When we use the singular “plaintiff,” we are referring to Mrs. Bailey. 1

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 4, 2004 Session

PEGGY BAILEY, ET AL. v. DR. JOHN J. TASKER

 Appeal from the Law Court for Sullivan County

No. C34264(M) John S. McLellan, III, Judge

FILED MARCH 17, 2004

No. E2003-00844-COA-R3-CV

Peggy Bailey and her husband, Gary Bailey , sued Dr. John J. Tasker for wrongful conduct in 1

connection with two separate surgeries, one on April 10, 1997, and another on June 24, 1999. The

trial court granted the defendant’s motion for summary judgment, finding that the material filed by

the parties fails to reflect a genuine issue of material fact and that the record before it demonstrates

conclusively (1) that the defendant did not violate the applicable standard of care, and (2) that the

plaintiffs’ claims were filed outside the period of the applicable statutes of limitations and of repose.

The plaintiffs appeal. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Law Court

Affirmed; Case Remanded

CHARLES D. SUSANO,JR.,J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Richard A. Spivey, Kingsport, Tennessee, for the appellants, Peggy Bailey and Gary Bailey.

Jeffrey M. Ward, Greeneville, Tennessee, for the appellee, Dr. John J. Tasker.

OPINION

I.

In December, 1996, the plaintiff was referred to the defendant, a Kingsport OB/GYN, with

symptoms of abdominal pain, irregular bleeding, and other complaints. On January 9, 1997, the

defendant operated on the plaintiff, which operation revealed the presence of free fluid and blood

in the pelvic cavity. The defendant removed the fluid and blood.
June 11, 2000, was a Sunday. See Tenn. R. Civ. P. 6.01. 2

Tenn. Code Ann. § 28-1-105(a) (2000). 3

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When the plaintiff’s symptoms persisted, the defendant recommended a hysterectomy. The

plaintiff testified that, on April 9, 1997, the defendant told her he would perform the hysterectomy

vaginally, but that if, during the procedure, he determined that it was necessary to remove her

ovaries, he would stop the procedure and make an incision in her abdomen. The defendant

performed the hysterectomy on April 10, 1997. Later on the same day, the plaintiff learned that,

contrary to the defendant’s assurance of April 9, 1997, he had in fact removed her ovaries

laparoscopically rather than through an abdominal incision.

Subsequently, on an unidentified date in the same year, the plaintiff, while cleaning the house

of Dr. Alley, the anesthesiologist who was present at the April 10, 1997, surgery, discussed with him

the problems she had experienced since the surgery. The plaintiff told Dr. Alley that “something was

wrong,” at which point Dr. Alley, according to the plaintiff, told her that the defendant should have

“opened up” the plaintiff instead of performing the surgery laparoscopically. 

Due to recurring urinary tract infections and bacterial infections, the plaintiff later saw two

different gynecologists, as well as her family physician, Dr. Haynes. She claims that, on June 11,

1999, Dr. Haynes diagnosed her condition as a punctured urethra. The plaintiff interpreted Dr.

Haynes’ diagnosis to mean that the puncture occurred during her hysterectomy. According to the

plaintiff, Dr. Haynes referred her back to the defendant for evaluation and treatment.

Upon his examination of the plaintiff, the defendant determined that the problems she had

been having were not due to a punctured urethra, but rather were caused by a Skene’s abscess, which

is “an infection of one of several paraurethral glands.” On June 24, 1999, the defendant performed

a second surgery on the plaintiff to drain the abscess.

On June 12, 2000, the plaintiff and her husband filed a pro se complaint against the 2

defendant, alleging (1) that he had committed a battery on her in the performance of the

hysterectomy on April 10, 1997, and (2) that the surgery had been negligently performed.

Approximately one month later, on July 17, 2000, the plaintiffs took a voluntary nonsuit without

prejudice. On July 11, 2001, within the one-year saving statute, the plaintiffs refiled the identical

3

lawsuit, again acting pro se. Thereafter, the plaintiffs retained counsel.

The defendant filed a motion to dismiss, alleging that the plaintiffs had filed their lawsuit

outside the period of the applicable statutes of limitation and of repose. That motion was denied.

