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Conger v. Gowder3/29/2001
Dr. Weight prior to the resolution of the summary judgment motion.
A defendant filing a motion for summary judgment has the burden of demonstrating that he or she is entitled to thwart the plaintiff's desire for a trial on the merits by clearly and conclusively demonstrating that the material facts are undisputed and that those facts show that the moving party is entitled to judgment "on the papers." Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). In the instant case, the defendant is attempting to meet his burden by way of his affidavit and the affidavit of Dr. Weight. The trial court appears to have decided that the plaintiff should be precluded from testing the truthfulness and accuracy of the testimony of these affiants until such time as she can produce countervailing facts from sources other than Drs. Gowder and Weight. The problem with this approach is that it forces the plaintiff to accept the defendant's supporting affidavits at face value. This puts the proverbial cart before the horse. What if the defendant's supporting affidavits are not truthful? What if the opinions expressed in them are based on erroneous facts? Since it is the defendant - and not the plaintiff - who has the initial burden on summary judgment, generally speaking the plaintiff has the right to test the defendant's supporting affidavits by careful cross-examination during a discovery deposition. If, as is sometimes the case, the plaintiff, through vigorous cross-examination, can completely destroy the effectiveness of the defendant's affidavits, he or she will not be required to present countervailing materials because there will be nothing to rebut and the motion will fail by its own deficiency. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). While this may not happen often, a plaintiff has the right to try. Thus, the plaintiff in the instant case has the right to discover the doctors whose affidavits are being used to block the plaintiff's attempt to present her case to a jury. Even if the plaintiff is unable to completely destroy the effectiveness of the affidavits, her discovery efforts should enable her to "flesh out" the facts and inquire into the doctors' opinions. All of this is calculated to be of benefit to the plaintiff as she prepares to resist the defendant's motion. This is one of the many purposes of discovery.
We find that the grant of the protective order was error; accordingly, we remand this case in order to afford the plaintiff the opportunity to take the depositions of Drs. Gowder and Weight, after which the trial court can further consider the defendant's motion for summary judgment.
VI.
The judgment of the trial court granting the defendant summary judgment is vacated. This case is remanded for further proceedings consistent with this opinion, pursuant to applicable law. Costs on appeal are taxed to the appellee, Timothy D. Gowder, M.D.
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