                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


TRACY LANTZ JEFFRESS,                  
                Plaintiff-Appellant,
                 v.
KESHAVPAL G. REDDY, M.D., in his
individual capacity and as a
principal in Triad Psychiatric and
Counseling Center, P.A.; TRIAD
PSYCHIATRIC AND COUNSELING
CENTER, a North Carolina
Corporation; DANIEL C.
LONGENECKER, R.N.,                              No. 98-2613
               Defendants-Appellees,
                 v.
MASOUD S. HEJAZI, in his individual
capacity and as a principal in Triad
Psychiatric and Counseling Center,
P.A.; RUPINDAR KAUR, M.D., in her
individual capacity and as an
employee of Triad Psychiatric and
Counseling Center, P.A.,
                         Defendants.
                                       
           Appeal from the United States District Court
         for the Western District of Virginia, at Danville.
                 Norman K. Moon, District Judge.
                         (CA-97-20-D)

                       Argued: March 1, 2000

                      Decided: October 7, 2003

Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.
2                           JEFFRESS v. REDDY
Affirmed by unpublished per curiam opinion. Judge Traxler wrote a
concurring and dissenting opinion.


                               COUNSEL

ARGUED: Barbara Rubin Hudson, Danville, Virginia, for Appellant.
Bevin Ray Alexander, Jr., FREEMAN, DUNN, SWEENEY &
ALEXANDER, P.C., Lynchburg, Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Plaintiff Tracy Lantz Jeffress brought an eleven count complaint
against defendants, Dr. Reddy, M.D., Triad Psychiatric and Counsel-
ing Center, and Daniel Longenecker, R.N., in the United States Dis-
trict Court for the Western District of Virginia. She appeals the
district court’s grant of summary judgment to the defendants on her
medical malpractice, fraud and intentional infliction of emotional dis-
tress claims. The district court denied the defendants’ motion for sum-
mary judgment on the remaining claims and the parties tried the case
to a jury which returned its verdict wholly for the defendants. Plaintiff
also appeals the district court’s ruling excluding one of her expert wit-
nesses’ testimony. Because no genuine issue of material fact existed
and the defendants were entitled to summary judgment as a matter of
law, we affirm the district court’s grant of summary judgment to the
defendants. We also decide that the district court did not abuse its dis-
cretion by excluding the plaintiff’s expert witnesses’ testimony; that
she had a fair and impartial trial; and that the district court had subject
matter jurisdiction.
                           JEFFRESS v. REDDY                            3
                                    I.

   On April 9, 1997, plaintiff1 filed this diversity action in the United
States District Court for the Western District of Virginia. At all rele-
vant times, plaintiff resided in Pittsylvania County, Virginia. Initially,
plaintiff filed suit for compensatory and punitive damages for psychi-
atric/medical malpractice, fraud, intentional infliction of emotional
distress, unauthorized disclosure and release of medical diagnosis and
confidential information, defamation, and breach of contract against
three physicians and Triad Psychiatric and Counseling Center, P.A.
(Triad). On May 27, 1998, the district court entered an order granting
summary judgment to two of the doctors, Dr. Hejazi and Dr. Kaur,
denying summary judgment to Dr. Reddy and to Triad, and adding
Daniel C. Longenecker, R.N. as a party defendant. On September 8,
1998, defendants Dr. Reddy, Triad, and Longenecker filed another
motion for summary judgment.

   Plaintiff’s first contact with the defendants was in connection with
her husband’s treatment for bipolar disorder and her own previously
diagnosed Post Traumatic Stress Disorder.2 Triad is a professional
association registered in the State of North Carolina that specializes
in psychiatry and individual counseling. Dr. Reddy and Longenecker
are affiliated with Triad and with Charter Hospitals. In 1994, plaintiff
responded to a Charter Hospital advertisement to receive therapy for
herself to learn to cope with her childhood history and with her hus-
band’s dysfunction. While being treated at Charter, the plaintiff also
sought psychiatric treatment for her husband from Charter Hospital.
In June 1995, Dr. Cooper at Charter Hospital referred John D. Jeff-
ress, plaintiff’s husband, to an out-of-state doctor for electro-
convulsive shock therapy. Upon Mr. Jeffress’s return from electro-
convulsive shock therapy, Dr. Reddy conducted Mr. Jeffress’s psychi-
atric treatment on a referral from Dr. Cooper.

