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Rudd v. Paden

The plaintiff's expert affidavit in opposition to the dental malpractice defendant's motion for summary judgment was insufficient to oppose the motion, since the plaintiff's expert did not have personal knowledge of the case's facts and relied on uncertified and unsworn dental records in forming his opinions.

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This dental malpractice action by Wanda Paden against Sherry Rudd and others is here on interlocutory appeal from the trial court’s denial of Rudd’s motion for summary judgment. The question is whether the expert affidavit relied on by Paden in opposition to Rudd’s motion was sufficient to oppose the motion. We must answer this question in the negative because Paden’s expert did not have personal knowledge of the facts of the case and, in forming his opinions, relied on dental records that were neither certified nor sworn. We, therefore, reverse. Paden filed this action against her primary care dentist, Rudd, and various corporate defendants. To comply with OCGA § 9-11-9.1, Paden filed an expert affidavit executed by Dr. Anthony Captline. To support her defense of non-negligence, Rudd relied on her own affidavit as an expert. The case moved through discovery without Paden filing any additional expert affidavits.

Rudd moved for summary judgment, arguing that Captline based his opinions on his review of dental records, that the dental records were not in the case record, and that there was no competent evidence of record showing any negligence by her. Paden filed a response to Rudd’s motion for summary judgment, relying on Captline’s affidavit as originally filed and “all pleadings and other documents filed in this case.” The trial court denied Rudd’s motion for summary judgment, ruling that Rudd’s and Captline’s “diametrically opposed” affidavits created a material issue of fact on the question of Rudd’s negligence.

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