Appeal by plaintiff from judgment and order entered 30
November 2007 by Judge John W. Smith in Watauga County Superior
Court. Heard in the Court of Appeals 23 October 2008.
Charles G. Monnett III & Associates, by Charles G. Monnett III
Carruthers & Roth, P.A., by Richard L. Vanore, Robert N.
Young, and Norman F. Klick, Jr., for defendants-appellees.
Harold Cornett, administrator of the estate of Dianne M.
Morin, (plaintiff) appeals the trial court's order and judgment
granting Watauga Surgical Group, P.A.'s (Watauga Surgical) and
Frank Y. Chase's (Dr. Chase) (collectively referred to as
defendants) motion to exclude plaintiff's expert witness and
motion for summary judgment. We affirm.
Plaintiff alleges that on 13 March 2004, Dianne Morin (the
deceased) was admitted to the emergency room of Watauga Medical
Center complaining of abdominal pain, nausea and vomiting. AfterDr. Chase evaluated her, he performed a surgical procedure.
Following surgery, the deceased remained in the hospital for nine
days and experienced an increase in abdominal symptoms. On 22
March 2004, Dr. Chase performed exploratory surgery on the deceased
and found further complications in her bowels. On 24 March 2004,
Dr. Chase placed two drains in her abdomen. On 28 March 2004, the
deceased was transferred to Wake Forest University Baptist Medical
Center for treatment. On 2 April 2004, the deceased passed away.
On 28 March 2006, plaintiff filed a negligence complaint
against Dr. Chase and Watauga Surgical. Pursuant to Rule 9(j) of
the North Carolina Rules of Civil Procedure, plaintiff certified in
his complaint that the deceased's medical care was reviewed by a
person reasonably expected to qualify as an expert witness willing
to testify that the medical care provided did not comply with the
applicable standard of care.
On 14 August 2007, defendants deposed Dr. Martin Litwin, M.D.
(Dr. Litwin), plaintiff's proposed expert witness. On 1 November
2007, defendants moved to exclude Dr. Litwin, and moved for summary
judgment. The case was called for trial on 12 November 2007. The
trial court granted defendants' motions. At the pre-trial hearing
on the motion to exclude, plaintiff moved under North Carolina
Rules of Evidence, Rule 702(e), for the court to permit Dr.
Litwin's standard of care testimony upon showing extraordinary
circumstances and a determination that justice requires it. The
trial court refused to hear the motion because the trial court
judge was not a resident superior court judge as required by Rule702(e). The trial court judge also stated in his order that if he
had reached the motion, he would have denied it because plaintiff
did not show either extraordinary circumstances or that justice
required allowing a non-qualified expert witness to testify.
Plaintiff also moved to continue the trial. This motion was
denied. Plaintiff appeals.
I. Exclusion of Plaintiff's Expert Witness
Plaintiff contends the trial court erred in excluding Dr.
Litwin as an expert witness on the basis that he did not meet the
requirements of N.C. Gen. Stat. § 8C-1, Rule 702(b). We disagree.
Where the plaintiff contends the trial court's decision is
based on an incorrect reading and interpretation of the rule
governing admissibility of expert testimony, the standard of review
on appeal is de novo
. See FormyDuval v. Bunn
, 138 N.C. App. 381,
385, 530 S.E.2d 96, 99, review denied
, 353 N.C. 262, 546 S.E.2d 93
(2000); Smith v. Serro
, 185 N.C. App. 524, 527, 648 S.E.2d 566, 568
This Court also determines (1) whether the trial court's
conclusions of law support its judgment or determination, (2)
whether the trial court's conclusions of law are supported by its
findings of fact, and (3) whether the findings of fact are
supported by a sufficiency of the evidence. FormyDuval
, 138 N.C.
App. at 385, 530 S.E.2d at 100 (quoting Turner v. Duke University
325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989)).
The relevant portion of N.C. Gen. Stat. § 8C-1, Rule 702
provides: (b) In a medical malpractice action as defined
in G.S. 90-21.11, a person shall not give
expert testimony on the appropriate standard
of health care as defined in G.S. 90-21.12
unless the person is a licensed health care
provider in this State or another state and
meets the following criteria:
(1) If the party against whom or on whose
behalf the testimony is offered is a
specialist, the expert witness must:
a. Specialize in the same specialty as the
party against whom or on whose behalf the
testimony is offered; or
b. Specialize in a similar specialty which
includes within its specialty the performance
of the procedure that is the subject of the
complaint and have prior experience treating
(2) During the year immediately preceding the
date of the occurrence that is the basis for
the action, the expert witness must have
devoted a majority of his or her professional
time to either or both of the following:
a. The active clinical practice of the same
health profession in which the party against
whom or on whose behalf the testimony is
offered, and if that party is a specialist,
the active clinical practice of the same
specialty or a similar specialty which
includes within its specialty the performance
of the procedure that is the subject of the
complaint and have prior experience treating
similar patients; or
b. The instruction of students in an
accredited health professional school or
accredited residency or clinical research
program in the same health profession in which
the party against whom or on whose behalf the
testimony is offered, and if that party is a
specialist, an accredited health professional
school or accredited residency or clinical
research program in the same specialty.
