COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/30/2012. TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR. TRIAL COURT DISPOSITION: GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
FOR APPELLANT: T. JACKSON LYONS.
FOR APPELLEE: BRETT K. WILLIAMS, JOSHUA W. DANOS.
BEFORE LEE, C.J., BARNES, MAXWELL AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
[¶1] Donna Cates filed suit against Dr. William Woods in the Lauderdale County Circuit Court for dental malpractice. The suit stemmed from an incident where a tray containing a compound used to make dental impressions became stuck in Cates's mouth. The tray required significant effort to remove and allegedly caused injury to Cates's neck. Dr. Woods moved for summary judgment, claiming Cates failed to designate an expert witness to establish the standard of care, breach, and causation. The trial court granted the summary judgment, and Cates now appeals. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
[¶2] On May 16, 2008, Cates went to Family and Preventive Dentistry in Meridian, Mississippi, to have her teeth cleaned. Dr. Woods decided he also wanted an impression made of Cates's lower teeth. Tamela Brasher, a dental technician employed by Dr. Woods, cleaned Cates's teeth and then proceeded to make the impression using a tray filled with a dental compound that was inserted into Cates's mouth. The technician told Cates that Dr. Woods had made a special plate for the impression due to Cates's small mouth.
[¶3] When Brasher attempted to remove the impression, the compound would not release from Cates's teeth. Cates claimed the technician " kept pulling up" on the plate while " jerking" her head. Brasher then took an air hose to get between Cates's gum and the compound in order to release the suction. Cates stated that after Brasher pulled on it, " finally the little plate popped up," but " when it did, [her] head jerked back." At one point, Cates stated one side of the tray came off quite forcefully and wedged her mouth open; thus, Cates could not communicate she was in pain. Another technician came to assist Brasher.
[¶4] Cates's complaint alleged the technicians " pulled extremely hard to the point that Ms. Cates suffered extensive injury to her neck." Describing the incident, Cates testified: " They both had their hands on me . . . . [T]hat's when the pain started right in the middle of my shoulder blades. It came up over my head and it was just like this lightning bolt burning. . . . It hurt so bad. . . . I could see my feet up in the air and that was it. I blacked out."  Dr. Woods had previously made impressions of Cates's teeth without incident.
[¶5] Upon returning to work that day, Cates's neck pain increased; so, the next morning she went to the emergency room, where she received pain medication. After experiencing " full-body numbness" and muscle spasms down her spine, Cates's family physician recommended an MRI, which came back abnormal. Cates was referred to Dr. David Malloy, a neurosurgeon, who examined her six days after the incident. Dr. Malloy's clinical notes stated the MRI showed a lesion on Cates's spinal cord at " C7-T1," which was likely a " subarachnoid hemorrhage" ; Cates's " [s]udden onset of symptoms and the associated neck
stiffness with muscle spasm suggest the possibility of an acute spinal hemorrhage about six days ago." Three days after seeing Dr. Malloy, Cates was admitted to a local hospital in Merdian for " excruciating pain." Upon discharge a couple of days later, she was diagnosed with a herniated disk, a mass in her neck, pain, hormone dysfunction, and anxiety. Cates was then referred to another specialist at the University of Mississippi Medical Center.
[¶6] On May 14, 2010, Cates sued Dr. Woods, doing business as Family and Preventive Dentistry, for dental malpractice. She claimed certain dental technicians employed by him breached the " standard of care required of minimally competent dental technicians." Discovery ensued, and in his interrogatories, Dr. Woods requested the identity of Cates's expert witnesses, their proposed testimony, opinions, and supporting documents. Cates responded that no decision had been made regarding experts, and the information would " be supplemented at a later date." In January 2012, the trial court entered a scheduling order, and Cates's deadline to provide expert designations was February 15, 2012. Cates never designated any experts.
[¶7] In March 2012, Dr. Woods moved for summary judgment, arguing Cates had failed to designate an expert to testify regarding the applicable standard of care, breach, or causation, and this failure was fatal to her dental-malpractice claim. Cates's reply stated that no expert testimony was required, and liability could be established by laypeople. At the hearing on the motion, Cates's counsel stated he did not designate any experts because here they were not required. During trial, he planned to call Cates's physician, Dr. Malloy, and he would reference medical records indicating that the physician treated Cates for an injury sustained during her dental visit.
[¶8] The trial court granted summary judgment based on Cates's failure to designate an expert to articulate the standard of care, failure to show a possible deviation from the standard, and failure to produce any opinions on whether her injuries were proximately caused by an alleged breach. Additionally, the court found the matter was not within the common knowledge of a layman. Cates filed a timely notice of appeal.
STANDARD OF REVIEW
[¶9] The appellate court reviews the trial court's grant of summary judgment de novo. Kilhullen v. Kan. City S. Ry.,8 So.3d 168, 174 (¶ 14) (Miss. 2009). The evidence will be " viewed in the light most favorable to the party against whom the motion has been made." Id. at 174-75 (¶ 14) (quoting Daniels v. GNB Inc.,629 So.2d 595, 599 (Miss. 1993)). Summary judgment is proper " 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 judgment as a matter of law." M.R.C.P. 56© . The movant ...