Eddins v. Morrison

98 P.3d 247, 105 Haw. 376, 2004 Haw. App. LEXIS 189
CourtHawaii Intermediate Court of Appeals
DecidedJune 10, 2004
DocketNo. 25235
StatusPublished
Cited by3 cases

This text of 98 P.3d 247 (Eddins v. Morrison) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eddins v. Morrison, 98 P.3d 247, 105 Haw. 376, 2004 Haw. App. LEXIS 189 (hawapp 2004).

Opinion

Opinion of the Court by

LIM, J.

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.

[377]*377I. Discussion.

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 MS J 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 qmitted). 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 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 [378]*378that 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. Hawaii 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 Hawaii supreme court, or by statute.”). Because Ed-dins 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 ease 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.

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Bluebook (online)
98 P.3d 247, 105 Haw. 376, 2004 Haw. App. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eddins-v-morrison-hawapp-2004.