              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0849n.06
                         Filed: November 20, 2006

                                    Case No. 05-6671/6754

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT

 STEVEN SCOTT, Surviving Husband of                   )
 Elizabeth Suzanne Scott, Deceased,               )
                                                  )
    Plaintiff-Appellant (05-6671)                 )       ON APPEAL FROM THE
    Plaintiff-Appellee (05-6754),                 )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE MIDDLE
                                                  )       DISTRICT OF TENNESSEE
               v.                                 )
                                                  )
 GEORGE M. MILLER, JR., M.D.,                     )
 GEORGE M. MILLER, JR., M.D., P.C.,               )
 F/k/a BARIATRIC SURGERY CLINIC,                  )
 P.C., and CENTENNIAL MEDICAL                     )
 CENTER,

    Defendants-Appellees (05-6671)
    Defendants-Appellants (05-6754).

 _______________________________________

BEFORE: BATCHELDER and MOORE, Circuit Judges; COHN,* District Judge.

AVERN COHN, District Judge. This is a medical malpractice case. Plaintiff, Steven

Scott, as surviving husband of Elizabeth Suzanne Scott, appeals from the district court’s

grant of summary judgment to defendants George M. Miller, Jr., M.D., and George M.




       *
      The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation .
Miller, Jr., M.D., P.C. f/k/a Bariatric Surgery Clinic, P.C.1 Defendants appeal the denial

of their motion to permit discovery depositions of expert witnesses. The appeal raises

two issues: (1) whether plaintiff’s medical expert met the qualifications under the

Tennessee Medical Malpractice Act, Tenn. Code Ann. § 29-26-115(a)(1), with respect to

knowledge of the professional standard of care; and (2) whether the district court erred in

denying defendants’ motion to permit discovery. For the reasons that follow, we

REVERSE the district court’s summary judgment ruling and REMAND the case for

further proceedings, including a determination of whether depositions of the proposed

medical experts should be taken.

                                              I.

                                              A.

       Suzanne Scott was a thirty-year-old woman who, on October 17, 2001, sought

consultation for gastric bypass surgery2 with Dr. George Miller.3 On November 15, 2001,

Dr. Miller performed laparoscopic Roux-en-Y gastric bypass weight loss surgery on Mrs.

Scott at Centennial Medical Center in Nashville, Tennessee. Plaintiff alleges, inter alia,



       1
        Initially, plaintiff also sued Centennial Medical Center. Plaintiff later dismissed it
as a defendant.
       2
        Gastric bypass is a procedure in which the majority of the stomach is cut off to create
a small pouch to permit only a small amount of food to be consumed and thereby induce
weight loss.
       3
       Plaintiff spent a good deal of time discussing Dr. Miller’s qualifications.          As
defendants point out, Dr. Miller’s qualifications are not at issue.

                                              2
that Dr. Miller failed to properly close Mrs. Scott’s bowels, leaving two leaks and causing

toxins to spread into her abdominal cavity. Defendants, however, maintain that a failure

to follow discharge instructions may have lead to the failure of the surgical bowel

connection and the development of leaks. In any event, Mrs. Scott remained in the

hospital for three days after the surgery during which time she complained of not feeling

well. Mrs. Scott was eventually discharged on a Sunday. By Monday night, Mrs. Scott

was quite ill, and was taken to the hospital and admitted for emergency surgery to repair

two large leaks. By that time, she had a massive infection. Mrs. Scott died eight days

later from sepsis.

                                            B.

       On November 5, 2004, plaintiff filed a medical malpractice complaint against

defendants 4 in federal court.

       On January 21, 2005, the district court entered a Case Management Order which

stated in part:

              In order to reduce the needless expenditure of time and expense,
       there shall not be any discovery depositions taken of expert witnesses.
              Local Rule 12(c)(6)(c) (effective March 1, 1994) relating to expert
       witnesses shall apply in this action, and strict compliance is required.

       On January 24, 2005, the district court entered Case Management Order No. 2

which said the following regarding expert witnesses:



       4
       Plaintiff previously filed a medical malpractice complaint in state court on November
13, 2002. Plaintiff voluntarily dismissed the case prior to expert witness disclosure.

