# FILED

December 15, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

L. KATHERINE JARRED, M.D. ) ) Plaintiff/Appella

nt, ) Shelby Law No. 63943-4 T.D.

) v. ) ) KITSIE HENDRIX, D.D .S. ) Appeal No. W1998-0 0550-COA-R3-CV ) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE JAMES E. SWEARENGEN, JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : David Lumb Gary K. Smith Memphis, Tennessee Marcy L . Dodds Memphis, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. DAVI D R. FAR

MER, J.OPINION

This is a dental malpractice case. The trial court granted summary judgment to the defendant dentist based on the plain

tiff’s failure to

submit sufficient e

xpert medical tes

timony to support

her claim. The plaintiff the

n filed a motion to

alter or amend the summary judgment order, which was denie d on the basis that the information submitted in support of the motion to alter or amend was available prior to the grant of summa

ry judgment. We af

firm both the grant of summary judgment and the denial of p

laintiff’s motion to

alter or amend th

e judgment. Plaintiff/appella

nt, Katherine Jarred (“Jarred”), filed her original complaint on August 16, 1994, and filed an amended complaint approximately two months later. Jarred a lleged that in

1992 defendant/appellee , dentist Dr. Kitsie Hendrix (“Hendrix”), improper ly inserted eight dental implant s into her mouth. Jarred asserte d that Hendrix fa

iled to prepare a proper diagnosis or treatment plan and failed to consult a qualified dentist to do the necessary reconstructive dental wo rk . Jarred claimed that the implants did not support a fixed br idge as intended, and that this was a result of Hendrix’ negligence. On September 5, 1997, three year s af ter the original complaint was filed, Hendrix filed a motion for summary judgment, arguing that Jarred had failed

to produce medical evidence sufficient to satisfy the requirements for a claim of medical malpractice. Approximately three weeks later, Jarr ed responded to the motion by filing the affidavit of Dr. Roger Craddock (“Dr. Craddo ck”), a dentist practicing in Memphis, Tenn e ssee, who had agreed to act as Jarred’s expert witness. Dr. Craddock stated in his affidavit that Hendrix had deviated from the standard of care as it existe

d in 1992 at the planning phase of the implant work she performed on Jarred. Dr. Craddock was to be deposed by Hendrix on April 9, 1998. On the day of the deposition, Jarred’s attorney claims that Dr. Craddock attempted

to withdraw from the case because of pressure he had received from the local dental community about testifying as an expert witness on behalf of

a plaintiff in a dental malpractice case. Dr. Craddock denies that he ever told Jarred’s attorney that he had been pressured by the dental community. He states that he simply told Jarred’s attorney the day of the deposition that he did not want to testify because he did not think that Jarred had a good

case. Dr. Craddock went ahead with the deposition, but his testimony included conclusions different than those

in his affidavit. D

r. Craddock testif

ied in his deposition

that he was not abl

e to conclude that Hendrix fell below the standard of care in 1992 because he did not know the status of2

Jarred’s mouth in 1992. Dr. Craddock testifie d that he could

not retrospectiv

ely ascertain th

e state of Jarred’s mouth in 1992 based on the treatment notes and on x-rays of Jarred’s mouth dating back to August 1989. After Dr. Craddock’s deposition, Hendrix immediately renewed her origin al motion for summary judgment. She filed a supplemental memorandum in support of the mo tion which included portions of Dr. Craddock’s deposition testimony. The memorandum incorpor ate d the same legal argument contained in Hendrix’ original motion for summary j udgment, i.e. that J arred failed to produce medical evidence sufficient to support her claim. A hearing on the motion was set for May 8, 1998. On May 4, 1998, Jarre

d filed the affida

vit of Dr. Gregory E. Tharp (“Dr. Tharp”), a licensed dentist practicing in Jackson, Mississippi. Dr. Tharp’s affidavit stated that he had reviewed

records pertaining to Jarred’s treatment by Hendrix and by other dentists dating back to 1990. From these records, Dr. Tharp concluded that Hendrix had deviated from the standar

d of dental care

in 1992 in her treatment of

Jarred in several respects, including: (1) failing to formulate a clear, concise plan for the replacemen

t of Jarred’s tee

th using the dental i

mplants created by Hendrix, (2) fa iling to

consu lt a restorative den

tist about Jarred’ s specific prosth etic requiremen

ts, (3) failing to c

reate mounted diagnostic casts a nd pre-surgical

trial set-ups, and

(4) failin

g to take a panora

mic radiographic

image of Jarred’s mouth. Dr. Tharp stated in his affidavit that he was familiar with the degree of care exercised by dentists performing implant-related surgery and restorative work “in this part of the country.” Jarred’s attorney delivered Dr. Tharp’s affidavit to Hendrix’ attorney on May 4, 1998, and wrote to him that he “expe

