IN THE SUPREME COURT OF MISSISSIPPI
NO. 2022-IA-00738-SCT
REESE LINDSEY, D.O.
v.
BEVERLY BUTTS
DATE OF JUDGMENT: 07/11/2022 TRIAL JUDGE: HON. MARGARET CAREY-McCRAY TRIAL COURT ATTORNEYS: MARVIN L. SANDERS TAMMYE CAMPBELL BROWN TOMMIE GREGORY WILLIAMS, JR ROBERT J. DAMBRINO, III COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROBERT J. DAMBRINO, III ATTORNEY FOR APPELLEE: MARVIN L. SANDERS NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: REVERSED AND RENDERED - 03/21/2024 MOTION FOR REHEARING FILED:
CONSOLIDATED WITH
NO. 2022-IA-00882-SCT
GREENWOOD LEFLORE HOSPITAL
DATE OF JUDGMENT: 08/19/2022 TRIAL JUDGE: HON. MARGARET CAREY-McCRAY COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: HARRIS F. POWERS, III TOMMIE G. WILLIAMS, JR. ATTORNEY FOR APPELLEE: MARVIN L. SANDERS NATURE OF THE CASE: CIVIL -WRONGFUL DEATH DISPOSITION: REVERSED AND RENDERED - 03/21/2024 MOTION FOR REHEARING FILED: EN BANC.
RANDOLPH, CHIEF JUSTICE, FOR THE COURT:
¶1. This is a consolidated appeal of two interlocutory appeals, both stemming from the
same wrongful-death lawsuit. The lawsuit was brought by Beverly Butts on behalf of the
wrongful-death beneficiaries of John Albert Hemphill, Sr. Butts alleged that—four years
before the decedent’s death—Reese Lindsey, D.O., failed to remove part of a bladder
catheter, which caused recurring infection and ultimately death. Lindsey had treated the
decedent at Greenwood Leflore Hospital. The complaint also alleged the Hospital staff’s
treatment of the decedent fell below the standard of care.
¶2. Lindsey moved to dismiss the complaint for failure to serve process.1 The Hospital
moved for summary judgment because Butts failed to establish a medical-negligence claim
through medical expert testimony.2 The trial court denied both motions. Lindsey and the
Hospital filed separate petitions for permission to file interlocutory appeals. This Court
granted both petitions and consolidated the appeals. Finding that the trial court erred by
denying Lindsey’s motion to strike the summons and dismiss the complaint, we reverse and
render as to Lindsey. Finding that the trial judge erred by denying the Hospital’s motion for
summary judgment, we reverse and render.
FACTS
¶3. On February 3, 2021, Butts, on behalf of the wrongful-death beneficiaries of John
1 No. 2022-IA-00738-SCT 2 No. 2022-IA-00882-SCT
2 Albert Hemphill, Sr., sued Lindsey and the Hospital. The complaint alleged Lindsey treated
Hemphill for a urinary-tract infection at the Greenwood Leflore Hospital’s emergency room
in 2015. The complaint further alleged Lindsey discharged Hemphill with a cut-off Foley
catheter still attached to and retracted in his bladder. According to the complaint, Hemphill
did not discover the cut-off catheter until four years later. Hemphill continued to suffer
urinary-tract infections and septic shock, which the complaint alleged ultimately led to
Hemphill’s death.
I. Claim Against Lindsey
¶4. The record reveals Lindsey has never been lawfully served with process, despite the
trial court allowing Butts thirty additional days to serve Lindsey—after the lawful period to
serve process had expired. Butts sued the hospital and Lindsey on February 3, 2021. Due
process is required in all proceedings.3 Absent lawful service of process, the circuit court
lacked personal jurisdiction over Lindsey.
¶5. Summons was first issued on May 25, 2021. The return of service reveals that Butts’s
counsel attempted to personally serve Lindsey at the same address of the hospital. Butts’s
attorney was the process server who executed and filed the return of service, recording that
“[a]fter diligent Search and Inquiry the within named Dr. Reese Lindsey is not to be found
. . . .”
