{ "id": 4181130, "name": "MONA COUSART, Individually and as the Guardian for Minor Carmen Cousart; and CAMERON COUSART, Plaintiffs v. THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, CAROLINAS PHYSICIANS NETWORK, INC., CHARLOTTE OBSTETRICS AND GYNECOLOGIC ASSOCIATES, P.A., Jointly and Severally, Defendants", "name_abbreviation": "Cousart v. Charlotte-Mecklenburg Hospital Authority", "decision_date": "2011-01-18", "docket_number": "No. COA09-477", "first_page": "299", "last_page": "310", "citations": [ { "type": "official", "cite": "209 N.C. App. 299" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "661 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641006 ], "year": 2008, "pin_cites": [ { "page": "270", "parenthetical": "\"A non-moving party cannot create an issue of fact to defeat summary judgment simply by filing an affidavit contradicting his prior sworn testimony.\" (internal quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0264-01" ] }, { "cite": "663 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641536 ], "year": 2008, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0450-01" ] }, { "cite": "624 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634835 ], "year": 2006, "pin_cites": [ { "page": "383", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0380-01" ] }, { "cite": "664 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641599 ], "year": 2008, "pin_cites": [ { "page": "334", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0331-01" ] }, { "cite": "652 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639686 ], "year": 2007, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0302-01" ] }, { "cite": "364 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "729-30", "parenthetical": "stating that \"failure to object to form or sufficiency of pleadings and affidavits waives objection on summary judgment\" and an \"affidavit not conforming to Rule 56(e) is subject to motion to strike,\" but objection is waived absent the motion" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 746", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359114 ], "year": 1988, "pin_cites": [ { "page": "748", "parenthetical": "stating that \"failure to object to form or sufficiency of pleadings and affidavits waives objection on summary judgment\" and an \"affidavit not conforming to Rule 56(e) is subject to motion to strike,\" but objection is waived absent the motion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0746-01" ] }, { "cite": "573 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250282 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0372-01" ] }, { "cite": "249 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "732", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549915 ], "year": 1978, "pin_cites": [ { "page": "9-10", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0001-01" ] }, { "cite": "916 F.2d 970", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538732 ], "weight": 7, "year": 1990, "pin_cites": [ { "page": "974" }, { "page": "974-75" }, { "page": "975", "parenthetical": "citation omitted" }, { "page": "975" }, { "page": "973" } ], "opinion_index": 0, "case_paths": [ "/f2d/916/0970-01" ] }, { "cite": "691 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "190 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157901 ], "year": 2008, "pin_cites": [ { "page": "539", "parenthetical": "\"A non-moving party cannot create an issue of fact to defeat summary judgment simply by filing an affidavit contradicting his prior sworn testimony.\" (internal quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0532-01" ] }, { "cite": "571 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "7", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250280 ], "year": 2002, "pin_cites": [ { "page": "440", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0435-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "915", "parenthetical": "\"[Our Supreme] Court has specifically held that an expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\" (internal quotation marks omitted)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230", "parenthetical": "\"[Our Supreme] Court has specifically held that an expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\" (internal quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "692 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "123", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "278 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170143 ], "year": 1981, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0255-01" ] }, { "cite": "678 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "191 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158984 ], "year": 2008, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0367-01" ] }, { "cite": "311 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "310 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402972 ], "year": 1984, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0227-01" ] }, { "cite": "539 