REPLY BRIEF OF APPELLANT

Transcription

1 E-Filed Document May :36: IA SCT Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI CASE NO. No IA VICKSBURG HEALTHCARE, LLC d/b/a RIVER REGION HEALTH SYSTEM APPELLANT VS. CLARA DEES APPELLEE Appeal from the Circuit Court of Warren County REPLY BRIEF OF APPELLANT Oral Argument Not Requested R. E. Parker, Jr., MSB # 4011 Clifford C. Whitney III, MSB #10273 VARNER, PARKER & SESSUMS, P.A Jackson Street Post Office Box 1237 Vicksburg, Mississippi Telephone: Facsimile: [email protected] [email protected]

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 ARGUMENT The Trial Court Erred in Denying Summary Judgment, Where the Plaintiff Failed to Provide Any Expert Opinions under Oath to Establish the Elements of Her Claim The Trial Court Erred in Allowing the Plaintiff Sixty Days to Produce an Expert Affidavit, Despite Plaintiff s Failure to Comply with the Requirements of Rule 56(f) CONCLUSION... 6 CERTIFICATE OF SERVICE... 7 i

3 TABLE OF AUTHORITIES Cases Crosthwait v. S. Health Corp. of Houston, Inc., 94 So. 3d 1070, 1074 (Miss. 2012). 3 Rules Miss. R. Civ. Proc. 56(f)...2, 4 ii

4 INTRODUCTION Clara Dees counsel candidly admitted three times in a hearing before this Court on April 30, 2014, that he cannot win this appeal! The dialogue was as follows: Justice Randolph: Winfield: Justice Randolph: Winfield:... If we follow the rules of Court your case ought to be thrown out. Do you know that? Yes, Your Honor. I do. Why doesn't that motivate you to do it and do it right?... But, be that as it may, with me being a solo practitioner and juggling you know the many aspects of that, you get into a time value thing to some extent and to some degree. I just, I don't feel like I will win this case. So just, and I hope that... * * * * * * * * * * * * Justice Kitchens: Winfield: Justice Kitchens: Winfield: Justice Kitchens: Time value is a term you used. What does that have to do with any of this? Why did you say that? Because I don't think that...i don't think that I will succeed on appeal in this case. Have you told your client that? I have discussed the merits of... Have you told your client that? Winfield: Yes, Your Honor. I have talked to her... Justice Kitchens: Winfield: That you don't think you are going to succeed on this case, right? Yes, Your Honor. 1

5 Transcription of DVD of Hearing, pp. 17, 20. (Emphasis added.) A full unofficial transcription (performed in the undersigned s office) of the Court s official DVD recording of the 4/30/14 hearing is attached as Exhibit A. Mr. Winfield s complete lack of confidence in his case can be seen in his Appellee s Brief, which contains a digest-like recitation of summary judgment law, followed by a conclusory statement that the trial court correctly denied summary judgment in this medical malpractice case, despite the absence of any expert affidavit to support Plaintiff s position. Yet, it is black letter law that a plaintiff in a medical malpractice case cannot prevail on summary judgment without an expert affidavit. According to Ms. Dees, the trial court instead properly granted an extension of time for Plaintiff to produce the necessary expert affidavit, without showing how the extension in any fashion complies with this Court s requirements in Miss. R. Civ. Proc. 56(f). Rather, Ms. Dees makes the absurd argument that Vicksburg Healthcare, LLC (VHC) requested the extension and is therefore estopped to deny that the extension was proper. The summary judgment hearing transcript reveals that this is a complete misrepresentation of what occurred. Therefore, this Court should reverse the trial court and render judgment for VHC. ARGUMENT 1. The Trial Court Erred in Denying Summary Judgment, Where the Plaintiff Failed to Provide Any Expert Opinions under Oath to Establish the Elements of Her Claim. 2

6 Plaintiff has added exactly 0 to the Court s consideration of this issue. All she does in her brief is to recite maxims of summary judgment law such as that in order for the plaintiff to fulfill its burden, the plaintiff must put on some evidence by expert testimony or affidavit, unless the issues are within the common knowledge of a layperson, and that evidence must be such that fair-minded jurors might, in light of that evidence, differ on the material facts. Appellee s Brief at 5-6. Plaintiff then follows up with her two sentence conclusion, which is as follows: In the instant case, the Circuit Court exercised its discretion in sua spontae [sic] continuing the summary judgment hearing to allow additional discovery. Based upon the above and foregoing, the circuit court did not err in denying VHC [sic] motion for summary judgment. Appellee s Brief at 6-7. Conspicuously absent is any showing that Ms. Dees has complied with the basic requirements of summary judgment law that she cites in the brief. Plaintiff has yet to ever produce an expert affidavit establishing the elements of her case not before, during or since the summary judgment hearing in circuit court. In short, Ms. Dees has utterly failed to meet the standard set in Crosthwait v. S. Health Corp. of Houston, Inc., 94 So.3d 1070, 1074 (Miss. 2012) and myriad other decisions of this Court with regard to the duty of a plaintiff in a medical malpractice case to produce an expert affidavit in order to survive summary judgment. Ms. Dees has no explanation for this glaring hole in her case. Instead, her counsel merely states in conclusory fashion that the trial court properly continued the summary judgment hearing to allow more discovery. First of all, 3