                                             3
       Expert witness disclosures shall be made in accordance with Fed. R. Civ. P.
       26(a)(2) or as has been otherwise ordered by the Court. No expert witness
       shall testify beyond the scope of his or her expert witness disclosure. The
       Court may exclude or strike testimony of an expert witness, or order other
       sanctions provided by law, for violation of the expert witness disclosure
       requirements.

       On March 3, 2005, defendants filed a motion for summary judgment on the

grounds that plaintiff failed to make out a medical malpractice case under Tennessee law.

In response, plaintiff filed the affidavit of Jeffrey W. Allen, M.D., plaintiff’s medical

expert, who stated that he was familiar with the standard of care in Nashville, Tennessee

and that Dr. Miller failed to comply with that standard. Plaintiff, with permission from

the district court, filed a supplemental affidavit from Dr. Allen. Defendants then filed a

reply brief challenging Dr. Allen’s qualifications under Tennessee’s Medical Malpractice

statute based on the supplemental affidavit.

       On October 7, 2005, defendants filed a motion to permit the parties to conduct

discovery depositions of experts. On October 11, 2005, the district court denied the

motion, prior to receiving a response from plaintiff, essentially on the grounds that there

was no showing of need to deviate from the case management orders.

       On October 18, 2005, the district court granted defendants’ motion for summary

judgment, holding that Dr. Allen failed to satisfy the “locality rule” under Tennessee’s

Medical Malpractice Act. Without this evidence, the district court held that plaintiff

failed to make out a case for medical malpractice and, as such, granted summary

judgment to defendants.

                                               4
       Plaintiff appeals the district court’s summary judgment decision. Defendants cross

appeal the denial of their motion for discovery depositions.

                                             II.

                                             A.

                                             1.

       The first issue on appeal is the district court’s summary judgment ruling which we

review de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000). Summary

judgment is proper “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).

       Defendants, however, argue that the standard of review is an abuse of discretion.

Defendants say that because the district court’s summary judgment ruling was based on a

factual finding that Dr. Allen was not qualified as an expert under Tennessee law it was

essentially an evidentiary ruling. We disagree. The district court’s summary judgment

decision rested on the finding that Dr. Allen’s affidavit was insufficient as a matter of

law, i.e. there was no genuine issue as to a material fact regarding whether Dr. Allen

satisfied the requirements of Tennessee law. Although the issue has evidentiary

overtones, the appropriate standard of review of the district court’s decision is de novo

because the issue was resolved in the context of summary judgment.



                                              5
                                               2.

                                               a.

       Tenn. Code Ann. § 29-26-115(a) sets forth a plaintiff’s burden in a medical

malpractice action, providing:

       (a) In a malpractice action, the claimant shall have the burden of proving by
       evidence as provided by 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 he 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 act or omission, the
       plaintiff suffered injuries which would not otherwise have occurred.

Subsection (a)(1) is commonly referred to as the “locality rule,” which requires that a

“medical expert relied upon by the plaintiff must have knowledge of the standard of

professional care in the defendant's applicable community or knowledge of the standard

of professional care in a community that is shown to be similar to the defendant's

community.” Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002) (emphasis added).

       Case law has further shaped the contours of the locality rule.5 In Kenyon v.

Handal, 122 S.W.3d 743, 761-62 (Tenn. Ct. App. 2003), the Tennessee Court of Appeals

explained:

       5
         It is worth noting that the majority of the cases cited by the parties concern the
exclusion of a plaintiff’s medical expert’s testimony, either at deposition or at trial, not the
dismissal of a medical malpractice action on summary judgment for failure of the expert to
satisfy the locality rule.


