Linda Laseter v. J. Martin Regan, Jr.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 13, 2014 Session
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.
Direct Appeal from the Circuit Court for Shelby County
No. CT-002427-08 Donna Fields, Judge
No. W2013-02105-COA-R3-CV - Filed July 24, 2014
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.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which J. S TEVEN
S TAFFORD, J., and P AUL G. S UMMERS, S R. J., joined.
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
I. F ACTS & P ROCEDURAL H ISTORY
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 aneurysm the patient developed
severe metabolic acidosis and kidney failure and 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.”
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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
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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 burdensome, and she suggested that the subpoena duces tecum should require
the production of information from the past five years instead. She also suggested that the
parties agree to the production of an affidavit from Dr. Evans’ accountant stating Dr. Evans
precise income figures rather than requiring the production of documents that would
potentially reveal investment income and other irrelevant information.
After the hearing, the trial court entered an order denying Defendant’s motion to
compel production of the documents because they were not in Plaintiff’s control. As
directed, Defendant filed a “Motion for Issuance of Commission for Issuance of Out-of-State
Subpoena Duces Tecum,” asking the court to issue a commission to the clerk of a circuit
court in Virginia, requesting issuance of a subpoena duces tecum to be served on Dr. Evans,
which would command him to produce the documents at issue and to appear at a
supplemental deposition. Defendant argued that the requested information was discoverable
and relevant to the issue of Dr. Evans’ bias and credibility, or, at the very least, reasonably
calculated to lead to the discovery of admissible evidence regarding Dr. Evans’ bias and
credibility. Along with his petition, Defendant submitted a LEXIS/NEXIS Expert Witness
Profile, which indicated that Dr. Evans had been disclosed as an expert witness in 179 cases
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in 23 different states, and in 96% of those cases, he had testified for the plaintiff. Thus,
Defendant argued that Dr. Evans was “a professional witness under any reasonable definition
of that term.”
In response, Plaintiff argued that the proposed subpoena would only be appropriate
for a professional witness.1 However, Plaintiff continued to insist that Dr. Evans was not a
professional witness but merely a “seasoned” expert witness. She claimed that routinely
allowing discovery of any expert witness’s income information “would be an unwarranted
invasion of the expert's privacy” and constitute an unduly burdensome discovery request.
At the June 1, 2012 hearing on the motion for issuance of a subpoena, the parties
agreed that an affidavit from Dr. Evans’ accountant would be an acceptable means of
disclosing Dr. Evans’ income information. However, they disagreed as to the scope of
information that should be produced in that affidavit. Plaintiff argued that the affidavit
should be limited to a statement of the precise percentage of Dr. Evans’ income attributable
to serving as an expert witness during the past five years, with no mention of any exact
income figures. Defendant argued that the affidavit should contain the exact amount of Dr.
Evans’ gross income and his expert witness income for the past five years, with attached
1099s confirming his expert witness income. The trial judge agreed with the Defendant that
he was entitled to discover the precise figures with regard to Dr. Evans’ gross income and
his income from serving as an expert witness, which would not only reveal the amount of
money Dr. Evans had earned from testifying but also allow Defendant to compute the
percentage of his income attributable to serving as an expert, in order to confirm whether Dr.
Evans’ deposition testimony was accurate. Noting the upcoming trial date, just over two
months from the date of the hearing, the trial judge ruled that Dr. Evans had to produce the
affidavit from his accountant within two weeks, stating his total amount of income and his
income from serving as an expert witness for the past five years. The trial judge ruled that
Dr. Evans did not have to produce his 1099s to confirm the information. Prior to the
conclusion of the hearing, Plaintiff’s counsel expressed “serious doubts” that Dr. Evans
would testify under those conditions, as he had already expressed to counsel that he was
unwilling to disclose either the amount of income he earns from testifying as an expert or his
gross income. He was only willing to have his accountant testify in terms of percentages.
Nonetheless, the trial judge announced that her ruling would be applicable to the experts
1
Plaintiff again conceded that it would be appropriate to seek such information from a professional
witness, recognizing in her memorandum:
An expert who makes his living through forensic activity has more at stake in the particular
case than his fee from that case. His livelihood depends on his efficacy as a witness.
Accordingly, the details of this bias are relevant to the jury and the expert who has chosen
this livelihood has accepted this cost.
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serving for both parties, in the event that Plaintiff’s counsel chose to pursue obtaining income
information from Defendant’s expert witnesses. She also said that the affidavit from the
accountant was not to be filed with the court; instead, it would be provided by Plaintiff’s
counsel directly to defense counsel. An order to this effect was entered on June 12, 2012,
requiring Plaintiff’s counsel to produce to Defendant’s counsel, within two weeks, an
affidavit from Dr. Evans’ accountant setting forth his income from testifying or participating
in lawsuits for the past five years, in addition to his total gross income from the treatment and
care of patients during those years. The accountant’s charges for preparation of the affidavit
were to be paid by Defendant. The affidavit itself would be designated “confidential,” it
would be provided to opposing counsel for use in this litigation only, and it could not be
disclosed to anyone other than defense counsel, the trial judge, and their staff who were
working on the case. The order stated that the information contained in the affidavit “shall
be used solely for the purpose of verifying or impeaching the expert's testimony within the
context of this litigation and may be used at trial only if permitted to do so by subsequent
order of the Court.” The order also stated that Defendant must produce affidavits of the same
type if Plaintiff chose to pursue such information from Defendant’s experts.
Two weeks came and went, and Plaintiff did not produce the court-ordered affidavit.
On June 28, 2012, Defendant filed a Rule 37.02 motion for sanctions2 based upon Plaintiff’s
failure to comply with the court order. Defendant sought exclusion of Dr. Evans as a witness
in this case due to his failure to comply with the June 12 court order. Defendant also sought
dismissal of Plaintiff’s claim, upon exclusion of Dr. Evans, due to the lack of expert proof
to support Plaintiff’s claims.3 The motion noted that the trial date was still set for August 20,
2012, and that Defendant had first requested the information on January 15, 2010, in the
2
Rule 37.02 provides, in pertinent part:
If a deponent [or] party . . . fails to obey an order to provide or permit discovery . . . the
court in which the action is pending may make such orders in regard to the failure as are
just, and among others the following:
...
(B) An order refusing to allow the disobedient party to support or oppose designated claims
or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party;
...
Tenn. R. Civ. P. 37.02.
3
Defendant noted that the original and supplemental deadlines for plaintiff to disclose experts, as
set out in various scheduling orders, had expired, and plaintiff had disclosed no experts other than Dr. Evans.
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notice of deposition.
The trial judge ordered the parties to appear before the court to address the matter on
July 2, 2012, but we do not have a transcript of this hearing. According to later filings
discussing the July 2 hearing, Plaintiff’s counsel apparently advised the court that Dr. Evans
would not comply with the June 12 order and orally requested modification of the order. It
appears that the trial judge instructed Plaintiff’s counsel to contact Dr. Evans and determine
if he would be willing to provide his income information directly to the trial judge, for in
camera review, as opposed to providing the information to defense counsel as was previously
ordered. The trial judge ordered the parties to return to court the following day, July 3, after
Plaintiff’s counsel had an opportunity to consult with Dr. Evans.
The parties were back before the court on July 3, 2012, as instructed. Plaintiff’s
counsel submitted emails from Dr. Evans, in which he expressed his willingness to provide
the affidavit directly to the court for in camera review, with the understanding that the data
was “for her eyes only.” The trial judge then ruled that Dr. Evans could provide the court-
ordered affidavit directly to her, via her own personal email address, for her in camera
review. The trial judge announced that she would review the income information and
calculate the percentage of Dr. Evans’ income derived from serving as an expert witness, and
if it corresponded with Dr. Evans’ previous testimony that he earns fifteen to twenty percent
of his income from such activity, then the trial judge would retain the affidavit, and it would
not be produced to defense counsel. However, in the event that the affidavit revealed that
Dr. Evans actually earns more than twenty percent of his income from testifying, the trial
judge would provide the affidavit to defense counsel unless Dr. Evans elected to withdraw
from testifying, in which case the information would not be disclosed. After this ruling
regarding the affidavit was announced, counsel for Defendant argued that even if the
affidavit confirmed that Dr. Evans earns between fifteen and twenty percent of his total
income from serving as an expert witness, the defense should nevertheless be permitted to
learn the total amount of Dr. Evans’ annual expert witness income if he is considered to be
a professional witness. The judge stated that defense counsel would be permitted to ask Dr.
