Expert’s Failure to Disclose Income As Expert – Round 3

The noncompliant Dr. Evans strikes again. For the third time, the Tennessee Court of Appeals heard a case revolving around the exclusion of Dr. Martin Evans as plaintiffs’ standard of care expert due to his failure to provide certain financial documents.

In Buman v. Gibson, No. W2015-00511-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2016), plaintiffs filed an HCLA claim in July 2011. In September 2012, plaintiffs identified Dr. Evans as their expert witness regarding the applicable standard of care. Dr. Evans was deposed in November 2012, during which he “refused to answer questions regarding his income from medical-legal review.” The trial court granted defendants’ motion to compel discovery on this issue, and on May 30, 2013, the trial court “orally ruled that Dr. Evans was to provide his annual income from medical-legal review from 2005-2011 within thirty days of the entry of the written order.” At that hearing, plaintiffs made an oral motion for additional time to obtain a new expert, and the trial court directed them to file a written motion to that effect. At the hearing, the trial judge stated: “In all candor, I probably will look on your motion with favor.” Following the hearing, however, plaintiffs did not file a written motion to allow time for a new expert. Accordingly, the trial court granted the motion to compel, and when the information was not provided, defendants filed a motion to exclude Dr. Evans and an accompanying motion for summary judgment based on plaintiffs’ lack of a standard of care expert, a requirement for proving an HCLA claim.

In the face of the motion to exclude and motion for summary judgment, plaintiffs still did not mile a motion for time to find a different expert. Instead, plaintiffs responded with a motion to revise that argued about the propriety of allowing discovery of the financial information sought. The court denied the plaintiffs’ motion on November 18, 2013, but gave them additional time to provide the requested financial information.

At the same time this case was being litigated, “a separate case also involving the exclusion of Dr. Evans for his refusal to produce evidence regarding his income from medical-legal review” was also winding through the system. In Laseter v. Regan, No. W2013-02105-COA-R3-CV, 2014 WL 3698248 (Tenn. Ct. App. July 24, 2014), the Court of Appeals “ruled that the discovery of an expert’s income from medical-legal review was proper and that it was not an abuse of discretion to exclude the expert for his failure to comply with valid discovery requests.” After the Laseter decision came out, the trial court in the instant matter ruled that Dr. Evans should be excluded and that summary judgment was thus appropriate. The Court of Appeals affirmed.

In its analysis, the Court quoted from both Laseter and Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV, 2015 WL 8773801 (Tenn. Ct. App. Dec. 14, 2015), another case involving the exclusion of Dr. Evans. First, the Court rejected plaintiffs’ argument that Tenn. R. Civ. Pro. 26.02(4) limits the financial information that can be sought from an expert witness. The rule states that “upon request in an interrogatory, …the party shall disclose the witness’s qualifications…, 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.” Plaintiffs argued that this language meant that defendants “were limited to discovering only the compensation that was paid to Dr. Evans for his expertise in the case-at-bar.” The Court pointed out that it rejected this same argument in Laseter, finding that this language “was not intended to establish an outer limit for what can be discovered about an expert.” (internal citation omitted). Instead, the Court noted that Tennessee allows for broad discovery based on relevancy, which is to be “construed liberally.”

As to the relevance of the financial information sought, the Court found:

Here, the discovery of information relating to an expert’s income from medical-legal review certainly meets this standard. …[E]xposure of financial interest bias may sometimes be the most effective challenge that can be made to an expert’s testimony. …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. Thus, discovery of an expert’s income from medical-legal review is highly relevant to the admissible issue of an expert’s bias.

(internal quotations and citations omitted). Here, the Court pointed out that “Dr. Evans undisputedly refused to comply with the trial court’s discovery order, despite multiple opportunities and generous extensions of deadlines.” Because the expert refused to supply this relevant information, the Court upheld his exclusion as an expert witness.

Next, the Court addressed plaintiffs’ argument that they should have been allowed to find another expert witness. Looking to previous opinions, the Court stated that “a party faced with a motion to exclude his or her required standard-of-care expert may be required to anticipate the exclusion of the expert and make appropriate efforts to remedy the issues that led to the expert’s exclusion or present to the court another expert witness to establish an appropriate standard.” (citing Weatherspoon). In this case, plaintiffs’ counsel was clearly aware as early as May 30th that there was a problem with the expert witness. At the May 30th hearing, counsel orally moved for time to find another expert. The Court, at that time, asked counsel to make a written motion, which plaintiffs never did. Despite being told that the Court would likely grant such a motion, plaintiffs at no time made a written motion to allow for the disclosure of another expert. The Court found that plaintiffs “had every opportunity to nullify the harmful effect cause by Dr. Evans’s exclusion by filing a written motion seeking additional time to obtain another expert, as directed by the trial court[.]” Plaintiffs did not make any effort to find another expert until the ultimate dismissal of the case, which was more than 14 months after the matter first came up at the hearing. Accordingly, the Court affirmed the trial court’s denial of plaintiffs’ request for time to get another expert.

This case serves as a cautionary tale to plaintiffs filing HCLA claims – should a problem arise with your expert, attempt to correct it as soon as possible. Standard of care and causation experts are almost always required in these cases, and delaying your efforts to cure expert witness issues could be fatal to your health care claim.