               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-780

                                  Filed: 15 March 2016

Wake County, No. 14 CVS 9339

TIMOTHY S. BOYD, Plaintiff,

              v.

GREGORY M. REKUC, M.D. and RALEIGH ADULT MEDICINE, P.A., Defendant.


        Appeal by Plaintiff from order entered 12 January 2015 by Judge Paul G.

Gessner in Wake County Superior Court. Heard in the Court of Appeals 30 November

2015.


        Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields and
        Joshua D. Neighbors, and Gaylord Rodgers, PLLC, by Daniel M. Gaylord, for
        the Plaintiff-Appellant.

        Young Moore and Henderson, P.A., by Elizabeth Pharr McCullough and Kelly
        Street Brown, for the Defendants-Appellees.

        Lincoln Derr PLLC, by Sara R. Lincoln and Lori R. Keeton for Amicus Curiae,
        North Carolina Association of Defense Attorneys.

        The Law Office of D. Hardison Wood, by D. Hardison Wood and Reginald
        Mathis, for Amicus Curiae, North Carolina Advocates for Justice.


        DILLON, Judge.


        Timothy S. Boyd (“Plaintiff”) appeals from the trial court’s order dismissing his

medical malpractice claims. For the following reasons, we reverse.

                                     I. Background
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                                       Opinion of the Court



       Plaintiff’s complaint asserts claims              for medical malpractice against

Defendants Gregory M. Rekuc, M.D., and Raleigh Adult Medicine, P.A., contending

that Defendants’ failure to provide him with up-to-date vaccinations proximately

caused his suffering from a number of maladies. His action was dismissed because

he did not file his complaint with the certification required by Rule 9(j) of the Rules

of Civil Procedure within the applicable three (3) year statute of limitations. (Rule

9(j) requires essentially that a medical malpractice complaint asserts that an expert

has reviewed the relevant medical care and medical records and is willing to testify

that the medical care provided by the defendants did not comply with the applicable

standard of care.) The dates relevant to this appeal are as follows:

       On 16 March 2011, Plaintiff was last seen by Defendants.1

       On 14 March 2014, Plaintiff filed a medical malpractice complaint against

Defendants in a prior action, within the applicable three (3) year statute of

limitations; however, his complaint did not comply with the Rule 9(j) certification

requirements.

       On 16 June 2014, Plaintiff voluntarily dismissed the prior action, pursuant to

Rule 41 of the Rules of Civil Procedure.




       1 Plaintiff claims that he was still under the care of Defendants as of 25 April 2011 when he
was admitted to Wake Medical Center where he was diagnosed with his various maladies. However,
for purposes of resolving this appeal, it does not matter whether the date Defendants last provided
care was on 16 March or 25 April.

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      On 14 July 2014, Plaintiff commenced this present action, filing a complaint

with the required Rule 9(j) certification. Specifically, the complaint asserted, not only

that the Rule 9(j) expert review occurred, but also that the expert review occurred

prior to 14 March 2014 (when the first complaint was filed).

      On 12 January 2015, the trial court granted Defendants’ motion to dismiss

Plaintiff’s complaint, concluding that the second complaint was not filed within the

applicable statute of limitations. Plaintiff timely appealed.

                                      II. Analysis

                             A. Brisson Controls Our Case

      The only issue on appeal is whether the trial court correctly concluded that

Plaintiff’s second complaint was barred by the applicable statute of limitations. We

hold that the trial court erred in its conclusion.        Specifically, where a plaintiff

voluntarily dismisses a medical malpractice complaint which was timely filed in good

faith but which lacked a required Rule 9(j) certification, said plaintiff may re-file the

action after the expiration of the applicable statute of limitations provided that (1) he

files his second action within the time allowed under Rule 41 and (2) the new

complaint asserts that the Rule 9(j) expert review of the medical history and medical

care occurred prior to the filing of the original timely-filed complaint.

      This case involves the interplay between Rule 9(j) and Rule 41(a)(1) of our

Rules of Civil Procedure.



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      Rule 9(j) requires that a complaint alleging medical malpractice (where res

ipsa loquitur does not apply) “shall be dismissed” unless the complaint specifically

asserts that the relevant medical care and medical records have been reviewed by a

qualified expert. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2014). Rule 9(j) also provides that

prior to the expiration of the applicable statute of limitations, a medical malpractice

complainant may move the trial court for an order “to extend the statute of limitations

for a period not to exceed 120 days . . . in order to comply with this Rule[.]” Id.

