By The Law Offices of John Day, P.C. on Jan 06, 2025 05:55 am
Because an HCLA (Medical Malpractice) plaintiff is required to prove the elements of his claim through expert testimony, summary judgment was affirmed after the trial court applied the cancellation rule to plaintiff’s expert’s conflicting testimony regarding damages. In Simmons v. Islam, No. M2023-01698-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2024), the plaintiff filed an HCLA claim alleging that the defendant psychiatrist had engaged in improper, sexualized conduct directed toward the plaintiff. When his claim was filed, the plaintiff relied on Expert 1, but Expert 1 dropped out of the case after depositions. The defendants filed a motion for summary judgment, asserting that without Expert 1 plaintiff could not prove his case. The plaintiff requested more time to identify a new expert, which the trial court granted. The plaintiff then disclosed Expert 2. In Expert 2’s affidavit, she stated that the plaintiff suffered damages as a result of the defendant’s conduct. During her deposition, however, she testified that you would expect damages and that they were possible, but that she “didn’t go into damages. I just basically put that you would expect damages, damages can be reignited.”
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