# FILED
December 18, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk MATTHEW S EFFERNICK, ) ) Plaintiff/Appellant, ) ) Davidson Cir

cuit ) No. 93C-1800 VS. ) ) Appeal No. ) 01-A-01-9606-CV-00282 SAINT THOMAS HOSPITAL AND ) BARRY E. YARBROUGH, M.D., ) ) Defendants

/Appellees. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE
APPEA L FROM TH

E CIRCUIT C OURT OF DAVIDSON C OUNTY AT NASHVILL E, TENNESSEE
HONORABL E THOMAS W. BROTH ERS, JUDGE

GIL BERT & FAULKNER Roger L. Gilbert, #11499 Two Centre Square, Suite 625 625 Gay Street Knoxville, TN 37902 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
GIDEON & WISEMAN C. J. Gideon, Jr., #6034 Suite 1900 Nati onsB ank Pl aza Nashville, TN 37219-1782 ATTORNEY FOR DEFENDANTS/APPEL LEES REVERSED, V

ACATED AN

D REMAND ED
HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: SA MUE L L. LEW IS BEN H. CANTRELL , JUDGE-2-

MATTHEW S EFFERNICK, ) ) Plaintiff/Appellant, ) ) Davidson Cir

cuit ) No. 93C-1800 VS. ) ) Appeal No. ) 01-A-01-9606-CV-00282 SAINT THOMAS HOSPITAL AND ) BARRY E. YARBROUGH, M.D., ) ) Defendants

/Appellees. )



### O P I N I O N
The captioned plaintiff has appealed from a summary judgment di smis sing his malpractice suit against the captioned defe ndants.
Appellan t presen ts the foll owing is sues: A. Whether the Trial Court correctly granted the defendants’ motion to strike the testimony of Winston Hall Worthington, M.D. and motion for summary judgmen t. B. Whether the Trial Court correctly held that the testimony of Winston Hall Worthington fails to satisfy the legal requirements to prove causa tion. C. Whether the Trial Court correctly awarded discreti onary

costs to the

defenda nts.

The complaint alleges that plaintiff sought treatment at the eme rgency roo m of the defendant hospital; that he was tr

eated by the defe ndant phy sician a

nd relea sed; that, as a res ult 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 aff

idavit of the defendant phy sician de

tailing t he natur e of the i njury , the tre atment ad ministere d and instr

uction s given, and asserting that his care and t reatmen t of plaintiff conformed with the accepted-3-

standar ds of prof essional practic e inthe specialty of e mergency and that no act or omission of the aff iant cau sed the c omplicati ons state d in the co mplaint.

In addition to his own affidavit of the facts, plaintiff filed the affida vit of Winsto n Hall Worthington, M.D., which stated that he had reviewed the medica l records of the treatment of plaintiff, and that said treatment fell below the standards of car e in Nashville, Tennessee.

On November 16, 1993, the Trial Judg e overruled defendants’ motion for summary judgmen t.

On October 19, 1995, defendants filed a Motion to Strike and Motion fo r Summary Judgment w

hich rea d as follo ws: 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 th e g ro un ds th at hi s t es ti mo ny i s ( I) u nt ru st wo rt hy, (ii) that he is not an expert, (iii) that his testimony fails to meet the l egal th

reshold t o establis h causat

ion, (iv) that his testimony will not substantially assist the jury, and (v) tha t 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 i n favor o f the Def endants. In s up po rt of

th is Mo ti on , t he de fe nd an ts fi le an d r el y upon: A. The depo sition test imony of Winston H all Worthington, M.D. in the discovery de position taken on August 30, 1995; B. The depo sition test imony of Winston H all Worthington, M.D. in Hutchison v. Huske

y and Pilot

Oil Co., Circuit Court for Knox County, Docket Number 2-220- 89; C. A certif

ied copy of the Ar kansas Medical Bo ard file on Winston Hall Worthington, M.D.; and D. A Memorandum Brief.-4- On Nov ember 3 0, 199 5, th e Trial Court entere d an or der st ating: THIS CAUSE

came to b e heard

before the Honor

able 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 i n favor o f the Def endants. The Motions are well-taken and are g ranted. The testimony of Winston Hall Worthington, M.D. is stricken under T. R.Civ.P. 56. 05 and T.R .E. 703. T he Court f

inds that there is an inadequate factual and scie ntific basis for the testimony of Dr. Worthington, that Dr. Worthing ton’s testimony will not substantially assist the trier of fact, that many material a spects of Dr. Worthington’s testimony, comparing his affidavit with his August 30, 1995 deposition testimony, cannot be rec onciled, and that Dr. Wo rt hi ng to n’ s o pi ni on s a re , f un da me nt al ly, un tr us tw or th y. The testimony is, therefor e, stricken. There is no genuine issue as to any material fact, and the Defe ndants ar e entitle d to Summar

y Judg ment in the

ir favor as a matter of law. IT IS, THEREF ORE, ORDER ED that this cause be and the sa

me is here

by d ismissed w ith prejud

ice. Costs of this ca use are taxed to the

plaintiff , and/or h is suretie s, fo r w hi ch le t e xe cu ti on is su e i f n ec es sa ry.
Upon appeal from the foregoing order, the plaintiff first ar gues tha t the T.R.C. P. contain
no provision for

a motion to strike testimony. Although not expressly authorized by any

official ruleof evidence or procedure, motions to strike inadmis sible evidence are a recog nized and freque ntly employed device

to remove from consideration evidence which has been previous ly filed or otherwise

present ed to the Co

urt. I n jury trials, it i s ac co mp an ie d b y a request that the jury be instructed to disregard evidence w hich ha s been heard, but is later determined to be inadmissible.

