              IN THE SUPREME COURT OF TENNESSEE
                         AT NASHVILLE
                                                   FILED
                                                      May 11, 1998

                                                Cecil W. Crowson
                                               Appellate Court Clerk
                                   FOR PUBLICATION

                                   Filed:   May 11, 1998




MATTHEW SEFFERNICK,         )
                            )
     PLAINTIFF-APPELLEE,    )      DAVIDSON CIRCUIT
                            )
v.                          )      Hon. Thomas W . Brothers, Judge
                            )
SAINT THOMAS HOSPITAL AND   )      No. 01S01-9706-CV-00122
BARRY E. YARBROUGH, M.D.,   )
                            )
     DEFENDANTS-APPELLANTS. )




FOR APPELLANTS:                    FOR APPELLEE:

C.J. GIDEON, JR.                   ROGER L. GILBERT
SHIRLEY A. IRWIN                   KNOXVILLE
NASHVILLE




                      OPINION




COURT OF APPEALS REVERSED                             HOLDER, J.
                                      OPINION



       We granted this appeal to decide whether the trial court erred in relying on

excerpts of a deposition when striking the affidavit of the plaintiff's expert. The

Court of Appeals held that the depositional excerpts could not "be considered as

evidence" because they "contain[ed] no affidavit as required by T.R.C.P. Rules

30.03 and 56.05." We reverse the appellate court's dismissal finding: (1) that

the issue was waived; (2) that Tenn. R. Civ. P. 30.03 and 56.05 neither preclude

filing excerpts of a deposition nor require that an affidavit be attached to

deposition excerpts; and (3) that the trial judge neither abused his discretion nor

acted arbitrarily in striking the expert's affidavit pursuant to Tenn. R. Evid. 702

and 703.



       The plaintiff, Matthew Seffernick, filed a medical malpractice action

against the defendants, Saint Thomas Hospital and Barry E. Yarborough, M.D.

Seffernick alleged that he was a patient at Saint Thomas Hospital in Nashville,

Tennessee, where he was seen by Dr. Barry Yarborough. The plaintiff sought

medical attention for an eye injury after being struck in the eye by a metal wire.



       The plaintiff developed severe pain and swelling of his eye and a

reduction of vision. He was diagnosed with both endophthalmitis and detached

retina. He underwent two surgical procedures and ultimately lost vision in his

eye. He filed suit against the defendants alleging "that the defendants failed to

properly treat the plaintiff's eye injury and failed to give him proper antibiotic

treatment or any other treatment other than ointment and a patch . . . ."



       The defendants filed a motion for summary judgment supported by the

affidavit of the defendant, Dr. Yarborough. He stated that he diagnosed the

plaintiff as having an abrasion of the right eye with subconjunctival hematoma.

He treated the hematoma with Garamycin ophthalmic solution and applied a

                                           2
patch to the plaintiff's eye. He advised the plaintiff to discontinue use of the

patch the next day if the plaintiff were "comfortable and without problems." He

instructed the plaintiff to return to the emergency department if he experienced

any complications with his eye.



       The plaintiff responded by filing the affidavit of Winston Hall Worthington,

M.D. In his affidavit, Dr. Worthington stated that Dr. Yarborough deviated from

the standard of care in treating the plaintiff by failing to:



       1. have the plaintiff re-examined within 24 hours of the emergency

       room visit;

       2. examine the plaintiff's eye with a slit-lamp microscope to

       evaluate for a possible penetration injury; and

       3. "place patient on Garamycin Ointment and patch the eye

       overnight."



The trial judge found that Dr. Worthington's affidavit created an issue of disputed

material fact and denied the defendants’ motion for summary judgment.



       The defendants then conducted a discovery deposition of Dr.

Worthington. Dr. Worthington acknowledged in his deposition that the

emergency room records indicated the application of Garamycin Ointment. Dr.

Worthington further stated, contrary to his affidavit, that he was unable to offer

an opinion that the application of Garamycin would have prevented the plaintiff's

infection.



