How to Save Your Case When Your Expert Turns On You
posted on April 25th, 2009 in Summary Judgment, Depositions, Experts by clintGilchrist v. Aristorenas, 2008 WL 4981103 (Tenn.Ct.App.) is an unfortunate cautionary tale for the plaintiff lawyer whose expert turns on him in the middle of a medical malpractice case. The defendant physician performed an operation on the plaintiff patient. Complications occurred during the surgery; as a result, the patient required several more procedures and spent approximately three weeks in the hospital. The patient hired an attorney, who obtained an opinion letter from a physician expert, Dr. Miller, who opined that the defendant physician breached the standard of care during the patient’s initial operation. After receipt of Dr. Miller’s letter, Gilchrist sued Dr. Aristorenas on June 26, 2000. The complaint echoed the assertions in Dr. Miller’s opinion letter. This lawsuit was non-suited and then re-filed on September 26, 2000.
The depositions of both Gilchrist and Dr. Aristorenas were taken in August 2001. Three years later, on September 21, 2004, an agreed scheduling order was entered. Under the scheduling order, the deadline for Gilchrist to disclose his expert witness was September 30, 2004. On October 31, 2005, an amended scheduling order was entered that extended this deadline to February 3, 2006. On February 2, 2006, Gilchrist identified Dr. Miller as his expert.
The Defendant then took the deposition of Dr. Miller. At the deposition, Dr. Miller changed his opinion and testified that he believed that the Defendant’s care of Gilchrist was not below the standard of care. The day after this ill-fated deposition, not surprisingly, Dr. Aristorenas filed a motion for summary judgment. His statement of undisputed facts and his memorandum in support of the motion were filed almost three months later, on March 13, 2007. On May 4, 2007, nearly four months after the filing of the summary judgment motion, Gilchrist filed a response in opposition to the motion. At the same time, Gilchrist filed a motion under TENN. R. CIV. P. 56.07 seeking a ninety-day continuance in order to engage another expert witness. The trial court denied the plaintiff’s motion for a continuance and granted summary judgment in favor of the Defendant. Gilchrist appealed.
On appeal, Gilchrist argued that the trial court erred in denying his Rule 56.07 motion to continue the summary judgment hearing. The Court of Appeals began its analysis with the understatement of the year, “Representing a plaintiff in a medical malpractice lawsuit is no easy task.” Notwithstanding this observation, the Court of Appeals went on to determine that Gilchrist waited too long to get relief. obtain an expert witness. While Gilchrist may have been surprised by the deposition testimony of his designated expert on January 22, 2007, he still had adequate time even after the deposition to obtain another expert witness. A court considering a Rule 56.07 motion must balance its protective purpose against the potential for its use “to aid parties who have been lazy or dilatory.” Therefore, the Court of Appeals affirmed the summary judgment.
If you face this awful situation in a medical malpractice action, then I suggest that you immediately file a Rule 56.07 motion and a motion to amend the scheduling order to get a new expert. Also, you should be wary of constant continuances that drag out litigation. Trial courts are stingy with relief of this sort when there is a record of many delays. Inevitably, the plaintiff suffers.