in the Court of Appeals 21 August 2019.
by Plaintiff from Order entered 23 July 2018 by Judge Beecher
R. Gray in Cabarrus County No. 16 CVS 508 Superior Court.
Law Group, P.A., by Donald S. Higley, II, and Lancaster and
St. Louis, PLLC, by Hilary A. St. Louis, for
Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane
Jones and Luke Sbarra, for defendants-appellees.
and Procedural Background
Mangan (Plaintiff) appeals from an Order entered 23 July 2018
granting summary judgment in favor of Defendants James S.
Hunter, DDS (Dr. Hunter) and James S. Hunter, DDS, P.A.
(collectively, Defendants) in this medical malpractice
action. The Record before us on appeal tends to establish the
began visiting Dr. Hunter for dental treatment in 1986 and
continued to be a regular patient until Dr. Hunter's
retirement in 2013. During the twenty- seven years that
Plaintiff saw Dr. Hunter for dental care, Plaintiff developed
temporomandibular joint disorder, migraines, and
fibromyalgia. She also developed bruxism (teeth grinding).
Plaintiff's last appointment with Dr. Hunter was on 17
April 2013. At that time, Dr. Hunter reported no dental
caries. Dr. Hunter did recommend a crown along
with continued use of Plaintiff's dental guard.
months later, in November 2013, Plaintiff visited a new
dentist, Dr. Sherrill Jordan, for routine dental care. Dr.
Jordan reported tooth erosion on nearly all of
Plaintiff's teeth and twelve cavities. Plaintiff received
a second opinion from Dr. Wells, whose opinion was very
similar to Dr. Jordan's. Plaintiff received treatment for
thirteen cavities in December 2013 by Dr. Wells. In February
2014, Plaintiff visited another new dentist, Dr. Jason Baker,
and received additional dental treatments in March 2014. Dr.
Baker referred Plaintiff to Dr. Napenas in May 2014, and Dr.
Napenas subsequently diagnosed her with atypical odontalgia.
Dr. Napenas informed Plaintiff that "treatment [for
atypical odontalgia] would include a life-long management for
the pain with similar medications as what she was already
taking for fibromyalgia." He prescribed Plaintiff an
antidepressant for nerve pain and stress management.
Plaintiff also alleged her primary care physician prescribed
her blood pressure medication as a result of the stress of
the situation. At the time of the filing of the Complaint,
Plaintiff was still seeing Drs. Baker and Napenas for
March 2015, Sharon Szeszycki, DDS (Dr. Szeszycki) was
contacted by Plaintiff's counsel about the present
action. Dr. Szeszycki, a dentist in the Chicago area, has
been working as an expert witness in the area of dental
malpractice since 2007. Around 10 March 2015, counsel for
Plaintiff mailed a letter to Dr. Szeszycki that indicated it
included a USB drive with Plaintiff's records. On 20
March 2015, Dr. Szeszycki reported, in her Affidavit Letter
to Plaintiff's counsel, "[a] reasonable and
meritorious cause for action exists with respect to James
Hunter DDS[.]" Dr. Szeszycki's Affidavit Letter
stated, in forming her opinion, she reviewed: "Mangan
timeline of events[, ] Dr. Baker letter[, ] Demand letter to
Luke Sbarra March 2015[, ] Baker treatment plan[, ] Perio
charting[, and] Mangan teeth pics." She continued to
find "Dr. Hunter failed to document any concerns he
might have had regarding the erosion issues during the
Patient's time as a patient in his practice for the
purposes of quantifying and analyzing the origin and
progression of this disease process."
February 2016, Plaintiff filed her Complaint alleging medical
malpractice against Defendants in Cabarrus County Superior
Court. In accordance with Rule 9(j) of the North Carolina
Rules of Civil Procedure, Plaintiff's Complaint alleged:
[A]ll medical records pertaining to Defendants'
negligence . . . have been reviewed by a person or persons
reasonably expected to qualify as an expert witness under
Rule 702 of the North Carolina Rules of Evidence and who
is/are willing to testify that the medical care did not
comply with the applicable standard of care.
accepted service on 13 April 2016 and submitted their Answer
to Plaintiff's Complaint on 13 June 2016. The parties
began discovery. On 27 April 2018, Plaintiff voluntarily
dismissed her claims against Jennifer Wells, DDS and Jennifer
Wells, DDS, P.A. d/b/a First Impressions Family Dentistry
August 2016, Dr. Szeszycki responded to Defendants' Rule
9(j) interrogatories. The relevant responses are as follows:
4. Specifically identify all documents you reviewed to form
your opinion about the medical care rendered by any
RESPONSE [Dr. Szeszycki]
I reviewed the following materials:
Mangan timeline of events
Dr. Baker letter
Demand letter to Luke Sbarra March 2015
Baker treatment plan
Mangan teeth pics
5. State with specificity the date you received the medical
records regarding Plaintiff, the date you actually reviewed
the medical care rendered, when and to whom you expressed
your opinions regarding the medical care Defendants provided
to Plaintiff, and whether you provided anyone a written,
verbal, or other report regarding your conclusions.
I received the materials on or about March 15, 2015
and began my review on that date. I continued my review on
March 17, 2015 and then prepared a written Affidavit on March
20, 2015 expressing my opinions. (R p. 48).
April 2018, Plaintiff designated Dr. Szeszycki as an expert
witness. Plaintiff submitted "Dr. Szeszycki is expected
to testify that Defendants breached the standard of care in
their care and treatment of [Plaintiff]" and that
"Dr. Szeszycki bases her opinions on her education and
training as well as her review of [Plaintiff's] medical
deposed Dr. Szeszycki on 10 May 2018. Dr. Szeszycki's
deposition revealed the following exchanges:
[Counsel for Defendants:] [W]hat information do you have that
you relied on that you do not have with you printed out . . .
[Dr. Szeszycki:] Okay. There is a Baker treatment plan, Baker
updated treatment plan. There was a demand letter to you.
There's Dr. Baker X-ray, Dr. Baker letter. There's a
file that says Gawthrop-Wells-Mangan. Another one that's
Hunter-Mangan, which I think is what I have with me because
that's his clinical notes, Dr. Hunter's clinical
notes, and then there is a Hunter, DDS, James condensed
version, which is his dep. Jordan DDS. Mangan timeline of
events. . . .
. . . .
[Counsel for Defendants:] This is, I believe, your responses
to the 9(j) discovery responses. Do you recall ...