Vivian Kennard v. Arthur M. Townsend, IV, M.D.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 17, 2012 Session

VIVIAN KENNARD v. ARTHUR M. TOWNSEND, IV., M.D., ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-000267-07 Robert L. Childers, Judge

No. W2011-01843-COA-RM-CV - Filed March 2, 2012

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration

of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL

1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision

in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical

malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under

the locality rule, and further affirmed the trial court’s grant of summary judgment against the

Appellant. Because the qualifications of Appellant’s expert were not considered in light of

Shipley, and because the admission of expert testimony is a matter of discretion in the trial

court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant

of summary judgment, and remand for reconsideration in light of the Shipley decision.

Vacated and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Vacated and

Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and D AVID R. F ARMER, J., joined.

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellant, Vivian

Kennard.

William H. Haltom, Jr., and Margaret F. Cooper, Memphis, Tennessee, for the appellee,

Arthur M. Townsend, IV., M.D., and Associates Obstetrics & Gynecology, P.C.

OPINION

Before addressing the decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011),

we first pause for a truncated review of the relevant factual and procedural history of this

case. A thorough recitation is set out in this Court's previous opinion, Kennard v. Townsend,

No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011)

(“Kennard I ”).

On January 7, 2007, Vivian Kennard (“Plaintiff,” or “Appellant”) filed a complaint

for medical malpractice against Dr. Arthur M. Townsend, IV and Associates Obstetrics &

Gynecology, P.C. (together, “Defendants,” or “Appellees”). By her complaint, Ms. Kennard

alleged that the Appellees had committed medical malpractice against her during the birth

of her child in June of 2004. Specifically, Ms. Kennard alleged that the Appellees failed to

properly manage her blood pressure during the delivery, thus causing her permanent

blindness in both eyes.

On or about February 16, 2007, the Appellees filed a motion for summary judgment

on the ground that Ms. Kennard had failed to establish, through expert proof, that Dr.

Townsend deviated from the recognized standard of acceptable professional care in the

treatment of Ms. Kennard. The motion for summary judgment was supported by the Affidavit

of Dr. Townsend, wherein he stated that he had complied with the applicable standard of care

in his treatment of Ms. Kennard. In response to the motion for summary judgment, Ms.

Kennard filed the Affidavit of Richard McLaughlin, M.D. In relevant part, Dr. McLaughlin's

Affidavit states:

At the time of these events I was licensed to practice medicine

in the State of Missouri and was so licensed and did practice

during the year preceding the treatment of Vivian Kennard. I am

board certified in Obstetrics & Gynecology since November

1971. I am familiar with the recognized standard of acceptable

professional medical practice in these and related fields of

medicine, and more specifically, the patient care of someone in

the position of Vivian Kennard in an area such as Memphis,

Tennessee where the standard of care would be comparable to

the cities and facilities at which I have practiced medicine. I am

familiar with the standard of care as it existed in 2004. I am

familiar with the standard of care in Springfield, Missouri. I

gained first hand knowledge of the standard of care of

Springfield through my years of practice as an OB/GYN

physician in the Springfield community. My experience

include[s] care of patients with presentations such as that of

Vivian Kennard. I have gained first hand knowledge of the

Memphis Medical community through internet search[es] over

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the years including 2005. I have also reviewed medical cases

from various hospitals and have gained insight as to how

medicine is practiced in Memphis. In addition, I have read a text

written by researchers from the University of Memphis Medical

School, Dr. Frank Ling and Dr. Patrick Duff, Obstetrics &

Gynecology, Principals for Practice. It is my opinion that the

Memphis medical community is similar to the medical

community of Springfield, Missouri. Memphis, a Regional

Medical Center as is Springfield, draws many patients from

Mississippi and Arkansas. Springfield provides care to an

18–county primary service area in southwest Missouri and

northern Arkansas. Memphis has the University of Tennessee

Medical School with residents practicing primarily at the

Regional Medical Center and Methodist University Hospital.

There are a similar number of hospitals in Memphis as there are

in the Springfield area. . . .

The case was set for trial on January 25, 2010. On January 6, 2010, Dr. Townsend and

Associates Obstetrics filed a motion in limine to exclude Ms. Kennard's expert, Dr. Richard

McLaughlin, because Dr. McLaughlin's testimony allegedly did not comply with the “locality

rule,” Tennessee Code Annotated Section 29-26-115, see infra.

