Most plaintiff lawyers think settlement means that a case would be concluded in their favor. Yet some settlements mean the opposite: plaintiff loses. This article discusses how to avoid these disasters. Case dismissal is a form of settlement, albeit by default or through an involuntary dismissal. Beware of “docket clearing” procedural devices. These are legal “slip and falls” which can make a sunny day, cloudy. For instance, all states now have calendaring dates: dates by which all affirmative defenses must be filed, discovery completion dates, expert disclosures, and others. Don’t miss these! It is hard enough to win the best case before the best judge and with the best jury.

Examples of Avoidable Loses

Cases are dismissed all the time by these docket clearing statutes. Now, consider these specific examples:

In a tort case, it is seldom that either party can prevail in a summary judgment proceeding under Fed.R.Evid. 56 unless one party essentially defaults. There is always some issue of material fact which a party can raise. Yet filing no response to a summary judgment motion, a late response (which is the same as no response), leaves the court little leeway in its discretion.

The Rule states the court shall render judgment for the party seeking the motion “if the pleadings, depositions, answers to interrogatories, and admissions … together with the affidavits … show that there is no genuine issue of material fact and that the moving part is entitled to a judgment as a matter of law.”[1] How difficult is it to raise any issue which would be larger than “no” issue?

The legal device of summary judgment is familiar to tort lawyers but it is wise to emphasize a point here on the quantum of proof required. The law requires legally sufficient proof. What is meant by “legally sufficient?” In Mobley v. Raymond,[2] a wrongful death action where an automobile driver was killed, the defendant brought summary judgment and the trial court granted the motion. The decedent may have suffered a stroke prior to the accident thereby raising the defense of sudden incapacitation. The North Carolina appellate court ruled that the issue of whether the decedent should have foreseen stroke raised a genuine issue of material fact and this precluded summary judgment.

The law of summary judgment is subject to 50 interpretations but, in general, the defendant is “not required to present any evidence to support his claim for relief until the defending party has established his right to judgment as a matter of law.”[3] Further, “[i]n ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party.”[4] There is another guideline which the appellate court addressed: “[s]ummary judgment is rarely appropriate in a negligence action.”[5] In the summary judgment proceeding, the defendant was able to produce evidence which supported its defense of sudden incapacitation.[6] The court did not quantify exactly how much evidence was required to surmount summary judgment, concluding that the issue before the court was a jury question, not one appropriate for summary judgment.

In Rosenthal v. Mueller,[7] though, in the context of a rear-end collision case, the court used the quantum of “legally sufficient” or “more than a “scintilla.” “Legally sufficient” is an important concept here since a “scintilla of evidence” is not enough. A scintilla amounts to “no more than a surmise, [a] possibility, or conjecture.” What is required is evidence which “must be of legal probative force and evidential value.”[8]

To define what is meant by scintilla, the court sought authority in the analysis of Judge McWilliams in Turner v. Hammond[9] where he concluded “[a]ll definitions of scintilla, at least in this context, are imprecise but … it takes ten gossamers to make a scintilla.”

Here’s the rule: to survive summary judgment, then, legally sufficient evidence is required; a mere scintilla in not enough. Great legal deference is accorded to the non-moving party.

Cooperate with Discovery Requirements

A failure to cooperate with legitimate discovery may trigger dismissal. One might expect that courts would take a dim view where the party does not attend his own deposition. In a medical negligence action, the Georgia Supreme Court[10] upheld the dismissal of a medical negligence case where the plaintiff failed to appear for its own deposition. The ruling involved an interesting legal wrinkle: whether a non-noticing party may seek sanctions for the failure of the deponent to appear.[11] In Georgia, it appears as if a non-noticing party may obtain sanctions when the deponent fails to appear.

Mind the Process

Improper service, insufficient process, will provide a basis for case dismissal. Adequate service of process to initiate a claim, it goes without saying, is crucial to the plaintiff achieving any day in court. Yet here the plaintiff failed to serve the defendant. In Flemister v. Hopko,[12] the plaintiff was guilty of laches after it did not achieve effective service on a elusive defendant when it served the defendant more than 13 months after the expiration of the limitation period. The plaintiff merely checked the telephone directory and called directory assistance. The plaintiff was told by an “unknown” individual at the defendant’s last know employer that the defendant no longer worked at the place of employment. The plaintiff then received the defendant’s answer and assumed that the defendant had been effectively served even though the record did not contain an entry of service. Here, the court concluded that the plaintiff failed to exercise due diligence in perfecting service after the running of the statute of limitation.[13] In an affidavit, the plaintiff’s attorney said she “sent the service papers to the best address I had …”[14] Even where a former employer provided false information, this will not save the plaintiff who is not diligent since “there is no evidence suggesting any conspiracy or attempt to evade service on the part of [the] defendant.”[15]

