McDaniel et al v. UT Medical Group, Inc.
Filing
106
ORDER granting 40 Motion to Exclude Dr. Michael Roberts. Signed by Magistrate Judge Tu M. Pham on 2/8/2018. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHARLES MARK McDANIEL,
and his wife, MELODY
McDANIEL,
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
UT MEDICAL GROUP, INC.,
Defendant.
16-cv-2895-TMP
ORDER GRANTING DEFENDANT’S MOTION TO EXCLUDE DR. MICHAEL ROBERTS
Before
the
(“UTMG”)
motion
Roberts,
M.D.,
court
to
is
defendant
exclude
filed
on
the
UT
expert
November
3,
Medical
Group,
testimony
3017.
of
(ECF
Inc.’s
Michael
No.
40.)
Plaintiffs Charles Mark McDaniel and Melody McDaniel filed a
response on November 17, 2017.
reply on December 7, 2017.
(ECF No. 41.)
UTMG filed a
(ECF No. 44.)
The court has considered the briefs submitted in support of
and in opposition to the motion and their attached exhibits.
For the reasons provided below, UTMG’s motion is GRANTED.
I.
BACKGROUND
The McDaniels allege that in 2009, a UTMG surgeon working
at Baptist Memorial Hospital, Stephen Behrman, M.D., provided
medical treatment to Mr. McDaniel of a quality that “fell below
the recognized standard of acceptable professional practice for
physicians in Shelby County, Tennessee and similar communities.”
(ECF No. 1 at 6.)
Specifically, they allege that Dr. Behrman
failed to provide appropriate post-operative treatment for Mr.
McDaniel during his recovery from a surgery for a ventral hernia
repair.
(Id.
at
5
to
7.)
The
McDaniels
claim
that
Dr.
Behrman’s alleged negligence has caused them physical, mental,
emotional, and financial harm.
compensatory damages.
(Id. at 7 to 8.)
They seek
(Id.)
In the instant motion, UTMG asks that the court exclude one
of
the
Roberts.
McDaniels’
proposed
expert
(ECF No. 40-2 at 5.)
witnesses,
Dr.
Michael
UTMG argues that Dr. Roberts
should be excluded because he has failed to demonstrate that he
is sufficiently familiar with the Memphis medical community or a
similar community so as to be able to testify about the standard
of acceptable professional practice in Memphis, Tennessee.
The McDaniels counter that UTMG is relying on “outdated
case law” and that the court should examine the matter through
the
lens
of
the
Tennessee
Supreme
Court
Williams, 350 S.W.3d 527 (Tenn. 2011).
They
claim
that,
under
the
“relaxed”
case
of
Shipley
v.
(ECF No. 41 at 2 to 3.)
Shipley
standard,
Dr.
Roberts has demonstrated adequate familiarity with the Memphis
medical community in three ways.
(Id.)
First, they argue, he
has demonstrated that he is familiar with the Memphis medical
-2-
community because he is familiar with Milledgeville, Georgia.
To make their point, the McDaniels offer this syllogism: (1) Dr.
Roberts has testified Milledgeville has a similar standard of
care
to
Dyersburg
Dyersburg,
has
a
Tennessee;
similar
(2)
standard
Dr.
of
Behrman
care
to
has
testified
Memphis;
and
therefore, (3) Milledgeville must have a similar standard of
care to Memphis.
the McDaniels
(ECF No. 41 at 5.)
point
to
the
To support this argument,
deposition
of
Dr.
Behrman,
which
states, in applicable part, as follows:
Q:
Do you know surgeons from other parts of
Tennessee, like Dyersburg or Jackson or Nashville?
A:
Yes.
Q:
Do you have occasion to talk to them about
their surgical practice and how they do things?
A:
Yes.
Q:
Do you know any surgeons in other states?
A:
Yes.
Q:
Do you know any surgeons in Georgia?
A:
Yes.
Q:
Any surgeons in Missouri?
A:
Yes.
Q:
When you’ve spoken to them about their
surgical practices, have there ever been anything that
you’ve
determined
was
different
about
how
they
practiced medicine there?
A:
No.
Q:
And you filed an Affidavit in this case, and
we’ll get to that, but you claimed to be familiar with
the standard of care for surgeons here in Memphis and
Shelby County.
A:
Yes.
Q:
Do you believe there’s a national standard
of care for ventral hernia repairs?
A:
I would say so, yes.
. . . .
