§47.10 Contiguous State Rule – Waiver
The Case : Ward v. Glover, 206 S.W.3d 17 (Tenn. App. 2006).
The Basic Facts: This case involves a medical malpractice claim alleging injuries to a baby resulting from the rupture of the mother's uterus, which caused the baby to be ejected into the mother's abdomen. The plaintiffs presented two experts in the field of maternal-fetal medicine and sought a waiver by the court of the locality rule in order to allow a third expert from New York to testify.
The Bottom Line:
- "Tenn. Code Ann. § 29-26-115(b) sets forth the requirements for expert proof in medical malpractice cases. In order to testify, the medical expert must be
licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person's expert testimony relevant to the issues in the case and [have] practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. . .Id. However, '[t]he court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available' to testify before the court. Id." 206 S.W.3d at 49.
- "A federal district court in Tennessee has held that, when a plaintiff has 'appropriate' expert witnesses, the locality rule will not be waived to allow the plaintiff to 'ice his cake' with the testimony of an expert who is allegedly more qualified. Ralph v. Nagy, 749 F. Supp. 169, 174 (M.D. Tenn. 1990). We agree with the reasoning of the federal court; accordingly, we find no abuse of discretion in the trial court's refusal to waive the locality rule." Id. at 49-50.
Other Sources of Note: Steele v. Ft. Sanders Anesthesia Group, P.C. , 897 S.W.2d 270 (Tenn. Ct. App. 1994) (waiver granted); Childress v. Bennett, 816 S.W.2d 314 (Tenn. 1991) (waiver granted).
Recent Cases: Gilbert v. Wessels, No. E2013-00255-SC-R11-CV, 2014 WL 7184306 (Tenn. Dec. 18, 2014) (trial court’s decision not to waive contiguous state expert requirement did not merit Rule 10 appeal); Gaw v. Vanderbilt Univ., No. M2011-00306-COA-R3-CV, 2012 WL 1388376 (Tenn. Ct. App. April 19, 2012) (affirming trial court’s waiver of contiguous state rule for plaintiff even though plaintiff had located one expert within Tennessee); McDonald v. Shea, No. W2010-02317-COA-R3-CV, 2012 WL 504510 (Tenn. Ct. App. Feb. 16, 2012) (affirming trial court’s waiver of contiguous state rule for plaintiff where plaintiff originally had an expert who developed health concerns requiring him to not testify, and upon attempting to find a replacement expert plaintiff’s counsel spoke with more than a dozen experts from Tennessee and bordering states who stated that plaintiff had a meritorious case but that they would not testify for fear of retaliation by defendant doctor’s father, a prominent physician in the area).