       Q. Can you say, to a reasonable degree of medical certainty,
       whether the endophthalmitis that the patient had would have been
       prevented if Garamycin ointment had been applied in the ER at
       Saint Thomas?

       A. No.


                                            3
       ...

       Q. . . . Why did Matthew Seffernick have a detachment of his retina?

       A. I don't know.

       ...

       Q. Can you tell me, then, to a reasonable degree of medical
       certainty, why did the retinal detachment occur?

       A. I have no idea.

       ...

       Q. Is it fair to say that while you have some criticisms of Dr.
       Yarborough, you can't really say that what you criticize him for
       actually caused this young man to sustain his visual loss?

       A. That's true.



The defendants filed a motion to strike the affidavit testimony of Dr. Worthington

and renewed their motion for summary judgment based upon inconsistencies

between Dr. Worthington's affidavit and his deposition. The defendants filed

excerpts of Dr. Worthington's discovery deposition in support of their motion to

strike. The excerpts of the deposition were indexed, attached to a Notice of

Filing and made a part of the trial record. The plaintiff's counsel neither objected

to the authenticity nor to the admissibility of the deposition excerpts.



       The trial court granted the defendants' motion to strike the affidavit

testimony of Dr. Worthington finding:



       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. W orthington's opinions are, fundamentally, untrustworthy.



The trial court then granted the defendants' motion for summary judgment. The

Court of Appeals reversed the trial court's dismissal. The appellate court

reasoned that the "document entitled 'Notice of Filing' which contains purported

                                          4
    excerpts from [Worthington's] deposition . . . cannot be considered as evidence

    . . . because it contains no affidavit as required by T.R.C.P. Rules 30.03 and

    56.05."



           Contrary to the appellate court's ruling, Tenn. R. Civ. P. 30.03 and 56.051

    neither preclude the filing of excerpts of a deposition nor require that an affidavit

    be attached to deposition excerpts. See Tenn. R. Civ. P. 32 (contemplating use

    of "any part or all of a deposition"). Moreover, the plaintiff's attorney objected

    neither to the admissibility nor to the form of the Notice of Filing. Had the

    plaintiff's attorney believed that the excerpts conveyed an inaccurate

    assessment of Dr. Worthington's depositional testimony, the plaintiff should have

    objected and requested that the entire deposition be admitted into evidence.

    See Tenn. R. Civ. P. 32.01(4) ("If only part of a deposition is offered in evidence

    by a party, an adverse party may require the offering party to introduce any other

    part which ought in fairness to be considered with the part introduced . . .").



           Generally, questions regarding the admissibility, qualifications, relevancy

    and competency of an expert's testimony are left to the discretion of the trial

    court. McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 263 (Tenn. 1997).

    Pursuant to Tenn. R. Evid. 703, a trial court must disallow testimony in the form

    of opinion or inference when the underlying facts or data indicate a lack of

    trustworthiness. Id. at 264-65. While similar language is not present in the

    federal rule, Tenn. R. Evid. 703 is "designed to encourage trial courts to take a

    more active role in evaluating the reasonableness of the expert’s reliance upon

    the particular basis for [the expert’s] testimony." Id. at 265. The trial court's

    ruling on these matters may only be overturned if the discretion is arbitrarily

    exercised or abused. Id. at 263-64.




1          1
               The substance of Rule 56.05 is currently contained in Rule 56.06.

                                                      5
       We hold that the failure to object constituted a waiver and that the trial

judge neither abused his discretion nor acted arbitrarily in striking Dr.

Worthington's testimony pursuant to Tenn. R. Evid. 702 and 703. The decision

of the appellate court is reversed, and the trial court's grant of summary

judgment is reinstated. The case is remanded to the Court of Appeals for review

of the pretermitted issue of whether the trial court correctly awarded discretionary

costs to the defendants. Costs of this appeal shall be taxed to the plaintiff,

Matthew Seffernick, for which execution may issue if necessary.




                                           JANICE M. HOLDER, JUSTICE



CONCUR:

Anderson, C.J.
Drowota and Birch, J.J.
Reid, Sp.J.




                                          6
