Kelly on Malpractice

In Grisham v. McLaughlin, 2009 WL 275667 (Tenn.Ct.App.), the patient sued an orthopedic surgeon for medical malpractice. The defendant filed a motion to strike Dr. Thorpe, the patient’s expert witness, and filed a motion for summary judgment with supporting documents. The trial court granted both motions in an order, in which the court stated:

[t]he record before the Court demonstrates that William P. Thorpe, M.D. does not have sufficient familiarity with the medical community in and around Skyline Medical Center where Dr. McLauglin provided care and medical services to the Plaintiff so as to permit Dr. Thorpe to provide opinions which would substantially assist the finders of fact to determine the recognized standard of acceptable professional practice in the same or a similar community.

The court also issued an order partially granting summary judgment to the defendants. The patient appealed the order granting the motions to strike Dr. Thorpe as an expert witness and for summary judgment.

The Court of Appeals found that since Dr. Thorpe was not from Tennessee, it was incumbent upon the patient to show that Dr. Thorpe possessed knowledge of the standard of care in a community similar to the one in which Dr. McLaughlin practiced in 2002. Dr. Thorpe’s deposition did not make the required showing of similarity. Dr. Thorpe is a retired physician who practiced orthopedic medicine, including orthopedic surgery, in the Cape Girardeau, Missouri area. He admitted to having no first-hand knowledge of the Nashville medical community, so his comparisons with Cape Girardeau were vague and generic. Most importantly, the Court of Appeals declared:

That is not, however, the end of our inquiry. It is not uncommon for experts whose qualifications are challenged to present additional or supplemental testimony (by affidavit, deposition, or at trial) regarding those qualifications. We know of no rule prohibiting this practice and no authority holding that such supplemental testimony cannot be based on information acquired after the initial pretrial testimony. Id (citing Pullum v. Robinette, 174 S.W.3d 124, 139 (Tenn.Ct.App.2004)).

When challenged by the motion to strike Dr. Thorpe’s testimony and the motion for summary judgment, the patient had produced an affidavit from Dr. Thorpe attempting to supplement his deposition testimony and establish his knowledge that the communities in which he and Dr. McLaughlin practiced were similar. The Court of Appeals acknowledged that this was appropriate practice.

The key to this decision is that an expert may supplement his deposition testimony before trial to comply with the locality rule. The obvious consequence of this ruling is that no trial court should exclude an expert in limine before the patient’s expert has had an opportunity to supplement his testimony. Grisham is a profound opinion which will benefit plaintiff lawyers for years to come.