08/10/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 17, 2022 Session
BARRY CHARLES BLACKBURN EX REL. BRITON B. v. MARK A.
MCLEAN, M.D., ET AL.
Appeal from the Circuit Court for Maury County
No. 15513 Russell Parkes, Judge
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No. M2021-00417-COA-R3-CV
___________________________________
This is a wrongful death health care liability action. At issue in this appeal are claims that
were asserted against a hospital and an emergency room physician. During the course of
litigation, the trial court permitted the defendants to amend their pleadings to assert a
comparative fault defense but placed certain limitations on any new experts the plaintiff
might retain to address the defense. The trial court also denied the plaintiff’s efforts to
secure a new standard of care expert when one of his retained experts withdrew from the
case and refused to testify. Ultimately, through a series of summary judgment orders, the
claims against the hospital and emergency room physician were dismissed. Although the
plaintiff generically challenges the trial court’s summary judgment dispositions on appeal,
we conclude that the plaintiff’s challenges are all waived except as they relate to the last
summary judgment order that was entered as to the emergency room physician. That
summary judgment order is reversed consistent with the discussion herein, namely in light
of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff
to secure a substitute standard of care expert after his retained expert refused to testify due
to no fault of counsel or his client. Further, although we find no error in the trial court’s
decision to allow the defendants to amend their pleadings to assert comparative fault, we
are of the opinion that the court abused its discretion with respect to the limitations it placed
on any potential expert retained by the plaintiff to address the issues raised in the later
amendment alleging comparative fault.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in part, Reversed in part, and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
Joe Bednarz, Sr., Joe Bednarz, Jr., and Aaron Armstrong, Hendersonville, Tennessee, for
the appellant, Barry Charles Blackburn ex rel. Briton B.
Marty R. Phillips, Michelle Greenway Sellers, and Brandon J. Stout, Jackson, Tennessee,
for the appellee, Mark McLean.
Robert L. Trentham, Taylor B. Mayes, and James A. Beakes, III, Nashville, Tennessee, for
the appellee, Maury Regional Hospital.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
This lawsuit concerns allegations of medical negligence connected to the death of
Cody Blackburn (“the Decedent”). Much of the relevant background pertaining to the
present appeal has been discussed in a prior appeal of this case, see Blackburn ex rel. Briton
B. v. McLean, No. M2019-00428-COA-R3-CV, 2020 WL 4432038 (Tenn. Ct. App. July
31, 2020) (“McLean I”), but we restate herein many of the basic facts and events for
purposes of clarity and context, while also covering the procedural events that took place
following our decision in McLean I.
As alleged in the complaint filed by the Decedent’s father as the next friend and
grandfather of the Decedent’s son (“the Plaintiff”), the Decedent, a 35-year-old male, was
taken to Maury Regional Medical Center on the morning of September 17, 2014, following
a 911 call. The Decedent presented with complaints of severe pain in his chest and
abdomen and shortness of breath, and he was treated in the ER by Dr. Mark McLean (“Dr.
McLean”). According to the complaint:
10. Serial EKGS were performed, the first at 9:59 a.m. (in the
ambulance) was read at 10:23 a.m. and the second was performed at 10:25
a.m. and read at 10:28 a.m. These EKGS were read and noted to be
abnormal.
11. Dr. McLean ordered lab workup and xrays and at approximately
12:07 p.m. Dr. McLean told the family that his labs were slightly elevated
but his x-ray was normal and per the elevated d-dimer a CT of the abdomen
and pelvis was ordered with contrast.
12. At approximately 2:15 p.m. Mr. Blackburn was taken down to
radiology to perform the CT with contrast and he was brought back to his
room at approximately 2:45 p.m.
13. At approximately 2:50 p.m. Mr. Blackburn stretched out his arms,
screamed out in pain and collapsed, but despite resuscitation efforts he died.
The Plaintiff accused Dr. McLean and the hospital (collectively, “the Defendants”) of
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various acts of negligence, including alleging that Dr. Mclean had “[f]ail[ed] to order the
appropriate tests in a timely manner.” The Defendants each filed separate answers to the
complaint in February 2016, and as acknowledged by the parties on appeal, the terms of an
agreed scheduling order directed that motions to amend pleadings be filed by January 1,
2018. Trial was scheduled to begin at the end of April 2018.
During the pendency of the case, the parties disclosed various expert witnesses. As
is of particular relevance to the issues posed in this appeal, the Plaintiff disclosed Dr.
Richard Sobel (“Dr. Sobel”), who was to testify as a standard of care expert, and Dr. Keith
Allen (“Dr. Allen”), who was to testify as to causation.
Dr. Sobel was deposed by the Defendants on October 4, 2017. Prior to his
deposition, efforts had been made by the Defendants to subpoena Dr. Sobel’s financial
records reflecting the amount of income that he had derived from his previous work as an
expert witness, but Dr. Sobel did not bring the requested documents to his deposition.
Later, on February 1, 2018, Dr. McLean filed a motion to compel the Plaintiff and Dr.
Sobel to produce copies of Dr. Sobel’s tax records reflecting the amount of money he was
paid for “medico-legal matters” during certain prior years.
Dr. Allen was deposed on September 21, 2017. During his discovery deposition,
Dr. Allen testified that the Decedent “would probably be alive” when he was asked what
would have happened had the Decedent “sought earlier treatment, and if that treatment
were the same as what was provided when he did present.” Subsequently, on January 2,
2018, Dr. McLean filed a motion to amend his answer to plead the comparative fault of the
Decedent as a defense. The hospital later joined in Dr. McLean’s motion.
A hearing on the above-mentioned motions to amend and to compel occurred on
March 9, 2018, and in orders entered on March 28, 2018, the trial court held that both
motions should be granted. In its order directing Dr. Sobel to produce the requested
documents regarding his income from “medico-legal matters,” the trial court held that Dr.
