Ralston v. Yim

• Decision Date: 25 January 2013
• Docket Number: No. SCWC–30082.,SCWC–30082.
• Citation: 292 P.3d 1276,129 Hawai'i 46
• Parties: Rick RALSTON, Respondent/Plaintiff–Appellant, v. Errol Y.W. YIM, D.D.S., Petitioner/Defendant–Appellee.
• Court: Hawaii Supreme Court

129 Hawai'i 46

292 P.3d 1276

Rick RALSTON, Respondent/Plaintiff–Appellant,

v.Errol Y.W. YIM, D.D.S., Petitioner/Defendant–Appellee.

No. SCWC–30082.

Supreme Court of Hawai‘i.

Jan. 25, 2013.

John Reyes–Burke, for petitioner.

Sue V. Hansen, for respondent.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, and McKENNA, JJ., and Circuit Judge AHN, in Place of POLLACK, J., Recused.

Opinion of the Court by RECKTENWALD, C.J.

This appeal requires us to consider the evidentiary burden that must be satisfied before summary judgment can be granted. Plaintiff Rick Ralston sued his dentist, Dr. Errol Y.W. Yim, claiming that Dr. Yim had negligently provided him with orthodontic care to correct overcrowding in his lower front teeth.

Dr. Yim moved for summary judgment. At the first hearing on the motion, the circuit court sua sponte ordered a continuance pursuant to Hawai‘i Rules of Civil Procedure (HRCP) Rule 56(f) to allow Ralston to submit an expert's affidavit establishing that Dr. Yim failed to meet the applicable standard of care. Prior to the next hearing, Ralston's counsel submitted an unauthenticated report by Dr. Harry Aronowitz, which stated that Dr. Yim did not meet the standard of care. Dr. Yim filed his reply and asserted that because Ralston had failed to provide an expert affidavit, as required under HRCP Rule 56, summary judgment should be granted.

On the day before the continued hearing, Ralston's counsel submitted a faxed copy of an affidavit from Dr. Aronowitz. At the continued hearing, Dr. Yim argued that the affidavit should be stricken because it was untimely, and further asserted that it was inadmissible because it was a faxed copy and not an original. The circuit court agreed with Dr. Yim, and stated that it had already given Ralston an opportunity to continue the proceeding so that he could obtain a proper affidavit. The circuit court struck Ralston's faxed affidavit, denied Ralston's further request for a HRCP Rule 56(f) continuance, and granted summary judgment in favor of Dr. Yim.¹

Ralston appealed, arguing, inter alia, that the circuit court erred in granting summary judgment in favor of Dr. Yim because it shifted the burden of proof to Ralston by requiring that he submit an expert affidavit, even though Dr. Yim had not come forward with evidence that he had met the standard of care. The Intermediate Court of Appeals determined that Dr. Yim failed to satisfy his initial burden as the summary judgment movant. Ralston v. Yim, 128 Hawai‘i 42, 45–51, 282 P.3d 584, 587–93 (App.2012). The ICA also noted that Ralston did not have "adequate time" to conduct discovery, and that Ralston's case was accordingly distinguishable from the leading federal case of Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (noting that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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"). Ralston, 128 Hawai‘i at 50–51, 282 P.3d at 592–93. Thus, the ICA vacated the circuit court's final judgment and remanded the case for further proceedings. Id. at 52, 282 P.3d at 594.

In his application, Dr. Yim raises the following question:

Was it grave error for the ICA to excuse [Ralston's] failure to move for a [HRCP] Rule 56(f) ^{[2 ]} continuance and failure to authenticate exhibits containing expert opinions, by requiring Dr. Yim, in a summary judgment motion, to come forward with affirmative evidence establishing the standard of care and prove he did not violate said standard?

We hold that the ICA did not err in vacating the circuit court's judgment. As this court has previously articulated, a summary judgment movant may satisfy his or her initial burden of production by either (1) producing admissible evidence to show there was no genuine issue of material fact, or (2) showing that the non-moving party cannot carry his or her burden of proof at trial. French v. Hawaii Pizza Hut, Inc., 105 Hawai‘i 462, 470–72, 99 P.3d 1046, 1054–56 (2004). However, as the ICA pointed out, the movant generally cannot support its initial burden of production by pointing solely to the non-moving party's lack of evidence if discovery has not concluded.

