Day on Torts
Where an HCLA plaintiff failed to provide deposition dates for her expert witness by the deadline listed in the scheduling order, but she filed a motion to revise the scheduling order on the day of the deposition deadline, exclusion of the plaintiff’s expert was too harsh a sanction and was vacated.
In Buckley v. Jackson Radiology Associates, P.A., No. W2023-01777-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2025), the plaintiff filed an HCLA suit in 2016. Due to a motion for a qualified protective order, the case was stayed pending the outcome of a separate case. After the stay was lifted, the trial court set a scheduling order in September 2021. This scheduling order was later modified to require the plaintiff to disclose her expert by February 13, 2023, and to have all expert depositions completed by June 12, 2023.
The plaintiff disclosed Dr. Esposito on February 13, 2023. Counsel for the defendants immediately requested available deposition dates. According to the defendants, they requested deposition dates several times and received no response from the plaintiff. The plaintiff explained in her appellate brief that Dr. Esposito’s wife filed for divorce during this time and he did not cope well, causing the scheduling issues.
On June 12, 2023, which was the expert deposition deadline, the plaintiff filed a motion to revise the scheduling order to extend the deposition deadline. In response, the defendants filed a motion to exclude plaintiff’s expert and a motion for summary judgment, as the plaintiff could not prove her HCLA claim without an expert. The trial court ultimately granted the defendants’ motion to exclude and granted summary judgment to the defendants. This ruling was vacated on appeal.
When determining an appropriate discovery sanction, a trial court should consider “(1) the party’s explanation for not providing evidence during discovery; (2) the importance of the evidence; (3) the other party’s need for time to prepare to meet the evidence; and (4) the possibility and propriety of granting a continuance.” (internal citation omitted). Regarding exclusion as a sanction, the Court noted that such a harsh sanction “will usually be because the court has been unable to otherwise secure a party’s compliance with the discovery rules.” (internal citation omitted). The “exclusion of a necessary expert should be judged in a similar manner to the harsh sanctions of dismissal or default,” and “only a very strong showing of bad conduct by the non- moving party can justify the ‘harsh sanction’ of dismissal.” (internal citations omitted). Courts will not impose such a “harsh sanction unless there has been a clear record of delay or contumacious conduct.” (internal citation omitted).
In considering whether exclusion was appropriate here, the Court of Appeals first noted that the defendants “did not file a motion to compel discovery before moving for the exclusion of [the plaintiff’s] expert.” In addition, the plaintiff disclosed her expert on time and submitted her motion to revise the scheduling order on the day the deposition deadline. While the case had been pending for many years, the “timeline of discovery delay was closer to two months[.]”
Further, while the trial court focused on the importance of time for defendants to prepare, the Court of Appeals pointed out that the expert was “paramount” to the plaintiff’s case. Without expert proof, the plaintiff’s HCLA claim failed, and the trial court “made no specific findings as to how such delay would actually prejudice [the defendants] or how much time they would need to prepare for trial.”
The Court of Appeals stated that that plaintiff timely disclosed her expert, was working to schedule his deposition, filed a motion to revise with the trial court, and exhibited no conduct that was “contumacious, intentional, blatant, or otherwise so egregious as to justify the harshest sanction available.” Although exclusion is sometimes an appropriate sanction, the Court of Appeals ruled that it was too harsh here and vacated the trial court’s order.
This opinion was released 1.5 months after oral arguments.