      Rule 41(a)(1) allows a plaintiff to dismiss any action voluntarily prior to resting

his case. Id. § 1A-1, Rule 41(a)(1). The Rule further provides essentially that, where

the dismissed action was filed within the applicable statute of limitations, said

plaintiff can commence a new action (based on the same claim) outside of the

applicable statute of limitations so long as the new action is commenced within one

year after the original action was dismissed. See Brockweg v. Anderson, 333 N.C. 486,

489, 428 S.E.2d 157, 159 (1993).

      The relevant facts in the present case are essentially “on all fours” with our

Supreme Court’s 2000 opinion in Brisson v. Santoriello, 351 N.C. 589, 528 S.E.2d 568

(2000). In Brisson, the relevant timeline was as follows:

      27 Jul 1994 – Alleged malpractice occurred (Three-year statute of limitations);

      3 Jun 1997 – Complaint filed just within the applicable statute of limitations,
                  but without the proper Rule 9(j) certification;

      6 Oct 1997 – Plaintiff voluntarily dismisses the action pursuant to Rule 41;


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      9 Oct 1997 – A second action filed with Rule 9(j) certification. The certification
                   asserted, not only that an expert review had occurred, but also
                   that the review took place prior to the filing of the original
                   complaint, though the certification was “inadvertently omitted
                   from the [original complaint][.]” Id. at 592, 528 S.E.2d at 569.

Based on these facts, our Supreme Court held that the second action was not time-

barred since it was filed within one year of the Rule 41(a)(1) voluntary dismissal. Id.

at 597, 528 S.E.2d at 573. The Court stated that “[t]he only limitations are that the

[voluntary] dismissal [of the first action] not be done in bad faith and that it be done

prior to a trial court’s ruling dismissing plaintiff’s claim or otherwise ruling against

plaintiff at any time prior to plaintiff resting his or her case at trial.” Id. Therefore,

Brisson essentially allows a plaintiff who has filed a defective medical malpractice

complaint to voluntarily dismiss the action to gain a year to file a complaint which

complies with Rule 9(j). Of note, the Court did not expressly rely in its holding on the

fact that the second complaint asserted that the Rule 9(j) review had occurred prior

to the filing of the original complaint.

      The Supreme Court has clarified Brisson on three separate occasions of note;

however, that Court has never overruled Brisson. Our Court has also commented on

Brisson and Rule 9(j) on a number of occasions. The key cases from the past sixteen

(16) years are discussed below, with an emphasis on the Supreme Court’s holdings.

      Essentially, the Supreme Court cases stand for the following:           A medical

malpractice complaint which fails to include the required Rule 9(j) certification is


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subject to dismissal with prejudice pursuant to Rule 9(j). Prior to any such dismissal,

however, said plaintiff may amend or refile (pursuant to Rules 15 or 41, respectively)

the complaint with the proper Rule 9(j) certification. Further, if such subsequent

complaint is filed after the applicable statute of limitations has expired but which

otherwise complies with Rule 15 or 41, the subsequent complaint is not time-barred

if it asserts that the Rule 9(j) expert review occurred before the original complaint

was filed.

                   2002: Supreme Court Opinion – Thigpen v. Ngo

      The first occasion of note in which our Supreme Court addressed Brisson was

in 2002 in Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002). Here, our Supreme

Court held that if a complaint which lacks the required Rule 9(j) certification is

amended pursuant to Rule 15 to include the certification, the amended complaint will

not relate back to the original complaint (for statute of limitations purposes) unless

the amended complaint asserts that the Rule 9(j) expert review occurred prior to the

filing of the original complaint. Id. at 204, 558 S.E.2d at 166. Thigpen did not involve

a Rule 41(a)(1) dismissal, thereby distinguishing that case from Brisson. The Court,

though, did comment on Brisson, stating that a plaintiff who fails to include the Rule

9(j) certification could take a voluntary dismissal “to effectively extend the statute of

limitations.” Id. at 201, 558 S.E.2d at 164.

              2004: Supreme Court Adopts Dissent from our Court in
                            Bass v. Durham County


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                                   Opinion of the Court




      The second important Supreme Court decision was actually a short statement

reversing an opinion of our Court “[f]or the reasons stated in the dissenting opinion[.]”

