# FILED Jan. 19, 1996 Cecil Crow son, Jr. Appellate Court Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

TOM AND KAREN MOORE, ) ) Plaintiff s/Appella nts, )

) Davidson C ircuit ) No. 94C- 1356 VS. ) ) Appeal N o. ) 01-A-01- 9507-CV- 00295 LLOYD A. WALWYN, M.D., ) ) Defendant/Appellee. )



## DISSEN TING OPIN ION

Both the trial

court and t

he ma jority of this pane l have dec ided that T om and Karen M oore are

not entitled to a jury trial on their m edical malpractice

claim against Dr. Ll oyd A. Walwyn beca use of shortcomings in the affidavits they filed in opposition to D r. Wa

lwyn’ s motio n f

or s ummary j udgmen

t. Whi le I do not relish defending sloppy lawyeri n g, I am convinced t

hat my colleague s have scrutinized the Moore s’ counte r-affi davits using s tanda rds stricter tha

n those required by Tenn. R. Civ. P. 56.0 5 and Tenn. Code Ann . § 29-26-1 15 (1980 ). I would vacate t he summ ary j udgmen

t because the counte

r-affi davits dem

onstrate the existence of genuine and material factual issues that only a jury should resolve.

I.

Tom Moore seve

rely injured his left f

orearm and left l eg when he

fell fro m
aroof on Ma

y 1, 19 93. He w as first t aken to the Willia mson C ount y M edical Center and was la

ter tran sferred

to the Tennessee Christian Medical Center where h e came under the care of Dr. Lloyd A . Walwyn. Dr. Walw yn determined tha t injuries t o Mr. M oore’s leg required surgery and on May 2, 1993, performed an1 An open reduction of a fracture is a surgica

l procedure involving the manipulation of the affected bone or bones after an

incision into the skin and muscle over the site of the fracture. See Stedman’s Concise Medical Dictionary 872 (2d ed. 1994) (“Stedman’s”).

2 The closedmanipulation did not require a second incision; however, the pins attaching the tibia to t he external fixator did protrude through the skin. A fixator is a device providing rigid immobilization through external skeletal fixation by means of rods attached to pins which are placed in or through the bone. See Stedman’s 386.

-2- open reduction of the fr actures o f the left fibula and tibia. 1 During thi s procedure, Dr. Walw yn rep aired the

fractur ed fibula u sing a

plate and s crews a

nd repair ed the fracturedtib ia u sin g two scre ws. Th ree d ays af ter t he s urg ery, Dr . Walw yn performed

a closed manip ulation of t he fract ure of the tibia a

nd inserte d pins into the tibia to stabilize it with an external fixator. 2

Mr. Moore lef

t the hospita

l on May 7, 1993. He changed physicians after three off ice visits with Dr. Walw yn between May 19 and June 16, 1993. In July 1993, the physician s a t Metro General Hospital advised Mr. Moore that his leg fracture would req

uire additio nal surger

y beca use he had “

infected pins on his current external fixator which com

munic ate with his fract

ure sit e.” Du r ing surgery on July 21, 1993, Dr. Melvin La w confir med infection of

the pin sites an d also infected nonunion of both the left tibia and left fibula. Dr. Law irrigate d and debrided the inf

ected tibi a, fibula, and pin sites. He also replaced the external fixator Dr. W alwy n had instal led. Dr . Law removed thesecond

external fixator and placed Mr. Moore’s leg i n a cast in Oct ober 1993

.
Mr. Moore and

his wife sued Dr. Walw yn and others on May2, 1994. They alleged that the infection in Mr. Moore’s leg was ca used by Dr. Walwyn’s negligent failure to prescribe suff

icient an tibiotics be fore, du ring, and after th e May 2, 1993 surg ery. They also alleged that the infection caused by Dr. Walwyn’s ne gligent failure to prescr ibe antibiot

