Preston v. Movahed

IN THE SUPREME COURT OF NORTH CAROLINA

No. 124PA19

Filed 3 April 2020

Donna J. PRESTON, Administrator of the Estate of WILLIAM M. PRESTON

v.
ASSADOLLAH MOVAHED, M.D., DEEPAK JOSHI, M.D., AND PITT COUNTY
MEMORIAL HOSPITAL, INCORPORATED, D/B/A VIDANT MEDICAL CENTER

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 825 S.E.2d 657 (N.C. Ct. App. 2019), affirming an order

entered on 25 October 2017 by Judge Jeffery B. Foster in Superior Court, Pitt County.

Heard in the Supreme Court on 7 January 2020.

Edwards Kirby, L.L.P., by John R. Edwards, David F. Kirby, and Mary
Kathryn Kurth, and Laurie Armstrong Law, PLLC, by Laurie Armstrong, for
plaintiff-appellant.

Smith Anderson Blount Dorsett Mitchell & Jernigan, LLP, by John D. Madden
and Robert E. Desmond, for defendant-appellee Assadollah Movahed, M.D.

EARLS, Justice.

Plaintiff, Donna Preston, the widow and estate representative of William M.

Preston, appealed the trial court’s order granting the motion to dismiss of defendant,

Dr. Assadolah Movahed,1 on the basis that plaintiff’s medical malpractice complaint

1 Defendants Deepak Joshi, M.D., and Pitt County Memorial Hospital, Incorporated,
d/b/a Vidant Medical Center were parties in the original appeal but settled with plaintiff
prior to the issuing of the Court of Appeals’ opinion. They were not parties to the appeal
here.
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Opinion of the Court

failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. The

Court of Appeals affirmed, holding that competent evidence supported the trial

court’s determination that the expert witness retained by plaintiff to review Mr.

Preston’s medical care was unwilling to testify that defendant did not comply with

the applicable standard of care, notwithstanding that the evidence would support

findings to the contrary. Preston v. Movahed, 825 S.E.2d 657, 662–65 (N.C. Ct. App.

2019). Because we conclude that in the light most favorable to plaintiff the factual

record demonstrates that at the time of the filing of the complaint plaintiff’s expert

was willing to testify that defendant breached the applicable standard of care and

plaintiff reasonably expected him to qualify as an expert, we reverse the decision of

the Court of Appeals and remand for further proceedings.

Background

The undisputed facts from the pleadings and evidence before the trial court

tend to show that on the morning of 3 February 2014, 54-year-old William Preston

went to the emergency room at Vidant Medical Center complaining of shortness of

breath and left-sided chest pain radiating to his left arm, symptoms that had begun

twelve hours earlier. The intake physician noted Mr. Preston’s risk factors for

coronary artery disease, including hypertension, a history of smoking, and his age,

and further noted that Mr. Preston’s chest pain was relieved by nitroglycerin.

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Opinion of the Court

Electrocardiograms (EKGs2) taken in the emergency room were abnormal, suggesting

myocardial ischemia, a condition where the heart receives insufficient blood flow.

After about two hours, Mr. Preston again complained of left arm pain, which was

again relieved by nitroglycerin. Mr. Preston was admitted to the hospital for

observation and the attending physician ordered further testing, including a “nuclear

stress test.”

In a nuclear stress test, an EKG is taken while the patient exercises on a

treadmill. The “nuclear” aspect involves injecting the patient with a “radiotracer”

dye and using gamma rays to produce images of the patient’s heart. During Mr.

Preston’s test that took place on the following day, he reported severe “chest pain and

left arm pain at a level of 10/10” and the test was terminated due to shortness of

breath and fatigue.

Defendant, a nuclear cardiologist, was assigned to read and interpret the

results of Mr. Preston’s stress test. In his deposition, defendant explained that when

interpreting the results of a nuclear stress test, he receives a document with the

patient’s information and medical history, EKG “tracings” from the exercise portion

of the test, and the nuclear images. Defendant stated that he reviews this

information “stage by stage,” beginning with the patient’s history and risk factors,

then reviewing the EKG tracings, and then finally the nuclear images. According to

2The filings in the trial court and the parties’ briefs refer to electrocardiograms
interchangeably as EKGs and ECGs. We use only the term EKG for consistency.

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defendant, he “complete[s] one study, finish[es] with the study,” and moves to the

next, making findings at each stage before making ultimate findings and preparing

a report.

Here defendant received Mr. Preston’s information sheet, which noted Mr.

Preston’s use of tobacco, his hypertension, of which there was a family history, and

his chest pain. With respect to the EKG tracings, defendant’s written report noted

that there was “no definite significant additional diagnostic ST segment depression

or ST segment elevation recorded during exercise and recovery.” Regarding the

nuclear images, defendant’s report noted a perfusion defect in the heart, which he

thought was likely due to “significant gas in the stomach” but could not rule out

ischemia. His report stated that “one may consider coronary CTA for further

evaluation of coronary arteries in addition to aggressive risk factor modification.”3

Defendant gave an oral report of his interpretation of the results of the test to his

first-year cardiology fellow, Dr. Deepak Joshi, who entered a “fellow note” into Mr.

Preston’s chart. The note stated: “[n]uclear stress test showed mild ischemia versus

attenuation artifact in the inferolateral/inferior apical area. Discussed with Dr.

Movahed, attending. Recommend outpatient cardiac CTA. Will arrange for the test

and outpatient cardiology follow-up. Plan discussed with primary team.”

3 Defendant testified that aggressive risk factor modification refers to activities like
ceasing smoking, losing weight, exercising, and using a low-dose aspirin.

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Opinion of the Court

Dr. Neha Doctor, a hospitalist, examined Mr. Preston after the nuclear stress

test. Plaintiff alleges that she and Mr. Preston were informed that the cardiac tests

had been negative and that Mr. Preston’s left-sided pain was likely neurological, not

heart-related. Dr. Doctor discharged Mr. Preston with instructions to follow up with

his primary care physician about an MRI and to follow up with the CT angiogram

(CTA) appointment made by the cardiology team. This outpatient cardiology follow-

up was scheduled for sixteen days later on 20 February 2014.

Two days after being discharged, Mr. Preston saw his primary care physician,

who referred him for an MRI of his spine. The MRI showed no neurological cause for

Mr. Preston’s continuing left arm pain.

On 13 February 2014, a week before his scheduled cardiac follow-up, Mr.

Preston was at home when he called out to his wife. When plaintiff reached her

husband, she found him collapsed on the floor and unresponsive. Responding to

Plaintiff’s 911 call, EMS found Mr. Preston pulseless and breathing about four times

per minute, and therefore began resuscitation measures and transporting him to

Vidant Medical Center. At Vidant’s Emergency Department, further resuscitation

efforts were unsuccessful and Mr. Preston was pronounced dead at 5:35 that

afternoon. An autopsy revealed severe narrowing of the circumflex and right

coronary arteries, acute and evolving myocardial infarction, and transmural rupture

of the left ventricular wall of Mr. Preston’s heart.

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Opinion of the Court

On 25 November 2015, plaintiff filed a wrongful death action (the First

Complaint) naming multiple defendants involved in Mr. Preston’s medical care,

including Dr. Neha Doctor. In accordance with the special pleading requirements of

section (j) (Medical malpractice) of Rule 9 (Pleading special matters) of the North

Carolina Rules of Civil Procedure, plaintiff alleged in the complaint that the medical

care and medical records pertaining to Mr. Preston’s treatment had been reviewed by

a person reasonably expected to qualify as an expert witness under Rule 702 of the

North Carolina Rules of Evidence and who was willing to testify that the medical care

did not comply with the applicable standard of care. Dr. Stuart Toporoff, a

cardiologist, submitted an affidavit (his First Affidavit) averring that he had reviewed

the medical care and records and was willing to testify that the care provided failed

to comply with the applicable standard of care. On 29 January 2016, Dr. Doctor filed

an answer alleging that Dr. Movahed’s written report of Mr. Preston’s stress test was

not available to her when she was treating Mr. Preston, and that the cardiology team

had recommended and taken responsibility for scheduling Mr. Preston’s outpatient

follow-up CTA.

On 12 February 2016 plaintiff filed a second complaint (the Second Complaint)

naming as defendants Dr. Movahed, Dr. Deepak Joshi, and Pitt County Memorial

Hospital, Inc., d/b/a Vidant Medical Center (the Hospital). Plaintiff’s Second

Complaint, which again included her Rule 9(j) expert certification, alleged that

defendant was negligent by, inter alia, failing to “accurately interpret and

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communicate the findings and significance of diagnostic tests performed on Mr.

