Virginia Ross v. Dr. Matthew C. Wallack
188 So. 3d 597
Miss. Ct. App.2015Background
- Virginia Ross sued Dr. Matthew Wallack for wrongful death, alleging overprescription of medications caused her son Scott Ross's death.
- Wallack served interrogatories, requests for production, and requests for admissions on Virginia; he filed a notice of discovery filing (with certificate of service) showing the requests for admissions were served on May 6, 2011.
- Virginia answered interrogatories and document requests on May 16, 2011, but did not timely respond to the requests for admissions. She later claimed she never received the requests until Wallack filed a motion for summary judgment.
- Wallack moved to deem the requests for admissions admitted under Mississippi Rule of Civil Procedure 36 and moved for summary judgment; Virginia then filed responses to the admissions but did not file a Rule 36(b) motion to withdraw or amend them.
- The trial court deemed the admissions admitted, granted summary judgment for Wallack (finding Virginia lacked expert proof of breach and causation), denied Virginia’s motion to alter or amend, and this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Virginia timely answered requests for admissions under Rule 36 | Ross contends she never received the requests until Wallack’s summary judgment motion and thus her later answers were timely | Wallack showed service via certificate; requests became admitted after 30 days absent answers | Admissions were deemed admitted because Ross did not answer within Rule 36 time and did not file a motion under Rule 36(b) to withdraw/amend |
| Whether summary judgment was proper given deemed admissions and lack of expert proof in medical-malpractice case | Ross argued her later-submitted expert opinion and affidavits should prevent summary judgment | Wallack argued admitted facts established Ross had no qualified medical expert on breach or causation, entitling him to summary judgment | Summary judgment affirmed: deemed admissions conclusively established absence of expert proof on breach and causation, so defendant entitled to judgment |
Key Cases Cited
- Byrd v. Bowie, 933 So. 2d 899 (Miss. 2006) (standard: summary judgment reviewed de novo; factual findings on receipt of discovery not reversed unless manifestly wrong)
- Palmer v. Biloxi Reg‘l Med. Ctr., Inc., 564 So. 2d 1346 (Miss. 1990) (medical-malpractice requires expert testimony to establish breach of standard of care)
- Johnson v. Pace, 122 So. 3d 66 (Miss. 2013) (plaintiff bears burden of proof in medical-malpractice action)
- Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645 (Miss. 2009) (absence of necessary expert testimony supports summary judgment for defendant in malpractice case)
- Scoggins v. Baptist Mem‘l Hospital-DeSoto, 967 So. 2d 646 (Miss. 2007) (discovery rulings are discretionary and reviewed for abuse of discretion)
- Montgomery v. Stribling, 115 So. 3d 823 (Miss. Ct. App. 2012) (Rule 36 admissions are established by operation of law unless court permits withdrawal or amendment via Rule 36(b))
- Deblanc v. Stancil, 814 So. 2d 796 (Miss. 2002) (Rule 36 enforcement: admissions by default are established until withdrawn under Rule 36(b))