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BRITTANY BORNGNE EX REL. MIYONA HYTER v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.
I. FACTUAL & PROCEDURAL BACKGROUND
This appeal arises from a healthcare liability action brought by Miyona Hyter, a minor, by and through her mother Brittany Borngne. Specifically, Plaintiff brought suit against certified nurse midwife Jennifer Mercer, Dr. Michael Seeber, their employer Caring Choice Women's Center, P.C. (“Caring Choice”), and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System (“Erlanger”) based on the following events.
On March 3, 2014, Plaintiff, then approximately thirty-seven weeks pregnant, was admitted to the hospital with complaints of abdominal pains and cramping, back pain, headache, visual disturbances, and leg swelling. The following day, Plaintiff was admitted to labor and delivery at the direction of Nurse Mercer for medical induction of labor for pre-eclampsia. According to the record on appeal, Dr. Seeber was notified when Plaintiff was admitted to the hospital and when she began pushing.
On the evening of March 5, Plaintiff began attempting to push at approximately 9:30 p.m. After about an hour and forty-eight minutes of pushing, the baby had made no progress from the onset of labor. The fetal heart monitoring apparatus showed concerning signs for the health of the child in the form of late decelerations in relation to the mother's contractions that were recognized by Nurse Mercer and the other medical professionals working with her. Nurse Mercer called Dr. Seeber at about 11:18 p.m. He arrived at the hospital roughly forty-five minutes later. Upon reviewing Plaintiff's chart, Dr. Seeber promptly ordered a cesarean section (“C-section”). The child was not breathing when she was delivered on March 6, 2014. She was subsequently diagnosed with hypoxic ischemic encephalopathy (“HIE”), which is a type of brain damage that occurs when the brain does not receive sufficient blood flow and oxygen.
Plaintiff sued the defendants, alleging negligence on the parts of Nurse Mercer and Dr. Seeber. Concerning Erlanger specifically, Plaintiff alleged the hospital was vicariously liable for the allegedly negligent acts of one of its nurses, Sylvia Stephenson. Later, the trial court granted partial summary judgment on all claims of direct negligence against Dr. Seeber. However, Dr. Seeber remained in the case based upon Plaintiff's theory that he was vicariously liable for Nurse Mercer's actions as her supervising physician.
During Dr. Seeber's deposition, Plaintiff asked Dr. Seeber to give his opinion on Plaintiff's condition and Nurse Mercer's performance during the period of time she cared for Plaintiff and the child prior to Dr. Seeber's arrival. Dr. Seeber refused to opine on Nurse Mercer's performance prior to his arrival after defense counsel instructed him not to answer, referencing the Court of Appeals’ opinion in Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001), perm. app. denied (Tenn. Dec. 27, 2001). A pertinent portion of the dialogue during Dr. Seeber's deposition included the following:
Q: What would your expectation of Mercer be if you had a patient of your group with minimal variability and late for an hour? What would you expect?
A: It depends ․ if Jennifer Mercer is aware of this, that's one thing. And if Jennifer Mercer is unaware of this is another thing. And I don't know whether she's aware or not so I can't really—I can't really say.
Q: Let's take it—assume she was aware of it. What would your expectation be? Late ․ and minimal variability for an hour?
[Defense counsel:] I'm going to object to this and instruct him not to answer.
You're asking for an opinion.
Q: What would your expectation of your employee, the one you're supervising, be in this scenario?
[Defense counsel:] Same objection. Instruct him not to answer.
Q: ․ [T]he concern about the fetal heart tones is its minimal variability and late decelerations; right?
[Defense counsel:] Object to the form.
Q: And that status had been persisting for more than an hour, had it not?
A: About an hour.
Q: When did it become concerning?
[Defense counsel:] Object to the form. Do not speculate on this. He's asking you about something –
A: I cannot tell you when – when it became concerning to those individuals, because I'm not there.
Q: Well, when would you have expected it to be concerning?
[Defense counsel:] Don't answer that question.
[Defense counsel:] Same objection.
[Defense counsel:] Lewis v. Brooks. Don't answer.
Plaintiff filed a motion to compel Dr. Seeber to testify concerning Nurse Mercer's performance prior to his arrival, which was argued and eventually denied by the trial court. In denying the motion to compel, the trial court explained:
[T]he question calls for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks. The question is governed by Lewis v. Brooks and is an impermissible question and Dr. Seeber is not required to answer it.
The Court further finds that hypothetical questions posed to Dr. Seeber about actions of other individuals or circumstances involving patient care while he was not involved in the patient's care, are not permissible under Lewis v. Brooks ․
Concerning the issue of damages, Plaintiff's prayer for relief included, among other things, compensation for “[l]arge medical expenses past, present, and future,” and the “[l]oss of future earning capacity” of the child. The defendants filed a joint motion for partial summary judgment relating to the claim for pre-majority medical expenses. The trial court heard oral argument on May 24, 2019, and later granted the defendants’ joint motion for partial summary judgment regarding pre-majority medical expenses.
The case proceeded to a jury trial conducted in late May and early June of 2019. The jury found that neither Nurse Mercer nor Nurse Stephenson deviated from the recognized standard of care; thus, the jury found they were not negligent. The trial court, therefore, did not reach the issues of Dr. Seeber's vicarious liability or damages. Plaintiff moved for a new trial based on several different grounds, but the trial court denied the motion. Plaintiff then filed a notice of appeal.
Relevant to the issues raised on appeal before this Court, the Plaintiff argued to the Court of Appeals that (1) the trial court erred in limiting Plaintiff's examination of Dr. Seeber during his deposition and at trial under Lewis v. Brooks; and (2) the trial court erred in excluding proof of the child's pre-majority medical expenses. Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. E2020-00158-COA-R3-CV, 2021 WL 2769182 at *3 (Tenn. Ct. App. July 1, 2021). As to the first issue, the Court of Appeals reversed the trial court, concluding that the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Id. at *13. In a split opinion, the Court of Appeals distinguished the facts of this case from the facts of Lewis v. Brooks by primarily highlighting the supervisory relationship between Dr. Seeber and Nurse Mercer. Id. The intermediate court remanded the case for a new trial and further concluded that, on remand, Plaintiff should be permitted to put on proof of her pre-majority medical expenses. Id. at *14. Judge Kristi M. Davis filed a separate opinion concurring in part but dissenting as to the compulsion of Dr. Seeber's deposition testimony. Id. at *15–*16 (Davis, J., dissenting).
We granted the defendants’ ensuing applications for permission to appeal.
The first application for permission to appeal to this Court, filed by Dr. Seeber, Nurse Mercer, and Caring Choice, asked this Court to consider whether the Court of Appeals erred in its decision concerning the compulsion of Dr. Seeber's testimony and in its decision concerning exclusion of proof of Plaintiff's pre-majority medical expenses. Erlanger filed a separate application asking to this Court to consider whether the Court of Appeals erred in remanding the case for a new trial as to all named defendants when the reversible errors on appeal were only attributable to the Caring Choice defendants. As we see it, however, the dispositive issue before us is whether the trial court appropriately declined to order Dr. Seeber to answer the subject deposition questions concerning his expert opinion of the nurse-midwife's care of the Plaintiff. This is an issue of first impression for this Court.
Of course, in considering this question, we must begin with our standard of review. The lens through which we view the issue before us is no small matter. The parties have operated under the assumption that this Court will review the trial court's decision for an abuse of discretion. We certainly agree that “[i]t is well settled that decisions with regard to pre-trial discovery matters rest within the sound discretion of the trial court.” Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992). However, the defendants here are asking this Court to recognize for the first time that a defendant physician may refuse to give his or her expert opinion as to certain matters in a healthcare liability action. This is a question of law that we review de novo. Moore v. Lee, 644 S.W.3d 59, 63 (Tenn. 2022) (quoting Fisher v. Hargett, 604 S.W.3d 381, 395 (Tenn. 2020)); see also Carney-Hayes v. Nw. Wis. Home Care, Inc., 699 N.W.2d 524, 532 (Wis. 2005). Therefore, the trial court's conclusion on this issue is not entitled to a presumption of correctness.
Tennessee Code Annotated section 29-26-115(a) sets out the elements that a plaintiff in a healthcare liability action must prove to prevail at trial:
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
In addition, the statute makes clear that “expert testimony must be provided by a plaintiff to establish the elements of his or her medical negligence case.” Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011) (citing Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 553 (Tenn. 2006); Stovall v. Clarke, 113 S.W.3d 715, 723 (Tenn. 2003); Robinson v. LeCorps, 83 S.W.3d 718, 724 (Tenn. 2002)); see also Tenn. Code Ann. § 29-26-115(b).
In the case before us, Plaintiff attempted to directly question a party defendant (who was not an independent expert) to prove the applicable standard of care and whether Nurse Mercer's conduct was compliant with that standard. As noted above, the trial court declined to compel Dr. Seeber to testify as to his opinion of the medical care rendered by Nurse Mercer at times when Dr. Seeber was not present or directly involved with the plaintiff's medical treatment. The trial court stated that Dr. Seeber could not be required to answer a question that “calls for an opinion ․ on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks.”
Indeed, the most relevant Tennessee case on this particular issue is a twenty-two-year-old Court of Appeals opinion, Lewis, 66 S.W.3d 883. In Lewis, the plaintiff sued three doctors: Drs. Moore, Lawrence, and Brooks. Id. at 884. She sued Drs. Moore and Lawrence for negligence with respect to their prenatal care of her and for negligence in their selection of Dr. Brooks to cover for them. Id. The plaintiff sued Dr. Brooks for negligence that occurred during his delivery of her child. Id. at 884–85. Drs. Moore and Lawrence refused to answer questions in their depositions regarding their opinions as to the plaintiff's treatment by any other health care providers, including Dr. Brooks and the nurses. Id. at 887. The plaintiff filed a motion to compel, which the trial court denied, limiting the testimony of Drs. Moore and Lawrence to opinions they were expected to offer at trial and opinions related to their own actions. Id. The Court of Appeals affirmed, explaining:
Counsel have not cited, nor have we been able to find, any Tennessee cases specifically dealing with this point. However, an unpublished opinion from this court is instructive. In Chambers v. Wilson, (Tenn. Ct. App. May 23, 1984) (Crawford, J.), the issue was whether an expert specifically hired for litigation could be compelled to testify against his will. In holding that an expert could not be compelled to testify against his will, we stated that “the private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things. In each case it is a matter of bargain, which, as ever, it takes two to make, and to make unconstrained.” Id. at 6 (quoting Pennsylvania Co. v. City of Philadelphia, 262 Pa. 439, 105 A. 630 (1918)).
․ [W]e note that Dr. Moore and Dr. Lawrence were not listed as expert witnesses by either party. They were simply party defendants who are “experts” by nature of their chosen field. Under the facts of the instant case, we do not find that their expertise is subject to compulsion. As a result, we find that the trial court did not err when it refused to compel Dr. Moore and Dr. Lawrence to answer questions outside the realm of their own actions and opinions that they expected to render at trial.
