Second, does the Complaint specifically assert that the medical care has been reviewed by a person that the Plaintiff will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the Complaint? N.C. Gen.Stat. § 1A-1, Rule 9(j)(2).
Our reading of the Complaint reveals Plaintiff pled a paragraph minimally sufficient to meet the requirements of Rule 9(j)(1) and (2). No party herein has argued res ipsa loquitur, not is it pled. We do not address the trial court's failure to address this issue, as it is not raised on appeal.
The question is whether Plaintiff could have "reasonably expected" Dr. Dunn to have qualified as an expert witness under Rule 702 at the time the Complaint was filed and whether a majority of Dr. Dunn's professional time was spent "actively engaged in clinical practice," as required by statute.
Because the parties moved for summary judgment, we review the trial court's first ruling under a de novo standard. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 247, 677 S.E.2d 465, 472 (2009) ("We review a trial court's ruling on summary judgment de novo."). "Whether the pleader could reasonably expect the witness to qualify as an expert under Rule 702 presents a question of law and is therefore reviewable de novo by this Court." Trapp v. Maccioli, 129 N.C. App. 237, 241 n. 2, 497 S.E.2d 708, 711 n. 2 (1998).
This Court inquires as to whether Plaintiff reasonably expected Dr. Dunn to qualify as an expert witness pursuant to Rule 702, not
There is a difference between whether a plaintiff could "reasonably expect" an expert to qualify as such under Rule 9(j)(1) and whether the expert does in fact qualify as an expert. Whether the proposed expert is reasonably expected to qualify is resolved at the time the complaint is filed. Whether the proposed expert does in fact qualify as such is resolved after discovery is completed. We conclude that the trial court misapplied Rule 9(j)(1) and decided that the tendered expert could not "reasonably [be] expected to qualify" under Rule 9(j)(1) because the witness would not in fact meet the requirements for expert qualification. Based on our de novo review of whether it was reasonable for Plaintiff to expect Dr. Dunn to qualify as an expert, we conclude the trial court erred.
At the hearing on Defendants' Motion, and in response to the question of the percentage of his time from January 2005 until January 2006 spent in the active clinical practice of dentistry, Dr. Dunn answered that "when [he is] there it is 100 percent." Dr. Dunn then agreed that most dentists work four-day weeks and counsel asked, assuming eight hours of professional time per day, "What percentage over the entire year are you working in the active clinical practice of dentistry?" Dr. Dunn answered five percent in response to this question. It is true that he then answered yes to the question of whether it was five percent of his "professional time," but this is after he was told that the average dentist works four-day weeks, and each day includes eight hours of professional time. His response is taken out of context; when placed in the context of the series of questions being propounded to the expert, it is clear that the connotations concerned the professional time of full-time clinicians, not his professional time individually.
In his Affidavit filed after Defendants' Motion for Summary Judgment, Dr. Dunn claimed "during the time [he] was engaged in the active practice of dentistry, [he] spent one hundred percent of [his] professional time actively engaged in the clinical practice." He stated that he has practiced as a dentist in the area for over forty years and still engages in the active practice of dentistry, though not full-time. Dr. Dunn emphasized that his serving on the city council was a personal activity, and that none of his personal activities were part of his "profession." He stated that when he gave the five percent figure, he was referring to all of his time, "covering all the activities [he] was engaged in as a human being," but that when he was engaged in his profession, one hundred percent of his time was in the active clinical practice of dentistry.
Plaintiff argues that because Dr. Dunn was engaged in active clinical practice one hundred percent of his professional time, he met the standard in Rule 702, and thus their assertion under Rule 9(j) was proper. At the hearing, the trial court indicated that it did not believe the legislature intended the result advocated by Plaintiff. The trial court concluded "no reasonable person would have expected Dr. Joseph Dunn to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence."
Parties cite two cases in support of their positions: Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002) and Cornett v. Watauga Surgical Grp., 194 N.C. App. 490, 669 S.E.2d 805 (2008). There is a tension between Cornett and Coffman as to what amount of time an expert witness works "professionally."
In Coffman, the expert was retired, but worked "professionally" the requisite period of time and this Court found no error in his qualification as an expert. Coffman, 153 N.C.App. at 624, 571 S.E.2d at 258-59 (expert witness stated instruction in his field "didn't take up a great deal of time," but that it was "all [he] did professionally during that period of time"). In Cornett, the expert was
The language of the statute does not require a "standard" workweek or give the courts any measure for the length of time a professional must work in order to compute the majority of an expert's "professional time." The statutory language relies on a case by case analysis of the term. Thus, a professional workweek is a factual question which the trial court must determine in making its decision.
