         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-01644-COA

MARY CARNATHAN, AS WRONGFUL DEATH                                           APPELLANT
BENEFICIARY OF JOE CARNATHAN,
DECEASED

v.

DR. WILLIAM BRYAN ROGERS, JOSEPH                                            APPELLEES
BAILEY, III, M.D. AND WOODROW WILSON
BRAND, III, M.D.

DATE OF JUDGMENT:                         09/17/2015
TRIAL JUDGE:                              HON. JAMES LAMAR ROBERTS JR.
COURT FROM WHICH APPEALED:                MONROE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JAMES DAVID MOORE
ATTORNEYS FOR APPELLEES:                  J. GORDON FLOWERS
                                          DAVID W. UPCHURCH
                                          JOHN G. WHEELER
                                          LAUREN OAKS LAWHORN
                                          JOHN MARK MCINTOSH
NATURE OF THE CASE:                       CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                  GRANTED SUMMARY JUDGMENT IN
                                          FAVOR OF APPELLEES/DEFENDANTS
DISPOSITION:                              AFFIRMED: 02/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   This appeal arises from a medical-malpractice suit filed on behalf of the deceased, Joe

Carnathan. The circuit court granted summary judgment in favor of the defendants due to

Mary Carnathan’s failure to properly designate an expert witness and supply an expert

affidavit. We find no error and affirm.
                        FACTS AND PROCEDURAL HISTORY

¶2.    On December 26, 2013, Carnathan filed a wrongful-death medical-malpractice claim

against Dr. William Bryan Rogers, Dr. Joseph Bailey III, Dr. Woodrow Wilson Brand III,

Surgery Clinic of Amory, Gilmore Memorial Hospital d/b/a Gilmore Memorial Regional

Medical Center, John Does 1-5, and ABC Corporations 6-10.1 On April 2, 2014, Carnathan

attempted to serve Gilmore Memorial Hospital with process, but was informed that the

proper legal entity was Amory HMA LLC.

¶3.    Carnathan did not serve Amory HMA with process, but instead filed a motion to

amend her complaint to add Amory HMA as a proper party on May 27, 2014. In this motion,

Carnathan also requested to extend the discovery deadline. None of the joined defendants

objected to Carnathan’s motion. Carnathan, however, failed to notice the motion for a

hearing and did not pursue the motion further.

¶4.    On November 19, 2014, Dr. Bailey filed a motion for summary judgment. He

asserted that Carnathan had failed to designate an expert witness to establish her prima facie

case of medical negligence. Carnathan responded to the motion on December 22, 2014, but

did not designate an expert witness. On February 18, 2015, Dr. Rogers filed a motion for

summary judgment and made the same argument as Dr. Bailey.

¶5.    On March 23, 2015, Dr. Brand filed a motion for summary judgment that mirrored the

motions of Drs. Bailey and Rogers. On April 17, 2015, the circuit court ordered Carnathan

to respond to Dr. Rogers’s and Dr. Brand’s motions for summary judgment. Carnathan

       1
        The only defendants that are parties in this appeal are Dr. Rogers, Dr. Bailey, and
Dr. Brand.

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complied with the circuit court’s order, but again failed to designate an expert witness.

¶6.    The circuit court held a hearing on the motions for summary judgment on June 19,

2015. An order that granted the motions for summary judgment was entered on October 2,

2015. Carnathan now appeals.

                                 STANDARD OF REVIEW

¶7.    The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am.

Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). Under this standard, we view the evidence

“in the light most favorable to the party against whom the motion has been made.” Id. The

Karpinsky court further held:

       Summary judgment is appropriate and shall be rendered 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.
       Importantly, the party opposing summary judgment may not rest upon the mere
       allegations or denials of his pleadings, but his response, by affidavit or as
       otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth
       specific facts showing that there is a genuine issue for trial. If he does not so
       respond, summary judgment, if appropriate, will be entered against him.

       This Court has explained that in a summary judgment hearing, the burden of
       producing evidence in support of, or in opposition to, the motion is a function
       of Mississippi rules regarding the burden of proof at trial on the issues in
       question. The movant bears the burden of persuading the trial judge that: (1)
       no genuine issue of material fact exists, and (2) on the basis of the facts
       established, he is entitled to [a] judgment as a matter of law. The movant bears
       the burden of production if, at trial, he would bear the burden of proof on the
       issue raised. In other words, the movant only bears the burden of production
       where [the movant] would bear the burden of proof at trial. Furthermore,
       summary judgment is appropriate when the non-moving party has failed to
       make a showing sufficient to establish the existence of an element essential to
       the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶¶10-11) (internal quotation marks and citations omitted).

