FILED

December 18, 1996

Cecil W. Crowson

Appellate Court Clerk

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. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

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
-2-

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. )

O P I N I O N

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
-3-

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.
-4-

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.”
-5-

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.
-6-

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.
-7-

 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 reexamination 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.
-8-

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 defendantsappellees.

REVERSED, VACATED AND REMANDED

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

___________________________________

SAMUEL L. LEWIS, JUDGE

___________________________________

BEN H. CANTRELL, JUDGE