                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                         July 27, 2010 Session

             TINA JOHNSON, ET AL. v. DAVID J. RICHARDSON, M.D.

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-003760-01 Karen R. Williams, Judge


                    No. W2009-02626-COA-R3-CV - Filed August 12, 2010




This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court’s
disqualification of her expert witness and grant of the Defendant/Appellee’s motion for
directed verdict. Finding that the Appellant failed to show that her expert was familiar with
the standard of care in a community similar to the defendant’s community, we affirm the
decision of the trial court.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
joined and H OLLY M. K IRBY, J., filed a concurring opinion.

Al H. Thomas and Kenneth R. Besser, Memphis, Tennessee, for the appellants, Tina
Johnson, Regina Salinas and Jennifer Norton o/b/o Mary A. French.

Joseph M. Clark and Michael E. Keeney, Memphis, Tennessee, for the appellee, David J.
Richardson, M.D.

                                                OPINION




      This case began on June 19, 2001 when the Appellant, Mary A. French (“Ms.
French”) filed her complaint against the Appellee, David J. Richardson, M.D. (“Dr.
Richardson”).1 Ms. French alleged that Dr. Richardson was negligent in treating her in the


       1
           Ms. French also named other parties as defendants to this lawsuit. However, those defendants were
                                                                                               (continued...)
Emergency Room of Baptist Memorial Hospital East in Memphis, Tennessee on December
8, 1999. 2 Thereafter, litigation ensued. The deposition of Charles W. Sheppard, M.D. (“Dr.
Sheppard”), Ms. French’s expert, was taken on February 22, 2006.3 Dr. Shepard practices
emergency medicine in Springfield, Missouri.

        The trial in this case began in November 2009. During the trial, Ms. French played
the video-taped deposition of Dr. Sheppard to the jury. At some point thereafter, Dr.
Richardson objected to Dr. Sheppard’s qualifications as an expert and moved for a directed
verdict.4 The parties argued and briefed the issue. On December 3, 2009, after hearing
argument and considering the law, the trial court held that Ms. French had not shown that Dr.
Sheppard was familiar with the standard of care in Memphis or a similar community. As
stated in its order, the trial court found that while Dr. Sheppard “testified regarding various
facts about Memphis, he generally failed to show how Springfield was similar.” Further, the
trial court found that “[w]ith respect to some of the facts, Dr. Sheppard’s testimony was
questionable.” Because Ms. French had not met her burden in showing the communities
were similar, the trial court disqualified Dr. Sheppard as an expert. The trial court then
granted Dr. Richardson’s motion for a directed verdict as Ms. French lacked expert proof.
On December 7, 2009, the trial court entered an order reflecting these decisions.

        Ms. French filed a notice of appeal on December 4, 2009.5 From Ms. French’s brief,


        1
          (...continued)
subsequently dismissed and are not subject to this appeal. Further, during the course of the proceedings in
the trial court, Ms. French passed away and her daughters were substituted as plaintiffs on behalf of their
mother. For purposes of clarity, we will continue to refer to Ms. French as the Plaintiff/Appellant.
        2
          We note that the record shows that the complaint was filed on June 19, 2001. Ms. French’s brief
asserts that the complaint was filed originally on April 5, 2000. Neither party disputes these dates, nor
explains the discrepancies. We are limited to the record before us. Less than the full record was designated
on appeal by consent of the parties pursuant to Tenn. R. App. P. 24.
        3
        The transcript of this deposition indicates that a discovery deposition was taken prior to the
February 2006 deposition.
        4
         It is not clear from the record at what point during the trial Dr. Richardson moved to disqualify Dr.
Sheppard and moved for directed verdict. According to Ms. French’s brief, Dr. Richardson so moved at the
conclusion of the viewing of the video-taped deposition. According to Dr. Richardson’s brief, he moved at
the conclusion of Ms. French’s proof. Neither party disputes the other’s assertion. These may be one and
the same, but this Court cannot determine that from the contents of the record.
        5
        We note that the notice of appeal was filed early. However, Tenn. R. App. P. 4(d) provides that “[a]
prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the
                                                                                               (continued...)

                                                     -2-
we surmise two issues that she submits for our review: (1) whether the trial court erred in
disqualifying Dr. Sheppard, and (2) whether the trial court erred in granting Dr. Richardson’s
motion for a directed verdict.