Bass v. Durham Cnty., 358 N.C. 144, 592 S.E.2d 687 (2004) (per curiam). Bass

involved the interplay of the Rule 9(j) certification, Rule 9(j)’s 120-day extension

provision and Rule 41(a)(1) with the following factual timeline:

      Aug 1996 – Date of alleged malpractice (three-year statute of limitations);

      Aug 1999 – Three years after the alleged malpractice, instead of filing a
                 complaint, the plaintiff obtains 120-day extension from the trial
                 court, as allowed by Rule 9(j);

      2 Dec 1999 – On the 120th day from the extension order, the plaintiff files the
                  complaint, but without the required Rule 9(j) certification;

      13 Dec 1999 – After the 120-day extension expired, the plaintiff files an
                 amended complaint with a Rule 9(j) certification;

      29 May 2001 – Plaintiff voluntarily dismisses the complaint;

      12 Jun 2001 – Plaintiff files a new action with a Rule 9(j) certification.
                 However, the record on appeal reflects that the certification in
                 this new complaint did not assert whether the Rule 9(j) expert
                 review had occurred prior to the filing of the original complaint;

      26 Oct 2001 – Trial court dismisses all of the plaintiff’s claims.

On appeal, in a 2-1 decision, our Court reversed the trial court’s dismissal, relying on

Brisson to conclude that the 12 June 2001 complaint in the second action was not

time-barred since Rule 41 can be used to cure the defects of a timely filed complaint.




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                                   Opinion of the Court



Bass v. Durham Cnty., 158 N.C. App. 217, 222, 580 S.E.2d 738, 741 (2003), rev’d, 358

N.C. 144, 592 S.E.2d 687 (2004).

      Judge Tyson, however, issued a dissenting opinion, see 158 N.C. App. at 223,

580 S.E.2d at 742 (Tyson, J., dissenting), which was adopted by the Supreme Court,

see 358 N.C. 144, 592 S.E.2d 687 (2004). In his dissent, Judge Tyson concluded that

the majority had misapplied Brisson. 158 N.C. App. at 223, 580 S.E.2d at 742. He

concluded that Thigpen, in fact, controlled. Id. at 224-25, 580 S.E.2d at 743. Judge

Tyson, though, never stated that the Supreme Court in Thigpen had overruled

Brisson, but rather stated that the “[t]he facts of Brisson are distinguishable from the

case at bar.” Id. at 224, 580 S.E.2d at 743. Judge Tyson pointed out that the plaintiff

in Bass did not file any complaint with the required Rule 9(j) certification until after

the applicable statute of limitations had expired and the 120-day extension had run.

Id. at 225, 580 S.E.2d at 743. Moreover, though not expressly mentioned by Judge

Tyson, the record on appeal reveals that the plaintiff never stated that the Rule 9(j)

expert review had occurred prior to the filing of his first complaint, instead merely

asserting that “[t]he medical care provided by Defendants has been reviewed by a

person who is reasonably expected to qualify as an expert witness[.]” Bass, No.

COA02-841, Record on Appeal at 15, 42. Therefore, just as in Thigpen, a certification

in a new pleading which asserts that a Rule 9(j) expert review had been conducted




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does not relate back to a prior defective pleading where the new pleading fails to

assert that the review took place before the filing of the original (defective) pleading.

      In dicta, Judge Tyson noted that the second complaint in Brisson was filed, not

only within the one-year period allowed for in Rule 41(a)(1), but also within 120 days

of the expiration of the applicable statute of limitations, opining that the second

complaint “would have been timely filed if plaintiffs had requested and received the

120-day extension.” Id. at 224, 580 S.E.2d at 743.

             2005-2010: Court of Appeal’s Conflicting Interpretations of
                           Brisson, Thigpen, and Bass

      In 2005, Judge (now Justice) Jackson, writing for our Court, applied Bass,

Thigpen, and Brisson to conclude essentially that a complaint with a Rule 9(j)

certification did not relate back to a prior complaint which was voluntarily dismissed

where the second complaint failed to assert that the Rule 9(j) expert review occurred

prior to the filing of the first complaint. In re Barksdale v. Duke Univ. Med. Ctr., 175

N.C. App. 102, 107-08, 623 S.E.2d 51, 55-56 (2005) (noting that the plaintiff had

admitted that the expert review occurred “well after the filing of the initial

complaint”). Specifically, Judge (now Justice) Jackson honed in on language from our

Supreme Court in Thigpen, stating that the General Assembly intended for the expert

review to be a prerequisite of filing a malpractice complaint and that “permitting [the]

amendment of a complaint to add the expert certification where the expert review

occurred after the suit was filed would conflict directly with the clear intent of the


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legislature.” Id. at 107, 623 S.E.2d at 55 (quoting Thigpen, 355 N.C. at 203-04, 558

S.E.2d at 166).

