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Gordon v. Wilson6/18/1998
Madison Circuit No. 59360-4 T.D.
APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY AT JACKSON, TENNESSEE THE HONORABLE WHIT LAFON, JUDGE
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
Plaintiffs Pamela A. and Sammy D. Gordon appeal the trial court's judgment dismissing their medical malpractice action against Defendants/Appellees Donald Wilson, M.D., and the Jackson Clinic Professional Association. The trial court dismissed the Gordons' action based on their failure to comply with the trial court's previous discovery order. We conclude that the trial court did not abuse its discretion when it dismissed the Gordons' action and, thus, we affirm the trial court's judgment.
I. Procedural History
In October 1994, the Gordons filed a medical malpractice complaint against the Defendants and Jackson-Madison County General Hospital District. The Hospital was dismissed from the action in April 1996 and is not a party to this appeal.
The Defendants filed their answer on November 17, 1994. On the same day they filed their answer, the Defendants served interrogatories and a request for production of documents on the Gordons. The Defendants later filed a motion for summary judgment based on the affidavit of Dr. Wilson, who averred that his treatment of Mrs. Gordon conformed to the recognized standard of acceptable professional practice in the medical community of Jackson, Madison County, Tennessee.
By March 1996, the Gordons had not answered the interrogatories or produced the documents as requested by the Defendants in November 1994. Accordingly, the Defendants filed a motion to compel in which they asked the trial court to compel the Gordons to respond to the Defendants' discovery request. The trial court granted the Defendants' motion and, on April 24, 1996, entered an order compelling the Gordons "to fully answer the interrogatories and the request for production of documents" within thirty (30) days of the court's order.
On April 24, 1996, the trial court also conducted a hearing on the Defendants' motion for summary judgment. Thereafter, the trial court entered an order deferring judgment on the Defendants' summary judgment motion. Specifically, the trial court's order stated that:
he court was of the opinion that the affidavit of [the Gordons'] sole expert, Dr. David Swan, was not sufficient to create a genuine issue as to material fact with regard to whether Dr. Wilson complied with the recognized standard of acceptable professional practice in Jackson, Tennessee in his care and treatment of Mrs. Gordon. Upon [the Gordons'] counsels' representation that Dr. Swan's affidavit contained a "clerical error", the court agreed to grant [the Gordons'] counsel two weeks so that [the Gordons'] counsel may have an opportunity to cure the defect in Dr. Swan's affidavit. Therefore, [the Gordons'] counsel has until May 8, 1996 to file with the court a corrected affidavit of Dr. Swan. If [the Gordons'] counsel fails by May 8, 1996 to file an affidavit of Dr. Swan which creates a genuine issue as to a material fact regarding whether Dr. Wilson complied with the recognized standard of acceptable professional practice in Jackson, Tennessee, the court will grant the Defendants' Motion for Summary Judgment.
On May 2, 1996, the Gordons filed the amended affidavit of Dr. Swan. Dr. Swan's previous affidavit had stated that he was familiar with the recognized standard of acceptable professional medical practice in the Memphis, Tennessee, area. Dr. Swan's new affidavit indicated that the geographic area with which he was familiar was Jackson, Tenn
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