{ "id": 1659850, "name": "BERNICE A. BRILEY, Individually and NED H. BRILEY, as Spouse v. WILLIAM S. FARABOW and HIGH POINT OB-GYN ASSOCIATES, INC.", "name_abbreviation": "Briley v. Farabow", "decision_date": "1998-07-09", "docket_number": "No. 473PA97", "first_page": "537", "last_page": "548", "citations": [ { "type": "official", "cite": "348 N.C. 537" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "488 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "127 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794771 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/127/0281-01" ] }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "248 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "38 N.C. 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Supp.", "case_ids": [ 3699037 ], "year": 1984, "pin_cites": [ { "page": "1319" } ], "opinion_index": 0, "case_paths": [ "/f-supp/594/1315-01" ] }, { "cite": "910 F.2d 444", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10535038 ], "year": 1990, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/f2d/910/0444-01" ] }, { "cite": "84 F.3d 874", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1793500 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "878" }, { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/f3d/84/0874-01" ] }, { "cite": "405 F.2d 833", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1211780 ], "year": 1969, "pin_cites": [ { "page": "835" } ], "opinion_index": 0, "case_paths": [ "/f2d/405/0833-01" ] }, { "cite": "184 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "280 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569959 ], "year": 1971, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0106-01" ] }, { "cite": "217 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "540" } ], "opinion_index": 0 }, { "cite": "288 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565242 ], "year": 1975, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0183-01" ] }, { "cite": "251 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567655 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0467-01" ] }, { "cite": "244 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553405 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0350-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] }, { "cite": "199 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559879 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0054-01" ] }, { "cite": "193 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "17 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554974 ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0249-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "495 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "910" }, { "page": "911" } ], "opinion_index": 0 }, { "cite": "347 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551066 ], "year": 1998, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0520-01" ] }, { "cite": "269 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "301 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561139 ], "year": 1980, "pin_cites": [ { "page": "72-73" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0068-01" ] }, { "cite": "488 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794771 ], "year": 1997, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0281-01" ] } ], "analysis": { "cardinality": 947, "char_count": 27055, "ocr_confidence": 0.756, "pagerank": { "raw": 1.1383976026678585e-06, "percentile": 0.9864353095489351 }, "sha256": "1c6537cfe8f1006ea1ed9ca7e2e23434e72ceab268a67305950d089a97e5b012", "simhash": "1:87ac566b04048cdb", "word_count": 4382 }, "last_updated": "2023-07-14T21:11:06.764212+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BERNICE A. BRILEY, Individually and NED H. BRILEY, as Spouse v. WILLIAM S. FARABOW and HIGH POINT OB-GYN ASSOCIATES, INC." ], "opinions": [ { "text": "ORR, Justice.\nThis 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(fl) of the North Carolina Rules of Civil Procedure for their attorney\u2019s failure to designate experts by a court-ordered deadline. Plaintiffs initiated this medical malpractice suit against Dr. William S. Farabow and High Point ObGyn Associates, Inc., on 11 August 1995, alleging that defendants negligently performed surgery by unnecessarily removing plaintiff\u2019s 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(fl) 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.\nOn 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(fl) and the scheduling order, experts not designated by the order\u2019s deadline should not be permitted to testify at trial.\nIn 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\u2019s treatment of plaintiff, that he believed that \u201cDr. Farabow met or exceeded the standard of practice in every respect, before, during, and after the surgery performed on Mrs. Briley.\u201d 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\u2019s complication occurred without any negligence by defendants.