ics requir ed Mr. M oore to unde

rgo “four surgeries including nine different procedure s” a nd to experi ence pain, sufferin g, additional medi cal expenses, and loss of wages. In addition, they alleged that Dr. Walwyn declined to trea t Mr. Moore after learning that he lacked th e fu nd s t o p ay hi m.3 This motion was proper because a defenda ntphy sician’saffida

vit is suff icient by itself to su pport the phy sician’s motion for summary judgment. Smith v. Graves , 672 S.W.2d 787, 789-90 (Tenn. Ct . App. 198 4). Ther e is, howe

ver, a g rowin g j udicial hostility toward expert affida vits used to support or to oppose motions for summary judgment th at contain only an opinion without supply

ing a foundation of specific facts. See Edward Brumet, Summary Judgmen t Material

s , 147 F.R.D. 647, 674-676 (1993) ("Brumet" ).

4 Goodman v. Phythyon, 803 S.W. 2d 697, 702 -03 (Ten n. Ct. App. 1990); Hurst v. Dougherty, 800 S.W.2d 183, 185 (Tenn. Ct. App. 1990); Parker v. Vanderbilt Univ., 767 S.W.2d 412, 420 (Tenn. Ct. A

pp. 1988) ; Ayers v. Rutherfor d Hosp., Inc., 689 S.W.2d 155, 160 (Tenn. Ct. App. 1984). -3- From this point on, the case

fell into the pre dicable pa ttern com mon to m any medicalmalpractice c ases. On October 19, 199 4, Dr. Walw yn fil ed a motion for
summar y judgment supported by his own self-s erving affidavi t asserti ng in the most gene ral term s that he “ acted wi th ordinar y and r easonable care” i n accordance with “the recognized standard of professional practice in orthopae dic surgery in Nashvil le and similar are as.” 3 This m otion place d the burden

squarely
on the Moore s to produce a com petent af fidavit supp orti ng their claim that Dr. Walwyn had comm

itted malprac tice . Failure to produce competent expert testim ony contradic ting Dr. Walw yn’ s a f fidavit would result in the summary dismis sal of the Moores' c laims against Dr. Walwy

n because they could only be sub sta nti ated with exp ert t est imon y. 4

The Moores re sponded to Dr. W alwy n’s m otion for sum

mary judgm ent on December

5, 1994, with a mem

orandum of law and a promise that counteraffidavi ts would be f

iled no late

r than one day be fore the hearing on the summary judgm ent motion . The M oores we re appar ently u nable to loc ate an ort hopaedic surgeon in Tennessee willing to testify against Dr. W alwyn. On the day before the hearing, they filed the “affid avit” of Dr . Bruc e Schlafly, a board-ce rtified orthopaedi c surgeon pra

cticing in M issouri, who opi ned tha t “Dr. L loyd Walwyn

. . . bre ached the recognize d s tandard of care in failing to administer antibiotics and such brea

ch of car e caused T om Moor

e injuri es that he w ould not have otherwise suffered.”

Dr. Walw yn’ s l a wyer s l aun che d a f us il lad e of

ob jec ti on s t o t he f orm, substance, and timing of Dr. Sc hlafly’s affidavi t at the December 16 , 1 9945 R ule 12.04(d) of the Local Rules of Pra ctice requires responses to motions, includ in g counter -affida vits, to be filed by the close of business on the Monday preced in g the Friday on which t he motion is to be heard. Accordingly , Dr. Schlafly’s a ffidavit should have been filed by Decemb er 12, 19 94. Lo cal r ules may req

uire that opposing affidavits be filed earlier tha n required by

the Tennessee Rules of Civil Procedure, see Pfeil v. R ogers, 757 F.2d 850, 857-58 (7th Cir. 1985) cert. denied , 475 U.S. 1107 (1986); 10A Charle s A. Wright et al., Federal Practice and Procedure § 2719, at 12-14 (2d

ed. 1983) ; howeve

r, trial c ourts may , in th ei r discretion, accept

lateaffida

vits. Beaufort Concrete Co. v. Atlantic States Constr. Co., 352 F.2d 460, 462 (5th Cir. 1965), cert. denied, 384 U.S. 1004 (1966). -4- hearing. The trial court

decided to consider Dr. Schlafly ’s aff idavit eve n though ithad not been filed within the time required by the local ru les of cour t. 5 On January 11, 1995, the trial court ente red an order granti ng Dr. W alwy n’s m otion f or summa ry judgm ent because “there is no genuine issue as to a ma ter ial fac t concernin g whether

the defen dants devia

ted from the recog nized standard or acceptable professio nal practi ce.”

