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Taylor v. Wheeler2/28/2003
AFFIRMING
Marshall Taylor appeals from a summary judgment granted by the Floyd Circuit Court dismissing his complaint of medical negligence against Dr. Greg Wheeler. The circuit court correctly granted summary judgment, and we thus affirm.
In 1997 Taylor was referred to Dr. Wheeler, a neurosurgeon, concerning neck pain and other problems stemming from an on-the-job accident that occurred on April 11, 1997. On October 30, 1997, Dr. Wheeler performed an anterior cervical discectomy C4-C5 with spinal cord decompression and allograft and instrumentation fusion. Although some improvement was noted, Taylor continued to experience pain and was again referred to Dr. Wheeler. On June 30, 1998, Wheeler performed an anterior cervical discectomy with structural allografting instrumental fusion at C3-C4 with exploration of fusion C4-C5. On August 5, 1999, Taylor filed a civil complaint against Dr. Wheeler in the Floyd Circuit Court. The complaint alleged medical negligence by Dr. Wheeler.
Following the filing of the civil complaint against Dr. Wheeler, he attempted to use the discovery procedures provided in the Kentucky Rules of Civil Procedure (CR) to learn the details of Taylor's claim against him. Dr. Wheeler first served interrogatories and requests for production of documents on Taylor in an attempt to determine the basis for the claim. Taylor failed to answer these discovery requests when they were due, and Dr. Wheeler subsequently filed a motion to compel after waiting several months. Taylor filed a response requesting an additional twenty days to prepare answers, and the court granted his motion and entered an order requiring him to answer the interrogatories and requests by April 13, 2000.
Taylor's answers were served five days after the court's deadline, but he did not provide adequate information concerning his claim. In response to Interrogatory No. 2, wherein Taylor was asked to "state in specific detail each and every fact which you or your counsel claims constitutes negligence," Taylor responded by stating, "I am unable to give legal and/or medical conclusions and/or opinions as to liability in the matter." Taylor also failed to name any expert witnesses he intended to use in the litigation.
Dr. Wheeler's attorney took Taylor's deposition on November 8, 2000. When asked specifically what Dr. Wheeler did that caused Taylor to claim medical negligence, Taylor responded, "I don't know – I couldn't answer that." On December 8, 2000, Dr. Wheeler served requests for admission on Taylor in yet another effort to discover the nature of Taylor's claim and to identify the issues. No responses were ever filed.
Dr. Wheeler continued to use discovery procedures by filing a motion to compel Taylor to disclose his expert witnesses and their opinions. This motion was served on Taylor's attorney on December 7, 2000. At a hearing on December 22, 2000, the court granted Dr. Wheeler's motion and entered an order giving Taylor until February 15, 2001, to comply with CR 26.02 and disclose his expert witnesses and their opinions to Dr. Wheeler. Taylor did not comply with the order by disclosing expert witnesses, and, on February 19, four days after the deadline had expired, he filed a motion for an extension of time. In support of his motion, Taylor stated that his inability to name expert witnesses was the fault of his consultant, a nurse named Donna Adkins, whom he had retained before filing suit. Taylor asserted that Adkins had not found experts to testify for him because she had undergone surgery and had been busy caring for her ill father. Although Taylor did not notice his motion for an extension of time for a hearing, Dr. Wheeler nonetheless fi
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