Mary Causby Jackson, As Administratrix of the Estate of Samara Elizabeth Jackson v. Lenita H. Thibault, M.D.

10/25/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 19, 2022 Session
MARY CAUSBY JACKSON, AS ADMINISTRATRIX OF THE ESTATE OF
SAMARA ELIZABETH JACKSON v. LENITA H. THIBAULT, M.D., ET
AL.
Appeal from the Circuit Court for Sullivan County
No. C41505 (M) John S. McLellan, III, Judge
___________________________________
No. E2021-00988-COA-R3-CV
___________________________________
Plaintiff appeals the trial court’s decision to exclude her proffered expert for failing to
comply with the locality rule expressed in Shipley v. Williams, 350 S.W.3d 527 (Tenn.
2011). Plaintiff also appeals the trial court’s decision to grant the defendants’ motion for
summary judgment. Discerning no abuse of discretion, we affirm the decision of the trial
court to exclude the expert. Additionally, we affirm the grant of summary judgment to
defendants.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.
Mark W. McFall, Johnson City, Tennessee, for the appellant, Mary Causby Jackson.
Russell W. Adkins, Kingsport, Tennessee, for the appellees, Lenita H. Thibault, and
Wellmont Medical Associates, Inc.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 28, 2014, Samara Elizabeth Jackson was admitted at the Holston Valley
Medical Center (“the facility”) in Kingsport, Tennessee for a total laparoscopic
hysterectomy. Ultimately, however, Defendant/Appellee Lenita H. Thibault, M.D. (a
Kingsport obstetrician-gynecologist) performed a more invasive procedure on Ms.
Jackson, allegedly due to complications discovered during the surgery. The day following
the surgery, Ms. Jackson began experiencing significant pain. Eventually, Ms. Jackson’s
pain and other symptoms began to worsen, causing her to be moved to the intensive care
unit of the facility on October 31, 2014. On November 1, 2014, Ms. Jackson was diagnosed
with septic shock; the diagnosing doctor suspected that the cause of the septic shock was
intra-abdominal disease. That same evening, Ms. Jackson died.
Plaintiff/Appellant Mary Causby Jackson (“Plaintiff”) was later named the
administratrix of Ms. Jackson’s estate. She filed the instant complaint on May 2, 2016,1 in
Sullivan County Circuit Court (“the trial court”) against a number of medical providers,
including Dr. Thibault, and her employer, Defendant/Appellee Wellmont Medical
Associates (together, “Defendants”).2 Therein, Plaintiff alleged that Dr. Thibault’s
negligence was the proximate cause of Ms. Jackson’s death.
An agreed scheduling order required that Plaintiff disclose experts by June 3, 2019.
On June 5, 2019, Plaintiff disclosed John F. Steege, M.D., a doctor practicing obstetrics
and gynecology in Chapel Hill, North Carolina. Included with the disclosure was an April
8, 2015 letter authored by Dr. Steege attached to the disclosure stating that Dr. Thibault
“departed from the standard of acceptable professional practice applicable to the medical
profession and the specialty of obstetrics and gynecology” in a number of respects, both
pre- and post-operatively, and that these departures proximately caused Ms. Jackson’s
death.3
Defendants deposed Dr. Steege on July 11, 2019. On November 19, 2019,
Defendants filed a motion to exclude Dr. Steege as an expert witness on the basis that he
was not competent under Tennessee Code Annotated section 26-26-115(b) and that his
testimony would therefore not assist the trier of fact as required by Rule 702 of the
Tennessee Rules of Civil Procedure. Plaintiff responded in opposition to Defendants’
motion, arguing that Dr. Steege was competent to testify and that his testimony was
admissible. The trial court held a hearing on Defendants’ motion on December 12, 2019,
and entered an order granting the motion on December 19, 2019. Therein, the trial court
ruled that Dr. Steege did not meet the locality rule outlined in Shipley v. Williams, 350
S.W.3d 527 (Tenn. 2011). Although the time for disclosing experts had passed, the trial
court granted Plaintiff leave to identify another expert and continued the trial.4
1
A prior complaint had been nonsuited; the instant complaint was filed less than a year later
pursuant to Tenn. Code Ann. § 28-1-105.
2
Other defendants were also named in the complaint but are no longer parties to this case.
3
Plaintiff also disclosed another expert, a doctor from West Virginia. The parties do not discuss
this expert in their later filings or in this appeal.