In Cornett, the trial court found the "professional work week" to be 60 hours for the physician in question. 194 N.C.App. at 494-95, 669 S.E.2d at 808. After this fact was found, our Court relied on this finding as a predicate to apply Rule 9(j) and Rule 702(b). Unfortunately, the trial court failed to make any findings of fact, and there is nothing for us to review regarding the number of hours of which Dr. Dunn's "professional work week" was composed. On remand, the trial court must make sufficient findings of fact regarding the elements of Rule 702(b) qualifications on which it bases its decision as to whether his testimony would be available at trial if he is tendered.
We note the standard for dismissal under Rule 9(j) is different from the standard for admitting expert testimony at the time of trial. We express no opinion whether Dr. Dunn can meet the heightened standard should the matter go to trial, however, the trial court appears to have applied the wrong legal test in dismissing the complaint. The test is not whether the proposed expert can be qualified at trial or what the trial court believes the legislature "intended" when it passed the statute.
In order to grant summary judgment, a trial court's decision must be based on "undisputed facts." Whether Dr. Dunn met the "professional time" standard of Rule 702 appears to us to be a highly disputed fact, and is a fact which must be reviewed in "the light most favorable to the nonmoving party." Diggs v. Novant Health, Inc., 177 N.C. App. 290, 294, 628 S.E.2d 851, 855 (2006). From the testimony provided and our interpretations of the Rule, we cannot agree with the trial court that "no reasonable person would have expected Dr. Joseph Dunn to qualify as an expert witness."
As to the second ruling regarding the likelihood of Dr. Dunn to serve as an expert in this case due to extraordinary circumstances, we conclude this portion of the order is akin to a motion in limine and seeks a pretrial determination of the admissibility of evidence to be introduced at trial. Because any such determination would be subject to a final ruling by the trial judge, it would be insufficient grounds for dismissal at this point in the litigation.
Based on the foregoing reasons, we reverse.
Reversed and remanded.
Judge STEELMAN concurs.
Judge STEPHENS dissents.
STEPHENS, Judge, dissenting.
I respectfully dissent from the majority opinion to address the majority's misinterpretation and misapplication of North Carolina Civil Procedure Rule 9(j).
Rule 9(j), which sets out the heightened pleading requirements for a medical malpractice complaint, provides that "[a]ny complaint alleging medical malpractice by a health care provider" "shall be dismissed" unless the complaint satisfies one of the three following conditions:
N.C. Gen.Stat. § 1A-1, Rule 9(j) (2009) (emphasis added).
In this case, it is clear from Moore's complaint that she sought to satisfy Rule 9(j) by fulfilling the Rule 9(j)(1) condition only: (1) Moore's complaint "specifically asserts" that the medical care was reviewed by Dr. Dunn, "who is reasonably expected to qualify as an expert witness under Rule 702" and "who is willing to testify that the medical care provided by [] Defendants did not comply with the applicable standard of care"; (2) Moore's complaint contains no "specific assertion" that matches the language of Rule 9(j)(2); and (3) as noted by the majority, res ipsa loquitur "was not raised by the parties below and is not argued on appeal." Nevertheless, the majority concludes that "the [c]omplaint reveals [Moore] pled a paragraph minimally sufficient to meet the requirements of" Rule 9(j)(2). This conclusion is incorrect.
Initially, I again note that nowhere in Moore's complaint does she "specifically assert" that she will seek to have the person who reviewed the medical care "qualified as an expert witness by motion under Rule 702(e)" as required by Rule 9(j)(2). Further, Rule 9(j)(2) requires a plaintiff to file a Rule 702(e) motion along with the complaint. In this case, Moore filed a Rule 702(e) motion, but that motion was filed more than 15 months after the complaint was filed. Unequivocally, Moore failed to satisfy the mandate of Rule 9(j)(2), leading to the inescapable determination that the majority's conclusion on that issue is incorrect.
Because Moore has failed to satisfy the pleading requirements of Rule 9(j)(2), and because Moore did not satisfy Rule 9(j)(3), Moore's complaint should have been dismissed—and the trial court's judgment should be affirmed—unless the complaint satisfied the pleading requirements of Rule 9(j)(1). I conclude that it did not.
