Bailey And Thomas - Attorneys and Counselors at Law

3069 Trenwest Drive, Suite 100 · Winston-Salem, NC 27103
Phone: 336.725.8366 · Fax: 336.725.9206

Insurance Talk

North Carolina Tort Reform

The North Carolina General Assembly made significant changes to North Carolina’s tort laws effective October 1, 2011.  These changes affect the admissibility of expert testimony, the amount Plaintiffs may claim for medical expenses, and the right to seek separate trials on issues of  liability and compensatory damages.

North Carolina has changed the standards by which expert testimony may be admitted into evidence.  The revised rule now includes additional language requiring that the testimony be based on sufficient facts or data, that the testimony is the product of reliable principles and methods and that the witness has applied the principles and methods reliably to the facts of the case.  This change is reflected in the revision to Rule 702(a) of the North Carolina Rules of Evidence and is effective as to cases commenced on or after October 1, 2011.  In actions commenced before October 1, 2011, our courts will apply the old rule which allowed the court broader discretion to admit expert testimony where the judge concludes scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue and the expert is qualified by knowledge, skill, experience, training, or education.  The new rule is substantially similar to Federal Rule of Evidence 702 which is already followed by a majority of state courts.

North Carolina now limits the amount of medical expenses an injured Plaintiff may recover to the amount actually paid or payable to the medical provider.  The change is reflected in a new Rule of Evidence, Rule 414, and applies to actions commenced on or after October 1, 2011. The Rule limits admission of evidence of medical expenses to amounts actually paid or that must be paid to satisfy medical bills, regardless of the source of payment. Plaintiffs will no longer be allowed to introduce evidence of the gross amount of medical bills without evidence of contractual and statutory “write downs.” The new rule does not change the effect of the collateral source rule, which provides that a Defendant is not entitled to credit for sums paid by a third party for the benefit of the Plaintiff.  In actions commenced prior to October 1, 2011, Plaintiffs will still be allowed to seek the gross amount of medical bills even though no one is responsible for payment of the amount “written down” pursuant to the medical provider’s contract with a health insurer.

A tort Defendant may now ask the Court to order separate trials on the issues of compensatory damages and liability where the Plaintiff seeks damages in excess of $150,000.00.  New sub paragraph (b)(3) of Rule 42 of the North Carolina Rules of Civil Procedure mandates that upon the motion of any party, the Court shall order separate trials unless the Court, for good cause shown, orders a single trial. Evidence relating solely to compensatory damages shall not be admitted until the Judge or Jury has determined that the Defendant is liable.  The same Judge or Jury that determines the liability issue shall determine the damages issue.  This change is effective for cases commenced on or after October 1, 2011. In cases filed before October 1, 2011, Rule 42(b)(1) gives the Trial Court discretion whether or not to order separate trials of any claim, cross-claim, counterclaim, third party claim or issue.  Rule 42(b)(1) does not require the Court to show good cause in order to order a single trial, address admission of damages evidence, or require use of the same trier of fact.  Rule 42(b)(1) remains applicable in cases where the damages sought are less than $150,000.00. It is worth noting that North Carolina General Statute Section 1D-30 provides for separate trials on the issues of compensatory damages and punitive damages upon a Defendant’s motion.

The North Carolina tort reform laws also made significant changes to medical malpractice laws. In short, the medical malpractice changes include a limit on certain non-economic damages in cases involving more than simple negligence, introduction of the “clear and convincing” standard of evidence in cases of medical emergency, a limitation on the tolling of the statute of limitations for minor Plaintiffs, mandatory jury instructions regarding definitions, and other modifications to statutory definitions and standards.

 

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