¶6. On May 29, 2021, the circuit clerk issued an “alias” second summons. That summons
used Lindsey’s mother’s residence in Bolivar County. The return of that flawed attempt was
3 See Miss. Const. art. 3, § 14.
3 not filed until August 29, 2021. There is no record evidence that Butts tried to comply with
Mississippi Rule of Civil Procedure 4(d)(1)(A)-(B), which requires mailing an additional
copy of the complaint and summons to the named defendant. Throughout these proceedings,
Butts never requested an extension of the 120-day period before or after the prescribed time.
¶7. The next entry in the docket, without a plea, motion, or affidavit filed, reveals that the
clerk of the court entered an “Entry of Preliminary [sic] Default” on January 13, 2022, in
which the clerk stated that “summons and citation with the Complaint were served upon
Defendants on May 25, 2021 (Exhibit A); and Dr. Reese Lindsey has failed to file an answer
hereto and legal delays for answering have elapsed (Exhibit B).” This “Entry of Preliminary
Default” was entered relying on the return of the May 25, 2021, summons on which Butts’s
attorney had written that Lindsey could not be located. Five days later, on January 18, 2022,
without plea, motion, or affidavit filed, a “Default Judgment” against Lindsey was signed,
but it was not filed of record until January 24, 2022. No evidence in the record reflects a
hearing was either requested or conducted prior to the “Default Judgment” entry.
¶8. On January 21, 2022, Lindsey filed notice of a “Motion to Vacate and Set Aside
Preliminary Entry of Default” before the “Default Judgment” was filed. The record sub
judice is absent of any claim that Lindsey was aware of the “Default Judgment” on the date
of that filing.
¶9. Lindsey contends that he has never been lawfully served with process. He submitted
a sworn affidavit that he resided in Ocean Springs and that he had not resided at his mother’s
house since graduating from high school. Lindsey specifically argued that because he had
4 not been served in accordance with Rule 4, he was not subject to the jurisdiction of the
Leflore County Circuit Court. He specially appeared to contest in personam jurisdiction and
to set aside the “Entry of Preliminary Default.”
¶10. Then, on February 7, 2022, more than a year after filing the complaint and without
seeking approval of the court, a third summons was requested and issued. The summons was
to be served at Lindsey’s Ocean Springs residence. On March 23, 2022, Lindsey moved to
strike the summons and dismiss the complaint. The same date, Lindsey moved for a hearing
on his prior “Motion to Vacate and Set Aside Preliminary Entry of Default.”
¶11. Despite the aforementioned series of events, Butts argued that Lindsey was properly
served on May 29, 2021.4 Butts’s contention was that her attorney properly served Lindsey’s
mother. Butts argued that service was sufficient because Lindsey’s mother was an adult at
that address and that she agreed to accept service on Lindsey’s behalf.
¶12. On July 1, 2022, the trial judge granted Lindsey’s motion to vacate and set aside the
“Entry of Preliminary Default”5 but denied Lindsey’s motion to strike the summons and
dismiss the complaint without prejudice. Yet the court found that the attempted service on
Lindsey was not properly effected through his mother. There is no record evidence that Butts
filed for an enlargement of time to serve Lindsey under Mississippi Rules of Civil Procedure
4(h) or 6(b) either before or after the applicable 120-day period. But the trial judge held:
4 The “Plaintiff’s Response To Reese Lindsey’s Motion to Vacate and Set Aside Preliminary Entry of Default” asserted “[t]hat Defendant Dr. Lindsey was properly served with a copy of the Summons and a copy of the Complaint in this matter on May 29, 2021.” 5 That order was not filed until July 11, 2022.
