Davis v. Hindman
138 So. 3d 214
Miss. Ct. App.2014Background
- Davis sued Surgery Associates for medical malpractice arising from Hindman’s 2007 thyroidectomy.
- A certificate of expert consultation accompanied the complaint, stating an expert qualified to testify would be provided.
- Davis answered discovery and indicated uncertainty about which expert would testify, promising supplementation.
- Davis or her counsel sought Hindman’s deposition; multiple scheduling attempts occurred but no dates were set before summary judgment.
- Surgery Associates moved for summary judgment on Oct. 28, 2011; Davis moved for additional time under Rule 56(f).
- The circuit court denied the Rule 56(f) motion and granted summary judgment on Sept. 18, 2012, final judgment Oct. 2, 2012; Davis appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion denying Rule 56(f) relief | Davis needed Hindman’s deposition to obtain an expert | Davis had ample time and opportunity; deposition was not a condition for expert testimony | No abuse of discretion; denial affirmed. |
| Whether summary judgment was proper given lack of expert testimony | Davis lacked time to obtain an expert and depose Hindman | Davis failed to provide any expert testimony or evidence creating a genuine issue | Summary judgment affirmed. |
Key Cases Cited
- Stallworth v. Sanford, 921 So.2d 340 (Miss. 2006) (discretion in ruling on Rule 56(f) continuances)
- Owens v. Thomae, 759 So.2d 1117 (Miss. 1999) (continuance required to allow discovery)
- Scales v. Lackey Mem'l Hosp., 988 So.2d 426 (Miss. Ct. App. 2008) (must show how postponement will help oppose motion)
- Gammel v. Tate Cnty. Sch. Dist., 995 So.2d 853 (Miss. Ct. App. 2008) (Rule 56(f) not to protect lazy or dilatory)
- Karpinsky v. American National Insurance Co., 109 So.3d 84 (Miss. 2013) (summary judgment proper where no genuine issue of material fact)
- Smith v. Braden, 765 So.2d 546 (Miss. 2000) (summary judgments should be granted with caution)
- Hobgood v. Koch Pipeline Se., Inc., 769 So.2d 838 (Miss. Ct. App. 2000) (diligence required by party seeking delay)
- Smith v. H.C. Bailey Cos., 477 So.2d 224 (Miss. 1985) (non-moving party must be given opportunity to be diligent)