Id. at 887–88.
Here, a majority of the Court of Appeals disagreed with the trial court's assessment that the Lewis decision was determinative of the present case. See Borngne, 2021 WL 2769182 at *13. Notably, the intermediate court stated that “[t]his is not a scenario featuring co-defendant healthcare providers on an equal footing and at arm's length from one another.” Id. Rather, the majority of the Court of Appeals described Nurse Mercer as a provider in a “subordinate role.” Id.
In determining that Dr. Seeber could be compelled to testify, the intermediate court drew from the 2006 Court of Appeals decision Waterman v. Damp, No. M2005-01265-COA-R3-CV, 2006 WL 2872432 (Tenn. Ct. App. 2006), perm. app. denied (Tenn. Feb. 26, 2007), in which the intermediate court purported to “place[ ] Tennessee among those jurisdictions recognizing that medical experts alleged to have injured a patient by their own direct causal negligence may be compelled to answer questions as to whether their conduct conformed to the applicable standard of care.” Borngne, 2021 WL 2769182 at *11. According to the majority opinion, “[c]ompelling Dr. Seeber to testify regarding the conduct of his supervisee ․ would be more akin to compelling him to testify as to his own conduct, in accordance with Waterman v. Damp, as it is Nurse Mercer's conduct as Dr. Seeber's supervisee that gives rise to his liability, if any.” Id. at *13.
By contrast, in her dissent, Judge Davis determined that the trial court correctly refused to compel Dr. Seeber's testimony based on Lewis. Id. at *15 (Davis, J., dissenting). She explained:
The essence of Plaintiff's action is her allegation that Nurse Mercer too slowly recognized concerning signs and indicators suggesting dangerous complications in her delivery and that she called Dr. Seeber too late. Defendants denied this and put on proof to the contrary, including the testimony of Nurse Mercer, Nurse Stephenson, and Dr. Seeber. Dr. Seeber was not at the hospital during the critical time that Nurse Mercer was providing care to Plaintiff, before she called him. Thus, it is apparent that Dr. Seeber was not providing treatment to Plaintiff during this time. It is not apparent that Dr. Seeber has any more knowledge or insight than any other medical expert who might be called upon to review the documents in Plaintiff's chart and provide an opinion as to whether Nurse Mercer complied with the standard of care.
The underpinning of Lewis ․ is the recognition that a practitioner who has not been named as an expert witness cannot be forced to provide expert testimony against another practitioner simply because of their knowledge, skill, experience, training, or education.
As we see it, the parties’ arguments on appeal boil down to this: Plaintiff argues for an extension of the Waterman holding, while the defendants argue for an extension of Lewis. Admittedly, the factual scenario presented here falls somewhere in the middle. Dr. Seeber was not being questioned about the standard of care provided by another entirely independent physician and co-defendant, which under Lewis he could not be compelled to answer. Nor was he being questioned about whether his own actions deviated from the accepted standard of care, which he could be compelled to answer under Waterman. Rather, this case involves the potential testimony of a physician against whom the plaintiff asserts a vicarious liability claim based on the physician's supervision of another healthcare provider.
However, the parties on both sides of this appeal have failed to recognize or adequately address that this Court is not bound by the Lewis v. Brooks holding. Although the Lewis court did not frame it as such, the holding therein effectively articulated an evidentiary privilege.1 In our role as a law development court, we are today deciding for the first time whether there is a sufficient rationale to support such a privilege at all before we get to the question of whether it applies to Dr. Seeber.2
Ultimately, we are persuaded that the Lewis holding is sound and that the privilege articulated therein has a legitimate source within our evidentiary rules. We agree with reasoning employed by our Court of Appeals first in Chambers v. Wilson, then Lewis, and later in Burchfield v. Renfree, No. E2012-01582-COA-R3-CV, 2013 WL 5676268, at *25 (Tenn. Ct. App. Oct. 18, 2013), that an expert, even a party defendant, may not be compelled to give his or her expert opinion because a private litigant is simply not entitled to a healthcare professional's expert views.3
In so deciding, we are particularly persuaded by the Wisconsin Supreme Court opinion in Carney-Hayes v. Northwest Wisconsin Home Care, Inc., 699 N.W.2d 524 (Wis. 2005). In that case, a patient brought a medical malpractice action against a home health agency and its employee/nurse for allegedly providing negligent emergency nursing treatment. Id. at 528. Notably, the Carney-Hayes case was based on a state statute that allowed a circuit court judge to appoint an expert witness if the expert “consents to act.” Id. at 533 (citing Wis. Stat. § 907.06(1)). The Wisconsin court had previously interpreted an implied “broader privilege inherent in the statute,” reasoning “[i]f a court cannot compel an expert witness to testify, it logically follows that a litigant should not be able to so compel an expert.” Id. (quoting Burnett v. Alt, 589 N.W.2d 21, 26 (Wis. 1999)). The court held that “[s]ubject to the compelling need exception ․ a medical witness who is unwilling to testify as an expert cannot be forced to give [his or] her opinion of the standard of care applicable to another person or [his or] her opinion of the treatment provided by another person.” Id. at 541. See also Ransom v. Radiology Specialists of Nw., 425 P.3d 412, 420–21 (Or. 2018) (explaining that under Oregon's Rules of Civil Procedure, an expert physician “who acquires or develops facts or opinions as a participant in the events at issue may be questioned about those events as an ordinary witness. ․ A party cannot ․ ask a participating expert about matters in which the participating expert was not directly involved.”).
The court then applied the privilege to the specific circumstances and witnesses involved in that case. The three witnesses at issue in Carney-Hayes were all employed by the agency. Id. at 528. The nurse directly involved in the patient's emergency care was “required to answer questions about the standard of care governing her conduct because she [was] accused of negligence and [was] central to the case.” Id. at 540. The patient's “case manager” was required to testify about her own conduct in preparing the patient's “plan of care” and, if relevant, any direct care she provided to the patient in the past. Id. The case manager was not required to testify about the “general standard of care for preparing a similar plan of care” or about “whether she believe[d] [the nurse directly involved in the incident's] conduct conformed to the standard of care.” Id. The third witness, the “Director of Extended Care Services,” was required to testify about her own actions and any training she provided to the nurse involved in the incident, but not about the general standard of care for a nursing supervisor or about whether she “believe[d]” the nurse directly involved in the incident's “conduct conformed to the applicable standard of care.” Id. at 541.
Tennessee Rule of Evidence 706 is remarkably similar to the Wisconsin statute that formed the basis for the privilege discussed in Carney-Hayes. Rule 706(a) provides that “in appropriate cases, for reasons stated on the record, the court may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act.” Tenn. R. Evid. 706(a). Subsection (b) provides that such experts are “entitled to reasonable compensation.” Tenn. R. Evid. 706(b). We are persuaded by the Wisconsin court's reasoning under a similar statutory scheme that a consent requirement for court-appointed experts necessarily implies a broader privilege. Indeed, “[i]t makes little if any sense to conclude that a litigant has greater rights than a court with respect to obtaining testimony from experts.” Alt, 589 N.W.2d at 26. Thus, we find that the privilege articulated in Lewis has a legitimate source—it is grounded in Tennessee Rule of Evidence 706.
We are also convinced that recognizing such a privilege is good public policy. The Carney-Hayes court cited three compelling reasons for the “ability to refuse to give an expert opinion.” Id. at 535. First, it acknowledged the unfairness of compelling a person to testify just because he or she “is accomplished in a particular science, [art], or profession.” Id. at 536 (quoting Ex parte Roelker, 20 F. Cas. 1092 (D. Mass. 1854) (alteration in original)). To do so “would subject the same individual to be called upon, in every cause in which any question in his department of knowledge is to be solved.” Id. (quoting Roelker, 20 F. Cas. 1092. Second, the Wisconsin Supreme Court emphasized the understandable reluctance of a health care provider to testify against another health care provider due to the strain unfavorable testimony can place on relationships between colleagues:
There is a heavy strain on the relationships in a hospital, clinic, or other health care facility when one health care provider is required to make a public assessment under oath about another health care provider's professional performance. People understand a requirement that a witness must divulge facts; they are often more sensitive to a colleague's critical opinion. The resulting tension can destroy friendships, working relationships, and economic relationships. In the absence of necessity, there are practical reasons to avoid these familiar human problems by not requiring non-essential opinion testimony from certain witnesses.
Id. Third, the court noted “relationships among local health care providers may affect the objectivity of their testimony” Id. at 536. It noted that “[s]ome witnesses may have a financial stake in the outcome of malpractice litigation ․ [and] shade their testimony to advance their own interests, guard their own reputations, or protect their co-workers.” Id.
Justice Campbell, in her separate concurring in the judgment opinion, expresses concern about finding an implied broader privilege in Rule 706, emphasizing the differences between a court-appointed expert and an expert called by a party. She states: “The fact that a statute or rule requires consent and compensation for a court-appointed expert [ ] does not fairly imply that an expert must consent to only disclosing his previously formed opinions.” Her criticism seems to stem from her view that a court-appointed expert, as compared to a party co-opted expert, must likely devote more out-of-court time and resources to a case in order to give his or her expert opinion. Conversely, as we see it, there certainly may be instances in which one type of expert or the other may have already formed an opinion or done the work. There is no universal set of circumstances that differentiates the effort required of one type of expert over the other. It could be that a court-appointed expert already has opinions on the relevant issue, particularly if the question is one regarding his or her expertise in a field and one which would be of general application. On the other hand, a private party may designate an expert who has not previously developed an opinion with respect to the conduct of another party. Regardless, Rule 706 does not differentiate based on the particular circumstances but instead contains a blanket consent requirement for court-appointed experts, and we agree with the Wisconsin court that if a court must obtain consent from an expert witness, then so must a litigant.
With these considerations in mind, we today hold 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.
Having formally adopted the holding in Lewis, we return to the crux of the parties’ arguments on appeal: whether the supervisory relationship presented here places this case in the realm of Waterman or Lewis. The Court of Appeals majority opinion expressed the following consternations as to the defendants’ position that even a physician in a supervisory role such as Dr. Seeber should be entitled to withhold his expert opinion:
The ramifications of such an extension [of Lewis] would ripple beyond health care liability lawsuits; it could be applied to any field involving expert defendants in a supervisor and supervisee relationship. The results could be absurd and unjust. In this case, adopting Defendants’ position with respect to Lewis means in practical terms that no one at Caring Choice may be compelled to testify as to whether its employee, Nurse Mercer, complied with the acceptable standard of care. We do not believe Lewis stands for this sort of expansive and unjustified expert privilege.
Borngne, 2021 WL 2769182, at *13. Conversely, drawing from Judge Davis's dissent, the defendants make much of the majority's decision to carve out a legally-baseless “exception” to the general rule for supervisor-supervisee relationships when it concluded that compelling Dr. Seeber's testimony as “more akin to compelling him to testify as to his own conduct, in accordance with Waterman.” Id.
