Vivian Kennard v. Arthur M. Townsend, IV, M.D.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 17, 2012 Session

VIVIAN KENNARD v. ARTHUR M. TOWNSEND, IV., M.D., ET AL.

Appeal from the Circuit Court for Shelby County
No. CT-000267-07 Robert L. Childers, Judge

No. W2011-01843-COA-RM-CV - Filed March 2, 2012

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration
of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL
1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision
in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical
malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under
the locality rule, and further affirmed the trial court’s grant of summary judgment against the
Appellant. Because the qualifications of Appellant’s expert were not considered in light of
Shipley, and because the admission of expert testimony is a matter of discretion in the trial
court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant
of summary judgment, and remand for reconsideration in light of the Shipley decision.
Vacated and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellant, Vivian
Kennard.

William H. Haltom, Jr., and Margaret F. Cooper, Memphis, Tennessee, for the appellee,
Arthur M. Townsend, IV., M.D., and Associates Obstetrics & Gynecology, P.C.

OPINION

Before addressing the decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011),
we first pause for a truncated review of the relevant factual and procedural history of this
case. A thorough recitation is set out in this Court's previous opinion, Kennard v. Townsend,
No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011)
(“Kennard I ”).

On January 7, 2007, Vivian Kennard (“Plaintiff,” or “Appellant”) filed a complaint
for medical malpractice against Dr. Arthur M. Townsend, IV and Associates Obstetrics &
Gynecology, P.C. (together, “Defendants,” or “Appellees”). By her complaint, Ms. Kennard
alleged that the Appellees had committed medical malpractice against her during the birth
of her child in June of 2004. Specifically, Ms. Kennard alleged that the Appellees failed to
properly manage her blood pressure during the delivery, thus causing her permanent
blindness in both eyes.

On or about February 16, 2007, the Appellees filed a motion for summary judgment
on the ground that Ms. Kennard had failed to establish, through expert proof, that Dr.
Townsend deviated from the recognized standard of acceptable professional care in the
treatment of Ms. Kennard. The motion for summary judgment was supported by the Affidavit
of Dr. Townsend, wherein he stated that he had complied with the applicable standard of care
in his treatment of Ms. Kennard. In response to the motion for summary judgment, Ms.
Kennard filed the Affidavit of Richard McLaughlin, M.D. In relevant part, Dr. McLaughlin's
Affidavit states:

At the time of these events I was licensed to practice medicine
in the State of Missouri and was so licensed and did practice
during the year preceding the treatment of Vivian Kennard. I am
board certified in Obstetrics & Gynecology since November
1971. I am familiar with the recognized standard of acceptable
professional medical practice in these and related fields of
medicine, and more specifically, the patient care of someone in
the position of Vivian Kennard in an area such as Memphis,
Tennessee where the standard of care would be comparable to
the cities and facilities at which I have practiced medicine. I am
familiar with the standard of care as it existed in 2004. I am
familiar with the standard of care in Springfield, Missouri. I
gained first hand knowledge of the standard of care of
Springfield through my years of practice as an OB/GYN
physician in the Springfield community. My experience
include[s] care of patients with presentations such as that of
Vivian Kennard. I have gained first hand knowledge of the
Memphis Medical community through internet search[es] over

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 the years including 2005. I have also reviewed medical cases
from various hospitals and have gained insight as to how
medicine is practiced in Memphis. In addition, I have read a text
written by researchers from the University of Memphis Medical
School, Dr. Frank Ling and Dr. Patrick Duff, Obstetrics &
Gynecology, Principals for Practice. It is my opinion that the
Memphis medical community is similar to the medical
community of Springfield, Missouri. Memphis, a Regional
Medical Center as is Springfield, draws many patients from
Mississippi and Arkansas. Springfield provides care to an
18–county primary service area in southwest Missouri and
northern Arkansas. Memphis has the University of Tennessee
Medical School with residents practicing primarily at the
Regional Medical Center and Methodist University Hospital.
There are a similar number of hospitals in Memphis as there are
in the Springfield area. . . .

The case was set for trial on January 25, 2010. On January 6, 2010, Dr. Townsend and
Associates Obstetrics filed a motion in limine to exclude Ms. Kennard's expert, Dr. Richard
McLaughlin, because Dr. McLaughlin's testimony allegedly did not comply with the “locality
rule,” Tennessee Code Annotated Section 29-26-115, see infra.

