MATTHEW SEFFERNICK,                )
                                   )
      Plaintiff/Appellant,         )
                                   )     Davidson Circuit
                                   )     No. 93C-1800
VS.                                )
                                   )     Appeal No.
                                   )     01-A-01-9606-CV-00282
SAINT THOMAS HOSPITAL AND          )
BARRY E. YARBROUGH, M.D.,          )

Defendants/Appellees.
                                   )
                                   )                        FILED
                                                            December 18, 1996
                  IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                       MIDDLE SECTION AT NASHVILLE    Appellate Court Clerk


        APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE


                 HONORABLE THOMAS W. BROTHERS, JUDGE




GILBERT & FAULKNER
Roger L. Gilbert, #11499
Two Centre Square, Suite 625
625 Gay Street
Knoxville, TN 37902
ATTORNEY FOR PLAINTIFF/APPELLANT


GIDEON & WISEMAN
C. J. Gideon, Jr., #6034
Suite 1900
NationsBank Plaza
Nashville, TN 37219-1782
ATTORNEY FOR DEFENDANTS/APPELLEES


                    REVERSED, VACATED AND REMANDED


                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS
BEN H. CANTRELL, JUDGE
MATTHEW SEFFERNICK,                            )
                                               )
       Plaintiff/Appellant,                    )
                                               )       Davidson Circuit
                                               )       No. 93C-1800
VS.                                            )
                                               )       Appeal No.
                                               )       01-A-01-9606-CV-00282
SAINT THOMAS HOSPITAL AND                      )
BARRY E. YARBROUGH, M.D.,                      )
                                               )
Defendants/Appellees.                          )



                                        OPINION


       The captioned plaintiff has appealed from a summary judgment dismissing his

malpractice suit against the captioned defendants.



       Appellant presents the following issues:

               A.     Whether the Trial Court correctly granted the
               defendants’ motion to strike the testimony of Winston
               Hall Worthington, M.D. and motion for summary
               judgment.

               B.      Whether the Trial Court correctly held that the
               testimony of Winston Hall Worthington fails to satisfy
               the legal requirements to prove causation.

               C.      Whether the Trial Court correctly awarded
               discretionary costs to the defendants.



       The complaint alleges that plaintiff sought treatment at the emergency room of the

defendant hospital; that he was treated by the defendant physician and released; that, as a result

of negligent treatment, severe complications ensued, including loss of vision in the affected eye.



       The defendants filed a motion for summary judgment supported by the affidavit of the

defendant physician detailing the nature of the injury, the treatment administered and instructions

given, and asserting that his care and treatment of plaintiff conformed with the accepted




                                               -2-
standards of professional practice in the specialty of emergency and that no act or omission of

the affiant caused the complications stated in the complaint.



       In addition to his own affidavit of the facts, plaintiff filed the affidavit of Winston Hall

Worthington, M.D., which stated that he had reviewed the medical records of the treatment of

plaintiff, and that said treatment fell below the standards of care in Nashville, Tennessee.



       On November 16, 1993, the Trial Judge overruled defendants’ motion for summary

judgment.



       On October 19, 1995, defendants filed a Motion to Strike and Motion for Summary

Judgment which read as follows:

               Come the Defendants, Barry Yarbrough, M.D. and St.
               Thomas Hospital, and move the Court to:

               A.       Strike the testimony of Winston Hall Worthington,
               M.D. on the grounds that his testimony is (I) untrustworthy,
               (ii) that he is not an expert, (iii) that his testimony fails to
               meet the legal threshold to establish causation, (iv) that his
               testimony will not substantially assist the jury, and (v) that
               his testimony will be so misleading and confusing to the jury
               that it should be excluded under T.R.E. 403;

               B.      Enter Summary Judgment in favor of the Defendants.

                 In support of this Motion, the defendants file and rely
               upon:

               A.    The deposition testimony of Winston Hall
               Worthington, M.D. in the discovery deposition taken on
               August 30, 1995;

