IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00413-SCT TOMEKA HANDY

, INDIV IDUALLY

, AS ADMINISTRATRIX FOR THE ESTATE OF WILLIE HANDY

, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR WILLIE HANDY

v. MADISON COUNTY

NURSING HOME

DATE OF JUDGMENT: 06/26/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER TRIAL COURT ATTORNEYS: W

. ERIC STRACENER, JR. W A LTER ANDREW

NEELY GEORGE CLANTON GUNN, IV W

. DAVIS FRYE COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: W

. ERIC STRACENER, JR. W A LTER ANDREW

NEELY ATTORNEYS FOR APPELLEE: GEORGE CLANTON GUNN, IV W

. DAVIS FRYE NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED - 06/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ. KITCHENS, JUSTICE, FOR THE COURT: ¶1. T o m eka Handy f

iled a com plaint a lleging m edical n e g l i g e n c e a g a i n s t M a d i s o n C o u n t y Nursing Hom e and Madison County , Mississippi. Af ter the county w a s dism issed, the nursing hom e f

iled a m otion f

or s um m ary judgm e nt a rguing that it was entitled to a j udgm entas a m atter of law because H andy had not d esignated an expert witness. Bef o re the sum m ary judgm ent hearing, Handy f iled d esignations of two e xpert witnes ses. The Circuit Court of Madison Cou n t y granted the m otion f or sum m ary j udgm ent b ecause H andy had f ailed to produce s w orn expert testim ony i n opposition to the m otion f or sum m ary judgm ent. Handy f iled a m otion f

o r reconsideration along with e xpert witness af f idavits, but the circuit court denied the m otion f

or reconsideration. ¶2. Handy appeals. It is well establis h e d t h a t, in a m edical n egligence c a se, a plaintif f
cannot survive sum m ary judgm ent without p roducing sworn expert testim ony . Johnson v. P a c e , 1 2 2 So. 3d 66, 68 (Miss. 2013). Handy argues that, in reality , the circuit co u r t dism issed her c ase as a sanction f or a discovery violation, and the harsh sanction of dism issal

am ounted to an a

buse of d iscretion. Because the record establishes that Handy f ailed to m eet her burden of production on sum m ary jud g me n t , and the circuit court did not abuse its discretion by deny ing H an d y ’ s m otion f or reconsideration, we a f f irm the judgm ent of the circuit court. FACTS ¶3. Handy f

iled h e r com

plaint f or w rongf ul death on October 4, 2012, individually and in h er capacity a s the adm inistratrix of the estate of h er m other, W illie Handy , who wa s a resident of

the nursing hom e f

rom August 25, 2008, through the date of her death on April 12, 2011. The suit was f

iled on behalf of all the decedent’s wrongf ul death benef

iciaries. Handy alleged that the def e ndants had breached the applicable standard of care by f ailing to prevent or detect a bowel o bstruction, which proxim ately h ad caused W illie Handy ’s death

2f

rom the bowel o bstruction and sepsis. She attached h er notice of claim under the Mississippi
Tort Claim s Act. Also, Handy attached her counsel’s certif ication that he had consulted an expert who w as qualif

ied “to give expert testim ony as t o the standard of care or negligence.” ¶4. The n ursing hom e f iled an answer on Decem b er 1 4 , 2 0 1 2

. Also on Decem ber 14, 2012, the nur s i n g h o me f i led a notice of service of i nterrogatories propounded t o Handy

. 1
Af ter f iling its answer on January 31, 2013, Madison County was d ism isse d w i thout
p r e j u d i ce by agreed order on M arch 19, 2013. An agreed scheduling order was entered on March 19, 2013, providing f o r Handy ’s experts to be designated on or bef ore Septem

ber 13, 2013; f or the nursing hom e’s experts to be designated o n or bef o re October 1 4, 2013; and f or all discovery to be com

plete on or bef

ore January 10, 2014. On May 22, 2013, Handy served the nursing hom e with r equests f or production of docum ents and a f irst set of interrogatories. The nursing hom e s erved Handy with its d iscovery res p o n ses o n Septem ber 6, 2013. On
Novem ber 7, 2 013, an am ended agreed scheduling order was entered providing f or Handy ’s experts to be designated on or b e f ore Novem

ber 15, 2013; f

or the nursing hom e’s experts to be designated on or bef

ore Decem

ber 15, 2013; a n d f

or all discovery to be com plete on or bef ore February

10, 2014.

