FRANCES G. RODGERS, ET AL. v.
JOHN ADAM NOLL, III
No. E2012-00990-COA-R3-CV
COURT OF APPEALS OF TENNESSEE,
AT KNOXVILLE
2013 Tenn. App. LEXIS 205
December 10, 2012, Session
March 26, 2013, Filed
PRIOR
HISTORY: Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Circuit Court Reversed, in part; Affirmed, in part; Case
Remanded. Appeal from the Circuit Court for Knox County. No. 1-525-10. Dale
Workman, Judge.
DISPOSITION:
Judgment of the Circuit Court Reversed, in
part; Affirmed, in part; Case Remanded.
OVERVIEW:
The trial court
sanctioned plaintiff for discovery violations and then dismissed plaintiff's
wrongful death case due to the violations. The appellate court reversed,
holding that dismissal was too severe a sanction for the discovery violations
found. Dismissal was generally not favored where lesser sanctions were
available and where the neglect was more attributable to the attorney than the
client. Here, the violations could not be described as contumacious or engaged
in for purposes of delay, and the inappropriate discovery conduct was more
attributable to the attorney than the client.
OUTCOME:
Judgment
reversed.
COUNSEL:
Bryan E. Delius
and Bryce W. McKenzie, Sevierville, Tennessee, and M. Sue White, Seymour, Tennessee,
for the appellant, Frances G. Rodgers, as next friend of minors Julia Amber
Noll and Joshua Aidan Noll.
Brian
H. Trammell and Amy V. Peters, Knoxville, Tennessee, for the appellee, John
Adam Noll, III.
JUDGES:
D. MICHAEL
SWINEY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., P.J., and JOHN W. MCCLARTY, J., joined.
OPINION
BY: D. MICHAEL
SWINEY
OPINION
Frances G. Rodgers, as next
friend of minors Julia Amber Noll and Joshua Aidan Noll ("Plaintiff")
sued John Adam Noll ("Defendant") for the alleged wrongful death of
their mother, Lori Bible Noll ("Deceased"). During discovery,
Defendant filed multiple motions alleging discovery violations. After a hearing
the Trial Court entered its order on April 25, 2012, which, among other things,
imposed sanctions for certain discovery violations and then dismissed
Plaintiff's case due to discovery
violations. Plaintiff appeals to this Court. We find and hold that dismissal
was too severe a sanction for the discovery violations found. We reverse the
dismissal; remand to the Trial Court for a more appropriate award of sanctions;
and affirm the remaining specific sanctions awarded by the Trial Court and the
remainder of the Trial Court's April 25, 2012 order.
Background
Deceased and Defendant were
married and had two minor children. Deceased suffered injuries that led to her
death as a result of an incident that occurred in October of 2009. Plaintiff,
Deceased's mother, filed this wrongful death suit on behalf of Deceased's minor
children against Defendant alleging, among other things, that Defendant had
caused or contributed to the death of Deceased.
Discovery commenced and the
Trial Court entered a Scheduling Order on November 16, 2011, which ordered, inter
alia:
On or before January 20, 2012,
the Plaintiffs will provide to the Defendant a final list of all individuals
that they intend to call as expert witnesses at the trial of this matter.
Plaintiffs will provide a complete disclosure in accordance with Rule 26 of the
Tennessee Rules of Civil Procedure.
Plaintiff filed her Rule
26.02 Expert Disclosures on January 20, 2012. Defendant then filed multiple
motions relating to discovery including multiple motions for sanctions for
alleged discovery abuses. After a hearing the Trial Court entered its order on
April 25, 2012 finding and holding, inter alia:
9. Defendant's motion for sanctions related to
Ms. Paulette Sutton's expert disclosures is GRANTED. The Court finds that the
disclosure made by the plaintiff of this expert was in violation of Rule 11.
The disclosure made by the plaintiff on January 20, 2012, pursuant to this
Court's Order was not in keeping with the Tennessee Rules of Civil Procedure
because the disclosure was made before the plaintiff ever received any opinions
from this expert.
