§26.3 Limited Uses of Discovery Deposition of Experts

The Case: Dial v. Harrington , 138 S.W.3d 895 (Tenn. Ct. App. 2003).

The Basic Facts: Trial court held that plaintiffs could not use discovery deposition of their expert witness in opposition to motion for summary judgment in medical malpractice. In the absence of expert proof on the issue of breach of the standard of care, the trial court granted summary judgment for the defendant.

The Bottom Line:

• "Tennessee Rule of Civil Procedure 32.01 is primarily a rule of evidence. Wilkes v. Fred's, Inc., No. W2001-02393-COA-R3-CV, 2002 WL 31305202, at *4 (Tenn. Ct. App. Aug. 20, 2002) (no perm. app. filed) (citing Robert Banks, Jr. & June E. Entman, Tennessee Civil Procedure § 8-7(b) (1999)). It applies to the use of deposition testimony for cross-examination and impeachment, is a rule of completeness, and provides a hearsay exception for former testimony. Wilkes, 2002 WL 31305202, at *4. Section 32.01(3) governs when a deposition may be used as substantive proof under the former testimony exception to hearsay. Tenn. R. Civ. P. 32 advisory commission comments." 138 S.W.3d at 898.
• Rule 32.01 provides:

  Use of Depositions. - At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against the party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions[.]

  Id.
• "Tenn. R. Civ. P. 32.01. Rule 32.01(3) provides that the deposition of a witness who is unavailable as defined by the Rule may be used 'by any party for any purpose' unless 'it appears that the absence of the witness was procured by the party offering the deposition.' Tenn. R. Civ. P. 32.01(3) (emphasis added)." Id.
• "The hearsay exception provided by this rule, however, contains an exception to the exception. The final sentence of Rule 32.01(3) reads:

  Notwithstanding the foregoing provisions, depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at the trial except to impeach in accordance with the provisions of Rule 32.01(1) (emphasis added).

  Id.
• "Commonly called 'the Bearman Rule,'^FN1 this sentence prohibits the introduction, as substantive proof, of discovery depositions of experts taken in accordance with Rule 26.02(4).

  FN1. This final sentence of Rule 32.01(3), inserted in 1984, was recommended by distinguished Memphis attorney Leo Bearman when he was a member of the Rules Commission. Hence it lives on as "the Bearman Rule." Donald F. Paine, The Bearman Rule, 39 Tenn. B.J. 33 (April 2003).

  Id.
• "The Bearman Rule was included to address the dilemma faced by a lawyer taking a discovery deposition of a hostile expert who is or becomes unavailable under the rule, which includes witnesses exempt from subpoena under Tenn. Code Ann. § 24-9-101. Tenn. R. Civ. P. 32 advisory commission comments. Essentially, it is a rule of fairness which permits discovery of a hostile expert without the threat of unfavorable responses being introduced as substantive proof under what is, in essence, a hearsay exception. Id. The party who hired the expert may still take a deposition for proof by notice or agreement. Id." Id. at 898.
• "In the case now before this Court, the Bearman Rule clearly would proscribe the use of Dr. Engle's discovery deposition as substantive proof at trial. We must here determine, however, whether an expert discovery deposition may be used by the trial court not as substantive proof at trial, i.e. to prove the truth of the matter asserted, 899 but at the summary judgment stage to determine the existence of a disputed material fact. We hold that the Bearman Rule does not prohibit the use of expert depositions to point to disputed issues of material fact in opposition to a motion for summary judgment." Id. at 898-99.

• "A sworn Rule 26 deposition of an expert is likewise admissible at a summary judgment proceeding. Bowen, 1992 WL 12129, at *2. At the summary judgment stage, consideration of a Rule 26 deposition presents no more unfairness than admission of an affidavit. In both instances, the sworn statement is reviewed by the trial court only to determine whether a disputed issue of material fact exists. Once the court has determined such a dispute exists, it is left to the trier of fact to weigh the admissible evidence. The Bearman Rule prohibits the trial court from admitting a Rule 26 deposition as substantive proof at the trial, although it might otherwise be admissible under the hearsay exceptions provided by Rule 32." Id. at 900.

• "In addition to being consistent with the purposes and limitations of a summary judgment determination, this holding is consistent with the language of the rule itself. Rule 32 provides a hearsay exception for the use 'by any party for any purpose' of a deposition of a witness defined by the rule as unavailable. Tenn. R. Civ. P. 32.01(3). The final sentence, the Bearman Rule, however, partially negates this exception for depositions taken of experts. The sentence provides that where such depositions are taken in accordance with Rule 26.02(4), "they may not be used at the trial except to impeach in accordance with the provisions of Rule 32.01(1)." Tenn. R. Civ. P. 32.01(3) (emphasis added). The Bearman Rule does not address use of a discovery deposition of an expert for any purpose other than at trial. It simply limits the application of Rule 32.01(3), which makes what is otherwise hearsay admissible as substantive proof at trial." Id.

Other Sources of Note: Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn. Ct. App. 1994) (discussing the circumstances under which one expert may be cross-examined about the testimony of another expert).