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Rainer v. River Oaks Hospital, LLC

Court of Appeals of Mississippi

August 13, 2019

ANNIS WILLIS RAINER APPELLANT
v.
RIVER OAKS HOSPITAL, LLC APPELLEE

          DATE OF JUDGMENT: 06/02/2017

          COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JOHN HUEY EMFINGER

          ATTORNEY FOR APPELLANT: J. EDWARD RAINER

          ATTORNEYS FOR APPELLEE: MARK P. CARAWAY

          BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

          CARLTON, P.J.

         ¶1. Annis Willis Rainer sued River Oaks Hospital for medical negligence, contending that she was injured from exposure to latex during radiological tests performed on her at River Oaks on December 22, 2011. River Oaks moved for summary judgment because Rainer failed to timely designate a medical expert to support her medical negligence claim. Rainer did not file any response to River Oaks's motion. The afternoon before the hearing, Rainer served her expert designation. Rainer moved for a continuance on the day of the hearing. The Rankin County Circuit Court denied Rainer's motion for a continuance and granted summary judgment in River Oaks's favor because Rainer did not furnish an affidavit or sworn expert testimony in opposition to River Oaks's motion in order to support her medical negligence claim. Ten days after entry of the summary judgment, Rainer filed a motion for a new hearing or for reconsideration and attached to that motion the sworn affidavit of her medical expert. The trial court denied that motion. Rainer appeals. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. Rainer filed her complaint against River Oaks on December 20, 2013, claiming medical negligence and injury due to latex exposure she claims occurred on December 22, 2011, when she underwent radiological tests at River Oaks. About three weeks later, River Oaks served its first set of interrogatories on Rainer, including Interrogatory No. 1 that requested that Rainer (1) identify any person who would testify as a medical expert in support of her claim and (2) provide the subject matter about which the expert was expected to testify; the substance of facts and opinions about which the expert was expected to testify; and a summary of the grounds for each opinion.

         ¶3. On June 23, 2015, the Rankin County Circuit Clerk filed a notice to dismiss Rainer's suit for lack of prosecution. The next day Rainer filed an application seeking a denial of the clerk's notice to dismiss her action. A day later, the trial court issued an order entitled "Order Regarding Motion Hearings and Briefing" in which it explained "that after having previously experienced problems with parties either not filing, or not timely filing memorandum or briefs, the result of which adversely impacted the Court's docket, the parties should be required to timely file memorandum or briefs as ordered herein." The order mandated compliance with the Uniform Rules of Circuit and County Court as to filing motions and briefs and specified that the parties were "required to file any affidavit supporting a motion with the motion and any opposing affidavit with the related reply or rebuttal."

         ¶4. On August 4, 2016, the circuit clerk filed a second notice to dismiss Rainer's lawsuit for lack of prosecution. Two weeks later Rainer filed an application seeking a denial of the clerk's notice to dismiss her action. This time, the trial court issued an order setting a discovery conference for October 31, 2016, or, alternatively, requiring the parties to submit an agreed scheduling order before that date.

         ¶5. The parties submitted an agreed scheduling order, and it was entered on October 7, 2016. The scheduling order required that Rainer designate her experts in accordance with Rule 26(b)(4) of the Mississippi Rules of Civil Procedure by March 1, 2017, and also provided that all discovery must be complete by June 30, 2017. All dispositive motions were required to be heard before July 31, 2017. The scheduling order further provided that "[r]elative to motions to dismiss and motions for summary judgment, the Court hereby orders that a reply and a rebuttal be filed."

         ¶6. Rainer did not designate any experts by the March 1, 2017 deadline.

         ¶7. On April 6, 2017, River Oaks filed a motion for summary judgment based upon Rainer's failure to designate a medical expert to support her medical negligence claim and noticed its motion for a May 1, 2017 hearing. The hearing was rescheduled for May 24, 2017, at the request of Rainer's counsel-forty-eight days after River Oaks filed and electronically served its summary judgment motion. The trial court also approved the parties' agreed order allowing Rainer until May 15, 2017, to file a response to River Oaks's summary judgment motion. That order specifically provided that "[Rainer] shall not seek to enlarge her time to respond to [River Oaks's] Motion for Summary Judgment beyond May 15, 2017."

         ¶8. Rainer did not file a response to River Oaks's summary judgment motion by May 15, 2017, nor did Rainer ever file a response or any supporting expert affidavit before the May 24 hearing. On the afternoon before the May 24 hearing, Rainer served and filed her "Designation of Expert Witnesses," which designated Dr. Winn Walcott as her medical expert.

         ¶9. On the day of the hearing, Rainer filed a motion for a continuance that provided that Rainer's counsel had been unable to obtain an affidavit from Rainer's medical expert but that

the undersigned attorney was able to finally get in touch with the expert, Dr. Winn Walcott[, ] and obtain[ed] a report from him which was immediately faxed to [River Oaks's counsel] during the afternoon of May 23, 2017; and[] that the undersigned attorney has not heard from [River Oaks's counsel] since talking to him in the afternoon of May 23, 2017 [about agreeing to a continuance].[1]

         ¶10. There is no transcript in the record for the May 24, 2017 hearing on River Oaks's summary judgment motion and Rainer's motion for a continuance. The circuit clerk's cover letter submitting the record indicates that there was not a court reporter present at that hearing. On June 2, 2017, the trial court entered its final judgment denying Rainer's "Motion to Continue" and granting summary judgment in River Oaks's favor. The court found that Rainer's "Motion to Continue filed on the date of the scheduled hearing is not well taken pursuant to Rule 56(f) of the Mississippi Rules of Civil Procedure;" and the court further found that "there is insufficient expert opinion evidence to create a jury issue on the questions of whether [River Oaks] negligently caused damage to [Rainer] as alleged."

         ¶11. Rainer filed a motion for a new hearing or for reconsideration on June 12, 2017, attaching Dr. Walcott's sworn affidavit to that motion. The trial court entered its order denying Rainer's motion on January 18, 2018. Rainer appealed, asserting that the trial court erred in granting ...


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