5 It is undisputed that Butts attempted to serve Dr. Lindsey with process within the 120-day time limit. The return of service indicated that service was properly completed. Counsel was not, therefore, alerted by written return or otherwise of any potential problem. Plaintiff was not aware of a defect in service of process until Dr. Lindsey’s Motion was filed. At that time Plaintiff sought issuance of a new summons and Complaint in order to have Dr. Lindsey served. It cannot be said that Butts did not act diligently. Although service was not properly effected through Dr. Lindsey’s mother, the Court finds that Plaintiff had a reasonable belief that service was properly made within the statutory period. Good cause is established. Therefore, the Preliminary Entry of Default and Default Judgment are hereby set aside. Plaintiff shall be allowed an additional thirty (30) days from the entry of this order to serve process.[6]
Lindsey petitioned this Court for permission to file an interlocutory appeal of the trial judge’s
denial of his motion to strike the summons and dismiss the complaint. This Court granted.
¶13. Lindsey contends that the trial court erred by denying his motion to dismiss the
complaint. This Court reviews motions to dismiss de novo. Park on Lakeland Drive, Inc.
v. Spence, 941 So. 2d 203, 206 (Miss. 2006). He pleaded that the trial court did not have in
personam jurisdiction over him based on failure to serve process. Under Rule 4(h):
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
Miss. R. Civ. P. 4(h) (emphasis added); see also Miss. R. Civ. P. 6(b).
¶14. “The rule has . . . been interpreted to require that, if the defendant is not served within
6 In the trial court record, during that thirty-day period, no summons was requested or served. See Miss. R. Civ. P. 4(d)(1)(B) and/or 6(b). Further, no request was made to supplement the record to show otherwise. Finally, no claim is made in the briefing that Butts served or requested to serve Lindsey during that period.
6 120 days, the plaintiff must either refile the complaint before the statute of limitations ends
or show good cause; otherwise, dismissal is proper.” Webster v. Webster, 834 So. 2d 26, 28
(Miss. 2002) (citing Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss. 1996)). “To establish
‘good cause’ the plaintiff must demonstrate ‘at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the
rules usually does not suffice.’” Id. (internal quotation marks omitted) (quoting Peters v.
United States, 9 F.3d 344, 345 (5th Cir. 1993)).
¶15. The complaint was filed on February 3, 2021. Butts’s first attempt to serve Lindsey
was on May 25, 2021, at the hospital’s address Butts’s counsel elected. On May 29, 2021,
the circuit clerk issued a second “alias” summons for Lindsey at Lindsey’s mother’s
residence in Bolivar County.7 On February 7, 2022, Butts requested a third summons for
Lindsey’s Ocean Springs address.
¶16. Pursuant to Rule 4(d):
(d) Summons and Complaint: Person to Be Served. The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:
(1) Upon an individual an individual other than an unmarried infant or mentally incompetent person,
(A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by the appointment or by law to receive service of process; or
(B) if service under subparagraph (1)(A) of this
7 Proof of service of that flawed attempt, according to the trial judge, was not filed until three months later, on August 29, 2021.
7 subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.
Miss. R. Civ. P. 4(d)(1)(A)-(B) (emphasis added).
¶17. Despite the issuance of three summons, Butts never complied with Mississippi Rule
of Civil Procedure 4, and the requirements of Rule 4(d)(1)(B) were never met. Butts first
attempted to serve a copy of the summons and complaint to the hospital’s address, but
Lindsey was not found. Upon not finding Lindsey, Butts left the second “alias” summons
at an address that was not Lindsey’s usual place of abode or residence.
¶18. “A determination of good cause is a discretionary ruling by the trial court and is
entitled to deferential review of whether the trial court abused its discretion and whether
there was substantial evidence supporting the determination.” Webster, 834 So. 2d at 28
(citing Rains v. Gardner, 731 So. 2d 1192, 1197 (Miss. 1999)). “To meet the burden of
proof of good cause, the plaintiff must demonstrate that a diligent effort was made to effect
timely service.” Copiah Cnty. Sch. Dist. v. Buckner, 61 So. 3d 162, 166 (Miss. 2011) (citing
Foss v. Williams, 993 So. 2d 378, 379 (Miss. 2008)). No evidence was offered to meet that
burden.