4
The trial court’s December 19 order did not provide a specific date for the disclosure of a substitute
expert.
-2-
Several months passed. On June 8, 2020, the parties entered into another agreed
order providing that Plaintiff would provide substitute expert disclosures by August 31,
2020. On October 9, 2020, Defendants filed a motion to dismiss, citing Plaintiff’s failure
to disclose an expert. Plaintiff responded with a motion for an enlargement of time to obtain
an expert. Therein, Plaintiff noted that she had consulted with a substitute expert, but that
the expert’s own health problems prevented his participation in the case. On November 23,
2020, the trial court granted Plaintiff’s motion for an enlargement of time; the new deadline
provided that Plaintiff would make expert disclosures by January 15, 2021. As a result of
the enlargement of time, the trial court denied Defendants’ motion to dismiss.
A few days after the expiration of the new deadline, on January 20, 2021, Plaintiff
filed a second motion for an enlargement of time, citing issues related to the COVID-19
pandemic. Defendants filed a response in opposition to a further enlargement of time.
Additionally, on April 9, 2021, Defendants filed a motion for summary judgment and
statement of undisputed material facts. In support of that motion, Defendants attached the
deposition testimony of their expert, Thomas Stovall, M.D., who opined that Dr. Thibault
complied with the recognized standard of care applicable to the community at all times.
Defendants argued that Dr. Stovall’s testimony therefore negated an essential element of
Plaintiff’s claim.
Plaintiff filed a response in opposition to Defendants’ motion for summary
judgment in which she admitted that Dr. Stovall was qualified but denied that his testimony
negated an essential element of her claim. Plaintiff also responded to Defendants’ statement
of undisputed material facts by admitting every fact contained therein, including that Dr.
Stovall testified that he was familiar with the recognized standard of care in Kingsport at
the time of the care and that Dr. Thibault met that standard of care at all times in her
treatment of Ms. Jackson. Plaintiff submitted no expert proof in response to Defendants’
motion for summary judgment.
On May 11, 2021, the trial court entered an order granting Plaintiff’s second motion
for an enlargement of time to disclose an expert. Under this order, Plaintiff was required to
disclose a substitute expert by June 7, 2021. The trial court noted, however, that no further
enlargements of time would be entertained. The trial court further ruled that Defendants’
motion for summary judgment would be stayed pending the disclosure of Plaintiff’s expert,
but that “[i]n the event Plaintiff failed to disclose her medical expert within the time set
forth in this [o]rder, the [c]ourt will address Defendants’ [m]otion for [s]ummary
[j]udgment.”
The June 7, 2021 deadline passed with no additional expert disclosures by Plaintiff.
The hearing on Defendants’ motion for summary judgment was therefore held on July 30,
2021. Ultimately, the trial court granted Defendant’s motion for summary judgment by
order of August 3, 2021, concluding that the testimony of Defendants’ expert negated an
essential element of Plaintiff’s claim and that Plaintiff submitted nothing to “dispute that
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proof.” From these orders, Plaintiff now appeals.
II. ISSUES PRESENTED
Plaintiff raises the following issues for review:
1. Whether the trial court erred and abused its discretion in excluding
Plaintiff’s standard of care expert as lacking the modicum of familiarity
a medical expert must demonstrate that he has with the standard of care
in the medical community in which the Defendant practiced, or a similar
community, at the time of the alleged injury or wrongful action.
2. Whether the trial court erred in granting summary judgment to the
Defendants based on Plaintiff’s inability to prove an essential element of
her claim because the trial court had excluded her medical expert witness.
III. STANDARD OF REVIEW
This case involves two interrelated issues: the exclusion of Plaintiff’s causation
expert and the grant of summary judgment following the exclusion. A trial court’s decision
to exclude an expert is reviewed for an abuse of discretion. Boyd v. BNSF Ry. Co., 596
S.W.3d 712, 724 (Tenn. Ct. App. 2018). “Generally, questions pertaining to the
qualifications, admissibility, relevancy, and competency of expert testimony are matters
left to the trial court’s discretion. We may not overturn the trial court’s ruling admitting
or excluding expert testimony unless the trial court abused its discretion.” Brown v.
Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005) (internal citations omitted). “A
court abuses its discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable
decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.”
Fisher v. Hargett, 604 S.W.3d 381, 395 (Tenn. 2020) (quoting Harmon v. Hickman Cmty.
