Vythoulkas v. Vanderbilt University Hosp.
| Decision Date | 07 March 1985 |
| Citation | 26 Ed.LawRep. 869,693 S.W.2d 350 |
| Parties | Dionisious I. VYTHOULKAS, Sr., and wife, Joan Vythoulkas, individually, and as next of kin of Dionisious Vythoulkas, Jr., Deceased, Plaintiffs. v. VANDERBILT UNIVERSITY HOSPITAL, Dr. Lars Larsson, Dr. Deborah M. Bryant, Woodbury-Madison Association, d/b/a Good Samaritan Hospital, and Rutherford Hospital, Defendants. 693 S.W.2d 350, 26 Ed. Law Rep. 869 . , at Nashville |
| Court | Tennessee Court of Appeals |
D. Russell Thomas, Scott Daniel, Daniel, Burton & Thomas, Murfreesboro, for plaintiffs/appellants.
H. Lee Barfield, II, R. Dale Grimes, Bass, Berry & Sims, Nashville, for defendants/appellees.
We granted this interlocutory appeal to consider an important question concerning the scope of pretrial discovery regarding expert witnesses. Specifically, we are called upon to determine whether a party, through the use of written interrogatories pursuant to Tenn.R.Civ.P. 33, may discover identifying information concerning an adversary's formally retained expert when the expert is not expected to be called as witness at trial. After balancing the policy encouraging parties to seek expert advice with the policy favoring full pretrial disclosure of all relevant matters, we have determined that Tenn.R.Civ.P. 26.02(1) permits the discovery of identifying information concerning an adverse party's formally retained expert who is not expected to be called at trial without a demonstration that exceptional circumstances exist. 1
This is a medical malpractice action. Mrs. Joan Vythoulkas gave birth to her son, Dionisious Vythoulkas, Jr., by cesarean section, on August 11, 1980, at the Good Samaritan Hospital in Woodbury. The child began to experience difficulties, and an expert medical team from Vanderbilt University Hospital [hereinafter referred to as "Vanderbilt"] was summoned. When Dr. Lars Larsson, a fellow in neonatology at Vanderbilt, arrived, he performed an umbilical artery catheterization on the boy prior to transferring him to another hospital.
The child was transported to Rutherford Hospital because there was no room at Vanderbilt. He remained there for approximately twenty hours and was then admitted to Vanderbilt. While at Vanderbilt, the boy was under the care of Dr. Deborah M. Bryant, a resident in pediatrics. After arriving at Vanderbilt, the child was found to be infected with coagulase positive staphyloccous. This infection caused the boy to develop an aortic aneurysm which ruptured, causing his death on August 22, 1980.
The Vythoulkas' filed this action on August 11, 1981, in the Circuit Court for Cannon County against Vanderbilt, the Good Samaritan Hospital, Rutherford Hospital, Dr. Lars Larsson, and Dr. Deborah M. Bryant. 2
The defendants, Vanderbilt, Larsson, and Bryant, filed a set of thirty-one interrogatories on October 23, 1981, seeking to discover the factual basis of the Vythoulkas' action as well as the evidence and legal theory upon which the Vythoulkas' intended to rely. Ten of these questions were designed to elicit identifying information concerning persons having knowledge of relevant facts relating to the plaintiffs' claim, experts retained or specially employed by the plaintiffs in anticipation of litigation who were not expected to testify, and persons advising the plaintiffs on the accepted standard of professional practice and the national standard of care. 3
The two interrogatories we are called upon to examine on this appeal are:
12. Please state whether plaintiffs and/or their representatives have retained or specially employed an expert in anticipation of litigation or preparation for trial who is not expected to be called as a witness at trial.
13. If the answer to the foregoing question is in the affirmative, please state the full name, address and telephone number of said expert retained or specially employed by plaintiffs and/or their representatives in anticipation of litigation of preparation for trial who is not expected to be called as a witness at the trial of this cause.
The plaintiffs served their first set of interrogatories on the defendants on November 12, 1981, less than one month after the filing of the defendants' interrogatories. Vanderbilt answered these interrogatories on March 13, 1982. Dr. Larsson answered them on March 26, 1982, and Dr. Bryant answered them on July 1, 1983.
