        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00111-COA

DELTON CRUTCHFIELD AND LORI                                             APPELLANTS
CRUTCHFIELD

v.

MAGNOLIA REGIONAL HEALTH CENTER                                            APPELLEE

DATE OF JUDGMENT:                        10/03/2016
TRIAL JUDGE:                             HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED:               ALCORN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                EDGAR CLARK TROUT
                                         THOMAS ROY TROUT
                                         KRISTIAN ALICIA MCCRAY
ATTORNEY FOR APPELLEE:                   L. BRADLEY DILLARD
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
DISPOSITION:                             AFFIRMED - 06/05/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   The Alcorn County Circuit Court granted summary judgment against Delton

Crutchfield—then a named plaintiff but since deceased—and Lori Crutchfield.           The

Crutchfields now appeal, maintaining that the court erred in granting summary judgment.

We affirm.

                                         FACTS

¶2.   Delton was admitted to Magnolia Regional Health Center (Magnolia Regional) on

September 18, 2011, after suffering a heart attack. While under the care of Magnolia

Regional, Delton developed decubitus ulcers on his coccyx, left buttocks, left heel, right
trochanter, right lateral gluteus, right ischium, and sacrum. Delton was discharged from

Magnolia Regional on October 25, 2011. However, his wounds gradually worsened and

ultimately resulted in amputation of his lower left extremity. Delton’s health continued to

deteriorate until his death on July 24, 2016.

¶3.     About three and a half years prior to Delton’s death, on November 16, 2012, the

Crutchfields filed their initial complaint against Magnolia Regional, asserting that he had

developed the decubitus ulcers as a result of their negligent treatment. Attached to that

complaint was an affidavit by counsel for the Crutchfields, alleging that he had conferred

with a medical expert, Dr. Irving Vinger, who concluded that there was a reasonable basis

to bring suit against Magnolia Regional.1

¶4.     Either late 2012 or early 2013, Magnolia Regional propounded written discovery to

the Crutchfields, including interrogatories wherein it asked them to identify each person they

expected to call as an expert witness at trial. In February 2013, the Crutchfields responded,

“No decision has been made as to which experts the Plaintiffs will designate to testify at the

trial of this matter,” and “Plaintiffs will supplement this interrogatory when a decision as to

who will be testifying as an expert(s) at the trial of this matter [has been made].” Magnolia

Regional maintains—and the Crutchfields readily admit—that no such designation was ever

made.



        1
         The initial complaint also included as defendants Magnolia Regional Health Center
Foundation, Inc., and Magnolia Regional Health Services, Inc., both of whom were later
dismissed. Additionally, the initial complaint was amended with leave of court to include
Dr. Nanni Pidikiti, a cardiologist who had treated Delton at one point. Dr. Pidikiti was also
later dismissed as a defendant.

                                                2
¶5.    On January 7, 2015, the Crutchfields filed a motion for a scheduling order and trial

date; however, no trial date was ever formally set.2 On May 26, 2016, Magnolia Regional

filed a motion for summary judgment, on the basis that the Crutchfields had failed to

designate an expert witness in support of their medical-negligence claims. The record

indicates that on July 25, 2016, and on August 19, 2016, the Crutchfields issued two

subpoenas for Delton’s medical records from Baptist Union County Hospital and North

Mississippi Medical Center, respectively. The docket sheet provides that the medical records

from Baptist Memorial Hospital were filed with the court on September 15, 2016. There is

no such entry regarding the records from North Mississippi Medical Center, and the

Crutchfields maintain that those records were never filed. On September 7, 2016, the

Crutchfields filed a response to Magnolia Regional’s motion for summary judgment, along

with a Rule 56(f) motion for continuance,3 wherein they asserted that they had retained two

experts in this case, but that they were not yet required to designate those experts under the

Uniform Rules of Circuit and County Court.4 They further argued that Magnolia Regional’s


       2
           The Crutchfields note that this document was incorrectly file-stamped as January
7, 2014.
       3
           Rule 56(f) of the Mississippi Rules of Civil Procedure provides:

       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.
       4
         Of note is the fact that this motion included an affidavit from the Crutchfields’
counsel, but not one from either of the purported experts that the Crutchfields had allegedly
retained.

                                              3
motion was “premature,” because “additional discovery” was needed “to fully develop the

facts so that the [Crutchfields’] retained experts may render complete opinions with regard

to [Magnolia Regional’s] breaches in the minimum standards of care and how those breaches

caused the [Crutchfields’] injuries.” However, the Crutchfields failed to specify the required

additional facts.