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "319", "parenthetical": "quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439355 ], "year": 2000, "pin_cites": [ { "page": "10", "parenthetical": "quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0001-01" ] }, { "cite": "175 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352454 ], "year": 2006, "pin_cites": [ { "page": "477", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0474-01" ] }, { "cite": "363 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "206" }, { "page": "206" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358281 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "387" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0382-01" ] }, { "cite": "591 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2984985 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0137-01" ] }, { "cite": "582 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189113 ], "year": 2003, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0705-01" ] }, { "cite": "191 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160029 ], "year": 2008, "pin_cites": [ { "page": "293", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0290-01" ] }, { "cite": "186 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159238 ], "year": 2007, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0624-01" ] } ], "analysis": { "cardinality": 1164, "char_count": 27980, "ocr_confidence": 0.75, "pagerank": { "raw": 8.44501954437063e-08, "percentile": 0.48474023002885497 }, "sha256": "08d980d55cb16d9bc2c1fa723987cb4b8a51cd1528a7ffbdf0e4ced7cf341db3", "simhash": "1:ffe76e00059dad72", "word_count": 4386 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and STROUD concur." ], "parties": [ "MONA COUSART, Individually and as the Guardian for Minor Carmen Cousart; and CAMERON COUSART, Plaintiffs v. THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, CAROLINAS PHYSICIANS NETWORK, INC., CHARLOTTE OBSTETRICS AND GYNECOLOGIC ASSOCIATES, P.A., Jointly and Severally, Defendants" ], "opinions": [ { "text": "BEASLEY, Judge.\nMona Cousart (Plaintiff Mona), as the guardian for minor Carmen Cousart (Plaintiff Carmen), and Cameron Cousart (Plaintiff Cameron), (collectively Plaintiffs), appeal from an \u201corder and judgment\u201d granting summary judgment in favor of The CharlotteMecklenburg Hospital Authority d/b/a Carolinas Medical Center (CMC), Carolinas Physicians Network, Inc. (Carolinas Physicians), and Charlotte Obstetrics and Gynecologic Associates, P.A. (Charlotte OB-GYN) (collectively Defendants) and dismissing Plaintiffs\u2019 claims, including four counts of medical negligence and a loss of consortium claim by Plaintiff Cameron, with prejudice. The dispositive question in this case is whether there is an issue of material fact concerning proximate causation. Because Plaintiffs\u2019 expert witness provided affidavits that contradicted his deposition testimony and are therefore insufficient to establish that any breaches in the standard of care caused the injuries complained of, and lacking any other expert testimony on this essential element, we affirm the trial court\u2019s ruling.\nI. Background\nPlaintiffs filed a complaint dated 17 January 2007 against Defendants, seeking redress for medical negligence and alleging the following facts. On 23 September 2003, Plaintiff Mona was admitted to CMC to give birth to Plaintiff Carmen. Plaintiff Mona was in labor when Leslie Hansen-Lindner, M.D., (Dr. Hansen-Lindner), an obstetrician and gynecologist employed with Charlotte OB-GYN and Carolinas Physicians and an agent of CMC, arrived and instructed Plaintiff Mona \u201cto push to deliver the baby.\u201d After several minutes of pushing, Plaintiff Mona was having difficulty in delivering Plaintiff Carmen. The complaint further alleges that CMC nurses and Dr. HansenLindner applied fundal pressure on Plaintiff Mona to facilitate delivery of the baby. Dr. Hansen-Lindner, in an attempt to extract Plaintiff Carmen, allegedly placed a Kiwi vacuum on Plaintiff Carmen\u2019s head, but the baby\u2019s shoulders became lodged in the birth canal. 'Dr. Hansen-Lindner then applied traction, pulling, rotation, or other mechanical forces to the head and body of Plaintiff Carmen, which resulted in delivery. However, Plaintiff Carmen sustained a brachial plexus/shoulder dystocia injury to her right arm, which Plaintiffs contend was the result of excessive forces applied during the complicated delivery.