IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 16, 2021 Session

WILLIE ADAMS v. ILLINOIS CENTRAL RAILROAD COMPANY

Appeal from the Circuit Court for Madison County

No. C-19-196 Donald H. Allen, Judge

___________________________________

No. W2020-01290-COA-R3-CV

___________________________________

Appellee alleges that Appellant abused the discovery process. The trial court agreed, 

granting Appellee’s motion to exclude Appellant’s expert witnesses and, consequently, 

granting summary judgment in Appellee’s favor. Because the basis for the imposition of 

the sanction is unclear and the trial court does not engage in the necessary analysis 

regarding discovery sanctions, we vacate and remand for further proceedings. 

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

Remanded.

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY 

ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.

Thomas J. Joyce and Hailey A. Tutton, Conshohocken, Pennsylvania and Floyd Don Davis, 

Winchester, Tennessee, for the appellant, Willie Adams.

Brooks E. Kostakis and John J. Bennett, Memphis, Tennessee and Thomas R. Peters, 

Belleville, Illinois, for the appellee, Illinois Central Railroad Company.

OPINION

FACTS/PROCEDURAL HISTORY

Plaintiff/Appellant Willie Adams (“Appellant”) filed a complaint under the Federal 

Employers’ Liability Act (“FELA”) on January 31, 2018, in Shelby County Circuit Court

alleging, inter alia, that his colon cancer was caused by the negligence of his former 

employer, Illinois Central Railroad Company (“Appellee”). The parties engaged in some 

discovery before the case was transferred by agreement to Madison County Circuit Court 

01/19/2022
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(“the trial court”) in August 2019. The parties entered into an agreed scheduling order on 

January 15, 2020, which provided in relevant part as follows:

1. Responses to all outstanding written discovery shall be provided by 

February 28, 2020.

2. All discovery depositions of any fact witness, excluding experts, shall be 

concluded on or before June 12, 2020.

3. On or before March 18, 2020, [Appellant] shall designate any expert 

witnesses he may call at trial. This designation shall be accompanied by 

supplemental interrogatory answers and/or expert witness disclosure 

information setting forth the information required by [Tennessee Rules of 

Civil Procedure] 26.02(4)([A])([i]) and 26.05.

* * *

7. All designated expert witnesses shall be made available for discovery 

deposition, if requested, on or before May 29, 2020. . . .

8. No evidentiary/trial deposition may be taken unless the opposing party has 

had the opportunity to conduct a discovery deposition at least five (5) days 

prior to the date established for the taking of the evidentiary/trial deposition.

9. All evidentiary depositions shall be taken on or before June 5, 2020.

* * *

12. The jury trial of this matter is set to begin August 12, 2020, [] in Madison 

County Circuit Court, before the Honorable Donald Allen.

13. The schedules and deadline dates set forth herein may be modified only 

by written consent of counsel for all parties, or by Order of this Court upon 

sufficient cause shown.

In the early months of 2020, the COVID-19 virus caused “an unprecedented public 

health crisis” around the world, Fisher v. Hargett, 604 S.W.3d 381, 386 (Tenn. 2020), 

which, to this day, “rages on, . . . posing new risks,” In re MCP NO. 165, No. 21-4027, 

2021 WL 5989357, at *1 (6th Cir. Dec. 17, 2021). On March 13, 2020, the Tennessee 

Supreme Court entered an emergency Order related to COVID-19, which stated, in relevant 

part:
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Deadlines set forth in court rules, statutes, ordinances, administrative 

rules, or otherwise that are set to expire between March 13 and March 31, 

2020 are hereby extended through April 6, 2020. 

* * *

This order applies statewide to all courts and court clerks’ offices 

except administrative courts within the Executive Branch and federal courts 

and federal court clerks’ offices located in Tennessee.

According to Appellant’s brief, Appellant’s counsel’s law firm was closed and transitioned 

to remote work between March 13, 2020 and May 31, 2020. On March 26, 2020, 

Appellee’s counsel emailed Appellant’s counsel stating that Appellee had not received 

Appellant’s designations and disclosures of experts, which were due on March 18, 2020 

under the scheduling order. Appellant’s counsel responded via email the next day, stating 

that Appellant intended to call R. Leonard Vance, Ph.D. as his liability expert, and Theron 

Blickenstaff, M.D. as his medical expert. Appellant’s counsel attached Vance and 

Blickenstaff’s curricula vitae to his email response and further stated that Appellant’s 

counsel would provide Appellee’s counsel with narrative expert reports when Appellant’s 

counsel received them. According to Appellee’s brief, Vance and Blickenstaff were new 

experts—whereas two other experts, Dr. Roy Berger and Michael Ellenbecker, had 

previously been disclosed, prior to the case being transferred to the trial court.

On March 25, 2020, the Tennessee Supreme Court issued another COVID-19-

related Order, which further extended the deadlines referenced in the March 13 Order to 

May 6, 2020. On March 31, 2020, the supreme court issued a third Order, titled “Order 

Clarifying the Extension of Deadlines,” which provided, in pertinent part: “The Court 

further clarifies that the Court’s prior orders apply generally to discovery deadlines. 

However, the orders do not apply to deadlines set forth in pre-trial scheduling orders 

entered pursuant to Rule 16 of the Tennessee Rules of Civil Procedure. Trial courts may 

extend such deadlines in their discretion.” 

On April 15, 2020, Appellant’s counsel emailed Vance and Blickenstaff’s narrative 

reports to Appellee’s counsel. The next day, Appellee’s counsel emailed Appellant’s 

counsel requesting dates that Vance and Blickenstaff were available for discovery 

depositions. On April 27, 2020, counsel for Appellee reiterated this request. On May 1, 

2020, Appellee’s counsel emailed Appellant’s counsel requesting “all documents relied 

upon or referenced by []Vance and []Blickenstaff for purposes of this case.” According to 

Appellee’s brief, Appellee’s counsel “attempted additional communication to 

[Appellant’s] counsel via phone, for purposes of both requests [i.e., discovery deposition 

dates and the documents relied on by Vance and Blickenstaff], but received no response . 

. . .”

