Jeanette Starnes v. Akinlaja
| Decision Date | 02 March 2023 |
| Docket Number | E2021-01308-COA-R10-CV |
| Parties | SHAY LYNN JEANETTE STARNES v. OLUKAYODE AKINLAJA, M.D., ET AL. |
| Court | Tennessee Court of Appeals |
Session September 21, 2022
Extraordinary Appeal from the Circuit Court for Hamilton County Nos. 17C961, 18C1319 W. Jeffrey Hollingsworth, Judge
In this health care liability action, the trial court granted the defendants' motions to compel the plaintiff to produce expert witness materials despite the plaintiff's claim of the work product doctrine. The trial court subsequently denied the plaintiff's motion for interlocutory appeal. Upon the plaintiff's application, this Court granted leave for an extraordinary appeal. Determining that the plaintiff has waived any privilege or protection for specific materials requested by the defendants, including expert witnesses' notes, draft reports, and communications with counsel, we affirm the trial court's grant of the defendants' motions to compel, inclusive of the trial court's proviso allowing the plaintiff to present specific materials for review if she believes they contain mental impressions of her counsel. However, also determining the trial court's order to be overly broad, we modify the language of the order to more closely track the language of Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants' specific requests.
Tenn R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed as Modified; Case Remanded
Richard D. Piliponis, Benjamin J. Miller, and Zachary L. Gureasko, Nashville, Tennessee, for the appellant, Shay Lynn Jeanette Starnes.
Joshua A. Powers, Emily M. Roberts, and Derek W. Mullins, Chattanooga, Tennessee, for the appellee, Olukayode Akinlaja, M.D.
Joshua R. Walker, Associate General Counsel, University of Tennessee, Knoxville, Tennessee, for the appellee, State of Tennessee.
OPINION
This action arose from post-surgical complications suffered by the plaintiff, Shay Lynn Jeanette Starnes, following a caesarean section performed at Erlanger Medical Center in Chattanooga on April 28, 2016. Ms. Starnes filed a complaint in the Hamilton County Circuit Court ("trial court") on August 23, 2017, naming as defendants the Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Medical Center ("Erlanger"); Olukayode Akinlaja, M.D.; and Joseph H. Kipikasa, M.D.[1] According to the complaint, Ms. Starnes was twenty-nine weeks into her pregnancy when she was admitted to Erlanger two days prior to her surgery with a diagnosis of pre-eclampsia. Ms. Starnes alleged that during the surgery, her bowel was partially transected and that the defendant physicians either "failed to recognize" or "failed to acknowledge" that the partial transection had occurred. Ms. Starnes averred that upon her experiencing complications, an exploratory laparotomy performed on May 2, 2016, revealed that her "bowel near the terminal ileum was 80% transected" with "[m]ultiple thick plaques of infection" and that she "endured resection of the bowel and anastomosis" on the same day and a subsequent surgery for drainage of an abscess. Ms. Starnes also averred that following discharge from Erlanger, she endured ongoing "bowel and wound problems," necessitating hospitalizations, and that she ultimately "underwent another exploratory laparotomy for take down of the enterocutaneous fistula, extensive lysis of adhesions and an ileocecectomy" on November 9, 2016. Ms. Starnes further averred that she continued "to experience urgency and frequency of bowel movements" and continued to require medical care for these issues.
Requesting a jury trial, Ms. Starnes asserted a claim for medical negligence; requested general, specific, and punitive damages; and raised a challenge to the constitutionality of non-economic damages caps, specifically challenging Tennessee Code Annotated § 29-39-102 (2012). She contended that Erlanger was vicariously liable "under the theory of respondent superior for the acts or omissions of its employees and/or agents."
Based on Erlanger's affiliation with the State of Tennessee ("the State"), Ms. Starnes also filed a claim with the Tennessee Claims Commission ("Claims Commission"). Dr. Akinlaja states in her appellate brief that the trial court entered an agreed order of consolidation on March 26, 2019, upon a motion to consolidate for purposes of discovery and trial that had been filed by the State. We note that this agreed order and the materials transferred from the Claims Commission are not in the appellate record.
