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eBook details

• Title: Brown v. Baeke
• Author : Arizona Supreme Court
• Release Date : January 23, 2005
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 53 KB

Description

This appeal arises from a diversity medical malpractice action that was assigned by consent of the parties to a magistrate judge. See 28 U.S.C. § 636(c). After plaintiffs lost one expert standard-of-care witness due to a conflict problem, defendant Baeke filed motions to (1) strike plaintiffs remaining standard-of-care witness, who did not have the requisite level of recent clinical practice, and then (2) grant summary judgment against plaintiffs for lack of an expert witness required by Kan. Stat. Ann. § 60-3412. Plaintiffs conceded the grounds for the motion to strike, but moved under Fed. R. Civ. P. 41(a)(2) for a dismissal without prejudice to allow them to secure a qualified substitute for the stricken expert. They also agreed to pay various costs and fees incurred by defendant. The magistrate judge granted plaintiffs motion, though only after imposing a number of additional conditions and making it clear that "[i]f Plaintiff fails to file a subsequent action within 30 days of dismissal herein, this dismissal shall convert into a dismissal with prejudice," and denied as moot the other pending motions. App. at 7. Defendant Baeke now appeals, arguing that plaintiffs Rule 41(a)(2) motion should have been denied and the case disposed of with prejudice on the merits.

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