§26.1 Adequacy of Expert Witness Disclosure

The Case: Walls v. Conner , No. E2007-01917-COA-R3-CV, 2008 WL 4735311 (Tenn. Ct. App. Oct. 27, 2008).

The Basic Facts: Defendants in construction case failed to fully respond to expert witness interrogatories. Judge barred use defendant's experts at trial.

The Bottom Line:

• "Homeowners filed a motion in limine and asked that Contractor's two experts be precluded from testifying. The motion was heard prior to the beginning of the bench trial. Contractor's attorney argued that Homeowners' attorney could have taken the depositions of the two experts. The court replied as follows:

  Well, they didn't know you were going to call them. They didn't even know what they were going to say. Why should they be expected to make a decision about taking a deposition until they know what the people are going to say?
  
  Isn't that why we have a provision in Rule 26 for so-called expert interrogatories, identification of expert witnesses and identification of the basis upon which their opinion is rendered?"

  2008 WL 4735311 at *1-*2.
• "Under Tenn. R. Civ. P. 37.02(B), an order prohibiting a party from introducing matters into evidence is one of the available remedies for a violation of an order made pursuant to Tenn. R. Civ. P. 37.01, such as the one in this case. Tennessee courts have recognized and applied the sanctions permissible under Rule 37.02(B). See, e.g., Cummins Station, LLC v. Batey, No. M20052-508-COA-R3-CV, 2007 WL 1319262, at *5 (Tenn. Ct. App W.S. filed May 4, 2007) (trial court's decision to uphold default judgment for deliberate refusal to comply with discovery rules not abuse of discretion). This rule has been applied to preclude expert witnesses in federal courts as well. See Jason H. Eaton, Annotation,Propriety of Exclusion of Expert Testimony As Sanction under Federal Civil Procedure Rule 37(b)(2)(B)^FN2 for Violation of Discovery Order, 151 A.L.R. FED. 561 (1999) (comprehensive review of Rule 37 federal cases).

  FN2. The language of the Tennessee and federal rules both allow a preclusion of designated matters in evidence as a sanction."

  Id. at *4.
• "Even without the imprimatur of Rule 37, however, the Supreme Court has ruled that 'the inherent power of trial judges permits the trial judge to take appropriate corrective action against a party for discovery abuse.' Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988) (citing Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn. Ct. App. 1981)). 'Thus, the authority to impose sanctions for abuse of the discovery process derives from the Rules and the court's inherent powers.' State ex rel. Gibbons v. Smart, No. W2007-01768-COA-R3-CV, 2008 WL 4491729, at *10 (Tenn. Ct. App. W.S., filed October 8, 2008) (citing Butler v. Butler, No. 02A01-9807-CH0-0184, 1999 WL 418351, at *4 (Tenn. Ct. App. W.S. filed June 22, 1999)). Id. at * 5.

• "Avoiding trial by ambush was a primary reason for the adoption of the modern rules of discovery. In discussing the then relatively-new Rules of Civil Procedure, the United States Supreme Court stated in Hickman: 'Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before the trial.' Id. at 501." Id.

• "As this court has noted, 'Discovery sanctions serve a 'three-fold purpose: (1) to secure a party's compliance with the discovery rules, (2) to deter other litigants from violating the discovery rules, and (3) to punish parties who violate discovery rules.'' Magness v. Couser, No. M20060-0872-COA-R3-CV, 2008 WL 204116, at *6 (Tenn. Ct. App. M.S., filed January 24, 2008) (quoting Mansfield v. Mansfield, No. 01A19412CH0058, 1995 WL 643329, at *5 (Tenn. Ct. App. M.S. filed November 3, 1995)). A trial court's sanction is not disturbed absent an abuse of discretion." Id. at *6.

• "When matters have reached a point in a case where the trial judge considers the sanction of preclusion, however, it will usually be because the court has been unable to otherwise secure a party's compliance with the discovery rules. As this court stated in Magness, the purpose of such a sanction is to deter others and punish the party who has violated discovery rules. Although punitive by definition, sanctions do not constitute an injustice to the complaining party on facts such as those presented in this case." Id. at *6.

• "The sanction in this case is admittedly harsh. But 'harsh sanctions have been used with some frequency to address a party's failure to comply with discovery orders.' Howard v. Am. Indus. Serv., Inc., No. M2001-02711-COA-R3-CV, 2002 WL 31769115, at *2 (Tenn. Ct. App. M.S. filed December 11, 2002) (citing American Steinwinter v. American Steinwinter, Inc., 964 S.W.2d 569 (Tenn. Ct. App. 1997)); Yearwood, Johnson, Stanton & Crabtree v. Foxland, 828 S.W.2d 412 (Tenn. Ct. App. 1991); Potts v. Mayforth, 59 S.W.3d 167 (Tenn. Ct. App. 2001). We hold that the trial court's decision to preclude Contractor's experts from testifying does not amount to an abuse of discretion." Id.