On or about January 15, 2010, the trial court granted Appellees' motion in limine,

thereby excluding Dr. McLaughlin's testimony. Thereafter, the Appellees set their

previously-filed motion for summary judgment for hearing on the ground that Ms. Kennard

had provided no expert medical testimony against them. The trial court entered an order

granting Appellees' motion for summary judgment, finding that Ms. Kennard's expert

testimony had been excluded and that she had provided no additional expert proof against

the Appellees. This order was made final as to the Appellees by the inclusion of Tennessee

Rule of Civil Procedure 54.02 language. Ms. Kennard appealed and raised two issues for

review, which we restated as follows:

1. Whether the trial court abused its discretion by excluding the

testimony of Appellant's expert, Dr. Richard McLaughlin, on

grounds that Appellant failed to establish that Dr. McLaughlin

was familiar with the standard of care for obstetricians and

gynecologists practicing in Memphis, Tennessee, or that Dr.

McLaughlin was familiar with the standard of care for

obstetricians and gynecologists practicing in a similar

community?

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2. Whether the trial court, after finding that Appellant's expert's

testimony was inadmissible, properly granted summary

judgment in favor of Dr. Townsend and Associate Obstetrics &

Gynecology?

In Kennard I, we specifically held that:

Dr. McLaughlin failed to establish that Memphis and

Springfield are similar communities. Other than the testimony

given by Dr. McLaughlin, Ms. Kennard did not submit any other

evidence to support a finding of similarity between the Memphis

and Springfield communities. Consequently, we conclude that

the trial court did not err in finding that Ms. Kennard failed to

establish that her expert was familiar with the standard of care

in a community similar to Dr. Townsend's community; therefore,

the trial court properly excluded Dr. McLaughlin's testimony.

Kennard I, 2011 WL 1434625 at *11.

On August 30, 2011, the Tennessee Supreme Court issued its order granting Ms.

Kennard’s Tennessee Rule of Appellate Procedure 11 application for the narrow purpose of

remanding the case to this Court for reconsideration in light of the Tennessee Supreme

Court's opinion in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Analysis

A trial court's decision concerning the competency of an expert witness is reviewed

by this Court under an abuse of discretion standard. As discussed by this Court in Carpenter

v. Klepper, 205 S.W.3d 474 (Tenn. Ct. App. 2006):

A trial court has broad discretion in determining the

“admissibility, qualifications, relevancy and competency of

expert testimony.” McDaniel v. CSX Transp., 955 S.W.2d 257,

263 (Tenn. 1997). Questions regarding the qualifications of

expert witnesses are left to the trial court's discretion and may be

overturned only if that discretion is abused. McDaniel, 955

S.W.2d at 263. The Tennessee Supreme Court has defined an

abuse of discretion to mean “an erroneous conclusion or

judgment on the part of the trial judge-a conclusion that was

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clearly against logic (or reason) and not justified.” Foster v.

Amcon Int'l, Inc., 621 S.W.2d 142, 145 (Tenn. 1981).

Carpenter, 205 S.W.3d at 477.

The trial court's decision on a motion for summary judgment is a question of law,

which we review de novo upon the record with no presumption of correctness. Hall v.

Haynes, 319 S.W.3d 564, 571 (Tenn. 2010); Bailey v. Blount Cnty. Bd. of Educ., 303

S.W.3d 216, 226 (Tenn. 2010). A trial court may properly grant a motion for summary

judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P.

56.04. In deciding a motion for summary judgment, a trial court should not weigh evidence,

but must accept the nonmoving party's evidence as true and view both the evidence and all

reasonable inferences that can be drawn therefrom in the light most favorable to the

nonmoving party. Shipley, 350 S.W.3d at 551; Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76,

84 (Tenn. 2008).

Tennessee Code Annotated Section 29-26-115 governs the burden of proof in medical

malpractice cases and provides, in relevant part, as follows:

§ 29-26-115. Burden of proof; expert witnesses.