                                               6
               The expert is not required to be familiar with all the medical
       statistics of the community where the physician practices. Ledford v.
       Moskowitz, 742 S.W.2d 645, 648 (Tenn. Ct. App. 1987). However, the
       expert must go further than simply asserting that he or she is familiar with
       the applicable standard of care. Mabon v. Jackson-Madison County Gen.
       Hosp., 968 S.W.2d at 831. The expert must present facts demonstrating
       how he or she has knowledge of the applicable standard of professional care
       either in the community in which the defendant physician practices or in a
       similar community. Spangler v. East Tenn. Baptist Hosp., No.
       E1999-01501-COA-R3-CV, 2000 WL 222543, at *1-2 (Tenn. Ct. App. Feb.
       28, 2000) perm. app. denied (Tenn. Sept. 11, 2000).
               For the purpose of Tenn. Code Ann. § 29-26-115(a), the only
       relevant “community” is the community in which the defendant physician
       actually practices or in a similar community. Tilley v. Bindra, No.
       W2001-01157-COA-R3-CV, 2002 WL 1000196, at *4-5 (Tenn. Ct. App.
       May 13, 2002) perm. app. denied (Tenn. Nov. 4, 2002). Accordingly, the
       courts have held that medical experts testifying for a patient in a medical
       malpractice case may not base their testimony solely on their familiarity
       with a national standard of professional practice. Robinson v. LeCorps, 83
       S.W.3d at 724; Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d
       at 831. We have likewise rejected expert testimony based on a state-wide
       standard of professional practice, Totty v. Thompson, 121 S.W.3d at 678-79;
       Tilley v. Bindra, 2002 WL 1000196, at *4 (holding that the relevant
       standard of professional practice is not a nationwide or even a statewide
       standard of care), as well as testimony premised on a regional standard of
       professional practice. Howell v. Baptist Hosp., 2003 WL 112762, at *8
       (holding that an affiant's assertion of familiarity with the applicable
       standard of professional practice in “Middle Tennessee” did not provide a
       basis for testifying regarding the standard of professional practice in
       Nashville).

In Kenyon, the court of appeals found that the plaintiff’s medical expert’s affidavit failed

to satisfy the locality rule because

       it does not contain sufficient facts to demonstrate that Dr. Kumar's opinion
       regarding the applicable standard of professional practice is based either on
       his familiarity with the applicable standard of professional practice in
       Gallatin or Sumner County or on his knowledge of the applicable standard
       of professional practice in a community similar to Gallatin or Sumner

                                              7
       County. Nothing in Dr. Kumar's affidavit indicates that he has any personal
       knowledge of the practice of obstetrics and gynecology in Gallatin or
       Sumner County. Accordingly, he can comply with Tenn.Code Ann. §
       29-26-115(a)(1) only by demonstrating that he knows the applicable
       standard of professional practice in a community that is similar to Gallatin
       or Sumner County.
              Dr. Kumar does not assert that Douglasville, Georgia where he
       practices is similar to Gallatin or Sumner County. He bases his familiarity
       with the applicable standard of care of an obstetrician in January 1998 at the
       Sumner Regional Medical Center in Gallatin on his conclusion that the
       standards of professional practice in the State of Georgia are the same as
       those in the State of Tennessee. Generalizations regarding the similarity of
       the standards of professional care in two contiguous states are not specific
       enough information to demonstrate that a medical practitioner is qualified
       under the locality rule to render an opinion in a medical malpractice case.

Id. at 762.

       Defendants rely heavily on Mabon v. Jackson-Madison County Gen. Hosp., 968

S.W.2d 826 (Tenn. Ct. App. 1997), implying that the Tennessee Court of Appeals created

a sort of “checklist” for demonstrating familiarity with the standard of care. Defendants

listed several “facts” taken from Mabon which they say an expert must provide in order to

satisfy the locality rule, which include: (1) visiting the defendant’s city; (2) knowing

where the city is located; (3) knowing the population of the city; (4) knowing an

individual in that city; (5) knowing physicians in the city; (6) knowing the number of

physicians in the city; (7) knowing the number of hospitals in the city; (8) knowing the

size of the hospital of where the care at issue was provided; (9) knowing the number of

beds in the hospital; (10) knowing the medical specialities available in the hospital; (11)

treating a patient from the city; (12) reviewing medical records from the city; (13)



                                              8
knowing information about medical schools in the city; (14) knowing whether teaching

hospitals are in the city; and (15) knowing information about colleges and universities in

the city.