                                            Analysis

       The trial court has broad discretion in determining the “admissibility, qualifications,
relevancy and competency of expert testimony.” McDaniel v. CSX Transp., Inc., 955
S.W.2d 257, 263 (Tenn. 1997). We review a trial court’s decision regarding expert witness
competency and qualifications under an abuse of discretion standard. Taylor ex rel. Gneiwek
v. Jackson-Madison County Gen. Hosp. Dist., 231 S.W.3d 361, 371 (Tenn. Ct. App. 2006).
A trial court abuses its discretion when it has applied an incorrect legal standard or has
reached a decision which is against logic or reasoning that caused an injustice to the party
complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). The trial court’s
decision “will be upheld so long as reasonable minds can disagree as to the propriety of the
decision.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).


      The requirements to establish a claim for medical malpractice are found in Tenn. Code
Ann. § 29-26-115(a), which provides:

                (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 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 act or
                omission, the plaintiff suffered injuries which would not
                otherwise have occurred.

                        5
                         (...continued)
appeal is taken and on the day thereof.”

                                               -3-
This statute requires proof of the standard of care in the community in which the defendant
practiced at the time of the injury or proof of the standard of care in a similar community.
This is known as the locality rule. Robinson v. LeCorps, 83 S.W. 3d 718, 723 (Tenn. 2002).
Pursuant to Tenn. Code Ann. § 29-26-115(b) the standard of care must be proven through
expert testimony.6 There are two ways to meet this requirement. First, the expert may
demonstrate that he is familiar with the standard of care of the defendant’s community at the
time of the alleged injury. Second, the expert may demonstrate that he is familiar with the
standard of care of a community similar to the defendant’s community. If the plaintiff is
attempting to prove the standard of care under the second option, that is, that the expert is
familiar with the standard of care in a similar community, the similar community, must be
“shown to be similar to the defendant’s community.” Id. at 724 (emphasis original); see also
 Mabon v. Jackson-Madison County General Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App.
1997)(“ A plaintiff who chooses to prove the standard of care in a similar community must
prove that community is similar to the one in which the defendant practices.”)


        “Establishing the similarities in communities is as much a part of the burden of proof
under the locality rule as is establishing that the witness practices in a contiguous state.”
Carpenter v. Klepper, 205 S.W.3d 474, 483 (Tenn. Ct. App. 2006)(citing Bravo v. Sumner
Reg’l Health Sys., Inc., 148 S.W.3d 357, 368-69 (Tenn. Ct. App. 2003)). This burden may
be met by comparing factors between the similar community and the community where the
alleged malpractice occurred; such as the populations of the communities, the proximity to
a teaching hospital, medical facilities, medical specialities, and the literature and training
available. See Taylor ex rel. Gneiwek v. Jackson-Madison County General Hosp. Dist. et
al, 231 S.W.3d 361, 369-71 (Tenn. Ct. App. 2006); Travis v. Ferraraccio et al, No. M2003-
00916-COA-CV, 2005 WL 2277589, at *11 (Tenn. Ct. App. Sept. 19, 2005)(citations
omitted); Grisham v. McLaughlin, No. M2008-00393-COA-R3-CV, 2009 WL 275667, at
*3 (Tenn. Ct. App. Feb 4, 2009). The expert must “‘connect the dots’ between the standard
in that community and the community where the alleged malpractice occurred.” Farley v.
Oak Ridge Medical Imaging, P.C., No. E2008-01731-COA-R3-CV, 2009 WL 2474742, at
*11 (Tenn. Ct. App. Aug. 13, 2009). The expert need not know all of the medical statistics
about a particular community. Taylor, 231 S.W.3d at 366. However, the expert may not
simply make vague assertions about similarities between the communities. Grisham, 2009
WL 275667 at *3 (holding that the expert did not meet the locality requirement when he


        6
         There is an exception to the requirement for expert proof when the “alleged acts of negligence are
so obvious that they come within the common knowledge of laymen.” Kennedy v. Holder, 1 S.W.3d 670,
672 (Tenn. Ct. App. 1999). However, in this case, no one has alleged nor do we find that this exception is
applicable.

                                                   -4-
stated that Nashville and Cape Girardeau were similar communities and supported his
assertion by testifying that both communities have numerous physicians who practice in
orthopedics and orthopedic surgery- the speciality at issue, both have multiple hospitals, and
both have specialists in all major fields of medicine).