(a) In a malpractice action, the claimant shall have the burden of

proving by evidence as provided by subsection (b):

(1) The recognized standard of acceptable professional practice

in the profession and the specialty thereof, if any, that the

defendant practices in the community in which the defendant

practices or in a similar community at the time the alleged injury

or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with

ordinary and reasonable care in accordance with such standard;

and

(3) As a proximate result of the defendant's negligent act or

omission, the plaintiff suffered injuries which would not

otherwise have occurred.

(b) No person in a health care profession requiring licensure

under the laws of this state shall be competent to testify in any

court of law to establish the facts required to be established by

subsection (a), unless the person was licensed to practice in the

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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 had 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. This rule shall apply

to expert witnesses testifying for the defendant as rebuttal

witnesses. The court may waive this subsection (b) when it

determines that the appropriate witnesses otherwise would not

be available.

Subsection (b) of the statute sets out the criteria for a medical expert’s competency

and is referred to as the “locality rule.” Shipley, 350 S.W.3d at 550. In Shipley, our Supreme

Court specifically stated that Tennessee courts had incorrectly interpreted the requirements

of the locality rule. As pointed out in the recent case of Walker v. Garabedian, No.

W2010–02645–COA–R3–CV, 2011 WL 6891575 (Tenn. Ct. App. Dec. 28, 2011):

Shipley first emphasized that the trial court, in its historic role

as gatekeeper, does not weigh the evidence prior to trial, but

utilizes its discretion to determine if evidence, including expert

testimony, will be admitted at trial.

Id. at *5 (citation omitted). Concerning the proof of what constitutes a “similar community”

under Tennessee Code Annotated Section 29-26-115(a)(1), the Shipley Court stated:

Principles of stare decisis compel us to adhere to the

requirement that a medical expert must demonstrate a modicum

of familiarity with the medical community in which the

defendant practices or a similar community. Generally, an

expert's testimony that he or she has reviewed and is familiar

with pertinent statistical information such as community size,

hospital size, the number and type of medical facilities in the

community, and medical services or specialized practices

available in the area; has discussed with other medical providers

in the pertinent community or a neighboring one regarding the

applicable standard of care relevant to the issues presented; or

has visited the community or hospital where the defendant

practices, will be sufficient to establish the expert's testimony as

relevant and probative to “substantially assist the trier of fact to

understand the evidence or to determine a fact in issue” under

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Tennessee Rule of Evidence 702 in a medical malpractice case

and to demonstrate that the facts on which the proffered expert

relies are trustworthy pursuant to Tennessee Rule of Evidence

703.

Shipley, 350 S.W.3d at 552.

The Shipley Court went on to state that:

[T]he “personal, firsthand, direct knowledge” standard set forth

in Eckler and Allen is too restrictive. There is substantial

Tennessee precedent allowing experts to become qualified by

educating themselves by various means on the characteristics of

a Tennessee medical community. . . . A proffered medical

expert is not required to demonstrate “firsthand” and “direct”

knowledge of a medical community and the appropriate standard

of medical care there in order to qualify as competent to testify

in a medical malpractice case. A proffered expert may educate

himself or herself on the characteristics of a medical community

in order to provide competent testimony in a variety of ways,

including but not limited to reading reference materials on

pertinent statistical information such as community and/or

hospital size and the number and type of medical facilities in the

area, conversing with other medical providers in the pertinent

community or a neighboring or similar one, visiting the

community or hospital where the defendant practices, or other

means. We expressly reject the “personal, firsthand, direct

knowledge” standard formulated by the Court of Appeals in

Eckler and Allen.

Id. at 552–53. As correctly pointed out by Judge Kirby in Walker:

Shipley expressly rejected the requirement that a medical expert have

“personal, firsthand, direct knowledge” of the standard of care in the

defendant's community in order to offer expert testimony on that standard, as

set forth in decisions by some of Tennessee's intermediate appellate courts.

[Footnote 4 provides: “Shipley noted that this requirement was imposed by the

intermediate appellate courts in the Western Section of Tennessee, citing

Eckler v. Allen, 231 S.W.3d 379 (Tenn. Ct. App. 2006) and Allen v. Methodist

Healthcare Memphis Hosps., 237 S.W.3d 293 (Tenn. Ct. App. 2007), but was

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rejected by the intermediate appellate courts in the Eastern Section of

Tennessee, citing Farley v. Oak Ridge Med. Im aging, No.

