IN THE COURT OF A PPEALS OF TENN ESSEE AT JA CKSON

________________________________________ BRENDA J. SN EED, Plaintiff-Appellant, Shelby Circuit No. 57955T.D. Vs. C.A. No. W1998-00607-COA-R9-CV THOMAS G. STO

VALL, M.D., GUY VOELLER, M.D., and UNIVERSITY PHYSIC IANS FOUNDATION , d/b/a UNIVERSITY OF TENN ESSEE MEDICAL GRO UP, INC., Defendants-Appellees.

____________________ ______________________ __________________________ _ FROM THE SHELBY COUNTY CIRCUIT COURT THE HONORABLE KAREN R. WILLIAMS, JUD GE

Robert L. Green;Neely, Green, Fargarson, Brooke & Summers, of Memphis Bruce Kelley, Jr., of Memphis Steven R. Walker of Memphis For Appellant Willi am H. Halt om, Jr.; T homason , Hendrix, Harvey, Johnson & Mitchell of Memphis

For Appellees

AFFIRMED AND REM ANDED Opinion filed:

W. FRANK CR AWFORD, PRESIDING JUDGE, W.S.
CONCUR: DAVID R. FA

RMER, JUDGE HOLLY KIRBY LI LLARD, JUDGE 

# FILED
December 15, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2 This case is before the Court pursuant t o T.R.A.P. 9. Plaintiff/Appellant, Brenda Sneed, appeals from the order of the tria l court t hat denied her motion in limine concerning inquiry about disciplinary proceedings against plaintiff’s medical expert witness. Plainti ff filed a complaint on November 23, 1993, against Dr. Thoma s G. Stovall, University

Phys ici ans Foundation, d/b/a UT Medical Group, Inc., and Dr. Guy R. Voeller, alleging that

the defendants committed medical malpractice in thei r care and treatmentof the plaintiff. On May 10, 1996, cou nsel for the defendants took the discovery

deposition of plaintiff’s medical ex pert, Dr. David Swan. During the course of the deposition, defense counsel examined Dr. Swan about the status of his medical license, and whether he had been the subj ect of an y disciplinary proceedings. Dr. Swan responded th at he had n ot. Several months later,however, defense counsel learned that Dr. Swan had been the subject of investigati ons and hearings before the Kentucky State Board of Medical Licensure (KSBML). Pl aintiff filed a Motion in Limine
on October 15, 1997, to prohi bit de fendants from “making a disclosur e of any disciplinary acti on taken by the Board of Medical Licensure for the State of Kentucky against Dr. David S. Sw an, M.D., during the voir dire of t he jury or at any ti me during the trial of the cause.” The facts leading up to the inv estigati on by t he KSBML are as follows: David Swan, M.D., is board-certified in obstetrics and gy necology. In June 1995, an “initiating grievance”

was filed with the Kentucky Board of Medical L icensur e alleging that Dr. Swan engaged in inappropriat e sexual behavior

with some of his patients. On September

26, 1995, Dr. Swan gav e a statemen t to Doug Wilson, a KSBML investigator, regarding the complaints and grievances agains t him. Swan admitted that between early 1975 and late 1981, he engaged in inappropriat e sexual behavior w

ith
some of his patients. On February 15, 1996, The KSBML held a hearing regarding the complaints and grievances against Dr. Swan. The Board’s Inquiry Panel asked that Dr. Swan enter int o an Agree d Order of Probatio n to avoid issuing an Administ rative Complaintagainst Dr . Swan’s Ke ntucky m edic al license. Dr. Sw an entered into an Agreed Order of Probation on June 24, 1996, which, among other things, put Swan on3

probation for five years. Upon consideration of the evidenc e, the trial court denied pl ai ntiff’s Mo tion in limine

