JUDY MAE GOFF and PHILLIP G. GOFF v. RODNEY S. JUSTICE and WILSON, STAVROS & JUSTICE
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RENDERED:
AUGUST 16, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001485-MR
JUDY MAE GOFF and
PHILLIP G. GOFF
v.
APPELLANTS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 95-CI-00913
RODNEY S. JUSTICE and
WILSON, STAVROS & JUSTICE
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE: Judy Mae Goff and Phillip G. Goff appeal from
an order of the Boyd Circuit Court denying their motion to alter,
amend, or vacate a summary judgment entered by that court in
favor of Appellees Rodney S. Justice and Wilson, Stavros &
Justice.
The summary judgment resulted in a dismissal of the
Goffs’ legal malpractice complaint against the appellees.
We
conclude that the trial court erred in awarding summary judgment
to the appellees, and we thus reverse and remand.
Mrs. Goff was injured while stocking shelves as a part
of Wal-Mart’s new store set-up team for a store in Evansville,
Indiana.
Because of her injury, she sought treatment from
several medical professionals, including Dr. Christopher McCoy
and Dr. William G. Pearson.
Dr. McCoy performed surgery on Goff
to remove her first rib and a cervical rib on one side.
The
surgery took place in the Owensboro-Daviess County Hospital.
As a result of the treatment Goff received during her
recovery from the surgery, she and Mr. Goff filed medical
malpractice claims in the Daviess Circuit Court on March 28,
1991.
The Goffs were initially represented by Grover S. Cox and
Grover C. Cox.
The three defendants named in the Goffs’
complaint were the Owensboro-Daviess County Hospital, Dr. McCoy,
and Dr. Pearson.
The trial court later entered an order allowing
Wal-Mart to intervene and assert a subrogation claim based on
benefits it had paid on behalf of the Goffs.
In April 1992, the trial court granted the Goffs’
attorneys’ motion to withdraw, and Appellee Rodney S. Justice
entered an appearance as attorney on their behalf.
At that time,
only one medical expert, Dr. Isidore Mandelbaum, had been
identified by the Goffs as an expert witness on their behalf.
Dr. Mandelbaum was then Mrs. Goff’s treating physician.
Justice
claims that at the time he entered the case no evidence was in
the case file which would have supported a claim of negligence
against either the hospital or Dr. Pearson.
Further, Justice
claims that Dr. Mandelbaum’s opinion, while critical of Dr.
McCoy, failed to support claims against either the hospital or
Dr. Pearson.
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Dr. Mandelbaum was deposed on August 31, 1992.
As a
result of his deposition, the hospital moved the trial court to
award it summary judgment.
Although the motion was properly
noticed and was continued once at the request of the defendants,
Justice failed to file a written response to it.
failed to appear at either hearing.
granted the hospital’s motion.
In addition, he
As a result, the trial court
In doing so, the trial judge
noted, “[w]e will enter a summary judgment.
Maybe that will get
his attention.”
Shortly thereafter, Dr. Pearson’s attorney approached
Justice seeking an agreed order of dismissal for his client.
The
Goffs acknowledge that Justice consulted them on this matter.
They assert they informed Justice that they would “reluctantly
agree” if two conditions were met.
The first condition was that
Dr. Pearson continue as Mrs. Goff’s treating physician, and the
second condition was that Dr. Pearson agree to provide expert
testimony regarding the care provided by Dr. McCoy.
Subsequent
to the signing of the agreed order of dismissal, the Goffs
learned that the conditions they sought had not been agreed to.
They allege that Justice misled them into believing that Dr.
Pearson had agreed to the conditions.
Mrs. Goff also received medical care from Dr. Erdogan
Atasoy.
The Goffs claim that Dr. Atasoy was critical of the care
Mrs. Goff had received and that they informed Justice of Dr.
Atasoy’s opinion.