It is undisputed and stipulated that Dr. Seeber was Nurse Mercer's supervising physician at the relevant times.4 Still, the parties on appeal continue to disagree on the scope of that supervision based on the applicable statutes, regulations, guidelines, and testimony.5 The defendants emphasize that the supervisory role of a physician over a certified nurse-midwife is not all-encompassing, see Tenn. Code Ann. §§ 63-29-102(10) (2017), 63-29-115(a) (2017); Tenn. Comp. R. & Regs. 1050-05-.02 (2003), and that “subordinate” is not a fair or accurate description of the certified nurse-midwife role in relation to a physician. Indeed, Nurse Mercer was selected by the patient to provide care, and Nurse Mercer, in following the state's regulations, did so independently until Dr. Seeber arrived.
Our review of the arguments of the parties and the amici and the above-cited sources leads us to the conclusion that delving into the particular details of the supervisory relationship is unhelpful. As the defendants and amici emphasize, healthcare as a whole is collaborative in nature and supervisory relationships are ubiquitous in the field. We can certainly envision such a broad, insufficiently-defined exception to the rule as the Court of Appeals’ majority purported to create swallowing the well-reasoned Lewis holding that a party physician cannot be compelled to provide expert testimony concerning the standard of care of another practitioner. Moreover, as Judge Davis noted in her dissent:
[T]he majority opines that such testimony [when sought from a supervisor against a supervisee] is acceptable because it is highly pertinent and relevant. Respectfully, if that were the standard, then Lewis ․ should be abrogated. One doctor's opinion about whether another doctor complied with the standard of care is inarguably highly pertinent and relevant. The issue is not the relationship between the parties or whether the evidence is relevant. The issue is whether an expert can be compelled to testify regarding whether another practitioner complied with the standard of care, an issue that was properly resolved in Lewis ․
Id. at *15 (Davis, J., dissenting). We agree and ultimately remain unconvinced that one practitioner's supervision of another justifies an exception.6 We therefore conclude that our holding today stands regardless of any supervisory relationship between the providers.
As for the concerns expressed by the Court of Appeals majority opinion regarding the “ramifications of such an extension [of Lewis],” Borngne, 2021 WL 2769182, at *13, we can only emphasize that the defendants here merely stipulated that Dr. Seeber was Nurse Mercer's supervisor, not that she was his agent or that Dr. Seeber was vicariously liable for her actions. It goes without saying that, as any other party/witness, defendant healthcare providers like Dr. Seeber may be questioned about the relevant information and observations of which he or she has personal knowledge within the bounds of the evidentiary rules. This may include recounting assessments or opinions made during the normal course of performing his or her duties or even the provider's thought process during a particular incident. However, here, it is apparent from the record that Dr. Seeber was not present at the hospital or actively providing care during the critical time that was the subject of Plaintiff's deposition questions. Rather, Plaintiff sought Dr. Seeber's expert testimony about Nurse Mercer's standard of care and thought process outside of Dr. Seeber's presence and before he became involved in the incident. Plaintiff was free to—and in fact, did—hire an independent expert witness to attempt to assist Plaintiff in establishing the elements of her healthcare liability claims. See Carney-Hayes, 699 N.W.2d at 534–36 (“If there are a number of people in a given field of expertise with similar knowledge, each capable of rendering an expert opinion on a particular question, then any one expert's opinion is not unique or ‘irreplaceable,’ and there is no compelling need for a particular expert's testimony.” (citation omitted)). Dr. Seeber's testimony concerning Nurse Mercer's care could have been helpful and/or relevant to Plaintiff's cause of action, but that does not mean she was entitled to it.7
Therefore, we conclude that the trial court properly declined to compel Dr. Seeber's expert testimony concerning a co-defendant healthcare practitioner's standard of care and/or deviation from that standard. The judgment of the trial court stands. All remaining issues are pretermitted.
For the foregoing reasons, we conclude that Plaintiff's motion to compel Dr. Seeber's deposition testimony related to the nurse-midwife's care was properly denied. The decision of the Court of Appeals is therefore reversed, and the trial court's judgment is affirmed. The costs of this appeal are taxed to the plaintiff, Brittany Borngne, for which execution may issue if necessary.
HOLLY KIRBY, J., concurring.
I am pleased to concur in Justice Campbell's separate concurring opinion, concurring in the result of the majority opinion but not the reasoning. I write separately on particular problems with the majority's reasoning, as well as far-reaching unintended consequences of this ill-defined new common-law privilege.
The privilege fashioned by the majority as “good public policy” is based on purported “compelling” reasons that do not hold water. The first is “the unfairness of compelling a person to testify just because he or she ‘is accomplished in a particular science, [art], or profession,’ ” citing Carney-Hayes v. Northwest Wisconsin Home Care, Inc., 699 N.W.2d 524, 536 (Wis. 2005) (alteration in original) (quoting Ex parte Roelker, 20 F. Cas. 1092, 1092 (D. Mass. 1854)). This could be a consideration in an unusual case where opinion testimony is sought from an expert witness not hired by any party, not appointed by the court, with no knowledge of the facts and no connection to the lawsuit. In that circumstance, of course, trial courts already have full discretion to prohibit discovery under Tennessee Rule of Civil Procedure 26.03, which gives trial courts discretion to limit discovery when necessary “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
That situation bears little resemblance to this case. Here, Dr. Seeber treated the patient right after Nurse Mercer did; the pivotal issue is whether Nurse Mercer waited too long to ask Dr. Seeber to take over the patient's care; Dr. Seeber is a party defendant; and the parties stipulated that Dr. Seeber was Nurse Mercer's supervising physician.1 Inherent in any level of work supervision is assessment of the person's performance.2 Inherent in Dr. Seeber's supervision of Nurse Mercer was assessing whether she should have called him in sooner. What if Nurse Mercer had called Dr. Seeber too late on 5 occasions? On 10 occasions? 50 occasions? If Dr. Seeber believed she had, the hospital and/or Caring Choice would expect him to bring that assessment to their attention. There is nothing “unfair” about permitting discovery from Dr. Seeber on that same assessment.
As further reason for its policy, the majority offers speculation that “relationships among local health care providers may affect the objectivity of their testimony,” that “[s]ome witnesses may have a financial stake in the outcome of malpractice litigation” and some may “shade their testimony to advance their own interests, guard their own reputations, or protect their co-workers.” Carney-Hayes, 699 N.W.2d at 536 (emphasis added). Possibilities such as these are classic fodder for cross-examination by any average attorney. In no way, however, do they support the Court's decision to automatically discredit all such opinion testimony, regardless of the circumstances.
The last “compelling” reason is perhaps the most flimsy. The majority quotes and adopts the Carney-Hayes court's explanation that “People ․ are often ․ sensitive to a colleague's critical opinion. The resulting tension can destroy friendships, working relationships, and economic relationships.” Id. It agrees with the Carney-Hayes court that it is best “to avoid these familiar human problems” altogether by forbidding any testimony that might cause them. Id.
This is hardly “compelling.” Potential discomfort between work colleagues in no way justifies an across-the-board exclusion of relevant testimony.
For comparison, it is useful to look at University of Pennsylvania v. E.E.O.C., in which the United States Supreme Court rejected a request to create a common-law privilege against disclosure of confidential peer review materials used in tenure decisions. 493 U.S. 182, 189 (1990). There, a university faculty member alleged that a tenure decision was discriminatory, and the petitioner university argued that creation of a privilege was necessary to protect the integrity of the peer review process. Id. at 185, 189.
The Court in University of Pennsylvania first observed that Congress had legislated extensively in the area of discrimination in higher education. Id. at 189–90. Congress did not, however, “see fit to create a privilege for peer review documents.” Id. at 189. The Court said it was “especially reluctant to recognize a privilege” where Congress had enacted extensive legislation but did not provide for such a privilege, noting that “[t]he balancing of conflicting interests of this type is particularly a legislative function.” Id.
Similarly, Tennessee's legislature has legislated extensively in the area of healthcare liability. See Tennessee Health Care Liability Act, Tenn. Code Ann. § 29–26–101 et seq. Despite having done so, the legislature did not see fit to create any privilege for opinion testimony among healthcare providers. Like the Court in University of Pennsylvania, this should make us “especially reluctant” to create such a privilege under the common law.
The petitioner university in University of Pennsylvania also alleged that compelling disclosure of opinion peer review material would have a “chilling effect” on candid evaluations and would “result in divisiveness and tension, placing strain on faculty relations,” requiring the creation of a privilege. 493 U.S. at 197. In evaluating this argument, the Court emphasized, “We do not create and apply an evidentiary privilege unless it ‘promotes sufficiently important interests to outweigh the need for probative evidence.’ ” Id. at 189 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). The Court characterized the university's concerns as “speculative.” Univ. of Pennsylvania, 493 U.S. at 200. Still, even assuming them to be true, it said that they “constitute only one side of the balance.” Id. at 193. It pointed out that uncovering discrimination “is a great, if not compelling, governmental interest.” Id. The Court declined to create a privilege to prevent the discovery of relevant evidence. Id. at 189. Thus, the Court in University of Pennsylvania determined that “strain” and “tension” in faculty relations did not outweigh the need for probative evidence of discrimination. Id. at 197.
Here, the majority opinion gives great weight to similarly “speculative” concerns about “tension” among work colleagues. It then gives short shrift to the need for probative evidence on medical malpractice. Tennessee's Healthcare Liability Act protects plaintiffs’ right to engage in fulsome discovery and seek accountability for healthcare providers who provide substandard care to the detriment of patients. The Act shows our legislature views accountability for medical malpractice as “a great, if not compelling, governmental interest.” Id. at 193. The majority accords this interest little weight and effectively considers only “one side of the balance.” Id.
Testimonial exclusionary rules and privileges are acceptable only where “permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel, 445 U.S. at 50 (citation omitted). Thus, courts normally exclude relevant evidence only for reasons that are profound. For example, to protect a fundamental constitutional right. See, e.g., Miranda v. Arizona, 384 U.S. 436, 479 (1966) (evidence from interrogation excluded to protect rights under federal constitution). Or to protect important relationships that cannot exist without strict confidentiality. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (“Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’ ”); McMannus v. State, 39 Tenn. 213, 216 (1858) (“[T]he professional intercourse between attorney and client should be protected by profound secrecy.”). Respectfully, “sensitiv[ity] to a colleague's critical opinion” does not rise to this level.
