In the early part of this century, the North Carolina Court of Appeals issued a number of decisions affirming summary judgment in favor of defendants in medical malpractice cases based on what appeared to be minor, technical lapses during an expert’s discovery deposition. Frequently, these decisions arose from the expert’s inability to demonstrate sufficient familiarity with the standard of care in the community where the malpractice occurred as required by N.C. Gen. Stat. § 90-21.12.
For example, in Henry v. Southeastern Ob-Gyn Associates, P.A. (2001), the plaintiff’s sole expert witness was excluded from testifying at trial, paving the way for a successful summary judgment motion by the defendants. The Court of Appeals based its decision on the expert’s failure to demonstrate sufficient familiarity with the local standard of care in Wilmington during his discovery deposition, even though the expert was able to show that he was familiar with the standards of care in Chapel Hill and Durham. Because the expert was the only expert witness designated by the plaintiff, the trial court granted summary judgment against the plaintiff, an order which the court of appeals enthusiastically affirmed.
The decade following Henry witnessed a flurry of similar decisions from the Court of Appeals. These opinions typically applied the draconian rationale articulated in Henry to exclude facially qualified experts for alleged deficiencies in their deposition testimony, most frequently for their inability to recite detailed demographic data regarding the subject community and regurgitate other seemingly trivial community information during their depositions. In most of these cases the excluded experts were the only experts designated by the plaintiff.
Without a qualified expert to testify that the defendant-provider breached the standard of care, claims were being dismissed by trial courts with astonishing regularity, decisions that were characterized by many observers as manifesting a callous disregard for the rights of patients, most of whom were pursuing what appeared to be meritorious claims.
But beginning with the Supreme Court’s decision in Crocker v. Roethling (2009), our appellate courts have signaled that cursory expert witness exclusion based on flaws, errors, or omissions in an expert’s deposition testimony and resultant summary judgment orders are no longer regarded as the favored mechanism for testing the qualifications of expert witnesses. Most recently, the Court of Appeals observed in Mangan v. Hunter (December 2019) that where an expert’s deposition testimony and curative affidavit raised concerns regarding compliance with Rule 9(j), the proper device for determining compliance with 9(j) was voir dire by the trial court with its attendant opportunities for a full and complete exploration of the expert’s qualifications, not dismissal of the action.
Accordingly, under Crocker, Barringer v. Forsyth County, Mangan, and other recent appellate decisions, there is now support in the body of relevant case law for the proposition that attempts to disqualify experts under Rule 702 of the Rules of Evidence and § 90-21.12 due to a lack of familiarity with the community standard of care or other foundational matters should be addressed by way of fully-developed voir dire, not peremptory exclusion of the expert and—as was often the case under Henry and its progeny—outright dismissal of the action.
In this scenario, particularly where the evidence presents a “close case” or where the expert’s deposition testimony or subsequent affidavit statements are ambiguous or “undeveloped” on key issues, full-blown voir dire, as opposed to knee-jerk exclusion of an expert based on deficiencies in the expert’s deposition testimony, now appears to be the favored practice.
In medical malpractice cases, it appears that our appellate courts are moving away from the tradition of opinions that exalted the exclusion of expert witnesses based on seemingly innocuous missteps during discovery depositions. Where an excluded expert was the plaintiff’s only standard of care expert, these decisions seemed to favor summary judgment as a means of enforcing mechanical compliance with Rule 9(j), §90-21.12, and Rule 702.
Those fastidious pronouncements were viewed by many as an improper circumvention of the medical expert’s capacity and prerogative to identify and apply relevant facts and data in forming her standard of care opinions. Since 2009, North Carolina courts have tacitly distanced themselves from these decisions, favoring exploration of an expert’s qualifications on voir dire rather than reaching case-determinative decisions based on deposition excerpts and conclusory affidavits.
While the effect of these decisions has begun to impact trial court practice, my firm’s recent experience handling appeals from adverse trial court rulings suggests that trial courts have been slow to embrace this foundational shift in the decisions emanating from our appellate courts and respond to this change in the jurisprudential weather. Some judges continue to exhibit what appears to be outright hostility to medical malpractice cases as a general matter, and these judges are prone to interpret and apply cases like Henry to exclude qualified experts and dismiss malpractice cases based on a distorted application of the relevant statutes and rules, particularly the same-or-similar-communities standard of care.
Despite full-throated indications that voir dire, not summary adjudication, is now viewed by the appellate courts as the preferred mechanism for assessing the qualifications of expert witnesses—particularly in cases where the evidentiary landscape is murky or where the exclusion of the expert will be outcome-determinative—we continue to see cases where summary judgment or dismissal has been granted based on perceived deficiencies in the expert’s deposition testimony.
For this reason, we strongly recommend that plaintiffs’ counsel take appropriate steps during an expert’s discovery deposition to qualify the expert, just as if one were qualifying the expert on voir dire at trial. In my next column, I’ll suggest some steps that should help to protect plaintiffs from rogue rulings by recalcitrant trial courts.
But until some unimaginable time when the General Assembly clarifies, harmonizes or moderates the principles set forth in Rule 9(j), §90-21.12 and Rule 702, meritorious malpractice cases will be vulnerable to rulings that result in summary disposition by trial courts. While no method can ensure that a patient’s malpractice claim will survive to see its day in court, taking appropriate steps to qualify your expert during her discovery deposition, however counterintuitive and excessively conservative as that may seem, can go a considerable distance toward ensuring that an injured patient will have the opportunity to prove his case at trial.
Failing to prepare for the worst is the stuff that expensive appeals and disgruntled clients are made of. As with many things, when representing plaintiffs in medical malpractice cases it is better to be an over-protective fool than a careless sage. The lesson to be learned? Prepare for the worst and create a compelling record in preparation for the rogue decision that one day will surely come, and in so doing live to fight another day.
Mark McGrath is an attorney with Brent Adams & Associates in Raleigh, where he focuses his practice on medical malpractice, nursing home negligence, third-party workplace injury, wrongful death and catastrophic personal injury litigation. He welcomes comments and may be reached at firstname.lastname@example.org.