On March 14, 2002, the plaintiffs filed a motion to amend their complaint so as to allege that the

defendant failed to advise the plaintiff of the specific risks involved in the April 10, 1997, surgery;

that the defendant fraudulently concealed from the plaintiff his “tortious acts and omissions”; and

that the defendant was negligent in his performance of the second surgery on June 24, 1999. The

plaintiffs’ motion to amend was granted by the trial court on February 26, 2003.
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On September 3, 2002, the defendant filed a motion for summary judgment, supported by

his statement of undisputed facts. On February 26, 2003, the trial court entered an order granting

the defendant’s motion. From this order, the plaintiffs appeal. 

II.

Summary judgment should be granted “when both the facts and the conclusions to be drawn

from the facts permit a reasonable person to reach only one conclusion.” Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn. 1995) (citation omitted). Since a motion for summary judgment presents a

pure question of law, our review is de novo with no presumption of correctness as to the trial court’s

judgment. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44 (Tenn. Ct. App. 1993). Our role is

to decide anew if summary judgment is appropriate.

III.

A.

The issues raised on this appeal can be succinctly stated as follows:

1. Did the trial court abuse its discretion when it denied the plaintiffs’

motion to continue the hearing on the defendant’s motion for

summary judgment?

2. Did the trial court err in failing to find a genuine issue of material

fact as to the plaintiffs’ contention that the defendant fraudulently

concealed his negligent treatment of the plaintiff?

3. Is the defendant entitled to summary judgment based on the statute

of limitations and the statute of repose?

4. Is the defendant entitled to summary judgment based upon his

testimony regarding the standard of care?

B.

The plaintiffs argue that the trial court abused its discretion when it denied their motion to

continue the summary judgment hearing. We disagree.

On May 3, 2002, the trial court entered a scheduling order requiring that all party depositions

be taken on or before May 31, 2002. In addition, the order required the plaintiffs to disclose their

expert witnesses within 45 days following the deposition of the defendant. The defendant was

deposed on May 28, 2002. However, the plaintiffs failed to disclose their expert witnesses during

the period specified in the scheduling order.
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The plaintiffs filed a motion to revise the scheduling order on July 22, 2002, requesting the

trial court to extend until August 21, 2002, the time for disclosure of expert witnesses. On August

21, 2002, the plaintiffs sent a letter to the defendant, naming two of the plaintiff’s treating physicians

as expert witnesses, but the letter did not disclose the opinions of those physicians.

On October 31, 2002, the plaintiffs filed a second motion to revise the scheduling order,

requesting this time that the court extend the time for disclosure of additional expert witnesses to

December 31, 2002. The parties appeared before the trial court on December 20, 2002, to argue the

defendant’s motion for summary judgment. However, due to confusion caused by the misnumbering

of the paragraphs in the defendant’s statement of undisputed facts, the trial court continued the

hearing to February 7, 2003. The court instructed the plaintiffs that they had to have “an expert

witness to properly oppose [the defendant’s] motion.” 

On January 27, 2003, the plaintiffs filed a motion to continue the hearing on the summary

judgment motion until March 7, 2003. In support of their motion, the plaintiffs submitted the

affidavit of their attorney. The affidavit recites that the issues raised in the defendant’s motion for

summary judgment “are sufficiently complex as to require a substantial amount of time for further

research and evaluation”; that plaintiffs’ counsel has “found [himself] in the midst of an especially

busy criminal and civil trial docket”; that office repairs due to flooding have interfered with

counsel’s ability to conduct business; that the heart condition of the plaintiff’s husband has required

counsel to “avoid matters that upset him,” causing counsel to be “disinclined to engage in

discussions with him regarding this matter due to . . . concern for his well-being”; and that counsel

needs more time to find an expert witness. In denying the plaintiffs’ motion on February 7, 2003,

the trial court stated the following:

Based upon the foregoing procedural history and the overall

circumstances and conditions involved in this case, the Court, in the

exercise of its discretion, finds that the plaintiffs’ motion to continue

and for additional time is not well taken and therefore should be

denied.

