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Expert Contiguous State Requirement

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CaseC.L. Gilbert, Jr. v. Izak Frederick Wessels, M.D.

Issue:  Did the trial court err in declining to waive the contiguous state requirement for a testifying expert witness?

Facts:  Defendant’s attorney spent 35 hours attempting to locate a medical expert in Tennessee or a contiguous state before settling on a Florida expert, contending that a closer expert was not available. Apparently, only a few doctors have personally performed the procedure in question, although several are familiar with it.  The trial court refused to allow the expert to testify under § 29-26-115(b).

Appellate Decision: The intermediate court upheld the refusal to allow the Florida expert, holding that defense counsel’s efforts to find an expert from Tennessee or a contiguous state was only “cursory” since counsel had contacted only 13 of at least 2,300 doctors in the field, and counsel unnecessarily limited the search to only those who had actually performed the medical procedure at issue.

Review Granted: March 5, 2014.

Prediction: This case is difficult to predict because of its fact-based nature, but Ben thinks the supreme court may reverse.  Courts have held that parties may not use distant experts who are simply “better” than closer ones, but an expert who has actually performed a procedure is more than just “better” than one who has not.