“The essential aim of our legal system is to seek truth in the pursuit of justice.” Harris v. Bd. of Pro. Resp. of Supreme Ct. of Tenn., 645 S.W.3d 125, 139 (Tenn. 2022) (quoting In re Dixon, 435 P.3d 80, 88 (N.M. 2019)). This is no job for the faint-hearted. Our adversarial system regularly compels testimony in situations that may be excruciating for witnesses or parties. Witnesses may be compelled to give testimony even when they fear for the safety of their family. See, e.g., State v. Lagrone, No. E2014-02402-CCA-R3-CD, 2016 WL 5667514, at *7 (Tenn. Crim. App. Sept. 30, 2016) (trial court advised witness who feared for safety of her children that it was not “a legal ground for refusing to testify” and instructed her to testify). Family members may be compelled to testify against other family members. State v. Mangrum, 403 S.W.3d 152, 154 (Tenn. 2013) (grand jury testimony). Parents may be compelled to testify against their own children, even children who are minors. Hillary B. Farber, Do You Swear to Tell the Truth, the Whole Truth, and Nothing but the Truth Against Your Child?, 43 Loy. L.A. L. Rev. 551, 587 (2010) (“[C]onversations between parents and children in the police-dominated pre-interrogation atmosphere are not protected”). All such witnesses are asked, even compelled, to testify at great personal cost.
What does it mean to have a justice system that compels some witnesses to testify against family members or when they fear for their safety, but shields others from having to opine about a work colleague so as to avoid “tension” in work relationships and “sensitiv[ity] to a colleague's critical opinion”? Such a ruling trivializes the essential truth-seeking mission of our justice system.
The privilege adopted by the majority is like the privilege sought in University of Pennsylvania in another important respect: the lack of any limiting principle. In University of Pennsylvania, the Court observed that, while the university sought a peer-review privilege only in academia, creation of that privilege would “lead to a wave of similar privilege claims by other employers.” 493 U.S. at 194. It went on: “What of writers, publishers, musicians, lawyers? It surely is not unreasonable to believe, for example, that confidential peer reviews play an important part in partnership determinations at some law firms. We perceive no limiting principle in petitioner's argument.” Id.
The same is true here. The majority's creation of a new opinion-testimony privilege all but ensures this case will not be the end of it.3 While this appeal involves a healthcare setting and healthcare standards, the purported policy reasons for the common-law privilege translate to countless settings in which people work in collaborative environments with standards or protocols. Indeed, in the wake of Carney-Hayes, appellate courts in Wisconsin have already extended the same expert privilege our Court adopts today beyond medical malpractice cases. See Savage v. Am. Transmission Co., 828 N.W.2d 244, 250 (Wis. Ct. App. 2013) (affording expert privilege to real estate appraiser in condemnation case). As the Wisconsin appellate court in Savage observed: “Although the expert privilege has been applied in medical malpractice cases, nothing in those cases limits its application as such.” Id.
That's what we're in for. There's no principled reason why the “compelling” policy reason of avoiding “sensitive[ity] to a colleague's critical opinion” would not apply in many different work settings. And the likelihood of “a wave of similar privilege claims” is increased tenfold by the majority's stunning holding that their new privilege applies “regardless of any supervisory relationship,” so that even a direct supervisor, with sole authority to hire and fire, may decline to testify about whether an employee under his direct supervision engaged in conduct that transgressed applicable standards.
Thus, a police chief may decline to testify about whether an officer's conduct violated training and protocols. A construction contractor may decline to testify about whether his employee's work was substandard. A lawyer may decline to testify about whether his associate's work was deficient. And so on. The Court today “ignores th[e] traditional judicial preference for the truth, and ends up creating a privilege that is new, vast, and ill defined.” Jaffee, 518 U.S. at 19–20 (1996) (Scalia, J., dissenting).
Commentators on the Wisconsin Carney-Hayes privilege the majority replicates have flayed the Wisconsin high court's decision to create a new, undefined privilege, citing many of the problems outlined in this opinion as well as Justice Campbell's concurrence:
Wisconsin has created a privilege of sorts for expert witnesses who are unwilling to provide their opinion testimony either at trial or during discovery. The rule is at once controversial and uncertain in its scope. Although the published cases involve physicians, the rule's logic extends to any field of specialized knowledge. Moreover, the rule's evolution in the case law illustrates the problem of creating and defining evidentiary privileges on a case-by-case basis where it is more difficult to identify and weigh competing public policy concerns than is possible through the supreme court's rule-making process.
The expert privilege, 7 Wis. Prac., Wis. Evidence § 702.8 (4th ed.) (describing the “confusion and controversy” generated by the serial Wisconsin cases attempting to explain and define the privilege). See also Wisconsin's “expert opinion privilege,” 3B Wis. Prac., Civil Rules Handbook § 907.02:7 (2022 ed.) (“Wisconsin has created a privilege (of sorts) for expert witnesses who are unwilling to provide their opinion testimony either at trial or during discovery.”).
As cogently set out in Justice Campbell's concurrence, the majority's ruling today is an extreme minority position; the great majority of jurisdictions have wisely declined to adopt any such privilege. The better route would be for this Court to reject the “privilege” in Lewis v. Brooks and take the path set out in Justice Campbell's concurrence, i.e., outline considerations for trial courts under existing rules, such as Tennessee Rule of Civil Procedure 26.03, or ask our Rules Commission to consider whether a rule is appropriate. Both options are now foreclosed by the majority's ruling.
Consequently, I concur in the result in the majority opinion for the reasons outlined in Justice Campbell's separate opinion and in this separate opinion.
I agree with the Court's decision to reverse the judgment of the Court of Appeals. But my agreement with the majority ends there. I would not adopt a new evidentiary privilege for expert witnesses because that privilege is not grounded in the Constitution, Tennessee's statutes, the common law, or this Court's Rules—the only permissible sources of a privilege under Tennessee Rule of Evidence 501. Although the trial court erred by excluding the expert opinions at issue in this case, that error was harmless and did not warrant reversal of the judgment below or a new trial. For that reason, I join in the Court's judgment.
The majority holds as a matter of first impression that “an expert, even a party defendant, may not be compelled to give his or her expert opinion because a private litigant is simply not entitled to [that] expert[’s] views.” I disagree with the majority's adoption of this privilege for two reasons. First, it contravenes Tennessee Rule of Evidence 501, which circumscribes our ability to adopt new evidentiary privileges. Second, it amounts to an exercise of policymaking authority that more appropriately belongs to the legislature, the branch of government best suited to weigh competing interests and determine policy for our State.
Evidentiary privileges are “disfavor[ed]” because they “present obstacles to the search for the truth” and stand “in derogation of the public's ‘right to every man's evidence.’ ” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 525 (Tenn. 2010) (quoting Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 3.2.2, at 129–30, § 4.3.3, at 248 (2002)). Privileges therefore ought not be “lightly created [ ]or expansively construed.” Id. (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). Tennessee Rule of Evidence 501 reflects these principles. It reads: “Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to: (1) [r]efuse to be a witness; (2) [r]efuse to disclose any matter; (3) [r]efuse to produce any object or writing; or (4) [p]revent another from being a witness or disclosing any matter or producing any object or writing.” Tenn. R. Evid. 501. It follows that an expert may not refuse to testify or otherwise disclose relevant information unless the Constitution, a statute, the common law, or one of this Court's Rules says so. See id.
The majority attempts to ground its new privilege in our Rules by claiming that Tennessee Rule of Evidence 706(b), which allows a court to appoint an expert witness if the expert consents and is reasonably compensated, “necessarily implies a broader privilege” for experts. I begin by explaining why the majority is wrong on that score. I then consider the other possible sources of a broad privilege for experts and conclude that none justifies the unqualified privilege the majority creates.
The majority asserts that Tennessee Rule of Evidence 706(a) provides a “legitimate source” for its new privilege, but the majority reads far too much into that provision.
Rule 706 allows a court to “appoint expert witnesses of its own selection” provided the “witness consents to act” and is reasonably compensated. Tenn. R. Evid. 706(a)–(b). In Carney-Hayes v. Northwest Wisconsin Home Care, Inc., the Wisconsin Supreme Court held that a privilege for expert witnesses was “inherent” in a Wisconsin statute that is nearly identical to Rule 706. 699 N.W.2d 524, 533 (Wis. 2005) (first citing Imposition of Sanctions in Alt v. Cline, 589 N.W.2d 21, 26 (Wis. 1999); then citing Wis. Stat. § 907.06). The court reasoned that if “a court cannot compel an expert witness to testify, ․ a litigant should not be able to so compel an expert” either. Id. The majority is “persuaded by the Wisconsin court's reasoning ․ that a consent requirement for court-appointed experts necessarily implies a broader privilege.”
But this reasoning suffers from an important flaw: it overlooks a significant distinction between a court-appointed expert and an unretained expert that a party calls as a witness. As Judge Friendly explained in Kaufman v. Edelstein, a court-appointed expert “is expected to delve deeply into the problem and arrive at an informed and unbiased opinion,” while an expert called by a party simply “state[s] what facts he may know and what opinion he may have formed without being asked to make any further investigation.” 539 F.2d 811, 818 (2d Cir. 1976). The fact that a statute or rule requires consent and compensation for a court-appointed expert therefore does not fairly imply that an expert must consent to only disclosing his previously formed opinions. See id.; see also Marjorie Press Lindblom, Compelling Experts to Testify: A Proposal, 44 U. Chi. L. Rev. 851, 853 n.8 (1977) (noting that “[c]onsent apparently is required” for court-appointed experts because they “may have to do out-of-court work in addition to testifying”). The majority posits that “[t]here is no universal set of circumstances that differentiates the effort required of one type of expert over the other” and speculates that “a court-appointed expert” may “already ha[ve] opinions on the relevant issue.” But in considering whether the existence of Rule 706 necessarily implies a broader expert privilege, we ought to consider the usual application of that Rule, not remote possibilities.
The only other Rule that addresses a party's ability to obtain expert testimony is Tennessee Rule of Civil Procedure 26.02(4)(B). That Rule prohibits a party from “discover[ing] the identity of, facts known by, or opinions held by an expert who has been consulted by another party in anticipation of litigation or preparation for trial and who is not to be called as a witness at trial” unless the party shows that it “cannot obtain facts or opinions on the same subject by other means.” Tenn. R. Civ. P. 26.02(4)(B).1 If a party obtains discovery from a consulting expert, the party must “pay the expert a reasonable fee.” Id. 26.02(4)(C).
The majority does not rely on this Rule in adopting its broader privilege for defendant treating physicians, and for good reason. Rule 26.02(4)(B) is narrow; it addresses only the discovery of a consulting expert's opinions. It provides no protection for the expert opinions of unretained experts, whether strangers to the litigation or those like Dr. Seeber who participated in the events giving rise to the litigation.
If anything, the fact that the Rules expressly address the situation of consulting experts and court-appointed experts and say nothing about a party's ability to obtain or compel testimony from other experts cuts against recognition of a broader privilege, not for it. See Kaufman, 539 F.2d at 818 (reasoning that, “[i]f any inference is to be drawn” from statutes or rules concerning court-appointed experts, it is “against the claim of privilege by an expert, not for it”). The contention that “experts enjoy some kind of privilege” is hardly new. See id. Had the Rules intended to confer a broad expert privilege, they almost certainly would have done so expressly.