Preston,” failing to “timely suggest and perform a full assessment and work-up to rule

out life-threatening acute coronary artery disease for a patient at high risk for the

disease, including but not limited to, cardiac catheterization,” and failing “to

recommend a cardiology consult for Mr. Preston prior to his discharge from Vidant

Medical Center with acute chest pain.” On the same day the Second Complaint was

filed, Dr. Toporoff submitted a second affidavit (his Second Affidavit) stating that he

had reviewed the medical care and records and was willing to testify that the care

provided by the named defendants failed to comply with the applicable standard of

care. Dr. Toporoff averred that the case materials were first provided to him in July

of 2015 and that “[a]dditional materials were provided to [him] on October 12 and

October 29, 2015 and on February 10, 2016.” According to the affidavit, Dr. Toporoff’s

stated that based on his review of the medical records and his training and

experience,

[i]t is my opinion that medical care provided to William
Preston during his admission to Vidant Medical Center on
February 3–4, 2014 for chest pain failed to comply with the
applicable standard of care for the evaluation of a patient
with chest and arm pain who presented with Mr. Preston’s
signs, symptoms, and medical history. . . . I have expressed
my willingness to testify to the above if called upon to do
so.

By consent order filed 14 March 2016, the two actions were consolidated for discovery

and trial.

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During a subsequent deposition on 23 March 2017, Dr. Toporoff testified that

he was critical of defendant’s interpretation and communication of the results of the

nuclear stress test. Dr. Toporoff stated that he had initially been unwilling to testify

against defendant because he was not qualified to criticize defendant’s interpretation

of the nuclear images from the test and that he “refused to be a nuclear cardiologist

against him.” Dr. Toporoff confirmed, however, that at the time he submitted his

Second Affidavit he was comfortable stating that defendant “failed to meet the

standard of care as it applies to a cardiologist interpreting a treadmill stress test.”

On 16 June 2017, defendant filed a motion to dismiss pursuant to Rules

12(b)(6), 9(j) and 41 of the North Carolina Rules of Civil Procedure. On 15 September

2017, Dr. Toporoff submitted a third affidavit (his Third Affidavit), stating that prior

to the First Complaint he communicated to plaintiff’s counsel that he did not have

sufficient information to state that defendant and/or Dr. Joshi clearly violated any

standards of care. However, Dr. Toporoff stated that following discovery answers

served by Vidant Medical Center and Dr. Doctor regarding the communication of Mr.

Preston’s stress test results by defendant and Dr. Joshi, he learned “that Dr.

Movahed’s report was NOT made available to [Dr. Doctor] prior to Mr. Preston’s

discharge.” Dr. Toporoff averred that he informed plaintiff’s counsel on 12 February

2016 that he was willing to testify that defendant and Dr. Joshi breached the

applicable standard of care by “fail[ing] to interpret, diagnose, document and

communicate to the ordering physician the presence of chest pain and ST wave

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Opinion of the Court

depression changes during Mr. Preston’s nuclear stress test that were consistent with

ischemia; and failure to recommend an immediate cardiology consult for Mr. Preston

prior to his discharge.” Dr. Toporoff stated that he held these opinions “[s]ince [his]

review of the totality of these medical records and documents in February in 2016.”

At the hearing on the motion to dismiss on 18 September 2017, defendant

argued that plaintiff failed to comply with Rule 9(j) because Dr. Toporoff could not

reasonably be expected to qualify as an expert witness and was not willing to testify

that defendant breached the applicable standard of care. The trial court entered an

order on 25 October 2016, in which it found, in pertinent part:

22. Dr. Toporoff . . . admitted that Dr. Movahed’s
involvement was limited to the interpretation of the
nuclear stress test that was performed on Mr. Preston.

....

24. Dr. Toporoff only agreed to testify in the Second
Lawsuit if Plaintiff’s counsel retained a nuclear
cardiologist.

....

27. [A]s of the date the Second Lawsuit was filed,
Plaintiff had no cardiologist competent or willing to testify
against . . . Dr. Movahed.

The trial court also found that plaintiff could not have reasonably expected Dr.

Toporoff to qualify as an expert witness. Accordingly, the trial court concluded that

plaintiff failed to comply with Rule 9(j) and granted defendant’s motion to dismiss.

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On 3 November 2017, a Consent Order was entered on the parties’ Consent Motion

to Sever the two cases for appeal. Plaintiff appealed this case to the Court of Appeals.

At the Court of Appeals,4 plaintiff argued, inter alia, that the trial court’s

Findings 22, 24, and 27 were not supported by competent evidence and that the trial

court erred in concluding that plaintiff failed to comply with Rule 9(j). The court

disagreed, first stating that the standard of review was de novo and that:

[w]here, as here, “a trial court determines a Rule 9(j)
certification is not supported by the facts, ‘the court must
make written findings of fact to allow a reviewing appellate
court to determine whether those findings are supported by
competent evidence, whether the conclusions of law are
supported by those findings, and, in turn, whether those
conclusions support the trial court’s ultimate
determination.’ ”

Preston, 825 S.E.2d at 662 (quoting Estate v. Wooden ex rel. Jones v. Hillcrest

Convalescent Ctr., Inc., 222 N.C. App. 396, 403 (2012)).

Applying this standard, the court first addressed plaintiff’s challenge to

Finding of Fact 22 and concluded that it was supported by the following exchange

from Dr. Toporoff’s deposition:

Q. You know that Dr. Movahed’s involvement in this
case is the interpretation of the nuclear stress test that was
performed on Mr. Preston? You understand that; correct?

A. Yes.

4 Plaintiff entered into settlement agreements with Dr. Joshi and the Hospital and on
plaintiff’s motions the Court of Appeals dismissed those parties from the appeal on 15 August
2018 and 13 September 2018, respectively.

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Opinion of the Court

Id. at 662. While Plaintiff contended that “the nuclear stress test involves two parts:

the exercise treadmill stress test and the nuclear heart images” and that “Dr. Toporoff

was critical of Dr. Movahed’s interpretation of the . . . exercise treadmill portion,

which revealed issues with Mr. Preston’s heart requiring immediate further testing,”

the court determined that plaintiff’s explanation did not make the challenged finding

erroneous because “[t]he well-established rule is that findings of fact by the trial court

supported by competent evidence are binding on the appellate courts even if the

evidence would support a contrary finding.” Id. at 662 (quoting Scott v. Scott, 336

N.C. 284, 291, 442 S.E.2d 493, 497 (1994)).

The court next addressed plaintiff’s argument that Finding 24 was erroneous

because Dr. Toporoff: (1) opined in his Rule 9(j) affidavits that Preston’s medical care

failed to comply with the standard of care and “expressed [his] willingness to testify

to the above if called upon to do so”; and (2) testified when deposed that, at the time

he signed his Second Affidavit prior to the filing of the Second Complaint, he “felt

comfortable saying that Dr. Movahed failed to meet the standard of care as to the

interpretation of the exercise treadmill test.” Id. at 662. The court determined that

Dr. Toporoff’s deposition testimony, including his testimony that “he would not testify

against Dr. Movahed unless [plaintiff] came up with a nuclear cardiologist” provided

competent evidence directly supporting the trial court’s challenged finding, even if

Dr. Toporoff’s Rule 9(j) affidavits or other deposition testimony could support a

different finding. Id. at 663. Further, the court rejected plaintiff’s efforts to

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distinguish between Dr. Toporoff’s opinions of defendant’s interpretation of the NST

images as opposed to the results of the treadmill stress test. See id. (“Plaintiff

emphasizes Dr. Toporoff’s later deposition testimony in which he confirmed he “had

opinions separate and apart from the NST images” and was “comfortable . . . when

[he] did the 9(j) affidavit[ ] . . . saying that Dr. Movahed failed to meet the standard

of care as it applies to a cardiologist interpreting a treadmill stress test[.]”). According

to the court:

Dr. Toporoff’s statement that he “had opinions separate
and apart from the NST images” was immediately followed
by his confirmation that he “didn’t feel as confident
expressing those [opinions] until [he] had some kind . . . of
support for the NST images as well.” Moreover, merely
having an opinion does not indicate one’s willingness to
testify as to that opinion. Additionally, Dr. Toporoff’s
confirmation that he was “comfortable . . . when [he] did
the 9(j) affidavit . . . saying that Dr. Movahed failed to meet
the standard of care as it applies to a cardiologist
interpreting a treadmill stress test” was not an
unequivocal assertion that he was “willing to testify”
against Dr. Movahed. Regardless of whether Dr. Toporoff
had opinions or was comfortable saying something about
Dr. Movahed regarding the treadmill-stress-test
component of interpreting the NST, Dr. Toporoff’s
testimony considered contextually establishes that his
willingness to testify against Dr. Movahed in any capacity
was conditioned upon having the support of a nuclear
cardiologist who was competent and willing to testify
against Dr. Movahed as to the nuclear-imaging component.

