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Click here for the full text of this decision FACTS:Petitioner, Dr. Mark Larson, operated on respondent, Mary Martha Downing, on July 14 and Aug. 6, 1998, to repair a left orbital blow-out fracture which had entrapped a muscle in her left eye. She sued Larson, alleging that because of his negligence she required a third surgery to release the entrapped muscle. She filed an expert report by Dr. Martin L. Bell, her only expert, who was deposed in March 2002. Larson then moved for summary judgment, asserting that Bell’s testimony should be excluded because he was not qualified as an expert, and that without his testimony Downing had no evidence to support her claims. Specifically, Larson argued that Bell was not qualified because he had admitted that at the time of his deposition it had been 15 years since he had treated an orbital blow-out fracture, and that while he had used silicone implants with a dacron mesh manufactured by Dow Corning, he had never used a titanium mesh implant manufactured by Synthes as Larson had done. Downing responded that Bell had been a practicing physician since 1975, that he was licensed in four states (Louisiana, Massachusetts, California and Arizona) and one foreign country (the Netherlands), that he was board certified in surgery, plastic and reconstructive surgery, and cosmetic surgery, that he had been chief of plastic surgery at two medical centers, that he had been an assistant clinical professor in plastic surgery at Tulane University and had taught there until about a year before Downing’s surgery, and that he continued to practice in Arizona. Bell explained why he had not repaired an orbital blow-out fracture in 15 years: “Like many plastic surgeons, as you progress in practice, you tend to go from reconstructive surgery into cosmetic surgery. And since facial fractures tend to be emergency cases at all hours of the day and night, you get younger associates who come in with you and they do it and that’s basically the progression of my practice.” Downing did not offer evidence that Bell had ever taught the surgical procedure. The trial court granted Larson’s motion, and Downing appealed. A divided court of appeals reversed and remanded, applying the statutory requirements for expert testimony in medical malpractice cases then in effect. HOLDING:The court reverses the judgment of the court of appeals and affirms the judgment of the trial court. “Whether to exclude Bell’s testimony is a close call on this record. Close calls must go to the trial court.” The trial court did not act without reference to guiding rules. It was required by statute to consider whether Bell was actively practicing medicine in rendering medical care services relevant to the claim. At the time the claim arose, it had been at least 11 years since Bell had performed the surgery at issue, and there was no evidence that Bell had ever taught the procedure. The trial court was well within its discretion in determining that Bell was too far removed from surgical practice and even from teaching, the court concludes. OPINION:Per curiam.

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