\nOn 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\u2019 summary judgment motion and submitted an affidavit of plaintiff Mrs. Bernice Briley. Mrs. Briley stated in the affidavit that a report by the plaintiffs\u2019 expert witness, Dr. Paul Gatewood, was attached and adopted by the affidavit, and requested that the report be \u201cincorporated herein by reference the same as if at this point it were set forth in it\u2019s [sic] entirety.\u201d Dr. Gatewood had rendered an opinion in the report that plaintiffs\u2019 negligence allegations were provable.\nOn 11 March 1996, defendants filed a motion to strike plaintiffs\u2019 tardy expert witness designation. A hearing was held as to defendants\u2019 motion to strike and defendants\u2019 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\u2019s affidavit and Dr. Gatewood\u2019s report arguing that: (1) Dr. Gatewood\u2019s 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\u2019s report, was not based on personal knowledge; and (3) Dr. Gatewood\u2019s report failed to establish that he qualified as an expert. Defendants thus asked the court to sustain their objection and exclude Ms. Briley\u2019s affidavit and Dr. Gatewood\u2019s report.\nOn 9 May 1996, the court granted defendants\u2019 motion to strike plaintiffs\u2019 tardy expert witness designation pursuant to Rule 26(fl). In a separate order on 9 May 1996, the court also granted defendants\u2019 motion for summary judgment. In the order granting summary judgment, the court stated that \u201chaving granted the defendants\u2019 motion to strike plaintiffs\u2019 expert designation, and having sustained defendants\u2019 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.\u201d 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.\nOn 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\u2019s \u201c[mistake, inadvertence, surprise, or excusable neglect.\u201d N.C.G.S. \u00a7 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\u2019s failure to designate their expert witnesses by the scheduling order deadline was \u201cexcusable neglect\u201d under Rule 60(b)(1). Plaintiffs stated that their attorney had stopped preparing discovery, including the expert witness designation, under the mistaken assumption that \u201cthe parties had agreed to informally delay further discovery\u201d 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.\nOn 7 August 1996, defendants filed a response to the Rule 60(b)(1) motion. In the response, defendants stated that \u201cthere was absolutely no discussion or agreement about putting discovery on hold\u201d on 1 December 1995 and that Ms. Young, plaintiffs\u2019 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\u2019 Rule 60(b)(1) motion. In the order, the court held that plaintiffs\u2019 failure to designate the experts was due to the unexcused negligence of plaintiffs\u2019 attorney rather than to excusable neglect. The court made a finding that plaintiffs\u2019 counsel \u201cdid not . . . offer any excuse for the late designation\u201d 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 \u201cfailure to designate expert witnesses as required by a Rule 26(fl) order, due to inexcusable neglect of counsel, does not constitute excusable neglect under Rule 60(b)(1).\u201d Also, the court stated that Rule 26(fl), which requires identification of medical experts within certain time periods, was enacted \u201cto provide for the prompt and orderly completion of expert witness discovery in medical malpractice cases so as to avoid delay and surprise.\u201d 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(fl). Finally, the trial court held that plaintiffs did not qualify for relief under Rule 60(b)(1) of the order granting defendants\u2019 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\u2019 motion.\nOn 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 \u201cincorrect legal standard\u201d in determining whether the conduct constituted \u201cexcusable neglect\u201d 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 \u201cwhether plaintiffs\u2019 behavior was excusable or inexcusable, not whether their attorneys\u2019 behavior was excusable or inexcusable.\u201d Id. Thus, the court remanded the case for a new hearing on all issues in the Rule 60(b)(1) motion.\nOn 23 September 1997, defendants petitioned this Court for discretionary review pursuant to N.C.G.S. \u00a7 7A-31, which we granted on 6 November 1997. For the reasons which follow, we hold that the trial court\u2019s order denying plaintiffs relief under Rule 60(b)(1) was proper. Accordingly, we reverse the Court of Appeals\u2019 decision and reinstate the trial court\u2019s order.\nPlaintiffs 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.\nPlaintiffs essentially argue that if the expert witness designation had been considered in determining whether to grant summary judgment, plaintiffs could have defeated defendants\u2019 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 \u201c \u2018produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial.\u2019 \u201d 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).\nIn 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\u2019 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 hysterectomies during that time; that he had experience treating patients like Mrs. Briley; and that in his opinion, Dr. Farabow was not negligent.