the motion is denied you may proceed with may please the court this matter came for this court here before the trial court and the trad court should not have granted the motion for summary judgment without permission prior to result the discovery issues and to permit an extension of the thirteen f three schedule as well as an extension of the trial date in this matter the plane death was advised on ginny and in june that she needed to file an amended complaint that order came out of a hearing in which the court asked for status on the completion of discovery i did not highlight that that amended complaint relieved amended complaint timely this came for the court again on august st a trucks date now this case from the outset had been set to five days after the schedule completion of two hundred and thirteen f three discovered at no time prior to indicates that the appellant failed on three times three times to file a motion for leave to file an amended complaint and did not do so what in fact did occur was the june trial the june order was not complied with there was not another order though much has been said about the august th date due to difficulty supreme difficulty in being the pendency of the proceedings the expert witness in support of your case i did not why not because we i needed to sort out the a complaint in it to correspond to the proofs i tried to out the case to get the information regarding the other surgeon who provided care to the planet and in fact it was not until i read the a police brief that i saw the admission of the date or the time frame that which dr mccants had provided care when i went to the court and asked my only request to extend that to thirteen after reschedule the court order that i could it actually also found my motion for leave to amend the court at that time order that i should ordered to provide disclose to thirteen f three witnesses on the original complaint now the difficulty with that is that by providing experts on the original complaint they would have been permitted at that point then i would have been in the situation that i would be operating standard of care our witnesses against the new defendants which would be dr mishandle of the amended complaint that you were going to file wasn't that supposed to be in a minute complaint that was going to add parities yes and it did it it wasn't supposed to be the council would be to doctor the cancer doctor and hide it kendall the only way that this would be modified is that the counts against the hospital and the doctor's company on the theory respond superior would be altered because of the fact we would be bringing in dr mccants who was also an agent or employee and hide kendall who was also in each in their employee but there as to a separate  expert opinion relative to the original complaint but an addendum or an additional pinion or opinions from an expert relative to the newly added parities exactly and that is what caused the difficulty had i done that to the newly added parties provided the disclosure i'm sorry i was told provided displeasure to the original which would not be the added part of just providing that disclosure to the original then by adding parties if the court permitted me to amend my complaint would be in a position that my expert who was disclosed stating dr x dr why did this then i would then have another experts and oh and new dr doctor mccants did this if we then went back just to the original complaint which eventually we did because i withdrew my motion to file amended complaint if we had gone back to that that situation i would have had is where the defendant would be able to take that other set of witnesses and say isn't it true that you this document states dr argument the motion for summary judgment and the reading schedule all had ben extended by motion of the defendant to a date that would not allow the trial to proceed anyway and what ended up happening ultimately is they had there was a date or status the following day when we went to court the motion for summary judgment was not mentioned whatsoever and then the contemptuous actions against the trial court and specifically i want to state that i do not believe that to be appellant should be in any inappropriate however we did know and that the trial court did state that they are had better and delays delays delays and that the motion for an amended complaint had been repeatedly not complied with that is not correct there was one order in june and plaintiff did not i'm sorry appellant did not personally file that order however thirty days to file your rule twenty three of three disclosures correct yes sir and that is what i was speaking to those disclosures were ordered to be filed on the original complaint i had not given gotten leave to file the amended complaint i was to file them on the original which i said would really create quite the burden of proof i believe that it is also the court i wanted to the solve the intended your intent was to to complete discovery i understand your perspective and your argument from your standpoint but i guess what i'm wrestling with you never actually filed in response to the motion in opposition for s probably aware the cases are well settled that the failure of the plaintiff to come forward as expert evidence in violation of the standard of care and not a medical malpractise case summary judgment of those circumstances is proper weren't you concerned about  contesting the motion for summary judgment well i was but the motion for summary judgment also indicated that there was a trial date pending that was full knowledge and i believed because the  e was in fact collecting the information or told me so i believe that the court in striking their motion to compel discovery would permit me to do the sky every that i needed to  address the motion for summary judgment however i needed a ruling and i needed the revision of the two hundred and thirteen f three schedule i also required a extension of the trial date there was was a matter of sorting out the facts that they had failed to disclose that dr the canst performed medical procedures on the on the plaintiff at a time when she was not signed in the hospital and that well it wasn't three years total am only because we were still having ongoing discovery but when we did complete at once and have to i did go back and file a detail to file this f three as a relates to the defendants in the original complaint and you told them it wasn't your problem you could do it within fourteen days you provided the time period for compliance and then you didn't comply and you didn't file a motion within that time to extend the period for comply is that correct it is correct however the court did give me five days in order to the amended complaint had been filed with not in any way have impacted the claims as it relates to the original defendants and that was the point of the f three as a relates to the original complaint however the difficulty with that would be is disclosing those in that st complaint and then having it the court allow me to file the amend complaint then having another set of two  until thirty days before the trial date the trial date had ben calendar at one point for another case that counsel and i were all on i do believe that this case should be tried on the merits no bad faith it is correct that during those three years i would have an opportunity to file and i did not and would you please clause yes i would have had an opportunity i did not do