Opinion
No. COA02-13
Filed 3 December 2002
1. Discovery — scheduling order — failure to designate expert — sanction
The trial court did not abuse its discretion in an action for not promptly treating a hemophilic inmate's nose bleed by denying plaintiff's motion for an extension of time to designate an expert witness where plaintiff did not comply with a consent discovery scheduling order. The fact that the defendants may have had notice of the expert witnesses from earlier depositions did not relieve defendant of the obligation to comply with the order.
2. Prisons and Prisoners — hemophilic inmate's bleeding nose — promptness of treatment — summary judgment for defendants
The trial court did not err by granting summary judgment for defendants in an action for not promptly treating a hemophilic inmate's nose bleed where defendant's forecast of evidence indicates that plaintiff was checked by a nurse upon his return from the courthouse and was not bleeding and that he was taken to the hospital immediately when he began bleeding; plaintiff did not timely designate his expert witnesses; and plaintiff did not bring forth countervailing evidence or make any arguments in opposition to defendant's motion for summary judgment.
Judge GREENE dissenting.
Appeal by plaintiff from order entered 24 September 2001 by Judge Clarence W. Carter, Superior Court, Forsyth County. Heard in the Court of Appeals 8 October 2002.
Parrish Smith Ramsey, L.L.P., by Steven D. Smith, for plaintiff-appellant. Smith Helms Mulliss Moore, L.L.P., by Lisa Frye Garrison and Alan W. Duncan, for Linda Sides and Correctional Medical Services, Defendant-Appellees. Womble, Carlyle Sandridge Rice, by Allan R. Gitter and Oliver M. Read, IV, for Ronald Barker, Hartford Insurance Company and Michael Schweitzer Defendant-Appellees.
Following the trial court's grant of summary judgment dismissing plaintiff Joseph Patrick Summey's medical malpractice and negligence actions, plaintiff presents two issues on appeal to this Court: (1) Did the trial court erroneously exclude his expert witness' testimony as a discovery sanction for plaintiff's failure to designate his expert in a timely fashion; and (2) Did the trial court err in granting summary judgment in favor of the defendants? We answer both questions, no; and therefore, we uphold the trialcourt's grant of summary judgment in favor of defendants.
The underlying facts to this appeal tend to show that on 22 October 1996, the Forsyth County Detention Center held plaintiff, a hemophiliac, on charges of illegally removing a child across state lines. The next day, plaintiff's hemophilia condition was evaluated by North Carolina Baptist Hospital and he was released back to the detention center. The following day, after his first appearance in criminal court, plaintiff contends that his nose started to bleed at the courthouse. Apparently, he was taken back to the detention center where a nurse employed by defendant, Correctional Medical Services, attended to him but did not observe any bleeding. Several hours later, at around 11:00 p.m., plaintiff's nose began to bleed rapidly and he was transported to Baptist Hospital for treatment.
From that set of facts, plaintiff brought actions against Forsyth County Sheriff, Ronald Baker, Hartford Insurance Company (Surety for the Sheriff's bond), and Chief Jailer Michael Schweitzer alleging various collective acts of negligence apparently arising from their alleged failure to ensure that he was provided timely medical treatment for his nose bleed. Plaintiff also brought actions against certain medical providers including Correctional Medical Systems and its employees Linda Sides and Joe Maddux alleging collective acts of negligence which appear to amount to claims of medical negligence.
Plaintiff voluntarily dismissed his initial action in June 1999 and re-filed it in October 1999; after which, the trial court entered a Consent Discovery Scheduling Order requiring plaintiff to designate his expert witnesses within 30 days of the conclusion of the appeal on 9 March 2000. Plaintiff should have designated his experts by 3 May 2001, but did not do so until 4 September 2001. Defendants moved for summary judgment alleging there were no genuine issues of material fact and citing plaintiff's failure to designate his experts in accordance with the Consent Discovery Scheduling Order. Plaintiff moved for an extension of time to designate his experts on 4 September 2001. The trial court denied plaintiff's motion and granted defendant's motion for summary judgment.
