IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI. NO CA-0l732.j L...,. BRIEF OF APPELLEE, WILLIAM PACE, M.D.

Transcription

1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI e NO CA-0l732.j L...,. FELICIA ROGERS JOHNSON & THOMAS JOHNSON, JR. APPELLANTS VS. WILLIAM PACE, M.D. APPELLEE BRIEF OF APPELLEE, WILLIAM PACE, M.D. Appeal from the Circuit Court of Lamar County Civil Action No Hon. Anthouy A. Mozingo Presiding ORAL ARGUMENT NOT REOUESTED OF COUNSEL: GA YE NELL CURRIE REX M. SHANNON III. WISE CARTER CHILD & CARAWAY, P.A. 600 HERITAGE BUILDING 401 EAST CAPITOL STREET POST OFFICE BOX 651 JACKSON, MISSISSIPPI TEL: (601) FAX: (601) ATTORNEYS FOR APPELLEE, WILLIAM PACE, M.D.

2 CERTIFICATE OF INTERESTED PERSONS Th~ undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: I. Felicia Rogers Johnson and Thomas Johnson, Jr., Appellants. 2. Alfreda Tillman Bester and Alvin Armistad, Counsel for Appellants. 3. William Pace, M.D., Appellee. 4. Gaye Nell Currie and Rex M. Shannon III, Counsel for Appellee. 5. Hon. Anthony A. Mozingo, Circuit Court Judge. ~.::=; REX M. SHANNON III 11

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS....ii TABLE OF CONTENTS....iii TABLE OF AUTHORlTIES...,... iv STATEMENT OF ISSUES... I STATEMENT OF THE CASE... 1 I. Nature of Case and Course of Proceedings... I II. Statement of Facts... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 5 l. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO DR. PACE BECAUSE THE JOHNSONS FAILED TO PRODUCE SWORN EXPERT TESTIMONY IN SUPPORT OF THEIR CLAIMS... 5 STANDARD OF REVIEW... 5 A. Dr. Pace was free to move for summary judgment at any time... 5 B. Once Dr. Pace demonstrated that the Johnsons had produced no sworn expert testimony in support of their claims, the burden of production shifted to the Johnsons to produce such testimony... 7 C. Because the Johnsons failed to produce any sworn expert testimony in support of their claims, Dr. Pace was entitled to summary judgment II. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN PROCEEDING TO HEAR AND RULE ON DR. PACE'S MOTION FOR SUMMARY JUDGMENT STANDARD OF REVIEW CONCLUSION CERTIFICATE OF SERVICE III

4 TABLE OF AUTHORITIES FEDERAL CASES Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907 (5th Cir. 1993)... 8 STATE CASES Brooks v. Roberts, 882 So. 2d 229 (Miss. 2004) Busby v. Mazzeo, 929 So. 2d 369 (Miss. Ct. App. 2006)... 5,9,10, 11 Corey v. Skelton, 834 So. 2d 681 (Miss. 2003)... 8 Crawford v. Butler, 924 So. 2d 569 (Miss. Ct. App. 2005)....4 Diogenes Editions, Inc. v. State of Miss. ex rei. Bd. of Trs. of Insts. of Higher Educ., 700 So. 2d 316 (Miss. 1997)... 5 Hackler v. P HC-Cleveland, Inc., 90 So. 3d 135 (Miss. Ct. App. 2012)... 12, 13, 14, 15 Hill v. Warden, 796 So. 2d 276 (Miss. Ct. App. 2001)...,... 7 Kerr-McGee Corp. v. Maranatha Faith Ctr., Inc., 873 So. 2d 103 (Miss. 2004)... 6, 12 Kuiper v. Tarnabine, 20 So. 3d 658 (Miss. 2009)... 9 Langley ex rei. Langley v. Miles, 956 So. 2d 970 (Miss. Ct. App. 2006)... 8, 9 Maxwell v. Baptist Mem 'I Hosp. -DeSoto, Inc., 15 So. 3d 427 (Miss. Ct. App. 2008)... 7, 8, 9 Moore v. M & M Logging, Inc., 51 So. 3d 216 (Miss. Ct. App. 2010) Potter v. Hopper, 907 So. 2d 376 (Miss. Ct. App. 2005)... 9, 16 IV

