Term
| Frequent Sources of Motions to Dismiss or Summary Judgment (9) |
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Definition
1. Failure to attach affidavit.
2. Failure to have filing affidavit notarized.
3. Failure to have affiant sworn before signing affidavit.
4. Notarizing affidavit at a later date or time (i.e. not immediately upon signing).
5. Statute of Limitations or repose.
6. Apparent/ostensible agency.
7. Respondeat superior.
8. Causation to reasonable degree of medical certainty/probability.
9. Plaintiff's expert is not qualified. |
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Term
| Timing of Motion by Plaintiff |
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Definition
| A plaintiff cannot move for summary judgment until either 30 days after the commencement of the action of after service of a motion for summary judgment by the defendant. OCGA 9-11-56(a). |
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Term
| Timing of Motion by Defendant |
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Definition
| Defendant can move for summary judgement at any time. OCGA 9-11-56(b). |
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Term
| Statement of theories of recover and material fact |
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Definition
| Movant should attach a statement of theories of recovery and a statement of material facts to which he contends there is no genuine issue to his motion for summary judgment. Respondent should provide a statement of material facts as to which there is a genuine issue to be tried. Rule 6.5, Uniform Superior Court Rules |
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Term
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Definition
| To prevail at summary judgment, the moving party must demonstrate that there is no genuine material fact that the undisputed facts, viewed in the light most favorable to the nonmoving party, warranty judgment as a matter of law. Scott v. McDonald, 218 Ga. App. 810 (1995) See OCGA 9-11-56(c). |
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Term
| Defendant's Level of Proof |
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Definition
| To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Vickers v. Merry Land and Investment Company, Inc. 263 Ga. App 316 (2003). |
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Term
| Proof Required to Both Liability and Causation |
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Definition
| A plaintiff must produce evidence on both liability and causation. If defendant points out a lack of evidence on either prong, summary judgment will be granted. OCGA 9-11-56(c). |
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Term
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Definition
| There have been fewer motions for summary judgment based on liability since the adoption of OCGA 9-11-9.1's affidavit requirement. However, summary judgment remains a viable maneuver, as pleading affidavits do not have to satisfy the stringent requirements of summary judgment affidavits. 0-1 Doctor's Memorial Holding Company v. Moore 190 Ga. App. 286 (1989). |
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Term
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Definition
| Many cases in recent years have been lost on motion for summary judgment due to the expiration of either the statute of limitations of the statute of repose. |
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Term
| Summary Judgment Affidavits |
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Definition
| Supporting or opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein 9-11-56(e). |
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Term
| Piercing the pleadings calls for specificity from the Plaintiff |
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Definition
| If a medical defendant gives an affidavit denying causation, the plaintiff must bring evidence specifically explaining the causal link to survive summary judgment. Roberts v. Nessim, 297 Ga. App. 278, 676 S.E.2d 734 (2009). |
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Term
| Contradictory Statements by Non-party expert |
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Definition
| A non-party expert's OCGA 9-11-9.1 affidavit may be used to defeat summary judgment, even if the expert gives contradictory testimony at deposition. Contradiction in testimony by a non-party goes to credibility, not admissibility. Thompson v. Ezor. 272 Ga. 849 (2000). |
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Term
| Contradictory Statements By a party construed against the party |
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Definition
| When the favorable portion of a party's self contradictory testimony is the only evidence of his/her right to recover or of his/her defense, the opposing party is entitled to summary judgment. Prophecy Corp. v. Charles Rossignol Inc. 256 Ga. 27 (1986). |
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Term
| Loss of Expert Can mean Loss of Case |
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Definition
| If the expert upon which the plaintiff is relying to support a material element of the case if found to be unqualified, the plaintiff can lose as a matter of law. Nathans v. Diamond, 282 Ga. 804 (2007). If the affidavit expert fails to meet the Georgia qualifications, the court may strike the affidavit and dismiss the case. Cogland v. Hospital Authority of City of Bainbridge, 290 Ga.App. 73 (2008). |
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Term
| Avoidance of Summary Judgment Ruling |
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Definition
| Plaintiff can avoid a ruling on motion for summary judgment by dismissing the claim while the motion for summary judgment is pending and re-filing, if the case if eligible for re-filing within six months pursuant to OCGA 9-2-61. |
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