From Casetext: Smarter Legal Research

Newsome v. Homer Memorial

Supreme Court of Louisiana
Apr 9, 2010
32 So. 3d 800 (La. 2010)

Summary

holding that the district court abused its discretion in granting the plaintiff's untimely motion for continuance in order to file an expert affidavit in support of its opposition

Summary of this case from Madere v. Collins

Opinion

No. 2010-CC-0564.

April 9, 2010.


This matter arises out of a medical malpractice suit brought by plaintiff Yvonne Newsome against Clint C. Butler, M.D., John H. Smith, M.D., and Homer Memorial Medical Center, defendants. Defendants treated plaintiff from December 21, 2004 to December 28, 2004. The issue before us is whether, five years after the date the alleged malpractice occurred, the trial court erred in continuing a hearing on defendants' motion for summary judgment so that the filing of the affidavit of plaintiff's expert witness opposing the motion for summary judgment would not be untimely. For the reasons that follow, we hold that it was, indeed, error for the trial court to continue the hearing.

Prior to bringing suit, plaintiff had filed a request for a medical review panel with the Louisiana Patients' Compensation Fund on December 23, 2005, a full year after the alleged malpractice; however the attorney chairperson was not appointed until November 3, 2006. Following a lengthy delay of over two years, during which time plaintiff missed five deadlines to submit her evidence and required that the life of the panel be extended three times, the panel met on February 11, 2009, and rendered a unanimous decision in favor of defendants.

Plaintiff filed suit on June 10, 2009, but withheld service on defendants for ninety days, until the last day allowed to request service, September 9, 2009. Defendants propounded discovery to plaintiff on October 1, 2009, specifically asking if plaintiff had obtained an expert witness. Plaintiff had not responded to the discovery as of March 12, 2010, the date the application was filed in this Court.

Defendants, on December 9, 2009, filed a Motion for Summary Judgment, which was set for hearing on January 22, 2010. On January 7, 2010, plaintiff's counsel contacted defendants' counsel and asked for a continuance of the hearing based on plaintiff's counsel's trial schedule. Defendants' counsel agreed to the continuance, with the caveat, to which plaintiff's counsel agreed, that the matter would not be continued again. The hearing was rescheduled for February 11, 2010.

On February 4, 2010, seven days prior to the scheduled date for the hearing of the motion for summary judgment, plaintiff filed a "Motion for Continuance or in the Alternative, Motion for Permission to File Affidavits Late." The trial court set the hearing on plaintiff's motion for the same date as the date of the hearing of defendants' motion for summary judgment, February 11, 2010. At the hearing of plaintiff's motion, plaintiff presented to the trial court an expert's affidavit, and requested that the hearing of defendants' motion for summary judgment be continued so "the late filed affidavit [would] be considered timely." Transcript at p. 2, 1.30.

After listening to the arguments of both counsel, the trial court stated:

Well, I guess my inclination is to deny the continuance, and also the time to give for the affidavit, but I don't want to punish your client because of something that you failed to do, and I think even if I ruled against you, maybe the Court of Appeal would probably send it back saying that's possibly what I'm doing. So, I'm going to go — what I'm going to do is, I'm going to allow the continuance as to — or the alternate, time to let you file the affidavit . . .

Transcript at p. 15, 1.13.

The denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Hargrove v. Goods, 41, 817 (La.App. 2 Cir. 2/28/07), 953 So.2d 968, 971. A continuance may be granted in any case if there is a good ground therefor. C.C.P. art. 1601.

With regard to motions for summary judgment, the law provides:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits . . . shall be served . . . at least eight days prior to the date of the hearing . . .

C.C.P. art. 966(B).