   In late August 1995, both Mr. Jeffress and the plaintiff were
arrested for and indicted on fourteen counts of felony embezzlement
  1
    At the time of oral argument, counsel for plaintiff was unclear as to
the finality of the Jeffresses’s divorce.
  2
    In 1991, plaintiff was diagnosed as having Post Traumatic Stress Dis-
order as a result of childhood sexual abuse.
4                           JEFFRESS v. REDDY
in Pittsylvania County, Virginia.3 In September 1995, Dr. Reddy
started seeing Mr. Jeffress in Dr. Reddy’s private practice at Triad in
Greensboro, North Carolina for insurance reasons. Plaintiff joined her
husband’s therapy as part of marital counseling or conjoint therapy,
which led to her own individual counseling as well. Longenecker, a
psychiatric nurse, conducted sessions between Mr. Jeffress and the
plaintiff, and the plaintiff’s individual sessions.

   Plaintiff continued under Longenecker’s care until mid-March 1996.4
During her course of treatment, the plaintiff was hospitalized twice,
once in February 1996, after her and her husband’s conviction in state
court for felony embezzlement, and again in March 1996. After her
release from hospitalization in March, the plaintiff learned that her
husband had filed a proceeding for custody of their two children. She
alleged in her complaint in this case that Dr. Reddy and Longenecker
supported Mr. Jeffress in his effort for custody.

    According to the plaintiff’s complaint, the defendants produced
two letters without her knowledge or permission and disseminated the
same to various people and public entities. The first letter, dated
December 12, 1995, stated that plaintiff was medically incompetent
to stand trial and/or assist her lawyers in the preparation of her [crimi-
nal embezzlement] case. Dr. Reddy signed this letter and addressed
it to the plaintiff’s criminal trial attorney. Apparently, plaintiff’s crim-
inal trial attorney, who also acted as Mr. Jeffress’s attorney, had con-
tacted Triad and explained that if the plaintiff was truly ill and could
not stand trial, she needed a letter to confirm her condition. The plain-
tiff alleged that this letter was sent to "a Virginia attorney" without
her knowledge or permission.

  Dr. Reddy authored a second letter, dated February 29, 1996 and
addressed "To Whom It May Concern," stating that the plaintiff was
under treatment for major depression due to her mother’s death and
  3
    These charges stemmed from their work at Roland Concrete Co. in
Danville, Virginia which Mr. Jeffress’s uncle owned. Mr. Jeffress acted
as the president and chief executive officer of Roland and the plaintiff,
Mrs. Jeffress, was the bookkeeper until the spring of 1994.
  4
    Plaintiff also alleged in her complaint that Longenecker allowed Mr.
Jeffress to "intrude" into many of her individual sessions.
                           JEFFRESS v. REDDY                           5
for Post Traumatic Stress Disorder. Dr. Reddy also indicated in the
letter that the plaintiff could not accurately interpret reality which
caused problems with the care of her children and her finances. The
plaintiff alleged that Mr. Jeffress obtained this letter and sent it to
many credit companies, the Juvenile and Domestic Relations District
Court in Pittsylvania County, the Pittsylvania County Department of
Social Services, the Social Security Administration in Danville, and
several other entities. She also alleged that as a result of the Decem-
ber 12, 1996 and February 29, 1996 letters, she suffered the follow-
ing: humiliation, embarrassment, stigma, depression, loss of
enjoyment, fear of losing her children, mental suffering, and physical
suffering in the form of headaches, nausea, and inability to eat. Plain-
tiff also alleged that because the defendants abused and breached her
trust, she can no longer trust any mental health providers to help her
to recover from these incidents.