        In this case, the expert, Dr. Sheppard, testified that he was an emergency room doctor
at St. John’s Regional Hospital in Springfield, Missouri. He testified that he was licensed
in Missouri, California, Massachusetts, Ohio, and New York. He further testified about St.
John’s Hospital, explaining that it was a seven hundred bed hospital, which provides
community tertiary care and treats about seventy-five thousand patients a year. In testifying
about his familiarity with the standard of care, Dr Sheppard testified as follows:


              Q (Ms. French’s counsel): In your opinion, are you familiar with
              the standard of care for emergency room physicians and
              emergency room personnel of a hospital in treating a patient
              such as Ms. French when she presented in November and
              December of 1999 and for the year preceding that time in 1998
              in Memphis, Tennessee, or, or in a similar medical community?


              A (Dr. Sheppard): Yes, sir.


              Q: Have you ever practiced in Memphis?


              A: No, sir.


              Q: In what city are you familiar with the standard of care that,
              in your opinion, is similar to the medical community of
              Memphis?


              A: Springfield is a, I think, a very similar medical community to
              Memphis.


              Q: Well, tell us what you know about the medical community of
              Memphis.


                                             -5-
A: Well. Memphis is a pretty decent medical center. It’s got St.
Jude’s Hospital, which of course, is famous, and we send
patients there all the time and get patients back from there all the
time. It’s got two big hospitals, the Baptist and The Med. It’s
a - - it’s got the university medical school there, and is fairly
well-known teaching center. It’s got a big trauma center; it’s
got a burn center much like Springfield. I mean, we have the
same sort of medical specialties, the same sort of stuff that’s in
Springfield. Baptist and The Med are both like St. John’s in that
we’ve got - - both of us have off campus - - what I call off
campus; that is, we’ve got St. John’s and then we’ve got
multiple outlying hospitals. Ours are a little further out than - -
than Memphis, and we’ve got them as far away as Lebanon, but
- - but similar kind of design as to - - the health care system.


Q: Doctor, have you had occasions to see records from Memphis
hospital and doctors’ offices?


A: Yes. Sir. I’ve reviewed multiple cases from Memphis and
from Tennessee. And, of course, that’s another good way to see
what kind of care is done in a community, and it - - I mean, it - -
again, it’s very similar to the sorts of things that we do here.


Q: Well, are all the medical specialties done in the various
hospitals and clinics here in Springfield?


A: Yes. The only thing we don’t have in Springfield is a
transplant service.


Q: What’s the population of Springfield?


A: It’s about 800,000.


Q: Is that the city proper or - -



                                -6-
              A: Yeah, that’s the city - - that’s the city proper. Our - - our
              drawing area, again, much like Memphis, we pull from all the
              surrounding area. We probably pull from a population of close
              to two million.


On cross examination, Dr. Sheppard admitted that he had never practiced in Tennessee, had
never been to a hospital in Tennessee; never treated, examined or prescribed medicine for
a patient in Tennessee; and does not know any doctors in Tennessee. Further, upon moving
to disqualify, Dr. Richardson provided the trial court with United States census records which
showed that in 1999 Springfield’s population was 42,669 while in Memphis the population
was 606,109; and in 2006 Springfield’s population was 153,449, while the population of
Memphis was 676,548.


       Dr. Sheppard did not assert that he was familiar with the standard of care in Memphis,
the defendant’s community. Accordingly, we will review the record to determine if Dr.
Sheppard demonstrated (1) that he was familiar with the standard of care in a community
similar to the defendant’s community, Memphis; and (2) that the two communities were
similar.


        After thoroughly reviewing the record, we find that Ms. French has not demonstrated
that the trial court abused its discretion in disqualifying Dr. Sheppard as an expert. While
Dr. Sheppard did present information about the medical community in Memphis, he failed
to sufficiently compare Memphis to the community in which he was familiar, Springfield.
The only comparisons Dr. Sheppard provided to the trial court were the population of the two
communities, that both had the same medical specialities, and that both had outlying
hospitals. As to population, it was demonstrated that Dr. Sheppard was simply incorrect and
that the population of the two communities was anything but similar. Moreover, Dr.
Sheppard’s statement that both communities have the same medical specialities is even more
vague than the testimony held to be vague and therefore insufficient in Grisham. In
Grisham, the expert at issue testified that both communities had orthopedic and orthopedic
surgery specialists and the malpractice alleged was related to a knee replacement. Grisham,
2009 WL 275667 at *3. In this case, Dr. Sheppard did not attempt to relate the medical
specialities available in the communities to this case, but simply made the vague assertion
that both had the same medical specialities. Finally, the mere fact that both communities had
outlying hospitals is insufficient on its own to establish that the two communities were
similar.




