FRE 601 Trumps: Fourth Circuit Holds that State Expert-Qualification Rules Govern Medical-Malpractice Elements in Federal Court

1. Introduction

In Manuel Moreno v. Dr. Carol C. Bosholm, Nos. 23-6890/23-6950 (4th Cir. Aug. 15 2025), the Fourth Circuit confronted a familiar but murky Erie problem: whose rules determine who may testify as a medical-standard-of-care expert when a state medical-malpractice claim is tried in federal court?
The Court affirmed a defense victory after the district court excluded the inmate-plaintiff’s expert and granted judgment as a matter of law (JMOL). The panel—Agee, joined by Chief Judge Diaz and Judge Benjamin—held that Federal Rule of Evidence 601, not Rule 702, is the pivot point. Because Rule 601’s second sentence defers to state competency rules “in a civil case … for which state law supplies the rule of decision,” the district court correctly applied North Carolina Evidence Rule 702(b), which requires “active clinical practice” during the year preceding the alleged malpractice. The plaintiff’s expert did not qualify; consequently, Moreno lacked proof of the standard of care, causation, or breach.
The Court also rebuffed claims of gross negligence and Eighth-Amendment deliberate indifference, and it refused to disqualify Moreno’s appellate counsel, a former clerk to the trial judge. The opinion thus sets a binding precedent on expert admissibility as well as useful guidance on prison-medical constitutional claims and attorney-ethics motions.

2. Summary of the Judgment

• Expert Testimony: FRE 601 required application of N.C. R. Evid. 702(b). Because Dr. Bilbro was not in active clinical practice or instruction during the relevant year, he was incompetent to opine on standard of care.
• Medical Malpractice Claim: Without expert testimony, Moreno could not establish standard of care, breach, or causation; JMOL affirmed.
• Gross Negligence / § 1983 Deliberate Indifference: Evidence showed, at most, ordinary negligence; no reasonable jury could find willful, wanton, or deliberately indifferent conduct; JMOL affirmed.
• Counsel Disqualification Motion: Denied. North Carolina Rule 1.12 bars former clerks only from matters in which they personally and substantially participated; counsel’s sworn declaration of non-involvement sufficed.
• Cross-Appeal: Dismissed as moot once main appeal disposed of.

3. Analysis

3.1 Precedents Cited and Their Influence

a) Federal-Rule/State-Rule Interface

• Erie R.R. v. Tompkins, 304 U.S. 64 (1938) – baseline distinction between substantive state law and procedural federal law in diversity or supplemental jurisdiction cases.
• Shady Grove Orthopedic Assocs. v. Allstate, 559 U.S. 393 (2010) – if a Federal Rule “answers the question in dispute,” it controls unless unconstitutional.
• Coleman v. United States, 912 F.3d 824 (5th Cir. 2019); Liebsack (9th Cir.); McDowell (11th Cir.); Legg (6th Cir.) – every circuit to consider the issue had already read Rule 601 to incorporate state expert-competency statutes in medical-malpractice cases. The Fourth Circuit joins and completes that unanimity.

b) Substantive Tort & Constitutional Standards

• N.C. Gen. Stat. § 90-21.11/.12 – defines “medical malpractice” and requires proof of deviation from same-specialty standard of care.
• Estelle v. Gamble, 429 U.S. 97 (1976); Farmer v. Brennan, 511 U.S. 825 (1994) – deliberate indifference requires knowledge of and disregard for substantial risk; negligence is insufficient.
• Jackson v. Lightsey, 775 F.3d 170 (4th Cir. 2014) – a mistaken diagnosis or disagreement over treatment is not deliberate indifference.
• Weatherford v. Glassman, 500 S.E.2d 466 (N.C. Ct. App. 1998) – gross negligence demands wanton conduct, not mere malpractice.

