282 So.3d 751
Miss. Ct. App.2019Background
- Rainer sued River Oaks Hospital for medical negligence alleging latex exposure during radiological tests on Dec. 22, 2011; suit filed Dec. 20, 2013.
- Court scheduling order required expert designations by Mar. 1, 2017; discovery closed June 30, 2017; dispositive motions heard by July 31, 2017.
- River Oaks moved for summary judgment (Apr. 6, 2017) based on Rainer’s failure to designate or produce sworn expert testimony; hearing set for May 24, 2017.
- Rainer served an expert designation (unsworn) the day before the hearing and filed a same-day motion to continue, stating she had an expert report but no affidavit.
- Trial court denied the continuance, granted summary judgment for River Oaks for lack of sworn expert testimony, and later denied Rainer’s motion for reconsideration that attached a sworn affidavit obtained after the hearing.
- Rainer appealed; the Court of Appeals affirmed, finding no abuse of discretion or error in granting summary judgment or denying continuance/reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper for failure to produce sworn expert testimony in a medical-malpractice case | Rainer argued she had designated an expert and later produced an affidavit; judgment was premature | River Oaks argued plaintiff failed to produce sworn expert evidence establishing breach and proximate cause before the hearing | Affirmed: summary judgment proper because plaintiff failed to present sworn expert testimony opposing motion |
| Whether trial court abused discretion by denying a continuance under Rule 56(f) to obtain an affidavit | Rainer argued additional time was needed to obtain the expert affidavit | River Oaks argued plaintiff had ample time and failed to diligently procure sworn testimony | Affirmed: denial not an abuse of discretion due to long delay, prior orders, and plaintiff’s lack of diligence |
| Whether trial court erred denying motion for rehearing/reconsideration after plaintiff later filed sworn affidavit | Rainer argued affidavit constituted new evidence warranting reconsideration | River Oaks argued affidavit was available earlier and failure to submit it at the hearing was unexcused | Affirmed: denial proper; affidavit could and should have been submitted earlier, no new evidence or intervening law |
| Whether an unsworn expert designation/report can defeat summary judgment in malpractice cases | Rainer relied on unsworn designation/report submitted before the hearing | River Oaks contended unsworn materials are insufficient to create a genuine issue | Held: unsworn designations/reports insufficient; sworn affidavit or testimony required to meet burden |
Key Cases Cited
- Handy v. Madison County Nursing Home, 192 So. 3d 1005 (Miss. 2016) (affidavits unavailable at summary-judgment stage must be shown to be unavailable; affidavits filed after judgment may be rejected)
- Miss. Baptist Med. Ctr. Inc. v. Phelps, 254 So. 3d 843 (Miss. 2018) (plaintiff must produce sworn expert testimony to establish prima facie medical-malpractice claim)
- Scales v. Lackey Mem’l Hosp., 988 So. 2d 426 (Miss. Ct. App. 2008) (unsworn answers to expert interrogatories insufficient to defeat summary judgment; Rule 56(f) continuance requires diligence)
- Abdrabbo v. Johnson, 220 So. 3d 952 (Miss. 2017) (affirming summary judgment where plaintiff failed to offer sufficient expert testimony and had adequate time to obtain it)
- Walker v. Skiwski, 529 So. 2d 184 (Miss. 1988) (listing experts in interrogatory responses without sworn testimony is fatal to opposing summary judgment)