IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 13, 2014 Session

LINDA LASETER, Individually and on behalf of her deceased mother,

ALICE H. CORR v. J. MARTIN REGAN, JR., in his capacity as Personal

Representative of the ESTATE OF FERNANDO HERRERA, M.D.

Direct Appeal from the Circuit Court for Shelby County

No. CT-002427-08 Donna Fields, Judge

No. W2013-02105-COA-R3-CV - Filed July 24, 2014

This appeal involves a defendant’s attempts to discover certain financial information from

the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial

court entered several orders requiring the expert witness to provide the requested financial

information, which related to hisincome and compensation, but the expert witnessrepeatedly

failed to comply with the trial court’s orders. The trial court also ruled that the defendant

would be permitted to question the expert witness about certain financial information during

cross-examination at trial, and the expert witness communicated to the trial judge that he

would refuse to answer any such questions. The trial court eventually excluded the medical

expert as a witness and allowed the plaintiff time to find a replacement expert. When the

plaintiff failed to identify another expert witness within the time allowed, the trial court

dismissed the complaint. The plaintiff appeals. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which J. STEVEN

STAFFORD, J., and PAUL G. SUMMERS, SR. J., joined.

Al H. Thomas, Aaron L. Thomas, Memphis, Tennessee, for the appellant, Linda Laseter,

Individually and on behalf of her deceased mother, Alice H. Corr

Katherine M. Anderson, Hugh Francis, David M. Cook, Albert G. McLean, Memphis,

Tennessee, for the appellee, J. Martin Regan, Jr., in his capacity as Personal Representative

of the Estate of Fernando Herrera, M.D.
OPINION

I. FACTS & PROCEDURAL HISTORY

This case involves a narrow issue, but the procedural history before the trial court

relevant to the issue is somewhat tortured and incredibly lengthy.

A “Complaint for Medical Malpractice”was filed on May 20, 2008, by Linda Laseter,

individually and on behalf of her deceased mother, Alice H. Corr, against Kishore K Arcot,

M.D., Memphis Cardiology, P.L.C., and Fernando Herrera, M.D. The complaint basically

alleged that there was “an inappropriate rush to repair an abdominal aortic aneurysm, which

was in fact non-emergent,” and “subsequent to repair of the aneurysm the patient developed

severe metabolic acidosis and kidney failure and died.” Defendants Arcot and Memphis

Cardiology were eventually dismissed from the case on summary judgment, and they are not

at issue on appeal. The only defendant at issue on appeal is Dr. Herrera (“Defendant”), who

is a cardiovascular surgeon.

Defendant filed an answer to the complaint, and discovery ensued. On October 8,

2009, Defendant filed a motion for summary judgment, which was supported by his own

affidavit, in which he stated that he had complied in all respects with the recognized standard

of acceptable professional practice. In response to the motion for summary judgment,

Plaintiff filed the affidavit of Martin Evans, M.D., a medical doctor practicing as a general

and vascular surgeon in Richmond, Virginia. Dr. Evans opined that Defendant did not

comply with the recognized standard of acceptable professional practice in his treatment of

the patient.

On January 15, 2010, defense counsel filed and served on plaintiff’s counsel a notice

to take the discovery deposition of Dr. Evans. The notice of deposition requested that

plaintiff have Dr. Evans produce at his deposition certain documents related to the income

he had earned as an expert witness, including his schedule of charges for work as a witness

in a lawsuit, all income received from reviewing cases, consulting or testifying in connection

with lawsuits since January 1, 2000, and 1099s and related documents reflecting his income

for medical/legal review for the years 2000 to 2010. Plaintiff’s counsel did not object to the

document request, but Dr. Evans did not produce the documents at his discovery deposition

on April 28, 2010. When Dr. Evans was asked during his deposition how much income he

earns annually from serving as an expert witness, he said he did not know, and when asked

to give an estimate for the last three years, he said he could not do so. He did estimate that

fifteen to twenty percent of his income comes from expert activity, but he said he did not

know “the actual amount of dollars.”

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After the entry of several scheduling orders and amended scheduling orders, the case

was scheduled for trial on August 20, 2012. On January 4, 2012, Defendant filed a motion

to compel production of the documents that were requested prior to Dr. Evans’ discovery

deposition but not produced. According to Defendant’s motion, he was unable to find “any

Tennessee appellate court case, reported or unreported,” addressing the propriety of requiring

the production of information and documents pertaining to an expert witness’s income from

serving as a witness in medical-legal matters. However, Defendant’s motion asserted that

numerous courts in other jurisdictions had held that it is proper for an expert witness to be

examined as to his or her expert witness income and the percentage of his or her total income

that is derived from serving as an expert witness. Defendant argued that the requested

information was relevant “because it shows bias or prejudice since a person who testifies as

an expert witness on a frequent basis may sometimes be perceived as a ‘professional witness’

which in and of itself goes to the credibility of the witness.” He pointed to Dr. Evans’

deposition testimony that he has been testifying as an expert witness for thirty years, he has

served as an expert witness for the particular attorneys representing plaintiff in this case for

over fifteen years, he has reviewed between twelve and twenty cases per year for the past

twenty years, he presently has between ten and fifty open files, and he estimated that fifteen

to twenty percent of his income is derived from serving as an expert witness. Defendant

argued that the aforementioned documents related to Dr. Evans’ expert witness income were

discoverable, but in the event that the court determined that the request for information was

too broad, Defendant asked the court to modify the request and to require production of the

documents the court deemed appropriate.

Plaintiff filed a response in opposition to Defendant’s motion to compel production

of the documents, asserting that the motion should be denied because she, personally, did not

have control of the requested documents, and even if she did, the request should be quashed

as unduly burdensome. She contended that the requested information was “maximally

burdensome to Plaintiff because Dr. Evans will choose to retract his willingness to testify

rather than suffer the invasion of privacy inherent in the rummaging through his finances.”

Plaintiff argued that expert witnesses should not be required to produce such financial

information on a routine basis, and she claimed that there were no suspicious circumstances

or grounds for deeming Dr. Evans a professional witness or questioning his impartiality.

The trial court held a hearing on the motion to compel production of the documents

on March 2, 2012. Counsel for the Plaintiff insisted that the documents regarding Dr. Evans’

income were not in Plaintiff’s possession, custody, or control, and were not otherwise

accessible to her. Defense counsel argued that Plaintiff had the ability to obtain the

documents from her expert, Dr. Evans, but in the event that the court disagreed, Defendant

requested leave of court to seek commission of an out-of-state subpoena ducestecum to serve

on Dr. Evans in order to obtain the documents. The trial judge announced that she would

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deny the present motion to compel because the documents related to Dr. Evans’ income were

not in Plaintiff’s possession. However, the trial judge also expressed her opinion that the

requested information was “relevant and certainly discoverable.” The trial judge asked

Plaintiff’s counsel if he agreed that the requested information was relevant to show bias, to

which he responded, “No question. It’s relevant. It’s relevant for the jury to gauge to

determine what the – what’s at stake for this expert here in this case in order to determine

possible bias. It’s definitely discoverable.” However, Plaintiff’s counsel went on to argue

that the privacy interests of expert witnesses must be considered as well. He claimed that

other courts that have attempted to balance these interests have concluded that there must be

a threshold showing of suspicious circumstances regarding a particular expert before this

type of discovery is allowed. The trial judge remarked that an expert witness with a thirtyyear history and ten to fifty current cases “sort of has a red flag that says professional expert

to me,” and it raised doubts in her mind about whether Dr. Evans truly earns only fifteen to

twenty percent of his income from testifying. The judge also noted that there is a difference

between what is discoverable and what is admissible at trial. The trial judge indicated that

if an examination of Dr. Evans’ income information revealed that he actually earns more than

fifteen to twenty percent of his income from testifying as an expert, she would allow defense

counsel to question Dr. Evans about the discrepancy in his testimony at trial. However, she

would not allow the jury to hear Dr. Evans’ gross income. Ultimately, the trial judge directed

defense counsel to file a petition for commission of a subpoena duces tecum, and she

instructed Plaintiff’s counsel to file a response. The judge indicated that she would grant the

petition for the subpoena unless Plaintiff’s counsel could convince her that doing so was

improper. However, the judge opined that requesting income information from the past ten

years was too burdensome, and she suggested that the subpoena duces tecum should require

the production of information from the past five years instead. She also suggested that the

parties agree to the production of an affidavit from Dr. Evans’ accountant stating Dr. Evans

precise income figures rather than requiring the production of documents that would

potentially reveal investment income and other irrelevant information.

After the hearing, the trial court entered an order denying Defendant’s motion to

compel production of the documents because they were not in Plaintiff’s control. As

directed, Defendant filed a “Motion for Issuance of Commission for Issuance of Out-of-State

Subpoena Duces Tecum,” asking the court to issue a commission to the clerk of a circuit

court in Virginia, requesting issuance of a subpoena duces tecum to be served on Dr. Evans,

which would command him to produce the documents at issue and to appear at a

supplemental deposition. Defendant argued that the requested information was discoverable

and relevant to the issue of Dr. Evans’ bias and credibility, or, at the very least, reasonably

calculated to lead to the discovery of admissible evidence regarding Dr. Evans’ bias and

credibility. Along with his petition, Defendant submitted a LEXIS/NEXIS Expert Witness

Profile, which indicated that Dr. Evans had been disclosed as an expert witness in 179 cases

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in 23 different states, and in 96% of those cases, he had testified for the plaintiff. Thus,

Defendant argued that Dr. Evans was “a professional witness under any reasonable definition

of that term.”