7 the circuit court denied summary judgment (without prejudice); it did not continue the hearing. See Order of January 24, 2013 (VHC s E. 5). Secondly, the trial court did not allow more time for discovery; it specifically gave Ms. Dees another sixty (60) days to produce an expert affidavit by Dr. Inna Sheyner. This is despite Plaintiff s failure to comply with Rule 56(f) as far as requesting an extension of time, as VHC will discuss in the next section of this brief. In short, Plaintiff s brief offers no reason to doubt that the trial court erred in overruling summary judgment. 2. The Trial Court Erred in Allowing the Plaintiff Sixty Days to Produce an Expert Affidavit, Despite Plaintiff s Failure to Comply with the Requirements of Rule 56(f). Ms. Dees makes no effort to show that Circuit Judge Patrick s Order giving Plaintiff sixty more days to produce an expert affidavit complied with Miss. R. Civ. Proc. 56(f). Rule 56(f) provides that 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. Plaintiff s counsel does not contend that he complied with Rule 56(f) even in the slightest, no doubt because Mr. Winfield had no excuse for failing to provide a timely affidavit from an expert he claimed to have already hired. Rather, he concocts the ridiculous argument that in the instant case, Appellant requested the 60 day time limit for Appellant to produce her expert affidavit. Thus, 4

8 Appellant is equitably estopped from asserting said argument on appeal. This contention is patently false! The hearing transcript (VHC s E.7) reveals that, in reality, Judge Patrick ruled sua sponte that he was granting Ms. Dees more time to produce an expert opinion by her expert, Dr. Sheyner. The extension was not requested by either party. After the judge granted the additional time, the following dialogue occurred: BY MR. WHITNEY: Judge, can we two things. Can we have a time limit on when that has to be done and secondly that it be signed under oath by Dr. Shinner [sic] and not just a disclosure, an expert disclosure since the rules do require an affidavit under oath. BY THE COURT: An affidavit under oath as required by the rules. I assume along with her opinion would be forth coming. As to a time frame, we have not got a trial date set? BY MR. WINFIELD: No, Your Honor, that is the motion that we have before the Court today requesting a date. BY THE COURT: Have you received anything from Dr. Shinner [sic] in terms of reports? BY MR. WINFIELD: Yes, Your Honor. [BY THE COURT]: Let's give - -what time frame would you want Mr. Winfield, 60 days? BY MR. WHITNEY: Well, can we make it 30 days, Your Honor, if he's already got the report it shouldn't take him any time at all. BY MR. WINFIELD: We would ask for the 60 days, Your Honor. BY THE COURT: Sixty (60) days since we don't even have a trial date yet. Sixty days, the report will be given along with the signed affidavit of Dr. Shinner [sic] as to the malpractice, if any, of the hospital and its employees. Give me an order to that effect. 5

9 Hearing Transcript at 8-9 (VHC s E. 7). Thus, contrary to the allegation by Ms. Dees counsel in his brief, Mr. Winfield was the one who requested the additional 60 days to produce the affidavit not VHC s counsel. VHC s counsel only participated in the discussion after the trial judge had already unilaterally imposed an extension of time in favor of the Plaintiff, and VHC was attempting to put a time limit on the extension. It has now been nearly 485 days since the trial court granted the extension, and the affidavit has yet to be seen. Therefore, an equitable estoppel is out of the question. Instead, the Court should overrule the trial court and enter judgment for VHC. CONCLUSION Plaintiff offers no excuse for failing to produce an expert affidavit as required to defeat VHC s Motion for Summary Judgment. Instead, she tries to defend the trial court s decision in violation of Rule 56(f) to unilaterally grant Plaintiff another 60 days to produce the affidavit. Ms. Dees only rejoinder to this error is to point the finger at VHC and claim that its counsel requested the extension. The hearing transcript totally belies this unfounded argument. Therefore, it is clear that this Court should reverse the trial court and render judgment for VHC. Respectfully submitted this the 19 th day of May, 2014, VICKSBURG HEALTHCARE, LLC D/B/A RIVER REGION HEALTH SYSTEM BY: /s/ Clifford C. Whitney III R. E. Parker, Jr., MSB # 4011 Clifford C. Whitney III, MSB #

10 OF COUNSEL: VARNER, PARKER & SESSUMS, P.A Jackson Street Post Office Box 1237 Vicksburg, Mississippi Telephone: Facsimile: CERTIFICATE OF SERVICE The undersigned counsel of record for Defendant Vicksburg Healthcare LLC does hereby certify that I forwarded a copy of the above and foregoing document to the following counsel of record, by first class mail, postage prepaid, fax, and/or hand delivery: Michael E. Winfield, Esquire Winfield & Moran 1129 Openwood Street Vicksburg, Mississippi Attorney for Plaintiff The Honorable Isadore W. Patrick Post Office Box 351 Vicksburg, Mississippi This the 19 th day of May, By: /s/ Clifford C. Whitney III Clifford C. Whitney III 7