Tort/Negligence – Dental Malpractice – Civil Practice – Rules 9(j) & 702 – Expert Witness – Clinical Practice – 45 Percent

Wright v. Frye (Lawyers Weekly No. 11-16-0991, 21 pp.) (Donna S. Stroud, J.) Appealed from Davidson County Superior Court. (Kevin M. Bridges, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: The time plaintiffs’ only designated expert spent in forensic dentistry was correctly included in the calculation of his “professional time.” Since the expert said he only spent 45 percent of his professional time in clinical dentistry, with the remainder in forensic dentistry and administrative work, the expert did not qualify as an expert witness.

We affirm the trial court’s order granting defendant’s motion to strike Dr. Thomas David as plaintiffs’ expert witness and granting defendant’s motion to dismiss.

Plaintiffs allege that the defendant-dentist committed malpractice in 2005 with regard to her extraction of plaintiff Dennis Wright’s tooth and his post-operative care. Plaintiffs designated Dr. Thomas David as their only expert witness.

Plaintiffs argue that the term “professional time” in N.C. R. Evid. 702(c) should not include the time Dr. David spent in forensic dentistry; therefore, he actually spent 50 percent of his time in administrative duties and 50 percent of his time in clinical dentistry; and the time he spent filling in for other dentists at the clinic “‘tips the balance’ to a majority” as required by Rule 702. We disagree.

Dr. David must have devoted a majority of his professional time to either or both of the following: (1) active clinical practice or (2) teaching students.

Plaintiffs allege that defendant engaged in malpractice from Jan. 12, 2005 until June 8, 2005. Therefore, according to Rule 702, plaintiffs had to show that, during the year prior to defendant’s treatment of plaintiff, a majority of Dr. David’s “professional time” was spent in the “active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered….”

Between 1992 and 2000, Dr. David split his time between oral medicine and general dentistry. After June of 2000, he stopped doing general dentistry and began using that time to perform administrative duties at his clinic, in addition to filling in for dentists who were sick, on vacation, maternity leave, etc.

Dr. David also engaged in forensic dentistry as a consultant and expert witness in criminal and civil cases.

At Dr. David’s deposition, as to the proportion of his “professional time” in 2004 and 2005 that each of his areas of practice involved, including his administrative duties, clinical work, and forensic dental work, defense counsel asked Dr. David,  if it was “10 percent doing forensic work, 45 percent doing administrative, and 45 percent doing clinical dentistry?” Dr. David answered, “On an average, that’s reasonably accurate.”

Dr. David affirmed twice in his deposition that, during the relevant period, the percentage of his profession time devoted to clinical practice was around 45 percent, and this falls short of the majority requirement of Rule 702.

Although Dr. David’s affidavit states that during the relevant period “the majority of my active clinical practice involved general dentistry,” he never specifically denies that the percentage of his clinical time was greater than 45 percent of his “professional time” as Rule 702 requires.

Even though Dr. David explained that during the relevant period of time his “clinical time” was split doing oral medicine and general clinical dentistry, when he was filling in for other dentists at his clinic, either activity would involve “seeing and treating patients.” Accordingly, when asked the percentage of his “professional hours” that was devoted to “seeing and treating patients,” Dr. David answered that it was “about 45 percent.”

This testimony shows that Dr. David considered the time that he was filling in for his colleagues at the clinic as part of the 45 percent that he devoted to “clinical dentistry” or “seeing and treating patients….” Therefore, contrary to plaintiffs’ argument, adding in the time that Dr. David filled in would not “‘tip[] the balance’ to a majority….”

We agree with defendant that plaintiffs’ argument “that the term ‘professional time’ in Rule 702 should not include the time Dr. David spent in forensic dentistry” is flawed. Essentially plaintiffs’ argument is that despite the obvious use of Dr. David’s professional dental skills in performing his criminal and civil forensic dentistry activities, Dr. David’s activities in forensic dentistry should not be considered “professional time” because they do not include seeing patients in a dental office.

Plaintiffs’ argument would eviscerate Rule 702’s majority requirement and create an absurdity: Just exclude the portion of the expert’s “professional time” which is not devoted to relevant clinical practice, and the portion of the expert witness’ “professional time” which is devoted to clinical practice will always be a majority.

Rule 702 is clearly intended to limit testifying experts to those who spend a majority of all of their professional time working or teaching in the area in which expertise is needed for the case in question.

Dr. David did not qualify as an expert witness pursuant to Rule 702 because he did not devote a majority of his “professional time” during the relevant period to active clinical practice (or teaching). The trial court’s finding that Dr. David did not spend the majority of his professional time in active clinical practice was supported by the evidence, and the trial court did not err in granting defendant’s motion to strike Dr. David as plaintiffs’ expert witness.

Dr. David was plaintiffs’ only designated expert witness. According to the discovery scheduling order, after 1 July 2009, plaintiffs could not designate anyone else to testify as their expert witness.

There is no indication in the record that plaintiffs attempted to modify any of the deadlines in the discovery order to add any other potential expert witnesses who could testify as to the standard of care. Therefore, even if plaintiffs could have “reasonably expected” Dr. David “to qualify as an expert witness under Rule 702,” the trial court ultimately determined that he was not qualified, and plaintiffs could not designate anyone else to testify.

Affirmed.