IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00984-COA

VIRGINIA ROSS, ON BEHALF OF ALL BENEFICIARIES OF SCOTT PATRICK ROSS, DECEDENT; AND THE ESTATE OF SCOTT PATRICK ROSS, BY AND THROUGH VIRGINIA THORPE ROSS, PERSONAL REPRESENTATIVE APPELLANTS

v. DR. MATTHEW C. WALLACK, INDIVIDUALLY AND/OR D/B/A COASTAL HEADACHE AND PAIN MANAGEMENT CENTER APPELLEE

DATE OF JUDGMENT: 06/18/2013 TRIAL JUDGE: HON. ROBERT P. KREBS COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: EDW ARD O. MILLER ROGER W AYNE W O ODALL ATTORNEYS FOR APPELLEE: JESSICA B. MCNEEL JOHN A. BANAHAN MICHAEL RILEY MOORE NATURE OF THE CASE: CIVIL - W RONGFUL DEATH TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE DISPOSITION: AFFIRMED – 11/03/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. IRVING, P.J., FOR THE COURT: ¶1. Virginia Ross, on b e half of all benef iciaries of S cott Ross, and S cott Ross’s estate, byand t hrough Virginia T horpe Ross, 1 appeal f rom the sum m ary judgm e nt grant e d b y t h e Jackson County Circuit Court in f a vor of the a

ppellee, Dr. Matthew C. W allack, i ndividually and/or d/b/a Coastal Headache and Pain Managem ent Ce n ter. Virginia argues that the circuit court erred in f

inding that she had not tim ely f iled answers to Dr. W allack’s requests f or adm i ssions. ¶2. Finding no error, we af f irm

. FACTS ¶3. On Novem

ber 3, 2010, Virginia f

iled a com

p laint a gainst Dr. W a llack, alleging that he caused the wrongf

ul death of

Scott, her son. In her com plaint, Virginia alleged that Dr. W a llack had prescribed Scott an excessive am ount o f m edication without a legitim ate

m edical purpose a nd that, u ltim ately , those m e dications c aused Scott’s death. Af ter serving his f irst set of i nterrogatories and requests f or production of d ocum ents o n Virginia, Dr. W a llack served Virginia with requests f or adm issions. At the sam e tim e, Dr. W allack f iled

a “ notice of discovery f

iling” w ith the circuit court clerk. T his docum ent indicated that the requests f or adm issions h ad been served on Virginia, and it included a certif icate o f service showing that the “ notice of discovery f iling” had a lso been served on Virginia. On May 16 2011, Virginia answered Dr. W allack’s f irst s e t of interrogatories and requests f or production of docum ents. However, she did not respond to his requests f o r adm issions. ¶4. On February 8 , 2013, Dr. W allack, still having not received Virginia’s responses to his requests f

or adm issions, f

iled a m otion f

or sum m ary judgm ent and a m otion f or the circuit

1 W e ref er t o the Appellants collectively a s Virginia unless the context dictates otherwise. 2court to deem the requests conclusively established under Rule 36 of t he Mississippi Rules

of Civil Procedure. In response t o Dr. W allack’s m otion f o r sum m ary judgm ent, on February 21, 2013, Virginia f

i led a response and stated that she h a d n e v er received D r. W allack’s requests f or adm issions. Also in response, Virginia answered Dr. W a l la c k ’ s r e quests f or adm issions, still asserting that she had never received them prior t o receiving his m otion f or

sum m ary judgm ent. However, Virginia f ailed to f i le either a m otion to withdraw the earlier adm issions or a m otion f or leave to f

ile a n out-of

-tim e response t o t h e r e q u e sts f or adm issions. ¶5. Af ter a hearing, the c ircuit c ourt deem e d the adm issions a dm itted and entered an order granting sum m ary judgm ent in f avor of Dr. W allack. Thereaf ter, Virginia f

i led a m otion to alter o r am end or f

or reconsideration and attached: (1) a report f rom R o bert W iem er, M.D., stating that, in his o pinio n , D r . Wa llack had violated the standard of care, (2) an af f idavit f rom Jana Montgom ery , the secretary who was responsible f

or opening the m ail at the law f irm that represente d V i r g i n ia, s tating that she h ad n ever seen or opened a request f or adm issions f

rom Dr. W allack, and (3) an af f idavit f rom R

. W ay

ne W oodall, one of Virginia’s attorney s, that described his law f irm ’ s practi c e i n h a n dling discovery