On May 27, 2020, Appellee filed a “Motion to Exclude Appellant’s Expert 
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Witnesses Based on Failure to Comply with Agreed Scheduling Order.” Therein, Appellee 

claimed that Appellant had: “failed to provide the required and requested 26.02(4)([A])([i]) 

information of the previously named expert witnesses, Dr. Roy Berger and Michael 

Ellenbecker, by March 18, 2020”; identified Vance and Blickenstaff late, on March 27, 

2020 (per the March 18, 2020 scheduling order deadline) and inadequately, as “no narrative 

report or other disclosure of the substance or grounds for any expert’s opinion was provided 

. . . .”; “finally provided the requisite narrative report of Dr. Vance and Dr. Blickenstaff” 

on “April 15, 2020, nearly a month after [Appellant’s] expert disclosure deadline and a 

mere two days prior to [Appellee’s] expert disclosure deadline”; did not, “at [any] time 

prior to the expiration of [Appellant’s] expert witness disclosure deadline of March 18,

2020, nor up to the present date, [] ever mention to [Appellee], much less seek or request, 

any agreed extension of this deadline,”; did not serve amended discovery responses 

substituting the two newly named experts for the previous experts, pursuant to Rule 26.05 

of the Tennessee Rules of Civil Procedure; did not make Vance and Blickenstaff available 

for discovery depositions, in contravention of the agreed scheduling order; and did not 

provide the materials that Vance and Blickenstaff relied on in forming their opinions. 

Appellee asserted that it had been prejudiced by Appellant’s discovery failures because it 

was frustrated in preparing a defense and its own properly and timely disclosed experts 

were deprived of the opportunity to sufficiently analyze Appellant’s experts’ opinions. 

Appellee thus requested that the trial court exclude Appellant’s expert evidence pursuant 

to Rules 16 and 37 of the Tennessee Rules of Civil Procedure.

Appellant responded on June 11, 2020, arguing, inter alia, that exclusion of his 

experts was not the appropriate remedy, because it would ultimately eliminate his only 

potential recourse for recovery. Appellant claimed that COVID-19 impacted his ability to 

properly complete discovery, and that he had not deliberately acted in bad faith, to 

prejudice Appellee, or to ignore opposing counsel or the court’s orders. He argued that 

under relevant caselaw, exclusion of experts is only appropriate if the discovery failure is 

knowing and deliberate. He stated that he had assumed, pursuant to the Tennessee Supreme 

Court’s March 13, 2020 Order, that the discovery deadlines in this case were extended. 

Nevertheless, he had responded to Appellee’s March 26, 2020 email, providing Vance and 

Blickenstaff’s names, that they would be testifying as liability and medical causation 

experts, respectively, and their resumes, following up with their narrative reports on April 

15, 2020. He also contended, citing various Tennessee cases, that he had given Appellee 

reasonable notice of the nature of the testimony to be expected from the experts required 

under Rule 26.02(4) and necessary to ensure against unfair surprise. He further explained 

that his experts are in “high risk” categories for complications from COVID-19, and thus 

their availability for depositions was limited. Appellant asked the trial court to modify the 

agreed scheduling order in light of COVID-19 to allow Appellee’s experts time to review 

Appellant’s experts’ narrative reports and to make Appellant’s expert witnesses available 

for depositions.

On June 30, 2020, Appellee filed a motion for summary judgment, arguing that 
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Appellant’s experts were required in the case, and therefore, if the motion to exclude the 

experts was granted, Appellee was entitled to summary judgment. Appellant responded in 

opposition on July 10, 2020, and again requested that the trial court modify the scheduling

order in light of COVID-19 and reopen discovery to allow Appellee’s experts time to 

review Appellant’s experts’ reports and make Appellant’s experts available for 

depositions. He also conceded that if his experts were excluded, Appellee would 

necessarily prevail on summary judgment. 

The trial court held a hearing on July 17, 2020 on Appellee’s motions to exclude 

expert testimony and for summary judgment, where counsel for each party made 

arguments. No exhibits or other evidence were officially entered in the record, nor did any 

witness testify under oath. Counsel for Appellant reiterated many of the arguments 

Appellant had made in his response to Appellee’s motion to exclude, explaining, inter alia, 

that neither Vance nor Blickenstaff was willing to conduct any depositions when Appellee 

requested their depositions, even via Zoom, because of COVID-19 and their own related 

health risks (Blickenstaff had a medical note to that effect and Vance, who is located in 

Virginia, had stated that he would not travel for any trials). Instead, both experts were not 

receptive to participating in depositions until the week prior to the July 17 hearing. 

Therefore, Appellant’s counsel had finally procured each expert’s availability to be 

deposed via video conference on August 4, 5, or 6 (each expert was still unwilling to testify 

live). He told the court that he had offered those dates to Appellee’s counsel before the 

hearing started. Because those dates were close to the original trial date of August 12, he 

also asked the trial court for a brief continuance, offering to see if his experts would be 

willing to conduct depositions earlier and explaining that he did not want to prejudice 

Appellee by rushing the trial forward. He also explained that he had asked Appellee’s 

counsel when he arrived for the hearing if Appellee would agree to modify the scheduling 

order, which it would not. 

The trial court asked Appellant’s counsel which portions of the agreed scheduling 

order Appellant had complied with, and Appellant’s counsel answered that Appellant had

timely completed the outstanding written discovery (by February 28, 2020) and the 

discovery depositions of fact witnesses, including Appellant and two treating doctors (prior 

to June 12, 2020). Appellee’s counsel claimed, however, that Appellee had not received 

certain previously requested documents. Counsel for Appellant also represented that he had 

not acted deliberately in failing to meet some of the discovery requirements. Instead, he 

apologized for his lack of communication with Appellee’s counsel, accepted responsibility 

for not meeting all discovery requirements, and repeatedly offered to accommodate 

Appellee’s discovery needs going forward. He informed the trial court that Appellant did 

not possess information regarding the foundation for Appellee’s experts’ reports, and thus 

was not at an advantage over Appellee (though he acknowledged that Appellant had not 

requested such information from Appellee).

The trial court orally granted both of Appellee’s motions at the conclusion of the 
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hearing on July 17, 2020. The trial court later entered written orders on August 19, 2020. 

