                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-6527


TIMOTHY HINES,

                 Plaintiff - Appellant,

          v.

CORRECT CARE SOLUTIONS, LLC; BRANDI BURNETTE; JAMES PENCE,

                 Defendants - Appellees,

          and

EDWARD J. MCMAHON, individually and in his official
capacity as sheriff of New Hanover County, North Carolina;
CAPTAIN MARTY ADAMS, individually and in his official
capacity as Captain and Detention Division Commander, New
Hanover County Sheriff's Department; NEW HANOVER COUNTY,
NORTH CAROLINA; GEORGE BENYA, individually and in his
official capacity as Deputy United States Marshal; UNITED
STATES OF AMERICA,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:10-cv-00250-BO)


Submitted:   October 15, 2014                Decided:   March 17, 2015


Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Keith L. Edmiston, GRIBBLE CARPENTER & ASSOCIATES, Maryville,
Tennessee, for Appellant.    Jennifer B. Milak, TEAGUE CAMPBELL
DENNIS & GORHAM, LLP, Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Timothy Hines, a federal inmate in the New Hanover County

Detention       Center         in    North        Carolina,          commenced       this     action

against Correct Care Solutions, LLC, and two of its employees

for medical malpractice under North Carolina law. ∗                                       He alleged

that       Dr. James       Pence,     the        Medical        Director     at     the    Detention

Center, and Brandi Burnette, the Clinical Director, failed to

ensure       that     he      receive       his       anti-rejection           medication       with

sufficient       regularity           to    prevent         his      body    from    rejecting     a

kidney transplant that he had received before his detention.                                      As

a   result,         he     alleged,         he     was      forced      to     resume       dialysis

treatments.              He    asserted      that         the    defendants       “breached      the

accepted standard of care for members of their profession with

similar       skill      and    training         in       Wilmington,       North    Carolina     or

similar       communities”           and    demanded         $3 million        in    compensatory

damages and $3 million in punitive damages, as well as other

related relief.

       The     defendants           filed    a    motion        to    dismiss,      arguing     that

Hines failed to allege elements required by North Carolina law

when bringing a medical malpractice claim.                                  In particular, they

claim that Hines failed to satisfy North Carolina Rule of Civil

       ∗
       As Hines also asserted claims arising under federal law,
the district court exercised supplemental jurisdiction over his
state-law medical malpractice claim under 28 U.S.C. § 1367.



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Procedure 9(j), which imposes a heightened pleading requirement.

Rule 9(j) provides:

            Any complaint alleging medical malpractice by a
       health care provider . . . in failing to comply with
       the   applicable  standard   of  care . . . shall  be
       dismissed unless . . . [t]he pleading specifically
       asserts that the medical care and all medical records
       pertaining   to  the   alleged   negligence that  are
       available to the plaintiff after reasonable inquiry
       have been reviewed by a person who is reasonably
       expected to qualify as an expert witness under
       Rule 702 of the Rules of Evidence and who is willing
       to testify that the medical care did not comply with
       the applicable standard of care . . . .

N.C.   Gen.   Stat.   § 1A-1,     Rule 9(j)(1)     (emphasis    added).     The

North Carolina Supreme Court has made clear that the reference

in Rule 9(j) to “Rule 702 of the Rules of Evidence” is to North

Carolina Rule of Evidence 702, not Federal Rule of Evidence 702.

See, e.g., Moore v. Proper, 726 S.E.2d 812, 816 (N.C. 2012).

       In response to the defendants’ motion, Hines contended that

Rule 9(j)     did   not   “specifically    refer    to   the   North   Carolina

version of Rule 702, but instead merely refer[red] to ‘Rule 702

of the Rules of Evidence’” and thus that the Rule, “on its face,

[did] not require specification to” the North Carolina Rule.                He

further argued that his complaint satisfied “the purpose and

literal   requirements”      of   Rule 9(j).       Hines   acknowledged    that

there was a dispute as to whether his expert’s qualifications

complied with North Carolina Rule of Evidence 702 because it

could be argued that his expert had not spent a majority of his


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time   within       the   past     year        in    active     clinical      practice,        as

required by the Rule.             He argued, nonetheless, that there was no

dispute      that   his    expert       would        qualify    under    Federal       Rule of

Evidence 702.

