                            NO. COA13-221

                    NORTH CAROLINA COURT OF APPEALS

                       Filed: 18 February 2014


LESLIE WEBB, Administratrix of the
Estate of ROBERT B. WEBB, III,
     Plaintiff-Appellant,

    v.                               Forsyth County
                                     No. 10-CVS-1990
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER, UNIVERSITY DENTAL
ASSOCIATES, NORTH CAROLINA BAPTIST
HOSPITAL, WAKE FOREST UNIVERSITY,
WAKE FOREST UNIVERSITY PHYSICIANS,
SHILPA S. BUSS, DDS, and REENA
PATEL, DDS,
     Defendants-Appellees.


    Appeal by Plaintiff from order entered 27 August 2012 by

Judge John O. Craig, III      in Superior   Court,    Forsyth   County.

Heard in the Court of Appeals 10 September 2013.


    Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L.
    Kennedy, III and Harvey L. Kennedy, for Plaintiff-
    Appellant.

    Coffey Bomar LLP, by Tamura D. Coffey and J. Rebekah
    Biggerstaff,    for    Defendants-Appellees   Wake  Forest
    University Baptist Medical Center, North Carolina Baptist
    Hospital,   Wake   Forest   University,   and  Wake Forest
    University Physicians.

    Carruthers & Roth, P.A., by Kenneth L. Jones and Michal E.
    Yarborough,   for  Defendant-Appellee   University  Dental
    Associates.


    McGEE, Judge.
                                       -2-
       Leslie    Webb,    Administratrix     of    the    Estate    of   Robert    B.

Webb, III, (“Plaintiff”), filed a complaint against Wake Forest

University Baptist Medical Center, University Dental Associates,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena

Patel, DDS (“Defendants”) on 13 July 2010.                    Plaintiff alleged

that Robert B. Webb, III, (“the Decedent”) was under general

anesthesia for oral surgery, teeth cleaning, and the extraction

of four teeth performed on 13 March 2008.                 The Decedent was sent

home    the     same     day   following     the       procedure.        He   became

unresponsive at home on 14 March 2008 and was pronounced dead on

15 March 2008.         Plaintiff alleged that Defendants were negligent

in their treatment of the Decedent and that this negligence was

the proximate cause of his death.

       Defendants Wake Forest University Baptist Medical Center,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena

Patel, DDS, filed an answer on 30 September 2010.                         Defendant

University      Dental    Associates   filed       a     separate   answer    on    5

October 2010.

       Defendants Wake Forest University Baptist Medical Center,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena
                                              -3-
Patel, DDS, filed a motion for summary judgment on 26 July 2012.

Defendant University Dental Associates filed a separate motion

for summary judgment on 31 July 2012.

       The trial court granted the motions for summary judgment as

to    “any   and    all    allegations,          claims,     and    causes      of   action

involving the dental care provided to                        [the D]ecedent.”           The

trial court also granted the motion for summary judgment “as to

any   and    all    allegations,            claims,   and   causes    of   action      that

relate to the dental care provided to [the D]ecedent involving

the alleged negligence of [D]efendants Wake Forest University

Baptist Medical Center, North Carolina Baptist Hospital, Wake

Forest University, and Wake Forest University Physicians.”                              The

trial court denied Defendants’ summary judgment motion relating

to anesthesia care.

       Plaintiff appeals.

                            I. Summary Judgment Rule

       Plaintiff      argues          the     trial      court    erred    in    granting

Defendants’ motions for summary judgment relating to dental care

of Decedent.        A trial court should grant a motion for summary

judgment     only     “if       the     pleadings,        depositions,       answers    to

interrogatories,          and    admissions         on    file,    together     with   the

affidavits, if any, show that there is no genuine issue as to

any material fact and that any party is entitled to a judgment
                                         -4-
as a matter of law.”          N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013);

see also Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d

331, 334 (2008).

