Burkes v. Fred's Stores of Tennessee, Inc.

768 So. 2d 325, 2000 WL 1460766
CourtCourt of Appeals of Mississippi
DecidedOctober 3, 2000
Docket1999-CA-00896-COA
StatusPublished
Cited by3 cases

This text of 768 So. 2d 325 (Burkes v. Fred's Stores of Tennessee, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkes v. Fred's Stores of Tennessee, Inc., 768 So. 2d 325, 2000 WL 1460766 (Mich. Ct. App. 2000).

Opinion

768 So.2d 325 (2000)

Lora Agnes BURKES, Appellant,
v.
FRED'S STORES OF TENNESSEE, INC. and Dr. David Bonzone, RPH, Appellees.

No. 1999-CA-00896-COA.

Court of Appeals of Mississippi.

October 3, 2000.

*326 C. Victor Welsh, III, Jackson, Attorney for Appellant.

A. Lee Abraham, Jr., Clinton M. Guenther, Scott Burnham Hollis, Greenwood, Attorneys for Appellees.

BEFORE SOUTHWICK, P.J., IRVING, AND THOMAS, JJ.

IRVING, J., for the Court:

¶ 1. This case arises from a suit filed by Laura Agnes Burkes on December 4, 1996, in the Circuit Court of Holmes County against Fred's, Inc., d/b/a Fred's Pharmacy,[1] Dr. David Bonzone, and Defendant Doe 1-20, for damages which Burkes alleges were caused by her having been given the wrong prescription medication by Bonzone, a pharmacist, an employee of Fred's Pharmacy in Lexington, Mississippi. Fred's and Bonzone filed separate answers and defenses. During the course of discovery, Fred's and Bonzone removed this action to the United States District Court for the Southern District of Mississippi.

¶ 2. In September 1997, Burkes's current counsel filed a motion to remand the case to the Circuit Court of Holmes County. The federal district court granted the motion on December 12, 1997, and remanded the case to the Circuit Court of Holmes County. On August 24, 1998, the circuit court entered its order granting summary judgment against Burkes. Burkes filed a motion for reconsideration on August 27, 1998, which was denied in a judgment and final order of dismissal with prejudice entered by the circuit court on May 3, 1999. This appeal is from that judgment. The following assignment of error is taken verbatim from Burkes's brief:

Whether the Trial Court erred in granting summary judgment for failure of the Plaintiff to disclose testimony of expert witnesses where it was undisputed that:
The Defendant Pharmacist David Bonzone had incorrectly given Lora Agnes Burkes "Quinidine Sulfate" when she presented a prescription for "Quinine Sulfate."
Ms. Burkes had designated two expert witnesses who were unable to give final opinions due to Bonzone's refusal to participate in a deposition. *327 Finding reversible error, we reverse and remand.

FACTS

¶ 3. Burkes's lawsuit alleges that on August 12, 1996, she brought a prescription for quinine to Fred's Pharmacy to be filled. This drug had been prescribed by Burkes's physician for night-time leg cramps. The prescription was filled by Bonzone; however, the medication given to Burkes was quinidine. Not knowing that she had been given the wrong medication, Burkes took the quinidine tablets for approximately two weeks. On August 25, 1996, Burkes was admitted to the Baptist Medical Center in Jackson, Mississippi suffering from an adverse drug reaction to quinidine.

¶ 4. When the circuit court entered its order granting the motion for summary judgment, it found the following:

The Court finds that the Plaintiff filed her Complaint on December 4, 1996. The Defendants answered the Complaint and propounded discovery request on January 20, 1997. The Plaintiff answered Defendants' discovery request on February 16, 1997 and April 11, 1997. The Defendants, thereafter on April 15, 1997 filed their motion to remove this case to the United States District Court for the Southern District of Mississippi. As a result, discovery in this matter ceased. The District Court on December 12, 1997 remanded this cause back to the Circuit Court.
On January 8, 1998 the Defendants filed their Motion for Summary Judgment or in the Alternative to Compel. The Plaintiff filed a response to the Defendants' Motion and the Defendants, thereafter filed their rebuttal to Plaintiffs response. This Court on April 21, 1998 realizing that discovery had ceased and the original discovery deadline of December 31, 1997 had expired, as a result of Defendants' motion to remove this cause to Federal Court, entered an Amended Scheduling Order and held the Defendants' Motion for Summary Judgment in abeyance until after the expiration of the discovery deadline of August 15, 1998.
The Court finds that pursuant to the Amended Scheduling Order, the Plaintiff failed to designate its expert witness in accordance with the Mississippi Rules of Civil Procedure. The Defendants at that time filed their Renewed Motion for Summary Judgment, or in the Alternative a Motion to Compel and other relief. The Plaintiff did not respond to the Defendants' Motion. The Court on June 16, 1998, granted the Defendants' Motion to Compel, ordering that the Plaintiff designate their expert on or before Monday, June 22, 1998. The Plaintiff failed to properly designate their expert by June 22, 1998, and the Defendants on July 6, 1998, filed a Motion for Judgment as a Matter of Law and to Dismiss. The Plaintiff did not respond to the Defendants' Motion.
The Court finds that the discovery deadline has expired and the Plaintiff has failed to properly designate her expert witness. The failure to do so is taken as evidence that the Plaintiff cannot meet her burden in this matter. The Defendants' Motion for Summary Judgment is therefore granted.

¶ 5. In her motion to reconsider the order granting the motion for summary judgment, Burkes informed the court that her expert witnesses had been designated since March 24, 1997. Following a hearing on Burkes's motion to reconsider, the court affirmed the summary judgment against Burkes and dismissed her suit with prejudice without further comment.

Analysis of Issues Presented

Was summary judgment the appropriate remedy under the circumstances of this case?

¶ 6. We begin by stating the familiar standard of review with regard to a trial court's grant of summary judgment. "The standard for reviewing the granting *328 or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc." Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996) (citing Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992)). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

¶ 7. The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). We do not try issues. Rather, we only determine whether there are issues to be tried. Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993). Furthermore, it is well-settled that motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it is better to err on the side of denying the motion. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986). Our standard of review established, we now turn to the merits of Burkes's claim.

¶ 8. A careful review of the record indicates that the lower court's order granting the motion for summary judgment was very specific as to the grounds for granting the motion.

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768 So. 2d 325, 2000 WL 1460766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkes-v-freds-stores-of-tennessee-inc-missctapp-2000.