3.2 The Court’s Legal Reasoning

1. Identify the Governing Federal Rule. The panel observed that both FRE 601 and 702 are federal rules, so the Erie “substantive/procedural” dichotomy is a distraction. Rule 601 speaks directly to witness competency; its second sentence is explicit: state law governs competency “in a civil case” when state law supplies the rule of decision.
2. Define “Competency.” Using common dictionary definitions, the Court equated competency with qualification—the minimal ability or authority to testify. North Carolina Rule 702(b) plainly prescribes qualifications; therefore, it is a competency rule.
3. Harmony, not Conflict, with Rule 702. Rule 601 controls the threshold “who may testify” question; Rule 702 then governs “is the testimony itself reliable and helpful?” The two operate sequentially, not competitively.
4. Apply State Rule 702(b). Because Dr. Bilbro had not spent the majority of the prior year in active clinical practice or teaching, he failed the state competency test. The district court therefore excluded his standard-of-care opinions.
5. Consequences for Moreno’s Claims. Without expert proof of standard, breach, or causation, the malpractice claim died. Gross-negligence and deliberate-indifference theories fared no better; evidence of some treatment and weekend monitoring instructions showed, at worst, negligence.
6. Ethics Motion. North Carolina Rule 1.12(a) and federal advisory materials bar only participation in matters a clerk handled personally. Affidavits of non-involvement nullified the motion; disqualification would have been disproportionate.

3.3 Potential Impact of the Decision

• Circuit Precedent: District courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina must now apply the forum state’s medical-expert qualification statute or rule whenever a state-law medical-malpractice element is litigated in federal court—whether diversity, supplemental, Bivens, or FTCA.
• Litigation Strategy: Plaintiffs must select experts who satisfy both Daubert and the relevant state’s practice-hour/licensure rules; defense counsel should raise Rule 601 competency objections early (motions in limine, Rule 37(c) challenges).
• Forum Shopping Curbed: The decision reduces incentives to file medical-malpractice suits in federal court solely to avoid strict state expert rules.
• Criminal & Civil Rights Cases: When deliberate-indifference claims piggy-back on underlying malpractice allegations, expert evidence still helps on objective seriousness, but success requires proof of subjective mental state; the opinion re-emphasises that distinction.
• Judicial Law-Clerk Mobility: The Court signals that—absent local rule—a former clerk may appear in a case that was pending before the judge so long as the clerk had no personal, substantial involvement.

4. Complex Concepts Simplified

• FRE 601 vs. FRE 702: Think of 601 as the “bouncer” deciding whether the witness even gets into the club; 702 is the “quality inspector” deciding whether what the witness says is reliable enough for the jury.
• Judgment as a Matter of Law (JMOL): A Rule 50 motion asks, “Even if the jury believed everything the other side put on, could it legally find in their favor?” If the answer is “no,” the judge ends the case.
• Gross Negligence: North Carolina treats it as conduct so reckless that it implies some conscious disregard for safety—more than a mistake but short of intentional harm.
• Deliberate Indifference: Under the Eighth Amendment, officials must actually know of and ignore a serious risk. Incompetence, carelessness, or a mis-diagnosis does not suffice.
• Res Ipsa Loquitur in Med-Mal: A rare doctrine allowing juries to infer negligence from the accident itself (e.g., sponge left in patient). The Court confirmed it did not apply here.

5. Conclusion

Moreno v. Bosholm clarifies a previously unsettled evidentiary question inside the Fourth Circuit: Federal Rule of Evidence 601 mandates use of state expert-competency standards when state medical-malpractice elements are tried in federal court. Litigants must now satisfy a two-step admissibility gauntlet—state competency under Rule 601, then federal reliability under Rule 702. The ruling also illustrates the high bar for constitutional “deliberate indifference” and for North Carolina gross-negligence claims, emphasizing that ordinary malpractice will not sustain them. Finally, by denying disqualification of former-clerk counsel, the Court provides practical guidance on post-clerkship ethics. In short, the decision harmonises federal-state evidentiary interaction, promotes uniformity among circuits, and offers a clear roadmap for future medical-malpractice and prison-medical litigation in federal courts within the Fourth Circuit.