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§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).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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