Evans about his annual expert witness income on the stand at trial. She said she would not
permit defense counsel to ask questions about the previous five years while Dr. Evans was
on the stand, but she would allow counsel to ask Dr. Evans how much he earned from
testifying in 2010 or 2011. Plaintiff’s counsel stated unequivocally that if Dr. Evans was
asked such questions, about exact figures as opposed to percentages, he would refuse to
answer. The trial judge said she was “trying to compromise so that we can go forward on
this case” and “keep the Plaintiff’s expert in there,” but, she said she was not going to
prevent defense counsel from asking Dr. Evans how much money he makes from testifying
as an expert. She also cautioned Plaintiff’s counsel, “Mr. Thomas, this is your last chance.
If he wants to agree to this and you want to keep him as an expert, then I'll give him my email
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address. He can give that to his accountant and the accountant can email the letter to me.”
After the hearing, the trial court entered an order stating that “Plaintiff's production of the
affidavit described in the June 12, 2012 order will be deemed satisfied if the Court receives
such affidavit (containing the ordered information for each of the years 2006, 2007, 2008,
2009, and 2010) for its in camera review by July 12, 2012.” The order also incorporated the
trial court’s other oral rulings made during the hearing.
Shortly after the hearing, Defendant filed a motion in limine for an order requiring Dr.
Evans to testify as to the amount of his expert witness income for the year 2010 when
questioned about such information, and for sanctions in the event that he refused to answer
such questions. Plaintiff filed a motion for continuance of the August 20 trial date, citing the
ongoing dispute regarding Dr. Evans’ income information and his inability to schedule Dr.
Evans’ deposition. On July 13, 2012, the trial court granted the motion and continued the
trial date from August 20, 2012, until May 28, 2013.
The deadline for Dr. Evans to send the affidavit to the trial judge expired on July 12,
2012. On July 20, 2012, Defendant filed a second Rule 37.02 motion for sanctions, due to
the failure of Plaintiff and Dr. Evans to comply with the court’s two previous orders
requiring production of the affidavit. Defendant noted that Plaintiff failed to comply with
the June 12 order requiring production of the affidavit to defense counsel within two weeks,
and despite the court’s grant of a “retroactive extension” of the deadline in its July 9 order,
allowing production directly to the court by July 12, the affidavit still had not been produced.
The motion again noted that Defendant first sought the income information in its January
15, 2010 notice of deposition. Defendant argued that “Plaintiff ha[d] been granted at least
‘two bites at the apple’ and should not be allowed any more bites.” Defendant again asked
that the court exclude Dr. Evans as a witness and dismiss Plaintiff’s claim for lack of expert
proof.
Plaintiff filed a response, basically claiming that Dr. Evans was ready and willing to
provide the court-ordered affidavit if the trial court would simply enter an order containing
sufficient protections regarding Dr. Evans’ privacy interests. She claimed that the court’s
prior order allowed for in camera review but did not sufficiently spell out the privacy
protections, instead incorporating by reference the transcript of the trial court’s oral rulings
at the hearing. Plaintiff suggested that “this entire impasse could be remedied by simply
modifying the [July 9] order to explicitly provide for Dr. Evans' right to recuse himself in the
event that the Court's in camera review results in the conclusion that the affidavit must be
provided to Defendant before Dr. Evans testifies, and the guarantee that in such
circumstances, the affidavit will be returned to him without further dissemination.”
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At the hearing on the second motion for sanctions, on September 17, 2012, the trial
judge said, “I don't know how I could be anymore plain to this doctor.” She asked the
attorneys to confirm her recollection that she had held four hearings on the matter and said,
“I can honestly say, and I will say it in front of [defense counsel] Mr. McLean, I have done
everything humanly possible to preserve this expert for you, Mr. Thomas, and he does not
want to cooperate.” The trial judge said that she had “bent over backwards” and “was trying
to compromise” and “accommodate” Dr. Evans. She reminded Plaintiff’s counsel that he had
assured her at the end of each previous hearing that the affidavit would be sent, and each time
it was not. The trial judge ultimately ruled that Dr. Evans would not be allowed to testify in
this case due to his refusal to cooperate. That same day, the trial court entered an order
granting Defendant’s second Rule 37.02 motion for sanctions and excluding Dr. Evans as a
witness. However, the trial court declined to dismiss Plaintiff’s case and instead allowed
Plaintiff ninety days to disclose a replacement expert.
On October 17, 2012, Plaintiff filed a motion to amend the trial court’s order,
claiming that it inaccurately stated that Dr. Evans had refused to produce the court-ordered
affidavit. Plaintiff claimed that Dr. Evans was simply “waiting to provide the affidavit until
a flaw that occurred in the 7/9/2012 order . . . is cured.” Plaintiff claimed that Dr. Evans had
been ready and willing to provide the affidavit to the court for in camera review, with the
stipulation that if the court's in camera review resulted in a determination that his forensic
income exceeded twenty percent of his gross income, he could then choose not to testify, and
the affidavit would not be provided to Defendant. Plaintiff claimed that the trial court’s
order incorporating its oral ruling was “confusing” to Dr. Evans and that the “situation could
have been avoided if Defendant had taken pains to present an order which explicitly
addressed” the issue rather than incorporating the oral ruling. In response, Defendant argued
that the court had already provided sufficient protections of Dr. Evans’ privacy in its June
12 and July 9 orders.
At a hearing on October 26, 2012, the trial judge said she had gone over the issue with
the parties “ad nauseum,” but she ultimately agreed to enter an amended order with the
express statement Dr. Evans requested. However, defense counsel pointed out that aside
from the issue with production of the affidavit, the trial judge had already indicated that she
would permit defense counsel to ask Dr. Evans at trial about his annual income from serving
as an expert witness, and Plaintiff’s counsel had unequivocally stated that Dr. Evans would
refuse to answer any such questions. The trial judge reaffirmed her position on that issue,
stating, “Let me be clear. I think when someone sits on the stand and holds himself out as an
expert, the other party is entitled, both ways, to ask them how much they made in the year of
the event or in 2000-whatever, 2012, whatever, how much they made from testifying as an
expert witness.” However, she gave the parties the opportunity to submit supplemental
memoranda regarding that issue prior to entering an order to that effect. After considering
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the supplemental authority submitted by both parties, the trial court entered an order setting
aside the previous order that excluded Dr. Evans as a witness. The trial court entered an
amended order that stated, in relevant part:
1. Plaintiff’s production of the affidavit of Dr. Evans’ accountant
described in the June 12, 2012 order will be deemed satisfied if the
Court receives such affidavit (containing the ordered information for
each of the years 2006, 2007, 2008, 2009, and 2010) for its in camera
review by December 15, 2012 to determine if Dr. Evans' income from
medico-legal services exceeds 15-20% of his gross income.
2. If the Court determines from its in camera review that Dr. Evans'
income from medicolegal services exceeds 15-20% of his gross
income, the affidavit will be produced to defense counsel unless Dr.
Evans notifies the Court that he will not testify in this cause.
3. If Dr. Evans notifies the Court that he will not testify in this cause, the
Court will return the affidavit to Dr. Evans without further
dissemination of the affidavit or any information contained therein.
4. Defendant will be permitted to ask Dr. Evans at trial what was the
dollar amount of his expert witness income for a prior year, such as the
year 2010, among others[.]
On December 14, 2012, Dr. Evans finally emailed the court-ordered affidavit to the trial
judge. However, his email contained the following two “notices” for the trial judge to read
prior to opening the attachment:
NOTICE #1: In the event you determine that I will not be permitted to testify
in this case unless the attached financial information is provided to defense
counsel, I HEREBY NOTIFY YOU NOW that I will not testify in this cause.
(It is my understanding that this 'NOTICE" ensures that under no
circumstances will the attached report or any of its information be
disseminated beyond you. If this is incorrect, PLEASE DO NOT OPEN THE
ATTACHMENT.)