Therefore,
as a sanction for that discovery abuse, this Court orders plaintiff['s] counsel
to pay to defense counsel: (1) the cost of the travel to Memphis; (2) the cost
of transcribing the deposition; (3) defense counsel's reasonable attorney[']s
fees for travel time. Counsel for the defendant will file with the Court
documentation supporting the financial awards described hereinabove. If
plaintiff['s] counsel wants to dispute those charges, the Court will hear that.
Otherwise, plaintiff['s] counsel shall pay these costs within thirty (30) days of
April 13, 2012.
Additionally,
Ms. Sutton will only be able to testify regarding her opinion that the
blood-letting injury to Ms. Noll's forehead occurred at the base of the stairs
or on the bottom two stairs of the stairwell in the Noll residence.
10. Defendant's
motion for sanctions related to Ms. Cassandra Dowd's deposition is GRANTED. The
Court finds that the disclosure made by the plaintiff of this expert was in
violation of Rule 11. The Court finds that the plaintiff never contacted Ms.
Dowd to inquire whether she might have information relevant to this lawsuit
prior to naming her as a witness in discovery responses, and the plaintiff
refused to remove her from the witness list after defense counsel expressly
told plaintiff['s] counsel that the witness had no relevant information.
Therefore, as a sanction for that discovery abuse, this Court orders
plaintiff['s] counsel to pay to defense counsel the cost of the deposition and
defense counsel's reasonable time in traveling to Blount County to take the deposition.
11.
Defendant's motion to exclude Dr. George Nichols' testimony under McDaniel
v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997) is DENIED. The Court finds that Dr. Nichols'
opinion regarding the causation of the bruising on the underside of Ms. Noll's
left arm is a valid opinion within the field of forensic pathology. Although
that opinion is not in and of itself enough to prove Mr. Noll is the cause of
those bruises, Dr. Nichols can give that opinion.
12.
Defendant's motion for sanctions relating to Dr. George Nichols' expert
disclosure is GRANTED. The Court finds that the plaintiff's Rule 26 disclosure
of Dr. Nichols' opinions made by the plaintiff on January 20, 2012, pursuant to
this Court's Order, was inconsistent with his actual testimony. The disclosure
was not complete, accurate, or compliant with Rule 11's requirement that
counsel make a reasonable inquiry. With regard to the appropriate sanctions,
the Court reserves judgment pending the outcome of the remaining motions.
13.
Defendant's motion for sanctions relating to Mr. Arthur Chancellor's expert
disclosure is GRANTED. The Court finds that the plaintiff's Rule 26 disclosure
of Mr. Chancellor made by the plaintiff on January 20, 2012, pursuant to this
Court's Order was inconsistent with his actual testimony. The disclosure was
not complete, accurate, or compliant with Rule 11's requirement that counsel
make a reasonable inquiry. With regard to the appropriate sanctions, the Court
reserves judgment pending the outcome of the remaining motions.
14.
Defendant's motion to exclude Mr. Chancellor's testimony under McDaniel v.
CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997) is GRANTED. The Court
finds that this witness, with the record before the Court, has no scientific
basis to allow him to express his opinion about whether defendant engaged in
false reporting. Therefore, Mr. Chancellor is excluded from testifying as an
expert witness.
15.
Defendant's motion to exclude Ms. Joanna Collins' testimony under McDaniel
v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997) is GRANTED. The
Court finds that this witness, with the record before the Court, has no
scientific basis or experience to allow her to express her opinion about
whether [defendant] is lying. Therefore, Ms. Collins is excluded from
testifying as an expert witness.
16. The
Defendant's motion for sanctions related to Ms. April Miller's expert
disclosure is DENIED. The Court finds that the Plaintiff was unable to
interview Ms. Miller due to intervention from the University of Tennessee
Medical Center's legal counsel. Based upon the information contained within the
Knox County Sheriff Department's investigation file, the Plaintiff had some
basis for disclosing her as a witness. However, the Court does recognize that
her disclosure was inconsistent with her deposition testimony. No sanctions are
awarded for this witness.
