Verdicts

Reversing, the Georgia Supreme Court held that there was no statutory basis for not allowing administrative 'housekeeping' orders to toll the five-year rule. The court said, 'an order tolls the running of the five-year rule if it is in writing, signed by the trial judge, and properly entered in the records of the trial court.'

Without Affidavit, Expert Report Has No Value

The Colorado Court of Appeals, Div. IV, has concluded that an expert opinion, unaccompanied by an affidavit from the expert, is not adequate under Colorado Rules of Civil Procedure (C.R.C.P.) to support a claim for medical malpractice, so a grant of the defendant doctor's motion for summary judgment in this medical malpractice case was proper. McDaniels v. Laub, '- P.3d ”, 2008 WL 191478 (Colo.App.) (unpublished).

In May 2005, plaintiffs filed a complaint alleging that defendant had committed medical malpractice. In August 2006, defendant filed a motion for summary judgment, supported by his affidavit, which stated that his treatment of one of the plaintiffs met or exceeded the applicable standard of care. Plaintiffs were given until Sept. 22, 2006 to respond. On Sept. 21, plaintiffs filed their expert witness's report in accordance with C.R.C.P. 26. This report was not accompanied by an affidavit. Plaintiffs did not file a response to the motion for summary judgment, and defendant's motion was granted on Sept. 29. Plaintiffs then moved for reconsideration, and submitted a reply brief, attaching for the first time an affidavit from their expert witness.

In Colorado, when a motion for summary judgment is submitted and supported by affidavit, the party opposing the motion cannot rely on the mere allegations of that party's pleadings, but must, by affidavit or otherwise as provided in C.R.C.P. 56, set forth specific facts showing a genuine issue of material fact. When a motion for summary judgment supported by an affidavit is made and no counteraffidavit is filed, absence of an issue of fact is established, and the court is entitled to accept the movant's affidavit as true. Witcher v. Canon City, 716 P.2d 81, 86 (Colo. 2002).

The appellate court noted that when a Colorado Rule is similar to a Federal Rule of Civil Procedure, Colorado's courts may look to federal authority for guidance. Here, C.R.C.P. 56 is similar to Federal Rule of Civil Procedure 56(c), which says that unsworn expert reports do not satisfy evidentiary requirements and should not be considered in ruling on a summary judgment motion. Looking at these analogous state and federal rules, the court concluded, the 'trial court did not err when it granted defendant's motion for summary judgment. While we recognize that this result is harsh, the rules of civil procedure are unambiguous and they permit no other outcome.'

No Collateral Estoppel When Defendant Not a Party to First Action

The State of Tennessee failed to establish that it was entitled to dismissal of this medical malpractice suit against it due to collateral estoppel because the issue of liability sought to be precluded from the State forum was not actually litigated in the related federal court lawsuit. Mullins v. State, Slip Copy, 2008 WL 199854 (Tenn.Ct.App., 1/24/08).

Plaintiff Juanita Mullins and her husband (who eventually died following surgery in Tennessee) were Virginia residents. They filed a medical malpractice lawsuit in federal court, basing jurisdiction on diversity of citizenship. Their original suit was against several doctors, including Dr. Jose Mejia, who at the time of the surgery was a fourth-year resident at East Tennessee State University. As a student at a State school, Dr. Mejia's part in the surgery was subject to Tennessee's waiver of sovereign immunity, which requires claims against the state in such instances to be brought in the Tennessee Division of Claims. Therefore, plaintiff voluntarily dismissed Dr. Mejia from the federal suit. She then filed this lawsuit against the State of Tennessee in the Division of Claims.

A jury trial was held in the federal court case, and the jury ruled in favor of all remaining defendants. Although neither Dr. Mejia nor the State of Tennessee were parties to the federal court action, the jury was asked in that action if Dr. Mejia was at fault for comparative fault purposes, and the jury responded 'no.' Based upon this, the State in the state-law forum moved for summary judgment due to collateral estoppel, saying the issue of Dr. Mejia's fault had already been decided in the federal court proceeding.

