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Buckley v. Singing River Hospital

Court of Appeals of Mississippi

October 15, 2013

ETHEL L. BUCKLEY APPELLANT
v.
SINGING RIVER HOSPITAL APPELLEE

DATE OF JUDGMENT: 04/19/2011

DISPOSITION: AFFIRMED-10/02/2012

MOTION FOR REHEARING FILED: 02/05/2013-DENIED

JACKSON COUNTY CIRCUIT COURT, HON. ROBERT P. KREBS JUDGE.

ATTORNEYS FOR APPELLANT: SAMUEL PRESTON MCCLURKIN IV ELIZABETH ANNE CITRIN.

ATTORNEYS FOR APPELLEE: THOMAS L. MUSSELMAN HANSON DOUGLAS HORN.

EN BANC

MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J.

¶1. This case is before us on a motion for rehearing; the motion is denied, and the original opinion is withdrawn and substituted with this opinion.

¶2. Ethel Buckley appeals the circuit court's grant of summary judgment in favor of Singing River Hospital (Singing River). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶3. On December 3, 2003, Singing River maintenance employees were stripping and waxing a floor in front of a service elevator. The elevator had been locked while they performed the task. When two other employees asked to use the elevator, the maintenance workers removed the warning sign and barricade and unlocked the service elevator for their use. However, the workers failed to re-engage the lock on the elevator after its temporary use, and minutes later, Buckley exited the elevator and fell.[1] On August 19, 2004, Buckley required fusion surgery to her back to repair a "L4-L5 herniation, " and she never returned to work.

¶4. On June 28, 2005, Buckley filed a complaint against Singing River, alleging that she sustained a "severe and permanent physical injury" as a the result of the hospital's negligence. During discovery, Singing River sent Buckley interrogatories; the third question requested the identity of any potential expert witnesses. When Buckley responded to the interrogatories on April 9, 2007, she simply stated in response to that question that she anticipated calling her "treating physicians."[2] She also stated that she would supplement the response "if necessary." However, she never submitted a supplemental answer to the interrogatory question.

¶5. Over two years later, on November 23, 2009, Buckley's counsel sent a letter to opposing counsel, stating:

I am writing to follow up on our previous discussions regarding plaintiff's experts. In addition to calling Mrs. Buckley's treating physicians, who will testify as to the diagnosis, prognosis, and causation of her injuries, we intend to call Dr. Robert Hebert, an economist, and Catherine Brock, a life care planner.

On January 28, 2010, Buckley sent Singing River a notice of deposition for Dr. Edward Schnitzer, a physician who had been treating Buckley for pain management since August 26, 2009. However, the deposition, which was scheduled for March 11, 2010, was later cancelled. The deposition was conducted one year later in March 2011.

¶6. Although the trial had been scheduled for October 4, 2010, both parties requested a continuance in order to complete discovery. On October 5, 2010, the circuit court entered a scheduling order, which had been drafted by Buckley's counsel. The order required Buckley to designate any expert witnesses by November 1, 2010.[3] Singing River had already filed a "Designation of Expert Witnesses" with the court on January 13, 2010, which contained its expert witness's resume and qualifications. Singing River also submitted an updated designation of expert witnesses on December 15, 2010, to comply with the latest scheduling order. Buckley, however, never filed a designation of expert witnesses with the circuit court.

¶7. After Dr. Schnitzer's deposition in March 2011, Singing River filed a motion for summary judgment and a motion to strike the opinion testimony of Dr. Schnitzer on April 1, 2011, citing Buckley's failure to designate Dr. Schnitzer as an expert witness. After an April 14, 2011 hearing on the pretrial motions, the circuit court granted summary judgment for Singing River, dismissing the action with prejudice.[4]

¶8. Buckley filed a motion to alter the judgment, which the court denied. On appeal, we find no error and affirm the circuit court's grant of Singing River's motion for summary judgment.

ANALYSIS

¶9. The issue before this Court is whether the circuit court erred in granting Singing River's motion for summary judgment. A circuit court's grant of summary judgment is reviewed de novo. Smith v. Chhabra, 54 So.3d 877, 880 (¶11) (Miss. Ct. App. 2011) (citing O.W.O. Inv., Inc. v. Stone Inv. Co., 32 So.2d 439, 446 (¶18) (Miss. 2010)). A motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "[V]iew[ing] the facts in the light most favorable to the nonmovant, . . . '[s]ummary judgment is appropriate if the nonmoving party has not made a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Smith, 54 So.3d at 880 (¶11) (citations omitted).

I. Buckley's failure to designate Dr. Schnitzer as an expert witness.

ΒΆ10. Singing River's interrogatories to Buckley requested information on "each person" Buckley intended to call as a potential expert witness, including the subject matter of each witness's anticipated testimony. Buckley responded: "It is anticipated that Plaintiff will call treating physicians to testify as to their diagnosis, prognosis, examination and treatment of her and [their] medical opinions thereof. Plaintiff will supplement, if necessary." Buckley claims that her initial intent was to disclose the surgeon who performed her back surgery, Dr. Morton ...


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