NOTICE #2: Paragraph 4 of the Order permits Defendant to ask me at trial
what is the dollar amount of my annual forensic income. I definitely will
absolutely and politely refuse to answer such questions. If this refusal will
result in my disqualification or the exclusion of my testimony, PLEASE DO
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NOT OPEN THE ATTACHMENT. (Back in July, I agreed to submit my
accountant's affidavit for in camera inspection in order to fulfill my
commitment to testify in this case. However, if I am destined to be disqualified
anyway, there is no purpose in entrusting the attached very confidential
information to the Court.)
On December 17, 2012, Plaintiff filed a motion for interlocutory appeal, seeking review of
the trial court’s decision to allow Defendant to inquire at trial about “the dollar amount” of
Dr. Evans’ annual forensic income. On January 7, 2013, the trial judge wrote a letter to the
attorneys in this case stating that she did not open the attachment to Dr. Evans’ email because
of the “notices” or conditions he imposed. The judge interpreted the first notice to say that
“under no circumstances” could the affidavit be provided to defense counsel, and the judge
indicated that this was not the intent of her prior rulings. In addition, the judge noted that the
second notice also prevented her from opening the attachment if it was her intention to allow
the Defendant to inquire into Dr. Evans’ forensic income at trial. She reiterated that she had
“stated all along that the Defendant would be allowed to inquire of the Plaintiff as to the
amount of the total forensic income, at least around the time (years) close to the case.”
Therefore, the judge concluded that she was prohibited from opening the attachment pursuant
to the first and second “notices” imposed by Dr. Evans.
On January 10, 2013, Defendant filed a third Rule 37.02 motion for sanctions based
upon the refusal of Plaintiff and Dr. Evans to comply with the court’s orders. Defendant
asserted that it was “as ‘plain as the fly in the buttermilk’ that Dr. Evans has not and will not
comply with the rulings of the Court,” due to his imposition of restrictions in his email to the
trial judge, and his unambiguous declaration that he did not intend to answer questions asked
of him at trial regarding his income, despite the trial court’s ruling that such questioning
would be permitted. Defendant once again asked the court to exclude Dr. Evans as a witness
and dismiss Plaintiff’s claim, or in the alternative, require identification of a replacement
expert witness within sixty days. Defendant cited the “torturous number of motions and
hearings in this matter” and “untold amounts of time and effort” in support of his argument
that Plaintiff should not be allowed any more “bites at the apple.” In response, Plaintiff
argued that Dr. Evans’ “notices” were not inconsistent with the court’s prior rulings.
Following a hearing, the trial court entered an order denying Defendant’s third Rule
37.02 motion for sanctions “at this time,” but it granted Plaintiff’s motion for interlocutory
appeal. This Court denied Plaintiff’s application for interlocutory appeal on February 22,
2013, and the Tennessee Supreme Court denied Plaintiff’s application for permission to
appeal to that Court as well.
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On March 12, 2013, Defendant filed a motion to amend the trial court’s order denying
his third motion for sanctions, or in the alternative, a fourth Rule 37.02 motion for sanctions.
Defendant cited the “multiple failures to comply with the Court’s orders” by Plaintiff and by
Dr. Evans, and once again asked the court to exclude Dr. Evans as a witness and dismiss the
case. On April 15, 2013, the trial court continued the May 2013 trial date until January 27,
2014.
Plaintiff filed a response to Defendant’s motion for sanctions, pointing out that Dr.
Evans had emailed his financial information to the court, but Plaintiff “conced[ed] that her
expert, Dr. Martin Evans, will definitely not answer the questions that paragraph 4 of the
Court's order of 11/15/2012 permit[ted] Defendant to ask.” At a hearing on June 21, 2013,
the trial judge finally advised Plaintiff that “it’s time to find another expert.” Plaintiff’s
counsel said that forty-five days would be sufficient time for him to do so, but the trial judge
generously gave him sixty days. She also reminded Plaintiff’s counsel of the option of taking
a nonsuit. On July 2, 2013, the trial court entered an order excluding Dr. Evans as a witness
in this case and requiring Plaintiff to identify a replacement expert within sixty days of the
hearing. The order stated that if Plaintiff had not identified another expert witness by August
20, 2013, or taken a nonsuit, the case would be dismissed.
On September 4, 2013, the trial court entered an order of dismissal, noting that
Plaintiff had not identified a replacement expert or nonsuited her claim. Plaintiff timely filed
a notice of appeal.4
II. I SSUES P RESENTED
This issues before us on appeal, as we perceive them, are:
1. Whether the trial court abused its discretion in ruling that Dr. Evans was required to
disclose his annual income information during discovery and during cross-
examination at trial; and
2. Whether the trial court abused its discretion in granting Defendant’s motion to
exclude Dr. Evans for failure to comply with the trial court’s orders.
Discerning no error, we affirm the decision of the circuit court.
4
Dr. Herrera died subsequent to the filing of the notice of appeal. On February 7, 2014, this Court
ordered that J. Martin Regan, Jr., in his capacity as the Personal Representative of the Estate of Fernando
A. Herrera, be substituted in the place of Fernando A. Herrera, M.D.
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III. S TANDARD OF R EVIEW
We review each of the trial court’s rulings at issue under an abuse of discretion
standard. “It is well settled that decisions with regard to pre-trial discovery matters rest
within the sound discretion of the trial court” and “will not be reversed on appeal unless a
clear abuse of discretion is demonstrated.” Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn.
1992) (citing Paine v. Ramsey, 591 S.W.2d 434, 436 (Tenn. 1979)). “We review a trial
court's decision regarding the admissibility of evidence, including a ruling on a motion in
limine, under an abuse of discretion standard.” Singh v. Larry Fowler Trucking, Inc., 390
S.W.3d 280, 284 (Tenn. Ct. App. 2012). Likewise, the “propriety, scope, manner, and
control” of cross-examination of witnesses is within the discretion of the trial court and will
not be interfered with in the absence of an abuse of discretion. State v. Echols, 382 S.W.3d
266, 285 (Tenn. 2012); State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992). In addition, “‘[a]
trial judge's exclusion of expert witness testimony is subject to an abuse of discretion review
by this Court.’” Mayo v. Shine, 392 S.W.3d 61, 70-71 (Tenn. Ct. App. 2012) (quoting
Buckner v. Hassell, 44 S.W.3d 78, 83 (Tenn. Ct. App. 2000)).
“An abuse of discretion occurs when the trial court causes an injustice by applying an
incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous
assessment of the evidence, or relies on reasoning that causes an injustice.” Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing Wright ex rel. Wright v. Wright, 337
S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).
The abuse of discretion standard “does not permit an appellate court to substitute its
judgment for that of the trial court, but ‘reflects an awareness that the decision being
reviewed involved a choice among several acceptable alternatives, and thus envisions a less
rigorous review of the lower court's decision and a decreased likelihood that the decision will
be reversed on appeal.’” Id. (quoting Henderson, 318 S.W.3d at 335). Consequently, when
reviewing a discretionary decision by the trial court, “the appellate court should presume that
the decision is correct and should review the evidence in the light most favorable to the
decision.” Id. at 105-06 (citing Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335).
Still, discretionary choices “‘are not left to a court's inclination, but to its judgment; and its
judgment is to be guided by sound legal principles.’” State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007) (quoting Martha S. Davis, Standards of Review: Judicial Review of
Discretionary Decisionmaking, 2 J. App. Prac. & Process 47, 58 (2000)). An abuse of
discretion will be found “when the trial court has gone outside the framework of legal
standards or statutory limitations, or when it fails to properly consider the factors on that
issue given by the higher courts to guide the discretionary determination.” Id.
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IV. D ISCUSSION
“Discovery of expert financial and personal history is an emerging area of the law[.]”
Walter R. Lancaster & Damian D. Capozzola, Expert Witnesses in Civil Trials § 8:23 (2013).
“Medical malpractice cases arguably have the most developed case law with respect to
discovery of financial information.” Id. However, “the courts have not been uniform with
respect to the degree of discovery that they will permit.” Id.
One of the most frequently cited cases on the subject is Wrobleski v. de Lara, 353 Md.
509, 727 A.2d 930 (1999), which contains an excellent discussion of the role of expert
witnesses and the reasons why many parties are now seeking to expose any potential bias of
an expert through the use of financial information:
Although expert witnesses play a vital, indeed a necessary, role in the
trial of certain cases, the law, both here and in England, has long viewed their
procurement by, and appearance on behalf of, parties to the litigation with
some misgiving. As long ago as 1858, the Supreme Court noted that “opposite
opinions of persons professing to be experts, may be obtained to any amount.”