The Moores hir

ed a secon d lawy er who filed a “m otion to rec onsider” on February 9, 1995. Since Dr. Walw yn’ s lawy ers had ta ken issue w ith the for

m of Dr. Schlafly’s original “ affidavit,” the Moo res’ moti on w as ac compa nie d by a second affidavi tby Dr. Schlafly

that was “m

ore succinct in form

for the C ourt to consider .” The m

otion reite

rated tha t “the re was s ufficien

tproof to sho w that the Defe ndant

deviated f

rom t he accep table stan dard of ca re suffi cient to r aise a questio n of fact.”

The trial court condu cted anothe r hearingon Februa

ry 24, 1995. The

trial courtdeclined to consider Dr. Schlafly’ s second affidavit because the Moores had “not made a suffic ient

showing as to why t

he affida vit testim ony of Dr. Schl afly in support of

the Motion

to Reconsi der could no t have been subm itted ear lier in respo nse to th e Defe ndants’ M otions for S ummary Judgmen t and why

the testim ony of t he s ame witness sh ould be co nsidered again in t his proce eding.” Accordi ngly , the t rial cour t denied the

Moores’ motion

and reaf

firm ed its conclusi on that Dr. Walwyn was en titled to a judgment as a matter of l aw.6 Brumet, supranote 3, 147 F.R.D. at 647.
-5- II. P URPOSE OF S UMMARY J UDGMENTS

A summ ary j udgmen

t proceed ing provides an efficient and eff ective m eans to conclude a case that can be dec ided on legal issues al one. Alexander v. Memphis Individu al Practic e Ass'n, 870 S.W .2d278, 280 (T enn. 1993) ; White v. Methodist

Hosp. Sout h, 844 S.W .2d 642, 651-52 (Ten n. Ct. App. 199 2). It should not be used for docket co ntrol, Schaefer v . Larsen, 688 S.W .2d 430, 43 3 (Tenn. Ct. App. 1984), or to re place a trial of genuin e, material factual i ssues. Blocker
v. Regional

Medical Ct r., 722 S.W.2d 660, 660-61 (Tenn. 1987); Foley v . St. ThomasHosp., 906 S.W .2d 44 8, 452 (Ten n. Ct . App . 19 95) . Acco rdi ngl y,
summaryju dgment

proceedi ngs should not be perm itted to bec ome " trials by paper," 6 and should not

be used to find fac ts, to re solve dispute d factual issues, or to choose among various fac tual infer ences that may be drawn from undisputed facts. Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn. 1993).

The party seeking a sum

mary judgm ent has the bur

den of dem

onstrating t

he absence of

mate rial fac tual dispute s and its ent itlem ent to a judgment as a matter of law. Byrd v. Hall, 847 S.W .2d at 215; Gambill v . MiddleTenn. M edical Ctr., 751 S.W.2d 145, 146 (Tenn. Ct. App. 1988). The c ou rts hold par ties seeki ng a
summar y judgm ent to st r ingent s tandards

. Baker v. Lederl e Labs., 696 S.W .2d 890, 893 (Tenn. Ct . App. 1985). A cco rdi ngl y, they will grant a sum mary judgm ent only if the facts and the conclusions re as onably drawn fr om the facts support the conclu sion that the movingparty

is entitle d to a

judgment as a matter of law. Bro okins v. The Round Tab le, Inc., 624 S.W .2d 547, 55 0 (Tenn. 1981) ; Mansfield

v. Colonia l Freight S ys., 862 S.W. 2d 527, 530 (Tenn. Ct. App. 1993). They should not gra

nt a sum mary judgm ent if any uncertai nty or doubt exists w ith regard to the fac ts or the conc lusions to be drawn from the facts