Q:
And in talking to surgeons in Dyersburg or
Jackson, you don’t think the standard of care for
-3-
ventral hernia repairs there is any different than it
is in Memphis?
A:
I mean, techniques, mesh types might be
different, but I think the standard of care would be
similar.
Q:
Assuming similar treatment capabilities and
access to devices and things, correct?
A:
Yes.
(Behrman Dep. 19:16–21:16, Dec. 21, 2011, ECF No. 41-2 at 4 to
9.)
To further bolster this argument, the McDaniels highlight
Dr.
Behrman’s
testimony
that
he
believed
other
much
smaller
communities share a similar standard of care with Memphis:
Q:
Were you of the opinion that the standard of
care in Memphis is the same as the standard of care in
Chattanooga?
A:
Yes.
. . . .
Q:
Did you actually go to Chattanooga to
testify?
A:
It’s actually some little town outside of
Chattanooga in the middle of nowhere.
Q:
Franklin County. Is it Cleveland?
A:
No, it’s even smaller.
I mean, it is – I
mean, it’s Mayberry. I mean, it’s tiny.
Q:
But you still had the opinion that the
standard of care in Memphis was no different from the
standard of care in that city?
A:
True.
. . . .
Q:
Did you believe the standard of care in
Springfield,
Missouri
was
the
same
as
Memphis,
Tennessee?
A:
I did.
(Behrman Dep. 92:20–94:17; ECF No. 41 at 5.)
Alternatively,
Memphis
are
similar
the
McDaniels
because
Dr.
-4-
argue
Roberts
Milledgeville
testified
that
and
the
Milledgeville-located
Oconee
Regional
Medical
Center
and
the
Memphis-located Baptist Memorial Hospital are similar.
(ECF No.
41
internet
at
6.)
research
Finally,
of
Baptist
they
argue
Memorial
that
Dr.
Roberts’s
Hospital
has
provided
him
with
enough knowledge of the Memphis medical community for him to
know
the
Memphis.
standard
(Id.)
of
acceptable
professional
practice
in
Dr. Roberts’s deposition contains the following
testimony relating to these arguments:
Q:
And tell me about the medical community. Do
they have a hospital here [in Milledgeville]?
A:
Yes.
Q:
Where is the hospital?
A:
The hospital is Oconee . . . Regional
Medical Center.
. . . .
Q:
And how many beds does that hospital have?
A:
It’s licensed for 110 beds for acute care
and an additional 30 beds for chronic care.
Q:
How many surgeons practice at that hospital?
A:
We have on our staff approximately 90 active
staff physicians. I would guess approximately half of
those are surgeons of various specialties.
. . . .
Q:
Okay. Where’s the nearest tertiary hospital?
A:
It’s
in
Macon,
Georgia,
which
is
approximately 35 miles away.
Q:
And what’s the name of that hospital?
A:
The Medical Center of Central Georgia.
Q:
Do you have privileges there?
A:
No.
Q:
So I assume you don’t practice at that
hospital?
A:
I do not.
Q:
Is the Oconee Hospital a level one trauma
center?
A:
No.
Q:
Is the Macon County Medical Center (sic) a
level one trauma center?
A:
It is.
-5-
Q:
Do you consider the Milledgeville community
a similar medical community to Memphis, Tennessee?
A:
With regards to this particular case, I do.
Q:
And why do you consider it to be a similar
community?
A:
I think Dr. Behrman and I have had similar
training.
We use similar graft materials, similar
techniques.
. . . .
Q:
You are basing your similarity with Dr.
Behrman and if Dr. Behrman, say, moved to another
community in another state wherever that might be, you
think you would still be in a similar community
because of his practice and his training and the graft
materials he uses?
A:
I’m
saying
if
Dr.
Behrman
came
to
Milledgeville, Georgia, and had a patient similar to
Mr. McDaniel, had asked for a graft material of any
type it would be available to him.
The instruments
would be available.
The postop care, including ICU,
long-term care, acute care, all would be comfortable
for him.
Q:
Is — and you say comfortable because he can
get the same facilities and materials that the Oconee
Hospital -. . . .
A:
Yes.
And he would have whatever diagnostic
modalities he would need as well.
Q:
Are you familiar with the Memphis medical
community at all?
A:
In the city of Memphis?
Q:
Yes.
A:
No.
I’ve looked at the website for Baptist
Memorial.
I know they have approximately 650 beds
available.
