Cockrill v. Baptist Health et al

Filing 45

ORDER denying 39 Motion for Summary Judgment. Signed by Judge Billy Roy Wilson on 3/16/11. (kpr)

Cockrill v. Baptist Health et al

Doc. 45

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION TODD COCKRILL, Special Administrator of the Estate of BETTY J. WHATLEY, Deceased v. 4:10CV00524-BRW DEFENDANTS PLAINTIFF

BAPTIST HEALTH MEDICAL CENTERS; ET Al. ORDER

Pending is Separate Defendant Dr. Patricia Vickers' Motion for Summary Judgment (Doc. No. 39). Plaintiff has responded.1 Defendant's Motion for Summary Judgment is DENIED, because it appears to be premature at this point. Defendant's Motion for Summary Judgment asserts that Plaintiff has not identified an expert witness to provide testimony in support of his claim. Plaintiff argues that the Motion for Summary Judgment is premature, because discovery is ongoing, with several depositions scheduled for April. The deadline for case-in-chief expert disclosures is July 18, 2011.2 So I agree with Plaintiff that the motion is premature. Arkansas courts have interpreted the state's Medical Malpractice Act3 to require expert testimony that establishes: "(1) the applicable standard of care; (2) that the medical provider failed to act in accordance with that standard; and (3) that such failure was a proximate cause of the plaintiff's injuries."4 Summary judgment is proper when a plaintiff has failed to meet the

1

Doc. No. 44. Amended Final Scheduling Order, Doc. No. 35. Ark. Code Ann. § 16-114-206.

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3

Hamilton v. Allen, 267 S.W.3d 627, 631 (Ark. Ct. App. 2007) (citing Webb v. Bouton, 85 S.W.3d 885 (Ark. Ct. App. 2002)). 1
Dockets.Justia.com

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burden of proof on any of these elements.5 So it is clear that Plaintiff's case against Dr. Vickers should be dismissed if he cannot provide expert testimony that satisfies the elements of a medical malpractice claim. Because of this I will allow Defendant to renew their motion for summary judgment after the deadline for expert disclosures if it appears that Plaintiff cannot satisfy his burden of proof.6 IT IS SO ORDERED this 16th day of March, 2011.

/s/Billy Roy Wilson UNITED STATES DISTRICT JUDGE

5

Id. at 632. Dispositive motions are due by September 1, 2011. 2

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