Id.

Next, the court addressed plaintiff’s challenge to Finding 27. Having

previously concluded that evidence supported the trial court’s finding that Dr.

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Toporoff only agreed to testify if plaintiff retained a nuclear cardiologist, the court

noted that the two nuclear cardiologists were consulted months after the Second

Complaint was filed and after the statute of limitations had expired and concluded

that Finding 27 was supported by competent evidence. Id. at 663–64.

Finally, the court reviewed whether the trial court’s findings support its

conclusions and its ultimate decision to dismiss plaintiff’s complaint for substantive

Rule 9(j) noncompliance. In light of the findings that Dr. Toporoff was plaintiff’s only

cardiologist who had reviewed Preston’s care before the Second Complaint was filed,

that Toporoff only agreed to testify if plaintiff hired a nuclear cardiologist, and that

plaintiff failed to consult with the other nuclear cardiologists she retained until

months after she filed the Second Complaint, the court determined that the trial court

correctly concluded that plaintiff’s Second Complaint failed to comply with Rule 9(j)

because she had no cardiologist willing to testify against defendant at the time of

filing. Id. at 665. In light of this conclusion, the court did not address the trial court’s

determination that plaintiff failed to substantively comply with Rule 9(j)’s

requirement that it was reasonable for plaintiff to expect Dr. Toporoff to qualify as

an expert witness against defendant. Id. at 665.

Plaintiff filed a petition for discretionary review on the general issues of the

appropriate legal standard to apply to a motion to dismiss on Rule 9(j) grounds and

whether the Court of Appeals erred in failing to conduct a de novo review of the trial

court’s order dismissing the complaint. Defendant’s response to the petition indicated

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their intent to present to this Court the further issue of whether Dr. Toporoff was

qualified to testify against Dr. Movahed. This Court allowed the petition on 14

August 2019.

Analysis

After careful review of the record, we conclude that both of the lower courts

erred in failing to view the evidence regarding Dr. Toporoff’s willingness to testify

under Rule 9(j) in the light most favorable to plaintiff and that the Court of Appeals,

in its de novo review, erred by deferring entirely to the findings of the trial court.

“Rule 9(j) serves as a gatekeeper, enacted by the legislature, to prevent

frivolous malpractice claims by requiring expert review before filing of the action.”

Vaughan v. Mashburn, 371 N.C. 428, 434, 817 S.E.2d 370, 375 (2018) (quoting Moore

v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812, 817 (2012)). The rule provides, in pertinent

part:

Any complaint alleging medical malpractice by a health
care provider pursuant to G.S. 90-21.11(2)a. in failing to
comply with the applicable standard of care under G.S. 90-
21.12 shall be dismissed unless:

(1) The 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;

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N.C.G.S. § 1A-1, Rule 9(j) (2019).5 Thus, the rule prevents frivolous claims “by

precluding any filing in the first place by a plaintiff who is unable to procure an expert

who both meets the appropriate qualifications and, after reviewing the medical care

and available records, is willing to testify that the medical care at issue fell below the

standard of care.” Vaughan, 371 N.C. at 435, 817 S.E.2d at 375.

In Moore v. Proper, this Court addressed the manner in which a trial court

should evaluate compliance with Rule 9(j), as well as the standard of review for a

reviewing court on appeal. There, the plaintiff filed a medical malpractice complaint

against the defendants alleging that the defendants were “negligent in the

performance of her tooth extraction and in failing to provide follow-up care.” Moore,

366 N.C. at 26, 726 S.E.2d at 814. Following a deposition of the plaintiff’s Rule 9(j)

certification expert, the defendants filed a motion for summary judgment pursuant

to Rule 9(j). The trial court granted the defendants’ motion and dismissed the

5 The rule also provides that a complaint is in compliance if:

(2) The 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 that the complainant 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; or

(3) The pleading alleges facts establishing negligence under the
existing common-law doctrine of res ipsa loquitur.

N.C.G.S. 1A-1, Rule 9(j).

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plaintiff’s case for noncompliance with Rule 9(j), stating: “no reasonable person would

have expected [the plaintiff’s expert] to qualify as an expert witness under Rule 702.”

Id. at 28, 726 S.E.2d at 815. Following a split decision in the Court of Appeals

reversing the trial court, the defendants appealed to this Court.

The Court first addressed whether an expert must actually qualify under Rule

702 in order to satisfy Rule 9(j)’s requirement that the certification expert “is

reasonably expected to qualify as an expert witness under Rule 702.” The Court noted

that “Rule 9(j) . . . operates as a preliminary qualifier to ‘control pleadings’ rather

than to act as a general mechanism to exclude expert testimony.” Id. at 31, 726

S.E.2d at 817. Moreover, because of the presumption “that that the legislature

carefully chose each word used,” and in order to “give every word of the statute effect,”

the Court concluded: “we must ensure that the two questions are not collapsed into

one. Id. at 31, 726 S.E.2d at 817. Thus, while “[t]he trial court has wide discretion to

allow or exclude testimony under” Rule 702, id. at 31, 726 S.E.2d at 817 (quoting

State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)), “the preliminary,

gatekeeping question of whether a proffered expert witness is ‘reasonably expected

to qualify as an expert witness under Rule 702’ is a different inquiry,” id. at 31, 726

S.E.2d at 817 (citing N.C.G.S. § 1A-1, Rule 9(j)); see also id. at 31, 726 S.E.2d at 817

(stating that “a trial court must analyze whether a plaintiff complied with Rule 9(j)

by including a certification complying with the Rule before the court reaches the

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ultimate determination of whether the proffered expert witness actually qualifies

under Rule 702”).

In addressing the Rule 9(j) inquiry, the Court explained that “[b]ecause Rule

9(j) requires certification at the time of filing that the necessary expert review has

occurred, compliance or noncompliance with the Rule is determined at the time of

filing.” Id. at 31, 726 S.E.2d at 817 (citations omitted). The Court agreed with

previous Court of Appeals precedent holding that “a court should look at ‘the facts

and circumstances known or those which should have been known to the pleader’ at

the time of filing,” id. at 31, 726 S.E.2d at 817 (quoting Trapp v. Maccioli, 129 N.C.

App. 237, 241, 497 S.E.2d 708, 711 (1998)), “as any reasonable belief must necessarily

be based on the exercise of reasonable diligence under the circumstances,” id. at 31,

726 S.E.2d at 817 (citing Fort Worth & Denver City Ry. Co. v. Hegwood, 198 N.C. 309,

317, 151 S.E. 641, 645 (1930)). Additionally, the Court noted that “a complaint

facially valid under Rule 9(j) may be dismissed if subsequent discovery establishes

that the certification is not supported by the facts, at least to the extent that the

exercise of reasonable diligence would have led the party to the understanding that

its expectation was unreasonable.” Id. at 31–32, 726 S.E.2d at 817 (citing Barringer

v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 255, 677 S.E.2d 465, 477

(2009); Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d 153, 157 (2008)). The

Court further explained:

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Though the party is not necessarily required to know all
the information produced during discovery at the time of
filing, the trial court will be able to glean much of what the
party knew or should have known from subsequent
discovery materials. But to the extent there are reasonable
disputes or ambiguities in the forecasted evidence, the trial
court should draw all reasonable inferences in favor of the
nonmoving party at this preliminary stage of determining
whether the party reasonably expected the expert witness
to qualify under Rule 702. When the trial court determines
that reliance on disputed or ambiguous forecasted evidence
was not reasonable, the court must make written findings
of fact to allow a reviewing appellate court to determine
whether those findings are supported by competent
evidence, whether the conclusions of law are supported by
those findings, and, in turn, whether those conclusions
support the trial court’s ultimate determination. We note
that because the trial court is not generally permitted to
make factual findings at the summary judgment stage, a
finding that reliance on a fact or inference is not reasonable
will occur only in the rare case in which no reasonable
person would so rely.

Id. at 32, 726 S.E.2d 817–18 (citations omitted).