17. The
Defendant's motion for sanctions related to the plaintiff's failure to produce
the audio recording or a transcript thereof made by witness Dale Gourley on or
about October 17, 2009 is GRANTED. Based upon the record as a whole, it appears
that plaintiff['s] counsel failed to disclose the audio recording or a
transcript thereof in question during written discovery or pursuant to a
subpoena duces tecum accompanying Mr. Gourley's notice of deposition.
However, the Court will allow the plaintiff to supplement the record with
regard to this motion if they can produce any documentation verifying that the
audio recording or a transcript thereof was produced to defense counsel. With
regard to the appropriate sanctions, the Court reserves judgment.
18.
Based upon the Court's review of the record as a whole, including all of the
deposition transcripts and exhibits that were attached to the above referenced
motions, the Court finds that the plaintiff engaged in repeated abuses of
discovery by naming experts they had not received opinions from and filing
disclosures that were grossly inconsistent with their experts' actual opinions.
Based upon these multiple discovery violations, the Court exercises its
discretion to dismiss this suit for abuse of discovery.
Plaintiff appeals the dismissal
of the case to this Court.
Discussion
Although not stated exactly as
such, Plaintiff raises three issues on appeal: 1) whether the Trial Court erred
in ordering sanctions for discovery violations pursuant to Tenn. R. Civ. P. 11;
2) whether the Trial Court abused its discretion in dismissing Plaintiff's case
for discovery violations; and, 3) whether the Trial Court abused its discretion
in excluding the testimony of Arthur Chancellor.
We first consider whether the
Trial Court erred in ordering sanctions for discovery violations pursuant to
Tenn. R. Civ. P. 11. We review a trial court's imposition of sanctions for
discovery abuse under an abuse of discretion standard. Lyle v. Exxon Corp.,
746 S.W.2d 694, 699 (Tenn. 1988).
As pertinent to this appeal,
Tenn. R. Civ. P. 11 provides:
11.04. Inapplicability to
Discovery. -
Subdivisions 11.01 through 11.03 of this rule do not apply to disclosures and
discovery requests, responses, objections, and motions that are subject to the
provisions of Rules 26 through 37.
Tenn. R. Civ. P. 11.04.
The Trial Court's April 25, 2012
order awarded sanctions pursuant to Rule 11. Rule 11, however, clearly does not
apply to "discovery requests, responses, objections, and motions
...." Tenn. R. Civ. P. 11.04. Instead, sanctions for discovery
violations fall under the purview of Tenn. R. Civ. P. 37, which provides, in
pertinent part:
37.02. Failure to Comply with Order. - If a deponent; a party; an
officer, director, or managing agent of a party; or, a person designated under
Rule 30.02(6) or 31.01 to testify on behalf of a party fails to obey an order
to provide or permit discovery, including an order made under Rule 37.01
or Rule 35, or if a party fails to obey an order entered under Rule 26.06,
the court in which the action is pending may make such orders in regard to the
failure as are just, and among others the following:
(A) An order that the matters
regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow
the disobedient party to support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in evidence;
(C) An order striking out
pleadings or parts thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part thereof, or
rendering judgment by default against the disobedient party;
(D) In lieu of any of the
foregoing orders or in addition thereto, an order treating as a contempt of
court the failure to obey any orders except an order to submit to a physical or
mental examination;
(E) Where a party has failed to
comply with an order under Rule 35.01 requiring the party to produce another
for examination, such orders as are listed in paragraphs (A), (B), and (C) of
this rule, unless the party failing to comply shows that he or she is unable to
produce such person for examination.
In lieu of any of the foregoing
orders or in addition thereto, the court shall require the party failing to
obey the order or the attorney advising the party or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the court
finds that the failure was substantially justified or that other circumstances
make an award of expenses unjust.
