Plaintiff Allowed To Substitute Expert After Named Expert Refused To Testify: The Court of Appeals of Tennessee at Nashville (“Tennessee Appellate Court”) stated in its opinion filed on August 10, 2022, “the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.”
The Underlying Facts
Cody Blackburn (“the Decedent”) was 35 years old when he was taken to Maury Regional Medical Center on the morning of September 17, 2014. The Decedent presented with complaints of severe pain in his chest and abdomen and shortness of breath. He was treated in the ER by Dr. Mark McLean (“Dr. McLean”).
At approximately 2:50 p.m., the Decedent stretched out his arms, screamed out in pain and collapsed. Despite resuscitation efforts, he died. The Plaintiff alleged that Dr. McLean and the hospital were negligent, including alleging that Dr. Mclean had “[f]ail[ed] to order the appropriate tests in a timely manner.” The Plaintiff disclosed Dr. Richard Sobel (“Dr. Sobel”), who was to testify as a standard of care expert, and Dr. Keith Allen (“Dr. Allen”), who was to testify as to causation.
Dr. Sobel was deposed by the Defendants on October 4, 2017. Prior to his deposition, efforts had been made by the Defendants to subpoena Dr. Sobel’s financial records reflecting the amount of income that he had derived from his previous work as an expert witness, but Dr. Sobel did not bring the requested documents to his deposition. Later, on February 1, 2018, Dr. McLean filed a motion to compel the Plaintiff and Dr. Sobel to produce copies of Dr. Sobel’s tax records reflecting the amount of money he was paid for “medico-legal matters” during certain prior years.
Dr. Allen was deposed on September 21, 2017. During his discovery deposition, Dr. Allen testified that the Decedent “would probably be alive” when he was asked what would have happened had the Decedent “sought earlier treatment, and if that treatment were the same as what was provided when he did present.” Subsequently, on January 2, 2018, Dr. McLean filed a motion to amend his answer to plead the comparative fault of the Decedent as a defense. The hospital later joined in Dr. McLean’s motion.
The trial court subsequently ordered Dr. Sobel to produce the requested documents regarding his income from “medico-legal matters,” after which Dr. Sobel refused to testify as an expert witness for the Plaintiff, prompting a need for the Plaintiff to secure substitute expert testimony. The trial court refused to allow the Plaintiff to substitute an expert to testify as to the issues to be addressed by Dr. Sobel, and the Plaintiff appealed.
The Tennessee Appellate Court stated: “We are of the opinion that the trial court’s ruling here constituted an abuse of discretion. Although the trial court generally referenced a potential risk of prejudice and delay that could be occasioned by allowing the Plaintiff’s new expert, it should be noted that the Plaintiff was proposing to merely substitute Dr. Lunders’ opinions for Dr. Sobel’s. The Plaintiff was not proposing to inject entirely new issues into the case. Dr. Sobel, of course, had refused to testify, and a replacement for him was needed. Although Dr. Sobel’s refusal to testify was arguably assumed by the trial court’s written order inasmuch as the deterioration of the relationship between Dr. Sobel and the Plaintiff’s counsel was referenced, it was never specifically discussed. Indeed, instead of specifically focusing on whether the Plaintiff had control over Dr. Sobel’s refusal to testify, which itself prompted the need for a substitute expert, the trial court focused more narrowly on Dr. Sobel’s deposition testimony and whether Plaintiff’s counsel had control over it or was at fault for it. As noted above, as to these considerations, the trial court opined that the Plaintiff’s counsel had “some control” over Dr. Sobel’s testimony but was not at fault for it. It is not clear to us in what sense the trial court believed “some control” to exist in relation to Dr. Sobel’s testimony, and we note again that the court ultimately concluded that the Plaintiff’s counsel bore no fault for what Dr. Sobel had stated. As best as we can understand, the partial control contemplated by the court’s order perhaps refers to counsel’s pre-deposition preparation, or lack thereof, of Dr. Sobel.”
“As it is, the record contains no finding from the trial court that the Plaintiff or his counsel acted in bad faith or was at fault here, and insofar as this record suggests, the Plaintiff did not have control over Dr. Sobel’s actual decision to refuse to testify. It therefore appears that the Plaintiff’s need for a replacement expert outside the scheduling order deadline was not within his control.”
“We conclude that such a showing of excusable neglect was made here in light of the above discussion and hold that the trial court abused its discretion in not allowing the Plaintiff to use Dr. Lunders as a substitute expert for the standard of care opinions already previously injected into the case through Dr. Sobel.”
The Tennessee Appellate Court further held: “Although we discern no error in the trial court’s decision to allow the comparative fault defense amendment complained of by the Plaintiff, we conclude that the court did err with regard to the limitations it imposed on any new experts the Plaintiff might retain to respond to this new defense.”
Source Blackburn v. McLean, No. M2021-00417-COA-R3-CV.
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