E2008–01731–COA–R3–CV, 2009 Tenn. App. LEXIS 540, at *32, 2009 WL

2474742, at *10 (Tenn. Ct. App. Aug. 13, 2009). Shipley, 350 S.W.3d at

549–50].

Walker, 2011 WL 6891575 at *6.

“Shipley then addressed expert medical testimony of a broad regional or national

standard of care, finding that an expert who opines that a national standard of care applies

should not be per se disqualified from offering testimony at trial.” Id. It is clear that the

Shipley holding represents a paradigm shift concerning how Tennessee Courts should

approach the admission or exclusion of medical expert testimony:

In summary, (1) at the summary judgment stage of the

proceedings, trial courts should not weigh the evidence but must

view the testimony of a qualified expert proffered by the

nonmoving party in the light most favorable to the nonmoving

party. (2) A claimant is required to prove “[t]he recognized

standard of acceptable professional practice ... in the community

in which the defendant practices or in a similar community.”

Tenn. Code Ann. § 29-26-115(a)(1). The medical expert or

experts used by the claimant to satisfy this requirement must

demonstrate some familiarity with the medical community in

which the defendant practices, or a similar community, in order

for the expert's testimony to be admissible under Rules 702 and

703. Generally, a competent expert's testimony that he or she has

reviewed and is familiar with pertinent statistical information

such as community size, hospital size, the number and type of

medical facilities in the community, and medical services or

specialized practices available in the area; has had discussions

with other medical providers in the pertinent community or a

neighboring one regarding the applicable standard of care

relevant to the issues presented; or has visited the community or

hospital where the defendant practices, will be sufficient to

establish the expert's testimony as admissible. (3) A medical

expert is not required to demonstrate “firsthand” and “direct”

knowledge of a medical community and the appropriate standard

of medical care there in order to qualify as competent to testify

in a medical malpractice case. A proffered expert may educate

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himself or herself on the characteristics of a medical community

in a variety of ways, as we have already noted. (4) In addition to

testimony indicating a familiarity with the local standard of care,

a medical expert may testify that there is a broad regional

standard or a national standard of medical care to which

members of his or her profession and/or specialty must adhere,

coupled with the expert's explanation of why the regional or

national standard applies under the circumstances.

Shipley, 350 S.W.3d at 554.

As was the case in Walker, our holding in Kennard I was made before the Tennessee

Supreme Court issued its opinion in Shipley. Consequently, neither this Court, nor the trial

court, had the opportunity to consider the case in light of the changes that resulted from the

Shipley holding. Given the fact that admissibility of evidence is a matter that triggers the

trial court's discretion, this Court cannot usurp that discretion by conducting a de novo review

of Dr. McLaughlin’s qualifications in light of Shipley. In determining the admissibility of

evidence, we conclude that the trial court should have the opportunity to reconsider its

decision with the benefit of the argument of counsel concerning the impact of Shipley on Dr.

McLaughlin’s testimony. Walker, 2011 WL 6891575 at *7. We further note that the parties'

discovery, the deposition of Dr. McLaughlin, the pleadings and supporting affidavits

surrounding Appellees’ motion in limine to exclude Dr. McLaughlin’s testimony, as well as

the Appellees’ motion for summary judgment, all took place without consideration of the

analysis in Shipley. As noted by Judge Kirby in Walker, “under Shipley, it is arguable that

a medical expert such as Dr. [McLaughlin] despite never having practiced medicine in

Tennessee, could become competent to testify about the standard of acceptable professional

practice in [Memphis], and not just in a community that is similar to [Memphis].” Id. at n.5

(citing Shipley, 350 S.W.3d at 552–53, 54). Therefore, upon remand, the trial court may, in

its discretion, permit the parties to submit amended pleadings or take additional discovery

to address the standard explained in Shipley. Id.

For the foregoing reasons, the order of the trial court granting Appellees’ motion in

limine to exclude Dr. McLaughlin’s testimony and the order granting summary judgment in

favor or Appellees is vacated. The case is remanded for further proceedings consistent with

this Opinion. Costs of this appeal are assessed one half to the Appellant, Vivian Kennard,

and her surety, and one half to the Appellees, Dr. Arthur M. Townsend and Associates

Obstetrics and Gynecology, P.C., for which execution may issue if necessary.

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_________________________________

J. STEVEN STAFFORD, JUDGE

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