   On March 13, 1996, both Longenecker and Dr. Reddy signed a let-
ter stating that Mr. Jeffress had progressed in his treatment and was
competent to care for himself and his children. Plaintiff alleged that
the dissemination of the March 13, 1996 letter caused her to sustain
attorney’s fees, physical assault by her husband, and various mental
and physical manifestations of her suffering.

   Plaintiff’s complaint alleged eleven counts of liability, seven of
which were styled medical/psychiatric malpractice, each with individ-
ual titles: conflict of interest, breach of duty to provide adequate med-
ical care, erroneous and false diagnosis of her without examination,
breach of the duty of confidentiality, dissemination of diagnosis with-
out consent, dissemination of false diagnosis of mental incompetence,
and breach of the duty of loyalty. The other four counts included def-
amation, fraud, intentional infliction of emotional harm, and breach
of contract. On September 23, 1998, the district court granted the
defendants’ motion for summary judgment on the fraud claim and the
intentional infliction of emotional distress claim because the court
found as a matter of law that the plaintiff failed to allege sufficient
facts to prove causation. On the morning of September 28, 1998, the
district court further granted summary judgment to the defendants on
the following medical/psychiatric malpractice claims: conflict of
interest, breach of duty to provide adequate medical care, erroneous
and false diagnosis, and breach of duty of loyalty. The court tried the
6                         JEFFRESS v. REDDY
case on the remaining claims. After a four day trial, the jury returned
a verdict in favor of the defendants on the breach of duty of confiden-
tiality, dissemination of diagnosis without consent, dissemination of
false diagnosis, and defamation claims. The plaintiff did not litigate
or present to the jury the breach of contract claim. The plaintiff now
appeals the district court’s grant of summary judgment, the exclusion
of her expert’s testimony, and she asserts that she did not receive a
fair and impartial trial.

                                  II.

   We review the district court’s grant of summary judgment de novo.
See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Summary judg-
ment is proper if, viewing the facts in the light most favorable to the
non-moving party, no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-24 (1987); Fed. R. Civ. Pro. 56(c). Sum-
mary judgment is appropriate against a party who fails to make a
showing sufficient to establish an element essential to her case, espe-
cially when that party also bears the burden of proof at trial. See
Celotex, 477 U.S. at 322.

   The plaintiff claimed she sustained multiple mental and physical
injuries as a result of the defendants’ treatment of her. The district
court classified the majority of these alleged injuries as subjective—
those it labeled as mental, emotional and psychiatric. Her alleged
objective injuries included nausea, an inability to eat normally, severe
headaches, anxiety, insomnia, and exacerbation of her ulcer. Even
considering the deposition testimony of the plaintiff’s expert wit-
nesses, the district court determined that her medical malpractice
claims could not survive summary judgment due to insufficient proof
as to the causation and damage elements. We agree.

                                  A.

   The substantive elements of a medical malpractice suit are ques-
tions of state law in a diversity action. See Fitzgerald v. Manning, 679
F.2d 341, 346 (4th Cir. 1982) (examining the substantive elements of
medical malpractice and the required proof). After applying Virgin-
ia’s choice of law principles, the district court applied North Carolina
                           JEFFRESS v. REDDY                           7
law to this diversity action, because the plaintiff’s treatment and the
defendants’ conduct occurred in North Carolina. Under North Caro-
lina law, to prove medical malpractice, a plaintiff must show: 1) the
applicable standard of care, 2) a breach of the standard of care by the
defendant, 3) the injuries suffered by the plaintiff were proximately
caused by such breach, and 4) the damages resulting to the plaintiff.
See Weatherford v. Glassman, 500 S.E.2d 466, 468 (N.C. Ct. App.
1998) (citations omitted).