In its order granting the motion to exclude experts, the trial court stated, inter alia:

[Appellant] failed to comply with th[e] deadline and requirement of 

the Agreed scheduling order [to designate expert witnesses, accompanied by 

supplemental interrogatory answers and/or expert witness disclosure 

information setting forth the information required by Rules 26.02(4)(A)(i) 

and 26.05, on or before March 18, 2020].

* * *

At no time prior to the expiration of [Appellant’s] expert witness 

disclosure deadline of March 18, 2020, did [Appellant] ever suggest to 

[Appellee] or its counsel, much less seek or request, any extension of this 

deadline.

* * *

[Appellee’s] counsel repeatedly requested discovery depositions of 

both experts upon receipt of [Appellant’s] untimely expert opinions and 

reports. These requests of [Appellee] received no response from [Appellant] 

whatsoever.

* * *

[A]ll designated expert witnesses were required to be made available 

for discovery deposition, if requested, on or before May 29, 2020. 

[Appellant] failed to comply with this deadline and requirement of the 

Agreed Scheduling Order. Up to the time of hearing, [Appellant’s] counsel 

had made no attempt to remedy this failure, or even to communicate any 

alleged reason for [Appellant’s] noncompliance, to [Appellee’s] counsel.

Rule 37 of the Tennessee Rules of Civil Procedure permits this Court 

to fashion appropriate sanctions where a party fails to comply with a court 

order (Tenn. R. Civ. P. 37.02) and fails to supplement their discovery 

responses as required by Tenn. R. Civ. P. 26.05 (Tenn. R. Civ. P. 37.03). 

Rules 37.02(B) and 37.03(1) permit this Court to prohibit [Appellant] from 

introducing his experts’ testimony into evidence. The 2006 Advisory 

Commission Comment to 37.03 states in part: “The usual sanction will be 

exclusion of evidence at trial.” (emphasis added). In addition, Rule 16.06 of 

the Tennessee Rules of Civil Procedure provides that when “a party or 

party’s attorney fails to obey a scheduling or pretrial order . . . the judge, 

upon motion or the judge’s own initiative, may make such orders with regard 
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thereto as are just,” including “any of the orders provided in Rule 37.02.”

The Court finds, despite [Appellant’s] arguments, that COVID-19 had 

no effect on this case. The Agreed Scheduling Order was in place and 

effective upon the parties, and the Court expected all counsel to comply with 

the deadlines and requirements set forth therein in preparation for a jury trial 

set for August 12, 2020. [Appellee] has complied with the Agreed 

Scheduling Order. However, [Appellant] failed to timely disclose his experts 

pursuant to the Agreed Scheduling Order on March 18, 2020. [Appellant], 

further, failed to produce his late disclosed experts, Dr. Vance and Dr. 

Blickenstaff, by May 29, 2020, as required by the Agreed Scheduling Order. 

The Court finds that [Appellee] has been prejudiced by [Appellant’s] failure 

to abide by the Agreed Scheduling Order and by [Appellant’s] counsel’s 

failure to communicate with defense counsel, failures that were not harmless. 

The Court has considered fully [Appellant’s] response and arguments in 

opposition to this motion and finds that they lack merit, and further finds that 

[Appellant’s] failure to abide by the Agreed Scheduling Order lacks just 

cause to deny the relief sought by [Appellee] in its motion. The Court 

therefore grants [Appellee’s] motion to exclude [Appellant’s] experts R. 

Leonard Vance Ph.D.’s and Theron Blickenstaff, M.D.’s opinions and 

testimony from trial pursuant [to] Rules 37.02, 37.03, and 16.06 of the 

Tennessee Rules of Civil Procedure.

The trial court incorporated the entirety of the transcript from the July 17, 2020 

hearing by reference into its final order.1 The trial court’s comments to Appellant’s counsel 

during the hearing included the following:

[T]he [Tennessee Supreme Court’s March 13] order was very specific. It did 

not affect any scheduling orders already in place by any trial Courts. I mean, 

it is very specific about that. . . . So I’m not sure why anybody would think 

that somehow their scheduling order had been affected because that’s not 

what the Tennessee Supreme Court order said.

* * *

[Y]ou wait until this morning, this morning, to come in and give [Appellee] 

dates that your experts would be available. And those dates are just like a 

week before the trial date; that’s not fair to [Appellee].

 

1 We note that we have previously held, in the context of party-prepared orders, that such “matters 

not a proper part of the [court’s] determination [should not be] included” in the written order. Smith v. UHS 

of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250, at *9 (Tenn. Ct. App. Jan. 18, 2013) 

(citations omitted), aff’d, 439 S.W.3d 303 (Tenn. 2014). 
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* * *

You knew March 18th was your deadline to disclose your experts, you knew 

that, you didn’t do it. Then . . . about a week later they sent you an e-mail 

saying, Hey, we haven’t received it; are you going to do it? Well, at least you 

sent the names, I’ll give you that. But then you haven’t done anything else to 

make them available for them to take their depositions.

* * *

[A]gain, this is a situation where the COVID-19 had no [e]ffect on this case, 

okay. . . . . What the Court ordered for the scheduling order, [Appellant’s] 

counsel has just ignored. You have not complied with it at all.[2]

Based on the exclusion of the experts, the trial court also granted summary judgment 

in favor of Appellee. Appellant filed a motion to alter or amend the judgment, which was 

denied by order of December 1, 2020. Appellant thereafter filed a timely appeal.

ISSUES PRESENTED

Appellant raises the following issues, as we perceive them:3

1. Whether the trial court abused its discretion when it excluded Appellant’s expert 

witnesses.

2. Whether the trial court properly granted Appellee’s motion for summary 

judgment.

STANDARD OF REVIEW

As this Court has previously explained, 

 

2 The trial court’s final order granting the motion to exclude is only signed by counsel for Appellee. 

Thus, it appears that the order may have been party-prepared. We have specific rules for party-prepared 

orders in Tennessee. “First, the findings and conclusions must accurately reflect the decision of the trial 

court. Second, the record must not create doubt that the decision represents the trial court’s own 

deliberations and decision.” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014). To that 

end, a court’s written order should “accurately reflect the trial court’s oral rulings.” Lakeside, 2013 WL 

210250, at *6, aff’d, 439 S.W.3d 303 (Tenn. 2014). Here, the findings in the written order do not precisely 

match the trial court’s oral rulings, as certain additional findings are made in the order that are not reflected 

in the transcript. To ensure that a party-prepared order is the product of a trial court’s independent judgment, 

the order should mirror the court’s oral rulings.

