Day on Torts

Exclusion of HCLA expert based on locality rule affirmed.

Where an HCLA plaintiff’s expert testified at his deposition that he was not very familiar with Kingsport and that he had only reviewed information about Kingsport the night before the deposition, rather than before forming his medical opinions, the trial court did not err by excluding the expert based on the locality rule.

In Jackson v. Thibault, No. E2021-00988-COA-R3-CV, 2022 WL 14162828 (Tenn. Ct. App. Oct. 25, 2022), the patient underwent a hysterectomy at a hospital in Kingsport, Tennessee. Complications arose during the surgery, and the patient later went into septic shock and died. Plaintiff, who was the administrator of the patient’s estate, brought this HCLA suit alleging negligence against a number of medical providers related to the patient’s care.

In her initial expert disclosures, plaintiff identified Dr. Steege from Chapel Hill, North Carolina. After deposing Dr. Steege, defendants moved to exclude Dr. Steege on the basis that he was not competent to testify under Tenn. Code Ann. § 26-26-115(b). The trial court ruled that “Dr. Steege did not meet the locality rule outlined in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011),” and accordingly excluded his testimony. After being granted multiple extensions on the deadline to disclose a new expert, plaintiff had still failed to do so, and defendants moved for summary judgment. The trial court granted summary judgment, finding that defendants’ expert had stated that defendants complied with the applicable standard of care and therefore negated an essential element of plaintiff’s claim. This ruling was affirmed on appeal.

When a plaintiff files an HCLA claim, he or she must prove certain elements through expert testimony, including “[t]he 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[.]” (Tenn. Code Ann. § 29-26-115(a)). An HCLA expert witness must be licensed to practice in Tennessee or a contiguous bordering state “during the year preceding the date the alleged injury…occurred.” (Tenn. Code Ann. § 29-26-115(b)). In addition, the Tennessee Supreme Court has explained that HCLA standard of care experts must meet the locality rule, meaning that “a medical expert must demonstrate a modicum of familiarity with the medical community in which the defendant practices or a similar community.” (internal citation omitted). While firsthand knowledge of the community is not required, an expert must do more than “only testify as to a national standard of care,” as “Tennessee allows testimony of a national or uniform standard of care only once the expert has demonstrated his or her familiarity with the locality.” (internal citations omitted).

Here, the trial court found that plaintiff’s expert did not meet the locality rule, and the Court of Appeals agreed. During Dr. Steege’s deposition, he stated that when he thinks of “standard of care” he thinks about it on a national level; that he didn’t know if there was a different local standard of care in Kingsport; that he was “not very” familiar with Kingsport; that he looked up information about the Kingsport hospital the night before his deposition but not before forming his opinion in this case; that he was not provided with any demographics related to Kingsport; and that the hospital he worked in was “in a totally different league” than the hospital at issue here. Further, when talking about Kingsport, he guessed that it had a population of 250,000-500,000 people, when it actually had a population of about 50,000. Considering this testimony, the Court of Appeals agreed that “Dr. Steege failed to demonstrate the modicum of familiarity required by Shipley.”

The Court noted that by Dr. Steege’s own testimony, his familiarity with Kingsport did not go beyond a “cursory internet search of the facility’s current statistics.” Moreover, he admitted that he “did not gain this purported familiarity until well after he first opined that [defendant] breached the standard of care.” The Court reasoned that “[w]ithout an attempt to familiarize himself with the locality before forming his opinions, it is difficult to discern how Dr. Steege could conclude that the local standard is synonymous with the national standard, as required under Shipley.” The Court therefore affirmed the trial court’s exclusion of Dr. Steege.

Because plaintiff did not have expert testimony to support her HCLA claim, summary judgment for defendants was affirmed.

This case shows a potential pitfall with HCLA standard of care expert witnesses. Merely being licensed in Tennessee or a bordering state is not enough if the expert cannot also meet the locality rule.

Note: Chapter 49, Section 8 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

BirdDog Law also provides Tennessee lawyers with free access to user-friendly versions of the Tennessee rules of evidence and procedure and lots of other free resources, including a database for each of Tennessee’s 95 counties that will help find out information about court clerks, judges, filing fees, local rules, local forms, the presence (or absence) of electronic filing, case filings, and tort trial statistics.

Appeal under Tennessee Public Protection Act ruled untimely.

When appealing a trial court’s order dismissing or refusing to dismiss a case under the Tennessee Public Protection Act (TPPA), the appeal “must be filed within thirty days of the entry of that order.”

