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Anderson v. Howser8/30/2001
This is a medical malpractice case. The defendants filed a motion for summary judgment, supported by an affidavit from the defendant physician. The plaintiffs filed the opposing affidavit of an expert physician. When the defendants attempted to depose the plaintiffs' expert, they were informed that he would not be testifying at trial. However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted. The trial court gave the plaintiffs additional time to secure an expert for trial. The plaintiffs failed to secure an expert within the time period and filed a notice of voluntary non-suit. The trial court granted the defendants' motion for summary judgment, holding that the plaintiffs' response to the motion for summary judgment must be supported by the affidavit of an expert who is expected to testify at trial. The plaintiffs appealed. We affirm. Where the plaintiff submits the affidavit of an expert in response to a motion for summary judgment, and it is undisputed that the expert will not testify for trial, the plaintiff has not demonstrated that he has a justiciable claim warranting a trial, and the granting of summary judgment is appropriate.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
Holly Kirby Lillard, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S. and Alan E. Highers, J., joined.
OPINION
This is a medical malpractice case. In August 1992, Arthur Anderson and his wife Mary Jeanette Anderson ("the Andersons") filed a lawsuit against Dr. John P. Howser and John P. Howser, M.D., P.A. ( collectively "Dr. Howser") alleging medical malpractice in his care of Mr. Anderson. In October 1992, Dr. Howser filed an answer. Subsequently, in September 1994, Dr. Howser filed a motion for summary judgment, supported by his affidavit. In October 1994, the Andersons filed an opposing affidavit from their expert physician, Dr. Greg Swafford ("Dr. Swafford"). Dr. Swafford is a Memphis physician who had practiced in Tennessee for more than a year before the alleged malpractice. In his affidavit, Dr. Swafford averred that he was familiar with the standard of care in the treatment of patients with ailments similar to Mr. Anderson, and that Dr. Howser's care of Mr Anderson fell below the applicable standard of care.
In January 1996, Dr. Howser filed a supplemental motion for summary judgment. In the fall of 1998, counsel for Dr. Howser sought to depose Dr. Swafford, and was told that Dr. Swafford would not be testifying at trial due to a "falling out" between the Andersons and Dr. Swafford over a joint business venture. Dr. Swafford's affidavit was not withdrawn.
On October 30, 1998, the trial court held a hearing on the defendants' supplemental motion for summary judgment. At the conclusion of the hearing, the trial court granted the Andersons' request for an additional ninety days to secure another expert for trial. The trial court told the Andersons that if they were unable to secure an expert for trial within the allotted time period, the case would be dismissed with prejudice. Despite efforts to do so, the Andersons were not able to secure an expert for trial within the allotted time. On February 11, 1999, the Andersons filed a notice of voluntary non-suit. On June 10, 1999, Dr. Howser filed a motion seeking an order confirming that the case was dismissed with prejudice, based on the Andersons' failure to secure an expert within the ninety-day period granted by the court. After a hearing, the trial court entered an order granting Dr. Howser's supplemental motion for summary judgment, based on the Andersons' failure to secure a trial exper
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