5 Scales v. Lackey Mem 'I Hasp.,. 988 So. 2d 426 (Miss. Ct. App. 2008)... 5, 7, 8, 9,10, II, 12, 13, 15 Southland Broadcasting Co. v. Tracy, 50 So. 2d 572 (Miss )... 8 Spectrum Oil, LLC v. West, 34 So. 3d 1213 (Miss. Ct. App. 2010)... c... 6 Stallworth v. Sanford, 921 So. 2d 340 (Miss. 2006)... 12, 13, 15 Wilson v. Wilson, 79 So. 3d 551 (Miss. Ct. App. 2012) Young v. Smith, 67 So. 3d 732 (Miss. 2011)...,... 5, 6 RULES FED. R. CIY. P. 15(a).... MISS. R. CIY. P. 7(a)... 8 MISS. R. CIY. P :... 4 MISS. R. CIY. P. 15(a)... 8 MISS. R. CIY. P. 26(b)(4)... 2, 6,11,14 MISS. R. CIY. P. 26(f)(l)(B)... 6 MISS. R. CIY. P , 11 MISS. R. CIY. P. 56(b)... 3, 4, 6, 7 MISS. R. CIY. P. 56(f)... 2, 12, 13, 14 URCCC 4.04(A)... 4, 6, 7 OTHER 6 Wright & Miller, Federal Practice & Procedure, 1475 (1990)... 8 v

6 STATEMENT OF ISSUES l. Whether a physician defendant was entitled to summary judgment in an alleged medical malpractice case where the plaintiffs failed to produce sworn expert testimony in support of their claims. II. Whether the trial court properly exercised its discretion in proceeding to hear and rule on the physician defendant's motion for summary judgment where the plaintiffs had approximately one year after filing suit and three months after the physician moved for summary judgment in which to produce sworn expert testimony in support of their claims. STATEMENT OF THE CASE I. Nature of Case arid Course of Proceedings. This appeal arises out of a trial court's grant of summary judgment to a physician defendant in an alleged medical malpractice case following the plaintiffs' failure to produce sworn expert testimony in support of their claims after a year of litigation. On September 19, 2011, Plaintiffs/Appellants Felicia Rogers Johnson and Thomas Johnson, Jr., ("the Johnsons") filed a complaint against Defendant/Appellee William Pace, M.D., ("Dr. Pace") in the Circuit Court of Lamar County, alleging claims of medical malpractice. R. 4, R.E. I. All of the Johnsons' claims arose out of a laparoscopic-assisted vaginal hysterectomy that Dr. Pace, an OB OYN, performed on Ms. Johnson on or about September 29,2009. R. 5, R.E. I. On May 14, 2012, Dr. Pace filed a motion for summary judgment predicated on the Johnsons' failure to produce expert testimony in support of their claims against him. R. 50, R.E. 2. On May 24, 2012, the Johnsons filed a "motion to quash" Dr. Pace's motion for summary judgment. R , R.E. 3. In their motion to quash, the Johnsons asserted that Dr. Pace's motion for summary judgment was "premature" and that its mere filing entitled them to sanctions and attorneys' fees. Id Over three (3) months later, on September 7, 2012, a hearing

7 was held in the Lamar County Circuit Court, Hon. Anthony A. Mozingo presiding. Tr. I, R.E. 4. At the hearing, the 10hnsons requested additional time to produce expert testimony, and the trial court proceeded to hear argument on Dr. Pace's motion. See Tr. 1-16, R.E. 4. Thereafter, on September 19, 2012, the trial court entered its order denying the Johnsons' requested continuance and granting Dr. Pace's motion for summary judgment on the basis of the Johnsons' failure to produce expert testimony in support of their claims. R , R.E. 5. This appeal followed. II. Statement of Facts. On or about October 31, 20 II, Dr. Pace propounded an interrogatory to the Johnsons requesting expert witness information, including the substance of any expert opinions, pursuant to MRCP 26(b)(4). R , 74, R.E. 2 at Ex. "C." In response, the Johnsons objected and stated that they had "not yet determined an expert to be called as a witness at the trial of this case." R , R.E. 2 at Ex. "D." Additionally, in response to a request for admission propounded to the Johnsons by Dr. Pace, the Johnsons admitted that they had no report from a qualified medical expert opining that Dr. Pace had breached the applicable standard of care. R. 199, R.E. 6, at Ex. "G." The Johnsons never supplemented their interrogatory responses to produce any sworn expert testimony in support of their claims against Dr. Pace. Having received no expert witness information from the Johnsons as of May 14,2012, Dr. Pace on that date filed his motion for summary judgment. R. 50, R.E. 2. Rather than file a response or a motion for a continuance predicated on MRCP 56(f), the 10hnsons filed the aforementioned "motion to quash" Dr. Pace's summary judgment motion as "premature," curiously going so far as to seek sanctions and attorneys' fees from Dr. Pace (or his counsel) for the mere filing of his summary judgment motion. R , R.E. 3. Dr. Pace thereafter supplemented his motion with the affidavit of James Martin Tucker, M.D., ("Dr. Tucker") a 2

