An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 September 2006
TRACI M. TREAT as Guardian
ad Litem for NADIA AIT
M'BAREK, a minor,
KAREN ROANE, VEDA L. WATSON,
and WAKE MEDICAL
CENTER a/k/a WAKEMED,
Appeal by Plaintiff from orders entered 25 April and 27 April
2005 by Judge Howard E. Manning in Wake County Superior Court.
Appellees cross-assigned as error an order entered 28 March 2002 by
Judge David Q. LaBarre in Wake County Superior Court. Heard in the
Court of Appeals 29 March 2006.
Law Office of Charles M. Putterman, by Charles M. Putterman,
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Samuel G. Thompson and Christopher G. Smith, for Defendant-
Appellee Karen Roane.
Yates, McLamb, & Weyher, L.L.P., by Dan J. McLamb, for
Defendants-Appellees Veda L. Watson and Wake Medical Center.
In this medical malpractice lawsuit, Traci M. Treat
(Plaintiff), as guardian ad litem for Nadia Ait M'Barek
(Nadia), appeals from the trial court's 25 April 2005 order
granting Defendants' motions in limine to exclude the testimony ofPlaintiff's experts, Julie Shocksneider, R.N. (Shocksneider),
Betty J. Edwards, M.D. (Edwards), and Amos Grunebaum, M.D.
(Grunebaum); and from the trial court's 27 April 2005 order
granting Defendants' motion for summary judgment and dismissing the
case with prejudice. Defendants cross-assign as error the trial
court's 28 March 2002 order denying Defendants' motions to dismiss
on grounds that Plaintiff failed to file her complaint within the
time frame established by Rule 41 of the North Carolina Rules of
Civil Procedure. For the reasons which follow, we affirm the April
2005 orders of Judge Manning.
I. FACTUAL AND PROCEDURAL BACKGROUND
On 15 January 1998, Plaintiff was appointed guardian ad litem
for her daughter, Nadia, for the purpose of bringing a lawsuit
for a brachial plexus injury suffered during Nadia's birth on 24
February 1995. Plaintiff then, on 15 January 1998, filed a
complaint against Dr. Karen Roane (Roane) and Wake Medical Center
(WakeMed). On 2 March 2000, pursuant to Rule 41(a) of the North
Carolina Rules of Civil Procedure, Plaintiff voluntarily dismissed
this complaint without prejudice.
On 23 August 2001, Plaintiff filed a complaint against
Defendants Roane, WakeMed, and Veda L. Watson, R.N. (Watson).
The complaint alleged that (1) for some time prior to Nadia's
delivery on 24 February 1995, Plaintiff was a patient under the
care of, and received prenatal care from, WakeMed; (2) on 24
February 1995, Plaintiff was a patient under the care of WakeMed
and gave birth to Nadia; (3) Defendants were negligent, recklessand careless in the treatment they rendered, and deviated from
acceptable medical standards, resulting in significant and
permanent injuries to Nadia, diminished earning capacity, emotional
distress, and prospective lost wages; and (4) Defendants failed to
disclose to Plaintiff necessary information that would have enabled
her to consider, weigh and choose the options available to her.
In their answers and motions to dismiss dated 25 October and
26 November 2001, Defendants moved to dismiss the complaint on
grounds that it was not timely filed under Rule 41 of the North
Carolina Rules of Civil Procedure. The trial court, on 28 March
2002, denied Defendants' motions to dismiss. The case thus
proceeded to trial and on 25 April 2005, the trial court, in
response to Defendants' motions in limine, excluded the testimony
of Plaintiff's experts, Shocksneider, Edwards, and Grunebaum,
because they did not qualify under N.C. Gen. Stat. § 90-21.12 to
testify as to standard of care. On 27 April 2005, the trial court
granted Defendants' motion for summary judgment. Plaintiff
II. QUESTIONS PRESENTED
First, we must address violations of the North Carolina Rules
of Appellate Procedure that Defendants assert warrant dismissal of
this appeal. North Carolina law provides that the Record on Appeal
must contain so much of the evidence . . . as is necessary for an
understanding of all errors assigned, or a statement specifying
that the verbatim transcript of proceedings is being filed with the
record[.] N.C. R. App. P. 9(a)(1)e. 'It is incumbent upon theappellant to see that the record on appeal is properly made up and
transmitted to the appellate court. The Rules of Appellate
Procedure are mandatory and failure to follow the rules subjects
[the] appeal to dismissal.' Global Circuits of N.C., Inc. v.