Our Rules of course give trial courts wide discretion to limit or prohibit discovery when necessary “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” Tenn. R. Civ. P. 26.03, and to exclude evidence that presents a danger of prejudice or confusion, Tenn. R. Evid. 403. There may be situations in which requiring disclosure of a treating physician's expert opinions would be sufficiently burdensome to warrant an exercise of that discretion. Cf. Kaufman, 539 F.3d at 822 (identifying factors that would be appropriate to consider in exercising discretion to excuse an expert from “testifying in the particular case,” including “the degree to which the witness is able to show that he has been oppressed by having continually to testify”). But that discretion must be exercised on a case-by-case basis. The majority's blanket rule all but eliminates that discretion.2 This Court's Rules therefore provide no basis for the majority's holding.
The other permissible sources of a privilege under Rule 501—the Constitution, statutory law, and the common law—do not grant expert witnesses an unqualified privilege either. Start with the Constitution. Although the majority does not expressly discuss a potential constitutional basis for its privilege, it “agree[s] with [the] reasoning employed by our Court of Appeals” in Chambers v. Wilson (Tenn. Ct. App. May 23, 1984), Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001), and Burchfield v. Renfree, No. E2012-01582-COA-R3-CV, 2013 WL 5676268 (Tenn. Ct. App. Oct. 18, 2013). Those cases relied on the notion that a private litigant may not compel an expert to “give up the product of his brain.” Lewis, 66 S.W.3d at 887 (quoting Chambers, which in turn quotes Pa. Co. v. City of Phila., 105 A. 630, 630 (Pa. 1918)); see also Burchfield, 2013 WL 5676268, at *25.
The Pennsylvania case that Chambers quoted—Pennsylvania Company, 105 A. 630—articulated this property-based rationale for the expert privilege. There, the defendant in an eminent-domain case called as expert witnesses “two real estate men” who “had been previously employed by [the] plaintiff” in the same case. Id. at 630. Without citing any authority, the Pennsylvania Supreme Court held that the witnesses could not be compelled to offer their expert opinions regarding the amount of damages sustained by the defendant. Id. The court reasoned, again without citing any authority, that although the government “may call upon her citizens to testify as experts in matters affecting the common weal ․ because of the duty which the citizen owes to his government,” the “private litigant has no more right to compel a citizen to give up the product of his brain than he has to compel the giving up of material things.” Id. The court explained that, for private litigants, securing expert testimony “is a matter of bargain” that “takes two to make.” Id.
The Pennsylvania Supreme Court did not expressly ground its rationale in any body of law, nor does the majority in approving of that rationale. The most obvious candidates would seem to be the Takings Clause of the Fifth Amendment to the United States Constitution and Article I, section 21 of the Tennessee Constitution, which prohibit the government from taking private property without providing just compensation. See U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”); Tenn. Const. art. I, § 21 (“[N]o man's particular services shall be demanded, or property taken, or applied to public use ․ without just compensation being made therefor.”).
At least one court has held that compelling the disclosure of expert opinions in a judicial proceeding without compensation is an unconstitutional taking. See Buchman v. State, 59 Ind. 1, 11, 13–14 (1877) (holding that compelled disclosure of a physician's expert opinions would violate the Takings Clause of the Indiana Constitution, which provides that “[n]o man's particular services shall be demanded without just compensation” (quoting Ind. Const. art. I, § 21)). The Federal Rules of Civil Procedure, which provide expert witnesses with some protection from compelled disclosure of their opinions, also reflect this rationale. Rule 45(d)(3)(B)(ii), for example, provides that a federal court may quash or modify a subpoena if it requires “disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.” Fed. R. Civ. P. 45(d)(3)(B)(ii). The Advisory Committee Note to that Rule explains that the “compulsion to give evidence may threaten the intellectual property of experts denied the opportunity to bargain for the value of their services” and “[a]rguably ․ can be regarded as a ‘taking’ of intellectual property.” Fed. R. Civ. P. 45(d)(3)(B)(ii) advisory committee's note to 1991 amendment. Rule 45(d)(3)(B)(ii) was intended to “provide[ ] appropriate protection” for that intellectual property. Id.
Even assuming the compelled disclosure of expert opinions would constitute a “taking” within the meaning of the federal or state constitutions, that does not mean the majority's holding is constitutionally required. The Takings Clause prohibits the government from taking private property for public use without just compensation; it does not prohibit the taking of that property altogether. See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536–37 (2005). So while the Takings Clause arguably could require certain expert witnesses to be reasonably compensated when their testimony is needed in a civil proceeding, it does not require this Court to grant experts an unqualified privilege to withhold their opinions.
The majority considers only one potential statutory source for a privilege: Tennessee's Quality Improvement Committee privilege. See Tenn. Code Ann. §§ 63-1-150(d)(1) (Supp. 2012), 68-11-272(c)(1)–(2) (2011). But it holds that this statutory privilege is inapplicable.3 I am aware of no other statute that arguably prohibits a court from compelling the sort of expert testimony at issue in this case, and the parties point to none. The majority's holding is thus not required by Tennessee's statutory law either.
The only other possible source of authority for the majority's holding is the common law. Our Constitution provided at the time of its adoption that “[a]ll laws and ordinances now in force and use in this State ․ shall continue in force and use until they shall expire, be altered or repealed by the Legislature.” Tenn. Const. art. XI, § 1. We have explained that the term “laws” in this provision includes “the common law of England, as it stood at and before the separation of the colonies.” Quarles v. Sutherland, 389 S.W.2d 249, 250 (Tenn. 1965). That is because Tennessee adopted the laws of North Carolina when our State was formed, and North Carolina had previously adopted the common law of England. See id.
No expert-witness privilege existed at common law, either in England before the separation of the colonies or in North Carolina at the time Tennessee was created. See 8 John Henry Wigmore, Evidence in Trials at Common Law § 2203, 140 n.1 (John T. McNaughton rev., 1961); see also 23A Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5431 (1st ed.), Westlaw (database updated Apr. 2022) (“At common law there was no privilege for expert witnesses, although there are arguments that might support at least a qualified privilege.”); cf. Kaufman, 539 F.2d at 820 (“[W]e perceive no sufficient basis in principle or precedent for holding that the common law recognizes any general privilege to withhold ․ expert knowledge.”).
The earliest English case on the subject—Webb v. Page (1843) 174 Eng. Rep. 695; 1 Car. & K. 23—came decades after colonial separation and thus is of limited relevance. It also provides little support for the majority's holding. In Webb, the plaintiff in an action for “negligence in carrying goods” called a witness “to speak to the nature of the damage sustained by the goods ․ and the expense that would be necessary to restore or replace the injured articles.” Id. at 695, 1 Car. & K. at 23. The witness “applied for compensation for his loss of time” and eventually was paid by the plaintiff's attorney before being examined. Id. In holding that the witness was entitled to compensation, the Court reasoned that, unlike a fact witness, who “is bound, as a matter of public duty, to speak to a fact which happens to have fallen within his knowledge,” an expert “is under no such obligation” because “[t]here is no such necessity for his evidence.” Id. at 695, 1 Car. & K. at 23–24. While this case provides some support for a rule entitling experts to reasonable compensation, it does not establish a general privilege for expert testimony. Only a handful of American cases decided during the same time period established a similar rule providing that expert witnesses are entitled to reasonable compensation. See, e.g., United States v. Cooper, 21 D.C. (Tuck. & Cl.) 491, 493 (D.C. 1893); In re Roelker, 20 F. Cas. 1092, 1092–93 (D. Mass. 1854) (No. 11,995); Buchman, 59 Ind. at 11–14.
In the years that followed, several state high courts held that experts may not be compelled to disclose their previously formed opinions, at least without a showing of necessity and reasonable compensation. See, e.g., Box Pond Ass'n v. Energy Facilities Siting Bd., 758 N.E.2d 604, 612 (Mass. 2001) (“The general rule is that an expert witness ․ who has not been retained by the party seeking his testimony[ ] cannot be required to give an opinion already formed unless ‘necessary for the purposes of justice.’ ” (quoting Ramacorti v. Boston Redevelopment Auth., 170 N.E.2d 323, 235 (Mass. 1960))); Ondis v. Pion, 497 A.2d 13, 18 (R.I. 1985) (“We believe that compelling expert testimony would in essence involve a form of involuntary servitude ․”); Klabunde v. Stanley, 181 N.W.2d 918, 921 (Mich. 1970) (concluding that an expert “has a property right in his opinion and cannot be made to divulge it in answer to a subpoena”); Agnew v. Parks, 343 P.2d 118, 123 (Cal. 1959) (holding that physician lacking a relationship with patient may not be compelled to give expert opinion concerning standard of care or treatment provided by another); People ex rel. Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d 165, 166 (N.Y. 1947) (holding that “the better rule is not to compel a witness to give his opinion as an expert against his will”); Stanton v. Rushmore, 169 A. 721, 722 (N.J. 1934) (“[A]n expert witness cannot as such be compelled to give testimony in response to subpoena, and, if such expert testimony is called for and given, it is the right of such person to contract for and receive proper and adequate compensation therefor.”).
