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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martinez v. Ha (11/17/00) sp-5332

Martinez v. Ha (11/17/00) sp-5332

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


ARTHUR MARTINEZ,              )
                              )    Supreme Court No. S-9227
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-97-1394 CI
                              )
YOUNG H. HA, M.D.,            )    O P I N I O N
                              )
             Appellee.        )    [No. 5332 - November 17, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                   Charles R. Pengilly, Judge.


          Appearances: Gary Foster, Law Office of Gary
Foster, Fairbanks, for Appellant.  Matthew K. Peterson, Clapp,
Peterson & Stowers, Anchorage, for Appellee.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          Arthur Martinez appeals the superior court's grant of
summary judgment to Dr. Young H. Ha on Martinez's claims of medical
malpractice and failure to obtain informed consent.  Because
Martinez's appeal relies upon facts and allegations that were not
properly submitted to the superior court, Martinez may not rely
upon them in this court.  We therefore affirm the grant of summary
judgment by the superior court.  
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Dr. Young H. Ha is an orthopedic surgeon who performed a
total left knee replacement on Arthur Martinez in September 1995. 
Martinez alleges that after removing his stitches in October 1995,
Dr. Ha rubbed Bacitracin into Martinez's wound with his bare hand,
and that Dr. Ha did not wash his hands before doing so. 
          During the course of treatment, Martinez received a deep
infection of his left knee, which ultimately necessitated, among
other things, a left knee fusion.  An expert advisory panel
concluded that the infection "most likely occurred as a result of
poor wound healing."  The panel noted that Martinez's "underlying
medical condition . . . included insulin dependent diabetes and
vascular disease" and that this medical condition put Martinez "at
significant risk" of developing the relevant complications.  One
panel member suggested that diabetics are about twice as likely as
non-diabetics to develop infections. 
     B.   Proceedings
          Martinez filed suit in 1997, alleging that Dr. Ha's
surgery and post-operative care were negligent.  He later amended
his complaint to allege that Dr. Ha failed to obtain his informed
consent. 
          The superior court appointed an expert advisory panel at
the request of Dr. Ha.  The panel found, among other things, that
there "was no evidence that the medical injury was caused by
unskillful care." 
          A pretrial order originally scheduled trial for September
1998.  Under the order, expert lists and reports were due on July
20, 1998.  
          Because Martinez had continuing medical problems, the
trial was continued by stipulation of counsel.  Superior Court
Judge Charles R. Pengilly rescheduled the trial for May 3, 1999. 
Judge Pengilly also extended the deadline for the disclosure of
expert witness lists to January 29, 1999, and stated that discovery
would remain open until April 2, 1999. 
          Dr. Ha filed his expert witness list and disclosure on
February 1. [Fn. 1]  The list included members of the expert
advisory panel and other physicians who would testify on the issues
of the standard of care, informed consent, and causation.   
          Martinez failed to disclose a list of experts by the due
date.  On February 9 Dr. Ha moved for an order to show cause why
Martinez's experts should not be stricken.  Dr. Ha argued that
Martinez violated both the pretrial order and Civil Rule 26(a)(2), 
and that these violations prejudiced him.   
          Martinez did not respond to the motion.  On March 2 Judge
Pengilly issued an order to show cause, stating:
               The Court, having concluded that the
Plaintiff failed to comply with this Court's order requiring the
disclosure of expert witnesses by January 29, 1999, and further
finding the Plaintiff in non-compliance with A.R.C.P. Rule
26(A)(2), enters the following order:
               Pursuant to the reasoning set forth in
          Sykes v. Melba Creek Mining, Inc., 952 P.2d
1164 (Alaska 1998), the Plaintiff is ORDERED to prove to this Court
why his failure to comply with court orders was not willful;
               The Plaintiff is further ORDERED to show
cause why this Court should not strike all, or some, of his
proposed expert witnesses, or enter some other sanction set forth
in Civil Rule 37(b) or (c);
               The Plaintiff is required to file a
response to this Order within ten days of the filing of this Order
with the clerk's office.
Martinez failed to respond to the order to show cause.
          On March 24 Dr. Ha filed a motion for summary judgment
and dismissal of the case.  He argued that Martinez's experts
should be struck because Martinez failed both to comply with the
pretrial order requiring the disclosure of expert witnesses and to
respond to the order to show cause.  Dr. Ha then argued that
summary judgment should be granted to him because without expert
testimony, Martinez would not be able to establish a prima facie
case of medical malpractice.  In making this latter argument, Dr.
Ha made reference to the expert advisory panel report, which stated
that there is no evidence that Martinez's injury was caused by
unskillful care. 
          Martinez failed to respond to the motion for summary
judgment within the time period prescribed by Civil Rule 77(c).  
          On April 14 Judge Pengilly granted Dr. Ha's motion for
summary judgment and dismissed Martinez's claims in their entirety. 
The order noted that Civil Rule 26(a)(2) required Martinez to
disclose the opinions of the experts that he would use at trial, 
that the pretrial order and subsequent stipulation established
January 29 as the last day to make the disclosure, and that
Martinez failed to make the disclosure.  Judge Pengilly then noted
that he had entered an order requiring Martinez to show cause why
the testimony of his experts should not be struck for violation of
the discovery rules and the court's previous orders, and that
Martinez had neither responded to the order nor disclosed any
experts.  As such, Judge Pengilly found that Martinez's failure to
comply was willful under Sykes v. Melba Creek Mining, Inc. [Fn. 2]
and that sanctions were therefore appropriate.  
          Judge Pengilly also noted that trial was scheduled to
begin in less than a month and that Dr. Ha was prejudiced by
Martinez's failure to disclose.  Judge Pengilly then precluded
Martinez from offering any expert testimony on the standard of
care, causation, and damages. 
          Because Judge Pengilly concluded that Martinez would be
unable to establish even a prima facie case of medical malpractice
without expert testimony, Judge Pengilly ruled that summary
judgment was warranted since "there is no fact in dispute regarding
the breach of any standard of care, and Dr. Ha has established,
through the expert advisory panel report, that no medical
malpractice was committed."  Judge Pengilly dismissed Martinez's
"claims in their entirety, and with prejudice," and directed Dr. Ha
to prepare a final judgment. 
          Martinez opposed the summary judgment motion on April 20, 
six days after Judge Pengilly granted summary judgment to Dr. Ha. 
The opposition did not address Martinez's earlier failures to show
cause, disclose experts, or comply with the pretrial order. 
          Martinez's opposition did, however, make reference to
deposition testimony that was relevant to the issues of medical
malpractice and informed consent.  Attached to the opposition was
further deposition testimony.  The record reflects that this
opposition was the first instance in which Martinez notified the
court of admissible evidence regarding either of his causes of
action.  
          The opposition was returned to Martinez, with an attached
civil deficiency memo stating:  "Per judge's instructions.  Case
has been dismissed." 
          On April 30 Martinez moved for a one-day extension to
file a motion for reconsideration.  Judge Pengilly granted the
motion for an extension.  Martinez did not meet the deadline.  On
May 3 Martinez requested an extension of two business days to file
a motion for reconsideration.  Judge Pengilly also granted this
motion.  On May 5 Martinez filed yet another motion for a two-day
extension, which was accompanied by an affidavit from counsel
stating that he and his staff had been extremely busy, and that "no
further extensions will be sought."  Martinez then filed a motion
for reconsideration on May 7, even though the court had not granted
his third motion for a time extension.  Judge Pengilly ultimately
denied this third motion on June 11, 1999. 
          On the same day, Judge Pengilly entered an order of final
judgment, which dismissed all of Martinez's claims with prejudice. 
On July 19 Judge Pengilly awarded Dr. Ha $7,192.90 in attorney's
fees. 
          Martinez appeals.
III. STANDARD OF REVIEW
          We review grants of summary judgment de novo. [Fn. 3]  In
doing so, we "must determine whether any genuine issue of material
fact exists and whether the moving party is entitled to judgment on
the law applicable to the established facts." [Fn. 4]  We view "the
facts presented in the light most favorable to the non-moving
party." [Fn. 5]  "All factual inferences are drawn in favor of the
non-moving party, and the existence of a dispute regarding any
material fact precludes summary judgment." [Fn. 6]  This court "may
affirm a grant of summary judgment on any basis appearing in the
record." [Fn. 7]
IV.  DISCUSSION
          The Superior Court Did Not Err in Granting Summary
Judgment to Dr. Ha.