Chandak, ___ N.C. App. ___, ___, 622 S.E.2d 643, 645 (2005)(quoting
Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 754,
315 S.E.2d 537, 538-39 (1984)(internal citations omitted)).
However, the Rules of Appellate Procedure also allow this Court to
suspend the rules and reach the merits of an appeal. N.C. R. App.
P. 2. Although Plaintiff failed to include in the Record on Appeal
a verbatim transcript of the motions in limine hearing, thus
violating Rule 9, and also committed other technical violations of
the rules, we choose to invoke Rule 2 and reach the merits of this
By her first assignment of error, Plaintiff argues that the
trial court erred in granting Defendants' motions in limine to
exclude Plaintiff's expert witnesses because Plaintiff was never
given the opportunity at trial to qualify her expert witnesses
under N.C. Gen. Stat. § 90-21.12.
North Carolina law provides that
[i]n any action for damages for personal
injury . . . arising out of the furnishing or
the failure to furnish professional services
in the performance of medical, dental, or
other health care, the defendant shall not be
liable for the payment of damages unless the
trier of the facts is satisfied . . . that
the care of such health care provider was not
in accordance with the standards of practice
among members of the same health careprofession with similar training and
experience situated in the same or similar
communities at the time of the alleged act
giving rise to the cause of action.
N.C. Gen. Stat. § 90-21.12 (2005). In medical malpractice
litigation in North Carolina, it is well settled that a physician
testify regarding the applicable standard of
care . . . when that physician is familiar
with the experience and training of the
defendant and either (1) the physician is
familiar with the standard of care in the
defendant's community, or (2) the physician is
familiar with the medical resources available
in the defendant's community and is familiar
with the standard of care in other communities
having access to similar resources.
Henry v. Southeastern OB-GYN Associates, P.A., 145 N.C. App. 208,
213-14, 550 S.E.2d 245, 248-49 (Greene, J., concurring), aff'd, 354
N.C. 570, 557 S.E.2d 530 (2001). The burden is on the plaintiff to
establish the standard of care through expert testimony. Smith v.
Whitmer, 159 N.C. App. 192, 582 S.E.2d 669 (2003).
The trial judge must make preliminary determinations regarding
the qualifications of potential expert witnesses or the
admissibility of the expert testimony. Howerton v. Arai Helmet,
Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004). Although this
determination may occur at trial during voir dire, a trial court
may also disqualify a potential expert witness upon a motion in
limine before the trial begins. See, e.g., Southern Furniture
Hardware, Inc. v. Branch Banking and Trust Co., 136 N.C. App. 695,526 S.E.2d 197 (2000)(recognizing the use of motions in limine to
exclude potential expert witnesses).
'[T]he competency of a witness to testify as an expert in the
particular matter at issue is addressed primarily to the sound
discretion of the trial court, and its determination is not
ordinarily disturbed by the reviewing court.' Brooks v. Wal-Mart
Stores, Inc., 139 N.C. App. 637, 653, 535 S.E.2d 55, 65 (2000),
disc. review denied, 353 N.C. 370, 547 S.E.2d 2 (2001)(quoting Food
Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 37, 265 S.E.2d
123, 133 (1980)(citations omitted)). A trial court abuses its
discretion only when its ruling is manifestly unsupported by
reason or one so arbitrary that it could not have been the result
of a reasoned decision. Briley v. Farabow, 348 N.C. 537, 547, 501
S.E.2d 649, 656 (1998)(citations omitted).
During pre-trial depositions, Plaintiff's experts testified
regarding their qualifications and the standard of care they
applied in this case.
Shocksneider, designated by Plaintiff as a registered nurse
specializing in labor and delivery care, was expected to testify
regarding Watson's participation in Nadia's delivery. During her
deposition, she testified that anything she knew about WakeMed came
from the hospital record. However, she did not know the total
number of beds or the number of labor and delivery beds in the
hospital, the number of deliveries performed a year, or anything
about the nurse staffing for labor and delivery. Furthermore,
Shocksneider said that she did not know the size of Raleigh, or howmany hospitals there were in Raleigh. Additionally, she stated
that she could not compare WakeMed to any of the hospitals in which
she had been employed. Finally, in the portions of Shocksneider's
deposition submitted for our review, Shocksneider did not testify
regarding any familiarity with the standard of care in Watson's
community or any similar community. Therefore, she was not
qualified under N.C. Gen. Stat. § 90-21.12.
Edwards, designated by Plaintiff as a board-certified expert
in obstetrics and gynecology, was expected to testify regarding
Roane's and Watson's participation in Nadia's delivery. At her
deposition, Edwards testified that she had never practiced medicine
in Wake County, North Carolina and had never been there.
