IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
May 11, 1998
Cecil W. Crowson
Appellate Court Clerk
FOR PUBLICATION
Filed: May 11, 1998
MATTHEW SEFFERNICK, )
)
PLAINTIFF-APPELLEE, ) DAVIDSON CIRCUIT
)
v. ) Hon. Thomas W . Brothers, Judge
)
SAINT THOMAS HOSPITAL AND ) No. 01S01-9706-CV-00122
BARRY E. YARBROUGH, M.D., )
)
DEFENDANTS-APPELLANTS. )
FOR APPELLANTS: FOR APPELLEE:
C.J. GIDEON, JR. ROGER L. GILBERT
SHIRLEY A. IRWIN KNOXVILLE
NASHVILLE
OPINION
COURT OF APPEALS REVERSED HOLDER, J.
OPINION
We granted this appeal to decide whether the trial court erred in relying on
excerpts of a deposition when striking the affidavit of the plaintiff's expert. The
Court of Appeals held that the depositional excerpts could not "be considered as
evidence" because they "contain[ed] no affidavit as required by T.R.C.P. Rules
30.03 and 56.05." We reverse the appellate court's dismissal finding: (1) that
the issue was waived; (2) that Tenn. R. Civ. P. 30.03 and 56.05 neither preclude
filing excerpts of a deposition nor require that an affidavit be attached to
deposition excerpts; and (3) that the trial judge neither abused his discretion nor
acted arbitrarily in striking the expert's affidavit pursuant to Tenn. R. Evid. 702
and 703.
The plaintiff, Matthew Seffernick, filed a medical malpractice action
against the defendants, Saint Thomas Hospital and Barry E. Yarborough, M.D.
Seffernick alleged that he was a patient at Saint Thomas Hospital in Nashville,
Tennessee, where he was seen by Dr. Barry Yarborough. The plaintiff sought
medical attention for an eye injury after being struck in the eye by a metal wire.
The plaintiff developed severe pain and swelling of his eye and a
reduction of vision. He was diagnosed with both endophthalmitis and detached
retina. He underwent two surgical procedures and ultimately lost vision in his
eye. He filed suit against the defendants alleging "that the defendants failed to
properly treat the plaintiff's eye injury and failed to give him proper antibiotic
treatment or any other treatment other than ointment and a patch . . . ."
The defendants filed a motion for summary judgment supported by the
affidavit of the defendant, Dr. Yarborough. He stated that he diagnosed the
plaintiff as having an abrasion of the right eye with subconjunctival hematoma.
He treated the hematoma with Garamycin ophthalmic solution and applied a
2
patch to the plaintiff's eye. He advised the plaintiff to discontinue use of the
patch the next day if the plaintiff were "comfortable and without problems." He
instructed the plaintiff to return to the emergency department if he experienced
any complications with his eye.
The plaintiff responded by filing the affidavit of Winston Hall Worthington,
M.D. In his affidavit, Dr. Worthington stated that Dr. Yarborough deviated from
the standard of care in treating the plaintiff by failing to:
1. have the plaintiff re-examined within 24 hours of the emergency
room visit;
2. examine the plaintiff's eye with a slit-lamp microscope to
evaluate for a possible penetration injury; and
3. "place patient on Garamycin Ointment and patch the eye
overnight."
The trial judge found that Dr. Worthington's affidavit created an issue of disputed
material fact and denied the defendants’ motion for summary judgment.
The defendants then conducted a discovery deposition of Dr.
Worthington. Dr. Worthington acknowledged in his deposition that the
emergency room records indicated the application of Garamycin Ointment. Dr.
Worthington further stated, contrary to his affidavit, that he was unable to offer
an opinion that the application of Garamycin would have prevented the plaintiff's
infection.
Q. Can you say, to a reasonable degree of medical certainty,
whether the endophthalmitis that the patient had would have been
prevented if Garamycin ointment had been applied in the ER at
Saint Thomas?
A. No.
3
...