Healthcare Servs., Inc., 594 S.W.3d 297, 305–06 (Tenn. 2020)).
In contrast, the grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). As such,
this Court must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Id. As our supreme court has
explained,
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary
-4-
judgment stage is insufficient to establish the nonmoving party’s claim or
defense.
Id. at 264.
IV. ANALYSIS
This case is governed by the Tennessee Health Care Liability Act (“THCLA”).
Under the THCLA, the plaintiff has the burden to prove “by evidence as provided by
subsection (b)” the following elements:
(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.
Tenn. Code Ann. § 29-26-115(a). Section 29-26-115(b) goes on to state that
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 in one (1) of
these states during the year preceding the date that the alleged injury or
wrongful act occurred.
Tenn. Code Ann. § 29-26-115(b) (noting that the trial court may waive this requirement
“when it determines that the appropriate witnesses otherwise would not be available”).
Based on this statute, there is no dispute that Plaintiff was required to establish duty, breach
of duty, and causation through the testimony of a competent and admissible expert meeting
the requirements of section 29-26-115(b).
Competency under the above statute, however, is not the only requirement for
admissibility. Instead, the expert must still meet the admissibility requirements of Rules
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7025 and 7036 of the Tennessee Rules of Evidence. Thus, “[i]n its role as a gatekeeper, the
trial court is to determine (1) whether the witness meets the competency requirements of
Tennessee Code Annotated section 29-16-115(b) and, (2) whether the witness’ testimony
meets the admissibility requirements of Rules 702 and 703.” Shipley v. Williams, 350
S.W.3d 527, 551 (Tenn. 2011).
In evaluating an expert, the trial court must also consider the requirements of the
locality rule. Id. Under the locality rule,
[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 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.
Id. at 552. Firsthand knowledge of the community is not required to meet the requirements
of the locality rule; instead,
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
5
Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.”
6
Rule 703 provides as follows:
The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need
not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the
jury by the proponent of the opinion or inference unless the court determines that their probative value in
assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. The court
shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack
of trustworthiness.
-6-
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.
Id. at 552–53.
Still, this somewhat relaxed standard for establishing familiarity does not mean that
an expert need only testify as to a national standard of care. Id. at 553 (“[I]n this case we
do not adopt a national standard of care in medical malpractice cases.”). Rather, Tennessee
allows testimony of a national or uniform standard of care only once the expert has
demonstrated his or her familiarity with the locality:
[E]xpert medical testimony regarding a broader regional standard or a
national standard should not be barred, but should be considered as an
element of the expert witness’ knowledge of the standard of care in the same
or similar community. . . .
Only after a medical expert witness has sufficiently established his or
her familiarity with the standard of care in the same or similar community as
the defendant, may the witness testify that there is a national standard of
medical care to which members of his or her profession and/or specialty must
adhere. This testimony, coupled with the expert’s explanation of why the
national standard applies under the circumstances, is permissible and
pertinent to support the expert’s opinion on the standard of care. The mere
mention of a national standard of care should not disqualify an expert from
testifying. However, an expert may not rely solely on a bare assertion of the
existence of an applicable national standard of care in order for his or her
proffered testimony to be admissible under Rules of Evidence 702 and 703.
Id. at 553–54.
Keeping these principles in mind, we turn to the expert testimony at issue in this
case to determine if the trial court properly excluded it under Rules 702 and 703. Cf. Payne
v. CSX Transp., Inc., 467 S.W.3d 413, 454 (Tenn. 2015) (“[A] trial court abuses its
discretion when it . . . excludes testimony that meets the requirements of Rule[s] 702 and
703.” (quoting Shipley, 350 S.W.3d at 552)). In order to meet her burden under section
29-26-115(a), Plaintiff offered the testimony of Dr. Steege. Defendants do not dispute that
Dr. Steege was competent under section 29-26-115(b); instead, their motion to exclude
argued that Dr. Steege’s testimony was not admissible under Rules 702 and 703 because
Dr. Steege did not demonstrate the modicum of familiarity with Kingsport required to meet
the requirements of the locality rule. The trial court agreed with Defendants and ruled that
Dr. Steege’s testimony was inadmissible.
-7-
On appeal, Plaintiff asserts that this decision was an abuse of discretion by the trial
court because Dr. Steege’s deposition testimony demonstrated that he indeed had the
necessary familiarity with Kingsport and that his reference to a national standard of care
was not in error. Of course, Defendants disagree. In order to resolve this dispute, we turn
to the relevant portions of Dr. Steege’s deposition testimony, taken on July 11, 2019.