        In 2006, however, our Court issued an opinion which interpreted the interplay

of Brisson, Thigpen, and Bass a little differently. See Ford v. McCain, 192 N.C. App.

667, 666 S.E.2d 153 (2008). Specifically, the Ford panel stated that Judge Tyson’s

dicta in Bass (referred to herein above) effectively limited Brisson to actions where

the second complaint is filed within 120 days after the statute of limitations has

expired, because Rule 9(j) otherwise allows a complainant to seek a 120-day extension

of the statute of limitations. The Ford panel so held even though Rule 41 makes no

mention of a 120-day timeframe and even though the plaintiff in Brisson, never

sought a 120-day extension. Id. at 672 n. 1, 666 S.E.2d at 157 n. 1.2

        2010: Our Supreme Court Speaks Again in Brown v. Kindred Nursing

        In 2010, our Supreme Court, on the third (and most recent) occasion of note,

commented on Brisson in the case of Brown v. Kindred Nursing, 364 N.C. 76, 82-83,

692 S.E.2d 87, 91 (2010). In Brown, the Supreme Court reaffirmed its holding in

Brisson. Id. at 82, 692 S.E.2d at 91. The Court essentially reconciled Brisson with

its other holdings in the same way Judge (now Justice) Jackson had done in




        2 Even assuming that Brisson only applies to second actions (commenced following a voluntary
dismissal of a first action) filed within 120 days of the statute of limitations expiration, rather than all
those filed within one year of the dismissal of the prior action as allowed under Rule 41, we note that,
here, the second action was filed within 120 days of the expiration of the applicable statute of
limitations.

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Barksdale. See id. at 82-83, 692 S.E.2d at 91. Essentially, the Supreme Court stated

that a complaint containing the required Rule 9(j) certification filed after the

applicable statute of limitations has expired will relate back to a prior, voluntarily

dismissed complaint if (1) the refiled complaint is filed within one year of the

dismissal of the first complaint and (2) the refiled complaint states that the Rule 9(j)

expert review took place prior to the filing of the original action. See id. Specifically,

the Court stated that under Brisson, “Rule 9(j) does not prevent parties from

voluntarily dismissing a nonconforming complaint and filing a new complaint with

proper certification,” emphasizing that “in Brisson, the plaintiffs had complied with

every portion of Rule 9(j) except for including the certification in the [original]

complaint.” Id. at 82, 692 S.E.2d at 91. The Supreme Court did not state that Brisson

only applied where the second action is filed within 120 days of the statute of

limitations, rather than to all actions filed within one year of the dismissal of the

prior complaint as allowed under Rule 41. Rather, under Brown, it appears that a

plaintiff can utilize the entire year allowed for under Rule 41 to refile the action,

provided that the new action asserts that the expert review occurred prior to the filing

of the first action.

                       2011-2016: Decisions from the Court of Appeals

       In 2011, our Court issued a decision, stating that “[b]ased on the facts of the

instant case, Brisson was overruled by the Supreme Court in Bass.”             McKoy v.



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Beasley, 213 N.C. App. 258, 263, 712 S.E.2d 712, 717 (2011). This statement from

our Court cannot stand for the proposition that Brisson was overruled in its entirety,

for such a reading would conflict with our Supreme Court’s opinion in Brown.

(Notably, our McKoy decision never mentions Brown.) In any event, the McKoy case

involved a plaintiff who filed a wrongful death claim within the applicable statute of

limitations but without a Rule 9(j) certification. After said action was dismissed

without prejudice, the plaintiff filed a new action outside of the applicable statute of

limitations which contained a Rule 9(j) certification. Id. at 260-61, 712 S.E.2d at 713-

14. Though not expressly stated in the opinion, the record on appeal in McKoy reveals

that the new complaint failed to state whether the Rule 9(j) expert review took place

before the filing of the original action. McKoy, No. COA09-1315, Record on Appeal at

6-7. Furthermore, we believe that, for this reason, the holding in Brisson was not

applicable to McKoy. That is, to the extent that Brisson could have been read to allow

a Rule 41 dismissal to save any type of Rule 9(j) defect in a medical malpractice

complaint (even where the plaintiff failed to have a medical review conducted prior

to filing said complaint), Brisson had been “overruled” (or, more accurately,

narrowed) by Thigpen and Bass: The extra time provided in Rule 41 to file a second

action can only save an otherwise time-barred second complaint if the second




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complaint asserts that the expert review was conducted prior to the filing of the

original complaint.3

       As recently as January of this year (2016), our Court has acknowledged that

Brisson remains good law, allowing “a 9(j) deficient complaint to be dismissed

[pursuant to Rule 41] and then re-filed with a sufficient 9(j) statement within one

year of dismissal.” Alston v. Hueske, ___ N.C. App. ___, ___, 781 S.E.2d 305, 310-11

(2016).