8 board certified OB-GYN, who testified that Dr. Pace met or exceeded the applicable standard of care and did not cause or contribute to the 10hnsons' alleged injuries. R , R.E. 6 at Ex. "F. ", At the aforementioned hearing on September 7, 2012, the 10hnsons' counsel advised the trial court that counsel had "scoured the country" in search of a "willing" expert and had only retained an expert witness on the day before the hearing. Tr. I, 12-13, R.E. 4. The 10hnsons did not identify this purported expert at the hearing (or at any other time), nor did they disclose the substance of hislher purported opinions to the trial court or to Dr. Pace. See Tr , R.E. 4. Instead, they merely requested that the trial court "hold in abeyance" Dr. Pace's motion for summary judgment to "allow [them] the time" to respond. Tr , R.E. 4. In its order denying the 10hnsons' request and granting summary judgment to Dr. Pace, the trial court reasoned that the 10hnsons had almost a full year since filing their complaint in which to produce supportive expert testimony. R. 206, R.E. 5. Accordingly, the trial court declined to allow the 10hnsons additional time and, pursuant to Mississippi case law cited in its order, granted Dr. Pace's motion for summary judgment. R , R.E. 5. SUMMARY OF THE ARGUMENT The trial court properly granted summary judgment to Dr. Pace in this alleged medical malpractice case because the 10hnsons failed to produce sworn expert testimony in support of their claims after a year of litigation. Pursuant to MRCP 56(b) and controlling case law, Dr. Pace was free to move for summary judgment at any time. As fully supported by the case law cited infra, Dr. Pace was not required to defer filing his motion until a trial date had been set or a scheduling order had been entered. Nor was he constrained to wait until sixty (60) days before 3

9 trial to file his motion pursuant to URCCC 4.04(A). The Johnsons cite absolutely no authority in support of their arguments to the contrary.! Once Dr. Pace demonstrated that the Johnsons had produced no sworn expert testimony in support of their claims, the burden of production shifted to the.tohnsons to produce such testimony to survive summary judgment. Although Dr. Pace produced the affidavit of a medical expert stating that he met or exceeded the standard of care and caused no injury to the Johnsons, he was not required to do so. Rather, pursuant to MRCP 56(b) and controlling case law, once Dr. Pace pointed out the Johnsons' failure to produce sworn expert testimony in support of their claims, he had met his burden on summary judgment. At that point, the burden shifted to the Johnsons to come forward with sworn testimony from a qualified medical expert in support of their allegations against Dr. Pace. Because the Johnsons failed to do so, they failed to create a genmne Issue of material fact under Mississippi law, and Dr. Pace was entitled to summary judgment. To the extent the Johnsons may be heard to complain that the trial court should have allowed them additional time to produce sworn expert testimony, the trial court was well within its discretion to deny that request. Between the time the Johnsons filed their complaint and the date of the summary judgment hearing, the Johnsons had approximately one (1) year to produce expert testimony in support of their claims. They had well over three (3) months to do so after I Dr. Pace would note from the outset that the Johnsons' entire seven (7)-page appellate brief cites only one (I) case, two (2) rules of civil procedure, and one (I) uniform circuit court rule. The sole case referenced in the Johnsons' brief is merely cited for the standard of review applicable to a trial court's grant of summary judgment. It has no bearing on the Johnsons' substantive arguments. The two procedural rules cited are ~v1rcp 56 and MRCP 15. MRCP 56 is merely cited for the summary judgment standard. MRCP IS, though cited, has no remotely conceivable application to this case. See infra, note 5. Similarly, URCCC 4.04(A) is cited for a proposition that is neither supported by case law or by the plain language of URCCC 4.04(A). Given the foregoing, Dr. Pace submits that the Johnsons' brief is tantamount to a brief without supporting authority, and this Court would be well within its authority to decline to review this matter. See, e.g., Crawford v. Butler, 924 So. 2d 569, 576 (Miss. Ct. App. 2005) (holding that Court of Appeals would decline to review issue where appellant (I) failed to cite relevant authority or (2) failed to connect relevant authority to the case). 4