                                             -7-
         In her brief, Ms. French asserts that Dr. Sheppard provided the same explanation for
his familiarity with a similar community as did Dr. Uhrig, the expert at issue in Stovall v.
Clarke, 113 S.W.3d 715 (Tenn. 2003), which was held to be sufficient by the Tennessee
Supreme Court. We disagree. There are numerous differences between this case and Stovall.
First, and most importantly, in Stovall, Dr. Uhrig testified that he was familiar with the
standard of care in the defendant’s community. Id. at 718. Unlike Dr. Sheppard, he was not
asserting that he was familiar with the standard of care in a similar community and
attempting to demonstrate how the two communities were similar. Second, contrary to Ms.
French’s assertion, in Stovall, Dr. Uhrig did more than simply review several medical
records. Id. at 718-19. Dr. Uhrig provided the Stovall court with a supplemental affidavit
in which he explained that he often treats patients referred from the defendant’s community
for cardiology problems, which was the area of medicine at issue. Id. Dr. Uhrig also
testified that in addition to reviewing over twenty medical charts, that he had testified in three
medical malpractice cases in middle Tennessee and had reviewed other information about
the defendant’s community, including a statement by the hospital’s CEO, population
information for the defendant’s community, a list of the medical specialties available in the
defendant’s community, the number of beds in the defendant’s hospital, the number of
doctors on staff, and other statistical data about the defendant’s hospital and community. Id.
at 718-19, n.2. Based on all of this combined information, the Supreme Court found that Dr.
Uhrig demonstrated that he was familiar with the local standard of care. Id. at 723.
Accordingly, Ms. French’s assertion that the Supreme Court allowed the expert’s testimony
based upon the fact that the expert merely reviewed twenty medical records from Tennessee
is not correct. Third, in Stovall, Dr. Uhrig explained in detail the medical records reviewed
and the knowledge gained. Dr. Uhrig explained that he reviewed over twenty medical
records from Tennessee and that his review of “‘medical records and depositions’”
demonstrated that the defendant’s deviated from the standard of care. Id. at 718. To the
contrary in this case, Dr. Sheppard, merely stated that he had reviewed “multiple” medical
records from Tennessee. He did not offer any explanation as to the number of medical
records, the content of the medical records, or the information he gained from reviewing the
medical records. Moreover, as noted by the Supreme Court, the issue in Stovall revolved
around whether the plaintiff’s expert had presented sufficient information to overcome the
defendant’s motion for summary judgment. Id. at 723. At that stage, the plaintiff need only
create a question of material fact and once done, has the opportunity at trial to meet his
burden of proof under Tenn. Code Ann. §29-26-115. Id. However, in this case, we are not
examining a motion for summary judgment, but reviewing Ms. French’s evidence presented
at trial. For the foregoing reasons, we do not find the situation in Stovall to be similar to this
case.


       Ms. French also asserts, relying on Travis v. Ferraraccio, No. M2003-00916-COA-


                                               -8-
R3-CV, 2005 WL 2277589 (Tenn. Ct. App. Sept. 19, 2005), that the trial court impermissibly
invaded the province of the trier of fact by making the determination that Dr. Sheppard failed
to demonstrate that the two communities were similar, as the question of whether the two
communities are similar is a question of fact for the jury. We disagree. In Travis, this Court
reviewed the trial court’s findings that neither of the plaintiff’s experts had demonstrated the
community in which they were familiar with the standard of care was similar to the
defendant’s community. Id. In Travis, the trial court was ruling on the defendant’s motion
for summary judgment, and after disqualifying both of the plaintiff’s experts, the trial court
granted the motion for summary judgment. Id. at 2-3.


