                 IN THE COURT OF APPEALS OF TENNESSEE

                                EASTERN SECTION
                                                                 FILED
                                                                 December 9, 1997

                                                                 Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk



ROBERT L. MUSGROVE AND                     ) C/A NO. 03A01-9707-CV-00301
JEWELL MUSGROVE,                           )
                                           ) SCOTT CIRCUIT
       Plaintiffs-Appellants,              )
                                           ) HON. CONRAD TROUTMAN,
v.                                         ) JUDGE
                                           )
DAVID B. COFFEY, M.D., AND                 )
OAK GROVE PRIMARY CLINIC,                  )
INC.,                                      ) AFFIRMED
                                           ) AND
       Defendants-Appellees.               ) REMANDED




JAMES L. MILLIGAN, JR., Knoxville, for Plaintiffs-Appellants.

R. FRANKLIN NORTON and GARY G. SPANGLER, Knoxville, for Defendants-
Appellees.




                                     OPINION


                                                         Franks, J.


              In this medical malpractice action the Trial Judge granted defendants

summary judgment and dismissed the action with prejudice, pursuant to T.R.C.P. Rule

41. Plaintiffs’ issue on appeal is that Trial Court erred in holding that they had not

complied with his orders and in refusing to grant relief from his order.

              By way of background this action went to trial on September 17, 1996,

before a jury. At trial, plaintiffs offered the deposition of Dr. Joseph Metcalf as an

expert witness to establish standard of care and medical causation. Upon objection by
defendant, the Court found the doctor was not competent or qualified as an expert, as

required by T.C.A. §29-26-115, and since plaintiff had no other expert witness, the

Court discharged the jury and ruled:

              that plaintiffs are given a continuance for a period of ninety (90) days
              from and after September 17, 1996 to identify by way of expert witness
              interrogatory response, expert witness(es) and also shall make any such
              designated expert(s) witness(es) available for Defendant’s discovery
              deposition with said ninety (90) day period or otherwise the Court will
              entertain Defendant’s Motion to Dismiss or for Summary Judgment.

Plaintiffs’ attorney subsequently moved to withdraw, and on September 30, 1996, the

defendant renewed his motion for summary judgment. The Trial Court permitted

plaintiffs’ attorney to withdraw, and ordered that plaintiffs would have through

November 15 to employ new counsel and reiterated that the deadlines previously

ordered would remain in effect and unchanged. A further hearing was held on

December 19, 1996, and the Court ordered:

              It appearing from the record in this cause that the Plaintiffs have not
              complied with the Order and Directive of this Court entered on
              September 25, 1996, IT IS ORDERED that this cause shall be dismissed
              pursuant to T.R.C.P. 41.02 and the Defendant’s pending Motion for
              Summary Judgment shall be granted without the requirement of further
              hearing or argument unless the Plaintiffs identify their expert witness by
              way of expert witness response and also make such designated expert
              witness available for discovery within five (5) days of the entry of this
              Order.

The Order was entered on that date. On December 24, 1996, plaintiffs’ attorney

“hand-delivered” a letter to defendants’ attorney stating: “I anticipate that Dr. N.M.

Tajen will be available as an expert witness on behalf of the plaintiffs” and gave the

Knoxville address of the doctor, and concluded by saying more details would be given

on “his expected testimony” on December 26, 1996. He also stated he would also

“attempt to” make him available for a deposition on that date.

              On May 6, 1997, the Trial Court granted defendants summary judgment

and dismissed the action with prejudice. In his judgment, the Trial Court incorporated

his memorandum opinion of April 10, 1997, wherein he said:

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              On the 19th day of October 1996, both attorneys appeared before the
              Court along with both plaintiffs, at which time plaintiffs’ attorney
              announced that his services had been terminated and asking that he be
              allowed to withdraw from the case. The Court granted said motion to
              withdraw subject to the deadlines and conditions previously set.

              On the 18th day of November, 1996, the firm of Milligan & Associates
              became the attorney of record for the plaintiffs. The Order of
              September 17, 1996 regarding naming of an expert witness was not
              complied with within ninety (90) days.

              The Court is aware that sustaining of the present Motion is a rather
              serious decision, but the Court has bent over backwards to be fair to all
              parties in this case, but the Court has been placed in this position by the
              actions of the plaintiff in discharging his attorney and not getting
              another attorney until thirty (30) days prior to the deadlines previously
              set. The Court feels that it is imperative to adhere to the deadlines
              previously set.

It was in the discretion of the Trial Judge under the circumstances of this case to order

the involuntary dismissal of the action. This power, however, must be used sparingly,

and with great care. Harris v. Baptist Memorial Hospital, 574 S.W.2d 730 (Tenn.

1978).

              Essentially, plaintiffs argue that “their counsel took all necessary steps

to secure the necessary medical causation testimony prior to the deadlines imposed by

the Trial Court”. The record does not support this assertion. Plaintiffs were faced

with a renewed summary judgment motion which required an expert’s affidavit to

raise a disputed issue of fact. This was not done within the time frame established by

the Trial Judge, nor was it at any time tendered before the case was finally dismissed

several months later. The plaintiffs on this record do not establish that the Trial

Judge abused his discretion in dismissing this action. Clearly, summary judgment was

appropriate in the absence of countervailing evidence establishing a disputed issue of

material fact on the issue of medical malpractice. See Braswell v. Carothers, 863

S.W.2d 722 (Ct. App. 1993).

              We affirm the judgment of the Trial Court and remand at appellants’

cost.

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                              __________________________
                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Goddard, P.J.




___________________________
Hon. William H. Inman, J.




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