No Summary Judgment for Simply Failing to Answer Interrog Before the Discovery Cutoff

Ralston v. Yim (ICA May 31, 2012)

Background. Rick Ralston sued Dr. Errol Yim for dental malpractice. Before the discovery cut-off date, Dr. Yim filed a motion to dismiss and/or for summary judgment. Dr. Yim argued that Ralston could not prove his malpractice claim because he had not disclosed any expert witnesses. Ralston responded by arguing that Dr. Yim had not met its initial burden of showing no genuine issue of fact, particularly the fact that Dr. Yim's orthodontic care comported with accepted standards of care and that Dr. Yim adequately obtained Ralston's informed consent. Ralston also pointed out that the discovery cutoff had not occurred. At the first hearing, the circuit court permitted supplemental briefing on the issue. Ralston attached a report from an expert, Dr. Harry Aronowitz, and Dr. Aronowitz's c.v. The affidavit stated that in his expert opinion, Dr. Yim's orthodontic care fell below the standard of care. Dr. Yim did not supplement its motions, but instead argued that because Dr. Aronowitz's opinion was inadmissible because it was not contained in an affidavit or other affirmed statement. The day before the hearing, Ralston filed another supplemental pleading, this time with Dr. Aronowitz's affidavit. At the hearing, the circuit court struck the 2d supplemental pleading before being filed too late and concluded that the initial report from Dr. Aronowitz was inadmissible. It granted Dr. Yim's motion and awarded him $3,878.63 in costs. Ralston appealed.

The Summary Judgment Standard. The summary judgment standard is well-known:

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of the fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inference drawn therefrom in the light most favorable to the party opposing the motion.

Tri-S World Corp. v. W. World Ins. Co., 110 Hawai'i 473, 487, 135 P.3d 82, 96 (2006); Haw. R. of Civ. Pro. Rule 56.

The Burden Improperly Shifted to the Non-Moving Party. In medical negligence actions, the plaintiff must show at trial that the physician fell below the standard of care "through expert medical testimony." Craft v. Peebles, 78 Hawai'i 287, 298, 893 P.2d 138, 149 (1995). Thus, Ralston must ultimately show negligence through expert testimony at trial. But according to the ICA, that is not the issue here. The question is whether Ralston had to respond to the motion for summary judgment by presenting expert testimony when the moving party failed to show any evidence as to the standard of care.

The ICA agreed with Ralston that the circuit court erred. "Although . . . under certain circumstances a summary judgment movant may carry its burden without presenting evidence negating an element of the other party's claim, merely asserting that the non-moving party has not come forward with evidence to support its claim is not enough. . . . [T]he movant must first demonstrate that the non-moving party cannot carry its burden of proof at trial." French v. Hawai'i Pizza Hut, Inc., 105 Hawai'i 462, 471-72, 99 P.3d 1046, 1055-56 (2004). The ICA pointed out that the circuit court granted summary judgment before the discovery cutoff date. Ralston did not have adequate time to conduct discovery, find his experts, and then respond to Dr. Yim's interrogatories. Simply pointing out that none of the interrogs had been answered did not discharge Dr. Yim of his burden as the movant in proving no genuine issue of material fact existed. The ICA thus held that the award of costs was improper and vacated the summary judgment.

Distinguishing Eddins. In Eddins v. Morrison, 105 Hawai'i 376, 98 P.3d 247 (App. 2004), the ICA upheld a summary judgment when the plaintiff had no admissible evidence of an expert's testimony. However, in that case, the defendant doctor met his initial burden of proof when he submitted affidavits showing that his performance had met the standard of care. Id. at 377, 98 P.3d at 248. The summary judgment was proper because the plaintiff failed to present admissible evidence rebutting the defendant's evidence. Id. Here, however, Dr. Yim did not present any evidence and he had the burden of proof.


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