Tenn. R. Civ. P. 37.02.[1]
We note that "if the Trial
Judge reached the right result for the wrong reason, there is no reversible
error." Shutt v. Blount, 194 Tenn. 1, 249 S.W.2d 904, 907 (Tenn. 1952).
We, thus, will consider whether pursuant to Tenn. R. Civ. P. 37 the Trial Court
erred in ordering discovery sanctions.
This leads us directly into the
second issue raised by Plaintiff regarding whether the Trial Court abused its
discretion in dismissing Plaintiff's case for discovery violations. We review
sanctions imposed by a trial court under Tenn. R. Civ. P. 37 for abuse of
discretion. Amanns v. Grissom, 333 S.W.3d 90, 98 (Tenn. Ct. App. 2010).
As this Court stated in Potts
v. Mayforth:
Rule 37.02(C) of the Tennessee
Rules of Civil Procedure
provides that a trial court faced with a party who fails to obey an order to
provide discovery may render a judgment by default against the disobedient
party. Although this sanction is extreme, it is appropriate "where there
has been a clear record of delay or contumacious conduct." When a trial
court exercises its discretion in rendering a default judgment as a sanction,
its decision will be disturbed only upon a finding of abuse of that discretion.
Potts v. Mayforth, 59 S.W.3d 167, 171 (Tenn. Ct. App. 2001) (quoting Shahrdar v. Global
Housing, Inc., 983 S.W.2d 230, 236 (Tenn. Ct. App. 1998)). As this Court
noted in Moody v. Hutchison: "Dismissal [for the failure to comply
with the Tennessee Rules of Civil Procedure or orders of the court] is a harsh
sanction, which is generally not favored in circumstances where lesser
sanctions are available and where the neglect is more attributable to the
attorney than the client." Moody v. Hutchison, 247 S.W.3d 187, 198
(Tenn. Ct. App. 2007) (quoting Kotil v. Hydra-Sports, Inc., No.
01-A-01-9305-CV-00200, 1994 Tenn. App. LEXIS 551, **8-9 (Tenn. Ct. App. Oct. 5,
1994), no appl. perm. appeal filed).
When ordering the sanction of
dismissal, the Trial Court discussed the case of Amanns v. Grissom, 333
S.W.3d 90 (Tenn. Ct. App. 2010). Plaintiff argues in her brief on appeal
that "[t]he trial court's comparing the instant case to Amanns is
wholly misguided."
We agree that the case now
before us on appeal is distinguishable from Amanns. In Amanns
this Court noted that the plaintiffs themselves had engaged in behaviors that
made it clear that they did not intend to comply with the orders of the court. Id.
at 100-102. The Amanns plaintiffs had made misrepresentations to the
trial court and had withheld information from both the defendants and the trial
court until it suited their purposes to produce said information. Id. In
Amanns we found that the plaintiffs had engaged in behavior "which
can only be described as contumacious or for purposes of delay." Id. at
100.
The case now before us is
distinguishable from Amanns largely because of the scope of the
behaviors. While the Trial Court in the instant case found discovery
violations, these violations do not rise to the level of the ones found in Amanns,
and cannot be described as contumacious or engaged in for purposes of delay. We
also note in the case now before us that the inappropriate discovery conduct
"is more attributable to the attorney than the client." Moody, 247
S.W.3d at 198. As such, we hold that dismissal of the case for the
discovery violations as found by the Trial Court was too harsh of a sanction.
The record before us, however,
does support the Trial Court's findings that discovery violations occurred. As
such, the imposition of sanctions other than dismissal for these violations is
proper and appropriate.
Specifically, with regard to the
expert disclosure of Paulette Sutton, the record reveals that Plaintiff's
counsel did not even speak to Ms. Sutton until January 20, 2012, the day that
Plaintiff filed her expert disclosure. Ms. Sutton was not provided any
materials for review until after Plaintiff filed her expert disclosure.