   Assuming that the plaintiff presented sufficient evidence to estab-
lish the standard of care for psychiatrists in North Carolina, and that
the defendants breached this standard of care, she did not present suf-
ficient evidence to establish the last two elements of her medical mal-
practice claims. In "‘malpractice cases, proof of causal connection
must be something more than consistent with the plaintiff’s theory of
how the claimed injury was caused.’" Fitzgerald, 679 F.2d at 349
(quoting Walstad v. University of Minnesota, 442 F.2d 634, 639 (8th
Cir. 1971)). Conjecture, speculation, and mere possibilities will not
sustain the plaintiff’s burden of proof on the proximate cause element.
Fitzgerald, 679 F.2d at 349. Not only must the plaintiff present such
evidence, but generally "expert testimony is necessary to establish a
prima facie case for malpractice against a physician . . . [and] is typi-
cally required to establish . . . the causal relationship between the
departure from the standard [of care] and the harm incurred by the
plaintiff." Bailey v. Jones, 435 S.E.2d 787, 792 (N.C. Ct. App. 1993)
(internal quotations omitted in original) (quoting 3 Charles Kramer,
Medical Malpractice ¶ 29.01[1] (1990)). Thus, expert testimony is
needed to prove that the defendant’s breach of the standard of care
was "more likely" or "more probably" the cause of the plaintiff’s
injury—a jury may not speculate as to the cause of the injury. Fitzger-
ald, 679 F.2d at 349-50.

   Expert testimony is not required in two situations: when a physi-
cian’s conduct is so grossly negligent or when the treatment is the
type within a layman’s common knowledge and a layman could deter-
mine the standard of care, the departure from that standard, or proxi-
mate causation. See Bailey, 435 S.E.2d at 787 (citations omitted).
Most, even if not all, of the plaintiff’s alleged injuries are not within
a layman’s common knowledge, rather they are determinable only in
the light of scientific knowledge. See Fitzgerald, 679 F.2d at 350
8                           JEFFRESS v. REDDY
(citation omitted). Therefore, the plaintiff must adduce expert testi-
mony to support a conclusion of proximate causation. We now turn
to the submitted expert testimony.

                                    B.

   Plaintiff wanted to call Dr. Edward Wolpert5 and Dr. Nicolas Stra-
tas as her expert witnesses. First we note that neither Dr. Wolpert nor
Dr. Stratas examined or diagnosed the plaintiff. Both expert witnesses
relied upon her past medical records and her own declaration of her
conditions. Both Dr. Wolpert and Dr. Stratas expressed that if the
defendants had properly managed Mr. Jeffress’s bipolar disorder, the
plaintiff would not have suffered as she did. However, neither expert
took into account the additional "stressors" in the plaintiff’s life at the
time of her treatment—her embezzlement trial, her other financial dif-
ficulties, and her own pre-existing mental problems. Dr. Wolpert
stated that the plaintiff’s prosecution, and conviction, and her pre-
existing or existing Post Traumatic Stress Disorder, "[were] prob-
lems" and that Mr. Jeffress’s mania "led to the difficulties" the Jeff-
resses experienced. The district court found, and we agree, that this
testimony was insufficient to establish the causal link between the
defendants’ treatment of the plaintiff and any alleged injuries. Simi-
larly, Dr. Stratas had only "vague general notions" of the other prob-
lems. To characterize these opinions on causation as within a
reasonable degree of medical certainty when neither expert consid-
ered all of the surrounding circumstances would be improper. A jury
would be forced to speculate that the defendants’ treatment, and not
the multitude of other possible causes, more likely than not, caused
the plaintiff’s alleged injuries. We are of opinion that both experts’
opinions fell below the required standard of proof and were not
legally sufficient evidence.

  Plaintiff argues that if multiple causes of an injury exist, she need
only show that defendants’ conduct was a substantial factor in pro-
ducing the harm. See Wyatt v. Gilmore, 290 S.E.2d 790, 791 (N.C.
Ct. App. 1982)6; see also Shumaker v. United States, 714 F. Supp.
  5
    Dr. Wolpert’s deposition was properly excluded, the district court
considered a letter from him.
  6
    The Wyatt court actually listed the following as considerations to the
proximate causation question: forseeability, whether the cause is likely
                             JEFFRESS v. REDDY                                9
154, 162 (M.D.N.C. 1988) (noting that the plaintiff’s burden is strict).
Plaintiff’s proffered expert testimony did no more than raise a "mere
possibility" that the defendants’ alleged negligence caused her injury.7
Shumaker, 714 F. Supp. at 162.

