*1 appellee We hold that had of the Lord Ditch by way
an easement convey land to appellants’
through water to his land. appropriated
claimed on his
This conclusion is based right, ap as far as
unrebutted facie concerned, arising out of his
pellants are right, water adjudicated
Board of Control agreement between
but also The owner of an
appellants appellee. pos of land each
easement and the owner must, possible, far as each rights
sess Bard Ranch
respect the other’s use. Co.
Weber, P.2d 730. An Wyo.1976, 557
injunction remedy is a available to enforce rights as between the owner respective and the owner of the sub the easement Fuel
servient estate. Weber v. Johnston
Liners, Inc.,
also a
junctive relief as a means to enforce water 41-6-302, rights,
and ditch W.S.1977. §
Ill damages the matter of and dismissal
On counterclaim, we have reviewed the supports
record and find that the expressed findings
the court’s set out opinion.
introduction to this
Affirmed. VASSOS,
Nora Administratrix V. Representative
Personal of the Estate Vassos, (Plaintiff), Appellant
of Gus ROUSSALIS,
Louis J. M.D. and John
Corbett, M.D., Appellees
(Defendants).
No. 5394.
Supreme Wyoming. Court of
March
Terry Mackey, W. Cheyenne, and John Hursh, Riverton, appellant. for Vlastos, Reeves, Joseph E. Vlastos & Casper, appellee Roussalis, for Louis J. M.D., Bon, Schwartz, and William S. Bon Casper, & for McCrary, appellee John Cor- bett, M.D. ROSE, J., McCLINTOCK,
Before C. RAPER, ROONEY, THOMAS JJ. ROONEY, Justice. an action
Appellant-plaintiff instituted Vassos, wrongful death of Gus the death was caused alleging negligent diagnosis, treatment care and (medical by appellees-defendants rendered malpractice). ap- granted The trial court pellees’ summary judgment, motion for submitted finding that the affidavits appellant’s “statements witnesses contained legal and were insufficient conclusions” “to overcome detailed factual statements” witnesses appellees’ the affidavits Appellant “that was no negligence.” there appeals judgment. from the summary case inas- We reverse and remand the position agree appellant’s much as we on presented by issue her following on the appeal: TO
“THE AFFIDAVITS APPENDED TO SUM- APPELLANT’S OPPOSITION A SUB- MARY JUDGMENT RAISE AND STANTIAL FACTUAL ISSUE DE- TO ARE ALONE SUFFICIENT FEAT JUDGMENT.”1 SUMMARY In of their motions judgment, affidavits appellees submitted M.D., Gooder, B. Dur- Harry R. Brent ham, his medical setting After forth M.D. competency to background to establish his holding unnecessary “THE TRIAL COURT ERRED IN Our makes it to consider GRANTING presented appeal two the other issues on APPEL- this SUMMARY JUDGMENT BECAUSE LEES, and worded as follows: THE DRS. WITH AFFIDAVITS OF DURHAM, AND FAILED TO GOODER “A GENUINE ISSUE MATERIAL OF FACT BURDEN MEET THEIR OF DEMONSTRAT- IS IN THE APPARENT RECORD AND PRE- OF FACT THE ABSENCE A MATERIAL ING (The CLUDES SUMMARY JUDGMENT.” ISSUE.” depositions record items to are referred interrogatories. answers issues formed the affidavits are not there- altered by.) “7. Dr. Gooder’s affida- Affiant has reviewed the premises, records and material indicated above and affiant vit reads: negligent, knows of no careless and requested “3. has been to and Affiant wrongful act or omission Louis J. hospital has reviewed the medical and Roussalis, M.D., at occurring any time in Vassos, de- pertaining records to Gus *3 Vassos, the care and treatment of Gus deposition ceased, and has also read the of deceased. Affiant is that M.D., Roussalis, one of given by Louis J. by the care and treatment rendered Louis litigation. captioned in the the defendants M.D., Roussalis, J. and all others indi- is familiar with standard “4. Affiant examined, cated in the medical records physicians practicing applicable of care of performed was within the exercise community dur- Casper, Wyoming in the care, learning that of and degree skill of 1976 and Summer and ing Spring ordinarily possessed by and exercised familiar with the standard of care is also community, in this physicians practicing of the medical applicable to members communities, during or similar such of community engaged practice in the Further, Spring and of 1976. Summer general family practice medicine and/or based affiant is of the and of 1976. during Spring Summer the examination of the materials indi- “5. and symptoms That based