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Johnson v. Pace

Supreme Court of Mississippi

September 26, 2013

Felicia Rogers JOHNSON and Thomas Johnson, Jr.
v.
William PACE, M.D.

Alfreda T. Bester, Alvin Armistad, Vicksburg, attorneys for Appellants.

Page 67

Rex M. Shannon, III, Gaye Nell Currie, Jackson, attorneys for Appellee.

Before WALLER, C.J., CHANDLER and KING, JJ.

WALLER, Chief Justice.

¶ 1. The Johnsons appeal from summary-judgment dismissal of their medical-malpractice suit against William Pace, M.D. Finding no error, we affirm.

FACTS

¶ 2. On September 19, 2011, the Johnsons filed a complaint against Dr. Pace, alleging a claim of medical malpractice arising from a surgical procedure Dr. Pace had performed on Felicia Johnson. On October 31, 2011, Dr. Pace filed his Answer and Defenses, denying any negligence in his treatment of Felicia Johnson. On the same day, Dr. Pace served his first set of interrogatories and requests for production of documents to the Johnsons. One interrogatory requested that the Johnsons identify any medical experts they intended to call as witnesses at trial, along with the proposed opinions of those experts. In their response, the Johnsons stated that they had not yet identified an expert to be called as a witness at trial. On December 20, 2011, Dr. Pace served his first requests for admission and second requests for production of documents to the Johnsons. In response, the Johnsons admitted that they did not have a report from a qualified medical expert stating that Dr. Pace had breached the standard of care applicable to him in any way in his care and treatment of Felicia.

¶ 3. On May 14, 2012, eight months after the complaint was filed, Dr. Pace filed a motion for summary judgment, arguing that he was entitled to judgment as a matter of law because the Johnsons had failed to produce any expert testimony to support their claim. The Johnsons responded by filing a motion to quash [1] Dr. Pace's motion for summary judgment. The Johnsons argued that Dr. Pace's motion was premature, because no scheduling order had been entered in the case and no deadline for designating an expert witness had been established. The Johnsons did not respond to the substantive allegations of Dr. Pace's motion for summary judgment.

¶ 4. On September 7, 2012, the trial court held a hearing on the motion for summary judgment. The Johnsons argued that Dr. Pace's motion for summary judgment was merely a " Draconian method" to punish them for being uncooperative during discovery. The trial court asked the Johnsons why they were unable to produce an expert witness when they were required to consult with one prior to commencing the suit. The Johnsons responded that the expert with whom they initially had consulted subsequently refused to testify for undisclosed reasons. The Johnsons claimed that they had found an expert who would testify on their behalf and asked the court to allow them extra time to supplement their discovery responses. They did not identify the expert or make a proffer of the expert's proposed testimony. On September 14, 2012, the trial court entered its order granting Dr. Pace's motion for summary judgment. The trial court found that the Johnsons had had ample time to produce an expert to support their claims, and in the absence of any such expert testimony, that Dr. Pace was entitled to judgment as a matter of law.

Page 68

¶ 5. The Johnsons now appeal the trial court's grant of summary judgment, raising the following issues:

I. Whether Dr. Pace's motion for summary judgment, based solely on his assertion that the Johnsons had not yet named an expert, was premature.
II. Whether Dr. Pace's supplemental affidavit supporting his motion for summary judgment was ...

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