¶6.    The following day, on September 8, 2016, the trial court conducted a hearing on

Magnolia Regional’s motion for summary judgment. Counsel for the Crutchfields argued

that he had secured two experts who would testify “that there were clear breaches in the

minimum standard of care in this case and that those breaches caused [Delton] injuries.”

When asked why those experts had not been designated, the Crutchfields’ counsel replied,

“Rule 4.04 requires me to do it [sixty] days before trial. . . . I don’t mind giving it to them,

but just would like to finish the discovery in this case. There are subpoenas to the North

Mississippi Medical Center for a medical chart that my expert needs to review.” Counsel for

the Crutchfields contended that there had been a “little hiccup” in retaining experts, and that

he had abandoned his initially retained expert in favor of a different one “roughly a couple

years later or so after filing the case.” Counsel also stated that he had additionally retained

a nursing expert, who he initially obtained “a couple years” ago. The court then asked if

counsel for the Crutchfields had considered bringing his experts to testify at the motion

hearing, to which he replied, “I thought about it, Your Honor, and I thought about getting an

affidavit. But 4.04 says that I don’t have to designate my experts until 60 days before trial.”

Counsel then argued that “the case just hadn’t been ready to try,” due to the fact that Delton’s



                                               4
damages were continuing to accrue up until his death about forty-five days prior to the

hearing.

¶7.      Shortly thereafter, the court rejected the Crutchfields’ argument, stating:

         I’m going to grant defendant’s motion for summary judgment for failure to
         timely designate an expert setting forth the requirements that the plaintiff must
         have to go forward on his case and in not answering discovery in this case.

         This case is going on four, or more, years old and to not even designate an
         expert at this time and giving it to the defense, I find is untimely, and summary
         judgment will be granted.

The circuit court entered summary judgment on October 3, 2016, “after having duly

considered [Magnolia Regional’s motion for summary judgment], [the Crutchfields’] MRCP

56(f) response, and arguments of counsel at a motion hearing conducted on September 8,

2016.”

¶8.      The Crutchfields subsequently filed a motion to alter or amend the judgment pursuant

to Rule 59 of the Mississippi Rules of Civil Procedure, wherein they offered an explanation

as to why they had failed to designate an expert: They contended that, sometime in 2015, they

discovered that Dr. Vinger was no longer practicing in a hospital setting. Concerned that this

fact might compromise his value as an expert witness, they retained a new expert, Dr.

Timothy R. Klein. The Crutchfields maintained that Dr. Klein requested some additional

medical records of Delton’s that Dr. Vinger had not sought, which led to the subpoenas being

issued to Baptist Memorial Hospital and North Mississippi Medical Center. The Crutchfields

argued that these records were critical to Dr. Klein’s expert opinion; however, they attached

Dr. Klein’s affidavit to their motion, wherein he opined—without the use of the still-pending



                                                5
medical records—that Magnolia Regional had breached the applicable standard of care and

was responsible for Delton’s injuries.

¶9.    The trial court held another hearing regarding the Crutchfields’ motion to alter or

amend the judgment, during which counsel for the Crutchfields pleaded for a lesser sanction

than complete dismissal. The Crutchfields admitted that Dr. Klein was able to give an

opinion that Magnolia Regional was negligent, even without the medical records from

Baptist Union County Hospital and North Mississippi Medical Center. The trial court again

rejected the Crutchfields’ argument and reaffirmed its grant of summary judgment. The

Crutchfields filed a timely notice of appeal.

                                         DISCUSSION

¶10.   “A trial court’s grant of summary judgment is reviewed de novo.” Johnson v. Pace,

122 So. 3d 66, 68 (¶7) (Miss. 2013) (citations omitted). Rule 56 of the Mississippi Rules of

Civil Procedure provides that summary judgment is proper “if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The Mississippi Supreme Court in

Johnson, 122 So. 3d at 68 (¶8), succinctly states our well-settled law in the area of summary

judgment as it pertains to medical-negligence claims:

       In a medical-malpractice action, the plaintiff carries the burden of proof at trial
       and, thus, the burden of production on summary judgment. Palmer v. Biloxi
       Reg’l Med. Ctr., Inc., 564 So. 2d 1346, 1355 (Miss. 1990). A plaintiff in a
       medical-malpractice case has the burden of proving “(1) the existence of a
       duty by the defendant to conform to a specific standard of conduct for the
       protection of others against an unreasonable risk of injury; (2) a failure to

