Moore v. Proper, 726 S.E.2d 812

Moore sued Proper, O'Hearn, and Affordable Care for dental malpractice from a 16 Jan 2006 tooth extraction that allegedly fractured Moore's jaw.
The trial court dismissed under Rule 9(j) for failure to show a person reasonably expected to qualify as a Rule 702 expert who would testify the standard of care was violated.
Moore designated Dr. Joseph C. Dunn as her sole expert; Dunn had long active practice in dentistry but limited recent active clinical time and disputed numbers of days worked in 2005–2006.
The trial court granted summary judgment (and denied a Rule 702(e) qualification) without written findings; the Court of Appeals reversed, finding Dunn reasonably expected to qualify under Rule 702.
The North Carolina Supreme Court affirmed in part, holding Moore satisfied Rule 9(j)(1) by showing Dunn could reasonably be expected to qualify under Rule 702(b)(2), and remanded for further proceedings consistent with this opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Moore satisfied Rule 9(j)(1) by showing a witness reasonably expected to qualify under Rule 702	Moore's complaint showed Dunn could reasonably be expected to qualify under Rule 702(b)(2)	Dunn did not reasonably qualify under Rule 702(b)(2) given his limited active clinical practice	Yes; Moore satisfied Rule 9(j)(1) and the claim survives 9(j) scrutiny
How Rule 702(b)(2) defines active clinical practice and majority time	Dunn's extensive career supports active clinical practice and substantial professional time	Active practice was not established; time spent was too uncertain	Court adopts three-part test clarifying active practice and majority time requirements

Thigpen v. Ngo, 355 N.C. 198 (N.C. 2002) (strict certification for medical malpractice complaints; gatekeeping by Rule 9(j))
Bullard v. State, 312 N.C. 129 (N.C. 1984) (trial court discretion under Rule 702; admissibility depends on testimony)
Forbis v. Neal, 361 N.C. 519 (N.C. 2007) (summary judgment and inference standards; role of facts in Rule 56)
Trapp v. Maccioli, 129 N.C.App. 237 (N.C. App. 1998) (reasonable diligence at Rule 9(j) time; discovery can illuminate later inquiry)
Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C.App. 238 (N.C. App. 2009) (Rule 9(j) certification supported by facts; later discovery may undermine)
Ford v. McCain, 192 N.C.App. 667 (N.C. App. 2008) (reasonable diligence and Rule 9(j) assessment at filing)
Cornett v. Watauga Surgical Grp., 194 N.C.App. 490 (N.C. App. 2008) (analysis of professional time and activity for Rule 702(b)(2))
Turner v. Duke Univ., 325 N.C. 152 (N.C. 1989) (framework for evaluating expert qualifications and duties)
Ewbank v. Lyman, 170 N.C. 505 (N.C. 1915) (early consideration of reasonableness in diligence principle)
In re Foreclosure of Vogler Realty, Inc., N.C. , 722 S.E.2d 459 (N.C. 2012) (context for evidentiary standards and appellate review)