The Goffs asked Justice to approach Dr. Atasoy
for his services as a medical expert in the case, and Justice
admitted in his deposition that he failed to contact Dr. Atasoy.
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Further, the Goffs allege that Justice, without consulting them
and in direct conflict with their wishes, informed Dr. McCoy’s
attorney that the Goffs would not call Dr. Atasoy as an expert
witness.
Dr. McCoy’s attorney, armed with Justice’s
representation, sought and obtained an order from the trial court
which precluded the Goffs from using Dr. Atasoy as a medical
expert in the case.
In October 1992, Justice filed a motion asking that the
case be set for trial.
The Goffs assert that at this point
Justice’s actions had effectively resulted in the dismissal of
two of the three defendants from the case.
Further, not only had
Justice’s actions precluded the use of Dr. Atasoy as an expert,
but the Goffs allege that Justice made no attempt to
independently investigate the claims nor did he attempt to
develop any further expert testimony for the case.
Justice failed to appear at the hearing on his motion
to set a trial date.
As a result, he was forced to refile his
motion in both October and December 1993.
In both instances
Justice failed to appear before the court on the motions.
Although the Goffs acknowledge that the court finally set a trial
date, they point out that it was continued based on a motion
filed by Dr. McCoy.
When Dr. McCoy’s motion to continue the
trial date was heard, Justice again failed to appear at the
hearing and the case was continued until August 1994.
On or about July 14, 1994, Justice informed the Goffs
that he would be filing a motion to withdraw as their attorney.
He also informed them that Dr. Mandelbaum had told him that he
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would not testify as a medical expert on their behalf.
On August
3, 1994, a hearing was held on Justice’s motion to withdraw.
At
the hearing he informed the court that he would be leaving the
practice of law.
Further, Justice related that Dr. Mandelbaum had
contacted him and had informed him that because Mrs. Goff refused
to comply with his treating recommendations, he would not testify
on her behalf.
The Goffs assert that when the court pressed him
further on the status of the case for trial, Justice assured the
court that he thought Dr. Mandelbaum would testify and that the
case was ready.
Justice did request the Goffs be given a short
continuance to obtain counsel.
The Goffs allege that Justice
also assured the court that he would assist them in obtaining
counsel.
Although the scheduled trial was less than two weeks
away, the trial court granted Justice’s motion to withdraw based
on his assurances.
At the hearing on Justice’s motion to withdraw, Dr.
McCoy’s attorney, having heard Justice describe Dr. Mandelbaum’s
position, moved the court to preclude the Goffs from obtaining
any further medical expert witnesses.
Justice’s presence.
The motion was made in
However, he elected to make no response and
did not file an objection or seek a continuance so as to allow
the Goffs to respond to the motion.
As a result, the court
entered an order precluding the Goffs from obtaining any further
expert testimony.1
1
Justice claims that since he was withdrawing as counsel
for the Goffs, he had no authority to act on their behalf
(continued...)
-5-
Although the Goffs allege that they did not receive any
assistance from Justice or from Wilson, Stavros & Justice and
that they had difficulty in having their file turned over to
them, they finally obtained the services of another attorney,
Shirley Allen Cunningham.
Cunningham entered an appearance in
the circuit court on behalf of the Goffs on November 28, 1994.
One of Cunningham’s first actions was to file a motion
seeking to name a new expert.
That motion was denied.
Cunningham then sought leave to take Dr. Atasoy’s deposition.
While the court granted this motion, it made clear that Dr.
Atasoy could be used only as a fact witness and would be
precluded from offering any testimony concerning the care
provided by Dr. McCoy.
A trial on the Goffs’ claims against Dr. McCoy was held
in March 1995.
The Goffs, who were precluded from calling
further medical experts, were forced to present Dr. Mandelbaum’s
opinions through his deposition.
The jury returned a verdict in
favor of Dr. McCoy.