                                                6
       conform to the required standard; and (3) an injury to the plaintiff proximately
       caused by the breach of such duty by the defendant.” Hubbard v. Wansley,
       954 So. 2d 951, 956-957 (Miss. 2007) (citations omitted). Expert testimony
       establishing these elements generally is required for the nonmoving party to
       survive summary judgment. Smith v. Gilmore Mem’l Hosp., Inc., 952 So. 2d
       177, 180 (Miss. 2007) (citing Sheffield v. Goodwin, 740 So. 2d 854, 856 (Miss.
       1999). “Not only must this expert identify and articulate the requisite standard
       that was not complied with, the expert must also establish that the failure was
       the proximate cause, or proximate contributing cause, of the alleged injuries.”
       Barner v. Gorman, 605 So. 2d 805, 809 (Miss. 1992) (citing Latham v. Hayes,
       495 So. 2d 453 (Miss. 1986)).

¶11.   The Crutchfields maintain on appeal that the lower court erred in granting Magnolia

Regional’s motion for summary judgment because they “fulfilled [their] legal obligations in

answering discovery and had no duty to designate [their] expert witness until sixty days

before trial,” according to Rule 4.045 of the Uniform Rules of Circuit and County Court. The

Crutchfields further argue that the court failed to conduct the proper test “for granting

sanctions as a punishment.” Finally, the Crutchfields take issue with the fact that Magnolia

Regional never sent a good faith letter complaining of an alleged discovery violation, nor did

it file a motion to compel prior to filing its motion for summary judgment.

¶12.   First, we address and reject the Crutchfields’ contention that they were not required

to designate their expert witnesses until sixty days prior to trial. The Mississippi Supreme

Court addressed a factually similar matter in Johnson, 122 So. 3d at 68 (¶8). In Johnson, the

Johnsons—husband and wife—filed a complaint against Dr. William Pace, alleging medical

malpractice as a result of a surgical procedure that Dr. Pace had performed on Mrs. Johnson.

       5
        UCRCCC Rule 4.04 was renumbered to UCRCCC Rule 4.03 after the Mississippi
Supreme Court adopted the Mississippi Rules of Criminal Procedure, effective July 1, 2017.
For clarity, we refer to the rule as Rule 4.04 throughout this opinion, as that was its
numbering at the time the Crutchfields initially brought their suit.

                                              7
Id. at 67 (¶¶1-2). Dr. Pace moved for summary judgment on the basis that the Johnsons had

failed to produce any expert testimony to support their claim. Id. at 67 (¶3). The trial court

granted summary judgment, and the Johnsons appealed, maintaining that the grant of

summary judgment “was merely a ‘Draconian method’ to punish them for being

uncooperative during discovery.” Id. at 67 (¶4). Further, the Johnsons argued that they had

not been required to produce an expert witness at the time that Dr. Pace filed his motion,

citing Rule 4.04(A) of the Uniform Rules of Circuit and County Court, which provides,

“Absent special circumstances the court will not allow the 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.” Id. at 68-69 (¶9) (quoting URCCC 4.04(A)) (emphasis added). The

Johnsons argued that, because no trial date had been set in their case, the sixty-day deadline

for designating an expert never expired. Id. at 69 (¶9). The Mississippi Supreme Court

rejected this contention, holding: “There is no authority for the Johnsons’ proposition that

a party need not produce an expert witness until [sixty days prior to trial].” Id. at 69 (¶11).

The Court held that, as the Johnsons failed to present any medical-expert testimony

establishing the elements of a medical-malpractice claim a year after filing their complaint,

the trial court’s grant of summary judgment was proper. Id. at 70 (¶12).

¶13.   Here, like the Court in Johnson, we agree with the trial court’s grant of summary

judgment. In their complaint, the Crutchfields represented that they had consulted with an

expert (Dr. Vinger), who informed them that they had a viable claim for medical negligence.

Subsequently, both parties engaged in written discovery. The Crutchfields explicitly stated



                                              8
that they would designate their expert witnesses at a later point in time. At some point over

the course of discovery, the Crutchfields abandoned Dr. Vinger and retained Dr. Klein.