      Our Supreme Court has “emphasized that summary judgment is

a drastic measure, and it should be used with caution.                       This is

especially true in a negligence case[.]”                  Williams v. Power &

Light   Co.,     296   N.C.    400,   402,     250   S.E.2d   255,     257    (1979)

(internal citation omitted).             The purpose of N.C.G.S. § 1A-1,

Rule 56 “is to eliminate formal trials where only questions of

law are involved.”            Lowe v. Bradford, 305 N.C. 366, 369, 289

S.E.2d 363, 366 (1982).            “An issue is ‘genuine’ if it can be

proven by substantial evidence and a fact is ‘material’ if it

would constitute or irrevocably establish any material element

of a claim or a defense.”          Id.

      “The moving party carries the burden of establishing the

lack of any triable issue.”              Lord, 191 N.C. App. at 293, 664

S.E.2d at 334.         “The movant may meet his or her burden by

proving that an essential element of the opposing party’s claim

is    nonexistent,     or     by   showing     through   discovery      that     the

opposing party cannot produce evidence to support an essential

element   of     his   claim[.]”         Id.     (internal       quotation     marks

omitted).      “Generally this means that on undisputed aspects of

the   opposing    evidential       forecast,    where    there    is   no    genuine
                                        -5-
issue of fact, the moving party is entitled to judgment as a

matter of law.”          Lowe, 305 N.C. at 369, 289 S.E.2d at 366

(internal quotation marks omitted).

       Once   the    moving     party   has   met    its   initial    burden,    the

nonmoving      party     must      produce     “a     forecast       of     evidence

demonstrating that the [nonmoving party] will be able to make

out at least a prima facie case at trial” in order to survive

summary judgment.            Diggs v. Novant Health, Inc., 177 N.C. App.

290, 294, 628 S.E.2d 851, 855 (2006) (alteration in original).

“The opposing [nonmoving] party need not convince the court that

he would prevail on a triable issue of material fact but only

that the issue exists.”             Lowe, 305 N.C. at 370, 289 S.E.2d at

366.

                                   II. Analysis

       Plaintiff’s     complaint and      Defendants’       answers       show there

are    genuine      issues    of   material   fact    in   this   matter.        The

complaint alleged the following:

              XII. That the oral surgery performed on [the
              Decedent] lasted 8 hours and 20 minutes,
              approximately four times longer than the
              time for the procedure represented to the
              parents of [the Decedent]. The oral surgery
              consisted   of   teeth   cleaning  and   the
              extraction of four teeth.    The patient was
              under   general   anesthesia   for  over   8
              hours. . . .

              XIV.   That  the   oral  surgeons  and  the
              anesthesia treatment team were aware of the
                                           -6-
              fact that a known risk of having a patient
              under general anesthesia for an extensive
              period of time was that the patient could
              develop pneumonia.

              XV. That in spite of the lengthy surgery and
              the extended period of time that the patient
              was    under    general    anesthesia,    upon
              information   and   belief,   the   anesthesia
              treatment team in consultation with the two
              oral surgeons made the decision to send [the
              Decedent] home on March 13, 2008 post
              surgery.

              XVI. On March 14, 2008, [the Decedent]
              became unresponsive at home. He was rushed
              by EMT to Moses Cone Hospital in Greensboro,
              North Carolina.     At Moses Cone Hospital,
              [the Decedent] was diagnosed as having
              cerebral edema on CT, anoxic brain damage
              and cardiac arrest. . . .

              XVIII. An autopsy was performed, and the
              cause   of  death   was   determined  to   be
              bronchopneumonia   following    comprehensive
              dental care under general anesthesia.

       Defendants Wake Forest University Baptist Medical Center,

North Carolina Baptist Hospital, Wake Forest University, Wake

Forest University Physicians, Shilpa S. Buss, DDS, and Reena

Patel, DDS, denied all of the above allegations in their answer.

Defendant University Dental Associates filed a separate answer

in which it also denied the above allegations.

