Stacey Mitchell and Bryan Mitchell, For themselves, and as next friend to Lauren Mitchell, a minor v. The Jackson Clinic, P.A. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 24, 2013 Session
STACEY MITCHELL and BRYAN MITCHELL, For themselves, and as
next friend to Lauren Mitchell, a minor v. THE JACKSON CLINIC, P.A., ET
AL.
Direct Appeal from the Circuit Court for Madison County
No. C-07-294 Roy B. Morgan, Jr., Judge
No. W2012-00983-COA-R3-CV - Filed April 9, 2013
This is a medical malpractice case. The trial court granted summary judgment to Appellees,
the doctors and clinic, on the basis that the Appellants’ only expert witness was not
competent to testify pursuant to the Tennessee Medical Malpractice Act, Tennessee Code
Annotated Section 29–26–115. Appellants appeal, arguing that the trial court erred in
excluding their expert. Under the Tennessee Supreme Court’s holding in Shipley v.
Williams, 350 S.W.3d 527 (Tenn. 2011), we affirm the trial court’s exclusion of the expert’s
testimony and its grant of summary judgment. Affirmed and remanded.1
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed 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 H OLLY M. K IRBY, J., joined.
William E. Bruce, Memphis, Tennessee, for the appellants, Stacey Mitchell and Bryan S.
Mitchell, for themselves, and next friend to Lauren Mitchell, a minor.
James E. Looper, Jr., Nashville, Tennessee, for the appellees, The Jackson Clinic, P.A.,
William H. Woods, M.D. and James A. Payne, M.D.
OPINION
1
This case was assigned to Judge Stafford on March 8, 2013.
Lauren Mitchell was born on April 26, 2003 at the Jackson Madison County General
Hospital. Lauren’s parents are Stacey Mitchell and Bryan S. Mitchell (the “Mitchells,” or
“Appellants”). Dr. William H. Woods and Dr. James A. Payne are board certified
pediatricians, practicing in Jackson Tennessee at the Jackson Clinic, P.A. (together with Drs.
Woods and Payne, “Appellees”).
On September 7, 2007, Appellants, individually and as next friend of Lauren Mitchell,
filed suit against the Appellees, claiming, in relevant part, that Drs. Payne and Woods were
negligent in: (1) failing to order or perform additional tests to determine the cause of
Lauren’s hyperbilirubinemia;2 (2) failing to treat Lauren’s jaundice; (3) failing to inform the
Mitchells about Lauren’s condition; and (4) failing to refer Lauren for further tests for
bilirubin levels following her hospitalization.3 The complaint alleges that Appellees’ actions
caused Lauren to suffer permanent encephalopathy from elevated bilirubin levels.4 The
relevant factual averments in the complaint are that, on April 26, 2003, Lauren’s nurses
2
Hyperbilirubinemia is a condition in which there is too much bilirubin in the blood. When red blood
cells break down, a substance called bilirubin is formed. Babies are not easily able to metabolize the
bilirubin and it can build up in the blood and other tissues and fluids of the baby's body. This is called
hyperbilirubinemia. Because bilirubin has a pigment or coloring, it causes a yellowing of the baby's skin and
tissues. This is called jaundice.
3
We note that the complaint also names several other doctors and the hospital as party-defendants,
alleging negligence in the prenatal treatment provided to Mrs. Mitchell. These other defendants were
dismissed during the pendency of the case and the sole Appellees in this appeal are Dr. Woods, Dr. Payne,
and The Jackson Clinic, P.A. Despite this fact, we note that the appellate record contains numerous filings
that relate solely to Appellants’ case against the dismissed defendants, and also includes extraneous
discovery materials that are specifically excluded from appellate records under Tenn. R. App. 24(a). The
problem with including extraneous filings in the record is that it places upon this Court a duty that falls to
the Appellant—to prepare a correct and complete record on appeal. Tenn. R. App. P. 24(b). In making that
record, the Appellant should, of course, adhere to the mandates contained in Tennessee Rule of Appellate
Procedure 24(a), but should also endeavor to tailor the record to include only the filings that are necessary
based upon the parties to the appeal and the issues specific to those parties. It is too often the case that
appellants simply include every filing made in the trial court in the appellate record. This practice is not in
keeping with the spirit of the Rules of Appellate Procedure and the role of the appellant in that process. This
Court endeavors to file its opinions in a timely manner; however, when placed in the position of having to
review volumes of extraneous, unnecessary, and irrelevant filings, our goal is hindered and the interests of
judicial economy are stymied.
