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Gilbert v. Wessels

Supreme Court of Tennessee, Knoxville

December 18, 2014

C.L. GILBERT, JR.
v.
IZAK FREDERICK WESSELS, M.D

Session September 4, 2014

Tenn. R. App. P. 11 Appeal by Permission; Court of Appeals Order Granting Tenn. R. App. P. 10 Extraordinary Appeal Vacated; Case Remanded to the Circuit Court. Circuit Court for Hamilton County. No. 11C201; Jacqueline S. Bolton, Judge.

Court of Appeals Order Granting Tenn. R. App. P. 10 Extraordinary Appeal Vacated; Case Remanded to the Circuit Court.

Alix C. Michel and David J. Ward, Chattanooga, Tennessee, for the appellant, Dr. Izak Frederick Wessels.

Marvin Bernard Berke and Jeremy Matthew Cothern, Chattanooga, Tennessee, for the appellee, C.L. Gilbert, Jr.

SHARON G. LEE, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK, GARY R. WADE, JEFFREY S. BIVINS, and HOLLY M. KIRBY, JJ., joined.

OPINION

SHARON G. LEE, C.J.

Page 896

The issue we address in this appeal is whether the Court of Appeals properly granted the defendant a Tennessee Rule of Appellate Procedure 10 extraordinary appeal. The trial court denied the defendant's motion for a waiver of the contiguous state requirement in Tennessee Code Annotated section 29-26-115(b) as to an expert witness. The Court of Appeals granted the defendant's Rule 10 appeal and held that the trial court did not abuse its discretion in declining to waive the contiguous state requirement. We hold that the Court of Appeals improvidently granted the appeal because the trial court did not so far depart from the accepted and usual course of judicial proceedings as to require immediate review and because a review was not necessary for a complete determination of the action on appeal. Tenn. R. App. P. 10(a). Accordingly, we remand this case to the Circuit Court for Hamilton County for further proceedings.

OPINION

I.

On January 22, 2010, Dr. Izak Frederick Wessels, a Hamilton County ophthalmologist, performed YAG laser surgery[1] on C.L. Gilbert, Jr.'s right eye. On February 1, 2011, Mr. Gilbert filed a health care liability action against Dr. Wessels. The trial court set the case for trial on July 10, 2012, and subsequently reset the trial date to October 3, 2012.

Less than a month before trial, on September 6, 2012, Dr. Wessels filed a motion seeking a waiver of Tennessee Code Annotated section 29-26-115(b)'s contiguous state requirement, which would allow Dr. Scott Geller, an ...


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