In response, Plaintiff argued that the proposed subpoena would only be appropriate

for a professional witness. However, Plaintiff continued to insist that Dr. Evans was not a 1

professional witness but merely a “seasoned” expert witness. She claimed that routinely

allowing discovery of any expert witness’s income information “would be an unwarranted

invasion of the expert's privacy” and constitute an unduly burdensome discovery request.

At the June 1, 2012 hearing on the motion for issuance of a subpoena, the parties

agreed that an affidavit from Dr. Evans’ accountant would be an acceptable means of

disclosing Dr. Evans’ income information. However, they disagreed as to the scope of

information that should be produced in that affidavit. Plaintiff argued that the affidavit

should be limited to a statement of the precise percentage of Dr. Evans’ income attributable

to serving as an expert witness during the past five years, with no mention of any exact

income figures. Defendant argued that the affidavit should contain the exact amount of Dr.

Evans’ gross income and his expert witness income for the past five years, with attached

1099s confirming his expert witness income. The trial judge agreed with the Defendant that

he was entitled to discover the precise figures with regard to Dr. Evans’ gross income and

his income from serving as an expert witness, which would not only reveal the amount of

money Dr. Evans had earned from testifying but also allow Defendant to compute the

percentage of his income attributable to serving as an expert, in order to confirm whether Dr.

Evans’ deposition testimony was accurate. Noting the upcoming trial date, just over two

months from the date of the hearing, the trial judge ruled that Dr. Evans had to produce the

affidavit from his accountant within two weeks, stating his total amount of income and his

income from serving as an expert witness for the past five years. The trial judge ruled that

Dr. Evans did not have to produce his 1099s to confirm the information. Prior to the

conclusion of the hearing, Plaintiff’s counsel expressed “serious doubts” that Dr. Evans

would testify under those conditions, as he had already expressed to counsel that he was

unwilling to disclose either the amount of income he earns from testifying as an expert or his

gross income. He was only willing to have his accountant testify in terms of percentages.

Nonetheless, the trial judge announced that her ruling would be applicable to the experts

Plaintiff again conceded that it would be appropriate to seek such information from a professional

1

witness, recognizing in her memorandum:

An expert who makes his living through forensic activity has more at stake in the particular

case than his fee from that case. His livelihood depends on his efficacy as a witness. 

Accordingly, the details of this bias are relevant to the jury and the expert who has chosen

this livelihood has accepted this cost. 

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serving for both parties, in the event that Plaintiff’s counsel chose to pursue obtaining income

information from Defendant’s expert witnesses. She also said that the affidavit from the

accountant was not to be filed with the court; instead, it would be provided by Plaintiff’s

counsel directly to defense counsel. An order to this effect was entered on June 12, 2012,

requiring Plaintiff’s counsel to produce to Defendant’s counsel, within two weeks, an

affidavit from Dr. Evans’ accountant setting forth his income from testifying or participating

in lawsuits for the past five years, in addition to his total gross income from the treatment and

care of patients during those years. The accountant’s charges for preparation of the affidavit

were to be paid by Defendant. The affidavit itself would be designated “confidential,” it

would be provided to opposing counsel for use in this litigation only, and it could not be

disclosed to anyone other than defense counsel, the trial judge, and their staff who were

working on the case. The order stated that the information contained in the affidavit “shall

be used solely for the purpose of verifying or impeaching the expert's testimony within the

context of this litigation and may be used at trial only if permitted to do so by subsequent

order of the Court.” The order also stated that Defendant must produce affidavits of the same

type if Plaintiff chose to pursue such information from Defendant’s experts.

Two weeks came and went, and Plaintiff did not produce the court-ordered affidavit.

On June 28, 2012, Defendant filed a Rule 37.02 motion for sanctions based upon Plaintiff’s

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failure to comply with the court order. Defendant sought exclusion of Dr. Evans as a witness

in this case due to his failure to comply with the June 12 court order. Defendant also sought

dismissal of Plaintiff’s claim, upon exclusion of Dr. Evans, due to the lack of expert proof

to support Plaintiff’s claims. The motion noted that the trial date was still set for August 20,

3

2012, and that Defendant had first requested the information on January 15, 2010, in the

 Rule 37.02 provides, in pertinent part: 2

If a deponent [or] party . . . fails to obey an order to provide or permit discovery . . . 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:

. . . 

(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 a

judgment by default against the disobedient party;

. . . 

Tenn. R. Civ. P. 37.02.

Defendant noted that the original and supplemental deadlines for plaintiff to disclose experts, as 3

set out in various scheduling orders, had expired, and plaintiff had disclosed no experts other than Dr. Evans.

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notice of deposition.

The trial judge ordered the parties to appear before the court to address the matter on

July 2, 2012, but we do not have a transcript of this hearing. According to later filings

discussing the July 2 hearing, Plaintiff’s counsel apparently advised the court that Dr. Evans

would not comply with the June 12 order and orally requested modification of the order. It

appears that the trial judge instructed Plaintiff’s counsel to contact Dr. Evans and determine

if he would be willing to provide his income information directly to the trial judge, for in

camera review, as opposed to providing the information to defense counsel as was previously

ordered. The trial judge ordered the parties to return to court the following day, July 3, after

Plaintiff’s counsel had an opportunity to consult with Dr. Evans.

The parties were back before the court on July 3, 2012, as instructed. Plaintiff’s

counsel submitted emails from Dr. Evans, in which he expressed his willingness to provide

the affidavit directly to the court for in camera review, with the understanding that the data

was “for her eyes only.” The trial judge then ruled that Dr. Evans could provide the courtordered affidavit directly to her, via her own personal email address, for her in camera

review. The trial judge announced that she would review the income information and

calculate the percentage of Dr. Evans’ income derived from serving as an expert witness, and

if it corresponded with Dr. Evans’ previous testimony that he earns fifteen to twenty percent

of his income from such activity, then the trial judge would retain the affidavit, and it would

not be produced to defense counsel. However, in the event that the affidavit revealed that

Dr. Evans actually earns more than twenty percent of his income from testifying, the trial

judge would provide the affidavit to defense counsel unless Dr. Evans elected to withdraw

from testifying, in which case the information would not be disclosed. After this ruling

regarding the affidavit was announced, counsel for Defendant argued that even if the

affidavit confirmed that Dr. Evans earns between fifteen and twenty percent of his total

income from serving as an expert witness, the defense should nevertheless be permitted to

learn the total amount of Dr. Evans’ annual expert witness income if he is considered to be

a professional witness. The judge stated that defense counsel would be permitted to ask Dr.

Evans about his annual expert witness income on the stand at trial. She said she would not

permit defense counsel to ask questions about the previous five years while Dr. Evans was

on the stand, but she would allow counsel to ask Dr. Evans how much he earned from

testifying in 2010 or 2011. Plaintiff’s counsel stated unequivocally that if Dr. Evans was

asked such questions, about exact figures as opposed to percentages, he would refuse to

answer. The trial judge said she was “trying to compromise so that we can go forward on

this case” and “keep the Plaintiff’s expert in there,” but, she said she was not going to

prevent defense counsel from asking Dr. Evans how much money he makes from testifying

as an expert. She also cautioned Plaintiff’s counsel, “Mr. Thomas, this is your last chance.

If he wants to agree to this and you want to keep him as an expert, then I'll give him my email

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address. He can give that to his accountant and the accountant can email the letter to me.”

After the hearing, the trial court entered an order stating that “Plaintiff's production of the

affidavit described in the June 12, 2012 order will be deemed satisfied if the Court receives

such affidavit (containing the ordered information for each of the years 2006, 2007, 2008,

2009, and 2010) for its in camera review by July 12, 2012.” The order also incorporated the

trial court’s other oral rulings made during the hearing.

Shortly after the hearing, Defendant filed a motion in limine for an order requiring Dr.

Evans to testify as to the amount of his expert witness income for the year 2010 when

questioned about such information, and for sanctions in the event that he refused to answer

such questions. Plaintiff filed a motion for continuance of the August 20 trial date, citing the

ongoing dispute regarding Dr. Evans’ income information and his inability to schedule Dr.

Evans’ deposition. On July 13, 2012, the trial court granted the motion and continued the

trial date from August 20, 2012, until May 28, 2013.

The deadline for Dr. Evans to send the affidavit to the trial judge expired on July 12,

2012. On July 20, 2012, Defendant filed a second Rule 37.02 motion for sanctions, due to

the failure of Plaintiff and Dr. Evans to comply with the court’s two previous orders

requiring production of the affidavit. Defendant noted that Plaintiff failed to comply with

the June 12 order requiring production of the affidavit to defense counsel within two weeks,

and despite the court’s grant of a “retroactive extension” of the deadline in its July 9 order,

allowing production directly to the court by July 12, the affidavit still had not been produced.

The motion again noted that Defendant first sought the income information in its January

15, 2010 notice of deposition. Defendant argued that “Plaintiff ha[d] been granted at least

‘two bites at the apple’ and should not be allowed any more bites.” Defendant again asked

that the court exclude Dr. Evans as a witness and dismiss Plaintiff’s claim for lack of expert

proof.

