Filing An Expert’s Affidavit by Facsimile is Fatal
posted on September 12th, 2008 in Affidavits by clintIn Wilson v. Schwind, 2007 WL 4554735 (Tenn.Ct.App.), Plaintiffs filed a medical malpractice action. The Defendants filed a Motion for Summary Judgment and attached an affidavit and deposition of an expert witness. After a hearing, the trial court gave the Plaintiffs 30 days to file an expert witness affidavit in response to the Defendants’ Motion for Summary Judgment. Plaintiffs attempted to fax file an affidavit in opposition to the Motion for Summary Judgment. The Plaintiff waited until the last day to file an expert affidavit by facsimile. The trial court found that fax filing an affidavit was not permitted by the Tennessee Rules of Civil Procedure, and therefore, Plaintiffs had not responded to the Defendants’ Motion for Summary Judgment. The trial court granted the Defendants’ summary judgment. Plaintiffs appealed. What destroyed the Plaintiffs’ case was fax filing their expert affidavit. Rule 5A.02(4)(c) of the Tennessee Rules of Civil Procedure provides that: “(4) The following documents shall not be filed in the trial court by facsimile transmission: … (c) A will or codicil to a will; a bond; or any pleading or document requiring an official seal….” TENN.R.CIV.P. 5A.02(4)(c). An affidavit requires an official seal in the form of a notarized signature. The primary lesson is simple in this case. Never file your expert affidavit by facsimile. The secondary lesson is never wait until the last minute to get your expert affidavit prepared and filed to oppose the defendant’s motion for summary in a medical malpractice case. Always be prepared to have your expert’s affidavit ready to file in a proper manner.