As such, the information in Plaintiff's expert disclosure was nothing more than
Plaintiff's guess and wish as to what Ms. Sutton's expert opinion would be
after she reviewed the case. At the time Plaintiff filed her expert disclosure,
she simply had no reasonable belief as to the opinions about which Ms. Sutton
was expected to testify.
With regard to Cassandra Dowd,
Plaintiff listed Ms. Dowd as a potential witness. Defendant contacted Ms. Dowd
and discovered that Ms. Dowd denied knowing both the people and the factual
situation involved in this case. Defendant's counsel contacted Plaintiff's
counsel with this information, but Plaintiff's counsel refused to remove Ms.
Dowd's name as a potential witness. As a result, Defendant deposed Ms. Dowd and
she denied under oath knowing both the people and the factual situation
involved in this case.
As for Plaintiff's expert
disclosure with regard to Dr. George Nichols, the Trial Court found that
Plaintiff failed to make a reasonable inquiry as to what Dr. Nichols' opinions
were prior to making her disclosure, and, as a result, the disclosure was
inconsistent with Dr. Nichols' actual opinions. The Trial Court also found that
Plaintiff's disclosure with regard to the expert opinions of Arthur Chancellor
was not adequate.
Our review of the Trial Court's
order in its entirety shows that the Trial Court's findings with regard to
Plaintiff's expert disclosure discovery violations under both the Trial Court's
order and Rule 26.02(4) are not based solely upon the fact that the
opinions of Plaintiff's various experts did not coincide with the information
provided by Plaintiff in her disclosure. Rather, the basis for the Trial
Court's finding was that Plaintiff had not undertaken the steps necessary to be
able to state the opinions that the various experts were expected to testify to
and a summary of the grounds for those opinions. The mere fact that an expert
in a deposition or at trial expresses an opinion inconsistent with a party's
Rule 26.02(4) expert disclosure does not in and of itself show any violation of
Rule 26.02(4). Defendant, in effect, concedes this point in his brief
when he notes that his Rule 26.02(4) disclosure as to one of his experts, Dr.
Cogswell, was inconsistent on one opinion with Dr. Cogswell's deposition
testimony. Defendant admits that Dr. Cogswell denied in his discovery
deposition having one specific opinion as disclosed in Defendant's Rule 26.02(4)
disclosure. Defendant correctly points out that this inconsistency was not a
violation of Rule 26.02(4) because it was made in good faith and was
reasonably expected to be Dr. Cogswell's opinion.
We affirm the Trial Court's
sanctions with regard to Paulette Sutton and Cassandra Dowd. With regard to the
remaining discovery violations as found by the Trial Court including those
related to Dr. George Nichols, Arthur Chancellor, and the audio recording or a
transcript thereof made by witness Dale Gourley on or about October 17, 2009,
we remand this case to the Trial Court for imposition of sanctions other than
dismissal.
Finally, we consider whether the
Trial Court abused its discretion in excluding the testimony of Arthur
Chancellor. With regard to this issue the Trial Court specifically found:
"The Court finds that this witness, with the record before the Court, has
no scientific basis to allow him to express his opinion about whether defendant
engaged in false reporting." A careful and thorough review of Mr.
Chancellor's deposition testimony reveals that Mr. Chancellor intended to offer
only one opinion in regard to this case, i.e., that Defendant falsely reported,
or lied, about the events that occurred on the night when Deceased was injured.
As our Supreme Court has
instructed:
Questions regarding the
qualifications, admissibility, relevancy, and competency of expert testimony
are matters left within the broad discretion of the trial court. See
McDaniel, 955 S.W.2d at 263-64; State v. Ballard, 855 S.W.2d 557, 562
(Tenn. 1993). On appellate review, the trial court's ruling shall not be
overturned absent a finding that the trial court abused its discretion in
admitting or excluding the expert testimony. Ballard, 855 S.W.2d at 562.
"[A]n appellate court should find an abuse of discretion when it appears
that the trial court applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party
complaining." State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).
