The opinion of the court was delivered by: Orr, Justice.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 127 N.C. App. 281, 488 S.E.2d 621 (1997), vacating the order denying the Rule 60(b)(1) motion entered by Greeson, J., on 24 October 1996 in Superior Court, Guilford County, and remanding the case for a new hearing. Heard in the Supreme Court 9 March 1998.
This case addresses whether Rule 60(b)(1) of the North Carolina Rules of Civil Procedure may be used to provide relief from sanctions imposed upon plaintiffs under Rule 26(f1) of the North Carolina Rules of Civil Procedure for their attorney's failure to designate experts by a court-ordered deadline. Plaintiffs initiated this medical malpractice suit against Dr. William S. Farabow and High Point Ob-Gyn Associates, Inc., on 11 August 1995, alleging that defendants negligently performed surgery by unnecessarily removing plaintiff's female reproductive organs and perforating her bladder. On 8 September 1995, defendants filed an answer in which they denied all allegations, and a Rule 26(f1) motion in which they requested that the court conduct a discovery-scheduling conference. On 4 October 1995, the court entered a discovery-scheduling order requiring that the parties designate expert witnesses by specific dates; plaintiffs were ordered to designate expert witnesses on or before 30 November 1995 and defendants were ordered to identify their experts by 15 February 1996. The court explained that failure to designate experts in accordance with the order would result in the expert not being allowed to testify at trial.
On 19 February 1996, defendants filed a summary judgment motion pursuant to Rule 56 of the North Carolina Rules of Civil Procedure in which they argued that summary judgment should be granted because no genuine issue as to any material fact existed and defendants were entitled to judgment as a matter of law. In the motion, defendants asserted that plaintiffs had failed to designate their expert witnesses by the scheduling order deadline, 30 November 1995, and that plaintiffs still had not named any experts to testify by the date of the summary judgment motion. Defendants asserted that pursuant to Rule 26(f1) and the scheduling order, experts not designated by the order's deadline should not be permitted to testify at trial.
In support of the summary judgment motion, defendants also submitted an affidavit by Dr. G. Terry Stewart, a specialist in obstetrics and gynecology. In the affidavit, Dr. Stewart stated that he had experience performing hysterectomies and treating patients similar to plaintiff Mrs. Briley, and that after having reviewed the records of Dr. Farabow's treatment of plaintiff, that he believed that "Dr. Farabow met or exceeded the standard of practice in every respect, before, during, and after the surgery performed on Mrs. Briley." Dr. Stewart explained that the complication plaintiff experienced was a risk of the procedure which was performed on her that can and does occur without negligence. Dr. Stewart stated that, in his opinion, plaintiff's complication occurred without any negligence by defendants.
On 5 March 1996, plaintiffs filed an expert witness designation for the first time, identifying two obstetrician-gynecologists, Dr. Harlan Giles and Dr. Paul D. Gatewood, to testify at trial. On 6 March 1996, plaintiffs then filed an opposition to defendants' summary judgment motion and submitted an affidavit of plaintiff Mrs. Bernice Briley. Mrs. Briley stated in the affidavit that a report by the plaintiffs' expert witness, Dr. Paul Gatewood, was attached and adopted by the affidavit, and requested that the report be "incorporated herein by reference the same as if at this point it were set forth in it's [sic] entirety." Dr. Gatewood had rendered an opinion in the report that plaintiffs' negligence allegations were provable.
On 11 March 1996, defendants filed a motion to strike plaintiffs' tardy expert witness designation. A hearing was held as to defendants' motion to strike and defendants' motion for summary judgment at the 29 April 1996 session of Superior Court, Guilford County. On 1 May 1996, defendants filed an objection to the admissibility of plaintiff's affidavit and Dr. Gatewood's report arguing that: (1) Dr. Gatewood's report should not be considered because he was not designated as an expert by the scheduling order deadline; (2) the affidavit of plaintiff, to the extent that it referred to Dr. Gatewood's report, was not based on personal knowledge; and (3) Dr. Gatewood's report failed to establish that he qualified as an expert. Defendants thus asked the court to sustain their objection and exclude Ms. Briley's affidavit and Dr. Gatewood's report.
On 9 May 1996, the court granted defendants' motion to strike plaintiffs' tardy expert witness designation pursuant to Rule 26(f1). In a separate order on 9 May 1996, the court also granted defendants' motion for summary judgment. In the order granting summary judgment, the court stated that "having granted the defendants' motion to strike plaintiffs' expert designation, and having sustained defendants' objection to the affidavit of Mrs. Briley and the unverified report of Dr. Gatewood, the Court finds that there is no genuine issue as to any material fact, and that defendants are entitled to judgment as a matter of law." On 10 May 1996, plaintiffs filed a notice of appeal only of the order striking the witness designation. Plaintiffs did not file a notice of appeal of the order granting summary judgment.