First, Dr. Steege was asked about the recognized standard of care applicable to the
care at issue in this case:
Q. What I want to ask you is what is your understanding of that term,
“the recognized standard of acceptable professional practice”? What does
that mean?
A. Well, that seems to be something of a moving target these days. The
old-fashioned definition as we all know is is it similar to . . . what the average
practitioner in that community would provide? And more recently, I think
the focus has been more on some sort of national level of appropriate
standard of care, which seems much more appropriate to me. So when I think
“standard of care,” I think what -- our national sense of [] what’s reasonable
and well informed practice.
* * *
Q. So when you reviewed this case, you were talking about a national
standard of care for these doctors?
A. You know, ideally, they should both be the same. I don’t know
specifically if there’s a separate definition of local standard of care in
Kingsport. You know, that’s not in a book anywhere.
Q. So as we sit here, you were -- you were talking about a national
standard in talking about Drs. Thibault and Stevens?
A. I was talking about what I would expect any reasonably well-trained
gynecologist to be able to do and how they should think. And you can call
that “standard of care” if you want, but . . . that’s the way I would frame it.
Dr. Steege was then asked about his familiarity with Kingsport specifically:
Q. . . . Are you familiar with Kingsport at all?
A. Not very. I mean, I’ve known of its existence. I’ve seen patients from
there. I don’t know a lot about it other than it’s sort of a medium sized city.
I did look up some of the stuff about the particular hospital in which Dr.
Thibault was practicing. It’s a hospital of about three hundred and twenty-
five beds or so, three hundred and fifty beds with multiple specialties.
-8-
I thought it interesting to note that in the specialties listed on the web
that are -- they rated within that hospital, OB/GYN isn’t even listed. So I’m
not sure what that means.
Q. When did you review that information?
A. Either last night or the night before.
Q. Did you review that information when you formed your opinions
back in 2015?
A. No.
Q. So you just reviewed it yesterday for purposes of the deposition?
A. Right. ’Cause I knew you would ask me about Kingsport.
Q. Okay. So [] you don’t know how that compares with what was going
on with that hospital in 2014?
A. Not specifically, unless they’ve -- I doubt they’ve shrunk down [] or
grown much in the last six months.
Q. But you didn’t do any investigation of Kingsport when you formed
your opinions?
Q. No.
Q. And the only thing that you’ve looked at related to Kingsport has
been now to prepare for your deposition?
A. That’s right.
Q. Not to inform your decision or your opinions at all?
A. Correct.
Q. You mentioned Kingsport is a midsized city. What [] your definition
of a midsized -- or medium. I guess you said medium sized. . . .
A. . . . I’m purely guessing. I didn’t look up the population of Kingsport.
I’m going to guess two hundred and fifty to five hundred thousand. But, you
know, I’d be curious to know what it really is. . . .
Q. It’s about fifty thousand.
A. Fifty thousand. Never mind. Okay.
Q. Any other investigation you’ve done regarding the medical
community in Kingsport?
A. No.
Dr. Steege also confirmed that he did not know or speak with any providers in the area and
did not know about patient populations for the area.
Later, Dr. Steege was again questioned about the demographics of Kingsport,
Q. Were you provided with any demographics related to Kingsport?
A. No. I would comment that fifty thousand is roughly the size of Chapel
Hill. A little bit smaller, but not much.
Q. Well, do you know how the . . . metro area of Chapel Hill compares
with Kingsport’s area?
-9-
A. It depends on how far out you go for -- to call it “metro,” ’cause you
have Durham and Raleigh, and if you put them all together, then it’s . . . more
like six hundred thousand, seven hundred thousand, I would guess. It’s
growing rapidly. Chapel Hill itself has remained the -- pretty much the small
college town.
Q. But you’ve got a university center here, correct?
A. That’s right.
Q. Do you have any idea how the University of North Carolina Medical
Center compares with Holston Valley Medical Center?
* * *
A. I think it’s in a totally different league. It’s a thousand beds with
multiple subspecialties, lots of residency and fellowship training programs,
a huge volume of research. So it’s a totally different world.
Q. . . . [I]t’s not a real comparison. It’s just a different . . . type of facility.
A. No. I wouldn’t -- I would hope we would not act like every small town
hospital. We’re not supposed to.
