Converted WP file 051234-1

    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 may
        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 this comparison.
    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.