### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE A pr il 26, 200 6 S es sio n



### BARRY D. S MI TH v. TAM ARA YVETTE S MI TH

Appeal from t he Chancery Court for Sumner County No. 2002D-208 Tom E. Gray, Judge

No. M2005- 01688-COA-R 3-CV - Filed April 9, 2008

J ER R Y S C OT T , S R

. J

. , d i s s en t i n g.

Irespe ctfully dissent from the major ity ’s conc lusion that Dr. Victor A. Pestra k’s re port was properl y ad m i t t ed and that this C ourt’s interpr etation of Rule 706 of the Tenne ssee Rules of Evidence in Dove r v. Dov er , 821 S.W .2d 593, 595 (Tenn. Ct. App. 1991), is too rigid. I submit t hat the majority ' s decision ig nores the stric t require ments of Rule 706 and opens the door for abuse of that rule.

Rul e 70 6( a ) o f t

he Te nn e sse e Rul e s o f E vid e nc e a llo ws the c ourt to a pp oin t an e xpe rt

wi tne ss in bench- tried case s sua sponte or on motion of any party and spec ifically

sets forth the pr ocedur es the c ourt sh a ll f oll owto a pp oin t and

uti lize su c h a

n e xpe rt . Ru le 70 6( a ) s ta te s:

The c ourt may

not a ppoint e x pert witnesses of its own selec tion on issues to be tried by a j u ry except as provided othe rwise by law. As to benc h-tried issues, the c ourt

may on its ow n mo tio n o r o n th e mot ion of a ny pa rt y e nte r a n ord er to sh ow c a

us e wh y e xpe rt wi tne sse s shou ld not

be a pp oin te d a

nd may re qu e st the pa

rt ie s to su bmi t nominations. The court ordinarily should a ppoint e x pert witnesse s ag ree d upon by the par ties, but in appropriate case s, for re asons stated on the re cord, the court may appoint expert witnesses of its own s el ec tion. An expert witness shall not be appointed by

the cour t unless the witness consents to ac t. A witness so appointed shall be informe d of the witness’s duties by the cour t in writing, a co p y o f which shall be filed with the cler k, or at a confe renc e in which the pa rties shall have opportunity

to participate . A witness so appointed shall advise the p arties of the wi t n es s ’s finding s, the witness’s deposition may be take n by

any party , and the witness may

be ca lled to testify

by the court or any

party . The witness shall be subject to cross- examination by eac h party , including a

party calling the witness.

This case involves the custody of a little g irl who has been plac ed in the home of her f ather who was acc used of improperly touching her. The ve ry experience d trial judg e dec ided to appoint an expert to deter

mine whether

the fat h er wa s a man who w ould be likely to commit the acts of2

which he w as ac cused. A fter se veral p s y cholog ists and psy chiatrists turned the judg e down, he found Dr. Pestra

k and appointed him as the court’s e x pert witness. The judge stated that Dr. Pestra k had “g ood cre dentials.” How ever , Dr. Pestrak’s cr edentials do not appe ar a ny wher e in the re cord, and the r ecor d is unclear

as to whether the parties or t he C ourt rea lly knew a ny thing at all about Dr. Pestrak’s qua lifications.

After b ei n g ap p o i nted, Dr. Pestra k perf ormed e valuations of the pa rties and the c hild and submitt ed a c opy

of his repor

t to the C ourt with copies to counsel for both par ties. When the repor

t

wa s o ff e re d in to e vid e nc e by

the fathe r’s c ouns e l, t

he mot he r’ s c ouns e l ti me ly

ob je c te d to its admission. However , the trial judg e over ruled the obje ction stating that he had relied on the repor t in prior heari n gs

. T h e m aj ority ’s opinion impli es that the pa rties knew at the time of the prior hear ings tha t the trial judg e relied on the repor t, a nd there fore
, waived any

rig ht to object. Howeve r, there are no transcr ipts of the prior hea ring s in the rec ord, and it is not shown any wher e in the rec ord that the par

ties knew that the tria l judge had re lied on the re port prior to i t being offe red a s evidenc e.

No orde r to show ca

use why an expert witness should not be appointed wa s en t er ed as require d by

Rule 706(a) . The c ourt did not request the pa rties to submit nom inations. H oweve r, the Rule does not require such nominations. I t only provides that nominations may be submitted.