On or about January 15, 2010, the trial court granted Appellees' motion in limine,
thereby excluding Dr. McLaughlin's testimony. Thereafter, the Appellees set their
previously-filed motion for summary judgment for hearing on the ground that Ms. Kennard
had provided no expert medical testimony against them. The trial court entered an order
granting Appellees' motion for summary judgment, finding that Ms. Kennard's expert
testimony had been excluded and that she had provided no additional expert proof against
the Appellees. This order was made final as to the Appellees by the inclusion of Tennessee
Rule of Civil Procedure 54.02 language. Ms. Kennard appealed and raised two issues for
review, which we restated as follows:

1. Whether the trial court abused its discretion by excluding the
testimony of Appellant's expert, Dr. Richard McLaughlin, on
grounds that Appellant failed to establish that Dr. McLaughlin
was familiar with the standard of care for obstetricians and
gynecologists practicing in Memphis, Tennessee, or that Dr.
McLaughlin was familiar with the standard of care for
obstetricians and gynecologists practicing in a similar
community?

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 2. Whether the trial court, after finding that Appellant's expert's
testimony was inadmissible, properly granted summary
judgment in favor of Dr. Townsend and Associate Obstetrics &
Gynecology?

In Kennard I, we specifically held that:

Dr. McLaughlin failed to establish that Memphis and
Springfield are similar communities. Other than the testimony
given by Dr. McLaughlin, Ms. Kennard did not submit any other
evidence to support a finding of similarity between the Memphis
and Springfield communities. Consequently, we conclude that
the trial court did not err in finding that Ms. Kennard failed to
establish that her expert was familiar with the standard of care
in a community similar to Dr. Townsend's community; therefore,
the trial court properly excluded Dr. McLaughlin's testimony.

Kennard I, 2011 WL 1434625 at *11.

On August 30, 2011, the Tennessee Supreme Court issued its order granting Ms.
Kennard’s Tennessee Rule of Appellate Procedure 11 application for the narrow purpose of
remanding the case to this Court for reconsideration in light of the Tennessee Supreme
Court's opinion in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Analysis

A trial court's decision concerning the competency of an expert witness is reviewed
by this Court under an abuse of discretion standard. As discussed by this Court in Carpenter
v. Klepper, 205 S.W.3d 474 (Tenn. Ct. App. 2006):

A trial court has broad discretion in determining the
“admissibility, qualifications, relevancy and competency of
expert testimony.” McDaniel v. CSX Transp., 955 S.W.2d 257,
263 (Tenn. 1997). Questions regarding the qualifications of
expert witnesses are left to the trial court's discretion and may be
overturned only if that discretion is abused. McDaniel, 955
S.W.2d at 263. The Tennessee Supreme Court has defined an
abuse of discretion to mean “an erroneous conclusion or
judgment on the part of the trial judge-a conclusion that was

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 clearly against logic (or reason) and not justified.” Foster v.
Amcon Int'l, Inc., 621 S.W.2d 142, 145 (Tenn. 1981).

Carpenter, 205 S.W.3d at 477.

The trial court's decision on a motion for summary judgment is a question of law,
which we review de novo upon the record with no presumption of correctness. Hall v.
Haynes, 319 S.W.3d 564, 571 (Tenn. 2010); Bailey v. Blount Cnty. Bd. of Educ., 303
S.W.3d 216, 226 (Tenn. 2010). A trial court may properly grant a motion for summary
judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P.
56.04. In deciding a motion for summary judgment, a trial court should not weigh evidence,
but must accept the nonmoving party's evidence as true and view both the evidence and all
reasonable inferences that can be drawn therefrom in the light most favorable to the
nonmoving party. Shipley, 350 S.W.3d at 551; Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76,
84 (Tenn. 2008).

Tennessee Code Annotated Section 29-26-115 governs the burden of proof in medical
malpractice cases and provides, in relevant part, as follows:

§ 29-26-115. Burden of proof; expert witnesses.