. The order denying the moti on states: “The Court is of the further opinion because of Dr. Swan’s untruthfulness , that at the trial of this cau se counsel for the defendants shall be permitted to inq uire into the al lege d facts underlying Dr. Swan’s disciplinaryproceeding.” Plaintiff’s motion in the trial court for interloc utory app eal pursuantto T.R.A.P. 9 was gra nted, and this Court gr anted plain tiff’s application for permission to appeal. The issues presented for revi ew as stated in plaintiff-appellant’s brief are:
1. Whether the trial court erred in concluding that Dr. Sw an had exhibited a “pattern of untr uthfulness.” 2. Whether the trial court erred in overruling Plaintiff’s Motion in limine and rulin g th at the Defendants would be p erm itted to present proof to the jury of 17 to 24 year-old instances of inappropriate sexual conduct by Plaintiff’s medical expert, Dr. David Swan. As to plaintiff-appellant’s fir st issue, the judge stated: But the conduct discussed before me is the answer to a statement, an answer to a q uestion. “ Have you been the subject of any discipli nary proceedings, medic al di sciplinaryproceeding regarding your license?” Answer, “No, sir.” I believe that that answer was unt ruthful. I believe from the records presented to me that, in 1978, Dr. Swan had his license called in to challenge in Fayette County and that t h ey made a ruling that hi s conduct was inappropriate.

. . . But what troubles me mos t about it is that then he neve r bothers to mention it to the Kentu cky Board o f Medical Licensure, which beg ins to suggest a patter n of un truthf ulness. I believe that if I had been c alled upon to respond by letter to a compla int f iled against me by someone that I would f eel that I was involv ed in a disciplinarymatter. So, therefore, I will allow the defense to inquire along those lines, and the jury can decide. Plainti ff contends that the trialcourt made two factual errors in finding Dr. Swan’s testimony

untruthful. She first asserts that the trial court erred in its conclusion that Dr. Swan was untruthful in his depos ition with regard to whether he h ad been the subject of disciplinary proc

eedings. Plaintiff also submit s that the KSBML has bifurcated proceedings in dealing with g rievances filed agains t doc tors: first, an investigation of the facts; second, if necessary,a disciplinary pr oceeding. Plaintiff argues that since Dr.4

Swan entered into an Ag reed Orde r of Prob ation, th ere was no A dministr ative Complaintissued against his license and, therefore, no formal di sciplinary proceedings. Thus, plaintiff argues

that Dr. Swan answe red truthfully when he said he had not been t he subject of any “discipl inary proceedings.” Plaintiff further submits that the cour t misco nstr ued the facts in the record to conc lude that there was a patter n of untruthfulness. She contends that Dr. Sw an knew that the KSBML had a copy of the October 31, 1978 letter, and thus , there was no need to “mention it” to the KSBML. Considering the record before us, we c onclude that the trial court did not err

. At the time of the deposition on May 10, 1996, Dr. Swan knew that a complaint had been filed agains

t him in the past

with t he Grie

vance C ommittee

of t he F ayette County Kentucky Medical Society all eging improper sexual contact with a patient and that the Medical Society issuedan Opinion on October 31, 1978, finding that his conduc t was inappropriate. Dr. Swan was also aw are that a complaint was fil ed with theKentucky State Board of Medical Licensure on June 15, 1995. He wa s also aware that he ga ve a statement on August 8, 1995 to Mr. Doug Wilson, an investigator of the KSBML, regarding the complaintsagainst him and that on September 26, 1995, Sw an submitted
a report to Mr. Wilson responding to the specific allegations in the complaint. Based
on the foregoing, it is appar ent that Swan knew he w as under investigati on b y t he licensing board. Certainly, D r. Swan knew that the board had t he power to impose sanctions to the extent of revoking his license. The inves

tigation of necessity

must be
a part of any proceedings l eading to impositionof sanctions. It appears to this Court that the usual and ordinary meaning of “pr oceedings” would inc

lude involvement

by the board in considering imposition of sanctions. Simply s tated, Dr. Swan answ ered untruthfully at his deposition. Plaintiff asserts in her

second issue that the trial court erred as a matter of law byoverruling her moti on in limine and ruling that defendants would be permitted to presentproof of Dr. Swan’s past conduct. Specifically, plaintiff asserts th at the specific instances of inappropriate sexual con duct committed by Dr. Sw an are excluded by Tennessee Rules of Evidence, 608 (b), which provides: Rule 608. Evidence of character and conduct of witness