In Rail way Co., v. Beeler , 90 Tenn. 548, 18 S.W. 3 91 (1891) , a “motio n to strike all evidence in regard to the deed” was disapprovedas too ge neral “ since som

e of the e vidence is clearly c ompetent.”-5- In Arp v. W

olfe , Tenn. App. 196 2, 354 S.W.2d 799, a motion to strike evidence was overrul ed beca

use the of fending evidenc e was eli cited by the movan

t.

In Creed v . Wh ite , 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) evidenceis firmly establish ed as par t of trial practic e in this State. In 88 C.J.S. Trial §§ 133-156 a 36-page ar ticle o n Mot ions to Strik e eviden ce is found.
Appellant

next insists th at the rules of evidenc e make no provision for exclusion of expert tes timony

because of the ch aracte

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

T.R.E. Ru le 70 3 s ta te s t ha t t he Co ur t s ha ll “d is al lo w” ex pe rt op in io n t es ti mo ny i f the underly ing facts or data

indicate a lack of trustwor thiness.

The Trial Judge has wide discretion in the matter of the qua lificatio ns 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 discreti on, howev er, is notabsolute andmay be over turned on appeal where the discretion is arbitrar ily exercised. State v. Ballard, Tenn. 1993, 855 S.W.2d 557.-6- N o Tenness ee autho

rity is cited or

found whe

rein the testimony

of an expe

rt w a s excluded b ecause

of his unsa

tisfacto ry character for t

ruthfulness.

T.R.E. Rule 703 requires rejection of opinion testimony where “the underly

ing facts or data indicate lack of t rustwort hiness.” The obvious meanin g of the ruleis that an opinion may be excluded i f it is base d upon fa cts which ar

e not adequa

tely shown to be

true. De fendant s insist that the d isqualify ing untr ustworthiness exten ds to and includes un trustwor thiness of the witness who testifie d as an expert. This Court has some reluctance to adopt this insistence; however, one qualific ation of a n expert is h

is reliab ility

both as to training and as to honesty and candor in expressing his opinion.

In the present case, the impeachment of the re liability of the

opinion of Dr. Worthington consi sted o f the f ollo wing:

The affida

vit of Dr. Worthing ton (which precip itated the first order o verruling defendant’s motion for summary judgment) stated: I am f amiliar w ith the sta

ndard of medical c are for

my medical specialty in Na shville, Tennessee. By experience and training, I a

m familiar with the accepted standards of professional practice for a phy sician, practicing the special ty o f emerg ency

medicine , in the ca

re and tr eatment of a patient like Matthew Seffernick in June of 1992. That I have rec eived the medical records concer ning Matthew Se

ffernic k from the

Saint Thoma s Hospital emergency

room, Ambulatory Care of Tennessee, Opthalamic Associates Care Center and John Hoskins, MD. I have also review ed Dr. Yarbrough’s September 24, 1993, Affidav it. From my

review o f these r

ecords a nd this af fidavit, i t is cl ea r t o m e w it hi n a re as on ab le de gr ee of me di ca l c er ta in ty that Barry

E. Yarbrough, M.D. fell below the standard of care in his care and treatment of Ma tthew Seffernick on June 27, 1992, in Nashville, Tennessee. That this deviation from the standard of care by Barry E. Yarbrough, M.D., proximatel

y r esulted in

Mr. Seff

ernick s uffering from endoptha limitis of the right

ey e which r

esulted in retinal detachment surgery

and the loss of sight in this eye.-7- That Barry

E. Yarbrough, M.D., specifically deviated from the standard of care in his treatment of Mr. Sef fernick by failing to se

t Mr. Seffernick an appointment to return within 24 hours for an examination to ascertain if there was an infection occu

rring o r if the da

mage to the ey e was clearing. Had t

his been d

one, it would have b een obvio us 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. Seffer nick by failing to place the patie nt on Gar amy cin Ointment and patch the ey e overnight in which case the ointment would have worked longer and provided a mor e continuous coverage over seve ral hours than the solution Barry E. Yarbrough, M.D. used. Barr y E. Yarbr

ough, M.D. failed to prescribe the use of the solution on an every four hour basis until the patient returned for reexamination the next day. That if Barr y E. Yarbr

ough, M.D., had treated Mr. Seffernick in this fashion, Matthew Seffernick would not have suffered the r esulting injuries that he sustained.

Defend ants’ brief c ites a

subsequent deposition of Dr. Worthington which is not found in the rec ord. The

record contains a docum ent entitled “Notice of Filing” which contains purportedexcerpts from said deposition, but the docum

ent cann ot be cons idered a s evidenc e in support of the second motion for summary judg ment because it contains no affidavit as required by T.R.C.P. Rules 30.03 and 56.05.

Defend ants also allege the conviction of Dr. Worthington in a fede ral case evidenced by citation to the published report of the opinion of the appe llate courtin that case. Published opinions of appellatecourts are not competent evidence of the fa cts state d therei n. If

the result of the ca se is mate

rial, it ma y be proven b y a

certifi ed copy

of the jud

gment.

Without competent

evidence to impeach the witness, the summary judgme

nt is without support and must be reversed.-8- The summary judgme

ntof dismissal is reversed and vacated. The cau se is rema nded to the Trial Cour

t for fur ther pro ceeding s Costs of th is appea l are taxe d again st the defendantsappelle es. 

### REVERSED, V ACATED AN D REMANDED

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

___________________________________ SAMUEL L . LEWIS, JUDGE

___________________________________ BEN H. CANTRELL , JUDGE