Applying this standard, the Moore Court—construing all disputes or

ambiguities in the factual record in favor of the plaintiff—determined that plaintiff’s

complaint complied with Rule 9(j) in that plaintiff reasonably expected her proffered

expert to qualify under Rule 702. Id. at 35, 726 S.E.2d at 819–20. The Court

expressed no opinion on whether the plaintiff’s expert would actually qualify under

Rule 702 and “note[d] that, having satisfied the Rule 9(j) pleading requirements,

plaintiff has survived the pleadings stage of her lawsuit and may, at the trial court’s

discretion, be permitted to amend the pleadings and proffer another expert” in the

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event that her proffered expert later failed to qualify under Rule 702. Id. at 36, 726

S.E.2d at 820.

While the Rule 9(j) issue in Moore arose in the context of a motion for summary

judgment and focused specifically on whether the plaintiff’s expert was reasonably

expected to qualify as an expert witness, we conclude that the analytical framework

set forth in Moore applies equally to other Rule 9(j) issues in which “a complaint

facially valid under Rule 9(j)” is challenged on the basis that “the certification is not

supported by the facts.” Id., 366 at 31–32, 726 S.E.2d at 817 (citing Barringer, 197

N.C. App. at 255, 677 S.E.2d at 477). For instance, where, as here, a defendant files

a motion to dismiss under Rule 12(b)(6) challenging a plaintiff’s facially valid

certification that the reviewing expert was willing to testify at the time of the filing

of the complaint, the trial court must examine “ ‘the facts and circumstances known

or those which should have been known to the pleader’ at the time of filing,” id. at 31,

726 S.E.2d at 817 (quoting Trapp, 129 N.C. App. at 241, 497 S.E.2d at 711), and “to

the extent there are reasonable disputes or ambiguities in the forecasted evidence,

the trial court should draw all reasonable inferences in favor of the nonmoving party

at this preliminary stage,” id. at 32, 726 S.E.2d 817–18 (citations omitted). “When

the trial court determines that reliance on disputed or ambiguous forecasted evidence

was not reasonable, the court must make written findings of fact to allow a reviewing

appellate court to determine whether those findings are supported by competent

evidence.” Id. at 32, 726 S.E.2d at 818 (citations omitted).

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Opinion of the Court

We stress that Rule 9(j) is unique and that because the evidence must be taken

in the light most favorable to the plaintiff, the nature of these “findings,” and the

“competent evidence” that will suffice to support such findings, differs from situations

where the trial court sits as a fact-finder. We do not view the legislature’s enactment

of Rule 9(j) as intending for the trial court to engage in credibility determinations and

weigh competent evidence at this preliminary stage of the proceedings. See id. at 31,

726 S.E.2d at 817 (stating that Rule 9(j) “operates as a preliminary qualifier to

‘control pleadings’ rather than . . . as a general mechanism to exclude expert

testimony” (citing Thigpen, 355 N.C. at 203–04, 558 S.E.2d at 166)); see also State v.

Dew, 225 N.C. App. 750, 760, 738 S.E.2d 215, 222 (2013) (“[T]he credibility of and

weight to be given to the expert’s testimony is a question for the jury rather than the

trial court.” (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 460–61, 597 S.E.2d

674, 687–88 (2004))). Thus, it is erroneous to conclude, as the Court of Appeals did

here with respect to the trial court’s findings regarding Dr. Toporoff’s willingness to

testify, that a Rule 9(j) “finding” “supported by competent evidence [is] binding on the

appellate courts even if the evidence would support a contrary finding.” Preston, 825

S.E.2d at 662 (quoting Scott, 336 N.C. at 291, 442 S.E.2d at 497).

Defendant here agrees that Moore supplies the appropriate standard for

evaluating plaintiff’s compliance with Rule 9(j) but nevertheless contends that the

factual record clearly demonstrates Dr. Toporoff’s unwillingness to testify such that

there is no reasonable dispute or ambiguity in the evidence. Defendant argues that

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Opinion of the Court

the evidence establishes that Dr. Toporoff was not willing to testify unless plaintiff

retained a nuclear cardiologist and that plaintiff did not retain a nuclear cardiologist

at the time of the filing of the Second Complaint. Thus, defendant contends that the

trial court’s finding that Dr. Toporoff was not willing to testify at the time of filing

was supported by the evidence and the trial court’s conclusion that plaintiff’s

complaint failed to comply with Rule 9(j) was supported by the findings.

On the other hand, plaintiff argues that the trial court mistakenly interpreted

evidence of Dr. Toporoff’s unwillingness to testify against defendant at the time of

the First Complaint as evidence that he was unwilling to testify against defendant at

the time of the Second Complaint (in which defendant was added to the lawsuit) and

also failed to apprehend that a “nuclear stress test” contains separate and distinct

parts: (1) the EKG treadmill test, about which Dr. Toporoff is undisputedly qualified

to testify; and (2) interpretation of the nuclear images. According to plaintiff, taking

the evidence in the light most favorable to plaintiff, the factual record clearly

demonstrates that after receiving new information in Dr. Doctor’s Answer following

the filing of the First Complaint, Dr. Toporoff was willing at the time of the filing of

the Second Complaint to testify against defendant without the need for any nuclear

cardiologist on the basis that defendant failed to meet the standard of care as a

cardiologist interpreting a treadmill stress test—specifically, by failing to accurately

interpret and document the EKG treadmill test, failing to timely and effectively

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Opinion of the Court

communicate the results to the hospitalist, and failing to recommend a cardiac

consult prior to Mr. Preston’s discharge.

We conclude that taking the evidence in the light most favorable to plaintiff,

including Dr. Toporoff’s affidavits and his deposition testimony, the factual record

clearly supports a reasonable inference that at the time of the filing of the Second

Complaint Dr. Toporoff was willing to testify that defendant failed to comply with the

applicable standard of care as a cardiologist.

Here, plaintiff’s compliance with Rule 9(j) is measured at the time of the filing

of the Second Complaint on 12 February 2016, as that was when Dr. Movahed was

added as a defendant in the action. See Moore, 366 N.C. at 31, 726 S.E.2d at 817

(“[C]ompliance or noncompliance with the Rule is determined at the time of filing.”

(citations omitted)). In his Second Affidavit, submitted at the time of the filing of the

Second Complaint, Dr. Toporoff averred that:

[I]t is my opinion that medical care provided to William
Preston during his admission to Vidant Medical Center on
February 3 – 4, 2014 for chest pain, failed to comply with
the applicable standard of care for the evaluation of a
patient with chest and arm pain who presented with Mr.
Preston’s signs, symptoms and medical history. I first
expressed this opinion to Ms. Armstrong on August 1, 2015
and I provided additional opinion on September 20, 2015,
on October 28, 2015 and on February 9, 2016. I have
expressed my willingness to testify to the above if called
upon to do so.

The ambiguity in Dr. Toporoff’s willingness to testify involves his deposition

testimony. In Dr. Toporoff’s 23 March 2017 deposition, he had difficulty remembering

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Opinion of the Court

when he formed his opinions of defendant. Dr. Toporoff testified that he had not

formulated any opinions regarding defendant prior to the First Complaint in 2015,

explaining that he told plaintiff he was unwilling to testify against defendant unless

she retained a nuclear cardiologist:

A: It’s coming back to me. I think I had always
been critical of Dr. Movahed and I told [plaintiff’s counsel]
that I did not feel competent in criticizing him because I
knew what would happen in the sense that he would put
up these images and I would look like a fool trying to
interpret the images.

And I believe I said to her I would not add him to my
lawsuit unless she got another nuclear cardiologist to
interpret the images. I did not want to get into an across-
the-table where he is highly competent in that field on
paper and I have no business criticizing his summaries.

Q. Because you’re not qualified as –

A. Correct.

Q. – a nuclear cardiologist?

A. That’s how his name got added later. I
refused to be a nuclear cardiologist against him.

Q. Sure.

A. That, I think, is what happened.

Q. Because you’re not a nuclear cardiologist?

A. Absolutely.

Q. So it would be inappropriate for you to render
any opinions –

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Opinion of the Court

A. Right.

Q. – regarding Dr. Movahed because of that.

A. But that’s why his name was left out the first
time.

At different points later in the deposition, Dr. Toporoff testified:

A. At the beginning, I just wanted to make it
clear, because I remember a conversation I had with
[Plaintiff's attorney], that I would not testify against Dr.
Movahed unless she came up with a nuclear cardiologist
because I did not want to be across from him where he’s
talking about nuclear images and I have to say, I know
nothing. And once we agreed that she would get somebody
else, then I felt I could handle myself clinically.

....

Q. I think you said earlier that you initially did
not feel competent to give testimony as to Dr. Movahed, but
you told [plaintiff’s counsel] that if she got a nuclear guy,
then you would feel competent to give testimony and I’m
not sure I understood why you said that.

