Crocker v. Roethling

HUDSON, Justice.

Justice MARTIN, concurring, with separate mandate.

InHowerton v. Arai Helmet, Ltd., this Court examined and explained the standard for "ruling on the admissibility of expert testimony" in North Carolina.358 N.C. 440,455,597 S.E.2d 674,684(2004). We acknowledged, on the one hand, that "trial courts must decide preliminary questions concerning the qualifications of experts to testify or the admissibility of expert testimony," and we reaffirmed that such decisions will generally be reviewed on appeal for abuse of discretion.Id.at 458,597 S.E.2d at 686. We emphasized, on the other hand, that the trial court's preliminary assessment should not "go so far as to require the expert's testimony to be proven conclusively reliable or indisputably valid before it can be admitted into evidence."Id.Page 150at 460,597 S.E.2d at 687. Evidence may be "`shaky but admissible,'" and it is the role of the jury to make any final determination regarding the weight to be afforded to the evidence.Id.at 460-61,597 S.E.2d at 687-88(quotingDaubert v. Merrell Dow Pharm., Inc.,509 U.S. 579,596(1993)).

This Court took great care inHowertonto distinguish our approach to expert qualification and admissibility of expert testimony from the federal court procedures described inDaubert v. Merrell DowPharmaceuticals, Inc.,509 U.S. 579(1993).Howerton,358 N.C. at 469,597 S.E.2d at 692-93. We stated that "application of the North Carolina approach is decidedly less mechanistic and rigorous than the `exacting standards of reliability' demanded by the federal approach."Id.at 464,597 S.E.2d at 690(quotingWeisgram v. Marley Co.,528 U.S. 440,455(2000)). Our concern was that "trial courts asserting sweeping pre-trial `gatekeeping' authority underDaubertmay unnecessarily encroach upon the constitutionally-mandated function of the jury to decide issues of fact and to assess the weight of the evidence."Id.at 468,597 S.E.2d at 692.

In the context of medical malpractice cases, our General Assembly has expressed a similar sentiment regarding the jury's function in weighing expert testimony.SeeN.C.G.S. §90-21.12(2007). Assuming expert testimony is properly qualified and placed before the trier of fact, section90-21.12reserves a role for the jury in determining whether an expert is sufficiently familiar with the prevailing standard of medical care in the community.See id.Under the statute, "the trier of the facts" must be "satisfied by the greater weight of the evidence that the care of [the] health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities."Id.

In the instant case, the record before this Court appears to present a close question as to whether plaintiffs' proffered expert, Dr. Elliott, was sufficiently familiar with the standard of care in Goldsboro. Dr. Elliott's deposition testimony tended not to support the admission of his testimony at trial. For instance, he did not know the designation of Wayne Memorial Hospital (in which plaintiffs' daughter was born) or the number of labor and delivery suites it had. He demonstrated little familiarity with Goldsboro or Wayne County beyond a basic estimate of population and general location within the state. He testified that most of his obstetrics career was spent in Phoenix, a metro area he believed had more than twenty times thePage 151number of obstetricians than Goldsboro and a population exceeding that of Goldsboro by over four million people. Dr. Elliott himself had never performed the Zavanelli maneuver, nor had he ever observed it performed during his twenty-four years of practice in Phoenix. Moreover, at several points during his deposition, he appeared to be applying a national standard of care rather than the "same or similar community" standard required by our General Assembly in section90-21.12. See §90-21.12.

Dr. Elliott's affidavit, on the other hand, indicated that he had researched and was knowledgeable about the standard of care in Goldsboro. For example, Dr. Elliott stated that after reviewing various materials, he was familiar with "the training, education and experience of Dr. Peter Roethling," "the size of the population [of Goldsboro], the level of care available at the hospital, the facilities and the number of health care providers for obstetrics," and "the prevailing standard of care for handling shoulder dystocia in the same or similar community to Goldsboro."