       Defendants’ reading of Mabon is misplaced. The court in Mabon did not suggest

that the above items are required to establish familiarity with the standard of care.

Indeed, defendants’ list is taken from the court’s discussion of the plaintiff’s proposed

expert’s deposition testimony where he was cross-examined as to each of these items of

his knowledge and he eventually admitted to not having knowledge of the relevant

medical community. Furthermore, in Mabon, the plaintiff’s expert testified that his

opinion was based on a national standard of care, which was the crux of the court of

appeals’ decision affirming the district court’s exclusion of his testimony. The case did

not turn on the expert’s failure to confirm his knowledge to a predetermined set of facts.

       Plaintiff cites Hunter v. Ura, 163 S.W.3d 686 (Tenn. 2005), in which the

Tennessee Supreme Court considered whether a plaintiff’s expert physician satisfied the

locality rule and was properly allowed to testify at trial. The court held that the expert

was qualified, explaining:

       Dr. Witt was a board-certified anesthesiologist who had practiced in Lexington,
       Kentucky since 1980. Dr. Witt testified that he was involved with the Academic
       Association of Anesthesia Program Directors, which was an organization “with
       people from Vanderbilt, from Lexington, and the surrounding area.” Dr. Witt had
       attended a meeting of the Southern University Department of Anesthesia Chairs at
       Vanderbilt in Nashville, Tennessee. Dr. Witt stated that he had been to Nashville
       six or seven times, that he knew the Chair at Vanderbilt's anesthesia department
       very well, and that he was “familiar, in a regional setting, [with] the general kinds

                                              9
       of care offered [ ] in Lexington as well as in Nashville.” Dr. Witt discussed several
       hospitals in Nashville and stated that the standard of professional care in this case
       “would be approximately the same as what we would see at some of the hospitals
       where I have been in Nashville.”

Id. at 708.

       Finally, in Sommer v. Davis, 317 F.3d 686 (6th Cir. 2003), a panel of this Court

considered Tennessee’s locality rule and held that the district court did not abuse its

discretion in striking a plaintiff’s proposed expert’s testimony following a hearing and

sua sponte granting summary judgment to defendant. In Sommer, the panel noted that the

physician’s acknowledgment that he did not “know any of the characteristics of the

Nashville medical community” at the time of plaintiff’s surgery pointed in favor of not

finding an abuse of discretion. Id. at 695.

                                              b.

       Turning to this case, plaintiff submitted an affidavit and supplemental affidavit of

Dr. Allen. Plaintiff also submitted Dr. Allen’s credentials and his curriculum vitae.

Attached to the supplemental affidavit was Dr. Allen’s Rule 26 report. As to his

familiarity with the standard of care, Dr. Allen stated that he was familiar both with the

standard of care in Nashville, Tennessee and in Louisville, Kentucky, which he stated was

a similar community to Nashville. His Rule 26 report states in part:

              My practice is in Louisville, Kentucky. Louisville has a medical
       community that is very similar to the medical community in Nashville,
       Tennessee. While Louisville is smaller than Nashville, both cities have
       multiple hospitals, both have respected medical schools, and doctors in the
       both communities have equal access to medical educational opportunities,

                                              10
       state of the art medical equipment, consulting and proctoring physicians for
       advice and training, and medical information in general. Additionally, there
       are many surgeons in Nashville, Tennessee who perform laparoscopic
       Roux-en-Y gastric bypass procedures and these surgeons follow up as I do
       in Louisville, Kentucky. In short, the doctors in Nashville, Tennessee who
       comply with the standard of care, perform laparoscopic Roux-en-Y gastric
       bypass surgery the same way I do in Louisville, Kentucky. Centennial
       Medical Center, at which Dr. Miller was working at the time he operated on
       Mrs. Scott, has access to the same quality medical equipment that I have at
       Norton Hospital, the hospital where I do the majority of my work. In
       addition to my Kentucky licensure, I am licensed in a number of other states
       - including Tennessee. I have lectured about gastric bypass surgery in
       Nashville to physicians practicing there; and I have proctored numerous
       surgeries in communities similar to Nashville. I am familiar with the
       standard of care in Nashville, Tennessee and similar communities that
       governs the conduct of doctors like Dr. Miller and me when we perform
       Roux-en-Y gastric bypass procedures and provide medical care following
       these procedures.