N.C. Gen. Stat. § 8C-1, Rule 702(b) (2007). It is undisputed that Dr. Litwin is a licensed physician
specializing in the same specialty as defendants. In order to
satisfy the threshold requirements of N.C. Gen. Stat. § 8C-1, Rule
702(b), Dr. Litwin must have devoted the majority of his
professional time to either clinical practice in the speciality of
surgery (clinical surgery) or, instructing medical students in
the specialty of surgery (instructing surgery) or both clinical
surgery and instructing surgery from March 2003 until March 2004.
Dr. Litwin's testimony revealed that he was not devoting a
majority of his professional time to clinical surgery or
instructing surgery in the year prior to the occurrence at issue.
Dr. Litwin testified that he ceased practicing general surgery in
2000 or 2001, except for minor cases once or twice a month. In
2002, Dr. Litwin took a medical leave of absence to undergo surgery
for the removal of a pituitary tumor. Dr. Litwin returned to work
in either the early part of 2004, or the latter part of 2003. Dr.
Litwin worked half days for a month and then returned to a full-
time schedule. Dr. Litwin's full-time work schedule consisted of
sixty hours a week at this time.
A. Clinical Surgery
Although Dr. Litwin did not perform any minor cases in 2003,
he performed minor surgeries once a month in early 2004.
Therefore, from March 2003 until March 2004, his clinical surgery
consisted of an occasional minor surgery once or twice a month for
up to two hours at a time. At the most, in a sixty-hour work week,the total time Dr. Litwin devoted to clinical surgery was one hour
Although plaintiff contends the trial court failed to consider
Dr. Litwin's occasional performance of minor surgery, it appears
from the trial court's order that the court did consider Dr.
Litwin's minor surgeries. In finding of fact number nine, the
trial court states, [t]he court has considered whether Dr.
Litwin's teaching time together with the 'minor surgeries'
performed without general anesthesia and his other duties are
sufficient to meet the requirements of Rule 702(b), and the court
finds that they are not.
B. Instructing Surgery
Dr. Litwin was employed as a professor of surgery at Tulane
Medical School. In 2004, he assisted residents on one case per
month and personally performed one case a month. Dr. Litwin
participated in grand rounds with residents once a week which
lasted an hour at a time. Twice a week, for two to three hours at
a time, Dr. Litwin attended hospital rounds with residents. Dr.
Litwin testified his teaching duties totaled from two to four hours
per week. The remainder of his time was spent performing
administrative functions, attending conferences and participating
in committee meetings.
Plaintiff also argues Dr. Litwin's teaching activities
amounted to all of his professional time. However, as previously
noted, Dr. Litwin testified he spent significant time performing
administrative duties such as attending committee meetings. Evenconsidering all of his teaching time, it does not amount to more
than half of his professional time.
The trial court did not err in determining that Dr. Litwin did
not meet the requirements of Rule 702(b), since, in a sixty-hour
work week, at the most, Dr. Litwin spent five hours a week in
clinical surgery and instructing surgery. This was less than half
of his professional time.
After the trial court excluded Dr. Litwin as an expert
witness, plaintiff submitted an affidavit by Dr. Litwin
contradicting his deposition testimony. Dr. Litwin asserted in his
affidavit that his work schedule in the year preceding the alleged
malpractice consisted of a thirty-four hour work week. Dr.
Litwin's affidavit was not considered by the trial court because it
was filed after the trial court entered its order excluding Dr.
Litwin as an expert witness. Accordingly, we do not consider the
affidavit in reviewing the order on appeal.
(See footnote 1)
See also Pinczkowski
v. Norfolk S. Ry. Co.
, 153 N.C. App. 435, 440, 571 S.E.2d 4, 7
(2002) (party opposing summary judgment cannot create a genuine
issue of material fact by filing an affidavit contradicting his
sworn testimony). We conclude the trial court's determination that Dr. Litwin
did not qualify as an expert witness under N.C. Gen. Stat. § 8C-1,
Rule 702(b) was supported by its findings of fact and those
findings are supported by competent evidence. This assignment of
error is overruled.