They have a few more specialties in
surgery than we do, including cardiac surgery, fulltime plastic surgery, pediatric surgery.
We don’t
have those, but we have others.
Q:
So
you
would
agree
looking
at
the
demographic material you did about the Memphis medical
community that it is not a similar community based on
the demographics?
A:
Memphis
is
larger.
Baptist
Memorial
Hospital is larger.
But pertaining to this case,
we’re equal.
We’re similar or equal.
I’m very
confident in that.
-6-
Q:
So you say because of this procedure that
you would do it in a similar way in this community at
this as Dr. Behrman would do it in the Memphis
community?
A:
Yes. Dr. Behrman could do his case here; I
could go there and operate on Mr. McDaniel doing the
same case.
Q:
All right.
Do you know any doctors from
Memphis, Tennessee?
A:
No.
Q:
So you don’t know any surgeons there?
A:
No.
Q:
And as far as the Oconee hospital, you said
— what specialties do they have here?
A:
We don’t have cardiac surgery here.
We
don’t have plastic surgery.
We don’t have pediatric
surgery, and we don’t have neurosurgery.
Q:
And they have all those things at Baptist
Hospital in Memphis?
A:
Yes.
Q:
Are you familiar with the other hospitals in
Memphis besides Baptist?
A:
No.
Q:
So you don’t know anything else about the
Memphis medical community other than what you looked
up about Baptist Hospital?
A:
That’s right.
(Roberts Dep. 13:2–18, 14:13–18:14, Mar. 13, 2013, ECF. No.
41-1 at 6 to 10, ECF No. 42-2 at 34.)
II.
Because
this
case
ANALYSIS
is
before
the
court
pursuant
to
its
diversity jurisdiction, the court will apply Tennessee law to
assess “[a] witness’s competency regarding a claim or defense
for which state law supplies the rule of decision.”
v.
Chinenye
Uchendu,
M.D.,
No.
See Miller
13-CV-2149-SHL-DKV,
2016
WL
4524306, at *1 (W.D. Tenn. July 21, 2016)(quoting Fed. R. Evid.
601).
Tennessee law requires a plaintiff bringing a health care
-7-
liability action to prove through the testimony of a qualified
expert that the defendant violated “[t]he recognized standard of
acceptable professional practice . . . in the community in which
the defendant practices or in a similar community at the time
the alleged injury or wrongful action occurred.”
26-115.
T.C.A. § 29-
In federal court, Section 29-26-115 combines with the
requirement
testimony
of
Federal
“help
the
Rule
trier
of
of
Evidence
fact.”
702
See
that
Miller,
expert
2016
WL
4524306, at *1 (first quoting United States v. Cunningham, 679
F.3d
355,
379-80
(6th
Cir.
2012);
and
then
citing
Legg
v.
Chopra, 286 F.3d 286, 292 (6th Cir. 2002)); see also Shipley,
350 S.W.3d at 550–52 (noting the relationship between § 29-26115 and Tennessee Rules of Evidence 702 and 703).
Thus, to be
able to testify, a proposed expert must be familiar with the
“standard
of
care”
in
negligent
medical
community.
See
courts
have
referred
rule,’
codified.”
care
Miller,
to
the
community
provider
2016
WL
this
Roberts
v.
where
practiced,
or
4524306,
at
requirement
as
Bicknell,
73
the
allegedly
a
*1.
similar
Tennessee
the
“‘locality
S.W.3d
106,
113
(Tenn. Ct. App. 2001).
Experts may use two approaches to demonstrate that they
meet
the
locality
rule.
Under
the
first
approach
experts
demonstrate that they are familiar with the pertinent standard
of
care
by
showing
that
they
are
-8-
familiar
with
the
medical
community in which the allegedly negligent provider practiced at
the time of the injury.
816,
820
(Tenn.
Ct.
See Johnson v. Richardson, 337 S.W.3d
App.
2010).
Under
the
second
approach
experts must show (1) familiarity with a medical community and
(2) that the community is similar to the one connected to the
case.
Id.
UTMG argues that Dr. Roberts does not meet the locality
rule
under
either
approach,
while
the
McDaniels
argue
that,
according to Shipley, Dr. Roberts meets the locality rule under
both approaches.
The court will, therefore, address whether
Shipley has “relaxed” the locality rule in the manner that the
McDaniels suggest, whether Dr. Roberts has demonstrated that he
is familiar with the Memphis medical community, and whether he
has demonstrated that he is familiar with a medical community
that is similar to Memphis.
