IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 11, 2001 Session

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 approved by the

Trial Judge. On appeal, plaintiff seeks new trial on the grounds there is no material evidence 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 evidence a portion of an expert witness’s deposition taken for

discovery. We affirm the Judgment of the Trial Court.

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

HERSCHELPICKENS FRANKS, J., delivered the opinion of the court, in whichHOUSTON M.GODDARD,

P.J., and CHARLES D. SUSANO, JR., J., joined.

Donna Keene Holt and David E. Waite, Knoxville, Tennessee, for Appellant.

Douglas L. Dutton, Albert J. Harb and Amy V. Hollars, Knoxville, Tennessee, for Appellees.

OPINION

In this medical malpractice action, a jury returned a verdict for the defendants, and

plaintiff has appealed. 

On appeal, plaintiff argues there is no material evidence to support the jury verdict,

and the refusal by the Trial Judge to permit certain of plaintiff’s witnesses to testify, along with the

Court’s allowing defendants to offer certain expert testimony from a discovery deposition over the
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objection of the plaintiff, constitute reversible error and require a new trial.

Where a trial Judge, sitting as thirteenth juror, approves a jury verdict, our review is

limited to determining whether there is any material evidence to support the verdict. Reynolds v.

Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 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. 

Defendant, Dr. Toivo E. Rist, removed a mole from the deceased, David Stephan

Brock, Sr., on March 25, 1987. Brock subsequently sought treatment on April 26, 1988 with plastic

surgeon Dr. Dean Kleto. Dr. Kleto performed further surgery and reconstructive surgery, and tissue

samples were sent to Dr. Bruce Bellomy for pathology analysis. Dr. Bellomy consulted with Dr.

Milton Okun, a dermatopthaologist, who found features of the sample were suggestive of melanoma

but he 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 focus of residual atypical 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 Brock states:

“lesion right side of nose area, R/O pigmented BCC, deadened, transected, desiccated.” Dr. 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 layer of skin the thinness of the epidermis,

but Dr. 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 shaves a lesion deep enough to diagnose a dysplastic nevus, that shave is of such a depth

to also diagnose malignant melanoma in situ because melanoma starts in the top layer. 

He sent a tissue sample for examination to Dr. James L. O’Quinn, a dermatologist

in Augusta, Georgia. Dr. O’Quinn’s pathology report noted the presence of a central dermal

component, with a thinner shoulder surrounding it. This description is consistent with Dr. Rist’s

testimony that he used a deep shave technique which 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 depression on the side of the deceased’s nose, which is

consistent with the deep shave technique. 

Plaintiff contendsthatDr.Rist’s testimony about his customary practicewas “merely”

circumstantial evidence, and as such “it is not looked upon favorably by the law, which prefers direct

evidence.” Plaintiff argues that all the “direct, positive and unimpeached testimonyofwitnesses who

were testifying based on actual recall, direct observation and personal 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.”
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Contrary to Plaintiff’s contention, circumstantial evidence may be used to prove any

material fact. See Law v. Louisville & N.R. Co., 170 S.W.2d 360, 363 (Tenn. 1943); Knapp v.

Holiday Inns, Inc., 682 S.W.2d 936, 944 (Tenn. Ct. App. 1984). In certain cases, our courts have

recognized that a well-connected train of circumstances may be more convincing than direct

evidence on the same matters. Knapp (citing Ballew v. Ballew, 309 S.W.2d 125, 128 (Tenn. Ct.

App. 1957)).

Dr. Rist’s testimony based upon his notes from the March 25, 1987 procedure 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 allowing defendants to read into evidence the deposition of

Dr. O’Quinn.

The admission or exclusion of evidence is within the sound discretion of the trial

court. See Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); White v. Vanderbilt

University, 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999). Discretionary decisions require

conscientious judgment and they must take the applicable law into account and must also be

consistent with the facts before the court. See White and Overstreet v. Shoney’s Inc., 4 S.W.3d 694,

708 (Tenn. Ct. App. 1999). A trial court’s discretionary decisions 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 applicable legal principles, and (3) whether the trial court’s decision is

within the range of acceptable alternatives. 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 Order was entered on May 5, 1999, setting 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 Defendants’ Interrogatories on June 11, 1999, naming Dr. Bandeian, Dr. O’Quinn, 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 Dr. Safer as an expert witness. Defendants moved to strike these two

experts on the basis that they were named after the deadline imposed by the Scheduling Order. The

Trial Court granted this motion and disallowed the use of any expert testimony by Dr. Okun and Dr.

