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. 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."
This Court has previously affirmed a trial court's refusal to waive the requirements of Tennessee Code Annotated Section 29-26-115(b) under similar circumstances when the affidavits of the plaintiffs' attorneys "reflect[ed] only a cursory effort to find an appropriate expert from Tennessee or a contiguous border state." See Rose v. H.C.A. Health Servs. of Tennessee, Inc., 947 S.W.2d 144, 148 (Tenn. Ct. App. 1996). In Rose, the plaintiffs' attorneys claimed to have made a diligent search for an expert in Tennessee or a contiguous state to no avail.
The Court of Appeals granted Dr. Wessels' application for a Rule 10 extraordinary appeal and held that the trial court did not abuse its discretion in declining to waive the contiguous state requirement, noting that there were more than 2,300 ophthalmologists in Tennessee and its contiguous states and that Dr. Wessels made “only a cursory effort to find an appropriate expert from Tennessee or a contiguous border state.” Gilbert v. Wessels, No. E2013–00255–COA–R10–CV, 2013 WL 6063329, at *5–6 (Tenn. Ct. App. Nov. 18, 2013) (quoting Rose v. H.C.A. Health Servs. of Tenn., Inc., 947 S.W.2d 144, 148 (Tenn. Ct. App. 1996)). We granted Dr. Wessels' Rule 11 application for permission to appeal.
The court therefore refused to exercise its statutorily-created discretion regarding medical experts. The district court relied on Rose v. H.C.A. Health Serv. of Tenn., Inc., 947 S.W.2d 144 (Tenn.Ct.App. 1996), which held that counsel's effort to retain an expert in Tennessee or a contiguous state were inadequate, despite the fact that the plaintiff had contacted doctors in two Tennessee cities, used a professional witness locator, and also tried to enlist other doctors to be listed as experts. See id. at 147.
Summary judgments are regularly and frequently granted when the courts determine that the plaintiff's expert does not meet the requirements of Tenn. Code Ann. § 29-26-115(b) (Supp. 2008). See, e.g., Eckler v. Allen, 231 S.W.3d 379, 387 (Tenn.Ct.App. 2006); Kenyan v. Handal, 122 S.W.3d 743, 765-66 (Tenn.Ct.App. 2003); Totty v. Thompson, 121 S.W.3d 676, 681-82 (Tenn.Ct.App. 2003); Roberts v. Bicknell, 73 S.W.3d 106, 115 (Tenn.Ct.App. 2001); Dunham v. Stones River Hosp., Inc., 40 S.W.3d 47, 52 (Tenn.Ct.App. 2000); Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn.Ct.App. 1997); Rose v. H. C.A. Health Servs. of Tenn., Inc., 947 S.W.2d 144, 149 (Tenn.Ct.App. 1996); Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 163 (Tenn.Ct.App. 1984). Over thirty years ago, we warned the bar about the perils of taking summary judgment motions too lightly.
Trial courts have broad discretion in determining the competency of experts. Pyle v. Morrison, 716 S.W.2d 930, 933 (Tenn. Ct. App. 1986) (quoting Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 162 (Tenn. Ct. App. 1984)); Rose v. HCA Health Servs., 947 S.W.2d 144, 147 (Tenn. Ct. App. 1996) perm. app. denied (Tenn. 1997).
However, this Court has also affirmed the denial of a waiver where the plaintiffs' affidavits "were generalized and unspecific, and reflect only a cursory effort to find an appropriate expert from Tennessee or a contiguous border state." Rose v. HCA Health Services of Tennessee, 947 S.W. 2d 144, 148 (Tenn.Ct.App. 1996). In this case, there is no proof regarding the availability of an appropriate expert from Tennessee or a contiguous state.
We review a trial court's decision regarding a motion to alter or amend a summary judgment for abuse of discretion. See Rose v. H.C.A. Health Servs. of Tennessee, Inc., 947 S.W.2d 144, 149 (Tenn.Ct.App. 1996); Marr v. Montgomery Elevator Co., 922 S.W.2d 526, 528 (Tenn.Ct.App. 1995). Initially, the Trial Court granted Defendant summary judgment holding Defendant's Letter was a conditionally privileged communication.
The sole question presented is whether the Trial Judge committed prejudicial error by overruling the Plaintiffs' motion to reconsider his award of partial summary judgment. Before addressing the merits of this appeal, we recognize that the standard of review as to the issue presented is as set out in Rose v. H.C.A. Health Services of Tennessee, Inc., 947 S.W.2d 144 (Tenn.App. 1996), which holds that altering or amending a motion to reconsider a summary judgment rests in the sound discretion of the trial court. The Trial Court denied the motion to reconsider because the affidavits supporting the motion did not meet the requirements of "newly discovered evidence."
The sole question presented is whether the Trial Judge committed prejudicial error by overruling the Plaintiffs' motion to reconsider his award of partial summary judgment. Before addressing the merits of this appeal, we recognize that the standard of review as to the issue presented is as set out in Rose v. H.C.A. Health Services of Tennessee, Inc., 947 S.W.2d 144 (Tenn.App. 1996), which holds that altering or amending a motion to reconsider a summary judgment rests in the sound discretion of the trial court. The Trial Court denied the motion to reconsider because the affidavits supporting the motion did not meet the requirements of "newly discovered evidence."