Moore v. Proper

• Decision Date: 14 June 2012
• Docket Number: No. 443A11.,443A11.
• Citation: 726 S.E.2d 812
• Parties: Janet E. MOORE v. Daniel H. PROPER; Shaun O'Hearn; Dr. Shaun O'Hearn, DDS, P.A.; and Affordable Care, Inc.
• Court: North Carolina Supreme Court

726 S.E.2d 812

Janet E. MOORE

v.Daniel H. PROPER; Shaun O'Hearn; Dr. Shaun O'Hearn, DDS, P.A.; and Affordable Care, Inc.

No. 443A11.

Supreme Court of North Carolina.

June 14, 2012.

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 715 S.E.2d 586 (2011), reversing an order granting summary judgment for defendants entered on 20 August 2010 by Judge James L. Baker, Jr. in Superior Court, Madison County,and remanding for additional proceedings. On 8 December 2011, the Supreme Court allowed defendants' petition for discretionary review of additional issues. Heard in the Supreme Court on 16 April 2012.

Long, Parker, Warren, Anderson & Payne, P.A., Asheville, by Steven R. Warren, for plaintiff-appellee.

Cranfill Sumner & Hartzog LLP, by Samuel H. Poole, Jr., Jaye E., M. Janelle Lyons, Charlotte, and Bingham–Hinch, for Daniel H. Proper; and Shumaker, Loop & Kendrick, LLP, by Scott M. Stevenson, Charlotte, and Scott A. Heffner, for Shaun O'Hearn, Dr. Shaun O'Hearn, DDS, P.A., and Affordable Care, Inc.; defendant-appellants.

Zaytoun Law Firm, PLLC, by Matthew D. Ballew; and Ferguson Stein Chambers Gresham & Sumter, P.A., Chapel Hill, by Adam Stein; for North Carolina Advocates for Justice, amicus curiae.

Carruthers & Roth, P.A., Greensboro, by Norman F. Klick, Jr. and Robert N. Young, for North Carolina Association of Defense Attorneys, amicus curiae.

MARTIN, Justice.

This suit arises from plaintiff's visit to the dentist for a routine tooth extraction, which plaintiff alleges resulted in a broken jaw. The trial court granted defendants' motions for summary judgment “because Plaintiff failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure in that no reasonable person would have expected Dr. Joseph Dunn to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence.” The sole question presented by this case is whether the Court of Appeals properly reversed the trial court order dismissing plaintiff's malpractice claim for failure to comply with N.C.G.S. § 1A–1, Rule 9(j). Because we find that plaintiff's proffered expert witness could have been “reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence,” as required by Rule 9(j)(1) of the North Carolina Rules of Civil Procedure, we affirm the Court of Appeals. We need not address any other issues raised by the parties.

On 16 January 2006, plaintiff went to the dental office of Dr. Shaun O'Hearn in Asheville, North Carolina, complaining of a toothache. Plaintiff was seen by Dr. Daniel H. Proper. At plaintiff's request, Dr. Proper performed a tooth extraction. Plaintiff alleges that Dr. Proper fractured her jaw during the routine extraction, discharged her from his care without advising her of the fracture, failed to provide appropriate care following the fracture, and ignored her efforts to seek his assistance in treating her injury.

On 5 March 2009, plaintiff filed a complaint asserting a claim for dental malpractice, naming Daniel H. Proper; Shaun O'Hearn; Dr. Shaun O'Hearn, DDS, P.A.; and Affordable Care, Inc., as defendants. The complaint asserted that defendants were negligent in the performance of her tooth extraction and in failing to provide follow-up care. Plaintiff claimed that defendants' actions and inactions constituted a breach of the standard of care for dental professionals. The complaint included a Rule 9(j) certification stating:

The medical care in this case has been reviewed by Dr. Joseph C. Dunn, who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is willing to testify that the medical care provided by the Defendants did not comply with the applicable standard of care.

In response to plaintiff's complaint, defendants filed answers denying all allegations of negligence and breach of the standard of care. Defendants further asserted as an affirmative defense that plaintiff failed to comply with Rule 9(j).

Pursuant to the discovery scheduling order issued by the trial court, plaintiff submitted an expert witness designation identifying Dr. Joseph C. Dunn as her only expert witness and summarizing his qualifications. Dr. Dunn completed his undergraduate work at the University of North Carolina at Chapel Hill in 1966. He completed dental school at the University of Louisville School of Dentistry in 1970. From 1970 to 1973 Dr. Dunn served in the Dental Corps of the United States Navy. Following his military service, Dr. Dunn practiced dentistry in Asheville from 1973 until his retirement from full-time practice in 1997. The expert witness designation stated that Dr. Dunn would testify that plaintiff

was not treated in accordance with the expected standard of care for treatment by a General Dentist in North Carolina in that she was not advised of the risks of a fractured jaw occurring from any treatment which was to be afforded by Dr. Proper, Dr. Proper did not take any steps to prevent the fracture of the jaw and he failed to provide for her proper follow up care after she experienced pain as a result of the extraction.

