                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                         August 5, 2003 Session

                 PEGGY PISTOLE v. STEPHANIE D. HAYES, ET AL.

                         Appeal from the Circuit Court for Davidson County
                              No. 99C-2941     Carol Soloman, Judge



                      No. M2002-00470-COA-R3-CV - Filed January 12, 2004


In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole,
argues that the Trial Court erred in excluding witness testimony upon grounds that their identity
was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the Trial
Court and remand.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Cause
                                       Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Joseph P. Bednarz, Jr., Nashville, Tennessee, for the Appellant, Peggy Pistole

William G. McCaskill and W. Carl Spinning, Nashville, Tennessee, for the Appellees, Stephanie D.
Hayes and Jennifer C. Penney

                                                   OPINION

        This appeal arises out of a cause of action filed by Ms. Pistole in October of 19991 for
personal injuries and property damage she allegedly sustained as the result of an automobile accident
involving herself and the Defendants/Appellees, Stephanie D. Hayes and Jennifer C. Penney. Trial
of the case was scheduled for October 8, 2001.

       On October 5, 2001, Ms. Hayes filed a motion in limine which, inter alia, asserts that, in her
witness and exhibit list filed on October 4, 2001, Ms. Pistole included Roger DesPrez, M.D. and
Margaret Allison DeHart, CNP as potential trial witnesses. The motion asserts that Ms. Hayes did


         1
          The record shows that the original complaint was filed by the Appellant on April 2, 1997; however, an order
of voluntary dismissal was entered with respect to that complaint on March 9, 1999, and the complaint was re-filed on
October 18, 199 9.
not have notice of these witnesses prior to October 4, 2001, and requests that their testimony be
excluded as evidence at trial. On October 8, 2001, the Court announced its ruling that the two
witnesses would not be allowed to testify. Trial of the case proceeded culminating in a jury verdict
in favor of Ms. Pistole and an award to her of damages in the amount of $4,000.00. Thereafter, Ms.
Pistole filed a motion for new trial based, in part, upon grounds that the Court erred in excluding the
testimony of Dr. DesPrez and Nurse DeHart. The Court entered its order denying this motion on
January 29, 2002, and the present appeal followed.

       The sole issue we address, as restated, is whether the Trial Court erred in excluding the
testimony of witnesses Dr. DesPrez and Nurse DeHart.

        In reviewing an evidentiary ruling such as the one made by the Trial Court in this case it is
our duty to determine whether the Court abused its discretion. As noted by the Supreme Court of
this State in Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992):

         In Tennessee, admissibility of evidence is within the sound discretion of the trial
         judge. When arriving at a determination to admit or exclude even that evidence
         which is considered relevant trial courts are generally accorded a wide degree of
         latitude and will only be overturned on appeal where there is a showing of abuse
         of discretion.

        T.R.C.P. 26.02(1) allows parties to obtain discovery regarding any non-privileged matter
relevant to the subject matter in the pending action including “the identity and location of persons
having knowledge of any discoverable matter.” We noted in Strickland v. Strickland, 618 S.W.2d
496 (Tenn. Ct. App.1981), that “Rule 26.02(1) is designed for the discovery of facts which will
enable litigants to prepare for trial free from the element of surprise, which, prior to the adoption of
the rules, frequently led to a result based more upon the legal maneuvering of counsel than upon the
merits of the case.” While the Tennessee Rules of Civil Procedure do not set forth sanctions to be
imposed when a party is found to have abused the discovery process, the Supreme Court of this State
has recognized that trial judges have an “inherent power” to implement appropriate corrections in
such case. Lyle v. Exxon Corp., 746 S.W.2d 694 (Tenn. 1988). In Strickland, supra, we stated as
follows at page 501with regard to the imposition of sanctions where a party has failed to reveal the
name of a person having knowledge of a discoverable matter.

         Generally, where a party has not given the name of a person with knowledge of
         discoverable matter, the court should consider the explanation given for the failure
         to name the witness, the importance of the testimony of the witness, the need for
         time to prepare to meet the testimony, and the possibility of a continuance. In the
         light of these considerations the court may permit the witness to testify, or it may
         exclude the testimony, or it may grant a continuance so that the other side may
         take the deposition of the witness or otherwise prepare to meet the testimony. See:
         8 Wright and Miller, Federal Practice and Procedure, supra; 23 Am.Jur.2d
         Depositions and Discovery § 265 (1965).