4
Bilirubin is toxic to cells of the brain. If a baby has severe jaundice, there's a risk of bilirubin
passing into the brain, a condition called acute bilirubin encephalopathy. Prompt treatment may prevent
significant permanent damage to the brain caused by bilirubin encephalopathy.
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observed that she was jaundiced. Dr. Payne investigated the report of jaundice on April 27,
2003, by ordering blood drawn for a total bilirubin count. On April 27, Lauren’s bilirubin
count was 10.1. On April 28, 2003, Dr. Woods assumed responsibility for Lauren’s care,
and ordered a second bilirubin level blood test. According to the complaint, the April 28 th
blood work revealed that Lauren’s bilirubin level had risen to 12.3. Without further
examination, the complaint avers that Dr. Woods discharged Lauren from the hospital, while
she was still jaundiced. The record indicates that an infant’s bilirubin level normally peaks
at approximately seventy-two hours after birth. Consequently, the alleged standard of care
requires that infants, presenting with jaundice, should have bilirubin tests at least every
twenty-four hours until the levels trend downward. Because Lauren’s bilirubin level was,
in fact, rising when she was discharged by Dr. Woods (at about fifty-six hours post delivery),
the Appellants argue that the care provided to Lauren was below the applicable standard of
care.
The parties filed cross-motions for summary judgment. In support of their motion
for summary judgment, the Mitchells relied upon the affidavit testimony of Dr. Stephen L.
Winbery. On March 31, 2011, the Mitchells filed a designation of expert, indicating that Dr.
Winbery was expected to testify on Appellants’ behalf. In relevant part, the designation
indicates that Dr. Winbery was expected to testify concerning: (1) jaundice; (2) pathological
jaundice; (3) cephalohematoma; (4) bilirubin metabolism; (5) bilirubin encephalopathy; and
(6) the American Academy of Pediatrics’ Guidelines for jaundice. Dr. Winbery’s curriculum
vitae was filed concurrent with the designation. On February 2, 2012, Appellees filed a
motion to strike Dr. Winbery as an expert, and for entry of summary judgment in their favor.
The motion to strike Dr. Winbery’s testimony was incorporated, by reference, into a motion
in limine, which was filed by Appellees on March 5, 2012. Appellants opposed all of
Appellees’ motions that were related to the exclusion of Dr. Winbery’s testimony and
summary judgment.
All pending pre-trial motions were heard on March 19, 2012. By Order of April 12,
2012, the trial court granted Appellees’ motion to strike Dr. Winbery’s testimony. Because
Dr. Winbery was the sole expert proferred by Appellants, after striking his testimony, the trial
court granted summary judgment in favor of the Appellees. Concerning Dr. Winbery’s
qualifications, the April 12, 2012 order states:
This case involves allegations of medical malpractice
against two pediatricians and their employer that they did not
appropriately monitor bilirubin levels in Lauren Mitchell which
caused her to have kernicterus [i.e., bilirubin-induced brain
dysfunction]. On March 31, 2011, [the Mitchells] designated
their only standard of care Rule 26 expert witness, Dr. Stephen
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Winbery. Dr. Winbery’s deposition was taken on August 17,
2011. Dr. Winbery listed his profession on his curriculum vitae
as an adult emergency room physician. While Dr. Winbery did
complete a double residency in pediatrics and internal medicine
from June of 1990 to May of 1994, he has never practiced
pediatrics. Further, Dr. Winbery has sat for and failed the
pediatrics board three times.