       The district court granted summary judgment to defendants upon finding that Dr.

Allen’s affidavit failed to comply with the locality rule. The district court stated:

              Dr. Allen’s affidavit lacks a sufficient factual showing of his
       knowledge of the recognized standard of acceptable professional practice in
       Nashville or a medical community similar to Nashville. Dr. Allens’s [sic]
       affidavit is also too conclusory to establish his familiarity with this
       particular speciality. Dr. Allen makes the conclusory statement that
       “doctors in both communities have equal access to ... state of the art
       equipment, consulting and proctoring physicians for advice and training and
       medical information in general.” Dr. Allen, however, does not provide any
       knowledge of “state of the art equipment” for this practice in Nashville. Dr.
       Allen does not state that he has performed surgeries or supervised surgeries
       in Nashville, nor does Dr. Allen identify these “similar communities” where
       he has proctored surgeries.
              To comply with Tennessee law, Plaintiff’s expert must offer more
       specific facts of his knowledge [sic] the identity of the relevant physicians
       in the Nashville area and their methods and practices of surgeons in
       Nashville during the relevant time period. Without such facts or data, the
       Court cannot conclude whether there is a sufficient predicate to establish

                                              11
       the relevant community standard under Tennessee law. Dr. Allen’s
       affidavit describes a regional or international standard of care and such a
       standard does not meet the requirements of Tenn. Code Ann. § 29-26-
       115(a)(1).
               For these reasons, the Court concludes that Dr. Allen is not a
       qualified expert under Tennessee law and without a qualified expert, the
       Plaintiff’s proof fails to support a judgment on his claims. Thus, the
       Defendants’ motion for summary judgment should be granted.

JA at p. 164-65.

       We disagree with the district court’s interpretation of Dr. Allen’s knowledge of the

standard of care. Dr. Allen states he is a board certified surgeon with extensive

experience in performing, proctoring, and lecturing about gastric bypass procedures. He

travels in the Southeastern United States where he comes into contact with physicians

from Nashville. He states he is familiar with the standard of care in Nashville and notes

the similarities between Nashville and Louisville in terms of having multiple hospitals,

respected medical schools, access to medical information, state of the art equipment, and

consulting physicians. In our view, this evidence is sufficient to satisfy the locality rule

under Tennessee law. Contrary to the district court’s interpretation, we do not find that

Tennessee law, as set forth above, imposes specific requirements such as identifying what

“state of the art equipment” exists in Nashville. While in order to satisfy the locality rule,

a medical expert must offer “facts” to support his or her knowledge of the standard of

care, Dr. Allen’s supplemental affidavit did set forth such facts. This is not a case where

the expert is wholly unfamiliar with the locality where the defendant-physician practices

or fails to explain a similar community. In other words, it is a case like Hunter, not

                                              12
Kenyon, Mabon, or Sommers. Dr. Allen expressed knowledge of the Nashville standard

of care and the standard of care in a similar community (Louisville) in sufficient detail in

his affidavits and Rule 26 Report. We find that Dr. Allen’s supplemental affidavit

satisfies the requirements of the locality rule under Tenn. Code Ann. § 29-26-115(a)(1).

As such, plaintiff provided evidence sufficient to survive summary judgment. See Wilson

v. Patterson, 73 S.W.3d 95, 105 (Tenn. Ct. App. 2001) (holding that the expert’s

statement that “the Lexington, Kentucky area is a similar area to Memphis, Tennessee

with regard to the standard of care of acceptable professional medical practice in the field

of obstetrics and gynecology and in regard to the medical services provided in this area.

Both Lexington, Kentucky and Memphis, Tennessee are regional medical centers and are

the locations of their state medical schools” although meager, was sufficient to withstand

summary judgment).

                                             B.

