In a case that could have only arisen in Shelby County, Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015), the Court of Appeals affirmed a trial court’s decision to dismiss a health care liability claim after excluding the plaintiff’s expert witness five days before trial.
The alleged negligence occurred in 1998, and this case had been pending in different forms for over fifteen years. After defendant filed a motion for summary judgment in 2009 on the basis that plaintiff did not have a standard of care expert, plaintiff responded and provided the affidavit of Dr. Evans. Defendant served a notice of deposition for Dr. Evans on May 22, 2013, with the deposition to occur one week later. “The notice requested that [plaintiff] ensure Dr. Evans produced certain documents at the deposition, including those related to the income he earned as an expert witness.” Dr. Evans failed to provide this information at his deposition, and continued to refuse to do so, even after the trial court granted defendant’s motion to compel production pursuant to a subpoena duces tecum.
The trial was set for February 2, 2015. On January 13th, counsel for defendant appeared at Dr. Evans’s office per the subpoena, but was told that Dr. Evans was not there and that counsel “did not have permission to be on the property.” Three days later, defendant filed a motion in limine to exclude Dr. Evans based on his refusal to provide these financial documents. The trial court heard arguments on January 28th and granted defendant’s motion excluding Dr. Evans. Because Dr. Evans was plaintiff’s only standard of care expert, and because standard of care must be proven by expert testimony in an HCLA case, the court dismissed plaintiff’s case.
On appeal, plaintiff argued that the trial court should have permitted him “additional time to ‘emergently arrange’ for another expert to testify at trial, which was scheduled to begin five days later.” The Court of Appeals rejected this argument, however, affirming the dismissal of the case. The biggest factor here was that plaintiff’s counsel had attempted to use the same expert in another case (Laseter v. Herrera, W2013-02105-COA-R3-CV, 2014 WL 3698248 (Tenn. Ct. App. July 24, 2014)), and in that case Dr. Evans also refused to provide the requested financial information. Due to his refusal to provide the financial information, Dr. Evans was excluded in the Laseter case, and the Court of Appeals affirmed the exclusion, with the opinion coming out July 24, 2014, more than six months before the scheduled trial for the present matter.* The Court reasoned that plaintiff’s counsel had known since at least the release of that opinion that “Dr. Evans would not be allowed to testify without producing the requested financial information, and further that Dr. Evans would recuse himself before complying with any order to produce such information and documents.” Essentially, plaintiff’s counsel was on notice that this expert simply would not work out.
To further support Dr. Evans’s exclusion, the Court pointed out that “without the financial information…, [defendant] would be prejudiced because she would not be able to sufficiently cross-examine the expert at trial.” The Court pointed out that, despite knowing about the problems with Dr. Evans for many months, plaintiff’s counsel at no time indicated that he had obtained another standard-of-care expert or that he was seeking leave to do so. The Court found:
Despite the clear notice that Dr. Evans was likely to be excluded well before the January 2015 hearing, [plaintiff] did not present to the trial court any expert that could be called in place of Dr. Evans. Instead, merely five days before the trial the [plaintiff] requested time to obtain another expert and faults the trial court for failing to make an ‘inquiry into plaintiff’s ability to accomplish the arrangement of another expert.’ [Plaintiff] also contends that the trial court failed to ‘make a bona fide finding that Plaintiff would not be able to emergently arrange’ for another expert. Respectfully, it is not the obligation of the trial court to prepare [plaintiff’s] case for him. …Based upon the clear notice of the impending exclusion of Dr. Evans and the overall duration of this case, [plaintiff’s] assertion that he could obtain another expert if simply given a little more time is ‘too little, too late.’
(internal citations omitted). Accordingly, dismissal was affirmed.
This is a very fact-specific case but a cautionary tale for lawyers nonetheless. HCLA claims require expert testimony regarding the standard of care. Lawyers should stay on top of their expert witness preparations and address any problems as they arise. Waiting until five days before trial to attempt to fix a situation that has been brewing for months will not win you any points from the judge and just might result in your client’s case being completely dismissed, as it did here.
The entire legal system should be embarrassed that this case was allowed to remain on the docket as long as it did. Win it. Lose it. Just do something with it. I feel sorry for the plaintiff and the defendant, both of whom have been in litigation over this matter since Bill Clinton was president.
*The Supreme Court denied permission to appeal the Laseter case in December 2014.