A. I anticipated that if it were just my testimony
against [defendant], he would say I had no business in
making any judgment about his readings and what he does
with them, and he would be completely correct.

But once I didn’t have to worry about
anything about looking at this doughnut hole [the nuclear
images] and what do you think of it, then I felt much, much
more comfortable because it was a clinical situation purely.

Q. All Right. So you had opinions separate and
apart from the NST images, but you didn’t feel as confident
expressing those until you had some kind –

A. Correct.

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Opinion of the Court

Q. -- of support for the NST images as well?

A. Correct.

While this testimony is ambiguous as to whether Dr. Toporoff’s condition that

plaintiff retain a nuclear cardiologist continued beyond the time of the filing of the

First Complaint, the testimony still appears to be focused on the time period prior to

the filing of the First Complaint (i.e. “at the beginning”) and in it Dr. Toporoff

expressed his concern that his criticisms of defendant were not sufficiently distinct

from defendant’s interpretation of the nuclear images such that he was willing to

testify against defendant as a “cardiologist” at that time—as Dr. Toporoff put it, he

“refused to be a nuclear cardiologist against him.” Significantly, we note that later

in the deposition Dr. Toporoff testified as follows regarding the time of the filing of

the Second Complaint when he submitted his Second Affidavit:

Q. And going back [to] your testimony about your
opinions about Dr. Movahed in this case, you explained to
[defendant’s counsel] on the record that you were not
comfortable testifying as to the nuclear imaging
interpretation by Dr. Movahed.

Were you comfortable and do you remain
comfortable at the time – at this time when you did the 9(J)
affidavit, [emphasis added] were you comfortable saying
that Dr. Movahed failed to meet the standard of care as it
applies to a cardiologist [emphasis added] interpreting a
treadmill stress test?

A. Yes.

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Opinion of the Court

This “cardiologist” distinction is significant as a full reading of Dr. Toporoff’s

deposition, along with Dr. Toporoff’s third affidavit, taken in the light most favorable

to plaintiff clearly supports the inference urged by plaintiff—that the nature of Dr.

Toporoff’s opinions concerning defendant significantly changed when, following the

filing of the First Complaint, he realized that Dr. Movahed’s written report of the

nuclear stress test, which had been included in the medical files that he previously

reviewed, had not actually been included in Mr. Preston’s medical chart—and

therefore was not seen by Dr. Doctor—until after Mr. Preston was discharged from

the hospital.

Dr. Toporoff testified that he first reviewed defendant’s involvement in the case

when he received the medical files in 2015 prior to the filing of the First Complaint,

stating that “you couldn’t not see it when you were reviewing the entire case” and

that he “didn’t understand why [defendant’s] report had not commented on two

important issues during the nuclear study, namely the fact that the man had chest

pain on the treadmill and that there were EKG changes that were either ignored or

not noticed.” Thus, at the beginning Dr. Toporoff was critical of defendant’s report as

it related to Mr. Preston’s chest pain and the EKG tracings from the exercise portion

of the stress test. Dr. Toporoff noted that he “do[es] about 250 to 300 treadmills a

year” and explained that two of the ways you can “flunk” a stress test are “if the test

provokes chest pain” and if “EKG changes during the treadmill worsened . . . and

fulfilled the criteria for a positive exercise treadmill test for myocardial ischemia.”

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Opinion of the Court

Dr. Toporoff was also critical of the report’s suggestion that “one may consider a

CTA,” a type of angiogram he described as an outpatient procedure that in most cases

is “a week or two down the line, as it was in this case.” This was the “wrong test,”

according to Dr. Toporoff, as Mr. Preston needed an immediate “cardiologist consult,”

which “would have led to a cardiac catheterization which is the test that he really

needed.”

According to Dr. Toporoff, the plan from the physician ordering the test was

that if the nuclear stress test was normal, Mr. Preston would be discharged, and in

his view the “stress test was clearly not normal”:

A. The treadmill test was, in my judgment,
completely abnormal and consistent with myocardial
ischemia. And he thought -- he indicated in the exercise
physiology portion that he didn’t see any abnormality. I
think he was wrong.

Similarly, the chest pain on the treadmill is a very
important clinical feature that he did not mention in his
final impression.

However, Dr. Toporoff acknowledged that the phrase “chest pain during exercise” was

included in the report, that the report did not rule out ischemia, and that the report

did not characterize the test as “normal.”

Significantly, much of Dr. Toporoff’s criticism was reserved not for the report

itself, but on the fact that this report was not made available until after Mr. Preston’s

discharge, and that in its place defendant failed to effectively communicate the

significance of the results of the test to the attending doctor, Dr. Doctor. Dr. Toporoff

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Opinion of the Court

testified that Mr. Preston’s death was caused by a “breakdown of the whole system,”

that he “shouldn’t have gone home,” and that it started with defendant. According to

Dr. Toporoff:

A. Well, it starts off with that Dr. Joshi is in his
second day as a nuclear cardiology fellow, . . . . And in this
particular week or day he was assigned to Dr. Movahed.

Of all the people who read nuclear cardiology tests,
it appears that they either typed their own reports right
into the electronic medical record.

. . . . Dr. Movahed is the only one who dictated his
report, which means the hospital has to hire a
transcriptionist and that report does not appear in the
chart until the following day.

. . . . [H]e doesn’t call the doctor. He assigns Dr.
Joshi on his second day to explain the nuclear findings to,
in this case, Dr. Doctor because she was the hospitalist of
record.

Dr. Toporoff stated that the “report hit the chart February 5th at about 8:30 in the

morning . . . and the patient was long gone,” and that the “patient was discharged

before the report was in the chart and I think [that] was instrumental in allowing

Mr. Preston to die.” Dr. Toporoff further explained:

A. Let me amplify. If you’re dealing with an
outpatient procedure, the guy isn’t that sick, he comes in.
I’m not going to say that every one at our hospital is ready
the same day. You can do it a day or two later. Maybe it’s
not great medicine, but it’s nothing terrible. But when a
guy comes in through the emergency room and you rule out
MI and he’s having chest discomfort, that report should be
available that same day.

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Opinion of the Court

Q. And this is a report by a nuclear cardiologist?

A. Yes.

Q. Which you are not?

A. I don’t think it matters whether I am or not.
I know when a report should be due.

In Dr. Toporoff’s view, given the information that defendant possessed, “especially

since he knows when that report is going to be available on the computer, I think he

should have picked up the telephone himself and called Dr. Doctor and said, You have

a problem there. I would get the consulting service to see this patient.” As Dr.

Toporoff put it, “to have a nuclear cardiology report that’s abnormal, you can’t just

dictate it and walk away. That’s wrong.”

Further, Dr. Toporoff opined that it would not have been appropriate to

delegate such a task to Dr. Joshi, stating “[w]hen a test is that abnormal, I think the

physician of record should take no chances and should speak to the doctor himself

personally.” In that respect, Dr. Toporoff noted that Dr. Joshi’s note, which was

added to the medical chart and received by Dr. Doctor before Mr. Preston’s discharge,

made no mention of the fact that Mr. Preston experienced chest pain during the

treadmill test or of any ST abnormalities.

Thus, a significant portion of Dr. Toporoff’s criticism of defendant’s conduct

was based not on the report that he received with the medical records back in 2015

but rather on the fact that the report was not made available to the attending

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Opinion of the Court

hospitalist prior to Mr. Preston’s discharge. As such, it reasonable to infer that while

Dr. Toporoff was unwilling to testify against defendant purely on the basis of the

report, part of which he acknowledged he was not qualified to address (the nuclear

images) and other portions of which he was critical but also conceded did not

characterize the nuclear stress test as normal, he was willing to testify that

defendant’s failure to submit the report or otherwise communicate the results of the

test to the hospitalist was a breach of the standard of care as a cardiologist.

Dr. Toporoff clarified his opinions in his Third Affidavit submitted on 15

September 2017, in which he averred:

5) In November of 2015, I signed an Expert Witness
Affidavit regarding the hospitalist physicians. Around
that time, I communicated to [plaintiff’s counsel] that I did
not have sufficient information to say that Dr. Movahed
and/or Dr. Joshi had clearly violated any standards of care.

6) In February of 2016, I again spoke with [plaintiff’s
counsel], who informed me that she had received additional
information through discovery answers served by Vidant
Medical Center and Dr. Neha Doctor[6] regarding the
communication of Mr. Preston’s stress tests results by Drs.
Movahed and Joshi.