Under the abuse of discretion standard, 

a trial court’s ruling “will be upheld so long as reasonable minds can

disagree as to [the] propriety of the decision made.” State v. Scott, 33

S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266,

273 (Tenn. 2000). A trial court abuses its discretion only when it

“applie[s] an incorrect legal standard, or reache[s] a decision which

is against logic or reasoning that cause[s] an injustice to the party

complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

The abuse of discretion standard does not permit the appellate court

to substitute its judgment for that of the trial court. Myint v. Allstate

Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998).
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Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). In view of the fact the plaintiffs had more

than nine months from the time of the initial scheduling order until the hearing on the summary

judgment motion to find an expert witness to controvert the deposition testimony of the defendant,

we believe the trial court’s decision to deny the plaintiffs’ motion for yet more time to find an expert

was, at a minimum, a decision about which “reasonable minds can disagree as to [the] propriety of

the decision made.” Gilliland, 22 S.W.3d at 273. In fact, we doubt that few, if any, would find a

continuance justified in this case by the facts set forth in the affidavit. 

The plaintiffs argue, among other things, that they were unable to locate an expert due to the

failure of the defendant to timely provide them with his office notes pertaining to his treatment of

the plaintiff. However, the plaintiffs received these records on November 20, 2002, and, as the

defendant points out in his brief, that gave the plaintiffs 79 days to locate an expert. In any event,

the reasons advanced by the plaintiffs for a delay as set forth in their counsel’s affidavit, standing

alone, are not, in our judgment, sufficient to place the trial court in error for failing to grant a

continuance. In short, we find no abuse of discretion in the trial court’s denial of the plaintiffs’

motion.

C.

We now turn to the dual issues of whether the plaintiffs’ claim of a battery in the first surgery

is barred by the applicable statute of limitations and whether their claim of negligence in the

performance of that surgery is barred by the statute of repose. 

As previously noted, the defendant performed surgery on the plaintiff on two separate

occasions, i.e., on April 10, 1997, and again on June 24, 1999. The plaintiffs’ original complaint

was filed on June 12, 2000. In that complaint, the plaintiffs alleged (1) negligence and, what appears

to be, (2) an informed consent medical malpractice cause of action, all with respect to the April 10,

1997, surgery. While the June 24, 1999, surgery is mentioned in the original complaint, there are

no allegations of a cause of action with respect to that second surgery. The second surgery is

mentioned only in passing and apparently only as a consequence of the earlier surgery. In our

judgment, the gravamen of the original complaint deals exclusively with the first surgery of April

10, 1997.

In the preceding paragraph we stated that the plaintiffs, in their original complaint, alleged

“what appears to be” an informed consent medical malpractice action. We say this because it is not

entirely clear to us whether the plaintiffs are pursuing an informed consent medical malpractice

action or a medical battery suit. See Blanchard v. Kellum, 975 S.W.2d 522, 524-25 (Tenn. 1998).

The allegations in the original complaint and the plaintiffs’ second complaint seem to indicate the

former, while the plaintiff’s testimony essentially consists of an accusation that the defendant

performed a procedure not authorized by her. Regardless ofwhich it is, the plaintiff’s own testimony

reflects that the plaintiffs were aware of sufficient facts on the day of the first surgery, and certainly,
We say “no later than the end of 1997” because the plaintiff could not pinpoint the date of the conversation

4

other than to say that it occurred sometime in 1997.

See footnote 2 to this opinion.

5

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based upon the plaintiff’s conversation with Dr. Alley, no later than the end of 1997, to put the 4

plaintiffs on notice of a cause of action against the defendant for a battery, be it an informed consent

medical malpractice claim or a medical battery claim. The original suit filed June 12, 2000, was

filed more than one year after both dates. Hence, this part of the plaintiffs’ claim is barred by a oneyear statute of limitations. Assuming their claim is one based upon informed consent medical

malpractice, the applicable statute of limitations is the one-year period set forth in Tenn. Code Ann.

§ 29-26-116 (2000). If the plaintiffs are claiming a medical battery, the period of limitations is again

one year, but this time pursuant to the provisions of Tenn. Code Ann. § 28-3-104(a)(1) (2000). As

can be seen, the period of limitations, under both scenarios, is one year. The plaintiffs’ original

complaint was filed on June 12, 2000, more than one year after both of the possible triggering events.

Hence, the “battery” part of their claim was not timely filed.

