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Huffman v. Inglefield12/28/2001
Appeal by plaintiff from order entered 27 June 2000 by Judge Richard D. Boner in Burke County Superior Court. Heard in the Court of Appeals 21 August 2001.
Plaintiff appeals from an order denying his motion to strike defendant's affidavit and granting defendant's motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. We affirm.
In February of 1991, defendant undertook the care and treatment of plaintiff. Plaintiff was under defendant's care until at least June of 1995. During that time, defendant prescribed various medications to plaintiff to assist plaintiff with allergies and related conditions.
On 17 June 1999, plaintiff filed a complaint in the Superior Court of Burke County alleging that defendant committed medical malpractice by failing to inform plaintiff of potential side effects of medication prescribed to him by defendant. Plaintiff also alleged:
That prior to the filing of this complaint, the Plaintiff has retained services of a qualified medical expert who upon information and belief will be qualified to testify under the rules of Civil Procedures. The expert possesses the same or similar skills or training as that of the Defendant who has reviewed this information and has determined an opinion that the course of care provided by the Defendant does in fact deviate from the standard of care thus constitutes malpractice as required by the North Carolina General Statutes.
Defendant timely filed an answer denying all allegations in the complaint.
On 11 October 1999, defendant filed a motion to compel discovery and for sanctions on the grounds that plaintiff had either failed to answer discovery requests or obtain an extension of time in which to answer the requests. After a hearing on defendant's motion, Judge Jesse B. Caldwell ("Judge Caldwell") entered an order on 18 November 1999 ordering plaintiff to answer outstanding discovery within thirty days. In addition, Judge Caldwell entered a separate scheduling order with consent of the parties and pursuant to Rule 26 of the Rules of Civil Procedure. See N.C. Gen. Stat. ยง 1A-1, Rule 26(f1) (1999) (requiring the court to establish an appropriate schedule for designating expert witnesses in a medical malpractice action). This order stated, in part, that:
1. Plaintiffs shall designate all expert witnesses whom they expect to call at trial and shall answer all pending North Carolina Rules of Civil Procedure interrogatories and requests for production on or before December 15, 1999.
3. Defendants shall designate all expert witnesses whom they expect to call at trial and shall answer all pending North Carolina Rules of Civil Procedure 26(b)(4) interrogatories on or before March 15, 2000.
8. Expert witnesses not designated and made available for deposition as required by this Order shall not be permitted to testify at trial.
As a result of plaintiff's failure to designate any experts, defendant filed a motion to dismiss or, in the alternative, for sanctions based on plaintiff's failure to comply with both the 18 November 2000 order and the scheduling order. This motion came on for hearing before Judge Jerry Cash Martin ("Judge Martin"). Although by then plaintiff had answered outstanding discovery, which included the designation of a medical expert, Judge Martin entered an order on 28 March 2000 striking the expert and ordering that plaintiff be precluded from offering the testimony of this expert.
Defendant then filed a motion for summary judgment. Attached to this motion was defendant's own affidavit stating that he was familiar with the standards of practice among physicia
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