. Byrd v. Hall, 847 S.W. 2d at 211; Poore v. Magn avox, Inc., 666 S.W .2d 48 , 49 (T enn. 1984); Gambill v. Middle Tenn . Medical Ctr ., 751 S.W .2dat 147; Baker v. Lederl e Labs., 696 S.W.2d at 89 4.-6- The courts cus tomar

ily tr eat the nonmoving p arty' s pape rs more indulgently than the y do t he p ape rs fi led by th e pa rty seeking the summ ary j udgmen

t. The evidence supporting and opposing the summary judgm ent will be consider e d in the light most fav orable to t he nonmovin g party. Speake r v. Cates Co., 879 S.W. 2d 811, 813 (T enn. 1994) . The non moving p arty is also enti tle d to all favorabl e inferenc es that ca n be reasonabl y drawn from the proof. Byrd v. Hall, 847 S.W. 2d at 210-11; Cowden v. Sovran Bank/Ce ntral South, 816 S.W .2d 741, 744 (Tenn. 1991); Blocker v. Reg ional Medical C tr., 722 S.W .2d at 663. The courts’ indulgence may

also exten d to the for

m of t he nonmoving party 's papers

. Technic allydefective papers may be sufficient to defea

t a sum mary judgm ent if they apprise th e court of

important relevant evidencethat the nonmoving party can and will introduce at trial. 6 James A. Moore et al., Moore's Federal Practice ¶ 56.22[1] (2d ed. 19 95); 10A C harles A . Wri g ht et al., Federal Practice & Procedure

§ 2738, at 485 (2d ed. 1983).

III. T HE F ORM OF T ENN . R. C IV . P. 56 A FFIDAVITS

The trial court decided to consider Dr. Schlafly's original "af fidavit" filed
on Decem ber 15, 199 4, even th ough its form was irr egular. The m

ajority has now concluded that the tr

ial cou rt should have excluded the "affida vit" becau se of defects in the signa

ture and th e jurat. I would not f ind these r

elatively innocuous defects to be fatal to the Moores' case.

Parties seeking or

opposing a sum

mary judgm ent ma y, but are not required to, use evidentiary mate rials to support their res p ective posi tions. In m ost circum stances, the sole pur pose of the se evidenti ary m aterials is to provid e th e courtwith some reliable indicat ion of the proof the parties intend to present at trial. Rooker

v. Rim er, 776 S.W.2d 124, 128 (Tenn. Ct. App. 19 89), cert. denied , 493 U.S. 1073 (1990). Tenn. R . Civ. P . 56.03 perm its the use o f various t

ypes of mate rials including af

fid av its, deposi tions, answ ers to inte rrogator ies, and admis sions on file. Litigants in Tennessee's courts now generally us e affida vits to support an d to oppose m otions for s ummary j udgmen t.-7- An affidavit is nothing more than a written statem ent made and signed underoath befor e an autho rized perso n. Harvey v. State, 166 Tenn. 227, 229, 60 S.W. 2d 420, 420 (19 33); Jas. N. Watt & Co. v. Carnes, 51 Tenn. ( 4 Heisk. ) 532, 534 (1871). Tenn. R. Civ. P. 56 contains no additional requirements with regard to the form

of affid avits in sum

mary judgm ent proce edin gs. Ac cor din gly, documents mee ti ng the general com mon-l aw requirements of being made and signed under oath should be co nsi dered as long as they comply with the other substantive

requirem ents of Tenn. R. C iv. P. 56

.
Dr. Schlafl y's " affidavi t" filed on Decem ber 15, 199 4, is not in the custom ary affidavi t form . It cons ists of thre e relate d docum ents: a one -pa g e introductory statem