Rule 706(a) further

provides that a court appointed expert witness should be ag ree d upon by the par ties, but in appropriate case s, for re asons stated in t he record, the court may appoint an expert of its own selection. Her e the pa rties ag ree d that the judg e could a ppoint the expert, but there wa s no evidenc e of a

n ag ree ment to waive a

ny of the other

require ments of Rule 706(a)

. Rule 706(a) further

require s that the expert can only be appointed if the expert ag ree s. He obviously ag ree d. The ne x t step mandated by th e R u l e i s t hat a witness so a ppointed shall be informed of

the expert witness’ duties by the cour t in writing, a

copy of which shall be filed with the

c le rk of the c ourt , or the e xpe rt may be a dv ise d o f h is d

uti e s a t a c on fe re nc e in w hic h th e pa rt ie s sh a ll have a n opportunity

to pa rticipate. That step wa s skipped entirely . There is no statement of duties in the rec ord and no e vidence that a conf ere nce w as held.

Ne xt, th e e xpe rt

wi tne ss i s r e qu ir e d to a dv ise the pa rt ie s of the wi tne ss’ fi nd ing s, wh ic h th is wi tne ss a pp a re ntl y did . T he wi tne ss’ de po sit ion may be ta ke n by a ny pa

rt y a nd the e xpe rt

wi tne ss may be ca lled to testify

by the court or any party

. Neither party deposed the expert witness nor was he c a lle d to te sti fy

by the c ourt or e ith e r p a rt

y . O f c ours e , th e pa

rt y that th e ex pe rt

wi tne ss w ou ld testify ag ainst would not be expected to ca ll him. The party who was r ecommende d in the expert witness’ re port as the c ustodial parent would not wa nt to call the expert witnes s fo r fear he mig ht equivocate in his testimony or even chang e his opinion under cross-e x amination. That only leave s the judg e as the one to ca ll the expert witness to testify

.

Th e fi na l r e qu ir e me nt a

nd the on e that is mos t c ru c ia l is that th e “ wi tne ss s ha ll b e su bje c t to

cross-e x amination” by all parties. Te nn. R. Evid. 706(a)( emphasis adde d). Since the judg e did not3

summon the witness to the court t o testify
, there simply was no opportunity for c ross-examination in this case.

As pointed out in the majority opinion this was a protra cted divorc e ca se with g reat acr imony betwee n the par

ties. Severa l chang es o f counse l occur red dur ing the proce eding s. There is no
transcr ipt of any

of the pre liminary

proce eding s, so this appellate court has no rec ord of what was said by any one at the pr ior hea

ring s.

The pa rties left it up to the judg e to find an e x pert. The ju d ge s ai d that he ca lled sever al
psy cholog ists and psy chiatrists befor e he c ould find any one who wo u l d co nduct the examination. It i s n o t kn o w n w h a tt h e j u d g e t o l d t h e p s y c h o l o g i s to r

w h a tt h e p s y c h o l o g i s ts a i d t o t h e j u d g e

. It is not known whether the judge told the parties he w as re ly i n g o n t h e p s y cholog ist’s report whe n

m ak i n g p relim inary

ruling s. I t is clear that the judge failed to follow the r equire d proce dure f or informing the wit ness of his duties by letter, with a copy to the court cler k, and the judge a lso failed to hold a confe renc e with the expert g iving the pa rties an oppor

tunity to participate

.

Since t he judge stated that he did not even know Dr. Pestrak and his curr iculum vitae does not appea r in the re cord, the re is no wa y for this Court or the par

ties to know the qualifications of the cour t appointed expert, unless the judge provided the pa rties with some information about the
psy cholog ist off the re cord.

Gi ve n th e su rp ri se e xpre sse d b y the mot he r’ s c ouns e l w he n th e e xpe rt wa s n ot c a lle d, it i s clea r that her counsel wa s anticipating the expert to be ca lled by the cour t for cr oss-examination.

