Musgrove v. Coffey ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION
FILED
December 9, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
ROBERT L. MUSGROVE AND ) C/A NO. 03A01-9707-CV-00301
JEWELL MUSGROVE, )
) SCOTT CIRCUIT
Plaintiffs-Appellants, )
) HON. CONRAD TROUTMAN,
v. ) JUDGE
)
DAVID B. COFFEY, M.D., AND )
OAK GROVE PRIMARY CLINIC, )
INC., ) AFFIRMED
) AND
Defendants-Appellees. ) REMANDED
JAMES L. MILLIGAN, JR., Knoxville, for Plaintiffs-Appellants.
R. FRANKLIN NORTON and GARY G. SPANGLER, Knoxville, for Defendants-
Appellees.
OPINION
Franks, J.
In this medical malpractice action the Trial Judge granted defendants
summary judgment and dismissed the action with prejudice, pursuant to T.R.C.P. Rule
41. Plaintiffs’ issue on appeal is that Trial Court erred in holding that they had not
complied with his orders and in refusing to grant relief from his order.
By way of background this action went to trial on September 17, 1996,
before a jury. At trial, plaintiffs offered the deposition of Dr. Joseph Metcalf as an
expert witness to establish standard of care and medical causation. Upon objection by
defendant, the Court found the doctor was not competent or qualified as an expert, as
required by T.C.A. §29-26-115, and since plaintiff had no other expert witness, the
Court discharged the jury and ruled:
that plaintiffs are given a continuance for a period of ninety (90) days
from and after September 17, 1996 to identify by way of expert witness
interrogatory response, expert witness(es) and also shall make any such
designated expert(s) witness(es) available for Defendant’s discovery
deposition with said ninety (90) day period or otherwise the Court will
entertain Defendant’s Motion to Dismiss or for Summary Judgment.
Plaintiffs’ attorney subsequently moved to withdraw, and on September 30, 1996, the
defendant renewed his motion for summary judgment. The Trial Court permitted
plaintiffs’ attorney to withdraw, and ordered that plaintiffs would have through
November 15 to employ new counsel and reiterated that the deadlines previously
ordered would remain in effect and unchanged. A further hearing was held on
December 19, 1996, and the Court ordered:
It appearing from the record in this cause that the Plaintiffs have not
complied with the Order and Directive of this Court entered on
September 25, 1996, IT IS ORDERED that this cause shall be dismissed
pursuant to T.R.C.P. 41.02 and the Defendant’s pending Motion for
Summary Judgment shall be granted without the requirement of further
hearing or argument unless the Plaintiffs identify their expert witness by
way of expert witness response and also make such designated expert
witness available for discovery within five (5) days of the entry of this
Order.
The Order was entered on that date. On December 24, 1996, plaintiffs’ attorney
“hand-delivered” a letter to defendants’ attorney stating: “I anticipate that Dr. N.M.
Tajen will be available as an expert witness on behalf of the plaintiffs” and gave the
Knoxville address of the doctor, and concluded by saying more details would be given
on “his expected testimony” on December 26, 1996. He also stated he would also
“attempt to” make him available for a deposition on that date.
On May 6, 1997, the Trial Court granted defendants summary judgment
and dismissed the action with prejudice. In his judgment, the Trial Court incorporated
his memorandum opinion of April 10, 1997, wherein he said:
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On the 19th day of October 1996, both attorneys appeared before the
Court along with both plaintiffs, at which time plaintiffs’ attorney
announced that his services had been terminated and asking that he be
allowed to withdraw from the case. The Court granted said motion to
withdraw subject to the deadlines and conditions previously set.
On the 18th day of November, 1996, the firm of Milligan & Associates
became the attorney of record for the plaintiffs. The Order of
September 17, 1996 regarding naming of an expert witness was not
complied with within ninety (90) days.
The Court is aware that sustaining of the present Motion is a rather
serious decision, but the Court has bent over backwards to be fair to all
parties in this case, but the Court has been placed in this position by the
actions of the plaintiff in discharging his attorney and not getting
another attorney until thirty (30) days prior to the deadlines previously
set. The Court feels that it is imperative to adhere to the deadlines
previously set.
It was in the discretion of the Trial Judge under the circumstances of this case to order
the involuntary dismissal of the action. This power, however, must be used sparingly,
and with great care. Harris v. Baptist Memorial Hospital, 574 S.W.2d 730 (Tenn.
1978).
Essentially, plaintiffs argue that “their counsel took all necessary steps
to secure the necessary medical causation testimony prior to the deadlines imposed by
the Trial Court”. The record does not support this assertion. Plaintiffs were faced
with a renewed summary judgment motion which required an expert’s affidavit to
raise a disputed issue of fact. This was not done within the time frame established by
the Trial Judge, nor was it at any time tendered before the case was finally dismissed
several months later. The plaintiffs on this record do not establish that the Trial
Judge abused his discretion in dismissing this action. Clearly, summary judgment was
appropriate in the absence of countervailing evidence establishing a disputed issue of
material fact on the issue of medical malpractice. See Braswell v. Carothers, 863
S.W.2d 722 (Ct. App. 1993).
We affirm the judgment of the Trial Court and remand at appellants’
cost.
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__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Goddard, P.J.
___________________________
Hon. William H. Inman, J.
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