\nPlaintiffs\u2019 complaint made a number of allegations of negligence on the part of Dr. Hansen-Lindner and other unnamed nurses and medical staff who assisted her, as employees or agents of Defendants Plaintiffs\u2019 primary allegations of negligence which are relevant for purposes of this opinion were that Dr. Hansen-Lindner and/or unnamed medical or nursing personnel of Defendants were negligent in the following ways: telling Plaintiff Mona to push to deliver Plaintiff Carmen; applying fundal pressure to facilitate delivery; pulling Plaintiff Carmen down the birth canal with the vacuum extractor until her shoulders became lodged in the birth canal; applying excessive traction, pulling, rotation or other mechanical forces to the head and body of Plaintiff Carmen in order to facilitate delivery; failing to properly perform rotational maneuvers for delivering Plaintiff Carmen; failing to recognize the warning signs that Plaintiff Mona\u2019s baby would be large; failing to perform adequate ultrasounds; failing to adequately monitor fetal growth; failing to recognize the signs and symptoms of the risk of shoulder dystocia; failing to perform a Caesarean section after it became apparent the labor had stalled and vaginal delivery would not be safe for Plaintiffs Mona and Carmen; failing to use reasonable care and diligence in the treatment of Plaintiffs Mona and Carmen; and failing to practice within the standard of care for an obstetrician in the same or similar community. Plaintiffs alleged that these acts of negligence by Dr. Hansen-Lindner and/or unnamed medical or nursing personnel of Defendants proximately caused Plaintiff Carmen\u2019s injuries and have resulted in pain and suffering and medical costs and will require additional medical treatment throughout her life.\nOn 7 March 2007, Defendants filed an answer, wherein they denied negligence and moved to dismiss the complaint due to Plaintiffs\u2019 failure to comply with the requirements of N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j). Defendants\u2019 answer also included a motion to dismiss the complaint for insufficiency of process and insufficiency of service of process pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b)(4) and (5) respectively. On 10 August 2007, the trial court entered a discovery scheduling order, setting forth a schedule for the designation of expert witnesses and the completion of discovery for trial. Depositions of the following witnesses were taken: Leslie Hansen-Lindner, M.D.; William MacDonald, M.D.; Robert Wicker, M.D.; Maureen Nelson, M.D.; Ashley Proctor, R.N.; and Amy Petty, R.N. On 14 January 2008, pursuant to the discovery scheduling order, Plaintiffs designated the expert witnesses whom they were likely to call to testify at trial: Martin A. Allen, M.D., a board-certified obstetrician and gynecologist in Lexington, North Carolina; Linda Peterson Walls, R.N., a registered nurse experienced in the fields of labor and delivery; and Anthony M. Gamboa, Jr., Ph.D., M.B.A., an economist expected to offer opinions as to Plaintiff Carmen\u2019s vocational impairment. Dr. Allen, Ms. Walls, and Dr. Gamboa were deposed on 18 April 2008, 16 April 2008, and 19 May 2008, respectively. Defendants\u2019 expert witnesses, Sandra K. Rayburn, R.N., Ph.D. and Robert K. DeMott, M.D., were deposed on 28 August 2008 and 3 September 2008, respectively.\nOn 14 October 2008, Defendants filed a motion for summary judgment, which was heard on 20 November 2008. By order dated 1 December 2008, the trial court granted Defendants\u2019 motion for summary judgment and dismissed all of Plaintiffs\u2019 claims with prejudice. Plaintiffs filed notice of appeal on 29 December 2008.\nII. Standard of Review\nPlaintiffs appeal from the order granting summary judgment in favor of Defendants and dismissing Plaintiffs\u2019 complaint in its entirety.\nSummary judgment is appropriate if \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c). A trial court\u2019s grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party.\nSturgill v. Ashe Mem\u2019l Hosp., Inc., 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007). Upon a motion for summary judgment, \u201c[t]he moving party carries the burden of establishing the lack of any triable issue . . . and may meet his or her burden by proving that an essential element of the opposing party\u2019s claim is nonexistentf.]\u201d Lord v. Beerman, 191 N.C. App. 290, 293, 664 S.E.2d 331, 334 (2008) (internal quotation marks and citation omitted). If met, the burden shifts to the nonmovant to produce a forecast of specific evidence of its ability to make a prima facie case, Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 708, 582 S.E.2d 343, 345 (2003), aff\u2019d per curiam, 358 N.C. 137, 591 S.E.2d 520 (2004), which requires medical malpractice plaintiffs to prove, in part, that the treatment caused the injury. Not only must it meet our courts\u2019 definition of proximate cause, but evidence connecting medical negligence to injury also \u201cmust be probable, not merely a remote possibility.\u201d White v. Hunsinger, 88 N.C. App. 382, 387, 363 S.E.2d 203, 206 (1988).\nIII. Discussion\nIn their sole argument on appeal, Plaintiffs contend that \u201cthe trial court committed reversible error when it allowed Defendants\u2019 motion for summary judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 56\u201d because expert witness deposition testimony established proximate causation of the injury to Plaintiff Carmen. We disagree.