Our statutes and case law do not require an expert to have actually practiced in the community in which the alleged malpractice occurred, or even to have practiced in a similar community.See§90-21.12;see alsoN.C.G.S. §8C-1, Rule 702(b) (2007) (indicating that an expert in a medical malpractice case need not be licensed in North Carolina so long as the expert is licensed in some other state). In this regard, I agree with Justice Hudson's opinion that our law does not "prescribe any particular method by which a medical doctor must become `familiar' with a given community." Book or Internet research may be a perfectly acceptable method of educating oneself regarding the standard of medical care applicable in a particular community.See, e.g., Coffman v. Roberson,153 N.C. App. 618,624,571 S.E.2d 255,259(2002) (holding medical expert demonstrated sufficient familiarity with applicable standard of care when that familiarity was gained in part from "Internet research about the size of the hospital, the training program, and the AHEC (Area Health Education Center) program"),disc. rev. denied,356 N.C. 668,577 S.E.2d 111(2003).

Although the trial court appropriately considered both Dr. Elliott's deposition testimony and his affidavit in determining whether to admit his expert opinion at trial, these discovery materials did not adequately convey a complete picture of Dr. Elliott's qualifications or the reliability of his proposed testimony. Defendants'Page 152deposition of plaintiffs' proposed expert suggested a lack of relevant knowledge about Goldsboro, while the expert's affidavit asserted his familiarity without explaining what materials he reviewed or the way in which those materials influenced his determination of the applicable standard of medical care. Moreover, the trial court based its decision to exclude Dr. Elliott primarily on a paper record, considering the video deposition transcript, the affidavit, and brief oral argument by counsel. Thus, the trial court was in no better position than this Court to review the record and to assess Dr. Elliott's qualifications and the reliability of his proposed testimony.See In re Greene,306 N.C. 376,380,297 S.E.2d 379,382(1982) (explaining that "[t]his Court, unlike a trial court, is ill-equipped to resolve disputed questions of fact" because we "do not hear live testimony of sworn witnesses and are required to rely exclusively upon written records").

When the proffered expert's familiarity with the relevant standard of care is unclear from the paper record, our trial courts should consider requiring the production of the expert for purposes of voir dire examination. In such situations, particularly when the admissibility decision may be outcome-determinative, the expense of voir dire examination and its possible inconvenience to the parties and the expert are justified in order to ensure a fair and just adjudication. Voir dire examination provides the trial court with the opportunity to explore the foundation of the expert's familiarity with the community, the method by which the expert arrived at his conclusion regarding the applicable standard of care, and the link between this method and the expert's ultimate opinion. Moreover, unlike the nonadversarial discovery process, counsel for both parties may participate equally in a voir dire hearing and help elicit all information relevant to the expert's qualifications and the admissibility of the proposed testimony.

Perhaps most importantly, voir dire examination provides the trial court with an informed basis to guide the exercise of its discretion. It is precisely because the trial court "`has the advantage of seeing and hearing the witnesses'" that the trial court's discretionary decision is entitled to deference on appeal.State v. Lasiter,361 N.C. 299,305,643 S.E.2d 909,912(2007) (quotingState v. Little,270 N.C. 234,240,154 S.E.2d 61,66(1967)) (explaining further that the trial court's firsthand observations of jury voir dire enable it to "`gain a "feel" of the case which a cold record denies to a reviewing court'" (quotingLittle,270 N.C. at 240,154 S.E.2d at 66)).Page 153

I do not suggest that voir dire examination is necessary in every case in which opposing counsel challenges a proffered expert's qualifications or proposed testimony. In light of the emphasisHowertonplaces on the jury's role in evaluating expert testimony, however, voir dire examination may be prudent in close cases. InHowerton, this Court expressed concern with "the case-dispositive nature ofDaubertproceedings, whereby parties in civil actions may use pre-trial motions to exclude expert testimony underDaubertto bootstrap motions for summary judgment that otherwise would not likely succeed."Howerton,358 N.C. at 467,597 S.E.2d at 691(stating further: "[A] party may use a [pre-trial] hearing to exclude an opponent's expert testimony on an essential element of the cause of action. With no other means of proving that element of the claim, the non-moving party would inevitably perish in the ensuing motion for summary judgment."Id.at 468,597 S.E.2d at 692.).

