                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 August 25, 2011 Session

 VIVIAN KENNARD v. METHODIST HOSPITALS OF MEMPHIS a/k/a
METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-000267-07     Robert L. Childers, Judge


                 No. W2010-01355-COA-R3-CV - Filed April 18, 2012


Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others.
Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the
requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered
in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the
subsequent jury verdict.

In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we
remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in
light of Shipley. If the trial court determines that Dr. McLaughlin meets the requirements of
the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN,
may testify against the Anesthesia Defendants. Finally, if the trial court determines that Dr.
McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion
warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R.
F ARMER,J., and J. S TEVEN S TAFFORD, J., joined.

Al H. Thomas, Memphis, Tennessee, for the appellant, Vivian Kennard

William D. Domico, Victoria S. Rowe, Memphis, Tennessee, for the appellees, Methodist
Hospitals of Memphis a/k/a Methodist Healthcare Memphis Hospitals, et al
                                              OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

       On January 7, 2007, Vivian Kennard (“Plaintiff”) filed a complaint for medical
malpractice against Dr. Arthur M. Townsend, IV and Associates Obstetrics & Gynecology,
P.C. (“Obstetrics Defendant”) and against Methodist Hospitals of Memphis, a/k/a Methodist
Healthcare Memphis Hospitals, Michael L. Vernon, M.D., Paula Strong, CRNA, and Medical
Anesthesia Group, P.A. (“Anesthesia Defendants”). Plaintiff alleged that the defendants had
committed medical malpractice against her during the birth of her child in June of 2004.
Specifically, she alleged that the defendants had failed to appropriately control/monitor her
blood pressure before, during and after her C-section, thus causing her permanent blindness
in both eyes.

         On or about February 16, 2007, the Obstetrics Defendants filed a motion for summary
judgment, on the ground that Plaintiff had failed to establish, through expert proof, that Dr.
Townsend deviated from the recognized standard of acceptable professional care in the
treatment of Plaintiff. The motion for summary judgment was supported by the Affidavit of
Dr. Townsend, wherein he stated that he had complied with the applicable standard of care
in his treatment of Plaintiff. Plaintiff then apparently identified two expert witnesses for use
at trial: Richard McLaughlin, M.D., an OB-GYN practicing in Springfield, Missouri; and
Barry I. Feinberg, M.D.,1 an Anesthesiologist practicing in St. Louis, Missouri.

       Plaintiff filed the Affidavit of Dr. McLaughlin, in which he opined that his practice
location of Springfield, Missouri, is similar to Memphis:

               At the time of these events I was licensed to practice medicine in the
        State of Missouri and was so licensed and did practice medicine during the
        year preceding the treatment of Vivian Kennard. I am board certified in
        Obstetrics & Gynecology since 1971. I am familiar with the recognized
        standard of acceptable professional medical practice in these and related fields
        of medicine, and more specifically, the patient care of someone in the position
        of Vivian Kennard in an area such as Memphis, Tennessee where the standard
        of care would be comparable to the cities and facilities at which I have
        practiced medicine. I am familiar with the acceptable standard of care as it
        existed in 2004. I am familiar with the standard of care in Springfield,
        Missouri. I gained first hand knowledge of the standard of care of Springfield,


        1
         Over the Anesthesia Defendants’ objection, Dr. Feinberg was allowed to testify by deposition, and
this admission is not at issue on appeal.