I acknowledge that Moore's complaint, on its face, appears to satisfy the pleading requirements of Rule 9(j)(1): It contains a specific assertion that the medical care had been reviewed by a person who (1) is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence, and (2) is willing to testify that the medical care did not comply with the applicable standard of care. However, this Court has held that "even when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is [] appropriate." Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 255, 677 S.E.2d 465, 477 (2009) (quoting Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d 153, 157 (2008)).
Id. at 255-56, 677 S.E.2d at 477 (internal quotation marks, citations, and ellipsis omitted).
The dispositive question in this appeal is whether Moore's Rule 9(j)(1) statement that her expert Dr. Dunn "is reasonably expected to qualify as an expert witness under Rule 702" is supported by the facts. The majority concludes that Moore's expectation that Dr. Dunn would qualify as an expert under Rule 702 was reasonable. I disagree.
Rule 702 of the North Carolina Rules of Evidence provides that a proposed expert in a medical malpractice action "shall not give testimony on the appropriate standard of
N.C. Gen.Stat. § 8C-1, Rule 702(b) (2009).
In this case, because Dr. Dunn is a licensed dentist, because Dr. Dunn testified that he had spent no time instructing students during the year immediately preceding the date of Moore's alleged injury, and because Dr. Dunn is admittedly in the same health profession as Dr. O'Hearn and Dr. Proper, the more specific issue is whether Dr. Dunn devoted a majority of his professional time to the "active clinical practice" of general dentistry during the year immediately preceding the date of Moore's alleged injury. I conclude that, based on his description of his professional time, Dr. Dunn did not meet this Rule 702 requirement.
In his deposition, Dr. Dunn testified that, assuming a year of 32-hour workweeks (i.e., four eight-hour days), he spent less than five percent of that time, or an average of less than 1.6 hours per week, in the clinical practice of dentistry, filling in for other dentist friends who needed the help. Dr. Dunn clarified that testimony in a subsequent affidavit, stating that the five-percent figure referred to "five percent of my entire time"—which time included running for and holding public office, spending time with his grandchildren, and golfing—and not five percent of his "professional time." Dr. Dunn then stated that 100 percent of the time that he was engaged in dentistry—his learned profession and, thus, his "professional time"—was spent in the clinical practice of dentistry. The upshot of Dr. Dunn's testimony is that he was engaged in the clinical practice of dentistry 100 percent of his "professional time," which was five percent of his "entire time" of a year's worth of 32-hour workweeks.
Assuming, without deciding, that Dr. Dunn's interpretation of "professional time" is correct—that "professional time" is limited to time spent on activities related to one's health profession and does not include other quasi-professional activities like holding public office—I nonetheless conclude that the majority of Dr. Dunn's professional time was not devoted to the "active clinical practice" of dentistry as required by Rule 702(b).
"When the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction." Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002). The clear and unambiguous language of Rule 702 requires that a proposed expert's clinical practice not only must constitute the majority of that expert's professional time, but also that that clinical practice must be "active." N.C. Gen.Stat. § 8C-1, Rule 702. It is this mandate of "active" clinical practice that Dr. Dunn fails to meet.
"Words not defined in [a] statute are given their plain meaning so long as it is reasonable to do so." Formyduval v. Bunn, 138 N.C. App. 381, 386, 530 S.E.2d 96, 100 (2000) (quoting Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 119 S.Ct. 1576, 143 L.Ed.2d 671 (1999)) (internal quotation marks omitted). "Dictionaries may be used to determine the plain meaning of words." Id. at 387, 530 S.E.2d at 100-01 (citing Hunter v. Kennedy, 128 N.C. App. 84, 86, 493 S.E.2d 327, 328 (1997)).
The effect of this interpretation of an active clinical practice necessarily is the creation of a baseline level of proposed experts' "activeness," below which a proposed expert's clinical practice is not sufficiently active to satisfy the requirements of Rule 702(b). Were it otherwise, a proposed expert who devoted 0.01 hours per year to the clinical practice of his health profession—perhaps a general dentist who cleaned one tooth in a year and had no other professional activities—would be eligible to testify under Rule 702(b). The absurdity of this result is magnified by the fact that such an expert would be eligible to testify while a proposed expert who devoted slightly less than 50 percent of a full year's worth of professional time to clinical practice—or 999 hours in a 40-hour per week, 50-week year—and slightly more than 50 percent of that professional time to administrative functions would be ineligible. Certainly there must be some level at which a proposed expert's clinical practice cannot be considered active.
