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Anderson v. Howser8/30/2001
pert testimony on the standard of care and whether the defendant deviated from the standard of care. Moon, 983 S.W.2d at 229-230.
In this case, the grant of summary judgment to Dr. Howser was based on the fact that the Andersons had not secured an expert to testify at trial, as required under the medical malpractice statute. Under the reasoning advocated by the Andersons, they should have been permitted to wait until trial to see if they could either secure an expert who was willing to testify or persuade Dr. Swafford to agree to testify at the trial. This approach leaves the trial judge with no effective means to enforce a pre-trial schedule and set deadlines for the parties to secure expert testimony, in order to facilitate discovery and pre-trial preparation. The means available to the trial judge must include the ability to dismiss the plaintiff's case if he fails to secure an expert for trial by the deadline imposed. This was the action taken by the trial judge in the instant case. The Andersons were given a reasonable amount of time to secure an expert for trial, and they failed to do so.
Rule 56 of the Tennessee Rules of Civil Procedure does not expressly state that the non-movant against whom a summary judgment motion is pending is required to have an expert who is expected to testify at trial when submitting an affidavit to defeat the summary judgment motion. However, the purpose of summary judgment is to determine whether there is a justiciable claim warranting the expense of trial. See Byrd, 847 S.W.2d at 210. Moreover, the trial judge must have the means to enforce and set deadlines, in order to facilitate discovery and pre-trial preparation. When the Andersons failed to produce an expert who could be expected to testify at trial, they were unable to demonstrate that, at the trial in this cause, there would be a genuine issue as to whether the defendant deviated from the standard of care, i.e., whether there was justiciable claim warranting a trial. This is the purpose of a summary judgment motion. In this case, it is undisputed that Dr. Swafford would not testify at trial. The Andersons were given adequate time to secure an expert for trial. Under these circumstances, we find no error in the trial court's grant of summary judgment to the defendants.
The Andersons also argue that the trial judge abused his discretion in refusing to permit the Andersons to take a voluntary non-suit while the summary judgment motion was pending. We find no abuse of discretion in the trial court's decision. This issue is without merit.
The decision of the trial court is affirmed and the cause is remanded for further proceedings consistent with this Opinion. Costs are taxed to the appellants, Arthur W. Anderson, Sr. and Mary Jeanette C. Anderson, and their surety, for execution may issue if necessary.
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