Using a Withdrawn Expert Witness's Discovery Deposition at Trial
From our Medical Malpractice Blog:
Under the Bearman Rule of Tenn. R. Civ. P. 32.01(3), a discovery deposition of an expert witness cannot be used at trial except to impeach the same witness at trial.
Say the defendant discloses 3 expert witnesses on the same topic. Each expert is deposed, and the 3 witnesses do not agree on critical subjects in the case. They read each other's deposition testimony. When it's time for trial, lo and behold, the defendant only wants to use the best witness.
Can you ask the testifying expert witness about the opinions of the withdrawn experts? According to Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn.App., 1994), you can. The trial judge should give a limiting instruction on the difference between impeachment and substantive evidence, but other than that, it is generally an appropriate subject of impeachment.
One sentence from the Court of Appeals that is vital to being able to adequately cross an expert:
We are of the opinion that full cross-examination of an expert can not and should not be curtailed simply by having the expert deny that he relied on any materials he reviewed and considered with which he disagrees.
Interesting discussion. This issue arises a fair amount in cases involving economic testimony on damages as well. In some cases, attorneys in business torts to retain both an accountant and economist to evaluate economic losses. Because of the different approaches some times the results and findings differ.
This also happens from time to time in injury cases where both a vocational expert and an economic damage expert is retained in the case.
Good post. Keep up the good work.
The Economists@lostcompensation.com
A later case, Durbin v. Sumner County Reg. Health Sys., makes clear that this exception to the Bearman Rule only applies if the testifying expert actually read the withdrawn expert's deposition transcript. This keeps it in the realm of impeaching the testifying expert for discounting or ignoring information that did not support her opinions. Either way, it's an evidentiary issue that is within the trial court's discretion.