3 Appellant does not raise any issue regarding the denial of his motion to alter or amend. As such, 

we will not discuss it in detail.
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Rule 37 of the Tennessee Rules of Civil Procedure declares that the courts 

have the power to impose sanctions upon a party for failure to make or 

cooperate in discovery. A variety of sanctions are available to the court, 

including, in appropriate cases, dismissing the action or proceeding or any 

part thereof, or rendering a judgment by default against the disobedient party. 

Less severe sanctions include prohibiting parties from introducing 

designated evidence, refusing to allow a party to support or oppose 

designated claims or defenses, and striking out pleadings or parts of 

pleadings.

Griffith Servs. Drilling, LLC v. Arrow Gas & Oil, Inc., 448 S.W.3d 376, 379 (Tenn. Ct. 

App. 2014) (internal quotation marks omitted) (quoting Cincinnati Ins. Co. v. Mid-S. 

Drillers Supply, Inc., No. M2007-00024-COA-R3-CV, 2008 WL 220287 (Tenn. Ct. App. 

Jan. 25, 2008)). “A trial court has broad discretion when sanctioning a party for failing to 

comply with the discovery rules or orders of the court.” Gordon v. Chapman, No. W2019-

01655-COA-R3-CV, 2020 WL 7861471, at *2 (Tenn. Ct. App. Dec. 22, 2020) (citations 

omitted). Therefore, “[a] trial judge’s exclusion of expert witness testimony is subject to 

an abuse of discretion review by this Court.” Buckner v. Hassell, 44 S.W.3d 78, 83 (Tenn. 

Ct. App. 2000) (citing Lyle, 746 S.W.2d at 699 (citing Brooks v. United Uniform Co., 682 

S.W.2d 913 (Tenn. 1984))).

“Discretion to impose sanctions does not, however, free trial courts from their 

responsibility to exercise reason and judgment.” Langlois v. Energy Automation Sys., 

Inc., 332 S.W.3d 353, 357 (Tenn. Ct. App. 2009). “[D]iscretionary decisions are not left 

to a court’s inclination, but to its judgment; and its judgment is to be guided by sound legal 

principles.” Id. (quotation marks and citations omitted). “A trial court abuses its discretion 

when it applies an incorrect legal standard or reaches a decision which is against logic or 

reasoning and which causes an injustice to the complaining party.” Doe 1 ex rel. Doe 1 v. 

Roman Cath. Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005). “Correct review of 

a decision to impose sanctions [] involves comparison of a sanction’s individual punitive 

impact and its general deterrent effect. Only when a sanction’s punitive impact 

substantially outweighs its deterrent effect will we conclude that a trial court has abused 

its discretion, so long as the court has applied the correct legal framework.” Langlois, 332 

S.W.3d at 358.

DISCUSSION

I.

An overview of the rules governing Appellant’s obligations during discovery is 

helpful to our analysis in this matter. Rule 26.02(4)(A) governs expert witnesses, and states 

in relevant part:
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Discovery of facts known and opinions held by experts, otherwise

discoverable under the provisions of subdivision (1) of this rule and acquired

or developed in anticipation of litigation or for trial, may be obtained only as

follows:

(i) A party may through interrogatories require any other party to identify

each person whom the other party expects to call as an expert witness at trial,

to state the subject matter on which the expert is expected to testify, and to

state the substance of the facts and opinions to which the expert is expected

to testify and a summary of the grounds for each opinion. In addition, upon

request in an interrogatory, for each person so identified, the party shall

disclose the witness’s qualifications (including a list of all publications

authored in the previous ten years), a list of all other cases in which, during

the previous four years, the witness testified as an expert, and a statement of

the compensation to be paid for the study and testimony in the case.

(ii) A party may also depose any other party’s expert witness expected to

testify at trial.

Also relevant to expert witnesses, Rule 26.05(A)(1) goes on to provide:

A party who has responded to a request for discovery with a response that 

was complete when made is under no duty to supplement the response to 

include information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement the party’s response 

with respect to any question directly addressed to (A) the identity and 

location of persons having knowledge of discoverable matters, and (B) the 

identity of each person expected to be called as an expert witness at trial, the 

subject matter on which the person is expected to testify, and the substance 

of that testimony.

Other Rules of Civil Procedure provide guidance regarding sanctions for a party that 

does not properly engage in discovery. For example, Rule 16.06 provides courts with 

authority to sanction parties for failing to obey scheduling orders, including by entering 

orders provided in Rule 37.02. Rule 37.02 in turn provides, in relevant part:

If a . . . party . . . fails to obey an order to provide or permit discovery, . . .

the court in which the action is pending may make such orders in regard to 

the failure as are just, and among others the following:
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(A) An order that the matters regarding which the order was made or any 

other designated facts shall be taken to be established for the purposes of the 

action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose 

designated claims or defenses, or prohibiting that party from introducing 

designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further 

proceedings until the order is obeyed, or dismissing the action or proceeding 

or any part thereof, or rendering a judgment by default against the 

disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order 

treating as a contempt of court the failure to obey any orders . . . .

Rule 37.03(1) further provides:

A party who without substantial justification fails to supplement or amend 

responses to discovery requests as required by Rule 26.05 is not permitted, 

unless such failure is harmless, to use as evidence at trial, at a hearing, or on 

a motion any witness or information not so disclosed. In addition to or in lieu 

of this sanction, the court on motion may impose other appropriate sanctions. 

In addition to requiring payment of reasonable expenses (including attorney 

fees) caused by the failure, these sanctions may include any of the actions 

authorized under Rule 37.02(A), (B), and (C) and may include informing the 

jury of the failure to supplement or amend.

