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Hymes v. Deramus (08/26/2005) sp-5936
Hymes v. Deramus (08/26/2005) sp-5936
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RITA MARINA HYMES and
| ) |
|
DONALD LOUIS HYMES, | ) Supreme Court No. S-
11562 |
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| ) |
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Appellants, | ) Superior Court No.
4FA-03-1617 CI |
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v. | ) O P I N I O
N |
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| ) |
|
LEONIE DERAMUS, MD, and | ) [No. 5936 -
August 26, 2005] |
|
MICHAEL JAMES POMEROY, | ) |
|
| ) |
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Appellees. | ) |
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Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Rita Marina Hymes, pro se,
Fairbanks, and Donald Louis Hymes, pro se,
Sheridan, Oregon. Gail T. Voigtlander,
Assistant Attorney General, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellees.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Pro se plaintiffs Donald and Rita Hymes sued medical
personnel associated with the Alaska Department of Corrections.
After the defendants moved for summary judgment and supported
their motion with a physicians affidavit, the superior court
entered summary judgment against the Hymeses, who submitted no
responsive affidavit. The Hymeses argue here that it was error to
give them only an additional month in which to submit a
responsive expert affidavit. We agree, and reverse.
II. FACTS AND PROCEEDINGS
Donald Hymes is a federal prisoner who was temporarily
incarcerated at the Fairbanks Correctional Center (FCC), an
Alaska Department of Corrections facility, from May to August
2003. In July 2003 he and his wife, Rita Hymes, representing
themselves, sued medical personnel associated with the Department
of Corrections Dr. Leonie DeRamus and Michael Pomeroy1 alleging
medical malpractice, negligent infliction of emotional distress
(NIED), loss of consortium, and failure to report elder abuse.
The defendants moved for summary judgment on January 6, 2004 and
supported their motion with an expert affidavit from Dr. John M.
Robertson, MD, who found no evidence of malpractice. On January
23 the Hymeses filed an opposition and supporting memorandum that
stated that they had not had the opportunity to complete
discovery and quoted from a federal case applying Federal Rule of
Civil Procedure 56(f). They also argued that the superior court
had not clarified whether Donald requires an expert witness or
not.
On February 26 the superior court issued an order
explaining that if the Hymeses did not submit an expert affidavit
establishing the standard of care due from the defendants, breach
thereof, and damages proximately caused by such a breach of duty
of care, summary judgment will be entered against them.2 The
court gave the Hymeses until March 27 to supplement their
opposition. On March 26 the Hymeses requested a continuance.
The superior court denied that request and then granted the
defendants motion for complete summary judgment and awarded
attorneys fees to the defendants. The Hymeses appeal.
III. DISCUSSION
A. Standard of Review
We review for abuse of discretion a decision to deny a
continuance requested under Alaska Civil Rule 56(f).3 Grants of
summary judgment are reviewed de novo and will be upheld if there
are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.4
B. It Was an Abuse of Discretion To Deny the Hymeses
Request for Continuance.
We hold the pleadings of pro se litigants to a less
stringent standard than those of lawyers.5 We therefore read the
Hymeses pro se brief generously.
They appear to argue that it was an abuse of discretion
to deny them a continuance under Alaska Civil Rule 56(f).6 This
rule permits a party opposing summary judgment to request
additional time to gather and submit evidence to support the
partys opposition.7 We have repeatedly held that requests made
under Rule 56(f) should be granted freely because Rule 56(f)
provides a safeguard against premature grants of summary
judgment.8 Failure to offer an affidavit in support of a Rule
56(f) request does not prevent a party from seeking the
continuance.9 [T]he party seeking Rule 56(f) relief must do so
unambiguously, but need not specifically mention Rule 56(f) or
file a separate motion.10 In Gamble v. Northstore Partnership, we
elaborated further:
A request for Rule 56(f) relief need not
state what specific facts further discovery
will produce. The request will generally be
granted if the party provides adequate
reasons explaining why the party cannot
produce facts necessary to oppose summary
judgment within the original time frame, and
if the party has not been dilatory in his use
of discovery.[11]
Thus, a party must satisfy three requirements to
receive a continuance under Rule 56(f): the party (1) must
unambiguously request relief on those grounds, (2) must not have
been dilatory during discovery, and (3) must provide adequate
reasons why additional time is needed. We conclude that the
Hymeses met all three requirements.
