By: John Barry
Most trial lawyers have had the unfortunate experience of having a disclosed and engaged medical doctor expert to deliver opinions or conclusions that are damaging to their side of the case when that expert is deposed by the adversary attorney. When that occurs, the adverse counsel will doubtless want to read the damaging segments of the medical expert’s deposition to the jury as a part of the opposing attorney’s case in chief.
Fortunately, at least where physicians (and perhaps other engaged experts) are concerned, there is a sometimes overlooked rule of civil procedure in Tennessee that can prevent the adverse party from using that deposition for anything but impeachment of the expert. TRCP 32.01(3) pointedly provides: “Depositions of experts taken pursuant to the provisions of TRCP 26.02(4) may not be used at trial except to impeach in accordance with Rule 32.01(1)”. As is generally known, Rule 26 .02(4) allows the adversary attorney to depose disclosed experts who the other party will call at trial. However, if the party engaging the testimonial expert withdraws that expert as a witness, and does not call that witness to testify(or offer the witnesses deposition) at trial, Rule 32.01(3) simply prohibits that expert’s deposition testimony from being used at trial by the adverse party. (See Burchfield v. Renfree 2013 Tenn. App. Lexis 685 and Dial v. Harrington 138 S. W. 3d 895(Tenn. App. 2003).
So, although the engaged expert may have given a damaging opinion in the discovery process, Rule 32.01(3) can be used to keep that damaging opinion from the jury.
The above-mentioned Rule has been interpreted to preclude the presentation of such evidence only at trial. Tennessee Courts have held that such testimony can be used for any other purpose for which an affidavit could be used. In Bowen v. Defranco 1992 Tenn. App. Lexis 93, the question was whether such testimony could be used by the adversary to oppose a Motion for Summary Judgment. The Court held that it could be so used because the issues in the Summary Judgment practice are an examination of whether there were “material issues of fact” in issue. Whether the rule announced in Defranco continues to be viable after the enactment of TCA 20-16-101 appears to be an open question. 20-16-101 states that on Motion for Summary Judgment the moving party who does not bear the burden of proof at trial shall prevail if the moving party demonstrates the nonmoving party’s evidence is insufficient to establish an essential element of the claim. It could be argued that if the testimony of the expert in question could not be used at trial because of 32.01(3), and that was the only evidence the nonmoving party had to establish an essential element of the claim, then the Motion for Summary Judgment should be granted. Regardless of how the courts might resolve that issue, 32.01(3) is an important Rule to remember and employ when applicable.
John D. Barry has been a civil litigator for nearly 40 years, defending clients in cases involving torts, contracts, products liability, insurance and casualty. He serves in an Of Counsel role in the Chattanooga office.