. On J une 16, 2014, the circuit court denied the m otion, leading to this appeal. DISCUSSION ¶6. Motions f

or sum m a ry j udgm ent are reviewed d e novo. Byrd v. Bow i e , 9 3 3 So. 2d 899, 901 (¶5) (Miss. 2 006) (citation om i tted). “ C a se l aw generally dem ands that in a

m edical[ -]m alpractice action, negligence cannot be e stablished without m edical testim on y

3that the def end a n t f ailed to use ordinary skill and c are.” P almer v. B iloxi Reg’l Med. Ctr.
Inc. , 564 So. 2d 1 346, 1355 ( M i s s . 1 9 9 0 ) (citation and internal q uotation m arks o m itted). Likewise, the plaintif

f bears the burden of proof in a m edical[

- ]m alpractice action. Johnson

v
. P a c e , 1 2 2 So. 3d 66, 6 8 (¶8) (Miss. 2013). Theref ore, in m edical[ -]m alpractice actions where the plaintif

f lacks e xpert testim ony on essential elem ents and there is no exception f or the plaintif

f ’s f ailure to have an expert, t he def endant is entitled to sum m ary j udgm ent. See Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645, 650 (¶15), 653 (¶24) (Miss. 2009). It is well established that “[ m ] atters of discovery are lef t t o the sound discretion of t he trial court, and d iscovery orders will not be disturbed unless there ha s b e e n a n abuse of discretion.” Scoggins v. Baptist Mem’l Hospital-DeSoto, 967 So. 2 d 646, 648 ( ¶8) (Miss. 2007) (citation and internal quotations m arks o m itted). W hen a trial court m akes a f actual determ i nation as
to w hether a party received a discovery request, the d ecision will n ot be r eversed u nless it is

m anif estly wrong. Byrd , 933 So. 2d at 904 (¶14). ¶7. The r ecord r eveals that the f ollowing requests f

o r a d mi s s i o n s w e r e subm itted to Virginia and f

iled on May 6, 2011: REQUEST F OR ADMISSION NO. 1: Please adm i t t h a t with regard to the care and t reatm ent p rovided to the decedent, Scott R oss, y ou have no qualif ied m edical expert w ho is expected to testif y at the t rial of t his case t hat Matthew C. W a l l a c k , M.D.[ ,] deviated f rom the applicable standard of care f or a neurologist practicing pain m anagem ent . . . during his care and treatm ent of Scott Ross. REQUEST FOR ADMISSION S NO. 2: Please a dm it that y ou have no qualif ied m edical expert who is expected to state an opinion at trial t h a t any alleged deviation f

rom the applicable s tandard of care on the part of Matthew C. W allack, M .D.[ ,] p roxim ately caused or contributed to S cott Ross’s d eath.