Winans v. New York & Erie Railroad, 62 U.S. (21 How.) 88, 101, 16 L. Ed. 68,
71 (1858). In his 1864 treatise on Evidence, Judge Taylor observed:
“Perhaps the testimony which least deserves credit with a jury
is that of skilled witnesses. These gentlemen are usually required
to speak, not to facts, but to opinions; and when this is the case,
it is often quite surprising to see with what facility, and to what
an extent, their views can be made to correspond with the
wishes or the interests of the parties who call them.”
John P. Taylor, A Treatise on the Law of Evidence as Administered in England
and Ireland, 4th ed. (1864), § 50 at 72 (emphasis in original).
Writing in 1893, Professor Charles Himes quoted Taylor's statement
and added his own view that expert witnesses “are selected on account of their
ability to express a favorable opinion, which, there is great reason to believe,
is in many instances the result alone of employment and the bias growing out
of it.” 135 J. Franklin Inst. at 409 (1893). . . .
These concerns have certainly not dissipated over the years; if anything,
they have increased. Wigmore noted the “distrust of the expert witness, as one
whose testimony is shaped by his bias for the party calling him.” 2 John H.
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Wigmore, Evidence in Trials at Common Law § 563, at 761 (Chadbourn
rev.1979) (emphasis in original). In proposing Federal Rule of Evidence 706,
which codified the authority of the court to appoint its own expert witness, the
Advisory Committee commented that “[t]he practice of shopping for experts,
the venality of some experts, and the reluctance of many experts to involve
themselves in litigation, have been matters of deep concern.” Professor
Michael Graham, of the University of Illinois Law School, has observed:
“The professional expert witness advocating the position of one
side or the other has become a fact of life in the litigation
process. Practicing lawyers can quickly and easily locate an
expert witness to advocate nearly anything they desire. In each
part of the country, if you need an expert medical witness to
state that plaintiff suffered a whiplash injury, call expert X; if
you need a medical expert to dispute that fact, call expert Y. The
use of the expert witness has become so prevalent that certain
expert witnesses now derive a significant portion of their total
income from litigated matters.”
Michael H. Graham, Impeaching the Professional Expert Witness by a
Showing of Financial Interest, 53 Ind. L. Jour. 35 (1977). Experts of all kinds
regularly advertise their services to lawyers in the legal periodicals and
newspapers. See, for example, any recent issue of the American Bar
Association Journal or Trial, the Journal of the Association of Trial Lawyers
of America.
Wrobleski, 353 Md. at 515-16, 727 A.2d at 932-33 (footnote omitted). Right or wrong, “it
is widely believed that [expert witnesses] may be expected to express opinions that favor the
party who engaged them and who pays their fees.” Metropolitan Property & Cas. Ins. Co.
v. Overstreet, 103 S.W.3d 31, 43-44 (Ky. 2003). As the old saying goes, “Whose bread I eat,
his song I sing.”
Tennessee courts have recognized some similar concerns. See, e.g., State v. Sparks,
891 S.W.2d 607, 616 (Tenn. 1995) (quoting Edwards v. State, 540 S.W.2d 641, 647 (Tenn.
1976)) (“‘In this state, it is settled beyond question that the weight and value of expert
testimony is for the jury and must be received with caution. This applies to the expert
opinions of medical men.’”); Crane Enamel Co. v. Jamison, 217 S.W.2d 945, 949 (Tenn.
1948) (“it is settled law that the expert opinions of medical men are to be received with
caution”); Bateman v. Ryder, 64 S.W. 48, 49 (Tenn. 1901) (finding no error in the trial
court’s charge to the jury that “the testimony of experts . . . if paid for, should be received
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with great caution and carefully weighed by the jury”); Wilcox v. State, 28 S.W. 312, 314
(Tenn. 1894) (“expert testimony is to be received with caution”); see also Douglas R.
Richmond, Expert Witness Conflicts & Compensation, 67 Tenn. L. Rev. 909, 934 (2000)
(“Trial lawyers and courts alike are concerned about testimony by ‘professional experts.’”)
There is no doubt that expert testimony can be “powerful evidence” and can have “a
compelling effect with a jury.” Wrobleski, 353 Md. at 517, 727 A.2d at 933. As a result, the
fact-finder should “scrutinize” the testimony of experts, looking “to the circumstances that
brought them in as witnesses; to the fact of compensation, and to what extent, if any, under
all the circumstances, their credibility might be affected thereby.” Persons v. State, 16 S.W.
726, 727 (Tenn. 1891).
“Lawyers and judges regard cross-examination as an essential safeguard of the
accuracy and completeness of testimony.” Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708
(Tenn. Ct. App. 1999). The purpose of cross-examination is “to adduce from a witness any
information that may clarify, qualify, or undercut a witness's testimony on direct
examination, impair its effectiveness, or affect the inferences the trier-of-fact might draw.”
Id. at 708-09 (citing Roberto Aron, et al, Cross–Examination of Witnesses § 2.06 (1989)).
In recent years, “the difficulty and paramount importance of thorough, comprehensive
cross-examination of experts have increased markedly.” Trower v. Jones, 121 Ill. 2d 211,
215, 520 N.E.2d 297, 299 (Ill. 1988). Expert “locator” services “can help the litigants of
either side of most any case find an expert who will help advocate the desired position.” Id.
at 216, 520 N.E.2d at 299. In addition, “many experts today spend so much of their time
testifying throughout the country that they might be deemed not only experts in their field but
also experts in the art of being a persuasive witness and in the art of handling cross-
examination.” Id. Substantive cross-examination of a witness with extensive litigation
experience is often very difficult, as the witness is likely to be “proficient in the art of expert
witness advocacy” and “at ease with the material and capable of making fine line distinctions
between the current situation and those raised in the questions of examining counsel.”
Wrobleski, 353 Md. at 518, 727 A.2d at 934 (citing Graham, 53 Ind. L. J. at 40-41). The jury
may view “extensive or sharp questioning about the details as unnecessary quibbling.” Id.
“Other than trotting out one's own experts, exposure of financial interest bias may
sometimes be the most effective challenge that can be made to an expert's testimony[.]”
Wrobleski, 353 Md. at 518, 727 A.2d at 934. “Exposure of potential bias based on
self-interest is often attempted through cross-examination directed at how much the witness
is being paid for his or her services in the case at bar, the frequency with which the witness
testifies in similar kinds of cases, whether the witness customarily appears for a particular
type of party (usually plaintiff or defendant), whether the witness is frequently employed by
a particular party or attorney and, if so, how much income the witness derives from that
-16-
employment, and, as in this case, the amount or the percentage of the witness’s total income
that is derived from lawyer referrals or testimony in lawsuits.” Id. at 517, 727 A.2d at 933-
34. This type of financial discovery is aimed at exposing “the professional ‘hired gun,’ who
earns a significant portion of his or her livelihood from testifying and . . . may have a general
economic interest in producing favorable results for the employer of the moment.” Id. at
517-18, 727 A.2d at 934. As one author put it,
That an expert in a particular field may be in effect a ‘professional witness' in
lawsuits, rather than being more or less exclusively a practitioner whose
employment in a lawsuit as a witness is merely incidental to his or her
profession, is a matter which is likely to bear on the credibility of that expert,
since a significant portion of the expert's livelihood may thus depend on his or
her desirability as a favorable and convincing witness, thus possibly leading
to a temptation for the witness to color findings and testimony to suit the needs
of the proponent party, rather than to evaluate and present the subject matter
of the testimony with complete impartiality.
Russell G. Donaldson, Annotation, Propriety of Cross-examining Expert Witness Regarding
His Status as “Professional Witness,” 39 A.L.R. 4th 742, 746 (1985).
It is well-settled in Tennessee that “[a] finder of fact may consider an expert’s bias or
financial interest in the litigation when determining the weight to be given to his or her
opinions.” GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 547 (Tenn. Ct. App. 2005)
(quoting Street v. Levy, L.P., No. M2002-02170-COA-R3-CV, 2003 WL 21805302, at *4 n.