Here, plaintiff requested a continuance of the hearing of a motion for summary judgment just seven days prior to the date of the hearing, and attempted to file an affidavit on the day set for the hearing of the motion for summary judgment, which violates the eight-day limit contained in Article 966(B). Plaintiff's "good cause" for the continuance was solely to allow the affidavit to be filed at least eight days before the date of the hearing. Plaintiff's counsel's reason for not having obtained an expert or an expert's affidavit earlier was that her one-week trial scheduled in January turned into a three-week trial. Plaintiff's counsel's reasoning ignores the fact that, despite having had one year to obtain an expert prior to requesting the medical review panel, one year to obtain an expert prior to requesting the appointment of an attorney chairperson for the panel, two years to obtain an expert during the pendency of the medical review panel, nine months to obtain an expert prior to defendants filing their motion for summary judgment, and two months to obtain an expert prior to the scheduled hearing of the motion for summary judgment, she waited until the day prior to the scheduled hearing date to obtain the affidavit of an expert with whom she had been in contact for over a month regarding the case and whom she had used on several previous occasions.

Under the facts of this case, the trial court abused its discretion in granting the motion for continuance solely in order to allow plaintiff's expert's affidavit to be filed in compliance with the eight-day limit contained in Article 966. The lower courts are reversed and the matter is remanded to the trial court, which is ordered to conduct a hearing on defendants' motion for summary judgment based on the pleadings, depositions, answers to interrogatories, and admissions on file on February 11, 2010, together with any affidavits served at least eight days prior to that date.

REVERSED AND REMANDED.


Summaries of

Newsome v. Homer Memorial

Supreme Court of Louisiana
Apr 9, 2010
32 So. 3d 800 (La. 2010)

holding that the district court abused its discretion in granting the plaintiff's untimely motion for continuance in order to file an expert affidavit in support of its opposition

Summary of this case from Madere v. Collins

holding that the trial court abused its discretion in granting the motion for continuance solely to allow plaintiff's expert's affidavit to be filed in compliance with Article 966

Summary of this case from Mitchell v. Terry

holding that it was error for the district court to continue a hearing solely to allow plaintiff to comply with the eight-day limit for filing an opposition to summary judgment under La. Code Civ. P. art. 966

Summary of this case from Madere v. Collins

holding that depositions and affidavits considered must be “on file” prior to the hearing on the motion for summary judgment

Summary of this case from Sheffie v. Wal–Mart La., LLC

holding that depositions and affidavits considered must be "on file" prior to the hearing on the motion for summary judgment

Summary of this case from Sheffie v. Wal-Mart Louisiana, LLC

In Newsome, 32 So.3d 800, the supreme court held that a patient failed to show good cause for continuing a hearing on a motion for summary judgment.

Summary of this case from Finley v. Lakeland Partners

In Newsome, counsel for the plaintiff and defendants agreed to the first continuance with the stipulation that the matter would not be continued again.

Summary of this case from Reed v. Restorative Home Health Care, LLC

In Newsome v. Homer Memorial Medical Center, 10-564 (La. 4/9/10), 32 So.3d 800, the trial court granted the plaintiff's motion to continue a hearing on the defendants' motion for summary judgment to allow it to consider an expert's affidavit that plaintiff filed after the deadline contained in La.Code Civ.P. art. 966(B) had passed.

Summary of this case from Arceneaux v. Lafayette Gen. Med. Ctr.

In Newsome, Guillory, and Sims, the plaintiffs had previously been granted motions to continue the original hearing on the defendants' motions for summary judgment.

Summary of this case from Harris ex rel. Estate of Harris v. La. Med. Mut. Ins. Co.

In Newsome, the supreme court considered whether the trial court had abused its discretion by granting a second motion to continue filed by the plaintiff in a medical malpractice action for the purpose of allowing the plaintiff to timely file an affidavit in support of plaintiff's opposition.

Summary of this case from Harris ex rel. Estate of Harris v. La. Med. Mut. Ins. Co.
Case details for

Newsome v. Homer Memorial

Case Details

Full title:Yvonne NEWSOME v. HOMER MEMORIAL MEDICAL CENTER, et al. Health Center

Court:Supreme Court of Louisiana

Date published: Apr 9, 2010

Citations

32 So. 3d 800 (La. 2010)

Citing Cases

Harris ex rel. Estate of Harris v. La. Med. Mut. Ins. Co.

On May 8, 2014, in opposition to the defendants' motion for summary judgment, the plaintiffs filed an…

McGrew v. Waguespack

Likewise, the denial of a motion for continuance will not be disturbed absent a showing of an abuse of…