4¶8. Rule 36 of the Mississippi Rules of

Civil Procedure states, in pertinent part: (a) Request f

o r A dm issi on . . . . Each m atter of which a n a d m ission is requested shall be separately set f orth. T he matter is admitted unless, within thirty days after service of the request, or within such shorter or l onger t ime as t he court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by t he party or by his attorney , but, unless the court shortens the tim e, a def

endant shall not be re q u i r e d t o serve answers or o bjections bef ore the expiration of f

orty -f ive day s af

ter service of the sum m o ns upon him

. (b) Ef f ect of Adm ission. Any matter admitted under this rule is conclusively e stablished unless the court on motion p ermits withdrawal or amendment of the admission

. Subject to the provisions g o v e r n ing am endm ent of a pre-trial order, the c ourt m ay perm it withdrawal or am endm ent w hen the presentation of the m erits of the action will be subserve d t h e r eby and the party w ho obtained the adm i ssion f

ails to satisf

y the court that withdrawal or am endm ent will p rejudice him in m aintaining his a ction o r d ef ense on t he m erits. Any adm issi o n ma d e b y a p arty under this rule is f or the purpose of the pending action only and is not an adm ission by him f or any o ther purpose nor m ay it be used against him

in any other proceeding. (Em phasis added). ¶9. Virginia did not answer the requests within thirty day s, as required by Rule 36(a). Virginia argues that she subm itted her answer within thirty day s of receiving the m otion f or

sum m ary judgm ent, which, according to her, was also the f i rst t im e that she had received a copy of the requests f

or a dm issions. 2 However, t h e circuit court n oted that Virginia never f iled a m otion to withdraw or am end the adm issions as contem plated by Rule 36(b). ¶10. In Montgomery v
. Stribling , 115 So. 3d 823, 828 (¶15) ( Miss. Ct. App. 2 012) (quoting Deblanc v. Stancil , 814 So. 2d 796, 800 (¶17) (Miss. 2002)) (em phasis in original) (internal quotation m arks om itted), this C ourt explained that “ the rule of law in this state i s that Rule

2 Dr. W allack attached a copy o f his requests f or adm issions to his m otion f or sum m ary judgm ent. 536 is t o be enf orced according to its term s. M atters a dm itted b y d ef ault under Rule 36(a) are established unless and u ntil the trial court allows am endm ent o r w i thdrawal by m o tion under Rule 3 6(b).” In Montogomery , we reversed the trial court’s judgm ent i n f avor of Stribling, the appellee, because Stribling h ad not m oved to am e nd or withdraw the a ppellant’s requests f o r a d m ission that had becom e conclusively adm itted prior t o the judgm ent. A s such, the circuit c ourt erred in ignoring the f act that t he a dm issions were d eem ed a dm itted by operation of law. Id. at 831 (¶27). ¶11. Here, the circui t c o u r t did not ignore the f act that the adm issions were deem ed adm itted by operation of law and, theref ore, did not err. As seen in the record, the m otion f or sum m ary judgm e nt included, as an exhibit, the certif icate of service sent w ith the requests f or adm ission as evidence that Dr. W allack did send the requests f or adm ission t o Virginia. Wh i l e Rule 36(b) allows a dm issions to be withdrawn in som e instances, the proper procedural m echanism to accom plish that i s to f

i le a m otion askin g t h a t the adm issions be withdrawn. Because Virginia never f iled a m otion to am end or withdraw, the circuit court could not exercise its discretion to allow the adm issions to be withdrawn. ¶12. Once the adm issions were d eem ed adm itted, by operation o f l aw, the f ollowing f

a c ts

were conclusively established: (1) Virginia did n ot have a qualif ied m e dical expert who was expected to testif

y at the t rial of this case that Dr. W allack dev i a t e d f r om the a pplicable standard of care f

or a neurologist practicing pain m anagem ent d uring his c are and t reatm ent of S cott; and (2) Virginia did not have a qualif ied m edical expert who was expected to state

an opinion at trial that any alleged deviation f rom the applicable standard of care on the part of Dr. W allack proxim ately caused or contributed to Scott’s death. A s such, the t rial court 6did not err in granting sum m ary judgm ent in f

avor of Dr. W allack. ¶13. THE J UDGMEN T O F T HE C IRCUIT COURT OF JACKSON COUNTY IS AFF I R MED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAX WELL, FAIR AND WILSON, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT S E P A RATE WRITTEN OPINION.

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