But the majority of state high courts declined to adopt a privilege for expert witnesses and instead allowed trial courts to compel witnesses to disclose their previously formed opinions. See Fenlon v. Thayer, 506 A.2d 319, 322 (N.H. 1986) (holding “[a]s a general rule” that “a party may assert the right of testamentary compulsion of experts” but noting that the right is “subject to the traditional limitations excluding prejudicial, misleading, or cumulative evidence”); State, Dep't of Transp. & Dev. v. Stumpf, 458 So. 2d 448, 454 (La. 1984) (allowing a party to depose experts retained but not called by the other party “on their opinions” and to “subpoena the experts to appear as their own witnesses at trial”); Cornfeldt v. Tongen, 262 N.W.2d 684, 696 (Minn. 1977) (“[N]o cogent reason appears sustaining the restriction of the testimony of a defendant who has sufficient expertise to render an opinion against a codefendant.”); Urban Renewal & Cmty. Dev. Agency of Louisville v. Fledderman, 419 S.W.2d 741, 743 (Ky. 1967) (allowing a party to subpoena as an expert witness “the other party's paid expert”); Cooper v. Norfolk Redevelopment & Hous. Auth., 90 S.E.2d 788, 791 (Va. 1956) (allowing plaintiff in condemnation proceeding to compel expert testimony from witness who offered opinion about value of property to condemning authority); Swope v. State, 67 P.2d 416, 419 (Kan. 1937) (“[W]e are not disposed to hold that a witness claiming to be an expert called upon to give expert testimony may refuse to testify unless his demands have been met.”); Brown Cnty. v. Hall, 249 N.W. 253, 253 (S.D. 1933) (holding that an expert witness “may be required to testify to such matters as are within his knowledge, though he may have gained a special knowledge thereof by reason of professional learning, experience, or skill, and is not entitled to demand extra compensation for testifying thereto”); In re Hayes, 156 S.E. 791, 793 (N.C. 1931) (concluding that the “better opinion ․ is that an expert summoned to testify who refuses to answer questions without compensation other than his witness fees is in contempt”); State ex rel. Berge v. Superior Ct., 281 P. 335, 335 (Wash. 1929) (“[A]n expert witness is not entitled to demand additional compensation other than the ordinary witness fees, unless special services other than attendance to give testimony on the trial are required in order to enable the witness to testify.”); State v. Bell, 111 S.W. 24, 28 (Mo. 1908) (holding that physician was not entitled to compensation for disclosing his expert opinion and endorsing view that an expert has a duty to “give the court the benefit of the knowledge he has in store at the time he is called upon” (quoting Burnett v. Freeman, 103 S.W. 121, 123 (Mo. Ct. App. 1907)));. Dixon v. People, 48 N.E. 108, 110–13 (Ill. 1897) (holding that physician could be held in contempt for refusing to disclose expert opinions without additional compensation); Flinn v. Prairie Cnty., 29 S.W. 459, 460 (Ark. 1895) (holding that a witness may be compelled to disclose “such information as he already possesses ․ whether such information is peculiar to his trade or profession, or not”); Ex parte Dement, 53 Ala. 389, 395–97 (1875) (holding that a physician could be held in contempt for refusing to testify as an expert without payment); see also Logan v. Chatham Cnty., 148 S.E.2d 471, 473 (Ga. Ct. App. 1966) (“An expert testifying as a witness, has no greater privilege than any other witness.” (quoting Dixon v. State, 76 S.E. 794, 794 (Ga. Ct. App. 1912))); Summers v. State, 5 Tex. App. 365, 378 (1879) (holding that “[a] medical expert could not be compelled to make a post-mortem examination unless paid for it; but, an examination having already been made by him, he could be compelled to disclose the result of that examination”); Bd. of Comm'rs of Larimer Cnty. v. Lee, 32 P. 841, 842 (Colo. App. 1893) (recognizing the “general rule” that “the professional witness” may be compelled “to testify as to what he may know, whether it be observed facts, or accumulated knowledge acquired by study and experience”).4
Only two courts have extended a privilege in the specific circumstances presented here—where the expert is not a stranger to the case but instead a participant in the events underlying the litigation. See Carney-Hayes, 699 N.W.2d at 541–42; Ransom v. Radiology Specialists of Nw., 425 P.3d 412, 421 (Or. 2018) (“A party cannot turn a participating expert into a nonparticipating expert and ask a participating expert about matters in which the participating expert was not directly involved.”). By joining these courts, the majority makes Tennessee an outlier. And it does so without even acknowledging contrary precedent.
Because there was no privilege for experts at common law, the majority cannot rely on the common law to deviate from Rule 501’s limits on privileges. This Court's decision in Quarles v. Sutherland, 389 S.W.2d 249, is instructive. There, we declined to adopt a doctor-patient privilege because it was “axiomatic that at common law neither the patient nor the physician had a privilege to refuse to disclose in court a communication of one to the other” or a “privilege that the communication not be disclosed to a third person.” Id. at 251. Because the legislature had not enacted any statute “which would alter the common law rule,” we simply applied that rule. Id. Although we noted that “the arguments for and against making doctor-patient communications privileged are many,” we did not wade into that debate given that the legislature “ha[d] not seen fit to act on the matter.” Id.
* * *
Neither this Court's Rules, the Constitution, the Tennessee Code, nor the common law provides that an unretained expert witness—whether a stranger to the litigation or a party defendant like Dr. Seeber—may refuse to disclose relevant expert opinions at trial or in discovery. Tennessee Rule of Evidence 501’s general rule therefore controls and forecloses the adoption of a new privilege.
Although the majority relies in part on Rule 702 for its holding, it also claims that the new privilege it adopts is “good public policy.” The majority apparently thinks that our status as a common-law court gives us freewheeling policymaking authority. I respectfully disagree.
I do not dispute the proposition that a common-law court has authority to apply existing common-law rules to new situations and to consider whether changed conditions call for the abrogation or extension of existing rules. While “the fundamental principles of the common law are unchangeable,” it is of course sometimes necessary to apply “old rules to new cases.” Powell v. Hartford Accident & Indem. Co., 398 S.W.2d 727, 730 (Tenn. 1966); see also id. at 731 (explaining that “[f]lexibility has been necessary since the courts applied the same rule of negligence to one who drove an oxcart, to one who drove a buggy or a wagon, to another who drove an automobile, and to one who pilots an airplane”). Common-law rules are thus “gradually, almost imperceptibly, enlarged or contracted by the courts, by construction, in the course of their application to new states of fact.” Northcut v. Church, 188 S.W. 220, 223 (Tenn. 1916). “[N]ew principles may be developed, and old ones extended, by analogy, so as to embrace newly-created relations and changes produced by time and circumstances.” Dodson by Dodson v. Shrader, 824 S.W.2d 545, 549 (Tenn. 1992) (quoting Jacob v. State, 22 Tenn. (3 Hum.) 372, 388 (1842)). But any new rules must be “so fashioned that the new truly grows out of the old.” Cardwell v. Bechtol, 724 S.W.2d 739, 744 (Tenn. 1987) (quoting Powell, 398 S.W.2d at 732).
We have made clear, however, that the flexibility inherent in the common law is not a license to engage in unbridled policymaking. See, e.g., Northcut, 188 S.W. at 223 (cautioning that “it is not allowable to change” common-law rules “per saltum” because “[t]his can be done only by legislation”); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003) (explaining that the Court “has a limited role in declaring public policy”); Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987) (warning that Tennessee law forbids the Court from establishing “what its members believe to be the best policy for the State”). This is particularly true in areas that are now governed primarily by statute rather than common-law rules. See, e.g., Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012) (“In areas of the law where the General Assembly has enacted statutes that clearly and definitively set boundaries on rights, obligations, or procedures, we have recognized that ‘it should be left to the legislature to change those boundaries, if any are to be changed, and to define new ones.’ ” (quoting Taylor, 104 S.W.3d at 511)); Taylor, 104 S.W.3d at 511 (declining to create a new common-law cause of action for loss of parental consortium because the issue was one of “public policy and interest balancing in which the legislature ha[d] involved itself before”).
To the extent the Court has relied on policy considerations when considering whether to alter the common law, it has typically looked to Tennessee's policy as expressed by the legislature, not its own views of the “best” policy. For example, the Court has abolished common-law doctrines that had become inconsistent with the State's public policy as expressed in later-enacted positive law. See, e.g., State v. Al Mutory, 581 S.W.3d 741, 748–50 (Tenn. 2019) (abolishing common-law doctrine of abatement ab initio because it was inconsistent with constitutional and statutory provisions granting greater protections to victim rights). We also have “inquire[d] whether public policy prevents the continuing development of the common law” by looking to “the public policy of this state, reflected in the Constitution of Tennessee and the statutes enacted by the General Assembly.” Hodge, 382 S.W.3d at 341. But the Court consistently has declined to create new common-law rules when doing so would amount to “positively declaring the public policy of the State” or would require the Court to balance competing policy interests. Smith, 728 S.W.2d at 747.
In my view, the Court overstepped the appropriate boundaries of a common-law court by adopting a new privilege based on its own assessment and weighing of the relevant policy interests. The majority's holding cannot be said to “grow out of” or constitute a reasonable extension of any traditional common-law privileges such as the attorney-client privilege or spousal privilege. See, e.g., 1 Kenneth S. Broun et al., McCormick on Evidence § 75 (8th ed. 2020), Westlaw (database updated July 2022) (noting that “both the husband-wife and attorney-client privileges” are “traceable to the received common law”). Those privileges are designed to protect certain relationships that society deems valuable. See, e.g., State v. Jackson, 444 S.W.3d 554, 599 (Tenn. 2014) (explaining that the common-law and statutory attorney-client privilege, “the oldest privilege in this State,” “encourage[s] full and frank communication between attorneys and their clients” and is “integral to a [criminal] defendant's constitutional rights against compulsory self-incrimination and to the effective assistance of counsel” (internal quotation marks omitted)). The policy reasons for protecting an expert's opinions are distinct. If this Court did not consider the doctor-patient privilege sufficiently analogous to these traditional privileges to warrant extending the common law, see Quarles, 389 S.W.2d at 251, then an extension here would not be reasonable either.
Indeed, it is hard to see how any new privilege could truly “grow out of” an existing one. Privileges are accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Lee Med., 312 S.W.3d at 525 (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)). Even a slight change to the nature of the underlying interests a privilege is designed to protect could easily change the balance.
Perhaps that is why “the source of newly created privileges shifted decisively from the courts to the legislatures” during the nineteenth century and “the vast majority of new privileges created since that time have been of legislative origin.” McCormick on Evidence, supra, § 75. The development of privileges in Tennessee has followed that pattern. Nearly all privileges today are statutory, including privileges that originated in the common law. See, e.g., Tenn. R. Evid. 501, Advisory Commission Comments (listing nearly twenty statutory privileges, including the attorney-client and spousal privileges, that existed at common law); Willeford v. Klepper, 597 S.W.3d 454, 468 (Tenn. 2020) (“The creation of a privilege is substantive law which, at least in large part, is within the province of the legislature.”).
That the creation of evidentiary privileges is now predominately a legislative function provides an especially strong reason for this Court to stay its hand. The legislature is far better suited than the Court to weigh competing policy interests and determine which course is best for Tennessee. See, e.g., Hodge, 382 S.W.3d at 338 (explaining that our “deference to the General Assembly's prerogative to establish Tennessee's public policy rests on fundamental differences between the judicial and legislative process”); Smith, 728 S.W.2d at 747 (noting that the Court “simply does not function as a forum for” determining “which of several competing public policies represents the most compelling and controlling public policy for this State”). “Unlike legislative proceedings, judicial proceedings do not provide an open forum for the discussion and resolution of broad public policy issues.” Hodge, 382 S.W.3d at 338.
Even if the majority's holding could be viewed as a rule of procedure rather than a substantive evidentiary privilege, there still was a better way to go about adopting that rule. The legislature established an “advisory commission” to “advise [the Court] from time to time respecting the rules of practice and procedure.” Tenn. Code Ann. § 16-3-601(a) (1980). Although this Court “has the inherent power to promulgate rules governing the practice and procedure of the courts of this state,” State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001), we previously have expressed a preference for adopting rule changes through the “normal rule-making process” rather than “by judicial fiat in the limited context of a single case,” Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 436 (Tenn. 2011). The normal rulemaking process is superior because it “provides for a broader discussion and examination of the policies at issue and allows for input from the advisory commission ․ and members of the bench, bar, and general public.” Id. Rules adopted through this process also are subject to approval by the General Assembly. See Tenn. Code Ann. § 16-3-404 (1980). The majority's choice to decide this issue by “judicial fiat” rather than the ordinary rulemaking process deprives the Court of meaningful input from all relevant stakeholders.
