TOMEKA HANDY, INDIVIDUALLY, AS ADMINISTRATRIX FOR THE ESTATE OF WILLIE HANDY, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR WILLIE HANDY v. MADISON COUNTY NURSING HOME
NO. 2015-CA-00413-SCT
IN THE SUPREME COURT OF MISSISSIPPI
06/09/2016
DATE OF JUDGMENT: 06/26/2014; COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT; NATURE OF THE CASE: CIVIL - WRONGFUL DEATH; DISPOSITION: AFFIRMED - 06/09/2016
TRIAL COURT ATTORNEYS: W. ERIC STRACENER, JR. WALTER ANDREW NEELY GEORGE CLANTON GUNN, IV W. DAVIS FRYE
ATTORNEYS FOR APPELLANT: W. ERIC STRACENER, JR. WALTER ANDREW NEELY
ATTORNEYS FOR APPELLEE: GEORGE CLANTON GUNN, IV W. DAVIS FRYE
BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Tоmeka Handy filed a complaint alleging medical negligence against Madison County Nursing Home and Madison County, Mississippi. After the county was dismissed, the nursing home filed a motion for summary judgment arguing that it was entitled to a judgment as a matter of law because Handy had not designated an expert witness. Before the summary judgment hearing, Handy filed designations of two expert witnesses. The Circuit Court of Madison County granted the motion for summary judgment because Handy had failed to produce sworn expert testimony in opposition to the motion for summary judgment. Handy filed a motion for reconsideration along with expert witness affidavits, but the circuit court denied the motion for reconsideration.
¶2. Handy appeals. It is well established that, in a medical negligence case, a plaintiff cannot survive summary judgmеnt without producing sworn expert testimony. Johnson v. Pace, 122 So. 3d 66, 68 (Miss. 2013). Handy argues that, in reality, the circuit court dismissed her case as a sanction for a discovery violation, and the harsh sanction of dismissal amounted to an abuse of discretion. Because the record establishes that Handy failed to meet her burden of production on summary judgment, and the circuit court did not abuse its discretion by denying Handy‘s motion for reconsideration, we affirm the judgment of the circuit court.
FACTS
¶3. Handy filed her complaint for wrongful death on October 4, 2012, individually and in her capacity as the administratrix of the estate of her mother, Willie Handy, who was a resident of the nursing home from August 25, 2008, through the date of her death on April 12, 2011. The suit was filed on behalf of all the decedent‘s wrongful death beneficiaries. Handy alleged that the defendants had breаched the applicable standard of care by failing to prevent or detect a bowel obstruction, which proximately had caused Willie Handy‘s death from the bowel obstruction and sepsis. She attached her notice of claim under the Mississippi Tort Claims Act. Also, Handy attached her counsel‘s certification that he had consulted an expert who was qualified “to give exрert testimony as to the standard of care or negligence.”
¶4. The nursing home filed an answer on December 14, 2012. Also on December 14, 2012, the nursing home filed a notice of service of interrogatories propounded to Handy.1 After filing its answer on January
¶5. On January 2, 2014, the nursing home noticed the depositions of Handy and her sister, Polly Ross, for January 28, 2014. On January 22, 2014, Clay Gunn, counsel for the nursing home, informed Eric Straсener, counsel for Handy, by email that the depositions would need to be postponed because Gunn would be out of town. The next day, the depositions of Handy and Ross were renoticed for February 4, 2014.
¶6. On January 27, 2014, the circuit court entered a third amended agreed scheduling order that further extended the discovery deadlines. This order provided that Handy would designate her experts on or before February 15, 2014, the nursing home would designate its experts on or before March 15, 2014, and all discovery would be completed on or before April 30, 2014. On February 4, 2014, the deposition of Handy took place as scheduled, but the deposition of Ross did not.
¶7. In an email on February 11, 2014, Stracener asked Gunn for a “VERY modest extension” of deadlines so that the expert witnesses could have the benеfit of Handy‘s testimony. Gunn responded that “[w]e can agree to that extension with the understanding that we will have thirty days to provide our expert disclosures.” On February 19, 2014, the nursing home renoticed the deposition of Ross to occur on February 26, 2014. This deposition took place as scheduled.
¶8. Further emails show that, on March 3, 2014, Gunn requested a settlement demand on behalf of the nursing home, and Stracenеr communicated Handy‘s settlement demand to Gunn. The same day, Stracener told Gunn that the expert designation of Handy‘s nursing expert, Eulanda Armstrong, would “be to you any day,” and he requested dates for deposing Handy‘s medical expert, Dr. Benjamin Hudson.