The same concern is implicated in the instant case, in which defendants sought and received summary judgment immediately after the trial court's exclusion of plaintiffs' tendered expert. At the end of counsels' arguments, following discussion about Dr. Elliott's deposition testimony and affidavit, plaintiffs' counsel noted to the trial court that "[t]his is not the cross-examination of Dr. Elliott at a voir dire [examination]." As counsel's remark implies, here, and in similar cases, the voir dire procedure provides a more reliable assessment mechanism than discovery depositions or conclusory affidavits, protecting the jury from unreliable expert testimony yet preserving the jury's role in weighing the credibility of expert testimony when appropriate.

For the foregoing reasons, this case is reversed and remanded to the Court of Appeals for further remand to the trial court with instructions to conduct a voir dire examination of plaintiffs' proffered expert and, based on this evidentiary foundation, to determine the admissibility of the proposed expert testimony.See Marks v. United States,430 U.S. 188(1977).

Justice EDMUNDS concurs in this opinion.

Justice NEWBY dissenting.

In my view, this case presents the issue of whether a tendered expert's unsubstantiated statements of familiarity with the applicable standard of care in a medical malpractice action mandate a voir dire examination to determine whether the expert is competent to testifyPage 154at trial.¹While I agree that the trial court in its discretion could have conducted a voir dire of the proffered expert, under the facts of this case and the long-established deferential standard of review, I do not believe the trial court's decision not to do so was an abuse of discretion requiring this Court to intervene and direct the proceedings of the trial court. I therefore respectfully dissent.

Plaintiffs brought this action alleging that defendants committed medical malpractice during the delivery of plaintiffs' daughter Reagan at Wayne Memorial Hospital in Goldsboro. Plaintiffs sought to contend at trial that defendant H. Peter Roethling, M.D. breached the applicable standard of care while delivering Reagan by failing to perform what is known as the Zavanelli maneuver. The Zavanelli maneuver is a medical procedure by which a baby suffering shoulder dystocia is pushed back into the mother's uterus, relieving compression on the umbilical cord and enabling the baby to receive sufficient oxygen. Delivery is thus delayed until an emergency cesarean section can be performed.

Plaintiffs tendered John P. Elliott, M.D. as their only expert witness. He intended to testify that the Zavanelli maneuver was part of the standard of care applicable to a board-certified obstetrician in Goldsboro at the time of Reagan's birth and, therefore, that defendant Roethling breached the standard of care in failing to perform the maneuver. As will be detailed more fully below, Dr. Elliott had no experience practicing in Goldsboro or any similar community and, when he formed his opinion, had very little knowledge of defendant Roethling's training, of the Goldsboro community in general, or of the medical facilities at Wayne Memorial Hospital.

Defendants sought to exclude Dr. Elliott's testimony and, based upon the possible exclusion, moved for summary judgment onPage 1551 February 2006. After a hearing on the motion, the trial court found that Dr. Elliott had impermissibly based his opinion on a national standard of care, and on 1 March 2006, the court entered an order excluding Dr. Elliott's testimony and granting summary judgment in favor of defendants. Plaintiffs appealed, and the Court of Appeals affirmed the trial court. This Court allowed discretionary review to determine whether it was proper for the trial court to exclude Dr. Elliott's testimony and grant defendants' motion for summary judgment.

Section90-21.12of the General Statutes, entitled "Standard of health care," provides:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

N.C.G.S. §90-21.12(2007). Under this statute, the plaintiff in a medical malpractice suit bears the burden of proving the defendant failed to comply with the applicable standard of care. To do so, the plaintiff must first establish the content of that standard by providing evidence of "the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action."Id.Due to the specialized nature of the standard of care in medical malpractice cases, the content and meaning of the standard must be demonstrated by expert testimony.See id.§1A-1, Rule 9(j) (2007);id.§8C-1, Rule 702(a) (2007);Ballance v. Wentz,286 N.C. 294,302,210 S.E.2d 390,395(1974).

