Bandeian v. Wagner

• Decision Date: 29 October 1997
• Citation: 970 S.W.2d 460
• Court: Tennessee Court of Appeals
• Parties: John J. BANDEIAN, Jr., M.D., Plaintiff/Appellant, v. Martin H. WAGNER, M.D., Defendant/Appellee, Ray W. Hester, M.D., and Gerald R. Burns, M.D., Defendants.

Page 460

970 S.W.2d 460

John J. BANDEIAN, Jr., M.D., Plaintiff/Appellant, v. Martin H. WAGNER, M.D., Defendant/Appellee Ray W. Hester, M.D., and Gerald R. Burns, M.D., Defendants.

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 29, 1997.

Permission to Appeal Denied by

Supreme Court June 15, 1998.

John J. Bandeian, M.D., Bristol, pro se.

Ed R. Davies, Davies, Cantrell & Humphreys, Nashville, for Defendants/Appellees.

OPINION

TODD, Presiding Judge, Middle Section.

The plaintiff, John J. Bandeian, Jr., M.D. has appealed from the summary dismissal of his suit against the defendant, Martin H. Wagner, M.D. for libel.

Plaintiff's second amended complaint asserts that an unsigned letter containing untruthful statements about plaintiff and another physician was mailed to a patient by the defendant.

Defendant's motion for summary judgment is supported by his affidavit that:

2. I have read Exhibit 1 to the Complaint (letter said to have been postmarked on October 24, 1994 and referred to hereinafter as the or this letter).

3. I did not write this letter.

4. I did not commission, cause, direct, or assist any other person in the writing of this letter.

5. I have no knowledge as to the identity of the author of this letter.

6. I did not mail, commission, cause, direct, or assist in the mailing of this letter.

A party seeking a summary judgment may do so in several ways. Brown v. J.C. Penney Life Ins. Co., Tenn.App.1992, 861 S.W.2d 834.

In a suitable case, the simplest support for a defendant's motion for summary judgment is his affidavit that "I did not commit the act attributed to me in the complaint." The plaintiff must then present admissible evidence that the defendant did commit the act attributed to him.

The present case involves such a simple situation. The complaint alleged wrongdoing by defendant. The defendant swears that he is not the guilty party. Plaintiff has attempted to produce evidence that defendant is guilty. The issue on appeal is whether the evidence offered by plaintiff is competent, admissible evidence creating a dispute as to the fact denied by defendant.

Plaintiff's 13-page "Statement of the Facts" is attached as an exhibit to this opinion. It would be extremely difficult to abbreviate or adequately summarize this statement. A careful study of the details of the evidence in the "statement of facts" fails to disclose any competent, admissible evidence that contradicts defendant's affidavit quoted above. No competent, admissible evidence is found that defendant wrote the letter, or that he conspired or collaborated with anyone who did, or that he and only he had a motive and opportunity to write the letter.

Generally, an ordinary witness must confine his testimony to a narration of facts based on first-hand knowledge and avoid stating a mere personal opinion. Walden v. Wylie, Tenn.App.1982, 645 S.W.2d 247. The opinion of plaintiff and that of his witnesses is not competent evidence of the participation of defendant in the alleged wrong. TRCP Rule 56.01, Braswell v. Carothers, Tenn.App.1993, 863 S.W.2d 722.

A verdict for the plaintiff cannot be based upon speculation, conjecture, guesswork, or a mere spark or glimmer of evidence. Ogle v. Winn-Dixie, Greenville, Inc., Tenn.App.1995, 919 S.W.2d 45; Sadek v. Nashville Recycling Co., Tenn.App.1988, 751 S.W.2d 428.

When faced with a properly supported motion for summary judgment, the opponent of the motion must produce competent, material evidence showing a clear entitlement to maintain his action. Merritt v. Wilson County Board of Zoning Appeals, Tenn.App.1983, 656 S.W.2d 846.

If evidence filed by plaintiff in response to a properly supported motion for summary judgment does not controvert factual statements in defendant's evidence, the response is inadequate. TRCP Rule 56. Kelton v. Snell, Tenn.App.1985, 689 S.W.2d 186.

If the parties had gone to trial upon the evidence offered by them for and against the summary judgment, the Trial Judge would have been obligated to direct a verdict for the defendant because the evidence offered by plaintiff would have required the jury to engage in unwarranted speculation. Stokes v. Leung, Tenn.App.1982, 651 S.W.2d 704, Crowe v. Provost, Tenn.App.1963, 52 Tenn.App. 397, 374 S.W.2d 645.

The summary judgment for the defendant was therefore justified and correct.

The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the plaintiff-appellant. The cause is remanded to the Trial Court for further appropriate proceedings.

CANTRELL, J., concurs.

KOCH, J., concurs in separate opinion.