ent, a f our-page curriculum vita

e, and a four-pa ge report of Dr. Schlafly's findings an d conclusion s about Mr. Moore's m edic al car e. The curriculum vitae and report are specifically incorporated into the statement. Dr. Schlafly's introductory statement recites that he was "duly sworn" and thereafter states thathe has practiced his specialty in Missouri for more than one year, that Dr. Walw yn "br

eached the

recogniz ed standar

d o f care i n failing to administer antibio tics," and thatthis "brea ch caused Tom Moore to suf fer inj uries he w ould not have other

wise su ffe red as i s mor e fu ll y exp lai ned in my attached report." Dr. Schlafly signed the s tatem

ent, but hi s signature is n ot i mmedia tel y fol low ed b y a jurat and notary's signature.

The April 1994 curriculum vitae attached to the statem ent shows that Dr. Schlafly is a b oard-cert ified orth opaedic sur geon, that

he has bee n licensed to practice his specialty in Missouri since 1985, and that he currently ha s admi tting privileges at seven St. Louis-area hospitals. The rep ort dated D ecem ber 13, 199 4 contains Dr. Sc hlafly 's expert findings andconclusions based on the copies of Mr. Moore's medicalrecords t hat had been provided tohim. Dr. S chlafly signed the last page of the report, and a customary jurat follows hi s signature , as we ll as the seal and signature of a Missouri notary public.

The maj ority has decide d that these document s, tak en together , do not qualify as an affidavit because the first document does not contain a jurat followingDr. Sc hlafly 's signatur e and beca

use the j urat and notary' s signature on7 Price v. Beck er, 81 2 S.W. 2d 597, 598 (Tenn. Ct. App. 1991); State v. Hartley, 790 S.W.2d 276, 278 (Tenn. Crim. App. 1 990) (a ffidavit based on

informat ion and be

lief is insufficient); Keystone Ins. Co. v. Griffith, 659 S.W.2d 364, 365-66 (Tenn. Ct. App. 1983) (affidavit based on information and belief is insufficient).

8 Byrd v. Hall, 847 S.W .2d at 215-16; Teeters v. Currey, 518 S.W.2d 512, 514 (Tenn. 1974); Braswell v. Carother s, 863 S.W.2d 722, 729 (Tenn. Ct. App. 1993); Baker v. Lederle Labs., 696 S.W.2d at 893.

-8- the last page of Dr. Schlafl y's r eport is da

ted the day

before t he date ap pearing on the first page. The m ajority apparently views the difference in the dates as undisputable

evidence that the j urat on

the last page canno t apply

to the prec eding one-page statem ent and the

curriculum vitae. Ther

e are, how ever, ot

her plausible inferenc es. Dr. Sch lafly co ul d h ave po st -da ted or mi sdated the on e-page st atem ent and could have signed both th e first a nd the last p age at the

same time , before

the
no tary affixed h er cert ificate. This conc lusion is cons istent wit h the compl e mentary

statements on the first and last pages of the documents that Dr. Schlafly was "duly

sworn" be fore he si gned and ac knowledge d the docum ents.

Even if these technical defects prevent th e Decem ber 15, 199 4, docum

ents from qualifying as an "a

ffidavit" in the strictest sense of the term, the trial court did not abuse it s discreti on by cons idering them. Despite the irre gularitie s in their for m, the docum

ents dem onstrate t hat Dr. Schlafl y can and will pr ovide com

petent expertt estimony cont

radicting Dr. W alwy n's conclu sions with r egard to negligence and pro ximat e cau se. A cco rdi ngl y, I cannot concur with the majority 's conclusion

that the form of Dr. Schlafl y's D ecem

ber 15, 1994 "affi davit” pre vents its consideration.

IV.