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                                         ANALYSIS

¶8.    Carnathan argues that the circuit court erred when it granted summary judgment to the

defendants in contradiction of Mississippi Rules of Civil Procedure 15(a) and 19 and Rule

4.04 of the Uniform Rules of Circuit and County Court. Carnathan asserts that the circuit

court should have allowed her to amend her complaint and join Amory HMA as a proper

party before ruling on the defendants’ motions for summary judgment. Further, Carnathan

contends that according to Uniform Rule of Circuit and County Court 4.04, she had until

sixty days prior to trial to designate an expert witness, and the grant of summary judgment

was premature.

¶9.    This Court has held that in a medical-malpractice claim, “expert testimony must be

used.” Posey v. Burrow, 93 So. 3d 905, 907 (¶8) (Miss. Ct. App. 2012) (quoting Barner v.

Gorman, 605 So. 2d 805, 809 (Miss. 1992)). Further, “[n]ot 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.” Id. (citation omitted).

¶10.   This Court has further held that “[u]nless the matter is within the common knowledge

of laypersons, to establish a prima facie case of medical negligence against a physician, a

plaintiff must present competent expert testimony as to the applicable standard of care,

breach, and proximate causation.” Langley ex rel. Langley v. Miles, 956 So. 2d 970, 976

(¶17) (Miss. Ct. App. 2006) (citing Phillips ex rel. Phillips v. Hull, 516 So. 2d 488, 491

(Miss. 1987) (overruled on other grounds)).



                                              4
¶11.   At all stages of pretrial, Carnathan failed to present any witness designation or

affidavit in support of her prima facie case. Without an expert witness, Carnathan could not

present evidence of the standard of care for any of the three physicians and therefore cannot

“survive summary judgment.” Johnson v. Pace, 122 So. 3d 66, 68 (¶8) (Miss. 2013) (citing

Smith v. Gilmore Mem’l Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007)).

¶12.   Further, Carnathan’s failure to designate an expert witness, prior to the hearing for

summary judgment, overshadows her contention that the trial court’s mere consideration of

summary judgment was premature.2 The supreme court has held that “[a] party against

whom a claim is asserted may, at any time, move . . . for a summary judgment in his favor

. . . .” Id. (citing M.R.C.P. 56(b)). Carnathan’s reliance on Uniform Rule of Circuit and

County Court 4.04(A) to support the argument that she was not yet required to designate an

expert witness because she had until sixty days prior to the trial is a mischaracterization of

the rule.

¶13.   Rule 4.04(A) of the Uniform Circuit and County Court Rules provides:

       All discovery must be completed within ninety days from service of the answer
       by the applicable defendant. Additional discovery time may be allowed with
       leave of court upon written motion setting forth good cause for the extension.
       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.

¶14.   There is no authority to support Carnathan’s position that “the circuit court should

have granted her motion for leave to amend her complaint and a scheduling order prior to



       2
        Pursuant to Rule 56(c), an adverse party may serve affidavits until the day prior to
the hearing.

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considering the physicians’ motions for summary judgment.” Carnathan seems to assert an

argument that the circuit-court judge abused his discretion, but the appropriate standard of

review for summary judgment is de novo, not abuse of discretion. The supreme court has

held that “[i]n the absence of any expert testimony to support [a] claim [the movant] was

entitled to judgment as a matter of law.” Johnson, 122 So. 3d at 70 (¶12). As such, the

circuit-court judge did not abuse his discretion by merely considering the motions for

summary judgment while Carnathan’s request to amend her complaint was pending. Further,

there was no abuse of discretion in granting the motions for summary judgment, as the

moving parties were entitled to judgment as a matter of law.

¶15.   Carnathan’s failure to provide any expert witness or affidavits, prior to the hearing for

summary judgment, was “fatal to her [medical]-malpractice claim” against the physicians.

Cates v. Woods, 169 So. 3d 902, 910 (¶25) (Miss. Ct. App. 2014). We cannot find that there

is a genuine issue of material fact; thus, summary judgment in favor of the physicians was

proper.   Carnathan’s assertion that the circuit-court judge abused his discretion by

considering the motions for summary judgment is without merit.

¶16. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

      LEE, C.J., ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS,
JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. BARNES AND FAIR, JJ., NOT
PARTICIPATING.




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