 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Goff v. Justice8/16/2002
ing the non-existence of genuine issues of material fact, there was sufficient evidence of record to establish the existence of such issues. Citing to the depositions of the Goffs and Justice, as well as to responses to interrogatories, the Goffs assert that they have named experts capable of addressing fact issues. Further, the Goffs maintain that the case has numerous fact witnesses from both medical and legal professions who could provide first-hand testimony concerning the issues. Finally, the Goffs contend that they provided correspondence to the appellees' counsel which provides further information as to the experts and opinions concerning the issues.
As noted in the Tarter case, to successfully resist a summary judgment motion once the non-movant has the burden, the non-movant must "show in some way that there would be evidence upon the trial to create a genuine issue on the fact." 343 S.W.2d at 379. Also, the Neal court stated that "appellant would have had a case warranting a trial if the availability of any medical testimony had been shown." 426 S.W.2d at 478. In both cases, the non-movant was not required to produce evidence sufficient to succeed at trial; rather, the focus was on demonstrating the availability of sufficient evidence to create a genuine issue of material fact for trial. The evidence cited by the Goffs, while not sufficient to establish the necessary elements at trial, demonstrates that such evidence exists.
Finally, even if the appellees had shouldered their initial burden, and even if the Goffs had failed to establish sufficient evidence as to each element which requires expert testimony, then the appellees still would not have been entitled to summary judgment because nothing then in the record precluded the Goffs from producing such evidence in the future. As noted by the Goffs, summary judgment is proper when it is manifest that the party against whom the judgment is sought could not strengthen his case at trial. See American Ins. Co. v. Horton, Ky., 401 S.W.2d 758 (1966). However, that is not the case herein.
The appellees argued that the Goffs had yet to place sufficient expert testimony in the record to establish their claims. The appellees did not argue that such evidence could not be produced, nor did they present expert evidence of record which supports their claims that (1) the facts will not support negligence claims against either the hospital or Dr. Pearson, and (2) the facts will not support claims of negligence or damages on the Goffs' claims of legal malpractice. To the contrary, the appellees have acknowledged that the Goffs have provided, both in their responses to interrogatories and in the letters to counsel, evidence that such testimony is available.
We reverse the summary judgment entered by the Boyd Circuit Court and remand the case for further proceedings.
ALL CONCUR.
Page 1 2 3 4 5 6 7 8 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|