¶19. The record is devoid of substantial evidence supporting the trial court’s finding that
8 Butts was unaware of the flawed attempt to effect service of process at Lindsey’s mother’s
house. Butts’s attorney was the process server who failed to comply with Rule 4. Butts’s
attorney executed and filed a return of service, averring that he personally delivered a copy
of the summons and the complaint to that address. No proof of mailing can be found in the
record. During the 120-day service window from filing of the complaint, Butts failed to
effect service. The first summons was issued to the hospital’s address. Butts’s attorney
confirmed in writing that Lindsey could not be found there.8 The second summons was
served on Lindsey’s mother at her address.
¶20. Butts waited twelve months before causing a third summons to be issued in February
2022, despite later arguing that service was properly effected on May 29, 2021.9 No return
of service can be found in the record after the February 2022 summons was issued.
Nonetheless, on July 1, 2022, the trial court permitted Butts thirty additional days from the
entry of that order to serve Lindsey. Following the entry of the trial court’s order, the record
contains no evidence that Butts ever requested a new summons.
¶21. Our rules make no provision for an “Entry of Preliminary Default.” Under
Mississippi Rule of Civil Procedure 55(a), “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by these rules
and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.”
Miss. R. Civ. P. 55(a) (emphasis added). These elements must be shown by affidavit or other
8 The reference in the trial court’s order confuses the May 25, 2021, service with the May 29, 2021, service. 9 See ¶ 11.
9 competent proof. Miss. R. Civ. P. 55(a) advisory comm. n. Without affidavit or pleading,
Butts offered the first unserved summons—by his admission—filed on May 25, 2021, to
obtain a defective entry of default. The return of service on the first summons at a
codefendant’s address was insufficient on its face to obtain entry of default.
¶22. With no motion of record, on January 18, 2022, the trial court entered a “Default
Judgment” against Lindsey. Under Mississippi Rule of Civil Procedure 55(b), “[i]n all cases
the party entitled to a judgment by default shall apply to the court therefor.” Miss. R. Civ.
P. 55(b) (emphasis added). The record is devoid of such application.
¶23. “An on-the-record hearing must be held prior to the entry of default judgment under
which unliquidated damages are requested.” Capital One Servs., Inc. v. Rawls, 904 So. 2d
1010, 1018 (Miss. 2004) (citing Journey v. Long, 585 So. 2d 1268, 1272 (Miss. 1991)),
overruled on other grounds by BB Buggies, Inc. v. Leon, 150 So. 3d 90, 103 (Miss. 2014).
“[L]iquidated damages are set or determined by contract, while unliquidated damages are
established by a verdict or award and cannot be determined by a fixed formula.” Id.
(footnote omitted) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So. 2d 953, 959-60
(Miss. 2002)).
¶24. In her complaint, Butts sought “damages in the amount within the jurisdictional limits
of this [c]ourt and in excess of the sum of $200,000, such is amount included, but not limited
to, compensatory and punitive damages, prejudgment and post judgment interest, attorney’s
fees, expenses, and costs of the [c]ourt, and that she be awarded all other relief to which she
may be entitled.” The damages were unliquidated, having not been predetermined or
10 contractually established. The trial court’s order entering default judgment against Lindsey
did not include a monetary award.
¶25. The trial court erred by not dismissing the complaint against Lindsey for lack of in
personam jurisdiction. Because Butts has never legally served process upon Lindsey, the trial
court lacked jurisdiction over him. Accordingly, we reverse the decision of the trial court
and render judgment dismissing Lindsey from this lawsuit.
II. Claim Against the Hospital
¶26. The Hospital answered the complaint and then filed a motion to dismiss. In its
motion, the Hospital asserted that Lindsey was not its employee during the time of
Hemphill’s treatment. So the Hospital—a governmental entity—could not be held
vicariously liable for Lindsey’s medical negligence under the Mississippi Tort Claims Act.
