Hariel v. Biloxi HMA, Inc., et al.
| Docket Number: | 2006-CA-00187-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-04-2007 Opinion Author: ROBERTS, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Medical malpractice - Designation of expert witness - M.R.C.P. 56(f) Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ. Non Participating Judge(s): BARNES, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
|
| Trial Court: |
Date of Trial Judgment: 12-19-2005 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: MOTIONS FOR SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEES Case Number: A2402-2004-28 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | RANDY HARIEL |
JENNIFER P. BURKES
DAVID W. LAMBERT
MARK ANDREW CLIETT |
||
| Appellee: | BILOXI HMA, INC., BILOXI REGIONAL MEDICAL CENTER AND CARL PALUMBO, M.D. | LYNDA CLOWER CARTER MARY MARGARET KUHLMANN NICOLE COLLINS HUFFMAN GEORGE F. BLOSS |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Medical malpractice - Designation of expert witness - M.R.C.P. 56(f) |
| Summary of the Facts: | Randy Hariel underwent carpal tunnel surgery at Biloxi Regional Medical Center. After Hariel woke up with unexplained burns on his leg, Hariel sued the attending surgeon, Dr. Carl Palumbo, and BRMC for negligence. After approximately a year, Dr. Palumbo and BRMC filed separate motions for summary judgment because Hariel had not designated an expert witness. Hariel filed a successful motion for additional time pursuant to M.R.C.P. 56(f). When Hariel’s ninety-day extension expired without his designating an expert witness, Dr. Palumbo and BRMC scheduled their motions for hearing. After the hearing, the circuit court requested proposed findings of fact and conclusions of law. Otherwise, the circuit court held the matter in abeyance. Approximately a week later, Hariel filed an affidavit of an expert physician and another Rule 56(f) motion for extension of time. However, the court granted the motions for summary judgment. Hariel appeals. |
| Summary of Opinion Analysis: | Hariel argues that the court erred when it granted the motions for summary judgment, because Hariel filed an expert witness before the circuit court granted summary judgment, there was no deadline for Hariel to respond to the motions for summary judgment, and Hurricane Katrina intervened before any response from Hariel was due. Hariel requested an additional sixty days to obtain the affidavit of an expert, but the circuit court never gave Hariel any additional time. Further, Hariel never filed a motion to reopen the case so that he could submit the expert affidavit or attempted to establish excusable neglect in his failure to timely obtain the affidavit of an expert witness. To the extent that Hariel’s argument may be interpreted as a suggestion that the circuit court should have given him more time to designate his expert, a trial court has sound discretion to grant or deny a continuance under M.R.C.P. 56(f). When a litigant seeks to submit affidavits after the conclusion of a summary judgment hearing, that litigant is required to object or move for continuance at the hearing. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. Therefore, the circuit court did not abuse its discretion when it did not allow Hariel to submit an untimely affidavit. Hurricane Katrina made landfall over two weeks after Hariel’s extended time expired. Combined with the fact that Hariel never requested additional time before his time expired or even between the time it expired and Katrina’s landfall, the circuit court did not err when it declined to give Hariel an extension due to Hurricane Katrina. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