                                                   -2-
through my years of practice as an OB/GYN physician in the Springfield
community. My experience include[s] care of patients with presentations such
as that of Vivian Kennard. I have gained first hand knowledge of the
Memphis Medical community through internet [re]search over the years
including 2005. I have also reviewed medical cases from various hospitals and
have gained insight as to how medicine is practiced in Memphis. In addition,
I have a text written by researchers from the University of Tennessee Medical
School, Dr. Frank Ling and Dr. Patrick Duff, entitled, Obstetrics &
Gynecology, Principals for Practice. It is my opinion that the Memphis
medical community is similar to the medical community of Springfield,
Missouri. Memphis, a Regional Medical Center as is Springfield, draws many
patients from Mississippi and Arkansas. Springfield provides care to an 18-
county primary service area in southwest Missouri and northern Arkansas.
Memphis has the University of Tennessee Medical School with residents
practicing primarily at the Regional Medical Center and Methodist University
Hospital. There are a similar number of hospitals in Memphis as there are in
the Springfield area. Memphis has two large hospital systems, Baptist and
Methodist. In addition it also has St. Francis Hospital and a large VA
Hospital. St. Jude which is located in Memphis, is world re-known. There is
the Elvis Presley Trauma Center, which is considered to be very good. The
Campbell Clinic is a well known orthopedic clinic and the Campbell Clinic
Medical text is used and is recognized in other communities. Springfield is the
regional center of southwest Missouri. The Area of Dominant Influence (ADI)
is defined by a 32 county region, seven of which are counties in Arkansas.
Springfield, Missouri has a general Acute Care hospital, St. John’s which is
similar to the one in Memphis, the Regional Medical Center. It also is the
home of Cox Health Systems, which provides care to the 18-county primary
service area in southwest Missouri and northern Arkansas. Cox Health is
accredited by the Joint Commission on Accreditation of Healthcare
Organizations (JCAHO). Cox Health is recognized as a Children’s Miracle
Network Hospital for its extensive children’s services and dedication to
Children’s Medical Network very similar to St. Jude. The extensive presence
of Cox in the Springfield area is similar to the Baptist and Methodist Hospital
Systems in Memphis, Tennessee.

       The Burn Unit at St. John’s is similar to the Burn Unit at the Regional
Medical Center, as both hospitals serve similar regions. Springfield provides
the area’s most extensive healthcare options with six local hospitals with all
of the major medical specialties being represented in Springfield. Memphis[’]
medical community is also similar to Springfield in regard to medical services

                                      -3-
      provided.

             All of the major medical specialties are represented in Memphis as well
      as in Springfield. It is my opinion because the two communities are similar,
      the standard of care in the treatment of Vivian Kennard would be the same.

Dr. McLaughlin then opined regarding deviations from the standard of care:

              I am of the opinion that Dr. Arthur Townsend acted with less than or
      failed to act within acceptable standards of care in his treatment of Ms. Vivian
      Kennard during and after her C-section delivery at Methodist Hospital on June
      6, 2004.

              [] It is my opinion that Dr. Arthur Townsend fell below the standard of
      care when he failed to treat Ms. Kennard’s severely elevated blood pressures.
      It is my opinion that Dr. Townsend along with the anesthesiologist was
      responsible for immediate treatment of Vivian Kennard’s elevated blood
      pressures. It is documented in the anesthesia records that Vivian Kennard
      experienced elevated blood pressures that were severe, which continued after
      her transfer to the recovery room. It is my opinion that treatment of Ms.
      Kennard’s blood pressures called for the administration of immediate anti-
      hypertensive medication. Although in my opinion it was appropriate to begin
      magnesium sulfate, it is my opinion that magnesium sulfate should not have
      been the sole treatment for blood pressures this elevated. Dr. Townsend
      should have consulted a perinatologist or an internist with experience in
      treating hypertension in pregnancy. Dr. Townsend should be aware that it is
      well known that elevated blood pressures in pregnancy can lead to visual
      disturbances and require treatment to prevent adverse consequences.

(emphasis added).




                                            -4-
        Plaintiff took Dr. McLaughlin’s evidentiary deposition on December 15, 2009. The
Obstetrics Defendants then filed a Motion in Limine to exclude Dr. McLaughlin claiming
that his testimony did not comply with the locality rule set forth in Tennessee Code
Annotated section 29-26-115. Likewise, on January 11, 2010, the Anesthesia Defendants
filed a motion to exclude Dr. McLaughlin’s testimony, based upon both the locality rule
and–as an OB-GYN–his alleged lack of knowledge and experience in the anesthesia field.2

       On or about January 15, 2010, the trial court granted the Obstetrics Defendants’
motion in limine, thereby excluding Dr. McLaughlin’s testimony based upon his failure to
meet the requirements of the locality rule. Thereafter, the Obstetrics Defendants set their
previously-filed motion for summary judgment for hearing on the ground that Plaintiff had
provided no expert medical testimony against them. Plaintiff apparently did not oppose the
motion for summary judgment, and an order was entered granting the Obstetric Defendants’
motion for summary judgment on the ground that Plaintiff’s expert testimony had been
excluded and that she had provided no additional expert proof against them. (V2, 214). The
grant of summary judgment to the Obstetrics Defendants was made final pursuant to
Tennessee Rule of Civil Procedure 54.02, and Plaintiff appealed the grant of summary
judgment to this Court. See Kennard v. Townsend, No. W2010-461-COA-R3-CV, 2011 WL
1434625, at *11 (Tenn. Ct. App. April 14, 2011) (“Kennard 1”).

