Travis v. Stewart

• Decision Date: 26 September 1996
• Docket Number: No. 93-CA-00779-SCT,93-CA-00779-SCT
• Citation: 680 So.2d 214
• Parties: Tamara B. TRAVIS, Elijah J. Travis and Elijah J. Travis as Next Friend of Aimee Michelle Travis v. Edsel F. STEWART and Southwest Mississippi Regional Medical Center.
• Court: Mississippi Supreme Court

Page 214

680 So.2d 214

Tamara B. TRAVIS, Elijah J. Travis and Elijah J. Travis as Next Friend of Aimee Michelle Travis v. Edsel F. STEWART and Southwest Mississippi Regional Medical Center.

No. 93-CA-00779-SCT.

Supreme Court of Mississippi.

Sept. 26, 1996.

Rehearing Denied Dec. 5, 1996.

H.E. Horne, Jr., Centreville, for appellant.

Jimmie B. Reynolds, Jr., Steen Reynolds & Dalehite, Jackson, Le R. Brown, Brandon, George Q. Evans, R. Mark Hodges, Wise Carter Child & Caraway, Jackson, for appellee.

EN BANC.

MILLS, Justice, for the Court:

This medical malpractice claim was filed by Tamara B. Travis, individually, and Elijah B. Travis, individually, and as next friends of Aimee Michelle Travis (hereinafter the Travises) against Edsel F. Stewart, M.D. (hereinafter Dr. Stewart) and the Southwest Regional Medical Center (hereinafter Southwest) on October 19, 1990. The Travises appeal the June 7, 1993, trial judge's order granting summary judgment in favor of Dr. Stewart and Southwest. The Travises assert the following three issues on appeal:

I. Whether the court erred in allowing the defendants to present on motion for summary judgment the affidavit of an expert witness whose identity and testimony they had previously refused to divulge?

II. Whether the court erred in granting the defendants' motions for summary judgment based solely on the affidavit of an expert witness, Dr. Martin, because the defendants failed to show that there was no genuine issue of material fact?

III. Whether the court erred in awarding summary judgment for the reason that the record itself raises a question of material fact?

FACTS

Dr. Stewart admitted Tamara Travis to Southwest on October 19, 1988, for delivery of her child. The child, Aimee, was delivered on October 20, 1988, at 2:03 a.m. Tamara and Aimee were discharged from the hospital on October 23, 1988. At the time of discharge, the child was noted to be normal except for "congenital nystagmus," which is a medical term for darting of the eyes. Subsequently, Aimee was diagnosed with varied neurological problems that resulted from alleged negligence of Dr. Stewart and Southwest in failing to perform a caesarean section delivery on Tamara.

The Travises filed their Pike County Circuit Court action on October 19, 1990. Thereafter, the following material events occurred:

11-21-90 Southwest filed a motion to strike all references to damages and answered the complaint also asserting defenses.

11-26-90 Dr. Stewart filed his answer and asserted defenses.

11-30-90 Dr. Stewart propounded interrogatories to the Travises and filed a request for production of documents.

12-06-90 Southwest amended its first answer to the complaint and filed a request 2-06-91 The Travises responded to Dr. Stewart's and Southwest's request for production of documents and answered interrogatories.

for production of documents along with interrogatories.

4-02-91 The Travises moved to amend their complaint by striking the various sums of damages alleged, and moved for an extension of time to conduct discovery based on the complexity of issues. They also, simultaneously, propounded interrogatories upon Southwest and Dr. Stewart.

5-06-91 Southwest responded to the Travises' interrogatories.

5-31-91 An agreed order was filed extending times for discovery. Also, the Court entered an order allowing the Travises to amend their complaint.

6-25-91 Dr. Stewart responded to the Travises' interrogatories.

7-22-91 The Travises responded to the defendants' second set of interrogatories.

8-26-91 Southwest responded to the Travises' request for production of documents and second set of interrogatories.

10-25-91 Dr. Stewart responded to the Travises' second set of interrogatories.

9-17-92 The Travises requested production of delivery room log records for the dates of October 18-19, 1988, from Southwest.

12-01-92 Southwest responded to the Travises' request for production of delivery room log records.

1-28-93 The court granted continuance of the action.