Tenn. Code Ann. § 29-26-115(b) states that an expert will
not be competent to testify in a medical malpractice case unless
he was licensed to practice in Tennessee or a contiguous state in
a profession or specialty that would make his expert testimony
relevant to the issues in the case in the year preceding the
alleged injury. Dr. Winbery has never practiced in the same or
similar specialty as Dr. Woods and Dr. Payne. Dr. Winbery has
not and cannot show that he is sufficiently familiar with the
standard of care for the specialty involved in this case in the year
preceding the alleged negligence in this case.
The court has reviewed all filings in this case including
the disclosure of Dr. Winbery, Dr. Winbery’s deposition and the
affidavit[] of Dr. Winbery. Because Dr. Winbery is not
sufficiently familiar with the standard of care required of Dr.
Woods and Dr. Payne in 2003, the Court must use its discretion
to exclude his testimony from trial because he is not competent
to testify in this matter. This Court makes this decision based on
its review of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011)
and its progeny.
The Appellants filed a motion to reconsider, along with the supplemental affidavit of
Dr. Winbery in support thereof. The trial court denied the motion to reconsider by order of
April 25, 2012. In its order, the court specifically excluded the supplemental affidavit,
stating:
The Court finds that it cannot consider the second . . . affidavit
of Dr. Winbery because [Appellants] failed to show any new
information in the . . . supplemental affidavit that was
unavailable at the time of the prior response and prior hearing or
that such information could not have been found with due
diligence and inquiry being exercised by the [Appellants].
Further the [Appellees] would be prejudiced if the second . . .
affidavit was allowed. Some of the content of the . . .
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supplemental affidavit is the same as previously submitted by
deposition and otherwise.
This court finds in its role as gatekeeper and looking at
the totality of the case that Dr. Winbery lacks trustworthiness
regarding the standard of care at issue in this case.
On April 24, 2012, Appellees filed a motion for discretionary costs, seeking
$16,269.28 “for court reporter costs of depositions and for reasonable and necessary expert
witness fees for expert witnesses.” Appellees’ motion was supported by the affidavit of their
attorney, J. Bart Pickett. On May 14, 2012, the Mitchells filed a response in opposition to
the motion for discretionary costs. By order of May 29, 2012, the trial court awarded
Appellees discretionary costs in the amount of $11,764.28, stating that “[t]hese costs reflect[]
those costs in the Affidavit of J. Bart Pickett minus those costs for videographers.”
The Mitchells appeal. There are two issues for review:
1. Whether the trial court erred in excluding Dr. Winbery’s
testimony and granting summary judgment in favor of
Appellees.
2. If not, whether the trial court erred in the award of
discretionary costs.
Exclusion of Dr. Winbery’s Testimony
As noted above, this case was decided upon a grant of summary judgment to the
Appellees. It is well settled that the party moving for summary judgment has the burden of
persuading the trial court that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83
(Tenn. 2008). The moving party may make the required showing and thereby shift the burden
of production to the nonmoving party by either (1) affirmatively negating an essential
element of the nonmoving party's claim or (2) showing the nonmoving party cannot prove
an essential element of its claim at trial. Id.; Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5
(Tenn. 2008).
If the moving party makes a properly supported motion, the nonmoving party must
produce evidence establishing that a genuine issue of material fact exists. Martin, 271
S.W.3d at 84 (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998)). A trial court does not weigh the evidence in deciding a motion for summary
judgment; rather, it must accept the nonmoving party's evidence as true and draw all
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reasonable inferences in favor of the nonmoving party. Martin, 271 S.W.3d at 84; Staples
v. CBL Assoc., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
The resolution of a motion for summary judgment is a matter of law. Therefore, we
review the trial court's judgment granting the Defendants' motions de novo, with no
presumption of correctness. Martin, 271 S.W.3d at 84; Blair v. W. Town Mall, 130 S.W.3d
761, 763 (Tenn. 2004).
The trial court in this case refused to qualify Dr. Winbery as an expert. If Dr.
Winbery’s qualification was correctly decided, then the Appellants will have failed to rebut
the Appellees’ proof that they complied with the applicable standard of care so as to create
a dispute of material fact as to that element of a malpractice claim. As in prior cases, Shipley
reaffirmed that a trial court's decision to accept or disqualify an expert medical witness is
reviewed under the abuse of discretion standard: “A trial court abuses its discretion when it
disqualifies a witness who meets the competency requirements of section 29-26-115(b) and
excludes testimony that meets the requirements of Rule 702 and 703.” Shipley, 350 S.W.3d
at 552.