In a footnote, the majority rejects the invitation of amicus curiae, the Tennessee Trial Lawyers Association, to adopt a rule similar to Federal Rule of Civil Procedure 45 that “would allow the trial courts to consider relevant factors in determining whether it is appropriate to excuse an expert from being compelled to testify” and encourages the Association to petition the Advisory Commission for that change instead.5 That encouragement might be well-placed if the majority had not already 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.” Having so held, however, the Court at least arguably has foreclosed the possibility that a different, more flexible rule, can be adopted through the ordinary rulemaking process. We have described evidentiary privileges as “substantive law,” Willeford, 597 S.W.3d at 468, and this Court's Rules may not “abridge, enlarge[,] or modify any substantive right,” Tenn. Code Ann. § 16-3-403 (1980).
The majority takes pains to downplay the significance of its holding. But the reality is this: in its “role as a law development court” and in reliance on “public policy,” the majority creates a seemingly unqualified substantive evidentiary privilege that has no basis in the Constitution, Tennessee's statutory law, the common law, or this Court's Rules. I cannot join that holding because it exercises authority that properly belongs to the legislature and circumvents procedures that are designed to ensure deliberate, informed decisionmaking.
Although I disagree with the majority's holding that Dr. Seeber could not be compelled to disclose his expert opinions, I concur in the judgment reversing the Court of Appeals because any error related to Dr. Seeber's testimony was harmless and therefore did not require reversal or a new trial.
The Court of Appeals reversed the trial court's judgment and remanded for a new trial without considering whether the trial court's evidentiary error was harmless. But evidentiary errors do not “necessarily require reversal.” Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn. 1987). To the contrary, Tennessee Rule of Appellate Procedure 36(b) provides that “[a] final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). When a case is tried before a jury, we must “carefully examine the entire record to determine whether exclusion of the evidence, more probably than not, influenced the jury's verdict.” White v. Beeks, 469 S.W.3d 517, 529 (Tenn. 2015) (cleaned up). In evaluating the “weight a juror probably would have placed on the” wrongly excluded evidence, we must consider “the substance of the evidence, its relation to other evidence, and the peculiar facts and circumstances of the case.” In re Estate of Smallman, 398 S.W.3d 134, 152–53 (Tenn. 2013) (quoting Keith v. Murfreesboro Livestock Mkt., Inc., 780 S.W.2d 751, 758 (Tenn. Ct. App. 1989)). We should also “take into account whether the facts present a close case.” Id. at 153.
Here, even if we assume that Dr. Seeber's opinion testimony would have been admissible and that he would have testified that Nurse Mercer's conduct violated the standard of care, the exclusion of that testimony was harmless because plaintiff cannot establish that it more probably than not affected the jury's verdict.
One of defendant's expert witnesses, Dr. Craig Towers—a maternal fetal medicine specialist—testified that Nurse Mercer complied with the standard of care when reading and interpreting plaintiff's fetal heart rate tracing and “in [her] management of [plaintiff's] labor and delivery, specifically during the period when [plaintiff] began to push until the time Dr. Seeber was called.”
Plaintiff's expert witness, Dr. Thomas McCaffrey—an obstetrician and gynecologist—disagreed. In response to questions similar to those posed to Dr. Seeber during his deposition, Dr. McCaffrey testified at trial that Nurse Mercer failed to meet the standard of care. For example, Dr. Seeber was asked “when [he] would have expected [the minimal variability and late decelerations in the fetal heart tones] to become concerning,” and did not answer. At trial, after discussing the circumstances of the labor, Dr. McCaffrey was asked “[d]o you have an opinion, to a reasonable degree of medical certainty, when pushing should have stopped, a discussion had with [plaintiff] and a change of course should have occurred?” Dr. McCaffrey answered:
A: Well, I would say about 10 o'clock, I mean, when you have this fairly quick onset of the late decelerations and the process was not improving, I think it should have been stopped, Dr. Seeber should have been notified, and the patient given the choice of continuing to push or cesarean section or operative delivery, if it was feasible at that time.
Again, Dr. McCaffrey testified about when he thought action was required during plaintiff's labor, saying:
Q: What time is it that you believe that the discussion should have been had with [plaintiff] and an evaluation done?
A: ․ At about 10:00 p.m.
Q: Okay. How much longer did the pushing go on after 10:00 p.m.?
A: One hour and 14 minutes.
In his deposition, Dr. Seeber was also asked what his “expectation of Mercer [would] be if [he] had a patient ․ with minimal variability [who was] late for an hour.” Dr. Seeber refused to opine, other than to say that it would depend on whether Mercer was aware of these circumstances. At trial, Dr. McCaffrey testified that the standard of care would have required a conversation with plaintiff about other options in this case:
Q: Doctor, according to the standard of care ․ at what point would you have to say to [plaintiff] what's going on?
A: Well if you couldn't fix the problem in a very short period of time ․ or problem's progressing, getting more deterioration, I definitely would have told her about it. ․ [I]f it's a persistent problem and you're having a persistent deterioration, I think you would need to let [her] know.
Q: And that would be in accordance with the standard of care?
Given Dr. McCaffrey's testimony, plaintiff has not established that excluding Dr. Seeber's testimony “more probably than not affected the judgment” with respect to breach. White, 469 S.W.3d at 529. Dr. McCaffrey testified that Nurse Mercer failed to meet the standard of care by allowing plaintiff to keep pushing after the fetal heart tones became concerning and by not adequately informing plaintiff of changes in status. Despite this testimony, the jury found that Nurse Mercer met the standard of care. Any similar testimony by Dr. Seeber would have been cumulative and unlikely to change the jury's verdict.
Plaintiff argues Dr. Seeber's potential testimony would not have been cumulative of Dr. McCaffrey's testimony because (1) the jury would not view an admission from a party defendant as equivalent to a statement by a paid expert and (2) defendant's counsel argued to the jury that Dr. McCaffrey's opinions were flawed because he did not have enough experience working with midwives. I disagree.
While it is conceivable that the jury would place more weight on Dr. Seeber's testimony because it would be against his interest to testify that Nurse Mercer violated the standard of care, Dr. Seeber's opinions would have been subject to the same criticisms as Dr. McCaffrey's. Dr. Seeber testified during his deposition that he had no written guidelines for his midwives, had a book about the practice of midwives but had never read it, and struggled to answer questions about limits on the practice of midwives. Moreover, as Judge Davis noted in her opinion, “[i]t is not apparent that Dr. Seeber has any more knowledge or insight than any other medical expert who might be called upon to review the documents in Plaintiff's chart and provide an opinion as to whether Nurse Mercer complied with the standard of care.” Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. E2020-00158-COA-R3-CV, 2021 WL 2769182, at *15 (Tenn. Ct. App. July 1, 2021) (Davis, J., concurring in part and dissenting in part).
* * *
In sum, I disagree with the majority's adoption of a new privilege. But because the error in excluding Dr. Seeber's expert opinion testimony was harmless, I concur in the judgment reversing the Court of Appeals’ decision.
SHARON G. LEE, J., concurring.
I concur fully in the majority opinion. I write separately to highlight the flawed and impractical analysis in the concurring in judgment opinion, authored by Justice Campbell and joined by Justice Kirby.
Plaintiff's health care liability claim against Dr. Michael Seeber is based on vicarious liability for the acts and omissions of Nurse Jennifer Mercer. Dr. Seeber gave over 150 pages of deposition testimony as a fact witness, describing his background, experience, and medical practice; the role of a nurse midwife; and the patient's medical records. When Plaintiff's counsel asked Dr. Seeber about matters related to the standard of care applicable to Nurse Mercer and her deviation from that standard, his lawyer did not allow him to answer. The trial court did not compel Dr. Seeber's testimony. At issue here is whether Dr. Seeber had to give expert testimony about Nurse Mercer's standard of care and any deviation from it.
The Court correctly holds that a health care provider cannot be compelled to provide expert testimony about another defendant provider's standard of care or any deviation from that standard. The Court relies on Tennessee Rule of Evidence 706 and Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001) and its progeny. The Court explained how its ruling was good policy, but that was not the basis for its ruling.
The concurring in judgment opinion confuses fact testimony with expert testimony and would allow a party to subpoena any health care provider to appear and give expert testimony in a health care liability case about another provider's standard of care and deviation from that standard. This analysis would seemingly permit the virtual indentured servitude of unretained experts who are complete strangers to a civil lawsuit between private parties.
Setting these practical issues aside, the problem with forced expert testimony is that it conflicts with Tennessee Rule of Evidence 706. Under Rule 706(a), a trial court may not compel an expert witness to testify but may only appoint the witness if he “consents to act.”1 This language implies a broader privilege for expert witnesses to “refuse to be a witness” than is allowed for fact witnesses under Tennessee Rule of Evidence 501.2 If the trial court had required Dr. Seeber to give expert testimony, this would have been the same as appointing him an expert witness without his consent. If a court cannot force a witness to provide expert testimony, then it makes sense that a party also cannot force a person to become a witness and give expert testimony. See Carney-Hayes v. Nw. Wis. Home Care, Inc., 699 N.W.2d 524, 533 (Wis. 2005) (quoting Burnett v. Alt, 589 N.W.2d 21, 26 (Wis. 1999)) (allowing, under a similar rule of evidence, the court to appoint an expert only if the expert consents and noting that “[i]f a court cannot compel an expert witness to testify, it logically follows that a litigant should not be able to so compel an expert” because “[i]t makes little if any sense to conclude that a litigant has greater rights than a court with respect to obtaining testimony from experts”); see also Neil P. Cohen et al., Tennessee Law of Evidence, § 7.06[g] (6th ed. 2011) (“[Rule 706] guards against a form of involuntary servitude, compelling an expert to sell his or her services to a public entity. A non-consensual appointment deprives the expert of the freedom to choose for whom he or she works, when and where to work, and what issues to work on.”).
The concurring in judgment opinion claims that the Court's ruling “circumvents procedures that are designed to ensure deliberate, informed decisionmaking.” Rule 706 was adopted in 1990 under the Court's authority to prescribe “general rules ․ [regarding] the practice and procedure in all courts of this state.” Tenn. Code Ann. § 16-3-402 (2022). As required, the General Assembly considered and approved Rule 706 before its adoption. Id. § -404. Thus, the “deliberate, informed decisionmaking” about Rule 706 occurred over thirty years ago. This Court did its job by interpreting and applying Rule 706.
After a long discussion about evidentiary privilege, the concurring in judgment opinion effectively says, “never mind.” The opinion concludes that if the trial court erred by not compelling Dr. Seeber's testimony, the error was harmless, suggesting that Plaintiff cannot show that the exclusion of Dr. Seeber's testimony more probably than not influenced the jury's verdict. The jury observed a “battle of experts”—different retained experts gave conflicting opinions. The Plaintiff's retained expert witness testified that Nurse Mercer failed to meet the standard of care. And as you might expect, the Defendants’ retained expert testified Nurse Mercer complied with the standard of care. The concurring in judgment opinion assumes that if Dr. Seeber had testified that Nurse Mercer deviated from the standard of care, his testimony would have been similar to the Plaintiff's expert's testimony and merely cumulative and unlikely to change the jury's verdict. To its credit, the opinion concedes that “it is conceivable that the jury would place more weight on Dr. Seeber's testimony because it would be against his interest to testify that Nurse Mercer violated the standard of care.”