Q. . . . Why did Matthew Seffernick have a detachment of his retina?
A. I don't know.
...
Q. Can you tell me, then, to a reasonable degree of medical
certainty, why did the retinal detachment occur?
A. I have no idea.
...
Q. Is it fair to say that while you have some criticisms of Dr.
Yarborough, you can't really say that what you criticize him for
actually caused this young man to sustain his visual loss?
A. That's true.
The defendants filed a motion to strike the affidavit testimony of Dr. Worthington
and renewed their motion for summary judgment based upon inconsistencies
between Dr. Worthington's affidavit and his deposition. The defendants filed
excerpts of Dr. Worthington's discovery deposition in support of their motion to
strike. The excerpts of the deposition were indexed, attached to a Notice of
Filing and made a part of the trial record. The plaintiff's counsel neither objected
to the authenticity nor to the admissibility of the deposition excerpts.
The trial court granted the defendants' motion to strike the affidavit
testimony of Dr. Worthington finding:
that there is an inadequate factual and scientific basis for the
testimony of Dr. Worthington, that Dr. Worthington's testimony will
not substantially assist the trier of fact, that many material aspects
of Dr. Worthington's testimony, comparing his affidavit with his
August 30, 1995 deposition testimony, cannot be reconciled, and
that Dr. W orthington's opinions are, fundamentally, untrustworthy.
The trial court then granted the defendants' motion for summary judgment. The
Court of Appeals reversed the trial court's dismissal. The appellate court
reasoned that the "document entitled 'Notice of Filing' which contains purported
4
excerpts from [Worthington's] deposition . . . cannot be considered as evidence
. . . because it contains no affidavit as required by T.R.C.P. Rules 30.03 and
56.05."
Contrary to the appellate court's ruling, Tenn. R. Civ. P. 30.03 and 56.051
neither preclude the filing of excerpts of a deposition nor require that an affidavit
be attached to deposition excerpts. See Tenn. R. Civ. P. 32 (contemplating use
of "any part or all of a deposition"). Moreover, the plaintiff's attorney objected
neither to the admissibility nor to the form of the Notice of Filing. Had the
plaintiff's attorney believed that the excerpts conveyed an inaccurate
assessment of Dr. Worthington's depositional testimony, the plaintiff should have
objected and requested that the entire deposition be admitted into evidence.
See Tenn. R. Civ. P. 32.01(4) ("If only part of a deposition is offered in evidence
by a party, an adverse party may require the offering party to introduce any other
part which ought in fairness to be considered with the part introduced . . .").
Generally, questions regarding the admissibility, qualifications, relevancy
and competency of an expert's testimony are left to the discretion of the trial
court. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 263 (Tenn. 1997).
Pursuant to Tenn. R. Evid. 703, a trial court must disallow testimony in the form
of opinion or inference when the underlying facts or data indicate a lack of
trustworthiness. Id. at 264-65. While similar language is not present in the
federal rule, Tenn. R. Evid. 703 is "designed to encourage trial courts to take a
more active role in evaluating the reasonableness of the expert’s reliance upon
the particular basis for [the expert’s] testimony." Id. at 265. The trial court's
ruling on these matters may only be overturned if the discretion is arbitrarily
exercised or abused. Id. at 263-64.
1 1
The substance of Rule 56.05 is currently contained in Rule 56.06.
5
We hold that the failure to object constituted a waiver and that the trial
judge neither abused his discretion nor acted arbitrarily in striking Dr.
Worthington's testimony pursuant to Tenn. R. Evid. 702 and 703. The decision
of the appellate court is reversed, and the trial court's grant of summary
judgment is reinstated. The case is remanded to the Court of Appeals for review
of the pretermitted issue of whether the trial court correctly awarded discretionary
costs to the defendants. Costs of this appeal shall be taxed to the plaintiff,
Matthew Seffernick, for which execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
CONCUR:
Anderson, C.J.
Drowota and Birch, J.J.
Reid, Sp.J.
6