UNPUBLISHED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Affirmed by unpublished per curiam opinion. 
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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Unpublished opinions are not binding precedent in this circuit.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 
6

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