                                      C.

   At most, the plaintiff’s proffered expert testimony established the
standard of care in North Carolina and that the defendants’ records of
her treatment may not have been thorough. She failed to prove a
causal link that defendants’ treatment of her more likely than not
caused her alleged injuries. As to her alleged injuries, the record is
devoid of any direct evidence. No physician examined the plaintiff
after the alleged medical malpractice. The only evidence of the
alleged injuries is the plaintiff’s own declaration and two layman’s
accounts of her condition.

   Plaintiff listed her injuries as "irreparable and permanent" emo-
tional, psychiatric and mental pain, anguish, damage, distress, aggra-
vation of pre-existing emotional injuries, temporary loss of her
children, loss of faith, and loss of trust and confidence in mental
health care providers. These injuries, along with the alleged physical
injuries of anxiety attacks and exacerbation of her pre-existing ulcer,
are subjective. See Gillikin v. Burbage, 139 S.E.2d 753, 760-61 (N.C.
1965) (distinguishing subjective and objective injuries). Plaintiff’s
mere allegations as to her symptoms, pain, suffering and treatment are
conclusory and are insufficient to prove damages to a reasonable cer-
tainty. See Beaver v. Hancock, 324 S.E.2d 294, 299 (N.C. Ct. App.
1985). Likewise, the plaintiff’s friend’s and pastor’s testimony do not
suffice as expert testimony to prove these subjective injuries. We

to produce the result, whether the cause and effect are too attenuated,
whether a direct connection exists between cause and effect without
intervening causes, and whether a natural and continuous sequence
between the cause and effect exists. See Wyatt, 290 S.E.2d at 791.
   7
     The district court listed the other problems in the plaintiff’s life: mari-
tal difficulties, her husband’s bipolar disorder, credit card debt, her
embezzlement conviction, her husband’s unemployment, and her pre-
existing depression.
10                          JEFFRESS v. REDDY
therefore conclude that the district court was correct granting sum-
mary judgment to the defendants on the plaintiff’s medical malprac-
tice claims.

   We also agree with the district court that because the plaintiff
failed to allege sufficient facts to prove that defendants’ treatment
proximately caused any of her alleged injuries, summary judgment
was appropriate on the fraud and intentional infliction of emotional
distress counts.8

                                    III.

   The plaintiff had named as an expert witness Dr. Edward Wolpert,
a Chicago physician. The defendants took Dr. Wolpert’s discovery
deposition, which the district court excluded at trial when offered by
the plaintiff. It is such exclusion which is the error claimed on appeal.
In this case, in which the essential claim is that the district court mis-
construed its own order, we defer to the construction of the district
court, which is in the best position to interpret its previous orders. See
Vaughns v. Board of Education of Prince George’s County, 758 F.2d
983, 989 (4th Cir. 1985). In all events, we should not reverse an evi-
dentiary ruling of a district court unless it was manifestly erroneous.
See Spring Co. v. Edgar, 99 U.S. 645, 658 (1878).

     The facts presented in the district court follow.

   At the instance of the plaintiff’s attorney seeking advance payment
of an attorneys fee to her witness, the district court entered its order,
the complete text of the relevant part of which follows:

         It is further ordered, defendants having agreed to pay the
       usual hourly expert witness fee not to exceed $500.00 per
       hour for 2 hours, that plaintiff arrange for defendant to
       depose plaintiff’s expert at a mutually agreeable time and
       place.
  8
   Before the trial began, plaintiff’s counsel indicated that she did not
dispute the district court’s grant of summary judgement on the plaintiff’s
intentional infliction of emotional distress cause of action. Plaintiff argu-
ably waived this claim at that time.
                          JEFFRESS v. REDDY                          11
   The deposition was taken in Chicago and the defendant’s attorney
advised the court that Dr. Wolpert told him upon arrival to take the
deposition that he, Wolpert, had reviewed the order of the court and
was only going to give the defendant two hours. The deposition pro-
ceeded, and, at the end of two hours, Dr. Wolpert stopped the deposi-
tion and would not proceed. The statement he made was: "and now
it is time to stop."