The court wrote a scorching opinion where it noted that the plaintiff “failed to identify the name or function of the person to whom a paralegal spoke.”[16] In addition, the sought-after defendant “has lived openly and continuously at her present address since March 1995, and is listed in the telephone directory albeit in a town not among those which were checked by plaintiffs.”[17] Plaintiff then did nothing for more than a year to accomplish service on the defendant until the plaintiff was served with the defendant’s motion for summary judgment … which provided the defendant’s address.[18] Federal Rules of Civil Procedure 4 and 5, and their state analogues set forth these fundamental procedural requirements and their individual provision must be met … scrupulously.

If a plaintiff refuses to “play by the rules” the court may dismiss the action. In Roberts v. Maren Engineering[19] the plaintiffs failed to respond to discovery requests and the trial court dismissed the action. Here, the failure to cooperate was viewed as conscious and intentional, not merely accidental or involuntary.[20] The plaintiffs failed to respond over three months after their responses were due and the court felt that this failure to respond was supported by a “complete disregard of the numerous letters and phone calls from defense counsel concerning the discovery.”[21] The plaintiff failed to respond even in light of the defendants’ motion to dismiss the complaint! The appellate court had little patience here, writing, “It is patently absurd to argue that they were not aware responses were past due when faced with such motions.”[22]

Often, the plaintiff bar tars and feathers the defense bar with claims that the defendants unnecessarily sabotage litigation. The case of Lindholm v. Wilson[23] illustrates what happens when a party does not meet a statutory required disclosure and the great latitude given to a trial court’s discretion.

In Lindholm, the plaintiff failed to disclose an expert witness in conformity with Illinois Supreme Court Rule 20 and the trial court barred the witness from testifying. The appellate court upheld this ruling and this had a sorry effect . The plaintiff had been involved in an automobile accident where his vehicle was destroyed and he sought $13,000 in property damages. The defendant filed interrogatories which required that the plaintiff provide the name of “each person … who was present … at the scene immediately before, at the time of, or immediately after” the accident.[24] Further, an interrogatory asked for a list of all expert witnesses not included in the previous answer. The plaintiff answered “none, investigation continues.”

In fact, there was an insurance adjuster which the plaintiff wanted to use at trial or any other insurance company employee who had knowledge of the accident or of the damages and the plaintiff failed to produce the “requested list of expert witnesses.” The plaintiff then failed to attend his own deposition twice and then there were two dismissals “for want of prosecution.” Then both sides appeared for trial.

The defendant then presented a motion for summary judgment on the ground that the plaintiff did not identify a property damage expert which was required according to Illinois Supreme Court Rule 220 (107 Ill.2d R. 220). The bar prevented the plaintiff from presenting economic property damages.[25] The plaintiff argued that it planned to use its own adjuster and that the witness was not an expert witness to testify about the value of the loss. He did acknowledge, however, that he had not disclosed this witness to the defendant. Further, the plaintiff attempted to introduce the adjuster’s report as a business record. Both of these arguments the trial court rejected and granted the defendant’s motion.[26]

The rational behind expert witness disclosures is to “insure fair and equitable preparation for trial by all parties,”[27] and, concluded the court,  a failure to disclose according to the rule merits “disqualification of the expert as a witness.”[28] The appellate court concluded that even if the adjuster-expert witness was really not an expert witness  and the court rule did not apply “the insurance adjuster’s testimony may properly be excluded as a discovery sanction pursuant to Supreme Court Rule 219(c) (107 Ill.2d R. 219(c).) …  [A] judgment “may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct.”[29]

The law is not forgiving in this respect. “In deciding whether exclusion is proper, a court should consider “surprise to the opposing party;  whether the omission was intentional or inadvertent;  the nature of the witness’ testimony;  timeliness of the objection;  opportunity of the opposing party to interview or depose the witness prior to trial;  and prejudice resulting to the opposing party by virtue of the testimony.”[30]

In this case, the court engaged in this analysis:

 

