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Durbin v. Sumner County Regional Health Systems9/6/2001
ell specifically stated that Dr. Stuber was no longer going to be called as a witness at trial, but rather had been re-designated as a consulting expert. At trial, Dr. Caldwell filed a motion in limine to prevent the appellants from using Dr. Stuber's deposition at trial.
The appellants state in their brief that they should have been allowed to use Dr. Stuber's deposition in their cross-examination of Dr. Caldwell and the appellees' expert witnesses, Dr. Bruner and Dr. Fortunato. The use of expert depositions in the cross-examination of the other party's experts has been allowed when the expert on the stand has "read and considered" the deposition of the other expert. Steele v. Fort Sanders Anesthesia Group, P.C., 897 S.W.2d 270, 278-79 (Tenn. Ct. App. 1994). We based this decision on the fact that the expert witness had based his conclusions on all the material he had been given, which included the other expert's deposition. This is not the situation in the present case. Neither Dr. Bruner nor Dr. Fortunato had read the deposition of Dr. Stuber before trial.
Tennessee Rule of Civil Procedure Rule 32.01(3) states that depositions may be used at trial for any purpose if the court finds that certain criteria are met. However, the final sentence of Rule 32.01(3) states that "depositions of experts . . . may not be used at the trial except to impeach" the deponent. The Advisory Commission Comment states that this rule applies only to discovery depositions of an adversary's expert. Tenn. R. Civ. P. 32.01, Advisory Commission Comment to 1986 Amendment; see also, White v. Vanderbilt, 21 S.W.3d 215, 226 (Tenn. Ct. App. 1999). Dr. Stuber's deposition was a discovery deposition taken by the appellants' attorney. Therefore, the only use of Dr. Stuber's deposition can be to impeach his own testimony.
Therefore, under the current rules and case law, Dr. Stuber's deposition should not have been used to cross-examine either Dr. Caldwell or the expert witnesses.
C. Dr. Caldwell's Motion in Limine Excluding Dr. Shaver's Testimony
When Mrs. Durbin came in for an appointment on July 26, 1997, Dr. Caldwell discovered that the twins were dead. He then told the appellants that Mrs. Durbin had suffered a placental abruption. He delivered the twins the next day. When Mrs. Durbin returned for her six-week follow-up visit, Dr. Caldwell informed her that the twins had died from TTS.
Prior to trial, appellants filed an expert disclosure from their expert witness, Dr. Shaver, stating that Dr. Shaver intended to testify that Dr. Caldwell deviated from the standard of care when he diagnosed a placental abruption upon the death of the twins. Dr. Caldwell filed a motion in limine prior to trial to prevent this testimony. The trial court granted the motion because it was not relevant to the issues raised for the court's consideration.
The appellants argue that this testimony should have been allowed at trial to prove that Dr. Caldwell deviated from the standard of care because he failed to diagnose the hydramnios on July 26 and instead diagnosed the problem as placental abruption. In addition, Dr. Caldwell sent Mrs. Durbin home with what he thought was placental abruption, which according to the appellants, was a potentially life-threatening condition. The appellants state that this further shows a deviation from the standard of care. Appellants also assert that Dr. Caldwell's "deviation is so stark as to suggest Dr. Caldwell knew there was a mishandling of TTS and deflected attention from the issue long enough to investigate what needed to be said to defend the case."
Appellants did not include the misdiagnosis after the babies' deaths as a negl
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