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Travis v. Ferraraccio9/19/2005
wever, even after considering Dr. Krendel's affidavit, the court concluded the record still contained no evidence that Dalton and Clarksville were similar communities or that Dr. Krendel was applying the standard of care for Dalton in assessing the conduct of Drs. Ely and Ferraraccio.
B.
We have reviewed Dr. Krendel's deposition testimony in the light most favorable to Ms. Travis. Based on a fair reading of the deposition, we have reached the same conclusion that the trial court did. When Dr. Krendel gave his deposition, he did not appear to be relying on his understanding of the standard of care in Dalton to assess Dr. Ely's and Dr. Ferraraccio's treatment of Mr. Travis. Given that the trial court had no other testimony from Dr. Krendel when it was considering the summary judgment motion, the trial court did not abuse its discretion in finding that Dr. Krendel's testimony was inadmissible at that point.
Dr. Krendel's affidavit submitted along with Ms. Travis's Tenn. R. Civ. P. 59.04 motion does not alter this result. This affidavit addresses only the trial court's concern regarding the lack of evidence that Dalton's medical community was similar to Clarksville's. It contains nothing new indicating that Dr. Krendel was applying, or could have been applying, the standard of acceptable professional practice in Dalton when he testified in his deposition regarding the standard of care applicable to Drs. Ely and Ferraraccio and their alleged breach of that standard. Thus, Ms. Travis failed, both in her opposition to the summary judgment motion and in her motion to alter or amend the judgment, to establish that Dr. Krendel's opinions regarding the applicable standard of care and the breach of that standard could "properly be applied to the facts at issue" in this case. McDaniel v. CSX Transp., Inc., 955 S.W.2d at 258. Accordingly, the trial court did not abuse its discretion in excluding Dr. Krendel's testimony and denying Ms. Travis's motion to alter or amend the judgment based on Dr. Krendel's new affidavit.
IV. The Exclusion of Dr. Bernard Abrams's Testimony
We now turn to the exclusion of the testimony of Dr. Abrams, the neurologist who was in private practice in Kansas City, Missouri in 1996. The trial court excluded Dr. Abrams's testimony on two grounds. First, the court determined that Dr. Abrams had failed to establish that St. Joseph and Clarksville were similar communities in 1996 because the demographic data relied upon by Dr. Abrams was from the year 2000. The court also concluded that Dr. Abrams's conclusion that St. Joseph was similar to Clarksville was "inherently unreliable" because it conflicted with his earlier admission that he was unfamiliar with the actual standard of care in Clarksville. We have determined that the trial court erred by excluding Dr. Abrams's testimony.
A.
Like the Tenn. R. Civ. P. 26 disclosure regarding Dr. Krendel, the disclosure regarding Dr. Abrams stated that he too was familiar with the recognized standard of professional practice in Clarksville or similar communities in June 1996 for neurologists such as Dr. Ferraraccio and emergency room and attending physicians such as Dr. Ely. The disclosure stated that Dr. Abrams had reviewed demographic information regarding the community of Clarksville and the medical community in particular, that he was aware of the number of licensed beds and active physicians in Clarksville's two hospitals in 1995, and that he, like Dr. Krendel, had attended national meetings of neurologists. In addition, Dr. Abrams's disclosure stated that he had reviewed Yellow Page advertisements indicating the types of specialty practices available in Clarksville and that he
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