above, ren- cated the care and treatment in the medical signs indicated and noted Vassos, deceased, was in dered to Gus deposition in the records and as set forth degree with the learn- accordance Roussalis, M.D., particularly J. of Louis and ex- ing ordinarily possessed and care upper quadrant relating right to the personnel, by hospitals, ercised deceased, of the abdomen of the the ini- surgeons practic- including physicians and gastritis acute or acute diagnosis tial at the time of ing Casper, Wyoming and cholecystitis my judgment was in care, procedures.” treatment and said Further, upon ad- opinion appropriate. his medical back- setting After forth deceased, Vassos, mission of Gus competency to testi- ground to establish his Hospital, Natrona Memorial County Dr. Durham’s affidavit fy premises, in the and studies appropriate diagnostic test reads: per- and procedures requested and deposition “2. That he read the has formed and obtained. The care and 18, 1979 and has Dr. taken June Corbett Roussalis, J. by treatment rendered Louis of the Natrona copies read and studied M.D., care conformed to the standard of records, identi- Hospital Memorial County such as this applicable to medical cases deposi- fied, and used in the referred to the con- obtaining and included therein Roussalis tions of doctors Corbett and Corbett, sultation of and M.D. from John the care and treat- which are referable to “6. As indicated the materials exam- by 6, 1976 to Vassos from June ment Gus affiant, performed surgery ined was August 10, 1976, and early evening of June dep- That such records and “3. based on of Gus Vas- management thereafter he is of the ositions sos, deceased, that of John primarily was used, judg- and procedures diagnoses M.D.; Corbett, however, it is well within treatment ments made and the care and care for the applicable standard of were in accord- by Dr. Corbett rendered physician, family practitioner initial medically usual, ordinary ance with and or general practitioner, to continue practice of medical accepted standards follow rendered the care and treatment Wyo- Casper, prevailing at the time Vassos, patient to a such as deceased of such Gus All communities. ming other any way and care surgeon judgments, to assist procedures, diagnoses, continuing appear care possible relative to the Dr. Corbett and treatment performed and treatment such a made and to be rendered to have been care, skill and patient. degree exercise care, degree with the exercise and exer- ordinarily learning possessed practic- learning ordinarily possessed surgeons and skill and by physicians cised surgeons by physicians other communities. and ing Casper and exercised Casper, Wyoming, other practicing Dr. has known Corbett “4. Your affiant my opinion It communities in 1976. years over 15 professionally and treatment rendered that the care skill and acquainted with his and Roussalis Vassos Drs. Corbett Gus opin- In his surgeon. ability general as a negligent and that negligent, was time ion, and was at the Dr. Corbett is in accordance which was not treatment relevant, surgeon, and able a skilled required standard of care degree of that possessed is and was the cause of was physicians such possessed learning commonly skill and death of Gus Vassos. of his other members and exercised Casper who a detailed profession is based My opinion “4. *4 your of which affiant area or other areas in the hos- of the facts contained review knowledge. has of Drs. depositions and the pital records Roussalis, too vo- which are and do Corbett depositions and “5. That the records Affidavit, this be stated in luminous to or event which condition any not disclose throughout but which facts are contained neglect from he would consider resulted in the to records and referred the medical on the use reasonable care or failure to Roussalis, Corbett, and of Drs. depositions part of Dr. Corbett.” Durham.” motions for opposition In back- And, reciting after his submitted the affida- judgment, appellant to testi- competency M.D., to establish Flick, ground and Dan B. vits of William D. Dr. affidavit fy premises, in the Greer’s Greer, forth his medical setting M.D. After reads: background competency to establish his Flick’s affidavit premises, Dr. records “2. I have read the medical
reads: Hospital Memorial County the Natrona Vassos to the treatment of Gus relating depositions
“2.