       Defendants,     in   their    briefs      to   this   Court   and   at   oral

argument, focused on the admissibility of expert testimony under

N.C.   Gen.    Stat.   § 8C-1,      Rule    702(b).      The   trial   court    also
                                     -7-
stated during the hearing that Plaintiff had “run squarely into

a brick wall with Rule 702(b).”

     However, we note that         the record contains no motion to

exclude Plaintiff’s expert witnesses.           Rather, at the hearing on

Defendants’   motions    for     summary   judgment,    Defendants      argued

Plaintiff failed to show causation, as follows:

           Your   Honor . . . we  will   concede  that
           [Plaintiff has] three expert witnesses, all
           who have testified about standard of care
           issues.    That is not what we’re arguing
           about.     We are strictly arguing about
           whether or not they had made a causal link
           with these three experts to the dental care
           in the case.

     Medical malpractice encompasses actions arising from the

performance of dental care.          “[T]he term ‘medical malpractice

action’ means a civil action for damages for personal injury or

death   arising   out   of   the   furnishing    or    failure   to   furnish

professional services in the performance of medical, dental, or

other health care by a health care provider.”              N.C. Gen. Stat.

§ 90-21.11 (2009).1

     “To survive a motion for summary judgment in a medical

malpractice   action,        a   plaintiff    must     forecast       evidence


1 Our General Assembly amended this statute in 2011. 2011 N.C.
Sess. Laws ch. 400 § 5.    The amendment applies “to causes of
actions arising on or after” 1 October 2011. Id. at § 11. The
cause of action in the present case arose on or about 13 March
2008. The amendment therefore is not applicable to the present
case.
                                   -8-
demonstrating that the treatment administered by [the] defendant

was in negligent violation of the accepted standard of medical

care in the community[,] and that [the] defendant’s treatment

proximately caused the injury.”       Lord, 191 N.C. App. at 293-94,

664 S.E.2d at 334 (alterations in original) (internal quotation

marks omitted).     “Proximate cause is a cause which in natural

and continuous sequence, unbroken by any new and independent

cause, produced the plaintiff’s injuries, and without which the

injuries would not have occurred[.]”         Id. at 294, 664 S.E.2d at

334.

       In the present case, Plaintiff forecast evidence showing

that the treatment administered by Defendants was in negligent

violation of the accepted standard of care in the community.

Dr. Behrman, a Doctor of Dental Medicine, testified on behalf of

the Decedent     in a deposition     that “[t]here was no clearance

obtained on a significantly medically compromised person by the

physician   of   record,   the   physician   caring   for   him[.]”   Dr.

Behrman testified as follows regarding the necessity to consult

with the physician of record prior to the dental procedure:

            This is bread and butter of training
            programs, the way we teach the residents,
            the way we’ve been taught; using the medical
            providers, obtaining the consult and such.
            This is what we do and what we’re trained to
            do, what I expect my residents to do, what I
            have to demonstrate during accreditation
            visits within a residency program.
                                           -9-


       Plaintiff also forecast evidence, in depositions and in the

complaint, of the proximate cause of death.                         The portion of Dr.

Behrman’s deposition relevant to causation is quoted below:

            [Plaintiff’s   attorney].   In  your  expert
            opinion was the violation of the standard of
            care that you testified about here today a
            proximal contributing cause to [Decedent]
            developing bronchopneumonia?

            . . . .

            [Dr. Behrman]. Within my knowledge                        as     an
            oral and maxillofacial surgeon, yes.