The trial court denied the motion, finding that the complaint sufficiently alleged separate
claims against the Hospital by asserting that the treatment by the Hospital’s nurses and staff
fell below the standard of care.
¶27. In April 2022, the Hospital moved for summary judgment. The Hospital argued Butts
could not establish a medical-negligence claim against the hospital because Butts lacked a
medical expert. In interrogatories propounded on Butts in July 2021, the Hospital asked for
the names of the witnesses and experts Butts intended to call against the Hospital. Butts
responded by declaring that she had not identified any expert witness. But she reserved the
right to supplement her response pursuant to a scheduling order.
¶28. Butts did not respond to the Hospital’s summary-judgment motion until the day before
11 the hearing scheduled for June 28, 2022. In the response, Butts simply insisted the summary-
judgment motion was “preemptive” because the parties had not agreed to a scheduling order.
¶29. On July 11, 2022, the trial court entered a scheduling order. And on August 19, 2022,
the trial court denied the Hospital’s motion for summary judgment. The Hospital petitioned
for permission to file an interlocutory appeal. This Court granted the petition and
consolidated the Hospital’s interlocutory appeal with the claim against Lindsey.
¶30. We review the denial of summary judgment de novo. Harrison v. Chandler-Sampson
Ins., Inc., 891 So. 2d 224, 228 (Miss. 2005). Under Mississippi Rule of Civil Procedure
56(b), a defendant “may, at any time, move with or without supporting affidavits for a
summary judgment in his favor . . . .” And “[t]he judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P.
56(c).
¶31. The Hospital demonstrated it was entitled to judgment as a matter of law because
Butts’s discovery responses were factually insufficient to support her medical-negligence
claim against the Hospital. Instead, the responses mirrored the generic allegations in her
complaint. See Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (Miss. 2013)
(“Importantly, the party opposing summary judgment ‘may not rest upon the mere allegations
or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial.’” (quoting Miss.
12 R. Civ. P. 56(e))). Further, Butts failed to identify a medical expert that would testify
regarding the applicable standard of care and alleged breach of that standard by Hospital
employees. See Johnson v. Pace, 122 So. 3d 66, 68 (Miss. 2013) (“Expert testimony
establishing the[] elements [of medical malpractice] generally is required for the nonmoving
party to survive summary judgment.” (citing Smith ex rel. Smith v. Gilmore Mem’l Hosp.,
Inc., 952 So. 2d 177, 180 (Miss. 2007)).
¶32. In her brief, Butts argues—for the first time on appeal10—that the layman’s exception
applies to cases like this in which a foreign object was left inside a patient.11 Such argument
would be better suited against Lindsey, who the complaint alleges left the cut-off Foley in
Hemphill’s bladder.12 But Lindsey is not an employee of the Hospital. Accordingly, the
Hospital cannot be liable for his actions. Brown v. Delta Reg’l Med. Ctr., 997 So. 2d 195,
197 (Miss. 2008) (“[W]hile the state may be sued for the tortious acts of its employees, it
may not be sued for the tortious acts of its independent contractors.”).
¶33. Butts brought a separate claim against the Hospital’s nurses and staff that their
treatment of Hemphill fell below the standard of care. Indeed, this was the very reason the
10 This Court need not consider an issue that has been raised for the first time on appeal. Flagstar Bank, FSB v. Danos, 46 So. 3d 298, 311 (Miss. 2010). 11 “[T]his Court has long recognized an exception to the general rule requiring a medical expert in ‘instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.’” Smith, 952 So. 2d at 180 (quoting Coleman v. Rice, 706 So. 2d 696, 698 (Miss. 1997)). 12 “The layman’s exception is commonly applied in situations where physicians or hospital staff have left foreign objects inside the patient.” Smith, 952 So. 2d at 181 (citing Coleman, 706 So. 2d at 696).
13 trial court denied the Hospital’s motion to dismiss. And “the layman’s exception does not
apply to . . . claim[s] involv[ing] the rendering of medical services and a nurse’s professional
judgment for which expert testimony is required.” Claiborne Cnty. Hosp. v. Truitt, 335 So.