A.
Shipley v. Williams
In Shipley, the Tennessee Supreme Court analyzed a twenty-
five-year
rule.
span
of
Tennessee
cases
dealing
with
the
locality
It then found that courts should not exclude an expert
from testifying about “a broader regional standard or a national
standard” so long as that testimony is considered as an element
of the expert witness’s “knowledge of the standard of care in
the same or similar community.”
Shipley, 350 S.W.3d at 553.
It
also rejected a condition formulated by several Tennessee Court
-9-
of Appeals cases that called for an expert to have “firsthand
and direct knowledge” of a medical community.
Id. at 552–53.
Most important to this case, Shipley provided the following
guidance for determining whether an expert meets the locality
rule:
The medical expert or experts used by the
claimant to satisfy this requirement must demonstrate
some familiarity with the medical community in which
the defendant practices, or a similar community, in
order for the expert's testimony to be admissible
under Rules 702 and 703. Generally, a competent
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 had discussions 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
admissible.
Id. at 554.
With regard to the McDaniels’ argument that Shipley relaxed
or otherwise lowered the standard for proving what constitutes a
similar community, that argument is directly inconsistent with
the language of Shipley itself.
As the court expressly stated
in Shipley, “Principles of stare decisis compel us to adhere to
the requirement that a medical expert must demonstrate a modicum
of familiarity with the medical community in which the defendant
practices or a similar community.”
-10-
350 S.W.3d at 552 (emphasis
added).
In
other
words,
Shipley
did
not
alter
the
minimal
showing requirement established by the Court’s prior decisions.
See
Meares
v.
Traylor,
No.
E2011-02187-COA-R3CV,
2012
WL
3060510, at *4 (Tenn. Ct. App. July 27, 2012) (noting that “the
only changes that Shipley made to the existing case law on [the
locality rule] had to do with whether an expert could testify to
a
‘national’
standard
of
care,
and
also
with
the
‘personal,
first-hand knowledge’ requirement”); see also Stovall v. Clarke,
113 S.W.3d 715, 723 (Tenn. 2003)(remanding a case because, among
other
reasons,
the
excluded
expert
had
demonstrated
“some
underlying basis for his testimony” that he was familiar with
the
local
Klepper,
standard
205
S.W.3d
of
care)(emphasis
474,
480
(Tenn.
added);
Ct.
App.
Carpenter
2006)
v.
(“[T]he
locality rule requires an expert to have ‘some knowledge . .
.’”)(emphasis added); Roberts, 73 S.W.3d at 114 (“The law on
expert witnesses, as it exists in Tennessee, requires the expert
to
have
some
knowledge
of
the
practice
of
community at issue or a similar community.”).
rel.
Evans
2993843,
at
v.
Williams,
*8
(Tenn.
Ct.
No.
medicine
June
Shipley “relaxed” the locality rule).
30,
the
But see Evans ex
W2013-02051-COA-R3CV,
App.
in
2014)
2014
(noting
WL
that
Regarding the McDaniels’
suggestion that pre-Shipley cases are “outdated case law,” this
argument is also inconsistent with Shipley as evidenced by the
-11-
Court’s assessment of and reliance upon its prior decisions in
analyzing the locality rule.
B.
Whether Dr. Roberts is Familiar With Memphis
The
McDaniels
argue
that
Dr.
Roberts’s
knowledge
of
statistical information concerning Memphis and Baptist Memorial
Hospital
amounts
community.
(ECF
to
familiarity
No.
41
at
with
6.)
As
the
Memphis
quoted
medical
above,
in
his
deposition, Dr. Roberts testified that he looked at the website
for Baptist Memorial Hospital, learned the number of beds in the
hospital,
and
learned
the
number
(Roberts Dep. 16:24–17:4.)
and
types
of
specialties.
He also testified that Memphis is
larger than Milledgeville.
(Id. at 17:9.)
The McDaniels point
to Shipley and Evans ex rel. Evans v. Williams to bolster their
argument that this testimony provides the “pertinent statistical
information” that an expert must show in order to demonstrate
familiarity with a medical community.
(ECF No. 41 at 7) (first
quoting Shipley, 350 S.W.3d at 552–53; and then quoting Evans,
2014 WL 2993843, at *8).
Shipley
expert
is
community:
medical
mentioned
familiar
with
statistical
providers,
three
and
a
types
of
medical
information,
visiting
Shipley, 350 S.W.3d at 554.
the
evidence
community
that
or
discussions
defendant’s
show
a
with
an
similar
local
community.