The Commissioner took note of the fact that the plaintiff was given no opportunity to present evidence as to Dr. Mejia's fault during the federal trail. In addition, the State would surely not have had to accept responsibility for Dr. Mejia's fault had the federal jury declared Dr. Mejia liable for malpractice. (In fact, in one of its briefs to the Commission, the State had asserted: 'It should be noted, however, that had the jury found Dr. Mejia negligent that there would have been no judgment against him because he was not a party to the lawsuit.') Thus, it would be unfair to allow the State to disregard the jury's verdict as to Dr. Mejia had that verdict been unfavorable to the State, but to allow the State, when that same verdict was favorable, to effectively bar the plaintiff through the doctrine of collateral estoppel from proceeding with her State claim.

On appeal, the court concluded that, at a minimum, the State has failed to satisfy two of the elements for collateral estoppel set out in the seminal case of Beaty v. McGraw, 15 S.W.3d 819 (Tenn.Ct.App. 1998). One of those factors is a showing 'that the issue sought to be precluded was actually litigated and decided on its merits in the earlier suit.' The other is 'that the party against whom collateral estoppel is asserted had a full and fair opportunity in the earlier suit to litigate the issue now sought to be precluded.' The court found that even though the federal jury verdict form asked the jury to assign fault to Dr. Mejia, neither Dr. Mejia nor the State were parties to that lawsuit. Because the State not only was not a party to the federal court lawsuit but could not be a party to that suit, plaintiff had no incentive to prove in the federal trial that Dr. Mejia had committed medical malpractice because that claim was pending with the Claims Commission.

Pretrial Scheduling Order Tolls Case-Inactivity Rule

The Georgia Supreme Court held that a trial court erred in dismissing a medical malpractice suit due to lack of activity for five years because the trial court's two pre-trial scheduling orders ' although not initiated by the parties ' still tolled the state's five-year rule on case inactivity. Zepp v. Brannen, No. S07A1320 (1/8/08).

Amy Zepp filed a medical malpractice action in a Georgia state court, but the case was dormant with the exception of two sua sponte pretrial scheduling orders. Perry Brannen Jr., the trial judge in the case, notified the parties that the case had been dismissed under Georgia's 'five-year rule.' The rule, passed to clear court dockets of dormant cases and codified as Ga. Code Ann. ” 9-2-60(b) and 9-11-41(e), provided for the dismissal of civil actions if no written order had been issued for five years. Zepp filed a writ of mandamus to reinstate the suit, arguing that the court's scheduling orders tolled the five-year period. The court dismissed the petition, holding that the scheduling orders did not toll the five-year period because they were merely administrative 'housekeeping' orders that had not been initiated by either party.

Reversing, the Georgia Supreme Court held that there was no statutory basis for not allowing administrative 'housekeeping' orders to toll the five-year rule. The court said, 'an order tolls the running of the five-year rule if it is in writing, signed by the trial judge, and properly entered in the records of the trial court.'

Without Affidavit, Expert Report Has No Value

The Colorado Court of Appeals, Div. IV, has concluded that an expert opinion, unaccompanied by an affidavit from the expert, is not adequate under Colorado Rules of Civil Procedure (C.R.C.P.) to support a claim for medical malpractice, so a grant of the defendant doctor's motion for summary judgment in this medical malpractice case was proper. McDaniels v. Laub, '- P.3d ”, 2008 WL 191478 (Colo.App.) (unpublished).

In May 2005, plaintiffs filed a complaint alleging that defendant had committed medical malpractice. In August 2006, defendant filed a motion for summary judgment, supported by his affidavit, which stated that his treatment of one of the plaintiffs met or exceeded the applicable standard of care. Plaintiffs were given until Sept. 22, 2006 to respond. On Sept. 21, plaintiffs filed their expert witness's report in accordance with C.R.C.P. 26. This report was not accompanied by an affidavit. Plaintiffs did not file a response to the motion for summary judgment, and defendant's motion was granted on Sept. 29. Plaintiffs then moved for reconsideration, and submitted a reply brief, attaching for the first time an affidavit from their expert witness.

