               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs November 1, 2016

         JEANIE HOLSCLAW v. IVY HALL NURSING HOME, INC.

                  Appeal from the Circuit Court for Carter County
                        No. C12784 Jean A. Stanley, Judge
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          No. E2016-02178-COA-T10B-CV-FILED-DECEMBER 19, 2016
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RICHARD H. DINKINS, J., concurring.

        I concur in the opinion as authored by Judge Stafford and write separately to
reiterate the conclusion that nothing in the record leads me to believe that the trial judge
is biased or prejudiced for or against any party or that there was any improper motive in
the court’s contact with Dr. Mulkey. As gatekeeper of the expert opinion evidence
proffered at trial, the court has the responsibility under Tenn. R. Evid. 702 and 703 to
determine whether the evidence “will substantially assist the trier of fact to understand
the evidence or to determine a fact at issue and whether the facts and data underlying the
evidence indicate a lack of trustworthiness.” McDaniel v. CSX Transp., Inc., 955 S.W.2d
257, 265 (Tenn. 1997). The record fully supports the trial court’s statement that the
purpose of the call to Dr. Mulkey was to gain basic knowledge of the field of
rehabilitation counseling, a discipline taught at the University of Tennessee. My concern,
and what leads me to conclude that recusal is appropriate in this case, is the limited and
specific nature of the court’s inquiry and how that inquiry could reasonably create the
appearance of impropriety.

       I see no problem for a court to gain general knowledge of rehabilitation counseling
(or similar discipline) through a seminar, educational program, or like vehicle; indeed,
judges, like lawyers, are required to participate in annual continuing legal education. In
communicating with Dr. Mulkey ex parte, and without the knowledge or consent of the
parties, the court was not only denied the opportunity to create a record of the purpose for
the call prior to it being made, but the parties were denied the opportunity to preserve an
objection. My concern is mitigated, but not abated, by the fact that Dr. Mulkey was not
engaged an as expert witness by either party, but rather responded to the court’s inquiry.



                                                 _________________________________
                                                 RICHARD H. DINKINS, JUDGE