During the summary judgment hearing, the Crutchfields maintained that they had not one,

but two expert witnesses who had agreed to testify that Magnolia Regional had breached “the

minimum standard of care in this case and that those breaches caused [Delton] injuries.” The

Crutchfields argued that a grant of summary judgment would be premature, because

additional discovery was necessary; however, during the hearing, counsel for the Crutchfields

only referenced one medical chart from the North Mississippi Medical Center needing to be

reviewed. Further, despite their contentions that this additional discovery was necessary, the

Crutchfields attached Dr. Klein’s affidavit to their Rule 59 motion to alter or amend the

judgment, wherein he opined that Magnolia Regional had breached the applicable standard

of care and was responsible for Delton’s injuries, even without the allegedly necessary

discovery.

¶14.   Our rules of civil procedure mandate that “[a] party is under a duty seasonably to

supplement that party’s response with respect to any question directly addressed to . . . the

identity of each person expected to be called as an expert witness at trial, the subject matter

on which the person is expected to testify, and the substance of the testimony.” Miss. R. Civ.

P. 26(f)(1). However, over the course of three and a half years, the Crutchfields never

provided this information to Magnolia Regional, effectively precluding Magnolia Regional

from formulating its defense. We know of no rule stating that an expert does not have to be

designated until sixty days before trial, and Rule 4.04 only provides that an expert must, at



                                              9
the very least, be designated by that point. We therefore find this issue without merit.

¶15.   We decline to address the Crutchfields’ remaining two issues—that the court failed

to conduct the proper test for granting sanctions as a punishment and that Magnolia Regional

never sent a good faith letter or filed a motion to compel prior to filing its motion for

summary judgment—because both issues are contingent upon a finding that the sole reason

for the trial court’s grant of summary judgment and the dismissal of the Crutchfields’

complaint was to punish the Crutchfields for failing to make timely discovery. The

Crutchfields attempt to frame the dismissal of their case as a “Draconian method” of sanction

for a discovery violation rather than a proper grant of summary judgment. More specifically,

the Crutchfields rely on the trial court’s statement that it was dismissing for failure to

designate an expert witness and for failure to answer discovery to argue that its dismissal was

a sanction. However, we find no merit to this position. Magnolia Regional never sought

dismissal on the basis of a discovery violation.

¶16.   As noted, the circuit judge stated at the hearing on Magnolia Regional’s motion for

summary judgment that he was granting summary judgment because of the Crutchfields’

failure to timely designate an expert and in not answering discovery. However, the court’s

statement must be considered in full context on that point. The trial judge’s exact quote was:

“I’m going to grant defendant’s motion for summary judgment for failure to timely designate

an expert setting forth the requirements that the plaintiff must have to go forward on his case

and in not answering discovery in this case.” (Emphasis added). We do not interpret the trial

judge’s statement to mean that the sole reason he was granting summary judgment was the



                                              10
Crutchfields’ failure to timely make discovery. Rather, the trial judge was highlighting that

because of the Crutchfields’ failure, they could not meet their burden of proof. Also, in its

order granting summary judgment, the trial court stated that Magnolia Regional’s motion for

summary judgment “should be granted for the reasons set forth in said [m]otion and at the

September 8, 2016 oral argument.” In Magnolia Regional’s motion, it argued, among other

things, that

       [p]laintiff has failed to identify any expert who can (1) enunciate the standard
       of care applicable to Magnolia Regional, (2) opine as to any breach of the
       standard of care applicable to Magnolia Regional, (3) causally link any alleged
       breach by Magnolia Regional to damages sustained by Plaintiff. In the
       absence of such requisite proof, summary judgment is mandated.

¶17.   Our caselaw clearly dictates that in matters involving medical negligence, expert

testimony is necessary to establish the proper standard of care. See Brooks v. Roberts, 882

So. 2d 229, 232 (¶10) (Miss. 2004) (“[I]t is our general rule that in a medical malpractice

action[,] negligence cannot be established without medical testimony that the defendant

failed to use ordinary skill and care.”) (citing Sheffield v. Goodwin, 740 So. 2d 854, 858

(Miss. 1999)). As previously stated, the Crutchfields never designated an expert prior to the

summary judgment hearing, and only provided Dr. Klein’s affidavit as part of their motion

to alter or amend the court’s grant of summary judgment. They failed to satisfy their burden

of proving the necessary components of a claim sufficient to survive summary judgment.

¶18.   AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.           BARNES, J., NOT
PARTICIPATING.



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