Regardless of context, the decision whether to admit expert testimony lies within the province of the trial court. N.C.G.S. §8C-1, Rule 104(a) (2007).

"[A] trial court's ruling on the qualifications of an expert or the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion."Howerton v. Arai Helmet,Ltd.,358 N.C. 440,458,597 S.E.2d 674,686Page 156(2004). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision."White v. White,312 N.C. 770,777,324 S.E.2d 829,833(1985).

N.C. Dep't of Transp. v. Haywood Cty.,360 N.C. 349,351,626 S.E.2d 645,646(2006) (alteration in original). The abuse of discretion standard is firmly entrenched in our caselaw for appellate review of trial courts' discretionary decisions, and the implication by a majority of this Court that abuse of discretion does not apply here thus represents a sharp departure from precedent. In stating that "the pertinent inquiry is whether the trial court properly applied the statutory requirements of N.C.G.S. §90-21.12and the Rules of Evidence," moreover, Justice Hudson's opinion fails to set forth any real standard of review to fill the void. Justice Martin likewise neglects to state the standard under which he deems a voir dire examination necessary. The statutory provisions to which Justice Hudson refers do indeed contain standards that the trial court must apply, but those standards simply define inquiries and determinations that are leftto the discretion of the trial court.Abuse of discretion therefore remains the proper standard for our review of the trial court's decision to exclude Dr. Elliott's testimony.

Although the jury is entrusted with weighing the credibility of expert testimony that has been deemed admissible, the abuse of discretion standard affords the trial court wide latitude in performing the preliminary function of evaluating whether the expert in question is competent to testify.Queen City Coach Co. v. Lee,218 N.C. 320,323,11 S.E.2d 341,343(1940) ("The competency, admissibility, and sufficiency of the evidence is a matter for the court to determine. The credibility, probative force, and weight is a matter for the jury. This principle is so well settled we do not think it necessary to cite authorities."). In this case, prior to stating his opinions before a jury, Dr. Elliott was required to demonstrate to the trial court his competency to testify regarding the applicable standard of care.

As the General Statutes reflect, the trial court's traditional duty to determine the admissibility of expert testimony is particularly important in the medical malpractice context. In medical malpractice suits in which the plaintiff does not rely on the doctrine ofres ipsa loquitur, our Rules of Civil Procedure require the trial court to determine whether the plaintiff's pleading asserts that an expert witness will "testify that the medical care did not comply with the applicablePage 157standard of care" and, if the pleading fails to do so, to dismiss the complaint. N.C.G.S. §1A-1, Rule 9(j);id.§90-21.12. Similarly, a witness can testify to the "scientific, technical or other specialized knowledge" that is crucial in medical malpractice cases only after the trial court is satisfied that the witness is "qualified as an expert by knowledge, skill, experience, training, or education."Id.§8C-1, Rule 702(a). This consistent interposition of the trial court between potential expert witnesses and the jury represents sound legislative policy, as lay jurors will naturally accord great weight to expert testimony.Billips v. Commonwealth,274 Va. 805,809,652 S.E.2d 99,101-02(2007) ("Advancements in the sciences continually outpace the education of laymen, a category that includes judges, jurors and lawyers. . . . Consequently, there is a risk that those essential components of the judicial system may gravitate toward uncritical acceptance of any pronouncement that appears to be `scientific,'. . . .").

In determining whether an expert's testimony is sufficiently reliable for admission, the trial court must make "a preliminary, foundational inquiry into the basic methodological adequacy of [the] expert testimony."Howerton,358 N.C. at 460,597 S.E.2d at 687(citingQueenCity Coach Co.,218 N.C. at 323,11 S.E.2d at 343). Notwithstanding Justice Hudson's intimation to the contrary, an expert's methodology need not be especially "controversial or novel" for its reliability to come under scrutiny. Just as it must do in cases involving expert testimony derived from complex scientific methods, the trial court in a medical malpractice action must examine the process by which the expert arrived at the proffered opinion on the content of the applicable standard of care. The court must be able to determine which information the expert used in forming the opinion as well as how the expert used that information.

