Day on TortsThe Tennessee Bar Journal has just published my article, “Tennessee Supreme Court Creates the “Colleague Privilege.” The article discusses the implications of a brand-new privilege which provides that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard,” and that this holding “stands regardless of any supervisory relationship between the providers.”
Articles Posted in Evidence
Defendant physician cannot be compelled to give expert opinion of other healthcare provider’s care.
In a recent HCLA case, the Tennessee Supreme Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”
In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, — S.W.3d —, No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023), plaintiff filed a healthcare liability action against multiple defendants, including the midwife who was overseeing her birth and the midwife’s supervising physician, Dr. Seeber. Plaintiff suffered permanent brain damage and was severely debilitated by injuries received during the birth. During the supervising physician’s deposition, plaintiff’s counsel questioned him about what his expectations of the midwife would be in hypothetical situations, when the mother’s condition became concerning, and other questions related to the standard of care for the midwife, all of which the physician’s attorney instructed him not to answer.
Plaintiff filed a “motion to compel Dr. Seeber to testify concerning [the midwife’s] performance prior to his arrival,” which the trial court denied. The Court of Appeals, however, reversed the trial court and ruled that “the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition.” In this appeal to the Supreme Court, the judgment of the trial court denying the motion to compel was affirmed.
The Tennessee Missing Witness Rule
What you need to know about Tennessee’s “Missing Witness Rule:”
Tennessee’s law of evidence recognizes the common law rule that a party “may comment upon the failure . . . to call an available and material witness whose testimony would ordinarily be expected to favor” the opposing party. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party “that would naturally incline the witness to favor the party,” and the witness was available to the process of the court. Id. (quoting Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979)). In civil trials, this rule applies when the missing witness is also a party—with knowledge of material facts, naturally favorable testimony, and availability to judicial process. See Runnells v. Rogers, 596 S.W.2d 87, 90–91 (Tenn. 1980); W. Union Tel. Co. v. Lamb, 203 S.W. 752, 753 (Tenn. 1918).
The logic of this common law principle stems from the commonsense inference that “[a] party’s intentional efforts to keep evidence from the fact-finder” is reasonably “interpreted as an implied admission of weakness in that party’s case.” Robert H. Stier, Jr., Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 140 (1985). This “inference, which Wigmore calls ‘one of the simplest in human experience,’” id. (quoting 2 John Wigmore, Evidence in Trials at Common Law § 278, at 133 (J. Chadbourne rev. ed. 1979)), is well-grounded in Tennessee law. Yet we have applied it with due caution for the “several dangers inherent” in its operation, such as adding false weight or significance to testimony that a court has not heard. See Francis, 669 S.W.2d at 89. Thus, we strictly construe the missing witness rule and its elements. Id.
Involuntary dismissal affirmed when video showed that defendant’s car was visible when plaintiff pulled onto roadway.
Where security camera footage showed that plaintiff pulled onto the road when defendant’s approaching vehicle was clearly visible, plaintiff was at least 50% at fault for the resulting car accident, despite the fact that defendant was going at least twenty miles per hour over the speed limit.
In Cryer v. City of Algood, Tennessee, No. M2020-01063-COA-R3-CV, 2022 WL 150854 (Tenn. Ct. App. Jan. 18, 2022), plaintiff was driving his vehicle with his wife in the passenger seat. When he pulled onto the road, attempting to cross two lanes of traffic and a turning lane, his vehicle was struck by a police cruiser driven by Officer Ferguson, who was employed by defendant city.
Plaintiff filed this negligence suit and defendant counterclaimed, also raising the defense of comparative fault. During a bench trial, the evidence showed that the police cruiser was in the left lane and had just passed a black car that was traveling in the right lane. Security camera video showed, however, that at the time plaintiff began pulling out, the cruiser was visible on the straight road. Evidence also showed that the cruiser was traveling at least 60 miles per hour while the speed limit was 40 miles per hour, and that the officer did not brake until a short time before impact. Plaintiff’s wife testified that she was talking to plaintiff when he pulled onto the road, and that shortly before this she had told him to put on his seatbelt.
How to Authenticate A Facebook Post.
How do you authenticate a Facebook account? A Georgia court affirmed a prosecutor’s successful efforts to have excerpts of a criminal defendant’s Facebook account admitted into the evidence.
The defendant (Nichols) claimed
that the trial court abused its discretion by admitting Facebook records that included several private messages that the State claimed he had sent. The State used a search warrant to obtain the records from Facebook, which also provided a certification of authenticity. Nichols argues that the State did not sufficiently authenticate that the messages were sent by him.