3d 562, 566 (Miss. 2022). Rather, “[t]he rendering of medical services, the diagnosing of
medical conditions, and the administration of medical treatment are all matters outside the
common knowledge of a layperson.” Id. (citing Crosthwait v. S. Health Corp. of Houston,
Inc., 94 So. 3d 1070, 1076 (Miss. 2012)).
¶34. To prove a medical-negligence case against the Hospital, expert testimony is essential
to establish the applicable standard of care, how that standard was disregarded, and how that
failure was a proximate contributing cause to Hemphill’s death. Id. at 567. Indeed, this
Court has held that, “[w]hen a plaintiff fails to provide expert testimony establishing a prima
facie case of medical malpractice, a grant of summary judgment is required.” Id. at 567; see
also Johnson, 122 So. 3d at 70 (“In the absence of any expert testimony to support the
[plaintiffs’] claim, [the defendant doctor] was entitled to judgment as a matter of law.”).
¶35. Despite this clear law, Butts did not respond to the Hospital’s summary-judgment
motion with affidavits or medical expert testimony to establish the essential elements of her
medical-negligence claim. Rather, she merely dubbed the Hospital’s motion “preemptive”
because no scheduling order had yet been entered. As support she cites Rule 3 of the Local
Rules for the Fourth Circuit Court District, which requires the parties to present a scheduling
order to the court no later than sixty days after the complaint is filed.13 But Butts could not
13 But Local Rule 3 also makes clear that, “[i]n the event counsel are unable to agree upon the terms of the scheduling order or fail to submit a proposed order to the Court within
14 use the lack of a scheduling order as an excuse not to respond to discovery or the Hospital’s
summary-judgment motion.
¶36. Rule 56(b) permits a defendant to file a motion for summary judgment “at any time.”
Miss. R. Civ. P. 56(b) (emphasis added). A defendant does not have to wait until after a
scheduling order has been entered or a discovery deadline has passed. Johnson, 122 So. 3d
at 69. A decade ago in Johnson, this Court rejected an argument very similar to Butts’s. Id.
There, the medical-malpractice plaintiffs—the Johnsons—faced a summary-judgment motion
in which the defendant doctor asserted that the Johnsons did not have a medical expert. Id.
at 67.
¶37. Instead of producing an expert, the Johnsons argued the doctor’s summary-judgment
motion was premature because, under the Uniform Rules of Circuit and County Court
Practice, they were not yet required to designate an expert. Id. at 68-69. At the time, Rule
4.04(A) provided: “Absent special circumstances the court will not allow the testimony at
trial of an expert witness who was not designated as an expert witness to all attorneys of
record at least sixty days before trial.” Id. at 69 (quoting former URCCC 4.04(A), now
codified as UCRCCC 4.03(A)). “The Johnsons argue[d] that, because no trial date had been
set in the case, the sixty-day deadline for designating an expert never expired.” Id.
¶38. This Court rejected that argument, finding “no authority for the . . . proposition that
the time required by this paragraph, discovery shall be limited to the time provided in the Mississippi Rules of Civil Procedure.” In other words, Butts cannot blame the Hospital’s alleged unwillingness to agree to a scheduling order as an excuse not to provide discovery or respond to a summary judgment motion. Contrary to Butts’s assertion, a scheduling order is not an absolute requirement under Local Rule 3—or Mississippi Rule of Civil Procedure 26(c).
15 a party need not produce an expert witness until that time.” Id. Instead, this Court found
the Johnsons were required to support their medical-malpractice claim in order to survive
summary judgment. Id. And because they had no expert, the defendant doctor was entitled
to summary judgment. Id. at 69-70.
¶39. In the case sub judice, the Hospital’s motion was not “preemptive.” It was filed
fourteen months after Butts filed suit and nine months after the Hospital propounded
discovery requests. The fact Butts needed an expert should have come as no surprise. “From
the very moment the suit was filed it was known that an expert witness would be needed to
survive summary judgment . . . .”14 Brooks v. Roberts, 882 So. 2d 229, 232 (Miss. 2004).