I have read the
of Drs.
16,1976, and
Durham,
6,1976 August
Corbett, Roussalis,
and have
from June
and
Drs.
records,
depositions
I have also read the
referred to
reviewed the
herein
relating to the
and Corbett
chart,
of Gus
Roussalis
hospitalization
as the
Drs. Rous-
given by
care
treatment and
Memorial Hos-
County
Vassos at Natrona
to Gus Vassos.
salis and Corbett
which records are identified and
pital,
depositions of
referred to and used in the
and
facts contained
“3. Based
Durham,
Corbett, Roussalis,
re-
Drs.
and
in the above-refer-
the information stated
of Gus
to the care and treatment
it
lating
depositions,
records and
enced medical
17,
6,
August
used,
from June
1976 to
Vassos
procedures
my opinion
made,
care
and
diagnosis,
judgments
and
Drs. Corbett
rendered
con-
and treatment
“3. Based
the information
in accordance
records,
were not
depositions,
and the
and Roussalis
tained
usual,
medically
ordinary and
I am of the
the care ren-
standards of medical
accepted
dered
Drs. Corbett and Roussalis
Wyo-
Casper,
at the time in
hospi-
prevailing
of his
during
period
Gus Vassos
my
It
communities.
6,1976 August
ming, or other
talization from June
diagnoses,
procedures,
with the usu-
was not in accordance
rendered
and treatments
accepted
judgments,
standards
care
medically
al ordinary
negli-
were
time
Drs. Corbett and Roussalis
practice prevailing
of medical
at the
performed
gent and were not
Wyoming,
and other communi-
Casper,
care, skill and
ties,
degree
diagnosis,
exercise
procedures,
and that
exer-
learning ordinarily possessed
Dr.
judgment, care
Cor-
and treatment
practic-
surgeons
by physicians
not made
cised
bett and Dr. Roussalis were
gerous
and other com-
ing
Casper, Wyoming
agency,
Management
Diamond
Cor-
munities.
poration
Empire
Corporation, supra.
Gas
malpractice
A
“4.
It is
that based
contention is also one of
my opinion
records
those circumstances.
specific
facts contained in the medical
The more
depositions
referred to in the
of Drs.
malpractice
standard for
actions is that a
Corbett,
Roussalis and
and the facts con-
physician
surgeon
must exercise the
tained in
Drs.
depositions
Roussalis
diligence
and must apply
negligent
and Corbett that
care and
methods,
the means and
which would rea-
treatment
Drs. Corbett and Roussalis
sonably
applied
be exercised and
sim-
under
of Gus Vassos were the cause
ilar circumstances by
pro-
members of his
death of Gus Vassos.”
good standing
fession in
and in the same
Hunter,
practice.
line
Wyo.,
Govin v.
Appellees argue that
the affidavits of
(1962);
In this
of the
the existence
of the
knowledge
jury,
within the common
physician-patient
relationship established
compre
in
does not need assistance
duty.
jury
The standard is fixed as that
by the court.
hending the standard fixed
required
person
which is
of a reasonable
in
are
of
But when such circumstances
light
of all the
Fegler
circumstances.