Plaintiff filed a response, basically claiming that Dr. Evans was ready and willing to

provide the court-ordered affidavit if the trial court would simply enter an order containing

sufficient protections regarding Dr. Evans’ privacy interests. She claimed that the court’s

prior order allowed for in camera review but did not sufficiently spell out the privacy

protections, instead incorporating by reference the transcript of the trial court’s oral rulings

at the hearing. Plaintiff suggested that “this entire impasse could be remedied by simply

modifying the [July 9] order to explicitly provide for Dr. Evans' right to recuse himself in the

event that the Court's in camera review results in the conclusion that the affidavit must be

provided to Defendant before Dr. Evans testifies, and the guarantee that in such

circumstances, the affidavit will be returned to him without further dissemination.”

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At the hearing on the second motion for sanctions, on September 17, 2012, the trial

judge said, “I don't know how I could be anymore plain to this doctor.” She asked the

attorneys to confirm her recollection that she had held four hearings on the matter and said,

“I can honestly say, and I will say it in front of [defense counsel] Mr. McLean, I have done

everything humanly possible to preserve this expert for you, Mr. Thomas, and he does not

want to cooperate.” The trial judge said that she had “bent over backwards” and “was trying

to compromise” and “accommodate” Dr. Evans. She reminded Plaintiff’s counsel that he had

assured her at the end of each previous hearing that the affidavit would be sent, and each time

it was not. The trial judge ultimately ruled that Dr. Evans would not be allowed to testify in

this case due to his refusal to cooperate. That same day, the trial court entered an order

granting Defendant’s second Rule 37.02 motion for sanctions and excluding Dr. Evans as a

witness. However, the trial court declined to dismiss Plaintiff’s case and instead allowed

Plaintiff ninety days to disclose a replacement expert.

On October 17, 2012, Plaintiff filed a motion to amend the trial court’s order,

claiming that it inaccurately stated that Dr. Evans had refused to produce the court-ordered

affidavit. Plaintiff claimed that Dr. Evans was simply “waiting to provide the affidavit until

a flaw that occurred in the 7/9/2012 order . . . is cured.” Plaintiff claimed that Dr. Evans had

been ready and willing to provide the affidavit to the court for in camera review, with the

stipulation that if the court's in camera review resulted in a determination that his forensic

income exceeded twenty percent of his gross income, he could then choose not to testify, and

the affidavit would not be provided to Defendant. Plaintiff claimed that the trial court’s

order incorporating its oral ruling was “confusing” to Dr. Evans and that the “situation could

have been avoided if Defendant had taken pains to present an order which explicitly

addressed” the issue rather than incorporating the oral ruling. In response, Defendant argued

that the court had already provided sufficient protections of Dr. Evans’ privacy in its June

12 and July 9 orders.

At a hearing on October 26, 2012, the trial judge said she had gone over the issue with

the parties “ad nauseum,” but she ultimately agreed to enter an amended order with the

express statement Dr. Evans requested. However, defense counsel pointed out that aside

from the issue with production of the affidavit, the trial judge had already indicated that she

would permit defense counsel to ask Dr. Evans at trial about his annual income from serving

as an expert witness, and Plaintiff’s counsel had unequivocally stated that Dr. Evans would

refuse to answer any such questions. The trial judge reaffirmed her position on that issue,

stating, “Let me be clear. I think when someone sits on the stand and holds himself out as an

expert, the other party is entitled, both ways, to ask them how much they made in the year of

the event or in 2000-whatever, 2012, whatever, how much they made from testifying as an

expert witness.” However, she gave the parties the opportunity to submit supplemental

memoranda regarding that issue prior to entering an order to that effect. After considering

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the supplemental authority submitted by both parties, the trial court entered an order setting

aside the previous order that excluded Dr. Evans as a witness. The trial court entered an

amended order that stated, in relevant part:

1. Plaintiff’s production of the affidavit of Dr. Evans’ accountant

described in the June 12, 2012 order will be deemed satisfied if the

Court receives such affidavit (containing the ordered information for

each of the years 2006, 2007, 2008, 2009, and 2010) for its in camera

review by December 15, 2012 to determine if Dr. Evans' income from

medico-legal services exceeds 15-20% of his gross income.

2. If the Court determines from its in camera review that Dr. Evans'

income from medicolegal services exceeds 15-20% of his gross

income, the affidavit will be produced to defense counsel unless Dr.

Evans notifies the Court that he will not testify in this cause.

3. If Dr. Evans notifies the Court that he will not testify in this cause, the

Court will return the affidavit to Dr. Evans without further

dissemination of the affidavit or any information contained therein.

4. Defendant will be permitted to ask Dr. Evans at trial what was the

dollar amount of his expert witness income for a prior year, such as the

year 2010, among others[.]

On December 14, 2012, Dr. Evans finally emailed the court-ordered affidavit to the trial

judge. However, his email contained the following two “notices” for the trial judge to read

prior to opening the attachment:

NOTICE #1: In the event you determine that I will not be permitted to testify

in this case unless the attached financial information is provided to defense

counsel, I HEREBY NOTIFY YOU NOW that I will not testify in this cause.

(It is my understanding that this 'NOTICE" ensures that under no

circumstances will the attached report or any of its information be

disseminated beyond you. If this is incorrect, PLEASE DO NOT OPEN THE

ATTACHMENT.)

NOTICE #2: Paragraph 4 of the Order permits Defendant to ask me at trial

what is the dollar amount of my annual forensic income. I definitely will

absolutely and politely refuse to answer such questions. If this refusal will

result in my disqualification or the exclusion of my testimony, PLEASE DO

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NOT OPEN THE ATTACHMENT. (Back in July, I agreed to submit my

accountant's affidavit for in camera inspection in order to fulfill my

commitment to testify in this case. However, if I am destined to be disqualified

anyway, there is no purpose in entrusting the attached very confidential

information to the Court.)

On December 17, 2012, Plaintiff filed a motion for interlocutory appeal, seeking review of

the trial court’s decision to allow Defendant to inquire at trial about “the dollar amount” of

Dr. Evans’ annual forensic income. On January 7, 2013, the trial judge wrote a letter to the

attorneys in this case stating that she did not open the attachment to Dr. Evans’ email because

of the “notices” or conditions he imposed. The judge interpreted the first notice to say that

“under no circumstances” could the affidavit be provided to defense counsel, and the judge

indicated that this was not the intent of her prior rulings. In addition, the judge noted that the

second notice also prevented her from opening the attachment if it was her intention to allow

the Defendant to inquire into Dr. Evans’ forensic income at trial. She reiterated that she had

“stated all along that the Defendant would be allowed to inquire of the Plaintiff as to the

amount of the total forensic income, at least around the time (years) close to the case.”

Therefore, the judge concluded thatshe was prohibited from opening the attachment pursuant

to the first and second “notices” imposed by Dr. Evans.

On January 10, 2013, Defendant filed a third Rule 37.02 motion for sanctions based

upon the refusal of Plaintiff and Dr. Evans to comply with the court’s orders. Defendant

asserted that it was “as ‘plain as the fly in the buttermilk’ that Dr. Evans has not and will not

comply with the rulings of the Court,” due to his imposition of restrictions in his email to the

trial judge, and his unambiguous declaration that he did not intend to answer questions asked

of him at trial regarding his income, despite the trial court’s ruling that such questioning

would be permitted. Defendant once again asked the court to exclude Dr. Evans as a witness

and dismiss Plaintiff’s claim, or in the alternative, require identification of a replacement

expert witness within sixty days. Defendant cited the “torturous number of motions and

hearings in this matter” and “untold amounts of time and effort” in support of his argument

that Plaintiff should not be allowed any more “bites at the apple.” In response, Plaintiff

argued that Dr. Evans’ “notices” were not inconsistent with the court’s prior rulings.

Following a hearing, the trial court entered an order denying Defendant’s third Rule

37.02 motion for sanctions “at this time,” but it granted Plaintiff’s motion for interlocutory

appeal. This Court denied Plaintiff’s application for interlocutory appeal on February 22,

2013, and the Tennessee Supreme Court denied Plaintiff’s application for permission to

appeal to that Court as well.

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On March 12, 2013, Defendant filed a motion to amend the trial court’s order denying

his third motion for sanctions, or in the alternative, a fourth Rule 37.02 motion for sanctions.

Defendant cited the “multiple failures to comply with the Court’s orders” by Plaintiff and by

Dr. Evans, and once again asked the court to exclude Dr. Evans as a witness and dismiss the

case. On April 15, 2013, the trial court continued the May 2013 trial date until January 27,

2014.

Plaintiff filed a response to Defendant’s motion for sanctions, pointing out that Dr.

Evans had emailed his financial information to the court, but Plaintiff “conced[ed] that her

expert, Dr. Martin Evans, will definitely not answer the questions that paragraph 4 of the

Court's order of 11/15/2012 permit[ted] Defendant to ask.” At a hearing on June 21, 2013,

the trial judge finally advised Plaintiff that “it’s time to find another expert.” Plaintiff’s

counsel said that forty-five days would be sufficient time for him to do so, but the trial judge

generously gave him sixty days. She also reminded Plaintiff’s counsel of the option of taking

a nonsuit. On July 2, 2013, the trial court entered an order excluding Dr. Evans as a witness

in this case and requiring Plaintiff to identify a replacement expert within sixty days of the

hearing. The order stated that if Plaintiff had not identified another expert witness by August

20, 2013, or taken a nonsuit, the case would be dismissed.

