APPEAL FROM THE SUPERIOR COURT, ELLEN SEGAL HUVELLE, J. [715 A2d Page 905]
Before Wagner, Chief Judge, Farrell, Associate Judge, and
Belson, Senior Judge.
The opinion of the court was delivered by: Belson, Senior Judge:
After the trial court granted summary judgment in favor of appellee Children's National Medical Center ("Children's Hospital") in this medical malpractice action, appellant Bisi Dada moved for reconsideration under Super.Ct.Civ.R. 60(b)(2) on the basis of "newly discovered fact[s]." On appeal, Ms. Dada asserts that the trial court abused its discretion in denying reconsideration of its order granting summary judgment. We decline to reverse, but vacate the order denying reconsideration and remand to the trial court so that it may consider and rule upon plaintiff-appellant's motion to reopen discovery in order to file, out of time, the statement of a crucial witness under Super.Ct.Civ.R. 26(b)(4), a motion pending before the court at the time it granted summary judgment, the failure to rule on which was one of the grounds for Ms. Dada's motion to reconsider.
Appellant Bisi Dada, as parent and next friend of Magnus Dada, a minor, filed this action in Superior Court alleging that the defendant-appellee Children's Hospital negligently administered and monitored an intravenous solution being supplied Magnus Dada, thus causing injury to the child. The court entered a scheduling order directing the parties to adhere to certain deadlines in completing the various phases of discovery and trial preparation. The order stated that the schedule could "not be modified except by leave of Court upon a showing of good cause."
On June 26, 1996, over a month after the deadline set in the scheduling order and after appellee hospital had filed its Rule 26(b)(4) statement, appellant filed a Rule 26(b)(4) statement naming a specialist in obstetrics and gynecology, a family physician, and a plastic surgeon as expert witnesses. According to the statement, each of the witnesses would testify "based on his education, experience, training, and his personal examination of the minor plaintiff."
The statement set forth nothing regarding the experts' expected testimony on the applicable standard of care or whether Children's Hospital had deviated from the standard. Counsel for appellee hospital promptly advised appellant's counsel that her Rule 26(b)(4) statement did not set forth the information to which appellee was entitled and also asked that appellant immediately supplement [715 A2d Page 906]
its answer to a related interrogatory. Counsel for the hospital also endeavored to secure dates for the depositions of appellant's experts. When it proved impossible to schedule the depositions of the experts, appellee's counsel obtained permission from appellant's counsel to speak directly to them.
After counsel for the hospital spoke with appellant's designated experts, appellee filed a motion for summary judgment. In it, appellee contended that appellant had failed to establish a prima facie case of medical malpractice because she had designated no expert witness who would testify as to the applicable standard of care or whether appellee had departed from it. In support of this contention, appellee attached affidavits in which appellant's named experts stated that they would not testify as to the standard of care or the hospital's deviation from it.
Appellant filed an opposition to appellee's motion for summary judgment and on the same day filed a "motion for leave to extend time for discovery" (actually, to reopen discovery for thirty days) so that appellant could supplement her Rule 26(b)(4) statement "to include an expert who will testify at trial on [appellant's] own theory [of] negligence and rebut the defendant's expert testimony. It will also enable the plaintiff to depose the defense expert witness and/or obtain essential documents from the deposed witness." In her motion to "extend time for discovery," appellant's trial counsel claimed that she was "astounded" by the affidavits that her experts furnished appellee.
In her opposition to appellee's motion for summary judgment, appellant contended that expert testimony was not necessary to establish the standard of care and that, in any event, she should be able to prove her claim through the hospital's experts without introducing independent medical testimony. In this opposition, appellant made no reference to her contemporaneous motion to "extend time for discovery."
The trial court granted the hospital's motion for summary judgment, noting that "plaintiff admittedly has not identified any expert who will testify as to the standard of care or defendant's violation of the standard of care. The time to designate such a witness has long expired."
Appellant filed a motion to reconsider the entry of summary judgment pursuant to Super.Ct.Civ.R. 60(b)(2). In that motion, appellant's counsel maintained that she was "shock[ed]" by the affidavits in which her experts stated they would not testify as to the applicable standard of care and that those affidavits constituted "newly discovered fact[s]" that warranted vacating the order granting summary judgment. She stated that she had located an expert who would testify that appellee had been negligent and that the negligence caused injury to her son. Six days later, she filed an affidavit of a registered nurse who stated that appellee had breached the applicable standard of care, along with a supplemental expert witness list naming the nurse as an expert. Appellee filed an opposition to the motion for ...