I agree with Justice Martin's view that when opposing counsel challenges an expert's competency to testify to the applicable standard of care, and it is a close case as to whether the expert is sufficiently familiar with that standard, the best practice is for the trial court to conduct a voir dire examination of the proffered expert witness. In fact, had the trial court elected to hold a voir dire hearing to determine Dr. Elliott's competency to testify, I would find no abuse of discretion in that decision. However, when the record alone demonstrates that the expert lacks the required familiarity, a voir dire hearing is not required as a matter of law. In the instant case, the record reveals that while Dr. Elliott asserted his familiarity with the applicable standard, he had minimal knowledge of Goldsboro or any similarPage 158communities and was simply applying a national standard of care when he formed his opinion. Moreover, despite his years of practice in a large metropolitan area, Dr. Elliott had no personal experience with the procedure about which he sought to testify and knew of no specific instances of its use. In such cases the trial court may properly deem the proffered expert witness incompetent to testify without the expense and inconvenience of a voir dire examination.

In challenging Dr. Elliott's familiarity with the applicable standard of care, defendants questioned not only the relevance of his opinions but also the reliability of the methods he used to formulate those opinions. In so doing, defendants disputed the accuracy, not the truthfulness, of Dr. Elliott's conclusion that he was familiar with the standard applicable to Goldsboro or a similar community. In other words, defendants challenged Dr. Elliott's competency, not his credibility. As noted by Justice Hudson, both the relevance of an expert's testimony and the reliability of the expert's methodology are questions of law to be determined by the court in its admissibility inquiry.Id.at 458,597 S.E.2d at 686(citingState v. Goode,341 N.C. 513,527-29,461 S.E.2d 631,639-41(1995)). Questions of the relevance of Dr. Elliott's testimony and the reliability of his methods cannot simply be decided by Dr. Elliott. The court must look beyond his bare assertions and decide these issues for itself.

I do not dispute the majority's statement that there is no "particular method by which a medical doctor must become `familiar' with a given community." I do believe, however, that in order for the trial court to properly decide Dr. Elliott was competent to testify to the standard of care applicable in Goldsboro or similar communities, Dr. Elliott was required to demonstrate to the courtsomeacceptable method by which he arrived at his conclusion on the content of Goldsboro's standard of care. The evidence before the court failed to establish such a method. Dr. Elliott was a member of the same health care profession as defendant Roethling, both being board-certified obstetricians. He knew that defendant Roethling had completed a residency in obstetrics and gynecology, but he demonstrated no further knowledge of defendant Roethling's training and experience. Dr. Elliott knew the approximate population of the Goldsboro area and the number of obstetricians practicing there, but he had no personal experience practicing in Goldsboro or any similar community. He recited basic facts about defendant Roethling and about Goldsboro, but ultimately failed to clarify how those facts served to familiarize him with the applicable standard of care. As defense counsel statedPage 159at the motion hearing, Dr. Elliott simply failed to "connect the dots between Goldsboro or a similar community" and the personal knowledge and experience that resulted in the formulation of his opinion.