On September 4, 2013, the trial court entered an order of dismissal, noting that

Plaintiff had not identified a replacement expert or nonsuited her claim. Plaintiff timely filed

a notice of appeal.

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II. ISSUES PRESENTED

This issues before us on appeal, as we perceive them, are:

1. Whether the trial court abused its discretion in ruling that Dr. Evans was required to

disclose his annual income information during discovery and during crossexamination at trial; and

2. Whether the trial court abused its discretion in granting Defendant’s motion to

exclude Dr. Evans for failure to comply with the trial court’s orders.

Discerning no error, we affirm the decision of the circuit court.

Dr. Herrera died subsequent to the filing of the notice of appeal. On February 7, 2014, this Court

4

ordered that J. Martin Regan, Jr., in his capacity as the Personal Representative of the Estate of Fernando

A. Herrera, be substituted in the place of Fernando A. Herrera, M.D. 

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III. STANDARD OF REVIEW

We review each of the trial court’s rulings at issue under an abuse of discretion

standard. “It is well settled that decisions with regard to pre-trial discovery matters rest

within the sound discretion of the trial court” and “will not be reversed on appeal unless a

clear abuse of discretion is demonstrated.” Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn.

1992) (citing Paine v. Ramsey, 591 S.W.2d 434, 436 (Tenn. 1979)). “We review a trial

court's decision regarding the admissibility of evidence, including a ruling on a motion in

limine, under an abuse of discretion standard.” Singh v. Larry Fowler Trucking, Inc., 390

S.W.3d 280, 284 (Tenn. Ct. App. 2012). Likewise, the “propriety, scope, manner, and

control” of cross-examination of witnesses is within the discretion of the trial court and will

not be interfered with in the absence of an abuse of discretion. State v. Echols, 382 S.W.3d

266, 285 (Tenn. 2012); State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992). In addition, “‘[a]

trial judge's exclusion of expert witness testimony is subject to an abuse of discretion review

by this Court.’” Mayo v. Shine, 392 S.W.3d 61, 70-71 (Tenn. Ct. App. 2012) (quoting

Buckner v. Hassell, 44 S.W.3d 78, 83 (Tenn. Ct. App. 2000)).

“An abuse of discretion occurs when the trial court causes an injustice by applying an

incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous

assessment of the evidence, or relies on reasoning that causes an injustice.” Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing Wright ex rel. Wright v. Wright, 337

S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).

The abuse of discretion standard “does not permit an appellate court to substitute its

judgment for that of the trial court, but ‘reflects an awareness that the decision being

reviewed involved a choice among several acceptable alternatives, and thus envisions a less

rigorous review of the lower court's decision and a decreased likelihood that the decision will

be reversed on appeal.’” Id. (quoting Henderson, 318 S.W.3d at 335). Consequently, when

reviewing a discretionary decision by the trial court, “the appellate court should presume that

the decision is correct and should review the evidence in the light most favorable to the

decision.” Id. at 105-06 (citing Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335).

Still, discretionary choices “‘are not left to a court's inclination, but to its judgment; and its

judgment is to be guided by sound legal principles.’” State v. Lewis, 235 S.W.3d 136, 141

(Tenn. 2007) (quoting Martha S. Davis, Standards of Review: Judicial Review of

Discretionary Decisionmaking, 2 J. App. Prac. & Process 47, 58 (2000)). An abuse of

discretion will be found “when the trial court has gone outside the framework of legal

standards or statutory limitations, or when it fails to properly consider the factors on that

issue given by the higher courts to guide the discretionary determination.” Id.

-13-
IV. DISCUSSION

“Discovery of expert financial and personal history is an emerging area of the law[.]”

Walter R. Lancaster & Damian D. Capozzola, Expert Witnessesin Civil Trials § 8:23 (2013).

“Medical malpractice cases arguably have the most developed case law with respect to

discovery of financial information.” Id. However, “the courts have not been uniform with

respect to the degree of discovery that they will permit.” Id.

One of the most frequently cited cases on the subject is Wrobleski v. de Lara, 353 Md.

509, 727 A.2d 930 (1999), which contains an excellent discussion of the role of expert

witnesses and the reasons why many parties are now seeking to expose any potential bias of

an expert through the use of financial information:

Although expert witnesses play a vital, indeed a necessary, role in the

trial of certain cases, the law, both here and in England, has long viewed their

procurement by, and appearance on behalf of, parties to the litigation with

some misgiving. As long ago as 1858, the Supreme Court noted that “opposite

opinions of persons professing to be experts, may be obtained to any amount.”

Winans v. New York & Erie Railroad, 62 U.S. (21 How.) 88, 101, 16 L.Ed. 68,

71 (1858). In his 1864 treatise on Evidence, Judge Taylor observed:

“Perhaps the testimony which least deserves credit with a jury

isthat of skilled witnesses. These gentlemen are usually required

to speak, not to facts, but to opinions; and when this is the case,

it is often quite surprising to see with what facility, and to what

an extent, their views can be made to correspond with the

wishes or the interests of the parties who call them.”

John P. Taylor, A Treatise on the Law of Evidence as Administered in England

and Ireland, 4th ed. (1864), § 50 at 72 (emphasis in original).

Writing in 1893, Professor Charles Himes quoted Taylor's statement

and added his own view that expert witnesses “are selected on account of their

ability to express a favorable opinion, which, there is great reason to believe,

is in many instances the result alone of employment and the bias growing out

of it.” 135 J. Franklin Inst. at 409 (1893). . . .

These concerns have certainly not dissipated over the years; if anything,

they have increased. Wigmore noted the “distrust of the expert witness, as one

whose testimony is shaped by his bias for the party calling him.” 2 John H.

-14-
Wigmore, Evidence in Trials at Common Law § 563, at 761 (Chadbourn

rev.1979) (emphasis in original). In proposing Federal Rule of Evidence 706,

which codified the authority of the court to appoint its own expert witness, the

Advisory Committee commented that “[t]he practice of shopping for experts,

the venality of some experts, and the reluctance of many experts to involve

themselves in litigation, have been matters of deep concern.” Professor

Michael Graham, of the University of Illinois Law School, has observed:

“The professional expert witness advocating the position of one

side or the other has become a fact of life in the litigation

process. Practicing lawyers can quickly and easily locate an

expert witness to advocate nearly anything they desire. In each

part of the country, if you need an expert medical witness to

state that plaintiff suffered a whiplash injury, call expert X; if

you need a medical expert to dispute that fact, call expert Y. The

use of the expert witness has become so prevalent that certain

expert witnesses now derive a significant portion of their total

income from litigated matters.”

Michael H. Graham, Impeaching the Professional Expert Witness by a

Showing of Financial Interest, 53 Ind. L. Jour. 35 (1977). Experts of all kinds

regularly advertise their services to lawyers in the legal periodicals and

newspapers. See, for example, any recent issue of the American Bar

Association Journal or Trial, the Journal of the Association of Trial Lawyers

of America.

Wrobleski, 353 Md. at 515-16, 727 A.2d at 932-33 (footnote omitted). Right or wrong, “it

is widely believed that [expert witnesses] may be expected to express opinions that favor the

party who engaged them and who pays their fees.” Metropolitan Property & Cas. Ins. Co.

v. Overstreet, 103 S.W.3d 31, 43-44 (Ky. 2003). As the old saying goes, “Whose bread I eat,

his song I sing.”

Tennessee courts have recognized some similar concerns. See, e.g., State v. Sparks,

891 S.W.2d 607, 616 (Tenn. 1995) (quoting Edwards v. State, 540 S.W.2d 641, 647 (Tenn.

1976)) (“‘In this state, it is settled beyond question that the weight and value of expert

testimony is for the jury and must be received with caution. This applies to the expert

opinions of medical men.’”); Crane Enamel Co. v. Jamison, 217 S.W.2d 945, 949 (Tenn.

1948) (“it is settled law that the expert opinions of medical men are to be received with

caution”); Bateman v. Ryder, 64 S.W. 48, 49 (Tenn. 1901) (finding no error in the trial

court’s charge to the jury that “the testimony of experts . . . if paid for, should be received

-15-
with great caution and carefully weighed by the jury”); Wilcox v. State, 28 S.W. 312, 314

(Tenn. 1894) (“expert testimony is to be received with caution”); see also Douglas R.

Richmond, Expert Witness Conflicts & Compensation, 67 Tenn. L. Rev. 909, 934 (2000)

(“Trial lawyers and courts alike are concerned about testimony by ‘professional experts.’”)

There is no doubt that expert testimony can be “powerful evidence” and can have “a

compelling effect with a jury.” Wrobleski, 353 Md. at 517, 727 A.2d at 933. As a result, the

fact-finder should “scrutinize” the testimony of experts, looking “to the circumstances that

brought them in as witnesses; to the fact of compensation, and to what extent, if any, under

all the circumstances, their credibility might be affected thereby.” Persons v. State, 16 S.W.

726, 727 (Tenn. 1891).

