Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

Exercise 14

IN THE LANGUAGE OF THE COURT
Opinion of the court by Justice ABRAMSON.
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* * * * Although a defendant is permitted to move for a summary judgment at any time, this Court has cautioned trial courts not to take up these motions prematurely and to consider summary judgment motions "only after the opposing party has been given ample opportunity to complete discovery." Thus, even though an appellate court always reviews the substance of a trial court's summary judgment ruling de novo [anew] * * * to determine whether the record reflects a genuine issue of material fact, a reviewing court must also consider whether the trial court gave the party opposing the motion an ample opportunity to respond and complete discovery before the court entered its ruling. In a medical malpractice action, where a sufficient amount of time has expired and the plaintiff has still "failed to introduce evidence sufficient to establish the respective applicable standard of care," then the defendants are entitled to summary judgment as a matter of law. The trial court's determination that a sufficient amount of time has passed and that it can properly take up the summary judgment motion for a ruling is reviewed for an abuse of discretion. [Emphasis added.]
In this case, the issue before this Court is not simply whether Collier had failed to establish a genuine issue of material fact at the time Dr. Blankenship and Caritas filed their summary judgment motions-without a doubt, there is no genuine issue of material fact in the record because Collier has no expert to support his claim of medical negligence. Rather, the more specific issue is whether the trial court was correct to take up the defendants' summary judgment motions and enter a ruling when it did and, secondarily, whether the court was required first either to enter a separate order requiring Collier to obtain expert testimony or to enter an order sanctioning Collier for failing to meet the court's expert disclosure deadline.
Having carefully reviewed the record, we conclude that the defendants' summary judgment motions were properly before the trial court and it did not abuse its discretion in taking them up and deciding to rule on the motions approximately four months after they were filed and seventeen months after the lawsuit was initiated. Collier had completely failed to identify any expert witnesses and could not sustain his burden of proof without expert testimony and, thus, no material issue of fact existed in the record and the defendants were entitled to summary judgment as a matter of law. Because Collier never disputed that a medical expert was necessary to prove his claim of medical negligence and continually represented to the trial court that he would obtain an expert witness, no separate ruling stating the obvious-the need for an expert witness-was required before the court ruled on the defendants' summary judgment motions. Further, * * * the trial court was not required to enter a sanctions order prior to granting the defendants' summary judgment motions.
DECISION AND REMEDY The Supreme Court of Kentucky reversed the decision of the lower appellate court and reinstated the trial court's decision. The trial court had not abused its discretion by granting summary judgment for the defendants.
The ETHICAL DIMENSION?Collier contended that there was a "serious question" as to whether he would even need experts to prove his medical malpractice claim. Is it fair to Collier to prevent the trial from proceeding, even though the lack of expert testimony might have made it difficult-if not impossible-for him to win the case? Explain.
MANAGERIAL IMPLICATIONS Business owners and managers should be aware that initiating discovery procedures and responding to discovery requests in a timely fashion are important in any litigation. Although the court in this case claimed that summary judgment was not a sanction imposed on the plaintiff for delays during discovery, one could argue (as a dissenting judge did) that it was indeed a sanction-and a very harsh one. Courts have also dismissed cases when the plaintiffs have caused undue delay by not meeting procedural deadlines.