Assigned on Briefs November 1, 2016
from the Circuit Court for Carter County No. C12784 Jean A.
asked to rule on the defendant's motion for physical
examination by a certified rehabilitation counselor, the
trial judge telephoned the director of a university
department for information regarding the program in order to
determine whether rehabilitation counselors "are even
qualified to testify as experts." The trial judge
disclosed the communication on the record and granted the
examination. Later, the defendant filed a motion to recuse.
The trial judge denied the motion and this accelerated
interlocutory appeal followed. Because the trial judge
learned information concerning facts in dispute from an
extrajudicial source, we conclude that recusal is required by
Canon 2.11 of the Tennessee Code of Judicial Conduct.
Sup. Ct. 10B Interlocutory Appeal as Right; Judgment of the
Circuit Court Reversed
A. Fulks, Johnson City, Tennessee, for the appellant, Ivy
Hall Nursing Home, Inc.
Anthony Alan Seaton, Johnson City, Tennessee, for the
appellee, Jeanie Holsclaw.
Steven Stafford, P.J., W.S., delivered the opinion of the
court. Richard H. Dinkins, J., filed a separate concurring
opinion. Charles D. Susano, Jr., J., filed a separate
STEVEN STAFFORD, JUDGE
November 20, 2012, Plaintiff/Appellee Jeanie Holsclaw
("Appellee") filed a retaliatory discharge
complaint against Defendant/Appellant Ivy Hall Nursing Home,
Inc. ("Appellant"). Eventually, the first two trial
judges recused or otherwise removed themselves from the case,
and the Honorable Jean Stanley was assigned to preside over
the matter. The parties engaged in extensive discovery over
the years. Appellant filed a motion to dismiss the complaint
and a motion for summary judgment. After the trial court
denied the motion for summary judgment, Appellant requested
an interlocutory appeal under Rule 9 of the Tennessee Rules
of Appellate Procedure, which was denied by the trial court,
and an extraordinary appeal under Rule 10 of the Tennessee
Rules of Appellate Procedure, which was denied by this Court.
Trial was set five different times but never occurred. Most
recently, trial was set for November 16, 2016.
September 12, 2016, Appellant filed a motion under Rule 35.01
of the Tennessee Rules of Civil Procedure,  asking that
Appellee be examined by a certified rehabilitation counselor
("CRC"), Edward M. Smith. According to the motion, the
examination was necessary to determine whether Appellee was
capable of performing the job from which she was discharged.
Appellant explained that Mr. Smith would "review
[Appellee's] employment history, education, work injury,
physical limitations, and daily activities in order to
determine the impact that a particular disability has on the
subject's employability in the open labor market and
identify vocational skills that are transferrable." In
addition, Appellant asserted that a CRC would be able to
"testify about the availability of alternative job
opportunities in a particular labor market[.]"
filed a response in opposition to the motion for a Rule 35
examination on September 19, 2016. Therein, Appellee argued
that Appellant's request for an examination was the
fourth such examination that Appellee would be required to
submit to in conjunction with this litigation, that Appellant
had already admitted that Appellee had a vocational
disability, and that vocational disability was not an element
of Appellee's wrongful termination case. Finally,
Appellee asserted that a CRC could not testify as to the
"availability of alternative job opportunities in the
particular labor market[.]"
trial court held a hearing on the Rule 35 motion on September
19, 2015. Therein, the trial judge made the following
THE COURT: My view on this is that I would rather have one
expert I could trust that's appointed by the court, who
doesn't care who the plaintiff is or who the defendant
is. Really, my leaning would be for the court to appoint
somebody. No, if you all don't want to do that, I'm
probably going to let him go ahead and have this evaluation
* * *
THE COURT: Okay. And I will tell you all this: Most of the
experts I've had on this kind of topic are, like, Dr.
Hankins, vocational disability experts. So, I really was not
all that familiar with the rehab counselors. To me, the whole
concept of a rehab counselor is somebody who is going to
counsel with you, form a relationship with you, and try to
help you. So my first question was: Are these dudes even
qualified to testify as experts?
So, frankly, I called the director of the department at the
University of Tennessee this morning. I talked to Dr.
Mulkey. I don't think there is any problem
with me doing that, but I do think I have an obligation to
disclose to you that I did. He just kind of filled me in on
what the program, the certification is, what these guys do
and don't do, you know, enough for me to at least
conclude that this is the type of certification for a person
that I might let testify as an expert.
So I understand that what this person might or might not be
able to testify to is also going to be limited by what their
background, education, and so forth is. And I'm not even
making any kind of ruling on that right now, but I had even
asked him if he could give me a couple of names of people who
might be willing to work for the court, not necessarily for a
party in litigation and he said that, yes, he could probably
So, just for general information, if you're ever in a
position where you would prefer to have a court-appointed
expert that doesn't testify for a living, I think I can
get us one. Just general info.
Regardless, at the conclusion of the hearing, the trial court
granted Appellant's motion for a Rule 35 examination. It
appears that the Rule 35 examination was later completed
to Appellant, it received a copy of the transcript from the
September 19, 2016 hearing on October 21, 2016. Appellant
subsequently filed a motion to recuse the trial judge on
October 25, 2016. Therein, Appellant argued that the trial
judge had "acquired information from an extra-judicial
source that is not available to the parties" and
"cannot be subject to scrutiny in the adversarial
process." Because the trial judge would be required to
rule on the admissibility of Mr. Smith's testimony,
Appellant contended that this extra-judicial information
amounted to an independent investigation of disputed facts,
an act prohibited by Tennessee law.
point not clear from the record, Appellee responded in
opposition to the motion to recuse. Eventually, the trial judge
entered an order denying the motion to recuse on or about
October 28, 2016. Therein the trial judge ruled that she had
"done no investigation of defendant's expert witness
whatsoever." Instead, the trial judge indicated that she
had only inquired as to "what graduates might go on to