.5 (b) Specific Instances of C ond uct. - Specific instances of conduct of a witness for th e purpose of attacking or supporting the witness’s credi bility, other thanconvictions o f crime as provided in R ule 609, may not be proved by extrinsicevid en ce. They may, howev er, if probative of truthfulness or untruthfulness and under the follow ing conditions, be inquired into on cross-examination of the witness concerning the witness’s character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of anoth er witness as to which the characte r witness being cr oss-examined has testified. The conditions which must b e sat isfied before allowing inquiry on cross-examination about such conduct probative solely of tr

uthfulness or untruthfulness are: (1) The court upon request must hold a heari ng outside the jury’s pres ence and must determine that the alleged conduct has probative v alue and that a reasonable factua l basis exis ts for th e inquiry; (2) The conduct must have occurre d no more than ten years before commencement of the action or prosecution, but evi dence of a specific instance of conduct not qualifying under thi s paragraph (2) is admissible if the prop onent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to c ontest the use of such evidence and the court determines in the interests of justice that the probative value of that evidence, supported by the spec ific facts and circumstances, subst antially outweig hs its prejudicial effect . . . Tenn.R.Evid. 608(b). Plainti ff also argues that the

conduct occurred more than seventee n years ago, that the conduct is not “probativ e solely of truthfulness or untruthfulness,” and that the probative value of such evidence does not “s ubstantially outwei gh its prejudicial effect.” Defendants assert that Tenn.R.Evid. 608 (b) is not applicable in this cas e, but Rule 402 and Rule 403, Tenn.R.Ev id., are the appropriate rul es: Rule 40 2. Relevant evidence generally admi ssible; irrelevant evidence inadmissible. A ll relevant e vidence is admissib le except a s provi ded b y the Co n stitution of the United States, the Constitution of Tennessee, these rules, or ot her rules or laws o

f general application in the courts of Tennessee. Evidence which is not relevant is not admiss ible. Rule 403. Exclusion of Relevant evidence on grounds of prejudice, confusion, or waste of time. Al though relevant, evidence may be excluded if it s probative value is substantially outweig hed by the danger of unfair p rejudi ce, confu si on of the issues, or misleading the jury, or by considerations of undue delay, waste of time,6 or needless presentation of cumulative evidence. Tenn.R.Evid. 402 and 403. Defendants assert that 608(b ) deals with impeachment of a witness by crossexamination con cerning a w itness’s “prior bad ac ts” and that they are not s eeking to impeach Dr. Swan’s credibility by evidence of prior convictions, prior bad acts, subsequent

convictions, or subs

equentbad acts. They argue that they will present evidence regarding his cur rent medical licensure, medical status, and medical practic e. However, defend ants ackn owledge th at cross-e xa m ination and extrinsic evidence regarding Swan’s medical licens ure will include ev idence o f D r. Swan’s past misconduct. Defendants also argue t hat the current state of Dr. Sw an’s medical licensure and the history and ci rcumstances regarding it are relevant issues in this
case. They

further point out that

even though the misconduct occurred sixteen years ago, the restrictions on his license are in pla ce now. Tennessee Law of Evidence provides: § 608.1. Overview