In order to prevail on a medical malpractice claim, a plaintiff must prove each of the
elements set forth in Tennessee Code Annotated Section 29-26-115(a): (1) the recognized
standard of acceptable professional practice in the profession and the specialty thereof, if any,
that the defendant practices; (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. Each of these elements must be established by expert testimony.
Shipley, 350 S.W.3d at 537 (citing Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 553
(Tenn. 2006), Stovall v. Clark, 113 S.W.3d 715, 723 (Tenn. 2003), and Robinson v.
LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002)).
In another section, the Tennessee Medical Malpractice Act sets forth the requirements
an expert witness must satisfy in order to be competent to testify in a medical malpractice
case:
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
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
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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.
Tenn. Code Ann. § 29–26–115(b).
In Shipley the Tennessee Supreme Court clarified the framework for analyzing
whether an expert's testimony is admissible in a medical malpractice case. In doing so, the
Court explained the distinction between Tennessee Code Annotated Section 29-26-115(a)
(elements of malpractice) and (b) (competency of expert):
Subsections (a) and (b) serve two distinct purposes. Subsection
(a) provides the elements that must be proven in a medical
negligence action and subsection (b) prescribes who is
competent to testify to satisfy the requirements of subsection (a).
Therefore, when determining whether a witness is competent
to testify, the trial court should look to subsection (b), not
subsection (a).
Shipley, 350 S.W.3d at 550 (emphasis added). As evidenced by its language, subsection (b)
has three components: the proposed expert must (1) be licensed to practice in Tennessee or
one of its eight contiguous bordering states; (2) practice a profession or specialty which
would make the individual's expert testimony relevant to the issues in the case; and (3) have
practiced this profession or specialty in one of these states during the year preceding the date
of the alleged injury or wrongful act. Shipley, 350 S.W.3d at 550.
The only requirement that is at issue in this appeal is whether Dr. Winbery is
competent to testify because he is an emergency room physician and the Appellees are board
certified pediatricians. Appellees assert that he is not competent to testify as to the applicable
standard of care or its alleged breach because Dr. Winbery does not practice a profession or
specialty that would make his testimony relevant to the issues in the case. This is the same
statutory requirement that was at issue in Shipley.
In the recent case of Westmoreland v. Bacon, No. M2011–01811–COA–RM–CV,
2013 WL 765091 (Tenn. Ct. App. Feb. 26, 2013), Judge Cottrell, writing for the Court,
succinctly explained the holding in Shipley and its implication in cases involving the
qualification of medical experts:
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In Shipley the plaintiff, Ms. Shipley, alleged the
defendant, Dr. Williams, who was a general surgeon, committed
medical malpractice by failing to admit her when she presented
herself to the emergency room following an operation, failing to
assess and diagnose her condition properly, and failing to
provide necessary medical treatment. Shipley, 350 S.W.3d at
533. Dr. Williams filed a motion for partial summary judgment
on the failure to admit claim, and Ms. Shipley relied on an
affidavit by Dr. Ronald Shaw, an emergency room physician, to
oppose the motion. Id.
Dr. Williams moved to disqualify Dr. Shaw, and the trial
court ruled that Dr. Shaw was not qualified to testify as an
expert because, as an emergency room physician, he did not
practice a specialty relevant to the standard of care issues
applicable to a general surgeon. Id. at 534. The Supreme Court,
however, applying a clarified standard, disagreed. Specifically,
the Court stated that it would be inclined to agree with the trial
court's reasoning if the issues in the case pertained to surgery.
Id. at 556. However, Tennessee Code Annotated Section
29–26–115(b) requires only that the proposed expert practice a
profession or specialty that would make his or her testimony
relevant to the issue(s) in the case, not that the proposed expert
practice the same profession or specialty as the defendant. Id.