\nPlaintiffs\u2019 forecast of evidence, on the other hand, failed to show that a prima facie case could be made for trial. Plaintiffs submitted an affidavit by plaintiff Mrs. Briley in which she stated that she caused the action to be filed, that the allegations of negligence were set forth in the complaint, and that Dr. Gatewood\u2019s report was incorporated in the affidavit. This affidavit had no new evidence beyond what was alleged in the complaint, except for Dr. Gatewood\u2019s report and the expert witness designation. The trial court, however, excluded Dr. Gatewood\u2019s report because \u201cit did not establish the witness\u2019s familiarity with the standard of care and because it was not under oath.\u201d The court concluded that \u201c[h]aving stricken the designation and having sustained the objection to Dr. Gatewood\u2019s letter, there was absolutely no evidence before the Court in opposition to the defendants\u2019 properly supported motion.\u201d Plaintiffs acknowledged such in that the trial court stated that \u201cthe sole argument advanced by [plaintiffs\u2019 counsel] was that by filing a tardy expert designation, plaintiffs had created a question of fact necessitating denial of defendants\u2019 motion for summary judgment.\u201d\nEven if the trial court\u2019s exclusion of the expert witness designation had been reversed, it still would not raise a genuine issue of material fact as to summary judgment. Plaintiffs\u2019 expert witness designation named two experts, Dr. Gatewood and Dr. Giles, to testify at trial. Plaintiffs alleged in the designation that the \u201cexperts\u201d would testify that defendants were negligent. These assertions in the designation, much like an assertion in a pleading, however, do not provide any evidentiary material to create a genuine issue of a material fact. As evidence, the designation was also inadmissible since the experts had not been qualified as such, and any opinion that they offered would therefore be inadmissible. Borden, Inc. v. Brower, 17 N.C. App. 249, 193 S.E.2d 751 (affidavits or other material offered which sets forth inadmissible facts should not be considered for summary judgment), rev\u2019d on other grounds, 284 N.C. 54, 199 S.E.2d 414 (1973). If the designation had not been stricken, therefore, plaintiffs would still have only unsupported allegations in the pleadings, an affidavit which repeated such assertions, and no specific facts showing the existence of a triable issue. Such unsupported, conclusory allegations are simply insufficient to create the existence of a genuine issue of material fact where the moving party has offered a proper evidentiary showing. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982); Moore v. Fieldcrest Mills, Inc., 36 N.C. App. 350, 244 S.E.2d 208 (1978), aff\u2019d, 296 N.C. 467, 251 S.E.2d 419 (1979). The trial court also stated such, noting that\n[e]ven if the Court were to reverse its order striking plaintiff\u2019s [sic] tardy expert designation, plaintiffs would not be entitled to any relief from the order allowing defendants\u2019 motion for summary judgment because they would still have no competent evidence, as of May 1, 1996, to rebut defendants\u2019 properly supported motion. Thus, even if the Court were to find excusable neglect, plaintiffs would not be able to prevail on the record that existed on May 1, 1996, when the motion was heard.\nWe conclude, therefore, as the trial court did, that Rule 60(b)(1) affords no relief to plaintiff in regard to the trial court order granting summary judgment in favor of defendants since even if the expert witness designation had been considered in deciding summary judgment, plaintiffs would still not have a sufficient forecast of evidence to overcome the motion.\nThe next issue we must address is whether plaintiffs should be granted relief under Rule 60(b)(1), of the order striking their expert witness designation under Rule 26(fl) when the order was imposed because of plaintiffs\u2019 attorney\u2019s failure to file the designation in a timely manner. Rule 26(fl) provides that\n[i]n a medical malpractice action . . . , the judge shall, within 30 days, direct the attorneys for the parties to appear for a discovery conference. At the conference the court. . . shall:\n(2) Establish an appropriate schedule for designating expert witnesses . . . such that there is a deadline for designating all expert witnesses within an appropriate time ....\nIf a party fails to identify an expert witness as ordered, the court shall, upon motion by the moving party, impose an appropriate sanction, which may include dismissal of the action, entry of default against the defendant, or exclusion of the testimony of the expert witness at trial.\nN.C.G.S. \u00a7 1A-1, Rule 26(fl) (1990) (emphasis added). This rule was adopted in 1987 to expedite discovery and provide for the prompt designation of expert witnesses. By its express language, it plainly mandates that the court impose mandatory sanctions if a party fails to comply with a deadline regarding the designation of experts. This is exactly what occurred in the instant case: plaintiffs were ordered to designate experts by 30 November 1995 and failed to do so. The sanction of excluding plaintiffs\u2019 expert witnesses from testifying was therefore proper under Rule 26(fl).