Sobel’s production would be “subject to a protective order which will be separately
entered.” Below, we briefly examine, by subject, several issues and events that
subsequently occurred in the wake of the trial court’s March 28, 2018, orders and prior to
the appeal in McLean I. After outlining this history, we will then conclude our overview
of the case’s background by turning to the proceedings that occurred following our decision
in McLean I.
Production of Dr. Sobel’s Financial Records and Dr. Sobel’s Later Refusal to
Testify
It appears from the record that the Plaintiff’s counsel produced copies of the
documents pertaining to Dr. Sobel’s income on April 9, 2018, and in a subsequent April
11, 2018, filing, Dr. McLean moved the trial court to “lift the Protective Order entered in
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this matter regarding the documents ultimately produced by [Dr. Sobel].” The hospital
later filed a notice of joinder with respect to this request. The trial court did, in fact, lift its
protective order, ruling that Dr. Sobel should “not be afforded the luxury” of a protective
order given inconsistencies the court had reviewed between his deposition testimony in
this case and that from other cases, as well as a comparison of that testimony with the tax
documents that he produced. The trial court additionally noted that “Dr. Sobel’s income
earned as an expert witness is already public knowledge by virtue of Dr. Sobel’s prior
testimony in open court.”
Following the lifting of the protective order, Dr. Sobel refused to testify as an expert
witness for the Plaintiff in this litigation, prompting a need for the Plaintiff to secure
substitute expert testimony. In “Plaintiff’s Motion to Substitute Expert Witness” filed on
January 22, 2019, the Plaintiff attributed Dr. Sobel’s withdrawal from the case to the
sequence of events discussed above, stating as follows:
Plaintiff would show that previous orders of the Court regarding the
production of Dr. Sobel’s tax returns put a great strain on the relationship
between Plaintiff’s counsel and Dr. Sobel that could not be overcome. This
tension culminated on January 16, 2019 with Dr. Sobel withdrawing from
the case and refusing to continue as Plaintiff’s expert.
In an accompanying memorandum, the Plaintiff argued that other courts “have long
recognized that substitution of an expert after the deadline for discovery has passed is
proper when the prior expert becomes unavailable through no fault of that party.” The
Plaintiff further argued that it would be proper to allow him to replace Dr. Sobel with Dr.
William Lunders (“Dr. Lunders”). The Plaintiff noted that “Dr. Lunders has similar
training and expertise and his opinion[s] are similar to those of Dr. Sobel.” In fact, the
Plaintiff stated that Dr. Lunders’ opinions were “for the most part identical” when
compared to Dr. Sobel’s opinions. In support of his request for relief, the Plaintiff included,
among other things, a Rule 26 disclosure for Dr. Lunders, an affidavit from Dr. Lunders,
and an affidavit from the Plaintiff’s counsel. The trial court ultimately denied the
Plaintiff’s request for relief and held that he is “not permitted to supplement or substitute
an expert for Dr. Sobel.”
Limitations Following Comparative Fault Amendments
Amended answers alleging comparative fault by the Decedent were filed in April
2018, and in light of the amendments, the Plaintiff ultimately sought a continuance. The
scheduled April 2018 trial date was subsequently stricken, and a status conference was
instead held on April 30, 2018. In an order entered following the conference, the trial court
noted in relevant part as follows:
The Court finds that the Plaintiff’s Motion for Continuance was granted after
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Defendants’ timely filed Motion to Amend to assert the fault of [the
Decedent]. The Court finds that the Plaintiff’s Motion for Continuance was
granted to allow Plaintiff to obtain a cardiologist to respond to the
Defendants’ comparative fault allegation as to [the Decedent]. Plaintiff may
take a supplemental deposition of Defendants[’] experts relative to the
comparative fault of [the Decedent] only. It is appropriate to amend the
Scheduling Order to allow Plaintiff to retain expert(s) on the issue of
comparative fault only. The Court finds that the Plaintiff may not identify or
use any new expert witnesses to backdoor and address any issue other than
the comparative fault of [the Decedent]. Any new expert identified by
Plaintiff may be disclosed to address only the issue of [the Decedent’s]
comparative fault.
The Court finds that Plaintiff may not identify or use any new experts
to address the standard of care for Defendants or alleged violations of the
standard of care by Defendants. Plaintiff is not permitted to present any new
experts to testify about the alleged fault of Defendant McLean and/or what
he allegedly did wrong. Plaintiff is not permitted to present any new experts
to testify as to the alleged fault of Maury Regional Medical Center. Plaintiff
is not permitted to present any new experts to compare the fault of [the
Decedent] to the fault of Defendants.
The Plaintiff opposed the court’s stated limitations on new experts, arguing that the
“decision to allow Plaintiff to get a new expert limited to saying that [the Decedent] is not
at fault does nothing to relieve that prejudice Plaintiff is faced with as a result of the late
amendment.” The trial court, however, rejected the Plaintiff’s concern and denied a motion
the Plaintiff filed in an attempt to get the ruling amended.
Summary Judgment Dispositions
Throughout the course of the trial court proceedings, various summary judgment
motions were filed and adjudicated. For instance, in March 2018, Dr. McLean sought
summary judgment as to “seventeen standard of care opinions offered . . . by Dr. Sobel,”
arguing that there was “no causation expert support.” The hospital joined in this motion,
and the motion was eventually granted. In another filing—and in light of the fact that the
above-mentioned motion by Dr. McLean did not address all standard of care criticisms
against it—the hospital later moved to strike certain standard of care criticisms offered by
Dr. Sobel and another of the Plaintiff’s disclosed experts, Nurse Lori Jaggers Alexander.
In an order entered on August 30, 2018, the trial court addressed this request from the
hospital and held as follows:
3. By Order entered June 8, 2018, the Court granted Dr. McLean’s and [the
hospital’s] Motion for Partial Summary Judgment dismissing 17 of Dr.