cted to strike [the

pending] summary j udgment motion [bec ause] it now appeared moot.” The motion was not struck, however, and the hearing remained scheduled for May 8. Three days later, Jarred filed a supplemental res ponse t o Hendrix’ interrogatories which summarized the contents of Dr. T harp’s affidavit. Dr. Tharp’s affidavit and his curriculum vitae were attached as exhibits to the interrogatory response. A t the hearing, He

ndrix argued tha

t Dr. Tharp’s af

fidavit was insuff

icient to su

rvive th e motion for summary

judgment becau

se the affidavit d

id not indicate tha

t Dr. Tharp was f

amiliar with the standard of care for impl ant den tistry in 1992, and because it did not state that Dr. Tharp was familia r with the appropria

te standard of ca

re in Memphis, Tenn

essee, or a simila

r commu nity

.3

Jarred argued that

Dr. Tharp had the requisite knowledge of the type of de ntistry involved, and that Dr. Tharp was “familiar with the standard of care in Memphis, because it is a national standard of care.” Jarred argued that the points raised by Hendrix regarding Dr. Tharp’s affidavit were technical points that had never been r aised bef ore, and offered to correct any problems with Dr. Tha rp’s affidavit. Hendrix noted thatJarred’s case had been pending for years, a nd maintained that the motion for summary judgment continued to be based on failure to meet the requirements of Tennessee Code Annotated § 29-26-115. At the conclusion of t

he hearing, the

trial court held th

at the su fficiency of

Dr. Tharp’s affidavit was a question of law, and granted Hendrix’ motion for summary judgment. Jarred arg ued that any deficiencies

in Dr. Tharp’s affidavit could be cured by filing an amended affidavit and asked for the opportunity

to do so. The trial c

ourt permitted Jarr

ed to file an amen

ded affidavit in

order to preserve the issues for appeal. On May 15, 1998, Jarred filed the amended affidavit, also referred to as the “supplemen

tal” affid avit. In this affidavit, Dr. Tharp states that he has performed implant work since 1988, four years before Hendrix’ treatment of Jarred. Dr. Tharp also sta tes that he is

familiar with the standard of care “in 1992 in

communities similar to Memphis where Dr. Hendrix practiced.” A copy of Dr. Tharp’s curric

ulum vitae was atta

ched as an exhibi

t to the affidavit. Subsequently, Jarred

filed a motion under Rule s 59.04 and 60 of the

Tennessee Rules o

f Civil Procedure to alter or amend the trial court’s summary judgment order, or for relief from the summary judgment order, based

on the supplemental affidavit. In this motion, Jarred noted that Dr. Craddock had been Jarred’s expe

rt witness until his de

posit ion , four wee

ks before the heari ng on Hen

drix’ summary judgment motion. When Dr. Craddock purportedly reneged on his testimony in favor of Jarred , Jarred’s attorney w as faced with a s

hort period of time

in which to obtain a

nother expert. Under the time constrain

ts, Dr. Tharp’s a

ffidavit was obta

in ed a few days before the hearing on Hendrix’ motion for summary ju dgment . Jarred’s attorney argued that Hendrix’ attack on the sufficiency

of Dr. Tharp’s a

ffidavit was a sur

prise, noted the su

pplemental affid

avit which alleg

edly cured any prior in

sufficiencies,

and asked the tria

l court to grant re lief from its prior order of summary judg

ment.4

The trial court denied Jarred’s motion to alter or amend the judgment or for relief from the judgment. Jarred now appeals the court’s grant of summary judgment and its denial of the motion to alter or amend. On appeal, Jarred argues that the trial court erred in granting Hendrix’ motion for summary judgment because Jarred was not given thethirty-day notice required unde r the Tennessee Rules of Civil Procedure to

respond to

the summary judgment motion, and because Dr. Tharp’s affidavit wa s sufficient to qualify hi

m to testify

as an expert in support of Jarred’s claim. Jarred also contends that the trial court erred in denying the post-judgment motion under Rules 59.04 and 60 of the Tennessee Rules of Civil

Procedur e because the supplemental affidavit makes it clear that Dr. Tharp was qua lif ied to t est ify. A motion for summary judgment may be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn.R.Civ.P. 56.03. The party moving for summary judgm ent bears the burden of demonstrating that no genuine issue of material fact exists. See Byrd v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993). In conside

ring a motion for su

mmary judgment,

courts must

view the evidence in the light most favorabl e to the non-moving party and must draw all reasonable inferences in the nonmoving part y’s favor. See Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Summary judgment should be granted only when both

the facts and the

conclusions to be d

rawn from the fa

cts permit a reasonable person to reach only one conclusion. See id . We review the trial court’s grant of summary judgmen

t de novo , with no presumption of correctness. See id. Jarred argues first

that the trial court improperly granted summary judgment because she was not given the thirty-day notice required under T en nessee Rules of Civ il Procedure Rule

