Tuesday, June 19, 2007

Summary 2007 WY 99

Summary of Decision issued June 19, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Jacobsen v. Cobbs, MD

Citation: 2007 WY 99

Docket Number: 06-83

Appeal from the District Court of Lincoln County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff): William R. Fix and Jenna V. Mandraccia, William R. Fix, PC, Jackson, Wyoming. Argument by Ms. Mandraccia.

Representing Appellee (Defendant): Jeffrey C. Brinkerhoff, Brown, Drew & Massey, LLP, Casper, Wyoming; Nick A. Swartendruber, Poulson, Odell & Peterson, LLC, Denver, Colorado. Argument by Mr. Brinkerhoff.

Issues: Whether the lower court’s Order Denying Motion for Enlargement of Time, Denying Rule 56(f) Motion and Granting Summary Judgment was proper and in accordance with established law. Whether the lower court erred in relying on the Affidavit of Kenneth F.B. Cobbs, MD, as the basis for granting the Defendant’s Motion for Summary Judgment.

Facts/Discussion: Jacobson filed a medical malpractice action against Cobbs. In the course of litigation, Cobbs filed a motion for summary judgment supported by his affidavit in which he opined that his treatment of Jacobson met the applicable standard of care. Jacobson failed to substantively oppose the motion and instead filed motions to extend the time to respond. The district court denied Jacobson’s motions and granted summary judgment to Cobb.

Standard of Review: A summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact.
Motion for Enlargement of Time and W.R.C.P. 56(f) Motion:
The Court applied an abuse of discretion standard in reviewing the district court’s decision denying Jacobson’s motions for additional time. The district court explained its reasons for denying the request for additional time including: the failure to answer or respond to discovery served by Defendant after multiple extensions, the failure to seek a scheduling order, the failure to serve discovery on the Defendant, the failure to respond to the Court’s order to Show Cause and the failure to respond substantively to Defendant’s Motion for Summary Judgment. The Court agreed with the district court’s assessment. Rule 56 requires that adequate time be allowed for discovery to be conducted. The Court noted that Jacobson had over ten months in which to commence discovery and failed to take any action during the pendency of the matter to commence or complete discovery.
Affidavit of Dr. Cobbs:
The affidavit of Dr. Cobbs was sufficient under the standards set by W.R.C.P. 56(e). It was based on his personal knowledge, it set forth his qualifications and background, it described his treatment and he attached the medical records upon which he relied and he set forth his opinion that his treatment did not fall below the appropriate standard of care. Because Cobbs’ affidavit adequately supported his motion, the burden shifted to Jacobson to establish a genuine issue of material fact. Jacobson failed to meet his burden.

Holding: Because Jacobson was dilatory in prosecuting his case, the district court did not abuse its discretion by denying the motion for enlargement of time and the W.R.C.P. 56(f) motion. As the party opposing the summary judgment motion, he was required to show that evidence was available that would justify a trial on the issue of negligence. Jacobson failed to come forward with any such evidence and summary judgment was therefore properly granted.


J. Burke delivered the decision.

Link: http://tinyurl.com/34go7k .

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