       Plaintiff also alleged in the complaint that an “autopsy

was    performed,    and    the    cause    of    death       was    determined       to   be

bronchopneumonia          following    comprehensive               dental    care      under

general anesthesia.”           The doctor who performed the Decedent’s

autopsy,    Dr.    Gaffney-Kraft,       stated         in    an    affidavit       filed    by

Plaintiff    in     this    action    that       “it    is    [her]    opinion        within

reasonable medical certainty that the cause of death of [the

Decedent]    was    bronchopneumonia         following            comprehensive       dental

care    including     exam,    radiographs,            cleaning,      restoration          and

extractions       which     were     performed         under       general        anesthesia

shortly before his death[.]”               Dr. Gaffney-Kraft also indicated

in her report of autopsy examination that Decedent’s cause of

death was bronchopneumonia.
                                        -10-
      As stated above, the trial court should grant a motion for

summary judgment only “if the pleadings, depositions, answers to

interrogatories,       and    admissions       on    file,     together   with    the

affidavits, if any, show that there is no genuine issue as to

any material fact and that any party is entitled to a judgment

as a matter of law.”               N.C.G.S. § 1A-1, Rule 56(c); see also

Lord, 191 N.C. App. at 293, 664 S.E.2d at 334.                   “Where there are

genuine, conflicting issues of material fact, the motion for

summary judgment must be denied so that such disputes may be

properly resolved by the jury as the trier of fact.”                       Howerton

v. Arai Helmet, Ltd., 358 N.C. 440, 468, 597 S.E.2d 674, 692

(2004).

      Plaintiff contends that she “presented a two-tier approach

on causation.”        First, Dr. Behrman opined that the violation of

the   standard   of    care    caused    the    Decedent’s       bronchopneumonia;

second, the bronchopneumonia caused the death of the Decedent.

Defendants   contend         the    testimony       of   Dr.   Behrman    fails    to

establish proximate cause because his testimony fails to satisfy

N.C.G.S. §8C-1, Rule 702 (2009).2




2 Our General Assembly amended N.C.G.S. § 8C-1, Rule 702 in 2011.
2011 N.C. Sess. Laws ch. 283 § 1.3.     The amendments apply “to
actions commenced on or after” 1 October 2011.     Id. at § 4.2.
The amendments are not applicable to the present case because
the action was commenced on 13 July 2010.
                                      -11-
               III. Admissibility of Expert Testimony

    Despite the fact that this matter is before us on appeal

from the grant of summary judgment, we address the admissibility

of expert testimony because of our Supreme Court’s analysis in

Crocker v. Roethling, 363 N.C. 140, 675 S.E.2d 625 (2009).                In

Howerton, our Supreme Court recognized the differences in the

two issues and commented that a party “will not likely fare as

well”   by   moving   for   summary    judgment   without   a   preliminary

admissibility determination “because of the inherent procedural

safeguards favoring the non-moving party in motions for summary

judgment.”     Howerton, 358 N.C. at 468, 597 S.E.2d at 692; see

also Day v. Brant, ___ N.C. App. ___, ___, 721 S.E.2d 238, 247,

disc. review denied, 366 N.C. 719, 726 S.E.2d 179 (2012) (“Our

Supreme Court, in Howerton, cautioned against the merging of the

two issues.”).

    The decision in Crocker was composed of three opinions from

the Supreme Court.     All three opinions analyze the admissibility

of expert testimony, regardless of the facts that the appeal was

from an order granting summary judgment and the record indicated

no motion to exclude expert testimony.             Crocker, 363 N.C. at

143, 675 S.E.2d at 629.          Our Supreme Court concluded that the

trial   court’s   ruling    on   summary     judgment   resulted   from   “a

misapplication of Rule 702[.]”          Id. at 144, 675 S.E.2d at 629.
                                                -12-
Because our Supreme Court in Crocker analyzed the admissibility

of expert testimony even in the absence of a motion to exclude

expert     testimony,           we    analyze         the    admissibility          of     expert

testimony in the present case.

      “The trial court must decide the preliminary question of

the   admissibility             of   expert      testimony       under       the    three-step

approach adopted in State v. Goode, 341 N.C. 513, 461 S.E.2d 631

(1995).”      Crocker, 363 N.C. at 144, 675 S.E.2d at 629.                                      “The

trial court thereunder must assess: 1) the reliability of the

expert’s     methodology,            2) the      qualifications          of    the       proposed

expert, and 3) the relevance of the expert’s testimony.”                                  Id.