While that minimum level of activity may vary among cases and needs no precise determination in this case, in my view, a clinical practice of 1.6 hours per week is not sufficiently active to qualify a proposed expert under Rule 702(b). In support of this conclusion, I note that the intent of the legislature in amending Rule 702 to include the current 702(b) requirements, as indicated by the title of the act introducing those requirements, was to
Act of June 20, 1995, ch. 309, 1995 N.C. Sess. Laws 611. By requiring "appropriate qualifications" of experts as a means to prevent frivolous medical malpractice actions, the legislature indicated a clear desire to require the proposed experts who review cases to have adequate familiarity with the relevant standard of care. Id.; see also Formyduval, 138 N.C.App. at 390, 530 S.E.2d at 102 (noting that the purpose of Rule 702(b) is "to insure that malpractice actions are `reviewed by qualified practitioners of a competence similar to' defendant of suit" (quoting April 19, 1995 Minutes of the House Select Comm. On Tort Reform)). One cannot seriously contend that a proposed expert who devotes 0.01 hours per year to the clinical practice of dentistry is qualified to testify to the appropriate standard of care in a health profession that Dr. Dunn describes as "always changing," and allowing the qualification of such a proposed expert would seriously undermine the legislature's attempt to prevent frivolous medical malpractice claims. I conclude that a clinical practice of no more than 1.6 hours per week is likewise insufficient to qualify a proposed expert under Rule 702(b).
Nevertheless, the question in this case is not whether Dr. Dunn should qualify under Rule 702(b), but whether Moore's expectation that Dr. Dunn would qualify as an expert witness under Rule 702 was reasonable and supported by the facts. "In other words,
The facts and circumstances known or which should have been known to Moore are as follows: In her expert witness designation, Moore alleged that Dr. Dunn was "licensed to practice in North Carolina, having practiced in Asheville from 1973 until [his] retirement in 1997"; in response to interrogatories, Dr. Dunn stated that he "maintained a valid license to practice general dentistry in good standing since [his] retirement in July of 1997"; and in his deposition, Dr. Dunn testified that his clinical practice amounted to less than five percent of a 32-hour workweek, or an average of 1.6 hours per week.
In my view, these facts and circumstances show that Moore's expectation that Dr. Dunn would qualify as an expert witness was not reasonable. First, the fact that Dr. Dunn retired nine years prior to the alleged malpractice—and had been retired for almost 12 years by the time Moore filed her complaint—should have indicated to Moore that Dr. Dunn likely was not maintaining an active clinical practice. This fact would have led a reasonable person to inquire as to the extent of Dr. Dunn's clinical practice in the year prior to the alleged malpractice. Second, and more importantly, a reasonable person who conducted such an inquiry would not have concluded that a dentist who spends an average of 1.6 hours per week in the clinical practice of dentistry would qualify as an expert under a statute that requires a proposed expert to have devoted the majority of his professional time to the active clinical practice of dentistry.
As discussed supra, the Rule 702(b) requirement of active clinical practices requires the proposed expert to have an energetic and diligent practice. In my view, no reasonable person would conclude that 1.6 hours per week constitutes an active, energetic, and diligent health care practice.
Despite the failure of Moore's complaint to satisfy Rule 9(j), Moore argues that summary judgment for Defendants was nevertheless error because "the case could still proceed on the theories of [Defendant] having failed to exercise his best judgment and reasonable care," which theories, Moore urges, do not require a Rule 9(j) certification. Whether Moore is correct that those theories of recovery do not require certification is irrelevant because Moore failed to assert such theories in her complaint. As previously held by this Court, a plaintiff is bound by her pleadings, Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624, 628, 652 S.E.2d 302, 305 (2007) ("In determining whether or not Rule 9(j) certification is required, the North Carolina Supreme Court has held that `pleadings have a binding effect as to the underlying theory of plaintiff's negligence claim.'" (quoting Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002)), and in this case, Moore has only alleged that she is entitled to recover damages from (1) Dr. Proper's furnishing of tooth extraction services
Based on the foregoing, I conclude that the trial court appropriately granted summary judgment for Defendants and properly dismissed Moore's claim.