E XPERT A FFIDAVITS IN M EDICAL M ALPRACTICE C ASES

Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115 contro l th e
su b stance of affidavits used to support or to oppose motions for summary jud gment in medical malpractice cases. Tenn. R. Civ. P. 56.05 contains thre e requirem ents. First, affidavits must be made on personal knowledge. 7 Second, they must se

t forth fa cts that woul d be proper ly adm issible at t

rial, but the affidavi ts themselves need not be admissible. 8 Thi rd, th ey mu st aff irma tively9 Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978).

10 Tenn. Code Ann. § 29-26-115(b). The affiant need not practice in the same

special ty as the defendant phy sician. Goodman v. Phythyon, 803 S.W.2d at 701-02.

11 Tenn. Code Ann. § 29-26-115(a)(1).

12 Tenn. Code Ann. § 29-26-115(a)(2).

13 Tenn. Code Ann. § 29-26-115(a)(3). Kilpatrick v. Bryan t, 868 S.W.2d 594, 602 (Tenn. 1993) (the plaintiff must demonstrate that the defendant's negligence more likely than not

caused the injury).

14 Kilpatrick

v. Bryan t, 868 S.W.2d a

t 602 (ca usation in fact is a matter of probability not possibility); White v. Methodist Hosp. South, 844 S.W.2d a t 648-49 (the plain

tif f m ust prove more tha n a mere

possibility

); Whittemore v. Classen, 808 S.W.2d 447, 458 (Tenn. Ct. App. 1991) (a jury c annot base a verdict on "it might have bee n" but must find " it probab ly

was"); St. Martinv. Doty, 493 S.W.2d 95, 97 (Tenn. Ct. App. 1972) (c ourts ca nnot stre tch "pos sibilities" into "probabilities").

-9- show that the a

ffiant is competent to test ify tothe m atters c ontaine d in th e affidavi t. 9 The cour

ts ma y decl ine to consi der aff

idavits tha

t do not m

eet these standard s. See Keys tone Ins. Co. v. Griffith, 659 S.W .2d at 366.

In addition to t

he requir emen ts in Tenn. R. Civ. P. 56.05 , Tenn. Code Ann. § 29-26-115 c ontains five substantive

requirem

ents for e xpert aff

idavits in
m edical malpractice c ases. T he affia nt must first dem

onstrate t hat he or sh e satisfies the geogra

phic and durati onal requir emen ts in Tenn. Code Ann. § 29-26- 115(b). Second, the affi ant mu st demonstrate t hat he or sh e practic es in a profession

or specia lty tha t make s his or her te stimony rel evant to the issues in the
case. 10 Third, the affi ant

must assert fam

iliarity with the recognized standard o f professional practice in the comm unity where the defendant practices or in sim ilar
comm unities. 11 Fourth, the affi ant mu stgive an opinion conc erning whe ther the defendant acted w ith less than or failed to act with ordinary and reasonable care in accordance withthe proper standard of practice. 12 Fifth, t he affia nt must give
an opinion conc erning whe ther the de fendant' s negligenc e mor e likely th an not caused the plainti ff to suff er injur ies that he

or she wou ld otherw ise not have suffere d. 13 The "m

ore likely than not" standard h as also been expresse d in ter ms of requiringplaintiff

s in me dical malpracti ce cases to prov e causation in fact as a matt er of

pro bab ili ty, no t mere pos sib ili ty. 14-10- D R . S CHLAFLY ' S D ECEMBER 15, 1994 A FFIDAVIT

The maj ority has concluded that Dr . Schlaf ly's D ecem

ber 15, 199 4 "affida vit" is subst antively defi cient in t hree areas. First, i t does not demonstrate thatDr. Sc hlafly

is com petent to gi ve an exper

t opinion under

the locali ty rul e in Tenn. Code Ann. § 29-26-115( b). Sec ond, it fails todescribe the existin g standard of care in N ashville a

nd simil ar com

muniti es or Dr . Schlaf

ly's f amili arity withthis standard. Thir d, it does not recite that Dr. Walw yn's negligence caused Mr. Moore's injurie s "with a r easonable degree of

medic al cert ain ty. " I concur only withthe majority ’s conclusion concerning the standard of care in Nas hville and simila r com muniti es.