Q. Well, now, and I guess to that end, . . . your facility gets referrals from
all over the place?
A. We do.
Q. Not just people in Chapel Hill?
A. Correct.
Q. Just like we refer people to Nashville or Knoxville . . . you get referrals
in from all over North Carolina, I would assume?
A. We do. And . . . to some degree, surrounding states. We’ve gotten
some from Kingsport, you know, Virginia, South Carolina, some from
Georgia.
Q. And to that end, UNC Chapel Hill would not be an accurate
comparison to Holston Valley?
A. It’s different in a lot of ways.
Dr. Steege then testified to the standard of care, which he testified was essentially the same
“across the country, no matter what the size of your town or the size of your medical center.
The rules don’t change about how to define or how to treat it.”
Based on this testimony, the trial court excluded the opinions of Dr. Steege. In
particular, the trial court found as follows:
Dr. Steege formed his opinions in the present case in 2015. It was not until
2019 that Dr. Steege attempted to familiarize himself with the Kingsport
community. He admits that he performed an internet search in order to
prepare for his discovery deposition, and not to inform his opinions.
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Therefore, he was relying upon 2019 information, whereas the care in this
case took place in 201[4]. Even then, he incorrectly identified Kingsport as
a community with a population of 250,000 to 500,000. Dr. Steege did not
discuss the standard of care with any local medical providers, and he did not
visit Kingsport. He further admits that the hospital in which he practices
offers a level of care that exceeds that available in Kingsport.
Based on these findings, the trial court concluded that Dr. Steege failed to demonstrate the
modicum of familiarity required by Shipley. We agree.
First, we note that there can be no dispute that the trial court recognized and applied
the correct legal standard—the locality rule as outlined in Shipley. Cf. Fisher, 604 S.W.3d
at 395 (noting that one way a trial court abuses its discretion is in applying an incorrect
legal standard). Nor did the trial court reach an illogical or unreasonable decision or one
based on a clearly erroneous assessment of the evidence. Id. Here, Dr. Steege’s
unfamiliarity with Kingsport is evident from his own admissions. Certainly, Dr. Steege did
testify that he acquainted himself with the hospital at issue, including the number of beds
and the specialties listed on its website. As the trial court found, however, Dr. Steege did
not indicate that this investigation related to the medical facility’s capabilities in 2014 when
the alleged injury occurred, but rather in 2019, one day before his scheduled deposition.
What Dr. Steege apparently did not investigate, however, was the Kingsport community,
as he had no knowledge of the community’s demographics beyond incorrect speculation.
Moreover, there can be little dispute of Dr. Steege’s opinion that the facility in which he
practices is significantly “different” than the facility at issue in Kingsport. Indeed, Dr.
Steege expressed his “hope” that his facility “would not act like every small town
hospital”—in other words, he hopes that his facility, being bigger, would perform better.7
These facts distinguish the case-at-bar from the central case cited by Plaintiff, Evans
ex rel. Evans v. Williams, No. W2013-02051-COA-R3-CV, 2014 WL 2993843 (Tenn. Ct.
App. June 30, 2014). In Evans, the trial court granted a motion to exclude the testimony of
the plaintiff’s expert on the basis that the expert was not familiar with the standard of care
in Gibson County or a similar community. Id. at *3. This Court reversed. Id. at *7–9.
In doing so, the Evans panel noted that the expert testified to “exactly the type of
information described in Shipley as sufficient to establish ‘a modicum of familiarity’ with
the community in which the defendant practices.” Id. at *8. For example, the expert
testified that he was familiar with the demographics of Gibson County, could accurately
state the population of the county, the beds of the local hospital, and the number of doctors
7
Thus, it does not appear that Plaintiff even attempts to argue that Dr. Steege’s knowledge of his
own community is sufficient to establish the familiarity needed to meet the locality rule here. See Shipley,
350 S.W.3d at 552 (holding that the expert must demonstrate familiarity with either “the medical
community in which the defendant practices or a similar community”) (emphasis added).
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in the specialty at issue at the time the injury occurred. Id. at *7–8. The Evans panel held
that this was sufficient to meet the requirements of Shipley. Id. at *8.