“Discovery sanctions serve a three-fold purpose: (1) to secure a party’s compliance 

with the discovery rules, (2) to deter other litigants from violating the discovery rules, and 

(3) to punish parties who violate discovery rules.” Magness v. Couser, No. M2006-00872-

COA-R3-CV, 2008 WL 204116, at *6 (Tenn. Ct. App. Jan. 24, 2008) (citation and internal 

quotation marks omitted). This Court has explained that 

the powers of the court are not unlimited, and [] the inherent powers of the 

court [including to take action to prevent discovery abuse4] must be exercised 

with both restraint and discretion. . . . [T]he punishment must fit the offense

 

4

In this Opinion, we use “discovery abuse” (or different versions thereof) as an overarching term 

to encompass any violation or other failure with respect to discovery. “Discovery abuse” is specifically 

defined as: “1. The misuse of the discovery process, esp. by making overbroad requests for information that 

is unnecessary or beyond the scope of permissible disclosure or by conducting discovery for an improper

purpose. 2. The failure to respond adequately to proper discovery requests.” Black’s Law Dictionary 533 

(9th ed. 2009) (key-number system and citations omitted). The facts of this case involve the latter definition.
- 12 -

[, and] the power to sanction should be used sparingly. It should not be used 

like a sword and used frequently . . . [because] to do so would diminish the 

significance when sanctions are imposed.

Alexander v. Jackson Radiology Assocs., P.A., 156 S.W.3d 11, 15 (Tenn. Ct. App. 2004)

(internal quotation marks omitted).

In determining the appropriate sanction when a party abuses or violates the 

discovery process, a trial court should consider the following four factors: (1) the party’s 

explanation for not providing evidence during discovery; (2) the importance of the 

evidence; (3) the other party’s need for time to prepare to meet the evidence; and (4) the 

possibility and propriety of granting a continuance. See Mercer v. Vanderbilt Univ., Inc., 

134 S.W.3d 121, 133 (Tenn. 2004) (citing Lyle v. Exxon Corp., 746 S.W.2d 694, 699

(Tenn. 1988)); Est. of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 732 (Tenn. Ct. App. 

2001) (citing Lyle, 746 S.W.2d at 699). 

One possible sanction is exclusion of expert witness testimony. “The rules of 

discovery exist, in part, to prevent ‘trial by ambush.’ Expert testimony should only be 

excluded when there would be ‘unfair surprise or trial by ambush.’” Stanfield v. Neblett, 

339 S.W.3d 22, 31–32 (Tenn. Ct. App. 2010) (internal citation omitted) (quoting Watkins 

v. Affiliated Internists, P.C., No. M2008-01205-COA-R3-CV, 2009 WL 5173716 (Tenn. 

Ct. App. Dec. 29, 2009); Austin v. City of Memphis, 684 S.W.2d 624, 632 (Tenn. Ct. App. 

1984)). “When matters have reached a point in a case where the trial judge considers the 

sanction of preclusion [of expert witness testimony], . . . it will usually be because the court 

has been unable to otherwise secure a party’s compliance with the discovery rules.” Walls 

v. Conner, No. E2007-01917-COA-R3-CV, 2008 WL 4735311, at *7 (Tenn. Ct. App. Oct. 

27, 2008).

To this end, Tennessee courts have held that exclusion of experts may be appropriate 

for failure “to name an expert witness” when the failure is knowing and deliberate. Lyle, 

746 S.W.2d at 699 (discussing a party’s failure to name an expert witness until four days 

before trial). This heightened standard is in line with the decisions of other courts, which 

have held that exclusion of a necessary expert should be judged in a similar manner to the 

harsh sanctions of dismissal or default. See, e.g., Croydon Plastics Co. v. Lower Bucks 

Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. Ct. 1997) (“This Court recently held 

that such heightened review is appropriate when scrutinizing an order which is tantamount 

to dismissal in that it leads to summary judgment being granted against the sanctioned 

party.”); Montana State Univ.-Bozeman v. Montana First Jud. Dist. Ct., 2018 MT 220, ¶ 

21, 392 Mont. 458, 469, 426 P.3d 541, 550 (holding that extreme sanctions necessitating a 

higher standard of bad conduct include those that “preclude[e] or truncat[e] litigation on 

the merits,” such as “claim dismissal, default judgment, striking of asserted defenses, or 

exclusion of evidence”); see also Branche v. Zimmer, Inc., No. 3:06-CV-234, 2008 WL 

5504700, at *3 (E.D. Tenn. Aug. 11, 2008) (“Although the sanction imposed by the district 
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court for plaintiffs’ alleged discovery violations was the preclusion of 

plaintiffs’ expert witness testimony at trial, this sanction, in effect, resulted in 

the dismissal of plaintiffs’ medical malpractice case, because without expert testimony, 

plaintiffs had no claim to present. Therefore, we will review the district court’s actions 

pursuant to Fed. R. Civ. P. 37 as a sanction for discovery violations that resulted in

dismissal of plaintiffs’ case with prejudice.”). 

In Tennessee, only a very strong showing of bad conduct by the non-moving party 

can justify the “harsh sanction” of dismissal. Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. 

Ct. App. 1982). “The power to dismiss a party’s claims is best exercised infrequently and 

only when the punishment fits the offense.” Langlois, 332 S.W.3d at 357 (citing Pegues v. 

Illinois Cent. R. Co., 288 S.W.3d 350, 354 (Tenn. Ct. App. 2008)). Dismissing a case for

“failure to abide by discovery rules is a severe sanction that ‘run[s] counter to the judicial 

system’s general objective of disposing of cases on the merits.’” Williams v. Baptist Mem’l 

Hosp., 193 S.W.3d 545, 550–51, 552 (Tenn. 2006) (citations omitted). “Dismissal . . . is 

generally not favored in circumstances where lesser sanctions are available and where the 

neglect is more attributable to the attorney than the client.” Moody v. Hutchison, 247 

S.W.3d 187, 198 (Tenn. Ct. App. 2007) (citation omitted).

Instead, the harshest sanctions should be reserved for cases where, for example,

there was no excusable neglect, a party offered perjured discovery responses, or there was 

more than a year-long delay in responding to discovery. See Am. Exp. Centurion v. 

Lowrey, No. E2011-01247-COA-R3-CV, 2013 WL 937831, at *5 (Tenn. Ct. App. March 

11, 2013) (citing cases involving default judgment). In other words, we will not impose 

this harsh sanction unless “there has been a ‘clear record of delay or contumacious 

conduct.’” Langlois, 332 S.W.3d at 357 (quoting Shahrdar v. Global Housing, Inc., 983 

S.W.2d 230, 236 (Tenn. Ct. App. 1998)); see also SpecialtyCare IOM Servs., LLC v. 

