Brittany Borngne Ex Rel. Miyona Hyter v. Chattanooga-Hamilton County Hospital Authority - Concurring

07/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 2, 2020 Session
BRITTANY BORNGNE EX REL. MIYONA HYTER v. CHATTANOOGA-
HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.
Appeal from the Circuit Court for Hamilton County
No. 15C814 J.B. Bennett, Judge
No. E2020-00158-COA-R3-CV
KRISTI M. DAVIS, J., concurring in part and dissenting in part.
I concur in the majority opinion on all issues except the compulsion of Dr. Seeber’s
testimony. I believe the trial court correctly refused to compel this testimony in reliance
on Lewis ex rel. Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001).
The essence of Plaintiff’s action is her allegation that Nurse Mercer too slowly
recognized concerning signs and indicators suggesting dangerous complications in her
delivery and that she called Dr. Seeber too late. Defendants denied this and put on proof
to the contrary, including the testimony of Nurse Mercer, Nurse Stephenson, and Dr.
Seeber. Dr. Seeber was not at the hospital during the critical time that Nurse Mercer was
providing care to Plaintiff, before she called him. Thus, it is apparent that Dr. Seeber was
not providing treatment to Plaintiff during this time. It is not apparent that Dr. Seeber has
any more knowledge or insight than any other medical expert who might be called upon to
review the documents in Plaintiff’s chart and provide an opinion as to whether Nurse
Mercer complied with the standard of care.
The underpinning of Lewis and the subsequent case of Burchfield v. Renfree, No.
E2012-01582-COA-R3-CV, 2013 WL 5676268 (Tenn. Ct. App. Oct. 18, 2013), is the
recognition that a practitioner who has not been named as an expert witness cannot be
forced to provide expert testimony against another practitioner simply because of their
knowledge, skill, experience, training, or education. The Burchfield Court stated:
Applicable to this case is this Court’s opinion in Lewis v. Brooks, 66 S.W.3d
883, 887 (Tenn. Ct. App. 2001), wherein it was explained that doctors who
were party defendants in the case could not be compelled to answer questions
in discovery regarding their opinions of the treatment given by other doctors.
Determining that there were no Tennessee cases specifically on point, this
Court relied upon a Pennsylvania case styled Pennsylvania Co. v. City of
Philadelphia, 105 A. 630 (1918).
Id. at *25. Burchfield quoted the Pennsylvania case as follows, in pertinent part:
The process of the courts may always be invoked to require
witnesses to appear and testify to any facts within their
knowledge; but no private litigant has a right to ask them to go
beyond that. . . . [T]he private litigant has no more right to
compel a citizen to give up the product of his brain, than he has
to compel the giving up of material things. In each case it is a
matter of bargain, which, as ever, it takes two to make, and to
make unconstrained.
Id. The Burchfield Court held that “the trial court was correct in its determination that Dr.
Calundruccio could not be compelled to provide testimony as an expert against his will.
Where the expert’s agreement to serve in such capacity has been withdrawn, there is no
authority for compelling the expert to ‘give up the product of his brain.’” Id.The majority concludes that the foregoing does not apply when the expert opinion
is sought from a supervisor against a supervisee. The majority cites no authority for this
exception. Rather, the majority opines that such testimony is acceptable because it is
highly pertinent and relevant. Respectfully, if that were the standard, then Lewis and
Burchfield should be abrogated. One doctor’s opinion about whether another doctor
complied with the standard of care is inarguably highly pertinent and relevant. The issue
is not the relationship between the parties or whether the evidence is relevant. The issue is
whether an expert can be compelled to testify regarding whether another practitioner
complied with the standard of care, an issue that was properly resolved in Lewis and
Burchfield.1
For these reasons, I concur in part and dissent in part.
/s/ Kristi M. Davis
KRISTI M. DAVIS, JUDGE
1
Moreover, similarly to the defendant doctors in Lewis, Dr. Seeber was not designated as an expert witness
under Tennessee Rule Civil Procedure 26.02(4). The trial court held that “he is prohibited from rendering
opinions about the care provided by others unless and until he is designated as an expert witness pursuant
to the requirements of TRCP 26.” Despite the trial court’s decision prohibiting Dr. Seeber “from rendering
opinions about the care provided by others unless and until he is designated an expert witness,” Plaintiff
did not so designate him.
2