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§47.9 Contiguous State Rule – Application to Causation Witnesses

The Case: Payne by Payne v. Caldwell , 796 S.W.2d 142 (Tenn. 1990).

The Basic Facts: Plaintiff's minor child was brain damaged, allegedly as a result of negligence of defendant health care providers. The appeal concerned the ability of the plaintiffs to use an expert from New York to testify on the issue of causation. Defendants objected to the use of an expert from New York because New York is not a state that is contiguous to Tennessee and that T.C.A. §29-26-115(b) required that all experts in medical malpractice cases must be from Tennessee unless the court waived the application of the statute. The opinion does not indicate that a waiver of the contiguous state rule was sought.

The Bottom Line:

  • "We see no ambiguity or lack of clarity in the dictates of T.C.A. § 29-26-115. It provides unequivocally that each of the three basic elements of a medical malpractice action - the standard of care, the breach of the standard, and proximate cause - be proven by testimony of experts who were licensed and practicing in Tennessee or a contiguous bordering state during the year preceding the date that the alleged injury or wrongful act occurred. And, contrary to plaintiff's argument, we see nothing unusual or illogical in the inclusion of all three elements in the limitations on competency of witnesses set forth in Section (b). The proof of each element in a medical malpractice action is so entwined that it is difficult, if not impossible, for a witness to testify on the issue of causation without commenting, either expressly or tacitly, on the standard of care or whether or not it was breached. But whether unusual or not, or logical or not, the element of proximate cause is included and witnesses, to be competent to testify on the issue, must meet the licensing and geographical requirements of Section (b). 796 S.W.2d at 143.

Other Sources of Note: Farley v. Oak Ridge Medical Imaging, P.C. , 2009 WL 2474742 (Tenn. Ct. App. Aug. 13, 2009) (applying Caldwell).

Recent Cases: 

Clifford v. Tacogue, No. M2009-01703-COA-R3-CV, 2010 WL 2712534 (Tenn. Ct. App. July 8, 2010) (affirming summary judgment in medical malpractice case finding plaintiff did not establish causation where plaintiffs’ experts not qualified under Tenn. Code Ann. § 29-26-115 because they never practiced in Tennessee or a contiguous state, and none could say whether defendants’ conduct more probably than not caused an injury).

Estate of Cusatis v. Casey , No. E2008-01786-COA-R3-CV, 2009 WL 3460451 (Tenn. Ct. App. Oct. 28, 2009) (upholding summary judgment finding plaintiff failed to produce required expert where plaintiff's only expert was not licensed to practice in Tennessee or a contiguous state).

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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.

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