7) Based on the representation by Dr. Doctor in those
documents of the following information: that Dr.

6 Dr. Doctor’s answer stated:

[I]t is admitted that the medical records of Mr. Preston contain
a report of the nuclear stress test which appears to have been
prepared by Dr. Movahed, that this is a written document, which
speaks for itself and is the best evidence of what is contained in
the report, but it is denied that this written report was available
to this Defendant at the time she provided care to Mr. Preston.

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Opinion of the Court

Movahed’s report was NOT available to her prior to Mr.
Preston’s discharge; that Dr. Movahed had specifically
made recommendations to the hospitalists, and that Dr.
Joshi communicated the results of the nuclear stress test
with “cardiology’s” recommendation for an outpatient CT
angiogram, I informed Ms. Armstrong I was willing to
testify that Dr. Movahed and Dr. Joshi violated standards
of care in their collaboration and treatment of Mr. Preston.

8) My criticisms of Drs. Movahed and Joshi include:
failures to interpret, diagnose, document and communicate
to the ordering physician the presence of chest pain and ST
wave depression changes during Mr. Preston’s nuclear
treadmill stress test that were consistent with ischemia,
and failure to recommend an immediate cardiology consult
for Mr. Preston prior to his discharge. These are violations
of the standard of care.

9) Since my review of the totality of these medical records
and documents in February of 2016, I have held these
opinions. I expressed my willingness to testify regarding
the standard of care that applied to Drs. Movahed and
Joshi in their treatment and care of Mr. Preston to Ms.
Armstrong in a phone call on February 12, 2016.

In viewing the evidence in the light most favorable to plaintiff, we conclude

that the evidence does not support the trial court’s findings that “Dr. Toporoff only

agreed to testify in the Second Lawsuit if Plaintiff’s counsel retained a nuclear

cardiologist” and that “as of the date the Second Lawsuit was filed, Plaintiff had no

cardiologist competent or willing to testify against . . . Dr. Movahed.”7 Rather, the

7 We conclude that the trial court’s Finding 22 (“Dr. Toporoff . . . admitted that Dr.
Movahed’s involvement was limited to the interpretation of the nuclear stress test that was
performed on Mr. Preston.”) is supported by the evidence. In his deposition, Dr. Toporoff
agreed with this statement; his opinion was that defendant, having been assigned to
interpret the nuclear stress test, breached the standard of care by failing to accurately
interpret it and communicate its results.

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Opinion of the Court

factual record demonstrates that Dr. Toporoff was willing to testify against defendant

at the time of the filing of the Second Complaint. At a bare minimum, we are certain

that any ambiguity in the evidence is not so unreasonable such that it should be

resolved against plaintiff and result in a finding that plaintiff was unreasonable in

her Rule 9(j) certification that Dr. Toporoff was willing to testify against defendant

at the time of the filing of the Second Complaint. Thus, the trial court’s conclusion

that plaintiff failed to comply with the requirements of Rule 9(j) is unsupported by

its findings to the extent that it is based on plaintiff’s reviewing expert’s purported

unwillingness to testify against defendant.

The trial court also determined that plaintiff could not have reasonably

expected that Dr. Toporoff would qualify as an expert witness, an issue the parties

briefed in the Court of Appeals and before this Court. We hold that at the relevant

time, again taking the evidence in the light most favorable to plaintiff, plaintiff’s

expectation that Dr. Toporoff would qualify as an expert to testify in this case was

reasonable.

In that respect, we note that in declining to address whether plaintiff

reasonably expected Toporoff to qualify under Rule 702, the language of the Court of

Appeals suggested—though it is unclear—that the court was declining to address a

question of whether Dr. Toporoff would actually qualify under Rule 702. See Preston,

825 S.E.2d at 664 (stating that “we need not address the sufficiency of evidence

supporting that part of the finding as to whether Dr. Toporoff was competent to testify

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Opinion of the Court

in any capacity against Dr. Movahed” and that Rule 9(j) prevents “any filing in the

first place by a plaintiff who is unable to procure an expert who both meets the

appropriate qualifications and . . . is willing to testify” (quoting Vaughan, 371 N.C. at

435 817 S.E.2d at 375)). We reiterate in the interest of clarity that under Rule 9(j)

“the preliminary, gatekeeping question of whether a proffered expert witness is

‘reasonably expected to qualify as an expert witness under Rule 702’ is a different

inquiry from whether the expert will actually qualify under Rule 702.” Moore, 366

N.C. at 31, 726 S.E.2d at 817 (citing N.C.G.S. § 1A-1, Rule 9(j)(1)). Further, “to the

extent there are reasonable disputes or ambiguities in the forecasted evidence, the

trial court should draw all reasonable inferences in favor of the nonmoving party at

this preliminary stage of determining whether the party reasonably expected the

expert witness to qualify under Rule 702,” and “a finding that reliance on a fact or

inference is not reasonable will occur only in the rare case in which no reasonable

person would so rely.” Id. at 32, 726 S.E.2d at 818 (citations omitted).

The standards articulated in Moore apply here. As summarized in that case,

under Rule 702(b), there is a three-part test to qualify as an expert witness:

(1) whether, during the year immediately preceding the
incident, the proffered expert was in the same health
profession as the party against whom or on whose behalf
the testimony is offered; (2) whether the expert was
engaged in active clinical practice during that time period;
and (3) whether the majority of the expert's professional
time was devoted to that active clinical practice.

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Opinion of the Court

Moore v. Proper, 366 N.C. at 33, 726 S.E.2d at 818 (footnote omitted). The record in

this case establishes that like Dr. Movahed, Dr. Toporoff is board-certified in internal

medicine and cardiovascular disease. During the relevant time period, and, in fact,

for over forty years, Dr. Toporoff has practiced as a cardiologist, engaged in active

clinical practice treating patients like Mr. Preston. As part of this clinical work, Dr.

Toporoff interprets hundreds of treadmill tests every year, and the treadmill test is

the portion of the stress test relevant to the opinions Dr. Toporoff would testify to at

trial. There is no dispute that the majority of Dr. Toporoff’s professional time was

devoted to his active clinical practice. As such, this is not “the rare case” in which

plaintiff’s reliance was unreasonable. Id. at 31, 726 S.E.2d at 818.

Defendant takes the position that because Dr. Toporoff is not a nuclear

cardiologist and Dr. Movahed does have that specialized expertise, Dr. Toporoff could

not qualify to testify against Dr. Movahed. However, throughout the record as

developed so far, Dr. Toporoff has been clear that he is not purporting to offer expert

opinions about the nuclear imaging portion of the stress. The rule only requires that

an expert witness have experience performing the procedure that is the subject of the

complaint and treats similar patients, not that both the defendant and the testifying

witness have the exact same professional qualifications. Just as a dentist can testify

as an expert on the standards of care relevant to extracting a tooth in a case where

the procedure at issue was actually performed by an oral and maxillofacial surgeon,

a cardiologist who annually interprets hundreds of treadmill tests can testify about

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Opinion of the Court

the standards of care relevant to treadmill tests in a case where the treadmill test

results were not properly handled by a nuclear cardiologist. See, e.g., Roush v.

Kennon, 188 N.C. App. 570, 575–76, 656 S.E.2d 603, 607 (2008). Rule 9(j) is intended

as a gatekeeping rule to prevent the prosecution of frivolous malpractice claims, not

an endless maze of impossible hurdles to bar juries from hearing meritorious cases.

Moore, 366 N.C. at 31, 726 S.E.2d at 817.

Here plaintiff satisfied her Rule 9(j) responsibility by obtaining the opinion of

a doctor who she reasonably expected to meet the three-part test for qualification

under Rule 702(b) on the question of whether defendant violated the standard of care

for cardiologists in reading Mr. Preston’s exercise treadmill stress test and EKG

recordings and communicating those results to Mr. Preston’s ordering physicians.

Conclusion

In sum, we conclude that the trial court and the Court of Appeals erred in

failing to view the factual record in the light most favorable to plaintiff. The trial

court’s findings that Dr. Toporoff was not willing to testify at the time of the filing of

the Second Complaint are not supported by the evidence. The affidavits and Dr.

Toporoff’s deposition testimony demonstrate that after receiving new information in

Dr. Doctor’s answer, Dr. Toporoff was willing to testify at the time of the filing of the

Second Complaint that defendant breached the standard of care. Further, it was

reasonable for the plaintiff to conclude that Dr. Toporoff’s clinical practice as a

cardiologist likely qualified him under Rule 702(b) to express expert opinions

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Opinion of the Court

concerning Mr. Preston’s treadmill test. This complaint should not be dismissed on

Rule 9(j) grounds. We reverse the Court of Appeals and remand for further

proceedings.