As we have noted, the Goffs were precluded from
offering any expert testimony at trial from Dr. Atasoy concerning
the care provided by Dr. McCoy.
However, Dr. McCoy’s attorney
elicited expert testimony from Dr. Atasoy concerning that care.
Thus, the Goffs appealed the judgment in favor of Dr. McCoy to
this court.
In an opinion rendered in February 1997, a panel of
this court agreed with the Goffs and remanded the case for a new
1
(...continued)
concerning the motion by Dr. McCoy’s attorney.
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trial.
This court noted that when the Goffs’ attorney entered
the case, he filed a motion for leave to obtain a medical expert
given the fact that Dr. Mandelbaum refused to testify.
The court
went on to say that “Mrs. Goff should be able to obtain a new
expert witness for that trial.”
However, this court further
stated that “[i]n order to prevent Dr. McCoy from having to find
and retain rebuttal witnesses, Mrs. Goff’s new expert’s opinions
should not exceed the scope of the opinions previously disclosed
or testified to by Dr. Mandelbaum.”
In February 1998, Cunningham was allowed to withdraw as
the Goffs’ attorney.
A new attorney entered an appearance on the
Goffs’ behalf, and a settlement with Dr. McCoy was ultimately
reached.
Based on this settlement, the medical malpractice case
was resolved with the last of the three original defendants.
In the meantime, the Goffs had filed a legal
malpractice claim in the Boyd Circuit Court against Justice and
Wilson, Stavros & Justice.2
Their claim was filed by Cunningham
in October 1995, after the medical malpractice case had been
appealed.
The trial court entered an order in March 1997
allowing Cunningham to withdraw as counsel for the Goffs.
In
June 1997, their current counsel entered an appearance in this
case.
At that time the medical malpractice case had been
remanded by this court on appeal.
The record in this legal
malpractice case indicates that it was inactive while the
underlying medical malpractice case was being resolved.
2
In
Wilson, Stavros & Justice was the law firm of which
Justice was a member.
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February 2000, the Goffs filed a motion asking that this case be
returned to the active docket for further action.
The court
redocketed the case, and the parties began the discovery process.
In April 2001, the appellees filed a motion for summary
judgment.
They relied upon the fact that the underlying medical
malpractice case had been reversed and remanded and on the fact
that the Goffs had reached a settlement with Dr. McCoy.
They
thus asserted that the Goffs had a “second bite of the apple” and
were placed in the same position they had been in when Justice
withdrew from the case.
Further, the appellees asserted that the
Goffs could not establish any damages in light of their
settlement with Dr. McCoy.
In this regard, they cited Mitchell
v. Transamerica Ins. Co., Ky. App., 551 S.W.2d 586 (1977).
In response to the appellees’ summary judgment motion,
the Goffs filed a response relying on responses to
interrogatories and the depositions then of record.
Further, the
Goffs argued that the Mitchell case could be distinguished.
In
particular, the Goffs asserted that there is a significant
difference between “electing to settle” a case in which the claim
could have been fully presented and being “forced to settle” a
case in which the presentation of the claim would have been
subject to limitations imposed based on Justice’s actions prior
to withdrawing.
The appellees then filed a reply to the Goffs’ response
in which they raised for the first time a claim that the Goffs
had failed to present any expert testimony in support of the
allegations in their complaint.
The appellees cited Neal v.
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Welker, Ky., 426 S.W.2d 476 (1968), for the premise that once the
movant has presented evidence of the non-existence of a material
issue of fact, then it is incumbent on the non-movant to counter
with evidence.
The Goffs then filed a surreply arguing that the
appellees improperly raised the expert testimony argument for the
first time in the reply and also arguing that they (the Goffs)
had presented names of experts as well as opinion letters.3
Further, the Goffs argued that because the underlying case
involved numerous medical and legal professionals, it would be
possible to introduce the necessary evidence through fact
witnesses who could provide lay opinions based on personal
observations.
