Tennessee Court of Appeals: HCLA plaintiff should have been allowed to substitute expert.

Where an HCLA plaintiff’s expert refused to testify due to no fault of plaintiff or plaintiff’s counsel, the Tennessee Court of Appeals ruled that the  trial court should have allowed plaintiff to secure a substitute expert.

In Blackburn v. McLean, No. M2021-00417-COA-R3-CV, 2022 WL 3225397 (Tenn. Ct. App. Aug. 10, 2022), plaintiff filed an HCLA complaint in connection with the death of 35-year-old decedent who died after presenting at defendant emergency room and being treated by defendant doctor. Plaintiff identified Dr. Sobel as his standard of care expert and Dr. Allen as his causation expert. During Dr. Allen’s deposition, he testified that the decedent would “probably be alive” if he had sought treatment earlier, and defendant doctor thereafter filed a motion to amend his answer to plead the comparative fault of decedent. Defendant also filed a motion to compel the production of certain tax records from Dr. Sobel showing “the amount of money he was paid for medico-legal matters during certain prior years.”

After a hearing, both the motion to amend and the motion to compel were granted. After financial documents related to Dr. Sobel were produced, defendant doctor moved to lift the protective order regarding these documents, which the trial court granted. After the protective order was granted, Dr. Sobel refused to testify as an expert witness for plaintiff in this case.

Plaintiff filed a Motion to Substitute Expert Witness seeking to substitute a new expert whose opinions were “for the most part identical” to those of Dr. Sobel, but the trial court denied the motion. Plaintiff also sought to retain an expert to respond to the newly added comparative fault allegations. While the trial court ruled that plaintiff could obtain a cardiologist to respond to the newly asserted comparative fault defense, it placed extensive limitations on what that expert could address, specifically stating that plaintiff could not identify new experts “to address the standard of care for Defendants or alleged violations of the standard of care[,]…to testify about the alleged fault of Defendant [doctors] and/or what he allegedly did wrong[,] …to compare the fault of the decedent to the fault of the Defendants.”

After making these rulings, the trial court granted summary judgment to defendants on all claims, finding that plaintiff could not show a genuine issue of material fact. This appeal followed, where summary judgment for defendant doctor, the ruling that plaintiff could not obtain a substitute expert, and the limitations placed on plaintiff’s expert response to the comparative fault defense were reversed.

In its opinion, the Court of Appeals began by explaining that plaintiff’s appellate argument was largely inadequate, and that issues related to summary judgment for the hospital were accordingly waived. Because “public policy favors resolving cases on their merits” and because the Court found the challenge to summary judgment in favor of defendant doctor “sufficiently discernible…given the larger context of the Plaintiff’s brief,” the Court reviewed this decision. (internal citation omitted).

The Court first looked at the trial court’s denial of plaintiff’s motion to substitute a new expert for Dr. Sobel after Dr. Sobel refused to testify. Because the deadline for disclosing experts had passed by the time this motion was made, the Court of Appeals pointed to the factors to be considered when a party requests “an enlargement of time to identify expert witnesses: (1) the risk of prejudice to parties opposing the late filing, (2) the delay and its potential impact on proceedings, (3) the reasons why the filings were late and whether the reasons were within the filer’s reasonable control, and (4) the good or bad faith of the filer.” (internal citation omitted). In denying plaintiff’s motion, the trial court ruled that the risk of prejudice to defendant was great and that there would be significant delay if a substitute expert was allowed. The Court of Appeals, however, found that the trial court “committed an abuse of discretion” in making this ruling.

The Court of Appeals pointed out that plaintiff “was proposing to merely substitute Dr. Lunders’ opinions for Dr. Sobel’s…, not proposing to inject entirely new issues into the case.” The Court also focused on the fact that Dr. Sobel’s refusal to testify was outside of plaintiff’s control, and that despite plaintiff and Dr. Sobel having issues, plaintiff was fully prepared to go to trial with Dr. Sobel as the expert. While the trial court stated that a lawyer manufacturing an issue with an expert could be an issue, it then went on to state that “there was no bad faith or fault on the part of the Plaintiff’s counsel here,” which the Court of Appeals found important. The Court of Appeals ultimately ruled that plaintiff here showed “excusable neglect” since the need to substitute experts beyond the deadline was beyond his control, and 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.”

In light of the decision that Dr. Lunders should have been allowed as a substitute expert, the Court also reversed summary judgment in favor of defendant doctor, as that ruling was “predicated upon the Plaintiff’s lack of expert proof as to the standard of care required of Dr. McLean.”

The Court next considered the limitations placed by the trial court on any expert retained by plaintiff to address the comparative fault allegations set forth in the amended complaint. The Court found no abuse of discretion in the trial court allowing the amendment to add the defense, but it did take issue with the expert witness limitations. The Court explained:

[T]he terms of the trial court’s order clearly prohibit any new expert from addressing, in any way, any alleged standard of care violations of Dr. McLean and his alleged wrongful actions, even those that are already in issue. In our view, this limitation constitutes an abuse of discretion, as it in effect prevents the Plaintiff from meaningfully responding to the new defense that the Decedent is to blame for the death that resulted in this case. Indeed, how would the Plaintiff be able to effectively counter Dr. McLean’s defense that the Decedent’s actions were a cause of the harm complained of in this case if the new expert allowed by the court for this issue is not permitted to offer an opinion that actions other than the Plaintiff’s, such as Dr. McLean’s, were the cause of the injury? By restricting any new expert from even broaching the alleged wrongful actions of Dr. McLean, the court’s order narrowly circumscribes the universe of the case and prevents any meaningful or intelligible inquiry into the issue implicated by the comparative fault defense…

Accordingly, the Court ruled that plaintiff “should be allowed, in response to the comparative fault defense, to obtain an expert that is not restricted from commenting on the actions of Dr. McLean.”

The Court of Appeals was correct in allowing plaintiff to substitute his expert and in striking down the limitations placed on the comparative fault expert. While this case is fact specific, its analysis of these expert witness issues could be helpful to future litigants facing similar hurdles.

This opinion was released three months after oral arguments in this case.

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