APPELLANT S RESPONSE TO APPELLEE S MOTION FOR REHEARING

Transcription

1 E-Filed Document May :18: IA SCT Pages: 6 IN THE SUPREME COURT OF MISSISSIPPI FAWAZ ABDRABBO, MD. APPELLANT VS. CIVIL ACTION NO IA SCT AUDRAY (ANDRES) JOHNSON (PRO SE) APPELLEE INTERLOCUTORY APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI APPELLANT S RESPONSE TO APPELLEE S MOTION FOR REHEARING Whitman B. Johnson III, Esq. (MSB # 3158) wjohnson@curriejohnson.com Michael F. Myers, Esq. (MSB # 3712) mmyers@curriejohnson.com Currie Johnson & Myers, P.A River Oaks Drive P.O. Box 750, Jackson, MS Telephone: Facsimile: Counsel for Appellant

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii ARGUMENT...1 CONCLUSION...2 CERTIFICATE OF SERVICE...3 i

3 TABLE OF AUTHORITIES Rules Mississippi Rule of Appellate Procedure Cases See Vaughn v. Mississippi Baptist Medical Center, 20 So. 3d 645 (Miss. 2009)... 2 ii

4 ARGUMENT COMES NOW appellant, Fawaz Abdrabbo, M.D., by and through his attorneys of record, and respectfully requests this Court to deny the appellee s Motion for Rehearing and to allow the opinion previously entered by this Court to stand. Rule 40 of the Mississippi Rules of Appellate Procedure specifically states that the purpose of such a motion is to state with particularity the points of law or fact, which in the opinion of the movant, the Court has overlooked or misapprehended and shall contain such argument in support of the motion as the movant desires to present. The motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for mere repetition of the argument already considered by the Court. Mississippi Rule of Appellate Procedure 40. The appellee has failed to do this and has instead attempted to bring to the Court s attention facts outside of the record which involve other physicians and do not address issues in this particular case. He makes a broad general statement regarding the jurisdiction of this Court, failing to recognize that the appeal presently before the Court was brought as an interlocutory matter pursuant to permission granted by this Court under Rule 5 of the Mississippi Rules of Appellate Procedure. The appellee cites no law specifically addressing any matter before the Court and instead makes vague assertions. However, the Court has already addressed all of the points brought up in the Motion for Rehearing. The Court s opinion points out the insufficiency of the affidavit of Dr. Negi offered by the appellee with regard to the alleged negligence of the defendants. Further, there is no medical proof of any kidney failure related to Lithium as the appellee claims. The most recent material which appellee has submitted is not in the record and is all dated more than three years 1

5 after he stopped taking Lithium. The absence of expert proof on causation 1 is further fatal to appellee s claim. See Vaughn v. Mississippi Baptist Medical Center, 20 So. 3d 645 (Miss. 2009) (nurse not qualified to testify to medical causation and summary judgment affirmed based on absence of causal connection expert proof). Defendant Abdrabbo, however, offered an expert affidavit from a nephrologist, Dr. Wilson Parry, which specifically rejects any contention that Lithium caused kidney failure. Simply put, the prior decision of this Court reversing and rendering the lower court s denial of summary judgment was proper. There was no mistake of fact or law contained in the opinion, which appropriately found the claims against Dr. Abdrabbo should be dismissed. CONCLUSION For these reasons, appellant, Fawaz Abdrabbo, M.D., respectfully requests the Court to deny the appellee s Motion for Rehearing. Respectfully submitted, FAWAZ ABDRABBO, M.D. BY: /s/ Whitman B. Johnson III Whitman B. Johnson III (MSB No.: 3158) Michael F. Myers (MSB No.: 3712) OF COUNSEL: CURRIE JOHNSON & MYERS, P.A River Oaks Drive (39232) Post Office Box 750 Jackson, MS Telephone: (601) Facsimile: (601) Dr. Negi s affidavit, in addition to being insufficient on standard of care, is devoid of causation proof. Further, as a psychiatrist, any such testimony, even if offered, would be inadmissible as being outside of his field. 2

6 CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the foregoing with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Wade Manor, Esquire P. O. Box Jackson, MS wmanor@sssf-ms.com And I have mailed and ed a copy of the above and foregoing document to: Audray Johnson 109 Colonial Circle Jackson, MS imforjah@bellsouth.net (Pro Se Appellee) And I have mailed a copy of the above and foregoing document to: Honorable Judge Winston L. Kidd Hinds County Circuit Court P. O. Box 327 Jackson, MS This the 16 th day of May, /s/ Whitman B. Johnson III Whitman B. Johnson III 3