        In an April 14, 2011 opinion, this Court found that Dr. McLaughlin had failed to
establish that Memphis and Springfield are similar communities, and therefore that the trial
court had properly excluded his testimony. See Kennard 1, 2012 WL 1434625, at *11.
However, on August 11, 2011, the Tennessee Supreme Court issued its Shipley v. Williams,
350 S.W.3d 527, opinion, which specifically stated that Tennessee courts had incorrectly
interpreted the requirements of the locality rule, and which represented a paradigm shift
concerning how Tennessee courts should approach the admission or exclusion of medical
expert testimony. See Kennard v. Townsend, No. W2011-01843-COA-RM-CV, 2011 WL
690227, at *5 (Tenn. Ct. App. March 2, 2012) (“Kennard 2”) (citing Shipley, 350 S.W.3d at
554). Thus, on August 30, 2011, the Tennessee Supreme Court issued its order granting
Plaintiffs’ Tennessee Rule of Appellate Procedure 11 application for the narrow purpose of
remanding the Kennard 1 case to this Court for reconsideration in light of Shipley.

       On remand, this Court determined that because the admissibility of evidence triggers
the trial court’s discretion, and because the trial had no opportunity to consider the
admissibility of Dr. McLaughlin’s testimony in light of Shipley, that the case should properly
be remanded to the trial court. Thus, on March 2, 2012, this Court vacated both the trial


       2
       The trial court apparently found pretermitted the issue of Dr. McLaughlin’s alleged lack of
knowledge and experience in the anesthesia field.

                                               -5-
court’s motion in limine which excluded Dr. McLaughlin’s testimony and its order granting
summary judgment in favor of the Obstetrics Defendants, and we remanded to the trial court
for further proceedings.

       Meanwhile, after summary judgment was granted to the Obstetrics Defendants, the
case proceeded to trial against the Anesthesia Defendants. A jury trial commenced on
January 25, 2010, in which Plaintiff apparently presented the deposition testimony of
Anesthesiologist Dr. Feinberg.3 The jury returned a verdict in favor of the Anesthesia
Defendants, and therefore, the trial court entered an Order of Judgment on February 18, 2010
dismissing the claims against the Anesthesia Defendants.

        On March 4, 2010, Plaintiff filed a “(First) Motion for New Trial and/or To Alter or
Amend Judgment” arguing that the jury’s verdict was contrary to the weight of the evidence,
and therefore, that the trial court, as thirteenth juror, should grant a new trial. The trial court
denied Plaintiff’s motion, and Plaintiff filed a “Second Motion for New Trial” on May 27,
2010. In her Second Motion for New Trial, Plaintiff contended that Dr. McLaughlin met the
requirements of the locality rule, that his testimony, therefore, was erroneously excluded, and
that this exclusion had diminished Plaintiff’s ability to present her case, leading to a flawed
jury verdict. Before the trial court ruled on her Second Motion for New Trial, Plaintiff, on
June 9, 2010, filed a second Notice of Appeal to this Court, appealing the trial court’s grant
of the motion in limine excluding Dr. McLaughlin, its Order of Judgment,4 and its denial of
Plaintiff’s First Motion for New Trial. Subsequently, finding Plaintiff’s Second Motion for
New Trial untimely–as it was filed ninety-eight days after the entry of the Order of
Judgment–the trial court dismissed the motion for failure to comply with the requirements
of Tennessee Rule of Civil Procedure 59.02.5


                                         II.   I SSUES P RESENTED

        In this appeal, Plaintiff presents the following issues for our review, as summarized:

1.      Whether the trial court erred in excluding the testimony of Dr. McLaughlin based


        3
            Only an excerpt of the January 25, 2010 proceedings is included in the record.
        4
         We note that Plaintiff’s Notice of Appeal lists the order appealed as the “‘Order on Jury Verdict for
Defendant’ entered in this cause on February 18, 2010.” Finding no order by that name, we presume Plaintiff
intended to appeal the “Order of Judgment” entered on February 18, 2010.
        5
         Tennessee Rule of Civil Procedure 59.02 requires that a motion for new trial be filed and served
within thirty days following the entry of judgment. Tenn. R. Civ. P. 59.02.

