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COA ruling could open door to multiple Rule 9(j) motions

Based on recent activity from the appellate courts, there seems to be renewed interest in the vagaries of Rule 9(j). On April 21, the Court of Appeals issued its decision in Robinson v. Halifax Regional Medical Center. It has several angles that are worthy of discussion.

Robinson involved the alleged wrongful death of a patient who died while receiving treatment at Halifax Regional Medical Center in Roanoke Rapids. The estate sued the hospital and a nurse and two doctors who were treating the patient at the time of her death and was appealing the trial court’s grant of their motion to dismiss the action for failure to comply with Rule 9(j).

In an opinion by Judge Chis Dillon, joined by Judge Valerie Zachary, the court affirmed and reversed in part, ruling that the trial court erred by dismissing the motion at the pleadings stage but holding out the possibility that dismissal might be appropriate at a later stage should discovery reveal a basis for it. (Judge Phil Berger concurred in a separate opinion.)

The plaintiffs’ complaint included a facially compliant 9(j) certification, a motion seeking to qualify their expert pursuant to Rule 702, and the expert’s one-page curriculum vitae, documenting his education, training, and experience as an emergency room physician in Florida. The individual defendants responded that neither of them was an ER physician or treated the patient in that capacity.

In granting the motion to dismiss, the trial court ruled that the complaint failed to comply with Rule 9(j) on its face because the CV showed that the expert practiced in a different specialty than the defendants, there was nothing to indicate that he was familiar with the standard of care in Halifax County, and there was nothing to indicate that he had experience in the types of care that the defendants rendered.

The appeals court noted that, under established precedent, establishing Rule 9(j) compliance involves a different inquiry than establishing whether an expert qualifies for purposes of trial under Rule 702. To satisfy 9(j), a plaintiff must merely establish a reasonable expectation that the reviewing expert would qualify under Rule 702. Rule 9(j) must be satisfied to “get past the gate and into the courthouse,” but once inside, a plaintiff must have at least one expert who in fact qualifies under Rule 702 to reach a jury. 

Dillon observed that, to lay claim to a “reasonable expectation” under Rule 9(j), a plaintiff must show that he exercised “reasonable diligence under the circumstances” in forming his belief that the expert would ultimately qualify under Rule 702. Dillon recognized that an expert may pass muster under Rule 9(j) but later be deemed unqualified under Rule 702 to give opinion testimony at trial. Accordingly, the law envisions a scenario where a plaintiff survives the pleadings stage with a 9(j) expert who is later disqualified by the trial court, provided the plaintiff has another expert who is qualified.

Dillon cited the well-accepted principle that, even if a complaint facially complies with Rule 9(j), dismissal may be granted later if discovery reveals that the plaintiffs’ expectation was unreasonable. This principle applies and dismissal is appropriate in this situation even if the plaintiff has retained another expert who qualifies under Rule 702. Robinson cautions, however, that in assessing the reasonableness of an expectation, all reasonable inferences must be drawn in the plaintiff’s favor.  Dismissal is appropriate only in those rare instances where no reasonable person would have relied on the expert based on what was known when the complaint was filed.

The court found that nothing in the CV disqualified the expert. While the CV documented only his experience as an ER physician, nothing in it conclusively demonstrated a lack of expertise as an internist or hospitalist or excluded the possibility that his expertise as an ER doctor included “the performance of the procedure that is the subject of the complaint and prior experience treating similar patients.”

Next, the court considered whether the CV conclusively established that the expert was unfamiliar with the standard of care in Halifax County. The defendants, blithely ignoring decades of precedent, took the remarkable position that, because the CV documented a medical career spent entirely within the state of Florida, the expert was incapable of applying the standard of care in Halifax County.

Our cases have long held that a medical expert from outside the community at issue can qualify to testify about the local standard of care. The court held that because there was nothing in the CV to suggest that the expert was unfamiliar with the standard of care in Halifax County, it was possible that he was acquainted with the community and its standards of practice, despite having spent his entire medical career in Florida. Implicitly, the opinion strongly suggests that 9(j) experts can come to a case knowing little about the subject community and still qualify under Rule 702, even if they’ve acquired the requisite familiarity solely through their work on the case.

The opinion observes that dismissal for non-compliance with Rule 9(j) might be warranted later in the proceedings. For example, dismissal would be appropriate if facts emerge during discovery showing that plaintiffs were unreasonable in expecting the expert to qualify under Rule 702 when they filed suit. As such, Robinson holds out the possibility of multiple 9(j) motions, one based on the pleadings and others arising out of matters revealed during discovery. The decision thus challenges a belief held by many that surviving one motion to dismiss resolves the issue of 9(j) compliance for purposes of the entire case.

As Robinson makes clear, plaintiffs must remain mindful of 9(j) issues throughout the litigation. While multiple 9(j) motions targeting the same expert are rare in practice, care must be taken at all stages of a case to establish and preserve an expert’s viability. Because surviving one motion to dismiss provides no immunity from subsequent motions based on new facts and evidence, there is really no safe harbor for plaintiffs. Presumably, a defendant could move to dismiss a case for non-compliance with 9(j) based on an expert’s testimony during voir dire. This can’t be the kind of gatekeeping lawmakers had in mind when enacting Rule 9(j). 

Did the Robinson court get it right? David Stradley, a medical malpractice attorney in Raleigh, believes it did.

“The Court appropriately focused on the plain language of Rule 9(j)(1), which imposes only a pleading requirement, not a proof requirement” Stradley said. “As the court correctly pointed out, the plaintiff may be required to satisfy a proof requirement later in the case by showing that she reasonably expected her Rule 9(j)(1) expert would qualify under 702 at the time the suit was filed. But that is not what is required to satisfy Rule 9(j) at the pleadings stage of the litigation.”

The defense bar has approached the issue of Rule 9(j) compliance with renewed vigor since lawmakers amended the rule in 2011. In aggressively seeking Rule 9(j) dismissals, defendants have exhibited a willingness to stretch the envelope, sometimes assuming audacious positions that fly in the face of established precedent. Witness the novel arguments advanced by the defendants in Robinson. What features of the legal landscape moved the defendants to argue—first to a trial court and later before the Court of Appeals—that the out-of-state expert was incapable of qualifying under Rule 702 despite abundant case law holding otherwise?

The answer is unclear. What can be said with utter certainty is that Rule 9(j) is alive and well. Unless it is fundamentally reinterpreted by the courts, plaintiffs should prepare for litigation with the expectation that Rule 9(j) will be invoked and litigated by defendants whenever there is a colorable basis for doing so. While the utility and sustainability of these legal maneuverings is open to debate, no credible observer can dispute their efficacy or their capacity for inflicting havoc on a carefully prepared lawsuit.  By all available indications, defendants will redouble these efforts in the coming months and years, testing and exploring the boundaries of 9(j) compliance with singular persistence and a boundless appetite for nuanced interpretations of Rule 9(j).

How things turn out remains to be seen.  Whatever the outcome, it is going to be a wild ride. 

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 [email protected]

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