                  A. Reliability of the Expert’s Methodology

      As     to    the     first      step      in     the    Goode      analysis        of     the

admissibility of expert testimony, Plaintiff contends that Dr.

Behrman “is unquestionably qualified as an expert in the field

of    oral    surgery.”              Defendants         contend        Plaintiff’s         expert

testimony     is     “not       sufficiently         reliable     to    be    admissible[,]”

citing Azar v. Presbyterian Hosp., 191 N.C. App. 367, 663 S.E.2d

450   (2008).            When    testimony       on    medical      causation        “is      based

merely     upon     speculation           and    conjecture,        however,        it     is    no

different         than     a    layman’s        opinion,      and      as     such,      is     not

sufficiently        reliable         to   be    considered      competent          evidence      on

issues of medical causation.”                   Id. at 371, 663 S.E.2d at 453.
                                          -13-
      However, as discussed above, the opinions of Dr. Behrman

and Dr. Gaffney-Kraft were not based merely upon speculation or

conjecture.     Neither Dr. Behrman nor Dr. Gaffney-Kraft used the

words “probably” or “possibly” or otherwise indicated that their

opinions were speculative or conjectural.                    Rather, Dr. Behrman

answered the question as to his opinion on causation in the

affirmative.      Similarly, Dr. Gaffney-Kraft stated that “it is

[her] opinion within reasonable medical certainty that the cause

of death of [the Decedent] was bronchopneumonia[.]”                        The fact

that Plaintiff’s causation testimony is presented in two steps,

(1) that the dental care caused Decedent’s bronchopneumonia and

(2) that the bronchopneumonia caused Decedent’s death, does not

affect this analysis.             Defendants cite no case holding that

causation evidence may not be presented in sequential steps, and

our   research        reveals     none.          Defendants     have   not    shown

Plaintiff’s expert testimony is not sufficiently reliable to be

considered competent evidence on causation.

                B. Qualifications of the Proposed Expert

      As   to   the    second     step     in    the    Goode   analysis     of   the

admissibility     of     expert    testimony,          Plaintiff   contends   that,

because Dr. Behrman is an oral surgeon who performs surgical

operations on patients, and the practice of medicine includes

surgery, “there is an overlap between” statutes regulating the
                                        -14-
practice of medicine and the practice of dentistry.                    Defendants

contend   Plaintiff’s      experts      “cannot   be   qualified       to   render

expert opinions on medical causation pertaining to areas of the

body outside the oral cavity.”

    Defendants cite Martin v. Benson, 125 N.C. App. 330, 481

S.E.2d 292 (1997), rev’d on other grounds, 348 N.C. 684, 500

S.E.2d 664 (1998), in support of their contention that only a

medical doctor would be qualified to opine as to causation of

bronchopneumonia.         In Martin, this Court held the trial court

erred in allowing a neuropsychologist to opine as to a closed

head injury.      Id. at 334-37, 481 S.E.2d at 294-96.             However, our

Supreme   Court    held    that   the    plaintiffs    waived    the    right    to

appellate review of the testimony because the plaintiffs failed

to object to the evidence at the time it was offered at trial.

Martin, 348 N.C. at 685, 500 S.E.2d at 665.

    “If scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge,     skill,     experience,      training,    or      education,      may

testify thereto in the form of an opinion.”                  N.C.G.S. § 8C-1,

Rule 702(a).      “[T]he opinion testimony of an expert witness is

competent if there is evidence to show that, through study or

experience, or both, the witness has acquired such skill that he
                                            -15-
is better qualified than the jury to form an opinion on the

particular subject of his testimony.”                        Terry v. PPG Indus.,

Inc.,   156    N.C.    App.        512,    518,     577    S.E.2d    326,     332     (2003)

(licensed     clinical        psychologist           was    qualified         to     testify

regarding the cause of depression).

     This Court in Martin considered “Rule 702 in light of this

State’s     statutes     defining           the     practice        of   ‘psychology.’”

