Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

July 19, 2011 Session

MARSHA McDONALD

v.

PAUL F. SHEA M.D. AND SHEA EAR CLINIC

Appeal from the Shelby County Circuit Court

No. CT-003393-05 John R. McCarroll, Jr., Judge

No. W2010-02317-COA-R3-CV - Filed February 16, 2012

This is a medical malpractice appeal. The plaintiff patient was treated by the defendant

physician for ear problems. After the treatment, she had a complete loss of hearing in one

ear. The plaintiff patient filed this lawsuit against the physician, alleging medical

malpractice and lack of informed consent. After potential experts in Tennessee and

contiguous states declined to testify against the defendant physician, the trial court permitted

the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial,

after the jury was sworn and counsel gave opening statements, a juror notified the trial judge

of the her concern about an upcoming social event she planned to attend, at which a relative

of the defendant physician would be present. After voir dire, the trial judge noted that the

plaintiff patient had unused remaining peremptory challenges and excused the juror. The

trial court denied the defendant physician’s motion for directed verdict on informed consent.

The jury awarded the plaintiff substantial compensatory damages. The defendant physician

now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert

from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after

trial was underway, in permitting the informed consent claim to go to the jury, and in denying

the defendants’ motion to exclude the expert retained by the plaintiff. We affirm on all issues

except the dismissal of the juror. We hold it would be error to permit the exercise of a

peremptory challenge after the trial is underway, but find that any error was harmless under

the facts of this case. Therefore, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD, J.,

joined; and A LAN E. H IGHERS, P.J., W.S., concurred in part and dissented in part.

Albert C. Harvey, John H. Dotson, and Justin N. Joy, Memphis, Tennessee, for

Defendants/Appellants Paul F. Shea, M.D. and Shea Ear Clinic.

Gary K. Smith and Janelle C. Clark, Memphis, Tennessee for Plaintiff/Appellee Marsha

McDonald.

OPINION

F ACTS AND P ROCEEDINGS B ELOW

In May 2000, Plaintiff/Appellee Marsha McDonald (“McDonald”) consulted a physician at

the Defendant/Appellant Shea Ear Clinic (“Shea Clinic”) about problems with her ear. She

was diagnosed with partial hearing loss in her left ear. A year later, McDonald visited the

same physician, no longer associated with Shea Clinic, for follow up; it was determined that

her hearing remained unchanged.

In the summer of 2004, McDonald began experiencing new symptoms, including pressure

in her head and lightheadedness in the morning. On July 16, 2004, McDonald visited

Defendant/Appellant Paul F. Shea, M.D. (“Dr. Shea”) at the Shea Ear Clinic concerning the

new symptoms she was experiencing. After McDonald underwent several tests, Dr. Shea

informed her that she was suffering from Ménière’s disease in her left ear, which was

causing the hearing loss in that ear.1 Dr. Shea recommended a course of treatment that

included perfusion, that is, making a small hole in the ear drum and injecting medication into

the middle ear space. Dr. Shea gave McDonald a pamphlet explaining the prefusion

procedure and discussed with McDonald the expected outcome. The pamphlet stated, inter

alia, that for 95% of patients who received perfusion treatment, the patient’s hearing

remained the same or improved, and for 5% of the patients, the patient’s hearing was “worse”

after treatment. According to McDonald, in the course of discussing the pamphlet and the

risks with her, Dr. Shea told McDonald that perfusion “can even improve your hearing, but

let’s just count on your hearing staying the same.” McDonald said that Dr. Shea did not

advise her that she could experience total hearing loss as a result of the procedure.2

McDonald agreed to the perfusion treatment recommended by Dr. Shea.

1

Ménière’s Disease is a condition of unknown cause affecting the inner ear, resulting in a progressive

diminution of the balance and hearing functions of the inner ear.

2

Dr. Shea’s account of the conversation with McDonald differed somewhat from McDonald’s recollection,

but he agreed that he told her that he “would expect her hearing to stay the same.”

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On July 20, 2004, McDonald presented at the Shea Clinic to begin the three-day perfusion

treatment. Upon arrival, she was given a document which indicated the risks of the

procedure and stated that the perfusion treatment could result in “further increase in hearing

loss, even to complete loss of hearing.” McDonald had not brought her eyeglasses with her

and told the Shea Clinic representative that she could not read the form. According to

McDonald, she was told that everyone needed to sign the form acknowledging receipt of the

risk disclosure document in order to receive the treatment; however, the information was not

read or explained to her. McDonald signed the document and began the course of treatment

that day. Over the next three days, Dr. Shea administered three rounds of perfusion therapy

on McDonald.

After completing the perfusion therapy, McDonald began to experience a number of

symptoms, including extreme dizziness, feeling off-balance, and a “stopped up” feeling in

her left ear. As a result, McDonald visited several ear physicians, but did not initially return

to see Dr. Shea. In November 2004, McDonald’s hearing was tested and the results showed

a 100% hearing loss in her left ear. This result was confirmed when McDonald later visited

Dr. Shea.

On June 23, 2005, McDonald filed the instant lawsuit against Dr. Shea and the Shea Clinic

in the Circuit Court of Shelby County, alleging, inter alia, negligent deviation from the

applicable standard of care and failure to obtain informed consent. The complaint sought

compensatory damages.3 The defendants denied liability, and discovery ensued.

In the course of trial preparation, McDonald filed a motion for permission from the trial court

to identify a medical expert witness from a state not contiguous to Tennessee, pursuant to

Tennessee Code Annotated § 29-26-115(b).4 The motion asserted that McDonald’s counsel

3

McDonald’s complaint also alleged reckless conduct and sought an award of punitive damages. The claim

for punitive damages was dismissed in advance of trial and is not at issue in this appeal.

4

This statute provides:

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 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

(continued...)

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had discussed her case with more than a dozen physicians from either Tennessee or a

contiguous state,5 and while “many”opined that the facts presented by counsel indicated “a

strong case of malpractice” by Dr. Shea, each of the potential expert physicians indicated

“that they were unwilling to give testimony in the case for fear of retribution” from Dr.

Shea’s father, a prominent Memphis physician specializing in ear problems. McDonald’s

motion stated that the potential expert witnesses stated that Dr. Shea’s father “was known to

be professionally vindictive.” An affidavit by McDonald’s counsel to that effect was filed

in support of the motion. After a hearing, the trial court entered an order granting

McDonald’s motion.

Court permission in hand, McDonald identified an expert witness physician from Los

Angeles, California, Dennis R. Maceri, M.D. (“Dr. Maceri”). After taking Dr. Maceri’s

deposition, Dr. Shea filed a motion to exclude his testimony from the trial. The bases for the

motion to exclude included the following: (1) Dr. Maceri was unfamiliar with the standard

of acceptable professional practice in Memphis, Tennessee; (2) Dr. Maceri’s compared

community, Los Angeles, California, is not similar to Memphis, Tennessee; and (3) Dr.

Maceri’s specialties and areas of practice did not qualify him to opine on the standard of

acceptable practice for the treatment at issue. The trial court declined to grant Dr. Shea’s

motion to exclude, and Dr. Maceri was permitted to testify on behalf of McDonald.

The jury trial in this matter commenced on June 14, 2010. The attorneys were permitted to

conduct voir dire, which included a “catch-all” question by counsel for McDonald, asking

potential jurors to disclose any reason why it would be “difficult” to be fair and impartial.

McDonald was given six peremptory challenges and used four of them. The defendants Dr.

Shea and Shea Clinic were given eight peremptory challenges and used all eight of them. At

the end of the jury selection process on June 14, a total of twelve jurors and two alternates

were selected and sworn, including Juror H. The alternates were not identified at that time.

The next morning, June 15, after the jury was empaneled and the lawyers gave their opening

statements, the trial judge received a note from Juror H. The note stated that, during the

coming weekend, Juror H expected to attend a social event hosted by her in-laws, and that

Dr. Shea’s mother was expected to attend the event. It said that, while Juror H did not know

4

(...continued)

witnesses otherwise would not be available.

Tenn. Code Ann. § 29-26-115(b) (Supp. 2011).

5

The original motion and supporting affidavit did not state that the physicians whom McDonald’s counsel

consulted practiced in either Tennessee or a contiguous state; this was later clarified by amending the

supporting affidavit.

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Dr. Shea or his family, Dr. Shea’s mother was a friend of Juror H’s mother-in-law. In light

of the note, the attorneys were permitted to conduct additional voir dire on Juror H. Juror

H explained that she wrote the note because the information was laying “heavy on [her]

heart.” She admitted that while she had never met Dr. Shea or his father, she had met Dr.

Shea’s mother two or three times in social settings. Juror H conceded that voting against Dr.

Shea in the lawsuit would make her feel uncomfortable in future social situations, but said

that she could put aside her discomfort “to do the right thing” in this lawsuit.

After Juror H left the courtroom, the trial court clarified with the lawyers that, after jury

selection was completed, McDonald had two unused peremptory challenges. In response to

the trial court’s inquiry, counsel for McDonald indicated that, had he known the information

disclosed by Juror H during jury selection, he would have used one of his unused peremptory

challenges to remove her from the jury. The trial judge then stated to McDonald’s attorney,

“I think you have a right to do that now.” After McDonald’s counsel said, “I would do that,”

the trial court stated: “Okay. The next question is since I’ve ruled that way, . . .” and began

discussing the number of jurors that remained. When counsel for Dr. Shea objected to the

exercise of peremptory challenge after the trial “got started,” the following exchange took

place:

The Court: Well, I think that what she did was absolutely the right thing to do.

I think that based upon her statement to us that she would try to do the right

thing but that she would be in a situation that would be hard for her, whatever

her words were, is sufficient for a challenge.

Mr. Harvey: I don’t think she said it would be hard for her, your Honor. Well,

in any event, I’ve made my statement.

The Court: You think she ought to be retained. I understand that. And I’ve

told you why I think she ought to be excused, and so I guess the next group to

talk to about it is up in Jackson. . . .

After this, Juror H was excused. The trial then continued with one alternate juror; the

alternate was not selected from the empaneled jury until the end of the trial.

In the ensuing trial, the jury heard testimony from, among others, McDonald and her expert

witness, Dr. Maceri, as well as Dr. Shea and his expert witness. In his testimony, Dr. Maceri

testified as to why Los Angeles, California is similar to Memphis, Tennessee for purposes

of the applicable professional standard. After testifying about the appropriate standard of

care, Dr. Maceri opined that Dr. Shea’s treatment of McDonald fell below the standard of

care in his misdiagnosis of her condition as Ménière’s disease, in his selection of perfusion

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therapy to treat her, in his selection of the medication administered to McDonald, and in

describing the risks associated with perfusion therapy differently from the risk disclosure in

the written consent form.

On cross-examination, Dr. Maceri was asked about his familiarity and experience with

perfusion therapy. He testified that he was familiar with perfusion therapy but in his current

practice he advises his patients about perfusion therapy and then refers the patient to a

colleague to perform the therapy if it is indicated.

At the close of McDonald’s proof, Dr. Shea moved for a directed verdict on McDonald’s

informed consent claim. The trial court deferred ruling on the motion until the close of all

of the proof. After the defense put on its proof, the motion was renewed. The trial court

denied the motion, and included lack of informed consent in the jury instructions and on the

jury verdict form.

On June 14, 2010, the jury returned a general verdict in favor of McDonald. She was

awarded compensatory damages in the amount of $500,000. The defendants now appeal.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, defendants Dr. Shea and Shea Clinic (hereinafter collectively “Shea”) argue that

the trial court erred in declining to direct a verdict on McDonald’s claim of lack of informed

consent.

Shea raises numerous issues with respect to Dr. Maceri. Shea asserts that the trial court erred

in waiving the statutory requirement that the medical expert practice in Tennessee or a

contiguous state. Shea also insists that Dr. Maceri should have been excluded from testifying

because (1) he failed to demonstrate that he had first-hand knowledge of the applicable

standard of care in the Memphis community; (2) he failed to demonstrate that the compared

community, Los Angeles, is similar to the Memphis community; (3) he based his opinion

on a national standard of care instead of the approved local standard; and (4) he lacked the

requisite knowledge of the protocol of transtympanic perfusion treatments, the diagnostic test

used by Dr. Shea to diagnose Ménière’s, and the use of streptomycin to treat McDonald’s

condition.

Finally, Shea argues that the trial court erred by allowing McDonald’s counsel to discharge

Juror H by exercising a peremptory challenge after the jury had been selected and sworn.

With respect to Shea’s motion for directed verdict on informed consent, the trial court’s

decision on a motion for directed verdict is reviewed de novo on appeal. Brown v. Crown

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Equipt. Corp., 181 S.W.3d 268, 281 (Tenn. 2005). The appellate court uses the same

standard as the trial court in making the determination on the motion for directed verdict.

Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). In considering

a motion for direct verdict, a court must “take the strongest legitimate view of the evidence

in favor of the non-moving party, construing all evidence in that party’s favor and

disregarding all countervailing evidence.” Id. A motion for directed verdict should be granted

“only if reasonable minds could reach only one conclusion from the evidence.” Id.

The trial court’s determinations regarding the testimony of McDonald’s expert witness are

reviewed under an abuse of discretion standard, because determinations regarding the

admissibility, qualifications, relevancy and competency of expert testimony are generally left

to the discretion of the trial judge. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64

(Tenn. 1997). The trial court’s decision regarding the waiver of the contiguous state rule and

the determination of similar communities set forth in Tennessee Code Annotated § 29-26-115

is reviewed for an abuse of discretion. Wilson v. Patterson, 73 S.W.3d 95, 102 (Tenn. Ct.

App. 2001); Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270, 281 (Tenn. Ct.

App. 1994). Overall, a trial court’s determination of whether to admit or exclude evidence

is reviewed under an abuse of discretion standard. Biscan v. Brown, 160 S.W.3d 462, 468

(Tenn. 2005).

The standard of review for the trial court’s actions in excusing Juror H is abuse of discretion.

See State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993) (stating that “the right to peremptory

challenges is not of a constitutional dimension”); Lindsey v. State, 225 S.W.2d 533, 538

(Tenn. 194938) (“The judges of the various [courts] are of necessity given wide discretion

in determining the qualifications of jurors and their discretion is not subject to review ‘except

in cases where it is clearly made to appear it has been abused.’ ”) (quoting Thomas v. State,

75 S.W.1025, 1026 (Tenn. 1903)).

Generally speaking, a trial court abuses its discretion when it causes an injustice to the party

challenging the decision by applying an incorrect legal standard, or reaching an illogical or

unreasonable decision. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). As

stated in Lee Med, “[a]n abuse of discretion occurs when a court strays beyond the applicable

legal standards or when it fails to properly consider the factors customarily used to guide the

particular discretionary decision.” Id.

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A NALYSIS

Informed Consent

We consider first Shea’s argument that the trial court erred in declining to direct a verdict on

McDonald’s claim based on lack of informed consent. Shea argues that McDonald received

a full disclosure of the risks associated with perfusion treatment, through the Shea Clinic

pamphlet, Dr. Shea’s conversation with McDonald, and the consent form McDonald signed

immediately before the perfusion procedure was performed. Shea insists that the information

provided to McDonald comported with the applicable standard of acceptable professional

practice, and the motion for directed verdict on this claim should have been granted.

As noted above in the Standard of Review, in reviewing the trial court’s denial of Shea’s

motion for a directed verdict on the issue of informed consent, this Court must construe all

evidence in the light most favorable to McDonald, disregard all countervailing evidence, and

determine whether reasonable minds could reach only one conclusion from the evidence.

Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). In so doing,

we apply the standard for sufficiency of the evidence that would be applied at trial. Robert

Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 10-9(c) (3d ed. 2009). A patient

asserting a medical malpractice claim based on lack of informed consent must prove “(1)

what a reasonable medical practitioner in the same or similar community would have

disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2)

that the defendant departed from the norm.” Ashe v. Radiation Oncology Assocs., 9 S.W.3d

119, 121 (Tenn. 1999); see also Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. Ct. App.

2000). The inquiry in lack of informed consent cases is whether the physician provided the

patient sufficient information to enable the patient to make an intelligent and informed

decision either to refuse or consent to the procedure. See Shadrick v. Coker, 963 S.W.2d

726, 732 (Tenn. 1998); Church, 39 S.W.3d at 159.

In the case at bar, the pamphlet given to McDonald prior to the procedure stated that, out of

more than 500 persons who had undergone the perfusion procedure at Shea Clinic, in 5% of

those cases, the patient’s hearing was “worse.” The pamphlet also included a disclaimer:

“With all three operations [perfusion procedures], no guarantees are made that the patient

will not continue to have dizzy spells, or be unsteady, or have further or complete hearing

loss, or worse fullness and tinnitus.” (emphasis added.) The consent form McDonald signed

immediately before undergoing the procedure stated that the procedure could result in

“[f]urther increase in hearing loss, even to complete loss of hearing.” 6

6

McDonald testified that she did not bring her glasses with her to Shea Clinic when she presented for the

(continued...)

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However, in her discussion with Dr. Shea, McDonald testified she specifically asked him

about the statement in the Shea Clinic pamphlet to the effect that her hearing could get worse

after the procedure. McDonald testified that Dr. Shea skipped over her concerns and told

her, “let’s just count on your hearing staying the same.” McDonald was adamant that Dr.

Shea never told her that it was possible for her to lose her hearing altogether.

McDonald’s expert witness, Dr. Maceri, testified that he found no fault with either the

contents of the Shea Clinic pamphlet or the pre-procedure consent form, and that he has

utilized similar forms in his own practice in the past. However, he testified that his patient’s

understanding is better when he has a conversation with the patient about the risks; he said

that he verbally went “through all the salient points” in the written materials. Dr. Maceri also

testified that the standard of care mandated consistency between the physicians’ verbal

remarks and the written materials, that the physician should not tell the patient one thing and

ask them to sign another. Dr. Maceri opined that “the risks of perfusion and some of the

potential consequences . . . were not sufficiently laid out [by Dr. Shea] for [McDonald] to

make an intelligent decision about whether or not this was something that she wanted to go

through,” and thus that Dr. Shea’s disclosures to McDonald fell below the standard of

acceptable professional practice.

On appeal, Shea argues that the risk of total loss of hearing was disclosed in the written

materials Shea Clinic provided to McDonald, and that this was sufficient to meet the

applicable standard of acceptable professional practice. However, McDonald’s expert

testimony provided evidence that the applicable standard required the physician to go over

these same risks in his verbal discussions with the patient as well. According to McDonald’s

testimony, Dr. Shea did not tell McDonald that she could suffer a total loss of hearing, and

in fact made remarks to her that a trier of fact could construe as reassurance that he expected

her hearing to be no worse after the perfusion treatment. Under these circumstances, we find

that Shea did not meet the burden of proving that reasonable minds could reach only one

conclusion, favoring Shea. Gaston, 120 S.W.3d at 819. Therefore, we find no error in the

trial court’s denial of Shea’s motion for directed verdict on informed consent.

Expert Witness

We consider next Shea’s argument that the trial court erred in permitting the testimony of

McDonald’s expert, Dr. Maceri, for a number of reasons. First, Shea contends that the trial

court erred in waiving the contiguous state requirement. Shea also raises a number of issues

6

(...continued)

procedure, and so could not read the form, and it was not read to her.

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regarding Dr. Maceri’s competence to testify about the applicable standard of care. We

address these issues in turn.

Waiver of Contiguous State Rule

Expert testimony in a medical malpractice action is governed by Tennessee Code Annotated

§ 29-26-115. Under this statute, in order to be competent to provide expert testimony, the

witness must have been licensed to practice in Tennessee or in a contiguous bordering state

during the year preceding the date of the alleged injury. Tenn. Code Ann. § 29-26-115(b)

(Supp. 2011). Under the same statute, the trial court may waive this requirement “when it

determines that the appropriate witnesses otherwise would not be available.” Id.

In the matter before us, McDonald’s counsel submitted an affidavit detailing his lengthy

search for a properly qualified expert. The expert who initially agreed to testify for

McDonald developed health problems that required him to decline to testify. After that,

McDonald’s counsel spoke to “in excess of a dozen” potential experts either in Tennessee

or a contiguous state.7 In each instance, McDonald’s counsel stated, “those physicians stated

to me that [McDonald] has a meritorious case. In other words, everyone found that

malpractice occurred. However, in each case those physicians declined to be identified as

a testifying expert for fear of professional retaliation that they would expect from the

Defendant, Dr. Shea’s, father.” Based on the statements of counsel and the entire record, the

trial court granted McDonald’s motion for permission to identify an expert from a

noncontiguous state.

On appeal, Shea argues that there was no showing that no appropriate witness from

Tennessee or a contiguous state was “available,” that the affidavit of McDonald’s counsel

shows only that no physician was willing to testify on McDonald’s behalf. Shea likens this

to a situation in which no expert in Tennessee or a contiguous state is willing to testify

because no malpractice occurred.

In response, McDonald argues that no Tennessee case has made a distinction between

qualified experts who are “unavailable” versus “unwilling” to testify, and that the real inquiry

is whether a qualified expert from Tennessee or a contiguous state can be located. Tenn.

Code Ann. § 29-26-115(b). Both parties rely on Rose v. H.C.A. Health Servs. of Tenn., 947

S.W.2d 144 (Tenn. Ct. App. 1996) in support of their positions.

7

The original affidavit did not specify that the potential experts practiced in Tennessee or a contiguous state.

This was clarified in an amended affidavit stating: “All said physicians were from Tennessee or a contiguous

state.”

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Tennessee courts have considered the provision allowing waiver of the contiguous state

requirement to be a “safety valve” for situations “in which a party is unable to locate a

qualified expert within [Tennessee] or one of our bordering states.” See Sutphin v. Platt,

720 S.W.2d 455, 458 (Tenn. 1986). The trial court’s decision to waive this requirement is

generally upheld if it falls “within the range of acceptable alternatives.” Ward v. Glover, 206

S.W.3d 17, 38 (Tenn. Ct. App. 2006); Steele v. Ft. Sanders Anesthesia Grp., 897 S.W.2d

270, 280-81 (Tenn. Ct. App. 1994) (finding no abuse of discretion in granting waiver based

on affidavits demonstrating reasonable diligence). In Rose v. H.C.A. Health Servs., the

plaintiffs searched unsuccessfully in Tennessee and bordering states for an expert in hospital

risk management and quality assurance. Rose, 947 S.W.2d at 147-48. Plaintiffs’ counsel

submitted an affidavit stating that health care professionals in these areas would talk to him

only if they were not identified. Id. at 147. The affidavit expressed counsel’s belief that the

size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a

contiguous state. Id. The plaintiffs asked the trial court to waive the contiguous state

requirement, and this request was denied. Id. at 148. The plaintiffs appealed. The appellate

court found no abuse of the trial court’s discretion, holding that the difficulties described by

plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a

cursory effort to find an appropriate expert.” Rose, 947 S.W.2d at 148. Additionally, the

plaintiffs’ counsel cited only a conversation with a single hospital administration in support

of his assertion that the large size of the defendant corporation would make it difficult to find

an expert without a conflict of interest. Rose, 947 S.W.2d at 147-48.

Shea argues that the affidavits of plaintiffs’ counsel in Rose “demonstrate a greater effort to

locate an expert than” the affidavit of McDonald’s counsel in this case. Shea also contends

that the appellate court in Rose did not find persuasive the argument that the size of the

corporate defendant made it difficult to find an expert, and asserts: “If the affidavits were

insufficient in the Rose case, [McDonald’s] counsel’s affidavit in the present case is likewise

insufficient.”

We find that Rose does not support Shea’s position on appeal. First, the appellate court in

Rose did not reach the issue of whether the reason proffered by plaintiffs’ counsel, that the

size of the corporate defendant made it difficult to find an expert free of a conflict of interest,

could constitute unavailability under Section 29-26-115(b). Second, in Rose, the trial court

determined, in its discretion, not to waive the contiguous state requirement. This case

presents the converse of the situation in Rose. Here, we examine whether the trial court

abused its discretion in granting a waiver of the contiguous state requirement. See In re

Estate of Hess, W2002-02166-COA-R3-CV, 2004 WL 370300, at *6 (Tenn. Ct. App. Feb.

27, 2004). Therefore, Rose tells us only that the trial court’s denial of a waiver was within

the range of acceptable alternatives in that case; it does not tell us whether the grant of a

waiver is also within the range of acceptable alternatives.

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We find that the reason McDonald’s prospective experts in Tennessee and contiguous states

give for not testifying on McDonald’s behalf is not per se insufficient to support a finding

that no appropriate witness from Tennessee or a contiguous state is “available.” Considering

the affidavits by McDonald’s counsel and the record as a whole, we find that the trial court’s

decision was “within the range of acceptable alternatives” and that there was no abuse of

discretion in the trial court’s grant of McDonald’s motion for permission to identify a

medical expert witness from a state not contiguous to Tennessee.

Competence of Expert

In a medical malpractice case, the claimant’s expert proof must meet the requirements of

Tennessee Code Annotated § 29-26-115(a). Under this subsection of the statute, the plaintiff

has the burden of proving, by competent expert testimony, “[t]he recognized standard of

acceptable professional practice in the profession and the speciality thereof, if any, that the

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

community” at the time the claimant’s injury occurred. Tenn. Code Ann. 29-26-115(a)(1)

(Supp. 2011).

Shea argues that Dr. Maceri was not competent to offer the required expert testimony for

several reasons. The first reason arises out of the “locality rule” set forth in Section 29-26-

115(a). Specifically, Shea contends that Dr. Maceri was not competent to testify about the

standard of care in Memphis, Shelby County, Tennessee, or in a similar community. Shea

notes that Dr. Maceri did not have first-hand, personal knowledge of the standard in

Memphis and Shelby County, as required under caselaw, and that the community in which

Dr. Maceri practices, Los Angeles, California, is not “similar” to the Memphis and Shelby

County community. Shea also contends that Dr. Maceri’s opinions were based on a national

standard of care, rather than the standard of care in Memphis or even in Los Angeles. For

these reasons, Shea asserts that it was error for the trial court to permit Dr. Maceri’s

testimony.

These issues were addressed at some length by our Supreme Court in a decision issued after

oral argument in this appeal, Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley,

the plaintiff filed a medical malpractice lawsuit against her surgeon arising out of abdominal

surgery. Shipley, 350 S.W.3d at 532. The trial court granted the defendant surgeon’s motion

to exclude the testimony of the plaintiff’s expert, finding inter alia that the expert was not

competent to testify about the standard of care in Nashville, when the alleged malpractice

occurred, and that the community in which the expert practiced medicine, in North Carolina,

was not similar to Nashville as required by Tennessee Code Annotated § 29-26-115(a). Id.

at 535. On that basis, the trial court granted summary judgment in favor of the defendant

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surgeon, and the plaintiff appealed. After the intermediate appellate court affirmed the grant

of summary judgment, the plaintiff appealed to the Supreme Court.

On appeal, the Shipley Court chose to examine the locality rule in detail, reviewing caselaw

issued by the Supreme Court and the intermediate appellate court, shaping and interpreting

the locality rule. After doing so, the Court emphasized that, in determining whether an expert

witness will be permitted to testify at trial,

. . . the trial court is not to decide how much weight is to be given to the

witness’ testimony. Once the minimum requirements are met, any questions

the trial court may have about the extent of the witness’s knowledge, skill,

experience, training, or education pertain only to the weight of the testimony,

not to its admissibility.

Id. at 551 (emphasis in original). The Court then noted that the term “similar community”

is not defined, and Section 29-26-115(a) does not require a particular means or manner of

proving what constitutes a “similar community.” Id. at 552. The Shipley Court reaffirmed

its adherence “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.” Id. It explained:

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 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.

Id. at 552 (citations omitted). The Shipley Court then flatly rejected the requirement that the

medical expert have “personal, firsthand, direct knowledge” of a medical community and the

standard of medical care in that community in order to be deemed competent to testify, as set

forth in Allen v. Methodist Healthcare Memphis Hosps., 237 S.W.3d 293, 297 (Tenn. Ct.

App. 2007), and Eckler v. Allen, 231 S.W.3d 379, 387 (Tenn. Ct. App. 2006). The Court

explained:

-13-

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.

Shipley, 350 S.W.3d at 552-53.

Shipley also addressed instances in which a medical expert indicates that the applicable

standard of care in a malpractice case is a national standard of care:

[W]e recognize in many instances the national standard [of care] is

representative of the local standard . . . .

. . . [E]xpert medical testimony regarding a broader regional standard

or a national standard should not be barred, but should be considered as an

element of the expert witness’ knowledge of the standard of care in the same

or similar community . . . . [This] is simply a common sense recognition of the

current modern state of medical training, certification, communication, and

information sharing technology . . . .

Id. at 553 (citations omitted). The Court explained how an expert may incorporate a national

standard of care into his opinion testimony:

Only after a medical expert witness has sufficiently established his or her

familiarity with the standard of care in the same or similar community as the

defendant, may the witness testify that there is a national standard of medical

care to which members of his or her profession and/or specialty must adhere.

This testimony, coupled with the expert’s explanation of why the national

standard applies under the circumstances, is permissible and pertinent to

support the expert’s opinion on the standard of care. The mere mention of a

national standard of care should not disqualify an expert from testifying.

However, an expert may not rely solely on a bare assertion of the existence of

an applicable national standard of care in order for his or her proffered

testimony to be admissible under Rules of Evidence 702 and 703.

-14-

Id. at 553-54.

We must evaluate the issues raised by Shea, and the appellate record, in light of Shipley. In

this case, Dr. Maceri submitted a sworn affidavit, testified in a deposition, and also testified

at trial. In his affidavit, Dr. Maceri states:

I am familiar with and know the recognized standard of acceptable medical

practice for physicians and nurses engaged in the practice of medicine,

including otolaryngology, in the medical community of Memphis, Shelby

County, Tennessee and similar communities. The medical community in which

I practice, Los Angeles, California, though larger, is similar to the medical

community of Memphis, Tennessee. Each community is home to large

academic facilities, multiple large hospitals and various medical specialties.

I am specifically familiar with the recognized standard of acceptable

professional practice applicable to Paul F. Shea, M.D. in diagnosing and

treating a patient such as Ms. McDonald at the time of her treatment in Shelby

County, Tennessee as well as in the community where I practice, which is

similar to Memphis. Further, the parameters for doctors and treatment of a

patient such as Ms. McDonald are the same everywhere and certainly so for a

clinic such as the Shea Clinic that holds itself out as one of the leading hearing

treatment centers in the country.

In his deposition, Dr. Maceri described his ongoing contacts with a former colleague,

McDonald’s treating physician in her first visit to Shea Clinic:

Q: How are you familiar with the practice of otology in Memphis, Tennessee?

A:Well, I have one former resident who is in practice in Memphis, Tennessee.

Q: Who would that be?

A: That’s Dr. Fetterman. And I speak with him from time to time and what the

other information was was [sic] what I gleaned from the information that was

provided me about the demographics of the area.

...

Q: When is the last time you’ve spoken with Dr. Fetterman?

A: I spoke with Dr. Fetterman about a month ago.

Q: And did you talk to him about this case?

A: Not about this case, no, sir.

Q:Why not?

A: I asked him specifically two questions and – because I just wasn’t

absolutely certain what the remaining portion of the community was doing and

I asked him, No. 1, was the drug of choice for perfusion of patients that needed

-15-

a chemical labyrinthectomy was it Gentamicin or Streptomycin and he told me

that it was his understanding that it was Gentamicin except for at the Shea

Clinic. And the other question I asked him was whether or not there were

vestibular rehabilitative facilities available in the Memphis area. I saw in the

packet that Mr. Smith had provided me that there was a rehab center at the

Baptist Hospital and Dr. Fetterman confirmed that there was, indeed,

vestibular rehab facilities and that he uses them.

Dr. Maceri testified in his deposition that the standard of care applicable in Memphis is in

essence a national standard of care:

Q: Do you – do you believe that you know the standard of care for physicians

practicing otology in the Memphis area?

A: I do.

Q: And how do you believe you know that?

A: Well, standard of care for our field is pretty much uniform in the sense that

our societies, our journals, both from the Academy and from the Triologic

Society, put out articles like the ones that we looked at earlier that list

treatments, results from research, et cetera, so that physicians who practice in

that field it’s incumbent upon them to read the journals and to learn the new

techniques and be aware of new changes and new styles and new techniques

used and different things.

Q: So are you saying that there’s a national standard of care?

A: I am.

Q: Do you believe that?

A: Yes, sir, I do.

Q: And do you believe that all physicians should be adhering to this national

standard of care?

A: I think that the standards that are put out by our Academy, by our

subspecialty societies are the things that dictate how medicine is practiced

throughout this country and it’s done so deliberately so that you have some

continuity of the way things are done and that things are done relatively similar

in different locations.

Dr. Maceri elaborated on this in his trial testimony. After acknowledging that his practice

is in Los Angeles and all of his training was acquired in Los Angeles and Michigan, Dr.

Maceri testified:

Q: Your knowledge of Memphis, I assume, has come from reading some

things about our population since this case started?

-16-

A: Yes.

Q: For example, we do know, don’t we, Doctor, that Los Angeles is about six

times as big as Memphis?

A: Yes.

Q: Has six times as many hospitals?

A: Correct.

Q: You do know the – oh, and incidentally, you’ve never practiced here?

A: No, sir.

Q: Never practiced with any physicians here?

A: The only physician that I know in this area is Bruce Fetterman. He was one

of my residents at USC.

Q: And you haven’t seen him for years?

A: No.

Q: Is that correct?

A: That’s correct.

Q:You know about the Shea Clinic?

A: Yes, sir.

Q: You’ve read medical articles written by Dr. John Shea?

A: I have.

Q: You know that it is a significant treating facility in the area?

A: Yes, sir.

Q: Your position, I believe, Doctor, is that the standard of care is a national

standard of care, applies everywhere?

A: I think that there are components of it that are national. Yes.

Q: All physicians are bound by that national standard of care, is that your

position?

A: That is.

Q: You don’t recognize a regional difference, or a local difference in the way

physicians practice medicine?

A: Oh, yes. I think there are variations. But the standards both from an

intellectual standpoint, what you’ve read and what you’ve learned as a trainee,

or a physician, are measured and tested on a national basis. There are

individual idiosyncrasies that people will develop as they are in practice. But

the core, the basic fundamental principles are the same whether you’re in

Memphis, Ann Arbor, or Los Angeles.

Q: And all of these principles you’ve testified [to] today, you think those are

national principles?

A: I do.

Q: Do you know about individual practices in the Memphis area that differ

from the national practice?

-17-

A: The only awareness of difference that I was aware of, and I obtained that

information from Dr. Fetterman, was that most of the people in this area, when

they do perfusion, use Gentamicin, except for the people at the Shea Clinic.

Q: The Shea Clinic is the largest facility in this region; correct?

A: Yes.

Thus, in the trial court below, Dr. Maceri took the position that (1) Los Angeles, where he

practiced, is similar to Memphis in the context of this case; (2) despite having no first-hand

experience practicing in Memphis, he had familiarized himself with the standard of care in

Memphis; and (3) the standard of care in Los Angeles and Memphis, applicable to Dr. Shea,

is in fact a national standard as to the procedures at issue in this case.

We look first at whether the trial court erred in finding that Los Angeles is similar to

Memphis under Section 29-26-115(a) in the context of this case. In a supplemental affidavit,

Dr. Maceri outlined the basis for his assertion that the two communities are similar. After

reciting specific figures on the population of Memphis and the number of hospitals and

hospital beds in Shelby County, Dr. Maceri explained:

Since I was not asked to do so during my deposition, I am providing such a

comparison now. The Los Angeles and Memphis medical communities,

though somewhat different in scale because of the difference in population, are

nevertheless similar communities. They are both homes to university-based

medical centers and university-based medical training programs. They both

have community and specialty hospitals. They both offer a large number of

medical specialties, including otology. Adjusting for the difference in

population, Memphis and Los Angeles also have a comparable number of

health care facilities and beds. In summary, there is really no appreciable

difference in the medical communities of Memphis and Los Angeles. At a

minimum, they are similar communities. The medical and physiological

considerations involved in the determination of whether to use transtympanic

perfusion therapy on a patient, and whether to use Gentamycin or Streptomycin

as the medication of choice in such a procedure, are not influenced any

geographic differences between the Memphis and Shelby County, Tennessee

community or the Los Angeles, California community. Physicians practicing

otology in both of these communities have access to the same medical

information concerning transtympanic perfusion therapy and whether to use

Gentamycin or Streptomycin as the medication of choice in such a procedure.

Further, the diagnosis of Ménière’s does not change from community to

community. The diagnostic criteria are well understood within the specialties

and do not change based on geographic location. All of this is true no matter

-18-

the specialty nor [sic] location, but it is particularly true in sophisticated

medical communities such as Los Angeles and Memphis. For consideration

of all the issues that pertain to this case, it is my personal and medical belief

that Los Angeles and Memphis are similar medical communities. This is not

a situation where a community is impaired in its ability to deliver services

because of lack of financial commitment, resources, information, or ability to

provide services. In every way a patient presenting such as Marsha McDonald

did to the Shea Clinic in July of 2004, should be subject to the same standards

of care whether in Los Angeles, Memphis, or many other similar communities.

Having pointed out the many similarities between the Los Angeles and

Memphis medical communities, I can think of absolutely no differences

between them for the purposes of this case other than the proportionally

commensurate larger number of doctors and nurses in Los Angeles.

As noted above, this is the type of information described in Shipley as appropriate for an

expert to establish the similarity of a compared community to the defendant physician’s

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

Shea urges, however, that even if Dr. Maceri recites all of the right statistical information and

makes an assertion that the two communities are similar, Los Angeles is in fact so dissimilar

from Memphis that the trial court erred in permitting Dr. Maceri to testify.

We recognize that Los Angeles and Memphis are dissimilar in many respects, particularly

in the terms of sheer population size. However, the purpose of the determination of whether

a compared community is “similar” is to ensure that the defendant medical professional’s

conduct, and whether malpractice occurred, is evaluated in light of a standard of care that is

fair and appropriate. Thus, the term “similar community” is not an absolute, but instead must

be viewed in the context of the medical procedures at issue. In his affidavit, Dr. Maceri gives

a cogent explanation of the reasons for his assertion that the compared communities are

similar in ways that are pertinent to the issues in this case. In contrast, Shea’s argument on

appeal appears to be that, given the difference in population size, Los Angeles cannot be

deemed similar to Memphis for that reason alone. We must reject this argument.

Our analysis is also informed by the discussion in Shipley regarding a national standard of

care, “recogniz[ing] that in many instances the national standard is representative of the local

standard.” Shipley, 350 S.W.3d at 553. Dr. Maceri’s position, in essence, is that the

Memphis medical community is of sufficient size and level of sophistication that the standard

generally applied in an urban medical community such as Los Angeles is applicable in

Memphis, and specifically to Dr. Shea and Shea Clinic.

-19-

We are also cognizant of the emphasis in Shipley on the trial court’s role as gatekeeper,

stressing that the trial court is to decide only whether the proffered expert meets the

minimum competency requirements, with the expectation that the expert “will thereafter be

tested with the crucible of vigorous cross-examination . . . .” Shipley, 350 S.W.3d at 551

(quoting McDaniel v. CXS Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997)).

Overall, considering the record as a whole, we cannot conclude that the trial court abused its

discretion in declining to exclude Dr. Maceri’s testimony on the basis that Los Angeles and

Memphis are not similar communities.

In addition, we find that Dr. Maceri’s testimony about a national standard in this case is well

in line with the parameters set forth in Shipley. Dr. Maceri did not rely on a “bare assertion

of the existence of an applicable national standard of care,” but instead explained “why the

national standard applies under the circumstances. . . .” Shipley, 350 S.W.3d at 553.

Therefore, under Shipley, Dr. Maceri’s discussion of a national standard did not disqualify

him from testifying, but was “permissible and pertinent” to support his opinion on the

standard of care. Id.

In the trial court below, Dr. Maceri appeared to take the position that, although he admittedly

had no first-hand knowledge of the standard of care in Memphis and Shelby County, he had

reviewed statistical information and discussed the standard with at least one practitioner in

Memphis, such that he had “become qualified” to opine on the standard of care in Memphis.

Under Shipley, this appears to be permissible. Id. at 552. However, we have already found

no abuse of discretion in the trial court’s conclusion that Los Angeles and Memphis are

similar communities for purposes of this case, and that Dr. Maceri’s discussion of a national

standard does not disqualify him. Under Section § 29-26-115, an expert need only testify as

to the standard of care in “the community in which the defendant practices or in a similar

community.” Tenn. Code Ann. § 29-26-115(a)(1) (Supp. 2011) (emphasis added). Thus,

we need not address whether Dr. Maceri had in fact “become qualified” to testify on the

standard of care in Memphis, and hold that the trial court did not abuse its discretion in

declining to exclude Dr. Maceri’s expert testimony.

Requisite Knowledge of Expert

Finally, Shea argues that Dr. Maceri did not have the requisite knowledge to offer expert

testimony concerning: (1) perfusion treatment and (2) the use of Streptomycin to treat

McDonald’s condition, and (3) the diagnosis of Ménière’s disease. Shea relies on Dr.

Maceri’s testimony that he does not do perfusion procedures, and specifically has never done

transtympanic perfusion, the type of perfusion treatment McDonald received. Shea argues

that Dr. Maceri’s claim that he had become knowledgeable about perfusion procedures by

-20-

attending medical education meetings and events, reading medical publications and by

contact with medical colleagues is an insufficient basis to offer opinion testimony. Similarly,

Shea argues that Dr. Maceri’s knowledge of Streptomycin is insufficient, in light of his

testimony that he does not use Streptomycin, has never researched it, and has never written

about it. Finally, Shea argues that Dr. Maceri does not have the requisite knowledge on the

Ménière’s diagnosis because “[a]s part of a battery of diagnostic tests, Dr. Shea ordered an

electrocochleogram to be performed on [McDonald]. Dr. Maceri testified that he does not

use electrocochleograms.” Shea contends that, under Rules 7028 and 7039 of the Tennessee

Rules of Evidence, the trial court erred in its role as a gatekeeper in determining that Dr.

Maceri’s expert testimony was sufficiently reliable, that his testimony would assist the trier

of fact in determining the facts at issue, and that the facts and data underlying Dr. Maceri’s

testimony was sufficiently trustworthy. In support, Shea cites McDaniel v. CSX Transp.,

Inc., 955 S.W.2d 257 (Tenn. 1997), in which Tennessee’s Supreme Court set forth several

nonexclusive factors that may be considered in determining the reliability and trustworthiness

of scientific testimony. These are:

(1) whether scientific evidence has been tested and the methodology with

which it has been tested; (2) whether the evidence has been subjected to peer

review or publication; (3) whether a potential rate of error is known; (4)

whether . . . the evidence is generally accepted in the scientific community;

8

Rule 702 of the Tennessee Rules of Evidence provides that:

[I]f scientific, technical, or other specialized knowledge will substantially assist the trier of

fact to understand the evidence or determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education may testify in the form of an opinion

or otherwise.

Tenn. R. Evid. 702 (2011).

9

Rule 703 of the Tennessee Rules of Evidence states:

The facts or data in the particular case upon which an expert bases an opinion or inference

may be those perceived by or made known to the expert at or before the hearing. If of a type

reasonably relied upon by experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in evidence. Facts or data that are

otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or

inference unless the court determines that their probative value in assisting the jury to

evaluate the expert’s opinion substantially outweighs their prejudicial effect. The court shall

disallow testimony in the form of an opinion or inference if the underlying facts or data

indicate lack of trustworthiness.

Tenn. R. Evid. 703 (2011).

-21-

and (5) whether the expert’s research in the field has been conducted

independent of litigation.

McDaniel, 955 S.W.3d at 265. Shea also cites cases decided after McDaniel, in which the

Court identified other non-definitive factors that a trial court may consider in assessing the

reliability of an expert’s methodology, including the expert’s qualifications for testifying on

the subject at issue and the connection between the expert’s knowledge and the basis for the

expert’s opinion. See Brown v. Crown Equip. Corp., 181 S.W.3d 268, 274-75 (Tenn. 2005);

State v. Stevens, 78 S.W.3d 817, 835 (Tenn. 2002).

In response, McDonald notes that caselaw does not require that Dr. Maceri’s education and

experience mirror that of Dr. Shea; he need only be sufficiently familiar with the standard

of care in Dr. Shea’s specialty to provide relevant testimony, citing Goodman v. Phythyon,

803 S.W.2d 697, 701-02 (Tenn. Ct. App. 1990). McDonald insists that Dr. Maceri was

qualified to given opinion testimony on Ménière’s perfusion treatment and Streptomycin.

In addition to the caselaw cited by the parties, we consider the Tennessee Supreme Court’s

analysis of this issue in Shipley v. Williams, discussed above, decided after oral argument

in this appeal. 350 S.W.3d 527 (Tenn. 2011). In Shipley, the plaintiff filed a medical

malpractice lawsuit against her general surgeon, alleging negligence in his failure to

promptly admit her to the hospital, his failure to properly assess and diagnose her condition,

and his failure to provide adequate follow-up care. Id. at 533. The trial court excluded one

of the plaintiff’s two experts, a physician who was board-certified in emergency medicine,

on the basis that he did not practice in a specialty that was relevant to the standard of care

applicable to the defendant surgeon. Id. at 534.

On further appeal, the Supreme court commented that it “would be inclined to agree” with

the lower court’s disqualification of the emergency medicine specialist “if the issues in this

case pertained to surgery.” Id. at 556. It underscored that Section 29-26-115 does not

require the claimant’s expert witness to practice the same specialty as the defendant medical

professional. Id. at 556. Consequently, Shipley emphasized, “courts must look carefully at

the particular issues presented in the case to determine if an expert practices a profession or

specialty that would make the expert’s testimony relevant to those issues.” Id. Because the

issues in Shipley did not pertain to surgery or related surgical care, but rather to whether the

defendant surgeon provided adequate, timely follow-up care, the Court found that the

plaintiff’s expert was qualified to give testimony that was relevant to those issues. Id. at 557.

In light of Shipley, we look at McDonald’s specific allegations of negligence by Dr. Shea,

as contained in Dr. Maceri’s testimony. First, as to the Ménière’s diagnosis, Dr. Maceri’s

testimony focused on the fact that McDonald’s reported symptoms did not include some

-22-

which are signature symptoms of Ménière’s, including vertigo. His testimony was that, in

the absence of distinguishing symptom such as vertigo, a Ménière’s diagnosis fell below the

standard of care. Next, assuming that Dr. Shea accurately diagnosed McDonald with

Ménière’s disease,10 Dr. Maceri testified that the standard of care required that the patient be

treated conservatively with a medical regimen focused on changes in diet and treating fluid

pressure and stress. Under the standard espoused by Dr. Maceri, treatments such as perfusion

would be offered only if the patient’s symptoms did not respond to the conservative medical

regimen. Because Dr. Shea skipped any medical regimen and immediately upon diagnosis

recommended that McDonald receive perfusion treatment, Dr. Maceri opined, his treatment

fell below the standard of care. Dr. Maceri also opined that, if perfusion therapy is done, the

standard of care requires the use of Gentamycin in the perfusion rather than Streptomycin,

because Gentamycin is less ototoxic and less likely to adversely affect the patient’s hearing.

We now review Dr. Maceri’s experience and qualifications in light of these allegations of

medical negligence. Dr. Maceri is board-certified in otolaryngology and practices in otology

and neurotology. His practice includes diagnosing and treating numerous patients with

Ménière’s disease, and has about 40-50 patients with Maniere’s at any given time. He also

teaches medical students, interns, and resident physicians how to diagnose and treat

Ménière’s disease. Dr. Maceri treats the patients Ménière’s with a medical regimen, such

as dietary changes. If the medical regimen does not control the symptoms, which occurs in

a small percentage of Ménière’s patients, Dr. Maceri advises the patients about the more

drastic options available including perfusion therapy. If perfusion therapy is the appropriate

treatment for the patient, Dr. Maceri does not do the perfusion, but refers the patient to

another physician. Dr. Maceri testified that he is familiar with perfusion therapy and the

agents used in perfusion, in order to advise his patients about whether perfusion is

appropriate for their condition, the risks, potential side effects, and long term residual effect

of the treatment. As part of his knowledge of perfusion treatment, Dr. Maceri has familiarity

with both Streptomycin and Gentamycin, and their relative toxicity, although he is not an

expert on either agent. Dr. Maceri acquired his knowledge of perfusion treatment and the

agents used in perfusion by attending medical education meetings and events, reading

medical publications, and through contact with physicians who perform perfusion therapy.

Similar to the situation in Shipley, the issues in the case do not appear to involve anything

involving Dr. Shea’s use of an electrocochleogram in diagnosing Ménière’s, but rather, the

fact that Dr. Shea diagnosed Ménière’s in a patient who was not experiencing vertigo. In Dr.

Maceri’s practice, he regularly diagnosed patients with Ménière’s disease. Moreover, the

10

Dr. Maceri maintained that McDonald did not have Ménière’s disease, but was asked to assume that she

was correctly diagnosed and then describe how Dr. Shea’s treatment fell below the standard of care for

treating Ménière’s.

-23-

issue on perfusion treatment does not appear to involve how Dr. Shea performed the

perfusion treatment on McDonald, except insofar as he used Streptomycin instead of

Gentamycin. Rather, the primary issue is the fact that Dr. Shea performed perfusion therapy

at all. Regardless of whether he actually performs perfusion therapy, Dr. Maceri’s medical

practice regularly requires him to assess the best treatment options for patients with

Ménière’s disease. This assessment includes consideration of the risks associated with

perfusion, including the risks inherent in the agent used, specifically, Gentamycin or

Streptomycin. This is sufficient to qualify Dr. Maceri as an expert and to give opinion

testimony that “was probative and relevant to the issues and allegations presented in”

McDonald’s lawsuit. Shipley, 350 S.W.3d at 557.

Under these circumstances, we find no error in the trial court’s decision to permit Dr. Maceri

to offer expert testimony on McDonald’s behalf.

Excuse of Juror

Finally, Shea argues on appeal that the trial court erred in permitting McDonald’s counsel

to exercise a peremptory challenge to exclude Juror H from the jury panel after the jury had

been sworn and seated. Shea acknowledges that a juror can be challenged for cause after the

jury is sworn. See Ricketts v. Carter, 918 S.W.2d 419, 424 (Tenn. 1996). Shea maintains,

however, that Juror H was not excused for cause in this case. Shea insists that the parties’

right to exercise a peremptory challenge as to any prospective juror ends when the jury is

sworn. Because the trial court’s alleged error affected the constitutional right to a trial by

jury, Shea argues, it should not be deemed harmless error, and this Court should remand the

case for a new trial.

In response, McDonald argues that the trial court did not err in allowing her to exercise one

of her remaining peremptory challenges upon learning of Juror H’s bias, after the jury was

sworn but before the parties put on their evidence. McDonald notes the trial court’s

comments that Juror H’s responses to the lawyers’ questions indicating that “she would try

to do the right thing but . . . she would be in a situation that would be hard for her . . . is

sufficient for a challenge.” McDonald contends that this ruling “was tantamount to a

challenge for cause.” Regardless, McDonald argues that the trial court had the authority to

permit the exercise of a peremptory challenge as to Juror H under the unique circumstances

of this case. Moreover, even if doing so was error on the part of the trial judge, McDonald

maintains that the error was harmless, considering the record as a whole, and a new trial is

unnecessary and inappropriate.

In Tennessee, the parties in a civil case have the right to have the factual issues in their

lawsuit determined by a fair and unbiased jury. Tenn. Const. Art. I, § 6; Ricketts, 918

-24-

S.W.2d at 421. State law provides expressly that the trial court may disqualify a juror if “a

state of mind exists on the juror’s part that will prevent the juror from acting impartially . .

. .” Tenn. Code Ann. § 22-1-105 (2009).

The process of placing the jury in a given case is generally referred to as “jury selection.”

The term is actually a misnomer, because jurors are in fact not “selected” by the attorneys for

the parties. Rather, the members of the venire are designated randomly, and the attorneys in

effect “de-select” individual members who would otherwise sit on the impaneled jury. The

de-selection of individual prospective jurors11 is done by a challenge to the prospective juror.

See Estep v. State, 245 S.W.2d 623, 625 (Tenn. 1951) (“The right to challenge is a right to

reject, not to select a jury.”) (quoting Wooten v. State, 41 S.W. 813 (Tenn. 1897). A jury

challenge is a party’s request that the trial judge disqualify a juror. Black’s Law Dictionary,

223 (7th ed. 1999). Challenges to a prospective juror may be either for cause or peremptory.

Crawford v. Heaberg, 709 S.W.2d 611, 612 (Tenn. Ct. App. 1986). A challenge for cause

is a party’s challenge to a member of the venire that is “supported by a specified reason . .

. that would disqualify that potential juror.” Black’s Law Dictionary 223 (7th ed. 1999).

Challenges of prospective jurors for cause fall into two classes: 1) propter defectum (on

account of some defect), arising from personal objections as alienage, infancy, lack of

statutory requirements, etc., and (2) propter affectum (on account of partiality) arising from

some bias or partiality either actually shown to exist or presumed to exist from

circumstances. Tenn. Farmers Mut. Ins. Co. v. Greer, 682 S.W.2d 920, 923-24 (Tenn. Ct.

App. 1984)(citing Durham v. State, 188 S.W.2d 555 (Tenn. 1945)). Propter defectum

objections to jurors do not raise the presumption of bias, and so can be made at any time until

the jury renders its verdict. Tenn. Farmers Mut. Ins. Co., 682 S.W.2d at 924. In contrast,

a propter affectum objection to a juror can be made at any time, even after the verdict is

rendered. Id.; see also Ricketts, 918 S.W.2d at 424 (“[A] party has the right to challenge a

juror for cause, on the basis of a lack of impartiality, after the jury has been empaneled or

even after the verdict has been rendered.”) (emphasis in original). See generally, Robert E.

Burch, Trial Handbook for Tennessee Lawyers § 6:15 (2011 ed.).

The trial court may, within its discretion, dismiss a juror for cause even if the juror maintains

that he or she will be able to set aside the circumstance raising a question as to the juror’s

impartiality. Carney v. Coco-Cola Bottling Works of Tullahoma, 856 S.W.2d 147, 149

(Tenn. Ct. App. 1993) (demonstrating a trial court’s discretion in determining whether a

juror was in fact impartial); Turner v. State, 111 Tenn. 593, 614 (Tenn. 1902) (“If a person

is disqualified as a juror, he should not be accepted because he states that, notwithstanding

11

Under certain circumstances, the entire panel of jurors may be challenged, termed a “challenge to the

array.” See 47 Am. Jur. 2d Jury § 216 (2006).

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his opinion, he will render an impartial verdict. When disqualified he cannot render himself

“impartial” by expressing the belief that he can render a fair and impartial verdict according

to the law and the proof, notwithstanding [his] opinion.”); see also Rice v. State, 9 Tenn.

432; 1830 WL 895, at *2 (Tenn. 1830) (reversing a trial court for failing to dismiss a juror,

even though the juror said he could discard his formed opinion and render an unbiased

verdict).

A peremptory challenge, also called a peremptory strike, is the right given to each party to

challenge or de-select a limited number of prospective jurors without assigning a reason for

doing so. Crawford, 709 S.W.2d at 612. The right to peremptory challenges is provided by

statute, not by the Constitution. See Tenn. Code Ann. § 22-3-104 (2009); Estep v. State, 245

S.W.2d 623, 625 (Tenn. 1951) (“[T]he right to challenge proposed jurors peremptorily . . .

is a privilege only granted to the accused as a matter of grace by the legislature.”) (quoting

Mahon v. State, 156 S.W. 458, 461 (Tenn. 1912)). The procedure for peremptory challenges

is generally left to the discretion of the trial judge. See State v. Simon, 635 S.W.2d 498, 507

(Tenn. 1982); Tenn. R. Civ. P. 47.03 (2011); Tenn. Code Ann. § 22-3-101 (2009).

McDonald argues vigorously that parties should be permitted to exercise unused peremptory

strikes on individual jurors after the jury is sworn and the trial is underway, at least under the

limited circumstances of this case. In support, McDonald cites State v. Nelson, 459 So. 2d

510 (La. 1984), a criminal case in which the trial court permitted the State to exercise an

unused peremptory challenge after a juror had been sworn. The appellate court in Nelson

rejected the defendant’s contention that he should be granted a new trial based on the use of

the peremptory challenge, using a harmless error analysis. Id. at 515-16.

McDonald also cites State v. Thomas, 673 S.E.2d 372 (N.C. Ct. App. 2009), a criminal case

in which a juror, after the jury was empaneled, engaged in conduct that prompted the trial

court to re-open voir dire as to the juror in question. Id. at 373. The trial court declined to

remove the juror for cause, and denied the defendant’s request to use an unused peremptory

challenge to strike the juror from the panel. Id. at 373-74. The defendant appealed and

requested a new trial. The appellate court in Thomas held that once the trial court re-opens

voir dire as to a juror, each party has an absolute right to exercise any remaining peremptory

challenges. Id. at 374. As acknowledged by McDonald, this holding was based on the

interpretation of a specific North Carolina statute setting forth the procedures to be followed

in jury selection and challenges to jurors. See State v. Freeman, 333 S.E.2d 743, 747 (N.C.

1985) (interpreting N.C. Gen. Stat. § 15A-1214(g) (1977)) (cited in State v. Womble, 473

S.E.2d 291, 297 (N.C. 1996), on which State v. Thomas relies).

We are not persuaded by McDonald’s arguments on this issue. In the vast majority of

jurisdictions, peremptory challenges do not survive the jury selection process, and there is

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no right to challenge a juror peremptorily after the jury has been sworn or impaneled. See

50A C.J.S. Juries § 445 (2011) (citing cases); 47 Am. Jur. 2d Jury § 212 (2006) (citing

cases); 3 A.L.R.2d 499 (2011), Peremptory challenge after acceptance of juror (citing cases)

(orig. pub. in 1949). McDonald cites no Tennessee authority permitting the peremptory

strike of a juror after the jury has been sworn or impaneled, and we have found none.

Existing Tennessee caselaw implies, consistent with the general rule elsewhere, that

peremptory challenges are permitted only prior to the jury being sworn and impaneled. See

Kirkendoll v. State, 281 S.W.2d 243, 248 (Tenn. 1955) (“[a] peremptory challenge of a juror

must be made at any time before the jury is sworn.”); Estep, 245 S.W.2d at 625 (“[B]efore

the jury is completed and sworn, the defendant . . . may have learned facts which would

justify a challenge for cause, or a peremptory challenge of a juror already accepted, but not

sworn. There is no reason why the trial judge should not allow such a challenge.”). As stated

by the Michigan Supreme court many years ago: “Some period must be fixed during the

impaneling of the jury and the actual commencement of the trial when the right to

peremptory challenge must end, and we are [s]atisfied that when the parties announce

themselves satisfied, and the panel of jurors sworn to try the cause, the right ends.” Ayers v.

Hubbard, 50 N.W. 111, 112 (Mich. 1891). We hold that a party’s unused peremptory

challenges do not survive the jury selection process, and may not be exercised once the jury

is sworn and impaneled.

In the record before us, it is unclear whether Juror H was excluded based on a peremptory

strike or for cause. The trial court’s initial remarks were certainly focused on McDonald’s

exercise of one of her unused peremptory challenges as to Juror H. However, after Shea’s

counsel rightly objected to the exercise of a peremptory challenge after the commencement

of the trial, the trial court responded by explaining his reason for excusing the juror, a reason

related to the impartiality of the juror, and saying it was “sufficient for a challenge.” As we

have stated, a peremptory challenge to a juror may be made without assigning a reason, while

there must be a reason for a challenge for cause, and a juror’s inability to be impartial is a

classic reason for a causal challenge.

McDonald argues that, even if Juror H was excused based on a peremptory strike, and even

if it were error to do so, any error would be harmless. McDonald cites Rule 36(b) of the

Tennessee Rules of Appellate Procedure, which states: “A final judgment from which relief

is available and otherwise appropriate shall not be set aside unless considering the whole

record, error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).

Shea argues forcefully that the only remedy for such an error is a new trial, because it affects

Shea’s constitutional right to trial by jury, citing Ricketts v. Carter, 918 S.W.2d 419, 424

(Tenn. 1996). However, Shea does not explain how any error affected the judgment in this

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case; after Juror H was excused, the case was still tried before a panel of competent, impartial

jurors. We must conclude that any error in excusing Juror H was harmless error under the

facts of this case.

C ONCLUSION

In sum, we affirm the trial court’s denial of Shea’s motion for directed verdict on the

informed consent claim. We find no abuse of the trial court’s discretion in its decision to

permit McDonald to retain for trial an expert from a non-contiguous state. We affirm the

trial court’s denial of Shea’s motion to exclude Dr. Maceri from trial based on similarity of

community, testimony referencing a national standard of care, and qualification to offer

expert testimony on the issues and allegations in the instance case. Finally, we hold that the

exercise of a peremptory challenge after the trial is underway is clear error, but under the

facts of this case it is harmless error.

The decision of the trial court is affirmed. Costs on appeal are assessed against Appellants,

Paul F. Shea, M.D. and Shea Ear Clinic and their surety, for which execution may issue if

necessary.

___________________________

HOLLY M. KIRBY, JUDGE

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