North Carolina Appellate Court Reverses Dismissal of Wrongful Death Action for Alleged Procedural Rule Violation

If you are injured as the result of someone else’s negligent conduct, you may be entitled to compensation. Recovering the compensation that you deserve often involves filing a civil claim against the person or companies who are responsible for your injuries. The North Carolina civil justice system has numerous laws that a party must follow in order to preserve his or her rights and to pursue his or her claim successfully. As seasoned Charlotte personal injury lawyers, we proudly assist injured persons throughout the region with bringing a claim for damages against someone who hurt them. Let us help you ensure that you are asserting your legal rights to the fullest extent and protecting your right to recovery.

Recently, the North Carolina Court of Appeal was asked to consider whether a trial court properly granted summary judgment in a wrongful death claim where the defendants alleged that the plaintiff failed to comply with a key rule of civil procedural. Just as there are substantive rules that set forth when a party can or cannot recover compensation, the legal system also has many procedural rules that cover things like time limits for filing a claim, the specific documents you must provide the court, and the information that must be contained in each document.

In this case, the defendants alleged that the plaintiff failed to comply with Rule 9(j), which requires a plaintiff alleging a claim for medical malpractice to contain in his or her complaint a statement that the records and evidence have been reviewed by a person who will reasonably be expected to qualify as a medical expert and that this expert believes that the defendants acted negligently. In this case, the plaintiff filed a complaint containing the Rule 9(j) statement as well as a motion identifying the person designated as the proposed expert witness. The motion included the C.V. for the proposed expert witness, too.

The defendants responded by filing affidavits from the defendants in the case that stated that the proposed expert witness did not have the same specialty or background as the defendants and therefore was not a good choice for the plaintiff’s designated expert. The trial court granted the defendant’s motion to dismiss and stated that it was relying in part on the affidavits. It also noted that while the complaint complied with the rule on its face, but agreed with the defendants that the proposed expert witness was not a proper choice.

The plaintiff appealed and the appellate court reversed the lower court’s dismissal of the case. It concluded that Rule 9(j) is to be applied as a gatekeeping rule and is not to be used as an opportunity to evaluate whether or not a proposed expert witness will be designated as such later on in the case. A proper hearing about the fitness of the proposed expert witness typically takes place after the case has been filed and involves a thorough evaluation of the proposed expert witness’s background and suitability. Because the lower court attempted to evaluate the merits of the proposed expert witness background at this stage, it misapplied Rule 9(j).

If you or someone you love was injured in a personal injury accident, you may be entitled to compensation. At Maurer Law, our Charlotte personal injury lawyers understand how overwhelming the justice system can be, especially if you are also coping with serious injuries and major disruptions in your life. We provide a free consultation to assist you with learning more about your potential claim and the rules that apply. Call our office today at 1-888-258-1087 or contact us online to get started.

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