1 A p arty m ay , th ro u g h in terro g ato ries, o b tain d i sco v ery o f th e id en tity o f a n y ex p ert w i tn ess w h o m a n o t h e r p arty ex p ects to call at trial an d th e su b j ect m atter o n w h ich th e ex p ert is ex p ected t o t e s t i f y , alo n g w ith “th e su b s tan ce o f th e f acts an d o p in io n s to w h ich th e ex p ert is ex p ected to testif y an d a su m m ary o f th e g ro u n d s f o r each o p in io n .” M .R

. C .P

. 26 ( b) ( 4) ( A )(i). T h e n u rsin g h o m e serv ed H an d y w ith in terro g a to ries o n D ecem b e r 1 4 , 2012, an d H an d y serv ed th e n u rsin g h o m e w ith h e r i n t erro g ato r y resp o n ses o n Ju n e 5 , 2 0 1 3

. B e cau se n eith er th e in t erro g ato ries n o r th e in terro g ato r y r esp o n ses w ere in clu d ed in th e reco rd , th i s C o u rt is u n ab l e to k n o w w h eth e r th e n u rsin g h o m e req u e sted d isco v e ry o f ex p ert w i tn esses. 3¶5. On January 2, 2014, the nursing hom e noticed the depositions o f Handy and h er sister,

Polly Ross, f

or J anuary 28, 2 014. On January 22, 2014, Clay Gunn, counsel f or the nursing hom e, inf orm ed Eric Stracener, c ounsel f or Handy , by em ail that the depositions would need
to be postponed b e cause Gunn would be out o f town. T he n ext day , the depositions of Handy and Ross were renoticed f or February

4, 2014. ¶6. On January 2 7, 2014, th e c i r c u i t court entered a third am ended agreed scheduling order that f

urther extended the discovery deadlines. This order provided that Handy would designate her experts on o r bef ore February 1 5, 2014, the nursing hom e would designate its

e x p e r t s on o r bef

ore March 15, 2014, and all discovery would be c om pleted on or bef

o r e April 30, 2014. On February 4, 2014, the deposition of H andy took place as scheduled, but the deposition of Ross did not. ¶7. In an em ail on F ebruary 11, 201 4 , S t r a c e n e r a s k e d Gunn f or a “VERY m odest extension” o f deadlines so that the expert witnesses could have the benef it o f Handy ’s testim o ny . Gunn responded that “[ w]e can agree to that extension with the understanding that

we will have thirty d ay s to provide o ur e xpert d i s c losures.” On February 19, 2014, the nursing hom e renoticed the deposition o f Ross t o occur o n February 26, 2 014. This deposition took place as scheduled. ¶8. Further em ails show that, on March 3, 2014, Gunn requested a settlem ent dem and on behalf of the nurs i ng hom e, and Stracener com m u nicated Handy ’s settlem ent dem and to Gunn. T he sam e day , Stracener told Gunn that the expert desig n a t i on of Handy ’s nursing expert, Eulanda Arm strong, w ould “be to y ou any day ,” and he requested dates f or deposing

4Handy ’s m edical expert, Dr. Benjam in Hudson.

¶9. On March 4, 2014, Stracener told Gunn that he wanted the experts t o have the benef it of Ross’s deposition. One m onth later, on April 4, 2014, Gunn asked f or the status of the
exp ert reports and stated “[ w]e’re going to have to push a bunch of other deadlines soon.” Stracener responded that the experts would be designated “[ n]ext week I’m sure.” On April 16, 2014, S tracener a sked Gunn about am ending the scheduling order, and Gunn again asked Stracener the dates that the experts would be designated so he could use the dates to draf t a

new scheduling order. Stracener r esponded that experts would be designated “[ a]ny day – I swear – I hope this week, or next.” ¶10. Then, o n April 3 0, 2014, Gunn sent an e ma i l stating that h is client w ould not agree
to any f urther e xtensions. And, on May 6 , 201 4 , t h e n u r sing hom e f iled a m otion f

or

sum m ary j udgm ent, arguing that, b ecause Handy had f ailed to designate any expert witnesses in support of

her m e dical negligence claim s, the nursing hom e was entitled to judgm ent as

a m atter of law under Mississippi Rule of Civil Procedure 56(c). Nothing occurred until May 20, 2014, when H a n d

y f iled a m o tion requesting an additional ten d ay s to respond to the

m otion f or sum m ary judgm ent. Handy averred that Stracener had not received the m otion f or

sum m ary j udgm ent until May 19, 2014, because Stracener’s legal a s sistant was not listed in Mississippi Electronic Courts f o r Madison County

. I n a response opposing Handy ’s m otion f or an extension of

tim e, the nursing hom e contended that, because Stracener was listed as having received the electronic notice of service, H andy had no justif iable excuse f

or a delay in responding to the sum m ary judgm ent m o tion.