REVERSED AND REMANDED.

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 Justice NEWBY dissenting.

The issue in this case is the standard by which an appellate court reviews a

trial court’s dismissal of a complaint for noncompliance with N.C.G.S. § 1A-1, Rule

9(j) (2019). In Moore v. Proper, this Court held that when a trial court dismisses a

claim because it does not comply with Rule 9(j), appellate courts only ask whether

competent evidence in the record supports the trial court’s findings of fact and those

facts support its decision. 366 N.C. 25, 32, 726 S.E.2d 812, 818 (2012). The majority

purports to clarify that standard from Moore, but in fact upends it altogether,

replacing Moore’s appellate deferential standard of review with a de novo standard

used to address summary judgment motions. It thus improperly converts this Court

into a factfinder, removing that task from the trial court and subverting the trial

court’s role as gatekeeper. Because the majority removes this critical and historic role

from the trial court, it undermines the legislative purpose of Rule 9(j) to properly

screen medical malpractice cases.

The trial court determined that a clinical cardiologist was neither willing to

testify nor reasonably expected to qualify to testify against an experienced nuclear

cardiologist whose sole involvement in the case was the interpretation of a nuclear

stress test. The clinical cardiologist by his own admission has not performed a nuclear

stress test and cannot interpret nuclear stress test images. The question in this case

is whether this Court should overrule the trial court’s factually supported decision.
 PRESTON V. MOVAHED

Newby, J., dissenting

The majority disregards the trial court’s findings because it both misconstrues the

facts and ignores the proper standard of review. It therefore undermines Rule 9(j)

and Rule 702 by ignoring the requirement that testimony against specialists must

come from like specialists, and instead effectively says “any doctor will do.” Because

the trial court correctly granted the motion to dismiss, its decision should be upheld.

I respectfully dissent.

The General Assembly enacted Rule 9(j) to establish trial courts as gatekeepers

in medical malpractice actions. Rule 9(j) provides that any medical malpractice action

“shall be dismissed unless” the plaintiff’s medical records and care “have been

reviewed by a person” who is (1) “reasonably expected to qualify as an expert witness

under Rule 702 of the Rules of Evidence,” and (2) “willing to testify that the medical

care did not comply with the applicable standard of care.” N.C.G.S. § 1A-1, Rule

9(j)(1). The General Assembly passed these requirements to ensure that experts in

medical malpractice actions would be “qualified practitioners of a competence similar

to those of the practitioners who are the object of the suit.” Minutes, Meeting on H.

636 & H. 730 Before the House Select Comm. on Tort Reform, 1995 Reg. Sess. (Apr.

19, 1995).

Rule 9(j) thus requires courts to consider whether a witness is reasonably

expected to qualify to testify under Rule 702. Rule 702 allows expert testimony only

if the witness has specialized knowledge through experience or other training, and:

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product

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 PRESTON V. MOVAHED

Newby, J., dissenting

or reliable principles and methods, and (3) the witness has applied those principles

and methods reliably to the facts of the case. For medical malpractice actions

specifically, Rule 702 explains that if the defendant is a specialist, “a person shall not

give expert testimony [against the defendant] on the appropriate standard of health

care” unless the prospective witness “[s]pecialize[s] in the same specialty as the

[defendant]; or [s]pecialize[s] in a similar specialty which includes within its specialty

the performance of the procedure that is the subject of the complaint and ha[s] prior

experience treating similar patients.” N.C.G.S. § 8C-1, Rule 702(b)(1)(a), (b) (2019)

(emphases added).

Thus, for a plaintiff to satisfy Rule 9(j), at the time she filed her complaint she

must have retained a witness willing and competent to testify as to the specific

specialized procedures involved in the defendant’s medical care. By requiring such a

showing, “[t]he legislature’s intent was to provide a more specialized and stringent

procedure for plaintiffs in medical malpractice claims through Rule 9(j)’s requirement

of expert certification prior to the filing of a complaint.” Thigpen v. Ngo, 355 N.C. 198,

203–04, 558 S.E.2d 162, 166 (2002).

This Court, in Moore, described how courts should address motions to dismiss

under Rule 9(j). It first spoke to the role of trial courts. In determining whether a

claim complies with Rule 9(j), this Court said, “the trial court must look to all the

facts and circumstances that were known or should have been known by the [plaintiff]

at the time of filing.” 366 N.C. at 32, 726 S.E.2d at 818. The trial court can consider

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evidence outside of the plaintiff’s affidavit, including evidence which comes to light

after the affidavit is filed. Id. at 31, 726 S.E.2d at 817. This Court explained that if

“there are reasonable disputes or ambiguities in the forecasted evidence, the trial

court should draw all reasonable inferences in favor of the nonmoving party at this

preliminary stage of determining whether the party reasonably expected the expert

witness to qualify under Rule 702.” Id. at 32, 726 S.E.2d at 818. Though only in the

“rare case” will “the trial court determine[ ] that reliance on disputed or ambiguous

forecasted evidence was not reasonable,” in such a case “the court must make written

findings of fact . . . .” Id. at 32, 726 S.E.2d at 818. Moore thus recognized the unique

capacity of the trial court as factfinder, directing that court to weigh reasonably

disputed evidence in favor of the nonmoving party, but recognizing the trial court

may determine in some cases that reliance on disputed or ambiguous forecasted

evidence is unreasonable.

Moore then explained the distinct role of appellate courts on appeal of a trial

court’s Rule 9(j) dismissal. First, an appellate court must determine whether the trial

court’s factual findings are supported by “competent evidence.” Id. at 32, 726 S.E.2d

at 818. Second, if the factual findings are supported by competent evidence, the

appellate court must determine whether the findings support the trial court’s

conclusion that the complaint failed to comply with Rule 9(j). Id. Thus, though Moore

requires trial courts to construe reasonably disputed evidence in the plaintiff’s favor,

it directs appellate courts to uphold trial courts’ dismissals under a deferential

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standard—when competent evidence can be found to support the decision.

This is the second of two lawsuits filed by plaintiff.1 The current action was

filed against Dr. Movahed, Dr. Joshi, and the hospital. Doctor Movahed is a board-

certified nuclear cardiologist, the head of his department, and an instructor of nuclear

cardiology fellows. Doctor Joshi was a clinical cardiologist seeking to become board

certified in nuclear cardiology and therefore was working as a fellow under Dr.

Movahed. The defendants moved to dismiss the claims for failure to comply with Rule

9(j). In response to the motion, plaintiff argued that Dr. Toporoff was qualified and

willing to criticize Dr. Movahed at the time the lawsuit was filed.

With this background, the trial court dismissed plaintiff’s complaints against

all the defendants for noncompliance with Rule 9(j). Regarding Dr. Movahed, it found

the following: that “Dr. Toporoff admitted that he is not a nuclear cardiologist, and

has never interpreted nuclear stress tests”; that “Dr. Toporoff also testified that he

had no business criticizing and did not feel competent criticizing Dr. Movahed’s

interpretation of the [nuclear stress test]”; and that “Dr. Toporoff only agreed to

testify in the [lawsuit against Dr. Movahed] if Plaintiff’s counsel retained a nuclear

cardiologist.” The court thus concluded as a matter of law that plaintiff’s complaint

failed to comply with Rule 9(j) because at the time of filing the lawsuit plaintiff had

1The first action was filed against several hospital defendants and the hospitalists,
including Dr. Prodduturvar and Dr. Doctor.
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Newby, J., dissenting

no expert competent and willing to testify against the defendants.2

The Court of Appeals agreed with the trial court, reaching only the issue of Dr.

Toporoff’s willingness to testify. It properly performed its appellate role as set out in

Moore, holding that the trial court’s finding that Dr. Toporoff was not willing to testify

against Dr. Movahed at the time the complaint was filed was supported by competent

evidence. Preston v. Movahed, 825 S.E.2d 657, 665 (N.C. Ct. App. Mar. 5, 2019).

Applying the standard of review set out by Moore, this Court should affirm the

trial court’s dismissal of plaintiff’s claim for noncompliance with Rule 9(j). The

evidence in this case shows that at the time the complaint was filed, plaintiff could

not have reasonably expected Dr. Toporoff to qualify to testify against Dr. Movahed

regarding either the interpretation of the nuclear stress or the communication of the

test results, and that Dr. Toporoff was not willing to do so.