10 Dr. Pace moved for summary judgment. Not only did the 10hnsons fail to produce sworn expert testimony despite having ample time to do so, but they also failed to demonstrate with requisite specificity how additional time would have enabled them to create a fact issue precluding summary judgment. Assuming that the 10hnsons did in fact retain an expert the day before the hearing, they nevertheless made no showing whatsoever of that expert's purported opinions. Accordingly, the trial court properly proceeded to hear and rule on Dr. Pace's motion. For these reasons and those set forth herein, Dr. Pace was entitled to summary judgment, and this Court should affirm the judgment of the Lamar County Circuit Court. ARGUMENT I. THE TRIAL COURT PRO PERL Y GRANTED SUMMARY JUDGMENT TO DR. PACE BECAUSE THE JOHNSONS FAILED TO PRODUCE SWORN EXPERT TESTIMONY IN SUPPORT OF THEIR CLAIMS. STANDARD OF REVIEW: A trial court's grant of summary judgment is subject to a de novo standard of review. Scales v. Lackey Mem '/ Hosp., 988 So. 2d 426, 430 (Miss. Ct. App. 2008); Busby v. Mazzeo, 929 So. 2d 369, 372 (Miss. Ct. App. 2006). A. Dr. Pace was free to move for summary judgment at any time. MRCP 56(b) provides the following: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. MISS. R. CIY. P. 56(b) (emphasis added). Mississippi appellate courts have repeatedly reaffirmed that motions for summary judgment may be filed "at any time." See Diogenes Editions, Inc. v. State of Miss. ex rei. Bd. of Trs. of Insts. of Higher Educ., 700 So. 2d 316, 320 (Miss. 1997) (holding that "the defendant... was free to move for summary judgment at any time"). See also 5

11 Young v. Smith, 67 So. 3d 732, 742 (Miss. 2011); Spectrum Oil, LLC v. West, 34 So. 3d 1213, (Miss. Ct. App. 2010). In the case at bar, Dr. Pace was free to move for summary judgment "at any time" pursuant to MRCP 56(b) and controlling case law. In an effort to circumvent the plain language of MRCP 56(b) and controlling authority, the 10hnsons argue that Dr. Pace's motion was somehow "premature" because: (1) according to the 10hnsons, they were not required to produce expert testimony until sixty (60) days prior to trial pursuant to URCCC 4.04(A); (2) no trial date had yet been set; and/or (3) no scheduling order had yet been entered. The 10hnsons cite no authority whatsoever in support of any of these arguments. In point of fact, all three arguments run afoul of settled Mississippi law. Contrary to the 10hnsons' unsupported argument, URCCC 4.04(A) does not purport to set a date upon which expert testimony must first be disclosed. Rather, URCCC 4.04(A) provides that "[a]bsent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys Of record at least sixty days before trial." URCCC 4.04(A). That is, URCCC 4.04(A) merely provides that experts may not be designated any later than sixty (60) days before trial; it does not provide that expert testimony need not be produced until such time? Indeed, the Mississippi Supreme Court previously found the 10hnsons' precise argument on this point unpersuasive, affirming summary judgment despite the fact that the non-movant's "expert designation deadline" of URCCC 4.04(A) had not yet passed. See Kerr-McGee Corp. v. Maranatha Faith Ctr., Inc., 873 So. 2d 103, 106 (Miss. 2004) (rejecting non-movant's argument that motion for summary judgment was 2 Once Dr. Pace propounded an interrogatory requesting expert witness information pursuant to MRCP 26(b)(4) on October 31,2011, the lohnsons were under a continuing duty to seasonably supplement their interrogatory responses to provide that information. MISS. R. CIV. P. 26(f)(l)(B). The expert designation deadline ofurccc 4.04(A) did not and could not absolve the lohnsons from that duty. 6

12 "premature" because URCCC 4.04(A) deadline had not yet passed). The Johnsons cite no authority to the contrary. The Johnsons further argue that Dr. Pace's motion was "premature" because no trial date had been set and no scheduling order had been entered. There is simply no support in Mississippi case law for the proposition that a defendant may not move for summary judgment until a trial date has been set and/or a scheduling order has been entered. Indeed, this Court has refused to hold that a grant of summary judgment was premature where the trial court had not yet set a trial date or a discovery deadline. See Hill v. Warden, 796 So. 2d 276, 279 (Miss. Ct. App. 2001). In actuality, since no scheduling order had been entered in the court below, the discovery deadline ran pursuant to URCCC 4.04(A) on January 29, 2012, viz., ninety (90) days after Dr. Pace served his answer 3 and more than three (3) months before Dr. Pace filed his motion for summary judgment 4. URCCC 4.04(A). See also Scales, 988 So. 2d at 434 n.2 (holding that in absence of scheduling order, discovery deadline is governed by ninety (90)-day rule of URCCC 4.04(A». For all of these reasons, Dr. Pace was free to move for summary judgment on May 14, 2012, or at any other time in the course of this litigation. The Johnsons have not and cannot cite authority holding otherwise. B. Once Dr. Pace demonstrated that the Johnsons had prodnced no sworn expert testimony in support of their claims, the burden of production shifted to the Johnsons to produce such testimony. Pursuant to MRCP 56(b), the defendant may move for summary judgment "with or without supporting affidavits." MISS. R. CIV. P. 56(b). As this Court has repeatedly held, the defendant may "elect to move for summary judg.11lent by identifying deficiencies in the plaintiffs evidence" and is "not required to attach supporting affidavits to the motion [for 3 Dr. Pace served his answer on October 31, R. 61, R.E. 2 at Ex. "B." 4 Dr. Pace filed his motion for summary judgment on May 14,2012. R. 50, R.E. 2. 7