5¶11. Handy f iled the expert designation of A r ms t r o n g , her n ursing expert, on May 27, 2014, and t h e e x p ert designation of Hudson, her m edical expert, on June 6, 2014. These expert designations contained no af f i davits or sworn testim ony in any f o rm by the experts and were signed by St r a c e n e r a lone. In an em ail to Gunn on June 6, 2014, Stracener requested that the nursing hom e withdraw its m otion f o r sum m ary judgm ent on the ground that Handy had her designated experts, but the nursing h om e dec l ined to withdraw the

m otion. On June 9, 2014, H andy f iled a response to the m otion f or sum m ary judgm ent. She contended that s u mma r y judgm ent should b e denied because, although her expert designations had been delay e d due to trial c onf licts, h er experts h ad been designated and the nursing hom e had suf

f ered no prejudice. A t no point in these proceedings did Handy seek a continuance under Mississippi Rule of Civil Procedure 56(f

) to obtain af

f idavits. ¶12. At the sum m ary j udgm ent hearing on J une 23, 2014, the nursing h o me a r g u e d that Handy had subm itted nothing in response to the m o tion f or sum m ary judgm ent t o c r e a te a
gen u i n e i s s u e of m a terial f act. The circuit court g ranted sum m a ry judgm ent to the nursing hom e because Handy had f iled no expert af

f idavits in opposition to the m otion. Handy f iled

a m otion f

or reconsideration on June 26, 20 1 4 , arguing that the n ursing h om e had been cooperative during discovery and had acquiesced in the delay ed expert d esignations. She pointed out that, on April 16, 2014, Gunn h ad agreed to draf t an am ended s cheduling order and had asked Stracener f or dates f or t h e designation of experts. She com plained that the nursing hom e abruptly ref used to agree to any f

urther extensions. Handy c onte n ded that, because she had designat e d e x pert w itnesses, sum m ary judgm ent was im proper. Handy

6attached em ail correspondence between Strac e ner and G unn and the e xpert af f idavit of
Arm strong. On July 25, 2014, Handy supplem ented the m otion f or re c o n s i deration with Hudson’s a f

f i d a v i t

. The nursing hom e f iled a response in opposition to the m otion, and Handy f iled a rebuttal. ¶13. I n a c a r e f

u l l y r e a s o n e d o p i n i o n , 2 t h e c i r c u i t c o urt denied the mo t i o n f o r reconsideration. The c ircuit court wrote that, if the nonm oving party has the burden of proof

at trial, once a m otion f or sum m ar y judgm ent has b een f i led, the burden shif

ts to the

nonm o ving party to present suf f icient proof supporting each elem ent of the c laim

. The circuit
court r ecognized that this proof m ust be s worn and m ade upon personal knowledge, and the
person giving the testim ony m ust be com

petent to testif

y . The c i rcuit court f

ound t hat

s u m m a r y j u d gm e nt w as appropriately granted because Handy had f ailed to oppose t

h e m o t i o n f or sum m ary

judgm ent with com

petent evidence. DISCUSSION W H ETHER T HE CIRCUIT COU R T ERRED B Y GRANTING THE NURSING HOME’S MOTION FOR SUMMARY JUDGMENT AND DENYING HANDY’S MOTION FOR RECONSIDERATION. ¶14. Under Mississippi Rule of Civil Procedure 56(c), the trial court should g rant sum m ary judgm ent “if th e pleadings, d epositions, answers to interrogatories and adm issions on f ile, together with the af

f idavits, if any , show that there is no genuine issue as to a ny m aterial f act and that the m oving party is entitled to a j udgm e nt as a m a tter o f law.” M.R.C.P. 56(c). The

