                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2002-CA-01610-SCT

NANCY CAROLINE YOUNG BROOKS, HUGH H.
YOUNG AND EDDIE M. YOUNG, JR., AND ALL
WRONGFUL DEATH BENEFICIARIES OF
DOROTHY ALINE YOUNG, DECEASED

v.

DR. JAMES F. ROBERTS, DR. WELLS WILSON
AND KING’S DAUGHTERS HOSPITAL

DATE OF JUDGMENT:                             6/24/2002
TRIAL JUDGE:                                  HON. MIKE SMITH
COURT FROM WHICH APPEALED:                    LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                      JOE DALE WALKER
ATTORNEYS FOR APPELLEES:                      JACQUELINE GRACE HARPER
                                              STUART BRAGG HARMON
                                              DEANNE BRODRICK SALTZMAN
                                              JOHN MICHAEL COLEMAN
                                              JOSEPH L. McNAMARA
                                              MATHEW D. MILLER
                                              J. ROBERT RAMSAY
                                              STUART BRAGG HARMON
NATURE OF THE CASE:                           CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                  AFFIRMED – 09/16/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., CARLSON AND GRAVES, JJ.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    On September 20, 2000, a complaint was filed in Lincoln County Circuit Court that alleged the

mother of Nancy Caroline Young Brooks, Mrs. Dorothy Aline Young, had died as a result of medical
malpractice. The complaint named Dr. James F. Roberts, Dr. Wells Wilson, and the hospital where Mrs.

Young was treated, King’s Daughters Hospital, as defendants.

¶2.     One month later Dr. Roberts answered and propounded written discovery to Brooks, in part about

what expert witness was retained.1 This is required under Mississippi Rule of Civil Procedure 26(b)(4),

which mandates certain disclosures concerning expert witnesses. No answer was received. On March

26, 2001, the parties agreed to extend discovery for 30 days. There was still no response from Brooks,

and on April 26, 2001, Dr. Roberts made a Motion to Compel Discovery.

¶3.     After a continued lack of compliance with Rule 26, the trial judge entered an “Order Compelling

Discovery” on August 22, 2001, which commanded the parties to agree upon a scheduling order. Despite

this order, Dr. Roberts never received any information regarding Brooks’ medical expert, and he filed a

Motion for Summary Judgment on February 19, 2002, arguing that Brooks had not met the prima facie

requirements for a medical malpractice action.

¶4.     Instead of ruling on the summary judgment motion, the trial court compromised and entered an

Order Compelling Discovery. The order mandated that Brooks “secure the testimony or Affidavit” of the

doctor they would present as their expert, and that it “comport with Mississippi law in all respects regarding

the requisite burden of proof.” If the affidavit did not meet that burden, the trial court ordered that it would

“dismiss all claims against the movants with prejudice.” The order gave Brooks 45 days to offer the

evidence from the date of entry, which was April 19, 2002.

¶5.     Despite that deadline, no evidence arrived. The trial court entered an “Order and Judgment of

Dismissal” on July 8, 2002, since the 45-day period had expired. On July 18, 2002, Brooks filed a



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          While each defendant conducted their affairs separately in this case, we will use “Dr. Roberts”
as short hand for their actions.

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“Motion to Set Aside Order and Judgment of Dismissal” which admitted that they could not secure timely

expert testimony. Brooks attributed the difficulty to the burgeoning “tort reform” movement, where many

medical professionals exhibited a great interest in the capping of liability and damages.

¶6.     At the hearing on the motion, counsel for Brooks offered that due to the tort reform issue his

medical expert “wouldn’t talk” with him, and that “it’s hard to get any of [the doctors] to cooperate.” The

trial court was unpersuaded. Since “[t]here was no doubt about what the law is,” a prima facie case for

medical malpractice could not be shown without expert testimony. The judge also showed frustration with

this case, saying:

        I have bent over backwards. I’ve done everything I know to do. I’m not going to leave
        this thing open. It comes to a point in time where you have got to fish or cut bait. And that
        time has passed, so the motion [to set aside the summary judgment] is denied.

Brooks appeals that ruling, urging two errors: first, that the trial court erred in granting summary judgment

in favor of Dr. Roberts, and secondly, that the trial court erred in denying her motion to set aside the

judgment of dismissal and motion for rehearing on the same.

                                                DISCUSSION

¶7.     We use a de novo standard of review to completely examine a lower court’s grant or denial of

summary judgment. Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1040 (Miss. 2003).

The proponent of a summary judgment motion bears the burden of showing that there are no genuine issues

of material fact. Id. More then general allegations are needed to defeat a motion for summary judgment;

there must be specific facts showing that material issues of fact exist. Id. at 1040-41. We view all

evidence in the light most favorable to the nonmoving party. Id. at 1041. We will only reverse the decision

of the trial court if there are indeed triable issues of fact. Id.



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¶8.     In the case at hand, Brooks argues that we should excuse the great delay in procuring an expert

witnesses because the expert she attempted to retain, Dr. Kate Aseme, repeatedly delayed signing

prepared affidavits, eventually rebuffing her completely. Counsel for Brooks went to the office of Dr.