so however intil ju ju day i had not violated any court orders regarding an amended complaint i did violate that once i did then come in and filed a motion to amend and received a discovery order that was not at all what i had asked for and what i've seen in other cases and i think you very much for your time just as hudson you haven't had a questions this time i do not think issue here and the issue in this case is actually a simple one that is well settled under the law were more plaintiffs given reasonable time and opportunity to disclose that necessary expert prior to the trial court's entry the courts must afford them unlimited time to an attempt to write a sinking ship but that's just not the case it's not the law and at some point a litigation must send the trial to our court here properly entered summary judgment in favor of defend because the record was unequivocal bleakly or that after apple ample time and opportunity and to put that into actual numbers three years from filing twelve months after the initial disclosure deadline seven months after the have an expert to support their claims you can't go to trial if you don't have a meritorious cause of action and in this cause of action and expert was necessary to testify seven as to standard of expert in a timely manner she cites three cases camaro and smack the proposition a trial court failed to address changed circumstances that warrant to develop some emotion summary judgment and the reopening you summarize your response to the cases that you cited so the cases that she cited this court also looked at and and really if you look at all of the case law across all the circuits the question really becomes or the rule of law becomes at the time that summary judgment is is is approached and being argued is there any indication is there any indication that the person has an expert additionally a change of circumstances it is the law and the analysis that you go through if there is actually discovery sanction but if you look at that versus rhetoric as well as smith versus bhattacharya it's clear that merely giving a plaintiff ample an opportunity and then not being able to come forth with an expert or any inkling of an expert does not raise to the level does not fall into the definition of a discovery sanction it's merely an appropriate ruling on summ judgment of i me here there were no discovery sanctions unless you mean unless you count disallowing citing additional authority for the summary judgment argument but as it relates to the three days and so with respect to the original defendants there still may good to be an expert that would support those claims otherwise those defendants are entitled to summary judgment and i think that the trial court attempted to separate those two issues properly st giving her additional time to address the expert disposer as to the initial complaint then with respect to the amended complaint that names new people that complaint was defective upon case where you can immediately get additional time because your statue of limitations is about to expire and you haven't had a chance to speak with an expert that was written in the law i presume to protect lawyers and litigants plaintiffs from the situation where someone comes into your office the day before the statue of limitations and said if i think i have terrible something terrible happened here's the story and you get it on file because two years is a bar and then the statute allows for additional time but that is not the case here and facts from the beginning of the case i can't say for certain whether it was from her st meeting but at least from plaintiff's deposition these new allegations with respect to ons and heidi and all were right they were raised continuously and frankly they were known at the time that the records were provided because one thing that i absolutely  disagree with in the facts is that there is something unknown uncharted was dropped that is separate from the discovery in this case but ultimately the biggest thing that matters for the purposes of this appeal is that the motion for amended complaint was withdrawn by counsel it was withdrawn it was not it frankly it was granted to the extent that she was given seven additional days to and twenty two dollars which should have been able to be done fairly quickly and i think counsel even said on the record should be a problem within a short period of time but ultimately when we got to the end of those seven days and we were next before the court she withdrew the motion for leaks and that should serve as a bar as a choice as opposed to an adverse ruling from even raising that issue before you're on hers today several years later would you like me to continue or does anyone else have another question you guys or my question thank you so with respect and so now we've sort of addressed two of the things maybe three but ultimately when you look at this case in a home that an expert was necessary the case law was was clear time an opportunity no discovery sa at some point the litigation must and and just like an any type of case if there is not a meritorious cause of action summary judgment is appropriate and the specific route under these circumstances summary judgment was appropriate the court frankly bent over backwards to consider all of these things which i determine i deem smoke and mirrors there wasn't a discovery sanction but perhaps there could have been for the filing of a motion to compel now dealing with discovery that was what you're allowed to argue orally when you haven't even filed a written response to any of the briefing on something as important and large as a motion for summary judgment and or apparently this  motion for leave that is so important because all this new information that it's not new information that was never even great instead at the point that it comes up on the motion for summary judgment a brief was walked and began to read from and there was an objection there was there were more hearings and more briefing on this case and more opportunities than any of those in the precedent before your honor and yet we sit here i believe that judge  follow the law as it was written gave more time and opportunity than was even necessary which was within her discretion there was no abuse of discretion there was no discovery sanction this was just as i started and i will and a very simple issue of the plaintiff did not have an expert the court told her after argument on motion for summary judgment and had been pending for seven months quote as it stands right now the motion for summary judgment is well taken it's appropriate it's timely and you don't have anything to combat it she was given an additional thirty days to find experts on the original complaint even before the court the day before the today was no indication of no motion to extend no indication that it would be she would not be able to do so additional seven days on this new complaint that frankly if we were to follow that don't mind likely would have been when it was clear that there was no meritorious case to go to trial it was plaintiff's burden to bring forth the expert they were given the time an opportunity they were not able to do so the court properly granted summary judgment upon the facts of the underlying  and that granting of summary judgment should be affirmed thank you thank you justice hudson do you have any questions you not have any additional questions thank you justice brennan you have any additional any