Delay in Obtaining Expert Results in Dismissal of Case

The Supreme Court of Mississippi has granted summary judgment in favor of a physician when the plaintiff failed to timely respond to discovery seeking information about plaintiff’s expert witnesses and did not timely file an expert affidavit opposing the summary judgment motion.

Plaintiff maintained that she was entitled to more time to get an affidavit from an expert.

From the opinion: “In his final judgment, the trial judge denied Stallworth’s request for a continuance and granted the Doctors’ summary judgment motion based on Stallworth’s failure to substantiate the claims of medical negligence. The trial judge based his decision on the fact that in June of 2004, the Doctors served Stallworth with interrogatories to identify a medical expert, and Stallworth never filed sworn answers to those interrogatories. Instead, Stallworth served unsigned and unsworn interrogatory answers by facsimile and mail subsequent to the filings on summary judgment. The trial judge also based his decision on the fact that Stallworth acquired records of her condition and had notice of a possible claim as early as March of 2002, and retained counsel in April of 2002. The trial court also stated Stallworth’s attorney’s affidavit filed on October 22, 2004, was not compliant with the rules requesting the supplementation of the answers to the interrogatories and did not excuse Stallworth from having an expert to support her claim. Based on these facts, we cannot say the trial judge abused his discretion when he denied Stallworth’s request for an additional thirty days to obtain a medical expert’s affidavit. Rule 56(f) is not designed to protect litigants who are lazy or dilatory. We find Stallworth had ample time to locate a medical expert to assist with her claim. Therefore, we find the trial court’s grant of summary judgment to the Doctors was proper.” [Citations omitted.]

The case is Stallworth v. Sanford; read the opinion here.

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