Mixon v. Berry
| Decision Date | 29 November 2022 |
| Docket Number | 2021-CA-00494-COA |
| Parties | GREGORY MIXON APPELLANT v. DR. MICHAEL A. BERRY APPELLEE |
| Court | Mississippi Court of Appeals |
BEFORE BARNES, C.J., McDONALD AND SMITH, JJ.
¶1. Gregory Mixon sued Dr. Michael Berry for medical negligence, contending that he suffered injuries resulting from a medical procedure performed by Dr. Berry. Dr. Berry moved for summary judgment on the ground that Mixon lacked sufficient expert testimony to show a genuine issue of material fact. Mixon filed a response in opposition arguing that genuine issues of material fact existed as to whether Dr. Berry acted negligently. The day before the summary-judgment hearing was scheduled to occur, Mixon filed an expert designation containing the identification of his expert witness and a summary of the expert witness's expected testimony. The Lowndes County Circuit Court granted summary judgment in Dr. Berry's favor because Mixon failed to provide an expert affidavit or sworn expert testimony in opposition of summary judgment as required to support his medical negligence claim. Mixon filed a motion for reconsideration, which the trial court denied. Aggrieved, Mixon appeals the grant of summary judgment and denial of his motion for reconsideration. Finding no error, we affirm.
¶2. On February 2, 2018, Mixon underwent a medical procedure at Baptist Memorial Hospital-Golden Triangle performed by Dr. Berry. On January 31, 2020, Mixon filed his complaint against Dr. Berry and Baptist Memorial Healthcare Corporation[1] for medical negligence arising out of the February 2018 procedure. On April 23, 2020, Dr. Berry filed his answer and defenses, interrogatories, and request for production of documents. Mixon responded on July 13, 2020, and "object[ed] to Interrogatory No. 1," regarding the identification of expert witnesses, "as beyond the scope of permissible expert discovery." Mixon further stated that he "has made no decision regarding trial experts in this case at this time."
¶3. On November 16, 2020, Dr. Berry moved for summary judgment and dismissal of Mixon's claims with prejudice. Dr. Berry argued he was entitled to summary judgment because the record lacked medical expert testimony supporting Mixon's claim and did not create a genuine issue of material fact. Following Dr. Berry's motion for summary judgment, Mixon filed a motion on January 19, 2021, requesting a trial setting. Mixon also filed his response in opposition to summary judgment on January 19, 2021. Mixon argued Dr. Berry was unable to prove his position beyond a reasonable doubt, genuine issues of material fact existed as to whether Dr. Berry acted negligently, and Mixon was more than capable of meeting the requisite burden of proof at trial. A hearing on Dr. Berry's motion for summary judgment was scheduled for March 31, 2021.
¶4. On March 30, 2021, the day prior to the summary-judgment hearing, Mixon filed his expert designation identifying the expert witness Mixon planned to call at trial and summarizing the expert witness's expected testimony. The summary-judgment hearing occurred as scheduled, and the trial court subsequently entered its order on April 6, 2021, granting summary judgment in favor of Dr. Berry based upon Mixon's lack of expert opinions. The court found that the medical techniques, procedures, and standard of care for Mixon's treatment were not within the common knowledge of laypersons; that Mixon's expert designation was insufficient because it did not include an affidavit; and that Mixon failed to produce expert testimony on each element of medical negligence. The trial court determined that without an expert witness to testify against Dr. Berry, Mixon failed to produce competent evidence in opposition to summary judgment on his medical negligence claim. Mixon filed a motion to reconsider on April 16, 2021, which the trial court denied on April 22, 2021. Thereafter, Mixon filed a timely notice of appeal.
¶5. "This Court applies de novo review to the circuit court's grant of summary judgment." Handy v. Madison Cnty. Nursing Home, 192 So.3d 1005, 1009 (¶14) (Miss. 2016). "[T]he [trial] court's decision is reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party." Slatery v. Ne. Miss. Cont. Procurement Inc., 747 So.2d 257, 259 (¶4) (Miss. 1999).
