IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-641
Filed 5 March 2024
Halifax County, No. 18CVS50
RENE ROBINSON, individually, and as ADMINISTRATRIX of the ESTATE OF
VELVET FOOTE, Plaintiffs,
v.
HALIFAX REGIONAL MEDICAL CENTER, DR. JUDE OJIE and DR. SIMBISO
RANGA, individually and as employees, agents, of Halifax Regional Medical Center,
Defendants.
Appeal by plaintiff from order and judgment entered 3 October 2022 by Judge
J. Carlton Cole in Halifax County Superior Court. Heard in the Court of Appeals 29
November 2023.
BA Folk, PLLC, by Brice M. Bratcher and Jeremy D. Adams, for plaintiffs-
appellants.
Harris Creech Ward & Blackerby, PA, by Christina J. Banfield and C. David
Creech, for defendants-appellees.
GORE, Judge.
The question in this appeal is whether the trial court properly dismissed
plaintiff’s medical malpractice claims pursuant to Rule 9(j) of the North Carolina
Rules of Civil Procedure. Here, the trial court determined that plaintiff’s designated
medical expert, Dr. Mallory, would not reasonably be expected to testify as to the
standard of care under Rule 702(b) of the North Carolina Rules of Evidence and
N.C.G.S. § 90-21.12. Upon review, we affirm the trial court’s Order.
ROBINSON V. HALIFAX REG’L MED. CTR.
Opinion of the Court
In Moore v. Proper, our Supreme 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.” Preston v. Movahed, 374 N.C. 177, 187 (2020) (citing
Moore v. Proper, 366 N.C. 25 (2012)). The Court observed:
Rule 9(j) serves as a gatekeeper . . . to prevent frivolous
malpractice claims by requiring expert review before filing
of the action. Rule 9(j) thus operates as a preliminary
qualifier to “control pleadings” rather than to act as a
general mechanism to exclude expert testimony. Whether
an expert will ultimately qualify to testify is controlled by
Rule 702. The trial court has wide discretion to allow or
exclude testimony under that rule. However, 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 (citations omitted). Thus, as addressed in the prior appeal of
this case — Robinson v. Halifax Reg’l Med. Ctr., 271 N.C. App. 61 (2020) — we
reversed in part the trial court’s decision to dismiss this action for noncompliance
with Rule 9(j). Specifically, we concluded “that the trial court ‘jumped the gun’ in
determining that [p]laintiffs failed to comply with Rule 9(j)[ ]” of the North Carolina
Rules of Civil Procedure because plaintiff’s complaint, on its face, did satisfy our
preliminary pleading requirements. 271 N.C. App. at 66. However, the Court in
Moore further stated:
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
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Opinion of the Court
the understanding that its expectation was unreasonable.
Therefore, to evaluate whether a party reasonably
expected its proffered expert witness to qualify under Rule
702, the trial court must look to all the facts and
circumstances that were known or should have been known
by the party at the time of filing.
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.
Moore, 366 N.C. at 31–32 (internal citations omitted).
Consistent with our Supreme Court’s analysis in Moore, our reversal in
Robinson came with a caveat:
it may alternatively be that discovery will, indeed,
demonstrate that [p]laintiffs should have not reasonably
believed that their expert would qualify under Rule 702.
Indeed, after deposing Dr. Mallory or conducting other
discovery, [d]efendants may be able to show that when
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Opinion of the Court
[p]laintiffs filed their complaint, they could not have
reasonably expected Dr. Mallory to qualify, at which point,
dismissal under Rule 9(j) would be appropriate. However,
at this point, [d]efendants have simply not met their
burden of showing that they are entitled to a dismissal
under Rule 9(j).
271 N.C. App. at 69–70.
Accordingly, upon remand of this action to the trial court on 11 May 2020, the
parties engaged in discovery. Eventually, defendants filed a renewed and amended
Motion to Dismiss and for Summary Judgment on 23 June 2022, attaching
supporting affidavits from defendants Dr. Ojie and Dr. Ranga as well as defendant’s
expert witnesses.