Finally, the Goffs asserted that even if it is
assumed they had yet to satisfy an expert witness requirement,
nothing then in the record precluded them from obtaining
additional evidence in the future.
On April 30, 2001, the trial court entered a summary
judgment in favor of Justice and Wilson, Stavros & Justice.
The
court stated, “[i]t is this Court’s opinion that when Plaintiffs
settled their underlying medical negligence case, they
effectively dismissed their legal negligence case.”
The court
reasoned that it was incumbent upon the Goffs to show that they
had been damaged by the actions or inactions of their attorney
and that by settling the medical malpractice case they lacked
3
The Goffs identified potential experts in their responses
to interrogatories. In addition, they alleged that more detailed
information was provided in letters to counsel. While the
appellees acknowledged the existence of the letters, they argue
that is insufficient because the expert testimony was not placed
in the record.
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such proof.
The court also held that “even if the Plaintiffs
could survive the Mitchell case and its progeny on the issue of
settlement/damages, Defendants would still be entitled to Summary
Judgment due to Plaintiffs having failed to put forth any
probative evidence on each necessary element of their claim.”
The trial court summarily denied the Goffs’ motion to alter,
amend, or vacate the judgment, and this appeal by the Goffs
followed.
The applicable rule regarding summary judgments states
in pertinent part as follows:
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, stipulations, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law.
CR4 56.03.
A summary judgment should not be rendered if there is
any issue of material fact, and “[t]he record must be viewed in a
light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Service Ctr., Inc., Ky., 807 S.W.2d
476, 480 (1991).
“The standard of review on appeal of a summary
judgment is whether the trial court correctly found that there
were no genuine issues as to any material fact and that the
moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996).
4
Kentucky Rules of Civil Procedure.
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As we have noted, the trial court held that the Goffs
“effectively dismissed their legal negligence case” when they
settled their medical negligence claim against Dr. McCoy.
We
conclude that this holding by the trial court was error for two
reasons. First, we disagree with the trial court that by settling
their claim against Dr. McCoy, they lost their right to pursue a
legal malpractice claim against Justice concerning Dr. McCoy.
The trial court’s ruling was based on the Mitchell
case.
The Mitchells were injured in an accident with a tractor-
trailer rig just north of Shepherdsville, Kentucky.
They
employed Carr to represent them in a lawsuit against the driver
and owners of the tractor-trailer.
Carr failed to file the
Mitchells’ complaint prior to the expiration of the applicable
statute of limitations.
When he admitted his error to the
Mitchells, they hired another attorney who, by taking advantage
of a longer statute of limitations in Indiana, filed their claims
in Indiana in federal court.
Prior to trial in Indiana, the
Mitchells entered into a settlement with the defendants.
Meanwhile, the Mitchells brought a legal malpractice
claim against Carr in the Jefferson Circuit Court.
A jury there
awarded the Mitchells compensatory and punitive damages against
Carr.
However, this court reversed the judgment on appeal.
Although the court noted that Carr was guilty of legal
malpractice, it stated that “this court cannot see where the
Mitchells proved their damages.”
Id. at 588.
The controlling
factor was that the Mitchells, who had the right to fully
litigate all claims against the defendants in a court of
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competent jurisdiction, had elected instead to settle the case.
Although the Mitchells argued that they would have received more
damages from a Kentucky jury, this court noted that there was no
way of knowing what an Indiana jury would have done since the
case was settled prior to trial.
In the case sub judice, the appellees argued and the
trial court agreed that the settlement of the Goffs’ claim
against Dr. McCoy precluded their legal malpractice claim against
them.
As for the Goffs’ argument that on remand of the opinion
of this court in the medical malpractice case the Goffs would
have been subject to limitations, the appellees assert that the
Goffs were placed in the same position they were in when Justice
withdrew from the case.