Accordingly, the Court examined the issues and claims in the
case and found that they pertained to whether Dr. Williams
provided appropriate and timely follow-up care to Mrs. Shipley,
not to the surgery Dr. Williams performed. Dr. Shaw testified
that he was familiar with the standard of care applicable to a
surgeon in the limited area of the standard of communication
between a referring doctor and an emergency room doctor, how
to apportion responsibility for deciding whether the patient
should be admitted, and how, when, and by whom a patient
should receive follow-up care. Id. at 557. Thus, the Supreme
Court reversed the trial court's disqualification of Dr. Shaw and
concluded he was competent to testify as an expert because his
testimony was probative and relevant to the issues Mrs. Shipley
raised in her lawsuit. Id.
Following the analysis in Shipley, we must first
determine the issues and claims in the case before us. Then, we
can determine whether [the proffered expert] practices “a
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profession or specialty which would make the individual's
expert testimony relevant to the issues in the case.” Tenn. Code
Ann. §29-26-115(b). A court's inquiry into the competency of a
proffered witness requires an examination of the issues
presented in the case to determine whether the expert's
profession or specialty makes the expert's testimony relevant to
those issues.
Westmoreland, 2013 WL 765091, at *4–*5.
Turning to the instant case, the issues and claims averred here involve the recognized
standard of professional care for pediatricians providing care to neonates with jaundice and
hyperbilirubinemia.
With regard to the applicable standards of care at issue, Dr. Winbery testified through
his affidavit regarding his practice and specialty and his experience and training that would
make his profession relevant to the issues:
2. I am a medical doctor having graduated from LSU Medical
School in May 1990. Prior to medical school, I obtained a Ph.D.
degree in Pharmacology at LSU. From 1990 to 1994 I
participated in and completed a pediatric and internal medicine
residency at the University of Tennessee Center for Health
Science in Memphis, Tennessee. I am board certified by the
American Board of Internal Medicine.
3. I was licensed to practice medicine in Tennessee on February
28, 1992 and have practiced continuously since that time. I
practice in the specialties of pediatrics, toxicology, and
emergency medicine.
4. I am employed by and practice with the University of
Tennessee and the U.T. Medical Group, Inc. U.T. Medical
Group is a private practice arm of the University of Tennessee
Health Science Center faculty. U.T. Medical Group provides
medical care in the specialities of anesthesiology, emergency
medicine, family medicine, medicine, pediatrics, neurology,
psychiatry, radiology, surgery, OB/GYN, ophthalmology,
otolaryngology, and urology.
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* * *
5. I am familiar with the recognized standard of acceptable
professional practice for medical doctors practicing in a
specialty that treats newborns with jaundice, Family Practice,
and Pediatrics . . . .5
Although, in paragraph 3 of his affidavit, supra, Dr. Winbery states that he has
practiced in “the specialties of pediatrics,” his curriculum vitae does not indicate any
professional experience in the field of pediatrics, other than his four-year residency (1990 to
1994). Rather, the vitae indicates that Dr. Winbery has practiced as an attending physician
in emergency medicine, and has been the medical director of the Southern Poison Center.
He has taught at the University of Tennessee Medical School in the areas of emergency and
internal medicine and toxicology.
In his deposition testimony, taken on August 17, 2011, Dr. Winbery testified, in
relevant part, as follows:
Q. Where do you practice medicine?
A. Currently, I practice at the VA Medical Center in downtown
Memphis in the emergency department and at the Delta Medical
Center . . . in the hospital . . . the ICU and in the emergency
department.
* * *
Q. All right. Now, how long have you been at the VA Medical
Center?
5
Concerning the supplemental affidavit that was filed with the Appellants’ motion to reconsider, and
was subsequently disallowed by the trial court, we have reviewed that affidavit and agree with the trial
court’s conclusion that the second affidavit does not contain information that was unknown, or unknowable,
at the time of the filing of the original affidavit. Moreover, the portions of the second affidavit that are
relevant to the question of Dr. Winbery’s qualification to testify concerning the issues in this case are
reiterations of testimony given in his deposition, which was considered by the trial court. Accordingly, even
if we assume, arguendo, that the trial court erred in disallowing the second affidavit, that error would be
harmless because the relevant information in the second affidavit was contained either in the first affidavit,
or in Dr. Winbery’s deposition testimony, both of which were considered by the trial court in excluding Dr.