The accident in this case occurred on February 8, 1983.  Plaintiff filed a response to defendant’s interrogatories on October 10, 1984, long after his insurance company completed its investigation and the processing of his claim.  The response failed to give any information whatsoever regarding the name of plaintiff’s insurer or the identity of other persons who had “knowledge of the facts of said occurrence or of the injuries and damages following therefrom,” thus ignoring several direct questions soliciting this material.  Such evasiveness can only be interpreted as an intentional attempt to disadvantage the opposing party.  Full disclosure would have given defendant ample opportunity to depose the adjuster before trial, an important consideration since plaintiff’s car was completely destroyed and no tangible evidence of diminution of value such as a paid repair bill could have been produced.[31]

 

The defendant had no obligation to act in a friendly manner and the court commented, “[t]he fact that a simple letter or telephone call may have prompted a more complete response and greatly reduced litigation delays does not appreciably enhance defendant’s cause before this court.”[32] It is the defense’s strategy to do what it can to win, after all, and often that may entail NOT advising the plaintiff that it has not complied with a rule which will, if its effect plays out, disengage its case. For the defense, what could be better than for it to win by dismissal? Here the court rebuked the plaintiff with: “Plaintiff’s blatant discovery violations should not be countenanced.”[33]

Some additional cases provide a wider perspective and permit the trial lawyer to examine some of the law’s innuendoes and subtleties:

A Constitutional Side of Affidavits of Merit

 

In actions in which a professional is the defendant, many states require an “affidavit of merit,” an affidavit which attests that the cause of action is “reasonable.” In Hunter Contracting,[34] the Arizona Supreme Court held that their statute, Arizona Revised

Statutes Annotated §12-2602 (Supp. 1996), violated the Equal Protection Clause of the Arizona Constitution since the effect of the statute offended Ariz. Const. art. XVIII, §6 which created a fundamental right for persons to pursue a damage action for injuries.[35]

The offending statute required the plaintiff to submit a threshold affidavit which sets forth “1. The acts or omissions on which the claim is based. 2. The factual basis for each claim. 3. How the acts or omissions directly caused or contributed to the damages that are alleged in the claim.”[36] Then:

E. If a party fails to file an affidavit with the claim the court shall dismiss the claim for failure to state a claim. The party may not cure the claim by amending the pleadings unless the court determines that the party possessed the affidavit before the claim was filed and failed to file the affidavit with the claim due to excusable neglect or mistake.[37]

 

This is an important case for all attorneys who participate in medical negligence litigation since the pre-filing requirement must be met in at least the states of Michigan, Georgia, and Florida. The Arizona court noted that the “assumption that expert testimony is an essential, indispensable component of any professional negligence claim” is mistaken” since, under Arizona law, expert testimony is necessary only when the “the question to be determined is strictly within the special and technical knowledge of the profession and not within the knowledge of the average layman.”[38]

Arizona permits recovery under res ipsa loquitor and in cases where the common man would identify negligence, no expert is required. Other states permit exceptions to the expert evidence affidavit when cases falls into the realm of “common knowledge.”[39] For instance, Cal. Civ. Proc. Code § 411.35(d) (Deering Supp. 1997) provides that no expert evidence is required when a party relies solely on the doctrine of res ipsa loquitur, or exclusively on a failure to inform of the consequences. In Hawaii, Haw. Rev. Stat. § 672-2.5(b) (1993) does not require expert evidence where a party intends to rely solely on a failure to inform of the consequences of a procedure and Colo. Rev. Stat. Ann. §13-20-602(2) (1989) states that if a certificate of merit is not filed, a defendant who “believes that an expert is necessary to prove . . . professional negligence” may move for an

order requiring the filing of such a certificate. Finally, under Georgia law,[40] the case opinion distinguishes negligence by a professional from professional malpractice, holding that expert evidence is unnecessary under Ga. Code Ann. § 9-11-9.1 (1993) to prove mere negligence.[41]

Notice here that the penalty for the failure to provide an affidavit is dismissal in Arizona. Some states have included a measure of flexibility in their statutes. Colorado permits the court to determine whether a longer time that what the statute provides is necessary to file the affidavit under Colo. Rev. Stat. §13-20-602(1).

No matter in what jurisdiction one litigates, the lawyer must provide the appropriate affidavit but yet remain in touch with this constitutional parameter and make the argument when faced with an unfavorable ruling.

