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Dada v. Children's National Medical Center

November 02, 2000

BISI DADA, APPELLANT,
v.
CHILDREN'S NATIONAL MEDICAL CENTER, APPELLEE.



Before Farrell and Glickman, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Per Curiam

Appeal from the Superior Court of the District of Columbia (Hon. Ellen Segal Huvelle, Trial Judge)

Argued October 10, 2000

Appellant Bisi Dada, as mother and next friend of Magnus Dada ("Magnus"), a minor, challenges the ruling of the trial court denying appellant's motion to reopen discovery and to reconsider summary judgment. Appellant contends that the court abused its discretion in denying the discovery motion and refusing to permit appellant to amend her Rule 26 (b)(4) statement. Appellant claims that a revised 26 (b)(4) statement would have enabled her to establish a prima facie case of medical negligence and, thus, survive appellee, Children's National Medical Center's ("Children's Hospital's" or "appellee's"), motion for summary judgment. Specifically, appellant argues: (1) that the trial judge erroneously applied the factors set forth by this court in Weiner v. Kneller, 557 A.2d 1306 (D.C. 1989), and (2) that Magnus' minor status was not appropriately considered by the trial court. Under this court's instructions in Dada v. Children's Nat'l Med. Center, 715 A.2d 904 (D.C. 1998) (hereinafter "Dada I"), and the deferential standard of review, the trial court's ruling should not be disturbed. Therefore, we affirm.

In her underlying complaint, appellant alleges that negligent care provided by the staff of Children's Hospital proximately caused injuries to the left arm of her minor daughter Magnus. On July 1, 1996, over a month after the scheduling order deadline and after appellee had filed its own 26 (b)(4) statement, appellant's trial counsel, Ms. Maryrose Ozee Nwadike, filed appellant's 26 (b)(4) statement, identifying Dr. Nixon Asomani, Dr. Cedric Poku-Dankwah, and Dr. Chester Haverback as experts. Appellant's 26 (b)(4) statement, however, set forth nothing regarding the experts' expected causation and/or standard of care testimony. *fn2

Pursuant to the scheduling order, discovery closed on August 9, 1996. On August 23, 1996, Children's Hospital moved for summary judgment contending that appellant was incapable of producing the expert testimony necessary to sustain a medical malpractice action. Supporting its motion, Children's Hospital submitted affidavits from Dr. Poku- Dankwah and Dr. Asomani as well as a medical report from Dr. Haverback, revealing that they would not be serving as causation and/or standard of care experts.

On September 4, 1996, appellant's counsel filed an opposition to appellee's motion for summary judgment as well as a separate motion for leave to extend discovery. In the discovery motion, Ms. Nwadike expressed surprise at the affidavit testimony of appellant's purported experts. In her opposition to appellee's motion for summary judgment, however, Ms. Nwadike neglected to reference her contemporaneous discovery motion. On September 10, 1996, the trial judge granted appellee's motion for summary judgment.

On September 21, 1996, appellant filed a motion to reconsider. Therein, appellant's counsel maintained that she was shocked by the affidavits of her experts and argued that those affidavits constituted newly discovered facts that warranted vacating the order granting summary judgment. *fn3 The trial court scheduled a hearing on the motion to reconsider, but Ms. Nwadike failed to appear. *fn4 On November 6, 1996, the trial court issued an order denying the motion to reconsider.

On August 13, 1998, this court vacated the order denying the motion to reconsider, and remanded for consideration and disposition of the motion to reopen discovery. See Dada I, supra, 715 A.2d at 911. After a briefing period, the trial court held an evidentiary hearing on February 11, 1999, pursuant to this court's decision in Dada I. At the hearing, the trial court heard evidence from Ms. Nwadike, Dr. Asomani, Dr. Poku-Dankwah, and Dr. Haverback. *fn5

While the formal order was not filed until April 22, 1999, the trial judge effectively issued her decision from the bench immediately following the evidentiary hearing on the motion to reopen discovery on February 11, 1999. The trial judge ruled that additional discovery was not warranted as appellant failed to satisfy the required showing of good cause and excusable neglect. Appellant challenges this determination.

In Dada I, we provided the trial judge with the legal framework for determining appellant's discovery motion on remand. Therein, this court stated:

On remand, the trial court will be called upon to decide whether, as of the time the court was considering the hospital's motion for summary judgment and the subsequent motion for reconsideration, appellant had made the required showing of good cause for modification of the court's scheduling order. The time for completing discovery, including the filing of Rule 26 (b)(4)(2) statements, had expired before appellant filed her "motion to extend time for discovery." Accordingly, pursuant to Super. Ct. Civ. R. 6 (b), in order to qualify for the relief she sought, it will be also incumbent upon appellant to satisfy the trial court that appellant's failure to act in timely fashion was due to excusable neglect. Dada I, supra, 715 A.2d at 908 (emphasis added).

In determining the existence of good cause and excusable neglect, we directed the trial court to the factors outlined in Weiner, supra. *fn6 In Dada I, this court also indicated that, "[t]he trial court may consider other factors that affect the balance in question, taking into account the status of the case at the time of the request to reopen." Id. at 910. *fn7

When determining the propriety of a decision on a discovery motion the, "standard of review is . . . deferential, and in the absence of a showing of abuse of discretion or legal error, it is [this court's] duty to sustain the motions judge's disposition." Haqq v. Dancy-Bey, 715 A.2d 911, ...


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