          Civil Rule 77(c) provides that a party has fifteen days
to respond to a summary judgment motion.  Martinez did not respond
within that time. [Fn. 8]  His failure to file a timely response to
the summary judgment motion followed repeated instances of failure
to comply with various discovery orders.  The superior court
granted summary judgment to Dr. Ha on April 14, which was after
Martinez's time to respond had expired.  Martinez's attempt to
oppose the summary judgment motion on April 20, after summary
judgment had been granted to Dr. Ha, was ineffectual.
          Civil Rule 77(k) provides that a party may seek
reconsideration of a ruling within ten days of distribution of the
ruling.  Martinez did not do so, but did ask three times for
extensions of time to file a motion for reconsideration.  The first
two requests were granted, but Martinez did not seek
reconsideration within the time allowed.  As with his ineffectual
opposition to summary judgment, when Martinez finally moved for
reconsideration, it was beyond the time limits for doing so, even
as extended by the court. 
          Despite Martinez's manifest and repeated failures to
present his case to the superior court, summary judgment in Dr.
Ha's favor was not automatic.  We have stated that a summary
judgment movant "has no absolute right to summary judgment merely
because the opponent fails to respond." [Fn. 9]  Even if a motion
for summary judgment is unopposed, "the superior court may grant
the motion only if otherwise appropriate under Rule 56." [Fn. 10] 
Thus, the superior court must still determine whether there is any
dispute as to a genuine issue of material fact and whether the
movant is entitled to judgment as a matter of law.
          The expert advisory report was the only evidence that Dr.
Ha referred to in his motion for summary judgment.  The motion was
unaccompanied by affidavits or deposition testimony.  Dr. Ha had
also not previously submitted to the superior court any affidavits
or deposition testimony. [Fn. 11] 
          Before the superior court ruled on the summary judgment
motion, Martinez provided the superior court with no evidence
whatsoever that would enable him to defeat a proper motion for
summary judgment.  While Martinez provides extensive quotes of
relevant deposition testimony in his brief to this court, he did
not notify the superior court of this testimony until after the
superior court ruled against him. [Fn. 12]  The only substantive
documents that Martinez presented to the superior court before that
court ruled on the summary judgment motion were his complaint and
his amended complaint.  Allegations made in those unverified
documents did not provide the superior court with sufficient
grounds for denying Dr. Ha's motion for summary judgment. [Fn. 13]
          Thus, the expert advisory report was the only evidence
that the superior court had before it in ruling on the summary
judgment motion.  Such a report "is admissible in evidence to the
same extent as though its contents were orally testified to by the
person or persons preparing it." [Fn. 14]  The report stated that
"[t]here is no evidence that the medical injury was caused by
unskillful care."  Dr. Ha discussed this point in his motion to the
superior court, stated that "[t]here are no facts disputing this
evidence,"  and argued that "[t]his evidence establishes Dr. Ha's
entitlement to judgment as a matter of law."  Dr. Ha attached the
expert advisory report as an exhibit to his motion.   
          As a result, the superior court was presented with
uncontroverted evidence that Martinez could not prove at least one
element of his claim.  Because of this, we hold that the superior
court did not err in granting summary judgment to Dr. Ha.  
V.   CONCLUSION
          Because Dr. Ha presented the superior court with
uncontroverted evidence that Martinez could not establish a primafacie case and Martinez failed to provide any factual support for
his claims to the superior court until after it had reached a final
decision, we AFFIRM the superior court's grant of summary judgment
to Dr. Ha.          


