FILED

December 9, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

ROBERT L. MUSGROVE AND ) C/A NO. 03A01-9707-CV-00301

JEWELL MUSGROVE, )

) SCOTT CIRCUIT

Plaintiffs-Appellants, )

) HON. CONRAD TROUTMAN,

v. ) JUDGE

)

DAVID B. COFFEY, M.D., AND )

OAK GROVE PRIMARY CLINIC, )

INC., ) AFFIRMED 

) AND

Defendants-Appellees. ) REMANDED

JAMES L. MILLIGAN, JR., Knoxville, for Plaintiffs-Appellants.

R. FRANKLIN NORTON and GARY G. SPANGLER, Knoxville, for DefendantsAppellees.

O P I N I O N

Franks, J.

In this medical malpractice action the Trial Judge granted defendants

summary judgment and dismissed the action with prejudice, pursuant to T.R.C.P. Rule

41. Plaintiffs’ issue on appeal is that Trial Court erred in holding that they had not

complied with his orders and in refusing to grant relief from his order.

By way of background this action went to trial on September 17, 1996,

before a jury. At trial, plaintiffs offered the deposition of Dr. Joseph Metcalf as an

expert witness to establish standard of care and medical causation. Upon objection by
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defendant, the Court found the doctor was not competent or qualified as an expert, as

required by T.C.A. §29-26-115, and since plaintiff had no other expert witness, the

Court discharged the jury and ruled:

that plaintiffs are given a continuance for a period of ninety (90) days

from and after September 17, 1996 to identify by way of expert witness

interrogatory response, expert witness(es) and also shall make any such

designated expert(s) witness(es) available for Defendant’s discovery

deposition with said ninety (90) day period or otherwise the Court will

entertain Defendant’s Motion to Dismiss or for Summary Judgment.

Plaintiffs’ attorney subsequently moved to withdraw, and on September 30, 1996, the

defendant renewed his motion for summary judgment. The Trial Court permitted

plaintiffs’ attorney to withdraw, and ordered that plaintiffs would have through

November 15 to employ new counsel and reiterated that the deadlines previously

ordered would remain in effect and unchanged. A further hearing was held on

December 19, 1996, and the Court ordered:

It appearing from the record in this cause that the Plaintiffs have not

complied with the Order and Directive of this Court entered on

September 25, 1996, IT IS ORDERED that this cause shall be dismissed

pursuant to T.R.C.P. 41.02 and the Defendant’s pending Motion for

Summary Judgment shall be granted without the requirement of further

hearing or argument unless the Plaintiffs identify their expert witness by

way of expert witness response and also make such designated expert

witness available for discovery within five (5) days of the entry of this

Order.

The Order was entered on that date. On December 24, 1996, plaintiffs’ attorney

“hand-delivered” a letter to defendants’ attorney stating: “I anticipate that Dr. N.M.

Tajen will be available as an expert witness on behalf of the plaintiffs” and gave the

Knoxville address of the doctor, and concluded by saying more details would be given

on “his expected testimony” on December 26, 1996. He also stated he would also

“attempt to” make him available for a deposition on that date. 

On May 6, 1997, the Trial Court granted defendants summary judgment

and dismissed the action with prejudice. In his judgment, the Trial Court incorporated

his memorandum opinion of April 10, 1997, wherein he said: 
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On the 19th day of October 1996, both attorneys appeared before the

Court along with both plaintiffs, at which time plaintiffs’ attorney

announced that his services had been terminated and asking that he be

allowed to withdraw from the case. The Court granted said motion to

withdraw subject to the deadlines and conditions previously set.

On the 18th day of November, 1996, the firm of Milligan & Associates

became the attorney of record for the plaintiffs. The Order of

September 17, 1996 regarding naming of an expert witness was not

complied with within ninety (90) days.

The Court is aware that sustaining of the present Motion is a rather

serious decision, but the Court has bent over backwards to be fair to all

parties in this case, but the Court has been placed in this position by the

actions of the plaintiff in discharging his attorney and not getting

another attorney until thirty (30) days prior to the deadlines previously

set. The Court feels that it is imperative to adhere to the deadlines

previously set.

It was in the discretion of the Trial Judge under the circumstances of this case to order

the involuntary dismissal of the action. This power, however, must be used sparingly,

and with great care. Harris v. Baptist Memorial Hospital, 574 S.W.2d 730 (Tenn.

1978). 

Essentially, plaintiffs argue that “their counsel took all necessary steps

to secure the necessary medical causation testimony prior to the deadlines imposed by

the Trial Court”. The record does not support this assertion. Plaintiffs were faced

with a renewed summary judgment motion which required an expert’s affidavit to

raise a disputed issue of fact. This was not done within the time frame established by

the Trial Judge, nor was it at any time tendered before the case was finally dismissed

several months later. The plaintiffs on this record do not establish that the Trial

Judge abused his discretion in dismissing this action. Clearly, summary judgment was

appropriate in the absence of countervailing evidence establishing a disputed issue of

material fact on the issue of medical malpractice. See Braswell v. Carothers, 863

S.W.2d 722 (Ct. App. 1993).

We affirm the judgment of the Trial Court and remand at appellants’

cost.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Hon. William H. Inman, J.