       The next issue on appeal is the district court’s denial of defendants’ motion to

permit discovery depositions which is reviewed for an abuse of discretion. See Coleman

v. American Red Cross, 23 F.3d 1091 (6th Cir. 1994). In light of finding that the district

court erred in granting summary judgment to defendants, we believe the better course is

to remand the matter to the district court to consider whether, notwithstanding the local

rule to the contrary, expert depositions are appropriate under the circumstances.




                                             13
                                         III.

      For the reasons stated above, the decision of the district court is REVERSED and

the case is REMANDED for further proceedings consistent with this opinion.




                                          14
       ALICE M. BATCHELDER, Circuit Judge, concurring. I agree with the lead

opinion that we must reverse the district court’s grant of summary judgment and

remand the case for further proceedings; however, I disagree with its reasoning in

reaching this result. Specifically, I object to the opinion’s finding that the evidence

provided in Dr. Allen’s affidavit satisfied Tennessee’s locality rule for medical experts.

See Tenn. Code Ann. § 29-26-115(a)(1).

       Tennessee’s locality rule requires a medical expert witness to show either that

(1) she practices in the same community as the defendant or (2) she practices in a

community similar to that in which the defendant practices. Id. Dr. Allen’s affidavit is

insufficient to show that he is familiar with the standard of care in Nashville, Tennessee,

where Dr. Miller practiced. While he states that he has lectured in Nashville and has

read articles written by Nashville physicians, he does not provide any detail of these

educational endeavors or indicate how these experiences demonstrate his knowledge

of the standard of care in Nashville. Moreover, Dr. Allen’s statements do not establish

that Louisville, Kentucky -- the community in which he practices -- is similar to Nashville,

Tennessee. While he states that both cities have multiple hospitals, respected medical

schools, and equal access to medical information and equipment, he fails to support

these generalized statements with statistics, and such bald assertions are insufficient to

satisfy the locality rule. See, e.g., Bravo v. Sumner Reg’l Health Sys., Inc., 148 S.W.3d

357, 368-69 (Tenn. Ct. App. 2003) (finding that the locality rule was satisfied where the

medical expert produced statistical evidence establishing the similarity between two

cities). As interpreted by Tennessee courts, the locality rule sets a more exacting



                                             15
evidentiary standard than was satisfied by Dr. Allen’s affidavit in this case. See Roberts

v. Bicknell, 73 S.W.3d 106, 113 (Tenn. Ct. App. 2001) (noting that an expert must do

more than recite the language of the statute to show familiarity with a similar

community). Consequently, I cannot agree with my colleagues that the locality rule was

satisfied in this case.

       While I would not find that Dr. Allen’s affidavit standing alone was sufficient to

satisfy the locality rule, I would certainly conclude that it contained enough evidence to

create a genuine issue of material fact on the issues of whether he was familiar with the

standard of care in Nashville and whether Louisville was a community similar to

Nashville. See, e.g., Wilson v. Patterson, 73 S.W.3d 95, 105 (Tenn. Ct. App. 2001)

(finding that “meager” evidence which demonstrated the similarity between two cities

was “sufficient to withstand attack at the summary judgment stage of the proceeding”).

The affidavit was thus sufficient to survive a motion for summary judgment, and the

district court erred in granting the defendants’ motion. The generalized statements in

Dr. Allen’s affidavit could have been further developed during his deposition or trial

testimony, and the parties should have been afforded this opportunity.

       I also disagree with the lead opinion’s implicit conclusion that Local Rule 12 of

the United States District Court for the Middle District of Tennessee permits the district

court to preclude the taking of depositions of medical experts. Under that rule, the

judge “may require that the direct testimony of an expert witness, other than a medical

expert, be reduced to writing” and “read . . . to the trier of facts.” M.D. TENN . LOC . R.

12(c)(6)(C). The express language of this rule exempts medical experts from its



                                              16
requirements. I therefore would hold that the district court erred in applying Local Rule

12(c)(6)(C) to prohibit the defendants’ deposition of Dr. Allen.

       Despite disagreeing with the analysis of the lead opinion, I concur in the

opinion’s conclusion that the district court’s grant of summary judgment should be

reversed and the case remanded for further proceedings.




                                            17