The same is not true, however, of Dr. Steege. For one, Dr. Steege admitted that his
knowledge of the population of Kingsport was nothing more than guesswork. Indeed, his
speculation as to Kingsport’s population was well off the mark.8 Moreover, while he
testified that he was familiar with the medical facility’s beds and specialties at the time of
his deposition, his testimony gave no indication that he had familiarity with the statistical
information for the time of the injury, over four-and-a-half years prior. See Ray v. S.
Tennessee Med. Ctr., LLC, No. M2012-01227-COA-R3-CV, 2013 WL 3282927, at *5
(Tenn. Ct. App. June 25, 2013) (affirming the trial court’s decision to admit an expert when
he was knowledgeable about the facility at issue at the time the injury occurred and had
worked in similar types of small emergency rooms).
While the span of less than five years may arguably not be a significant period of
time, Dr. Steege’s own testimony shows that the information he utilized had either changed
or was inaccurate. Specifically, Dr. Steege testified that “OB/GYN isn’t even listed” as a
current specialty offered by the facility at issue. But Plaintiff undisputedly received
gynecological care in 2014 at the facility. So the scant information on which Dr. Steege
relied was either inaccurate, incomplete, or outdated. And nothing in Dr. Steege’s
testimony indicates that he went beyond this cursory internet search of the facility’s current
statistics to have discussions with knowledgeable medical care providers or visit the facility
or community. Shipley, 350 S.W.3d at 555–56 (holding that the expert was familiar with
the locality based, inter alia, on the fact that the expert had reviewed demographic
information about the city at issue and toured one of the community hospitals).
Finally, Dr. Steege did not gain this purported familiarity until well after he first
opined that Dr. Thibault breached the standard of care. As a reminder, Dr. Steege admitted
in his deposition that the first time he made any attempt to familiarize himself with
Kingsport was immediately in advance of his deposition, years after he signed a letter
outlining his opinion as to the standard of care at issue. Thus, the opinions he expressed in
his expert disclosure—that Dr. Thibault breached the standard of care—could not possibly
have been given “[o]nly after” he had “sufficiently established his or her familiarity with
the standard of care in the same or similar community as the defendant[.]” Shipley, 350
S.W.3d at 553 (emphasis added). Indeed, Dr. Steege’s letter does not state either that he
was familiar with the locality of Kingsport and its standard of care or that Dr. Thibault
breached the standard of care in the locality; he simply stated that Dr. Thibault breached
the standard of care “applicable to the medical profession and the specialty of obstetrics
8
In her brief, Appellant admits that the population of Kingsport was little over 55,000 even as late
as 2020. Although Plaintiff also cites the population of the Kingsport-Bristol combined area as falling
within the range set by Dr. Steege, Dr. Steege’s testimony was in response to a question solely as to
population of Kingsport.
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and gynecology.” Cf. Donald v. Shea, No. W2010-02317-COA-R3-CV, 2012 WL 504510,
at *11 (Tenn. Ct. App. Feb. 16, 2012) (affirming the trial court’s decision to allow an expert
to testify when his affidavit stated that he was familiar with the standard of care of the
locality at issue and provided detailed reasons why he believed that his community was
similar to the locality where the defendant worked and that a national standard of care was
applicable under the facts of the case). Moreover, Appellant has pointed to nothing in Dr.
Steege’s testimony to indicate that his review of Kingsport in the days before his deposition
caused him to reevaluate his opinion in any manner, even if he ultimately came to the same
conclusion.9 Without an attempt to familiarize himself with the locality before forming his
opinions, it is difficult to discern how Dr. Steege could conclude that the local standard is
synonymous with the national standard, as required under Shipley.
The case of Griffith v. Goryl, 403 S.W.3d 198 (Tenn. Ct. App. 2012), is instructive
on this issue. In Griffith, the plaintiff’s expert testified that the defendant doctor breached
the standard of care, which the expert defined as what the majority of well-trained
physicians practicing that specialty across the country would have done under the
circumstances. Id. at 204. The trial court excluded the expert’s testimony solely on the
basis of the expert’s reference to what the majority of physicians would do under the
circumstances. Id.
Ultimately, we concluded that the exclusion of the expert was an abuse of discretion.