Doctor Toporoff was neither able nor willing to testify regarding Dr. Movahed’s

interpretation of the nuclear stress test as a whole. Doctor Toporoff’s testimony shows

that he is not a nuclear cardiologist like Dr. Movahed, that he understood that Dr.

Movahed’s only role in the case was to interpret the decedent’s nuclear stress test,

that he does not interpret nuclear cardiology images like those generated by the

nuclear stress test, and that he does not feel competent to do so. Doctor Toporoff

2Plaintiff appealed and subsequently settled with the hospital and Dr. Joshi,
leaving only the action against Dr. Movahed.

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Newby, J., dissenting

explained that before the action was filed, he likely told plaintiff that he would not

comment on the nuclear stress test images but would only comment on the “review of

the summary” of Dr. Movahed’s report, as well as Dr. Movahed’s communication of

that report. He then explained that he told plaintiff he would not testify against Dr.

Movahed at all unless plaintiff also retained a nuclear cardiologist to interpret the

nuclear stress test images. Indeed, he admitted that he “ha[d] no business criticizing

[Dr. Movahed’s] summaries” of nuclear stress test images.

Rule 702(b)(2)(a) specifically requires an expert witness to have the same or

substantially the same specialty as the defendant against whom the witness intends

to testify. Doctor Movahed’s role was limited to the interpretation of the nuclear

stress test, a role that includes interpreting nuclear stress test images, which Dr.

Toporoff admitted he cannot do. Doctor Toporoff also admitted that he is not, and

never has been, a nuclear cardiologist. Clearly plaintiff should have been aware that

a clinical cardiologist like Dr. Toporoff would not qualify to testify against a nuclear

cardiologist regarding a nuclear stress test that only a nuclear cardiologist is able to

interpret. Understanding Dr. Toporoff’s limitations and his express concerns,

plaintiff did eventually identify two nuclear cardiologists willing to serve as expert

witnesses. But neither of them had reviewed the medical care at issue at the time of

the filing of the complaint against Dr. Movahed. Plaintiff therefore should have been

aware at time of filing that a nuclear cardiologist would be required to testify against

another nuclear cardiologist whose involvement was limited to the interpretation of

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Newby, J., dissenting

the nuclear stress test. However, at the time the complaint was filed, plaintiff did not

have a nuclear cardiologist willing to testify.

Plaintiff nevertheless argues that, despite the unified nature of reading a

nuclear stress test, the interpretation of the test can be broken into its component

parts and criticized piecemeal. Thus, plaintiff asserts that a nuclear cardiologist is

not necessary to criticize the care of another nuclear cardiologist. This approach is

exactly what Rule 9(j) and Rule 702 are intended to prevent. It violates the plain

language of Rule 702 which requires a specialist with the same subspecialty who is

familiar with the procedure. Whether a test conducted by a specialist can be broken

into component parts and criticized in this manner itself requires an expert in that

field rendering that opinion. It is not something that a court can simply find without

expert testimony.

Specifically, plaintiff contends that Dr. Toporoff was willing and qualified to

testify as to the EKG portion of the treadmill test. A clinical cardiologist, however, is

not qualified to criticize how a nuclear cardiologist should utilize an EKG in isolation

from the nuclear images. The majority concedes that Dr. Movahed’s involvement in

this case was limited to the interpretation of the nuclear stress test only. And, as Dr.

Toporoff concedes, the nuclear stress test involves reading together both the treadmill

EKG and the nuclear imaging. Therefore, a complete interpretation of a nuclear

stress test requires an understanding of the integration of both of these components.

If Dr. Toporoff could not testify regarding an essential component of that test, the

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Newby, J., dissenting

nuclear images, plaintiff could not reasonably believe his testimony would likely

“assist the trier of fact to understand the evidence or to determine a fact in issue” as

Rule 702 requires. See N.C.G.S. § 8C-1, Rule 702(a). Of course, Dr. Toporoff’s own

testimony supports this conclusion, as he said he would not feel comfortable testifying

even about the EKG portion of the test unless plaintiff retained an expert to testify

to the nuclear imaging portion as well. Doctor Toporoff’s reluctance to testify on this

point goes hand in hand with the unlikelihood of his qualifying to do so; he did not

want to testify against Dr. Movahed unless a nuclear cardiologist did as well because,

in Dr. Toporoff’s words, “I did not want to get into an across-the-table where [Dr.

Movahed] is highly competent in that field on paper and I have no business criticizing

his summaries.”

Finally, Dr. Toporoff was not in a position to testify regarding Dr. Movahed’s

communication of the nuclear stress test results. For nuclear stress tests, typically

the primary care doctor is the one who orders the test, and only does so once he or

she rules out acute coronary artery syndrome. The nuclear cardiologist is not present

when the nuclear stress test is conducted. The nuclear cardiologist’s only role is to

later interpret the results of the nuclear stress test, which, as Dr. Movahed has

explained, involves “just sitting in a dark room reading the nuclear.” Once he has

interpreted the nuclear stress test, which Dr. Toporoff cannot do, the results are

communicated to the hospitalist. In this case, consistent with the school’s protocol for

teaching physicians, he communicated the results of the nuclear stress test to Dr.

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Newby, J., dissenting

Joshi while he instructed him on how to interpret the nuclear stress test images. The

standard practice, Dr. Movahed explained, is that, as part of the nuclear cardiology

training, the fellow communicates the test results to the hospitalist—the physician

in charge of the patient. The hospitalist sets up any additional visits and testing with

the patient. Doctor Movahed testified that when he communicates his results to the

fellow, he typically recommends that, in cases of an abnormality like the decedent’s,

a CTA be conducted on the patient immediately after discharge from the hospital.

Doctor Toporoff admitted that he is not critical of the role of Dr. Joshi. Thus, if

Dr. Toporoff is critical of the method of communication, he is critical of the

communication protocol, not of Dr. Movahed. Plaintiff, however, has not put forth

evidence that Dr. Toporoff is competent to testify about a nuclear cardiologist’s

communication protocol in this teaching hospital. Doctor Toporoff has no special

knowledge about whether nuclear stress test results should be communicated to a

nuclear cardiology fellow, to the hospitalist, or to someone else. It is not enough

simply to state that Dr. Toporoff is a cardiologist. At the very least, plaintiff must

provide a witness who is familiar with proper communication protocols for nuclear

cardiologists operating in the role of teaching physician; and plaintiff did not do so.

Competent evidence thus supports the trial court’s conclusion that plaintiff

had provided no witness willing to testify against Dr. Movahed and reasonably

expected to qualify to do so. Doctor Toporoff, as a clinical cardiologist, was in no place

to criticize Dr. Movahed’s interpretation of the nuclear stress test or Dr. Movahed’s

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Newby, J., dissenting

communication of that interpretation. Doctor Movahed is well-versed in a narrow

specialty in which Dr. Toporoff does not have experience. Testimony from such a

person is of the exact sort the General Assembly hoped to screen out when it enacted

Rule 9(j).

The majority goes astray from the very foundation of its analysis because it

upends the standard of review this Court established in Moore. Its approach places

the appellate court into the role of the trial court. If this Court in Moore intended the

appellate court to review de novo the trial court’s dismissal, it would have said so.

Indeed, if the majority were right that appellate courts can simply find their own

facts to overrule trial courts’ Rule 9(j) decisions, that begs the question of why this

Court in Moore required trial courts to make factual findings and conclusions of law

at all. The appellate courts would only need a trial court record to review.

Instead, Moore instructed appellate courts to operate under a deferential

standard. It said that in the rare case in which the plaintiff’s reliance on disputed or

ambiguous evidence was unreasonable, “the [trial] court must make written findings

of fact to allow a reviewing appellate court to determine whether those findings are

supported by competent evidence, whether the conclusions of law are supported by

those findings, and, in turn, whether those conclusions support the trial court's

ultimate determination.” 366 N.C. at 32, 726 S.E.2d at 818. Moore’s approach

comports with the underlying intent of Rule 9(j) to screen frivolous and unsupported

medical malpractice suits. The rule cannot meaningfully accomplish this purpose

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Newby, J., dissenting

unless trial courts may weigh the facts to determine whether the two central

requirements of the rule are satisfied.

By upending the Moore standard, the majority removes the trial court from its

gatekeeping function, reassigning that role to the appellate court, finding its own

facts and ignoring the findings and conclusions of the court most suited to make such

determinations. Under the proper standard of review, the evidence in this case

supports the trial court’s findings of fact that in turn support its conclusion that at

the time the action was filed, Dr. Toporoff was neither willing to testify against Dr.

Movahed nor reasonably expected to qualify to do so.

I respectfully dissent.

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