               B.     The deposition testimony of Winston Hall
               Worthington, M.D. in Hutchison v. Huskey and Pilot Oil
               Co., Circuit Court for Knox County, Docket Number 2-220-
               89;

               C.    A certified copy of the Arkansas Medical Board file
               on Winston Hall Worthington, M.D.; and

               D.      A Memorandum Brief.




                                               -3-
       On November 30, 1995, the Trial Court entered an order stating:

                  THIS CAUSE came to be heard before the Honorable
                Thomas W. Brothers on the 17th day of November, 1995
                upon the Motions of the Defendants, Barry Yarbrough,
                M.D. and St. Thomas Hospital, to (A) strike the testimony
                of Winston Hall Worthington, M.D. and (B) to enter
                Summary Judgment in favor of the Defendants.

                   The Motions are well-taken and are granted. The
                testimony of Winston Hall Worthington, M.D. is stricken
                under T.R.Civ.P. 56.05 and T.R.E. 703. The Court finds
                that there is an inadequate factual and scientific basis for
                the testimony of Dr. Worthington, that Dr. Worthington’s
                testimony will not substantially assist the trier of fact, that
                many material aspects of Dr. Worthington’s testimony,
                comparing his affidavit with his August 30, 1995
                deposition testimony, cannot be reconciled, and that Dr.
                Worthington’s opinions are, fundamentally, untrustworthy.
                The testimony is, therefore, stricken.

                  There is no genuine issue as to any material fact, and
                the Defendants are entitled to Summary Judgment in their
                favor as a matter of law.

                   IT IS, THEREFORE, ORDERED that this cause be
                and the same is hereby dismissed with prejudice. Costs
                of this cause are taxed to the plaintiff, and/or his sureties,
                for which let execution issue if necessary.



       Upon appeal from the foregoing order, the plaintiff first argues that the T.R.C.P. contain

no provision for a motion to strike testimony. Although not expressly authorized by any official

rule of evidence or procedure, motions to strike inadmissible evidence are a recognized and

frequently employed device to remove from consideration evidence which has been previously

filed or otherwise presented to the Court. In jury trials, it is accompanied by a request that the

jury be instructed to disregard evidence which has been heard, but is later determined to be

inadmissible.



       In Railway Co., v. Beeler, 90 Tenn. 548, 18 S.W. 391 (1891), a “motion to strike all

evidence in regard to the deed” was disapproved as too general “since some of the evidence is

clearly competent.”




                                                -4-
         In Arp v. Wolfe, Tenn. App. 1962, 354 S.W.2d 799, a motion to strike evidence was

overruled because the offending evidence was elicited by the movant.



         In Creed v. White, 30 Tenn. (11 Humph) 549 (1851), the Court held that illegal or

irrelevant evidence may on motion at any time before the jury retires be excluded from the jury

on motion.



         A motion to strike (or exclude) evidence is firmly established as part of trial practice in

this State. In 88 C.J.S. Trial §§ 133-156 a 36-page article on Motions to Strike evidence is

found.



         Appellant next insists that the rules of evidence make no provision for exclusion of

expert testimony because of the character of the expert.



         T.R.E. Rule 702 states that a qualified expert “may testify in the form of an opinion.”



         T.R.E. Rule 703 states that the Court shall “disallow” expert opinion testimony if the

underlying facts or data indicate a lack of trustworthiness.



         The Trial Judge has wide discretion in the matter of the qualifications of expert

witnesses. Otis v. Cambridge Mut. Fire Ins. Co., Tenn. 1992, 850 S.W.2d 439.



         The qualifications, admissibility, relevancy and competency of expert testimony are

matters which rest within the sound discretion of the Trial Court; such discretion, however, is

not absolute and may be overturned on appeal where the discretion is arbitrarily exercised. State

v. Ballard, Tenn. 1993, 855 S.W.2d 557.




                                                -5-
       No Tennessee authority is cited or found wherein the testimony of an expert was

excluded because of his unsatisfactory character for truthfulness.