Medsurant Holdings, LLC, No. M2017-00309-COA-R3-CV, 2018 WL 3323889, at *18 

(Tenn. Ct. App. July 6, 2018) (citations, quotation marks, and alterations omitted) (citing 

Lowrey, 2013 WL 937831, at *5) (defining contumacious as “willfully stubborn and 

disobedient conduct” and noting that “in order to justify the harsh result of dismissal, the 

party’s actions in failing to timely respond to discovery must both tend to cause a delay 

and be scornful or willfully stubborn”). 

Keeping these principles in mind, we first consider Appellant’s explanation for the 

failure to timely and properly respond to discovery. See Mercer, 134 S.W.3d at 133. In 

analyzing this issue, we note that the parties chose to rely solely on their motions and 

pleadings, the documents attached to these filings, and statements of counsel.5 Appellant 

mainly cited the ongoing COVID-19 pandemic and the uncertainty surrounding the 

 

5 We do not encourage this practice. Cf. Hathaway v. Hathaway, 98 S.W.3d 675, 681 (Tenn. Ct. 

App. 2002) (“Statements of counsel are not evidence[.]”).
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Tennessee Supreme Court’s March 2020 Orders as the explanations for the failure to timely 

and fully participate in discovery. Moreover, there does not appear to be any dispute that 

to the extent that Appellant was dilatory, the delays were attributable to Appellant’s 

counsel, rather than Appellant himself. The trial court rejected Appellant’s counsel’s

explanation, however, finding that COVID-19 had “no [e]ffect” on this case. Respectfully, 

we cannot agree. 

On March 11, 2020, “the World Health Organization classified COVID-19 as a 

global pandemic.” Fisher, 604 S.W.3d at 386. In response, the Tennessee Supreme Court, 

in March 2020, issued a series of Orders that extended various deadlines “statewide” in 

“all courts.” Specifically, on March 13, 2020, the Tennessee Supreme Court issued its first 

Order, which extended “[d]eadlines set forth in court rules, statutes, ordinances, 

administrative rules, or otherwise that are set to expire between March 13 and March 31, 

2020” to April 6, 2020. This was the Order that was in place when Appellant’s March 18, 

2020 deadline to disclose expert information expired. The Tennessee Supreme Court issued 

a second Order affecting deadlines on March 25, 2020. This Order used the same language 

as the March 13 Order, but lengthened the application of the deadline extension until May 

6, 2020. 

According to the trial court, the supreme court Orders that were in place were “very 

specific” and did not apply to discovery deadlines. Respectfully, this finding somewhat

misunderstands the timeline of events. At the time that Appellant’s expert disclosures were

due, the March 13 Order extended various deadlines without specific reference to discovery 

deadlines imposed by scheduling orders. Thus, at that time there was nothing that 

specifically referenced Rule 16 scheduling order discovery deadlines and their exclusion 

from the extension. Nor was there any mention of them when the supreme court 

subsequently issued its March 25 Order.

Perhaps due to this issue, the Tennessee Supreme Court felt that it was “necessary 

to clarify certain provisions of those orders addressing the extension of deadlines.” In re: 

Covid-19 Pandemic, No. ADM2020-00428, Order Clarifying the Extension of Deadlines

(Tenn. March 31, 2020). The March 31 Order discussed deadlines governed by Rule 16 

scheduling orders for the first time and made clear that that these deadlines were not 

extended by the court’s earlier Orders. But of course, by the time that this Order was issued, 

Appellant’s expert disclosure deadline had already passed. Given the Tennessee Supreme 

Court’s own decision to clarify its earlier Orders, the trial court’s insistence that the 

supreme court Orders were clear from the start is perplexing.

Even in the midst of this “unprecedented public health crisis,” Appellant did not 

completely shirk his duty to respond to discovery. Instead, even before the March 31 

clarifying Order, Appellant made an attempt to provide information to Appellee concerning 

his experts. So, then, Appellant did not simply fail to name any expert at all until 

immediately before trial. See Lyle, 746 S.W.2d at 699. Certainly, with the benefit of the 
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March 31 Order, we now know that Appellant’s disclosure was untimely and his actions 

dilatory in responding to Appellee’s requests. But it is difficult to conclude that Appellant’s 

actions amount to anything more than excusable neglect in this case. It appears that the 

delay in making Appellant’s experts available for depositions is also attributable to 

COVID-19.6 Thus, while Appellant’s efforts were certainly half-hearted and insufficient, 

they were not scornful or blatant. See Alexander, 156 S.W.3d at 15 (involving a situation 

where there was “blatant, inexcusable, [and] repeated lying” about discovery abuse). 

Moreover, the trial court’s finding that Appellant did not comply “at all” with the 

scheduling order is not entirely accurate, as there appears to be no dispute that Appellant 

complied with other requirements under the scheduling order unrelated to his experts.

It also bears mentioning that Appellee did not seek the trial court’s assistance in 

securing Appellant’s compliance with the scheduling order through the filing of a motion 

to compel. See 1 Lawrence A. Pivnick, Tennessee Circuit Court Practice § 18:13, at 886, 

887 (2021–2022 ed.) (stating that when a party fails to comply with discovery rules, “a 

motion to compel discovery . . . . is the usual remedy and the predicate for the [] type of

relief [provided for in Rule 37.02].”). Instead, Appellee proceeded directly to the “nuclear 

option” of asking that Appellant’s experts be excluded and summary judgment granted in 

its favor. See Geraci v. Andrews, No. 16 C 721, 2017 WL 1822290, at *1 (N.D. Ill. May 

5, 2017) (“The parties in this case have filed cross-motions to compel discovery, with both 

sides resorting to the nuclear option of asking for a default judgment/dismissal of the case 

as a sanction for their opponent’s claimed recalcitrance.”). This motion to exclude was 

filed little more than two months after Appellant missed his first relevant deadline 

contained in the scheduling order and two days before the deadline to make experts 

available for depositions. Indeed, the hearing on Appellee’s motion to exclude—when 

Appellant finally made his experts available—occurred only four months after the first 

missed deadline, while the COVID-19 pandemic was “ongoing and . . . surging.” Fisher, 

604 S.W.3d at 386. Without more findings by the trial court, it is difficult to conclude that 

Appellee’s first application for assistance in the midst of a global health crisis amounts to 

a situation in which “matters have reached a point in a case” where exclusion is necessary 

because “the court has been unable to otherwise secure a party’s compliance with the 

discovery rules.” Walls, 2008 WL 4735311, at *7. 

