Ralston v. Yim

• Decision Date: 31 May 2012
• Docket Number: No. 30082.,30082.
• Citation: 282 P.3d 584,128 Hawai'i 42
• Parties: Rick RALSTON, Plaintiff–Appellant, v. Errol Y.W. YIM, D.D.S., Defendant–Appellee. and John Does 1–10; Jane Does 1–10; Doe Partnerships 1–10; Doe Corporations 1–10; and Doe Entities 1–10, Defendants.
• Court: Hawaii Court of Appeals

128 Hawai'i 42

282 P.3d 584

Rick RALSTON, Plaintiff–Appellant,

v. Errol Y.W. YIM, D.D.S., Defendant–Appellee.andJohn Does 1–10; Jane Does 1–10; Doe Partnerships 1–10; Doe Corporations 1–10; and Doe Entities 1–10, Defendants.

No. 30082.

Intermediate Court of Appeals of Hawai‘i.

May 31, 2012.

As Amended June 28, 2012.

Sue V. Hansen, Charles W. Crumpton, (Crumpton & Hansen), on the briefs, for Plaintiff–Appellant.

John Reyes–Burke, Steven E. Tom, (Burke McPheeters Bordner & Estes), on the briefs, for Defendant–Appellee.

NAKAMURA, C.J., FUJISE and GINOZA, JJ.

Opinion of the Court by GINOZA, J.

Plaintiff–Appellant Rick Ralston (Ralston) appeals from the Final Judgment entered by the Circuit Court of the First Circuit (circuit court)¹ on October 9, 2009. In this case, Ralston asserts a claim for dental malpractice against Defendant–Appellee Errol Y.W. Yim, D.D.S. (Dr. Yim), from whom Ralston received orthodontic dental care. The circuit court granted summary judgment for Dr. Yim.

Plaintiff Ralston raises the following points of error on appeal: (1) the circuit court erred in shifting the burden of proof under the summary judgment standard to Ralston, the non-moving party, and thus erred in granting Dr. Yim's motion for summary judgment; (2) with respect to Dr. Yim's summary judgment motion, the circuit court erred in failing to find any triable issues in the submissions by the parties, including with regard to the issue of informed consent; and (3) the circuit court erred in granting costs to Dr. Yim because Dr. Yim should not have prevailed on his motion for summary judgment.

For the reasons set forth below, we hold that summary judgment was not proper and we therefore vacate the judgment in favor of Dr. Yim.

I. Standard of Review

"An appellate court reviews an award of summary judgment de novo under the same standard applied by the circuit court." Thomas v. Kidani, 126 Hawai‘i 125, 127–28, 267 P.3d 1230, 1232–33 (2011) (citations omitted). The standard for granting a motion for summary judgment is settled:

Summary judgment is appropriate 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 judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

Tri–S Corp. v. W. World Ins. Co., 110 Hawai‘i 473, 487, 135 P.3d 82, 96 (2006) (citations and brackets omitted).

This court has further explained the burdens of the moving and non-moving parties on summary judgment as follows:

The burden is on the party moving for summary judgment (moving party) to show the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitles the moving party to judgment as a matter of law. This burden has two components.

First, the moving party has the burden of producing support for its claim that: (1) no genuine issue of material fact exists with respect to the essential elements of the claim or defense which the motion seeks to establish or which the motion questions; and (2) based on the undisputed facts, it is entitled to summary judgment as a matter of law. Only when the moving party satisfies its initial burden of production does the burden shift to the non-moving party to respond to the motion for summary judgment and demonstrate specific facts, as opposed to general allegations, that present a genuine issue worthy of trial.

Second, the moving party bears the ultimate burden of persuasion. This burden always remains with the moving party and requires the moving party to convince the court that no genuine issue of material fact exists and that the moving part is entitled to summary judgment as a matter of law.

Id. at 488, 135 P.3d at 97.

II. Circuit Court Proceedings

Ralston's complaint was filed on May 9, 2008, with an amended complaint filed on May 13, 2008.

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

On April 1, 2009, a Trial Setting Status Conference Order was issued by the circuit court which set the trial date for September 27, 2010. In the order, deadlines for exchange of experts' reports was left blank. The deadline for discovery cut-off under Rule 12(r) of the Rules of the Circuit Court of the State of Hawai‘i (RCCH) was set for July 27, 2010. The deadline for filing pretrial motions that request entry of judgment or dismissal of any claim, pursuant to RCCH Rule 7(f), was set for August 6, 2010.