                                                      -6-
       upon the locality rule; and

2.     Whether the erroneous exclusion of Dr. McLaughlin warrants a setting aside of the
       jury verdict.

Additionally, the Anesthesia Defendants present the following issues:

3.     Whether the trial court properly exercised its role as thirteenth juror in affirming the
       jury verdict in favor of the Anesthesia Defendants;

4.     Whether Plaintiff waived appellate review of Dr. McLaughlin’s exclusion; and

5.     Whether Dr. McLaughlin was properly excluded based upon his inability, as an OB-
       GYN, to offer expert testimony against the Anesthesia Defendants.

For the following reasons, we remand this case to the trial court for reconsideration of Dr.
McLaughlin’s qualifications in light of Shipley. If the trial court determines that Dr.
McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then
consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants. Finally,
if the trial court determines that Dr. McLaughlin is competent to testify, it shall then
determine whether his erroneous exclusion warrants a setting aside of the jury verdict
rendered in favor of the Anesthesia Defendants.

                                     III.    D ISCUSSION

                                            A. Waiver

        At the outset, we consider the Anesthesia Defendants’ argument that Plaintiff, by
failing to raise the issue in a timely motion for new trial, waived any challenge to the
exclusion of Dr. McLaughlin in this appeal. Tennessee Rule of Appellate Procedure 3(e)
states that

       in all cases tried by a jury, no issue presented for review shall be predicated
       upon error in the admission or exclusion of evidence, jury instructions granted
       or refused, misconduct of jurors, parties or counsel, or other action committed
       or occurring during the trial of the case, or other ground upon which a new
       trial is sought, unless the same was specifically stated in a motion for a new
       trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3(e). However, Tennessee Rule of Appellate Procedure 36(b) further

                                               -7-
provides that “an appellate court may consider an error that has affected the substantial rights
of a party at any time, even though the error was not raised in the motion for a new trial or
assigned as error on appeal.” Tenn. R. App. P. 36(b).

       On appeal, Plaintiff claims that she did not address the issue of Dr. McLaughlin’s
exclusion in her First motion for New Trial because when she filed her March 4, 2010 First
Motion for New Trial, the issue of Dr. McLaughlin’s exclusion was already on appeal in
Kennard 1, and therefore, the trial court lacked jurisdiction over the issue. Alternatively, she
contends that Rule 3(e) applies only to errors “occurring during the trial of the case[,]” and
therefore that it was unnecessary to raise Dr. McLaughlin’s pre-trial exclusion in a timely
motion for new trial.

       First, we reject Plaintiff’s argument that Rule 3(e) applies only to conduct occurring
during the course of trial. The “occurring during the trial of the case” language clearly
modifies “other action[s]” and does not limit the Rule’s application with regard to the
admission or exclusion of evidence. However, because Plaintiff is correct that Dr.
McLaughlin’s exclusion had been previously challenged,6 we find, exercising our discretion
under Rule 36(b), that she did not waive the issue by failing to raise it in a timely motion for
new trial.

                       B.    Failure to Prevent Harmful Effect of Error

        Next, we consider the Anesthesia Defendants’ argument that Plaintiff may not now
challenge Dr. McLaughlin’s exclusion as it relates to her case against them, because, by
proceeding to trial against them without seeking either a continuance, an interlocutory appeal,
or permission to supplement the evidence to demonstrate satisfaction of the locality rule, she
failed to prevent any harmful effect of his exclusion. The Anesthesia Defendants rely upon
Tennessee Rule of Appellate Procedure 36(a) which provides:

         The Supreme Court, Court of Appeals, and Court of Criminal Appeals shall
        grant the relief on the law and facts to which the party is entitled or the
        proceeding otherwise requires and may grant any relief, including the giving
        of any judgment and making of any order; provided, however, relief may not
        be granted in contravention of the province of the trier of fact. Nothing in this
        rule shall be construed as requiring relief be granted to a party responsible for
        an error who failed to take whatever action was reasonably available to
        prevent or nullify the harmful effect of an error.


       6
        On February 17, 2010, Plaintiff filed her Notice of Appeal in Kennard I, appealing the exclusion
of Dr. McLaughlin and the grant of summary judgment to the Obstetrics Defendants.