56.03 in which to respond to He n drix’ claim that Dr . Tharp was not qua

lified to testify as

an expert in this

case . Jarred cites Craven v. Lawson , 534 S.W.2d 653 (Tenn. 1976), for the proposition t hat a motion for summary judgment should not be granted if the party opposing the motion has been denied the opportunity to f ile affidavits or

to amend without a thirty-day interval following the filing of the motion. Id ., 534 S.W.2d at 655. Hendrix counters that Jar

red had known sinc

e Hendrix filed her original summary judgment motion in September 1997 that

the basis for the motion was Jarred’s failure to produce competent medical evidence. Hend

rix asserts that Jarred should have known that Hendrix would challenge the5

adequacy of Dr. Tharp’s affidavit at the hearing because there would have been no other good faith argument upon whic

h Hendrix could ma

intain her reque

st for summary judgm

ent. When Hendrix’ motion for summary judgment was filed in September 1997, Jarred had no experttestimony to support her claim. The stated reason for the motion was that Jarred had “failed to produce any competent medical evidence. .

. which would tend to establish a disputed issue of fact . . . .” Later that month, Jarred filed the affidavit from Dr. Craddock. Dr. Craddock’s dep osition wa s taken in April 1998. After Dr. Craddock’s deposition, Hendrix renewed the same motion for summary judgment and filed a supplemental memorandum in support of the ear

lier summary

judgment motion. I

n the supplemental

memorandum, Hend

rix noted that Dr. Craddock testified in his deposition that Hendrix had not deviated from the appropriate sta

ndard of care in

treating Jarred

. Hendrix argued

that, consequently, Jarred still had not submitted expertmedical proof in support of her claim that met the requirements of Tennessee Code Annotated § 29-26-115. By the time of the hearing on May 8, 1998, Jarred had submitted Dr. Tharp’s affidavit, and

Hendrix argued that Dr. Tharp’s affidavit was insufficient under Tennessee Code Annotated § 29-26-115. From September 1997 forward, the basis for Hendrix’ motion remained the insufficiency of Jarred’s expert medical proof under Tennessee Code Annotated § 29-26-115. The requiremen ts of Section 29-26-115 remained unchanged, and Jarred was not faced with new facts from Hendr ix to which Jarred was required to react. At the hea

ring on He

ndrix’ motion, Jarred encountered only the application of Section 29-26-115 to the medical proof she submitted. Under the circumstances, we do not conclude that the trial court erred in deciding Hendrix’ summary judgme nt motion o n the scheduled hearing date. Jarred next argues tha t the tria l court erred in granting Hendrix’ motion for summary judgment because Dr. Tharp was qualified under Tennessee Code Annotated § 29-26-115. Jarred contends that the trial judge erroneously believed that implant dentistry required qualifications that Dr. Tharp did not possess, and that these qualifications were necessary fo r Dr. Tharp to tes

tify in support of Jarred’ s claim. Regard less of Dr. Tharp’s qua lifications testif

y on implant de

ntistry, Dr.

Tharp’s first affidavit clearly does

not meet the requirements of Tennessee Code Annotated § 29-26-115. Section 29-26-115(a)(1) requires that the plaintiff prove the “recognized standard

of acceptable professional6

practice.

. . in the community in which he practices or in a similar community at the time the alleged injury . . . occurred. . . .” Dr. Tharp’s first affidavit states only that he is “familiar

withthe degree of care normally

exercised by

minimally com

petent . . . dentists

. . . in this part of the cou ntry .” While Jarred argues t

h at the applicable standard of care is a national one, no evidence of this was presented to the trial court. Moreover, the language in the statute is clear; the expert must be familiar withthe standard of care in the community in which the defendant practice s or in a “ similar community.” Jarred’s fi rst affidavit fails to met this requirement. Consequently, we cannot conclude that the trial court erred in granting Hendrix’ motion for summary judgment. We turn now to Jarre

d’s contentio

n t hat the trial court erred in denying her post-judgment motion to alter or amend the summary judgment order. Jarred argues that the trial court should have grantedthe motion because Dr. Tharp’s supplemental aff idavit cured any d

eficiencies co

ntained in the original affidavit. Jarred filed a motion under Rule 59.04 of the Tennessee Rules of Civil