Plaintiff also argues Dr. Litwin was qualified to testify
about causation and such testimony would establish a genuine issue
of material fact. We disagree.
Summary judgment is appropriate when the defendant shows the
plaintiff cannot support an essential element of his claim and the
plaintiff does not produce a forecast of evidence showing the
existence of a genuine issue of material fact with respect to the
issues raised by the movant. Huffman v. Inglefield
, 148 N.C. App.
178, 182, 557 S.E.2d 169, 172 (2001) (citation omitted). Evidence
of the standard of care is an essential element to plaintiff's
medical malpractice claim. Weatherford v. Glassman
, 129 N.C. App.
618, 621, 500 S.E.2d 466, 468 (1998).
In the instant case, even if Dr. Litwin could have testified
to causation, without an expert to testify to the applicable
standard of care, plaintiff did not forecast evidence to defeat the
summary judgment motion. The trial court did not err in excluding
Dr. Litwin's testimony. This assignment of error is overruled.
II. Rule 702(e) Motion
Plaintiff next argues the trial court erred by refusing to
hear plaintiff's N.C. Gen. Stat. § 8C-1, Rule 702(e) motion. The trial court found that plaintiff failed to timely request
a Rule 702(e) hearing until after the case was called for trial and
after the hearing on the motion to exclude and motion for summary
judgment had begun. The trial court judge noted that the
undersigned was a special superior court judge and declined to rule
on the Rule 702(e) motion on that basis, but entered a finding that
if the trial court judge had ruled on it he would have denied it.
N.C. Gen. Stat. § 8C-1, Rule 702(e) provides:
Upon motion by either party, a resident judge
of the superior court in the county or
judicial district in which the action is
pending may allow expert testimony on the
appropriate standard of health care by a
witness who does not meet the requirements of
subsection (b) or (c) of this Rule, but who is
otherwise qualified as an expert witness, upon
a showing by the movant of extraordinary
circumstances and a determination by the court
that the motion should be allowed to serve the
ends of justice.
Since the rule provides a trial judge may allow the
testimony, the standard of review is abuse of discretion. See also
Burrell v. Sparkkles Reconstruction Co.,
__ N.C. App. __, __, 657
S.E.2d 712, 718-19 (filed March 4, 2008) (No. COA07-494) (We
review a trial court's ruling as to the admissibility of an expert
witness's testimony for an abuse of discretion.).
Plaintiff asserts the standard of review of this issue is de
because the trial court judge incorrectly interpreted the
statute to provide that the only judges allowed to rule on Rule
702(e) motions are resident superior court judges. Plaintiff also
argues that the trial court judge incorrectly presumed the Rule
702(e) motion must have been set for hearing before Dr. Litwin wasdisqualified. However, even if the trial court erred in
determining it could not rule on the motion, plaintiff must still
show he was prejudiced by the trial court's failure to rule on the
motion. O'Mara v. Wake Forest Univ. Health Sciences
, 184 N.C. App.
428, 440, 646 S.E.2d 400, 407 (2007) (quoting Responsible Citizens
v. City of Asheville
, 308 N.C. 255, 271, 302 S.E.2d 204, 214 (1983)
(citations omitted)) ('The burden is on the appellant not only to
show error, but to show prejudicial error, i.e., that a different
result would have likely ensued had the error not occurred.').
Plaintiff asserts that the trial court judge was authorized to
rule on the motion pursuant to N.C. Gen. Stat. § 7A-47 (2007).
This statute provides that regular superior court judges duly
assigned to hold court, or holding such court by exchange, shall
have the same powers in that district as the resident judge. Id.
Read in conjunction with Rule 702(e), plaintiff argues this
provides authority for the judge to have heard his motion. See
also Best v. Wayne Mem'l Hosp., Inc.
, 147 N.C. App. 628, 636, 556
S.E.2d 629, 634 (2001) (concluding a Rule 9(j) extension motion is
to be heard by a resident judge when one is available, but when the
resident judge is unavailable or nonexistent, it is proper for the
duly appointed presiding superior court judge to hear and sign the
motion) and Howard v. Vaughn
, 155 N.C. App. 200, 204, 573 S.E.2d
253, 256 (2002) (concluding trial court erred in dismissing medical
malpractice complaint on the basis that the Rule 9(j) extension
granted by a non-resident judge was invalid). Plaintiff also
argues he was not required to set his Rule 702(e) motion forhearing until after the motion to exclude his expert witness was
We do not address these arguments because assuming arguendo
the trial judge erred in determining he did not have authority
under N.C. Gen. Stat. § 8C-1, Rule 702(e) to rule on the motion,
plaintiff failed to establish prejudicial error. The trial court
judge specifically found he would have denied the motion if he had
heard it. Plaintiff contends the error is not harmless because
whether Dr. Litwin qualified as an expert literally came down to
counting minutes spent between his different activities in a given
month, disbelieving Dr. Litwin's sworn testimony to the
contrary, and these are extraordinary circumstances contemplated
under the rule. We disagree. Plaintiff did not demonstrate
extraordinary circumstances to support his Rule 702(e) motion at
the hearing before the trial court. See Knox v. Univ. Health Sys.