They note that this court’s opinion
reversing the original judgment in favor of Dr. McCoy allowed the
claim against him to proceed to a new trial with the right to
retain new expert witnesses whose testimony could not exceed the
scope of the opinions previously disclosed or testified to by Dr.
Mandelbaum.
The Goffs assert that this, in fact, is the problem.
The Goffs argue that Justice’s actions imposed a
framework of limitations within which any further action on the
case would be contained on remand.
In particular, the Goffs
point out (1) that two of the three defendants had been released
from the case; (2) that Dr. Atasoy, who had indicated his
concerns with Mrs. Goff’s treatment, was precluded from
testifying as an expert; and (3) that any new expert would be
specifically limited to expressing the same views Dr. Mandelbaum
had expressed.
They argue that, unlike the Mitchells, on remand
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they did not have the opportunity to fully litigate all claims
arising from the incident.
The Goffs argue that under these
circumstances they were “forced to settle” as opposed to freely
“electing to settle.”
In further support of their argument, the Goffs cite
Kirk v. Watts, Ky. App., 62 S.W.3d 37 (2001).
The Kirk case
involved a claim of legal malpractice based on an attorney’s
handling of Kirk’s sexual harassment claim and her bankruptcy.
After Kirk approached Watts to represent her on the sexual
harassment claim against her employer, she and her husband went
back to Watts to seek advice on bankruptcy.
Watts advised them
to proceed on a Chapter 7 bankruptcy while at the same time
withholding any mention of the sexual harassment claim.
Once the
bankruptcy became final, Watts filed the sexual harassment claim.
During discovery, Kirk’s former employer discovered the
bankruptcy.
Ultimately, the bankruptcy court allowed the Kirks
to reopen the bankruptcy.
In doing so, the bankruptcy judge
directed that the bankruptcy trustee be substituted as the
plaintiff on Kirk’s sexual harassment claim.
The bankruptcy
trustee settled the sexual harassment claim for $52,000, with
$15,000 to be paid to Kirk.
He noted in an affidavit that had
Kirk objected to the settlement, he would have recommended to the
bankruptcy court that she get nothing.
The trustee also stated
in the affidavit that he believed Kirk would have received
nothing had she objected.
After the settlement of the sexual harassment claim was
reached, Kirk filed a legal malpractice claim against Watts.
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Watts sought a summary judgment, claiming that Kirk’s settlement
of her sexual harassment claim with her employer precluded her
legal malpractice claim against him.
Watts cited the Mitchell case.
In support of his argument,
The trial court agreed with Watts
that Kirk’s claim was precluded by the Mitchell case and awarded
Watts a summary judgment.
A panel of this court reversed the summary judgment and
remanded the case to reinstate Kirk’s complaint.
The court noted
the factual differences between Kirk’s claim and the Mitchell
case.
The court noted that the Mitchells lost nothing as a
result of their attorney’s malpractice because they were able to
maintain an action in federal court.
The court distinguished
Kirk’s claim because Kirk lost the opportunity to maintain the
case in her own name and to prosecute her own interests as a
result of Watts’ advice not to list the claim on the bankruptcy
petition.
As is clear from our holding in the Kirk case, the mere
fact that Goff reached a settlement on her underlying medical
malpractice claim against Dr. McCoy does not mean that she
forfeited her right to pursue a legal malpractice claim against
the appellees.5
As in the Kirk case, we must look beyond the
fact that the underlying claim was settled and consider the
position in which the Goffs had been placed by the appellees.
Because of the alleged negligent actions of Justice, the Goffs
were limited in the presentation of evidence against Dr. McCoy.
5
In fairness to the trial court, we note that its decision
came before this court’s opinion in Kirk.
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In short, we conclude that the Goffs’ legal malpractice claim
against the appellees remained alive even after her settlement
with Dr. McCoy.
We also believe the trial court erred for a second
reason when it dismissed the Goffs’ claim against the appellees
due to the McCoy settlement.