\nA medical negligence plaintiff must offer evidence that establishes the following essential elements: \u201c(1) the applicable standard of care; (2) a breach of such standard of care by the defendant; (3) the injuries suffered by the plaintiff were proximately caused by such breach; and (4) the damages resulting to the plaintiff.\u201d Purvis v. Moses H. Cone Mem\u2019l Hosp. Serv. Corp., 175 N.C. App. 474, 477, 624 S.E.2d 380, 383 (2006) (internal quotation marks and citation omitted). This Court has defined proximate cause as\n\u201ca cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiffs injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.\u201d\nWilliamson v. Liptzin, 141 N.C. App. 1, 10, 539 S.E.2d 313, 319 (2000) (quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)) (citation omitted). Whether medical negligence plaintiffs can show causation depends on experts. See Azar v. Presbyterian Hosp., 191 N.C. App. 367, 371, 663 S.E.2d 450, 453 (2008), disc. review denied, 363 N.C. 372, 678 S.E.2d 232 (2009). For, expert opinion testimony is required to establish proximate causation of the injury in medical malpractice actions. See Smithers v. Collins, 52 N.C. App. 255, 260, 278 S.E.2d 286, 289 (1981) (noting that in many medical negligence cases \u201cthere is a requirement that expert testimony is needed to establish the standard of care and the proximate cause of the plaintiffs injury\u201d because such expert testimony is generally necessary \u201cwhen the standard of care and proximate cause are matters involving highly specialized knowledge beyond the ken of laymen\u201d). While proximate cause is often a factual question for the jury, evidence \u201cbased merely upon speculation and conjecture ... is no different than a layman\u2019s opinion, and as such, is not sufficiently reliable to be considered competent evidence on issues of medical causation.\u201d Gaines v. Cumberland County Hosp. Sys., Inc., - N.C. App. -, -, 692 S.E.2d 119, 123 (2010) (internal quotation marks and citation omitted); see also Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000) (\u201c[Our Supreme] Court has specifically held that an expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\u201d (internal quotation marks omitted)).\nThus, Plaintiffs must be able to make a prima facie case of medical negligence at trial, which includes articulating proximate cause with specific facts couched in terms of probabilities. However, it is well-established that \u201ca party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\u201d Pinczkowski v. Norfolk S. Ry. Co., 153 N.C. App. 435, 440, 571 S.E.2d 4, 7 (2002) (citations omitted); see also Carter v. West Am. Ins. Co., 190 N.C. App. 532, 539, 661 S.E.2d 264, 270 (2008) (\u201cA non-moving party cannot create an issue of fact to defeat summary judgment simply by filing an affidavit contradicting his prior sworn testimony.\u201d (internal quotation marks omitted)). While Plaintiffs contend that the affidavits of expert witness Dr. Allen were sufficient to survive summary judgment on the issue of proximate cause, Defendants contend that Dr. Allen\u2019s affidavits do not create a genuine issue of material fact with respect to proximate cause because his deposition testimony contradicts his affidavits and the affidavits should not be considered. As further discussed below, because of this rule regarding contradictory testimony, we agree with Defendants that the expert opinions offered by Plaintiff regarding the standard of care and causation \u2014 in the form of the two affidavits from Dr. Allen \u2014 are insufficient to demonstrate proximate causation.\nPlaintiffs submitted two affidavits from Dr. Allen: the first, dated 18 December 2006, addressed his qualifications as an expert witness and his summary opinions regarding Plaintiffs\u2019 case, and the second affidavit, dated 18 November 2008, was prepared after Dr. Allen\u2019s deposition. Plaintiffs argue that if Dr. Allen did not establish proximate causation in his deposition testimony, his second affidavit did establish proximate causation. Defendants counter, however, that portions of Dr. Allen\u2019s 18 April 2008 deposition are contrary to statements in his 18 November 2008 affidavit regarding causation; thus, Dr. Allen could not testify that Defendants\u2019 care proximately caused Plaintiffs\u2019 injuries.\nDuring the 18 April 2008 discovery deposition taken by defense counsel, the following testimony was elicited:\n[Defense Counsel]: You would agree with me that a branchial plexus injury can occur for any number of reasons?\n[Dr. Allen]: Correct.\nQ.: You would agree with me that a brachial plexus injury can occur in the absence of shoulder dystocia, correct?\nA.: It\u2019s been reported.\nQ.: Would you agree with me that you can\u2019t say to any reasonable degree of medical certainty as you sit here today that fundal pressure was actually and truthfully applied in this case, can you?\nA.: I wasn\u2019t there.