When and How to Get a Waiver of the Contiguous State Rule
posted on August 23rd, 2009 in Contiguous State Rule, Experts, Waiver by clintIn medical malpractice cases, experts often make the difference between victory and defeat. The defendant has a substantial advantage in medical malpractice trials because she has more experts, including the defendant herself, testifying about the standard of care and causation. Moreover, the defendant has a substantial advantage when the collective experience and training of his experts exceeds that of the patient’s experts. Studies show that patients lose the vast majority of medical malpractice trials. In a difficult case, the only way to even the odds and bring equity to this case is to retain a nationally renowned expert. The problem arises when the expert is not licensed and practicing in Tennessee or a contiguous state during the year preceding the negligent act or injury. You need a waiver.
In Tennessee, there are two basic requirements for expert testimony in medical malpractice actions. To be competent, the expert must be (1) licensed and (2) practicing in Tennessee or a contiguous state during the year preceding the injury. TENN. CODE ANN. § 29-26-115(b). The trial court can to waive these requirements pursuant to TENN. CODE ANN. § 29-26-115(b), which provides in pertinent part:
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).
The waiver provision is a “safety valve.” Sutphin v. Platt, 720 S.W.2d 455 (Tenn.1986). It exists for those situations in which a party is unable to locate a qualified expert. Sutphin v. Platt, 720 S.W.2d 455 (Tenn.1986). Waiver is within the trial court’s discretion. Childress v. Bennett, 816 S.W.2d 314, 315 (Tenn.1991). The trial court may utilize its discretion “in the interest of equity and justice.” Id. The waiver statute has two elements: (1) the expert must be an appropriate witness (2) who otherwise would not be available. TENN. CODE ANN. § 29-26-115(b). You may find a nationally renowned expert who is not licensed in Tennessee or a contiguous state. A nationally renowned expert would be an “appropriate witness.” Yet, the expert is not competent to testify because he is not licensed to practice in Tennessee or a contiguous state. This means your expert “would not be available” for trial. Thus, the two statutory requirements for waiver are satisfied. Therefore, the trial court may grant a waiver for your expert.
The linchpin issue is whether the trial court should grant a waiver for your expert. Courts approve waiver when the expert has ties to Tennessee or a contiguous state. In Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn.Ct.App.1994), the trial court granted a waiver to permit the testimony of a CRNA who had spent most of her career practicing in Missouri, but had been living and practicing in Florida the year prior to the plaintiff’s injury. Id. at 280-81. The Court of Appeals affirmed the waiver. Id. In Childress v. Bennett, 816 S.W.2d 313, 314 (Tenn.1991), the expert was licensed in Tennessee, but in the year preceding the plaintiff’s injury he was in a residency program in Florida. The Supreme Court held it was appropriate to waive the locality rule. In contrast, courts disapprove of waiver where the expert has no ties to Tennessee or a contiguous state. For example, in Ward v. Glover, 206 S.W.3d 17, 38 (Tenn.Ct.App.2006), the appellate court affirmed the denial of a waiver because the expert was from New York and “had absolutely no connection to Tennessee or any bordering state.” See Ralph by Ralph v. Nagy, 749 F.Supp. 169, 174-75 (M.D.Tenn.1990) (excluding experts from New York). There seems to be an implied distaste for experts from New York. You have a better chance for a waiver if your expert is not imported from New York or California.
There must be an adequate record in support of the waiver. Affidavits are essential to substantiate a party’s efforts to find an expert. In Steele v. Berkman, 2006 WL 627185 at *2 (Tenn.Ct.App.), the Court of Appeals reversed the trial court’s waiver because the plaintiff did not submit an affidavit in support of the waiver. There can be no waiver when a party fails to prove that “the appropriate witnesses otherwise would not be available” as required by TENN. CODE ANN. § 29-26-115(b). Id. Moreover, a waiver is inappropriate where the affidavits are “generalized and unspecific, and reflect only a “cursory effort” to find an appropriate expert from Tennessee or a contiguous border state.” Rose v. HCA Health Services of Tennessee, 947 S.W.2d 144, 148 (Tenn.Ct.App.1996); Legg v. Chopra, 286 F.3d 286 (6th Cir.2002). It is vital to file affidavits in support of your waiver. The affidavits need to be specific. The affidavits should demonstrate in painstaking detail how and why you searched for a nationally renowned expert in Tennessee or a contiguous state. Prior to disclosing your expert, you should comb through medical literature and the internet for a nationally renowned expert. Your search should include joint efforts with a consulting expert. This will substantiate your due diligence in searching for a nationally renowned expert. Furthermore, your affidavits should demonstrate the need for a nationally renowned expert. Point out that you have an exceptionally complex malpractice case. The defendants will always have more experts. The collective experience and training of the defendants’ experts will likely exceed that of your expert(s). Point out that you need a nationally renowned expert to bring some balance to the case. This will help you make an adequate record in support of the waiver.
Be forewarned that the defendants will object to a waiver if you already have one competent expert. You should know about Pyle by Pyle v. Morrison, 716 S.W.2d 930, 933 (Tenn.App.1986). In Pyle, the plaintiffs retained two experts: one from Mississippi and the other from Maryland. The defendants hired even more experts. Thereafter, the plaintiffs moved for a waiver. The trial court granted the waiver for the Maryland expert even though the plaintiff already had an expert from Mississippi. The Court of Appeals affirmed. In so doing, the Court of Appeals declared, “The statute contemplates there may be more than one appropriate witness when it uses the plural [for] witnesses.” Id. According to Pyle, you can get a waiver even though you already have another competent expert. If your expert is merely “icing on the cake,” then you will not get the waiver. In Ralph by Ralph v. Nagy, 749 F.Supp. 169, 174-75 (M.D.Tenn.1990), Judge Wiseman refused to grant a waiver for New York experts when the plaintiffs declared that these additional experts were “medical icing on the cake.” Judge Wiseman decided that the waiver provision “is a safety valve not meant for icing the cake.” Id. Rather, you must prove that one expert is not enough to get a fair trial. To do this, point out that you have an exceptional case like Childress v. Bennett. Show that you have an exceptional expert who brings balance to the case. According to recent tort statistics, the odds are that you will probably lose the case so you must emphasize fairness. In the article entitled, “Malpractice Statistics,” THE TENNESSEAN reported that in 2005 over 83% of medical malpractice claims resulted in no payout; only five cases resulted in jury verdicts for the plaintiffs. Your expert is likely indispensable. This does not mean you will win the trial. It only means that you can get a fair trial in this era of tort reform. In fact, that is all the waiver does, i.e., ensure a fair trial.
A waiver is only a safety valve. Do not depend on it. Courts rarely substitute a waiver for a competent expert. The legislature requires experts from Tennessee or a contiguous state. However, in that exceptional case—where equity and justice demands it—seek a waiver and make an adequate record. The survival of your case may depend on it.