* * *
In Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993), the United States Supreme court held that Federal Rule of
Evidence 702 imposes a "gatekeeping" obligation on the trial
court to "ensure that any and all scientific testimony ... is not only
relevant, but reliable." Id. at 589, 113 S. Ct. 2786. Several years
later in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997),
this Court addressed the admissibility of scientific evidence under Tennessee
Rules of Evidence 702 and 7032
and, citing Daubert, similarly held that evidence and expert testimony
regarding scientific theory must be both relevant and reliable before it could
be admitted. McDaniel, 955 S.W.2d at 265. We also listed several
nonexclusive factors that courts could consider in determining the reliability
of scientific expert testimony, including (1) whether the scientific evidence
has been tested and the methodology with which it has been tested; (2) whether
the evidence has been subjected to peer review or publication; (3) whether a
potential rate of error is known; (4) whether the evidence is generally
accepted in the scientific community; and (5) whether the expert's research in
the field has been conducted independent of litigation. Id.
The
testimony at issue in this case, however, is not based on scientific theory and
methodology, but rather, is based on nonscientific "specialized
knowledge," that is, the expert's experience. See Simmons v. State, 797
So. 2d 1134, 1151 (Ala. Crim. App. 1999) ("Crime-scene analysis, which
involves the gathering and analysis of physical evidence, is generally
recognized as a body of specialized knowledge."); see also United
States v. Meeks, 35 M.J. 64, 68 (C.A.A.F. 1992). The trial court correctly reasoned that such
nonscientific testimony must still meet the fundamental requirements of
relevance and reliability. Indeed, nothing in the language of Rules 702
and 703 suggests that scientific testimony should be treated any
differently than expert opinions based on technical or nonscientific
specialized knowledge. "If the mention of scientific knowledge suffices to
mandate reliability standards for scientific testimony, a fortiori the mention
of nonscientific expert knowledge should compel the courts to seek to formulate
reliability standards for that type of expert evidence as well." Edward J.
Imwinkelreid, The Next Step After Daubert: Developing a Similarly
Epistemological Approach to Ensuring the Reliability of Nonscientific Expert
Testimony, 15 Cardozo L. Rev. 2271, 2281 (1994).
* * *
In
resolving the evidentiary issue before us, the United States Supreme Court's
recent decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.
Ct. 1167, 143 L. Ed. 2d 238 (1999), provides useful guidance. In that case,
the Supreme Court was asked to determine whether a trial court "may"
consider Daubert's factors when determining the admissibility of an
engineering expert’s testimony based on specialized knowledge. The Court first held
that Daubert's "gatekeeping obligation," requiring an inquiry
into both the relevance and the reliability of the evidence, applies not only
to expert testimony characterized as scientific, but to all expert testimony. See
Kumho Tire Co., 526 U.S. at 147, 119 S. Ct. 1167. Moreover, the Court
concluded that when assessing the reliability of nonscientific expert
testimony, the trial court may consider the Daubert factors "where
they are reasonable measures of the reliability of expert testimony." Id.
at 152, 119 S. Ct. 1167. However, the Court cautioned that the
"factors identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert's
particular expertise, and the subject of his testimony." The conclusion,
in our view, is that we can neither rule out, nor rule in, for all cases and
for all time the applicability of the factors mentioned in Daubert, nor
can we now do so for subsets of cases categorized by category of expert or by
kind of evidence. Too much depends upon the particular circumstances of the
particular case at issue. Id. at 150,
119 S. Ct. 1167 (citations omitted).
The Court concluded that the trial court maintains "considerable
leeway" in deciding whether to consider the specific factors in Daubert
"as reasonable measures of the reliability of expert testimony." Id.
at 152, 119 S. Ct. 1167.
We find
this analysis reasonable, and consequently, we reject the defendant's argument
that McDaniel applies only to scientific testimony. Distinguishing
scientific evidence from other areas of expert testimony is too difficult a
determination in many instances. Consequently, to restrict McDaniel to
scientific evidence would be to impose upon the trial court the undue burden of
classifying the legions of expert witnesses as scientific or nonscientific. We
do not believe that Rule 702 "creates a schematism that segregates
expertise by type while mapping certain kinds of questions to certain kinds of
experts." Kumho Tire Co., 526 U.S. at 151, 119 S. Ct. 1167.