“Lawyers and judges regard cross-examination as an essential safeguard of the

accuracy and completeness of testimony.” Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708

(Tenn. Ct. App. 1999). The purpose of cross-examination is “to adduce from a witness any

information that may clarify, qualify, or undercut a witness's testimony on direct

examination, impair its effectiveness, or affect the inferences the trier-of-fact might draw.”

Id. at 708-09 (citing Roberto Aron, et al, Cross–Examination of Witnesses § 2.06 (1989)).

In recent years, “the difficulty and paramount importance of thorough, comprehensive

cross-examination of experts have increased markedly.” Trower v. Jones, 121 Ill.2d 211,

215, 520 N.E.2d 297, 299 (Ill. 1988). Expert “locator” services “can help the litigants of

either side of most any case find an expert who will help advocate the desired position.” Id.

at 216, 520 N.E.2d at 299. In addition, “many experts today spend so much of their time

testifying throughout the country that they might be deemed not only experts in their field but

also experts in the art of being a persuasive witness and in the art of handling crossexamination.” Id. Substantive cross-examination of a witness with extensive litigation

experience is often very difficult, as the witness is likely to be “proficient in the art of expert

witness advocacy” and “at ease with the material and capable of making fine line distinctions

between the current situation and those raised in the questions of examining counsel.”

Wrobleski, 353 Md. at 518, 727 A.2d at 934 (citing Graham, 53 Ind. L. J. at 40-41). The jury

may view “extensive or sharp questioning about the details as unnecessary quibbling.” Id.

“Other than trotting out one's own experts, exposure of financial interest bias may

sometimes be the most effective challenge that can be made to an expert's testimony[.]”

Wrobleski, 353 Md. at 518, 727 A.2d at 934. “Exposure of potential bias based on

self-interest is often attempted through cross-examination directed at how much the witness

is being paid for his or her services in the case at bar, the frequency with which the witness

testifies in similar kinds of cases, whether the witness customarily appears for a particular

type of party (usually plaintiff or defendant), whether the witness is frequently employed by

a particular party or attorney and, if so, how much income the witness derives from that

-16-
employment, and, as in this case, the amount or the percentage of the witness’s total income

that is derived from lawyer referrals or testimony in lawsuits.” Id. at 517, 727 A.2d at 933-

34. This type of financial discovery is aimed at exposing “the professional ‘hired gun,’ who

earns a significant portion of his or her livelihood from testifying and . . . may have a general

economic interest in producing favorable results for the employer of the moment.” Id. at

517-18, 727 A.2d at 934. As one author put it,

That an expert in a particular field may be in effect a ‘professional witness' in

lawsuits, rather than being more or less exclusively a practitioner whose

employment in a lawsuit as a witness is merely incidental to his or her

profession, is a matter which is likely to bear on the credibility of that expert,

since a significant portion of the expert's livelihood may thus depend on his or

her desirability as a favorable and convincing witness, thus possibly leading

to a temptation for the witness to color findings and testimony to suit the needs

of the proponent party, rather than to evaluate and present the subject matter

of the testimony with complete impartiality.

Russell G. Donaldson, Annotation, Propriety of Cross-examining Expert Witness Regarding

His Status as “Professional Witness,” 39 A.L.R.4th 742, 746 (1985).

It is well-settled in Tennessee that “[a] finder of fact may consider an expert’s bias or

financial interest in the litigation when determining the weight to be given to his or her

opinions.” GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 547 (Tenn. Ct. App. 2005)

(quoting Street v. Levy, L.P., No. M2002-02170-COA-R3-CV, 2003 WL 21805302, at *4 n.

5 (Tenn. Ct. App. Aug. 7, 2003)). For example, “a finder of fact may consider the steady

stream of referrals by a lawyer to a medical expert in determining how much weight should

be given to the medical expert's testimony.” Street, 2003 WL 21805302, at *4 n.5 (citing

Noel v. Jones, 532 N.E.2d 1050, 1054 (Ill. App. Ct. 1988)). However, Tennessee appellate

courts have not had occasion to consider the precise issue before us, namely, whether a trial

court may require an expert to disclose the precise amount of his or her income earned from

testifying generally.

Several courts in other jurisdictions have considered “the issue of whether a trial court

may compel an expert witness to produce potentially relevant income-stream financial

records at the request of an opposing party.” Falik v. Hornage, 413 Md. 163, 183, 991 A.2d

1234, 1246 (2010). However, the courts that have considered the propriety of discovering

such financial information from an expert witness, and cross-examining him or her about it,

have reached a wide range of results. Some courts have refused to require expert witnesses

to disclose the same type of information sought from Dr. Evans, while others have required

expert witnessesto disclose much more income information than that requested in the present

-17-
case.

5

One of the states that has somewhat restricted opposing parties’ access to such

information is Florida. The Supreme Court of Florida has set forth broad guidelines

declaring that an expert may be asked to estimate the portion of his or her professional time

or work devoted to service as an expert, but “[t]he expert need not answer how much money

he or she earns as an expert or how much the expert’s total annual income is.” Elkins v.

Syken, 672 So.2d 517, 521 (Fla. 1996). The Supreme Court of Oregon has also ruled that

6

an expert witness did not have to disclose the precise amount of his annual compensation

during cross-examination. State By and Through State Hwy. Comm’n v. Superbilt Mfg.

Co., 204 Or. 393, 407, 281 P.2d 707, 713 (Or. 1955) (holding that it was proper to ask an

appraiser how many times he had testified for the State and how much he was being paid in

the particular case, but that it was error to allow questioning as to how much money he had

received as an appraiser for the State in prior unrelated cases between 1946 and 1953).

Although some courts limit the amount of income information that can be discovered,

the courts generally agree that an expert’s income information is relevant to show potential

bias. See, e.g., Behler v. Hanlon, 199 F.R.D. 553, 561 (D. Md. 2001) (“[N]o intellectually

honest argument can be made that the information sought by plaintiff regarding [the expert's]

activities as a defense expert witness is not relevant to bias/prejudice impeachment, and

According to Russell G. Donaldson, Annotation, Propriety of Cross-examining Expert Witness

5

Regarding His Status as "Professional Witness", 39 A.L.R.4th 742, 746 (1985):

Although some early cases appear to have taken a more or less categorical view as

to the propriety of such questioning generally by stating that certain specific questions in

areas devoted to the elicitation of an expert's “professional witness” status were simply not

permissible, as with most issues concerning the propriety of cross-examination, the question

whether to permit cross-examination devoted to eliciting such status is today regarded as a

matter largely within the discretion of the trial court, and is limited largely by the degree to

which the court finds the particular questions or line of questioning involved relevant. For

this reason, cases dealing with the same subject matter in the same jurisdiction have often

had opposite results with regard to matters actually permitted to be brought out upon such

cross-examination, the initial decisions of the trial courts being generally upheld on appeal

unless seen as involving matters of such importance as to constitute abuse of the very wide

discretion of the trial judge in such matters. 

We note that there are many federal district court cases addressing the issues before us, and those courts are

divided on the issues as well, reaching a wide variety of conclusions. For that reason, we have generally

limited our discussion in this case to the decisions of other State courts.

 However, the Florida Supreme Court ruled that the expert may be ordered to produce “business

6

records, files, and 1099s . . . upon the most unusual or compelling circumstance.” Elkins, 672 So.2d at 521.

-18-
therefore within the scope of discovery[.]”); Cooper v. Schoffstall, 588 Pa. 505, 522, 905

A.2d 482, 494 (2006) (“[E]ven those jurisdictions that have substantially limited discovery

of financial information from expert witnesses, generally recognize the relevance of the

information[.]”). The courts that limit financial discovery from experts often do so because

of privacy concerns and the potential chilling effect of such discovery on would-be experts.

See, e.g., American Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 513, 217 P.3d 1212,

1218 n.8 (Ariz. Ct. App. 2009) (“experts will be reluctant to participate in the litigation

process if they believe wholesale rummaging through their professional and financial affairs

will ensue”); Elkins, 672 So.2d at 522 (“[A]n overly burdensome, expensive discovery

process will cause many qualified experts ... to refrain from participating in the process,

particularly if they have the perception that the process could invade their personal privacy.

To adopt petitioner's arguments could have a chilling effect on the ability to obtain doctors

willing to testify[.]”).

