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Lewis v. Brooks8/29/2001
proof and granted summary judgment to the defendants. Accordingly, under the unique facts of the instant case, Ms. Lewis' argument that she lacked sufficient notice of the September 18, 2000, summary judgment proceedings is without merit.
Ms. Lewis also argues in her brief that she should have been allowed to take a non-suit when the court excluded her expert witness, Dr. Heath. Rule 41.01 of the Tennessee Rules of Civil Procedure states in relevant part that " ubject to the provisions of Rule 23.05 or Rule 66 or any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary non-suit . . . ." Tenn. R. Civ. P. 41.01(1) (emphasis added). In the instant case, Defendants' motion for summary judgment was pending when Plaintiff attempted to take a non-suit. As a result, the trial judge properly refused to grant Plaintiff's request for a non-suit.
Next, Ms. Lewis argues that the trial court erred in limiting discovery as to the opinions of Dr. Moore and Dr. Lawrence. Sometime before the depositions of Dr. Moore and Dr. Lawrence were to be taken, Ms. Lewis' counsel was advised that the defendant doctors would refuse to answer questions calling for opinions as to the treatment of Ms. Lewis by other defendant doctors and nurses. Ms. Lewis filed a Motion to Compel. The trial court denied the motion, ruling that Defendants Moore and Lawrence would only be required to testify as to opinions expected to be rendered at trial or opinions relating to their own actions.
Counsel have not cited, nor have we been able to find, any Tennessee cases specifically dealing with this point. However, an unpublished opinion from this court is instructive. In Chambers v. Wilson, (Tenn. Ct. App. May 23, 1984) (Crawford, J.), the issue was whether an expert specifically hired for litigation could be compelled to testify against his will. In holding that an expert could not be compelled to testify against his will, we stated that "the private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things. In each case it is a matter of bargain, which, as ever, it takes two to make, and to make unconstrained." Id. at 6 (quoting Pennsylvania Co. v. City of Philadelphia, 262 Pa. 439 (1918)).
In the instant case, we note that Dr. Moore and Dr. Lawrence were not listed as expert witnesses by either party. They were simply party defendants who are "experts" by nature of their chosen field. Under the facts of the instant case, we do not find that their expertise is subject to compulsion. As a result, we find that the trial court did not err when it refused to compel Dr. Moore and Dr. Lawrence to answer questions outside the realm of their own actions and opinions that they expected to render at trial. Therefore, this issue is without merit.
Because we affirm the trial court's grant of summary judgment in this case, we pretermit Ms. Lewis' third issue relating to the reasonableness and necessity of medical expenses.
Conclusion
Accordingly, for the aforementioned reasons, we affirm the judgment of the trial court. Costs on appeal are taxed to Appellant, for which execution may issue if necessary.
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