We certainly agree with the trial court that Appellant’s dilatory actions resulted in 

not-insignificant delay in this case. We also agree that Appellant’s apparent excuse for his 

 

6 Appellant’s counsel provided this explanation at the hearing on the motion to exclude, but did not 

support it with documentary evidence until the hearing on the motion to alter or amend. Nevertheless, at 

the hearing on the motion to alter or amend, Appellee’s counsel conceded that they had never disputed 

Appellant’s counsel’s explanation for why the experts were unavailable. While this explanation for his 

experts’ reluctance to attend depositions is not unreasonable, we agree with the trial court that Appellant’s 

failure to apprise Appellee of this specific fact until the July 2020 hearing is largely inexplicable. We do 

note, however, that Appellant did seek modification of the scheduling order on the basis of the COVID-19 

pandemic in advance of the July 2020 hearing.
- 16 -

failure to communicate with Appellee prior to the filing of the motion to exclude—that his 

office was transitioning to remote work—is particularly flimsy given the proliferation of 

electronic means of communication. Certainly, Appellant acted with neglect. We cannot 

agree, however, that Appellant lacked any reasonable explanation for the delay in actually 

responding to discovery or that the length of this delay alone supports the harsh result in 

this case. See Lowrey, 2013 WL 937831, at *5 (citing Shahrdar, 983 S.W.2d at 233 

(involving a delay of over a year)).

Moreover, while the trial court detailed Appellant’s failures in its order, it did not 

make any specific finding that Appellant’s conduct was contumacious, intentional, blatant, 

or otherwise so egregious as to justify the harshest sanction available. Certainly, exclusion 

of evidence can be a proper sanction, and the trial court is able to impose it under the proper 

circumstances. See Tenn. R. Civ. P. 37.03(1) (“A party who without substantial 

justification fails to supplement or amend responses to discovery requests as required by 

Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a 

hearing, or on a motion any witness or information not so disclosed.”); see also Tenn. R. 

Civ. P. 37.03, advisory commission cmt. to 2006 amend. (“The usual sanction [for failure 

to supplement or amend discovery responses] will be exclusion of evidence at trial.”). But 

exclusion is not the only available sanction. See Tenn. R. Civ. P. 37.03(1) (“In addition to 

or in lieu of this sanction, the court on motion may impose other appropriate sanctions.”); 

see also Tenn. R. Civ. P. 37.03, advisory commission cmt. (noting that the penalties 

contained therein are likely “guidelines” for the exercise of the inherent power of the 

court). The trial court must therefore consider whether the sanction is proportional to the 

failures at issue and whether “other sanctions may be appropriate” under the circumstances. 

Lyle, 746 S.W.2d at 699; see also Pettus v. Hurst, 882 S.W.2d 783, 787 (Tenn. Ct. App. 

1993) (citing Lyle, 746 S.W.2d at 699) (holding that a discovery sanction should be 

“commensurate with the parties’ conduct”).

In this case, the trial court’s order makes no mention of consideration of other 

possible sanctions to ensure compliance with its discovery deadlines. Instead, at the very

first application for assistance with discovery abuse related to the scheduling order, the 

trial court chose to employ the mightiest weapon in its arsenal. And while this Court has 

held that exclusion of a witness is “strongly suggested” when a party “willfully, knowingly, 

and intentionally withheld the name of a person with knowledge of discoverable matter,” 

the trial court made no express findings that such culpability was present in this case.

Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn. Ct. App. 1981).

We next consider the importance of the evidence. See Mercer, 134 S.W.3d at 133. 

Here, there is no dispute that expert proof is absolutely necessary to the prosecution of 

Appellant’s FELA claim. See Moody v. Maine Cent. R. Co., 823 F.2d 693, 695 (1st Cir. 

1987) (recognizing that plaintiffs often are required to submit expert testimony to prove 

“the causal connection between the accident and some item of physical or mental injury” 

in FELA cases). As previously discussed, because of the necessity of the expert proof, 
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exclusion of Appellant’s experts is in essence a dismissal of the action. See, e.g., Branche, 

2008 WL 5504700, at *3; Croydon Plastics, 698 A.2d at 629. Nothing in the trial court’s 

order, however, indicates that it considered the importance of the evidence in determining 

the proper sanction. This Court has previously held that a trial court abuses its discretion 

“‘when it fails to properly consider the factors customarily used to guide the particular 

discretionary decision.’” Gooding v. Gooding, 477 S.W.3d 774, 781 (Tenn. Ct. App. 2015) 

(quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524–25 (Tenn. 2010)). 

We must also consider Appellee’s need for time to prepare to meet this evidence. 

See Mercer, 134 S.W.3d at 133. Although the trial court again does not reference this factor 

or test specifically, it does appear that the trial court found that Appellee was prejudiced 

by Appellant’s delay in responding to discovery. We agree to an extent with the trial court 

on this point. As much as expert proof is essential to Appellant’s case, the opportunity to 

rebut that proof is central to Appellee’s defense. In this case, Appellant’s disclosure of his 

experts approximately two weeks late is not the real issue.7It is Appellant’s failure to 

promptly make them available for depositions that delayed Appellee’s ability to properly 

prepare a defense.8

Finally, we consider the possibility and propriety of a continuance. See Mercer, 134 

S.W.3d at 133. In this case, it appears that the trial court also did not consider this factor. 

