The Contiguous State Rule for Expert Witnesses

          The Tennessee Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115. In a recent decision, the Tennessee Supreme Court found that a trial court’s refusal to waive this requirement was not so far removed from the “usual course of judicial proceedings” so as to qualify for a Rule 10 appeal.

            In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

            Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.” The trial court denied defendant’s petition for interlocutory appeal, but the Court of Appeals subsequently granted defendant’s application for a Rule 10 extraordinary appeal. After considering the case, the Court of Appeals held that the trial court did not abuse its discretion when it declined to waive the contiguous state requirement. The Supreme Court then granted defendant’s Rule 11 appeal.

            On appeal, the Supreme Court framed the issue as “whether the Court of Appeals properly granted [defendant’s] application for extraordinary appeal under Tennessee Rule of Appellate Procedure 10.” The Court noted that Rule 9 interlocutory appeals “may be granted under less egregious circumstances” than Rule 10 appeals. Rule 10 appeals, though, should be “reserved for only extraordinary departures from the accepted and usual course of judicial proceedings.” According to the Supreme Court, Rule 10 appeals should be limited to times when “the challenged ruling represents a fundamental illegality, fails to proceed according to the essential requirements of the law, is tantamount to the denial of a party’s day in court, is without legal authority, is a plain and palpable abuse of discretion, or results in either party losing a right or interest that may never be recaptured.””

            In the present matter, the Supreme Court held that the trial court’s refusal to waive the contiguous state requirement after considering the statute, facts, and parties’ arguments did not rise to the level required to merit a Rule 10 appeal. The Court found that “there was no extraordinary departure from the accepted and usual course of judicial proceedings.” The Court specifically pointed out that discretion to waive the contiguous state requirement has been vested in trial courts, and that discretionary evidentiary rulings “rarely constitute the types of extraordinary departures from the usual and accepted course of judicial proceedings that Rule 10 contemplates.” Accordingly, the Supreme Court vacated the Court of Appeals decision, remanded to the trial court to continue proceedings, and said that any alleged error regarding the expert could be raised on appeal after a final judgment.

            Attorneys who file or defend health care liability actions should make note of this case, as it directly speaks to the trial court’s authority to make evidentiary decisions regarding the admissibility of expert testimony. Pursuant to this opinion, a trial court’s decision on whether or not to waive the contiguous state expert requirement in a health care action will almost never warrant a Rule 10 appeal. Instead, the Court indicates that this issue can be properly addressed in a post-judgment appeal.  And, when reviewed on a post-judgment appeal, the court will examine the trial judge’s decision using the "abuse of discretion" standard.