2 N o h earin g o ccu rred o n th e m o tio n f o r reco n sid eratio n b ecau se, a f ter th e h e a r i n g w a s can celled d u e to H an d y ’s illn ess, th e p arties ag reed to su b m it th e m atter to th e circu it co u rt f o r d ecisio n w ith o u t a h earin g . 7m oving party bears the b urden of persuasion t o establish that there is no g enuine issue of

m aterial f act. S tuckey v . The Provident Bank , 912 So. 2d 859, 866 (Miss. 2005) ( q uoting Shaw v . Burchfield , 481 So. 2d 247, 252 (Miss. 1985)). The party with the burden of proof

at trial bears the burden of production. Karpinsky v. A m . Nat’l I ns. Co. , 1 09 So. 3d 84, 88-89 (Miss. 2 0 13) (quoting Daniels v. GNB, I nc. , 629 S o. 2d 595, 600 (Miss. 1993)). “[ S]um m ary judgm ent ‘is appropriate when the n o n - m o v ing p arty has f ailed to “m ake a showing suf f icient
to e stablish the existence of an e lem ent essential to the party ’s case, and on which that party will bear the burden of proof at trial.”’” Karpinsky , 109 So. 3d at 89 (quoting B uckel v. Chaney , 4 7 S o . 3d 148, 153 ( Miss. 2010) (citations om itted)). This Court applies de novo review to the circuit court’s grant o f sum m ary judgm ent. Hayne v. The Doctors C o. , 145 So. 3d 1175, 1180 (Miss. 2014). ¶15. As the plaintif

f in a m edical negligence action, Handy had the burden to prove “(1) the existence of a duty by the def endant to conf

orm to a specif

ic standard o f conduct f

or the protection of others against an u nreasonable risk o f injury ; (2) a f ailure to conf

orm to the required standard; and (3) an injury to the plaintif f proxim ately caused by the breach of such duty b y the def endant.” Hubbard v. Wansley , 954 So. 2d 951, 956-57 (Miss. 2007) (citing
Drum m ond v. Buckley , 627 So. 2d 264, 268 (Miss. 1993)). Expert t estim o ny was necessary
to p rove these elem ents

. Hubbard , 954 So. 2d at 9 57. “W hen proving these elem ents in a

m edical m alpractice s uit, e xpert testim ony m ust b e u sed. Not only m

ust this expert identif

y and articulate the r equisite standard that was not com plied w ith, the e x pert m ust also establish that the f

ailure was the proxim ate cause, o r p r o xim ate contributing cause, of the

8alleged injuries.” Hubbard , 954 So. 2d at 957 (quoting Barner v. Gorm an , 6 05 So. 2d 805,

809 (Miss. 1992)). ¶16. W h en the nursin g h o me mo v e d f or sum m ary judgm ent on the ground that, due to Handy ’s lack of e xpert testim ony , no genuine issue o f m aterial f act ex i s t ed, the burden shif ted to Handy t o produce expert testim ony on each e lem ent of me d i c al negligence. But Handy provided no expert af f idavits in opposition t o sum m a ry judgm ent and subm itted only the designations of her experts. This Court has held that “ [ o ]ther than undenied allegations in the party ’ s p l e a d i n gs and R ule 36 adm issions, a ll m aterial subm itted in opposition to

s u m m a ry judgm ent m

ust be sworn.” Ill. Central R.R. v. Jackson , 179 So. 3d 1 0 3 7 , 1 0 4 3 (Miss. 2 015) (citing Magee v. Transcontinental G as Pipe Corp. , 551 So. 2d 182, 186 (Miss.
1 9 8 9)). Materials s uch as depositions, a nswers to interrogatories, and af f idavits “m

ust b e
sworn, m ade upon personal knowledge, and s how that the party g iving them is com petent to testif y .” Jackson , 179 So. 2d at 1043 (citing Magee , 5 5 1 So. 2d a t 186); M.R.C.P. 56(e). “[ W ]hen a party f

iles her own sworn statem ent of what an expert w itness will say , of f ered f or its truth, t he s tatem e nt is hearsay and is incom petent to support or oppose sum m ary judgm ent.” Jackson , 179 So. 2d at 1043 (cit i n g W a l k e r v . Skiwski , 5 29 So. 2d 184, 187 (Miss.1988); M.R.E. 8 0 1(c). Handy ’s exp e r t d esignations were nothing b ut her own
statem ents o f what her expert witnesses w ould say , signed b y Handy ’s counsel. These

s t atem ents were not sworn by the experts. Theref ore, Handy ’s subm issions were n o t

com pe t e n t t o oppose sum m ary judgm ent. Because Handy f ailed to produce com

petent evidence in opposition t o the m otion f or sum m ary j udgm ent, t h e c ircuit court correctly

