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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,
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DONALD LOUIS HYMES, ) Supreme Court No. S- 11562
Appellants, ) Superior Court No. 4FA-03-1617 CI
v. ) O P I N I O N
LEONIE DERAMUS, MD, and ) [No. 5936 - August 26, 2005]
Appellees. )

          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.

          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.
          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
          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.
     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)
          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
          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
          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
          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

     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

     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

     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

     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
     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.