13 summary judgment] in furtherance of this objective." Maxwell v. Baptist Mem"/ Hosp.-DeSoto. Inc., 15 So. 3d 427, 433 (Miss. Ct. App. 2008). See also Langley ex rei. Langley v. Miles, 956 So. 2d 970, (Miss. Ct. App. 2006) (rejecting plaintiffs argument that defendants failed to meet their burden on summary judgment in medical malpractice case because defendants did not attach supporting affidavits to their motion). In a medical malpractice action, the defendant physician "may meet [his! summary judgment burden by pointing out to the court that the plaintiff[s] halve] failed to produce sworn expert testimony supporting [their! allegations." Scales, 988 So. 2d at 433 (emphasis added). At that point, the burden shifts to the plaintiffs to produce sworn expert testimony in support of their claims. See id at ; Langley, 956 So. 2d at 976; Maxwell, 15 So. 3d at In the case at bar, once Dr. Pace pointed out to the trial court that the Johnsons had produced no sworn expert testimony in support of their claims, the burden shifted to the Johnsons to produce such testimony. The Johnsons appear to argue that the trial court erred in considering the expert affidavit of Dr. Tucker produced by Dr. Pace in supplementation of his summary judgment motion two (2) days before the hearing. 5 What they fail to address or even acknowledge is the fact that Dr. Pace had no obligation to produce any such affidavit in any event. Rather, once Dr. Pace pointed out the lack of sworn expert testimony in support of the Johnsons' claims, the burden shifted to Johnsons to produce such sworn testimony-period. 5 The Johnsons make the rather bizarre argument that a motion cannot be supplemented by the movant without leave of court pursuant to MRCP 15(a). Once again, the Johnsons cite absolutely no authority in support of this proposition. Furthennore, MRCP 15(a) governs amendment of "pleadings," not supplementation of motions. See MISS. R. CIV. P. 15(a). Motions are not pleadings. See MISS. R. CIV. P. 7(a). See also Southland Broadcasting Co. v. Tracy, 50 So. 2d 572, 574 (Miss. 1951). Accordingly, they are not and cannot be supplemented by the procedure for amendment of pleadings set forth in MRCP 15(a). See Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, (5th Cir. 1993) (citing 6 Wright & Miller, Federal Practice & Procedure, 1475 (1990» (discussing MRCP 15(a)'s federal counterpart, FRCP 15(a». Rather, motions are routinely and customarily supplemented at the movant's discretion in advance of the hearing. See, e.g., Corey v. Skelton, 834 So. 2d 681, 683 (Miss. 2003) (affirming summary judgment in favor of defendant physician where physician supplemented his motion with deposition testimony and additional affidavit in advance of hearing). 8

14 Like the defendants in Scales, Maxwell, and Langley, supra, Dr. Pace was not required to support his motion with affidavits and was free to move for summary judgment solely on the basis of the deficiencies in the Johnsons' proof. Accordingly, whether the trial court considered Dr. Pace's own expert affidavit of Dr. Tucker is irrelevant to the propriety of its order granting summary judgment. The issue raised by the Johnsons in this regard is a red herring that should not distract this Court's attention from this critical point: that pursuant to Scales, Maxwell, and Langley, supra, the burden of production was squarely and solely on the Johnsons, and they utterly failed to meet that burden. C. Because the Johnsons failed to produce any sworn expert testimony in support of their claims, Dr. Pace was entitled to summary judgment. It is well settled in Mississippi that to make out a prima facie case of medical malpractice against a physician, the plaintiff has the burden of establishing the following elements: the existence of a duty on the part of the physician to conform to the specific standard of conduct, the applicable standard of care, the failnre to perform to that standard, that the breach of duty by the physician was the proximate cause of the plaintiffs injury, and that damages to plaintiff have resulted. Kuiper v. Tarnabine, 20 So. 3d 658, 661 (Miss. 2009). As a general rule, these elements "may be established only by expert testimony." Id (emphasis added). To withstand summary judgment, that testimony must be sworn. Scales, 988 So. 2d at 433; Langley, 956 So. 2d at 976; Busby, 929 So. 2d at ; Potter v. Hopper, 907 So. 2d 376, 380 (Miss. Ct. App. 2005). In Scales, the plaintiff filed a complaint against the defendant hospital alleging medical malpractice. Scales, 988 So. 2d at 429. On the day the hospital served its answer, it also propounded interrogatories requesting that the plaintiff provide expert witness information. Jd In response, the plaintiff identified the names of two physicians but failed to disclose their opinions. Jd The hospital thereafter moved for summary judgment on the grounds that the 9