5 (Tenn. Ct. App. Aug. 7, 2003)). For example, “a finder of fact may consider the steady
stream of referrals by a lawyer to a medical expert in determining how much weight should
be given to the medical expert's testimony.” Street, 2003 WL 21805302, at *4 n.5 (citing
Noel v. Jones, 532 N.E.2d 1050, 1054 (Ill. App. Ct. 1988)). However, Tennessee appellate
courts have not had occasion to consider the precise issue before us, namely, whether a trial
court may require an expert to disclose the precise amount of his or her income earned from
testifying generally.
Several courts in other jurisdictions have considered “the issue of whether a trial court
may compel an expert witness to produce potentially relevant income-stream financial
records at the request of an opposing party.” Falik v. Hornage, 413 Md. 163, 183, 991 A.2d
1234, 1246 (2010). However, the courts that have considered the propriety of discovering
such financial information from an expert witness, and cross-examining him or her about it,
have reached a wide range of results. Some courts have refused to require expert witnesses
to disclose the same type of information sought from Dr. Evans, while others have required
expert witnesses to disclose much more income information than that requested in the present
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case.5
One of the states that has somewhat restricted opposing parties’ access to such
information is Florida. The Supreme Court of Florida has set forth broad guidelines
declaring that an expert may be asked to estimate the portion of his or her professional time
or work devoted to service as an expert, but “[t]he expert need not answer how much money
he or she earns as an expert or how much the expert’s total annual income is.” Elkins v.
Syken, 672 So. 2d 517, 521 (Fla. 1996).6 The Supreme Court of Oregon has also ruled that
an expert witness did not have to disclose the precise amount of his annual compensation
during cross-examination. State By and Through State Hwy. Comm’n v. Superbilt Mfg.
Co., 204 Or. 393, 407, 281 P.2d 707, 713 (Or. 1955) (holding that it was proper to ask an
appraiser how many times he had testified for the State and how much he was being paid in
the particular case, but that it was error to allow questioning as to how much money he had
received as an appraiser for the State in prior unrelated cases between 1946 and 1953).
Although some courts limit the amount of income information that can be discovered,
the courts generally agree that an expert’s income information is relevant to show potential
bias. See, e.g., Behler v. Hanlon, 199 F.R.D. 553, 561 (D. Md. 2001) (“[N]o intellectually
honest argument can be made that the information sought by plaintiff regarding [the expert's]
activities as a defense expert witness is not relevant to bias/prejudice impeachment, and
5
According to Russell G. Donaldson, Annotation, Propriety of Cross-examining Expert Witness
Regarding His Status as "Professional Witness", 39 A.L.R. 4th 742, 746 (1985):
Although some early cases appear to have taken a more or less categorical view as
to the propriety of such questioning generally by stating that certain specific questions in
areas devoted to the elicitation of an expert's “professional witness” status were simply not
permissible, as with most issues concerning the propriety of cross-examination, the question
whether to permit cross-examination devoted to eliciting such status is today regarded as a
matter largely within the discretion of the trial court, and is limited largely by the degree to
which the court finds the particular questions or line of questioning involved relevant. For
this reason, cases dealing with the same subject matter in the same jurisdiction have often
had opposite results with regard to matters actually permitted to be brought out upon such
cross-examination, the initial decisions of the trial courts being generally upheld on appeal
unless seen as involving matters of such importance as to constitute abuse of the very wide
discretion of the trial judge in such matters.
We note that there are many federal district court cases addressing the issues before us, and those courts are
divided on the issues as well, reaching a wide variety of conclusions. For that reason, we have generally
limited our discussion in this case to the decisions of other State courts.
6
However, the Florida Supreme Court ruled that the expert may be ordered to produce “business
records, files, and 1099s . . . upon the most unusual or compelling circumstance.” Elkins, 672 So. 2d at 521.
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therefore within the scope of discovery[.]”); Cooper v. Schoffstall, 588 Pa. 505, 522, 905
A.2d 482, 494 (2006) (“[E]ven those jurisdictions that have substantially limited discovery
of financial information from expert witnesses, generally recognize the relevance of the
information[.]”). The courts that limit financial discovery from experts often do so because
of privacy concerns and the potential chilling effect of such discovery on would-be experts.
See, e.g., American Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 513, 217 P.3d 1212,
1218 n.8 (Ariz. Ct. App. 2009) (“experts will be reluctant to participate in the litigation
process if they believe wholesale rummaging through their professional and financial affairs
will ensue”); Elkins, 672 So. 2d at 522 (“[A]n overly burdensome, expensive discovery
process will cause many qualified experts ... to refrain from participating in the process,
particularly if they have the perception that the process could invade their personal privacy.
To adopt petitioner's arguments could have a chilling effect on the ability to obtain doctors
willing to testify[.]”).
Despite these concerns, a majority of the courts that have considered the issue have
allowed expert witnesses to be questioned about the amount of income they earn from their
forensic activities.7 Wrobleski, 353 Md. at 519, 727 A.2d at 935. See, e.g., Collins v. Wayne
Corp., 621 F.2d 777, 784 (5th Cir. (Tex.) 1980) (finding no error in questioning an expert
as to how much he earned from testifying during 1974, stating, “cross-examination of an
expert about fees earned in prior cases is not improper”); Trower, 121 Ill. 2d at 218, 520
N.E.2d at 300 (holding that it was permissible to inquire how much the expert witness was
earning annually from services relating to rendering expert testimony); Simon v. Clark, 660
N.E.2d 634, 636-37 (Ind. Ct. App. 1996) (holding that a trial court erred in refusing to allow
questioning as to the amount of compensation that an expert witness received in the past year
for performing evaluations for defense attorneys, but that such error was harmless in light
of other evidence presented on bias); Jones v. Bordman, 243 Kan. 444, 455, 759 P.2d 953,
962 (1988) (“It is proper to ask what percent of a physician's practice involves examining,
diagnosing, and/or testifying for defendants, and what he is paid for such work[.]”);
Metropolitan Property & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 44 (Ky. 2003) (holding
that an expert physician’s annual income from court-ordered medical examinations is
discoverable, as well as the percentage that such examinations constitute of the expert’s
general practice); Wrobleski, 353 Md. at 526, 727 A.2d at 938 (allowing an inquiry “both
7
Some jurisdictions “require litigants to first pursue less intrusive discovery before resorting to
broad demands for information[.]” American Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 513, 217 P.3d
1212, 1218 (Ariz. Ct. App. 2009); see, e.g., Allen v. Superior Court of Contra Costa County, 151
Cal. App. 3d 447, 198 Cal. Rptr. 737, 741 (1984) (holding that the trial court abused its discretion when it
required document production without a showing that a less intrusive method of discovery would not
suffice); Primm v. Isaac, 127 S.W.3d 630, 638 (Ky. 2004) (holding that “the least burdensome route of
discovery was simply not followed” but that parties can seek leave of court to take additional discovery if
they can demonstrate that additional information is necessary to undertake reasonable bias impeachment).
-19-
into the amount of income earned in the recent past from services as an expert witness and
into the approximate portion of the witness's total income derived from such services”); State
ex rel. Lichtor v. Clark, 845 S.W.2d 55, 65 (Mo. Ct. App. 1992) (“the trial judge in this case
has discretion to allow testimony as to the amount of annual income derived from
employment as an expert witness”); Cooper v. Schoffstall, 588 Pa. 505, 508-09, 905 A.2d
482, 485 (2006) (allowing discovery of an expert’s “approximate amount of income each
year, for up to the past three years, garnered from the performance of [litigation-related
activities]”).8
In explaining its decision to allow inquiry into how much an expert witness was
earning annually from serving as an expert, the Illinois Supreme Court explained that “the
financial advantage which accrues to an expert witness in a particular case can extend beyond
the remuneration he receives for testifying in that case.” Trower, 121 Ill. 2d at 218, 520
N.E.2d at 300. “A favorable verdict may well help him establish a ‘track record’ which, to
a professional witness, can be all-important in determining not only the frequency with which
he is asked to testify but also the price which he can demand for such testimony.” Id. The
Supreme Court of Kentucky said, “It is undeniable that an expert's tendency to slant his
testimony may be affected not just by how much he is being compensated on one particular
occasion, but also by how much of his annual income is derived from similar testimony.”