9granted sum m ary judgm ent in f

avor of the nursing hom e. ¶17. Although Handy a ttemp t s t o d i s tinguish two cases cited b y the nursing h om e in its

sum m ary judgm e nt m otion, we f ind that those cases provide her no assistance. I n the m edical

m alpractice case of Johnson v. Pace , 122 So. 3d 66, 67 (Miss. 2013), the def endant f iled a

m otion f o r sum m ary judgm ent on the ground that the plaintif f s had f ailed to produce expert testim o ny . In r esponse, the plaintif f s averred that they had f

o u n d a n e xpert and requested

a d d i t i onal tim e to supplem ent discovery responses. Id. T he trial court granted sum m ary j u d g me n t , f

i n ding that the plaintif

f s had am ple tim e t o d esignate a n expert. Id. This Court af f irm e d

. I d . a t 70. In Davis v. Hindm a n , 138 So. 3d 214, 219 (Miss. Ct. App. 2014), the Court of Appeals a f

f irm ed the entry o f sum m ary judgm e n t f or the def endant because the plaintif f never secured an expert witness a nd n ever subm itted any expert designation. Handy
argues that these cases are distinguishable because the plaintif f s in Johnson and Hindm an

never designated e xpert witnesses, while in this case, Handy did f ile expert designations. As already noted, b ecause Handy f ailed to produce sworn ex pert testim ony in response to the

m otion f or sum m ary j udgm ent, she f ailed to c arry her burden of production, and the nursing hom e was entitled to s um m a ry judgm ent. Sim ply p ut, Handy ’s unsworn expert designations were insuf

f icient to withstand sum m ary judgm ent. ¶18. Handy ’s other appellate argum ents characterize the grant of sum m ary j udgm ent a s a d iscovery sanction im

posed f or h er late designation of experts. She a r gues that the cir c u i t
court erred by rejecting the late e xpert designations and im posing t h e u l t i m ate discovery sanction of dism issal with prejudice. Handy also contends that the circuit court erroneously

1 0im

p osed the sanction o f dism issal without considering the f actors listed in Mississippi Power & Light v . Lum p kin , 725 So. 2 d 7 21, 734 (Miss. 1998). In Lum pkin , this Court stated that:
W e observed in McColl u m v . Franklin , 608 So. 2d 692 (Miss. 1992) that excluding evidence f

or a t r a n s gression i n discovery is an extrem e m easure. Bef ore im p osing s uch a sanction a trial court s h ould consider the explanation f or the transgression, the im portance of the testim ony , the need f o r t i me t o prepare to m eet the testim ony and the possibility of a continuance. Murphy v. Magnolia Elec. Powe r A s s’n , 639 F.2d 232, 235 (5th Cir. 1981). The f irst consideration involves a determ ination w hether the f ailure was delibera te, seriously negligent or a n exc u s a b l e oversight. The second consideration involves an assessm ent of harm to the proponent of the t estim ony . T h e third a n d f o u r t h considerations involve an a s sessm ent of the prejudice to the opponent of the evidence, the possibility of alternatives to c u re that harm and the ef f ect on the orderly

proceedings of

the court. Miss. Power & Light Co. v. L um pkin , 725 So. 2 d 7 21, 733-34 (Miss. 1 998). Handy argues that the trial court erred b y dism issing the case because this Court has held that the sanction of dism i ssal f

or a discovery violation should be u sed as a last resort. Robert v. Colson , 729 So. 2d 1243, 1 247 (Miss. 1999). Handy also m akes argum e n ts that she did not raise bef ore the circuit court, including that the circuit court s hould not have dism issed her case because the nursing hom e had not f iled a m otion to com

pel discovery

of the experts. ¶19. This Court declines to a ccept Handy ’ s c haracterization of the dism issal of her case as

a discovery sanction. Clearly , the record ref lects that the nursing hom e f iled a m ot i o n f

o r

sum m ary j udgm ent under Rule 56(c), not a m otion f o r discovery sanctions. And clearly , the trial c o urt, af

ter considering the m otion f or sum m ary judgm ent under th e a p p r o priate standard, g ranted sum m ary judgm ent to the n ursing hom e because Handy had f ailed to m eet her burden of production. Handy did f ail to m eet her burden of production, and the nursing hom e theref

ore w a s entitled to s um m ary judgm ent. W e observe that, if H andy h ad desired