However, the ICA's discussion of the United States Supreme Court's decision in Celotex could be read to suggest that summary judgment may be appropriate prior to a discovery deadline if the non-movant has had "adequate time to conduct discovery and to identify experts." Ralston, 128 Hawai‘i at 51 n. 11, 282 P.3d at 593 n. 11. Such a rule would be inconsistent with this court's case law and the rules governing summary judgment. First, granting summary judgment on the ground that the non-movant cannot presently satisfy his or her burden of proof would be inconsistent with French, which requires a showing that the nonmovant cannot carry his or her burden of proof at trial. Second, the procedure for obtaining a continuance set forth in HRCP Rule 56(f) is the means by which a non-moving party can assure that he or she has had "adequate time" to conduct discovery before the motion is decided. The ICA's suggestion that "adequate time" is a substantive requirement for the granting of a motion for summary judgment could cause confusion as to the rights and obligations of the parties under HRCP Rule 56(f). Thus, we conclude that HRCP Rule 56(f) is the proper procedure to request and obtain additional time to respond to a motion for summary judgment that is filed prior to the discovery deadline.

Nevertheless, we conclude that the circuit court erred in granting summary judgment since Dr. Yim did not satisfy his initial burden of production. Therefore, the judgment of the ICA is affirmed.

I. Background

The following factual background is taken from the record on appeal.

A. Circuit Court Proceedings

On May 9, 2008, Ralston filed a civil complaint against Dr. Yim in the circuit court. He subsequently filed a First Amended Complaint on May 13, 2008, and asserted:

....

6. On or about November 15, 2005, sixty-four year old [ ] Ralston sought orthodontic dental care with [Dr.] Yim, DDS to reduce crowding

in [Ralston's] lower front teeth.

7. [Dr.] Yim's treatment plan included extracting [Ralston's] lower lateral tooth (front tooth # 23) and using Invisalign aligners to move the three remaining lower front teeth (front teeth # 24, 25, 26) to close the gap. As a result of [Dr.] Yim's negligent dental treatment, [Ralston] lost the remaining three front teeth.

8. At no time did [Dr.] Yim advised [sic] [Ralston] of the risk that [Ralston] could lose his three lower front teeth.

9. [Dr.] Yim failed to advise [Ralston] of other treatment alternatives and their respective risks and advantages in order to enable [Ralston] an informed decision. [sic]

10. As a result of [Dr.] Yim's aforementioned negligence, including dental treatment that fell below the standard of care and failure to obtain [Ralston's] informed consent, [Ralston] has suffered irreparable injury and harm from the loss of his four natural front teeth.

11. The negligence of [Dr.] Yim was and is a legal cause and/or substantial factor in causing [Ralston's] injuries and damages.

....

Dr. Yim filed his answer denying the allegations against him and asserting multiple defenses.

On December 16, 2008, Ralston filed a pretrial statement, which stated, "[a] dental expert will be designated upon availability."

On April 1, 2009, the circuit court issued a Trial Setting Status Conference Order, which set trial for September 27, 2010. The Order set the deadline for completion of discovery as July 27, 2010, pursuant to Rules of the Circuit Court of the State of Hawai‘i (RCCH) Rule 12(r).³ The deadline for the exchange of experts' reports was left blank in the Order. The deadline for filing pretrial motions requesting entry of judgment or dismissal of any claim was set for August 6, 2010, pursuant to RCCH Rule 7(f).⁴

1. Motion for Summary Judgment

On April 22, 2009, Dr. Yim filed a Motion to Dismiss⁵ and/or Motion for Summary Judgment (motion for summary judgment). In his memorandum in support of the motion, Dr. Yim argued:

Hawaii law is clear that in this dental malpractice action, [Ralston] bears the burden of proof and moreover must prove any alleged breach of the standards of dental care through competent expert testimony. Moreover, [Ralston] must establish the materiality of any allegedly non-disclosed risk of treatment through competent expert testimony to establish the required elements of an informed consent claim.

Here, despite informal requests and interrogatories directed at such experts and the opinions to be offered against Dr. Yim, [Ralston] has disclosed neither the identity of any experts nor the substance of any opinions to be offered against Dr. Yim. Consequently, Dr. Yim is entitled to summary judgment in his favor and against [Ralston] based on well-settled Hawaii law.

Attached are [Ralston's] responses to Dr. Yim's two sets of interrogatories, in which absolutely no information is disclosed as to any expert or substantive expert opinion....

Dr. Yim respectfully submits that as [Ralston] has filed his pretrial statement of readiness and has proceeded to schedule a trial date, it is not premature to hold [Ralston] to his proof. Given the absence of admissible expert testimony to prove any alleged breach of the standard of care, or to prove the materiality of any allegedly undisclosed risk of treatment, Dr. Yim submits he is entitled to summary judgment in his favor.

Dr. Yim attached copies of Ralston's answers to his interrogatories. Attached as exhibit A was Ralston's December 8, 2008 response to Dr. Yim's November 3, 2008 First Interrogatories to Plaintiff, which asked for each person whom Ralston expected to call as an expert witness at trial and the substance of their testimony. In relevant part, Ralston...