4-08-93 Southwest filed its motion for summary judgment along with an affidavit of James N. Martin, Jr., M.D., its expert. The hearing was set for April 20, 1993.

4-09-93 Dr. Stewart filed his motion for summary judgment to be heard on April 21.

5-04-93 Southwest filed an alternative motion to compel the Travises to respond to interrogatories on experts and summarize their expertise and their opinions. Motion for summary judgment was re-noticed to be heard on May 4, 1993.

On May 10, 1993, the Travises filed the affidavit of Dr. Thomas Sparks. The court heard argument on the motions for summary judgment of Dr. Stewart and Southwest on May 14, 1993. The court informed counsel for the Travises that an expert witness' testimony was necessary to support their case and that Dr. Spark's affidavit was not sufficient to create a genuine issue of material fact. The court granted the Travises ten additional days within which to provide any additional expert testimony by affidavit to rebut the Defendants' evidence. The Travises failed to do so.

On June 7, 1993, the trial court judge entered his order granting summary judgment in favor of Dr. Stewart and Southwest.

STANDARD OF REVIEW

Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving part is entitled to judgment as a matter of law. To prevent summary judgment, the nonmoving party must establish a genuine issue of material fact by means allowable under the Rule. Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).

This Court employs a de novo standard of review in reviewing a lower court's grant of summary judgment motion. Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988). Evidentiary matters are viewed in the light most favorable to the nonmoving party. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354 (Miss.1990). If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983).

In Brown, this Court stated:

When a motion for Summary Judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits Id. at 364, quoting Miss. Rule Civ. Proc. 56(e).

or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, Summary Judgment if appropriate shall be entered against him.

The party opposing the motion must be diligent. Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 415 (Miss.1988). The nonmoving party

remains silent at her peril. For one thing, the non-movant may not rest upon allegations or denials in her pleadings ... Rather, the party opposing the motion must by affidavit or otherwise set forth specific facts showing that there are indeed genuine issues for trial.

Fruchter v. Lynch Oil Co., 522 So.2d 195, 198-99 (Miss.1988).

LAW

I. Whether the court erred in allowing the Defendants to present on motion for summary judgment the affidavit of an expert witness whose identity and testimony they had previously refused to divulge?

The Travises contend that the trial court should not have considered Dr. Martin's affidavit. They argue that they were surprised and prejudiced because Dr. Martin's name and opinions had not been disclosed in response to Plaintiffs' Interrogatories No. 1, in which the plaintiffs asked Southwest and Dr. Stewart to disclose the identity and opinions of experts they would use at trial. Moreover, a second set of interrogatories were propounded, once again requesting the identity of experts to be called at trial. The defendants in their responses submitted no experts that would testify at trial, nor did Dr. Stewart or Southwest supplement their responses to the interrogatories.

Both defendants, without providing prior notice that an expert had been selected, filed on April 8, 1993, a motion for summary judgment noticing a hearing date on April 20, 1993. Attached to this motion was the affidavit of Dr. Martin, the defendants' expert witness, stating that Dr. Stewart and Southwest had "complied with the standard of care in their care and treatment of Tamara Travis and Aimee Michelle Travis."

The Travises contend that a party has a duty under Rule 26(f)(2) of the Mississippi Rules of Civil Procedure to seasonably supplement its answers not only to reveal the identity of expert witnesses but the substance of their testimony as well. State Hwy. Comm. of Ms. v. Havard, 508 So.2d 1099 (Miss.1987).

Southwest argues the Travises waived any objections since they did not file a motion to strike Dr. Martin's affidavit nor did they object to consideration of it by the circuit court. The Travises' first such challenge to the affidavit comes in this appeal.

This Court has previously held that:

In a summary judgement proceeding, the plaintiff must rebut the defendant's claim (i.e., that no genuine issue of material fact exists) by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of her injury.

Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990).

Simply put, Southwest and Dr. Stewart provided the trial judge with an affidavit, not previously disclosed in discovery in support of their motion for summary judgment. Dr. Martin, the affiant, stated that the two defendants "complied with the standard of care in their care and treatment of Tamara Travis and Aimee Michelle Travis."

The Travises did not file a motion to strike the affidavit of Dr. Martin, nor did they file rebuttal affidavits, even though the trial judge gave them 10 additional days in which to present...