¶9. On March 4, 2014, Stracener told Gunn that he wanted the experts to have the benefit of Ross‘s deposition. One month later, on April 4, 2014, Gunn asked for the status of the expert reports and stated “[n]ext week I‘m sure.” On April 16, 2014, Stracener asked Gunn about
¶10. Then, on April 30, 2014, Gunn sent an email stating that his cliеnt would not agree to any further extensions. And, on May 6, 2014, the nursing home filed a motion for summary judgment, arguing that, because Handy had failed to designate any expert witnesses in support of her medical negligence claims, the nursing home was entitled to judgment as a matter of law under
¶11. Handy filed the expert designation of Armstrong, her nursing expert, on May 27, 2014, and the expert designation of Hudson, her medical expert, on June 6, 2014. These expert designations contained no affidavits or sworn testimony in any form by the experts and were signed by Stracener alone. In an email to Gunn on June 6, 2014, Stracener requested that the nursing home withdraw its motion for summary judgment on the ground that Handy had her designated experts, but the nursing home declined to withdraw the motion. On June 9, 2014, Handy filed a response to the motion for summary judgment. She contended that summary judgment should be denied because, although her expert designations had been delayed due to trial conflicts, her experts had been designated and the nursing home had suffered no prejudice. At no point in these proceedings did Handy seek a continuance under
¶12. At the summary judgment hearing on June 23, 2014, the nursing home argued that Handy had submitted nothing in response to the motion for summary judgment to create a genuine issue of material fact. The circuit court granted summary judgment to the nursing home because Handy had filed no expert affidavits in opposition to the motion. Handy filed a motion for reconsideration on June 26, 2014, arguing that the nursing home had been cooperative during discovery and had acquiesced in the delayed expert designations. She pointed out that, on April 16, 2014, Gunn had agreed to draft an amended scheduling order and had asked Stracener for dates for the designation of experts. She complained that the nursing home abruptly refused to agree to any further extensions. Handy contended that, because she had designated expert witnesses, summary judgment was improper. Handy attached email correspondence between Stracener and Gunn and the expert affidavit of Armstrong. On July 25, 2014, Handy supplemented the motion for reconsideration with Hudson‘s affidavit. The nursing home filed a response in opposition to the motion, and Handy filed a rebuttal.
¶13. In a carefully reasoned opinion,2 the circuit court denied the motion for
DISCUSSION
WHETHER THE CIRCUIT COURT ERRED BY GRANTING THE NURSING HOME‘S MOTION FOR SUMMARY JUDGMENT AND DENYING HANDY‘S MOTION FOR RECONSIDERATION.
¶14. Under
¶15. As the plaintiff in a medical negligence action, Handy had the burden to prove “(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.” Hubbard v. Wansley, 954 So. 2d 951, 956-57 (Miss. 2007) (citing Drummond v. Buckley, 627 So. 2d 264, 268 (Miss. 1993)). Expert testimony was necessary to prove these elements. Hubbard, 954 So. 2d at 957. “When proving these elements in a medical malpractice suit, expert testimony must be used. Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate cоntributing cause, of the alleged injuries.” Hubbard, 954 So. 2d at 957 (quoting Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992)).
¶16. When the nursing home moved for summary judgment on the ground that, due to Handy‘s lack of expert testimony, no genuine issue of material fact existed, the burden shifted to Handy
¶17. Although Handy attempts to distinguish two cases cited by the nursing home in its summary judgment motion, we find that those cases provide her no assistance. In the medical malpractice case of Johnson v. Pace, 122 So. 3d 66, 67 (Miss. 2013), the defendant filed a motion for summary judgment on the ground that the plaintiffs had failed to produce expert testimony. In response, the plaintiffs averred that they had found an expert and requested additional time to supplement discovery responses. Id. The trial court granted summary judgment, finding that the plaintiffs had ample time to designate an expert. Id. This Court affirmed. Id. at 70. In Davis v. Hindman, 138 So. 3d 214, 219 (Miss. Ct. App. 2014), the Court of Appeals affirmed the entry of summary judgment for the defendant because the plaintiff nеver secured an expert witness and never submitted any expert designation. Handy argues that these cases are distinguishable because the plaintiffs in Johnson and Hindman never designated expert witnesses, while in this case, Handy did file expert designations. As already noted, because Handy failed to produce sworn expert testimony in response to the motion for summary judgment, she failed to carry her burden of production, and the nursing home was entitled to summary judgment. Simply put, Handy‘s unsworn expert designations were insufficient to withstand summary judgment.