\nPlaintiffs assert that these sanctions should be lifted under Rule 60(b)(1) because their failure to file the expert witness designation was due to \u201cexcusable neglect.\u201d As previously explained, Rule 60(b)(1) permits a court to relieve a party from an order for \u201c[m]istake, inadvertence, surprise, or excusable neglect.\u201d N.C.G.S. \u00a7 1A-1, Rule 60(b)(1). Interpreting this provision in the context of discovery sanctions is an issue of first impression. This provision, however, is almost indistinguishable from federal Rule 60(b)(1), which provides that a district court may grant relief from an order for \u201cmistake, inadvertence, surprise, or excusable neglect.\u201d Fed. R. Civ. P. 60(b)(1); see Sink v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540 (1975). The \u201cnearly identical provisions of our Rule 60(b) and Federal Rule 60(b) point to the Federal decisions for interpretation and enlightenment.\u201d Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E.2d 879, 881 (1971).\nFederal courts have held that although attorney error may, under certain conditions, qualify as a reason for granting relief under Rule 60(b)(1), \u201cneither ignorance nor carelessness on the part of an attorney will provide grounds for 60(b) relief.\u201d Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969); see Helm v. Resolution Trust Corp., 84 F.3d 874, 878 (7th Cir. 1996). \u201c[T]ime and time again [it has been held] that inexcusable attorney negligence does not constitute proper grounds for relief under Rule 60(b)(1).\u201d Helm, 84 F.3d at 878. \u201cAn attorney\u2019s negligent mistake, evincing a lack of due care, is not a proper ground for relief under Rule 60(b),\u201d Rodgers v. Wood, 910 F.2d 444, 449 (7th Cir. 1990), and \u201c[t]he mere fact that an attorney is busy with other matters does not excuse a neglect on his part\u201d for the purposes of Rule 60(b). McDermott v. Lehman, 594 F. Supp. 1315, 1319 (D. Me. 1984). A showing of carelessness or negligence or ignorance of the rules of procedure also does not constitute \u201cexcusable neglect\u201d within this rule. In re Wright, 247 F. Supp. 648, 659 (E.D. Mo. 1965). \u201cLitigants whose lawyers fall asleep at crucial moments may seek relief from the somnolent agents; inexcusable inattention to the case . . . does not justify putting the adversary to the continued expense and uncertainty of litigation.\u201d United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir. 1994).\nClearly, an attorney\u2019s negligence in handling a case constitutes inexcusable neglect and should not be grounds for relief under the \u201cexcusable neglect\u201d provision of Rule 60(b)(1). In enacting Rule 60(b)(1), the General Assembly did not intend to sanction an attorney\u2019s negligence by making it beneficial for the client and to thus provide an avenue for potential abuse. Allowing an attorney\u2019s negligence to be a basis for providing relief from orders would encourage such negligence and present a temptation for litigants to use the negligence as an excuse to avoid court- imposed rules and deadlines. Plaintiffs have argued that this Court should provide relief from an order if only the attorney, rather than the client, was negligent. Looking only to the attorney to assume responsibility for the client\u2019s case, however, leads to undesirable results. As one federal judge noted:\n\u201cHolding the client responsible for the lawyer\u2019s deeds ensures that both clients and lawyers take care to comply. If the lawyer\u2019s neglect protected the client from ill consequences, neglect would become all too common. It would be a free good \u2014 the neglect would protect the client, and because the client could not suffer the lawyer would not suffer either.\u201d\nUnited States v. 7108 West Grand Ave., 15 F.3d 632, 634 (7th Cir.) (quoting Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986)) cert, denied, 512 U.S. 1212, 129 L. Ed. 2d 822 (1994). Thus, we hold that an attorney\u2019s negligent conduct is not \u201cexcusable neglect\u201d under Rule 60(b)(1) and that in determining such, the court must look at the behavior of the attorney.\nIn determining whether to grant relief under Rule 60(b)(1), the trial court has sound discretion which will be disturbed only upon a showing that the trial court abused its discretion. Harris v. Harris, 307 N.C. 684, 687, 300 S.E.2d 369, 372 (1983). The trial judge has the duty to make findings of fact, which are deemed conclusive on appeal if there is any evidence on which to base such findings. Hoglen v. James, 38 N.C. App. 728, 731, 248 S.E.2d 901, 903 (1978).\nIn the instant case, the trial judge made several findings of fact in the order denying relief to plaintiffs under Rule 60(b)(1). The trial court found that \u201cplaintiffs were required to file their expert witness designation on or before November 30, 1995,\u201d and that they \u201cfailed to designate any expert witnesses as required by the Rule 26(fl) order.