“The Judge Will Give Me More Time”

Don’t count on it. Read this new opinion from the Tennessee Supreme Court which affirmed a grant of summary judgment in favor of the defendant when the plaintiff submitted an affidavit in opposition to the motion after the date required by a previous order of the trial judge.

The core holding: “We conclude that the trial court did not abuse its discretion in denying the plaintiffs’ motion for an enlargement of time under Rule 6.02 after finding that there was no excusable neglect. The trial court held an extensive hearing and considered the factors identified above. The trial court considered the reasons for the plaintiffs’ delay, the length of the delay, the prejudice caused to the defendants, and the potential impact on the proceedings. Although the inquiry of prejudice and the effect of the delay generally should focus on the plaintiffs’ failure to identify expert witnesses by the deadline set by the trial court, this failure cannot be isolated from the plaintiffs’ failure to comply with other deadlines and magnifies both the prejudice to the defense and the effect of the delay.”

The case also held that the expert affidavit submitted by the plaintiff to oppose summary judgment was deficient: “Here, the plaintiffs relied on the affidavit of Dr. Robert Gordon. Dr. Gordon, a board-certified anesthesiologist who practiced in Winchester, Tennessee, stated that he was “familiar with the recognized standard of acceptable professional medical care in the metropolitan areas of Tennessee and specifically in Memphis, Tennessee and similar communities . . . .” The affidavit contains no information regarding the basis for Dr. Gordon’s familiarity with the standard of care in Memphis, Tennessee, nor does it contain a basis for finding that the standard of care in Memphis is similar to that in the community in which Dr. Gordon practices. In short, Dr. Gordon’s affidavit simply asserts that he is familiar with the applicable standard of care. As we have explained in prior cases, a bare assertion of familiarity is insufficient under Tennessee Code Annotated section 29-26-115(a)(1). Accordingly, we conclude that the affidavit was legally insufficient.”

The case is Williams v. Baptist Memorial Hospital, No. W2003-02872-SC-R11-CV (April 19, 2006). Read it here.

(Note: this is a corrected version of the opinion released last month. This version was released on Tuesday the 23rd of May.)