This court has a

dmonish ed lawy ers to couc h the ir me di cal expert's conclusions in the langu age of T enn. Code Ann. § 29-26-115 i n order toavoid just the sort of interpretative disputes that are involved in this ca se. Gambill v . Middle Tenn. Medical

Ctr. , 751 S.W .2d at 148. Carefu l practit ioners have

heeded thi s advice, but it is not a lway s possible to fram e expert c onclusions in the preci se words of the sta

tute beca use of diffe

rences in the medical and legal vocabularies and frames of referen ce.

Tenn. Code Ann. § 29-26 -115 is n ot "holy writ," and it should never be s o rigidly applied tha

t it requir es the rit ualistic i ncantation

of its pre cise ter

ms in order to perm it an inju red party to maintain a

malpractice c laim against a h ealth
care provider. The courts should expectsubstantial adherenc e to the la

nguage of Tenn. Code Ann. § 29-26-115 but should never abandon the ir judic ial power s of reasonabl e interpretationand constr uction. A t the sum mary judgm ent stage, a ny reasonabl e doubt

concerning the meaning or effect of an expert af fidavit shou ld be resolved in the nonmoving party's favor.

Viewedin a light m

ost favora ble to the M oor e s, Dr. Schlafly 's December 15, 1 994 “affidavit” establishes that he is a board certified orthopaedic surgeo n in Missouri a

nd that he ha s been pra

cticing his specialty

in and arou nd St. L ouis15 The curriculum vitae states that Dr. Schlafly c ompleted his internship and residency in 1985 and that he was licensed to practice medicine in Missouri in 1985.

16 Expertopinions in medical malpractice cases must be to a reasona ble degree of medical ce rt ai nt y. Kilpatrick v. B ryant, 8 68 S.W.2d at 602. The concept of "reasonable deg ree of medical certain

ty" is a leg al, not me dical, concept. While an e xpert's u se of the se words in laying the foundati on to his or

her opini on is well-advised, no reported decision requires that medical experts must use thi s precise phrase when stating an opinion. The phrase usually appears in a lawyer' s question, not in a medical expert's answer.

17 Dr. Schlafly stated that his opinion was based on the medical records he had been provided. The majority seems to infer that his opinion was undermined because he did not have all the available records at hand when he formed his opinion. The nature of the records relied on by Dr. Schlafly

goes to the weight of his opinion, not his competency to give a n opinion.
-11- since 1985. 15 This is sufficient to satisfy the geogra p hic and durational requirements o f Tenn. Code Ann . § 29-26-1 15(b).

Dr. Schlafly’s statem

ent and report also conclude that Dr. Walwy n's "breach caused Tom

Moore inj uries he w ould not haveotherwis e suffer ed" and tha

t "the omissi on of intravenous antibiot ics (exce pt for the single

dose), during the May hospitaliza

ti on at T enn ess ee Ch ris tia n Me dic al Ce nte r, was pro bab ly a contrib uti ng factor in th e later devel opment of Mr. Moo re's bone in fection." While the repor t contains o ther ref

erences to "possibili ties" anddoes not preface Dr. Schlafl y's opi nion with the qualifica tion that it is base d on "a reaso nable degree of medical certain ty," these two statements , taken in a light m ost favora ble to the Moore s, shou ld b e suffici ent to cre ate a j ury que stion on the i ssue of causation. 16

T he on ly material shortcom ing in Dr. Schlafl y's D ecem ber 15, 199 4 "affida vit" is the om

ission of any reference to the appropriate recognized standard of professional practice in Nashville or similar com munities as required

by Tenn. Code Ann. § 29- 26-115(a) (1). D r. Schl afly' s report do es not state that he is familiar with t he standa rd of prac tice for

orthopaedi c surgeons i n Nashvill e or similar comm unities or thatthis standa

rd requir es antibiot

ic prophylaxis in clean orthopaedi c surgery . The report c ontains only

a genera

l refer ence to the "recognized standard of care" and to a report that "the overwhelmi ng numbe r of orthopaedi c surgeons in the Unite d States ha ve chosen to adopt so me ty pe of prophylaxi s." The rep ort does not link these general references to Midd le Tennessee. 17Courts should not weigh the e vidence in a summary judgme nt proceeding. Byrd v. H all, 847 S.W.2d at 211. -12-