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Sobel’s standard of care criticisms that were not properly supported by expert
proof of causation. The Court held that none of Dr. Sobel’s 17 opinions
referred to in the Defendants’ Motion for Partial Summary Judgment could
be introduced into evidence against either Defendant.
4. Therefore, the Court’s Order of June 8, 2018, dismissed all of Dr. Sobel’s
17 standard of care criticisms that were intended to be directed to [the
hospital].
5. The issue of whether . . . Nurse Alexander’s standard of care criticisms of
[the hospital] were properly supported by expert proof of causation was not
before the Court and was not the subject of the Court’s Order of June 8, 2018.
The Court will consider a properly supported Motion for Partial Summary
Judgment regarding Nurse Alexander’s standard of care criticisms of [the
hospital] if such a motion is filed.
The hospital filed such a motion concerning Nurse Alexander’s standard of care criticisms
on November 19, 2018, and this motion was later granted. In granting the hospital
summary judgment, the trial court held that there was “no competent expert proof to
support any standard of care claims against [the hospital].” The court further attempted to
certify the order as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure,
and in a subsequent order, it held as follows:
The Order Granting [the hospital’s] Motion for Summary Judgment was to
be certified as a final order. In light of those rulings and the fact that Plaintiff
has no expert witness to testify as to the standard of care of Defendant Mark
A. McLean, M.D., the Court continued the trial and stayed the case. The
Court finds that continuing the trial and staying the proceedings will allow
Plaintiff to appeal the Court’s ruling granting [the hospital’s] Motion for
Summary Judgment. The Court finds that if the Order Granting [the
hospital’s] Motion for Summary Judgment is upheld on appeal or if the Order
Denying Plaintiff’s Motion to Substitute Expert is upheld on appeal, then
Plaintiff will have no expert proof as to the standard of care of Defendant
McLean and the entire case will be dismissed.
Although a prior appeal was then pursued in this Court, as previously alluded to, we
vacated the trial court’s order certifying its judgment as final and remanded for further
proceedings. McLean I, at *1.
Filings and Proceedings Occurring After the Decision in McLean I
Following this Court’s action in McLean I, the Plaintiff again moved the trial court
to allow him to bring in Dr. Lunders as an expert, while also requesting that the court alter
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or amend its order granting summary judgment to the hospital. The trial court denied the
Plaintiff any relief with respect to these requests. For his part, Dr. McLean sought summary
judgment in light of Dr. Sobel’s withdrawal from the case, arguing that “Plaintiff has no
expert proof as to the recognized standard of acceptable professional practice required of
Defendant or that the Defendant failed to act in accordance with the recognized standard
of acceptable professional practice required of him in his care and treatment of [the
Decedent].” Dr. McLean also proffered his own affidavit, wherein he declared under
penalty of perjury that he had acted in accordance with the recognized standard of
acceptable professional practice in his care of the Decedent.
Subsequent to the filing of this motion for summary judgment by Dr. McLean, the
Plaintiff filed a response in opposition to the motion, while also filing a motion for leave
to voluntarily dismiss his claims against Dr. McLean without prejudice. These motions
were later dealt with by the trial court in a set of orders entered on February 9, 2021. In
addition to ruling that the Plaintiff’s motion for leave to voluntarily dismiss his claims
against Dr. McLean should be denied, the trial court granted Dr. McLean summary
judgment, finding there to be “no genuine issue as to the material fact of whether Dr.
McLean complied with the recognized standard of acceptable professional practice.” The
Plaintiff thereafter filed a motion to alter or amend the trial court’s orders concerning these
issues on February 12, 2021, but the court denied this motion by a written order entered on
March 29, 2021. This appeal followed.
DISCUSSION
On appeal, the Plaintiff raises multiple issues for our review. In addition to
challenging the trial court’s decision to allow the Defendants to assert a comparative fault
defense in amended pleadings and challenging the limitations imposed by the court
following that decision, the Plaintiff takes issue with the court’s refusal to allow him to
replace Dr. Sobel as a witness, asserts error in the court’s refusal to allow him to voluntarily
dismiss his claims against Dr. McLean without prejudice, and raises the question of
“[w]hether the trial court erred in granting numerous full and partial motions for summary
judgment.” For their part, neither Dr. McLean nor the hospital raises an independent issue
alleging that any error was committed by the trial court. They instead generally request
that this Court affirm the trial court’s rulings, while also specifically submitting that the
Plaintiff’s raised issue connected to the various entries of summary judgment has been
waived.
Summary Judgment Orders
We begin our review by focusing on the Plaintiff’s raised issue concerning the entry
of summary judgments in this case and the Defendants’ arguments that this issue has been
waived. In his brief, the Plaintiff’s proffered “argument” concerning summary judgment
paints with an extremely broad brush, generally attributing the entry of summary judgment
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orders to “[t]he effect of the numerous erroneous decisions.” As best as we are able to
discern, it appears that the Plaintiff’s allusion to “numerous erroneous decisions” refers to
the Plaintiff’s other raised issues in the case, but the Plaintiff also states that “[n]umerous
other errors contributed to the [summary judgment] rulings.” The contemplated
“[n]umerous other errors” are not specified, and the Plaintiff’s brief does not make any
attempt at connecting these non-specified errors to any specific summary judgment ruling.
The Plaintiff’s entire argument consists of a single paragraph, contains no citation to
authority or the record, and summarily states that “because of space constraints and the
sheer number of errors which occurred Plaintiff cannot possibly brief this issue in detail.”
The Plaintiff concludes by stating, “The bottom line is that the motions for summary
judgment could not have been granted but for the numerous errors already.”