                                                  -8-
Tenn. R. App. P. 36(a) (emphasis added). They also cite the “Advisory Commission
Comments” which provide in relevant part:

       Subdivision (a). . . . The last sentence of this rule is a statement of the accepted
       principle that a party is not entitled to relief if the party invited error, waived
       an error, or failed to take whatever steps were reasonably available to cure an
       error.

Tenn. R. App. P. 36(a) Advisory Comm’n Cmts.

       Plaintiff, however, argues that she “was faced with a difficult decision after the trial
court excluded Dr. McLaughlin” and she contends that her “decision to persevere to trial
with as much as the trial court would allow cannot be deemed ‘wrong[,]’” and that “[i]t
cannot be deemed as a waiver of a subsequent attempt to cure the error of the trial court.” We
agree. While seeking a continuance or an interlocutory appeal may have been a better course
of conduct, we find no authority requiring Plaintiff take such action or face waiver of an
alleged exclusionary error on appeal. To the contrary, Rule 9 of the Tennessee Rules of
Appellate Procedure clearly states that “[f]ailure to seek or obtain interlocutory review shall
not limit the scope of review upon an appeal as of right from entry of the final judgment.”
(emphasis added). Moreover, Rule 103 of the Tennessee Rules of Evidence provides:

       (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
       which admits or excludes evidence unless a substantial right of the party is
       affected, and

       ....

       (2) Offer of Proof. In case the ruling is one excluding evidence, the substance
       of the evidence and the specific evidentiary basis supporting admission were
       made known to the court by offer or were apparent from the context. Once the
       court makes a definitive ruling on the record admitting or excluding evidence,
       either at or before trial, a party need not renew an objection or offer of proof
       to preserve a claim of error for appeal.

Based upon the above-cited authority, we find that Plaintiff’s failure to seek either a
continuance or an interlocutory appeal following Dr. McLaughlin’s exclusion does not, ipso
facto, preclude appellate review of his exclusion. Additionally, because Plaintiff could not
have submitted further evidence regarding compliance with a not-yet-existing Shipley rule,
we find that Plaintiff’s failure to request permission to supplement the evidence to
demonstrate satisfaction of the locality rule does not foreclose her ability to raise Dr.

                                               -9-
McLaughlin’s exclusion as error on appeal.


                                  C.   The Locality Rule


        As stated above, on or about January 15, 2010, the trial court excluded Dr.
McLaughlin’s testimony based upon his failure to meet the requirements of the locality rule.
Subsequent to his exclusion, however, our Supreme Court issued its Shipley v. Williams
opinion, which expressed dissatisfaction with Tennessee courts’ prior interpretations of the
requirements of the locality rule and which represented a paradigm shift concerning how
Tennessee Courts should approach the admission or exclusion of medical expert testimony.
See Kennard 2, 2011 WL 690227, at *5 (citing Shipley, 350 S.W.3d at 554).

        Based upon its issuance of Shipley, the Supreme Court remanded Kennard I to this
Court for reconsideration. However, having determined that the admissibility of evidence
triggers the trial court’s discretion, we remanded to the trial court to consider the
admissibility of Dr. McLaughlin’s testimony in light of Shipley. Kennard 2, 2012 WL
690227, at *6. To avoid inconsistent results, we likewise remand this case to the trial court
with instructions for the trial court to make a fresh determination of Dr. McLaughlin’s
qualifications in light of the holding in Shipley. If the trial court determines that Dr.
McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then
consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants. Finally,
if the trial court determines that Dr. McLaughlin is competent to testify, it shall then
determine whether his erroneous exclusion warrants a setting aside of the jury verdict
rendered in favor of the Anesthesia Defendants. Any remaining issues are pretermitted.


                                    IV.   C ONCLUSION

       For the aforementioned reasons, we remand to the trial court for further proceedings
consistent with this opinion. Costs of this appeal are taxed equally to Appellees Methodist
Hospitals of Memphis a/k/a Methodist Healthcare Memphis Hospitals, Michael L. Vernon,
M.D., Paula Strong, CRNA, and Medical Anesthesia Group, P.A. and to Appellant, Vivian
Kennard, and her surety, for which execution may issue if necessary.



                                                    ALAN E. HIGHERS, P.J., W.S.



                                             -10-