(a) In a malpractice action, the claimant shall have the burden of
proving by evidence as provided by subsection (b):
(1) The 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;
(2) That the defendant acted with less than or failed to act with
ordinary and reasonable care in accordance with such standard;
and
(3) As a proximate result of the defendant's negligent act or
omission, the plaintiff suffered injuries which would not
otherwise have occurred.
(b) No person in a health care profession requiring licensure
under the laws of this state shall be competent to testify in any
court of law to establish the facts required to be established by
subsection (a), unless the person was licensed to practice in the

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 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 had 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. This rule shall apply
to expert witnesses testifying for the defendant as rebuttal
witnesses. The court may waive this subsection (b) when it
determines that the appropriate witnesses otherwise would not
be available.

Subsection (b) of the statute sets out the criteria for a medical expert’s competency
and is referred to as the “locality rule.” Shipley, 350 S.W.3d at 550. In Shipley, our Supreme
Court specifically stated that Tennessee courts had incorrectly interpreted the requirements
of the locality rule. As pointed out in the recent case of Walker v. Garabedian, No.
W2010–02645–COA–R3–CV, 2011 WL 6891575 (Tenn. Ct. App. Dec. 28, 2011):

Shipley first emphasized that the trial court, in its historic role
as gatekeeper, does not weigh the evidence prior to trial, but
utilizes its discretion to determine if evidence, including expert
testimony, will be admitted at trial.

Id. at *5 (citation omitted). Concerning the proof of what constitutes a “similar community”
under Tennessee Code Annotated Section 29-26-115(a)(1), the Shipley Court stated:

Principles of stare decisis compel us to adhere to the
requirement that a medical expert must demonstrate a modicum
of familiarity with the medical community in which the
defendant practices or a similar community. Generally, an
expert's testimony that he or she has reviewed and is familiar
with pertinent statistical information such as community size,
hospital size, the number and type of medical facilities in the
community, and medical services or specialized practices
available in the area; has discussed with other medical providers
in the pertinent community or a neighboring one regarding the
applicable standard of care relevant to the issues presented; or
has visited the community or hospital where the defendant
practices, will be sufficient to establish the expert's testimony as
relevant and probative to “substantially assist the trier of fact to
understand the evidence or to determine a fact in issue” under

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 Tennessee Rule of Evidence 702 in a medical malpractice case
and to demonstrate that the facts on which the proffered expert
relies are trustworthy pursuant to Tennessee Rule of Evidence
703.

Shipley, 350 S.W.3d at 552.

The Shipley Court went on to state that:

[T]he “personal, firsthand, direct knowledge” standard set forth
in Eckler and Allen is too restrictive. There is substantial
Tennessee precedent allowing experts to become qualified by
educating themselves by various means on the characteristics of
a Tennessee medical community. . . . A proffered medical
expert is not required to demonstrate “firsthand” and “direct”
knowledge of a medical community and the appropriate standard
of medical care there in order to qualify as competent to testify
in a medical malpractice case. A proffered expert may educate
himself or herself on the characteristics of a medical community
in order to provide competent testimony in a variety of ways,
including but not limited to reading reference materials on
pertinent statistical information such as community and/or
hospital size and the number and type of medical facilities in the
area, conversing with other medical providers in the pertinent
community or a neighboring or similar one, visiting the
community or hospital where the defendant practices, or other
means. We expressly reject the “personal, firsthand, direct
knowledge” standard formulated by the Court of Appeals in
Eckler and Allen.

Id. at 552–53. As correctly pointed out by Judge Kirby in Walker:

Shipley expressly rejected the requirement that a medical expert have
“personal, firsthand, direct knowledge” of the standard of care in the
defendant's community in order to offer expert testimony on that standard, as
set forth in decisions by some of Tennessee's intermediate appellate courts.
[Footnote 4 provides: “Shipley noted that this requirement was imposed by the
intermediate appellate courts in the Western Section of Tennessee, citing
Eckler v. Allen, 231 S.W.3d 379 (Tenn. Ct. App. 2006) and Allen v. Methodist
Healthcare Memphis Hosps., 237 S.W.3d 293 (Tenn. Ct. App. 2007), but was

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 rejected by the intermediate appellate courts in the Eastern Section of
Tennessee, citing Farley v. Oak Ridge Med. Im aging, No.
E2008–01731–COA–R3–CV, 2009 Tenn. App. LEXIS 540, at *32, 2009 WL
2474742, at *10 (Tenn. Ct. App. Aug. 13, 2009). Shipley, 350 S.W.3d at
549–50].