After a hearing on the Motions on 26 August 2022, the trial court ruled in favor
of defendants, granting their Motion to Dismiss and for Summary Judgment upon
the basis of noncompliance with Rule 9(j), and dismissing all claims in plaintiff’s
complaint. In an Order filed 3 October 2022, the trial court made the following
findings of fact, in relevant part:
10. On [17 July 2020], [p]laintiff served her responses to
[d]efendants’ outstanding discovery requests, including her
responses to [d]efendants’ Rule 9(j) Interrogatories.
Plaintiff identified only one expert witness, Dr. Mallory, in
her Rule 9(j) interrogatory responses and other discovery
responses, and included an affidavit from Dr. Mallory.
11. On [17 June 2021], [d]efendants filed a Motion for
Discovery Scheduling Order pursuant to Rule 26(f1); after
a hearing on [d]efendants’ Motion on [19 July 2021], the
Honorable Judge Cy Grant entered a Discovery Scheduling
Order on [27 July 2021]. Per the Discovery Scheduling
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Opinion of the Court
Order, [p]laintiff was required to designate all expert
witnesses by [1 November 2021], and was required to make
a designated expert witness available for deposition by [1
January 2022].
12. Plaintiff did not designate any expert witnesses other
than Dr. Mallory by [1 November 2021].
13. Upon an agreement by all counsel, Dr. Mallory’s
deposition was set for [29 December 2021]. On [9
December 2021], [d]efendants’ counsel properly noticed Dr.
Mallory’s deposition for [29 December 2021], to be taken in-
person in Cocoa Beach, Florida, where Dr. Mallory resides.
14. On [27 December 2021], two days before the scheduled
deposition on [29 December 2021], [p]laintiff’s counsel first
informed [d]efendants’ counsel that Dr. Mallory would not
make himself available for the deposition without being
paid a deposit for the deposition at least seven (7) days in
advance of the deposition. The deposition was therefore
cancelled due to [p]laintiff’s inability to make her expert
witness available for the scheduled deposition.
15. Defendants’ counsel was never made aware of Dr.
Mallory’s advance payment requirement prior to [27
December 2021].
16. On [1 January 2022], the deadline passed for [p]laintiff
to make her expert witness available for deposition, as set
forth in the Discovery Scheduling Order.
17. The deposition of Dr. Mallory did not occur prior to the
deadline set forth in the Discovery Scheduling Order.
18. On [15 February 2022], [d]efendants filed a Motion to
Strike Plaintiff’s Expert Witness and a Motin to Dismiss
and for Summary Judgment. On [23 June 2022],
[d]efendants filed an Amended Motion to Dismiss and for
Summary Judgment.
SPECIFIC FINDINGS OF FACTS REGARDING
DEFENDANTS’ MOTION TO DISMISS AND FOR
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Opinion of the Court
SUMMARY JUDGMENT PURSUANT TO RULE 9(j)
19. Plaintiff’s action against the [d]efendants arises out of
allegations of medical malpractice, as defined in [N.C.G.S.]
§ 90-21.11 and § 90-21.12, and [p]laintiff is required to
comply with Rule 9(j) of the North Carolina Rules of Civil
Procedure, by including a certification in her Complaint
that the medical care and all medical records in this case
have been reviewed by an expert witness who is reasonably
expected to qualify as such and who is willing to testify as
to the standard of care.
20. Upon the refiling of this action on [16 January 2018],
[p]laintiff did include a certification, which on its face met
the requirements of Rule 9(j) of the North Carolina Rules
of Civil Procedure.
21. The Rule 9(j) expert witness and only expert witness
designated by [p]laintiff in this matter pursuant to the
Discovery Scheduling Order is Dr. Mallory.
22. Pursuant to Rule 9(j) of the North Carolina Rules of
Civil Procedure, [d]efendants properly pursued written
and other discovery to determine whether [p]laintiff did in
fact comply with Rule 9(j) by retaining an expert witness
who was reasonably expected to qualify as such under Rule
702 of the North Carolina Rules of Evidence; had reviewed
the medical care and all medical records relevant to the
events at issue; and was willing to testify that the
defendants had violated the standard of care.