                                                  -2-
         Where ... the party willfully, knowingly, and intentionally withheld the name of
         a person with knowledge of discoverable matter, the imposition of the sanction
         of not permitting that person to testify is strongly suggested.

       The record shows that the Appellees served Ms. Pistole with interrogatories and request for
production of documents on March 7, 2000. Her response was served on counsel for the Appellees
on June 23, 2000, and included the following.

                4. State the name and address of each physician or other practitioner of
         the healing arts who has treated you for the injuries or medical conditions upon
         which this action is based, and attach copies of any and all medical records in the
         possession of you or your attorney pertaining to this treatment.

                ANSWER:

                   Nashville Fire Dept./E.MS.
                   Matthew Bumbalough, RNC, FNP
                   University Community Health Services
                   Tennessee Orthopaedic Alliance
                   E. Gene Snead, Jr., D.C.
                   Baptist Outpatient & Sports Rehabilitative Services
                   W. Anderson Spickard, III, M.D.
                   Vanderbilt University Medical Center
                   Nashville Memorial Hospital

                   Addresses may be found in Attachment #2

                 22. State the name and address of each person who (a) was, or was
         reported to be, an eyewitness to the accident; (b) was at or near the accident scene
         shortly before or after the accident; (c) has, or may have, knowledge concerning
         the identity of other witnesses; (d) made or has possession of any photographs of
         the accident scene, or of any person (including yourself) allegedly injured in the
         accident; (e) heard any witness or any party make any statement concerning the
         accident or concerning the facts and circumstances surrounding it; (f) has, or may
         have, knowledge concerning the facts and circumstances surrounding the accident
         or your injuries, illnesses or conditions before and after the accident, but whose
         name has not been provided in answers to any of the questions above.

                ANSWER:

                   To the best of my knowledge, only those listed on the accident report
                   and the investigating police officer.



                                                 -3-
                     24. Please state the names and address of all persons, whether or not you
             intend to call them as witnesses at trial, including Plaintiff, who have knowledge
             of facts pertaining to the allegations of Plaintiff’s Complaint, and provide a
             general summary of the facts of which you understand each such person is
             knowledgeable.

                    ANSWER:

                       None other than those already listed.

       The Appellees apparently contend that, because of Ms. Pistole’s failure to list Dr. DesPrez
or Nurse DeHart in response to any of the referenced interrogatories their testimony was
appropriately excluded by the Trial Court2.

         Although Ms. Pistole does not dispute that Dr. DesPrez and Nurse DeHart were not
specifically named in her responses to the referenced interrogatories she apparently argues that her
response to interrogatory number 4 is adequate because, although she does not name the witnesses
in her response to that interrogatory, she does name University Health Care Services, the facility
where she was treated by the witnesses. We do not agree that the mere listing of the medical facility
where the witnesses were working is an adequate response to interrogatory number 4, which asks
for the name of each physician or other practitioner of the healing arts who has treated Ms. Pistole.
That Ms. Pistole was aware of the specificity required by this interrogatory is evident from the fact
that her response does include the names of three other physicians or health care providers. Ms.
Pistole asserts that her response to interrogatory number 22 was based upon the assumption that all
of her health care providers had been identified in response to interrogatory number 4; however,
because we have determined that her response to interrogatory number 4 should have included the
names of Dr.DesPrez and Nurse DeHart, it follows that her response to interrogatory number 22 is
also deficient. We further note that Ms. Pistole’s argument that interrogatory number 24 requests the
identity of persons she plans to call as witnesses at trial and that she has no duty to provide this
information in response to interrogatories. However, interrogatory number 24 clearly requests the
names and addresses of persons having knowledge of facts pertaining to allegations in the complaint
“whether or not” Ms. Pistole intends to call them as witnesses at trial. Accordingly, we disagree with
Ms. Pistole’s construction of this interrogatory and it is our finding that her response to this
interrogatory should have included the names of the subject witnesses because, as we note, they were
not listed in her responses to other interrogatories.




         2
           The App ellees indicate that M s. Pistole also failed to provide the names of Dr. Desprez and Nurse Dehart in
response to interrogatory numb er 25 which requests the na mes o f perso ns M s. Pistole intends to call as expert witnesses
in the case. We find no evidence that either of these witnesses was to be called for expert testimony and the Trial Court
appears to have determined that Dr. DesPrez was being called as Ms. Pistole’s treating physician and not as an expert.
Accordingly, the Appellees’ argument that Ms. Pistole was obligated to identify Dr. D esPrez and N urse D eHart in
respo nse to this interrogatory is without m erit.