The Goffs’ medical malpractice case
named three defendants when it was filed.
The defendants were
the hospital, Dr. McCoy, and Dr. Pearson.
The settlement
involved only Dr. McCoy.
Based on Justice’s actions, the
hospital and Dr. Pearson had been released from the case.
We
agree with the Goffs that even if the settlement with McCoy
precluded further action against the appellees based on that
underlying claim, the settlement would have no effect on claims
relating to Justice’s actions which impacted the Goffs’ claims
against the hospital and Dr. Pearson.
Next, as we have noted, the trial court gave a second
reason for awarding summary judgment to the appellees.
The court
stated that “even if the Plaintiffs could survive the Mitchell
case and its progeny on the issue of settlement/damages,
Defendants would still be entitled to Summary Judgment due to
Plaintiffs having failed to put forth any probative evidence on
each necessary element of their claim.”
The appellees improperly
raised this argument for the first time in their reply to the
Goffs’ response to the appellees’ motion for summary judgment.
Although the Goffs argued this to the trial court, the court
allowed the argument to be made and allowed the Goffs to file a
surreply limited to two pages in length.
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A similar situation occurred in White v. Rainbo Baking
Co., Ky. App., 765 S.W.2d 26 (1988).
In that case the party
moving for summary judgment was able to raise, for the first time
in his reply, the argument that the non-movant had failed to
support their claim of employment discrimination with any
evidence of disparate impact.
When the non-movant pointed out
that this argument was being improperly raised for the first time
in a reply, the trial court ruled that if the non-movant had
wanted to rely on evidence of disparate impact, then it was
incumbent on him to raise it in his response to the motion.
On
appeal, this court rejected the trial court’s conclusion, noting
that “the trial court’s action essentially put the burden on
White to show that there was an issue of material fact.”
30.
Id. at
The court further stated that “[t]his shifting of the burden
is not supported by case law.”
Id.
As in the White case, the
trial court in the case sub judice also relied on a claim, first
raised in a reply, that the non-movant had failed to produce
evidence as to some element of his case.
The party moving for summary judgment has the burden of
establishing the non-existence of any issues of material fact.
See Robert Simmons Const. Co. v. Powers Regulator Co., Ky., 390
S.W.2d 901 (1965), and Barton v. Gas Service Co., Ky., 423 S.W.2d
902 (1968).
A motion for summary judgment is treated very
similar to a motion for a directed verdict in cases where the
moving party is the same party who has the burden of proof at
trial.
Barton, 423 S.W.2d at 904.
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However, the similarity ends
where the movant is the party without the burden at trial.
Id.
In such cases,
[T]he burden to show that there is no genuine
issue of material fact rests on the party
moving for summary judgment, whether he or
his opponent would at trial have the burden
of proof on the issue concerned; and rests on
him whether he is by it required to show the
existence or non-existence of facts.
Id. at 905.
In the case sub judice, the appellees filed a motion
for summary judgment.
Thus, they had the initial burden of
showing the non-existence of any issues of material fact.
“[U]nless and until the moving party has properly
shouldered the initial burden of establishing the apparent nonexistence of any issue of material fact,” the non-movant is not
required to offer evidence of the existence of a genuine issue of
material fact.
Robert Simmons, 390 S.W.2d at 905.
Thus, in
order for the Goffs to have had the burden of coming forward with
evidence as to the existence of a material issue of fact, the
appellees would first have had to “shoulder the initial burden”
as to the non-existence of any genuine issues of material fact.
The appellees allege that the Goffs fail to produce
expert testimony sufficient to support the necessary elements of
their claims.
However, the appellees neither pointed to any
evidence of record nor presented any expert evidence that would
indicate the Goffs could not produce such evidence.
Rather, they
merely stated that as of the time the reply was filed, the Goffs
had failed to produce such expert testimony.
was rejected in the Barton case.
