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Daniels-Leslie v. Laster11/2/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiff appeals from the superior court's dismissal of her claim with prejudice pursuant to N.C.G.S. ยง 1A-1, Rule 37(b)(2) and Rule 9(j) (2003). The trial court entered a separate order for the dismissal under each rule, each of which stated that the dismissal under the particular rule was "a separate and independent basis for the court's dismissal of plaintiff's complaint." We affirm the order of dismissal entered pursuant to Rule 37(b)(2). This disposition makes it unnecessary to address plaintiff's arguments concerning Rule 9(j). On 19 February 2002, plaintiff filed a complaint alleging medical malpractice against the defendant. Thereafter, plaintiff was thrice sanctioned for failure to comply with the discovery orders of the superior court. First, on 29 January 2003, Judge Marcus L. Johnson imposed sanctions against plaintiff for failing to produce medical records. Second, on 1 April 2003, Judge Jesse B. Caldwell, III, entered an order sanctioning plaintiff for failing to comply with, and affirmatively thwarting, the order entered by Judge Johnson on 29 January. Third, on 18 June 2003, Judge Robert C. Ervin sanctioned plaintiff, by dismissing her claim pursuant to Rule 37(b)(2)c, for failure to comply with a discovery order entered on 7 January 2003.
In the order dismissing plaintiff's claim pursuant to Rule 37, the trial court made the following pertinent findings of fact:
1. On or about January 7, 2003, Superior Court Judge Marcus L. Johnson, entered a Discovery Order pursuant to Rule 26(f) of the North Carolina Rules of Civil Procedure.
2. The Discovery Order Provided that by "April 30, 2003, the plaintiff(s) shall identify any and all expert witnesses whom they may call to testify at trial." The Discovery Order further provided that " laintiffs shall serve the opposing parties with a statement of:
(a) The name and address of the expert.
(b) A summary of his or her qualifications.
(c) The subject matter on which the expert is expected to testify.
(d) A summary of the facts and opinions to which he or she is approved to testify; and
(e) A summary of the grounds for each opinion.
3. The plaintiff failed to designate an expert at any time prior to May 1, 2003.
4. On or about May 20, 2003, the plaintiff file and served Plaintiff's Declaration and Identification of Medical Expert and Plaintiff's Response to Interrogatories Pursuant to Rule 9(j) [of the North Carolina Rules of Civil Procedure].
5. In the documents filed and served by the plaintiff on May 20, 2003, the plaintiff identified Chason Spenser Hayes, M.D., as her expert witness. The plaintiff also provided a curriculum vitae for Dr. Hayes. As such, the plaintiff complied with Subsections (a) and (b) quoted above [in finding of fact number two].
6. The documents filed and served by the plaintiff on or about May 20, 2003, did not describe the subject matter on which Dr. Hayes was expected to testify, did not include a summary of the facts and opinions to which Dr. Hayes was expected to testify or a summary of the grounds for each opinion of Dr. Hayes. As such, the documents filed and served by the plaintiff on or about May 20, 2003 failed to comply with paragraphs (c), (d), and (e) cited above [in finding of fact number two].
7. [Pursuant to a 1 April 2003 order sanctioning plaintiff], plaintiff expre
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