Tennessee MedMal lawyers: It might be a good idea to just get home-grown experts from now on.

Kennard v. Townsend is the most recent of several COA cases on the so-called “locality rule.” Like most of its predecessors, Kennard assures us (scout’s honor!) that out-of-town experts are perfectly fine, as long as they are familiar with medical standards in a city that is similar to yours.  This similarity is shown (theoretically) by “information such as the size of the community, the existence or non-existence of teaching hospitals in the community and the location of the community.Kennard v. Townsend (No. W2010–00461–COA–R3CV), 2011 WL 1434625, at *2 (Tenn. Ct. App. April 14, 2011).  Of course, that’s a non-exhaustive list; but at least in theory, area demographic stats are a solid start to establishing the required community similarity.

But how does this play out in the courts?  Cases where out-of-state experts get the court’s approval are becoming more and more rare.  Kennard draws some fair distinctions between Memphis, TN and Springfield, MO (the most prominent being population).  But some cases have even refused to equate Memphis with Nashville.  Ouch!

So, heads up, MedMal lawyers on both sides of the “V” … Is this the dawn of an era where the only real safety zone is hiring an expert from the same city where your case arose?  And all that jazz about similar cities with similar populations and similar hospitals — all that case law swearing you don’t need equal populations or even first-hand knowledge — what about all that?  Does the wide open abuse of discretion standard pretty much toss those promises right out the window?

Here’s Kennard if you’re interested. Whether you like the holding or not, it gives a very comprehensive survey of the state of the Tennessee courts on the locality rule.  Legal writers (and more specifically, folks prepping an expert or drafting an expert’s affidavit) must walk a very fine line and be super-precise and extra-detailed, or else they risk finding themselves without an expert on the eve of trial.

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