15 plaintiff had failed to come forward with expert testimony in support of her claims. Id. In response, the plaintiff supplemented her interrogatory responses to identify a third physician expert and disclose her experts' opinions, but she failed to produce any affidavits or sworn deposition testimony from any of her experts. See id. at On the basis of the plaintiffs failure to produce sworn expert testimony in support of her claims, the trial court granted summary judgment to the defendant, and the plaintiff appealed. Id. at 430. On appeal, this Court applied longstanding precedent holding that the burden was on the plaintiff to produce sworn expert testimony in support of each element of her prima facie case of medical malpractice. Id. at 433. The Court reasoned that since the plaintiff had failed to produce such sworn expert testimony, the hospital was entitled to summary judgment. Id. at Accordingly, this Court affirmed the trial court's grant of summary judgment in favor of the hospital. Id. at 436. Similarly, in Busby, the plaintiff filed a wrongful death, medical malpractice action against several physicians. Busby, 929 So. 2d at 370. Following the plaintiffs failure to produce expert testimony in response to discovery requests, two of the defendant physicians moved for summary judgment, citing the absence of any expert testimony in support of the plaintiffs claims. Id. at 371. In response, the plaintiff relied exclusively on the medical records and an unsworn letter from her physician expert in support of her claims. Id. at 371. The trial court granted the physicians' motions for summary judgment because there was no sworn expert testimony supporting the plaintiffs claims against either of them. Id. at 372. On appeal, the plaintiff argued that she was not required to produce sworn expert testimony to survive summary judgment. Id. at 372. Citing well-settled Mississippi case law, this Court rejected that argument outright, holding that the plaintiff was required to produce sworn expert testimony to withstand summary judgment and noting that the plaintiff had failed JO

16 to do so. Id. at Therefore, on that basis alone, this Court affinned the trial court's grant of summary judgment to the physicians. Id. at 373. In the case at bar, the trial court properly granted summary judgment to Dr. Pace because the J ohnsons failed to produce any sworn expert testimony in support of their claims. Like the defendants in Scales and Busby, Dr. Pace propounded an interrogatory to the J ohnsons requesting expert witness information, including the substance of any expert opinions, pursuant to MRCP 26(b)(4). R 68-69, RE. 2 at Ex. "c." In response, the Johnsons objected and stated that they had "not yet determined an expert to be called as a witness at the trial of this case." R , R.E. 2 at Ex. "D." Additionally, in response to a request for admission propounded to the Johnsons by Dr. Pace, the Johnsons admitted that they had no report from a qualified medical expert opining that Dr. Pace had breached the applicable standard of care. R. 199, R.E. 6, at Ex. "G." The Johnsons never supplemented their interrogatory responses to produce any sworn expert testimony in support of their claims against Dr~ Pace. Since summary judgment was proper in Scales and Busby, where the plaintiffs placed unsworn expert testimony before the trial court, certainly it is even more appropriate here, where the Johnsons produced no expert testimony whatsoever (i.e., either sworn or unsworn). Because the Johnsons failed to produce sworn expert testimony in support of each element of their claims against Dr. Pace, they failed to create a genuine issue of material fact, and the trial court properly granted summary judgment to Dr. Pace under MRCP 56 and controlling case law. The Johnsons have not and cannot cite any authority to the contrary. 11