The majority

puts the onus on the mother’s c oun s el t o ca l l the expert whose r eport wa s adver se to her c lient. I t is unli kel y h e would be c alled by the mother’s a

ttorney . The father’s

a tto rn e y wa sn ’t lik e ly to c a ll him to te sti fy a nd be c ro ss- e xami ne d a s h is r e po rt wa s f ull y fa vo ra ble to the fathe r’s posit ion. Thus, as st ated heretofor e, the only one who could be ex pecte d to call the

e x p e rt w a s t h e j u d g e , w h o s u r e l y w o u l d w a n tt o h e a r

l i v e t e s t i m o n y a

b o u tt h e e x p e rt ’ s m e t h o d o l o g y, his findings a

nd his rec ommendations, and to have his testimony tested i n the “crucible of vigor ous

cross-e x amination,” the g reatest tool for the di s co v ery of truth eve r devised. McD aniel v. CSX Transp., Inc. , 955 S.W .2d 257, 265 (Tenn. 1997)

. The majority conclude s that the objecting party waived he r rig ht to cross-examine the expert beca use she ha d an opportunity to depose the e x pert or in the a lternative, c ould have called the e x pert to testify at a late r date . I t is true that either pa rty could have subpoenae d him befo re t h e final hear ing, but my rea ding of the rec ord leads me to be lieve that both par ties rea sonably

expected the jud g e to h a ve the wi tne ss p re se nt f or c ro ss- e xami na tio n. To e xpe c t e ith e r o f t he se pa rt ie s w iththe ir limit ed incomes to pa

y to depose the e x pert is unre alisti c, gi v en t h e great number of he aring s for which they

wer e for ced to pa

y their attorney s. The majority ’s conclusion ignor es t he re quirement of Rul e 70 6( a ) t

ha t th e e xpe rt

“ sh a ll b e su

bje c t to c ro ss- e xami na tio n” a nd pla c e s th e burd e n to c a ll
t h e e x p e rtw i t n e s s o n t h e p a rt y w h o w o u l d l e a s tw a n tt h e e x p e rt ’ s r e p o rte n t e r e d i n t o e v i d e n c e

. In vir tua lly a ll c ourt pr oc e e din g s, the pa rt y of fe ri ng a n e xpe rt ’s re po rt int o e vid e nc e ha s th e burd e n to

c a ll the e xpe rt

to t e sti fy in or de r t o a

uth e nti c a te the re po rt

a nd the re by su bje c t th e e xpe rt

to c ro ss-4

examination. S ince the f

ather ’s counse l wanted the r eport a dmitted and the judg e obviously relied on it, th e o n u s s h o u ld h a v e b e e n o n th e f a th e r ’ s c o u n s e l o r th e ju d g e to g e t th e w it n e s s befor e the court, for authentication of his repor t and for cross-e x amination. Since the father’s c ounsel didn’t subpoena the expert, the judg e should have acte d to ge t Dr. Pestrak be fore the cour t.

When e x pert testimony is of fer ed, the issues of admissibility and re levanc y

of the e vidence and the qua lifications and compe tence of expert witnesses a re g ener ally

left t o the di scre tion of the
tr ia l c ourt a nd the c ourt ’s ru lin g in that re g a rd may on ly be ov e rt ur ne d if the dis c re tio n is a rb itr a ri ly exercised or

abused. McD aniel
, 955 S.W .2d at 263-64. Rule 702 of t h e Te nnessee Rules of Ev ide nc e pr ov ide s: “ I f s c ie nti fi c , te c hn ic a l, o r o the r s pe c ia lize d k no wl e dg e wi ll s ub sta

nti a lly a ssi st the trier of

fac t to understand the e vidence or to deter mine a fa ct in issue, a witness qualifie d as an expert by knowledg e, skill, ex perie nce, training
, or education may testify in the form of a n opinion or otherw ise.”

Rul e 70 3, of

the Te nn e sse e Rul e s o f E vid e nc e pr ov ide s:

The fa cts or data

in the particula

r ca se upo n which an e x pert ba ses an opinion or infere nce ma

y be those pe rce ived by

or made known to the expert at or be fore the he a ri ng . I f o f a

ty pe re a so nab ly rel ie d u

po n b y e xpe rt s in

the pa rt ic ula r f ie ld i n forming opinions or infere nces upon the subject, the fact s o r d ata need not be admissible in evidence . The court shall disallow testimony in the form of an opinion or infer ence if the under ly ing f acts or data indicate la ck of trustwor thiness.