Winbery.
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A. About one year.
Q. And at the Delta Medical Center, how long have you been
there?
A. A year and a half.
* * *
Q. [O]ther than this case, have you ever been an expert in a case
that involved kernicterus or hyperbilirubinemia or the issues that
are involved in this case?
A. No.
Q. Have you ever published regarding those issues.
A. No.
* * *
Q. And after [graduating from medical school at LSU], what
did you do as far as furthering your medical training?
A. I went to the University of Tennessee Medical Center
medicine pediatric program in Memphis from 1990 to 1994.
And then I was chief of internal medicine at Methodist Central
Hospital for one year in 1995.
* * *
Q. The publications that are listed on your CV, none of those
address the medical issues related to kernicterus or
hyperbilirubinemia or the cause of those conditions; is that
correct?
A. That is correct.
Q. And you’ve not done any research in regard to those
conditions, have you, other than looking at some medical
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literature?
A. For this case, looking at medical literature and practice, I’ve
seen, I don’t know, dozens of them, maybe hundreds of them.
I’m not sure if you include the training at the newborn center.
Seems like we had a whole football field of jaundice children at
any given time.
But I did—there was a small study that I participated in
around, I want to say 1999 to 2000 where a new device came
out. It was a blanket [for the treatment of jaundice] . . . . And
we just—a few of us had input on how that was done and what
patients we enrolled.6
Dr. Winbery further testified that, although he had attempted the pediatric board exam
on three separate occasions, he had yet to pass the exam:
Q. You’ve taken the pediatric [board certification] exam—
A. Three—
Q. —three times.
A. Three times.
Q. Right.
A. And not successfully completed it.
Q. Right.
Concerning the pediatric patients that Dr. Winbery has treated, he further testified:
Q. All right. Now, from 1994 until currently, the pediatric
patients that you have seen have been in the context of
emergency room, for the most part?
6
Dr. Winbery went on to state that the blanket study was never published and that the blankets were
not ultimately used in the treatment of jaundice in newborns. In fact, Dr. Winbery admits that this “study”
was conducted by the manufacturer or vendor of the blanket and was not performed under the usual standard
of medical studies.
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A. Yes, and in the context of the toxicology. In other words,
seeing patients in the hospital that have been poisoned or
neonatal specific patients whose mothers were either poisoned
or addicted.
Q. Okay. So some mother comes and a test shows cocaine, you
might get involved in that type of situation?
A. Up until 2004, yes, I would go over to the neonatal center if
the child was in significant duress or there was some question,
we would go over and consult on that patient.
Q. Now, you–you weren’t seeing patients in a pediatric practice
from 1994 until present; is that correct?
A. Yes, sir.
Q. In other words, you’re not like Dr. Woods or Dr. Payne
seeing newborns in a hospital after they’ve been born?
A. I would–I would see newborns after they’ve been born, only
as a consultant to–up until 2004, only as a consultation to the
poison service. And usually, like I said, that main issue would
be mother’s addiction.
* * *
Q. Okay. How many cases of kernicterus do you think you’ve
seen in your career?
A. Well, it would be hundreds in training just because the
neonatal center—it’s the neonatal center for the whole region at
The Med . . . .
After that, I would say probably two dozen a year through
The Regional Medical Center . . . . Most of those children had
been discharged, and it wasn’t until between, like I said, 2000–
2004 that I began to go back into the neonatal unit and actually
see patients that were newly born, most of them with issues of
intoxication from their mother.
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* * *
Q. Ha[s] any of your testimony in prior medical malpractice
cases involved issues related to care of newborns, just in
general?
A. Right. I’m thinking of—no.
Q. And I think we–I’ve asked you this before. None of these
cases have dealt with the issue—issues that are relevant in this
lawsuit regarding hyperbilirubinemia, kernicterus, or this child’s
brain injury?
A. I’m not sure if that’s a yes or no, but I agree with you. This
is the first case that I’ve testified in that had the particular issues
of brain injury from hyperbilirubinemia, kernicterus or
developmental delay.