Metropolitan Property & Cas. Ins. Co., 103 S.W.3d at 44. The Court observed that a jury
could reasonably believe that a physician who derives a substantial percentage of his annual
8
The Supreme Court of Pennsylvania, relying in part on Wrobleski, held that “the appropriate,
threshold showing to establish cause for supplemental discovery related to potential favoritism of a non-party
expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have
entered the professional witness category. In other words, the proponent of the discovery should demonstrate
a significant pattern of compensation that would support a reasonable inference that the witness might color,
shade, or slant his testimony in light of the substantial financial incentives.” Cooper, 588 Pa. at 524-25, 905
A.2d at 494-95. However, in Falik, Maryland’s highest court clarified its holding in Wrobleski and held that
a party is not required to demonstrate that an expert is a “professional witness” before it can gain access to
the expert’s financial information. The Court described such as theory as “circuitous” and “circular in its
expectation,” stating:
Following Dr. Falik's theory, the party seeking discovery first must establish (by undefined
criteria) that the witness is a "professional witness" before the party may be entitled to
inquire into the witness's income stream. That is circuitous. If the answers that the party is
seeking constitute the prima facie showing, it is unlikely that a party could ever establish
that a witness is a "professional witness," without knowledge of the witness's prior income
from expert services gained from sources other than through discovery in the immediate
case. Thus, there is here no separate prima facie burden of proving that a proffered
non-treating medical expert witness is a "professional witness."
413 Md. at 189, 991 A.2d at 1250.
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income from litigation-related services, “potentially earning hundreds of thousands of dollars
every year” from such work, “might be tempted to slant his testimony to suit his employer.”
Id. In contrast, a physician testifying for the first time, but earning the same fee, might face
a lesser temptation. Id. Yet, the jury would be unable to distinguish that physician from the
“professional witness” if courts flatly prohibit the discovery of an expert’s annual income
from litigation activity. Id. The Missouri Court of Appeals explained, “‘Evidence that a
witness makes substantial income from testifying does not necessarily imply that his fees are
unreasonable, but such evidence does illuminate the financial interest the expert has in giving
such testimony.’” Lichtor, 845 S.W.2d at 65 (quoting Trower, 121 Ill. 2d at 219, 520 N.E.2d
at 301). Showing “a pattern of compensation in past cases raises an inference of the
possibility that the witness has slanted his testimony in those cases so he would be hired to
testify in future cases.” Collins, 621 F.2d at 784; see also Cooper, 588 Pa. at 526, 905 A.2d
at 495 (noting that some courts do not allow discovery of an expert’s annual income from
litigation-related activities but holding that such information “is within the fair scope of
relevance on the question of potential favoritism”).
Although Tennessee courts have not directly considered the issue before us, there are
several rules and principles embedded in Tennessee law that impact our analysis. First of all,
Rule 616 of the Tennessee Rules of Evidence states that “[a] party may offer evidence by
cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or
prejudiced against a party or another witness.” Thus, evidence of bias or prejudice is
admissible pursuant to Rule 616. Emerson v. Oak Ridge Research, Inc., 187 S.W.3d 364,
374 (Tenn. Ct. App. 2005). Some common examples of bias or prejudice include “a
witness's personal stake in the outcome of the litigation, . . . a witness's relationship to a party
in the lawsuit, [and] a witness's motives for testifying.” Hunter v. Ura, 163 S.W.3d 686, 699
(Tenn. 2005) (citing Neil P. Cohen, et al., Tennessee Law of Evidence § 6.16[4] (4th ed.
2000)).
“Bias is an important ground for impeachment.” Tenn. R. Evid. 616, Adv. Comm’n
Cmt. (citing Creeping Bear v. State, 113 Tenn. 322, 87 S.W. 653 (1905)). “It is always
competent to prove the friendliness or unfriendliness of a witness, his partiality for one party
or hostility to the other, in order that the jury may judge of his credibility and the
trustworthiness of his testimony.” Creeping Bear v. State, 87 S.W. at 653. “The rule of
admissibility of evidence to show bias or interest of a witness encompasses all facts and
circumstances which, when tested by human experience, tend to show that a witness may
shade his testimony for the purpose of helping to establish one side of a cause only.”
Whittemore v. Classen, 808 S.W.2d 447, 452 (Tenn. Ct. App. 1991) (citing Majestic v.
Louisville & N.R. Co., 147 F.2d 621 (6th Cir. 1945)). As we noted earlier, a finder of fact
may consider an expert’s bias or financial interest in the litigation when determining the
weight to be given to the expert’s opinions. GSB Contractors, Inc., 179 S.W.3d at 547
-21-
(citing Street, 2003 WL 21805302, at *4). The fact-finder should “scrutinize” the testimony
of experts, looking “to the circumstances that brought them in as witnesses; to the fact of
compensation, and to what extent, if any, under all the circumstances, their credibility might
be affected thereby.” Persons v. State, 16 S.W. 726, 727 (Tenn. 1891).
Tennessee Rule of Evidence 611(b) is also relevant to our analysis, as it provides that
“[a] witness may be cross-examined on any matter relevant to any issue in the case, including
credibility[.]” This Rule allows for the “wide-open scope of cross-examination historically
favored in Tennessee.” Tenn. R. Evid. 611, Adv. Comm’n Cmt. “It is well established
that wide latitude should be afforded on cross-examination.” Steele v. Ft. Sanders
Anesthesia Group, P.C., 897 S.W.2d 270, 278 (Tenn. Ct. App. 1994). “Furthermore, a
witness may be cross-examined to show possible prejudice or bias, and this right should be
limited only upon a showing of the most extraordinary circumstances.” Id. (citing Phillips
v. Pitts, 602 S.W.2d 246, 249 (Tenn. Ct. App. 1980)).
It is equally well settled that the “propriety, scope, manner, and control” of cross-
examination of witnesses is within the discretion of the trial court and will not be interfered
with in the absence of an abuse of discretion. State v. Echols, 382 S.W.3d 266, 285 (Tenn.
2012). Determining the propriety of questions on cross-examination is “very largely” left to
the “wide discretion” of the trial court. Woods v. Herman Walldorf & Co., Inc., 26 S.W.3d
868, 877 (Tenn. Ct. App. 1999).
Considering all these principles, and having reviewed caselaw from around the
country discussing the pertinent issues, we cannot say that the trial judge abused her
discretion in concluding that Dr. Evans’ annual income from serving as an expert witness
was both “relevant and certainly discoverable,” as well as an appropriate subject for cross-
examination by defense counsel. “The fact that these decisions are characterized as
discretionary reflects a recognition that they involve a choice among acceptable alternatives.”
Overstreet, 4 S.W.3d at 708. “Thus, the appellate courts will set aside a trial court's
discretionary decision only when the decision is based on a misapplication of the controlling
legal principles or on a clearly erroneous assessment of the evidence.” Id. The trial judge
in this case attempted to fashion a reasonable remedy and “compromise” between the parties
based upon relevant and appropriate considerations. She clearly took into account the
applicable law, as her remarks during the numerous hearings indicate that she was familiar
with caselaw from other jurisdictions pertaining to this subject. A review of the record
indicates that the trial judge exercised her discretion in a manner that was guided by the
applicable legal principles, and we cannot say that she reached an illogical result or relied on
reasoning that caused an injustice.
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Again, the discovery dispute began with defense counsel requesting Dr. Evans’
schedule of charges for work as an expert witness in a lawsuit, all income he received from
reviewing cases, consulting or testifying in connection with lawsuits during the past ten
years, and 1099s and related documents reflecting his income for medical/legal review for
the years 2000 to 2010. Dr. Evans did not produce these documents, and at his deposition,
he either could not or would not answer questions from defense counsel regarding his
income. When asked 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 estimated that fifteen to twenty percent of his income comes from
expert activity but claimed he did not know “the actual amount of dollars.” Dr. Evans has
been testifying as an expert witness for thirty years, he has served as an expert witness for
the attorneys representing plaintiff in this case for over fifteen years, he has reviewed twelve
to twenty cases per year for the past twenty years, and he “would guess” that he presently has
between ten and fifty open files, although it could be more than fifty.9 Dr. Evans had been
disclosed as an expert witness in 179 cases in 23 different states, and in 96% of those cases,
he had testified for plaintiffs. At one of the first hearings in this matter, the trial judge said
that Dr. Evans’ history “sort of has a red flag that says professional expert to me,” and his
testimony raised doubts in her mind about whether he really only earned fifteen to twenty
percent of his income from testifying. Nevertheless, the trial judge denied Defendant’s first
motion to compel production of documents because the documents were not in Plaintiff’s
possession. She ruled that Defendant’s request for ten years of income information was too
broad and limited the request to five years. She also suggested that, rather than producing
tax returns, Dr. Evans should be allowed to produce an affidavit from his accountant stating
his precise income figures, in order to avoid the disclosure of irrelevant private information.