of East. Carolina
, __ N.C. App. __, __, 652 S.E.2d 722, 725 (filed
Nov. 20, 2007) (No. COA07-258). This assignment of error is
III. Motion to Continue
Plaintiff also argues the trial court erred in denying his
motion to continue the trial. We disagree.
The standard of review for denial of a motion to continue is
generally whether the trial court abused its discretion. Morin v.
, 144 N.C. App. 369, 373, 549 S.E.2d 871, 873 (2001).
Continuances are not favored and the party seeking a continuance
has the burden of showing sufficient grounds for it. Shankle v.Shankle
, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). Absent a
manifest abuse of discretion, this Court will not disturb the trial
court's decision to grant or deny a motion to continue. Atlantic
& E. Carolina Ry. Co. v. Wheatly Oil Co.
, 163 N.C. App. 748, 754,
594 S.E.2d 425, 430 (2004) (quotation omitted).
Here, on the day of trial, counsel for plaintiff requested a
continuance in order to have the Rule 702(e) motion heard and
reopen discovery. Plaintiff contends the trial court abused its
discretion in denying the motion because there was good cause shown
for a continuance and granting the motion would have promoted
substantial justice. We disagree. Plaintiff does not contend he
did not receive notice that his expert witness's qualifications
were being challenged at the 12 November 2007 civil session.
Plaintiff had notice to investigate his expert's qualifications,
opportunity to find a qualified expert, and time to file a Rule
702(e) motion prior to the trial. We conclude the trial court did
not abuse its discretion in denying the motion to continue.
IV. Summary Judgment
Plaintiff contends the trial court erred in granting summary
judgment for defendants. We disagree.
The standard of review on a summary judgment motion is whether
there is a genuine issue of material fact and whether the moving
party is entitled to judgment as a matter of law. Oliver v.
, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980); Barbour
, 37 N.C. App. 686, 692, 247 S.E.2d 252, 256 (1978). The
record is to be viewed in the light most favorable to thenon-movant, giving it the benefit of all inferences reasonably
arising therefrom. Ausley v. Bishop
, 133 N.C. App. 210, 214, 515
S.E.2d 72, 75 (1999) (citation omitted). [A] defendant may show
he is entitled to summary judgment by: (1) proving that an
essential element of the plaintiff's case is non-existent, or (2)
showing through discovery that the plaintiff cannot produce
evidence to support an essential element of his or her claim, or
(3) showing that the plaintiff cannot surmount an affirmative
defense. Kinesis Advertising, Inc. v. Hill
, 187 N.C. App. 1, 10,
652 S.E.2d 284, 292 (2007) (citations and internal quotations
In a medical malpractice action, a plaintiff has the burden of
showing (1) the applicable standard of care; (2) a breach of such
standard of care by the defendant; (3) the injuries suffered by the
plaintiff were proximately caused by such breach; and (4) the
damages resulting to the plaintiff. Weatherford
, 129 N.C. App. at
621, 500 S.E.2d at 468.
Since we conclude Dr. Litwin was properly excluded under N.C.
Gen. Stat. § 8C-1, Rule 702(b), plaintiff was without an expert
witness to testify to the standard of care. Summary judgment for
defendant was proper. See Purvis v. Moses H. Cone Mem'l Hosp.
, 175 N.C. App. 474, 478, 624 S.E.2d 380, 384 (2006)
(concluding that in the absence of establishing that an expert
witness is competent to testify to the standard of care, summary
judgment for defendant is proper). Plaintiff argues Dr. Chase'stestimony established the relevant standard of care and breach of
the standard of care. We disagree.
In answering a hypothetical question, Dr. Chase testified
cutting and removing the common bile duct during a gastrectomy
would be considered a procedure that is below the standard of care.
Dr. Chase testified the deceased's bile duct was not severed and
removed. Without Dr. Litwin's testimony, plaintiff did not
establish that there was a genuine issue of material fact whether
the bile duct was severed and removed, therefore, summary judgment
was not in error. Dr. Chase also testified that it's possible to
adhere to the standard of care and injure things that are close to
the area in which you will be operating. Dr. Chase's testimony
did not establish that he breached the standard of care. We affirm
the trial court's order.
Judges McCULLOUGH and TYSON concur.