   The plaintiff’s attorney acknowledges that she gave a copy of the
court order to Dr. Wolpert. While she denies that his refusal to con-
tinue his testimony at the deposition was at her instance, she did not
call Dr. Wolpert as a live witness at the trial, did not take Dr. Wol-
pert’s deposition for use at the trial as she might have, and instead
offered into evidence the discovery deposition taken by the defen-
dant’s attorney in Chicago. Even when the motion to exclude the
deposition was argued she persisted.

    THE COURT:         Right now, it is right here, and it just
                       seems so grossly unfair that a witness can
                       call off his deposition, say "I am not
                       going to testify any more," and at the
                       deposition he can decide you like what’s
                       there and so you get to use the deposition.
                       I don’t know that’s ever been allowed.

    MS. HUDSON: Your Honor, the Court ordered two
                hours.

So the district court construed its own order as not limiting the depo-
sition to two hours.

   We agree with the decision of the district court. We are of opinion
that it was quite within its discretion in excluding the deposition and
its action was not erroneous at all, much less manifestly erroneous.

                                 IV.

  Plaintiff contends, in approximately 35 additional items, that many
events which occurred during the trial denied her a fair and impartial
12                          JEFFRESS v. REDDY
      9
trial. Although the plaintiff did not make a motion for a mistrial at
any time, we note that she did raise several objections regarding the
way the court conducted the trial. After examining all of the plain-
tiff’s allegations and the record in this appeal, we find no reversible
error and conclude that the district court afforded the plaintiff a fair
and impartial trial.

                                     V.

   Additionally, plaintiff argues that the district court was without
subject matter jurisdiction to hear this case. The plaintiff asserts that
the district court lost its subject matter jurisdiction when it tried the
case as a "tort action" rather than as a "medical malpractice action."
Of course, litigants may raise a lack of subject matter jurisdiction
objection at any time during a case. See In re Bulldog Trucking, Inc.,
147 F.3d 347, 352 (4th Cir. 1998).

   Plaintiff brought this action pursuant to 28 U.S.C. § 1332 as a
diversity action in the United States District Court for the Western
District of Virginia. 28 U.S.C. § 1332 requires complete diversity of
citizenship of the parties and an amount in controversy exceeding
$75,000. See Athena Automotive Inc. v. DiGregorio, 166 F.3d 288,
290 (4th Cir. 1999). The jurisdictional inquiry focuses on the time the
action commenced. See Athena, 166 F.3d at 290 (citations omitted).
At the time she commenced this action, the statutory requirements for
diversity jurisdiction were met—the defendants were citizens of, and
licensed and registered in, North Carolina and the plaintiff was a citi-
zen of Virginia. Of the counts tried by the district court, the plaintiff
alleged well over $75,000 in damages for each. Plaintiff’s assertion
  9
   The plaintiff’s complaints about the way the district court conducted
her trial include, but are not limited to: interrupting during witness testi-
mony, excluding relevant evidence, interrupting during attempts to enter
evidence on damages, implying a threat to impose sanctions against
plaintiff’s counsel, erroneously representing the record, cross examining
witnesses, allowing defendants’ counsel to make silent objections, mov-
ing people in the courtroom, refusing to give certain jury instructions,
preventing impeachment of one of defendants’ witnesses, giving the jury
instructions before closing arguments, and failing to send the exhibits to
the jury before deliberation.
                            JEFFRESS v. REDDY                             13
that the district court somehow lost subject matter jurisdiction over
this case is without merit. We are unaware of any authority to the con-
trary.

                                    VI.

   For the foregoing reasons, we affirm the district court’s grant of
summary judgment to the defendants on the plaintiff’s medical mal-
practice, fraud, and intentional infliction of emotional distress counts.
We also find that the district court did not abuse its discretion by
excluding Dr. Wolpert’s testimony and that the district court afforded
the plaintiff a fair and impartial trial.