In Laferney v. Livesay, No. E2021-00812-COA-R3-CV, 2022 WL 14199150 (Tenn. Ct. App. Oct. 25, 2022), plaintiff filed multiple tort claims against multiple defendants, including libel claims against certain defendants based on their social media statements related to the death of a dog who died while in the care of plaintiff’s dog training business. The libel defendants filed motions to dismiss pursuant to the TPPA, which the trial court granted on December 10, 2020. The trial court also found that “the TPPA requires an award of attorney’s fees when an action is dismissed under that chapter” and it asked the prevailing parties’ attorneys to submit fee affidavits within fifteen days of the entry of the dismissal order. The trial court then entered an order awarding some attorneys’ fees on March 5, 2021, then due to some late filing, entered another order regarding attorneys’ fees on June 24, 2021. Plaintiff appealed the TPPA dismissal from that June 24th order.

The TPPA is Tennessee’s anti-SLAPP statute, which stands for “strategic lawsuits against public participation.” Although civil cases can typically only be appealed after the entry of a final judgment, “the TPPA provides parties the right to an immediate appeal to [the Court of Appeals] when a motion for dismissal under the TPPA is either granted or denied.” (citing Tenn. Code Ann. § 20-17-106 and Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651 (Tenn. Ct. App. 2021)). “Appeals pursuant to section 20-17-106 lie in this Court whether the order is final or interlocutory, and regardless of whether the case is appealed from general sessions or circuit court.” (quoting Nandigam). Here, the parties disagreed about whether the time within which plaintiff could file her notice of appeal ran from the December 2020 order of dismissal or the June 2021 order awarding attorney’s fees.

The Court of Appeals noted that before addressing the timeliness of the appeal, it first needed to consider whether the TPPA applied to this case, as plaintiff argued that the trial court erred by applying the TPPA. The Court found that plaintiff had waived the argument that the TPPA did not apply for two reasons. First, plaintiff asserted that the TPPA did not apply because the actions in this case took place in May 2019 and the TPPA did not take effect until July 1, 2019. The Court noted, however, that plaintiff’s copies of the alleged social media posts were not date-stamped, that the complaint did not clearly lay out a timeline of the allegedly libelous statements, and that plaintiff’s “own allegations suggest that the purported tortious activity occurred over an undefined period of time.” Because plaintiff did not properly develop this timeline argument, it was deemed waived. Second, plaintiff argued that the TPPA was unconstitutional as applied here, but because “nothing in the record indicate[d] that any party provided notice to the Tennessee Attorney General either in the trial court proceedings or on appeal,” the constitutional challenge was waived. Because both of plaintiff’s arguments that the TPPA did not apply were waived, the Court of Appeals affirmed the application of the TPPA to this case.

The core issue in this case was whether plaintiff’s appeal of the TPPA dismissal was timely filed. Defendants argued that the appeal under Tenn. Code Ann. § 20-17-106 should have been filed within thirty days of the trial court’s order of dismissal, and the Court of Appeals agreed in this matter of first impression. The Court first considered when the time period for appealing a TPPA dismissal (or refusal of dismissal) begins to run, noting that the Nandigam case cited above held that “the right to immediately appeal that interim order was ‘triggered’ notwithstanding the fact that the issue of attorney’s fees remained outstanding.” Although the statute itself does not provide a time limit for appeals, it states that the “Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals” arising under the TPPA. Based on the statute, the Rules, and prior case law, the Court held that “immediate appeals under section 106 must be filed within 30 days of a court’s order ‘dismissing or refusing to dismiss a legal action pursuant to a petition filed under’ the TPPA.” (citing Tenn. Code Ann. § 20-17-106).

Because plaintiff in this case did not file her appeal of the TPPA dismissal within thirty days of the order of dismissal, but instead waited until months later when the attorneys’ fees awards had been completed, the Court ruled that the appeal was untimely and it lacked jurisdiction to consider the appeal. The appeal was therefore dismissed.

This is an important case, as it provides further interpretation of the TPPA, a relatively new statute in Tennessee. As the TPPA comes up in more and more litigation, this ruling regarding timeliness of a TPPA dismissal appeal is critical information for attorneys litigating cases with TPPA issues.

Note: Chapter 28, Section 14 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

BirdDog Law also provides Tennessee lawyers with free access to user-friendly versions of the Tennessee rules of evidence and procedure and lots of other free resources, including a database for each of Tennessee’s 95 counties that will help find out information about court clerks, judges, filing fees, local rules, local forms, the presence (or absence) of electronic filing, case filings, and tort trial statistics.

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