Rose v. H.C.A. Health Services of Tennessee, Inc.

10 Citing cases

  1. McDonald v. Shea

    No. W2010-02317-COA-R3-CV (Tenn. Ct. App. Feb. 16, 2012)   Cited 5 times
    Rejecting the argument that Los Angeles and Memphis cannot be deemed similar medical communities because of their dissimilar populations

    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."

  2. Gilbert v. Wessels

    No. E2013-00255-COA-R10-CV (Tenn. Ct. App. Nov. 18, 2013)   Cited 1 times

    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.

  3. Gilbert v. Wessels

    458 S.W.3d 895 (Tenn. 2014)   Cited 10 times
    Involving discretionary evidentiary decisions

    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.

  4. Legg v. Chopra

    286 F.3d 286 (6th Cir. 2002)   Cited 138 times
    Holding that a federal court must assess whether a proffered expert satisfies Rule 702 to provide expert testimony in a Tennessee malpractice suit

    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.

  5. Hannan v. Alltel Publishing Co.

    No. E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008)   Cited 556 times   6 Legal Analyses
    Redefining Tennessee's summary judgment standard

    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.

  6. Gaw v. Vanderbilt Univ.

    No. M2011-00306-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2012)   Cited 1 times

    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).

  7. Steele v. Berkman

    No. M2005-02935-COA-R9-CV (Tenn. Ct. App. Mar. 14, 2006)   Cited 1 times
    Declining to waive the contiguous state requirement because the plaintiff "made no effort to find," and presented "no proof regarding the availability of an appropriate expert from Tennessee or a contiguous state."

    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.

  8. McWhorter v. Barre

    132 S.W.3d 354 (Tenn. Ct. App. 2003)   Cited 16 times
    In McWhorter, the Tennessee Court of Appeals similarly held that a co-pilot's letter about his former colleague was reasonably capable of a defamatory meaning because "[i]t constituted a serious threat to [his] reputation as a pilot."

    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.

  9. Harris v. Chern

    C/A No. 01A01-9806-CV-00299 (Tenn. Ct. App. Jun. 9, 1999)

    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."

  10. Harris v. Chern

    Circuit No. 96C-3667. C/A No. 01A01-9806-CV-00299 (Tenn. Ct. App. Jun. 6, 1999)

    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."