Respectfully, it's much more than conceivable. It is almost a certainty that a jury would have been more strongly influenced by the expert testimony of Dr. Seeber than a retained expert with no stake in the outcome. Dr. Seeber and Nurse Mercer were both defendants; they both worked for the same entity (also a defendant); Dr. Seeber was Nurse Mercer's supervising physician; and the sole claim against Dr. Seeber was vicarious liability based on Nurse Mercer's care of the Plaintiff. Dr. Seeber had every incentive to testify favorably about Nurse Mercer's care—yet he did not.
Common sense tells us that if Dr. Seeber believed Nurse Mercer had complied with the standard of care, he would have freely shared that opinion. Dr. Seeber's lawyer would have encouraged, not prevented, his testimony. But that's not what happened here.
In sum, I concur in the Court's majority opinion. It is based on Tennessee Rule of Evidence 706, established precedent, and common sense.
1. The record on appeal indicates a bit of confusion on the part of the parties and the trial court as to whether Lewis articulated a privilege. In response to Plaintiff's motion to compel, the defendants relied on Lewis in support of their instruction to Dr. Seeber not to answer questions regarding care rendered by Nurse Mercer, but the defendants did not ever indicate that Lewis articulated a privilege. The trial court ultimately indicated a lack of clarity on whether Lewis articulated a privilege, but determined that its characterization was immaterial for the resolution of the issue presented. Changing course, the defendants admit in their brief on appeal to the intermediate court that Lewis “can probably be construed most closely to a privilege at common law.” Despite the confusion, on its face, the use of Lewis to permit a witness to refuse to answer questions in a deposition or at trial leads us to the conclusion that it effectively articulates a privilege, which under our rules of evidence requires a source. See Tenn. R. Evid. 501 (“Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to ․ [r]efuse to be a witness[, or] ․ to disclose any matter[.]”) (emphasis added).
2. As the Court of Appeals recognized, the holding articulated in Waterman—that a defendant physician may be compelled to testify as to whether his or her own conduct complied with the standard of care—is now the generally accepted rule in the majority of jurisdictions. Borngne, 2021 WL 2769182, at *11 (citing Anderson v. Florence, 181 N.W.2d 873, 875 (Minn. 1970)). We need not address the soundness of that generally-accepted principle today.
3. Amicus curiae Tennessee Trial Lawyers Association (“TTLA”) urges the Court to abrogate Lewis v. Brooks and its progeny and adopt the holding of federal courts such as that of the Second Circuit in Kaufman v. Edelstein, 539 F.3d 811 (2d Cir. 1976), which rejected any claim of privilege by experts on the ground of a protected property interest in the products of their brains. According to the TTLA, Kaufman is the prevailing federal view and has been incorporated into Federal Rule of Civil Procedure (“FRCP”) 45 with respect to “pure” experts—those experts who were not involved in the events of the case or named as parties. The TTLA advocates for a similar rule in Tennessee that would allow the trial courts to consider relevant factors in determining whether it is appropriate to excuse an expert from being compelled to testify. However, this argument was not raised by the parties below, and it was not addressed by either the trial court or the Court of Appeals. Such a change in Tennessee law would certainly warrant an opportunity for the parties to fully brief the issue. If the TTLA prefers a rule similar to FRCP 45, we encourage it to petition the Court's Advisory Commission on the Rules of Practice and Procedure.
4. The parties stipulated that “Jennifer Mercer was an employee of Caring Choice Women's Clinic” and that “Dr. Michael Seeber was Jennifer Mercer's supervising physician at the time she provided care to [Plaintiff] for the labor and delivery on 3/5/14 and 3/6/14.” (emphasis added). There was no temporal limitation on this stipulated fact.
5. Nurse-midwives are certified through, and regulated by, the State of Tennessee. See Tenn. Code Ann. § 63-29-108, 115 (2017); Tenn. Comp. R. & Regs. 1050-05-.02 (2003). The statutory scheme regulating midwifery “recognizes that midwifery is a profession in its own right.” Tenn. Code Ann. § 63-29-101 (2017). A certified midwife is “trained to give the necessary care and advice to women during pregnancy, labor, and the post-birth period, to conduct normal deliveries on the midwi[f]e's own responsibility and ․ is able to recognize the warning signs of abnormal conditions requiring referral to and/or collaboration with a physician.” Id. § -102(9). The practice of midwifery is statutorily defined as “attending low-risk women during pregnancy, labor and the post-birth period with the informed consent of the mother. The scope of midwifery shall include comprehensive care of the pregnant woman during the antepartal phase, intrapartal phase, and postpartal phase, and application of emergency care when necessary.” Id. § -102(10). See also TMA, Tennessee Midwives Association (TMA) Practice Guidelines, (adopted Jan., 22, 2001), https://www.tn.gov/content/dam/tn/health/healthprofboards/g5062255.pdf (“Midwifery care is the autonomous practice of giving care to women during pregnancy, labor, birth, and the postpartum period, as well as care to the newborn infant.”).
6. While we do not see a need for an exception under these facts, we recognize that an exception might exist in compelling circumstances. See Carney-Hayes, 699 N.W.2d 524, 534 (2005) (citing Glenn v. Plante, 676 N.W.2d 413 (2004)).
7. More than one of the amicus curiae briefs brought up the issue of whether Tennessee's Quality Improvement Committee (“QIC”) privilege applies to the expert opinion of Dr. Seeber, and if so, whether the original source exception applies. See Tenn. Code Ann. §§ 63-1-150(d)(1) (2017 & Supp. 2022), 68-11-272(c)(1)–(2) (2013 & Supp. 2022). The amicus curiae take the position that Dr. Seeber's supervision of Ms. Mercer was a QIC activity within the scope of the statutes, and so any of his statements or opinions regarding Ms. Mercer are privileged. However, this interpretation represents a significant expansion of the generally accepted understanding of the QIC statutes and privilege. Such a position would effectively permit every supervising physician to be deemed engaged in QIC activities at all times while supervising another provider, regardless of whether the supervision is direct. Dr. Seeber's form of active practice supervision does not appear to be what the statutes contemplate.
1. Dr. Seeber's overlapping roles as fact witness, supervisor, and co-defendant are perhaps best described in Justice Lee's separate opinion supporting the majority's creation of a privilege:Dr. Seeber and Nurse Mercer were both defendants; they both worked for the same entity (also a defendant); Dr. Seeber was Nurse Mercer's supervising physician; and the sole claim against Dr. Seeber was vicarious liability based on Nurse Mercer's care of the Plaintiff. Dr. Seeber had every incentive to testify favorably about Nurse Mercer's care—yet he did not.
2. “Superintend the execution or performance of (a task, operation, etc); oversee the actions or work of (a person).” Supervise, Shorter Oxford English Dictionary (6th ed. 2007).
3. The majority's handwave in a footnote at the possibility of an “exception in compelling circumstances” is not a limiting principle. Indeed, it implicitly acknowledges the overbreadth of the privilege the majority adopts.
1. Rule 26.02(4)(B) also has a second exception that is not relevant here.
2. In a footnote, the majority suggests that “an exception might exist in compelling circumstances” but does not elaborate on what those circumstances might be. Absent further guidance, trial courts understandably will be reluctant to deviate from the majority's otherwise clear instruction.
3. I tend to agree with the majority that the statutory Quality Improvement Committee privilege does not apply in this situation, but I would allow the Court of Appeals to consider that question in the first instance.
4. One court adopted a middle-ground approach that gives trial courts “wide discretion to quash subpoenas or issue protective orders whenever a litigant's demand for a particular expert constitutes an unnecessary or unwarranted intrusion” as well as “the power to compel an unwilling expert to provide pre-formulated opinion testimony whenever a litigant establishes a compelling need for the testimony.” Mason v. Robinson, 340 N.W.2d 236, 243 (Iowa 1983).
5. At least twenty-one States and the District of Columbia have adopted statutes or rules similar to Federal Rule of Civil Procedure 45(d)(3)(B)(ii)–(C)(ii). See Ala. R. Civ. P. 45(c)(3)(B)(ii); Ariz. R. Civ. P. 45(e)(2)(B)(ii)–(C)(ii); C.R.C.P. 45(c)(3)(B)(ii)–(C)(ii); Del. Super. Ct. Civ. R. 45(c)(3)(B)(ii); D.C. Super. Ct. R. Civ. P. 45(c)(3)(B)(ii), 45(c)(3)(C)(i)-(ii); Iowa R. Civ. P. 1.1701(4)(d)(2)(2), 1.1701(4)(d)(3)(1)–(2); Kan. Stat. Ann. § 60-245(c)(3)(B)(ii)–(C)(ii); Me. R. Civ. P. 45(c)(3)(B)(ii); Minn. R. Civ. P. 45.03(c)(2)(B)–(C); Miss. R. Civ. P. 45(d)(1)(B)(ii), 45(d)(2)(C); Mont. R. Civ. P. 45(d)(3)(B)(ii), 45(d)(3)(C)(i)–(ii); Nev. R. Civ. P. 45(c)(3)(B)(ii)–(C)(ii); NMRA, Rule 1-045(C)(3)(b)(ii)–(iii); N.D. R. Civ. P. 45(c)(4)(B)(ii)–(C)(ii); 12 Okl. Stat. Ann. § 2004.1(C)(3)(b)(2) (West); R.I. Super. Ct. R. 45(c)(3)(B)(ii); S.C. R. Civ. P. 45(c)(3)(B)(ii)–(iii); Utah R. Civ. P. 45(e)(3)(I), (e)(5); Vt. R. Civ. P. 45(c)(3)(B)(ii)–(iii); Wash. Super. Ct. Civ. R. 45(c)(3)(B)(ii); W. Va. R. Civ. P. 45(d)(3)(B)(ii); Wyo. R. Civ. P. 45(c)(3)(B)(ii).
1. The court may not appoint expert witnesses of its own selection on issues to be tried by a jury except as provided otherwise by law. ․ The court ordinarily should appoint expert witnesses agreed upon by the parties, but in appropriate cases, for reasons stated on the record, the court may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act.Tenn. R. Evid. 706(a) (emphasis added).
2. Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to:(1) Refuse to be a witness;(2) Refuse to disclose any matter;․Tenn. R. Evid. 501.
ROGER A. PAGE, CHIEF JUSTICE
SARAH K. CAMPBELL, J., filed a separate opinion concurring in the judgment, in which HOLLY KIRBY, J., joined. HOLLY KIRBY, J., filed a separate concurring opinion.
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Docket No: No. E2020-00158-SC-R11-CV
Decided: May 23, 2023
Court: Supreme Court of Tennessee.
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