       The    district      court        granted       the     defendants’          motion     to

dismiss,      concluding     that        because       the     complaint      did    not     meet

Rule 9(j)’s         requirements,              it      was      “both      facially           and

substantively        deficient”          and    that        therefore    it     had     to     be

dismissed.

       On    appeal,      Hines    no     longer       argues,      as   he    did     in     the

district      court,      that    Rule 9(j)           contemplates       compliance          with

Federal      Rule 702.       Instead,           he    argues     that    the    complaint’s

reference to Federal Rule 702 was “clearly inadvertent” and that

the district court should have granted him leave to amend the

complaint because the error “did not cause any prejudice and did

not destroy the principal purpose of Rule 9(j).”                           He also argues

that his expert’s time spent supervising physicians, physicians’

assistants, and nurses “is in fact clinical practice,” which,

when   counted,      would       bring    his       total    time   in   active       clinical

practice in compliance with the qualifications requirement of

North Carolina Rule of Evidence 702.                     We reject both arguments.

       First, Hines’ argument that his complaint’s reference to

Federal Rule 702 was “clearly inadvertent” must be rejected.                                   In

his response to the defendants’ motion in the district court

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that the malpractice claim should be dismissed because of the

complaint’s reference to Federal Rule 702, Hines did not claim

that the reference was inadvertent.                       Instead, he maintained that

“the text of Rule 9(j) [did] not specifically refer to North

Carolina version of Rule 702, but instead merely refer[red] to

Rule 702 of the Rules of Evidence.                       Thus, on its face it did not

require      a     specification        to    the        North    Carolina       version      of

Rule 702.”         It is apparent that to accept Hines’ inadvertence

argument now would prejudice the defendants, in that Hines would

be allowed to argue for a more lenient pleading standard in the

district court and then, upon failing, to claim disingenuously

that his allegations were merely inadvertent and seek leave to

amend.        We    cannot    accept         this    type        of    gamesmanship      as    a

legitimate argument.

       Moreover,      Hines    is       wrong       to     suggest       that    his    expert

satisfies the requirement of North Carolina Rule of Evidence 702

that he have spent “a majority of his . . . professional time”

in the year preceding the alleged medical malpractice in “active

clinical practice” in the same health profession as the party

against      whom    the    testimony        will    be     offered.            See    N.C.   R.

Evid. 702(b)(2).            Hines’   complaint            did    not     adequately     allege

that   his       expert    spent   “a    majority”          of    his     time   in    “active

clinical         practice,”    maintaining           only         that     the    “majority”

requirement was satisfied by including the time his expert spent

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supervising       physicians’          assistants      and      nurse       practitioners.

But,    under     North     Carolina       law,       supervising          others    is     not

considered to be “active clinical practice.”                          See FormyDuval v.

Bunn,     530    S.E.2d     96,     103    (N.C.       Ct.     App.     2000)       (defining

“[c]linical” in the context of Rule 702 to mean “based on or

pertaining to actual experience in the observation and treatment

of patients” (emphasis added)).                   Hines’ failure to comply with

the requirements of Rule 702 -- and thus Rule 9(j) -- in his

medical malpractice claim is a complete barrier to recovery in

North    Carolina.         See    Barringer      v.    Forsyth       Cnty.    Wake    Forest

Univ. Baptist Med. Ctr., 677 S.E.2d 465, 477 (N.C. Ct. App.

2009) (stating that Rule 9(j) “unambiguously requires a trial

court to dismiss a complaint if the complaint’s allegations do

not     facially     comply       with     the     rule’s          heightened       pleading

requirements”).

       Finally, the requirements of North Carolina Rule 9(j) and

North Carolina Rule of Evidence 702 are not a trivial deviation

from    the     requirements      of    Federal    Rule       of    Evidence 702.           The

North Carolina General Assembly specifically enacted Rule 9(j)

with    its     reliance    on    North     Carolina         Rule 702       “in     part,   to

protect       defendants     from      having     to    defend        frivolous      medical

malpractice       actions    by     ensuring      that       before    a    complaint       for

medical malpractice is filed, a competent medical professional

has reviewed the conduct of the defendants and concluded that

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the   conduct   did   not   meet   the       applicable   standard   of   care.”

Estate of Waters v. Jarman, 547 S.E.2d 142, 144 (N.C. Ct. App.

2001) (quoting Webb v. Nash Hosps., Inc., 516 S.E.2d 191, 194

(N.C. Ct. App. 1999)).

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                      AFFIRMED




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