response or objection by the appellate the appellee did not object did not file a response of seating there was no argument set the court did not hear the motion the court just directed a short period of time the court had many other remedies that they could have placed in light of a defendant with no objection on the record and the defendant also did not object to the motion to extend the trial date in fact once the court did a month and one thousand dollars days did strike the trial date the  in and filed a motion to reinstate the trial date so on the bed be wary st date they wanted the court to reinstate a march th there were many other things that this court could have done there does not show that they worked on my one request for an extension i also wanted to do discovery filed my motion and the court set the motion for on my motion to compel and when the appellee opposed that motion in a written motion against it the court denied their written motion so i had every anticipation that this court was going to permit the motion to compel and the fact that the motion for summary judgment had actually not been sent for argument also i'd like to note that i was not in any way deliberately or willfully  paying attention to this case and not showing up on march th the counsel has indicated that there was an hour and a half delay and i sent substitute counsel a substitute counsel came in and this was a status date i was not asking for anything but to have my motion to compel which is set in two weeks just to make certain everything was straight to that and i did expect the court that argument on the motion for summary judgment at that time i would have had the materials and the motion again without their failure to have jack in the court had many alternatives they disposed of this case against the named defendants they  the court only allowed a short period of time to get expert twenty eight dollars day time period and even so with giving the twenty eight dollars days to obtain an expert on the  st complaint the original complaint the trial date could not have gone forward in fact the trial date would not have on forward although there are cases that do indicate a summary judgment granted where there was no expert disclose those cases also notably always note whether there was a trial date set or not and in any of the cases that i have referred to there was not a that time she should have objected to the motions and in addition it was she told the court in another case initially that the march th trial date could go to the other case as opposed to this case and i believe that telegraphed clearly her understanding that we are going to go forward with a motion to compel i collect that information had i had the adequate extension of time twenty eight days is very short when i have to get an expert on to alternate theory so i would have to have my two hundred and thirteen x three be willing to testify on the original complaint but also have that individual not disclose on paper but certainly in agreement with me that they would also testify to the amended complaint if allowed to be filed adequate  arguments and at the case be remanded back so that i may have my motion to compel her to disclose to thirteen f three witnesses on whichever complaint and move forward i thank you very much for your time today original trial date was set in march of two thousand and eighteen to commence in march of two thousand and nineteen that was about to gear i'll get that date for you you don't know that's ok when was the motion for s motion was d decided in march and the trial was scheduled in the same year is that correct notice or that trial was scheduled in march i'm sorry i didn't i didn't recall the nd part question your question what's the time difference between the grant of the summary judgment and the judge will for trial that you are referring to ok so the trial that i was referring to on march st two thousand and eighteen was set for march th two thousand and nineteen when motion for summary judgment was and these are all marked states was granted on march th of two thousand and nineteen that would have been three days after the beginning of that trial however about twenty seven days before the court had finally ruled placed on the the trial calendar a year in advance and thereafter depositions taken so that the defendants would know what the allegations were expert yet so how could they even depose the expert in a timely fashion in order to prepare for trial which in some jurisdictions i believe means that there's a discovery cut off and they would not be allowed to discover what your expert was going to say so now they're going to trial because without the ability to defend themselves against the expert that is now going to testify in the same month under the circumstances does that make sense to you i am i am i understand the concern with the timing that is why in august of two thousand and eighteen i filed my motion to continue the two hundred and thirteen f three schedule and there would have been my anticipation and my request was that it be continued until after i was able to obtain the discovery that i needed it would be anticipated that i would have had at least a sixty or ninety day extension however even at that date august th two thousand and eighteen the trial date was would not have been able to move forward yes the appellee certainly is intitled to know what they have to defend against they are also required to provide full disclosure and to respond to all to a one k efforts including very long pro tac protracted memos i do the yes the case was set a year in advance  through my since two thousand and one i have never had any medical malpractise or nursing home negligence case proceed to trial on the initial trial date that the court set that has not occurred the court there has always been a delay and i felt it was reasonable to ask for additional time for my to thirteen f three that was not opposed in any written or oral manner and respectfully i understand the concern but i believe that it would be appropriate to have allowed me to have the extension then i would have been able to respond to the motion summary judgment an appropriate manner and during that time one of the reasons a motion for summary judgment took so long to get ruled on is that be a pelley herself went in and asked for and follow the motion asking for a delay in a briefing schedule on the motion for summary judgment that is one of the reasons that the motion got put out so far in november of two thousand and eighteen after filing a motion in august of two thousand argument date was never reset there was not an oral argument and i do understand that his court's discretion to determine whether there is an oral argument however i'm also aware  that is correct when i could not get a minute it's correct and therefore does that mean that or a stablish that arguments relating to the need for the filing of an amended complaint additional discovery and the failure or none failure to name an expert would basically become moot permitted to disclose however the court did allow the motion to compel over objection and i fully anticipated we would be moving forward with a motion to compel and at that time i would get the discovery and again a motion for leave to file an amended complaint however you are correct in the manner you stated that it would move to the issue had i not been continuing to pursue the discovery and then would have gone back again to f