A similar argument
423 S.W.2d at 905.
reversing the trial court, the Barton court stated:
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In
In this case we have concluded that the
judgment was premature and should not have
been granted because, although the facts and
evidence thus far developed do not establish
the existence of a genuine issue of material
fact, neither do they establish the nonexistence of such an issue.
Id. at 904.
In short, where the movant fails to meet its initial
burden, a summary judgment should not be granted even if the nonmovant has failed to produce sufficient evidence as to each
element necessary to establish its claim.
Such is the case
herein.6
Furthermore, even if the appellees had shouldered their
burden of initially establishing the non-existence of genuine
issues of material fact, there was sufficient evidence of record
to establish the existence of such issues.
Citing to the
depositions of the Goffs and Justice, as well as to responses to
interrogatories, the Goffs assert that they have named experts
capable of addressing fact issues.
Further, the Goffs maintain
that the case has numerous fact witnesses from both medical and
legal professions who could provide first-hand testimony
concerning the issues.
Finally, the Goffs contend that they
provided correspondence to the appellees’ counsel which provides
6
A summary judgment would be appropriate where the movant
shoulders his initial burden and the non-movant fails to counter
with evidence sufficient to show the existence of a genuine issue
of material fact. Tarter v. Arnold, Ky., 343 S.W.2d 377 (1960);
Neal v. Welker, Ky., 426 S.W.2d 476 (1968). While the appellees
claim that the record in the underlying medical malpractice case
and the deposition of Dr. Mandelbaum were devoid of evidence
indicating negligence on the part of the hospital or Dr. Pearson,
the appellees failed to submit either the underlying case record
or the deposition of Dr. Mandelbaum into the record to support
their summary judgment motion.
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further information as to the experts and opinions concerning the
issues.
As noted in the Tarter case, to successfully resist a
summary judgment motion once the non-movant has the burden, the
non-movant must “show in some way that there would be evidence
upon the trial to create a genuine issue on the fact.”
S.W.2d at 379.
343
Also, the Neal court stated that “appellant would
have had a case warranting a trial if the availability of any
medical testimony had been shown.”
426 S.W.2d at 478.
In both
cases, the non-movant was not required to produce evidence
sufficient to succeed at trial; rather, the focus was on
demonstrating the availability of sufficient evidence to create a
genuine issue of material fact for trial.
The evidence cited by
the Goffs, while not sufficient to establish the necessary
elements at trial, demonstrates that such evidence exists.
Finally, even if the appellees had shouldered their
initial burden, and even if the Goffs had failed to establish
sufficient evidence as to each element which requires expert
testimony, then the appellees still would not have been entitled
to summary judgment because nothing then in the record precluded
the Goffs from producing such evidence in the future.
As noted
by the Goffs, summary judgment is proper when it is manifest that
the party against whom the judgment is sought could not
strengthen his case at trial.
Ky., 401 S.W.2d 758 (1966).
See American Ins. Co. v. Horton,
However, that is not the case
herein.
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The appellees argued that the Goffs had yet to place
sufficient expert testimony in the record to establish their
claims.
The appellees did not argue that such evidence could not
be produced, nor did they present expert evidence of record which
supports their claims that (1) the facts will not support
negligence claims against either the hospital or Dr. Pearson, and
(2) the facts will not support claims of negligence or damages on
the Goffs’ claims of legal malpractice.7
To the contrary, the
appellees have acknowledged that the Goffs have provided, both in
their responses to interrogatories and in the letters to counsel,
evidence that such testimony is available.
We reverse the summary judgment entered by the Boyd
Circuit Court and remand the case for further proceedings.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEFS AND ORAL ARGUMENT FOR
APPELLEES:
Brenn O. Combs
Lexington, Kentucky
Phillip Bruce Leslie
Greenup, Kentucky
7
The failure of the appellees to submit either the
underlying case file or the deposition of Dr. Mandelbaum into the
record is of particular significance in this regard.
-20-
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