On June 12, 2012, the court entered an order requiring Plaintiff’s counsel to produce, within
two weeks, an affidavit from Dr. Evans’ accountant setting forth his income from testifying
or participating in lawsuits for the past five years, in addition to his total gross income from
the treatment and care of patients during those years. The judge refused to require Dr. Evans
to produce his 1099s. She allowed the affidavit to be provided directly to defense counsel
so that it would not be maintained in the court file. The trial judge made it clear that her
ruling would be applicable to the experts serving for both parties, in the event that Plaintiff’s
counsel chose to pursue income information from Defendant’s expert witnesses. The order
stated that the information contained in the affidavit “shall be used solely for the purpose of
verifying or impeaching the expert's testimony within the context of this litigation and may
9
Dr. Evans was asked during his deposition how many “open” or current files he presently
maintained, and he responded, “I have no way to know.” Defense counsel asked if it was more than ten, and
Dr. Evans responded, “Yes.” Defense counsel then asked if it was more than fifty, and Dr. Evans said, “ I
don't know.” Defense counsel said, “Okay. You think it's probably between 10 and 50?” and Dr. Evans
replied, “I would guess, yes, but I don't really know.”
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be used at trial only if permitted to do so by subsequent order of the Court.” Despite the
court order, Plaintiff did not file the affidavit from Dr. Evans’ accountant. Defendant filed
a motion for sanctions, but the trial judge generously extended the deadline for production
of the affidavit until July 12, and she ruled that Dr. Evans could send the affidavit directly
to her personal email address, for her in camera review, rather than giving it to defense
counsel. She would then review the information in order to determine whether it confirmed
or contradicted Dr. Evans’ deposition testimony. If it proved that his testimony was accurate,
she would not disclose the information to defense counsel. She also said she would not
disclose the information to defense counsel if Dr. Evans elected to withdraw from the case.
However, in response to Defendant’s motion in limine, the trial judge ruled that defense
counsel would be permitted to ask Dr. Evans, during cross-examination at trial, about his
annual income from testifying over the past one or two years. The extended deadline expired
with no attempt at compliance by Plaintiff or Dr. Evans. Defendant then filed a second
motion for sanctions. Although the trial judge initially ruled that Dr. Evans would be
excluded as an expert, she set aside that order upon Plaintiff’s motion to amend, as he
claimed that the previous order incorporating the trial court’s oral ruling was “confusing” to
Dr. Evans. The court then allowed Plaintiff to produce the affidavit to her by December 15,
2012. On December 14, Dr. Evans emailed the affidavit to the trial judge, but he imposed
the two “notices” instructing the trial judge not to open the attachment if his refusal to answer
questions at trial about his income was going to disqualify him. Defendant filed a third
motion for sanctions, which the trial court denied “at this time,” as she granted Plaintiff
permission to seek an interlocutory appeal. When the application was denied by this Court,
Defendant renewed his motion for sanctions. Finally, on July 2, 2013, over a year after the
court originally ordered Dr. Evans to produce the affidavit containing his income figures, the
trial court entered an order excluding Dr. Evans as a witness in this case and requiring
Plaintiff to identify a replacement expert within sixty days. After Plaintiff failed to obtain
a replacement expert, and declined the trial judge’s suggestion of a nonsuit, the trial court
entered an order of dismissal on September 4, 2013, noting that Plaintiff had not identified
a replacement expert.
We have summarized the tortured procedural history of this case only to demonstrate
that the trial judge attempted, on multiple occasions, to accommodate Dr. Evans’ privacy
concerns but yet provide Defendant with information that was necessary, in the trial court’s
opinion, to explore Dr. Evans’ potential financial bias. An affidavit stating Dr. Evans’
income from the past five years from testifying or participating in lawsuits and his total gross
income from the treatment and care of patients was, in our opinion, reasonably tailored and
minimally intrusive, considering the particular facts of this case. The affidavit was a useful
tool for confirming the accuracy of Dr. Evans’ deposition testimony about his professional
income, and less invasive and burdensome than producing complete tax returns. In addition,
the trial judge went so far as to say that the affidavit could be provided directly to her for in
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camera review, not to defense counsel. Even though the affidavit would presumably have
to be prepared by Dr. Evans’ accountant specifically for this purpose, the cost of its
preparation was to be paid by Defendant, and there was no attempt by Dr. Evans to show that
compiling the income information would be burdensome. The information that the trial
judge ordered produced was not duplicative, as Dr. Evans had already been asked to state his
annual income from testifying during his deposition, and he was unable to do so or even to
give a reasonable estimate.
It was not unreasonable, under the facts of this case, to require the production of
documentary evidence confirming Dr. Evans’ previous estimate of his annual income.
Keeping in mind that the purpose of this type of discovery is to detect bias, the Missouri
Court of Appeals, affirming an order requiring document production in Lichtor, noted that
“a venal expert witness could not be expected to fully answer inquiries as to which the
witness is not required to produce documentation,” and some invasion of the expert’s privacy
may be “necessary to insure the honesty and accountability of the expert.” 845 S.W.2d at 65.
“A delicate balancing of privacy interests against the need for accountability therefore
becomes the responsibility of the trial court.” Id. Similarly, in Falik, Maryland’s highest
court considered an argument to the effect that “only verbal inquiries” should be authorized,
without “the compellable production of documents that support the verbal answers to the
permitted verbal inquiries.” 413 Md. at 187-88, 991 A.2d at 1249. The Court rejected that
argument, stating:
The production of limited financial documents, from a contemporary and finite
period of time, that reflect payments made to the witness in connection with
medical-legal services is permitted because, if the inquiring party does not
have access to such records, yet is permitted to inquire orally into the witness's
income stream, the inquiring party will not be able to cross-examine
effectively the expert witness. Civil trial practice in this area is not dependent
on articles of faith; rather, corroboration is important.
Id. “If an inquiring party's counsel is not allowed to view the records that purportedly
support the expert's answers to the permitted questions, then it must accept the expert's
answer without the opportunity to verify. We do not require blind trust without verification.”
Id. Finally, in Rowe v. State Farm Mut. Auto. Ins. Co., 670 So. 2d 718, 726 (La. Ct. App.
1996), the Louisiana Court of Appeals found that a trial court’s decision to deny a subpoena
for a physician’s income records rendered the plaintiffs “unable to prepare for or offer any
meaningful cross-examination” to prove bias. The plaintiffs’ inability to obtain and review
the documentary evidence prior to trial “had the effect of limiting plaintiffs to no weapon
save cross-examination which, uncomplemented by other discovery methods, seldom is of
adequate value when thrust against the broadside of the litigation expert who can so
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gracefully stiff-arm his unprepared cross-examiner.” Id.
The trial court’s orders reflect an attempt to balance the relevant privacy interests
“against the need for accountability.” Lichtor, 845 S.W.2d at 65. The court did not allow
unbridled access or “wholesale rummaging” through Dr. Evans’ personal records, and we
find no reversible error in its handling of this issue.
We also find that the trial court did not abuse its discretion in ruling that defense
counsel would be permitted to ask Dr. Evans at trial about “the dollar amount of his expert
witness income for a prior year, such as the year 2010, among others.” Wide latitude is
afforded on cross-examination in Tennessee; “a witness may be cross-examined to show
possible prejudice or bias, and this right should be limited only upon a showing of the most
extraordinary circumstances.” Steele, 897 S.W.2d at 278. Plaintiff has again failed to show
that the trial judge misapplied controlling legal principles or based her decision on a clearly
erroneous assessment of the evidence.