1. The Hymeses unambiguously requested Rule 56(f)
relief.
It is apparently undisputed that the Hymeses
unambiguously requested more time in which to obtain an expert
affidavit in order to oppose the defendants summary judgment
motion.12 The amount of time requested was not clear. Their
continuance request asked the superior court to grant them an
extension of time tolling this action until [Donald] is released
from prison and can be properly evaluated by an expert witness in
person. (Emphasis in original.) Because the Hymeses did not
specify when Donald was to be released, the request could be read
as one for an indefinite continuance.
But the memorandum supporting the Hymeses continuance
request listed the options they believed were available to them:
(1) [g]et an extension of time to pursue finding a doctor willing
to give an affidavit, (2) [w]ait until [Donald] is released from
prison and enable him to get a medical check up and review of the
records, and (3) summons those medical doctors who have been
involved in the past and present treatment of [Donald]. Their
memorandum acknowledged that continuing to look for an expert
while Donald was incarcerated did not look very promising, but
they did not foreclose that option. Their request for more time,
then, was phrased in the alternative. Although they sought an
indefinite continuance, they also requested whatever extension of
time the superior court was willing to grant. The Hymeses
therefore satisfied the first requirement.
2. The Hymeses were not dilatory during discovery.
Trial courts have a duty to inform pro se litigants . .
. of the necessity of opposing a summary judgment motion with
affidavits or by amending the complaint.13 Furthermore, the
trial judge should inform a pro se litigant of the proper
procedure for the action he or she is obviously attempting to
accomplish.14 The superior court therefore had a duty to inform
the Hymeses of the need to submit a responsive expert affidavit
if they were to defeat the defendants motion for summary
judgment.15
The defendants argue that the superior court informed
the Hymeses about the necessity of an opposing expert affidavit
on at least three occasions and that the Hymeses were on notice
for six months before entry of summary judgment that they needed
to obtain an expert affidavit. The record does not support this
assertion.
The defendants assert that the first of these occasions
was the pretrial scheduling conference of October 2003.
According to the defendants, the superior court told the Hymeses
that they would need to obtain their own experts affidavit to
oppose such a motion for summary judgment. But the audio
recording of this hearing does not reflect such an explicit
instruction.16 The court there discussed submitting factual
assertions by affidavit, but said nothing of getting an affidavit
from an expert, or that plaintiffs should get their own expert.
The defendants contend that the Hymeses were informed a
second time of the need for an expert affidavit by the defendants
January 5, 2004 memorandum supporting their motion for summary
judgment. Although we have held that trial courts have a duty to
inform pro se litigants of the applicable procedure in certain
situations, we have not considered whether the court itself must
give the notice or whether notice may be given by another party.
The United States Court of Appeals for the Ninth Circuit has held
that it is possible for the summary judgment movant to fulfill
the courts duty to inform as long as the notice satisfies a
number of criteria.17 These criteria appear to be rigorous enough
to guarantee functional notice.
But this case does not require us to decide whether a
movant can fulfill the courts duty to inform a pro se opponent,
because the defendants memorandum was clearly insufficient for
that purpose. The memorandum stated that, [i]n medical
malpractice cases, the plaintiff must offer expert testimony that
establishes the standard of care, and the breach thereof, in
order to proceed to trial. Persons in the Hymeses position would
not necessarily recognize that this was an objectively correct
statement of what the court would require; it is just as likely
that it would be considered part of the defendants argument,
because it is not always easy for pro se litigants to distinguish
between what is indeed correct and what is merely wishful
advocacy dressed in robes of certitude.