* * *
Q. Have you ever presented in grand rounds teaching the
residents on the issues of kernicterus or hyperbilirubinemia?
A. Not a grand rounds, no. The only time that would have
come in is when I talked about cocaine abuse and the effect it
has on children, because jaundice is one of the issues that you
may see in that scenario. It is fairly routine in the emergency
department in our curriculum to talk about [a?] jaundiced infant
in the first week of life, and that’s just part of our regular
didactic teaching.
Q. Are you a member of the department of pediatrics at any
hospital?
A. I am not.
As noted above, the designation for Dr. Winbery indicated that he was expected to
testify concerning jaundice, bilirubin metabolism, bilirubin encephalopathy, and the standard
of care under the American Academy of Pediatrics’ Guidelines for jaundice. In postulating
that Dr. Winbery is qualified to testify as an expert in these areas, the Mitchells argue that,
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as an emergency room physician, Dr. Winbery’s practice includes many pediatric cases. As
Dr. Winbery’s deposition testimony indicates, however, his experience with newborns is
usually limited to diagnosis and treatment for addiction caused by the mother’s drug abuse.
Consequently, his expertise is in the area of toxicology, not pediatric jaundice or bilirubin
metabolism. The Mitchells further argue that Dr. Winbery has knowledge and experience
that make his testimony relevant, including his residency in pediatrics, his membership in the
American Academy of Pediatrics, published articles in the specialty of pediatrics, and
eligibility for the American Board of Pediatrics. In the first instance, Dr. Winbery, by his own
testimony, has not published in the area of pediatric medicine. Moreover, he is not board-
certified in the area of pediatrics, having failed to successfully complete the examination.
However, it is clear that Dr. Winbery has had some experience and practice in pediatrics
based upon his residency in this field. We further note that Dr. Winbery has seen numerous
cases of jaundice in infants. The problem with his qualification to testify in this case is that,
by his own admission, he has not practiced in this area in the year preceding the alleged
negligent acts at issue in this case. Rather, his pediatric practice concluded in 1994 when his
residency ended. As set out above, the Shipley Court held that, in determining an expert’s
competency, the court should look to Tennessee Code Annotated Section 29-26-115(b). One
of the criteria under Section 29-26-115(b) is that the proferred expert must have practiced
the relevant “profession or specialty in . . . the year preceding the date of the alleged injury
or wrongful act.” Shipley, 350 S.W.3d at 550. The minor child’s injuries were sustained at
the time of her birth, April 26, 2003. In the year proceeding that date, Dr. Winbery was
engaged in the practice of emergency medicine, seeing jaundiced infants only in relation to
their admission to the emergency room and not as a specialist like Dr. Woods and Dr. Payne.
Although, as noted above, specialization is not a prerequisite to the ability of a doctor to
offer expert testimony, the purported expert must, nonetheless, have practiced in an area that
would allow him or her to testify expertly concerning the specific issues raised in the lawsuit.
Here, there is simply no evidence to support a finding that Dr. Winbery has current or recent
expertise in the field of jaundice, bilirubin metabolism, bilirubin encephalopathy, or the
standard of care under the American Academy of Pediatrics’ Guidelines for jaundice such
that his testimony would aid the trier of fact in a determination of whether Dr. Woods or Dr.
Payne deviated from the applicable standard of care. Accordingly, we cannot conclude that
the trial court erred in its finding that Dr. Winbery was not qualified to testify as an expert
in this particular case. As discussed above, in the absence of expert testimony, Appellants
have failed to rebut the evidence that Dr. Woods and Dr. Payne complied with the applicable
standard of care.
Discretionary Costs
Appellants argue that the trial court erred in awarding Appellees discretionary costs
in the amount of $11,764.28. When determining whether to award discretionary costs, trial
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courts are directed to: (1) determine whether the party requesting the costs is the “prevailing
party;” (2) limit awards to the costs specifically identified in the rule; (3) determine whether
the requested costs are necessary and reasonable; and (4) determine whether the prevailing
party has engaged in conduct during the litigation that warrants depriving it of the
discretionary costs to which it might otherwise be entitled. Massachusetts Mut. Life Ins. Co.
v. Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App. 2002).