To be sure, the late availability of Appellant’s experts for depositions would make trial on 

August 12, 2020 virtually impossible for Appellee. So a continuance was very likely 

necessary. But unlike other cases in which exclusion of evidence was upheld, Appellant 

did specifically request that the scheduling order be modified in advance of the hearing on 

the motion to exclude, which would include continuation of the scheduled trial date. See

Masserano v. Masserano, No. W2018-01592-COA-R3-CV, 2019 WL 2207476, at *7 

(Tenn. Ct. App. May 22, 2019) (noting that neither party sought a continuance even though 

the document at issue was not presented to the opposing party until the eve of trial). Thus, 

while the trial court was correct in its finding that Appellant waited until the July 2020 

hearing to provide dates of availability for his experts, it is not entirely true that Appellant 

made no prior attempt to ameliorate the issues caused by the delay in completing discovery; 

 

7 There appears to also be an issue regarding whether Appellant properly provided the materials his 

experts relied on in forming their opinions to Appellee. However, the trial court does not specifically 

address this alleged failure in its order, so we will not tax the length of this Opinion by analyzing this issue. 

See, e.g., Farmers Mut. of Tennessee v. Atkins, No. E2011-01903-COA-R9-CV, 2012 WL 982998, at *4 

(Tenn. Ct. App. March 21, 2012) (declining to consider a matter when no initial determination was made 

by the trial court). This alleged failure may be more fully addressed upon remand. 

8 However, at least one of Appellee’s expert’s reports apparently identifies Appellant’s experts. It 

is unclear, then, to what extent, if any, Appellee’s experts in fact were deprived of an opportunity to review 

Appellant’s expert reports. See, e.g., SpecialtyCare IOM Servs., LLC, 2018 WL 3323889, at *24 (quoting 

Cohen v. Clarke, No. M2012-02249-COA-R3-CV, 2014 WL 107967, at *9 (Tenn. Ct. App. Jan. 10, 2014) 

(citing generally Pegues, 288 S.W.3d 350)) (“[W]hen imposing the harshest of penalties, i.e., dismissal of 

the lawsuit, the trial court must endeavor to explain not only the violations, but also how those violations 

prejudiced or otherwise affected the complaining parties so as to justify dismissal.”).
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instead, the record shows that Appellant repeatedly asked that the scheduling order be 

modified in advance of the July 2020 hearing due to delays in his ability to timely respond 

as a result of the COVID-19 pandemic. The trial court, however, failed to address this 

request, instead employing the nuclear option of exclusion. 

Rather, again, the trial court did not make any specific findings as to whether a 

continuance would be appropriate or how long it would take the parties to prepare for trial.

Mercer, 134 S.W.3d 121, 132 (Tenn. 2004) (upholding the exclusion of some, but not all,

of the defendant’s experts, where the trial court found that the opposing party would need 

an additional three to six weeks to prepare to meet the evidence); see also Mercer v. 

Vanderbilt Univ., Inc., No. M2000-00801-COA-R3-CV, 2002 WL 31728864, at *3 (Tenn. 

Ct. App. Dec. 5, 2002), aff’d in part, rev’d in part, 134 S.W.3d 121 (Tenn. 2004) (footnote 

omitted) (noting that “[a] veritable host of medical experts in various disciplines testified 

concerning the issues of causation and negligence” for both parties, and thus the exclusion 

of other evidence was not tantamount to dismissal). Consequently, the trial court’s order 

fails to indicate that it considered the appropriate factors.

In sum, the trial court failed to consider many of the factors that Tennessee courts 

have held are relevant in determining the appropriate sanction for discovery abuse. Some 

of the factors that the trial court failed to consider appear to weigh against the harsh 

sanction imposed in this case, particularly given the unprecedented challenges presented 

by the global pandemic at that time. In a case where a trial court imposes a less harsh 

sanction than what is essentially a dismissal, it is likely that a less exacting review of the 

trial court’s findings would suffice. But where the trial court chooses to impose the harshest 

sanction at its disposal, it is not too heavy a burden to require the trial court to consider 

each relevant factor in a manner that affords meaningful appellate review. See Gooding v. 

Gooding, 477 S.W.3d 774, 783 (Tenn. Ct. App. 2015) (quoting In re Noah J., No. W2014-

01778-COA-R3-JV, 2015 WL 1332665, at *5 (Tenn. Ct. App. Mar. 23, 2015)) (noting that 

the appellate court cannot effectively review a decision for abuse of discretion where the 

trial court does not indicate “‘what legal standard the court applied, or what reasoning it 

employed[,]’” as an abuse of discretion occurs when the trial court applies an incorrect 

legal standard); cf. Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 313 (Tenn. 2014)

(“Providing reasons for a decision reinforces the legitimacy of the legal process which, in 

turn, promotes respect for the judicial system.”). This is particularly true where the failures 

are attributable solely to an attorney but result in the termination of a client’s entire cause 

of action. See Moody, 247 S.W.3d at 198 (holding that when lesser sanctions are available 

and the neglect is solely attributable to the attorney, dismissal is generally not warranted). 

As a result, we must vacate the trial court’s decision and remand for reconsideration in 

light of this Opinion. Should the trial court again choose to impose the harsh sanction of 

exclusion of Appellant’s experts, we encourage the trial court to make detailed findings 

taking into consideration the applicable legal standards outlined in this Opinion.9

 

9 Should the trial court exercise its discretion to impose a sanction other than exclusion upon 
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III.

In an effort to fully adjudicate this appeal, we will also address another argument 

raised by Appellee—that Appellant waived any objection to the trial court’s grant of 

summary judgment. While this issue is pretermitted by our disposition of this appeal, we 

note that Appellee’s argument lacks merit. Appellant conceded at the trial level, as he does 

on appeal, that if he cannot present expert testimony, he would necessarily lose a motion 

for summary judgment. That is not waiver—instead, it is merely a frank, reasoned 

concession. Such candor to the courts should be encouraged, rather than meritless 

arguments that face no reasonable chance of success. If upon remand, the trial court 

concludes that the applicable factors do not support the harsh sanction of exclusion, the 

basis for Appellant’s concession will no longer exist and the issue of summary judgment 

would necessarily need to be revisited. 

CONCLUSION

The judgment of the Madison County Circuit Court is vacated and remanded for 

further proceedings consistent with this Opinion. Costs of this appeal are taxed to Appellee

Illinois Central Railroad Company, for which execution may issue if necessary.

 S/ J. Steven Stafford 

 J. STEVEN STAFFORD, JUDGE

 

remand, we strongly encourage Appellant not to be further dilatory in its discovery responses, as additional

delays would only further support the sanction of exclusion.