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Montgomery v. Smithkline Beecham Corp.2/24/2005
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 02/24/2005
EN BANC.
. According to plaintiffs Shannon and John David Montgomery, David E. Montgomery died on November 17, 1999, as a result of taking Allopurinol, a drug manufactured by SmithKline Beecham Corp. The prescription was written by Dr. Edward Gore, plaintiffs further allege that while acting as the agent of North Mississippi Medical Center and North Mississippi Family Medical Clinics, Inc. d/b/a Chickasaw Family Medical Clinic) and was filled by the pharmacy at Wal Mart Store #10-0411 in Houston, Mississippi.
. Suit was filed November 16, 2001, but plaintiffs did not immediately attempt to have process served on the defendants. Instead, on February 20, 2002, plaintiffs filed a motion, representing to the court that additional time was needed for service of process. The basis of the motion was that the law firm, Greer, Pipkin and Russell, had been recently associated, and " fter several attempts, Plaintiffs' newly associated counsel been unable to properly confer with plaintiffs Shannon Montgomery and John David Montgomery." Also, plaintiffs' counsel represented that "additional time [would] allow plaintiffs to file an amended complaint that [would] simplify the issues." An order granting "an additional 120 days from the date of entry of order" was signed on February 12, 2002 (eight days before the motion was filed); but for reasons we are not told, the order was not entered of record until April 23, 2002.
. On July 22, 2002, neither counsel for plaintiffs had served process on the defendants. The plaintiffs' attorneys signed an agreed ordered allowing Greer, Pipkin and Russell to withdraw from the action, and plaintiffs filed another motion for additional time (60 days) for service of process, stating as their "good cause" the fact that Greer, Pipkin and Russell had not caused process to be served, and "Shelton & Associates have had no time to effect service of process on the defendants." The motion also requested that the court "relate back" the additional time to the February 12, 2002, order. An order was entered on July 22, 2002, granting the requested extension and ordering that the order "shall relate back to the court's order of February 12, 2002." Assuming arguendo the plaintiffs' reasons for the extension constituted "good cause" (discussed infra), the court's July 22, 2002 order extended the time for service of process for sixty days from July 31, 2002 (the date of entry of the order). However, as of September 29, 2002, (sixty days later), process had not been served, and no further extension had been requested, as of that date.
. On December 3, 2002, 65 days after the expiration of the extension granted by the July 31, 2002 order, counsel for plaintiffs filed their third motion for additional time to serve process, stating that the attorney of record, Paul Goodman, was shot and killed, and his "sudden and unexpected death left the status of this file in question." The motion further averred that "it could not be determined if Mr. Goodman had time before his death to attempt service upon Defendants. . . ." Plaintiffs' new counsel, Jon T. Crump, urged that these circumstances warranted a finding of excusable neglect. He requested an additional 30 days to serve process and further requested that the court have the extension "relate back" to the July 22, 2002 order. An ordered was signed and entered on December 3, 2002, "granting an additional 30 days from the entry of order to effectuate service of process on the defendants. . . ." The order further purported to "relate back" to the court's prior order of July 22, 2002.
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