        In Travis, we reviewed the disqualification of the two experts separately. Id. at *6.
At his deposition, the first expert in Travis, could not explain his assertion that he believed
certain communities were similar to the defendant’s community. Id. at *7. After the trial
court granted summary judgment, the plaintiff in Travis filed a motion to alter or amend and
attached an affidavit from the first expert. Id. This affidavit stated that based upon
demographic data of Dalton, Georgia, the expert had concluded that Dalton was similar to
the defendant’s community. Id. at *8. However, the affidavit did not state that the expert
applied the standard of care of Dalton when reviewing that case. Id. We upheld the
exclusion of the first expert at issue, finding that the trial court did not err in determining that
the first expert’s testimony was inadmissible. Id. at *8.


        After reviewing the second expert’s affidavit, we reversed the trial court’s exclusion
of the expert. Id. *9-12. At his deposition, the second expert testified to a national standard
of care and further stated that there was only one community, other than Kansas City,
Missouri, with which he was familiar with the standard of care, that being Clinton, Missouri.
Id. at *9. In response to the defendant’s motion for summary judgment, the plaintiff
provided an affidavit from the second expert. This affidavit asserted that the expert was also
familiar with the standard of care of St. Joseph, Missouri, which he asserted was similar to
the defendant’s community. Id. at *10. After the trial court granted summary judgment, the
plaintiff filed a second affidavit from the expert attempting to bolster his assertion that the
communities were similar. Id. The expert stated that he had received referrals from St.
Joseph, had attended medical seminars and meetings where the standard of care in St. Joseph
was discussed, and attached two exhibits with demographic data to support his assertion. Id.
at *11. The first exhibit provided population information for the defendant’s community in
1996, along with information about the medical community including the number of
hospitals, beds, and physicians. Id. at n.11. The second exhibit provided information for
St. Joseph, including its population in 2000, its location with respect to major metropolitan
areas, community resources, the number of hospitals, physicians, and other medical
professionals, and described the specialty practices and resources at the hospital. Id. The

                                                -9-
trial court excluded the second expert for two reasons: (1) the expert admitted that he was not
familiar with the standard of care in the defendant’s community; and (2) because the data
upon which he relied to show the communities were similar was from 2000, rather than 1996
when the alleged malpractice occurred, and therefore his testimony was “inherently
unreliable.” Id. at *10. This court held that the first reason provided by the trial court was
error as Tenn. Code. Ann. §29-26-115(a)(1) allowed the expert to be familiar with the
standard of care in a community shown to be similar to the defendants. Id. at *11. This court
also held that the second reason was error. Id. at *12. As stated by this Court, “the small
temporal difference between the statistics for [the defendant’s community] and the statistics
for St. Joseph does not represent the sort of ‘analytical gap’ that would justify the exclusion
of [the expert’s] testimony at the stage of the process where the trial court is determining
admissibility alone.” Id. (citations omitted). Further, this Court held that the expert had
“connected the dots” between the two communities and that the “temporal differences” only
tested the weight and credibility to be given to the testimony, which decision rested with the
trier of fact. Id. Accordingly, we reversed the trial court’s exclusion of the second expert
and its grant of summary judgment.


        Contrary to Ms. French’s assertion, we did not hold in Travis that the decision of
whether the plaintiff had proven the similarity of the communities compared by the expert
lies solely with the trier of fact. As explicitly stated in Travis, the trial court must first
determine whether the expert testimony is admissible, which like all other evidentiary
decisions, rests within the discretion of the trial judge. Id. at 5-6.


              In order for an expert opinion to be admissible in a medical
              malpractice case, the person offering the opinion must, like any
              other expert, demonstrate that he or she is qualified to render an
              opinion and that his or her opinion will substantially assist the
              trier of fact. In addition to these general requirements, a person
              offering an expert opinion in a medical malpractice case must
              demonstrate that he or she satisfies certain geographic and
              durational residency requirements and that he or she practices in
              a profession or specialty that makes the expert's opinion relevant
              to the issues in the case.


Id. at *13-14. After the trial court determines that the testimony is admissible, the weight
and credibility to be given to the testimony lies with the trier of fact. Id. at *5.

       In this case, the trial court properly found that Dr. Sheppard’s testimony was

                                             -10-
inadmissible. As discussed above, unlike the second expert in Travis, Dr. Sheppard’s
testimony contained an “analytical gap” and was devoid of anything “connecting the dots”
between Memphis and Springfield. Consequently, there was not anything from which the
jury could weigh the evidence and find that the two communities were similar. Therefore,
the trial court properly acted as a “gatekeeper” and excluded Dr. Sheppard’s testimony.