Accordingly, we hold that the McDaniel factors may apply, subject
to the discretion of the trial court, "as reasonable measures of the
reliability" of all expert testimony described in Rule 702.
In
properly exercising its discretion, the trial court must first make a
determination that the witness is
qualified by knowledge, skill, experience, training, or education to express an
opinion within the limits of the expert's expertise. Tenn. R. Evid. 702.
The determinative factor is whether the witness's qualifications authorize him
or her to give an informed opinion on the subject at issue. See, e.g.,
United States v. Starzecpyzel, 880 F. Supp. 1027, 1043 (S.D.N.Y. 1995)
(presenting as an example of unreliable and inadmissible evidence the testimony
of a weekend recreational sailor professing expertise as a harbor pilot); see
also Wilson v. Woods, 163 F.3d 935, 937-38 (5th Cir. 1999) (finding an
expert in fire reconstruction unqualified as an expert in auto accident
reconstruction).
The
trial court must next ensure that the basis for the witness's opinion, i.e.,
testing, research, studies, or experience-based observations, adequately
supports that expert's conclusions. For example, in General Electric Co. v.
Joiner, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997), Joiner, an
electrician diagnosed with small-cell lung cancer, introduced expert testimony
to demonstrate that his workplace exposure to certain chemicals and other
toxins contributed to his disease. The experts, in giving their opinions, cited
to several studies that were either so dissimilar to the facts of the case or
failed to make the requisite link between cancer and chemical exposure. The
Supreme Court held that the studies relied on were an insufficient basis for
the expert opinions and, therefore, the testimony was inadmissible. In so
holding, the Court said,
[N]othing in either Daubert
or the Federal Rules of Evidence requires a district court to admit opinion
evidence which is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.
Id. at 146, 118 S. Ct. 512.
This
"connection" between the expert's conclusion and the underlying data
supporting that conclusion is of especial importance when determining the
reliability of experience-based testimony, because observations and experiences
are not easily verifiable by the court. However, the court may make a finding
of reliability if the expert's conclusions are sufficiently straightforward and
supported by a "rational explanation which reasonable [persons] could
accept as more correct than not correct." Wood v. Stihl, 705 F.2d 1101,
1107-08 (9th Cir. 1983).
Consequently,
when the expert's reliability is challenged, the court may consider the
following nondefinitive factors: (1) the McDaniel factors, when they are
reasonable measures of the reliability of expert testimony; (2) the expert's
qualifications for testifying on the subject at issue; and (3) the
straightforward connection between the expert's knowledge and the basis for the
opinion such that no "analytical gap" exists between the data and the
opinion offered. Subject to the trial court's discretion, once the evidence is
admitted, "it will thereafter be tested with the crucible of vigorous
cross-examination and countervailing proof." McDaniel, 955 S.W.2d at
265.
State v. Stevens, 78 S.W.3d 817, 832-35 (Tenn. 2002) (footnotes in original but
renumbered). The Court in State v. Stevens ultimately upheld the trial
court's decision to refuse to admit the expert opinion in question and stated:
"Although we do not doubt the usefulness of behavioral analysis to assist
law enforcement officials in their criminal investigations, we cannot allow an
individual's guilt or innocence to be determined by such 'opinion evidence
connected to existing data only by the ipse dixit' of the expert." Id.
at 835 (footnote omitted).
Tennessee Rule of Evidence 702 provides:
If scientific, technical, or
other specialized knowledge will substantially assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
in the form of an opinion or otherwise.
Tennessee Rule of Evidence 703 provides:
The facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible in
evidence. The court shall disallow testimony in the form of an opinion or
inference if the underlying facts or data indicate lack of trustworthiness.