17 II. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN PROCEEDING TO HEAR AND RULE ON DR. PACE'S MOTION FOR SUMMARY JUDGMENT. STANDARD OF REVIEW: A trial court's denial of a continuance under MRCP 56(f) is reviewed for abuse of discretion. Stallworth v. Sanford, 921 So. 2d 340, (Miss. 2006); Hackler v. PHC-Cleveland, Inc., 90 So. 3d 135, 136 (Miss. Ct. App. 2012). To the extent the 10hnsons may be heard to complain that the trial court should have allowed them additional time to produce sworn expert testimony/ the trial court considered that proposition and appropriately rejected it. The proper vehicle for requesting additional time to respond to a motion for summary judgment is a motion for a continuance made pursuant to MRCP 56(f). See Kerr-McGee Corp., 873 So. 2d at MRCP 56(f) provides the following: MISS. R. CIY. P. 56(f). Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just. It is well settled that MRCP 56(f) is "not designed to protect litigants who are lazy or dilatory." Moore v. M & M Logging, Inc., 51 So. 3d 216, 223 (Miss. Ct. App. 2010). A party seeking relief under MRCP 56(f) must present "specific facts" showing why he cannot oppose the motion and must "specifically demonstrate" how postponement of a ruling will enable him to rebut the movant's showing of the absence of a genuine issue of material fact. Scales, 988 So. 6 Dr. Pace would point out that the Johnsons did not allege as error the trial court's ruling denying their request for additional time. That is, no such alleged error is delineated as a separately numbered issue in the Johnsons' brief. See Brief of Appellant at 1. For that reason, Dr. Pace submits that the issue of whether the trial court's denial of an MRCP 56(t) continuance was proper is procedurally barred from consideration on appeal. See Wilson v. Wilson, 79 So. 3d 551, 560 (Miss'. Ct. App. 2012). Nevertheless, out of an abundance of caution in case the Johnsons' first stated issue should be deemed sufficiently broad to encompass the aforementioned issue, Dr. Pace will address that issue here. 12

18 2d at 434. Where the plaintiffs are vague in this regard and/or where they fail to make the requisite showing of diligence, denial of an MRCP S6(f) motion is proper. Hackler, 90 So. 3d at 137., In Stallworth, the plaintiff filed a medical malpractice complaint against three physicians following her delivery of stillborn twins. Stallworth, 921 So. 2d at 341. Approximately three (3) months later, the defendant physicians moved for summary judgment, in part on the grounds that the plaintiff had failed to produce expert testimony in support of her claims. See id. In response, the plaintiff requested additional time to submit an expert affidavit, citing difficulties in locating and retaining a testifying expert. Id. at 342. Approximately five (S) months after the plaintiff filed suit and approximately two (2) months after the physicians moved for summary judgment, the trial court held a hearing on the motions for summary judgment. See id. at 342. Finding that the plaintiff had adequate time to locate an expert, the trial court denied the plaintiff's request for additional time and granted summary judgment to the physicians. See id. at 343. On appeal, this Court reiterated that MRCP S6( f) is not designed to protect dilatory litigants and agreed that the plaintiff had "ample time to locate a medical expert." Id. Accordingly, this Court affirmed the trial court's denial of a continuance and grant of summary judgment to the physicians. Id. In Hackler, the plaintiff filed a wrongful death, medical malpractice action in August 2009 against a physician and hospital following the death of her infant child. Hackler, 90 So. 3d at 136. One (1) year later, in August 2010, the defendants moved for summary judgment on the grounds that the plaintiff had no expert witness to support her claims. Id. Two days before the hearing, the plaintiff moved for a continuance pursuant to MRCP S6(f), seeking additional time to obtain expert testimony. Id. In November 2010, the trial court held a hearing on these motions. Id. at Reasoning that the plaintiff had known since filing her complaint that she would require expert testimony to support her claims, the trial court denied the plaintiff s motion 13

19 for a continuance and granted the defendants' motions for summary judgment. Id. at On appeal, this Court noted that the plaintiff had a year to find an expert and three (3) months to do so after the defendants moved for summary judgment. See id. at 137. Holding that these time, frames constituted "ample time" for the plaintiff to secure expert testimony, this Court affirmed the trial court's denial of a continuance and grant of summary judgment to the defendants. Id. at In the case at bar, the trial court was well within its discretion to proceed with the hearing on Dr. Pace's motion because the 10hnsons had ample time to secure sworn expert testimony. The 10hnsons filed their complaint against Dr. Pace on September 19,2011. R. 4, RE. 1. Dr. Pace propounded his MRCP 26(b)( 4) interrogatory requesting expert witness information on or about October 31, R 68-69, 74, RE. 2 at Ex. "c." Having received no such information as of May 14,2012, Dr. Pace on that date filed his motion for summary judgment. R. 50, R.E. 2. Rather than file a response or a motion for a continuance predicated on MRCP 56(f), the 10hnsons filed a "motion to quash" Dr. Pace's summary judgment motion as "premature," even going so far as to seek sanctions and attorneys' fees from Dr. Pace (or his counsel) for the mere filing of his summary judgment motion. R , R.E. 3. At the hearing on September 7, 2012, the 10hnsons' counsel advised the trial court that they had "scoured the country" in search of a "willing" expert and had only retained an expert witness on the day before the hearing. Tr. 1, 12-13, R.E. 4. The 10hnsons did not identify this purported expert at the hearing (or at any other time), nor did they disclose the substance of his/her purported opinions to the trial court or to Dr. Pace. See Tr , R.E. 4. Instead, they merely requested that the trial court "hold in 14