D R . S CHLAFLY ' S J ANUARY 30, 1995 A FFIDAVIT

The majority notes that t he only differen ce betwe en Dr. S chlafly's December

15, 1994 and

January 30, 1995 af

fidavits is that the

latter " uses all the appropria te 'buzz' words found in the statute and th e rules. " Thus, t he ma jority appears to concede , as we ll they must, that the

January 30, 1995 af

fidavit m eets all the requir

emen ts of Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29- 26-115. I concur with this conclusion. It follows, therefore, t hat the Jan uary 3 0, 1995 affidavi t, if entitle d to consideration, es tablishes t he existence of a material

factual dispute suff

icient to de feat Dr . Wal wyn' s motio n for sum mary judgm ent.

V. C ONSIDERATION OFTHE J ANUARY 30, 1995 A FFIDAVIT

The only rema

ining issue concerns the trial court's decision not to consider Dr. Schlafl y's Ja

nuary 30, 1995 affidavi t because the Moore s did not ade quately explain the reasons for their failure to submit a p r oper aff idavit prio r to the hearing on Dr. Walwy

n's summa

ry judgm ent motion. The majority has affirm ed the trial cour

t's decis ion because

the second affid avit does not contain "new evidence" and becaus e it is "nothing mor e than the first affidavit dressed up." The
m ajority's reasoning i s plainly at odds wit

h our prior

opinions per

mitti ng the considera tion of late- filed af

fidavits in

opposition to m

ot ions for summ ary judgm ent.

This court has specifically held that the "newly discovered evidence" standard normally associat ed with motions for newtrial shoul d not be used i n
summar y judgment cases to exclude affidavits attached to tim ely filed Tenn. R. Civ. P. 59.04

motion s to alter or amend

. Richland Country Cl ub v. CRC Equities, Inc. , 832 S.W .2d 554, 55 7-58 (Te nn. Ct. A pp. 1991); Schaefer v . Larsen, 6 8 8 S.W.2d at 433. Accordingly , we have directed trialcourts to lo ok with favor on Tenn

. R. Civ. P . 59.04 motions filed before a sum mary judgment becom

es final18 We have not encouraged the same liberality with reg ard to affidavits attached to Tenn. R. Civ. P. 60 mot

ions filed after a summary judgmen t has bec ome final. Braswell v. Carother s, 863 S.W.2d at 730 (the judgment was final and the movant re lied on t he newly discove red evidencerule); Blair v. Johnson City Medical Ctr., 724 S.W.2d 37 0, 371 (Te nn. Ct. App. 1986) (the requirements of Tenn. R. Civ. P. 60 were not met).

-13- because t he moving par ty is se eking an oppor tunity t o try its case f

or the fir st time. 18

The Moores' Tenn. R. Civ. P. 59.04 m otion was f

il ed before the order granting Dr. W alwy n's motion for su mmary j udgmen t becam e final and di d not invoke the "newly discovered evidence" standard

. Dr. Sc hlafly 's second a ffidavit
was not intended

to supply new evidence but

rather to cure perceived deficiencies in his first af

fidavit. Tenn. R . Civ. P . 56.05 specific ally a uthorizes trial cour

ts to perm itparties to supplement affidavits filed in summ ar y ju dgment

proceedi ngs. The trial cour

t should have

considere d Dr. S chlafly 's supplem ental aff idavit in this
case because i t est ablished tha t Dr. Walwy n had not ca rried his b urden of demons trating the

absence o f genuine, mate rial fac tual dispute s.

_________________

___ __________

___ _ WILLIAM C. KOCH, JR., JUDGE