Gilbert v. Wessels

• Decision Date: 18 December 2014
• Docket Number: No. E2013-00255-SC-R11-CV.,E2013-00255-SC-R11-CV.
• Citation: 458 S.W.3d 895
• Parties: C.L. Gilbert, Jr. v. Izak Frederick Wessels, M.D.
• Court: Tennessee Supreme Court

458 S.W.3d 895

C.L. Gilbert, Jr.

v.Izak Frederick Wessels, M.D.

No. E2013-00255-SC-R11-CV.

Supreme Court of Tennessee, AT KNOXVILLE.

September 4, 2014 Session

Filed December 18, 2014

Alix C. Michel and David J. Ward, Chattanooga, Tennessee, for the appellant, Dr. Izak Frederick Wessels.

Marvin Bernard Berke and Jeremy Matthew Cothern, Chattanooga, Tennessee, for the appellee, C.L. Gilbert, Jr.

Opinion

Sharon G. Lee, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Gary R. Wad e , Jeffrey S. Bivins, and Holly M. Kirby, JJ., joined.

OPINION

Sharon G. Lee, C.J.

The issue we address in this appeal is whether the Court of Appeals properly granted the defendant a Tennessee Rule of Appellate Procedure 10 extraordinary appeal.The trial court denied the defendant's motion for a waiver of the contiguous state requirement in Tennessee Code Annotated section 29–26–115(b) as to an expert witness.The Court of Appeals granted the defendant's Rule 10 appeal and held that the trial court did not abuse its discretion in declining to waive the contiguous state requirement.We hold that the Court of Appeals improvidently granted the appeal because the trial court did not so far depart from the accepted and usual course of judicial proceedings as to require immediate review and because a review was not necessary for a complete determination of the action on appeal.Tenn. R. App. P. 10(a).Accordingly, we remand this case to the Circuit Court for Hamilton County for further proceedings.

I.

On January 22, 2010, Dr. Izak Frederick Wessels, a Hamilton County ophthalmologist, performed YAG laser surgery¹ on C.L. Gilbert, Jr.'s right eye.On February 1, 2011, Mr. Gilbert filed a health care liability action against Dr. Wessels.The trial court set the case for trial on July 10, 2012, and subsequently reset the trial date to October 3, 2012.

Less than a month before trial, on September 6, 2012, Dr. Wessels filed a motion seeking a waiver of Tennessee Code Annotated section 29–26–115(b)'s contiguous state requirement, which would allow Dr. Scott Geller, an ophthalmologist from Florida, to testify² .Dr. Wessels argued that it was necessary for an ophthalmologist who had performed YAG laser surgery to testify as to the appropriate standard of care and that Dr. Geller was one of three doctors in the country with the most experience in performing this type of procedure.Dr. Wessels supported his motion with three exhibits.The first exhibit was an affidavit from Dr. Wessels' attorney stating that he and his paralegal had spent approximately thirty-five hours researching and attempting to identify an appropriate YAG laser surgery expert from Tennessee or a contiguous state.The second exhibit was from a board-certified ophthalmologist in Tennessee who stated that any expert testimony should be provided by an ophthalmologist who has experience performing the procedure.The third exhibit was the deposition testimony of Mr. Gilbert's expert witness, an ophthalmologist from Georgia, who stated that Dr. Geller was one of the most experienced ophthalmologists in the United States in the use of YAG lasers to treat eye conditions like Mr. Gilbert's.

Mr. Gilbert responded by arguing that Dr. Wessels failed to demonstrate that a qualified expert witness was otherwise unavailable, that he did not conduct a diligent search for an expert from Tennessee or a contiguous state, and that he failed to establish the need for an expert who had performed the YAG laser surgery.Mr. Gilbert contended that there were ophthalmologists in Tennessee and its contiguous states who could testify as to the appropriate standard of care.

On October 30, 2012, after hearing oral argument, the trial court issued an order declining to waive the section 29–26–115(b) contiguous state requirement for a testifying expert witness, finding that Dr. Wessels had not established that appropriate witnesses would otherwise be unavailable.The trial court denied Dr. Wessels' application for an interlocutory appeal.SeeTenn. R. App. P. 9.