1 1additional tim e t o produce e vidence in opposition to sum m ary judgm ent, she could h ave f iled

a m otion pursuant to Mississippi Rule of Civil Procedure 56(f

), which provides: (f) When Affidavits Are Unavailable. S hould it appear f rom the a f f idavits of a party opposing the m otion that he cannot f o r reasons stated present by af f idavit f a cts essential to justif

y his opposition, the court ma y ref use the application f

or judgm ent or m ay order a continuance t o perm it af f idavits to be obtained or depositions to be taken or discovery to be had or m ay m ake such order as is just. M.R.C.P. 56(f

). As we previously

noted, Handy

never f iled a Rule 56(f

) m otion. ¶20. Handy a lso argues that the trial court erred by deny ing her m otion f or reconsideration.
In the m otion f

or reconsideration, Handy attem pted to cur e t h e d e f

iciency in her sum m ary judgm ent response by subm itting sworn exp e r t testim ony . She subm itted the af f idavit of
Arm strong, dated June 25, 2014, and the a f f i d a v i t of H udson, dated July 17, 2014. Both af f idavits were dated af

ter the grant of

sum m ary judgm ent. ¶21. “[ A] m otion to s et aside or reconsider an order g ranting s um m a r y judgm ent will be treated as a m otion under Rule 59(e).” Brooks v. R oberts , 8 82 So. 2d 229, 233 ( Miss. 2004).
T h e mo v a n t has the burden to show “(i) an intervening change in controlling law, (ii) availability of new e vidence not previously available, o r (iii) need t o correct a clear error of law or to prevent m a nif

e st i njustice.” Id. (citing Bang v. Pittm an , 7 49 S o. 2d 47 , 5 2

- 5 3 (Miss. 1999), overruled on other grounds by Cross Creek Prods. v . Scafidi , 911 So. 2d 958, 960 (Miss. 2005)). Handy m akes no c laim of an i ntervening change in the law or that the evidence she subm itted w ith the m otion f o r reconsideratio n w a s n ot previously available. And Handy has f

ailed to show that reconsideration was necessary to correct a clear error of law. Mor e o v e r, as the C ourt a lready has determ ined, the trial court correctly granted

1 2sum m ary

judgm ent to the nursing hom e. ¶22. Further, Handy has f ailed to show that reconsideration w as n e c e s s a r y t o p r e v ent

m anif est injustice. This Court has held that “the unexcused f ailure to p resent evidence which is available at the tim e sum m ary j udgm ent is under c o nsideration constitute[ s] a valid basis f or deny ing a m otion to reconsider.” Fowler v. White , 85 So. 3d 287, 292 (Miss. 2012). In Fowler , the def

e ndants m oved f

or sum m ary judgm ent on the g round that Fowler had f ailed to serve pre-suit notice i n a m edical negligence case. Id. at 288. Fowler responded with an af f idavit f rom his p aralegal say ing that he had m a i led several notice letters to the d ef endants, but the af f idavit did not s p ecif

y that the paralegal had m ailed the n otice letter in Fowler’s

case. Id. at 289. A f

ter the trial court granted sum m ary judgm e n t to the def endant, Fowler f iled a m otion f

or reconsideration with a second af f idavit f rom the paralegal clarif

y ing that she had m ailed the notice l e t t e r i n Fowler’s case. Id. at 290. The trial c ourt denied the

m otion, and this Court a f

f irm ed, because the paralegal’s af f idavit was not newly discovered evidence, and its consideration would have allowed Fowler “a second bite a t the apple.” Id.
at 2 92. Sim ilar l y , H a n d y has m ade no claim that the af f idavits were newly discovered evidence. The circuit court d id not abuse i ts discretion b y r ef using to a c cept af

f i davits on

reco n s i d e r a t ion that could and should have been subm itted with the sum m ary j udgm ent
response. The circuit court did n ot abuse i ts discretion by deny i ng Handy ’s m otion f or reconsideration. CONCLUSION ¶23. Because Handy ’ s unsworn expert designations were insuf f icient t o m eet her burden

1 3of production on sum m ary judgm ent, the circuit court properly granted sum m ary j udgm ent

i n f avor of the nursing hom e. Further, the circuit court’s denial of Handy ’s m ot i o n f o r reconsideration w as not an abuse of its discretion. Theref ore, this Court af

f irm s the j udgm ent of the circuit court. ¶24. AFFIRMED. WALLER , C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KING, COLEMAN, MAX WELL AND BEAM, JJ., CONCUR.

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