This Court has affirmed two Court of Appeals opinions that upheld the trial court's function of determining admissibility by requiring expert witnesses to elucidate both the facts underlying their proffered testimony and the logical link between those facts and the experts' opinions.In Henry v. Southeastern OB-GYN Associates,145 N.C. App. 208,550 S.E.2d 245,aff'd per curiam,354 N.C. 570,557 S.E.2d 530(2001), the Court of Appeals held an expert was properly excluded because his assertion of familiarity with a national standard of care failed to demonstrate sufficient knowledge of the standard of care in Wilmington or a similar community.Id.at 212-13,550 S.E.2d at 248. The court noted the lack of a meaningful connection between the facts the expert used and his conclusion on the applicable standard of care, stating there was no evidence that a national standard applied to Wilmington or that the community in which the expert practiced was similar to Wilmington.Id.at 210,550 S.E.2d at 246-47. The Court of Appeals also upheld the trial court's refusal to allow the expert to testify at trial that he was familiar with the standard of care applicable to Wilmington or similar communities, because such testimony would have contradicted the expert's deposition testimony.Id.at 217-20,550 S.E.2d at 251-52(Hudson, J., dissenting).In Pitts v. Nash Day Hospital, Inc.,167 N.C. App. 194,605 S.E.2d 154(2004),aff'd per curiam,359 N.C. 626,614 S.E.2d 267(2005), the Court of Appeals performed a similar analysis in holding that an expert was improperly excluded. The court found that a number of strong similarities between the personal experience of the expert and that of the defendant medical doctor represented a reliable method for the expert to use in drawing conclusions regarding the applicable standard of care. Specifically, the court noted the expert and the defendant doctor had comparable "skill, training, and experience," both having practiced extensively in North Carolina; the expert had practiced in communities throughout North Carolina and testified to their similarity to the community in question "in terms of population served, rural nature, depressed economy, and limitations on resources"; and the expert "was familiar with the equipment [used by the defendant doctor] because he used similar . . . equipment in other communities in his medical practice."Id.at 198,605 S.E.2d at 156-57. The numerous similarities in the two doctors' backgrounds gave the court sufficient grounds upon which to conclude the expert's methodPage 160of forming an opinion on the applicable standard of care was reliable.Id.at 199,605 S.E.2d at 157.

These cases demonstrate that neither an expert's bald assertion of familiarity with the applicable standard of care nor mere superficial statements of fact about the community in question can give the trial court a sufficient basis to deem the expert's methods reliable or the resulting testimony relevant. When challenged, the expert must not only state with specificity the facts that contributed to the proffered opinion, but also make clear to the court how those facts enabled the expert to arrive at a conclusion. This latter step must be performed most explicitly when, as in the instant case, the expert has no personal experience in the community at issue or any similar community.

The record reflects that at the time of his testimony, Dr. Elliott was licensed to practice medicine in Arizona, California, and Colorado, but not in North Carolina. He gave his deposition testimony from Phoenix, Arizona via videoconference. His practice at the time was at Good Samaritan Regional Medical Center ("Good Samaritan") in Phoenix, and he had spent his career practicing in Phoenix and in various Army hospitals, none of which were located in North Carolina. According to Dr. Elliott, Good Samaritan services the Phoenix metropolitan area, the population of which he estimated at "about four and a half million," and also draws patients from across Arizona and throughout the country. In contrast, Dr. Elliott estimated the population of the Goldsboro area at "a little over 100,000 people." He further approximated that there were "in excess of 200" obstetricians practicing in the Phoenix metropolitan area, compared to a total of 8 obstetricians in the Goldsboro area. Dr. Elliott had never practiced in Goldsboro and admitted in his deposition that he had never even practiced in a community similar to Goldsboro.

Dr. Elliott's deposition is devoid of specific facts pertaining to defendant Roethling's training and experience, aside from the basic knowledge that defendant Roethling had completed a residency in obstetrics and gynecology. He also did not know how long defendant Roethling had been in practice. As discussed above, Dr. Elliott's deposition testimony does reveal some secondhand knowledge of the Goldsboro community. He had familiarized himself with the total population of the Goldsboro area and Wayne County's relative location in North Carolina. He also knew the number of obstetricians practicing in Goldsboro at the time of Reagan Crocker's birth.Page 161Nonetheless, his knowledge of the facilities available at Wayne Memorial Hospital was vague at best: he "believe[d] they [did] not have a neonatal intensive care unit," and he did not know how many labor and delivery suites they had. At no point in his deposition or his affidavit did Dr. Elliott explain how the basic facts he knew about defendant Roethling and the Goldsboro community enabled him to conclude that the standard of care applicable to an obstetrician in Goldsboro or any similar community required use of the Zavanelli maneuver in Reagan Crocker's case.

