Continuing the Summary Judgment Hearing with Rule 56.07
posted on January 1st, 2005 by clintWhat can you do if your opponent wants a summary judgment motion heard before you have completed all of your discovery? This typically occurs in medical malpractice cases. Rule 56.07 insures that a diligent party is given a reasonable opportunity to discover all of the material facts in order to oppose a summary judgment. This is why the court of appeals reversed a trial court’s summary judgment in a medical malpractice case when the plaintiff was foreclosed from deposing a physician who was an eyewitness. Conger v. Gowder, 2001 WL 301155, *5 (Tenn.Ct.App.); see also Montague v. Kellum, 2001 WL 523364, *6 (Tenn.Ct.App.) (applying the Conger rule to legal malpractice cases). The non-moving party must submit an affidavit in support of a request for additional time. See Kenyon v. Handal, 122 S.W.3d 743 (Tenn.Ct.App.2003). However, be aware that federal courts expect diligence in discovery. In Estes v. King’s Daughters’ Medical Center, 59 Fed.Appx. 749 (6th Cir.2003), the district court refused to consider an affidavit filed well after end of a discovery period totaling sixteen months. In Eastern Ky. Cardiothoracic Surg. v. Ashland Hosp. Corp., 2004 WL 3008769, only one deposition conducted in 14 months was deemed dilatory and hence was an insufficient basis to postpone the summary judgment hearing.