The plaintiffs submitted answers to the defendants' interrogatories on July 28, 1983, almost two years after the interrogatories were first served on them. The plaintiffs did not identify one expert in these interrogatories. 4 They stated that they were unable to provide the names of any of the experts who would testify at trial because "discovery has not been completed and it is too early to determine the nature of the medical proof that will be required or the experts who may testify." The plaintiffs also refused to respond to any of the ten interrogatories requiring them to provide identifying information concerning any non-testifying experts retained in anticipation of litigation or other persons advising the plaintiffs on the accepted standard of professional practice and the national standard of care. Specifically, in answer to the defendants' twelfth interrogatory, the plaintiffs stated:
At this time we cannot state what experts may or may not be called and object to the information sought in this question on the grounds that it invades Plaintiffs' work product privilege.
In answer to the defendants' thirteenth interrogatory, the plaintiffs stated:
Plaintiffs object to the information sought in this question on the grounds that it violates their work product privilege, but again would show that if any witness covered by such privilege is to be called at trial, they will amend this answer by giving the specific name and address sufficiently in advance of the trial to allow Defendants adequate opportunity for full discovery of said witnesses' knowledge and proposed testimony.
On August 30, 1983, Vanderbilt filed a motion pursuant to Tenn.R.Civ.P. 37.01 seeking an order to compel the plaintiffs to answer its twelfth and thirteenth interrogatories. No action was taken on this motion at that time.
On January 17, 1984, the plaintiffs filed their response to Dr. Larsson's motion for summary judgment which had been filed approximately two years earlier on March 12, 1982. In support of their claim that Dr. Larsson was guilty of malpractice, the plaintiffs for the first time revealed the identity of two experts they had retained. They did so by filing affidavits prepared by these experts to the effect that the two physicians who had treated the plaintiffs' infant son had acted negligently by not observing Vanderbilt's policies regarding sterile procedures and by not detecting and treating the resulting infection in a timely manner.
The trial court conducted a hearing on the defendants' motion to compel answers to their interrogatories on January 20, 1984, and on June 25, 1984, entered an order granting the defendants' motion and directing the plaintiffs to answer the defendants' twelfth and thirteenth interrogatories. The trial court also granted the plaintiffs' motion for an interlocutory appeal pursuant to Tenn.R.App.P. 9. This order was re-entered on August 9, 1984, because the plaintiffs had not been properly notified of the entry of the June 25, 1984, order. The plaintiffs properly filed their application to appeal in this Court, and on August 30, 1984, we granted their application for interlocutory appeal.
The process leading ultimately to the promulgation of Tenn.R.Civ.P. 26 tracks the decisions of Tennessee's courts with regard to pretrial discovery. It demonstrates that there has been a consistent trend since 1959 favoring broad pretrial discovery for the purpose of enabling litigants to prepare themselves fully for trial and to enhance their ability to present to the jury and the trial court all the pertinent facts and legal theories so that a just decision will be rendered. The trial court's decision in this case is in keeping with this trend.
For many years prior to 1959, the use of pretrial discovery in Tennessee's courts was limited and fraught with risk. Pretrial depositions were available in narrow circumstances such as depositions de bene esse to prevent the loss of a witness' testimony through death or absence. McFarlane v. Moore, 1 Tenn. (1 Overt.) 32 (1805). See also Chapter 1, Public Acts of 1794; Chapter 6, Public Acts of 1801; and Chapter 100, Public Acts of 1811. However, parties were not subject to these deposition rules, Hubbard v. Haynes, 189 Tenn. 335, 337, 225 S.W.2d 252, 253 (1949), and the party electing to take a deposition was required to make the witness its own for all purposes. During this time, engaging in pretrial discovery in Tennessee, as in other jurisdictions, was looked upon with disdain as a "fishing expedition." Because of this attitude, expert commentators such as Professor Wigmore observed that trial preparation and practice were based upon the "sporting theory of justice" wherein the outcome of a case depended primarily upon the fortuitous availability of the evidence or upon the skill and strategy of counsel. See A. Holtzoff, The Elimination of Surprise in Federal Practice, 7 Vand.L.Rev. 576, 578 (1954), and 8 C. Wright & A. Miller, Federal Practice and Procedure Section 2001, at 18-19 (1970) [hereinafter cited as "Wright & Miller"]. Mr. Justice Henry has noted in this regard that the "profession was committed to the long prevailing practice of trial by ambush." Seaboard Coastline Railroad Co. v. Hughes, 521 S.W.2d 558, 560 (Tenn.1975). See also Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn.App.1981).
Reacting with dissatisfaction to this state of affairs, many states began to permit the use of depositions for discovery and for...
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