The Defendants generally submit that the above-described features of the Plaintiff’s
brief relative to this issue demonstrate noncompliance with the requirements that the
Tennessee Rules of Appellate Procedure impose on appellate briefs. Dr. McLean
specifically contends that the Plaintiff has, at best, offered a “skeletal” argument. We agree
that the briefing submitted on this issue is deficient. Pursuant to Rule 27 of the Tennessee
Rules of Appellate Procedure, an appellant’s brief “shall contain under appropriate
headings” the following:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes
and other authorities cited, with references to the pages in the brief where
they are cited;
(3) A jurisdictional statement in cases appealed to the Supreme Court directly
from the trial court indicating briefly the jurisdictional grounds for the appeal
to the Supreme Court;
(4) A statement of the issues presented for review;
(5) A statement of the case, indicating briefly the nature of the case, the
course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues presented
for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument,
setting forth:
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why
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the contentions require appellate relief, with citations to the
authorities and appropriate references to the record (which
may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable standard of
review (which may appear in the discussion of the issue or under a
separate heading placed before the discussion of the issues);[1]
(8) A short conclusion, stating the precise relief sought.
Tenn. R. App. P. 27(a) (emphasis added). Respectfully, it is manifest that the Plaintiff’s
appellate argument is inadequate in light of these requirements and largely frustrates our
ability to review the raised, albeit generally amorphous, issue connected to the trial court’s
summary judgment dispositions. The inadequacies in the Plaintiff’s briefing are
particularly inhibiting of our review when considering the fact that the record transmitted
to us contains multiple summary judgment orders entered throughout the course of the trial
court proceedings, some of which we have not even specifically discussed herein. Indeed,
we are largely left to speculate as to what specific errors the Plaintiff perhaps envisions to
exist vis-à-vis the various summary judgment orders that were entered.
The Defendants correctly note that the lack of appropriate briefing can subject raised
issues to a finding of waiver on appeal. As the Tennessee Supreme Court has explained,
“It is not the role of the courts, trial or appellate, to research or construct a litigant’s case
or arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.” Sneed
v. Bd. of Prof’l Resp., 301 S.W.3d 603, 615 (Tenn. 2010). Here, we are of the opinion that
a finding of waiver with respect to this issue is generally appropriate. As discussed above,
we are largely left to speculate as to the specific nature of the Plaintiff’s claimed grievances
relative to the various summary judgment orders with which he ostensibly takes issue.
This, no doubt, frustrates our ability to review this case and provide the Plaintiff with
meaningful relief, assuming arguendo it might be justified as to the summary judgment
orders that were entered. With that said, we conclude that the nature of the Plaintiff’s
challenge to the trial court’s February 9, 2021, summary judgment order in favor of Dr.
McLean is sufficiently discernible to us given the larger context of the Plaintiff’s brief and
his raised issue concerning a desired replacement expert for Dr. Sobel. Indeed, although
the Plaintiff’s argument leaves much to be desired to the extent that it relates to the
February 9, 2021, summary judgment order, the briefing deficiencies that otherwise exist
are not a death knell to our ability to understand the alleged impropriety in allowing the
February 9, 2021, order to stand. As noted previously, the February 9, 2021, summary
judgment order was predicated upon the trial court’s conclusion that there was “no genuine
1
In addition to the other deficiencies discussed herein, we observe that the Plaintiff’s brief fails to
state the applicable standard of review governing his desired summary judgment review.
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issue as to the material fact of whether Dr. McLean complied with the recognized standard
of acceptable professional practice.” Of course, through the present appeal, the Plaintiff
endeavors to show that he should have been allowed to obtain a substitute standard of care
expert after Dr. Sobel refused to testify in this case. We therefore understand how the
Plaintiff’s establishment of an error associated with that issue would impact the
foundations of the February 9, 2021, summary judgment order in favor of Dr. McLean. It
is only in this limited respect, and in the absence of any further developed explanation by
the Plaintiff, that we are able to intelligibly derive any meaning in the Plaintiff’s otherwise
vague arguments that the “effect of the . . . erroneous decision[] [in the trial court] . . .
resulted” in summary judgment and that the “motion[] for summary judgment could not
have been granted but for” error already existing.
Public policy favors resolving cases on their merits, see Norton v. Everhart, 895
S.W.2d 317, 322 (Tenn. 1995), and the presence of inadequate briefing does not necessarily
foreclose this Court from proceeding to review the merits of an issue. Rule 2 of the
Tennessee Rules of Appellate Procedure, in fact, permits this Court to waive briefing
requirements if good cause exists. See Tenn. R. App. P. 2 (noting that, subject to certain
exceptions, “[f]or good cause . . . the Court of Appeals . . . may suspend the requirements
or provisions of any of these rules in a particular case . . . and may order proceedings in
accordance with its discretion”); Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App.
2009) (“[T]here are times when this Court, in the discretion afforded it under Tenn. R. App.
P. 2, may waive the briefing requirements to adjudicate the issues on their merits.”). Given
our ability to discern limited meaning in the Plaintiff’s argument relative to the February
9, 2021, summary judgment order, as discussed above, we are of the opinion that the
February 9, 2021, summary judgment order in favor of Dr. McLean is an appropriate
subject of our review notwithstanding the briefing deficiencies that otherwise exist. We
stress, however, that litigants should not construe our decision in this case to attempt to
tackle the merits of that order as a harbinger that we will be as forgiving of
similar briefing deficiencies in the future.
To synthesize our discussion above, we hold that the Plaintiff has generally waived
any issue he has concerning the summary judgment orders that were entered in this case
given his brief’s deficiencies and noncompliance with the rules of appellate procedure. We
do not extend our finding of waiver, however, to the Plaintiff’s challenge to the February
9, 2021, summary judgment order, the entry of which was predicated upon the Plaintiff’s
lack of expert proof as to the standard of care required of Dr. McLean. As a consequence
of the Plaintiff’s waiver, we leave the summary judgments entered in favor of the hospital
entirely undisturbed. As for the February 9, 2021, summary judgment order in favor of Dr.
McLean, which is the only summary judgment order we find appropriate to review in light
of the Plaintiff’s submitted briefing, we turn to that issue below in connection with our
review of the Plaintiff’s raised issue concerning a desired substitute standard of care expert.