Defendants Barker, Schweitzer and Hartford Insurance Company appealed a 14 December 1999 order denying their N.C. R. Civ. P. 12(b)(6) motion to dismiss. In the motion, defendants claimed public official's immunity barred plaintiff's negligence claims. This Court affirmed the trial court's denial in an opinion filed 3 April 2001. See Summey v. Barker, 142 N.C. App. 688, 544 S.E.2d 262 (2001).
Discovery Sanctions
"If a party fails to identify an expert witness as ordered, the court shall, upon motion by the moving party, impose an appropriate sanction, which may include dismissal of the action, entry of default against the defendant, or exclusion of the testimony of the expert witness at trial." N.C. Gen. Stat. 1A-1, Rule 26(f1) (2001). The choice of sanctions lies within the court's discretion and will not be overturned on appeal absent a showing of abuse of discretion. See Routh v. Weaver, 67 N.C. App. 426, 429, 313 S.E.2d 793, 795 (1984).
In this case, plaintiff failed to designate his experts by 3 May 2001 as he should have according to the 9 March 2000 Consent Discovery Scheduling Order. In fact, plaintiff did not designate his experts until 4 September 2001, almost four months after the ordered date, and more than one month after defendants notified plaintiff of his noncompliance. Apparently, the trial judge chose to exclude any testimony from plaintiff's experts as a sanction for plaintiff's noncompliance with the discovery order. Surely, evidence in the record showing that plaintiff failed to comply with the discovery order for several months, supports the conclusion that the trial court did not abuse its discretion by excluding the proffered testimony. Moreover, the fact that the defendants may have had notice of the expert witness from earlier depositions, did not relieve the plaintiff of the obligation to comply with the subsequent consent order. Accordingly, we hold that the plaintiff has not shown that the trial court abused its discretion in denying his motion for an extension of time to designate expert witnesses.
Plaintiff, in his 4 September 2001 motion for an extension of time, included the names of his experts and transcripts of their depositions taken in June 1999, prior to the voluntary dismissal of plaintiff's first complaint against these defendants.
Review of Summary Judgment
Under N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." The moving party bears the burden of showing that there are no genuine issues of material fact. See Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 394, 499 S.E.2d 772, 775 (1998). "The evidence is to be viewed in the light most favorable to the nonmoving party." Id.
Plaintiff brought three claims against defendants: (I) negligence for not calling plaintiff's doctor when the nose bled at the courthouse; and, for not having done something sooner before plaintiff's nose began bleeding rapidly that night; (II) cruel and unusual punishment; and (III) breach of fiduciary and statutory duties. Plaintiff further alleged general acts which appear to constitute medical negligence on the part of the medical providers. On review of the evidence in the light most favorable to the plaintiff, we uphold the trial court's grant of summary judgment in favor of defendants.
First, defendants' forecast of evidence indicates plaintiff was checked by the infirmary nurse upon his return from the courthouse and his nose was not bleeding at that time nor did his clothes or person have any blood on them; and, that night when his nose began bleeding rapidly, plaintiff was taken to the hospital immediately. Second, in medical malpractice actions, the "plaintiff must demonstrate by the testimony of a qualified expert that the treatment administered by the defendant was in negligent violation of the accepted standard of medical care in the community and that defendant's treatment proximately caused the injury." Huffman v. Inglefield, 148 N.C. App. 178, 182, 557 S.E.2d 169, 172 (2001) (citations omitted). Since plaintiff did not timely designate his expert witnesses, plaintiff is unable to prove the defendants' behavior was a negligent violation of the accepted standard of medical care. Further, plaintiff did not bring forth any countervailing evidence or make any arguments in opposition to defendants' motion for summary judgment.
In sum, we uphold the trial court's exclusion of plaintiff's expert witness testimony as a sanction for failing to timely comply with the consent discovery order. We further affirm the trial court's grant of summary judgment in favor of defendants.
Affirmed.
Judge McGEE concurs.
Judge GREENE dissents.