### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 11, 2001 Ses sion The ESTATE OF DAVID S. BROCK, SR., by WANDA BROCK YADON, Executrix and Surviving Spouse of David S. Brock, Sr. , v. TOIVO E. RIST, M.D., and DERMATOLOGY ASSOCIATES OF KNOXVILLE, P.C.

Direct Appeal from the Circuit Court for Knox County No. 1-390-98 Hon. Dale C. Workman, Circuit Judge

FILED JULY 10, 2001
No. E2000-02459-C0A-R3-CV

A jury returned a verdict for defendants in medical malpractice action which was approve d by the Tr ial Judge. On appeal, plaintif f seeks new trial

on the grounds the

re is no material e

vidence to support the verdict and the Trial Judge erred in refusing to permit two of plaintiff’s experts to testify and allowing defendants to offer in eviden c e a portion of an expert witness’s deposition taken for discovery.

We affirm the Judgm

ent of the Trial Cou

rt.

Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.

H ERSCHEL P ICKENS F RANKS , J., d el ivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
Donna Keene Hol

t and David E. Waite

, Knoxville, Tenness

ee, for Appella

nt. Douglas L. D

utton, Albert J. Har

b and Amy V. H

ollars, Knoxville, Te

nnessee, for App

ellees.

OPINION

In this medical malpractice action, a jury re turned a verdict for the defendants, and plaintiff has appealed.

On appeal, plaintif

f argues there

is no material evidence to support the jury verdic

t, and the refusal by the Trial Judge to permit certain of plaintiff’s witnesses to testify, along with the Court’s allowing defen

dants tooffer certain expert testimony from a discovery deposition over the-2-

objection of the pl

aintiff, constitut

e reversible er

ror and require

a new trial.
Where a trial Judge, sitting as thirteenth juro r, approves a jur

y verdict, our review is limited to determining whether there is any material evidence to support the ve r dict. Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (T enn. 1994); Overstreet v. Shoney’s Inc ., 4 S.W.3d 694, 718 (Tenn. Ct. App. 1999). We conclude, from our review of the record, that material evidence supports the jury verdict in favor of the defendants.

Defen dant, Dr. T oivo E. Rist, removed a mole from the deceased, David Stephan Brock, Sr., on March 25, 1987. Brock subseque ntly sought t

reatment on April

26, 1988 with plastic surgeon Dr. Dean Kleto. Dr. Kleto performed further surgery and reco nst ruct ive sur gery, and tissue samples were sent to Dr. Bruce Bellomy for patholog y analysis. Dr. Bellomy

consulted with Dr. Milton Okun, a dermatopthaologist, who found features of the sample were s

uggestive of m

elanoma buthe did not

offer a definitive diagnosis. After receiving Dr. Bellomy’s final pathology report, Dr. Kleto preformed a wide re-excision of the lesion of Brock Sr.’s nose on June 22, 1988. The pathology report on the tissue from that surgery found “minute foc

us of residual aty

pical nevus cells , consistent with malignant melanoma in situ, showing complete margins of excision.” Brock died on April 10, 1991, from a matastatic melanoma of the stomach and liver.

Dr. Rist’s treatment notes from his March 25, 1987 appointment with B rock states: “lesio n right side of nose area, R/O pigme

nted BCC, deaden

ed, transected,

desiccated.” D

r. Rist testified that the term “transect” is identical to “shave biopsy” and that this “shave” is of a “sufficient depth to capture a dysplastic

nevus, [and] it’s also

sufficient depth

to capture a melanoma.” There are mechanisms by

which a doctor could remove only a lay er of skin the thinness of the epi dermis, butDr. Rist testified that he did not have the equipment necessary to perform this thin shave. The knife that he used was several times thicker than the depth of the epidermis. He further testified that when he shav es a lesion deep enough to diagnose a dysplastic n

evus, that shave is

of such a depth to also diagnose malignant melanoma in situ because melanoma starts in the top layer.

He sen t a tissue sample fo r examination to Dr.

James L. O’Quin

n, a dermatolo

gis t in Augusta, G eorgia. Dr. O’Quinn’s pathology report noted the pr esence of a central dermal component, with a thinner shoulder surrounding it. This descr iption is consistent with Dr. Rist’s testimonythat he used a deep shave technique wh ich reached down into the dermis and produced a sample that was thicker in the middle than on the sides. Wanda Brock Yadon testified that after some healing had occurred, there was a dep ress ion on the side of the deceased’s nos

e, which is consistent with the deep shave technique.