\nQ.: And you can\u2019t say to any reasonable degree of medical certainty as you sit here today that if fundal pressure was applied when shoulder dystocia was encountered with this delivery, that it caused the brachial plexus injury, can you?\nA.: I don\u2019t think anybody can say that.\nIn his 18 November 2008 affidavit, Dr. Allen stated his opinion regarding the causes of Plaintiff Carmen\u2019s injuries:\n5. Similarly, it was and always has been my opinion that the inappropriate prenatal care and management of labor and delivery by the Defendants more likely than not caused or contributed to the' permanent brachial plexus injury sustained by Carmen Cousart.\n7. When I was asked during my deposition about whether these departures from the standard of care caused Carmen Cousart\u2019s brachial plexus injury, I was unable to state whether, for example, fundal pressure was the cause, in and of itself and to the exclusion of other factors. However, if, as has since been clarified to me by counsel, the legal standard is whether these departures from the standard of care were a cause or substantial contributing factor to Carmen\u2019s brachial plexus injury, then I am of the opinion that these departures from the standard of care were a cause or contributing factor to Carmen Cousart\u2019s brachial plexus injury.\n8. With regard to the use of fundal pressure, it is my opinion, more likely than not, and to a reasonable degree of medical certainty, that under circumstances like those during Mrs. Cousart\u2019s delivery of Carmen, the use of fundal pressure would likely increase the degree of shoulder impaction and be a cause or substantial contributing factor to her resulting brachial plexus injury.\nThe first affidavit made in 2006 mentions causation in only general terms and opines in conclusory fashion that an unidentified \u201cviolation of the standard of care was the proximate cause of the injuries.\u201d Lacking competent evidence of proximate cause for failure to \u201cpoint to any specific incident or action of any defendant during [labor and delivery] that would have caused [the injuries],\u201d Campbell v. Duke Univ. Health Sys., - N.C. App. -, -, 691 S.E.2d 31, 37 (2010), this affidavit is also negated by Dr. Allen\u2019s detailed deposition testimony of 18 April 2008 recited above. Moreover, his 2008 affidavit, made just two days before the summary judgment hearing, clearly contradicts his deposition. A Fourth Circuit case with similar facts is persuasive. In Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970 (4th Cir. 1990), medical expert Dr. Cox testified on deposition to possible ways that DTP vaccine may cause neurological damage but declined to give an opinion that the defendant\u2019s vaccine caused the plaintiff\u2019s particular injuries. Id. at 974. The Fourth Circuit noted summary judgment would be \u201cunproblematic\u201d if limited to the deposition testimony lacking sufficient proximate cause testimony, but the plaintiffs attached an affidavit to their response to the summary judgment motion, wherein Dr. Cox stated: \u201cIt is my opinion that the DPT vaccine administered to [plaintiff] . . . caused the neurological injuries from which she has suffered and continues to suffer.\u201d Id. at 974-75. While \u201c[t]his statement alone would appear to defeat defendant\u2019s motion for summary judgment,\u201d the court concluded that \u201cDr. Cox\u2019s affidavit is in such conflict with his earlier deposition testimony that the affidavit should be disregarded as a sham issue of fact\u201d because \u201c[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff\u2019s testimony is correct.\u201d Id. at 975 (citation omitted).\nOur Court has also addressed whether a party opposing summary judgment can create a genuine issue of fact by filing an affidavit contradicting prior sworn testimony, and answered alike:\n[A] party should not be allowed to create an issue of fact in this manner and [we] hold that contradictory testimony contained in an affidavit of the nonmovant may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant.... If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.\nMortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 9-10, 249 S.E.2d 727, 732 (1978) (internal quotation marks omitted). Dr. Allen\u2019s second affidavit greatly contradicts his deposition testimony. After detailing various standards and possible theories by which breaches thereof could cause injuries, Dr. Allen refused, when directly questioned about causation in this case, to opine that a causal link existed between any breach and Plaintiff Carmen\u2019s symptoms. Cf. Rohrbough, 916 F.2d at 975. \u201cYet months later, when faced with [Defendants\u2019] motion for summary judgment, Dr. [Allen] boldly gave his opinion by way of affidavit that the [inappropriate management of labor and delivery by Defendants] caused the injuries in question.\u201d Id. Contradicting several assertions he made during deposition on the same subject matter, Dr. Allen\u2019s second affidavit cannot be considered.