The trial c ourt must determine whe ther the e vidence will substantially assist the trier of f act to determine a fac t in issue and whether the fa cts and da ta under ly ing the evidenc e indicate a lac k of tr us tw or thi ne ss. Take n to g e the r t he ru le s n e cess ari ly

re qu ir e a de te rm inatio n o f t

he sc ie nti fi c validity or re liability

of the e vidence

.
“[T] he trial c ourt must analy ze the scienc e and not mer ely th e q ualifica tions, demeanor or

c on c lus ion s o f e xpe rt s, ” and “mu st assure its e lf that th e op ini on s are ba se d o n r e le va nt s c ie nti fi c methods, proce sses and data, and not upon the ex pert’s me re spe culation.” McD aniel , 955 S.W .2d

a t 26 5. “ On c e the e vid e nc e is a dmi tte d, it w ill be te ste d w iththe c ruci ble o f v ig or ou s c ro ssexamination and counterva iling proof .” Id.

Ho w a t r i a l j u d g e c a n m a k e a l l t h o s e d e t e r m i n a t i o n s f

r o m a w r i t t e n r e p o rt b y

a n “ e xpe rt ” wh om t he jud g e ha s ne ve r me t, wi tho ut the te sti ng of the sc ie nc e inv olv e d, wi tho ut d e te rm ini ng his
qu a lif ic a tio ns , w ith ou t ob se rv inghis de me a no r an d with ou t tes tin g the c on c lus ion s o f t he “ e xpe rt ” without ever se eing , hear ing a nd evalua ting him wit h the assis tance of attorney s to cross-e x amine the “ e xpe rt ,” is b e y on d my c omp re he ns ion . G ive n th e g ra vit y of the de c isi on

a s to wh ic h p a re nt i s better suited ( or whether neither pa rty is suited) to be the primar y residential pa

rent a nd whether

a pare nt will endang er or

m o lest the child are issues of the utmost seriousness. The c hild is t he
unrepr esente d pawn in custody case s. Her life was a t a fork in the r oad and the j u d g e dete rmined her f uture whe n the dec ision was made to send the child to a particular home for most of her nurture,

car e, ed u ca t i o n and upbringing throug h the balanc e of he r childhood. No de cision made by any5

judge any

wher e is more difficult, life-c hang ing, life-dire cting and virtually unchang eable by t he aff ecte d party

than the dec ision about t he future of a helpless child. The full development of eve ry

re le va nt f a c t sh ou ld b e the pr ima

ry c on c e rn of e ve ry jud g e tr y ingc hil d c us tod

y c a se s.

Ba sed on the for eg o i n g, I ca n not vote to affir m. “The c alling of

an expert witness by

the
court c an have a sig nificant impac t on the adver sarial r ole of the pa rties.” Dove r , 821 S.W .2d at 595. The majority ’s conclusion will serve to undermine the r ules of evide nce a

nd cre ate oppor

tunities for abuse. A s previously

stated by this Court i n Dove r , “[ R

u l e 7 0 6 ] co n t em p l at es t h at i f t h e f i n d i n gs of the e xpe rt

wi tne ss a

re to b e c on sid e re d a s evi den ce, the e xpe rt wi ll b e c a lle d to te sti fy . T his require ment is not a departure from the g ener al rule that the court may not rely on an unsworn r eport from an e x pert to dec ide issues befor e the c ourt.” Id. a t 59 4. Th a t is jus t wh a t the tr ia l ju dg e did in this case.

Error s by the par ties’ counse l should not and indeed cannot detra ct from the duties of the trial judge to insure that inadmissible hear say like as this report is excluded, that the cour t’s chosen e x pert is before the cour

t and re ady

to be questioned by eac h party and the cour t, and to insure that justice is d on e fo r t

he c hil d. I t is the tr ia l judg e , not ei the r part y ’s c ouns e l, w ho is “ ult imate ly re sp on sib le for every aspec t of t he orchestra tion of a tria l.” State v. Mc Cray
, 61 4 S. W.2 d 9 0, 93 (T e nn . Cr im. Ap p. 19 81 ). Th e jud g e ’s re sp on sib il ities inc lud e a dh e re nc e to t he e vid e nti a ry

ru le s and

a lso requiringadher ence by

all of the part i es

. Since, I cannot c ondone such a

blatant disreg ard of

the Tenne ssee Rules of Evide nce, I must diss ent.

_____________________ J er ry S co t t , S en i o r J u d ge