Barbara Schwarz sued her dentist for malpractice: http://www.utcourts.gov/opinions/mds/schwarz.htm

She lost the case, because she didn't show any malpractice. (Her "just allege it and prove me wrong" libel method that she uses here doesn't work in a court)

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IN THE UTAH COURT OF APPEALS
----ooOoo----

Barbara Schwarz,
Plaintiff and Appellant,

v.

BRIAN D. DUNCAN, D.M.D.;
PROFESSIONAL INSURANCE EXCHANGE;
AND RICHARD C. ENGAR,
Defendants and Appellees.

Case No. 990945-CA

2000 UT App 172

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Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Barbara Schwarz, Salt Lake City, Appellant Pro Se
David G. Williams and Terence L. Rooney, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

Barbara Schwarz appeals from the summary judgment in favor of Brian D. Duncan, D.M.D., from the dismissal of the remaining defendants, and from other orders. This appeal is before the court on a sua sponte motion for summary disposition and on Duncan's motion for summary disposition.

The trial court correctly dismissed Professional Insurance Exchange and Richard C. Engar. Rule 9(b), Utah Rules of Civil Procedure, requires that "[i]n all averments of fraud . . . the circumstances constituting fraud . . . shall be stated with particularity." A fraud claim must include an averment of the facts supporting each element of fraud. See Turner v. General Adjustment Bureau, Inc., 832 P.2d 62, 66 (Utah Ct. App.), cert. denied, 843 P.2d 1042 (Utah 1992). The general and conclusory allegations of fraud, without adequate recitation of supporting facts, are insufficient to survive a motion to dismiss.

Similarly, the summary judgment is supported by well-settled principles of Utah law. To survive a motion for summary judgment on a malpractice claim, a plaintiff must obtain expert testimony to establish each of the following elements of a prima facie case: (1) the standard of care required of physicians or dentists under similar circumstances practicing in the same field or specialty; (2) that the applicable standard of care was breached; (3) that such breach proximately caused the injury; and (4) that damages occurred as a result of defendant's breach of the standard of care. See, e.g., Dalley v. Utah Valley Regional Med. Ctr., 791 P.2d 193, 195 (Utah 1990). "A plaintiff's failure to present evidence that, if believed by the trier of fact, would establish any one of the [elements] of a prima facie case justifies a grant of summary judgment to the defendant." Dikeou v. Osborn, 881 P.2d 943, 946 (Utah Ct. App. 1994).

It is solely the responsibility of the plaintiff to obtain the required expert testimony. Schwarz misunderstands the role of the court by asserting that the trial court should have sought further testimony from Dr. Hair and compelled other experts to testify on her behalf. The appellant also is incorrect in her assertion that she was entitled to court-appointed counsel, as there is no right to counsel in a civil case. The trial court did not err in granting summary judgment because the expert testimony offered by Schwarz did not establish a prima facie case of malpractice.

We further conclude that there was no error in failing to disqualify the trial court judge. The trial court did not demonstrate prejudice by failing to contact Dr. Hair to obtain further testimony or to compel experts to testify. Such actions are not required of the trial court; therefore, the failure to perform them is not proof of prejudice against appellant. Appellant has not demonstrated error in the remaining claims asserted on appeal.

The judgment is affirmed.

______________________________
Russell W. Bench, Judge

______________________________
James Z. Davis, Judge

______________________________
Gregory K. Orme, Judge

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