213 N.C. App. 258
N.C. Ct. App.2011Background
- McKoy died of metastatic colon cancer on 30 April 2005; wrongful death claim filed 7 April 2007 against Beasley and Lumberton.
- Original complaint lacked Rule 9(j) certification; Judge Weeks dismissed without prejudice, allowing re-filing by 26 December 2007.
- Present action filed 20 December 2007; amended complaint filed 20 March 2009; Rule 9(j) and Rule 702 arguments pursued.
- Judge Sasser later held Brisson was overruled by Bass; he denied reconsideration; Judge Duke dismissed amended complaint with prejudice for failing Rule 9(j) and timeliness.
- Court addressed whether Rule 9(j) certification could be cured by later amendments and whether the challenge to Rule 9(j) constitutional issues was properly preserved.
- This appeal concerns whether defective initial pleadings could be cured by later compliant pleading and whether the constitutional challenge to Rule 9(j) was properly raised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 9(j) cure by later filing | Original complaint lacking 9(j) certification cannot be cured by a second filing. | Amendments and re-filings with 9(j) could salvage timely action under case law. | Amended complaint dismissed; defective original cannot be cured; Bass applied; Sasser’s Brisson ruling overruled. |
| Limitations and re-filing under 9(j) | Re-filed action timely under Rule 41(b) extension and subsequent 9(j) certification. | Timeliness not preserved; second filing outside limitations if original was defective. | Court held timely filing not preserved; Bass rationale applied; action barred. |
| Constitutionality of Rule 9(j) | Rule 9(j) is unconstitutional on its face and as applied. | Rule 9(j) constitutional; properly applied. | Constitutional challenge dismissed for lack of developed record. |
| Retroactive effect of 9(j) rulings and Brisson vs Bass | Brisson controls; 9(j) issues may be salvaged. | Bass controls; Brisson overruled. | Bass controls; Brisson overruled; 9(j) defect cannot be cured. |
Key Cases Cited
- Thigpen v. Ngo, 355 N.C. 198 (North Carolina Supreme Court, 2002) (9(j) strict pre-suit certification for medical malpractice actions)
- Ford v. McCain, 192 N.C.App. 667 (North Carolina Court of Appeals, 2008) (amendments after limitations must allege pre-limitations review)
- Bass v. Durham Cty. Hosp. Corp., 158 N.C.App. 217 (North Carolina Court of Appeals, 2003) (defective 9(j) complaint cannot be salvaged by later compliant filing within limitations)
- Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589 (North Carolina Supreme Court, 2000) (overruled by Bass on 9(j) timing in this context)
- Anderson v. Assimos, 356 N.C. 415 (North Carolina Supreme Court, 2002) (constitutional issue requires adequate factual record and pleaded focus)
- Morris v. SE Orthopedics Sports Med. & Shoulder Ctr., 199 N.C.App. 425 (North Carolina Court of Appeals, 2009) (de novo review of statute of limitations when no disputed facts)