Legg v. Chopra

• Citation: 286 F.3d 286
• Decision Date: 03 April 2002
• Docket Number: No. 00-6075.,00-6075.
• Parties: Annabelle LEGG, Plaintiff-Appellant, v. Dr. Ash CHOPRA, Defendant, University Urology, P.C., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

286 F.3d 286

Annabelle LEGG, Plaintiff-Appellant, v. Dr. Ash CHOPRA, Defendant University Urology, P.C., Defendant-Appellee.

No. 00-6075.

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2002.

Decided and Filed: April 3, 2002.

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Timothy W. McAfee (argued and briefed), McAfee Law Firm, Norton, VA, for Plaintiff-Appellant.

R. Franklin Norton (briefed), Jeffrey A. Woods (argued and briefed), Norton & Luhn, Knoxville, TN, for Defendants-Appellees.

Before: SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Plaintiff Annabelle Legg appeals from the orders of the district court granting summary judgment to Defendant University Urology, P.C., and denying Plaintiff's motion to vacate judgment in favor of Defendant in this medical malpractice diversity action. We hold that Plaintiff's medical expert testimony was properly excluded as failing to meet the requirements of Tenn. Code Ann. § 29-26-115(b), which dictates who may be accepted as a medical expert in a medical malpractice action under Tennessee law. We reject Plaintiff's argument that § 29-26-115(b) is trumped by Federal Rule of Evidence 702, because the Tennessee statute is a rule of witness competency, and as such, applies in federal civil proceedings pursuant to Federal Rule of Evidence 601. Furthermore, we see no conflict in giving effect to both Rule 601 and Rule 702.

I.

On August 25, 1998, Annabelle Legg underwent cystocele repair surgery at the University of Tennessee Medical Center to remove a cyst from the interior wall of Legg's vagina and to create a sling to support her bladder. Dr. Chopra, an employee of University Urology, P.C., performed the surgery. Plaintiff alleged that, during the surgery, she suffered major blood loss resulting in four blood transfusions. Dr. Chopra placed packing into the area, but Plaintiff alleged that she continued to suffer blood loss. Plaintiff was then hospitalized for four days after the surgery took place.

Dr. Chopra removed the packing on August 26, 1998, but the blood loss continued. Dr. Chopra replaced the packing again on August 27, 1998. Plaintiff reported weakness and persistent bleeding to Dr. Chopra. On August 28, 1998, Dr. Chopra released Plaintiff from the hospital. Plaintiff continued to have severe problems with bleeding, however. Soon after Plaintiff's release, Dr. Chopra moved from Tennessee to California.

On August 31, 1998, another employee of University Urology, Dr. Paul Hatcher, removed the packing. On September 1, 1998, Plaintiff traveled to Lonesome Pine Hospital in Big Stone Gap, Virginia, where she was seen by Dr. Roberts in the emergency room. Dr. Roberts contacted Dr. Hatcher, who asked Roberts to repack the surgery site and to instruct the plaintiff to return to Dr. Hatcher's office the next day.

On September 2, 1998, Dr. Hatcher replaced Plaintiff's packing. Plaintiff had bled through the packing by 6:00 a.m. that morning and had a high fever and chills. That packing was removed. Dr. Hatcher instructed Plaintiff to return on September 8, 1998, to see Dr. Frederick Klein who was also an employee of University Urology.

Plaintiff returned on September 8, 1998, and was examined by Dr. Klein. He recommended that surgery be conducted immediately to ascertain the cause of the bleeding. After performing the surgery, Dr. Klein determined that the surgery site had either not been sutured or that the sutures had come loose.