. It prescribes

when . . . specific instances of conduct,other than criminal convicti ons, may be used to im peach or rehabilitatea witness by prov ing the truthful or unt r uthful character

of t hat w itness. It should be obvious that Rule 608 is an exception to the general principle of Rule 404(a) that character

evidence is inadmissible . . . Rule 608 is based on the idea that sometimes character evidence should be admitted. By implicatio n, the rule accepts the idea that a person’s character is both a rel evant and importantfactor in assessin g that per son’s cre dibility. But it should be noted that Rule 608 opens the door to proof of onlycertain aspects of a person’s character. This rule authorizes

proof of a person’s character for truthfulness or untruthfulness. Proof of other facets of character is not affected by Rule 608. Neil P. Cohen, et al., Tennessee Law of Evidence § 608.1 at 345 (3d ed. 1995). A s above noted, the trial cour t correctly determined

that Dr. Swan an swere d untruthfully in his discovery deposition and that the defen d ants can question him concerning the inconsistencies. Pl aintiff asserts that no inquiry should be made to elicit evidence of Dr. Swan’s specific acts with patients beca use: these acts occurred more than ten years before the comme ncement of this action; they do not cons titute untruthful behavior; and, in any even t, the probative value of the ev idence does not7

substantially outweigh its preju dicial effect. Where the cross-examinatio n leads will, of course, depend on the witness’s answer. Under 608 (b), Dr. Sw an’s specific acts may onl y be inquired into on cross-examination and may not be established by extrinsic evidence. Consequently, if Dr. Swan is questioned about the specific acts and denies theiroccurrence, the question would arise as to whether extrinsic evidence is appropriate. Defendants assert that Rule 608(b) is not applicable to this case, because the appellees are not attempting to impeach Dr. Swan’s credibi lity as to the specific “prior bad acts.” Rather, they seek to impeach his credibility because of his untruthful
answers under oath concerning prior disciplinary proceedings, and they s eek to show his current status as a pr acticing physici an. The trial judge has

wide discretion in the matter of qualification of expert witnesses. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439 (Te nn. 1992). However, “credibil ity is to be disting uished from t he tes timonia l compet ency of a witness.” 81 Am.Jur.2d , Witnesses Sec. 1027 at p. 841. Essentially the same basic tests which are commonly applied i n the eval uation o f ordina ry evi de nce shoul d be used in judging the w eight and sufficiency of expert and opinion testimony

. 31 Am.Jur.2d Expert and Opinion Evidence Sec. 129 at p. 137. In the instant case, Dr. Sw an’s role as a witnes

s will be to establi sh the standard of care fo r practicing physicians in the community and that the conduct of the defe ndants brea ched or violated that stand ard of care. Obviously , there will be countervailing

proof concerning the standard of care and the vi olation thereof, and the jurymust give the testimony of every witness who testifies theweight, faith, and credit that the testimony deserves. Certainly, the truthfulnes s of the witness wil l be a matter of grave concern for the jury in making this determination. Dr. Swan was bound by the ethical rules of his profession, and yet engaged in a practice of deception for a number of years even though he knew that his acts could constitute gr ounds for revocation of his license. His veracity as a witness should surel y be questioned by virtue of this conduct. M oreove r, we must consider the cont ext of Dr. Swan’s r

ole. He is, in effect,8

pronouncing a judgment asto the conduct of fellow physicians. It seems to this Court that one who undertakes such a task is exposed to a determination of his own view of the profess ion by virtu e of his o wn conduct. Dr. Swan’s conduct could beconstrued to show disdain for a physician’ s obligation t o practice the profession on the highest ethical plane with an ongoing deception during the continuance of the activities. In short, the jury must determine whether Dr. S wan’s testimony conce rning the conduct of the defendants is truthful and in giving weight to his testimony, the jury should have the benefit of evidence concerning his veracity and character. The trial court obvious ly determined that defendants ’ proposed crossexamination would elicit rel evant evidence, and that the probative value of the evidence, under the facts of this case, substantially outw eighs its prejudici al effect. The trial court did not abuse i ts discretion in denyi ng the motion in limine

. Accordin gly, the order

of the trial court is affirmed, and this case is remanded for
suc h f urther proceedings as may be necessary. Costs o f the appeal are assessed against the appellant.

_____________________________ W . FRANK CR

AWFORD, P.J. , W.S. CONCUR:

___________________________________ DAVID R. FA

RMER, JUDGE

___________________________________ HOLLY KIRBY LI LLARD, JUDGE