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Holsclaw v. Ivy Hall Nursing Home, Inc.

Court of Appeals of Tennessee, Knoxville

December 19, 2016


          Assigned on Briefs November 1, 2016

         Appeal from the Circuit Court for Carter County No. C12784 Jean A. Stanley, Judge

         When 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.

         Tenn. Sup. Ct. 10B Interlocutory Appeal as Right; Judgment of the Circuit Court Reversed

          Mark A. Fulks, Johnson City, Tennessee, for the appellant, Ivy Hall Nursing Home, Inc.

          Anthony Alan Seaton, Johnson City, Tennessee, for the appellee, Jeanie Holsclaw.

          J. 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 dissenting opinion.




         On 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.

         On September 12, 2016, Appellant filed a motion under Rule 35.01 of the Tennessee Rules of Civil Procedure, [1] asking that Appellee be examined by a certified rehabilitation counselor ("CRC"), Edward M. Smith.[2] 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[.]"

         Appellee 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[.]"

         The trial court held a hearing on the Rule 35 motion on September 19, 2015. Therein, the trial judge made the following statements:

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 done.
* * *
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.[3] 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 do that.
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 without issue.

         According 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.

         At some point not clear from the record, Appellee responded in opposition to the motion to recuse.[4] Eventually, the trial judge entered an order denying the motion to recuse on or about October 28, 2016.[5] 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 do ...

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