\nOn deposition, Dr. Allen remained vague, answering, \u201cI wasn\u2019t there,\u201d and \u201cI don\u2019t think anybody can say that,\u201d respectively, when asked, to a reasonable degree of medical certainty, whether fundal pressure was actually applied, and if so, whether it caused the injuries alleged. Significantly, Dr. Allen then stated:\n[W]hen you tease apart individual pieces of . . . the delivery you can find lots of areas to criticize. One will never know, one can only speculate, what had to do with what. In other words, did the fundal pressure cause the brachial plexus injury? You got no way of knowing.....\nWhat you do know is, is there\u2019s some things that happened that may or may not have contributed. And one will never know if using the vacuum . . . contributed. One will never know if fundal pressure, given or not given, contributed.\nHe admitted only that some things should not have happened and \u201csome things that didn\u2019t happen . . . should have\u201d but followed: \u201c[D]o any of those things prevent a brachial plexus injury? You\u2019ve got no way of knowing.\u201d When asked if any evidence suggested \u201capplication of the Kiwi vacuum caused or contributed to the brachial plexus injury,\u201d Dr. Allen responded, \u201c[t]here\u2019s no way to do that.\u201d Thus, we distinguish our holding in Phillips v. Triangle Women\u2019s Health Clinic, Inc., 155 N.C. App. 372, 573 S.E.2d 600 (2002), where the plaintiffs expert testified on deposition that he did not give his opinion over the phone but, in a subsequent affidavit, stated that he did so. See Phillips, 155 N.C. App. at 377, 573 S.E.2d at 603 (holding \u201cthere was no clear contradiction\u201d in the exeprt\u2019s deposition and later filed affidavit because he testified in terms of \u201cprobabilities,\u201d never denied giving his opinion,' and \u201c[a]fter having time to reflect on that conversation,\u201d clarified what he recalled in his subsequent affidavit). To the contrary, Dr. Allen did not testify in terms of probabilities but, rather, affirmed that \u201cno one will ever know\u201d and ruled out any way of knowing the cause of Plaintiff Carmen\u2019s injuries.\nThe entire deposition shows repeatedly that when questioned directly as to the cause of Plaintiff Carmen\u2019s injuries, Dr. Allen could not opine that a causal link existed between any particular act or omission. Impliedly, any subsequent, purportedly firm opinion by Dr. Allen on causation would not only be conjecture but would also directly belie his testimony that it is virtually impossible to know if the alleged breaches in care proximately caused the injuries sustained. Thus, it is difficult to see how the statement, \u201cit was and always has been my opinion that the inappropriate prenatal care and management of labor and delivery by the Defendants more likely than not caused or contributed to the permanent brachial plexus injury,\u201d in Dr. Allen\u2019s 2008 affidavit does not plainly contradict his deposition. Plaintiff\u2019s argument is based on an unsubstantiated premise that the deposition failed only to assign a sole cause while the affidavit pointed to a cause or contributing factors. The above-quoted deposition testimony, however, contains not one question framed in terms of \u201csole cause,\u201d nor did Dr. Allen ever respond accordingly. To the contrary, the record shows that defense counsel employed the phrase \u201ccaused or contributed to\u201d at least once and Dr. Allen understood his questions to encompass a cause or contributing factor, as reflected by his own use of those terms. Moreover, Plaintiffs\u2019 counsel tried to correct Dr. Allen by asking whether he had the opinion that the breaches of care he had described \u201cwere a cause or substantial contributing factor to the . . . injuries sustained by the baby in this case compared to the sole cause.\" Dr. Allen relayed the difficulty of knowing if \u201cone factor or several\u201d caused the injuries, and Plaintiffs\u2019 counsel rephrased: \u201cdid they alone or in combination form a cause or contributing factor to the injury in this case more likely than not?\u201d Dr. Allen reiterated his refusal to articulate an opinion, and Rohrbough is again instructive:\nThe [deposition] questions admittedly were propounded in terms of a somewhat higher standard of proof than plaintiffs must satisfy. . . . Although it stretches the imagination to say that [the expert\u2019s] testimony would have been any different had the questions incorporated a differing standard of proof, that is, that she would have given her opinion that the vaccine was the reasonably probable cause in spite of her testimony that.she could not determine a cause to a reasonable degree of medical certainty, we need not rely on intuition. The question is not what she would have said, but what she did say ....\nRohrbough, 916 F.2d at 973.