On April 22, 2009, less than a year after the lawsuit was initiated, Dr. Yim filed a Motion to Dismiss and/or For Summary Judgment. In addition to challenging the circuit court's jurisdiction,² Dr. Yim argued that Ralston could not prove his claim of dental malpractice because Ralston had not disclosed any experts.

In opposition to Dr. Yim's motion, Ralston argued that Dr. Yim had not met his initial burden of showing that no genuine issue of material fact existed that his orthodontic care comported with the accepted standard of care and that he had properly obtained Ralston's informed consent. Ralston also argued that discovery was ongoing, that the case was in the Court Annexed Arbitration Program (CAAP), and the CAAP deadline to exchange expert reports was not until May 22, 2009.

An initial hearing on the motion was held on May 13, 2009, during which the circuit court noted that by agreement of the parties and because expert reports were due under the CAAP deadline on May 22, 2009, Ralston was allowed to file supplemental briefing by May 27, 2009, Dr. Yim was allowed to file a supplemental reply brief by June 3, 2009, and a further hearing was scheduled for June 17, 2009.

On May 20, 2009, Ralston filed his supplemental memorandum in opposition to Dr. Yim's motion. Attached thereto was the declaration of his counsel, to which, in turn, was attached an expert report from Harry Aronowitz, D.M.D. (Dr. Aronowitz) and Dr. Aronowitz's curriculum vitae. Dr. Aronowitz's report stated in pertinent part:

It is my opinion that attempting an ambitious course of treatment which included space closure following extraction on a high risk patient such as Mr. Ralston is beneath the standard of care. It is my opinion as well that treating this patient without the benefit of periapical radiographs is a departure from the standard.

....

It is my opinion that Dr. Yim is responsible for the loss of Mr. Ralston's lower incisors. The combination of an aggressive treatment, on a high risk patient, with significant bone loss, taking a bone altering drug and using a challenging aligner was enough to cause the tooth loss.

On June 3, 2009, Dr. Yim filed his supplemental reply in support of his motion. Therein, Dr. Yim cited to this court's decision in Eddins v. Morrison, 105 Hawai‘i 376, 98 P.3d 247 (App.2004) and argued that Dr. Aronowitz's opinions were not contained in an affidavit or otherwise presented under oath or penalty of perjury, such that his opinions were inadmissible and summary judgment should be granted.

On June 16, 2009, the day prior to the continued hearing, Ralston filed a supplemental exhibit in support of his opposition to the motion. Attached to the declaration of Ralston's counsel was a copy³ of an affidavit by Dr. Aronowitz, also signed June 16, 2009 before a notary public in California. The copy of Dr. Aronowitz's affidavit stated in pertinent part:

3. It is my opinion that attempting an ambitious course of treatment which included space closure following extraction on a high risk patient such as Mr. Ralston is beneath the standard of care.

4. It is my opinion as well that treating this patient without the benefit of periapical radiographs is a departure from the standard of care.

5. It is my opinion that Dr. Yim's treatment of Mr. Ralston was below the standard of care and this treatment resulted in the loss of Mr. Ralston's lower incisors.

A further hearing was held on June 17, 2009, at which the circuit court noted that it had given Ralston leeway, but that under Eddins an attorney cannot authenticate a doctor's opinions. On July 14, 2009, the circuit court entered its order which: struck Ralston's supplemental exhibit filed on June 16, 2009 because it violated RCCH Rule 7(b);⁴ and granted Dr. Yim's motion for summary judgment "for lack of admissible expert evidence[.]"

III. Discussion

A. Summary Judgment

In this appeal, Ralston argues that the circuit court erred in granting summary judgment in favor of Dr. Yim because it improperly shifted the burden of proof to Ralston, the non-moving party. We recognize that the circuit court gave considered thought to the matter and allowed Ralston additional time to submit his expert's opinion, which Ralston failed to do in a manner proper under Rule 56 of the Hawai‘i Rules of Civil Procedure (HRCP). However, because Dr. Yim did not present any evidence as the movant regarding the dental standard of care, and because plaintiff Ralston was not yet required to name his experts or provide their reports under the circuit court deadlines, we conclude that the summary judgment burden was improperly shifted to Ralston in this case. Further, it was reasonable under the circumstances that Ralston was not yet ready to identify experts in response to Dr. Yim's interrogatories and thus Dr. Yim could not simply point to Ralston's interrogatory responses to satisfy his burden as the summary judgment movant.

"It is well settled that in medical malpractice actions, the question of negligence must be decided by reference to relevant medical standards of care...