Plaintiff contends that Dr. R ist’s testimony about his customary pract ice was “merely

” circumstantial evidence, and as such “it is not loo

ked upon favorab

ly by the law, which prefers direct evidence.” Plaintiff argue s that all the “dire

ct, positive and uni

mpeached testim

ony of witnes ses who were testif

ying based on actual recall, direct observation and pe rsonal knowledge were all to the effect that the mole was still present on the side of Mr. Brock’s nose after the treatment by

Dr. Rist.”-3- Contrary to Plaintiff’s contention, circumstantial evidencemay be used to prove any material fact. See Law v. Louis vi lle & N.R. Co. , 170 S.W.2d 360, 363 (Tenn. 1943); Knapp v. Holiday Inns, Inc. , 682 S.W.2d 936, 944 (T enn. Ct. App. 1984) . In certain cases, our courts have recognized

that a well-conne cte d train of circumstances may be more convincing than direc t evidence on the same matters. Knapp (citing Ballew v. Ballew , 309 S.W.2d 125, 128 (T enn. Ct. App. 1957)).
Dr. Rist’s testimony based upon his notes from the March 25, 1987 procedur e and his routine practice, states that he removed the entire lesion clinically from Mr. Brock. He further testified that he absolutely tries to remove the entire lesion and not just a part. This testimony constitutes material evidence supporting the jury’s verdict.

Plaintiff contends that the Trial Court erred in excluding relevant medical evidence in support of plaintiff’s case and also in a llowing defenda

nts to read into

evidence the deposition of Dr. O’Quinn.
The admission or exclusion of evidence is within the sound discret i on of the trial court. See Seffernick v. Saint Thomas Hosp ., 969 S.W.2d 391, 393 (Tenn . 1998); White v. Vande rbilt University , 21 S.W.3d 215, 222 (Te nn. Ct. App. 1999). D iscretio nary decisions require conscientious judgment and they mus t take the applicable law into account and must also be consistent with the facts bef

ore the court.Se e White and Overstreet v. Shoney’s Inc

. , 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). A trial court’s discreti onary dec isions should

be reviewed to determine: (1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court identified and applied the a pplicable lega

l principles, and (

3) whether the trial court’s decision is within the range of a

cceptable alte

rnativ es. White , 21 S.W.3d at 223. We permit discretionary decisions to stand if reasonable judicial minds can differ concerning its soundness. See White , 21 S.W.3d at 223, Overstreet , 4 S.W.3d at 709.

An Agreed Scheduling Or der w as entered on Ma

y 5, 1999, set

ting out specific discovery and motion deadlines in this case. Pursuant to this Order, plaintiff was to name all expert witnesses and answer the defendant’s interrogatories on or before June 11, 1999. Both parties were allowed to “supplement the testimony of their experts” up until September 1, 1999. Plaintiff answered D efendants’ Interrogatories on June 11, 1999, naming Dr. Bandeian, Dr. O’Q uinn, and Robert Bohm, as her experts.

On July 27, 1999, Plaintiff filed a supplemental Tenn. R. Civ. P. Rule 26 disclosure naming Dr. Okun as an expert witness. She then filed a second supplemental Rule 26 disclosure on August 26, 1999, naming D

r. Safer as an e

xpert witness. Def

endants moved to str

ike these two experts on the basis that they were named after the deadline imposed by the Scheduling O rder. The Trial Court granted this motion and disallowed the use of any expert testimony by Dr. Okun and Dr. Safer.
Tennessee Rul e of Civil Procedure 26.02

allows a party

through interro

gatories to-4-

require the other party to identify any expert witnesses the other party expects will testify at trial along with the substance of that expert’s te

stimony. I

n addition, a party

is under a duty

to “seasonably

” supplement his re

sponse to a reque

st for the identity

of expert witnesse

s expected to be called at trial. Tenn. R. Civ. P. 26.05.

Under the provisions of the Rules, various sanctions are provided for when a party abuses the dis cov ery p roc ess, and the trial judge is clothed w

ith the authority

to take appropria

te correcti ve acti on against a party for discovery abuse. Lyle v. Exxon Corp. , 746 S.W.2d 694, 699 (Tenn. Ct. App. 1988) (citing Strickland v. Strickland , 618 S.W.2d 496, 601 (Tenn. Ct. App. 1981)).

In Lyle, the Court recognized that excluding the testimony of an expert witness may be an appropriate s

anction, and liste

d four factors th

at the trial court

should consider in determining the appropriate sanction. Id. , at 699. These factors are (1) the explanation given for the failure t

o name the witness; (2) the importance of the testimony of the witness, (3) the need for time to prepar e to meet the testimony; and (4) the possibility of a continuance. Id

.

Applying these factors,

it is clear that the Tr ial Judge did not abuse his disc retion in excluding the expert testimony of Drs. Okun and Safe

r. Plaintiff explain

ed that her failu

re to name the experts earlier w

as due to the fact

that she “just nee

ded to replace one, wasn’t sure about another one, and I need a

dermatologist.”

Plain tiff’s counse

l stated that she had sent records to a dermatologist prior to the deadline but was h aving communica

tion problems and w

as unable to timely secure a expert dermatologist for trial. No explan ation was given as to why these two wit nesses were necessary, as she had already named Dr. Bandeian as an expert on the standa rd o f care. The naming of additional experts two months prior to trial caused the defendants to alert the Court to a possible need for defendants to obtain additional experts. The Plaintiff concedes that a continuance would not have been desirable because of the long time that had passed since the initial law suit was commenced. However, plaintiff argues that defendant was not prejudicedby the latenaming of Dr. Okun as an expert because he had previously been listed as a witness. However, Dr. Okun had bee n listed as someone with knowledge of the facts of the case, and that previous disclosure m ade no mention that Dr. O kun would be offe

red as an expert, a

s well. Plaintiff al

so argues that the agreed Order allows her to s upplement her list of witnesses until September 1. However, that Order simply allows her to supplement “the testimony ” of her experts and does not authorize adding additional experts.