Martin, 125 N.C. App. at 336, 481 S.E.2d at 295.                               This Court

noted that N.C. Gen. Stat. § 90-270.3 (1993) required licensed

psychologists to assist clients in obtaining professional help

for problems that fall outside the bounds of the psychologist’s

competence, including “the diagnosis and treatment of relevant

medical” problems.            Id. at 337, 481 S.E.2d at 296.                       From this

statute, this Court concluded it was evident “that the practice

of   psychology       does     not        include    the     diagnosis        of     medical

causation.”     Id.      By contrast, in the present case, no statute

requires      dentists        to     assist       their     clients      in        obtaining

professional help for problems outside the boundaries of the

dentist’s competence.              Martin is thus distinguishable from the

present case.

     “The essential question in determining the admissibility of

opinion    evidence      is    whether        the    witness,       through        study   or

experience, has acquired such skill that he was better qualified
                                       -16-
than the jury to form an opinion on the subject matter to which

his testimony applies.”         Diggs, 177 N.C. App. at 297, 628 S.E.2d

at 856 (holding that a nurse qualified to opine as to causation

of injury arising from gallbladder surgery).

    Dr.   Behrman      earned   a     Doctor   of   Dental   Medicine    degree,

completed an internship in anesthesia and a residency in oral

and maxillofacial surgery, is licensed by the New York Board of

Dentistry, and has been certified by the American Board of Oral

and Maxillofacial Surgeons since 1986.              As Chief of the Division

of Dentistry, Oral and Maxillofacial Surgery since June 1996,

Dr. Behrman oversees residency programs that provide over 10,000

patient visits each year.           He is the Chair of the Institutional

Review Board of a medical center in New York.                 In the past, he

has held appointments with the University of Pennsylvania School

of Dental Medicine and Memorial Sloan-Kettering Cancer Center

and Hospital.        Focusing on the qualifications of Dr. Behrman in

particular,     as    opposed    to     the    qualifications    of     licensed

dentists in general, Dr. Behrman’s knowledge, skill, experience,

training, and education qualify him to opine as to the causation

of bronchopneumonia.       Dr. Behrman has “acquired such skill that

he was better qualified than the jury to form an opinion” on the

causation of bronchopneumonia.           Diggs, 177 N.C. App. at 297, 628
                                       -17-
S.E.2d at 856; see also Terry, 156 N.C. App. at 518, 577 S.E.2d

at 332.

      We note that Defendants do not challenge the qualification

of    Dr.    Gaffney-Kraft       to    offer     her   expert     opinion    that

bronchopneumonia was the Decedent’s cause of death.

                 C. Relevance of the Expert’s Testimony

      Defendants do not challenge the third step of the Goode

analysis, namely, the relevance of the expert’s testimony.

                                 IV. Conclusion

      The     depositions,      affidavits,      and   pleadings     show    that

Plaintiff, the nonmoving party, forecast evidence showing that

Defendants’ treatment proximately caused               the Decedent’s death

and   that    there    are   genuine    issues    of   material    fact     to   be

determined by the jury.           The evidence constitutes a sufficient

forecast of evidence for presentment of the case to the jury.

The   trial    court    erred    in    granting    Defendants’     motions       for

summary judgment relating to dental care.

      Reversed.

      Judge McCULLOUGH concurs.

      Judge       DILLON        dissents       with     separate       opinion.
                               NO. COA13-221

                  NORTH CAROLINA COURT OF APPEALS

                        Filed: 18 February 2014


LESLIE WEBB, Administratrix of the
Estate of ROBERT B. WEBB, III,
     Plaintiff-Appellant,

    v.                                 Forsyth County
                                       No. 10-CVS-1990
WAKE FOREST UNIVERSITY BAPTIST
MEDICAL CENTER, UNIVERSITY DENTAL
ASSOCIATES, NORTH CAROLINA BAPTIST
HOSPITAL, WAKE FOREST UNIVERSITY,
WAKE FOREST UNIVERSITY PHYSICIANS,
SHILPA S. BUSS, DDS, and REENA
PATEL, DDS,
     Defendants-Appellees.