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The Trial Court’s Denial of a Replacement Expert for Dr. Sobel
As discussed previously, the trial court denied the Plaintiff’s efforts to secure a
substitute expert after Dr. Sobel refused to testify in this case. The Plaintiff had contended
that a substitution would be proper given that Dr. Sobel was no longer available. Further,
the Plaintiff had argued that his desired replacement for Dr. Sobel, Dr. Lunders, had
opinions that were “for the most part identical.”
The trial court’s decision here, which concerned the Plaintiff’s efforts to secure a
new expert after the deadline set in the scheduling order, is subject to review for an abuse
of discretion. Discretion itself
denotes the absence of a hard and fast rule. When invoked as a guide for
judicial action, it requires that the trial court view the factual circumstances
in light of the relevant legal principles and exercise considered discretion
before reaching a conclusion. Discretion should not be arbitrarily exercised.
The applicable facts and law must be given due consideration. Langnes v.
Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520, 526 (1931). An
appellate court should not reverse for “abuse of discretion” a discretionary
judgment of a trial court unless it affirmatively appears that the trial court’s
decision was against logic or reasoning, and caused an injustice or injury to
the party complaining. Douglas v. Estate of Robertson, 876 S.W.2d 95, 97
(Tenn.1994); Foster v. Amcon Intern., 621 S.W.2d 142, 145 (Tenn.1981).
Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).
When addressing the propriety of the Plaintiff’s request for relief in this case, the
trial court specifically considered the factors in Williams v. Baptist Memorial Hospital, 193
S.W.3d 545 (Tenn. 2006). The Williams court, which had observed that Rule 6.02 of the
Tennessee Rules of Civil Procedure permits a court, upon a showing of excusable neglect,
to allow an enlargement of time requested after the original time has elapsed, adopted the
following considerations as relevant to its inquiry regarding a request for an enlargement
of time to identify expert witnesses: “(1) the risk of prejudice to parties opposing the late
filing, (2) the delay and its potential impact on proceedings, (3) the reasons why the filings
were late and whether the reasons were within the filer’s reasonable control, and (4) the
good or bad faith of the filer.” Id. at 551.
In connection with its consideration of the above-mentioned factors from Williams
during a hearing on the Plaintiff’s motion for a substitute expert, the trial court noted in
pertinent part as follows:
One, the risk of prejudice to the Defendant in either the Williams case
or the Mikheil case, one of the factors considered was that the physician had,
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and I quote, “been under a cloud of the lawsuit for two years.” In this case,
we’re dealing with something that has gone on for significantly more than
two years, and if the Court granted this supplementation and/or the extension
of the deadline, the Court finds that the risk of prejudice to this Defendant,
these Defendants, would exceed that as set forth in the Mikheil or Williams
case.
The delay and the potential impact being the second factor, the Court
will make certain findings relative to that. One, the delay will be significant
if I grant this. Based -- going on the Court’s calendar, available trial dates,
counsel’s calendar, and redeposing an expert or deposing an expert in an
investigation relative to this expert, that being the one that is being proposed
to be supplemented. And the Court finds that that weighs in favor of the
denial of the supplementation.
The third factor, the reasons why there is the request and whether it
was within the filer’s control. In this case, the Court finds that Plaintiff’s
counsel had some control over the testimony of the physician, Dr. Sobel, but
certainly not complete control. I think Dr. Sobel -- and I find that Dr. Sobel’s
testimony in the deposition was at best misleading and at worst fraudulent.
So it’s somewhere between those two on this continuum. But [the Plaintiff’s
counsel] didn’t know about it, neither one of them, and I certainly do not
fault them at all in this. That would weigh slightly in favor of granting this
request. I do not find that there was a -- that this was done in bad faith.
In a subsequently-entered order memorializing its decision to deny the Plaintiff’s motion
to substitute, the trial court revisited these considerations, stating in part:
First, the Court finds that the risk of prejudice to the Defendants is
great in this matter. Defendant McLean has been under the suspicion of a
lawsuit for significantly more than two years. If the Court granted Plaintiff’s
Motion to Substitute Expert Witness and/or the extension of the deadline, the
risk of prejudice to Defendants would exceed that set forth in Williams and
Mikheil.
Second, the Court finds that the delay in this matter would be
significant if Plaintiff’s Motion to Substitute is granted. If the Court were to
grant Plaintiff’s Motion to Substitute, the trial date would be pushed out
significantly due to the Court’s calendar, available trial dates, the calendars
of counsel, and the need to take another expert deposition despite the fact
that the discovery deadlines have expired in this matter. The Court finds that
the significant delay that would result if Plaintiff’s Motion to Substitute is
granted weighs in favor of the denial of Plaintiff’s Motion to Substitute.
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The risk of prejudice to Defendants and the significant delay that
would result if the Court granted Plaintiff’s Motion to Substitute weigh in
favor of denying Plaintiff’s Motion.
Third, the Court looks at the reasons why there is a request and whether
it was in the filer’s control. In this case, the Court finds that Plaintiff’s
counsel had some control over the testimony of the physician, Dr. Sobel, but
Plaintiff’s counsel did not have complete control. The Court finds that
Sobel’s testimony during his deposition was at best misleading and at worst
fraudulent. The Court does not assess fault to Plaintiff’s counsel for Dr.
Sobel’s testimony. The fact that Plaintiff’s counsel did not have complete
control over this situation weighs slightly in favor of granting Plaintiff’s
Motion to Substitute Expert. The Court finds, however, that as a practical
matter that anytime someone finds that an expert has done something that
bears on their credibility that the relationship between the lawyer that hired
them and that particular expert is going to deteriorate.
We are of the opinion that the trial court’s ruling here constituted an abuse of discretion.