\nWe acknowledge that Dr. Allen was asked whether fundal pressure, if applied, caused the injury and that a question framed in terms of a cause or contributing factor would have been more exact. We should not, however, dismiss the expert\u2019s intelligence or accept his attestation that his deposition answers were limited to whether each departure from the standard of care \u201cwas the cause, in and of itself and to the exclusion of other factors.\u201d Dr. Allen was never questioned this way; moreover, the claim in his affidavit that the proper legal standard was only later clarified to him by counsel cannot conceal his own answers on deposition framed in terms of contributing causes. The question is what Dr. Allen did say, and he asserted several times that \u201cone will never know\u201d if the subject breach contributed to the injuries.\nThe conflicts between Dr. Allen\u2019s deposition and affidavits, particularly the second one filed to survive summary judgment, leave the trial court with only a credibility issue, not a genuine issue of material fact. For, it is improper to consider the second affidavit, without which, summary judgment becomes \u201cunproblematic.\u201d Where Defendants met their burden by negating an essential element of Plaintiffs\u2019 proof, Plaintiffs failed to \u201ccome forward with competent evidence that raises a genuine issue of material fact on that element.\u201d White, 88 N.C. App. at 386, 363 S.E.2d at 206. As to causation, no expert, including Dr. Allen, could speak in terms of probabilities or raise more than a conjecture based on speculation, and nothing in their combined testimony differs from a layman\u2019s opinion on medical causation. Therefore, no proximate cause evidence submitted by Plaintiffs was sufficiently reliable to be considered competent. Because Plaintiffs have failed to forecast any evidence showing proximate cause, leaving the trial court with no genuine issue of material fact, we affirm the trial court\u2019s grant of summary judgment for Defendants.\nAffirmed.\nJudges STEPHENS and STROUD concur.\n. At the summary judgment hearing, Plaintiffs\u2019 counsel stated in open court that Plaintiffs were not pursuing allegations of negligence as to Defendants\u2019 medical treatment of Plaintiff Mona which resulted in injuries to Plaintiff Mona, which would include Plaintiff Cameron\u2019s claim for loss of consortium. Plaintiffs have also not assigned error related to Plaintiff Cameron\u2019s claim for loss of consortium in the record on appeal, and no argument was brought forth in Plaintiffs\u2019 brief on appeal. This claim is thus deemed abandoned. See N.C.R. App. P. 28(b)(6).\n. We note that Defendants did not file a motion to strike Dr. Allen\u2019s second affidavit. As a general rule, a party\u2019s failure to move to strike an affidavit\u2019s \u201callegations waives any objection to their formal defects.\u201d Whitehurst v. Corey, 88 N.C. App. 746, 748, 364 S.E.2d 728, 729-30 (1988) (stating that \u201cfailure to object to form or sufficiency of pleadings and affidavits waives objection on summary judgment\u201d and an \u201caffidavit not conforming to Rule 56(e) is subject to motion to strike,\u201d but objection is waived absent the motion). However, the issues arising from Dr. Allen\u2019s deposition and second affidavit were argued extensively before the trial court at the summary judgment hearing, and Plaintiffs did not contend either before the trial court or before this Court that Defendants should have been required to file a motion to strike the affidavit.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Charles G. Monnett III & Associates, by Randall J. Phillips, for Plaintiff-Appellants.", "Parker Poe Adams & Bernstein LLP, by Harold D. \u201cChip\u2019\u2019 Holmes, Jr., John H. Beyer, and Leigh K. Hickman, for Defendant-Appellees." ], "corrections": "", "head_matter": "MONA COUSART, Individually and as the Guardian for Minor Carmen Cousart; and CAMERON COUSART, Plaintiffs v. THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, CAROLINAS PHYSICIANS NETWORK, INC., CHARLOTTE OBSTETRICS AND GYNECOLOGIC ASSOCIATES, P.A., Jointly and Severally, Defendants\nNo. COA09-477\n(Filed 18 January 2011)\nMedical Malpractice\u2014 proximate cause \u2014 expert\u2019s testimony contradictory \u2014 summary judgment\nThe trial court did not err by granting summary judgment for defendants in a medical malpractice action where plaintiffs did not forecast evidence showing proximate cause. There were conflicts between the deposition and affidavits of plaintiffs\u2019 expert that left the trial court with an issue of credibility, not a genuine issue of material fact.\nAppeal by Plaintiffs from order and judgment dated 1 December 2008 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 October 2009.\nCharles G. Monnett III & Associates, by Randall J. Phillips, for Plaintiff-Appellants.\nParker Poe Adams & Bernstein LLP, by Harold D. \u201cChip\u2019\u2019 Holmes, Jr., John H. Beyer, and Leigh K. Hickman, for Defendant-Appellees." }, "file_name": "0299-01", "first_page_order": 309, "last_page_order": 320 }