       Ms. French also points out in her brief that Dr. Sheppard testified to a “universal
standard” of care. However, any assertion that proof of a “universal” or even national or
statewide standard of care would be sufficient under Tenn. Code Ann. § 29-26-115 is without
merit. Allen v. Methodist Healthcare Memphis Hosps., 237 S.W.3d 296 (Tenn. Ct. App.
2007). Our Supreme Court has consistently held, while urging legislative change, that proof
of a national standard of care is insufficient. See e.g. Robinson, 83 S.W.3d at 723-24.7 We
note that in Stovall, the expert did testify to a national standard of care. However, as
explained by our Supreme Court, the expert explained his familiarity with the “locality rule”
and testified that he applied the locality standard and not a national standard. Stovall, 113
S.W.3d at 723. Consequently, any testimony by Dr. Sheppard as to a national or “universal”
standard of care is of no consequence.

       Dr. Sheppard failed to establish that the standard of care of the community which he
was familiar with, Springfield, Missouri, was similar to Memphis, the defendant’s
community. Consequently, we cannot find that the trial court abused its discretion in
disqualifying Dr. Sheppard as an expert witness.

        Ms. French also contends that the trial court erred in granting Dr. Richardson’s motion
for a directed verdict. We disagree. A trial court's decision to grant a motion for directed
verdict involves a question of law. Underwood v. HCA Health Servs. of Tennessee, Inc.,
892 S.W.2d 423, 425 (Tenn. Ct. App. 1994). A trial court may only grant a motion for
directed verdict upon finding that reasonable minds can only reach one conclusion. Gatson
v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). On appeal, we apply
the same standard used by the trial court when ruling on the motion initially. United Brake
Sys., Inc. v. Am. Envtl. Prot., Inc., 963 S.W.2d 749, 754 (Tenn. Ct. App. 1997).

        As discussed above, Ms. French was required to present expert testimony establishing
the standard of care in the defendant’s community or a similar community. Tenn. Code Ann.
§ 29-26-115(a)(1). When the trial court disqualified Dr. Sheppard, Ms. French was left with


        7
         In Robinson, our Supreme Court upheld the rule that a national standard of care was insufficient
under the statute. However, the Robinson court, followed its previous opinions and noted that there may be
a “modern trend” towards a national standard of care, but explained that the statutory language does not
support such an interpretation. Robinson, 83 S.W.3d at 723-24.

                                                  -11-
no expert, and therefore would not be able to establish a claim for medical malpractice.
Finding that Ms. French lacked expert proof, the trial court granted Dr. Richardson’s motion
for directed verdict.

        Ms. French submits that this was error in part because the deposition of Dr. Sheppard
was taken approximately three years prior, and Dr. Richardson’s motion was a “last minute
‘Hail Mary’ motion.” Whether Dr. Richardson delayed in challenging Dr. Sheppard, is
irrelevant to the trial court’s decision on the motion for a directed verdict. We have not been
presented with a scheduling order that required Dr. Richardson to challenge the qualifications
of Dr. Sheppard pretrial. We also have not been cited to any legal authority that would
require Dr. Richardson to challenge Dr. Sheppard’s qualifications prior to his testimony at
trial. Further, we have been provided with only a portion of the trial transcript and are unable
to determine at what point during the trial Dr. Richardson challenged Dr. Sheppard’s
qualifications.8 The trial court had no option but to grant a directed verdict, as Ms. French
had failed to meet the requirements of Tenn. Code Ann. § 29-26-115 and therefore would not
be able to establish a claim for medical malpractice. Therefore, we find that the trial court
did not err in granting Dr. Richardson’s motion for directed verdict.

       For the foregoing reasons, we affirm the decision of the trial court. Costs of this
appeal are taxed to the Appellants, Tina Johnson, Regina Salinas and Jennifer Norton o/b/o
Mary A. French, and their surety.




                                                           _________________________________
                                                           J. STEVEN STAFFORD, JUDGE




        8
           Pursuant to Tenn. R. App. P. 24(a), the Appellant requested that less than the full record be
submitted in this appeal. In accordance with the Rules of Appellate Procedure, the Appellant listed the parts
of the record she believed necessary to convey a “fair, accurate and complete account of what transpired”
in the trial court. Tenn. R. App. P. 24(a). The Appellee consented to the Appellant’s request to submit less
than the full record. All of the items provided in the Appellant’s Rule 24 notice were submitted in the record
to this Court.

                                                    -12-
