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Palermo v. LifeLink Foundation Inc.

Court of Appeals of Mississippi

January 14, 2014

RICHARD (RICKEY) PALERMO AND SHELIA PALERMO, APPELLANTS
v.
LIFELINK FOUNDATION, INC. D/B/A LIFELINK TISSUE BANK, APPELLEE

As Corrected January 13, 2015.

DATE OF JUDGMENT: 12/20/2011.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JEFF WEILL SR. TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS, DENIED PLAINTIFFS' EXPERT DR. MARION KAINER, AND DENIED PLAINTIFFS' MOTION FOR COURT REPORTER.

FOR APPELLANTS: FRANK G. VOLLOR, ALLEN AUSTIN VOLLOR.

FOR APPELLEE: MARK C. CARLSON, CHRISTY VINSON MALATESTA, JOHN ALFRED WAITS.

BEFORE LEE, C.J., BARNES AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

OPINION

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

Page 1178

FAIR, J.

¶1. Richard and Shelia Palermo brought action against LifeLink Foundation, Inc. d/b/a LifeLink Tissue Bank (" LifeLink" ) along with other defendants for strict products liability, products-liability negligence, and breach of warranty,[1] alleging LifeLink supplied a contaminated/infected allograft [2] for his surgery. Extensive discovery, various motions, and settlements resulted in the dismissal of all defendants, including LifeLink. Its dismissal as the last defendant occurred when the trial judge granted LifeLink's motion for summary judgment. That decision gave rise to this appeal. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On March 2, 2005, Richard injured his right knee while working as an employee for Letourneau Technologies Inc. Richard sought treatment from Dr. Gene Barrett, an orthopedic surgeon at Mississippi Baptist Medical Center (MBMC). Dr. Barrett recommended surgery described as " anterior cruciate ligament construction and medical meniscus repair and the use of an allograft."

¶3. On March 22, 2005, LifeLink, a non-profit tissue bank, filled an order placed by Nutech Medical Inc. (" NuTech" ) for a tibialis tendon-anterior allograft. Prior to LifeLink's shipment of the allograft, it was tested and there were no findings of sepsis or medical infection in the medical history or autopsy of the allograft donor. LifeLink shipped the allograft to Nutech, where it remained for six days. On March 28, 2005, Nutech shipped the allograft to Medical Arts East Physician Surgery Center in Jackson, Mississippi. Dr. Barrett performed Richard's surgery with the allograft on April 5, 2005. After the surgery, Richard's knee began to exhibit signs of infection. Dr. Barrett removed the allograft from Richard's knee on May 11, 2005, and the infection subsided. After the allograft was removed from Richard's knee on May 11, 2005, further testing was done on the allograft. It showed that no bacteria was present.

¶4. The Palermos filed their first complaint in this action on March 7, 2007, against numerous defendants, including MBMC, Dr. Barrett, NuTech, and LifeLink. After the dismissal of several defendants, the Palermos filed a First Amended and Supplemental Complaint against LifeLink on March 16, 2010.

¶5. The parties entered into a scheduling order, and discovery was set to be completed on June 30, 2010. On March 24, 2010, the Palermos designated Dr. Keith Melancon and Dr. Olen Brown. On May 18, 2010, LifeLink designated Elizabeth Horn-Brinson as an expert in the field of tissue bank processing and preservation. On October 13, 2010, the Palermos designated Dr. Marion Kainer to refute

Page 1179

the testimony of Horn-Brinson. The court denied the expert designation, finding that the designation was outside of the scheduling order and did not constitute a seasonable supplementation of an existing expert's testimony.

¶6. LifeLink moved for summary judgment on August 9, 2011. On November 7, 2011, the Palermos filed a motion to request a court reporter for the summary judgment motion. In their motion, the Palermos stated that they had engaged an official court reporter to transcribe the hearing. Their court denied their motion, ruling that presence of a court reporter was not required. On December 20, 2011, the trial court granted summary judgment in favor of LifeLink. In its opinion and order, the court determined that Mississippi's public health statute, Mississippi Code Section 41-41-1 (Rev. 2013), also applied to human tissue and therefore prohibited the Palermos' claims brought under the Mississippi Products Liability Act as codified in Mississippi Code Annotated section 11-1-63 (Rev. 2012) -- strict products liability, product-liability negligence, and breach of warranty. The court also stated that, because the Palermos failed to prove the elements of breach of duty or causation, they could not prove a case of simple negligence.

¶7. On appeal, the Palermos argue the following issues: (1) the trial judge committed reversible error in granting LifeLink's motion for summary judgment, (2) the trial judge abused his discretion in denying the Palermos' supplementary expert designation of Dr. Marion Kainer, and (3) the trial judge abused his discretion in denying the Palermos' request for a court reporter to transcribe the hearing on summary judgment. Finding no error, we affirm the decision of the trial court.

DISCUSSION

1. Grant of Summary Judgment

¶8. We conduct a de novo review of a trial court's grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (P6) (Miss. 2002) (citation omitted). Summary judgment is proper where " there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c)). In determining whether the trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (P12) (Miss. 1999).

¶9. Summary judgment must be granted when the nonmoving party " fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial." Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (P16) (Miss.Ct.App. 2009) (citation omitted). To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine ...


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