Despite these concerns, a majority of the courts that have considered the issue have

allowed expert witnesses to be questioned about the amount of income they earn from their

forensic activities. Wrobleski, 353 Md. at 519, 727 A.2d at 935. See, e.g., Collins v. Wayne

7

Corp., 621 F.2d 777, 784 (5th Cir. (Tex.) 1980) (finding no error in questioning an expert

as to how much he earned from testifying during 1974, stating, “cross-examination of an

expert about fees earned in prior cases is not improper”); Trower, 121 Ill.2d at 218, 520

N.E.2d at 300 (holding that it was permissible to inquire how much the expert witness was

earning annually from services relating to rendering expert testimony); Simon v. Clark, 660

N.E.2d 634, 636-37 (Ind. Ct. App. 1996) (holding that a trial court erred in refusing to allow

questioning as to the amount of compensation that an expert witness received in the past year

for performing evaluations for defense attorneys, but that such error was harmless in light

of other evidence presented on bias); Jones v. Bordman, 243 Kan. 444, 455, 759 P.2d 953,

962 (1988) (“It is proper to ask what percent of a physician's practice involves examining,

diagnosing, and/or testifying for defendants, and what he is paid for such work[.]”);

Metropolitan Property & Cas.Ins. Co. v. Overstreet, 103 S.W.3d 31, 44 (Ky. 2003) (holding

that an expert physician’s annual income from court-ordered medical examinations is

discoverable, as well as the percentage that such examinations constitute of the expert’s

general practice); Wrobleski, 353 Md. at 526, 727 A.2d at 938 (allowing an inquiry “both

Some jurisdictions “require litigants to first pursue less intrusive discovery before resorting to 7

broad demands for information[.]” American Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 513, 217 P.3d

1212, 1218 (Ariz. Ct. App. 2009); see, e.g., Allen v. Superior Court of Contra Costa County, 151

Cal.App.3d 447, 198 Cal.Rptr. 737, 741 (1984) (holding that the trial court abused its discretion when it

required document production without a showing that a less intrusive method of discovery would not

suffice); Primm v. Isaac, 127 S.W.3d 630, 638 (Ky. 2004) (holding that “the least burdensome route of

discovery was simply not followed” but that parties can seek leave of court to take additional discovery if

they can demonstrate that additional information is necessary to undertake reasonable bias impeachment).

-19-
into the amount of income earned in the recent past from services as an expert witness and

into the approximate portion of the witness's total income derived from such services”); State

ex rel. Lichtor v. Clark, 845 S.W.2d 55, 65 (Mo. Ct. App. 1992) (“the trial judge in this case

has discretion to allow testimony as to the amount of annual income derived from

employment as an expert witness”); Cooper v. Schoffstall, 588 Pa. 505, 508-09, 905 A.2d

482, 485 (2006) (allowing discovery of an expert’s “approximate amount of income each

year, for up to the past three years, garnered from the performance of [litigation-related

activities]”).

8

In explaining its decision to allow inquiry into how much an expert witness was

earning annually from serving as an expert, the Illinois Supreme Court explained that “the

financial advantage which accrues to an expert witness in a particular case can extend beyond

the remuneration he receives for testifying in that case.” Trower, 121 Ill.2d at 218, 520

N.E.2d at 300. “A favorable verdict may well help him establish a ‘track record’ which, to

a professional witness, can be all-important in determining not only the frequency with which

he is asked to testify but also the price which he can demand for such testimony.” Id. The

Supreme Court of Kentucky said, “It is undeniable that an expert's tendency to slant his

testimony may be affected not just by how much he is being compensated on one particular

occasion, but also by how much of his annual income is derived from similar testimony.”

Metropolitan Property & Cas. Ins. Co., 103 S.W.3d at 44. The Court observed that a jury

could reasonably believe that a physician who derives a substantial percentage of his annual

The Supreme Court of Pennsylvania, relying in part on Wrobleski, held that “the appropriate, 8

threshold showing to establish cause forsupplemental discovery related to potential favoritismof a non-party

expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have

entered the professional witness category. In other words, the proponent of the discovery should demonstrate

a significant pattern of compensation that would support a reasonable inference that the witness might color,

shade, or slant his testimony in light of the substantial financial incentives.” Cooper, 588 Pa. at 524-25, 905

A.2d at 494-95. However, in Falik, Maryland’s highest court clarified its holding in Wrobleski and held that

a party is not required to demonstrate that an expert is a “professional witness” before it can gain access to

the expert’s financial information. The Court described such as theory as “circuitous” and “circular in its

expectation,” stating: 

Following Dr. Falik's theory, the party seeking discovery first must establish (by undefined

criteria) that the witness is a "professional witness" before the party may be entitled to

inquire into the witness's income stream. That is circuitous. If the answers that the party is

seeking constitute the prima facie showing, it is unlikely that a party could ever establish

that a witness is a "professional witness," without knowledge of the witness's prior income

from expert services gained from sources other than through discovery in the immediate

case. Thus, there is here no separate prima facie burden of proving that a proffered

non-treating medical expert witness is a "professional witness."

413 Md. at 189, 991 A.2d at 1250.

-20-
income from litigation-related services, “potentially earning hundreds of thousands of dollars

every year” from such work, “might be tempted to slant his testimony to suit his employer.”

Id. In contrast, a physician testifying for the first time, but earning the same fee, might face

a lesser temptation. Id. Yet, the jury would be unable to distinguish that physician from the

“professional witness” if courts flatly prohibit the discovery of an expert’s annual income

from litigation activity. Id. The Missouri Court of Appeals explained, “‘Evidence that a

witness makes substantial income from testifying does not necessarily imply that his fees are

unreasonable, butsuch evidence doesilluminate the financial interest the expert has in giving

such testimony.’” Lichtor, 845 S.W.2d at 65 (quoting Trower, 121 Ill.2d at 219, 520 N.E.2d

at 301). Showing “a pattern of compensation in past cases raises an inference of the

possibility that the witness has slanted his testimony in those cases so he would be hired to

testify in future cases.” Collins, 621 F.2d at 784; see also Cooper, 588 Pa. at 526, 905 A.2d

at 495 (noting that some courts do not allow discovery of an expert’s annual income from

litigation-related activities but holding that such information “is within the fair scope of

relevance on the question of potential favoritism”).

Although Tennessee courts have not directly considered the issue before us, there are

several rules and principles embedded in Tennessee law that impact our analysis. First of all,

Rule 616 of the Tennessee Rules of Evidence states that “[a] party may offer evidence by

cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or

prejudiced against a party or another witness.” Thus, evidence of bias or prejudice is

admissible pursuant to Rule 616. Emerson v. Oak Ridge Research, Inc., 187 S.W.3d 364,

374 (Tenn. Ct. App. 2005). Some common examples of bias or prejudice include “a

witness's personal stake in the outcome of the litigation, . . . a witness's relationship to a party

in the lawsuit, [and] a witness's motives for testifying.” Hunter v. Ura, 163 S.W.3d 686, 699

(Tenn. 2005) (citing Neil P. Cohen, et al., Tennessee Law of Evidence § 6.16[4] (4th ed.

2000)).

“Bias is an important ground for impeachment.” Tenn. R. Evid. 616, Adv. Comm’n

Cmt. (citing Creeping Bear v. State, 113 Tenn. 322, 87 S.W. 653 (1905)). “It is always

competent to prove the friendliness or unfriendliness of a witness, his partiality for one party

or hostility to the other, in order that the jury may judge of his credibility and the

trustworthiness of his testimony.” Creeping Bear v. State, 87 S.W. at 653. “The rule of

admissibility of evidence to show bias or interest of a witness encompasses all facts and

circumstances which, when tested by human experience, tend to show that a witness may

shade his testimony for the purpose of helping to establish one side of a cause only.”

Whittemore v. Classen, 808 S.W.2d 447, 452 (Tenn. Ct. App. 1991) (citing Majestic v.

Louisville & N.R. Co., 147 F.2d 621 (6th Cir. 1945)). As we noted earlier, a finder of fact

may consider an expert’s bias or financial interest in the litigation when determining the

weight to be given to the expert’s opinions. GSB Contractors, Inc., 179 S.W.3d at 547

-21-
(citing Street, 2003 WL 21805302, at *4). The fact-finder should “scrutinize” the testimony

of experts, looking “to the circumstances that brought them in as witnesses; to the fact of

compensation, and to what extent, if any, under all the circumstances, their credibility might

be affected thereby.” Persons v. State, 16 S.W. 726, 727 (Tenn. 1891).

Tennessee Rule of Evidence 611(b) is also relevant to our analysis, as it provides that

“[a] witness may be cross-examined on any matter relevant to any issue in the case, including

credibility[.]” This Rule allows for the “wide-open scope of cross-examination historically

favored in Tennessee.” Tenn. R. Evid. 611, Adv. Comm’n Cmt. “It is well established

that wide latitude should be afforded on cross-examination.” Steele v. Ft. Sanders

Anesthesia Group, P.C., 897 S.W.2d 270, 278 (Tenn. Ct. App. 1994). “Furthermore, a

witness may be cross-examined to show possible prejudice or bias, and this right should be

limited only upon a showing of the most extraordinary circumstances.” Id. (citing Phillips

v. Pitts, 602 S.W.2d 246, 249 (Tenn. Ct. App. 1980)).

It is equally well settled that the “propriety, scope, manner, and control” of crossexamination of witnesses is within the discretion of the trial court and will not be interfered

with in the absence of an abuse of discretion. State v. Echols, 382 S.W.3d 266, 285 (Tenn.

2012). Determining the propriety of questions on cross-examination is “very largely” left to

the “wide discretion” of the trial court. Woods v. Herman Walldorf & Co., Inc., 26 S.W.3d

868, 877 (Tenn. Ct. App. 1999).

Considering all these principles, and having reviewed caselaw from around the

country discussing the pertinent issues, we cannot say that the trial judge abused her

discretion in concluding that Dr. Evans’ annual income from serving as an expert witness

was both “relevant and certainly discoverable,” as well as an appropriate subject for crossexamination by defense counsel. “The fact that these decisions are characterized as

discretionary reflects a recognition that they involve a choice among acceptable alternatives.”