                                                            -4-
        It is our determination that Ms. Pistole was obligated to set forth the names of Dr. DesPrez
and Nurse Dehart in response to at least one of the above referenced interrogatories and her failure
to do so was an abuse of the discovery process. Having made this determination we must further
determine whether exclusion of these witnesses’ testimony was an appropriate sanction under the
circumstances in this case and our review of the Trial Court’s decision in that respect is based upon
those criteria set forth in Strickland, supra.

        First we consider the explanation given by Ms. Pistole for her alleged failure to name Dr.
DesPrez and Nurse DeHart on pretrial discovery. In this regard Ms. Pistole apparently argues that,
even if these witnesses were not named in her responses to interrogatories, they were otherwise
identified in deposition testimony she gave on January 18, 2001, approximately ten months prior to
trial. Our review of the record confirms that both witnesses were named by Ms. Pistole on several
occasions in her deposition testimony as follows:

              Q. Okay. Have you received treatment at Vine Hill for any injuries that
              you claim are related to the automobile accident?

              A. Pills for anxiety and depression.

              Q. Okay. So do you recall - - do you see the same doctor when you go to
              Vine Hill, or does it just depend on who’s assigned there a particular day?

              A. I get to keep the same one.

              Q. Who have you been seeing at the Vine Hill Clinic?

              A. Allison D. Heart.3

              ....

              A. Anyway he prescribed the Elavil, and he said, “You’ll have some weird
              side effects but keep taking it because you’ll get used to it.” And anyway
              it made me have bad dreams when I first start taking them or when they
              have upped the dosage, but I asked him how long would I have to take
              them, and he said the rest of my life.

              Q. Okay. And who prescribed - - you made it sound like somebody else is
              actually refilling those for you. Who’s doing that?

              A There’s a doctor at the clinic that was in Madison and the clinic at Vine
              Hill.


       3
           There is apparently no dispute that this is a misspelling of Nurse Dehart’s name.

                                                         -5-
        Q. Uh-huh.

        A. And he’s the one that writes the prescriptions. You know, the nurse
        practitioners, like, fill them out.

        Q. Right.

        A. And then he signs them, and his name is Roger DePrez. It’s D-E capital
        P-R-E-Z.4

        ...

        Q. Okay. And then the Celexa, which I think you told me is being
        prescribed for depression, who’s prescribed that medicine?

        A. Allison D. Heart but Dr. DePrez signed it.

        ...

        Q. Okay. now are those all of the prescriptions that you’re taking
        currently?

        A. No. I take Prilosec too because they had me on so many different kind
        of anti-inflammatories, it gave me an ulcer.

        Q. Okay. Who has prescribed the Prilosec?

        A. The same place. Allison D. Heart over at Vine Hill.

        ...

        Q. And you talked about depression and anxiety?

        A. Yes.

        Q. Who are you seeing about that?

        A. Now I’m just seeing Allison D. Heart over at Vine Hill.

        Q. She’s - -



4
    There is ap parently no dispute that this is a missp elling of D r. DesPrez’s nam e.

                                                     -6-
            A. I went to - -

            Q. Is she a general practitioner or a nurse?

            A. Nurse practitioner.

         The Appellees state that Ms. Pistole “seems to suggest that because she mentioned the names
of these two individuals during one of two depositions taken related to this matter, Defendants were
... somehow on notice that these individuals would be witnesses at trial.” But the question is not
whether Ms. Pistole notified the Appellees of those individuals who would be witnesses at trial but,
rather, whether she identified persons having knowledge of facts relevant to the case. After
reviewing the referenced testimony we are compelled to find that Ms. Pistole did identify Dr.
DesPrez and Nurse DeHart as persons having knowledge of facts relevant to the case. As we have
indicated on prior occasion, T.R.C.P. 26.02 (1) allows discovery of the identities of individuals
having knowledge about the facts of a case; however, it does not require that a party designate its
trial witnesses. Strickland v. Strickland, 618 S.W.2d 496 ( Tenn. Ct. App. 1981) and Mercer v.
Vanderbilt University Inc., an unreported opinion of this Court filed in Nashville on December 5,
2002.