However, Shipley did not specify
-12-
which type of evidence supports the familiarity approach and
which supports the similarity approach.
Id. at 554–556.
Prior to Shipley, Tennessee courts have typically treated
experts’
knowledge
of
statistical
information
about
the
pertinent medical community as evidence necessary for finding
similarity
between
two
communities,
not
as
evidence
experts’ familiarity with the pertinent community.
of
the
See Kirk v.
Chavin, No. E2010-02139-COA-R3CV, 2011 WL 2176406, at *5 (Tenn.
Ct. App. June 3, 2011); Johnson, 337 S.W.3d at 821–22; Stanfield
v. Neblett, 339 S.W.3d 22, 34–36 (Tenn. Ct. App. 2010); Plunkett
v. Bradley-Polk, No. E200800774COAR3CV, 2009 WL 3126265, at *8
(Tenn.
Ct.
App.
Sept.
30,
2009);
Farley
v.
Oak
Ridge
Med.
Imaging, P.C., No. E200801731COAR3CV, 2009 WL 2474742, at *12
(Tenn.
Ct.
App.
Aug.
13,
2009);
Nabors
v.
Adams,
No.
W200802418COAR3CV, 2009 WL 2182386, at *5–*6 (Tenn. Ct. App.
July 23, 2009); Taylor ex rel. Gneiwek v. Jackson-Madison Cty.
Gen. Hosp. Dist., 231 S.W.3d 361, 369–71 (Tenn. Ct. App. 2006);
Carpenter,
205
S.W.3d
at
478–80;
Travis
v.
Ferraraccio,
No.
M2003-00916-COA-R3CV, 2005 WL 2277589, at *12 (Tenn. Ct. App.
Sept. 19, 2005); Bravo v. Sumner Reg'l Health Sys., Inc., 148
S.W.3d 357, 369 (Tenn. Ct. App. 2003); Roberts, 73 S.W.3d at
114; Wilson v. Patterson, 73 S.W.3d 95, 98–104 (Tenn. Ct. App.
2001).
suggests
This court has found only one pre-Shipley case that
statistical
information
-13-
might
be
used
to
show
familiarity.
See
Stovall,
113
S.W.3d
at
723.
However,
in
Stovall, there was other, non-statistical evidence that provided
a sufficient basis for finding familiarity with the pertinent
medical community.
Id. (noting that the expert “testified that
he had reviewed over twenty medical charts from the State of
Tennessee and had testified in three malpractice cases in the
middle Tennessee area”).
Tennessee
Court
of
Moreover, even after Shipley, many
Appeals
cases
have
continued
to
treat
statistical information as relevant to the similarity approach.
See
Nevels
v.
Contarino,
No.
M2012-00179-COA-R3CV,
2012
WL
5844751, at *6–*7 (Tenn. Ct. App. Nov. 16, 2012); Meares, 2012
WL 3060510, at *6; McDonald v. Shea, No. W2010-02317-COA-R3CV,
2012 WL 504510, at *14–*15 (Tenn. Ct. App. Feb. 16, 2012); Smith
v.
Mills,
No.
E2010-01506-COA-R3CV,
(Tenn. Ct. App. Oct. 4, 2011).
2011
WL
4553144,
at
*7
But see Evans, 2014 WL 2993843,
at *8; Griffith v. Goryl, 403 S.W.3d 198, 206–11 (Tenn. Ct. App.
2012).
This differentiation between types of evidence is important
because the three types of evidence that Shipley described are
not necessarily applicable to both approaches.
When analyzing
whether two medical communities are similar, courts assess the
experts’ knowledge of “pertinent statistical information such as
community size, hospital size, the number and type of medical
facilities in the community, and medical services or specialized
-14-
practices available in the area.”
Shipley, 350 S.W.3d at 554.
This information substitutes for knowledge of the standard of
care in the pertinent medical community.
In other words, if
experts know the standard of care in community A, but not in
community B, then their knowledge that the two communities share
similar demographics and statistics equips them to opine on how
community B has the same standard of care as community A.
the
court
will
treat
Dr.
Roberts’s
knowledge
of
Thus,
statistical
information as relevant to determining the similarity between
Memphis and Milledgeville but not as evidence of Dr. Roberts’s
familiarity
with
the
standard
of
care
in
Memphis’s
medical
community.