Although the trial court generally referenced a potential risk of prejudice and delay that
could be occasioned by allowing the Plaintiff’s new expert, it should be noted that the
Plaintiff was proposing to merely substitute Dr. Lunders’ opinions for Dr. Sobel’s. The
Plaintiff was not proposing to inject entirely new issues into the case. Dr. Sobel, of course,
had refused to testify, and a replacement for him was needed. Although Dr. Sobel’s refusal
to testify was arguably assumed by the trial court’s written order inasmuch as the
deterioration of the relationship between Dr. Sobel and the Plaintiff’s counsel was
referenced, it was never specifically discussed. Indeed, instead of specifically focusing on
whether the Plaintiff had control over Dr. Sobel’s refusal to testify, which itself prompted
the need for a substitute expert, the trial court focused more narrowly on Dr. Sobel’s
deposition testimony and whether Plaintiff’s counsel had control over it or was at fault for
it. As noted above, as to these considerations, the trial court opined that the Plaintiff’s
counsel had “some control” over Dr. Sobel’s testimony but was not at fault for it. It is not
clear to us in what sense the trial court believed “some control” to exist in relation to Dr.
Sobel’s testimony, and we note again that the court ultimately concluded that the Plaintiff’s
counsel bore no fault for what Dr. Sobel had stated. As best as we can understand, the
partial control contemplated by the court’s order perhaps refers to counsel’s pre-deposition
preparation, or lack thereof, of Dr. Sobel.
Although the trial court’s written order did not specifically consider whether the
Plaintiff had any control over Dr. Sobel’s refusal to testify or even specifically mention the
fact of Dr. Sobel’s refusal to testify, the order did arguably appear to assume his
unavailability to the Plaintiff inasmuch, as noted earlier, the court referenced a
deterioration of the relationship between Dr. Sobel and the Plaintiff’s counsel. Indeed,
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after commenting that the Plaintiff’s lack of complete control2 weighed slightly in favor of
granting the Plaintiff’s motion, the trial court went on to state as follows: “[H]owever, that
as a practical matter that anytime someone finds that an expert has done something that
bears on their credibility that the relationship between the lawyer that hired them and that
particular expert is going to deteriorate.” Interestingly, when this “practical” consideration
was referenced by the trial court at the hearing on the Plaintiff’s motion to substitute, the
court not only considered Dr. Sobel’s refusal to testify specifically, it actually appeared to
disclaim any finding that the Plaintiff had sought to manufacture a withdrawal after Dr.
Sobel’s deposition due to the doctor’s potential credibility concerns, while at the same time
alluding to such general theoretical concerns as a “practical” consideration that should
countenance against granting relief in this case. Insofar as its offered insight admits, the
trial court placed emphasis on concerns that could exist or manifest in these types of
situations. Indeed, immediately after remarking that there was no bad faith or fault on the
part of the Plaintiff’s counsel here, the court went on to state as follows:
However, I want to look at this from a practical standpoint. Any time
someone finds that an expert has done something that bears on their
credibility -- I’m not saying the lawyers did this in this case, but because
that expert’s credibility is -- can be or will be greatly impugned, I think the
relationship between the lawyer that hired them and that particular expert is
going to deteriorate. I mean, common sense tells you that. And if the lawyer
-
then can come in and say it’s deteriorated, he’s not credible, I’ve cussed
him like a dog because he wasn’t credible, and now he -- because of this,
he’s not going to testify or she’s not going to testify so give me another
bite, then I think I’m in great degree frustrating Rule 16.
(emphases added).
Obviously, a counsel’s efforts to manufacture an expert’s withdrawal could be a
relevant consideration to the extent such efforts would tend to show control over and
impact on an expert’s subsequently-stated unwillingness to testify, but the trial court made
no written finding that, in this case, the Plaintiff’s counsel had acted in such a way to
facilitate Dr. Sobel’s refusal to testify. Moreover, beyond the absence of any written
finding to this end, the trial court’s oral statements at the hearing on the Plaintiff’s motion
to substitute indicated that it was broaching that concern “as a practical consideration”
regarding facts that could present themselves, specifically noting that “I’m not saying the
lawyers did this in this case.” The court then, as noted above, appeared to allude to this
“practical matter” in its order.
2
Again, the specific focus in the order appeared to be on the Plaintiff’s control over Dr. Sobel’s
deposition testimony, not control over (or a contribution to) his stated refusal to testify. The latter inquiry
would appear to be a broader one than one limited to considerations of control over Dr. Sobel’s deposition
testimony.
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As it is, the record contains no finding from the trial court that the Plaintiff or his
counsel acted in bad faith or was at fault here, and insofar as this record suggests, the
Plaintiff did not have control over Dr. Sobel’s actual decision to refuse to testify. It
therefore appears that the Plaintiff’s need for a replacement expert outside the scheduling
order deadline was not within his control. Of note, when a party misses a deadline due to
circumstances outside of its control, this will often be sufficient to substantiate a claim of
excusable neglect. See State ex rel. Sizemore v. United Physicians Ins. Risk Retention Grp.,
56 S.W.3d 557, 567 (Tenn. Ct. App. 2001) (noting that “a party’s failure to meet a deadline
may have causes ranging from forces beyond its control to forces within its control” and
that “[t]he former will almost always substantiate a claim of excusable neglect”). We
conclude that such a showing of excusable neglect was made here in light of the above
discussion and hold that the trial court abused its discretion in not allowing the Plaintiff to
use Dr. Lunders as a substitute expert for the standard of care opinions already previously
injected into the case through Dr. Sobel.
