IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 26, 2006 Session

BARRY D. SMITH v. TAMARA YVETTE SMITH

 Appeal from the Chancery Court for Sumner County

No. 2002D-208 Tom E. Gray, Judge

No. M2005-01688-COA-R3-CV - Filed April 9, 2008

JERRY SCOTT, SR. J., dissenting.

I respectfully dissent from the majority’s conclusion that Dr. Victor A. Pestrak’s report was

properly admitted and that this Court’s interpretation of Rule 706 of the Tennessee Rules of

Evidence in Dover v. Dover, 821 S.W.2d 593, 595 (Tenn. Ct. App. 1991), is too rigid. I submit that

the majority's decision ignores the strict requirements of Rule 706 and opens the door for abuse of

that rule.

Rule 706(a) of the Tennessee Rules of Evidence allows the court to appoint an expert witness

in bench-tried cases sua sponte or on motion of any party and specifically sets forth the procedures

the court shall follow to appoint and utilize such an expert. Rule 706(a) states:

The court may not appoint expert witnesses of its own selection on issues to be tried

by a jury except as provided otherwise by law. As to bench-tried issues, the court

may on its own motion or on the motion of any party enter an order to show cause

why expert witnesses should not be appointed and may request the parties to submit

nominations. The court ordinarily should appoint expert witnesses agreed upon by

the parties, but in appropriate cases, for reasons stated on the record, the court may

appoint expert witnesses of its own selection. An expert witness shall not be

appointed by the court unless the witness consents to act. A witness so appointed

shall be informed of the witness’s duties by the court in writing, a copy of which

shall be filed with the clerk, or at a conference in which the parties shall have

opportunity to participate. A witness so appointed shall advise the parties of the

witness’s findings, the witness’s deposition may be taken by any party, and the

witness may be called to testify by the court or any party. The witness shall be

subject to cross-examination by each party, including a party calling the witness. 

This case involves the custody of a little girl who has been placed in the home of her father

who was accused of improperly touching her. The very experienced trial judge decided to appoint

an expert to determine whether the father was a man who would be likely to commit the acts of
2

which he was accused. After several psychologists and psychiatrists turned the judge down, he

found Dr. Pestrak and appointed him as the court’s expert witness. The judge stated that Dr. Pestrak

had “good credentials.” However, Dr. Pestrak’s credentials do not appear anywhere in the record,

and the record is unclear as to whether the parties or the Court really knew anything at all about Dr.

Pestrak’s qualifications. 

After being appointed, Dr. Pestrak performed evaluations of the parties and the child and

submitted a copy of his report to the Court with copies to counsel for both parties. When the report

was offered into evidence by the father’s counsel, the mother’s counsel timely objected to its

admission. However, the trial judge overruled the objection stating that he had relied on the report

in prior hearings. The majority’s opinion implies that the parties knew at the time of the prior

hearings that the trial judge relied on the report, and therefore, waived any right to object. However,

there are no transcripts of the prior hearings in the record, and it is not shown anywhere in the record

that the parties knew that the trial judge had relied on the report prior to it being offered as evidence.

No order to show cause why an expert witness should not be appointed was entered as

required by Rule 706(a). The court did not request the parties to submit nominations. However, the

Rule does not require such nominations. It only provides that nominations may be submitted. 

Rule 706(a) further provides that a court appointed expert witness should be agreed upon by

the parties, but in appropriate cases, for reasons stated in the record, the court may appoint an expert

of its own selection. Here the parties agreed that the judge could appoint the expert, but there was

no evidence of an agreement to waive any of the other requirements of Rule 706(a). 

Rule 706(a) further requires that the expert can only be appointed if the expert agrees. He

obviously agreed. The next step mandated by the Rule is that a witness so appointed shall be

informed of the expert witness’ duties by the court in writing, a copy of which shall be filed with the

clerk ofthe court, orthe expert may be advised of his duties at a conference in which the parties shall

have an opportunity to participate. That step was skipped entirely. There is no statement of duties

in the record and no evidence that a conference was held. 

Next, the expert witness is required to advise the parties of the witness’ findings, which this

witness apparently did. The witness’ deposition may be taken by any party and the expert witness

may be called to testify by the court or any party. Neither party deposed the expert witness nor was

he called to testify by the court or either party. Of course, the party that the expert witness would

testify against would not be expected to call him. The party who was recommended in the expert

witness’ report as the custodial parent would not want to call the expert witness for fear he might

equivocate in his testimony or even change his opinion under cross-examination. That only leaves

the judge as the one to call the expert witness to testify. 

The final requirement and the one that is most crucial is that the “witness shall be subject to

cross-examination” by all parties. Tenn. R. Evid. 706(a)(emphasis added). Since the judge did not
3

summon the witness to the court to testify, there simply was no opportunity for cross-examination

in this case. 

As pointed out in the majority opinion this was a protracted divorce case with great acrimony

between the parties. Several changes of counsel occurred during the proceedings. There is no

transcript of any of the preliminary proceedings, so this appellate court has no record of what was

said by anyone at the prior hearings. 

The parties left it up to the judge to find an expert. The judge said that he called several

psychologists and psychiatrists before he could find anyone who would conduct the examination.

It is not known what the judge told the psychologist or what the psychologist said to the judge. It

is not known whether the judge told the parties he was relying on the psychologist’s report when

making preliminary rulings. It is clear that the judge failed to follow the required procedure for

informing the witness of his duties by letter, with a copy to the court clerk, and the judge also failed

to hold a conference with the expert giving the parties an opportunity to participate. 

