FSM SUPREME COURT TRIAL DIVISION
Cite as Joe v. Kosrae
13 FSM Intrm. 45 (Kos. 2004)

[13 FSM Intrm. 45]

TOLENNA JOE, JOANA JOE, CHRIS LEE JOE,
and EMILY JOE, as personal representatives of
ROSEMARY JOE, deceased,
Plaintiffs,
 
vs.
 
KOSRAE STATE GOVERNMENT, KOSRAE STATE
HOSPITAL, DR. LEVINSON TAULUNG, DR. PAUL
SKILLING, ST. LUKE MEDICAL CENTER, and DR.
ARSENIO C. CANTOS,
Defendants.
 
CIVIL ACTION NO. 2002-2002
 
ORDER GRANTING SUMMARY JUDGMENT AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: November 11, 2004

APPEARANCES:

For the Plaintiffs:             Sasaki L. George, Esq.
                                         Micronesian Legal Services Corporation
                                         P.O. Box 38
                                         Lelu, Kosrae FM 96944
 
For the Defendants:       Arthur Buck, Esq.
                                        Kosrae Attorney General
                                        Office of the Kosrae Attorney General
                                        P.O. Box 870
                                        Lelu, Kosrae FM 96944

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HEADNOTES

Civil Procedure ) Summary Judgment
     When a movant requests an extension of time to do additional discovery in order to resist a summary judgment motion, the movant must demonstrate that the proposed discovery would lead to facts essential to justify the opposition to the motion, but when, even with the benefit of additional time to make an offer of proof, the movant has come forward with nothing to show how an extension would lead to facts essential to opposing a summary judgment motion, the motion for an extension will be denied. Joe v. Kosrae, 13 FSM Intrm. 45, 46-47 (Kos. 2004).

[13 FSM Intrm. 46]

Civil Procedure ) Summary Judgment
     When there is a summary judgment motion pending to which no response has been filed, under Civil Procedure Rule 6(d), failure to respond to a motion is deemed consent to the granting of the motion. However, there still must exist a good basis in law and fact upon which to grant the motion. Joe v. Kosrae, 13 FSM Intrm. 45, 47 (Kos. 2004).
 
Civil Procedure ) Summary Judgment; Torts ) Duty of Care; Torts ) Negligence
     When, according to the complaint’s allegations, the defendants’ medical malpractice led to the deceased’s death, and when, attached to the defendants’ summary judgment motion is an affidavit of a medical doctor who is board certified in the field of family practice and the affidavit recites that the doctor has reviewed the medical records and that his opinion is that her diagnosed illness, tuberculosis of the spine, was so serious that in order to avoid paralysis, it would have been acceptable practice to administer the medications in question even if the deceased’s treating doctors had been aware of her hepatitis history, the doctor’s affidavit is relevant evidence based on an adequate foundation, that tends to show that the defendants did not violate the applicable standard of care. This evidence is of sufficient weight that left unopposed, no genuine issue of material fact exists under FSM Civil Rule 56, and the defendants are entitled to judgment as a matter of law. Since the plaintiffs have offered nothing to meet the evidence offered by the defendants, no genuine issues of material fact therefore exist, and the defendants are entitled to summary judgment in their favor. Joe v. Kosrae, 13 FSM Intrm. 45, 47 (Kos. 2004).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

     On September 30, 2004, the first four named defendants (collectively "Kosrae") filed their motion for summary judgment. On the last day for responding to the motion, the plaintiffs (collectively "Joe") filed a motion for an extension of 40 days in which to respond to the motion. The stated purpose of the 40 day extension was to obtain certain depositions and have them reviewed by a medical consultant. Noting that discovery cutoff in this case was August 31, 2004, and that Joe should be in a position to meet Kosrae’s competent evidence by evidence of its own for purposes of FSM Civil Rule 56, the court by order dated October 13, 2004, denied the motion for a 40 day enlargement of time, but gave Joe until October 25, 2004, to file its response to the motion for summary judgment. Instead of responding as directed, Joe filed on October 26, 2004 ) one day after the date on which the response to the motion for summary judgment was due ) a second request for a 60 day enlargement of time, which reurges the points made in the first motion for an extension. On October 29, 2004, Kosrae opposed the second motion for an extension. By order of the same date, the court held in abeyance a ruling on the second motion for enlargement and gave Joe until November 5, 2004, to make an offer of proof showing that fact issues exist. Joe filed nothing in response to the November 5, 2004, order.

     As noted earlier, the discovery cutoff in this case was August 31, 2004. In its response to Joe’s first motion for an extension, Kosrae cites Scott v. CIBA Vision Corp., 44 Cal. Rptr. 2d 902, 913 (Cal. Ct. App. 1995), for the proposition that where a movant requests an extension of time to do additional discovery in order to resist a motion for summary judgment, the movant must demonstrate that the proposed discovery would lead to facts essential to justify the opposition to the motion. While Scott was decided under the California Code of Civil Procedure, and not under the U.S. federal rules upon which the FSM rules are modeled, this is nevertheless a sound principle. Here, even with the benefit of additional time to make an offer of proof, Joe has come forward with nothing to show how obtaining

[13 FSM Intrm. 47]

the opinion of a medical consultant at this late stage of this case would lead to facts essential to opposing Kosrae’s motion under FSM Civil Rule 56. Accordingly, Joe’s second motion for an extension is denied.

     The denial of the second motion for an extension now leaves this case in a posture where there is a summary judgment motion pending to which no response has been filed. Under Rule 6(d) of the FSM Rules of Civil Procedure, failure to respond to a motion is deemed consent to the granting of the motion. However, there still must exist a good basis in law and fact upon which to grant the motion. Island Cable v. Gilmete, 9 FSM Intrm. 264, 266 (Pon. 1999).

     The complaint in this case contains six claims for relief, the first four of which are directed to one or more of the Kosrae defendants. All claims rest to a greater or lesser degree on the central allegation that it constituted medical malpractice to administer certain medications to Rosemary L. Joe when she had a history of hepatitis. Failure to obtain a complete medical history for Rosemary showing her history of hepatitis is also alleged as a violation of the applicable standard of care. According to the allegations of the complaint, the defendants’ medical malpractice led to the death of Rosemary. However, attached to Kosrae’s motion for summary judgment is the affidavit of Steven T. Meister, M.D., a medical doctor who is Board Certified in the field of family practice. In the affidavit he recites that he has reviewed Rosemary’s medical records, and offers the opinion that her diagnosed illness, tuberculosis of the spine, was so serious that in order to avoid paralysis, it would have been acceptable practice to administer the medications in question even if Rosemary’s treating doctors had been aware of her hepatitis history. According to Dr. Meister, although the administration of the drugs in question involved risk of liver damage, that risk was acceptable in light of the condition for which Rosemary was diagnosed.

     Dr. Meister’s affidavit is relevant evidence, based on an adequate foundation, that tends to show that Kosrae did not violate the applicable standard of care. This evidence is of sufficient weight that left unopposed, no genuine issue of material fact exists under FSM Civil Rule 56, and Kosrae is entitled to judgment as a matter of law. Joe has offered nothing to meet the evidence offered by Kosrae. No genuine issues of material fact therefore exist, and Kosrae is entitled to judgment in its favor.

     Accordingly, Kosrae’s motion for summary judgment is granted. The first four claims for relief are dismissed with prejudice. Pursuant to Rule 54(b) of the FSM Rules of Civil Procedure, the court finds that there is no just reason for delay and further makes an express direction for entry of judgment, which issues herewith.

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