In connection with our conclusion on this issue, we note that some of the arguments
offered by Dr. McLean in defense of the trial court’s decision misapprehend the record,
facts of this case, and circumstances surrounding the Plaintiff’s motion to substitute. First,
we observe that Dr. McLean takes issue with the timeliness of the Plaintiff’s motion to
secure a substitute expert for Dr. Sobel, generally arguing, for instance, that “Plaintiff was
aware of potential issues with Dr. Sobel for nearly a year before he sought leave to
substitute.” Respectfully, Dr. McLean’s argument on this issue fails to appreciate that the
Plaintiff’s motion was predicated on Dr. Sobel’s actual refusal to testify and withdrawal
from the case, and the record certainly does not reveal any marked untimeliness associated
with the Plaintiff’s request. An affidavit from the Plaintiff’s counsel indicates that Dr.
Sobel quit on January 16, 2019; the motion to substitute was filed shortly thereafter on
January 22, 2019.
Dr. McLean further argues that the motion to substitute is without merit because, as
he attempts to suggest through various statements, Dr. Sobel is not prevented from
testifying in this matter. For example, he argues that the “desire to avoid an expert’s
credibility problem is an insufficient reason to substitute an expert.” Notwithstanding the
merit that this proposition may otherwise hold, this record does not suggest that the motion
to substitute was animated by this reason. The trial court made no finding that the claimed
withdrawal of Dr. Sobel was a subterfuge and that the doctor was actually available to the
Plaintiff. Moreover, the trial court placed no blame on the Plaintiff’s counsel for any of
the events that transpired. Dr. Sobel became uncooperative and refused to testify on behalf
of the Plaintiff, and the Plaintiff had a true need for another expert independent of potential
concerns that previously existed as to Dr. Sobel. As counsel for the Plaintiff explained at
the hearing on his motion to substitute:
[Defense counsel] argue over and over and over again . . . that the tension
between Plaintiff’s counsel and Dr. Sobel is nothing new, and they’re right,
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it’s not. But the tension isn’t why we’re here today. We acknowledged that
there were problems. We were prepared to go to trial with those
problems, despite that tension. The thing that’s new is he’s now quit and
refuses to testify. But when the Court ordered him to produce the 1099s
under protective order, there was some tension. When the Court lifted the
protective order, there was more tension. But as strained as that relationship
was, we were prepared to go to trial with him. We had no other choice.
That’s all changed since he’s not coming.
(emphasis added).
Our conclusion that the trial court erred in refusing the Plaintiff a substitute expert
for Dr. Sobel is, as alluded to previously, relevant to our consideration of the February 9,
2021, summary judgment order, the entry of which was predicated upon the Plaintiff’s lack
of expert proof as to the standard of care required of Dr. McLean. Simply put, given our
conclusion above that the trial court erred in ruling that Dr. Lunders should not be allowed
as a substitute for Dr. Sobel, the February 9, 2021, summary judgment order is hereby
reversed.3
Assertion of Comparative Fault Defense and Ensuing Limitations on Any Experts
Retained by the Plaintiff to Address the Defense
We turn next to the Plaintiff’s contention that the trial court erred in (1) allowing the
pleadings to be amended for the assertion of a comparative fault defense against him and
(2) placing limitations on any new experts the Plaintiff might retain to address this defense.
“The rules relating to amendment of pleadings are liberal, vesting broad discretion
in the trial court.” Biscan v. Brown, 160 S.W.3d 462, 471 (Tenn. 2005). Indeed, regarding
the amendment of pleadings, Rule 15.01 of the Tennessee Rules of Civil Procedure
specifically states that “leave shall be freely given [to amend pleadings] when justice so
requires.” Tenn. R. Civ. P. 15.01. This Court has accordingly explained that the trial court
has discretion to “allow the defendant to amend his answer, even to assert an affirmative
defense, and ‘even if such a motion is not made until the time of trial.’” Small ex rel.
Russell v. Shelby Cty. Schs., No. W2007-00045-COA-R3-CV, 2008 WL 360925, at *15
(Tenn. Ct. App. Feb. 12, 2008) (quoting Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677,
3
Given our decision to reverse the final summary judgment order in favor of Dr. McLean, we
pretermit consideration of the Plaintiff’s raised issue concerning a desired nonsuit of Dr. McLean, which,
at most, appears to have been raised in the appellate briefing as an alternative issue and remedy to the
Plaintiff’s request that the summary judgment order in Dr. McLean’s favor be reversed. Indeed, whereas
Rule 27(a)(8) of the Tennessee Rules of Appellate Procedure requires that an appellant’s brief contain “[a]
short conclusion, stating the precise relief sought,” the conclusion in the Plaintiff’s brief mentions nothing
of a desire for a voluntary dismissal of the claims that had remained against Dr. McLean; instead, the brief
concludes by asking for a “trial on the merits” but nothing more.
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691 (Tenn. Ct. App. 1999)). Considerations relevant to determining whether a court abused
its discretion are “whether the amendment would cause undue delay; whether the opposing
party has sufficient notice; whether the party seeking the amendment is acting in bad faith;
whether the deficiencies have not been cured in previous amendments; whether the
amendment would be futile; and whether the amendment would cause undue prejudice.”
Id. at *16.
