Summary disposition granted when plaintiff could not locate and produce witness to contradict defendant's testimony

The Estate of David Majors sued officer Levon Howell and three State Troopers for using excessive force in an arrest.  The insurance company for the officers sought summary dispostion, arguing that their actions did not meet the threshold for liability.  The Court denied the motion, the insurer appealed, and the Court of Appeals upheld the judge's ruling that an affidavit of a bystander contradicting the officers' account created a question of fact regarding excessive force.  The Supreme Court refused to hear a further appeal by the officers, and the case was sent back to Circuit Court for trial.

The trial judge ordered the Plaintiff Estate to produce for a deposition the witness who had signed the affidavit claiming excessive force.  The attorneys for the Estate couldn't locate and produce the witness and the insurer again sought summary disposition.  The trial judge apparently refused to grant summary disposition and scheduled the matter for trial.  The insurer appealed and this time the higher Court ruled that since the Estate had not produced the witness for a deposition, it had no basis to contest the officers' account of their behavior, and it ordered the claim dismissed.