On July 19, 2021, in what it noted was a consolidated action upon transfer from the Claims Commission, the State filed in the trial court a "Motion to Compel Claimant to Produce Correspondence to and from Her Expert Witnesses, Draft Reports of Expert Witnesses, and any Similar Materials" pursuant to Tennessee Rules of Civil Procedure 26, 34, and 37. The State averred that upon Ms. Starnes's disclosure of her intent to call four expert witnesses, including Gerald R. Harpel, M.D.; Mark D. Anderson, M.D.; Mark Boatner, M.Ed.; and Charles L. Alford, III, Ph.D., the defendants had proceeded with depositions. According to the State's motion, "[d]uring the deposition of [Ms. Starnes's] third disclosed expert witness, Dr. Mark Anderson, [the State] learned for the first time that [Ms. Starnes] had withheld certain information pertaining to her expert witnesses, including correspondence and perhaps a draft of a report or opinions."
Relying primarily on Tennessee Rule of Civil Procedure 26.02, the State argued in its motion that (1) relevant information is discoverable, (2) testifying experts are not among the individuals whose work product is protected, (3) Tennessee has not amended its Rule 26.02 to adopt a 2010 amendment to Federal Rule of Civil Procedure 26(b)(4) that protects draft reports and communications of expert witnesses, (4) Tennessee's Rule 26.02 does not limit discovery of expert witnesses, (5) communications between an expert witness and counsel are discoverable under Tennessee evidentiary rules concerning cross-examination, and (6) Ms. Starnes's counsel waived attorney work product protection in attorney-expert communications by voluntarily disclosing information to a testifying expert. The State requested that the trial court compel Ms. Starnes "to produce all correspondence to and from her testifying expert witnesses, all reports, including drafts, created by, for, or on behalf of any expert, all notes of any expert, and any other materials reviewed or created by any testifying expert that have not already been produced."
The State attached to its motion to compel Ms. Starnes's responses to the State's first set of interrogatories and requests for production, a transcript excerpt of Dr. Anderson's deposition, an order entered by the Claims Commission in another case granting the State's motion to compel expert witness materials in that cause, and email correspondence among counsel for the parties. The transcript excerpt indicated that during the deposition, Dr. Anderson testified that after reviewing materials sent to him by Ms. Starnes's counsel, he had prepared and sent an email to counsel with his thoughts stated in several bullet points. During the deposition, Ms. Starnes objected to discovery of communication between Dr. Anderson and Ms. Starnes's counsel on the basis of the work product doctrine.
On July 23, 2021, Dr. Akinlaja filed a "Motion to Compel Communications of Plaintiff's Expert Witness," expressly adopting and incorporating the State's arguments. In her motion and supporting memorandum of law, Dr. Akinlaja "address[ed] an additional argument by comparing Rule 26(b)(4) of the Federal Rules of Civil Procedure before and after the 2010 amendments" to Tennessee Rule of Civil Procedure 26.02(4), noting a distinction in both rules between testifying and consulting experts. Dr. Akinlaja attached to her motion, inter alia, multiple examples of federal case law.
Ms. Starnes filed a response opposing the motions to compel on July 30, 2021, arguing that the expert witness documents sought by the defendants were "explicitly protected from discovery" by operation of Tennessee Rule of Civil Procedure 26.02(3). She further argued that the defendants had not attempted to demonstrate that they had a "substantial need of the materials in the preparation of the case" or that they were "unable without undue hardship to obtain the substantial equivalent of the materials by other means." See Tenn. R. Civ. P. 26.02(3). As noted by the State and Dr. Akinlaja (collectively, "Defendants") on appeal, Ms. Starnes did not present any list (or "privilege log"), pursuant to Rule 26.02(5), of specific documents purportedly exempt from discovery.
Following a hearing, the trial court granted Defendants' motions to compel in an order entered on August 18, 2021. Finding the motions to be "well taken," the court determined that "[n]one of the materials sought by Defendants-including but not limited to communications between [Ms. Starnes's] counsel and [Ms. Starnes's] expert witnesses, draft reports, notes made by the experts" were "privileged or protected" under Tennessee Rule of Civil Procedure 26.02. Directing Ms. Starnes to produce "all materials sought by Defendants in the motions to compel," the court included a proviso that Ms. Starnes could raise an issue "separately by way of a privilege log and/or presentation to the Court for in camera review" if she believed that any of the material contained "mental impressions" of her counsel.
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