In Colorado, when a motion for summary judgment is submitted and supported by affidavit, the party opposing the motion cannot rely on the mere allegations of that party's pleadings, but must, by affidavit or otherwise as provided in C.R.C.P. 56, set forth specific facts showing a genuine issue of material fact. When a motion for summary judgment supported by an affidavit is made and no counteraffidavit is filed, absence of an issue of fact is established, and the court is entitled to accept the movant's affidavit as true. Witcher v. Canon City, 716 P.2d 81, 86 (Colo. 2002).

The appellate court noted that when a Colorado Rule is similar to a Federal Rule of Civil Procedure, Colorado's courts may look to federal authority for guidance. Here, C.R.C.P. 56 is similar to Federal Rule of Civil Procedure 56(c), which says that unsworn expert reports do not satisfy evidentiary requirements and should not be considered in ruling on a summary judgment motion. Looking at these analogous state and federal rules, the court concluded, the 'trial court did not err when it granted defendant's motion for summary judgment. While we recognize that this result is harsh, the rules of civil procedure are unambiguous and they permit no other outcome.'

No Collateral Estoppel When Defendant Not a Party to First Action

The State of Tennessee failed to establish that it was entitled to dismissal of this medical malpractice suit against it due to collateral estoppel because the issue of liability sought to be precluded from the State forum was not actually litigated in the related federal court lawsuit. Mullins v. State, Slip Copy, 2008 WL 199854 (Tenn.Ct.App., 1/24/08).

Plaintiff Juanita Mullins and her husband (who eventually died following surgery in Tennessee) were Virginia residents. They filed a medical malpractice lawsuit in federal court, basing jurisdiction on diversity of citizenship. Their original suit was against several doctors, including Dr. Jose Mejia, who at the time of the surgery was a fourth-year resident at East Tennessee State University. As a student at a State school, Dr. Mejia's part in the surgery was subject to Tennessee's waiver of sovereign immunity, which requires claims against the state in such instances to be brought in the Tennessee Division of Claims. Therefore, plaintiff voluntarily dismissed Dr. Mejia from the federal suit. She then filed this lawsuit against the State of Tennessee in the Division of Claims.

A jury trial was held in the federal court case, and the jury ruled in favor of all remaining defendants. Although neither Dr. Mejia nor the State of Tennessee were parties to the federal court action, the jury was asked in that action if Dr. Mejia was at fault for comparative fault purposes, and the jury responded 'no.' Based upon this, the State in the state-law forum moved for summary judgment due to collateral estoppel, saying the issue of Dr. Mejia's fault had already been decided in the federal court proceeding.

The Commissioner took note of the fact that the plaintiff was given no opportunity to present evidence as to Dr. Mejia's fault during the federal trail. In addition, the State would surely not have had to accept responsibility for Dr. Mejia's fault had the federal jury declared Dr. Mejia liable for malpractice. (In fact, in one of its briefs to the Commission, the State had asserted: 'It should be noted, however, that had the jury found Dr. Mejia negligent that there would have been no judgment against him because he was not a party to the lawsuit.') Thus, it would be unfair to allow the State to disregard the jury's verdict as to Dr. Mejia had that verdict been unfavorable to the State, but to allow the State, when that same verdict was favorable, to effectively bar the plaintiff through the doctrine of collateral estoppel from proceeding with her State claim.

On appeal, the court concluded that, at a minimum, the State has failed to satisfy two of the elements for collateral estoppel set out in the seminal case of Beaty v. McGraw , 15 S.W.3d 819 (Tenn.Ct.App. 1998) . One of those factors is a showing 'that the issue sought to be precluded was actually litigated and decided on its merits in the earlier suit.' The other is 'that the party against whom collateral estoppel is asserted had a full and fair opportunity in the earlier suit to litigate the issue now sought to be precluded.' The court found that even though the federal jury verdict form asked the jury to assign fault to Dr. Mejia, neither Dr. Mejia nor the State were parties to that lawsuit. Because the State not only was not a party to the federal court lawsuit but could not be a party to that suit, plaintiff had no incentive to prove in the federal trial that Dr. Mejia had committed medical malpractice because that claim was pending with the Claims Commission.