  Accordingly, the judgment of the district court is

                                                             AFFIRMED.10

TRAXLER, Circuit Judge, concurring and dissenting:

   I concur in the result reached in part IV, and I also concur in the
result reached in part V as to Jeffress’s subject matter jurisdiction
claims. However, I believe the district court improperly granted sum-
  10
   The motion of Tracy Lantz Jeffress to dismiss intervenor Wayne
Milam as a party to this appeal shall be, and it hereby is, granted.
  It is further ordered that the clerk of our court will return to Mrs. Jeff-
ress the papers, filed by Mrs. Jeffress with our court August 14, 2003 to
accompany the motion to dismiss Milam as a party to this appeal, which
papers are apparently a copy of part of the record in the case of State of
North Carolina v. Wayne Milam in the Superior Court Division of Cas-
well County, North Carolina.
   The defendants in this case, who are the appellees on appeal, have
objected to certain comments and conclusions stated in the said motion
filed August 14, 2003 and, while we need express no opinion on the mer-
its of said objection, we have not considered the said comments and con-
clusions.
   It is further ordered that the motion of appellees for additional costs
as a sanction against Tracy Lantz Jeffress and her attorney shall be, and
it hereby is, denied.
14                         JEFFRESS v. REDDY
mary judgment against Jeffress’s claim of medical malpractice and
improperly excluded her expert witness’s deposition testimony.
Accordingly, I respectfully dissent from part II and part III of the
majority opinion.

                                   I.

   A motion for summary judgment should only be granted when
"there is no genuine issue as to any material fact." Fed. R. Civ. P.
56(c). A genuine issue of material fact exists if the evidence could
lead reasonable people to different conclusions. Phoenix Sav. & Loan,
Inc. v. Aetna Casualty & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967).
Furthermore, a court should not grant summary judgment "unless the
entire record shows a right to judgment with such clarity as to leave
no room for controversy and establishes affirmatively that the adverse
party cannot prevail under any circumstances." Id. at 249.

   Under North Carolina law, summary judgment for a defendant doc-
tor in a medical malpractice action may be appropriate where the
plaintiff "fail[s] to produce sufficient evidence of the applicable stan-
dard of care, of a breach of that standard of care, and that the damages
suffered . . . were proximately caused" by the defendant doctor. Evans
v. Appert, 372 S.E.2d 94, 96 (N.C. Ct. App. 1988). "Expert testimony
is . . . typically required to establish the degree of care and skill
required, any departure from th[e] standard [of care], and the causal
relationship between the departure from the standard and the harm
incurred by the plaintiff." Bailey v. Jones, 435 S.E.2d 787, 792 (N.C.
Ct. App. 1993) (quoting 3 Charles Kramer, Medical Malpractice
¶ 29.01[1] (1990)). In order to prove causation, "the plaintiff must
introduce evidence affording ‘a reasonable basis for the conclusion
that it is more likely than not that the conduct of the defendant was
a substantial factor in bringing about the result.’" Shumaker v. United
States, 714 F. Supp. 154, 162 (M.D.N.C. 1998) (quoting Waffen v.
United States Dept. of Health & Human Servs., 799 F.2d 911, 918
(4th Cir. 1986)). The district court concluded that the plaintiff did not
present sufficient evidence to establish causation and damages. I
respectfully disagree.

   Plaintiff submitted an affidavit and the deposition testimony of one
of her medical experts, Dr. Stratas, to establish causation and dam-
                            JEFFRESS v. REDDY                           15
ages. Dr. Stratas reviewed Jeffress’s medical records in connection
with this claim, including: defendants’ process notes; Charter Hospi-
tal notes for plaintiff’s treatment in psychiatric care in 1994 with Dr.
Cooper; hospitalization records of Jeffress in 1995-6; and plaintiff’s
declarations. The Federal Rules of Evidence permit an expert to base
his opinion on "[t]he facts or data . . . perceived by or made known
to the expert at or before the hearing." Fed. R. Evid. 703. Dr. Stratas
was not required to base his opinion on a firsthand examination of the
plaintiff. There are three possible sources of information from which
Dr. Stratas could derive his expert opinion: firsthand observation, pre-
sentation at trial, and presentation of data outside of court. See Fed.
R. Evid. 703 advisory committee’s note. The third source contem-
plates that an expert, especially a medical expert, is much like a phy-
sician who

      bases his diagnosis on information from numerous sources
      and of considerable variety, including statements by patients
      and relatives, reports and opinions by nurses, technicians
      and other doctors, hospital records, and X rays. . . . The phy-
      sician makes life-and-death decisions in reliance upon them.
      His validation, expertly performed and subject to cross-
      examination, ought to suffice for judicial purposes.

