C.L. GILBERT, Jr. v. Izak Frederick WESSELS, M.D., 458 S.W.3d 895

In Jan. 2010 Dr. Izak Wessels performed YAG laser surgery on C.L. Gilbert, Jr.; Gilbert sued for health-care liability in Feb. 2011. Trial was set for Oct. 3, 2012.
In Sept. 2012, less than one month before trial, Wessels moved to waive Tenn. Code Ann. § 29-26-115(b)’s "contiguous state" expert-licensure requirement so Florida ophthalmologist Dr. Scott Geller could testify.
Wessels submitted an attorney affidavit describing ~35 hours of search effort, a Tennessee ophthalmologist’s statement supporting the need for a surgeon-expert, and deposition testimony calling Dr. Geller among the most experienced YAG-laser surgeons.
Gilbert opposed, arguing Wessels failed to show unavailability of qualified experts from Tennessee or bordering states and that Wessels’ search was not diligent.
The trial court denied the waiver request and refused interlocutory review. The Court of Appeals granted an extraordinary appeal under Tenn. R. App. P. 10 and affirmed the trial court. The Supreme Court granted permission to appeal under Tenn. R. App. P. 11.
The Supreme Court held the Court of Appeals improvidently granted the Rule 10 extraordinary appeal, vacated the Court of Appeals’ decision, and remanded to the trial court for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of Appeals properly granted an extraordinary Rule 10 appeal of the trial court’s denial of a §29-26-115(b) waiver	Gilbert: Court of Appeals should not have granted Rule 10 because trial court’s discretionary evidentiary ruling did not constitute an extraordinary departure	Wessels: Immediate review was warranted because trial court wrongly denied waiver, preventing his chosen expert from testifying	The Supreme Court held the Court of Appeals improvidently granted Rule 10; the denial of the waiver was a discretionary evidentiary ruling not warranting extraordinary interlocutory review under Rule 10; case remanded to trial court
Whether trial court abused discretion in refusing to waive the contiguous-state expert-licensure requirement	Gilbert: Wessels failed to show diligence and unavailability of qualified experts from Tennessee or contiguous states	Wessels: He made diligent efforts and needed a highly experienced YAG-laser surgeon (Dr. Geller) not available in contiguous states	The Supreme Court did not reach the substantive correctness of the waiver denial on the merits; it held only that the denial did not qualify for Rule 10 extraordinary review and thus should be reviewed, if at all, after final judgment

State v. McKim, 215 S.W.3d 781 (Tenn. 2007) (standards for granting extraordinary appellate review)
State v. Willoughby, 594 S.W.2d 388 (Tenn. 1980) (circumstances warranting extraordinary review)
Sutphin v. Platt, 720 S.W.2d 455 (Tenn. 1986) (trial court authority to waive contiguous-state limitation)
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997) (trial court discretion over admissibility and qualifications of expert testimony)
Rose v. H.C.A. Health Servs. of Tenn., Inc., 947 S.W.2d 144 (Tenn. Ct. App. 1996) (example of upholding trial court denial of §29-26-115(b) waiver)