Two Heads Not Better Than One

Ball v. Foehner[42] was a legal malpractice case which arose after a fumbled medical negligence action. Here, the plaintiffs initially hired an attorney to assist their attorney in finding an expert witness. Two attorneys would work together on the matter but one attorney filed the parents’ cause of action too late and the court granted the defendants’ motion for summary judgment. The child’s case settled in a structure settlement for $6.2 million dollars.

In Mann v. Cracchiolo[43] the plaintiff’s sued the UCLA Medical Center, 54 individual doctors, a radiology technician, the associate director of the hospital, and the hospital’s data processing manager. They alleged that these individuals broke the plaintiff’s neck and that they then conspired to conceal this conduct. One important issue on appeal was whether the response to summary judgment was filed in a timely manner.[44] The California Rules of Civil Procedure require ten days’ notice for summary judgment motions but the rules are silent as to when counteraffidavits must be filed.[45] Judges sometimes do not enforce local rules since “[j]udges . . . generally prefer to avoid acting as automatons and routinely reject requests by counsel to function solely in a ministerial capacity.  Rigid rule following is not always consistent with a court’s function to see that justice is done.”[46]

In analyzing judicial decisionmaking, the Court observed “[a]n attorney’s neglect in untimely filing opposing papers must be evaluated in light of the reasonableness of the attorney’s conduct.”[47] The court’s discretion may permit late filings when to do so would be reasonable.

In circumstances such as those present here trial courts must also consider the propriety of strictly enforcing local procedural rules.  The salutary purpose of such rules regulating the filing of opposing papers is to ‘. . . ensure that the court and the parties will be familiar with the facts and the issues so that meaningful argument can take place and an informed decision rendered at the earliest convenient time.’ [citation omitted] Also pertinent are the effects of strict enforcement on the rights of the parties and the furtherance of justice.[48]

 

The trial dismissed the case upon motion that the papers were not submitted in a timely manner. In this case, motions were made on 10 days’ notice and the materials comprised a file which was 800 pages. “Compliance with the Rule would have required Herculean efforts.”[49] Summary judgment is a drastic measure and in California, the courts are required to exercise discretion “and [to] relieve the attorney from tardy opposition filings when his conduct was reasonable.”[50]

California code is not as rigid as seen in other jurisdictions and permits “the court [to] conclude[] that the tardy filing of opposition papers would prejudice the moving party or other parties, it could continue the hearing requiring the tardy party to pay reasonable costs.”[51] Dismissal of the whole case, however, is not permitted and would be an abuse of discretion.[52]

Another appellate point in this case was that the court rejected the affidavit which one of the defendants filed. The affidavit lacked “the requisite foundational facts to qualify him to testify about the standard of care and tended to “shotgun his opinions in a conclusionary way.”[53] The doctor summarized the medical records, and the affidavit contained “factual assertions establishing triable issues of fact and precluded its rejection,” the Court wrote.[54] The court examined the sufficiency of other affidavits. Since there were facts alleged[55] the court concluded that the affidavits were adequate.[56]

The Mann court analyzed the subject of exchanging witness lists. When the court must consider compliance here, “the court shall take into account the extent to which the opposing party has relied upon the list of expert witnesses and will be prejudiced if the witness is called.”[57]

Unsigned Affidavit = No Probative Value

In Armbruster v. Edgar[58] the plaintiff became a quadriplegic following an automobile accident. The patient sustained cystic myelopathy which went untreated and he brought this medical negligence action. The plaintiff filed his trial data certificate 25 days late “without requesting or receiving an extension of time.”[59] The trial court then heard arguments and denied the plaintiff’s motion to continue the trial date but granted the plaintiff more time to oppose summary judgment, and granted the defendant’s oral motion to strike expert testimony of a plaintiff’s witness for a failure to comply with discovery and pretrial procedure rules.

In this case, the plaintiff submitted an unsigned affidavit in opposition to the summary judgment motion. The court granted the motion since the affidavit was worthless. The rule here is a simple one: an unsigned affidavit has no probative value.[60]

Conclusion

Litigation is tough but there are some wins which are relatively easy. The lesson here is a simple one. Pay attention to matters well within your control such as effecting good service according to the Rules, return phone calls, respond in a timely manner to motions, make certain that you file truly responsive responses; don’t miss deadlines, and if you do miss a deadline, be sure to notify the court in an appropriate manner and ask for permission to file outside of the time period. Finally, make sure affidavits are of sufficient quality and signed.

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