Procedure to alter or amend the judgme

nt, and under Rule 60 of the Tennessee Rules of Civil Procedure for relief from the summary judgment order. A motion under Rule 59.04 may be granted (1) when the controlling law changes before a judgment becomes final, (2) when previously unavailable evidence becomes available, or (3) when, for sui generis reasons, a judgment should be amended to correct a clear error of law or to prevent injustice. See Helton v. ACS Group , 964 F.Supp. 1175, 1182 (E.D.Tenn. 1997) (construing Fed.R.Civ.P. 59(e)). A Rule 59.04 motion should not be granted if it seeks to relitiga

te matters that have already been adjudicated. See Windsor v. A Fed. Executive Agency , 614 F.Supp. 1255, 1264 (M.D.Tenn.1983) (construing Fed.R.Civ.P. 59(e)). Thus, a Rule 59.04 motion should not be granted if the movant seeks to introduce evidence that could have been adduced and presented while the summary judgment

motion was pending. See Helton v. ACS Group , 964 F.Supp. at 1182; Bradley v. McLeod , 984 S.W.2d 929, 933 (Tenn.App. 1998). Rule 60.02 s tates that a cour t may grant relief

from a final judgme

nt for several r

easons, including: (1) mistake, inadvertence, surp rise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extri nsic), misrepres entation, or other

misc onduc t of an adverse party; (3) the judgment is void; (4) t he judgmen t has been satisfied, released or discharged, or a

prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment.7

Tenn.R.Civ.P. 60.02(1) - (5). The decision to grant

either a Rule 59.04 motion, see Donnelly v. Walter , 959 S.W.2d 166, 168 (Tenn.App. 1997), or a Rule 60.02 motion, see Underwood v. Zurich Ins. Co. , 854 S.W.2d 94, 97 (Tenn. 1993), lies within the sound discretion of the trial court. On appeal, the scope of review of a trial court’s disposition

of a Rule 60.02 motio

n is abuse of the trial court’s discretion. See Banks v. Dement Constr. Co. , 817 S.W.2d 16, 18 (T enn. 1991); see also Underwood at 97. Though less clear, several Tennessee cases indicate that a trial court’s de cision concernin

g a Rule 59.04 motion i s accorded the same level of revi ew, even i f the motion is filed after the entry of summary judgment rather than after a trial. See Bradley , 984 S.W.2d at 933; see also Donnelly , 959 S.W.2d at 168; Marr

v. Montgomery Elevator Co. , 922 S.W.2d 526, 527-528 (Tenn.App. 1995); Tuck v. State , No. 03A01- 9510-BC-00355, 1996 WL 310012, at *4, (Tenn.App. June 11, 1996) (citing Esstman v. Boyd , 605 S.W.2d 237 (Tenn.App . 1979)). However, strong consideration should be given to post-judgment motions filed aft er summa ry judgment, rather than after a trial, since the moving party seeks an opportunity

to try his case for the first time. See Schaefer v. Larsen , 688 S.W.2d 430, 433-434 (Tenn.App. 1984); se e also McCorkle v. County of Dyer , No. 02A01-9701-CV-00020, 1998 WL 15547, at *4 - *5, (Tenn.App. Apr. 6, 1998). To support her post-summary judgment motion, Jarred submitted the supple mental affidavit of Dr. Tharp. The supplemental affidavit differed from the original affidavit in these respects: (1) Dr. Tharp did not state in the or i ginal affidavit that he practiced implant dentistry at the time Jarred’s alleged injury occurred, but stated in his supplemental affidavit he has performed implant work “since 1988”; (2) Dr. Tharp stated in the original affidavit that he is familiar with the degree of care exercised by dentists “in this part of the country”, but stated in his supplemental affidavit that he is familiar with the standard of care exerci sed by dent ists “in 1992 in communities similar to Memphis where Dr. Hendrix practiced.” There is no indication in

the record that the information contained in the su

pplemental affid

avit

was “newly discovere

d” or was otherwise unavailable prior to the hearing on Hendrix’ summary judgment motion. At the hearing, Jarred was not faced with facts from Hendrix not previously known to Jarred; a

ll along, Hendrix’ motion has been based on Jarred’s failure to produce expert medical t estimony that met the requirements of Tennessee Code Annotated § 29-26-115. Under thes e8

circumstances,

we cannot conclude that the trial court’s denial of Jarred’s motion to alter or amend the judgment or for relief from the judgment constituted an abuse of discretion. The decision of the tr

ial court is affir

med. Costs are assessed ag ainst Appellant, L. Katherine Jarred, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAWFORD , P. J., W.S.

DAVID R. FARMER, J.