Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-217

                                     NOVEMBER TERM, 2011

 Cheryl L. Letourneau and                              }    APPEALED FROM:
 Christopher Letourneau                                }
                                                       }
    v.                                                 }    Superior Court, Franklin Unit,
                                                       }    Civil Division
                                                       }
 Joseph M. Salomone, M.D.                              }    DOCKET NO. S67-10 Fc

                                                            Trial Judge: Ben W. Joseph

                          In the above-entitled cause, the Clerk will enter:

      Plaintiffs, husband and wife, appeal from the trial court’s order granting summary
judgment to defendant on their medical malpractice and loss of consortium claims. We affirm.

        Plaintiffs filed suit against defendant in February 2010. They alleged that plaintiff
Christopher Letourneau had undergone a laparoscopic left inguinal hernia repair with mesh and
that, as a result of the repair, Mr. Letourneau suffered significant denervation of the left
quadriceps muscle caused by damage to his femoral nerve. Plaintiffs did not produce any expert
testimony to support this claim. After fourteen months of discovery, the court granted
defendant’s motion for summary judgment, finding that plaintiffs failed to produce any evidence
to support a finding of medical malpractice. This appeal followed.

        We review a grant of summary judgment using the same standard as the trial court.
Richart v. Jackson, 171 Vt. 94, 97 (2000). Summary judgment is appropriate “when, taking all
allegations made by the nonmoving party as true, there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law.” Id.; V.R.C.P. 56(c). “Summary judgment
is mandated under the plain language of V.R.C.P. 56(c) where, after an adequate time for
discovery, a party ‘fails to make a showing sufficient to establish the existence of an element’
essential to his case and on which he has the burden of proof at trial.” Poplaski v. Lamphere,
152 Vt. 251, 254-55 (1989) (citation omitted). Summary judgment was appropriately granted to
defendant here.

        Under 12 V.S.A. § 1908, to establish a medical malpractice claim against defendant,
plaintiffs needed to prove: “(1) the degree of care ordinarily exercised by a reasonably skillful,
careful, and prudent health care professional engaged in a similar practice under the same or
similar circumstances; (2) [t]hat the defendant . . . failed to exercise this degree of care; and (3)
[t]hat as a proximate result of . . . the failure to exercise this degree of care plaintiff suffered
injuries that would not otherwise have been incurred.” “Except where the alleged violation of
the standard of care is so apparent that it can be understood by a layperson without the aid of
medical experts, the burden of proof imposed by § 1908 requires expert testimony.” Provost v.
Fletcher Allen Health Care, Inc., 2005 VT 115, ¶ 12, 179 Vt. 545, 547 (mem.).

        Plaintiffs failed to meet their burden of proof here. Plaintiffs’ identification of expert
witnesses was not sufficient to meet their burden of proof, as they appear to suggest, nor was
there a “genuine issue of material fact” regarding the production of expert witnesses. Plaintiffs
were afforded ample time for discovery−fourteen months−and they failed to produce the expert
testimony necessary to support their medical malpractice claim. Even assuming arguendo that a
modified form of the doctrine of res ipsa loquitur applies to medical malpractice actions,
plaintiffs produced no expert testimony that would support an inference that defendant was
negligent, and no layperson would be capable of making such an inference given the complicated
surgery at issue here. See Connors v. Univ. Assocs. in Obstetrics and Gynecology, Inc., 769 F.
Supp. 578, 580-81 (D. Vt. 1991) (discussing doctrine of res ipsa loquitur in medical malpractice
context). Finally, it is immaterial whether the court issued a discovery scheduling order. See
V.R.C.P. 16.2 (stating that court “may” enter scheduling order). It is undisputed that fourteen
months of discovery occurred, and plaintiffs failed to produce any expert testimony to support
their allegation of medical malpractice. Given this, their claim of loss of consortium also fails.
Summary judgment was properly granted to defendant.

       Affirmed.


                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice




                                                2