23. The Court finds that the pleadings, the materials on
the record in the case, and the materials submitted by the
parties, including affidavits and discovery exchanged,
show that Dr. Mallory would not be able to qualify as an
expert witness in this case pursuant to Rule 702(b) of the
North Carolina Rules of Evidence. The [c]ourt finds that
the [p]laintiff has failed and is otherwise unable to show
that:
a. Dr. Mallory practiced as a physician specializing
in internal medicine and practicing as a hospitalist
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Opinion of the Court
during the period of [15 January 2014] through [15
January 2015];
b. Dr. Mallory has experience admitting patients to
hospitals, providing long-term treatment to
admitted patients, or entering Do Not Resuscitate
Orders for patients admitted to hospitals, all of
which constitute the substance of [p]laintiff’s
allegations and claims against [d]efendants;
c. Dr. Mallory has experience treating admitted
hospital patients who are similar or have similar
medical issues as [the decedent] Ms. Foote;
d. Dr. Mallory is familiar with the resources
available to Dr. Jude Ojie, Dr. Simbiso Ranga, and
Halifax Regional Medical Care in the county of
Halifax, North Carolina during the period of [15
January 2014] through [15 January 2015]; and
e. Dr. Mallory is familiar with the medical training
and/or medical background of the [d]efendants Dr.
Ojie and Dr. Ranga.
24. The [c]ourt therefore finds that there is nothing in the
pleadings, the materials on the record in the case, and the
materials submitted by the parties, including the affidavits
and discovery exchanged, which prove that Dr. Mallory is
or could be familiar with the standard of care for internal
medicine physicians practicing as hospitalists in Halifax
County or similarly situated communities during the
period of [15 January 2014] through [15 January 2015] as
required by [N.C.G.S.] § 90-21.12(a).
25. The [c]ourt therefore finds that Dr. Mallory is not
qualified under Rule 702(b) of the North Carolina Rules of
Evidence to provide expert witness testimony as to the
standard of care applicable to the [d]efendants.
26. Additionally, the [c]ourt finds that Dr. Mallory was
unwilling to testify as to standard of care opinions in this
action, due to Dr. Mallory’s failure to attend his deposition
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Opinion of the Court
scheduled for [29 December 2021].
27. The time set forth in the Discovery Scheduling Order
entered by the Honorable Judge Cy Grant in this case for
[p]laintiff to designate any expert witnesses had expired by
[1 November 2021].
28. Plaintiff failed to designate any expert witness other
than Dr. Mallory prior on or before [1 November 2021].
29. Plaintiff failed to make Dr. Mallory, as her designated
expert witness, available by [1 January 2022], the date set
forth in the Discovery Scheduling Order entered by the
Honorable Judge Cy Grant in this case.
30. Additionally, [p]laintiff failed to move for an
amendment of the Discovery Scheduling Order in this
action to secure an extension of the time in which to make
her designated expert witness available for deposition.
31. Because Dr. Mallory is not qualified to provide expert
witness testimony as to the standard of care pursuant to
Rule 702(b) of the North Carolina Rules of Civil Procedure
and [N.C.G.S.] § 90-21.12(a); because [p]laintiff failed to
make her sole expert witness, Dr. Mallory, available for a
deposition by the deadline set forth in the Discovery
Scheduling Order in this case; and because [p]laintiff has
failed to designate any other expert witness in this case,
the [c]ourt finds that [p]laintiff has failed to retain an
expert witness in compliance with Rule 9(j) of the North
Carolina Rules of Civil Procedure, and [p]laintiff’s action
should be dismissed in its entirety, with prejudice.