jury
such common
must de
Brodie, Wyo.,
(1978);
when the such ferred to standard of care circumstances are reasonable is not within person standard and inferred that such either was or was knowledge jury. the common not delineated the care afforded Again, opinion deceased. a conflict was question is answered and Once this indicated. comprehended by jury, the standard is can ad dili question the more usual factual be The facts relative to the dressed, i. gence knowledge reasonably did the conduct to be exer e. defendant’s and again, and relative Here a cised under circumstances conform to the standard. to be reasonably to the means and methods defendant’s con simple comparison mem under the circumstances exercised duct with the standard can often resolve profession good standing bers But, again, if the defendant’s matter. line necessi the same must of beyond is technical to be conduct so ty on the basis of be determined knowledge jury, jury common true as to the facts evidence. same is will need testimony the assistance of not defendants con relative to whether or experts. Necessity Annotation: con formed thereto. The evidence expert an for action these in this templated to address facts malpractice against physician surgeon, issue fact exists. action is in conflict. An supra. pro- for further Reversed remanded case, In this appellees’ motion summa- ceedings. ry judgment supported by was affidavits practitioners. from two medical Affidavits Justice, McCLINTOCK, specially concur- of two practitioners other medical ring. filed appellant opposition summary agree motion I of this judgment. Although In each reversal instance, gave compelled specially affiant an based case I proper, am rule upon a review of the in the result. The time-honored medical records concur it is judgment cases depositions taken connection with *6 a has opinions matter.2 The in con- when established moving party direct the non-moving party flict with the prima reference to whether or not facie case that the showing the diagnosis present defendants’ and treatment were required to within issue material applicable genuine the standard care. existence of a rely upon the would 604 P.2d jury Kiljander, Wyo., Since have to Moore v. fact. majority these and determining similar in As I read the 207 our opinion, conjunction the reasonableness of actions un- with appellees’ taken in circumstances, Grizzle, Wyo., the weight der with the to Harris v. recent decision in dependent given opinions being (1981) (released be to those 625 747 publica- P.2d upon court, mal- upon 3/20/81), facts or data which based tion in medical this upon cases, to given practice requirement the wit- this credibility ignore will by summary judg- ness a in jury, contemplated right conflict and will test plaintiff evidence was indicated. The affidavits re- degree ment to which the by 702, W.R.E., provides: reasonably upon by experts type 2. Rule relied in a particular forming opinions in or field scientific, technical, specialized “If or other subject, or data inferences the facts knowledge will assist the trier fact to un- not be admissible in evidence.” need derstand the evidence or to determine a fact 705, W.R.E., provides: issue, qualified by Rule expert in a witness as an expert opinion may training, in terms of experience, “The or edu- cation, may testify give his therefor or inference and reasons thereto form of an opinion underlying prior or otherwise.” without disclosure 703, W.R.E., data, provides: requires Rule or the court other- facts unless particular expert “The in may any facts or data case be re- wise. The quired event expert which an an or infer- underlying bases facts or to disclose the may perceived by ence be those or made data on cross-examination.” hearing. known to him at or before the If of 774 standard, conformed to this he is then re- evidence.
supports case affirmative departure this demonstrate that the non-con- majority explain quired The do not injury was not the cause of the formity and I find it ill-advised. Hoden, supra, of. Daboll v. 222 complained rule with the quarrel No one seems to has estab- N.W.2d at 735. Once the movant expressed by the which I have found best of medical mal- lished the non-existence Hoden, Supreme Court of Iowa in Daboll then, manner, then, in this practice Iowa, (1974): 222 N.W.2d non-moving burden shift does the mal- “A facie case of medical specific showing demonstrate facts party to of evi- normally must consist genuine there is a issue material applicable dence establishes which fact. care, demonstrates that this standard reviewing depo- After the affidavits violated, and develops standard has been bar, at I find sitions submitted in the case relationship a causal between the violence ” appellees have failed to establish the complained (Em- of.... and the harm relevant medical standards of care that are added.) phasis by physicians good standing adhered to plaintiff clearly This burden is community. majority also rec- case, but, pointed the trial of ognize deficiency go this and then on to Appeals out the Florida Court of expert wit- by concluding sanction it Club, Leesburg Matarese v. Elks Fla.2d actions nesses’ conclusions that defendant’ DCA, (1965), 606-607 “a motion So.2d recognized medical stan- conformed to the puts the summary judgment for a movant were sufficient