Dr. Elliott failed to articulate a proper basis for his conclusions even though defense counsel fully explored his familiarity with the community at issue, other similar communities, and the applicable standard of care. Defense counsel repeatedly asked Dr. Elliott about specific facts regarding Goldsboro that may have contributed to his testimony, for instance by inquiring into his familiarity with the exact medical facilities available at Wayne Memorial Hospital. Counsel also asked about Dr. Elliott's experience in similar communities and found he had none. Perhaps most importantly, counsel specifically requested that Dr. Elliott explain how he arrived at his conclusion on the content of Goldsboro's standard of care, asking, "Why is it that you think that the Zavanelli maneuver is something that a physician like Dr. Roethling should have considered doing as opposed to perhaps something that you would expect one of your colleagues in Phoenix to do?" Dr. Elliott responded:

Well, I expect Dr. Roethling reads the same literature that I would or my colleagues in Phoenix would. The textbooks are the same. They are not written for, you know, Goldsboro, North Carolina versus Cleveland, Ohio or Phoenix, Arizona. The information is really very general information. The articles that are published are very general information. And the expected behaviors are very similar. So I would expect a physician in Phoenix to have the same knowledge as Dr. Roethling irrespective of their location.

Like the tendered expert inHenry v. Southeastern OB-GYN Associates, Dr. Elliott essentially testified to a belief in a national standard of care for obstetricians, yet failed to demonstrate how his minimal knowledge of Goldsboro led to his conclusion that such a standard applies to Goldsboro or any similar community.

Furthermore, it is not even clear that Dr. Elliott used reliable methods in concluding the Zavanelli maneuver is part of the standardPage 162of care applicable to Phoenix. Regarding his own experience in dealing with shoulder dystocia, Dr. Elliott testified that he had never himself performed or witnessed the Zavanelli maneuver and was unaware of any member of his own medical group, consisting of fifteen physicians who deliver babies, ever using the maneuver while practicing in Phoenix. Although Good Samaritan services a much larger population and has considerably more extensive facilities than Wayne Memorial Hospital, Dr. Elliott could not recall any specific case during his twenty-four years at Good Samaritan in which any obstetrician attempted the maneuver. The record also reflects that Dr. Elliott's opinion was based in part on a worldwide study that found only about one hundred reported cases in which the Zavanelli maneuver was used between 1985, when the maneuver was first mentioned in medical literature, and 1997, four years before Reagan's birth. If the reported usage of the Zavanelli maneuver is, on average, fewer than ten times per year throughout the world, it is unclear how Dr. Elliott could reliably conclude the maneuver is part of the standard of care in Phoenix, let alone Goldsboro.

The majority de-emphasizes the insufficiency of Dr. Elliott's deposition testimony by pointing to his affidavit. In so doing, I believe the majority places too much importance on the affidavit. Unlike a deposition, an affidavit gives the opposing party no opportunity to cross-examine the affiant. Thus, crediting the affidavit over the deposition fails to give due respect to the adversarial means by which our justice system seeks to ascertain truth.See In re Miller,357 N.C. 316,334,584 S.E.2d 772,785-86(2003) (citations omitted). In my view, in deciding questions of reliability and relevance, courts should endeavor to determine which facts the expert actually used when forming the proffered opinion, rather than focusing on facts the expert subsequently learned.Cf. Henry,145 N.C. App. at 217-20,550 S.E.2d at 251-52(Hudson, J., dissenting) (noting the court in that case refused to allow an expert to testify at trial in a manner that would have contradicted the expert's deposition testimony). To do otherwise is to admit testimony that lacks the foundation our General Assembly envisioned in enacting N.C.G.S. §90-21.12.