       T.R.E. Rule 703 requires rejection of opinion testimony where “the underlying facts or

data indicate lack of trustworthiness.” The obvious meaning of the rule is that an opinion may

be excluded if it is based upon facts which are not adequately shown to be true. Defendants

insist that the disqualifying untrustworthiness extends to and includes untrustworthiness of the

witness who testified as an expert. This Court has some reluctance to adopt this insistence;

however, one qualification of an expert is his reliability both as to training and as to honesty and

candor in expressing his opinion.



       In the present case, the impeachment of the reliability of the opinion of Dr. Worthington

consisted of the following:



        The affidavit of Dr. Worthington (which precipitated the first order overruling

defendant’s motion for summary judgment) stated:

                   I am familiar with the standard of medical care for my
                medical specialty in Nashville, Tennessee. By experience
                and training, I am familiar with the accepted standards of
                professional practice for a physician, practicing the
                specialty of emergency medicine, in the care and treatment
                of a patient like Matthew Seffernick in June of 1992.

                   That I have received the medical records concerning
                Matthew Seffernick from the Saint Thomas Hospital
                emergency room, Ambulatory Care of Tennessee,
                Opthalamic Associates Care Center and John Hoskins, MD.
                I have also reviewed Dr. Yarbrough’s September 24, 1993,
                Affidavit.

                   From my review of these records and this affidavit, it is
                clear to me within a reasonable degree of medical certainty
                that Barry E. Yarbrough, M.D. fell below the standard of
                care in his care and treatment of Matthew Seffernick on
                June 27, 1992, in Nashville, Tennessee. That this deviation
                from the standard of care by Barry E. Yarbrough, M.D.,
                proximately resulted in Mr. Seffernick suffering from
                endopthalimitis of the right eye which resulted in retinal
                detachment surgery and the loss of sight in this eye.



                                                -6-
                  That Barry E. Yarbrough, M.D., specifically deviated
               from the standard of care in his treatment of Mr. Seffernick
               by failing to set Mr. Seffernick an appointment to return
               within 24 hours for an examination to ascertain if there was
               an infection occurring or if the damage to the eye was
               clearing. Had this been done, it would have been obvious
               that Mr. Seffernick sustained an infection. This would
               have allowed for proper care and would have kept Mr.
               Seffernick from sustaining the injury he sustained.

                  That Barry E. Yarbrough, M.D., specifically deviated
               from the standard of care in his treatment of Mr.
               Seffernick by failing to place the patient on Garamycin
               Ointment and patch the eye overnight in which case the
               ointment would have worked longer and provided a more
               continuous coverage over several hours than the solution
               Barry E. Yarbrough, M.D. used. Barry E. Yarbrough,
               M.D. failed to prescribe the use of the solution on an
               every four hour basis until the patient returned for re-
               examination the next day. That if Barry E. Yarbrough,
               M.D., had treated Mr. Seffernick in this fashion, Matthew
               Seffernick would not have suffered the resulting injuries
               that he sustained.



       Defendants’ brief cites a subsequent deposition of Dr. Worthington which is not found

in the record. The record contains a document entitled “Notice of Filing” which contains

purported excerpts from said deposition, but the document cannot be considered as evidence in

support of the second motion for summary judgment because it contains no affidavit as required

by T.R.C.P. Rules 30.03 and 56.05.



       Defendants also allege the conviction of Dr. Worthington in a federal case evidenced by

citation to the published report of the opinion of the appellate court in that case. Published

opinions of appellate courts are not competent evidence of the facts stated therein. If the result

of the case is material, it may be proven by a certified copy of the judgment.



       Without competent evidence to impeach the witness, the summary judgment is without

support and must be reversed.




                                               -7-
       The summary judgment of dismissal is reversed and vacated. The cause is remanded to

the Trial Court for further proceedings Costs of this appeal are taxed against the defendants-

appellees.



                  REVERSED, VACATED AND REMANDED



                                             ___________________________________
                                             HENRY F. TODD
                                             PRESIDING JUDGE, MIDDLE SECTION


                                             ___________________________________
                                             SAMUEL L. LEWIS, JUDGE


                                             ___________________________________
                                             BEN H. CANTRELL, JUDGE




                                             -8-