It therefore appears that it was not until entry of the
superior courts order of February 26, 2004 what defendants term
the third occasion that the Hymeses were unambiguously put on
notice that they needed an expert affidavit to oppose the pending
summary judgment motion. The February 26 order stated that
summary judgment would be granted unless the Hymeses procure and
present a medical experts affidavit establishing the standard of
care due from the defendants, breach thereof, and damages
proximately caused by such a breach of duty of care. The order
gave the Hymeses until March 27 to supplement their summary
judgment opposition. Therefore, from the time they were
unambiguously informed of the need to obtain an affidavit, these
pro se litigants had only one month in which to do so.18
The Hymeses apparently contacted several different
doctors around the country in attempting to obtain an affidavit.
Based on the frequency of contacts reported by the Hymeses, we
think they were reasonably diligent in looking for a physician
who would assist them. The Hymeses therefore satisfied the
second requirement.
3. There were adequate reasons for a continuance.
The circumstances of this case required a reasonable continuance.
Thirty days is not likely to be enough time for an incarcerated
pro se litigant to arrange for an expert medical affidavit.
Although an indefinite continuance would not have been justified,19
the Hymeses alternatively suggested an extension of time that was
not necessarily open-ended. The Hymeses should have been granted
a reasonable and limited continuance. The superior court also
should have told them that a personal examination of Donald was
not required and that an expert affidavit based on a review of
his medical records would be adequate.20 Accordingly, we hold
that it was an abuse of discretion to deny the Hymeses request
under these circumstances. We remand the case with instructions
to grant the Hymeses a reasonable continuance in which to attempt
to obtain an opposing expert affidavit.
C. The Superior Court Should Consider on Remand Whether
only Partial Summary Judgment Is Appropriate.
If, after a reasonable continuance, the Hymeses are
still unable to obtain an adequate rebuttal affidavit, the
superior court should consider whether only partial, rather than
complete, summary judgment is appropriate. We have observed that
a defendant is not entitled to complete summary judgment in
Alaska unless it demonstrates as to each claim against it that
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law.21 The expert affidavit
submitted by the defendants to support their motion for summary
judgment contained the following caveat:
The following summarizes my opinion
concerning only the issue of medical care,
based upon concerns raised in the complaint
and review of the documentation. It does not
attempt to address allegations and
attributions of statements to Department of
Corrections Medical Staff or others nor does
it respond to a series of unsubstantiated
complaints including but not limited to:
Someone forgets to dispense medications,
Someone alters paperwork, or The medication
was accepted by FCC but not given to Don, or
other allegations concerning co-payment for
medical services.
If the affidavit did not address all of the Hymeses
claims, the defendants may not have made out a prima facie
showing of entitlement to complete summary judgment. If so, the
Hymeses have no obligation to demonstrate that a genuine factual
issue existed in order to avoid complete summary judgment.22
We also observe that non-technical claims would not
have to be supported by expert evidence.23
IV. CONCLUSION
For these reasons, we REVERSE the summary judgment. We
therefore also VACATE the attorneys fee award.
_______________________________
1 According to the defendants, Pomeroy was employed as a
Physician Assistant at FCC, and Dr. DeRamus served as the
collaborating physician and consultant to [Pomeroy] under a
professional services contract.
2 The superior court apparently considered all of the
Hymeses claims to be technical in nature. As we note in Part
III.C below, some of the Hymeses claims may be non-technical. If
so, those claims would not have to be supported by expert
evidence.
3 Kessey v. Frontier Lodge, Inc., 42 P.3d 1060, 1062
(Alaska 2002).
4 Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593,
597 (Alaska 2004).
5 Fyffe v. Wright, 93 P.3d 444, 452 n.17 (Alaska 2004).
6 Alaska Civil Rule 56(f) provides:
Should it appear from the affidavits of a
party opposing the motion that the party
cannot for reasons stated present by
affidavit facts essential to justify the
partys opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.
7 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1259 (Alaska
2001).
8 Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d 481,
489 (Alaska 2002); see also Gamble v. Northstore Pship, 907 P.2d
477, 485 (Alaska 1995); Munn v. Bristol Bay Hous. Auth., 777 P.2d
188, 193 (Alaska 1989).