The following well-known
hypothetical demonstrates our point:
[I]f one wanted to prove that
bumblebees always take off into the wind, a beekeeper with no scientific
training at all would be an acceptable expert witness if a proper
foundation were laid for his conclusions. The foundation would not relate to
his formal training, but to his firsthand observations. In other words, the
beekeeper does not know any more about flight principles than the jurors, but
he has seen a lot more bumblebees than they have.
Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994) (emphasis in original). The
basis for the beekeeper's opinion is his experience observing bees. In
determining whether this expert's testimony is reliable, the trial court can look
at the connection between the beekeeper's observations and his conclusions
extrapolated from these observations. The conclusions should be sufficiently
straightforward to assist the jury's understanding of the take-off habits of
bees. "The straightforward character of the testimony is essential to its
reliability because it permits the jury to understand, and thus weigh, the
beekeeper's conclusion without the necessity of an explanation of the
scientific principles that account for bees always taking off into the
wind." J. Brook Lathram, The "Same Intellectual Rigor" Test
Provides an Effective Method for Determining the Reliability of All Expert
Testimony, Without Regard to Whether the Testimony Comprises "Scientific
Knowledge" or "Technical or Other Specialized Knowledge", 28 U. Mem. L. Rev. 1053, 1066-67 (1998).
Turning to the case now before
us on appeal, Mr. Chancellor based his opinion not on scientific theory and
methodology but instead on his approximately 38 years of experience in law
enforcement. Mr. Chancellor testified that he reviewed depositions,
photographs, statements, and other materials, and when asked what specifically
he used from this case to form his opinion, he stated that there was no single
thing, but rather a totality of the circumstances which led him to form his
opinion. Mr. Chancellor also stated that he had done an informal survey asking
married women he knew if it were believable that Deceased would have wanted to
have sex after coming home at 8 p.m. from working all day and finding that her
husband had laid out lingerie and requested that she take a bath. Mr.
Chancellor stated that he had "yet to find any woman alive - - or any
woman so far that says oh, yeah, that happens all the time." After
carefully reviewing Mr. Chancellor's deposition testimony, we find that Mr.
Chancellor's expert opinion, like the expert opinion at issue in State v.
Stevens, was "connected to existing data only by the ipse dixit
of the expert." Id.
Furthermore, Mr. Chancellor's
opinion that Defendant had falsely reported or lied about the events of the
night in question is simply not "scientific, technical, or other
specialized knowledge [that] will substantially assist the trier of fact to
understand the evidence or to determine a fact in issue ...." Tenn. R.
Evid. 702. Rather, Mr. Chancellor's only opinion, that Defendant lied,
properly is the province of the trier of fact. We find no abuse of discretion
in the Trial Court's decision to exclude the expert testimony of Mr.
Chancellor.
We reverse the dismissal of this
case and remand to the Trial Court for imposition of additional sanctions other
than dismissal for the discovery violations as found by the Trial Court and as
discussed more fully above. We affirm the remainder of the Trial Court's April
25, 2012 order.
Conclusion
The judgment of the Trial Court
dismissing this case is reversed. The remainder of the judgment of the Trial
Court is affirmed, and this cause is remanded to the Trial Court for an award
of sanctions in accordance with this Opinion and for collection of the costs
below. The costs on appeal are assessed one-half against the appellant, Frances
G. Rodgers and her surety; and one-half against the appellee, John Adam Noll,
III.
D. MICHAEL SWINEY, JUDGE
[1] Plaintiff argues in
her brief on appeal that the Trial Court should have utilized Tenn. R. Civ.
P. 37.03. We disagree. Among other things not relevant to the case at hand,
Tenn. R. Civ. P. 37.03 deals with a failure to supplement or amend
responses. The case now before us involves an alleged failure to comply with
the Trial Court's scheduling order entered pursuant to Tenn. R. Civ. P.
26.06. As such, the allegations are properly analyzed under Tenn. R.
Civ. P. 37.02, not Tenn. R. Civ. P. 37.03.