Aseme on “repeated occasions” with prepared affidavits and with requests to depose her. After Dr.

Aseme agreed to the deposition date, she later cancelled, offering that once she had talked to her attorney

she was advised she did not have to attend the deposition. After contacting Dr. Aseme’s attorney, counsel

for Brooks was finally informed that the doctor had been advised by the lawyer for her malpractice

insurance carrier not to sign an affidavit or give a deposition. Brooks proposes this process frustrated her

ability to procure an expert witness.

¶9.     She also admits that there was ultimately no expert witness for the case. Although a doctor had

apparently been engaged to testify, the letter which outlined his opinions was “not attached and presented

to the Court to meet the requirements under Mississippi Law to prove medical negligence, but was offered

to show that the appellants were making efforts to obtain some other medical expert other than Dr.

Aseme.”

¶10.    Dr. Roberts urges we ignore any mitigating facts and stick to the plain language of the order and

to the law. By attempting to procure an expert witness, Brooks appears to concede that this issue is out

of the understanding of laypersons, and “[e]xpert testimony is required unless the matter in issue is within

the common knowledge of laymen.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346,

1355 (Miss. 1990). From the very moment the suit was filed it was known that an expert witness would

be needed to survive summary judgment, for it 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. See Sheffield v. Goodwin, 740 So.2d 854, 858 (Miss. 1999).

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¶11.    There were roughly twenty months between the time Dr. Roberts propounded discovery

requesting expert witness information and the day summary judgment was entered. Brooks had not

delivered discovery responses long before the so-called tort reform actions had begun in the Legislature.

The entirety of 2001 elapsed before the Legislature met to discuss changes in the civil justice system in

2002. That argument strains credibility.

¶12.    This case is reminiscent of Bowie. There the plaintiff did not designate an expert witness until over

two months had passed after the deadline for designation of expert witnesses, and over a month after one

or more of the motions for summary judgment were filed. Bowie, 861 So.2d at 1040. The trial judge

entered summary judgment, and we affirmed. Id. at 1040, 1043. We reiterated the necessity for “litigants

[to] understand that there is an obligation to timely comply with the orders of our trial courts” and “take

seriously their duty to comply with court orders.” Id. at 1043.

¶13.    Yet the failure to comply with the orders of the trial court in this case are even more exaggerated

than in Bowie. There was never an expert witness designated at all. The order which Brooks violated

was already a 45-day extension on designating a witness. After that deadline was passed, it took Brooks

90 days to file a motion to set aside the summary judgment, a motion which still did not designate an

expert witness. This was a direct violation of the order of the trial court and shows a flagrant disregard for

the orderly administration of our trial courts.

¶14.    Judges have used various allegories to describe this situation. The trial judge in this case said that

the plaintiff had to “fish or cut bait.” We have said that at some point the train leaves the station. See

Bowie, 861 So.2d at 1043; Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 389 (Miss. 1987).

No mater the words, the meaning is the same: parties must use all good faith to comply with the order of

the trial court. That good faith was not present here, and Brooks failed wholly in her duty to designate a

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medical expert. Litigants must understand that their cases are at risk without good faith compliance with

the orders of the trial courts. Accordingly, the summary judgment grant in favor of Dr. Roberts is affirmed.

¶15.    Next, Brooks argues that the trial court erred in denying her motion to set aside the judgment of

dismissal and motion for rehearing on the same. A motion for reconsideration is to be treated by the trial

court as a post-trial motion under M.R.C.P. 59(e). Boyles v. Schlumberger Tech. Corp., 792 So.2d

262, 265 (Miss. 2001) (quoting In re Estate of Stewart, 732 So.2d 255, 257 (Miss. 1999)). Thus,

a motion to set aside or reconsider an order granting summary judgment will be treated as a motion under

Rule 59(e). Allen v. Mayer, 587 So.2d 255, 261 (Miss. 1991). We have held that in order to succeed

on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability

of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest

injustice. Bang v. Pittman, 749 So.2d 47, 52-53 (Miss. 1999). This Court reviews a trial court’s denial

of a Rule 59 motion under an abuse of discretion standard. Bang, 749 So.2d at 52.

¶16.    Brooks offers nothing in her brief to demonstrate an abuse of discretion by the trial court in denying

her motions to alter the judgment. Brooks shows neither (i) an intervening change in controlling law, (ii)

availability of new evidence not previously available, or (iii) need to correct a clear error of law or to

prevent manifest injustice. Id. at 52-53. While the trial judge erred in the computing the ten (10) day

period following entry of judgment wherein a party can move to alter or amend a judgment pursuant to

M.R.C.P. 59(e), the denial of the motions was not an abuse of discretion.

                                          CONCLUSION

¶17.    For these reasons, we affirm the circuit court’s judgment and its order denying plaintiffs’ motions

to alter the judgment.

¶18.    AFFIRMED.

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     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON
AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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