¶18. Handy‘s other appellate arguments characterize the grant of summary judgment as a discovery sanction imposed for her late designation of experts. She argues that the circuit court erred by rejecting the late expert designations and imposing the ultimatе discovery sanction of dismissal with prejudice. Handy also contends that the circuit court erroneously imposed the sanction of dismissal without considering the factors listed in Mississippi Power & Light v. Lumpkin, 725 So. 2d 721, 734 (Miss. 1998). In Lumpkin, this Court stated that:
We observed in McCollum v. Franklin, 608 So. 2d 692 (Miss. 1992) that excluding evidence for a transgression in discovery is an extreme measure. Before imposing such a sanction a trial court should consider the explanation for the transgression,
the importance of thе testimony, the need for time to prepare to meet the testimony and the possibility of a continuance. Murphy v. Magnolia Elec. Power Ass‘n, 639 F.2d 232, 235 (5th Cir. 1981). The first consideration involves a determination whether the failure was deliberate, seriously negligent or an excusable oversight. The second consideration involves an assessment of harm to the proponent of the testimony. The third and fourth considerations involve an аssessment of the prejudice to the opponent of the evidence, the possibility of alternatives to cure that harm and the effect on the orderly proceedings of the court.
Miss. Power & Light Co. v. Lumpkin, 725 So. 2d 721, 733-34 (Miss. 1998). Handy argues that the trial court erred by dismissing the case because this Court has held that the sanction of dismissal for a discovery violation should be used as a last resort. Robert v. Colson, 729 So. 2d 1243, 1247 (Miss. 1999). Handy also makes arguments that shе did not raise before the circuit court, including that the circuit court should not have dismissed her case because the nursing home had not filed a motion to compel discovery of the experts.
¶19. This Court declines to accept Handy‘s characterization of the dismissal of her case as a discovery sanction. Clearly, the record reflects that the nursing home filed a motion fоr summary judgment under Rule 56(c), not a motion for discovery sanctions. And clearly, the trial court, after considering the motion for summary judgment under the appropriate standard, granted summary judgment to the nursing home because Handy had failed to meet her burden of production. Handy did fail to meet her burden of production, and the nursing home therefore was entitled to summary judgment. We observe that, if Handy had dеsired additional time to produce evidence in opposition to summary judgment, she could have filed a motion pursuant to
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuаnce to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.
¶20. Handy also argues that the trial court erred by denying her motion for reconsideration. In the motion for reconsideration, Handy attempted to cure the deficiency in her summary judgment response by submitting sworn еxpert testimony. She submitted the affidavit of Armstrong, dated June 25, 2014, and the affidavit of Hudson, dated July 17, 2014. Both affidavits were dated after the grant of summary judgment.
¶21. “[A] motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e).” Brooks v. Roberts, 882 So. 2d 229, 233 (Miss. 2004). The movant has the burden to show “(i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Id. (citing Bang v. Pittman, 749 So. 2d 47, 52-53 (Miss. 1999), overruled on other grounds by Cross Creek Prods. v. Scafidi, 911 So. 2d 958, 960 (Miss. 2005)). Handy makes no claim of an intervening change in the law or that the evidence she submitted with the motion for reconsideration was not
¶22. Further, Handy has failed to show that reconsideration was necessary to prevent manifest injustice. This Court has held that “the unexcused failure to present evidence which is available at the time summary judgment is under consideration constitute[s] a valid basis for denying a motion to reconsider.” Fowler v. White, 85 So. 3d 287, 292 (Miss. 2012). In Fowler, the defendants moved for summary judgment оn the ground that Fowler had failed to serve pre-suit notice in a medical negligence case. Id. at 288. Fowler responded with an affidavit from his paralegal saying that he had mailed several notice letters to the defendants, but the affidavit did not specify that the paralegal had mailed the notice letter in Fowler‘s case. Id. at 289. After the trial court granted summary judgment to the defendant, Fowler filed a motion for reconsideration with a second affidavit from the paralegal clarifying that she had mailed the notice letter in Fowler‘s case. Id. at 290. The trial court denied the motion, and this Court affirmed, because the paralegal‘s affidavit was not newly discovered evidence, and its consideration would have allowed Fowler “a second bite at the apple.” Id. at 292. Similarly, Handy has made no claim that the affidavits were newly discovered evidence. The circuit court did not abuse its discretion by refusing to accept affidavits on reconsideration that could and should have been submitted with the summary judgment response. The circuit court did not abuse its discretion by denying Handy‘s motion for reconsideration.
CONCLUSION
¶23. Because Handy‘s unsworn expert designations were insufficient to mеet her burden of production on summary judgment, the circuit court properly granted summary judgment in favor of the nursing home. Further, the circuit court‘s denial of Handy‘s motion for reconsideration was not an abuse of its discretion. Therefore, this Court affirms the judgment of the circuit court.
¶24. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.