Plaintiff argues that the 2011 amendment to Tennessee Rule of Civil Procedure
26.02(4)(A)(i) “implicitly precludes discovery of the dollar amount of an expert’s annual
forensic income” and also precludes cross-examination regarding an expert’s annual income.
Rule 26.02 provides, in pertinent part:
Unless otherwise limited by order of the court in accordance with these rules,
the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending
action . . . It is not ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
...
(4) Trial Preparation: Experts. Discovery of facts known and opinions held by
experts, otherwise discoverable under the provisions of subdivision (1) of this
rule and acquired or developed in anticipation of litigation or for trial, may be
obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify
each person whom the other party expects to call as an expert witness at trial,
to state the subject matter on which the expert is expected to testify, and to
state the substance of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion. In addition, upon
request in an interrogatory, for each person so identified, the party shall
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disclose the witness's qualifications (including a list of all publications
authored in the previous ten years), a list of all other cases in which, during
the previous four years, the witness testified as an expert, and a statement of
the compensation to be paid for the study and testimony in the case.
The italicized portion of the Rule was added in 2011. Because the last sentence requires
disclosure of the compensation “to be paid . . . in the case,” Plaintiff argues that “the amount
of [an expert’s] compensation can only be discovered regarding the particular case at issue.”
Plaintiff claims that it is clear from the 2011 amendment that the Supreme Court
“contemplated the issue before this Court” and concluded that “a party does not have the
right to inquire about the actual amount of an expert’s annual forensic income.” (Emphasis
added).
We do not agree with Plaintiff’s suggestion that the last sentence of Rule
26.02(4)(A)(i) imposes a ceiling on the amount of information that can be discovered about
an expert witness. The Advisory Commission Comment to the 2011 amendment states, “The
sentence added to Rule 26.02(4)(A)(i) concerning discovery of information about those
intended to be called as expert witnesses at trial is designed to minimize the cost of learning
additional information about an opposing party's expert witnesses.” The federal counterpart
to Rule 26 is similar. It sets forth required disclosures regarding expert testimony in Federal
Rule of Civil Procedure 26(a)(2) and requires a report containing:
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in
the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in
the case.
This requirement was added to the federal rule in 1993. The Advisory Committee Note
explains that a “major purpose” of the amendment was “to accelerate the exchange of basic
information about the case and to eliminate the paper work involved in requesting such
information[.]” It describes the information covered by the Rule as “certain basic information
that is needed in most cases to prepare for trial or make an informed decision about
settlement.” The Advisory Committee Note expressly provides that parties are not precluded
“from using traditional discovery methods to obtain further information regarding these
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matters, as for example asking an expert during a deposition about testimony given in other
litigation beyond the four-year period specified in Rule 26(a)(2)(B).” Thus, federal courts
have held that “requests for documents are not objectionable merely because they seek
documents outside the scope of the expert disclosures required by Rule 26(a)(2)(B).” Moses
v. Halstead, 236 F.R.D. 667, 676-77 (D. Kan. 2006). In other words, it is not enough to
object to a discovery request on the mere basis that it “asks for . . . expert witness discovery
beyond the scope of [federal] Rule 26.” Id.; see also Silgan Containers v. National Union
Fire Ins., No. C 09–05971 RS (LB), 2011 WL 1058861, at *7 (N.D. Cal. Mar. 23, 2011)
(“Though Rule 26 only requires [a party] to produce information corresponding to cases in
which [an expert] testified at trial or by deposition in the past four years, it does not foreclose
additional discovery if the information sought is relevant and discoverable.”)
We likewise conclude that the last sentence of Tennessee Rule of Civil Procedure
26.02(4)(A)(i) was intended to clarify that certain information about an expert must be
provided if requested by an interrogatory, in order to “minimize the cost of learning
additional information.” Tenn. R. Civ. P. 26.02, Adv. Comm’n Cmt to 2011 Amendment.
However, it was not intended to establish an outer limit for what can be discovered about an
expert. There is no indication on the face of the rule to suggest that a party is absolutely
prohibited from seeking additional information about an opponent’s expert witnesses, and
we decline to interpret the rule in such a manner. We therefore reject Plaintiff’s argument
that Rule 26.02(4)(A)(i) prohibited the discovery of information about Dr. Evans’ annual
income from testifying as an expert.
Plaintiff also generally argues that the trial court’s orders requiring disclosure of Dr.
Evans’ annual income from litigation-related activities permitted an unwarranted invasion
of his privacy because he is simply a “seasoned” expert. However, inquiring into Dr. Evans’
income was not unwarranted under the facts of this case. “The bias of seasoned expert
witnesses may be difficult to detect.” Richmond, 67 Tenn. L. Rev. at 941. We do not mean
to say that Dr. Evans is in fact biased or a venal witness. “[T]he fact that an expert devotes
a significant amount of time to forensic activities or earns a significant portion of income
from these activities does not mean that the testimony given by the witness is not honest,
accurate, and credible. It is simply a factor that is proper for the trier of fact to know about
and consider.” Falik, 413 Md. at 180-81, 991 A.2d at 1245 (quoting Wrobleski, 353 Md. at
526, 727 A.2d at 938). “‘[A]bility and dedication cannot insulate anyone from the
suggestions of bias that a cross-examiner brings out when he plays his role in a trial.’”
Cooper, 588 Pa. at 523, 905 A.2d at 494 n.13 (quoting Collins, 621 F.2d at 784 n.5).
We wish to emphasize that our holdings on these issues are limited to the facts before
us, and we do not find it necessary or appropriate to establish broad guidelines regarding
what financial information will be discoverable or an appropriate issue for cross-examination
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in every case. “Defining a bright-line standard for all cases is not practical.” Grant, 222
Ariz. at 514, 217 P.3d at 1219. We express no opinion regarding the discoverability of the
documents that were originally sought in this case, under these or other circumstances. In
addition, our holding today should not be read to suggest that trial judges must make repeated
concessions to comply with the wishes of expert witnesses or attempt to convince them to
stay on a case. In our opinion, the trial judge in this case exercised the patience of Job with
Dr. Evans and “bent over backwards” to accommodate his demands. He was given “multiple
bites at the apple,” as Defendant put it. Considering our standard of review on appeal, we
simply hold that the trial judge did not abuse her discretion in handling these matters.
This brings us to Plaintiff’s next issue, in which she argues that the trial judge abused
her discretion in granting Defendant’s motion to exclude Dr. Evans as a witness. We find
no abuse of the trial court’s discretion on this issue. Tennessee trial courts “possess broad
discretionary authority to control their dockets and the proceedings in their courts[.]”
Barnett v. Tennessee Orthopaedic Alliance, 391 S.W.3d 74, 79 (Tenn. Ct. App. 2012)
(citing Hessmer, 138 S.W.3d at 904). Tennessee Rule of Civil Procedure 37.02 provides that
if a deponent or party “fails to obey an order to provide or permit discovery,” the trial court
“may make such orders in regard to the failure as are just,” including an order “prohibiting
that party from introducing designated matters in evidence[.]” This also includes an order
precluding an expert from testifying. See Walls v. Conner, No. E2007-01917-COA-R3-CV,
2008 WL 4735311, at *5 (Tenn. Ct. App. 2008). “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.’” Id.
(quoting Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988)). “Thus, the authority to
impose sanctions for abuse of the discovery process derives from the Rules and the court's
inherent powers.” Id. (citing State ex rel. Gibbons v. Smart, No. W2007-01768-COA-R3-
CV, 2008 WL 4491729, at *10 (Tenn. Ct. App. W.S. Oct. 8, 2008)). A trial court’s sanction
will not be disturbed absent an abuse of discretion. Id.
Here, Plaintiff and Dr. Evans repeatedly and knowingly failed to comply with the trial
court’s orders, despite multiple opportunities and generous extensions of deadlines. There
comes a time when, as the saying goes, “enough is enough.” Although Dr. Evans finally
emailed the affidavit to the trial judge, he attempted to impose his own “notices” to the trial
court regarding its use and confirmed that he would not answer the questions at trial that the
trial judge had already ruled that defense counsel could ask. The trial judge did not abuse
her discretion in excluding Dr. Evans as a witness.
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V. C ONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby affirmed.
Costs of this appeal are taxed to the appellant, Linda Laseter, individually and on behalf of
her deceased mother, Alice H. Corr, and her surety, for which execution may issue if
necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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