9 Kessey, 42 P.3d at 1063.
10 Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska
1998).
11 Gamble, 907 P.2d at 485 (citation omitted).
12 An affidavit is only one way to submit expert evidence
at the summary judgment stage. For example, evidence may also be
submitted through deposition testimony. We refer here to the
need to submit an expert affidavit synonymously with the need to
submit expert evidence because an affidavit is the usual method
for submitting such evidence at this stage of a lawsuit,
especially if no discovery has taken place.
13 Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1273
(Alaska 2001).
14 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
15 See Kaiser v. Sakata, 40 P.3d 800, 804 (Alaska 2002)
(holding that trial court made adequate allowance for plaintiffs
pro se status by advising plaintiff quite clearly that if he did
not submit an expert affidavit to challenge the affidavit
submitted by defendants, [plaintiff] would lose on summary
judgment).
16 At the October 2003 hearing, the superior court stated
in relevant part:
Ill urge you to look at the authority,
whatever authority their brief [cites] and be
very aware of the requirements of Rule 56,
the rule governing summary judgment. Any
factual assertions that you rely upon must be
submitted by affidavit. And Im giving you
this advance notice because of the cases that
suggest judges should. It will not be
adequate to simply write something out that
says why you disagree. Affidavits to factual
assertions, documents, and of course legal
authority.
17 Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en
banc) (holding that the requirement that [d]istrict courts are
obligated to advise prisoner pro per litigants of Rule 56
requirements, may be met by the summary judgment movant providing
the prisoner with notice.) (quoting Klingele v. Eikenberry, 849
F.2d 409, 411-12 (9th Cir. 1988)) (citation omitted).
The notice must be in a separate form not provided
within the summary judgment motion or supporting papers; it must
be phrased in ordinary, understandable language; it must inform
the pro se litigant of the right to file counter-affidavits or
other responsive evidentiary materials and . . . [alert the pro
se litigant] to the fact that the failure to do so might result
in the entry of summary judgment; it must clearly and
conspicuously inform the pro se litigant that the case will be
over without a trial if summary judgment is granted; and the
notice must indicate that it is required to be given by the
court. Id. at 960-61.
18 We also note that defendants moved for summary judgment
less than six months after the complaint was filed and less than
five months after the answers were served.
19 We have said that [i]t would defeat the utility of
summary judgment to permit a non-movant to delay indefinitely
submitting evidence rebutting the movants prima facie showing.
Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d 481, 490 (Alaska
2002) (emphasis added).
20 The opinions expressed in the affidavit of the
defendants medical expert, Dr. Robertson, were based on his
review of Donalds records. Dr. Robertsons affidavit does not
imply that he ever examined Donald.
21 Ball, 58 P.3d at 485-86.
22 Id. at 487. The non-moving party need not demonstrate
the existence of a genuine issue until the moving party makes a
prima facie showing of its entitlement to judgment on established
facts. Alaska Travel Specialists v. First Natl Bank of
Anchorage, 919 P.2d 759, 762 (Alaska 1996) (quoting Shade v. Co &
Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995)). See
also Ball, 58 P.3d at 487 n.14; Christensen v. NGH Corp., 956
P.2d 468, 474 (Alaska 1998).
23 Plaintiffs are required by law to support [a medical
malpractice] claim with expert testimony unless the causation of
[the] alleged injury [is] of a non-technical nature. Parker v.
Tomera, 89 P.3d 761, 766 (Alaska 2004). In other words, expert
evidence is not required if the negligence claimed would be
evident to lay people. Id. Most of the Hymeses contentions
involved treatment decisions, prescriptions, or other medical
issues that are arguably technical; if so, they must be supported
by expert evidence. But some of allegations could possibly fall
into the non-technical category, such as the failure to provide
medication and adequate access to licensed physicians. Because
the parties have not raised this distinction on appeal and did
not raise it below, we do not attempt to decide which, if any, of
the claims might not require expert evidence.