We conclude the Tri

al Court properly

acte d within its discretion in excluding the experttestimony of Drs. Okun and Safer. See Buckner v. Hassell , 4 4 S.W.3d 78 (Tenn. Ct. App. 2000). In ans

wering defend

ants’ interrog

atories, plaintif

f identified Drs.

Okun, Kleto and Ku

bota as witnesses in the ca

se, but did not desig

nate them as expert witnesses. The Trial Court excluded certain testimony of these physicians on the groun d that the testimony represented opinions by experts who had not been tim ely identified as Rule

26 experts for the Pl

aintiff. The Tria

l Judge is sup por ted in h is r uli ngs b y Bucker at p. 84. We affirm the Trial Court’s ruling on this issue. However, p l aintiff argue

s the testimony

of Dr. Okun and Ku

bota were wrong

fully-5-

excluded concerning the pathology and progr ession of a melanoma in general, and did not specifically

address a review and diagnosis of Brock’s lesion. The exc luded testimony asked Dr. Okum about the criter

ia for pathologi

sts with respect to what should be labeled a dysplastic nevus versus melanoma in situ. This clearly asks for Dr. Okun’s expert opinion. Likewise, the excluded testimonyof Dr. Kleto involved matters of expert opinion in that he testified as to the standard of care, from a surgeon’s perspective, for removing a dy splastic nevus. For the s ame reason s, Dr. Kubot a was precluded from testifying as to the standard of car e from a medical oncologist’s perspective, fo

r removing a dy

splastic nevus. Finally , it is argu ed that the Court er red in allowing th

e defendants of

fering in testimony from Dr. O’Quinn’s discovery deposition.

Dr. James O’Quinn was th e pathologist in

Georgia who examined the slides sent by Dr. Rist. Defendant na

med Dr. O’Quinn a

s a witness

with knowledge of the facts of the case in the original filing of the ca

se, and pla

intif f took Dr. O’Quinn’s discovery deposition on February 9, 1995. In defendants’ response to plaintiff’s first set of interrogatories in 1998, defendants

included Dr. O’Quinn in

the list of possible expert witnesses, stating that deposition taken in February 1995 may be read into

evidence. Plaintiff

also identified Dr

. O’Quinn as a Rule

26 expert witness in i

ts own case. At trial, the Court allowed defendant to read from the deposition of Dr. O’Quinn over the objection of plaintiff, and without making any showing tha t Dr. O ’Quinn had ever b een asked to appear live at trial or give a deposition for evidence.

Rule 32 of the TennesseeRules of Civil Procedure governs the use fodepositions in court pro ceed ings . Th e Ru le a llo ws t he u se o f a de pos iti on a gain st a ny par ty who was present or represented at

the taking of the

deposition in acco

rdance with the f

ollowing: (3) The deposition of a witness, whether or not a party, may be used by

any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing or is out o f state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or t esti fy because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procur e the attendance

of the witness

by subpoena or the witness is exempt from subpoena to trial under T.C.A. § 24-9-101; or (E) upon application and notice, that su ch exceptional cir

cumstances exist as t o make it desirable, in the in terest of justice and with due regard to the importance of presenting the testimony

of witnesses oral

ly in open court, to allow the deposition to be used. Notwithsta

nding th e foregoing provisions, depositions of experts taken pursuant to the provisions of

Rule 26.02(4) may

not be used at t

he t rial expert to impeach in accordance with the provisions of Rule 32.01(1). (4) If only part of a deposition is offered in e vide nce by a pa

rty, an adv

erse party may require the offering party to introduce any ot

her part which ough

t in-6- fairness to be considered with the party introduced, and any party may

introduce any other parts.
Tenn. R. Civ. P. 32.01.

Dr. O’Quinn was a witness with knowledge of facts of the case, and was not merel y an expert obtained to render an opinion in the case. He resides in Georgia, and meets the distance or location criteri

a of Rule 32.01(3)(B). A

ccordingly

, to the extent that Dr

. O’Quinn testifie

d via deposition as to matters rela ting to histreatment of Mr. Brock, the use of the deposition at trial was allowable. The evidence admitted concerned Dr. O’Quinn’s knowledge of the facts as gained as an actor in the treatment of Mr. Brock, but the Court excluded other portions of the deposition in which O’Quinn was offering expert opinion or speculation. We conclude the Trial Judge properly allowed the portions of the deposition to be read into evidence.

For the foregoing reasons, we affirm the judgment of the Trial Court and rema nd and assess the cost of

the appeal to app

ellant.

_________________________

H ERSCHEL P ICKENS F RANKS , J.