Parties are not entitled to costs under Tennessee Rule of Civil Procedure 54.04(2)
simply because they prevail at trial. Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App.
1998). The particular equities of the case may influence a trial court's decision about these
costs. Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn.1992); Stalsworth v.
Grummons, 36 S.W.3d 832, 835 (Tenn. Ct. App.2000). “However, the courts should, as a
general matter, award discretionary costs to a prevailing party if the costs are reasonable and
necessary and if the prevailing party has filed a timely and properly supported motion.”
Massachusetts Mut. Life Ins. Co., 104 S.W.3d at 35 (citing Scholz v. S.B. Int'l, Inc., 40
S.W.3d 78, 85 (Tenn. Ct. App.2000)). The award of discretionary costs, like the award of
other costs, is within the trial court's reasonable discretion. Perdue, 837 S.W.2d at 60. “The
‘abuse of discretion’ standard of review calls for less intense appellate review and, therefore,
less likelihood that the trial court's decision will be reversed.” Mass. Mut. Life Ins. Co. v.
Jefferson, 104 S.W.3d 13, 35 (Tenn. Ct. App.2002) (citations omitted). The abuse of
discretion standard does not permit this Court to second-guess the lower court's judgment or
merely substitute an alternative we prefer. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010) (citation omitted). We must instead affirm the discretionary decision so long
as reasonable legal minds can disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d
82, 85 (Tenn. 2001) (citations omitted). A trial court abuses its discretion if it (1) applies an
incorrect legal standard, (2) reaches an illogical or unreasonable decision, or (3) bases its
decision on a clearly erroneous evaluation of the evidence. Elliott v. Cobb, 320 S.W.3d 246,
249–50 (Tenn. 2010) (citation omitted). A trial court also abuses its discretion if it strays
beyond the applicable legal standards or when it fails to properly consider the factors that
customarily guide a discretionary decision. Beecher, 312 S.W.3d at 524 (citation omitted).
Tennessee Rule of Civil Procedure 54.04(2) specifically allows for a prevailing party
to recover the following discretionary costs:
reasonable and necessary court reporter expenses for depositions
or trials, reasonable and necessary expert witness fees for
depositions (or stipulated reports) and for trials, reasonable and
necessary interpreter fees for depositions or trials, and guardian
ad litem fees; travel expenses are not allowable discretionary
costs.
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Here, the Mitchells argue that the trial court abused its discretion by including, in its
award of discretionary costs, certain costs that are disallowed under the foregoing rule.
Specifically, the Mitchells contend that the $11,764.28 includes charges for videographer
fees, which may not be recovered. See Russell v. Brown, No. E2004-01855-COA-R3-CV,
2005 WL 1991609 (Tenn. Ct. App. Aug. 18, 2005). However, the trial court’s order
specifically states that “[t]hese costs reflect[] those costs in the Affidavit of J. Bart Pickett
minus those costs for videographers.” Because a trial court speaks through its order, Palmer
v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App.1977), we must conclude that videographer
charges were not, as the Mitchells argue, included in the $11,764.28. In addition, the
Mitchells argue that the award of discretionary costs includes “all charges for copies of
depositions, condensing, binding/handling . . . word index, binding of exhibits, and
postage/delivery,” which they argue are excluded items. The trial court’s order does not
specifically itemize the individual costs that comprise the $11,764.28 award. However, we
have reviewed the affidavit and supporting documentation filed by Appellees’ attorney in
support of the motion for discretionary costs. From the record, we cannot conclude that the
award of $11,764.28 was outside the range of reasonableness, nor that the award constitutes
an abuse of the trial court’s discretion by inclusion of costs that are specifically excluded
under Tennessee Rule of Civil Procedure 54.04.
For the foregoing reasons, we affirm the order of the trial court. The case is remanded
for further proceedings as may be necessary and are consistent with this opinion. Costs of
this appeal are assessed against the Appellants, Stacey Mitchell and Bryan Mitchell, and their
surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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