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CASH v. LIM11/6/1995
present proof of the contrary. This he failed to do.
Similarly, in Collyard v. American Home Assur. Co., supra, the issue was whether proof was sufficient to sustain summary judgment in a slip and fall case. The plaintiff (Collyard) gave a deposition in which she stated that she did not know how the water causing her fall got on the floor or how long it had been there. The defendant business (YMCA) where the plaintiff fell moved for summary judgment and attached the plaintiff's deposition in support of the motion. The circuit court granted the motion in favor of the defendant because the plaintiff had not
responded to the motion by countervailing proof. This court reversed and stated:
The appellant [Collyard] alleged negligence on the part of the YMCA. The appellee [YMCA] never controverted this allegation by affidavit or other proof. It simply offered the deposition of Collyard that she did not know how the water got there or how long it had been there. The appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward with additional proof on this issue. The burden in a summary judgment proceeding is on the moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The object of a summary judgment is not to try the issues but to determine if there are issues of fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1967).
Whether the YMCA was negligent remained a fact in issue. If appellant had offered proof that the YMCA was not negligent, then Collyard would have had to produce a counter-affidavit or proof refuting the offer. But that was not the case. The appellee based its motion only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained uncontroverted and Collyard should be permitted to present other evidence on that fact.
Collyard, 271 Ark. at 229-230, 607 S.W.2d at 668.
Viewing Dr. Hagans's testimony in the light most favorable to the Cashes, as we are required to do, we cannot say that it establishes a prima facie case of lack of causation or that it constitutes proof that would require countervailing proof from the Cashes. Dr. Hagans was admittedly not a radiologist or an oncologist but a breast surgeon in Little Rock. He stated twice that it is always best to remove cancer as soon as you can and mentioned once that this was the "standard." In seeming conflict with this, he also stated that he could not say as a medical certainty that the misreading of the 1991 film affected Jane Cash's outcome, or that anyone could make that statement. Though he believed the films were misread in 1991, he emphasized that he was not a radiologist and did not know the standard of care in Pine Bluff.
We conclude that Dr. Hagans's testimony falls into the
category of his not knowing one way or the other what the causative impact of misreading the 1991 film might have been. He could not be certain of the impact, but, by his own admission, this subject was outside of his area of expertise. Moreover, if anything, his testimony on causation was as favorable to the Cashes as to Dr. Lim and his clinic. In sum, Dr. Hagans's deposition does not rise to the level of sufficient proof on the issue of causation, and, as a consequence, offsetting proof by the Cashes was not required.
Reversed and remanded.
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