                         B. Rule 9(j)’s 120-Day Extension Provision

       Defendants make mention of Rule 9(j)’s provision allowing a plaintiff to seek

from the trial court an order extending the statute of limitations by 120 days to allow

the plaintiff additional time to comply with the requirements of the Rule. However,

here, this provision does not come into play since Plaintiff never sought a 120-day

extension of the statute of limitations. Further, though not relevant here, we point

out that it is not entirely clear from case law whether a complaint is time-barred

where it asserts that the expert review of the medical care and medical records

occurred during a 120-day extension period granted by the trial court, rather than

asserting that the review occurred before the running of the original statute of

limitations.



       3  There is language in McKoy which could be read to suggest that Rule 41 cannot be used even
to save a defective complaint where the expert review had already occurred. However, such a reading
would totally eradicate any precedential value of Brisson and be at odds with the reasoning in Thigpen.

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                                   Opinion of the Court



      It could be argued from the text of the rule that the purpose of the 120-day

extension is to allow a plaintiff additional time, not only to draft the required Rule

9(j) pleading but also to locate an expert to conduct the medical review, since the

drafting of a pleading itself should not take that long if the review has, otherwise,

already taken place. The Supreme Court in Thigpen suggested that the 120-day

statute of limitations extension allows for the actual review to take place during this

120-day extension period. Thigpen, 355 N.C. at 203-04, 558 S.E.2d at 166 (stating

that “[t]he legislature’s intent was to provide a more specialized and stringent

procedure for plaintiffs in medical malpractice claims through Rule 9(j)’s requirement

of expert certification prior to the filing of a complaint” (emphasis added)).

      However, the Supreme Court held in Brown by a 4-3 decision that the 120-day

extension allowed under Rule 9(j) can only be used “for the limited purpose of filing a

complaint. [It cannot be used] . . . to locate a certifying expert, add new defendants,

and amend a defective pleading.” 364 N.C. at 84, 692 S.E.2d at 92. In Brown, the

plaintiff filed a defective complaint and then obtained a 120-day extension, during

which he obtained a certifying expert and filed an amended complaint. Id. The

dissent in Brown interpreted the majority’s holding to apply to any situation where a

120-day extension was obtained, not just situations where the plaintiff has already

filed a complaint prior to obtaining the 120-day extension to file an amended

complaint. Id. at 90, 692 S.E.2d at 95-96 (Hudson, J., dissenting) (questioning the



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majority’s reasoning that the purpose of providing for a 120-day extension was to

allow a plaintiff an additional four (4) months merely to draft an appropriate Rule

9(j) statement).

      In 2016, though, our Court, in Alston, interpreted Brown much more narrowly

than suggested by the Brown dissent. That is, our Court stated that Brown prevents

a plaintiff from utilizing a 120-day extension to locate a certifying expert only if he

has already filed a defective complaint prior to obtaining the extension. Alston, ___

N.C. App. at ___, 781 S.E.2d at 309 (stating that “Rule 9(j) also provides an avenue

to extend the statute of limitations in order to provide additional time, if needed, to

meet the expert review requirement,” but that the extension “may not be used to

amend a previously filed complaint”).

      We need not resolve this question in this appeal, however, since the issue is

not before us.

                                    III. Conclusion

      Based on our Supreme Court’s holdings in Brisson, Thigpen, Bass, and Brown,

we hold that the trial court erred in its order dismissing Plaintiff’s complaint:

Plaintiff filed his original complaint within the applicable statute of limitations.

Though his original complaint was filed without the required Rule 9(j) certification

and, therefore, subject to be dismissed with prejudice, see N.C. Gen. Stat. § 1A-1, Rule

9(j), Plaintiff voluntarily dismissed his original complaint pursuant to Rule 41(a)(1)



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before any such dismissal with prejudice occurred. He, then, refiled his complaint

within the one year time period allowed under Rule 41, and asserted in said complaint

that the expert review of his medical care and history had been conducted prior to the

filing of the original complaint. Therefore, we reverse the order of the trial court

dismissing Plaintiff’s complaint and remand the matter for further proceedings not

inconsistent with this opinion.

      REVERSED AND REMANDED.

      Chief Judge McGEE and Judge DAVIS concur.




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