¶6. Mixon asserts that the trial court erred when it granted summary judgment in favor of Dr. Berry and denied Mixon's motion for reconsideration. Mixon argues that his failure to identify an expert and provide an expert affidavit was merely a discovery violation. According to Mixon, the trial court abused its discretion when it denied Mixon a continuance under Mississippi Rule of Civil Procedure 56(f) to allow him more time to produce an expert affidavit in order to fully comply with discovery. Mixon alleges that the trial court failed to engage in the proper analysis for determining whether dismissal due to discovery violations is appropriate and that the court erred when it imposed dismissal of his claims as a sanction for his failure to comply with discovery.
¶7. Summary judgment is governed by Mississippi Rule of Civil Procedure 56. Rule 56(b) provides, "A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor . . . ." Pursuant to Rule 56(c), a party is entitled to summary judgment "if the 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 the moving party is entitled to a judgment as a matter of law." This Court previously explained, "A 'genuine dispute' over a 'material fact' exists when the evidence is such that a 'reasonable jury could return a verdict for the nonmovant.'" Frazier v. McDonald's Rests. of Miss. Inc., 102 So.3d 341, 345 (¶21) (Miss. Ct. App. 2012) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)).
¶8. On a summary-judgment motion, "[t]he moving party bears the burden of persuasion to establish that there is no genuine issue of material fact," Rainer v. River Oaks Hosp. LLC, 282 So.3d 751, 754 (¶12) (Miss. Ct. App. 2019), "and that they are entitled to summary judgment based upon the established facts[.]" Karpinsky v. Am. Nat. Ins. Co., 109 So.3d 84, 89 (¶13) (Miss. 2013). Once the defendant has met its summary-judgment burden, the burden of proof shifts to the plaintiff in opposition of the motion. Rainer, 282 So.3d at 755 (¶17). "To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim." Whiting v. Univ. of S. Miss., 62 So.3d 907, 914 (¶9) (Miss. 2011) (overruled on other grounds by Springer v. Ausbern Constr. Co., 231 So.3d 980 (Miss. 2017)).[2] "[Rule] 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Frazier, 102 So.3d at 345 (¶27).
¶9. The dispositive factor in this case is the nature of Mixon's medical-malpractice action for medical negligence. To establish a prima facie case for a medical-malpractice action on a summary-judgment motion, "the plaintiff must prove a duty to conform to a specific standard of conduct, a failure to conform to that standard, and an injury proximately caused by the breach of duty." Jackson HMA LLC v. Harris, 242 So.3d 1, 4 (¶6) (Miss. 2018). The plaintiff is required "to produce sworn expert testimony supporting his or her claim in order to establish a prima facie case of malpractice." Scales v. Lackey Mem'l Hosp., 988 So.2d 426, 433 (¶17) (Miss. Ct. App. 2008).[3] More specifically, our caselaw holds that as a general rule, "medical negligence may be established only by expert medical testimony[.]" Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 650 (¶15) (Miss. 2009) (emphasis added).[4]"Precedents in Mississippi have clearly established that medical expert witness testimony is necessary to support a claim of medical negligence." Berry v. Holbrook, 331 So.3d 47, 50 (¶4) (Miss. Ct. App. 2021). "Without expert testimony establishing a prima facie case of medical negligence, no genuine issue of material fact exists[,]" Vicksburg Healthcare LLC v. Dees, 152 So.3d 1171, 1175 (¶16) (Miss. 2014), and the "plaintiff cannot meet [his] burden of proof" in opposing the summary-judgment motion. Rainer, 282 So.3d at 756 (¶17). Therefore, "when a plaintiff fails to provide expert testimony establishing a prima facie case of medical malpractice, generally, a grant of summary judgment is required." Id. at 755 (¶15).[5]
¶10. When Dr. Berry filed his motion for summary judgment, he sought to have the court dismiss Mixon's case pursuant to Rule 56(b) on the ground that no genuine issue of material fact existed because Mixon lacked the requisite expert testimony for a medical negligence claim. Dr. Berry alleged that Mixon's claim was not supported by medical expert testimony in the record establishing Dr. Berry's applicable duty of care, a breach of duty, or injuries proximately caused by a breach. Dr. Berry's motion contended that, as a matter of law, he was entitled to summary...
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