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Taylor v. Wheeler2/28/2003
led an objection to the motion because it was filed after the deadline given by the court to provide the information.
On February 26, 2001, Dr. Wheeler filed a motion for summary judgment, wherein he asserted that there were no disputed issues of material fact and that he was entitled to judgment as a matter of law. In a hearing held on March 9, 2001, the circuit court granted summary judgment in favor of Dr. Wheeler. An order to that effect was entered on March 14, 2001. When the trial court denied Taylor's motion to alter, amend, or vacate the judgment, Taylor filed this appeal.
Taylor's argument in this appeal is that the circuit court erred in granting summary judgment in favor of Dr. Wheeler without first entering an order on Taylor's motion for extension of time. Taylor maintains that his "remedy at law was cut short before he had sufficient opportunity to file evidence in support of his claim, due to circumstances beyond his control, by the inappropriate application of a summary judgment." We disagree.
" xpert testimony is necessary to establish negligence in medical malpractice cases, unless the negligence was so apparent that laymen with general knowledge would have no difficulty in recognizing it." Maggard v. McKelvey, Ky. App., 627 S.W.2d 44, 49 (1981). As Taylor himself apparently could not recognize the negligence, he was clearly required to have expert witnesses to support his claim. He was given ample opportunity to procure an expert witness or witnesses to support his claim, but he failed to do so.
The circuit court had the authority to grant Taylor an enlargement of time in which to comply with the discovery requests even though Taylor did not file his motion until after the deadline occurred. See CR 6.02(b). In such cases, the failure to act must have been the result of excusable neglect before the motion may be granted. Id. Further, the granting of the motion is within the trial court's discretion. Id.; Montfort v. Archer, Ky., 477 S.W.2d 143, 144 (1970).
Taylor maintains that the court never ruled on his motion for extension of time. However, it is apparent from reviewing the transcript of the hearing that the court gave consideration to Taylor's motion. When it granted summary judgment in favor of Dr. Wheeler, the court implicitly denied the motion for extension of time even though it did not state so specifically. Given the history of the case, we perceive no abuse of discretion by the court in its denial of the motion.
Furthermore, Taylor did not respond to Dr. Wheeler's requests for admissions. Therein, Dr. Wheeler requested Taylor to admit to various facts concerning his medical treatment, including that Dr. Wheeler's actions were within the appropriate standard of care. Because Taylor did not respond or otherwise answer the requests for admissions, the matters requested therein were deemed admitted by Taylor in accordance with CR 36.01(2).
In short, we conclude that summary judgment in favor of Dr. Wheeler was correctly granted by the circuit court. Taylor was given ample time to produce evidence in support of his claim, and he was unable to do so. It was within the discretion of the trial court to deny Taylor's motion for an extension of time. The grounds Taylor asserted as excusable neglect were not sufficient to render the court's denial of the motion an abuse of discretion.
The judgment of the Floyd Circuit Court is affirmed.
ALL CONCUR.
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