As to the plaintiffs’ claim that the defendant negligently punctured the plaintiff’s urethra

during her hysterectomy, the plaintiffs assert that they did not become aware the urethra had been

punctured in that surgery until June 11, 1999, when, according to the plaintiff, her family physician,

Dr. Haynes, revealed this fact to her. If this be the case, the plaintiffs had until June 12, 2000, to 5

file suit as to the negligence claim in order to satisfy the applicable statute of limitations. Suit, in

fact, was filed on June 12, 2000. This filing, however, while satisfying the statute of limitations, is

outside the three-year period of the statute of repose. That period expired on April 10, 2000. In

order to avoid the barring effect of the statute of repose, the plaintiffs contend that the defendant

fraudulently concealed his negligence. They rely upon the “fraudulent concealment” language of

Tenn. Code Ann. § 29-26-116(a)(3) to establish the timeliness of their suit, which, according to

them, was filed “within one (1) year after discovery that the cause of action exists.” Id. The crux

of the plaintiffs’ argument is that the defendant punctured the plaintiff’s urethra during the April 10,

1997, surgery; that he knowingly concealed this fact from the plaintiff; and that this “fraudulent

concealment” tolled the running of the statute of repose. 

Tenn. Code Ann. § 29-26-116(a)(3) provides for the tolling of the statute of repose for

“fraudulent concealment on the part of the defendant.” When faced with a facially-valid defense of

the statute of repose, a plaintiff must establish a ground for tolling the statute. See Green v. Sacks,

56 S.W.3d 513, 518 (Tenn. Ct. App. 2001). 

The Supreme Court has addressed the elements of a fraudulent concealment claim thusly:

[A] plaintiff in a lack of informed consent case (or any other medical

malpractice case) attempting to toll the statute of repose contained in

[Tenn. Code Ann. §] 29-26-116(a)(3) by relying upon the fraudulent

concealment exception to the statute must establish that (1) the health
While the plaintiff’s testimony regarding her conversation with Dr. Haynes is hearsay when offered to prove

6

the truth of the statement that the plaintiff’s urethra was punctured in the first surgery, it is admissible to prove when the

plaintiffs first learned of this fact vis-a-vis when the statute of limitations began to run on their negligence claim. This

is because the subject evidence is relevant on the issue of when the plaintiffs were first put on notice of their cause of

action. Since, with respect to notice, the plaintiffs are not offering the evidence to prove the truth of the matter asserted

in the conversation, the evidence is not hearsay and hence not barred by the hearsay rule. See Thompson v. Adcok, 63

S.W.3d 783, 793 (Tenn. Ct. App. 2001); see also Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law

of Evidence § 8.01[7] (4th ed. 2000).

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care provider took affirmative action to conceal the wrongdoing or

remained silent and failed to disclose material facts despite a duty to

do so, (2) the plaintiff could not have discovered the wrong despite

exercising reasonable care and diligence, (3) the health care provider

knew of the facts giving rise to the cause of action and, (4) a

concealment, which may consist of the defendant withholding

material information, making use of some device to mislead the

plaintiff, or simply remaining silent and failing to disclose material

facts when there was a duty to speak.

Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn. 1998). 

In the instant case, the defendant testified under oath that the plaintiff’s urethra was not

punctured in the surgery of April 10, 1997. The plaintiffs allege, based upon a conversation that the

plaintiff says she had with her family physician, Dr. Haynes, that the defendant did puncture her

urethra during that surgery.

The plaintiffs did not present the verified testimony of Dr. Haynes or anyone else establishing

that the plaintiff’s urethra was punctured or, if punctured, was done so as a result of any negligence

on the part of the defendant in the April 10, 1997, surgery. Neither the plaintiff’s deposition

testimony regarding her conversation with Dr. Haynes nor the clinical notes of Dr. Haynes filed in

the record, or the two in combination, are legally sufficient to establish either of these facts. In order

to be considered on summary judgment, the proffered proof must be admissible evidence. See Byrd

v. Hall, 847 S.W.2d 208, 215-16 (Tenn. 1993) (“[T]he facts on which the nonmovant relies must be

admissible at the trial but need not be in admissible form as presented in the motion.”) Since none

of the evidence upon which the plaintiffs rely would be “admissible at the trial” to prove that the

plaintiff’s urethra was punctured in the first surgery, that evidence cannot be used to create a 6

genuine issue of material fact on the issue of fraudulent concealment.

