§47.10 Contiguous State Rule – Waiver

The Case : Ward v. Glover, 206 S.W.3d 17 (Tenn. App. 2006).

The Basic Facts: This case involves a medical malpractice claim alleging injuries to a baby resulting from the rupture of the mother's uterus, which caused the baby to be ejected into the mother's abdomen. The plaintiffs presented two experts in the field of maternal-fetal medicine and sought a waiver by the court of the locality rule in order to allow a third expert from New York to testify.

The Bottom Line:

• "Tenn. Code Ann. § 29-26-115(b) sets forth the requirements for expert proof in medical malpractice cases. In order to testify, the medical expert must be

  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 [have] 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. . .

  Id. However, '[t]he court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available' to testify before the court. Id." 206 S.W.3d at 49.
• "A federal district court in Tennessee has held that, when a plaintiff has 'appropriate' expert witnesses, the locality rule will not be waived to allow the plaintiff to 'ice his cake' with the testimony of an expert who is allegedly more qualified. Ralph v. Nagy, 749 F. Supp. 169, 174 (M.D. Tenn. 1990). We agree with the reasoning of the federal court; accordingly, we find no abuse of discretion in the trial court's refusal to waive the locality rule." Id. at 49-50.2d 314 (Tenn. 1991) (waiver granted).

Other Sources of Note: Steele v. Ft. Sanders Anesthesia Group, P.C. , 897 S.W.2d 270 (Tenn. Ct. App. 1994) (waiver granted); Childress v. Bennett, 816 S.W.