IN THE INTERMEDIATE COURT OF APPEALS
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DARSTON
EDDINS, Plaintiff-Appellant, v.
J. STEVE MORRISON, M.D., Defendant-Appellee
NO.
25235
APPEAL
FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIV. NO. 98-494)
JUNE 10, 2004
BURNS, C. J., LIM AND FOLEY, JJ.
In this medical malpractice case, Darston Eddins (Eddins) appeals the June 26, 2002 amended judgment that the circuit court of the third circuit entered in favor of J. Steve Morrison, M.D. (Dr. Morrison). Eddins contends: (1) the court was wrong when it granted Dr. Morrison's November 29, 2001 motion for summary judgment (the MSJ), and (2) the court abused its discretion when it granted Dr. Morrison's December 3, 2001 motion to strike the final naming of witnesses Eddins served on November 28, 2001 and filed on December 4, 2001 (the motion to strike). (1) We affirm.
Eddins contends the court's January 8, 2002 order granting summary judgment in favor of Dr. Morrison was wrong, because the expert medical opinions appended to his memorandum in opposition to the MSJ raised genuine issues of material fact as to negligence and causation. See Hawai`i Rules of Civil Procedure (HRCP) Rule 56(c); Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawai`i 213, 221, 11 P.3d 1, 9 (2000). (2) We disagree.
The affidavits attached to the MSJ, of Torrey Goodman, M.D., and Maurice W. Nicholson, M.D., to the effect that Dr. Morrison's treatment and handling of Eddins were reasonable and appropriate and met the applicable standard of care, had "the effect of . . . refuting one of the essential elements of [Eddins' causes] of action" and thus established prima facie that there was "no genuine issue as to any material fact and that [Dr. Morrison was] entitled to judgment as a matter of law." Id. (citations, internal quotations marks and block quote formats omitted). See also HRCP Rule 56(c).
Thereupon, it was incumbent upon Eddins to "come forward, through affidavit or other evidence, with specific facts showing that there is a genuine issue of material fact." Miller v. Manuel, 9 Haw. App. 56, 65, 828 P.2d 286, 292 (1991) (citation omitted). See also HRCP Rule 56(e). (3) And Eddins had to do so via expert medical testimony, Craft v. Peebles, 78 Hawai`i 287, 298, 893 P.2d 138, 149 (1995); Bernard v. Char, 79 Hawai`i 371, 377, 903 P.2d 676, 682 (App. 1995), "as would be admissible in evidence[.]" HRCP Rule 56(e). See also Blair v. Ing, 95 Hawai`i 247, 270 n.19, 21 P.3d 452, 475 n.19 (2001) ("Inadmissible evidence cannot create a genuine issue of material fact." (Citations omitted.)); Takaki v. Allied Mach. Corp., 87 Hawai`i 57, 69, 951 P.2d 507, 519 (App. 1998) ("a motion for summary judgment may be decided only on the basis of admissible evidence" (citing Munoz v. Yuen, 66 Haw. 603, 605, 670 P.2d 825, 826 (1983) (per curiam))). Eddins failed to do so.
Appended to Eddins' December 12, 2001 memorandum in opposition were the opinions of Eric Weiss, M.D., and L. David Rutberg, M.D., verbatim and identical except for their references to the respective board certifications, to the effect that Dr. Morrison's violations of the applicable standard of care caused the injuries claimed by Eddins. The opinions were not contained in affidavits or otherwise made under oath or penalty of perjury. Per the declaration of Eddins' counsel, the appended opinions were in fact xerox copies of the opinions he mailed or faxed to Dr. Morrison's original attorney in June or July 1999 that were used in the August 4, 1999 court-annexed arbitration below. (4)
The court noted that, "at least one reason why the Court is granting the [MSJ] is that, um, the Court does not believe that [Eddins] has set forth properly, uh, facts which would raise genuine issues of material fact." The court's belief was well founded. As presented, the opinions were hearsay. Hawai`i Rules of Evidence (HRE) Rule 801(3) (1993) ("'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). As such, they would have been inadmissible at trial. HRE Rule 802 ("Hearsay is not admissible except as provided by these rules, or by other rules prescribed by the Hawai`i supreme court, or by statute."). Because Eddins did not present his rebutting medical testimony by affidavit, or otherwise as would be admissible in evidence, Miller, 9 Haw. App. at 65, 828 P.2d at 292; HRCP Rule 56(e); Blair, 95 Hawai`i at 270 n.19, 21 P.3d at 475 n.19; Munoz, 66 Haw. at 605, 670 P.2d at 826; Takaki, 87 Hawai`i at 69, 951 P.2d at 519, Eddins failed to carry his burden, and Dr. Morrison was entitled to summary judgment as a matter of law. HRCP Rule 56(e); Hawaii Broad. Co. v. Hawaii Radio, Inc., 82 Hawai`i 106, 112, 919 P.2d 1018, 1024 (App. 1996); Hall v. State, 7 Haw. App. 274, 284, 756 P.2d 1048, 1055 (1988).