Since the only admissible evidence before us establishes that the defendant did not puncture

the plaintiff’s urethra, there is no basis for finding a genuine issue of material fact on the plaintiffs’

allegation of fraudulent concealment. Simply stated, one cannot conceal that which did not occur.

Thus, assuming, as we must in the summary judgment context, that the plaintiffs’ original complaint

as to the negligent performance of the first surgery was filed within the period of the applicable
Tenn. Code Ann. § 29-26-116(a)(3). 7

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statute of limitations, nevertheless, it was filed outside the period of the three-yearstatute of repose.7

Hence, the trial court did not err in dismissing it on summary judgment.

D.

In the plaintiffs’ motion to amend filed March 14, 2002, they assert, for the first time, claims

of malpractice arising out of the June 24, 1999, surgery. Specifically, the plaintiffs claim that the

defendant negligently left surgical gauze in the plaintiff’s body in that second surgery. The plaintiff

asserts that she first learned of this fact in August, 1999, when the defendant told her a nurse had left

gauze in her body during the June 24, 1999, surgery. However, as previously noted, when the

plaintiffs filed their initial lawsuit on June 12, 2000, there was no mention made of a claim for

malpractice against the defendant arising out of the June 24, 1999, surgery. The first time such a

claim is mentioned is in the plaintiffs’ motion to amend. Accordingly, the plaintiffs’ action is timebarred by the one-year statute of limitations, unless the plaintiffs can show that the new allegations

in the amended complaint with respect to the June 24, 1999, surgery relate back to a claim asserted

in a still-pending pleading filed within one year of August, 1999.

Tenn. R. Civ. P. 15.03 provides, in pertinent part, as follows:

Whenever the claim or defense asserted in amended pleadings arose

out of the conduct, transaction, or occurrence set forth or attempted

to be set forth in the original pleading, the amendment relates back to

the date of the original pleading.

The plaintiffs contend that, by referencing the June 24, 1999, surgery in their original complaint,

they focused the defendant’s attention on that surgery in a way that was sufficient to compel a

holding that the allegations with respect to the June 24, 1999, surgery in the motion to amend relate

back to the date of the original complaint. We disagree with the plaintiffs’ approach to the issue of

relation back under Rule 15.03.

It is clear to us that the proper application of Rule 15.03 in this case focuses on the second

complaint filed on July 11, 2001, and not on the first complaint filed on June 12, 2000. This is

because it is the second complaint – the pending one – that the motion seeks to amend. We believe

that Rule 15.03 necessarily brings into play the complaint sought to be amended and not an earlier

complaint long since dismissed.

What we said earlier about the reference to the second surgery in the plaintiffs’ first

complaint can also be said with respect to the same reference in the second complaint filed on July

11, 2001. This is because the two complaints are identical. Therefore, because the first surgery of

April 10, 1997, is the sole “conduct, transaction, or occurrence” out of which the claims in the

complaint of July 11, 2001, arose, the matters pertaining to the second surgery as set forth in the
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motion to amend do not arise out of the factual predicate in the July 11, 2001, complaint, and,

therefore, the doctrine of relation back does not apply. See Gamble v. Hospital Corporation of

America, 676 S.W.2d 340, 347 (Tenn. Ct. App. 1984) (holding that “although the subsequent

operation might arise out of the ‘conduct, transaction or occurrence’ in the original pleading, the

claim of negligence in the second operation did not arise out of the ‘conduct, transaction or

occurrence’ set out in the original pleading”) (emphasis in original). The plaintiffs’ claim with

respect to the June 24, 1999, surgery accrued, under the plaintiffs’ theory of the case, in August,

1999. The assertion of their claim in the March 14, 2002, motion to amend falls well outside the

one-year statute of limitations in Tenn. Code Ann. § 29-26-116. 

E.

Finally, the plaintiffs challenge the trial court’s decision to grant the defendant summary

judgment based upon his testimony that he was familiar with the applicable standard of care and that

he did not violate it. 

In order to prevail at trial in a medical malpractice case, a plaintiff is required to prove,

through expert testimony, the following:

(1) The recognized standard of acceptable professional practice in the

profession and the specialty thereof, if any, that the defendant

practices in the community in which the defendant practices or in a

similar community at the time the alleged injury or wrongful action

occurred;

(2) That the defendant acted with less than or failed to act with

ordinary and reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission,

the plaintiff suffered injuries which would not otherwise have

occurred.

Tenn. Code Ann. § 29-26-115(a) (Supp. 2003); see also Tenn. Code Ann. § 29-26-115(b) (Supp.

2003). Furthermore, a defendant will not be presumed negligent, and a jury must be “instructed that

injury alone does not raise a presumption of the defendant’s negligence.” See Tenn. Code Ann. §

29-26-115(c) & (d) (Supp. 2003).

In the defendant’s deposition, he testified that he is familiar with the standard of care for

practicing gynecologists in the Kingsport area and that he complied with that standard of care in his

treatment of the plaintiff. Furthermore, the defendant established through his own testimony that

he caused no injury to the plaintiff which otherwise would not have occurred, and that the plaintiff

did not have a punctured urethra following the April 10, 1997, surgery.
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Because the defendant negated, through his deposition testimony, all of the essential elements

of the plaintiffs’ case, the burden of proof shifted to the plaintiffs to prove, through expert medical

testimony, the elements set forth in Tenn. Code Ann. § 29-26-115(a). However, the plaintiffs failed

to provide the court with any expert testimony on these points. Instead, the plaintiffs attempted to

negate the testimony of the defendant by calling into question the defendant’s credibility. 

In his deposition, the defendant was asked if he had been involved in other lawsuits. The

defendant mentioned six other lawsuits, all related to medical malpractice. When asked if there were

others, the defendant stated that “[t]here may be more of them” and “[t]hat’s all I can recall right

now.” The plaintiffs, pointing out that the defendant had been involved – both as a plaintiff and a

defendant – in over 60 lawsuits of various types in Sullivan County, argue that the defendant failed

“to answer truthfully questions about his involvement in other lawsuits.” In addition, when asked

if he had ever been charged with any crimes, the defendant responded only that he had received

speeding and parking tickets. The plaintiffs point out that, in Sullivan County, “there were two

misdemeanor criminal cases naming him as a defendant and these involved wildlife violations.” 

Based upon the foregoing, the plaintiffs contend that the defendant is not to be believed and

that, as a result, his testimony with respect to the standard of care should be considered controverted

for the purposes of summary judgment. The plaintiffs rely upon the case of Knapp v. Holiday Inns,

Inc., 682 S.W.2d 936 (Tenn. Ct. App. 1984), which provides that “doubt as to the credibility of

material witnesses will create a genuine issue of material fact sufficient to render granting a summary

judgment improper.” Id. at 942. We do not believe that Knapp has precedential value in the instant

case. Knapp involved the liability of the owner of a cocktail lounge for the wrongful death of an

individual whose death allegedly resulted from the negligent driving of a co-defendant who had been

drinking at the cocktail lounge just prior to the accident. Id. at 938. In Knapp, all known witnesses

to the co-defendant’s time at the cocktail lounge testified on summary judgment in support of the

position of the owner of the lounge. Id. In rejecting the lounge owner’s argument that it was entitled

to summary judgment, we said the following:

This case presents a clear situation where a summary judgment is not

proper because the outcome of this case rests solely upon the

credibility of the witnesses who can be considered competent to

testify from personal knowledge about [co-defendant] Norman Lane’s

demeanor and conduct while he was at Chuggers prior to the fatal

accident. Mr. Knapp squarely challenged the credibility of these

witnesses in the trial court and has sufficiently called the credibility

of these witnesses into question to create a genuine issue of material

fact. 

Id. at 943.

In Knapp, the witnesses whose credibility was attacked were all fact witnesses and their

credibility or lack thereof was related directly to their versions of the events of the evening in
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question. In the case at bar, the issue of the defendant’s credibility does not go directly to the

defendant’s expert testimony regarding whether he violated the standard of care in his treatment of

the plaintiff. The credibility issue in the instant case is peripheral to the substance of the defendant’s

testimony.

Because the plaintiffs failed to come forth with expert medical testimony to establish the

required elements of their case when faced with the defendant’s testimony negating those elements,

we hold that the trial court did not err in granting summary judgment to the defendant. 

IV.

The judgment of the trial court is affirmed. This case is remanded to the trial court for the

collection of costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the

appellants, Peggy Bailey and Gary Bailey. 

_______________________________

CHARLES D. SUSANO, JR., JUDGE