Additionally, she testified that she was not familiar at all with
the standards of practice and professionalism for Wake County, but
that she applied a national standard of care to [her] review[.]
Once again, in the portions of the deposition submitted for our
review, Plaintiff did not make any effort to qualify Edwards as an
expert witness under N.C. Gen. Stat. § 90-21.12 or to establish
that, in this instance, the national standard of care is the same
standard of care practiced in [D]efendants' community. Smith, 159
N.C. App. at 197, 582 S.E.2d at 673.
Grunebaum, also designated by Plaintiff as a board-certified
expert in obstetrics and gynecology, was likewise expected to
testify regarding Roane's and Watson's participation in Nadia's
delivery. During his deposition, Grunebaum testified that standard
of care referred to something that a responsible care providerwould do[,] and that a responsible physician or . . . medical
practitioner, . . . would do something similar under the
circumstances. Grunebaum further testified that he was talking
about what every obstetrician across the Country ought to do under
the circumstances[,] and that, although he had never been to North
Carolina, he did not believe that there is a particular standard
of care that applies to obstetricians in Wake County, [North
Carolina][.] Plaintiff, however, failed to support her assertion
that the national standard relied upon by Grunebaum is the same
standard of care practiced in Wake County, and therefore, should be
applied in this case. Without a showing that Grunebaum had any
knowledge of the subject community upon which to base his opinion,
Grunebaum's statement that he did not believe that a particular
standard of care . . . applies to obstetricians in Wake County
is simply not sufficient to qualify him under N.C. Gen. Stat. § 90-
21.12. Id. at 196-97, 582 S.E.2d at 672 (expert must provide
support for his assertion that a particular standard of care
applies in a subject community).
It is clear from the deposition testimony given by
Shocksneider, Edwards, and Grunebaum that neither witness was
familiar with the standard of care or the medical resources
available in Wake County, and consequently, they were not qualified
to provide expert testimony under N.C. Gen. Stat. § 90-21.12.
Plaintiff contends that because the national standard applied by
Edwards and Grunebaum is the same standard applied in Wake County,
these witnesses were qualified. However, Plaintiff's experts didnot provide adequate support for their contention that the standard
of care they applied in this case is applicable in Wake County, and
therefore, this argument is not persuasive. Id. at 196, 582 S.E.2d
at 672 (expert's assertion that he was familiar with the
applicable standard of care was rejected because his testimony
[was] devoid of support for his assertion).
We find it important to note that applying a national standard
does not, in and of itself, disqualify a potential expert witness.
In Pitts v. Nash Day Hosp., Inc., 167 N.C. App. 194, 197, 605
S.E.2d 154, 156 (2004), aff'd, 359 N.C. 626, 614 S.E.2d 267 (2005),
this Court determined that an expert's testimony that a national
standard should be applied does not inexorably require that his
testimony be excluded. Rather, the critical inquiry is whether the
doctor's testimony, taken as a whole, meets the requirements of
N.C. Gen. Stat. § 90-21.12. In reversing the trial court's
determination that the expert qualified under N.C. Gen. Stat. § 90-
21.12, the Pitts Court (1) compared the expert's training and
experience to that of the defendant, (2) noted the comparison the
expert made between the physical and financial environment of
communities in which he practiced medicine to that of the subject
community, and (3) noted the comparisons the expert made between
the hospitals in which he had practiced medicine to that of the
subject hospital. Id. Therefore, it is not the use of a national
standard that is problematic for Plaintiff. Rather, Plaintiff's
experts are not qualified because, although their training and
experience are similar to that of Defendants, Plaintiff's expertsfailed to demonstrate that either (1) they were familiar with the
standard of care practiced in Defendants' community, or (2) they
were familiar with the medical resources available in Wake County
and were familiar with the standard of care in other communities
with similar resources. In fact, Plaintiff's experts demonstrated
that they knew little about Wake County or WakeMed in order to make
Additionally, Plaintiff incorrectly attempts to shift the
burden of proof on this issue when she argues that since
Defendants have failed to offer any evidence that the plaintiff's
experts were not familiar with the standards of practice in a
community similar to Wake County, it would . . . be error to
exclude their testimony as to standard of care on the basis that
they embrace a national standard. It is axiomatic that in order
to provide expert testimony at trial, a witness must be qualified;
witnesses are not, as Plaintiff argues, capable of providing expert
testimony until they are shown to be unqualified. N.C. Gen. Stat.
§ 8C-1, Rule 702 (2005). Since Plaintiff failed to properly
qualify her experts, this argument is without merit.