Id.

   Rather than offer conclusory statements, Dr. Stratas considered the
facts of Jeffress’s treatment and, based on his experience with similar
patients, opined that "because of what happened at Triad . . . it is
highly likely that . . . [Jeffress’s] conditions developed." J.A. 590.
While he was cognizant of the other stressors in Jeffress’s life, he
opined that "the treatment rendered to Mrs. Jeffress . . . violated [her]
and she . . . suffers and will continue to suffer the consequences." J.A.
471. As to damages, Dr. Stratas further stated that sleeplessness and
gastrointestinal problems, both injuries claimed by Jeffress, were typi-
cal "psychiatrically-related complaints." J.A. 590.

   This testimony, while not as exact as one would prefer, was suffi-
cient in my opinion to preclude summary judgment. I therefore dis-
sent from the majority’s conclusion that the district court properly
16                        JEFFRESS v. REDDY
granted summary judgment against Jeffress’s medical malpractice
claims.

                                  II.

  While I commend the district court on doing yeoman’s work man-
aging this "most exasperating case" and its numerous discovery dis-
putes, I believe that the district court erred when it excluded the
deposition testimony of one of the plaintiff’s experts.

   The district court had issued an order regarding the taking of Dr.
Wolpert’s testimony and allowed defense counsel to depose Jeffress’s
expert at the "usual hourly expert witness fee not to exceed $500.00
per hour for 2 hours." J.A. 227-28. Prior to and during this deposition,
Jeffress’s counsel warned defense counsel that Dr. Wolpert would
stop his testimony after two hours. And when the two hours were up
Dr. Wolpert concluded his deposition. Although defense counsel
objected to this termination, there is no evidence counsel sought to
guarantee pay to Dr. Wolpert commensurate with the continuation of
the deposition, nor is there any indication that defense counsel sought
intervention of the court. Instead, when trial time came, defense coun-
sel objected to any use of Dr. Wolpert’s testimony by Jeffress. The
district judge sustained the objection and prohibited Jeffress from uti-
lization of Dr. Wolpert’s testimony stating "it just seems grossly
unfair that a witness can call off his deposition, say[ing] ‘I am not
going to testify any more.’" J.A. 695-96.

   Respectfully, I believe the total exclusion of the testimony from
Jeffress’s expert was unwarranted. First, the judge in his order set
what reasonably would appear to be a time limit of two hours. There
is nothing in the record upon which to base any conclusion other than
the order meant what it said. Second, if there was a belief on the part
of defense counsel that the deposition should be extended and there
was a legitimate desire to do so, in my opinion it was incumbent upon
defense counsel, not Jeffress’s counsel, to secure from the court any
necessary clarification and authorization to proceed beyond the two
hours. Yet it was Jeffress who was punished.

   By refusing to allow Jeffress to present Dr. Wolpert’s testimony,
the district court effectively sanctioned Jeffress. Based on what I have
                          JEFFRESS v. REDDY                         17
said above, I can see nothing that Jeffress did wrong, much less any-
thing so wrong that would warrant the complete exclusion of her
expert’s testimony. To me the issue cannot be resolved by deferring
to the district judge’s after-the-fact interpretation of his order. The
order was, in my judgment, clear on its face and limited the length of
the deposition to two hours. Consequently, I believe the real question
is whether Jeffress was reasonable in her interpretation of what the
judge had said in his instructions in setting up the deposition. In my
view, she was indeed reasonable in her belief and the sanction of
exclusion was not justified.
