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RALPH v. HUBA NAGY

October 16, 1990

JAMES TYREE RALPH, JR., a Minor Suing by His Next Friend and Mother, Wei C. Ralph
v.
HUBA NAGY, M.D.



The opinion of the court was delivered by: WISEMAN

 THOMAS A. WISEMAN, JR., CHIEF UNITED STATES DISTRICT JUDGE

 In accordance with the accompanying memorandum, this Court denies plaintiff's Motion For A Ruling That T.C.A. § 29-26-115(b) Will Not Preclude The Testimony of Two New York Physicians.

 MEMORANDUM

 THOMAS A. WISEMAN, JR., CHIEF UNITED STATES DISTRICT JUDGE

 On September 28, 1990, this Court held a hearing on Plaintiff's Motion For A Ruling That T.C.A. § 29-26-115(b) Will Not Preclude The Testimony Of Two New York Physicians In This Case. Having denied plaintiff's Motion from the bench, the Court issues this Opinion explaining the reasons for denying the requested relief.

 I.

 The underlying action is a medical malpractice claim for injuries of a minor, James Tyree Ralph, allegedly arising out of prenatal care, labor, and delivery care. As part of the plaintiff's burden of proof in this case, the plaintiff will have to show by a preponderance of evidence that the conduct of the defendant was a proximate cause of injuries to the Ralph child. The plaintiff contends that the baby sustained a loss of oxygen over several hours during active labor and before delivery, and that this loss of oxygen caused the child to sustain his brain injury and to have other consequential damages. See Affidavit of Randall L. Kinnard, Exhibit A to Plaintiff's Motion, at p. 2.

 The plaintiff readily admits that two physicians from North Carolina are available to address the standard of care and breach of the standard of care elements of the malpractice cause of action. Plaintiff further admits that these same North Carolina physicians are competent to complete the prima facie case by testifying on the causation element. However, plaintiff's position is that this Court should allow two New York physicians to testify on causation, as they are the "appropriate" witnesses because their training, education, and experience on the question of causation will allow the plaintiff to produce a "convincing and irresistible case to the jury." Id. at 3.

 Neither one of the two proposed New York expert witnesses is licensed to practice in Tennessee or a state contiguous to Tennessee and never has been. T.C.A. § 29-26-115(b) provides as follows:

 
No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a) unless he was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available. *fn1"

 Plaintiff has made two major arguments to this Court in support of the Motion to allow the New York doctors to testify. First, plaintiff points to the waiver language at the end of § 29-26-115(b) and urges this Court to conclude that "the appropriate witnesses otherwise would not be available" unless the Court allows the New York physicians to testify on causation. Second, the plaintiff argues that the Tennessee statute is unconstitutional as it applies to causation-only experts, under the due process and equal protection clauses of the United States Constitution.

 II. ...


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