    DILLON, Judge, dissenting.


    At the summary judgment hearing below, Plaintiff relied on

the opinions of two dentists – Dr. Thomas David and Dr. David

Behrman – as her forecast of evidence to establish that (1) the

provision of dental care by Defendants to Robert B. Webb, III,

(Decedent)   violated    the     standard      of   care   for   dental

professionals; and that (2) this violation proximately caused

Decedent to develop bronchopneumonia.3         Because I do not believe

that the trial court abused its discretion under N.C. Gen. Stat.



3 Plaintiff relied upon the opinion of a medical doctor that
Decedent’s bronchopneumonia caused his death.      However, this
medical doctor never expressed an opinion as to the cause of the
bronchopneumonia.
                                                -2-
§   8C-1,      Rule       702    by     excluding      from      its    consideration            the

opinions       of     these       dentists      as    to   the     cause     of      Decedent’s

bronchopneumonia, I respectfully dissent.

       Here, Plaintiff bore the burden of producing a forecast of

evidence demonstrating “(1) the applicable standard of care; (2)

a breach of such standard of care by [Defendants]; (3) [that]

the injuries suffered by [Decedent] were proximately caused by

such    breach;       and       (4)    the    damages      resulting       to     [Decedent].”

Weatherford v. Glassman, 129 N.C. App. 618, 621, 500 S.E.2d 466,

468 (1998).          Our Supreme Court has held that “[w]here ‘a layman

can    have    no     well-founded           knowledge     and    can   do      no       more   than

indulge       in    mere    speculation        (as    to   the    cause      of      a    physical

condition), there is no proper foundation for a finding by the

trier without expert medical testimony.’”                          Gillikin v. Burbage,

263    N.C.        317,    325,       139    S.E.2d   753,       760    (1964)       (citations

omitted).

       The theory of Plaintiff’s case, here, is that Defendants

violated the standard of care applicable to licensed dentists,

that    this       violation       proximately        caused      Decedent        to      contract

bronchopneumonia, and that Decedent’s bronchopneumonia was the

cause of his death.                Defendants do not contend that Plaintiff’s

forecast of evidence regarding the applicable standard of care
                                          -3-
and    the   breach   thereof       was   insufficient     to   survive     summary

judgment.       Indeed, Plaintiff’s two dental experts each stated

their opinions concerning the applicable standard of care for a

licensed dentist in performing Decedent’s dental procedure and,

moreover, that Defendants had violated that standard.4                      Rather,

Defendants argue - and the trial court concluded - that these

same dentists did not qualify under Rule 702 to offer an expert

opinion that the violation of the dental standard of care in

this     case     was        the     proximate       cause      of     Decedent’s

bronchopneumonia.

       The parties do not dispute that Plaintiff’s burden was to

forecast     evidence   in    the    form   of    expert   testimony   to    lay   a

proper foundation from which a jury could determine the cause of

Decedent’s      bronchopneumonia.           The     admissibility      of    expert

testimony on the issue of medical causation is governed by Rule

702(a) of our Rules of Evidence, the relevant version5 of which

provides that “[i]f scientific, technical or other specialized



4 Likewise, Defendants do not contend that Plaintiff’s forecast
of evidence regarding the causal connection between Decedent’s
bronchopneumonia and his death was not sufficient to survive
summary judgment, as this connection was established through the
opinion of a medical doctor.
5 Rule 702(a) was amended for actions commenced after October 1,

2011 to provide a stricter standard on the admissibility of
expert testimony.   See State v. McGrady, __ N.C. App. __, __
S.E.2d __ (2014).
                                          -4-
knowledge will assist the trier of fact . . . to determine a

fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training or education, may testify thereto in

the form of an opinion[.]”