Since the judge stated that he did not even know Dr. Pestrak and his curriculum vitae does

not appear in the record, there is no way for this Court or the parties to know the qualifications of

the court appointed expert, unless the judge provided the parties with some information about the

psychologist off the record. 

Given the surprise expressed by the mother’s counsel when the expert was not called, it is

clear that her counsel was anticipating the expert to be called by the court for cross-examination. 

The majority puts the onus on the mother’s counsel to call the expert whose report was

adverse to her client. It is unlikely he would be called by the mother’s attorney. The father’s

attorney wasn’t likely to call him to testify and be cross-examined as his report was fully favorable

to the father’s position. Thus, as stated heretofore, the only one who could be expected to call the

expert wasthe judge, who surely would want to hear live testimony about the expert’s methodology,

his findings and his recommendations, and to have his testimony tested in the “crucible of vigorous

cross-examination,” the greatest tool for the discovery of truth ever devised. McDaniel v. CSX

Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). 

The majority concludes that the objecting party waived her right to cross-examine the expert

because she had an opportunity to depose the expert or in the alternative, could have called the expert

to testify at a later date. It is true that either party could have subpoenaed him before the final

hearing, but my reading of the record leads me to believe that both parties reasonably expected the

judge to have the witness present for cross-examination. To expect either of these parties with their

limited incomes to pay to depose the expert is unrealistic, given the great number of hearings for

which they were forced to pay their attorneys. The majority’s conclusion ignores the requirement

of Rule 706(a) that the expert “shall be subject to cross-examination” and places the burden to call

the expert witness on the party who would least want the expert’s report entered into evidence. In

virtually all court proceedings, the party offering an expert’s report into evidence has the burden to

call the expert to testify in order to authenticate the report and thereby subject the expert to cross-
4

examination. Since the father’s counsel wanted the report admitted and the judge obviously relied

on it, the onus should have been on the father’s counsel or the judge to get the witness before the

court, for authentication of his report and for cross-examination. Since the father’s counsel didn’t

subpoena the expert, the judge should have acted to get Dr. Pestrak before the court. 

When expert testimony is offered, the issues of admissibility and relevancy of the evidence

and the qualifications and competence of expert witnesses are generally left to the discretion of the

trial court and the court’s ruling in that regard may only be overturned if the discretion is arbitrarily

exercised or abused. McDaniel, 955 S.W.2d at 263-64. Rule 702 of the Tennessee Rules of

Evidence provides: “If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify in the form of an opinion

or otherwise.” 

Rule 703, of the Tennessee Rules of Evidence provides: 

The facts or data in the particular case upon which an expert bases an opinion or

inference may be those perceived by or made known to the expert at or before the

hearing. If of a type reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or data need not be

admissible in evidence. The court shall disallow testimony in the form of an opinion

or inference if the underlying facts or data indicate lack of trustworthiness. 

The trial court must determine whether the evidence will substantially assist the trier of fact

to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack

of trustworthiness. Taken together the rules necessarily require a determination of the scientific

validity or reliability of the evidence. 

“[T]he trial court must analyze the science and not merely the qualifications, demeanor or

conclusions of experts,” and “must assure itself that the opinions are based on relevant scientific

methods, processes and data, and not upon the expert’s mere speculation.” McDaniel, 955 S.W.2d

at 265. “Once the evidence is admitted, it will be tested with the crucible of vigorous crossexamination and countervailing proof.” Id. 

How a trial judge can make all those determinations from a written report by an “expert”

whom the judge has never met, without the testing of the science involved, without determining his

qualifications, without observing his demeanor and without testing the conclusions of the “expert”

without ever seeing, hearing and evaluating him with the assistance of attorneys to cross-examine

the “expert,” is beyond my comprehension. Given the gravity of the decision as to which parent is

better suited (or whether neither party is suited) to be the primary residential parent and whether a

parent will endanger or molest the child are issues of the utmost seriousness. The child is the

unrepresented pawn in custody cases. Her life was at a fork in the road and the judge determined

her future when the decision was made to send the child to a particular home for most of her nurture,

care, education and upbringing through the balance of her childhood. No decision made by any
5

judge anywhere is more difficult, life-changing, life-directing and virtually unchangeable by the

affected party than the decision about the future of a helpless child. The full development of every

relevant fact should be the primary concern of every judge trying child custody cases.

Based on the foregoing, I cannot vote to affirm. “The calling of an expert witness by the

court can have a significant impact on the adversarial role of the parties.” Dover, 821 S.W.2d at 595.

The majority’s conclusion will serve to undermine the rules of evidence and create opportunities for

abuse. As previously stated by this Court in Dover, “[Rule 706] contemplates that if the findings

of the expert witness are to be considered as evidence, the expert will be called to testify. This

requirement is not a departure from the general rule that the court may not rely on an unsworn report

from an expert to decide issues before the court.” Id. at 594. That is just what the trial judge did in

this case.

Errors by the parties’ counsel should not and indeed cannot detract from the duties of the trial

judge to insure that inadmissible hearsay like as this report is excluded, that the court’s chosen expert

is before the court and ready to be questioned by each party and the court, and to insure that justice

is done for the child. It is the trial judge, not either party’s counsel, who is “ultimately responsible

for every aspect of the orchestration of a trial.” State v. McCray, 614 S.W.2d 90, 93 (Tenn. Crim.

App. 1981). The judge’s responsibilities include adherence to the evidentiary rules and also

requiring adherence by all of the parties. Since, I cannot condone such a blatant disregard of the

Tennessee Rules of Evidence, I must dissent. 

 _____________________

Jerry Scott, Senior Judge