Walker, 2011 WL 6891575 at *6.

“Shipley then addressed expert medical testimony of a broad regional or national
standard of care, finding that an expert who opines that a national standard of care applies
should not be per se disqualified from offering testimony at trial.” Id. It is clear that the
Shipley holding represents a paradigm shift concerning how Tennessee Courts should
approach the admission or exclusion of medical expert testimony:

In summary, (1) at the summary judgment stage of the
proceedings, trial courts should not weigh the evidence but must
view the testimony of a qualified expert proffered by the
nonmoving party in the light most favorable to the nonmoving
party. (2) A claimant is required to prove “[t]he recognized
standard of acceptable professional practice ... in the community
in which the defendant practices or in a similar community.”
Tenn. Code Ann. § 29-26-115(a)(1). The medical expert or
experts used by the claimant to satisfy this requirement must
demonstrate some familiarity with the medical community in
which the defendant practices, or a similar community, in order
for the expert's testimony to be admissible under Rules 702 and
703. Generally, a competent expert's testimony that he or she has
reviewed and is familiar with pertinent statistical information
such as community size, hospital size, the number and type of
medical facilities in the community, and medical services or
specialized practices available in the area; has had discussions
with other medical providers in the pertinent community or a
neighboring one regarding the applicable standard of care
relevant to the issues presented; or has visited the community or
hospital where the defendant practices, will be sufficient to
establish the expert's testimony as admissible. (3) A medical
expert is not required to demonstrate “firsthand” and “direct”
knowledge of a medical community and the appropriate standard
of medical care there in order to qualify as competent to testify
in a medical malpractice case. A proffered expert may educate

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 himself or herself on the characteristics of a medical community
in a variety of ways, as we have already noted. (4) In addition to
testimony indicating a familiarity with the local standard of care,
a medical expert may testify that there is a broad regional
standard or a national standard of medical care to which
members of his or her profession and/or specialty must adhere,
coupled with the expert's explanation of why the regional or
national standard applies under the circumstances.

Shipley, 350 S.W.3d at 554.

As was the case in Walker, our holding in Kennard I was made before the Tennessee
Supreme Court issued its opinion in Shipley. Consequently, neither this Court, nor the trial
court, had the opportunity to consider the case in light of the changes that resulted from the
Shipley holding. Given the fact that admissibility of evidence is a matter that triggers the
trial court's discretion, this Court cannot usurp that discretion by conducting a de novo review
of Dr. McLaughlin’s qualifications in light of Shipley. In determining the admissibility of
evidence, we conclude that the trial court should have the opportunity to reconsider its
decision with the benefit of the argument of counsel concerning the impact of Shipley on Dr.
McLaughlin’s testimony. Walker, 2011 WL 6891575 at *7. We further note that the parties'
discovery, the deposition of Dr. McLaughlin, the pleadings and supporting affidavits
surrounding Appellees’ motion in limine to exclude Dr. McLaughlin’s testimony, as well as
the Appellees’ motion for summary judgment, all took place without consideration of the
analysis in Shipley. As noted by Judge Kirby in Walker, “under Shipley, it is arguable that
a medical expert such as Dr. [McLaughlin] despite never having practiced medicine in
Tennessee, could become competent to testify about the standard of acceptable professional
practice in [Memphis], and not just in a community that is similar to [Memphis].” Id. at n.5
(citing Shipley, 350 S.W.3d at 552–53, 54). Therefore, upon remand, the trial court may, in
its discretion, permit the parties to submit amended pleadings or take additional discovery
to address the standard explained in Shipley. Id.

For the foregoing reasons, the order of the trial court granting Appellees’ motion in
limine to exclude Dr. McLaughlin’s testimony and the order granting summary judgment in
favor or Appellees is vacated. The case is remanded for further proceedings consistent with
this Opinion. Costs of this appeal are assessed one half to the Appellant, Vivian Kennard,
and her surety, and one half to the Appellees, Dr. Arthur M. Townsend and Associates
Obstetrics and Gynecology, P.C., for which execution may issue if necessary.

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 _________________________________
J. STEVEN STAFFORD, JUDGE

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