How to Get the Trial Court to Waive the Contiguous State Rule
posted on December 26th, 2007 in Contiguous State Rule by clintTenn.Code Ann. §29-26-115(b) is known as the contiguous state rule. It requires the plaintiff and the defendant in a medical malpractice case to retain an expert from a contiguous state to testify about negligence and causation. This means that the expert must be licensed and actively practicing in one of the following eight states: Kentucky, Virginia, North Carolina, Georgia, Alabama, Mississippi, Arkansas, Missouri. The design of the rule was to keep expenses down by limiting travel. Only in rare circumstances will the rule be waived by the trial court. To grant or deny a waiver is purely a discretionary decision. Sutphin v. Platt, 720 S.W.2d 455 (Tenn.1986). Paragraph (b) of the statute contains a “safety valve” for those situations in which a party is unable to locate a qualified expert within this state or one of our bordering states. This “safety valve” permits the trial court to waive the contiguous state requirement if it determines that “the appropriate witnesses otherwise would not be available.” The primary issue in each waiver request is whether the party has proven “unavailability.” Without such proof, trial courts must deny the requested waiver. The plaintiff or defendant may call upon the trial court to “match up” the sides for parity. The appellate courts have addressed the issue of waiver repeatedly. Trial courts cannot waive the contiguous state rule except when: (1) there is complete unavailability of experts Childress v. Bennett, 816 S.W.2d 314 (Tenn.1991) or (2) there is a disparity in experts. Pyle v. Morrison, 716 S.W.2d 930 (Tenn.Ct.App.1986). In Pyle, the trial court used the rule to “match up” the number of experts on each side. The Pyle court affirmed the waiver because the trial court found there was a disparity of experts. This issue here is not complete unavailability. In Steele v. Berkman, 2006 WL 627185, *2, the Defendant sought an interlocutory appeal because the trial court granted a waiver without any proof regarding the availability of an appropriate expert from Tennessee or a contiguous state. Plaintiffs’ counsel conceded on appeal that he made no effort to find another witness. There is no case where the trial court has waived the contiguous state requirement without any showing regarding the availability of other witnesses or the plaintiffs’ efforts to find such witnesses. As a result, the Court of Appeals held that the contiguous state requirement cannot be waived when the plaintiffs fail to demonstrate that “the appropriate witnesses otherwise would not be available” as required by Tenn.Code Ann. §29-26-115(b). Although Steele is a memorandum opinion, it stands for a simple principle. Trial courts cannot waive the contiguous state requirement in absence of “unavailability.” This principle was reiterated in Rose v. H.C.A. Health Services of Tennessee, Inc., 947 S.W.2d 144 (Tenn.Ct.App.1997) where the court rejected a waiver because affidavits submitted by plaintiffs in support of motion for a waiver was generalized, unspecific, and reflected only a cursory effort to find an appropriate expert from Tennessee or contiguous border state. The principle was also reiterated in Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155 (Tenn.Ct.App.1984) where the court rejected a waiver when there was nothing in the record to show that an “appropriate witness otherwise would not be available. If you need a waiver from the contiguous state rule, there are ways to get it. After all, the rule contains a “safety valve” that is within the discretion of the trial court. Consider seeking a waiver if you need an expert whose qualifications are hard to find elsewhere. Perhaps the expert outside a contiguous state “wrote the book” on medical issue that is at the heart of your litigation. These are sometimes referred to in our parlance as “super-experts.” In White v. Vanderbilt, 21 S.W.3d 215 (Tenn.Ct.App.1999), the trial court allowed a waiver because the defendant by affidavit showed that the expert wrote the “preeminent medical article on the development and treatment of cauda equina syndrome.” Note that the use of a detailed affidavit was central to the court’s waiver. Waivers are rare but it can be done.