Turning to the matter now before us, plaintiff presents the sole issue of
whether the trial court erred in granting defendants’ Motion to Dismiss and for
Summary Judgment and in disqualifying Dr. Malloy as an expert witness. Plaintiff
argues the trial court: (i) erroneously applied a heightened standard for compliance
with Rule 9(j), and (2) erred in both its application and evaluation of Rule 702.
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ROBINSON V. HALIFAX REG’L MED. CTR.
Opinion of the Court
Generally, we review a trial court’s ruling on a motion to
exclude expert testimony for an abuse of discretion.
However, when the pertinent inquiry on appeal is based on
a question of law — such as whether the trial court
properly interpreted and applied the language of a statute
— we conduct de novo review. . . . The trial court’s
determination that proffered expert testimony meets Rule
702[ ]’s requirements of qualification, relevance, and
reliability will not be reversed on appeal absent a showing
of abuse of discretion. But the trial court’s articulation and
application of the relevant legal standard is a legal
question that is reviewed de novo. And, whatever the
standard of review, an error of law is an abuse of discretion.
Miller v. Carolina Coast Emergency Physicians, LLC, 382 N.C. 91, 104 (2022) (cleaned
up).
First, plaintiff argues the trial court’s “three justifications,” as set forth in
finding of fact 31 of the Order, “for dismissal under Rule 9(j) are directly at odds with
the guidance set forth in Moore and Preston.” Plaintiff asserts “the lower court adds
additional requirements not found in Rule 9(j), specifically that the [plaintiff] was
required to ‘retain an expert witness’ and make that expert witness available for
deposition. Rule 9(j) contains no such requirements.” Plaintiff further argues, “the
proper question to ask is whether . . . the [plaintiff] had a reasonable belief or
expectation that Dr. Mallory would qualify as an expert witness at the time of filing
the complaint, not whether or not he ultimately would qualify.”
We discern no such misapprehension of law in the trial court’s ruling. Rule
9(j) provides, in pertinent part:
[a]ny complaint alleging medical malpractice by a health
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Opinion of the Court
care provider . . . in failing to comply with the applicable
standard of care under [N.C.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 . .
..
N.C.G.S. § 1A-1, Rule 9(j) (2022) (emphasis added). As our Supreme Court stated in
Moore, “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.” 366 N.C. at
31 (internal quotation marks and citation omitted). “[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 (internal citation omitted). “Whether
an expert will ultimately qualify to testify is controlled by Rule 702. The trial court
has wide discretion to allow or exclude testimony under that rule.” Id. at 31 (citation
omitted). Plaintiff reiterates her expectation that Dr. Mallory would qualify as an
expert witness was reasonable, yet the trial court was not, upon remand, engaged in
preliminary examination of her pleadings. The trial court’s analysis of whether Dr.
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Opinion of the Court
Mallory actually qualified as an expert witness under Rule 702(b) is not a
misstatement of the law, but rather, it is inherent to its evaluation of actual
compliance with Rule 9(j) beyond the preliminary stages of the proceedings.
Moore articulates the three-part test to qualify as an expert witness under
Rule 702(b):
(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.
Id. at 33 (citation omitted). The trial court’s findings of fact, such as numbers 23(a)–
(e) and 24, address the elements of this test. Plaintiff does not argue that the trial
court arbitrarily disqualified Dr. Mallory, rather, plaintiff argues the trial court
misapplied the law by “apply[ing] a stricter standard in its evaluation than espoused
by the appellate courts.” Upon review of plaintiff’s brief, we discern no fundamental
misapprehension or misapplication of Rule 702(b). Rather, plaintiff appears to
present an alternative interpretation of the discovery materials and to propose an
alternative ruling based on her interpretation. The fact remains, the trial court did
make findings supporting a basis to exclude and strike Dr. Mallory as an expert
witness under Rule 702(b). Plaintiff has not shown an abuse of discretion in that
determination.
We discern no abuse of discretion or misapprehension of law in this case.
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ROBINSON V. HALIFAX REG’L MED. CTR.
Opinion of the Court
Accordingly, we affirm the trial court’s Order.
AFFIRMED.
Judges DILLON and MURPHY concur.
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