The Court of Appeals granted Dr. Wessels' application for a Rule 10 extraordinary appeal and held that the trial court did not abuse its discretion in declining to waive the contiguous state requirement, noting that there were more than 2,300 ophthalmologists in Tennessee and its contiguous states and that Dr. Wessels made “only a cursory effort to find an appropriate expert from Tennessee or a contiguous border state.”Gilbert v. Wessels, No. E2013–00255–COA–R10–CV, 2013 WL 6063329, at *5–6(Tenn. Ct. App.Nov. 18, 2013)(quotingRose v. H.C.A. Health Servs. of Tenn., Inc.,947 S.W.2d 144, 148(Tenn. Ct. App.1996) ).We granted Dr. Wessels' Rule 11application for permission to appeal.

II.

Although not raised directly by the parties, the issue we address is whether the Court of Appeals properly granted Dr. Wessels' application for extraordinary appeal under Tennessee Rule of Appellate Procedure 10.

This appeal originated under Rule 10, but is before us as an appeal by permission under Tennessee Rule of Appellate Procedure 11.SeeTenn. R. App. P. 10 advisory commission cmt.(“When the intermediate court grants an extraordinary appeal under Rule 10, an appeal of the final decision of the intermediate court to the Supreme Court is governed by Rule 11.”).Tennessee Rule of Appellate Procedure 10(a) provides that “[a]n extraordinary appeal may be sought on application and in the discretion of the appellate court alone of interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court of Appeals[,] or Court of Criminal Appeals....”Extraordinary appeals are only appropriate “(1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in [the Rules of Appellate Procedure].”Tenn. R. App. P. 10(a).The Advisory Commission Comment to Rule 10 further explains, “The circumstances in which review is available ... are very narrowly circumscribed to those situations in which the trial court or the intermediate appellate court has acted in an arbitrary fashion, or as may be necessary to permit complete appellate review on a later appeal.”

An appellate court should grant a Rule 10 extraordinary appeal only when the challenged ruling represents a fundamental illegality, fails to proceed according to the essential requirements of the law, is tantamount to the denial of a party's day in court, is without legal authority, is a plain and palpable abuse of discretion, or results in either party losing a right or interest that may never be recaptured.State v. McKim,215 S.W.3d 781, 791(Tenn.2007)(citingState v. Willoughby,594 S.W.2d 388, 392(Tenn.1980) ).A Rule 9 interlocutory appeal, in contrast, may be granted under less egregious circumstances.A Rule 9 appeal may be appropriate when there is a need “to prevent irreparable injury,”“to prevent needless, expensive, and protracted litigation,” and “to develop a uniform body of law.”SeeTenn. R. App. P. 9(a).

Unlike Rule 9 appeals, Rule 10 appeals are reserved only for extraordinary departures from the accepted and usual course of judicial proceedings.See, e.g.,Jones v. Vasu,326 S.W.3d 577, 578(Tenn. Ct. App.2010)(granting extraordinary appeal in a health care liability suit where the trial court denied the defendant's motion to dismiss despite the plaintiff's intentional delay in service of process which had rendered the filing of the complaint statutorily ineffective);Joiner v. Joiner, No. E2005–01619–COA–R10–CV, 2005 WL 2805566, at *8(Tenn. Ct. App.Oct. 27, 2005)(granting extraordinary appeal where a trial judge disqualified an attorney from representing a litigant simply because the attorney had announced his candidacy for the judge's position);Pykosh v. Earps, No. M2004–01507–COA–R10–CV, 2004 WL 1839489, at *1(Tenn. Ct. App.Aug. 17, 2004)(granting extraordinary appeal where the trial court denied a defendant's motion for a physical examination of the plaintiff, though the plaintiff had been granted the opportunity to have his own doctor testify);State ex rel. Dean v. Nelson,169 S.W.3d 648, 649(Tenn. Ct. App.2004)(granting extraordinary appeal in an action to close an adult business where the court issued a temporary restraining order without five days written notice and then allowed the restraining order to remain in effect pending the trial);Korthoff v. Korthoff, No. W2001–01712–COA–R10–CV, 2001 WL 34151700, at *2(Tenn. Ct. App.Sept. 24, 2001)(granting extraordinary appeal where the trial court, absent authority, ordered “a partial distribution of marital property prior to a final adjudication”).

It is important for appellate courts to exercise restraint in granting Rule 10 appeals.Under our Rules, the appellate courts have no authority to unilaterally interrupt a trial court's...