       In the context of a medical malpractice action, Rule 702(a)

appears less restrictive as to the qualifications of a witness

to provide an expert opinion on medical causation than Rule

702(b)   as   to     the    qualifications      of     a    witness     to    provide     an

expert   opinion      on       the   appropriate       standard       of     care.       For

instance, while an expert testifying as to the standard of care

must generally be “a licensed health care provider,” this Court

has held, in a medical malpractice case, that a witness need not

be a licensed medical doctor in order to offer an expert opinion

as to medical causation, Diggs v. Novant Health, 177 N.C. App.

290, 628, S.E.2d 851 (2006), noting that our Supreme Court has

rejected the notion that only a medical doctor can be qualified

under Rule 702 to give an opinion regarding medical causation,

id. (citing State v. Tyler, 346 N.C. 187, 203-04, 485 S.E.2d

599,   608    (1997)).          Accordingly,     I     believe     we      are   bound   to

conclude      that        Plaintiff’s     two     dentist         experts        are     not

disqualified,        as    a    matter   of     law,       from   offering       opinions

regarding Decedent’s onset of bronchopneumonia.
                                   -5-
       While it is true that the trial court is “afforded ‘wide

latitude of discretion when making a determination about the

admissibility of expert testimony[,]’”      Howerton v. Arai Helmet,

Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citation

omitted), I discern no abuse of discretion in the trial court’s

decision to exclude the opinion testimonies of Drs. David and

Behrman concerning the cause of Decedent’s bronchopneumonia in

the present case.    Although Dr. David opined that the standard

care    violation   was   the   proximate      cause   of    Decedent’s

bronchopneumonia, he also testified that he was not an expert

qualified to offer an opinion as to the cause of Decedent’s

bronchopneumonia,   specifically    stating:     “Again,    I’m   not   an

expert in that regard, so my only opinion would be as a health

care practitioner and general knowledge in that realm, but I’m

not going to offer an expert opinion.”

       Likewise, Dr. Behrman stated in response to a question from

Plaintiff’s counsel that it was his opinion that the standard of

care violation caused Decedent’s bronchopneumonia; however, he

qualified his response in stating that his opinion was “[w]ithin

[his] knowledge as an oral and maxillofacial surgeon” and that

he “would defer [his] opinions related to the development of

[Decedent’s] bronchopneumonia to a medical doctor.”         Further Dr.
                                      -6-
Behrman    acknowledged     that   Decedent     was     a    medically      complex

patient.

    The majority cites the three-pronged analysis set out by

our Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d

631 (1995), which the trial court must use in determining the

preliminary issue of the admissibility of expert testimony.                         I

disagree    with   the   majority’s   conclusion        with      respect     to   the

first prong of the analysis, that the methodology employed by

Drs. David and Behrman in determining the cause of Decedent’s

bronchopneumonia was reliable.           Plaintiff does not point to any

testimony    where    either   dentist      discussed       the   methodology       by

which he determined the cause of Decedent’s bronchopneumonia.

Further, I disagree with the majority’s conclusion regarding the

second prong of the analysis, that Drs. David and Behrman were

qualified to offer expert opinions as to the cause of Decedent’s

bronchopneumonia.        Plaintiff does not point to any testimony

indicating     that      either    dentist     possessed          the   requisite

“knowledge, skill, experience, training or education” to state

an opinion with any degree of certainty that it was Defendants’

conduct    that    caused   Decedent’s      bronchopneumonia.            In    other

words, I do not believe that a trial court abuses its discretion

as gatekeeper in excluding the opinion testimony of a witness
                                       -7-
concerning the cause of bronchopneumonia in a patient with a

complex     medical   history    simply   because   the   witness    testified

that   he    has   worked   in   the   health    care   profession    and   has

extensive experience in dental surgery, but otherwise provided

no testimony indicating that he has any expertise in determining

the cause of bronchopneumonia.               Accordingly, I would vote to

affirm the trial court’s decision to exclude this testimony.
