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Davis v. Hindman

Court of Appeals of Mississippi

April 29, 2014

DANA J. DAVIS, APPELLANT
v.
JASON HINDMAN, M.D. AND SURGERY ASSOCIATES, P.A., APPELLEES

Page 215

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/18/2012. TRIAL JUDGE: HON. PAUL S. FUNDERBURK. TRIAL COURT APPELLEES' MOTION FOR SUMMARY JUDGMENT GRANTED.

FOR APPELLANT: BOBBY FLOYD MARTIN JR.

FOR APPELLEES: DAVID W. UPCHURCH, ROBERT K. UPCHURCH, JOHN MARK MCINTOSH.

ROBERTS, J. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY IRVING, P.J. FAIR, J., NOT PARTICIPATING.

OPINION

Page 216

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

EN BANC.

ROBERTS, J.

¶1. Unsatisfied with Dana Davis's failure to take the necessary steps to secure Dr. Jason Hindman's deposition or secure her own expert witness to support her medical-malpractice claim, the Lee County Circuit Court granted summary judgment in favor of Dr. Hindman and Surgery Associates P.A. (collectively " Surgery Associates" ). The circuit court simultaneously denied Davis's motion for additional time pursuant to Mississippi Rule of Civil Procedure 56(f). Davis appeals the circuit court's decisions and asks this Court to find that the circuit court abused its discretion in denying her motion for additional time, and that the denial of her motion resulted in her inability to properly defend against Surgery Associates' summary-judgment motion. We find no error; therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On September 2, 2009, Davis filed a complaint against Surgery Associates alleging that Dr. Hindman committed medical malpractice on September 10, 2007, when Dr. Hindman performed a total thyroidectomy on Davis. Attached to the complaint was a certificate of expert consultation from Davis's attorney stating that he " consulted with at least one . . . expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who was qualified to give expert testimony as to the standard of care or negligence in this matter."

¶3. Surgery Associates filed their separate answers and then separately propounded discovery on Davis. Davis filed her responses on November 25, 2009, and December 16, 2009. In one response, Davis stated that she had " not determined who will be called as an expert witness at the trial of this matter" even though she had consulted with an expert prior to filing her complaint. She also stated that she would supplement that information in accordance with the Mississippi Rules of Civil Procedure. Surgery Associates deposed Davis in June 2010, but a transcript of her deposition is not contained in the record.

¶4. On June 22, 2010, Davis requested dates that Dr. Hindman would be available to be deposed; Dr. Hindman provided several dates. However, there was no agreed date set based on this inquiry. Then, on October 18, 2010, Davis again requested dates for the deposition, which Dr. Hindman again provided. His deposition was initially set for December 20, 2010; however, this deposition was rescheduled by mutual agreement. Dr. Hindman sent Davis a letter on December 14, 2010, confirming

Page 217

that he would provide future dates for his deposition. Dr. Hindman did not provide any dates nor did Davis request any dates until Surgery Associates filed a motion for summary ...


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