On 9 July 1996, plaintiffs filed a motion with the trial court under Rule 60(b)(1) of the North Carolina Rules of Civil Procedure requesting that the trial court grant relief from its orders granting summary judgment and the motion to strike the designation. Under Rule 60(b)(1), relief from a prior order or judgment may be granted if the party establishes that the order or judgment was mistakenly entered due to the party's "[m]istake, inadvertence, surprise, or excusable neglect." N.C.G.S. § 1A-1, Rule 60(b)(1) (1990). In this case, plaintiffs argued that they should be provided relief from the two prior orders because their trial attorney's failure to designate their expert witnesses by the scheduling order deadline was "excusable neglect" under Rule 60(b)(1). Plaintiffs stated that their attorney had stopped preparing discovery, including the expert witness designation, under the mistaken assumption that "the parties had agreed to informally delay further discovery" since settlement Discussions had been initiated. The summary judgment order should thus be stricken because it was based at least in part on the allegedly mistaken order striking the expert designation.
On 7 August 1996, defendants filed a response to the Rule 60(b)(1) motion. In the response, defendants stated that "there was absolutely no Discussion or agreement about putting discovery on hold" on 1 December 1995 and that Ms. Young, plaintiffs' attorney, was told settlement was unlikely. On 9 October 1996, a hearing was held in Superior Court, Guilford County, and on 24 October 1996, the trial court entered an order denying plaintiffs' Rule 60(b)(1) motion. In the order, the court held that plaintiffs' failure to designate the experts was due to the unexcused negligence of plaintiffs' attorney rather than to excusable neglect. The court made a finding that plaintiffs' counsel "did not . . . offer any excuse for the late designation" and did not request an extension of time to file after the deadline. The court concluded therefore that plaintiffs did not qualify for relief because the "failure to designate expert witnesses as required by a Rule 26(f1) order, due to inexcusable neglect of counsel, does not constitute excusable neglect under Rule 60(b)(1)." Also, the court stated that Rule 26(f1), which requires identification of medical experts within certain time periods, was enacted "to provide for the prompt and orderly completion of expert witness discovery in medical malpractice cases so as to avoid delay and surprise." The court stated that Rule 60(b)(1) should not be used to provide relief from sanctions which the legislature intended to be imposed under Rule 26(f1). Finally, the trial court held that plaintiffs did not qualify for relief under Rule 60(b)(1) of the order granting defendants' summary judgment. The court stated that even if it reversed the order striking the witness designation, plaintiffs still did not have evidence to defeat defendants' motion.
On 5 November 1996, plaintiffs filed an additional notice of appeal with the Court of Appeals in which they appealed the denial of the Rule 60(b)(1) motion. The Court of Appeals reversed the trial court decision and vacated the Rule 60(b)(1) order denying plaintiffs' relief. The Court of Appeals explained that reversal of the order was required because the trial court had applied the "incorrect legal standard" in determining whether the conduct constituted "excusable neglect" under Rule 60(b)(1). Briley v. Farabow, 127 N.C. App. 281, 284, 488 S.E.2d 621, 624 (1997). The court stated that the trial court should have made findings of fact regarding "whether plaintiffs' behavior was excusable or inexcusable, not whether their attorneys' behavior was excusable or inexcusable." Id. Thus, the court remanded the case for a new hearing on all issues in the Rule 60(b)(1) motion.
On 23 September 1997, defendants petitioned this Court for discretionary review pursuant to N.C.G.S. § 7A-31, which we granted on 6 November 1997. For the reasons which follow, we hold that the trial court's order denying plaintiffs relief under Rule 60(b)(1) was proper. Accordingly, we reverse the Court of Appeals' decision and reinstate the trial court's order.
Plaintiffs argue that they should be relieved under Rule 60(b)(1) of the order striking their expert witness designation. Plaintiffs assert that the order granting summary judgment should also be stricken because it was based on the order striking the expert witness designation. We shall address whether plaintiffs should be provided relief from the summary judgment order under Rule 60(b)(1) first. We note initially, however, that plaintiffs did not file a notice of appeal of the summary judgment order. Thus, it is clear that plaintiffs are attempting to use the Rule 60(b)(1) motion to gain appellate review of the summary judgment order. Still, we address the issue here because we have determined that even if the Rule 60(b)(1) motion should have been granted and thus, the designation not excluded, plaintiffs still would not prevail on the summary judgment motion.
Plaintiffs essentially argue that if the expert witness designation had been considered in determining whether to grant summary judgment, plaintiffs could have defeated defendants' summary judgment motion. Summary judgment is granted if the moving party shows that there is no genuine issue of material fact for trial and it is entitled to judgment as a matter of law, and the nonmoving party fails to meet its burden to come forward with a forecast of evidence establishing that a genuine issue of material fact exists. Vassey v. Burch, 301 N.C. 68, 72-73, 269 S.E.2d 137, 140 (1980). The moving party bears the initial burden of coming forward with a forecast of evidence tending to establish that no triable issue of material fact exists. Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 910 (1998). Once this burden is met, then 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.'" Id. at 526, 495 S.E.2d at 911 (quoting Collingwood v. General Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)) (alteration in original).
In the case sub judice, the trial court determined that summary judgment for defendants was proper because there was no genuine issue as to any material fact and defendants were entitled to judgment as a matter of law. Defendants' forecast of evidence tended to show that defendant Dr. Farabow met the applicable standard of care in performing surgery upon plaintiff and that defendants were not negligent. Defendants submitted an affidavit by their expert, Dr. G. Terry Stewart, in which he stated that he was familiar with the standard of care; that he had performed ...