STATEMENT OF THE FACT'S

The following facts come from the motions and affidavits that Dr. Bandeian previously filed with the Trial Court in opposition to the Defendant's Motion for Summary Judgment. Dr. Bandeian is a surgeon in Bristol, Tennessee. (Exhibit B # 1). Mrs. Debby Messinger is the plaintiff in the medical malpractice suit against Dr. Wagner, a Nashville area neurologist, Dr. Burns, a Nashville area general surgeon, and Dr. Hester, a neurosurgeon. Messinger, Burns, Hester and Wagner are all from the greater Nashville area. (Exhibit B # 2). Dr. Bandeian has no connections with Nashville. Mrs. Messinger alleged that Dr. Burns negligently cut her spinal accessory nerve while doing a neck node biopsy. (Exhibit B # 2). She also alleged that Drs. Wagner and Hester negligently failed to recommend that she have the nerve repaired in a timely manner. (Exhibit B # 2 ). Dr. Bandeian repaired a cut nerve on Mrs. Messinger at Johnson City Medical Center (JCMC) in the spring of 1992. (Exhibit B # 3). The cut nerve is the subject of Mrs. Messinger's malpractice suit. JCMC is located in Johnson City, Tennessee. (Exhibit B # 3). During the surgery Dr. Bandeian had the circulating nurse take several pictures of the cut nerve before he repaired it. (Exhibit B # 4). After he repaired the nerve, he took a break while Dr. Pettigrew, a neurosurgeon, observed the repair. (Exhibit B # 4). While Dr. Bandeian was on break he took several pictures of the repaired cut nerve himself. (Exhibit B # 4).

When the photos were developed, Dr. Bandeian observed that the pictures taken of the nerve ends before the repair were not of adequate magnification for Dr. Bandeian to see the cut nerve ends. (Exhibit B # 5). He thought that if he examined the photos with a magnifying lens he would be able to identify the cut nerve ends. Id. Because of his plans to attend law school, he did not have occasion to go back to JCMC after Mrs. Messinger's surgery until several months after the anonymous letter was received by Mrs. Messinger. Id # 6. Dr. Bandeian has not discussed Mrs. Messinger with anyone connected with JCMC since the date of her surgery. Id. He has never discussed any of his personal or professional affairs with anyone connected with JCMC. Id. His deposition for the Messinger case was scheduled for July 6, 1994. Id. # 7. The day before his deposition, he studied the photos that the nurse took with a magnifying lens. Id. # 7 Even with extra magnification, he was not able to identify the cut nerve ends well enough to demonstrate to a jury with these photos, the cut nerve ends that he could see during surgery. Id. At that point for the first time, he knew that he would have to testify that the photos were not of sufficient magnification to show the cut nerve ends before the repair. Id. Prior to that time, he had told the nurses in the operating room at JCMCH, his office staff and others that he had pictures of the cut nerve before he repaired it. Id. He was deposed by the lawyers representing Drs. Burns, Wagner, and Hester on July 6, 1994. Id. # 8 Of the three defendants, only, Dr. Wagner was present at the deposition. Id. He made his own tape recording of Dr Bandeian's testimony. Id. During Dr. Bandeian's testimony, he admitted that, in spite of the many pictures he had of Mrs. Messinger's surgery, he did not have pictures of the cut nerve before he repaired it. Id. # 9 The only time, prior to the letter being postmarked, that he ever revealed to anyone that--although he had many pictures of Mrs. Messinger's surgery, he did not have any photos that showed the cut nerve ends before the repair--was during his Messinger deposition testimony. Id. # 10

An anonymous letter, exhibit A to his complaint was mailed to Mrs. Messinger. Id. # 11 It was post marked October 24, 1994 from Knoxville. Id. The anonymous letter contains false statements about Dr. Bandeian which are injurious to his reputation as a plastic surgeon. Id. # 12 Although the letter was anonymous and postmarked from Knoxville, the author of the letter indicated in the letter that he worked at JCMC in Johnson City. Id. # 13 The author of the letter accused Dr. Bandeian of conspiring with Mrs. Messinger's attorney, Paul Kaufman to criminally defraud her. Id. # 14 The author told her that Dr. Burns did not cut the nerve. Id. The letter accused Dr. Bandeian of intentionally cutting a nerve so that he could charge for repairing it and for testifying for Mrs. Messinger. Id. The letter suggested that the reason, why none of the many photos that were taken of her surgery showed the cut nerve ends, was that the nerve had not been cut until Dr. Bandeian intentionally cut it. Id. # 15 Only someone who was present at Dr. Bandeian's deposition or who had read the transcript could have known that among all his pictures of Mrs. Messinger's surgery, he did not have any photos of the cut nerve before it was repaired. Id. Dr. Wagner was present when Dr. Bandeian testified that of all the photos taken during the surgery, he had no photos of the cut nerve before he repaired it. Id.

Although the letter purports to have been written by someone from JCMC, there are several reasons why no one connected with JCMC could have sent the letter. Id. # 16 First and most important, only someone who was present at Dr. Bandeian's Messinger deposition or who had read the...