See Sutphin v. Platt, 720 S.W.2d 455, 457 (Tenn.
1986) (noting that the standard of care deals with the “customs
or practices of physicians from a particular geographic region”)
(citing
Joseph
H.
King,
The
Standard
of
Care
and
Informed
Consent Under the Tennessee Malpractice Act, 44 Tenn.L.Rev. 225,
256 (1977)).
Here, the McDaniels only provide Dr. Roberts’s knowledge of
certain
statistical
facts
about
Memphis
and
Baptist
Memorial
Hospital to support their argument that the court should admit
his testimony under the familiarity approach.
provided
customs
Memphis.
any
or
evidence
practices
that
that
Dr.
Roberts
make
up
the
is
They have not
familiar
standard
of
with
care
the
in
Indeed, Dr. Roberts’s testimony indicates he is not
-15-
familiar
with
these
customs
or
practices.
During
his
deposition, he testified that he had never visited Memphis, did
not know any doctors from Memphis, was not familiar with any
hospitals in Memphis other than looking up the Baptist Memorial
Hospital website, and was not familiar with the Memphis medical
community.
(Roberts
Dep.
11:24–25,
16:20–24,
17:20–18:14.)
Therefore, the court finds that Dr. Roberts’s testimony is not
admissible under the familiarity approach to the locality rule
and will next consider if it is admissible under the similarity
approach. 1
See Sommer v. Davis, 317 F.3d 686, 694 (6th Cir.
2003) (affirming the exclusion of an expert who had admitted
that
“he
did
not
‘know
any
of
the
characteristics
of
the
[pertinent] medical community’”).
C.
Whether Dr. Roberts is Familiar With a Community That is
Similar to Memphis
The
McDaniels’
first
similarity
argument
is
that
Milledgeville is similar Memphis, because Dr. Roberts testified
that Milledgeville and Dyersburg are similar and Dr. Behrman
testified
Dyersburg
and
Memphis
1
are
similar.
The
court
has
There are any number of additional steps that experts might take
to familiarize themselves with the standard of care in a
specific medical community — including reviewing medical charts,
Stovall,
113
S.W.3d
at
723,
studying
the
records
and
recommendations for treatment for referrals from the local
community, Ledford v. Moskowitz, 742 S.W.2d 645, 648 (Tenn. Ct.
App. 1987), and even observing the depositions and testimony of
local physicians in other cases, Wilson, 73 S.W.3d at 99–100.
No such evidence has been provided concerning Dr. Roberts.
-16-
found
no
Tennessee
case
that
has
allowed
experts
who
are
familiar with communities A and B to admit that they know little
about community C and rely, nonetheless, upon testimony from the
opposing
party
to
bridge
the
community-B-to-community-C
gap.
The court need not reach this issue because, in order for the
McDaniels to rely on Dr. Behrman’s testimony in this manner,
there must be evidence that Dr. Behrman is sufficiently familiar
with the standard of care in Dyersburg for him to be able to
compare it to the standard of care in Memphis.
The court finds,
for the reasons given below, that Dr. Behrman has not shown such
familiarity.
In the excerpts of Dr. Behrman’s deposition testimony that
the McDaniels provided to the court, Dr. Behrman made three key
points about his knowledge of the standard of care in Dyersburg.
First, he agreed that his surgeon acquaintances in Dyersburg,
Jackson,
Nashville,
Georgia,
and
“surgical practices” to his own.
Second,
he
testified
that
he
Missouri
similar
(Behrman Dep. 19:16–20:11.)
believes
there
standard of care for ventral hernia repairs.
92:20–94:17)
employed
is
a
national
(Id. at 20:17–19,
Finally, he was asked, “[I]n talking to surgeons
in Dyersburg or Jackson, you don’t think the standard of care
for ventral hernia repairs there is any different than it is in
Memphis?”
He responded that he thought the standard of care
“would be similar” to the one in Memphis.
-17-
Shipley
may
have
stated
that
conversations
with
local
providers about “the applicable standard of care relevant to the
issues
presented,”
are
“[g]enerally
.
.
.
establish the expert’s testimony as admissible.”
554.
But,
Dr.