on a motion dards of care having position the unenviable summary judgment. prove negative, a the non-existence of an upon summary judgment, issue.” This statement was carried forward judge, The trial Supreme presents Court of Florida into a must determine whether the case a Talcott, case, Holl v. I find it malpractice genuine issue of material fact. Fla., conclude, (1966), to reach unacceptable majority So.2d this as the done, judge, conclusion: have that the trial when faced judgment, must a motion for [Bjefore necessary “... it becomes expert witnesses’ blindly accept of the af- legal sufficiency determine the as to whether or not the defendants’ actions fidavits or other evidence submitted to the relevant medi- did did conform against, moved it must first be party has held cal standard of care. This court has determined that the movant success- is not expert that an witness’ nega- fully tive_” proving met his burden of is not com- supported by facts in the record Chicago Western petent. In and North *7 agree I cannot that the majority Hillard, 189, 502 P.2d Railway Wyo., Co. v. physician defendant can meet this burden (1972), this court stated: by merely offering expert an witness’ bare the general “... A rather statement opinion that the defendant did follow the show suffi- rule that the record must is care, specifi- relevant standard of without judgment and cient facts which the cally setting forth what that standard is. A opinion expert were based. the I believe that to facie present prima a opinion witness who asserts an ... showing case the non-existence of medical competent, and supported by facts is not malpractice, the must first establish movant an not substantial evi- expert’s opinion is the relevant standard of care followed give satisfactory dence unless he can a physicians in good standing in the commu- opin- at his explanation of how he arrived circumstances, nity under similar and then ” ion.... the movant must establish that his actions conformed with this North Chicago standard. Hurtt I recognize While Goleburn, Del., Co., supra, 330 A.2d If was decided Railway Western the Wyoming defendant cannot show that his actions adopted before this court the 1978,1 the the movants have failed to meet their initial in believe
Rules Evidence West- Chicago and North burden. rule set forth in Co., supra, is viable Railway ern still Not am I at a loss to understand actions, light even summary judgment decided the why majority the have to relax W.R.E., pro- Rule Rule W.R.E. summary judgment requirements for
vides: cases, but malpractice medical I also do not may “The terms expert testify'in the majority know what believe constitutes reasons his opinion give or inference malpractice. facie of medical prima a case prior therefor without disclosure plaintiff merely It is now sufficient for a to data, court facts or underlying unless expert of a present opinion the bare medical inmay requires expert otherwise. medical standard was no the relevant un- to any required event be disclose to, plaintiff’s or is a burden some- adhered data on derlying facts or cross-examina- party the burden of a how different than tion.” judgment in a medical moving summary majori- I find that the malpractice action? to Rule 705 an witness expert does allow given litigants and lower have not ty his opinion giving his without malpractice in a medical courts involved reasons; however, a this rule also allows proof required any action direction as to that an court to in certain instances require result I action and as a support such an reasons expert reveal for his interpreta- easily myriad a can envision cross-examination, requested, and that on if widespread confusion resulting tions with reveal reasons for expert must also that this bar. I think among bench and opinion. party relying his When a by a clear-cut confusion would be avoided an a for sum- support affidavit motion proof applicable requiring statement mary judgment oppose or to a motion standard, a trial is involved or whether a summary I believe that a court judgment, sought. summary judgment require must state expert specifically provide failed to Because movants opin- the reasons which he based standard, I relevant would have ion. were not entitled held that movants court, As the Longfellow in Downs v. failed to judgment they because Okl., 999, 1004 (1960), P.2d Corporation, a ease. present facie points out: “ given ‘... The reasons opinions abstract rather than the opin- and the importance, are of ion is of rea- greater no value than the given
sons
no rational
support.
its
If
basis for the
or if
opinion appears,
BENSINGER, Appellant
L.
Jarma
facts from which the
was derived
(Plaintiff),
it,
no
do not
is of
justify
probative force,
it
constitute
does not
submis-
sufficient
to authorize
Scott,
SCOTT, Mary
L.
C.
Scot
Hunter
sion
the issue to the
or to sustain
jury
Corporation,
lands,
Tamar
a California
* * *’
verdict,
”,
finding
a
Inc.,
Corpo
Enterprises,
Wyoming
ack
ration,
Kenyon, Appellees
and Frank S.
cited with approval by
Wyoming
Su-
*8
(Defendants).
Co.,
preme
Railway
Court in North Western
supra,
affidavits at bar no value. in the case are of 25, 1981. March What is are the and reasons important facts supporting opinions, experts’ because
without these has not facts movant therefore, and,
presented a facie case