Safer. 

Tennessee Rule of Civil Procedure 26.02 allows a party through interrogatories to
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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 testimony. In addition, a party is under a duty to

“seasonably” supplement his response to a request for the identity of expert witnesses 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 discovery process, and the trial judge is clothed with the authority to take appropriate

corrective action 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 sanction, and listed four factors that the trial court should consider in determining

the appropriate sanction. Id., at 699. These factors are (1) the explanation given for the failure to

name the witness; (2) the importance of the testimony of the witness, (3) the need for time to prepare

to meet the testimony; and (4) the possibility of a continuance. Id. 

Applying these factors, it is clear that the Trial Judge did not abuse his discretion in

excluding the expert testimony of Drs. Okun and Safer. Plaintiff explained that her failure to name

the experts earlier was due to the fact that she “just needed to replace one, wasn’t sure about another

one, and I need a dermatologist.” Plaintiff’s counsel stated that she had sent records to a

dermatologist prior to the deadline but was having communication problems and was unable to

timely secure a expert dermatologist for trial. No explanation was given as to why these two

witnesses were necessary, as she had already named Dr. Bandeian as an expert on the standard of

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 prejudiced by the latenaming of Dr. Okun as an expert because he had previously been listed as a witness. However, Dr.

Okun had been listed as someone with knowledge of the facts of the case, and that previous

disclosure made no mention that Dr. Okun would be offered as an expert, as well. Plaintiff also

argues that the agreed Order allows her to supplement 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 Trial Court properly acted within its discretion in excluding the

expert testimony of Drs. Okun and Safer. See Buckner v. Hassell, 44 S.W.3d 78 (Tenn. Ct. App.

2000). In answering defendants’ interrogatories, plaintiff identified Drs. Okun, Kleto and Kubota

as witnesses in the case, but did not designate them as expert witnesses. The Trial Court excluded

certain testimony of these physicians on the ground that the testimony represented opinions by

experts who had not been timely identified as Rule 26 experts for the Plaintiff. The Trial Judge is

supported in his rulings by Bucker at p. 84. We affirm the Trial Court’s ruling on this issue.

However, plaintiff argues the testimony of Dr. Okun and Kubota were wrongfully
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excluded concerning the pathology and progression of a melanoma in general, and did not

specifically address a review and diagnosis of Brock’s lesion. The excluded testimony asked Dr.

Okum about the criteria for pathologists 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

testimony of 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 dysplastic nevus. For the same reasons, Dr.

Kubota was precluded from testifying as to the standard of care from a medical oncologist’s

perspective, for removing a dysplastic nevus.

Finally, it is argued that the Court erred in allowing the defendants offering in

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

Dr. James O’Quinn was the pathologist in Georgia who examined the slides sent by

Dr. Rist. Defendant named Dr. O’Quinn as a witness with knowledge of the facts of the case in the

original filing of the case, and plaintiff 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 its

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 that Dr. O’Quinn had ever been asked to

appear live at trial or give a deposition for evidence.

Rule 32 of the Tennessee Rules of Civil Procedure governs the use fo depositions in

court proceedings. The Rule allows the use of a deposition against any party who was present or

represented at the taking of the deposition in accordance with the following: 

(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 of 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 testify

because of age, illness, infirmity, or imprisonment; or (D) that the party offering the

deposition has been unable to procure 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 such exceptional circumstances exist as to make it

desirable, in the interest of justice and with due regard to the importance of

presenting the testimony of witnesses orally in open court, to allow the deposition to

be used. Notwithstanding the foregoing provisions, depositions of experts taken

pursuant to the provisions of Rule 26.02(4) may not be used at the trial expert to

impeach in accordance with the provisions of Rule 32.01(1).

(4) If only part of a deposition is offered in evidence by a party, an adverse

party may require the offering party to introduce any other part which ought in
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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 merely

an expert obtained to render an opinion in the case. He resides in Georgia, and meets the distance

or location criteria of Rule 32.01(3)(B). Accordingly, to the extent that Dr. O’Quinn testified via

deposition as to matters relating to his treatment 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 remand and

assess the cost of the appeal to appellant.

_________________________

HERSCHEL PICKENS FRANKS, J.