Overstreet, 4 S.W.3d at 708. “Thus, the appellate courts will set aside a trial court's

discretionary decision only when the decision is based on a misapplication of the controlling

legal principles or on a clearly erroneous assessment of the evidence.” Id. The trial judge

in this case attempted to fashion a reasonable remedy and “compromise” between the parties

based upon relevant and appropriate considerations. She clearly took into account the

applicable law, as her remarks during the numerous hearings indicate that she was familiar

with caselaw from other jurisdictions pertaining to this subject. A review of the record

indicates that the trial judge exercised her discretion in a manner that was guided by the

applicable legal principles, and we cannot say that she reached an illogical result or relied on

reasoning that caused an injustice.

-22-
Again, the discovery dispute began with defense counsel requesting Dr. Evans’

schedule of charges for work as an expert witness in a lawsuit, all income he received from

reviewing cases, consulting or testifying in connection with lawsuits during the past ten

years, and 1099s and related documents reflecting his income for medical/legal review for

the years 2000 to 2010. Dr. Evans did not produce these documents, and at his deposition,

he either could not or would not answer questions from defense counsel regarding his

income. When asked how much income he earns annually from serving as an expert witness,

he said he did not know, and when asked to give an estimate for the last three years, he said

he could not do so. He estimated that fifteen to twenty percent of his income comes from

expert activity but claimed he did not know “the actual amount of dollars.” Dr. Evans has

been testifying as an expert witness for thirty years, he has served as an expert witness for

the attorneys representing plaintiff in this case for over fifteen years, he has reviewed twelve

to twenty cases per year for the past twenty years, and he “would guess” that he presently has

between ten and fifty open files, although it could be more than fifty. Dr. Evans had been

9

disclosed as an expert witness in 179 cases in 23 different states, and in 96% of those cases,

he had testified for plaintiffs. At one of the first hearings in this matter, the trial judge said

that Dr. Evans’ history “sort of has a red flag that says professional expert to me,” and his

testimony raised doubts in her mind about whether he really only earned fifteen to twenty

percent of his income from testifying. Nevertheless, the trial judge denied Defendant’s first

motion to compel production of documents because the documents were not in Plaintiff’s

possession. She ruled that Defendant’s request for ten years of income information was too

broad and limited the request to five years. She also suggested that, rather than producing

tax returns, Dr. Evans should be allowed to produce an affidavit from his accountant stating

his precise income figures, in order to avoid the disclosure of irrelevant private information.

On June 12, 2012, the court entered an order requiring Plaintiff’s counsel to produce, within

two weeks, an affidavit from Dr. Evans’ accountant setting forth his income from testifying

or participating in lawsuits for the past five years, in addition to his total gross income from

the treatment and care of patients during those years. The judge refused to require Dr. Evans

to produce his 1099s. She allowed the affidavit to be provided directly to defense counsel

so that it would not be maintained in the court file. The trial judge made it clear that her

ruling would be applicable to the experts serving for both parties, in the event that Plaintiff’s

counsel chose to pursue income information from Defendant’s expert witnesses. The order

stated that the information contained in the affidavit “shall be used solely for the purpose of

verifying or impeaching the expert's testimony within the context of this litigation and may

Dr. Evans was asked during his deposition how many “open” or current files he presently

9

maintained, and he responded, “I have no way to know.” Defense counsel asked if it was more than ten, and

Dr. Evans responded, “Yes.” Defense counsel then asked if it was more than fifty, and Dr. Evans said, “ I

don't know.” Defense counsel said, “Okay. You think it's probably between 10 and 50?” and Dr. Evans

replied, “I would guess, yes, but I don't really know.” 

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be used at trial only if permitted to do so by subsequent order of the Court.” Despite the

court order, Plaintiff did not file the affidavit from Dr. Evans’ accountant. Defendant filed

a motion for sanctions, but the trial judge generously extended the deadline for production

of the affidavit until July 12, and she ruled that Dr. Evans could send the affidavit directly

to her personal email address, for her in camera review, rather than giving it to defense

counsel. She would then review the information in order to determine whether it confirmed

or contradicted Dr. Evans’ deposition testimony. If it proved that his testimony was accurate,

she would not disclose the information to defense counsel. She also said she would not

disclose the information to defense counsel if Dr. Evans elected to withdraw from the case.

However, in response to Defendant’s motion in limine, the trial judge ruled that defense

counsel would be permitted to ask Dr. Evans, during cross-examination at trial, about his

annual income from testifying over the past one or two years. The extended deadline expired

with no attempt at compliance by Plaintiff or Dr. Evans. Defendant then filed a second

motion for sanctions. Although the trial judge initially ruled that Dr. Evans would be

excluded as an expert, she set aside that order upon Plaintiff’s motion to amend, as he

claimed that the previous order incorporating the trial court’s oral ruling was “confusing” to

Dr. Evans. The court then allowed Plaintiff to produce the affidavit to her by December 15,

2012. On December 14, Dr. Evans emailed the affidavit to the trial judge, but he imposed

the two “notices” instructing the trial judge not to open the attachment if his refusal to answer

questions at trial about his income was going to disqualify him. Defendant filed a third

motion for sanctions, which the trial court denied “at this time,” as she granted Plaintiff

permission to seek an interlocutory appeal. When the application was denied by this Court,

Defendant renewed his motion for sanctions. Finally, on July 2, 2013, over a year after the

court originally ordered Dr. Evans to produce the affidavit containing his income figures, the

trial court entered an order excluding Dr. Evans as a witness in this case and requiring

Plaintiff to identify a replacement expert within sixty days. After Plaintiff failed to obtain

a replacement expert, and declined the trial judge’s suggestion of a nonsuit, the trial court

entered an order of dismissal on September 4, 2013, noting that Plaintiff had not identified

a replacement expert.

We have summarized the tortured procedural history of this case only to demonstrate

that the trial judge attempted, on multiple occasions, to accommodate Dr. Evans’ privacy

concerns but yet provide Defendant with information that was necessary, in the trial court’s

opinion, to explore Dr. Evans’ potential financial bias. An affidavit stating Dr. Evans’

income from the past five years from testifying or participating in lawsuits and his total gross

income from the treatment and care of patients was, in our opinion, reasonably tailored and

minimally intrusive, considering the particular facts of this case. The affidavit was a useful

tool for confirming the accuracy of Dr. Evans’ deposition testimony about his professional

income, and less invasive and burdensome than producing complete tax returns. In addition,

the trial judge went so far as to say that the affidavit could be provided directly to her for in

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camera review, not to defense counsel. Even though the affidavit would presumably have

to be prepared by Dr. Evans’ accountant specifically for this purpose, the cost of its

preparation was to be paid by Defendant, and there was no attempt by Dr. Evans to show that

compiling the income information would be burdensome. The information that the trial

judge ordered produced was not duplicative, as Dr. Evans had already been asked to state his

annual income from testifying during his deposition, and he was unable to do so or even to

give a reasonable estimate.

It was not unreasonable, under the facts of this case, to require the production of

documentary evidence confirming Dr. Evans’ previous estimate of his annual income.

Keeping in mind that the purpose of this type of discovery is to detect bias, the Missouri

Court of Appeals, affirming an order requiring document production in Lichtor, noted that

“a venal expert witness could not be expected to fully answer inquiries as to which the

witness is not required to produce documentation,” and some invasion of the expert’s privacy

may be “necessary to insure the honesty and accountability of the expert.” 845 S.W.2d at 65.

“A delicate balancing of privacy interests against the need for accountability therefore

becomes the responsibility of the trial court.” Id. Similarly, in Falik, Maryland’s highest

court considered an argument to the effect that “only verbal inquiries” should be authorized,

without “the compellable production of documents that support the verbal answers to the

permitted verbal inquiries.” 413 Md. at 187-88, 991 A.2d at 1249. The Court rejected that

argument, stating:

The production of limited financial documents, from a contemporary and finite

period of time, that reflect payments made to the witness in connection with

medical-legal services is permitted because, if the inquiring party does not

have access to such records, yet is permitted to inquire orally into the witness's

income stream, the inquiring party will not be able to cross-examine

effectively the expert witness. Civil trial practice in this area is not dependent

on articles of faith; rather, corroboration is important.

Id. “If an inquiring party's counsel is not allowed to view the records that purportedly

support the expert's answers to the permitted questions, then it must accept the expert's

answer without the opportunity to verify. We do not require blind trust without verification.”

Id. Finally, in Rowe v. State Farm Mut. Auto. Ins. Co., 670 So.2d 718, 726 (La. Ct. App.

1996), the Louisiana Court of Appeals found that a trial court’s decision to deny a subpoena

for a physician’s income records rendered the plaintiffs “unable to prepare for or offer any

meaningful cross-examination” to prove bias. The plaintiffs’ inability to obtain and review

the documentary evidence prior to trial “had the effect of limiting plaintiffs to no weapon

save cross-examination which, uncomplemented by other discovery methods, seldom is of

adequate value when thrust against the broadside of the litigation expert who can so

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gracefully stiff-arm his unprepared cross-examiner.” Id.

The trial court’s orders reflect an attempt to balance the relevant privacy interests

“against the need for accountability.” Lichtor, 845 S.W.2d at 65. The court did not allow

unbridled access or “wholesale rummaging” through Dr. Evans’ personal records, and we

find no reversible error in its handling of this issue.

