Laseter v. Regan

• Decision Date: 24 July 2014
• Parties: Linda LASETER, Individually and on behalf of her deceased mother, Alice H. Corr v. J. Martin REGAN, Jr., in his capacity as Personal Representative of the Estate of Fernando Herrera, M.D.
• Court: Tennessee Court of Appeals

481 S.W.3d 613

Linda LASETER, Individually and on behalf of her deceased mother, Alice H. Corr

v.J. Martin REGAN, Jr., in his capacity as Personal Representative of the Estate of Fernando Herrera, M.D.

Court of Appeals of Tennessee, Western Section, at Jackson.

May 13, 2014 Session.

July 24, 2014.

Dec. 18, 2014.

Denied by Supreme Court

Al H. Thomas, Aaron L. Thomas, Memphis, Tennessee, for the appellant, Linda Laseter, Individually and on behalf of her deceased mother, Alice H. Corr.

Katherine M. Anderson, Hugh Francis, David M. Cook, Albert G. McLean, Memphis, Tennessee, for the appellee, J. Martin Regan, Jr., in his capacity as Personal Representative of the Estate of Fernando Herrera, M.D.

OPINION

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which J. STEVEN STAFFORD, J., and PAUL G. SUMMERS, SR. J., joined.

This appeal involves a defendant's attempts to discover certain financial information from the plaintiff's medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court's orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

I. FACTS & PROCEDURAL HISTORY

This case involves a narrow issue, but the procedural history before the trial court relevant to the issue is somewhat tortured and incredibly lengthy.

A "Complaint for Medical Malpractice" was filed on May 20, 2008, by Linda Laseter, individually and on behalf of her deceased mother, Alice H. Corr, against Kishore K Arcot, M.D., Memphis Cardiology, P.L.C., and Fernando Herrera, M.D. The complaint basically alleged that there was "an inappropriate rush to repair an abdominal aortic aneurysm, which was in fact non-emergent," and "subsequent to repair of the aneurysmthe patient developed severe metabolic acidosisand kidney failureand died." Defendants Arcot and Memphis Cardiology were eventually dismissed from the case on summary judgment, and they are not at issue on appeal. The only defendant at issue on appeal is Dr. Herrera ("Defendant"), who is a cardiovascular surgeon.

Defendant filed an answer to the complaint, and discovery ensued. On October 8, 2009, Defendant filed a motion for summary judgment, which was supported by his own affidavit, in which he stated that he had complied in all respects with the recognized standard of acceptable professional practice. In response to the motion for summary judgment, Plaintiff filed the affidavit of Martin Evans, M.D., a medical doctor practicing as a general and vascular surgeon in Richmond, Virginia. Dr. Evans opined that Defendant did not comply with the recognized standard of acceptable professional practice in his treatment of the patient.

On January 15, 2010, defense counsel filed and served on plaintiff's counsel a notice to take the discovery deposition of Dr. Evans. The notice of deposition requested that plaintiff have Dr. Evans produce at his deposition certain documents related to the income he had earned as an expert witness, including his schedule of charges for work as a witness in a lawsuit, all income received from reviewing cases, consulting or testifying in connection with lawsuits since January 1, 2000, and 1099s and related documents reflecting his income for medical/legal review for the years 2000 to 2010. Plaintiff's counsel did not object to the document request, but Dr. Evans did not produce the documents at his discovery deposition on April 28, 2010. When Dr. Evans was asked during his deposition how much income he earns annually from serving as an expert witness, he said he did not know, and when asked to give an estimate for the last three years, he said he could not do so. He did estimate that fifteen to twenty percent of his income comes from expert activity, but he said he did not know "the actual amount of dollars."

