Levesque v. Chan , 1990 Me. LEXIS 35 ( 1990 )

HORNBY, Justice,

concurring.

I concur in much of the Court’s opinion but resist the implication that summary judgment is the villain here and that all might have been well if only the Superior Court had delayed its ruling on Dr. Cyr’s testimony until trial. It is undisputed that without a medical expert the plaintiff could not survive a motion for directed verdict. See Forbes v. Osteopathic Hosp. of Maine, Inc., 552 A.2d 16, 17 (Me. 1988). Thus, it was consistent with judicial economy to consider the availability of a competent expert at the summary judgment stage. In doing so, the Superior Court did not improperly decide any factual issues or weigh testimony. It merely ruled that Dr. Cyr, as a general practitioner, was not qualified to give expert testimony on the standard of care. That ruling was error whether made in limine or at trial, because even as a general practitioner Dr. Cyr could testify that any doctor, regardless of training, must reach a certain minimum level of care that was missing here. Since that is the testimony the plaintiff needs, he does have a qualified medical expert. Summary judgment must be vacated on that account, not because the trial court resolved factual issues or weighed testimony.