 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sommer v. Womick7/18/2005
I. FACTUAL BACKGROUND
In 1998, the Sommers retained John Womick and his law firm to represent them in a medical malpractice action against Dr. G. William Davis. A lawsuit was filed on December 3, 1998, in the U.S. District Court for the Middle District of Tennessee. The lawsuit was scheduled for trial on May 22, 2001.
On May 21, 2001, the day prior to trial, a hearing was held pursuant to Rule 104, Fed. R. Evid., to determine the admissibility of the testimony of Dr. Matthew F. Gornet who Mr. Womick planned to call as a witness in the Sommers' behalf. The hearing was held before U.S. District Court Judge William J. Haynes Jr., and the Sommers were in attendance. Following a lengthy proffer of the testimony of Dr. Gornet, Judge Haynes commented on the requirement that, in Tennessee, a medical expert in a medical malpractice case must be able to testify concerning the standard of care in this or a similar community. Judge Haynes noted the inability of Dr. Gornet to satisfy this requirement and that Dr. Gornet based his testimony upon a national standard of care which Judge Haynes observed was insufficient under Tennessee law. Judge Haynes explained that Rule 26 requires the disclosure of an expert's opinion and the bases for that opinion in order to allow an effective cross examination of the expert during trial. He noted that the Rule 26 disclosure for Dr. Gornet failed to state any factual basis for an opinion that St. Louis and Nashville were similar communities and had similar standards of care. Judge Haynes also observed that during Dr. Gornet's testimony, he alluded to having received unspecified demographic data from manufacturers that convinced him the two communities were the same but the Rule 26, Fed. R. Civ. P., disclosure had not been supplemented to include that data. Judge Haynes then ruled as follows:
The Court feels that Tennessee law was sufficiently clear on this subject to provide adequate guidance to plaintiffs and their counsel on what the requirements for the admissibility of expert opinion testimony, what those requirements are in a medical malpractice action. The plaintiff's (sic) counsel have not presented expert testimony that meets the requirements of Tennessee law, nor did they do sufficient work to meet the requirements of Rule 26(a)(2).
Individually and collectively, the Court feels that it would be improper to admit the testimony of Dr. Gornet. And without the testimony of Dr. Gornet, there is no expert testimony for which the plaintiffs could establish a judgment under the Tennessee Medical Malpractice Act.
And for that reason, the Court is going to deny the admissibility of this expert testimony, and this case will be dismissed. We're adjourned.
Following dismissal of the Sommers' case, there is evidence that Mr. Womick stated the dismissal was not his fault, that the Sommers would win an appeal and Dr. Gornet would be allowed to testify. Mr. Womick appealed the ruling of Judge Haynes to the United States Court of Appeals, Sixth Circuit. That court rendered its opinion on January 30, 2003, affirming Judge Haynes. The opinion of the Sixth Circuit Court of Appeals detailed several instances of negligent conduct by the Sommers' attorney, Mr. Womick. The Sommers filed a legal malpractice action against Mr. Womick on April 25, 2003.
On March 12, 2004, a motion for summary judgment was filed in behalf of the defendant, Mr. Womick, on the ground plaintiff's lawsuit was not filed within the statutory period of limitations established by Tenn. Code Ann. ยง 28-3-104(a)(2). The motion was granted by the trial court on April 27, 2004. The trial judge stated in his Memorandum and Order that "the dec
Page 1 2 3 4 5 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|