\u201d The court found that \u201cno extension of time was sought\u201d; that plaintiffs \u201cdid not. . . offer any excuse for the late designation\u201d; and that at the hearing, plaintiffs acknowledged that \u201cthe failure to designate was due to [their attorney\u2019s] negligence.\u201d Consequently, the court\u2019s finding that \u201cthe failure to designate experts was due to Ms. Young\u2019s unexcused negligence, rather than to any mistake,\u201d was clearly based on competent evidence.\nThe trial court\u2019s findings are thus deemed conclusive, since based on competent evidence, and this Court\u2019s review of the denial of the Rule 60(b)(1) motion is limited to a determination of whether an abuse of discretion occurred. An abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985); see also State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985). Such an abuse may not be established here, where there was ample evidence to support the trial court decision that plaintiffs\u2019 attorney\u2019s inexcusable negligence failed to constitute \u201cexcusable neglect\u201d under Rule 60(b)(1). Accordingly, the decision of the Court of Appeals is reversed, and the trial court\u2019s decision denying relief under Rule 60(b)(1) is reinstated.\nREVERSED.", "type": "majority", "author": "ORR, Justice." } ], "attorneys": [ "Randolph M. James, P.C., by Randolph M. James, for plaintiff - appellees.", "Elrod Lawing & Sharpless, P.A., by Sally A. Rawing and Damien J. Sinnott, for defendants-appellants.", "Brinkley, Walser, McGirt, Miller, Smith & Coles, P.R.R.C., by D. Clark Smith, Jr., Stephen W. Coles, and S. Ranchor Harris, III, on behalf of North Carolina Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "BERNICE A. BRILEY, Individually and NED H. BRILEY, as Spouse v. WILLIAM S. FARABOW and HIGH POINT OB-GYN ASSOCIATES, INC.\nNo. 473PA97\n(Filed 9 July 1998)\n1. Physicians, Surgeons, and Other Health Care Professionals \u00a7 137 (NCI4th)\u2014 medical malpractice \u2014 consideration of tardy expert witness designation \u2014 summary judgment for defendants\nEven if plaintiffs\u2019 tardy expert witness designation had been considered by the trial court in ruling on defendants\u2019 motion for summary judgment in this medical malpractice action, plaintiffs would not have a sufficient forecast of evidence to overcome defendants\u2019 motion where defendants\u2019 forecast of evidence tended to show that defendant physician met the applicable standard of care in performing surgery upon the female plaintiff and that defendants were not negligent; plaintiffs filed an affidavit by the female plaintiff incorporating and adopting an expert\u2019s report stating the opinion that plaintiffs\u2019 negligence allegations were provable; the affidavit had no new evidence beyond what was alleged in the complaint except for the expert\u2019s report; the trial court sustained plaintiffs\u2019 objection to the report because it did not establish the witness\u2019s familiarity with the standard of care and was not under oath; assertions in the expert witness designation that the experts would testify that defendants were negligent did not provide any evidentiary material to create a genuine issue of material fact; the designation was inadmissible as evidence since the experts had not been qualified as such and any opinion they offered would therefore be inadmissible; and if the designation had not been stricken, plaintiffs would still have only unsupported allegations in the pleadings, an affidavit which repeated such assertions, and no specific facts showing the existence of a triable issue.\n2. Judgments \u00a7 431 (NCI4th)\u2014 attorney\u2019s negligence \u2014 not excusable neglect\nAn attorney\u2019s negligence in handling a case constitutes inexcusable neglect and is not a ground for relief under the \u201cexcusable neglect\u201d provision of N.C.G.S. \u00a7 1A-1, Rule 60(b)(1).\n3. Judgments \u00a7 431 (NCI4th)\u2014 failure to designate experts\u2014 attorney\u2019s negligence \u2014 denial of relief under Rule 60\nThe trial court did not abuse its discretion in denying plaintiffs relief under Rule 60(b)(1) from an order striking their expert witness designation under Rule 26(fl) because of failure to designate experts by a court-ordered deadline where competent evidence supported the trial court\u2019s determination that the failure to designate experts was due to the unexcused negligence of plaintiffs\u2019 attorney rather than to any mistake and that the attorney\u2019s negligence did not constitute \u201cexcusable neglect\u201d under Rule 60(b)(1). N.C.G.S. \u00a7 1A-1, Rule 26(fl).\nOn discretionary review pursuant to N.C.G.S. \u00a7 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.\nRandolph M. James, P.C., by Randolph M. James, for plaintiff - appellees.\nElrod Lawing & Sharpless, P.A., by Sally A. Rawing and Damien J. Sinnott, for defendants-appellants.\nBrinkley, Walser, McGirt, Miller, Smith & Coles, P.R.R.C., by D. Clark Smith, Jr., Stephen W. Coles, and S. Ranchor Harris, III, on behalf of North Carolina Association of Defense Attorneys, amicus curiae." }, "file_name": "0537-01", "first_page_order": 585, "last_page_order": 596 }