¶40. When faced with the Hospital’s summary-judgment motion, Butts produced no
medical expert testimony nor did she present any evidence to support the medical-negligence
claim alleged in her complaint. A defendant may move for summary judgment at any time.
The lack of a scheduling order does not relieve plaintiffs of their burden to support their
claims with expert testimony to survive summary judgment. Thus, the trial judge should
have granted the Hospital’s summary-judgment motion. We reverse the denial of summary
judgment and render judgment in the Hospital’s favor.
¶41. AS TO NO. 2022-IA-00738-SCT: REVERSED AND RENDERED. AS TO NO. 2022-IA-00882-SCT: REVERSED AND RENDERED.
COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.
14 We reiterate that Butts did not raise the layman’s exception in response to the Hospital’s summary-judgment motion. Her argument before the trial court was not that she did not need an expert to establish her medical-malpractice claim against the Hospital. Rather, she argued that she need not produce an expert until a scheduling order had been entered.
16 MAXWELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, P.JJ.; BEAM, J., JOINS IN PART.
MAXWELL, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶42. Facing Greenwood Leflore Hospital’s motion for summary judgment, Beverly Butts
failed in her burden to produce medical expert testimony to support her medical negligence
claim. So I agree the Hospital was entitled to summary judgment.
¶43. I also agree that Butts failed to timely serve Dr. Reese Lindsey and that the record
does not support the specific reason the trial judge gave for finding good cause existed to
extend the deadline to serve process. It is obvious from the trial judge’s order that she
wrongly believed the failed service attempt was the result of a third-party process server. See
Collins v. Westbrook, 184 So. 3d 922, 930-31 (Miss. 2016) (finding good cause existed when
the failure to timely serve process “was caused entirely by ‘the conduct of a third person’”
(quoting Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (Miss. 2002))). But the
record indicates otherwise—that Butts’s counsel himself acted as the process server.
¶44. That said, with respect for the majority, I would not render on this issue. Instead,
because of the judge’s mistaken belief that process had been served by a third party, I would
remand the good-cause issue to the trial court.
¶45. In response to Dr. Lindsey’s motion to dismiss, Butts’s counsel raised several fact
questions whether good cause still existed. First, there is the question of diligence and
whether Butts’s counsel should have relied on the online business search to yield a residential
address. Second, there is the question of whether counsel could have ascertained from Dr.
17 Lindsey’s mother that Dr. Lindsey no longer resided there. Butts’s counsel asserted that, at
the time he served Betty Lindsey, he “was not informed that [Dr.] Lindsey was no longer a
resident of that location.” But he did not say whether he in fact asked Betty if her son lived
there. Rather, he says Betty “stated that she could and did accept service[.]” That is certainly
not the same as Betty stating that her Cleveland home was her adult son’s usual place of
abode.
¶46. While I agree the ultimate outcome does not appear favorable to Butts because of her
unlikely ability to show good cause, our precedent says these are fact-findings left to the trial
court’s discretion. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (Miss. 2007).15
They are not for this Court to resolve on appeal. Yet the majority acts as fact-finder and
concludes the record is completely devoid of any evidence of good cause. Again, this is not
our role. Instead, we are to determine if the trial judge abused her discretion—not take fact-
intensive, discretionary calls away from the trial court if we simply disagree with her
assessment of the facts.
¶47. For this reason, I dissent in part. Instead of rendering on the good-cause issue, I
would remand the case to the trial court.
KITCHENS AND KING, P.JJ., JOIN THIS OPINION. BEAM, J., JOINS THIS OPINION IN PART.
15 “This Court leaves to the discretion of the trial court the finding of fact on the existence of good cause or excusable neglect for delay in serving process under Rule 4(h).” Long, 969 So. 2d at 38. And we will reverse only when “such discretion is abused or is not supported by substantial evidence[.]” Id.