Shirley v. McCraney

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 28, 2002
• Docket: 02-60071
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60071 Summary Calendar

JOHN SHIRLEY; MARTHA SHIRLEY,

Plaintiffs-Appellants,

versus

W. THOMAS McCRANEY, JR.; CAPITAL ORTHOPAEDIC CLINIC, PA.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:97-CV-124-WS -------------------- August 23, 2002 Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

John Shirley (“Shirley”) and his wife Martha appeal the

district court’s grant of summary judgment dismissing Shirley’s

medical malpractice claims against Dr. Thomas McCraney and his

medical group. The Shirleys argue on appeal 1) that the district

court should have granted Shirley’s motion to obtain a new expert;

2) that the district court should have stricken portions of the

defendants’ summary judgment motion; and 3) that the district court

should have denied the defendants’ summary judgment motion.

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Shirley does not indicate that another expert witness was

available or what that witness would have stated. The district

court did not abuse its discretion in denying Shirley’s motion to

obtain another expert before ruling on the summary judgment motion.

See Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990); Stearns

Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 534-35 (5th

Cir. 1999).

The record indicates that the district court did not consider

the defense expert witnesses and thus that the court’s failure to

strike those portions of the defendants’ summary judgment motion

was of no consequence. The Shirley’s appellate argument on this

issue is without merit.

Our de novo review of the record reveals that the district

court did not err in granting summary judgment. Though Shirley

cites to a number of allegedly disputed facts, he points to no

evidence countering the deposition testimony of his own expert

witness that Dr. McCraney’s method of treatment did not violate the

standard of care. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986); Brown v. Baptist Mem’l Hosp. DeSoto, Inc., 806 So.

2d 1131, 1134 (Miss. 2002). With respect to the lack-of-informed-

consent claim, Dr. McCraney’s deposition testimony did not indicate

that prescribing physical therapy was below the standard of care or

that it caused Shirley’s worsened condition discovered in December

1994. See Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346,

1364 (Miss. 1990).

2 AFFIRMED.