On August 18, 1999, Plaintiff brought this medical malpractice action against Dr. Chopra¹ and University Urology, P.C. The district court granted summary judgment to Defendants, holding that Plaintiff failed to create an issue of fact that Defendants fell below the standard of care. In so ruling, the district court refused to consider the testimony of Plaintiff's medical expert, Dr. Bernard Mittemeyer, who is licensed to practice in Texas, and therefore failed to satisfy the requirements of § 29-26-115(b), which requires that the expert be licensed to practice "in the state or a contiguous border state." The court further held that Mittemeyer's affidavit was otherwise insufficient to create a genuine issue of fact under Fed.R.Civ.P. 56(e). Finally, the district court denied Plaintiff's motion to waive the requirements of § 29-26-115(b). Thereafter, Plaintiff moved to vacate judgment to give her additional time to obtain a qualifying expert. The district court denied the motion because Plaintiff failed to meet the standards set out in Rule 60 to justify relief. This appeal follows.

II.

We review the district court's grant of summary judgment de novo. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).

A.

First, Plaintiff argues that the district court mistakenly applied Fed.R.Evid. 601 and state law, and not Fed.R.Evid. 702, in deciding the evidentiary question of whether her expert was qualified to render an opinion. Plaintiff further contends that Tenn.Code Ann. § 29-26-115(b) conflicts with Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and progeny.

In federal diversity actions, state law governs substantive issues and federal law governs procedural issues. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Rules of evidence are deemed rules of procedure, 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, § 4512 (2d ed.1996); Salas by Salas v. Wang, 846 F.2d 897, 905-06 (3d Cir.1988), and therefore, the Federal Rules of Evidence, rather than state evidentiary laws, are held to apply in federal diversity proceedings. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 829 (6th Cir.2000); Grossheim v. Freightliner Corp., 974 F.2d 745, 754 (6th Cir.1992); Laney v. Celotex Corp., 901 F.2d 1319 1320 (6th Cir.1990) Indeed, the federal rules themselves provide that they "apply generally to civil actions and proceedings." Fed.R.Evid. 1101(b). Further, this Court has categorically stated that "[t]he admissibility of expert testimony is a matter of federal, rather than state, procedure." Brooks v. Am. Broad. Cos., 999 F.2d 167, 173 (6th Cir.1993).

However, some state evidentiary rules have substantive aspects, thereby defying the substance-procedure distinction and creating a potential Erie conflict. See, e.g., CMI-Trading, Inc. v. Quantum Air, Inc., 98 F.3d 887, 891 (6th Cir.1996) (holding that although the parol evidence rule relates to trial procedure, it is substantive in nature); see also Ungerleider v. Gordon, 214 F.3d 1279, 1282 (11th Cir.2000) (same). State witness competency rules are often intimately intertwined with a state substantive rule. This is especially true with medical malpractice statutes, because expert testimony is usually required to establish the standard of care. See Peck v. Tegtmeyer, 834 F.Supp. 903, 909 (W.D.Va. 1992) ("In other words, under the statutory scheme, the standard of care is that which is testified to by an expert qualified under the statute."), aff'd, 4 F.3d 985 (4th Cir.1993) (unpublished per curiam). The Federal Rules of Evidence resolve this potential conflict between state and federal law on the issue of witness competency. See generally Joseph M. McLaughlin, 3 WEINSTEIN'S EVIDENCE ¶ 601[05] (2001).² Rule 601 incorporates the Erie mandate by expressly providing that "State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law." Fed.R.Evid. 601; cf. Fed.R.Evid. 302 (state law applies in questions of presumption); Fed.R.Evid. 501 (questions of privilege "shall be determined in accordance with State law").

The Tennessee statute is precisely the type of rule Fed.R.Evid. 601 addresses. It provides in part:

29-26-115. Claimant's burden in malpractice action — Expert testimony — Presumption of negligence — Jury instructions. —(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided in subsection (b):

(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant's negligent or omission, the plaintiff suffered injuries which would not otherwise have occurred.

(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make person's expert testimony relevant to the specialty which would make the person's expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.

Tenn.Code Ann. § 29-26-115 (Supp.2001). The structure of the statute reflects the intimate relationship between the standard of care and the qualification requirements of the medical expert who will establish that standard. Thus, there can be little doubt but that § 29-26-115(b), via Rule...