20 abeyance" Dr. Pace's motion for summary judgment to "allow [them] the time" to respond. 7 Tr , R.E. 4. In its order denying the lohnsons' request and granting summary judgment to Dr. Pace, the trial court reasoned that the lohnsons had almost a full year since filing their complaint in which to produce supportive expert testimony. R. 206, R.E. 5. Accordingly, the trial court declined to allow the lohnsons additional time. Id The trial court's ruling is fully supported by controlling authority. Whereas a period of approximately five (5) months (between the filing of the complaint and the summary judgment hearing) was deemed to be "ample time" to locate an expert in Stallworth, certainly a period of approximately one (1) year was more than adequate here. Furthermore, not unlike the plaintiff in Hackler, the lohnsons had well over three (3) months after Dr. Pace moved for summary judgment in which to produce sworn expert testimony in support of their claims. Not only did the lohnsons have ample time to produce expert testimony, but they also failed to demonstrate with requisite specificity how additional time would enable them to create a fact issue. Assuming that the lohnsons did in fact retain an expert the day before the hearing, they nevertheless made no showing whatsoever of that expert's purported opinions. As this Court has stated previously, "a plaintiff in a medical malpractice action knows 'from the very moment suit [is] filed... that an expert witness [will] be needed to survive summary judgment." Scales, 988 So. 2d at 436 (citing Brooks v. Roberts, 882 So. 2d 229, 232 (Miss. 2004» (omissions and alterations in original) (emphasis added). Because the lohnsons had "ample time" under controlling case law to produce expert testimony in support of their 7 In an effort to persuade the trial court to allow the lohnsons additional time, counsel for the lohnsons magnanimously offered to withdraw the lohnsons' request for sanctions and attorneys' fees, a request that had no justification-much less legal basis-in the first place. See Tr. 13, R.E

21 claims, the trial court properly exercised its discretion in denying a continuance and proceeding to hear and rule on Dr. Pace's motion. CONCLUSION At the end of the day, the Johnsons simply failed to meet their burden to survlve summary judgment. As this Court has aptly stated: [W)e simply cannot initiate precedent that would carve a path leading to prosecution of medical malpractice claims based on allegations alone. Unfortunately, in lacking sworn expert testimony, that is what the circuit court had before it. The circuit court followed precedent when it granted [the physician's) motion for summary judgment. Likewise, this Court follows precedent and affirms. Potter, 907 So. 2d at 380. Having failed to create a genuine issue of material fact after a year of litigation, the J ohnsons could not sustain their claims to trial, and Dr. Pace was entitled to judgment as a matter of law. For these reasons and those set forth herein, this Court should affirm the judgment of the Lamar County Circuit Court. THIS the S-a'day of April, Respectfully submitted, WILLIAM PACE, M.D., APPELLEE OF COUNSEL: WISE CARTER CHILD & CARA WAY, P.A. 600 HERITAGE BUILDING 401 EAST CAPITOL STREET POST OFFICE BOX 651 JACKSON, MISSISSIPPI TEL: (601) FAX: (601) GAYE REX M. SHANNON III ATTORNEYS FOR WILLIAM PACE, M.D., APPELLEE 16

22 CERTIFICATE OF SERVICE I, Rex M. Shannon III, one of the attorneys for Appellee, William Pace, M.D., do hereby certify that I have this date caused to be served, via U.S. Mail, postage prepaid, a true and correct copy ofthe above and foregoing to the following: Alfreda Tillman Bester, Esq. TILLMAN BESTER & ASSOCIATES, LLC 4014 Salem Drive Baton Rouge, Louisiana Alvin Arrnistad, Esq. Post Office Box Byram, Mississippi ATTORNEYS FOR APPELLANTS Hon. Anthony A. Mozingo Lamar County Circuit Court Post Office Drawer 269 Purvis, Mississippi TRIAL COURT JUDGE -7ft THIS the ~ day of April, ~~ REX M. SHANNON III 17