Alston v. Duke University
Decision Date | 20 April 1999 |
Docket Number | No. COA98-677.,COA98-677. |
Citation | 133 NC App. 57,514 S.E.2d 298 |
Court | North Carolina Court of Appeals |
Parties | Annette ALSTON, Plaintiff, v. DUKE UNIVERSITY, a corporation, d/b/a Duke University Medical Center and/or Duke University Ob/Gyn Clinic; Private Diagnostic Clinic, L.L.P.; Chapel Hill Obstetrics & Gynecology, P.A.; Vivian E. Clark, M.D.; and Kelly Alexander, M.D., Defendants. |
Perry, Perry & Perry, P.A., by Robert T. Perry and Matthew M. Cook, Durham, for plaintiff-appellant.
Moore & Van Allen, PLLC, by William E. Freeman, Durham, for defendant-appellees Duke University Medical Center, Private Diagnostic Clinic, L.L.P. and Kelly Alexander, M.D.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Deanna L. Davis, Raleigh, for defendant-appellees Chapel Hill Obstetrics & Gynecology, P.A., and Vivian E. Clark, M.D.
Annette Alston (Plaintiff) appeals from the trial court's order denying Plaintiff's motion to amend the discovery scheduling order and granting summary judgment for Duke University, Private Diagnostic Clinic, Chapel Hill Obstetrics & Gynecology, P.A., Vivian E. Clark, M.D., and Kelly Alexander, M.D. (collectively, Defendants).
Plaintiff filed her medical malpractice complaint on 16 January 1997,1 and Defendants filed answers during February and March of 1997. On 3 July 1997, a consent order was entered by the trial court scheduling discovery. Pursuant to that order, Plaintiff was to designate all expert witnesses she intended to call at trial by 1 August 1997, and to have these expert witnesses available for deposition by 1 October 1997. Defendants were required to designate all expert witnesses they intended to call at trial by 1 November 1997, and to have them available for deposition by 1 January 1998. All discovery was to be completed by 1 March 1998, in order to provide "a period of thirty (30) days prior to trial during which no discovery or depositions will be taken so that the parties can prepare for the trial without being hampered by discovery or depositions." The parties consented to "confer with the Court to schedule this case for trial sometime after April 1, 1998."
Plaintiff named one expert witness, Orlan Vincent Wade Masters, M.D. (Dr. Masters), and he was deposed by Defendants pursuant to the terms of the discovery scheduling order. Following Dr. Masters' deposition, Defendants filed motions for summary judgment, contending Dr. Masters was unqualified to testify at trial as an expert witness, and contending Plaintiff had been contributorily negligent as a matter of law. Plaintiff then filed a motion to amend the discovery scheduling order so she could name an additional expert witness.
On 1 December 1997, a hearing was held before the trial court on both Plaintiff's and Defendants' motions. At that hearing, Plaintiff's attorney informed the trial court that "our motion [to amend the discovery scheduling order] has a direct bearing on the defense motion for summary judgment, that's why we wish to be heard first." Plaintiff contended the motion to amend was required under Rule 26 because it would not result in delay of the trial. Defendants contended that amending the discovery scheduling order was within the discretion of the trial court and should not be allowed. Then, with the court's permission, Defendants argued their summary judgment motions. Plaintiff's attorney, instead of arguing in opposition to Defendants' summary judgment motions, stated to the trial court:
The trial court then asked Plaintiff's attorney: "What about their argument that your client was contributorily negligent as a matter of law?" Plaintiff's attorney responded: "Well, Your Honor, there again it focuses on the wrong issue." He then proceeded to respond to the trial court's question, and afterwards stated:
The trial court then orally denied Plaintiff's motion to amend the discovery scheduling order. Plaintiff's attorney immediately stated: "[I]n light of that ruling ... we feel that the plaintiff has no choice but to enter into a voluntary dismissal of this action without prejudice against defendants in this case." Defendants contended Plaintiff had argued against summary judgment, and had therefore rested her case prior to seeking voluntary dismissal. The trial court agreed, and granted Defendants' motions for summary judgment.
The issues are whether: (I) the trial court erred in denying Plaintiff's motion to amend the discovery scheduling order; and (II) Plaintiff rested her case prior to seeking voluntary dismissal.
Rule 26 of our Rules of Civil Procedure sets forth general discovery guidelines. See N.C.G.S. § 1A-1, Rule 26 (1990). In medical malpractice actions, the trial court shall:
Establish by order an appropriate discovery schedule designated so that, unless good cause is shown at the conference for a longer time, and subject to further orders of the court, discovery shall be completed within 150 days after the order is issued; nothing herein shall be construed to prevent any party from utilizing any procedures afforded under Rules 26 through 36, so long as trial or any hearing before the court is not thereby delayed....
N.C.G.S. § 1A-1, Rule 26(f1)(3). Orders involving discovery matters are ordinarily within the trial court's discretion. Hudson...
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...the pendency of the summary judgment motion.Wesley , 92 N.C.App. at 515, 374 S.E.2d at 477 ; see also Alston v. Duke Univ. , 133 N.C.App. 57, 61–62, 514 S.E.2d 298, 301 (1999) (holding the plaintiff had not rested where the attorney took a voluntary dismissal after the court ruled on a rela......
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Carlisle v. Csx Transp., Inc.
...thereafter in dismissing his case pursuant to Rule 41 during the pendency of the summary judgment motion." Alston v. Duke University, 133 N.C.App. 57, 61, 514 S.E.2d 298, 301 (1999) (quoting Wesley v. Bland, 92 N.C.App. 513, 515, 374 S.E.2d 475, 477 (1988)). However, a party may still obtai......
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Enforcement
...616 (N.Y.A.D. 2 Dept. 1999); Gadley v. U.S. Sugar Co. , 688 N.Y.S.2d 350 (N.Y.A.D. 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d 168 ......
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Defending and responding in general
...2 Dep’t 1999); Gadley v. U.S. Sugar Co. , 688 N.Y.S.2d 350 (N.Y.A.D. 4 Dep’t 1999). North Carolina : Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio : State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker, 704 N.E.2d 678, 94 Ohio Misc.2d 168 (Ohio......
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Defending and Responding in General
...(N.Y.A.D. 2 Dep’t 1999); Gadley v. U.S. Sugar Co. , 688 N.Y.S.2d 350 (N.Y.A.D. 4 Dep’t 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d ......
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Enforcement
...616 (N.Y.A.D. 2 Dept. 1999); Gadley v. U.S. Sugar Co. , 688 N.Y.S.2d 350 (N.Y.A.D. 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d 168 ......