After the entry of several scheduling orders and amended scheduling orders, the case was scheduled for trial on August 20, 2012. On January 4, 2012, Defendant filed a motion to compel production of the documents that were requested prior to Dr. Evans' discovery deposition but not produced. According to Defendant's motion, he was unable to find "any Tennessee appellate court case, reported or unreported," addressing the propriety of requiring the production of information and documents pertaining to an expert witness's income from serving as a witness in medical-legal matters. However, Defendant's motion asserted that numerous courts in other jurisdictions had held that it is proper for an expert witness to be examined as to his or her expert witness income and the percentage of his or her total income that is derived from serving as an expert witness. Defendant argued that the requested information was relevant "because it shows bias or prejudice since a person who testifies as an expert witness on a frequent basis may sometimes be perceived as a 'professional witness' which in and of itself goes to the credibility of the witness." He pointed to Dr. Evans' deposition testimony that he has been testifying as an expert witness for thirty years, he has served as an expert witness for the particular attorneys representing plaintiff in this case for over fifteen years, he has reviewed between twelve and twenty cases per year for the past twenty years, he presently has between ten and fifty open files, and he estimated that fifteen to twenty percent of his income is derived from serving as an expert witness. Defendant argued that the aforementioned documents related to Dr. Evans' expert witness income were discoverable, but in the event that the court determined that the request for information was too broad, Defendant asked the court to modify the request and to require production of the documents the court deemed appropriate.

Plaintiff filed a response in opposition to Defendant's motion to compel production of the documents, asserting that the motion should be denied because she, personally, did not have control of the requested documents, and even if she did, the request should be quashed as unduly burdensome. She contended that the requested information was "maximally burdensome to Plaintiff because Dr. Evans will choose to retract his willingness to testify rather than suffer the invasion of privacy inherent in the rummaging through his finances." Plaintiff argued that expert witnesses should not be required to produce such financial information on a routine basis, and she claimed that there were no suspicious circumstances or grounds for deeming Dr. Evans a professional witness or questioning his impartiality.

The trial court held a hearing on the motion to compel production of the documents on March 2, 2012. Counsel for the Plaintiff insisted that the documents regarding Dr. Evans' income were not in Plaintiff's possession, custody, or control, and were not otherwise accessible to her. Defense counsel argued that Plaintiff had the ability to obtain the documents from her expert, Dr. Evans, but in the event that the court disagreed, Defendant requested leave of court to seek commission of an out-of-state subpoena duces tecum to serve on Dr. Evans in order to obtain the documents. The trial judge announced that she would deny the present motion to compel because the documents related to Dr. Evans' income were not in Plaintiff's possession. However, the trial judge also expressed her opinion that the requested information was "relevant and certainly discoverable." The trial judge asked Plaintiff's counsel if he agreed that the requested information was relevant to show bias, to which he responded, "No question. It's relevant. It's relevant for the jury to gauge to determine what the—what's at stake for this expert here in this case in order to determine possible bias. It's definitely discoverable." However, Plaintiff's counsel went on to argue that the privacy interests of expert witnesses must be considered as well. He claimed that other courts that have attempted to balance these interests have concluded that there must be a threshold showing of suspicious circumstances regarding a particular expert before this type of discovery is allowed. The trial judge remarked that an expert witness with a thirty-year history and ten to fifty current cases "sort of has a red flag that says professional expert to me," and it raised doubts in her mind about whether Dr. Evans truly earns only fifteen to twenty percent of his income from testifying. The judge also noted that there is a difference between what is discoverable and what is admissible at trial. The trial judge indicated that if an examination of Dr. Evans' income information revealed that he actually earns more than fifteen to twenty percent of his income from testifying as an expert, she would allow defense counsel to question Dr. Evans about the discrepancy in his testimony at trial. However, she would not allow the jury to hear Dr. Evans' gross income. Ultimately, the trial judge directed defense counsel to file a petition for commission of a subpoena duces tecum, and she instructed Plaintiff's counsel to file a response. The judge indicated that she would grant the petition for the subpoena unless Plaintiff's counsel could convince her that doing so was improper. However, the judge opined that requesting income information from the past ten years was too...