Oral arg. – COA – July 29, 2015

Wednesday, July 29, 2015

At 10:00 the Court will hear Rose Marie Monroe and Betty Joe Wright v. Alexander Blevins, MD. 

On January 15, 2008, 87-year-old William Ray fell at home. At the ER, the doctor failed to diagnose a broken hip.   Another doctor had an x-ray done on January 28 and diagnosed a hip fracture.  Although surgery was performed on January 30,  Ray died approximately a month after his fall.  His relatives filed suit.  Before trial, the court denied Blevins’ motion for summary judgment.  At trial, Dr. Blevins testified that he never considered a broken hip when Ray presented at the ER. Plaintiffs called as a witness the doctor who eventually diagnosed the fracture as well as their expert Dr. David Bomboy who testified that Blevins breached the standard of care. During Bomboy’s testimony, the court granted a mistrial on the grounds that Bomboy was testifying beyond the scope of his designation.   The trial was reset.  The plaintiffs filed for permission to supplement their expert designation which was denied. The trial court denied the motion and granted Blevins’ motion to dismiss.    Blevins argues that Bomboy was the expert designated to testify against all 13 of the original defendants.  When Bomboy’s deposition was taken, he stated “I don’t have an opinion against Dr. Blevens.”  Given this, he argues the Court was correct to deny the motion to supplement and correct to dismiss the case.

Monroe/Wright brief

Blevins’ brief. 

Monroe/Wright reply brief.

Watch the argument here.

This case is so weird procedurally, that, whatever the court decides, it will probably have no application to any other case. (My summary doesn’t do it justice, I’m afraid)).  It isn’t clear whether the dismissal was a sanction for discovery misconduct (as the plaintiffs argue) or a dismissal based on the fact that the plaintiffs could not prove their case.  Justice Irving asks defense counsel (and I paraphrase) whether he waived his right to ask for a directed verdict by failing to ask for summary judgment before trial.  The panel is made up of Presiding Justice Irving and Justices Maxwell and Fair.

At 1:30 the Court will hear Elliot Jackson and Nicole Jackson v. UMMC.  

Jackson was a patient at UMMC’s dental school.  After a November 10, 2010, appointment, he was given a prescription for vicoprofen for pain.  Jackson was to have several teeth extracted on December 1.  He ended up taking the vicoprofen that day instead of the ativan he was prescribed.  He told UMMC personnel about the medication.  His teeth were extracted. Afterwards, on his way to the desk to schedule his next appointment, Jackson fell backwards and hit his head.  He was taken by ambulance to the ER where he was diagnosed with a subdural hematoma.  Prior to trial, UMMC refused to provide the accident report to the plaintiffs but finally gave it up a month before trial.  Based on the delay and UMMC’s alleged misrepresentations concerning the report. Jackson moved for a default judgment or for a ruling that  the failure to timely produce result in an adverse inference.  On the first day of the bench trial, Jackson brought up his motion.  The court refused to grant a default but stated  “I’m cognizant of my jury instructions, as trier of fact, you know you have the right to assign such weight and credibility to the testimony of each witness that’s testified, and I’m certainly going to exercise that, and, basically, that’s what you’ve asked me to do.” The trial court eventually issued an opinion finding for UMMC. Jackson appeals.

UMMC defended the case arguing that Jackson’s head injury preexisted his fall.  Jackson was a veteran being treated at the VA and he misrepresented his previous injuries and treatment being received at the VA.

Jackson’s  brief. 

UMMC’s brief

Jackson’s reply brief

Watch the argument here

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