        The next factor we consider is the importance of the testimony to the case. Ms. Pistole
argues that the testimony of these witnesses was necessary to overcome the Appellees’ portrayal of
her “as someone who was not really injured and was taking multiple medications without the
knowledge of her physicians.” Ms. Pistole states that the testimony of Dr. DesPrez and Nurse
DeHart was not only important to explain why the medications they prescribed were necessary, but
that their testimony was also very important in proving that medical expenses she incurred were
reasonable, necessary and related to the accident. Because of the exclusion of their testimony, Ms.
Pistole contends that she was only able to prove a very small part of her medical expenses.

         The Appellees’ do not directly address Ms. Pistole’s argument that the testimony of these
witnesses was important to the case in that portion of their argument devoted to the issue of whether
the Court properly excluded such testimony. They do, however, make certain assertions relevant to
the importance of this testimony in arguing that there was material evidence to support the jury’s
verdict and that, if there is any material evidence to support the verdict, we must affirm the
judgment. Before addressing this latter argument, we will analyze the Appellees’ assertions made
in its support as they pertain to the question of the importance of the testimony of Dr. DesPrez and
Nurse DeHart in this case. In this regard the Appellees assert that Ms. Pistole was allowed to testify
at length about the injuries and treatment she received as a result of the accident and “why she was
prescribed certain medication.” Accordingly, the Appellees assert that “the jury was allowed to
consider a great deal of evidence regarding [her] injuries and treatment.”

       Our review of the record convinces us that the testimony of Dr. DesPrez and Nurse DeHart
was important evidence in this case as to the question of why the medications prescribed by them
were reasonable and necessary to her medical treatment as it related to the automobile accident.


                                                 -7-
Although Ms. Pistole did testify at length about her injuries and treatment, much of this testimony
was not supported by medical evidence, as the Appellees admit. We do not know what the subject
witnesses’ specific testimony would have been and we will not speculate upon the precise weight
that testimony would have carried with the jury. However, we find it reasonable to assume that such
testimony might well have been of great importance in supporting Ms. Pistole’s claim for pain and
suffering and her claim for medical expenses which, according to her memorandum in support of
her motion for new trial, was not pursued after the Court’s decision to exclude the testimony of Dr.
DesPrez.

        The next factor we consider is the amount of time the Appellees would have needed to
prepare for the testimony of Dr. DesPrez and Nurse DeHart. As treating medical practitioners, we
will assume that these witnesses would have testified as to matters such as causation, pain and
suffering and treatment. It is not possible to say exactly how much time the Appellees would have
needed to prepare for cross examination of these witnesses; however, we note that the Appellees did
conduct cross examination of Dr. Benjamin Johnson, another treating physician who was consulted
by Ms. Pistole subsequent to her consultation with Dr. DesPrez and Nurse DeHart, as to these same
general matters. Accordingly, it would not appear that the Appellees would have needed an
extensive amount of time to prepare for cross examination of these witnesses and the resulting delay
would have been preferable to exclusion of their testimony.

        The last factor we consider is the possibility of a continuance of trial. There is nothing in the
record to show that this option was raised by either side or considered by the Trial Court. We have
no reason to believe that a continuance would not have been possible in this case had such been
necessary.

       This Court has heretofore noted that excluding relevant evidence “hampers the judicial
system’s truth-seeking function” and is, therefore, “an extraordinary step that courts should employ
sparingly.” Qualls, ibid. For the reasons we have stated, it is our conclusion that, under the
circumstances in this case, the testimony of Dr. DesPrez and Nurse DeHart should not have been
excluded.

         As a final matter we address the Appellees argument, previously alluded to, that we must
affirm the Trial Court’s judgment if there is any material evidence to support the jury’s verdict which
is the basis of that judgment. The Appellees misapprehend the correct standard of review. The Trial
Court’s decision to exclude the testimony of Dr. DesPrez and Nurse DeHart was not based on the
verdict of the jury. T.R.A.P. 36 empowers us to grant the relief to which a party before us is entitled
and to set aside a final judgment if “error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.” Our review of the record
convinces us that as a result of the Trial Court’s exclusion of the testimony of Dr. Desprez and Nurse
Dehart was an “error involving a substantial right” which “more probably than not affected the
judgment or would result in prejudice to the judicial process.”




                                                  -8-
        For the foregoing reasons, we reverse the judgment of the Trial Court and remand the case
for a new trial. Costs of appeal are adjudged against Stephanie D. Hayes and Jennifer C. Penney
equally.



                                            _________________________________________
                                            HOUSTON M. GODDARD, PRESIDING JUDGE




                                               -9-
