# FILED December 9, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

ROBERT L. MUSGROVE AND ) C/A NO. 03A01-9707-CV-00301 JEWELL MUSGROV E, ) ) SCO TT C IRC UIT Plaintiffs- Appellants, ) ) HON. CONRAD TRO UTMAN, v. ) J UDGE ) DAVID B . C OFFE Y, M.D. , A ND ) OA K G RO VE PR IM AR Y C LIN IC, ) IN C., ) AF FI RMED ) AND Defendan ts-Appellees. ) REMANDED

JAM ES L. M ILLIGA N, JR., Knoxville, for Plaintiffs-Appellants. R. FRA NK LIN N ORT ON and GA RY G . SPAN GLE R, Knoxv ille, for Defendan tsAppellees.

O P I N I O N Franks, J.

In this m edica l malp ractice a ction th e Tria l Judg e gran ted de fend ants

sum mary jud gm ent an d dism issed th e actio n w ith preju dice, p ursua nt to T .R.C .P. Ru le 41. Plai ntiff

s’ is sue on appeal is that Tri al Court e rred i n holding t hat the y had not comp lied with his ord ers and in ref using to gran t relief from his ord er.

By way of bac kground thi s acti on went to trial on September 17, 1996, before a j ury . At trial, plaint iffs offe red the de position of Dr. J oseph Metcalf as an expert wit

ness to e stabl ish st andard of car e and medical causati on. Upon objection by2

defendant, the Court f

ound the doct or was not compete nt or qual ifie d as an expert , as requir ed by T. C.A. §29-26-115, and since pl ainti ff had no other expert wit

ness, the Court dis charged the juryand ruled:

th at p lai nt iff s a re gi ve n a co nt in ua nc e f or a p er io d o f n in ety ( 90 ) d ays from and after September 17, 1996 to identifyby way of expert witness inter rogatory r esponse, expert wit ness(es ) and als o shall make any suc h designated expert(s) w itness(es) available for D efenda nt’s discovery depo sition w ith said n inety (90) d ay period or oth erw ise the C ourt w ill enterta in D efen dant’s M otion to Dism iss or fo r Sum mary Ju dgm ent. Plaintiffs’ attorney s ubsequentl y moved to wit hdraw, and on Septe mber 30, 1996, the defendant r enewed his moti on for summary judgment. The Trial Court permitted plaint iffs’ attorney t o withdraw, and ordered that plai ntiff s would have thr ough No vem ber 1 5 to em ploy new coun sel and reiterated that the dead lines pr eviou sly ordered would r emain in eff ect and unchange d. A further hearing was hel d on December 19, 1996, a nd the Court or dered:

It appearing fr om the recor d in thi s cause that the Plaintiffs have not complied wit

h the Order and Directi ve of thi s Court ent ered on September 25, 1996, IT IS ORDERE D that thi s cause sha ll be di smissed pursuant to T.R.C. P. 41.02 and t he Defendant’s pe nding Motion for Summary Judgment s hall be granted wit hout the requirement

of further hearing or

argument unl ess the Plaintiffs i dentif y their expe rt witness by way of ex pert witness resp onse an d also ma ke such designated expert witn ess av ailable f or disc over y within f ive (5) days of the en try of this Order. The Order was entere d on that date. On December 24, 1996, pla inti ffs’ attorney “ha nd- deliv ered ” a le tter to def end ants ’ atto rne y statin g: “I antic ipate that D r. N .M
. Tajen willbe avail able as a n expert wit ness on behal f of the pl ainti ffs” and gave t he Knoxville a ddress of t

he doctor, and concluded bysay ing more det ails would be given on “his expected testimony” on December 26, 1996. He a lso stated he would also “atte mp t to” m ake him ava ilabl e fo r a d epo sition on t hat d ate.

On M ay 6, 1997, the Trial Court granted defendants summary j udgment and dismis sed the ac tion wit h prejudi ce. In hi s judgment, the Tri al Court i ncorporated his m emo rand um opin ion o f A pril 10, 1 997 , wh erein h e said:3 On the 19th dayof October 1996, both attorney s appeared be fore the Court along wit

h both plai ntiff

s, at which time pl ainti ffs’ attorney announced that

his services had be en termi nated and as king that he be allow ed to w ithdraw from the ca se. Th e Co urt gra nted s aid m otion to with draw subje ct to the dead lines an d con ditions prev iously set. On the 18th dayof November, 1996, t he firm of Mill igan & Associat es became the attorneyof record for the pla inti ffs. The Order of September 17, 1996 regardi ng naming of an expert witness was not complied with within ninety ( 90) days. The Court is a ware that sustai ning of the present Motion is a r ather seriou s dec ision, bu t the C ourt h as be nt ov er bac kw ards to be fa ir to all parti es in t

his cas e, but

the Court ha s been plac ed in thi s position by the acti ons of the pl ainti ff in di schargi ng his attorneyand not getting anoth er attorn ey until thirty (30 ) days prio r to the d eadlin es pre viou sly set. The Court feel s that it i s imperative to a dhere to t he deadli nes prev iously set. It was i n the dis creti on of the Tri al Judge under the ci rcumstance s of thi s case t o order th e in vo lu nt ar y di sm iss al o f th e a cti on . T hi s p ow er , ho w ev er , m us t b e u se d s pa rin gl y, and wit h gr eat c are. Harris v. Baptist Memorial Hospital , 574 S.W.2d 730 ( Tenn. 197 8). Essenti ally , pla inti ffs argue t hat “their couns el took a ll nec essary steps to secur e the neces sarymedical causati on testimony prior t o the deadl ines i mposed by the Tri al Court” . The recor d does not suppor t thi s assertion. Plaintiffs were fa ced with a rene we d sum mary jud gm ent m otion w hich re quired an ex pert’s a ffida vit to rais e a disputed issue of fact. This was not done wit hin the t ime frame est ablis hed by the Tri al Judge, nor was it at anytime t endered befor e the cas e was final ly dismis sed severalmonths later. The pl ainti ffs on thi s recor d do not est ablis h that t he Trial Judge abused hi s discretion i n dismis sing this action. Cl early , summary judgment was appropri ate i n the absenc e of countervaili ng evidence es tabli shing a di sputed i ssue of

ma teria l fac t on the is sue of m edic al m alpr actic e. See Braswell v. Carothers , 863 S.W.2d 722 (C t. App. 199 3).

We affirm the judgm ent of the Trial Court and remand at appellants’ cost.4 __________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M . Goddard, P.J.

___________________________ Hon. W illi am H. Inman , J.