Behrman’s
testimony
on
his
sufficient
to
350 S.W.3d at
familiarity
with
Dyersburg does not reach the basic level of familiarity that the
locality rule requires.
had
conversations
Dyersburg
or
All the court knows is that Dr. Behrman
with
Jackson,
surgeons,
about
matters
who
may
that
have
led
Dr.
been
from
Behrman
to
think that the standard of care for ventral hernia repairs in
Dyersburg and/or Jackson “would be similar” to the standard in
Memphis.
Dr. Behrman provided no explanation as to why those
conversations persuaded him to think Dyersburg and Memphis share
similar standards of care.
Without this information, the court
will not deem his conclusion a sound one.
See Johnson, 337
S.W.3d at 822–23 (affirming the exclusion of an expert who had
asserted that two communities were similar based upon medical
records from the pertinent community but who had not explained
the number, content, or significance of the records).
Aside from these conversations, the only concrete basis Dr.
Behrman provided for his conclusion that Dyersburg and Memphis
share a standard of care was his belief that these communities,
and other small communities like Franklin County, are governed
by a national standard care.
While testimony about a national
-18-
standard
of
care
may
be
one
of
the
facts
supporting
the
determination that an expert meets the locality rule, it may not
be the only one.
See Shipley, 350 S.W.3d at 553.
As a result,
Dr. Behrman’s testimony did not provide a sufficient foundation
for his belief that Memphis and Dyersburg have similar standards
of
care.
Thus,
the
court
finds
that
his
testimony
cannot
provide the basis for Dr. Roberts’s claim that Milledgeville and
Memphis are similar. 2
The
McDaniels’
Roberts
Memphis
second
demonstrated
through
his
similarity
similarity
testimony
argument
between
about
the
is
that
Milledgeville
similarities
Dr.
and
between
Oconee Regional Medical Center and Baptist Memorial Hospital.
When
describing
Oconee
Regional
Medical
Center,
Dr.
Roberts
observed that it has “110 beds for acute care and an additional
30 beds for chronic care,” is not a tertiary hospital, and does
not have a level one trauma center. (Roberts Dep. 13:14–15:1.)
He described Baptist Memorial Hospital as having “approximately
650
beds
available,”
and
Regional Medical Center.
four
more
specialties
than
Oconee
(Id. at 16:21–17:4, 18:2–7.)
The McDaniels have not provided, and this court has not
found, a single case in which a Tennessee court has determined
2
To the extent the McDaniels argue for similarity based upon
Behrman’s testimony regarding the similarities between
Memphis medical community and several smaller communities,
court views this argument as no different from arguing
reliance solely upon a national standard of care.
-19-
Dr.
the
the
for
that
two
medical
communities
were
similar
similarities between two hospitals.
the dearth of such case law.
based
purely
upon
There is good reason for
Finding similarities between two
communities involves comparing “community size, hospital size,
the number and type of medical facilities in the community, and
medical
area.”
services
or
specialized
practices
See Shipley 350 S.W.3d at 554.
communities make.
exclusion
of
an
available
in
the
Two hospitals do not two
See Sommer, 317 F.3d at 694–95 (affirming the
expert
who
stated
that
two
communities
were
similar because they both had elite medical schools); Johnson,
337 S.W.3d at 822 (“[T]he mere fact that both communities had
outlying hospitals is insufficient on its own to establish that
the two communities were similar.”).
Thus, the court finds that
Dr. Roberts’s testimony is not admissible under the similarity
approach.
III. CONCLUSION
For the foregoing reasons, UTMG’s motion to exclude the
testimony of Dr. Roberts is GRANTED. 3
3
The court notes that several courts and commentators have widely
criticized this rule as inflexible and outdated and have
advocated for the legislature to reform the law to reflect
modern developments in medicine. See Shipley, 350 S.W.3d at 538
n.7 (collecting cases and articles).
As the Sixth Circuit
observed in Brown v. United States, 355 F. App'x 901, 907 n.1
(6th Cir. 2009),
The Tennessee Supreme Court
discontent with the locality rule
-20-
also noted
as a whole
its
and
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
February 8, 2018
Date
suggested to the General Assembly that it be changed
to
account
for
the
fact
that
national
norms,
especially with respect to specialized procedures such
as the one in question here, are often representative
of the local norms.
Robinson v. Le Corps, 83 S.W.3d
718, 724 (Tenn. 2002).
We agree with the Tennessee
Supreme Court and also encourage the General Assembly
to address this issue.
However, we are not only
bound, as was the Tennessee Supreme Court, by the
existing statute but are also bound by the Tennessee
Supreme Court's interpretation of the locality rule
provided in Robinson.
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