                            FOOTNOTES


Footnote 1:

     In his brief, Dr. Ha states that his filing of the expert
witness list was timely.  However, the list was due on January 29, 
which was a Friday, and the superior court did not stamp it "Filed"
until February 1, which was a Monday.  Martinez's counsel stamped
the list "Received" on February 4.  The record does not suggest,
however, that either the superior court or Martinez took issue with
any possible lateness of Dr. Ha's filing.


Footnote 2:

     952 P.2d 1164 (Alaska 1998).


Footnote 3:

     See Meyer v. State, Dep't of Revenue, Child Support
Enforcement Div., ex rel. N.G.T., 994 P.2d 365, 367 (Alaska 1999).


Footnote 4:

     Id. (internal quotation marks and citations omitted).


Footnote 5:

     Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).


Footnote 6:

     Meyer, 994 P.2d at 367.


Footnote 7:

     Denardo v. GCI Communication Corp., 983 P.2d 1288, 1290
(Alaska 1999).


Footnote 8:

     Dr. Ha moved for summary judgment on March 24, 1999 and mailed
Martinez the motion on March 25.  Civil Rule 6(c) provides that if
a party is served by mail, three days shall be added to the
prescribed period for response.  Three days from March 25 was March
28; Martinez therefore had until April 12 to respond to the motion. 
Martinez did not respond to the motion by that date.  


Footnote 9:

     Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097,
1099 (Alaska 1989).


Footnote 10:

     Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994)  (internal
quotation marks omitted).


Footnote 11:

     Dr. Ha did submit a disclosure of expert witnesses, but the
assertions made in that document would not support a denial of
summary judgment because such assertions were not verified or made
under oath.  See Bennett v. Weimar, 975 P.2d 691, 694 (Alaska 1999)
("[A]ssertions of fact in unverified pleadings and memoranda cannot
be relied on in denying a motion for summary judgment.") (quoting
Jennings v. State, 566 P.2d 1304, 1309-10 (Alaska 1977)); see alsoAlaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136, 1139 n.3
(Alaska 1974) ("[S]tatements, not made under oath, may not be
considered as evidence on a summary judgment motion.").


Footnote 12:

     Moreover, Martinez never offered any explanation for his
failure to file a timely response to the summary judgment motion.


Footnote 13:

     See Bennett, 975 P.2d at 694.


Footnote 14:

     AS 09.55.536(e).