Here, we discern no abuse of discretion in the trial court’s decision to allow the
amendment complained of by the Plaintiff. We observe that Dr. McLean’s request to assert
a comparative fault defense was filed in the wake of deposition testimony by one of the
Plaintiff’s experts indicating that the Decedent “would probably be alive” had he sought
earlier treatment, and we additionally note that Dr. McLean’s motion was filed within the
contemplated timeframe that the parties’ agreed scheduling order had set for motions to
amend the pleadings.4
Although we find no error in the trial court’s decision to allow the assertion of a
comparative fault defense against the Plaintiff, we do take issue with, and are somewhat
perplexed by, the limitations imposed on the Plaintiff regarding new experts he might retain
to address this new defense. As outlined previously, following the pleaded assertion of the
comparative fault defense against the Plaintiff and a subsequent status conference, the trial
court entered an order that initially provided that “[a]ny new expert identified by Plaintiff
may be disclosed to address only the issue of [the Decedent’s] comparative fault.” The
written text of the court’s order went on to further state, however, that “Plaintiff may not
identify or use any new experts to address the standard of care for Defendants or alleged
violations of the standard of care by Defendants. Plaintiff is not permitted to present any
new experts to testify about the alleged fault of Defendant McLean and/or what he
allegedly did wrong.” To the extent that the trial court was attempting to prevent the
Plaintiff from obtaining new expert opinions that the standard of care was violated in ways
other than those that had already been alleged and disclosed, we certainly take no issue
with the court’s attempt to prevent a “backdooring” of new standard of care issues into the
case. However, the terms of the trial court’s order clearly prohibit any new expert from
addressing, in any way, any alleged standard of care violations of Dr. McLean and his
alleged wrongful actions, even those that already are in issue. In our view, this limitation
constitutes an abuse of discretion, as it in effect prevents the Plaintiff from meaningfully
responding to the new defense that the Decedent is to blame for the death that resulted in
this case. Indeed, how would the Plaintiff be able to effectively counter Dr. McLean’s
defense that the Decedent’s actions were a cause of the harm complained of in this case if
the new expert allowed by the court for this issue is not permitted to offer an opinion that
4
The relevant deadline pursuant to the terms of the agreed scheduling order was January 1, 2018.
Whereas Dr. McLean’s motion to amend was actually filed on January 2, 2018, January 1 was a holiday.
See Tenn. R. Civ. P. 6.01 (noting that, when computing a period of time prescribed or allowed by order of
court, the last day of the period shall not be included if, among other things, it is a “legal holiday as defined
in Tenn. Code Ann. § 15-1-101”); Tenn. Code Ann. § 15-1-101 (specifying January 1 as a holiday).
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actions other than the Plaintiff’s, such as Dr. McLean’s, were the cause of the injury? By
restricting any new expert from even broaching the alleged wrongful actions of Dr.
McLean, the court’s order narrowly circumscribes the universe of the case and prevents
any meaningful or intelligible inquiry into the issue implicated by the comparative fault
defense, i.e., whether the Decedent is responsible for what occurred. After all, the Plaintiff
could, in the absence of the court’s limitations, respond to the assertion that the Decedent’s
actions resulted in his death by offering expert testimony that the Decedent’s alleged
negligence played no causal factor in the medical events but that Dr. McLean’s actions did.
The trial court acknowledged during one hearing that the injected issue of
comparative fault “change[d] the complexion of the case from the plaintiff’s standpoint.”
Yet, while the trial court purported to allow the Plaintiff to respond to the new defense,
which alleged that the Decedent’s negligence was a cause of his death, the court’s order
improperly restricted the Plaintiff from offering any holistic assessment to that specific
contention. For instance, under the terms of the order, a cardiologist, who the court
recognized might now be needed by the Plaintiff given the shift in the nature of the case,5
would not be permitted to explain that the Decedent’s actions made no difference here but
that, instead, Dr. McLean’s actions were in fact the cause of the Decedent’s death. Any
such comprehensive consideration is entirely foreclosed per the terms of the order
inasmuch as alleged standard of care violations by Dr. McLean cannot even be
“address[ed].” Although the Plaintiff attempted to get the trial court to change its position,
arguing that its order merely allowed him to “get a new expert limited to saying that [the
Decedent] is not at fault,” the trial court denied the request that its limitations be lifted.6
Because we conclude that the imposed limitations constitute an abuse of discretion on the
part of the trial court, the Plaintiff should be allowed, in response to the comparative fault
defense, to obtain an expert that is not restricted from commenting on the actions of Dr.
McLean.
5
We observe that the trial court had stated that it granted a continuance “to allow Plaintiff to obtain
a cardiologist to respond to the Defendants’ comparative fault allegation as to [the Decedent].”
6
The trial court did not, as part of its denial, disabuse the Plaintiff in any way of the understanding
the Plaintiff had gleaned from the initial order that imposed the limitations. Moreover, as explained herein,
because the order at issue limits the expert(s) from even addressing alleged standard of care violations, it
does prevent them from discussing whether the actions of Dr. McLean were a cause of the injury. It is not
entirely clear to us whether the trial court intended to place such a severe limitation, or that Dr. McLean’s
counsel even believed such a limitation should exist. For instance, during a hearing following the entry of
the order at issue, the trial court noted that it was allowing the Plaintiff to “get a cardiologist to say . . . it
all would have been the same [had the Decedent done certain things the evening before his death].”
Moreover, counsel for Dr. McLean expressed the belief that the Plaintiff “can have a cardiologist . . . on
causation.” Of course, per the terms of the order imposing limitations, to the extent causation was allowed
to be addressed by a new expert, such an inquiry could not address alleged standard of care violations by
Dr. McLean. Thus, the complained-of actions of the doctor could not be considered by that new expert as
part of any causation inquiry, leaving the Plaintiff to reasonably understand that his new expert could only
look to alleged negligence by the Decedent. Yet, as we have noted earlier, the trial court refused to disturb
the limitations in its order when the issue was brought to its attention.
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CONCLUSION
As discussed herein, we hold that the Plaintiff has generally waived any issue he
has concerning the summary judgment orders that were entered in this case given his brief’s
deficiencies and noncompliance with the rules of appellate procedure. Despite his brief’s
deficiencies, however, we have endeavored to specifically address the trial court’s
February 9, 2021, summary judgment order, the entry of which was predicated upon the
Plaintiff’s lack of expert proof as to the standard of care required of Dr. McLean. Given
our conclusion herein that the trial court erred in ruling that Dr. Lunders should not be
allowed as a substitute for Dr. Sobel, the February 9, 2021, summary judgment order is
hereby reversed. Although we discern no error in the trial court’s decision to allow the
comparative fault defense amendment complained of by the Plaintiff, we conclude that the
court did err with regard to the limitations it imposed on any new experts the Plaintiff might
retain to respond to this new defense. The case is remanded for further proceedings that
are necessary and consistent with this Opinion.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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