Eddins' entire argument on this point of error is as follows:
Eddins did present evidence of material questions of fact as to medical malpractice of Dr. Morrison which were already known to counsel. While the Trial Court may have felt the presentation by Eddins' counsel was not correct in form, certainly an opportunity to correct the format should have been allowed instead of the entire case being summarily dismissed. Further, Eddins had other medical witnesses also known to defense counsel which could have proven his case at trial but was denied the opportunity to do so. As Dr. Morrison's counsel had notice of every expert witness to be called in the case even before the Trial Court's deadline [for the final naming of witnesses], summary judgment was not appropriate.
Opening Brief at 6 (emphasis in the original). These averments are unavailing.
First, Eddins did not file with the court an HRCP Rule 56(f) (5) affidavit for a continuance in order to obtain, for example, the affidavits of Drs. Rutberg and Weiss or, for that matter, any other medical experts presently willing and able to opine on negligence and causation. See Acoba v. General Tire, Inc., 92 Hawai`i 1, 11-12, 986 P.2d 288, 298-99 (1999) (an HRCP Rule 56(f) affidavit must provide valid reasons why a continuance is necessary and demonstrate specifically how postponement would enable rebuttal).
Second, the very purpose of a motion for summary judgment is to determine whether there exist any genuine issues of material fact for trial, Miller, 9 Haw. App. at 64-65, 828 P.2d at 292, and upon the filing of the MSJ and its supporting affidavits it was necessary for Eddins to properly raise them. When he did not, there was simply no point in going to trial.
"Although they carefully scrutinize the materials submitted by the moving party to ensure compliance with the requirements of Rule 56(e), HRCP (1990), the courts are more indulgent towards the materials submitted by the non-moving party." Miller, 9 Haw. App. at 66, 828 P.2d at 292 (citation omitted). While this is well-settled principle, under the circumstances of this case our indulgence does not extend so far as to save Eddins' complaint. We observe the court below was more than indulgent in this regard. After orally granting the MSJ and the motion to strike, the court literally gave Eddins a second chance: "Having said that . . . , you can have your chance to try to remedy the situation, but I think it's incumbent on you to file the appropriate motion at this juncture." Eddins took no action in response. We conclude Eddins' first point of error lacks merit.
For his other point of error on appeal, Eddins contends the court abused its discretion in granting the motion to strike. See Rules of the Circuit Courts of the State of Hawai`i 12(l), 12(n), 12(o), 12(p) & 12.1(a)(6); Messier v. Ass'n of Apt. Owners of Mt. Terrace, 6 Haw. App. 525, 530, 735 P.2d 939, 944 (1987). The court orally announced this ruling immediately after granting the MSJ. Given our affirmance of the earlier ruling, this point of error is moot.
Accordingly, the June 26, 2002 amended judgment is affirmed.
James Ireijo, for
plaintiff-appellant.
1.
The Honorable
Greg K. Nakamura heard and orally ruled upon both motions at a December
21, 2001 hearing.
2.
Hawai`i Rules of Civil Procedure
(HRCP) Rule 56(c) provides in pertinent part:
3.
HRCP Rule 56(e) provides:
4. J. Steve
Morrison, M.D. (Dr. Morrison), prevailed in the August 4, 1999
arbitration. The authors of the opinions were not mentioned anywhere
in the record until Darston Eddins (Eddins) named them in his December
4, 2001 final naming of witnesses. Eddins filed his complaint against
Dr.
Morrison on October 7, 1998.
5. HRCP
Rule 56(f) provides: