The opinion
MATTHEW SEFFERNICK, )
)
Plaintiff/Appellant, )
) Davidson Circuit
) No. 93C-1800
VS. )
) Appeal No.
) 01-A-01-9606-CV-00282
SAINT THOMAS HOSPITAL AND )
BARRY E. YARBROUGH, M.D., )
Defendants/Appellees.
)
) FILED
December 18, 1996
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE THOMAS W. BROTHERS, JUDGE
GILBERT & FAULKNER
Roger L. Gilbert, #11499
Two Centre Square, Suite 625
625 Gay Street
Knoxville, TN 37902
ATTORNEY FOR PLAINTIFF/APPELLANT
GIDEON & WISEMAN
C. J. Gideon, Jr., #6034
Suite 1900
NationsBank Plaza
Nashville, TN 37219-1782
ATTORNEY FOR DEFENDANTS/APPELLEES
REVERSED, VACATED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS
BEN H. CANTRELL, JUDGE
MATTHEW SEFFERNICK, )
)
Plaintiff/Appellant, )
) Davidson Circuit
) No. 93C-1800
VS. )
) Appeal No.
) 01-A-01-9606-CV-00282
SAINT THOMAS HOSPITAL AND )
BARRY E. YARBROUGH, M.D., )
)
Defendants/Appellees. )
OPINION
The captioned plaintiff has appealed from a summary judgment dismissing his
malpractice suit against the captioned defendants.
Appellant presents the following issues:
A. Whether the Trial Court correctly granted the
defendants’ motion to strike the testimony of Winston
Hall Worthington, M.D. and motion for summary
judgment.
B. Whether the Trial Court correctly held that the
testimony of Winston Hall Worthington fails to satisfy
the legal requirements to prove causation.
C. Whether the Trial Court correctly awarded
discretionary costs to the defendants.
The complaint alleges that plaintiff sought treatment at the emergency room of the
defendant hospital; that he was treated by the defendant physician and released; that, as a result
of negligent treatment, severe complications ensued, including loss of vision in the affected eye.
The defendants filed a motion for summary judgment supported by the affidavit of the
defendant physician detailing the nature of the injury, the treatment administered and instructions
given, and asserting that his care and treatment of plaintiff conformed with the accepted
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standards of professional practice in the specialty of emergency and that no act or omission of
the affiant caused the complications stated in the complaint.
In addition to his own affidavit of the facts, plaintiff filed the affidavit of Winston Hall
Worthington, M.D., which stated that he had reviewed the medical records of the treatment of
plaintiff, and that said treatment fell below the standards of care in Nashville, Tennessee.
On November 16, 1993, the Trial Judge overruled defendants’ motion for summary
judgment.
On October 19, 1995, defendants filed a Motion to Strike and Motion for Summary
Judgment which read as follows:
Come the Defendants, Barry Yarbrough, M.D. and St.
Thomas Hospital, and move the Court to:
A. Strike the testimony of Winston Hall Worthington,
M.D. on the grounds that his testimony is (I) untrustworthy,
(ii) that he is not an expert, (iii) that his testimony fails to
meet the legal threshold to establish causation, (iv) that his
testimony will not substantially assist the jury, and (v) that
his testimony will be so misleading and confusing to the jury
that it should be excluded under T.R.E. 403;
B. Enter Summary Judgment in favor of the Defendants.
In support of this Motion, the defendants file and rely
upon:
A. The deposition testimony of Winston Hall
Worthington, M.D. in the discovery deposition taken on
August 30, 1995;
B. The deposition testimony of Winston Hall
Worthington, M.D. in Hutchison v. Huskey and Pilot Oil
Co., Circuit Court for Knox County, Docket Number 2-220-
89;
C. A certified copy of the Arkansas Medical Board file
on Winston Hall Worthington, M.D.; and
D. A Memorandum Brief.
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On November 30, 1995, the Trial Court entered an order stating:
THIS CAUSE came to be heard before the Honorable
Thomas W. Brothers on the 17th day of November, 1995
upon the Motions of the Defendants, Barry Yarbrough,
M.D. and St. Thomas Hospital, to (A) strike the testimony
of Winston Hall Worthington, M.D. and (B) to enter
Summary Judgment in favor of the Defendants.
The Motions are well-taken and are granted. The
testimony of Winston Hall Worthington, M.D. is stricken
under T.R.Civ.P. 56.05 and T.R.E. 703. The Court finds
that there is an inadequate factual and scientific basis for
the testimony of Dr. Worthington, that Dr. Worthington’s
testimony will not substantially assist the trier of fact, that
many material aspects of Dr. Worthington’s testimony,
comparing his affidavit with his August 30, 1995
deposition testimony, cannot be reconciled, and that Dr.
Worthington’s opinions are, fundamentally, untrustworthy.
The testimony is, therefore, stricken.
There is no genuine issue as to any material fact, and
the Defendants are entitled to Summary Judgment in their
favor as a matter of law.
IT IS, THEREFORE, ORDERED that this cause be
and the same is hereby dismissed with prejudice. Costs
of this cause are taxed to the plaintiff, and/or his sureties,
for which let execution issue if necessary.
Upon appeal from the foregoing order, the plaintiff first argues that the T.R.C.P. contain
no provision for a motion to strike testimony. Although not expressly authorized by any official
rule of evidence or procedure, motions to strike inadmissible evidence are a recognized and
frequently employed device to remove from consideration evidence which has been previously
filed or otherwise presented to the Court. In jury trials, it is accompanied by a request that the
jury be instructed to disregard evidence which has been heard, but is later determined to be
inadmissible.
In Railway Co., v. Beeler, 90 Tenn. 548, 18 S.W. 391 (1891), a “motion to strike all
evidence in regard to the deed” was disapproved as too general “since some of the evidence is
clearly competent.”
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In Arp v. Wolfe, Tenn. App. 1962, 354 S.W.2d 799, a motion to strike evidence was
overruled because the offending evidence was elicited by the movant.
In Creed v. White, 30 Tenn. (11 Humph) 549 (1851), the Court held that illegal or
irrelevant evidence may on motion at any time before the jury retires be excluded from the jury
on motion.
A motion to strike (or exclude) evidence is firmly established as part of trial practice in
this State. In 88 C.J.S. Trial §§ 133-156 a 36-page article on Motions to Strike evidence is
found.
Appellant next insists that the rules of evidence make no provision for exclusion of
expert testimony because of the character of the expert.
T.R.E. Rule 702 states that a qualified expert “may testify in the form of an opinion.”
T.R.E. Rule 703 states that the Court shall “disallow” expert opinion testimony if the
underlying facts or data indicate a lack of trustworthiness.
The Trial Judge has wide discretion in the matter of the qualifications of expert
witnesses. Otis v. Cambridge Mut. Fire Ins. Co., Tenn. 1992, 850 S.W.2d 439.
The qualifications, admissibility, relevancy and competency of expert testimony are
matters which rest within the sound discretion of the Trial Court; such discretion, however, is
not absolute and may be overturned on appeal where the discretion is arbitrarily exercised. State
v. Ballard, Tenn. 1993, 855 S.W.2d 557.
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No Tennessee authority is cited or found wherein the testimony of an expert was
excluded because of his unsatisfactory character for truthfulness.
T.R.E. Rule 703 requires rejection of opinion testimony where “the underlying facts or
data indicate lack of trustworthiness.” The obvious meaning of the rule is that an opinion may
be excluded if it is based upon facts which are not adequately shown to be true. Defendants
insist that the disqualifying untrustworthiness extends to and includes untrustworthiness of the
witness who testified as an expert. This Court has some reluctance to adopt this insistence;
however, one qualification of an expert is his reliability both as to training and as to honesty and
candor in expressing his opinion.
In the present case, the impeachment of the reliability of the opinion of Dr. Worthington
consisted of the following:
The affidavit of Dr. Worthington (which precipitated the first order overruling
defendant’s motion for summary judgment) stated:
I am familiar with the standard of medical care for my
medical specialty in Nashville, Tennessee. By experience
and training, I am familiar with the accepted standards of
professional practice for a physician, practicing the
specialty of emergency medicine, in the care and treatment
of a patient like Matthew Seffernick in June of 1992.
That I have received the medical records concerning
Matthew Seffernick from the Saint Thomas Hospital
emergency room, Ambulatory Care of Tennessee,
Opthalamic Associates Care Center and John Hoskins, MD.
I have also reviewed Dr. Yarbrough’s September 24, 1993,
Affidavit.
From my review of these records and this affidavit, it is
clear to me within a reasonable degree of medical certainty
that Barry E. Yarbrough, M.D. fell below the standard of
care in his care and treatment of Matthew Seffernick on
June 27, 1992, in Nashville, Tennessee. That this deviation
from the standard of care by Barry E. Yarbrough, M.D.,
proximately resulted in Mr. Seffernick suffering from
endopthalimitis of the right eye which resulted in retinal
detachment surgery and the loss of sight in this eye.
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That Barry E. Yarbrough, M.D., specifically deviated
from the standard of care in his treatment of Mr. Seffernick
by failing to set Mr. Seffernick an appointment to return
within 24 hours for an examination to ascertain if there was
an infection occurring or if the damage to the eye was
clearing. Had this been done, it would have been obvious
that Mr. Seffernick sustained an infection. This would
have allowed for proper care and would have kept Mr.
Seffernick from sustaining the injury he sustained.
That Barry E. Yarbrough, M.D., specifically deviated
from the standard of care in his treatment of Mr.
Seffernick by failing to place the patient on Garamycin
Ointment and patch the eye overnight in which case the
ointment would have worked longer and provided a more
continuous coverage over several hours than the solution
Barry E. Yarbrough, M.D. used. Barry E. Yarbrough,
M.D. failed to prescribe the use of the solution on an
every four hour basis until the patient returned for re-
examination the next day. That if Barry E. Yarbrough,
M.D., had treated Mr. Seffernick in this fashion, Matthew
Seffernick would not have suffered the resulting injuries
that he sustained.
Defendants’ brief cites a subsequent deposition of Dr. Worthington which is not found
in the record. The record contains a document entitled “Notice of Filing” which contains
purported excerpts from said deposition, but the document cannot be considered as evidence in
support of the second motion for summary judgment because it contains no affidavit as required
by T.R.C.P. Rules 30.03 and 56.05.
Defendants also allege the conviction of Dr. Worthington in a federal case evidenced by
citation to the published report of the opinion of the appellate court in that case. Published
opinions of appellate courts are not competent evidence of the facts stated therein. If the result
of the case is material, it may be proven by a certified copy of the judgment.
Without competent evidence to impeach the witness, the summary judgment is without
support and must be reversed.
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The summary judgment of dismissal is reversed and vacated. The cause is remanded to
the Trial Court for further proceedings Costs of this appeal are taxed against the defendants-
appellees.
REVERSED, VACATED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
___________________________________
SAMUEL L. LEWIS, JUDGE
___________________________________
BEN H. CANTRELL, JUDGE
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