Next, Plaintiff argues that because her experts concurred with
the applicable standard of care established by Defendants, the
trial court erred in granting the motions in limine. We disagree.
To support her contention, Plaintiff directs the attention of
the Court to Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129
(1999), cert. denied, 351 N.C. 358, 542 S.E.2d 214 (2000), and Cox
v. Steffes, 161 N.C. App. 237, 587 S.E.2d 908 (2003), disc. reviewdenied, 358 N.C. 233, 595 S.E.2d 148 (2004). Since both of these
cases are easily distinguishable from the current case, Plaintiff's
argument fails. In Marley, this Court determined that [a]lthough
the witness did not testify that he was familiar with the standard
of care [in the subject community], . . . testimony . . .
that . . . [defendant] met the highest standard of care found
anywhere in the United States . . . [was] sufficient to meet the
requirements of section 90-21.12. Marley, 135 N.C. App. at 430,
521 S.E.2d at 134. The Court reasoned that if the standard of care
for the subject community matched the highest standard in the
country, then the defendant's treatment met that standard; and if
the standard of care in the subject community was lower, then the
defendant's treatment exceeded the local standard. In this case,
however, there was no such testimony. On the contrary, Plaintiff's
experts testified that Defendants did not meet what they perceived
to be the national standard, but Plaintiff failed to establish that
the national standard utilized by her experts was applicable to
Defendants' community. Accordingly, Marley is not on point.
Similarly, in Cox, this Court determined that '[w]here the
standard of care is the same across the country, an expert witness
familiar with that standard may testify despite his lack of
familiarity with the defendant's community.' Cox, 161 N.C. App.
at 245, 587 S.E.2d at 913 (quoting Haney v. Alexander, 71 N.C. App.
731, 736, 323 S.E.2d 430, 434 (1984), cert. denied, 313 N.C. 329,
327 S.E.2d 889 (1985)(citations omitted)). In Cox, the expert
testified that it was universally accepted that the standard ofcare would be the same . . . for any board certified surgeon
across the country. Cox, 161 N.C. App. at 246, 587 S.E.2d at 914.
It is clear from Cox that the expert's opinion regarding the
standard of care was based upon the defendant's status as a board-
certified surgeon. In the case currently before this Court,
Plaintiff did not adequately establish that the national standard
used by her experts applies to Defendants. Edwards stated that she
applied a national standard of care[.] Grunebaum, also applying
a national standard, was only able to opine that he did not believe
a particular standard of care . . . applies to obstetricians in
Wake County[,] and that therefore, his national standard must
apply. Since Plaintiff's experts offered no more than a belief
that the national standard applied to Defendants and there was no
other evidence linking Defendants to Plaintiff's proposed standard
of care, Cox does not control. Since Plaintiff's argument is not
supported by law, this assignment of error is overruled.
By her second assignment of error, Plaintiff contends that the
trial court erred in granting summary judgment for Defendants
because, even without the testimony of Plaintiff's expert
witnesses, there remained a genuine issue of material fact as to
whether Defendants had violated the applicable standard of care,
and other issues[.] Plaintiff argues that even if her expert
witnesses were not qualified to testify to the applicable standard
of care, they were still able to testify regarding breach of thestandard of care and causation. This assignment of error lacks any
merit and is likewise overruled.
When reviewing a trial court's order granting summary
judgment, this Court must determine whether there is any genuine
issue of material fact and whether the moving party is entitled to
judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins.
, 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation
omitted). In a medical malpractice case, summary judgment is
proper when the plaintiff fails to produce sufficient evidence
regarding the standard of care, breach of that standard, and
causation resulting in the damages suffered. Weatherford v.
, 129 N.C. App. 618, 500 S.E.2d 466 (1998).
For an expert
witness to testify regarding the standard of care, or breach of
that standard, the witness must qualify under N.C. Gen. Stat. § 90-
21.12. Tucker v. Meis
, 127 N.C. App. 197, 487 S.E.2d 827 (1997).
When an expert witness is unfamiliar with the relevant standard of
care, [the expert's] opinion as to whether defendants met that
standard is unfounded and irrelevant[.] Henry
, 145 N.C. App. at
213, 550 S.E.2d at 248.
In this case, since we have held that the trial court did not
abuse its discretion in determining that Plaintiff's experts were
not qualified under N.C. Gen. Stat. § 90-21.12 to establish the
applicable standard of care, it follows that they were equally
unqualified to testify regarding breach of that standard.
Consequently, summary judgment was proper. In conclusion, we find no error committed by the trial court.
Given our determination, we need not address Defendants' cross-
assignment of error. The 25 April and 27 April 2005 orders of
Judge Manning are
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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