We also find that the trial court did not abuse its discretion in ruling that defense

counsel would be permitted to ask Dr. Evans at trial about “the dollar amount of his expert

witness income for a prior year, such as the year 2010, among others.” Wide latitude is

afforded on cross-examination in Tennessee; “a witness may be cross-examined to show

possible prejudice or bias, and this right should be limited only upon a showing of the most

extraordinary circumstances.” Steele, 897 S.W.2d at 278. Plaintiff has again failed to show

that the trial judge misapplied controlling legal principles or based her decision on a clearly

erroneous assessment of the evidence.

Plaintiff argues that the 2011 amendment to Tennessee Rule of Civil Procedure

26.02(4)(A)(i) “implicitly precludes discovery of the dollar amount of an expert’s annual

forensic income” and also precludes cross-examination regarding an expert’s annual income.

Rule 26.02 provides, in pertinent part:

Unless otherwise limited by order of the court in accordance with these rules,

the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in the pending

action . . . It is not ground for objection that the information sought will be

inadmissible at the trial if the information sought appears reasonably

calculated to lead to the discovery of admissible evidence.

. . .

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by

experts, otherwise discoverable under the provisions of subdivision (1) of this

rule and acquired or developed in anticipation of litigation or for trial, may be

obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify

each person whom the other party expects to call as an expert witness at trial,

to state the subject matter on which the expert is expected to testify, and to

state the substance of the facts and opinions to which the expert is expected to

testify and a summary of the grounds for each opinion. In addition, upon

request in an interrogatory, for each person so identified, the party shall

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disclose the witness's qualifications (including a list of all publications

authored in the previous ten years), a list of all other cases in which, during

the previous four years, the witness testified as an expert, and a statement of

the compensation to be paid for the study and testimony in the case.

The italicized portion of the Rule was added in 2011. Because the last sentence requires

disclosure of the compensation “to be paid . . . in the case,” Plaintiff argues that “the amount

of [an expert’s] compensation can only be discovered regarding the particular case at issue.”

Plaintiff claims that it is clear from the 2011 amendment that the Supreme Court

“contemplated the issue before this Court” and concluded that “a party does not have the

right to inquire about the actual amount of an expert’s annual forensic income.” (Emphasis

added).

We do not agree with Plaintiff’s suggestion that the last sentence of Rule

26.02(4)(A)(i) imposes a ceiling on the amount of information that can be discovered about

an expert witness. The Advisory Commission Comment to the 2011 amendmentstates, “The

sentence added to Rule 26.02(4)(A)(i) concerning discovery of information about those

intended to be called as expert witnesses at trial is designed to minimize the cost of learning

additional information about an opposing party's expert witnesses.” The federal counterpart

to Rule 26 is similar. It sets forth required disclosures regarding expert testimony in Federal

Rule of Civil Procedure 26(a)(2) and requires a report containing:

(i) a complete statement of all opinions the witness will express and the basis

and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in

the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness

testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in

the case.

This requirement was added to the federal rule in 1993. The Advisory Committee Note

explains that a “major purpose” of the amendment was “to accelerate the exchange of basic

information about the case and to eliminate the paper work involved in requesting such

information[.]” It describesthe information covered by the Rule as “certain basic information

that is needed in most cases to prepare for trial or make an informed decision about

settlement.” The Advisory Committee Note expressly provides that parties are not precluded

“from using traditional discovery methods to obtain further information regarding these

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matters, as for example asking an expert during a deposition about testimony given in other

litigation beyond the four-year period specified in Rule 26(a)(2)(B).” Thus, federal courts

have held that “requests for documents are not objectionable merely because they seek

documents outside the scope of the expert disclosures required by Rule 26(a)(2)(B).” Moses

v. Halstead, 236 F.R.D. 667, 676-77 (D. Kan. 2006). In other words, it is not enough to

object to a discovery request on the mere basis that it “asks for . . . expert witness discovery

beyond the scope of [federal] Rule 26.” Id.; see also Silgan Containers v. National Union

Fire Ins., No. C 09–05971 RS (LB), 2011 WL 1058861, at *7 (N.D. Cal. Mar. 23, 2011)

(“Though Rule 26 only requires [a party] to produce information corresponding to cases in

which [an expert] testified at trial or by deposition in the past four years, it does not foreclose

additional discovery if the information sought is relevant and discoverable.”)

We likewise conclude that the last sentence of Tennessee Rule of Civil Procedure

26.02(4)(A)(i) was intended to clarify that certain information about an expert must be

provided if requested by an interrogatory, in order to “minimize the cost of learning

additional information.” Tenn. R. Civ. P. 26.02, Adv. Comm’n Cmt to 2011 Amendment.

However, it was not intended to establish an outer limit for what can be discovered about an

expert. There is no indication on the face of the rule to suggest that a party is absolutely

prohibited from seeking additional information about an opponent’s expert witnesses, and

we decline to interpret the rule in such a manner. We therefore reject Plaintiff’s argument

that Rule 26.02(4)(A)(i) prohibited the discovery of information about Dr. Evans’ annual

income from testifying as an expert.

Plaintiff also generally argues that the trial court’s orders requiring disclosure of Dr.

Evans’ annual income from litigation-related activities permitted an unwarranted invasion

of his privacy because he is simply a “seasoned” expert. However, inquiring into Dr. Evans’

income was not unwarranted under the facts of this case. “The bias of seasoned expert

witnesses may be difficult to detect.” Richmond, 67 Tenn. L. Rev. at 941. We do not mean

to say that Dr. Evans is in fact biased or a venal witness. “[T]he fact that an expert devotes

a significant amount of time to forensic activities or earns a significant portion of income

from these activities does not mean that the testimony given by the witness is not honest,

accurate, and credible. It is simply a factor that is proper for the trier of fact to know about

and consider.” Falik, 413 Md. at 180-81, 991 A.2d at 1245 (quoting Wrobleski, 353 Md. at

526, 727 A.2d at 938). “‘[A]bility and dedication cannot insulate anyone from the

suggestions of bias that a cross-examiner brings out when he plays his role in a trial.’”

Cooper, 588 Pa. at 523, 905 A.2d at 494 n.13 (quoting Collins, 621 F.2d at 784 n.5).

We wish to emphasize that our holdings on these issues are limited to the facts before

us, and we do not find it necessary or appropriate to establish broad guidelines regarding

what financial information will be discoverable or an appropriate issue for cross-examination

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in every case. “Defining a bright-line standard for all cases is not practical.” Grant, 222

Ariz. at 514, 217 P.3d at 1219. We express no opinion regarding the discoverability of the

documents that were originally sought in this case, under these or other circumstances. In

addition, our holding today should not be read to suggest that trial judges must make repeated

concessions to comply with the wishes of expert witnesses or attempt to convince them to

stay on a case. In our opinion, the trial judge in this case exercised the patience of Job with

Dr. Evans and “bent over backwards” to accommodate his demands. He was given “multiple

bites at the apple,” as Defendant put it. Considering our standard of review on appeal, we

simply hold that the trial judge did not abuse her discretion in handling these matters.

This brings us to Plaintiff’s next issue, in which she argues that the trial judge abused

her discretion in granting Defendant’s motion to exclude Dr. Evans as a witness. We find

no abuse of the trial court’s discretion on this issue. Tennessee trial courts “possess broad

discretionary authority to control their dockets and the proceedings in their courts[.]”

Barnett v. Tennessee Orthopaedic Alliance, 391 S.W.3d 74, 79 (Tenn. Ct. App. 2012)

(citing Hessmer, 138 S.W.3d at 904). Tennessee Rule of Civil Procedure 37.02 provides that

if a deponent or party “fails to obey an order to provide or permit discovery,” the trial court

“may make such orders in regard to the failure as are just,” including an order “prohibiting

that party from introducing designated matters in evidence[.]” This also includes an order

precluding an expert from testifying. See Walls v. Conner, No. E2007-01917-COA-R3-CV,

2008 WL 4735311, at *5 (Tenn. Ct. App. 2008). “Even without the imprimatur of Rule 37,

however, the Supreme Court has ruled that ‘the inherent power of trial judges permits the

trial judge to take appropriate corrective action against a party for discovery abuse.’” Id.

(quoting Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988)). “Thus, the authority to

impose sanctions for abuse of the discovery process derives from the Rules and the court's

inherent powers.” Id. (citing State ex rel. Gibbons v. Smart, No. W2007-01768-COA-R3-

CV, 2008 WL 4491729, at *10 (Tenn. Ct. App. W.S. Oct. 8, 2008)). A trial court’s sanction

will not be disturbed absent an abuse of discretion. Id.

Here, Plaintiff and Dr. Evans repeatedly and knowingly failed to comply with the trial

court’s orders, despite multiple opportunities and generous extensions of deadlines. There

comes a time when, as the saying goes, “enough is enough.” Although Dr. Evans finally

emailed the affidavit to the trial judge, he attempted to impose his own “notices” to the trial

court regarding its use and confirmed that he would not answer the questions at trial that the

trial judge had already ruled that defense counsel could ask. The trial judge did not abuse

her discretion in excluding Dr. Evans as a witness.

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V. CONCLUSION

For the aforementioned reasons, the decision of the circuit court is hereby affirmed.

Costs of this appeal are taxed to the appellant, Linda Laseter, individually and on behalf of

her deceased mother, Alice H. Corr, and her surety, for which execution may issue if

necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

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