Even if it were proper to ascribe greater worth to the affidavit than the deposition, Dr. Elliott's affidavit does not sufficiently demonstrate that he is familiar with the applicable standard of care. The relevant portions of that affidavit, quoted in full by Justice Hudson, baldlyassertDr. Elliott's familiarity with "the size of the population, the level of care available at the hospital, the facilities and the numberPage 163of health care providers for obstetrics," and with the standard of care applicable to this case. The affidavit contains no specific information about the Goldsboro community or its medical facilities that would support these assertions. Our Rules of Evidence seek to prevent, as unhelpful to the trier of fact, testimony that simply speaks in the language of the applicable legal standard and thus "merely tell[s] the jury what result to reach." N.C.G.S. §8C-1, Rule 704 official cmt. (2007). Similarly, Dr. Elliott should not be deemed competent to testify based solely on his ability to essentially parrot the standard of care language of section90-21.12.

Neither Dr. Elliott's deposition nor his affidavit succeeded in demonstrating any nexus between, on the one hand, his experience and his minimal knowledge of Goldsboro and, on the other, the conclusion that a national standard of care including the Zavanelli maneuver was applicable in Goldsboro or any similar community. In short, any proper basis he may have had to offer an opinion that the Zavanelli maneuver was part of the standard of care applicable to Goldsboro was not clear to the court. As observed by the Court of Appeals, "neither Dr. Elliott's affidavit nor the record before this Court includes sufficientfacts, as opposed to conclusions, to support Dr. Elliott's statements that he is familiar with the standard of care applicable in communities similar to Goldsboro, North Carolina."Crocker v. Roethling,184 N.C. App. 377,646 S.E.2d 442,2007 WL 1928681, at *3 (2007) (unpublished). Because Dr. Elliott failed to sufficiently establish his familiarity with "the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities" as defendant Roethling at the time of Reagan's birth,seeN.C.G.S. §90-21.12, the trial court's ruling that he was incompetent to testify to those standards was not an abuse of discretion "`so arbitrary that it could not have been the result of a reasoned decision,'"N.C. Dep't of Transp. v.Haywood Cty.,360 N.C. at 351,626 S.E.2d at 646(quotingWhite,312 N.C. at 777,324 S.E.2d at 833).

After reviewing the trial court's exclusion of Dr. Elliott's testimony for abuse of discretion, this Court must inquire separately into the trial court's grant of summary judgment in favor of defendants. Bearing in mind that Dr. Elliott's testimony was properly deemed inadmissible and thus cannot be considered for summary judgment purposes, any competent facts asserted by the nonmoving party must be "taken as true, and their inferences must be viewed in the light most favorable to that party."E.g., Dobson v. Harris,352 N.C. 77,83,530 S.E.2d 829,835(2000) (citations omitted).Page 164

Dr. Elliott's proffered testimony represented plaintiffs' only evidence of the applicable standard of care. Because Dr. Elliott was incompetent to testify on that matter, plaintiffs were unable to satisfy N.C.G.S. §90-21.12by offering competent proof that defendants failed to comply with the standard of care. Plaintiffs contend that even if Dr. Elliott was incompetent to testify, defendant Roethling himself admitted in his deposition that the Zavanelli maneuver was part of the standard of care applicable to this case. My review of the deposition testimony reveals that while defendant Roethling acknowledged the existence of the Zavanelli maneuver, he never stated it was part of the applicable standard of care. When the plaintiff in a medical malpractice action lacks any competent means of proving the defendant breached the applicable standard of care, the governing statute dictates that "the defendant shall not be liable." N.C.G.S. §90-21.12. Thus, even when viewed in the light most favorable to plaintiffs, the case presented "no genuine issue as to any material fact" and defendants were "entitled to a judgment as a matter of law."Id.§1A-1, Rule 56(c) (2007). The trial court properly granted summary judgment in defendants' favor.

I believe the result reached by the majority of the Court fails to give proper deference to the trial court's reasonable decision not to conduct a voir dire examination of the tendered expert witness. While I do not contend that the trial court would have been in error had it decided to hold a voir dire hearing, the facts of this case are not such as to mandate voir dire as a matter of law. The trial court committed no abuse of discretion, and its ruling should remain intact. I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.

Chief Justice PARKER and Justice BRADY join in this dissenting opinion.Page 165