Id. at 210–11. In reaching this result, we cited three pre-Shipley cases in which an expert
was excluded. See id. at 209–10 (citing Land v. Barnes, No. M2008-00191-COA-R3-CV,
2008 WL 4254155, at *5–6 (Tenn. Ct. App. Sept. 10, 2008); Godbee v. Dimick, 213
S.W.3d 865, 895 (Tenn. Ct. App. 2006); Hopper v. Tabor, No. 03A01-9801-CV-00049,
1998 WL 498211, at *1 (Tenn. Ct. App. Aug. 19, 1998)). In these cases, however, “the
proffered expert admitted to not knowing the applicable standard of care, but then testified
that he or she nonetheless believed the defendant breached the standard of care by failing
to conform to the practices of the majority of [practitioners].” Id. at 210. In contrast, the
plaintiff’s expert in Griffith repeatedly testified that he was knowledgeable about the
standard of care where the defendant practiced at the time of the injury and that he had
done a thorough investigation into the locality to reach his conclusion. As a result, the
expert’s “‘somewhat inartful’ response to a single question related specifically to imaging
studies does not undermine the basis for his testimony or render his expert opinion
untrustworthy.” Id.
Dr. Steege’s testimony was quite different than that of the expert in Griffith. While
that expert “repeatedly testified that he was aware of the standard of care for urologists
9
As a reminder, Dr. Steege agreed in his deposition that his investigation into Kingsport did not
“inform [his] decision or [his] opinions at all[.]” (Emphasis added).
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practicing in Cookeville, Tennessee, from 2004–2006,” id., Dr. Steege made no such claim
about obstetricians and gynecologists in Kingsport, Tennessee in 2014. Instead, he testified
rather vaguely that the national standard and the standard in Kingsport “should both be the
same,” but admitted that he did not “know specifically if there’s a separate definition of
local standard of care in Kingsport.” Thus, Dr. Steege disclaimed having even minimal
knowledge about Kingsport and its particular standards. It was therefore not Dr. Steege’s
resort to a national standard of care alone that caused the trial court to exclude him, but his
failure to consider the locality at issue before imposing such a national standard. As a result,
we must conclude that Dr. Steege offered nothing more than “a bare assertion of the
existence of an applicable national standard of care.” Shipley, 350 S.W.3d at 553–54.
Certainly, Dr. Steege did attempt to familiarize himself with some statistical
information surrounding the facility in a belated effort to comply with the requirements of
Shipley. Under the abuse of discretion standard, however, we cannot overturn the trial
court’s decision unless the trial court applied an incorrect standard, made an illogical or
unreasonable decision, or based the decision on a clearly erroneous assessment of the
evidence. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). We are therefore
not permitted to second guess the trial court, as the abuse of discretion standard creates “a
decreased likelihood that the decision will be reversed on appeal” so long as the trial court
makes a reasonable “choice among” the “acceptable alternatives.” Id. Under these
circumstances, we simply cannot say that the trial court abused its discretion in concluding
that Dr. Steege’s belated and perfunctory attempt to learn some statistical information
about the community was sufficient to establish that he possessed a modicum of familiarity
with Kingsport for purposes of the locality rule. As such, we discern no abuse of discretion
in the trial court’s decision to exclude Dr. Steege’s testimony under the locality rule.
Having determined that the trial court did not abuse its discretion in excluding Dr.
Steege’s testimony, we further conclude that the trial court did not err in granting summary
judgment to Defendants. Here, Defendants supported their motion for summary judgment
with the testimony of Dr. Stovall that Dr. Thibault complied with the standard of care. This
testimony negated an essential element of Plaintiff’s health care liability claim. See Tenn.
Code Ann. § 29-26-115(a). The burden of production therefore shifted to Plaintiff to “‘set
forth specific facts’ at the summary judgment stage ‘showing that there is a genuine issue
for trial.’” Rye, 477 S.W.3d at 265 (quoting Tenn. R. Civ. P. 56.06). And in this particular
case, it was Plaintiff’s burden to produce expert proof that Dr. Thibault breached the
applicable standard of care. See Young v. Frist Cardiology, PLLC, 599 S.W.3d 568, 571
(Tenn. 2020) (“Generally, the evidence required by section 29-26-115(a) must be proven
through the testimony of a qualified expert witness.”). Plaintiff simply failed to meet that
burden. As such, the trial court did not err in granting Defendants’ motion for summary
judgment.
V. CONCLUSION
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The judgment of the Sullivan County Circuit Court is affirmed, and this cause is
remanded to the trial court for all further proceedings as may be necessary and consistent
with this Opinion. Costs of this appeal are taxed to Appellant, Mary Causby Jackson, as
Administratrix of the Estate of Samara Elizabeth Jackson, for which execution may issue
if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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