Midyette

INTRODUCTION

This is not a second-bite-of-the-apple case. This appeal presents us with an apple chewed right down to its core. Appellant Michael Midyette had not one, not two, but three chances to submit admissible evidence to oppose a summary judgment motion in his medical malpractice action. Each time he failed to do so. Finally at the end of its patience, the trial court granted respondents’ summary judgment motions. Midyette has identified a very narrow issue on appeal. The only error he attributes to the trial court is failing to consider three late-filed declarations. Two of them were from him and from his attorney, both filed just before midnight on the day before the final hearing, after the court had issued a tentative ruling once again finding Midyette’s evidentiary showing inadequate and after the court had explained exactly what his evidence should have been. The third declaration, filed on the morning of the hearing, was yet another attempt by his expert to get it right. The standard of review makes the call not so much easy as unavoidable. The trial court was well within its discretion to refuse to consider declarations drafted after the court had explained how they…