Defendants elicited more information about Dr. Dunn through interrogatories and a deposition. Discovery revealed that after his retirement from full-time clinical practice, Dr. Dunn served as director of the clinic at the local health department from 1998 to 2000. During his time at the clinic, Dr. Dunn performed “a lot of oral surger[ies],” including “a lot of extractions.” Dr. Dunn maintained his license to practice general dentistry following his retirement, which required him to participate in continuing education courses each year. Since retiring, including the year preceding the alleged injury, Dr. Dunn practiced general dentistry on a fill-in basis, usually for dentists in the Asheville area who were ill. When defendants' attorney asked how many days Dr. Dunn had filled in between January 2005 and January 2006, Dr. Dunn at first estimated thirty days, though he stated that he was not sure because it was a number of years earlier. However, Dr. Dunn subsequently testified that he filled in for a dentist on a full-time basis for approximately two and one-half months, which he thought was during the same time period. Responding to another question, Dr. Dunn stated that one-hundred percent of his time practicing general dentistry on a fill-in basis constituted active clinical practice. Defendants' attorney then rephrased the question to ask what percentage of time Dr. Dunn spent working in the active clinical practice of dentistry, assuming an eight-hour work day with a four-day work week, to which Dr. Dunn responded, “[L]ess than five percent, I guess.” Dr. Dunn repeatedly explained his uncertainty, stating that it was difficult “to nail down percentages” and “[t]hat is just a thrown out number.” Dr. Dunn did not spend any time teaching, researching, performing administrative tasks, or consulting in the field of dentistry. He testified that he spent a lot of time away from the dental profession serving on the city council, running for mayor, and enjoying time with his grandchildren.

Following the deposition, defendants filed motions for summary judgment under Rule 9(j). A hearing on the motions was scheduled for 9 August 2010. Before the hearing, on 6 August 2010, plaintiff filed a motion to qualify Dr. Dunn as an expert witness under Rule 702(e). On 9 August 2010, Dr. Dunn filed an affidavit purporting to clarify his deposition testimony, asserting that he was engaged in active clinical practice one hundred percent of his professional time between January 2005 and January 2006.

On 20 August 2010, the trial court entered an order granting defendants' motions for summary judgment and dismissing plaintiff's case for failure to comply with Rule 9(j). The order also denied plaintiff's motion to qualify Dr. Dunn under Rule 702(e), which allows expert qualification under extraordinary circumstances. N.C.G.S. § 8C–1, Rule 702(e) (2009). The order contained no written findings of fact. In response to plaintiff's motion for relief from summary judgment, the trial court filed a subsequent order on 21 September 2010 denying plaintiff's requested relief. Although the trial court stated in its August 2010 order that “no reasonable person would have expected Dr. Joseph Dunn to qualify as an expert witness under Rule 702,” neither order made a determination as to whether Dr. Dunn actually qualified as a witness under Rule 702(b).

On appeal, a divided panel of the Court of Appeals reversed the trial court, concluding that Dr. Dunn could have been reasonably expected to qualify under Rule 702 as required by Rule 9(j)(1) and (2). Moore v. Proper, –––N.C.App. ––––, ––––, 715 S.E.2d 586, 590–91 (2011). The Court of Appeals majority expressly stated that it was not ruling on whether Dr. Dunn would ultimately qualify as an expert witness under Rule 702. Id. at ––––, 715 S.E.2d at 590–91. Because the trial court made no written findings of fact, the Court of Appeals majority construed the factual evidence in the light most favorable to the nonmoving party and reviewed the ultimate conclusions of law de novo. Id. at ––––, ––––, 715 S.E.2d at 590, 592. The dissenting opinion stated that plaintiff did not fulfill the requirements of Rule 9(j)(2) because she did not file a Rule 702(e) motion with the complaint. Id. at ––––, 715 S.E.2d at 593 (Stephens, J., dissenting). The dissenting opinion further stated that plaintiff could not fulfill the requirements of Rule 9(j)(1) because, with the exercise of reasonable diligence, plaintiff could not reasonably expect Dr. Dunn to qualify as an expert as he neither maintained an active clinical practice nor spent a majority of his professional time engaged in active clinical dentistry. Id. at ––––, 715 S.E.2d at 593–96.

The outcome of this case hinges on the interaction between N.C.G.S....