                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                              May 11, 2001 Session

 The ESTATE OF DAVID S. BROCK, SR., by WANDA BROCK YADON,
 Executrix and Surviving Spouse of David S. Brock, Sr., v. TOIVO E. RIST,
   M.D., and DERMATOLOGY ASSOCIATES OF KNOXVILLE, P.C.

                    Direct Appeal from the Circuit Court for Knox County
                    No. 1-390-98    Hon. Dale C. Workman, Circuit Judge

                                        FILED JULY 10, 2001

                                  No. E2000-02459-C0A-R3-CV


A jury returned a verdict for defendants in medical malpractice action which was approved by the
Trial Judge. On appeal, plaintiff seeks new trial on the grounds there is no material evidence to
support the verdict and the Trial Judge erred in refusing to permit two of plaintiff’s experts to testify
and allowing defendants to offer in evidence a portion of an expert witness’s deposition taken for
discovery. We affirm the Judgment of the Trial Court.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


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

Donna Keene Holt and David E. Waite, Knoxville, Tennessee, for Appellant.

Douglas L. Dutton, Albert J. Harb and Amy V. Hollars, Knoxville, Tennessee, for Appellees.



                                              OPINION


                In this medical malpractice action, a jury returned a verdict for the defendants, and
plaintiff has appealed.

                On appeal, plaintiff argues there is no material evidence to support the jury verdict,
and the refusal by the Trial Judge to permit certain of plaintiff’s witnesses to testify, along with the
Court’s allowing defendants to offer certain expert testimony from a discovery deposition over the
objection of the plaintiff, constitute reversible error and require a new trial.

                Where a trial Judge, sitting as thirteenth juror, approves a jury verdict, our review is
limited to determining whether there is any material evidence to support the verdict. Reynolds v.
Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Overstreet v. Shoney’s Inc., 4 S.W.3d
694, 718 (Tenn. Ct. App. 1999). We conclude, from our review of the record, that material evidence
supports the jury verdict in favor of the defendants.

                Defendant, Dr. Toivo E. Rist, removed a mole from the deceased, David Stephan
Brock, Sr., on March 25, 1987. Brock subsequently sought treatment on April 26, 1988 with plastic
surgeon Dr. Dean Kleto. Dr. Kleto performed further surgery and reconstructive surgery, and tissue
samples were sent to Dr. Bruce Bellomy for pathology analysis. Dr. Bellomy consulted with Dr.
Milton Okun, a dermatopthaologist, who found features of the sample were suggestive of melanoma
but he did not offer a definitive diagnosis. After receiving Dr. Bellomy’s final pathology report, Dr.
Kleto preformed a wide re-excision of the lesion of Brock Sr.’s nose on June 22, 1988. The
pathology report on the tissue from that surgery found “minute focus of residual atypical nevus cells,
consistent with malignant melanoma in situ, showing complete margins of excision.” Brock died
on April 10, 1991, from a matastatic melanoma of the stomach and liver.

                 Dr. Rist’s treatment notes from his March 25, 1987 appointment with Brock states:
“lesion right side of nose area, R/O pigmented BCC, deadened, transected, desiccated.” Dr. Rist
testified that the term “transect” is identical to “shave biopsy” and that this “shave” is of a “sufficient
depth to capture a dysplastic nevus, [and] it’s also sufficient depth to capture a melanoma.” There
are mechanisms by which a doctor could remove only a layer of skin the thinness of the epidermis,
but Dr. Rist testified that he did not have the equipment necessary to perform this thin shave. The
knife that he used was several times thicker than the depth of the epidermis. He further testified that
when he shaves a lesion deep enough to diagnose a dysplastic nevus, that shave is of such a depth
to also diagnose malignant melanoma in situ because melanoma starts in the top layer.

               He sent a tissue sample for examination to Dr. James L. O’Quinn, a dermatologist
in Augusta, Georgia. Dr. O’Quinn’s pathology report noted the presence of a central dermal
component, with a thinner shoulder surrounding it. This description is consistent with Dr. Rist’s
testimony that he used a deep shave technique which reached down into the dermis and produced
a sample that was thicker in the middle than on the sides. Wanda Brock Yadon testified that after
some healing had occurred, there was a depression on the side of the deceased’s nose, which is
consistent with the deep shave technique.

                 Plaintiff contends that Dr. Rist’s testimony about his customary practice was “merely”
circumstantial evidence, and as such “it is not looked upon favorably by the law, which prefers direct
evidence.” Plaintiff argues that all the “direct, positive and unimpeached testimony of witnesses who
were testifying based on actual recall, direct observation and personal knowledge were all to the
effect that the mole was still present on the side of Mr. Brock’s nose after the treatment by Dr. Rist.”



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               Contrary to Plaintiff’s contention, circumstantial evidence may be used to prove any
material fact. See Law v. Louisville & N.R. Co., 170 S.W.2d 360, 363 (Tenn. 1943); Knapp v.
Holiday Inns, Inc., 682 S.W.2d 936, 944 (Tenn. Ct. App. 1984). In certain cases, our courts have
recognized that a well-connected train of circumstances may be more convincing than direct
evidence on the same matters. Knapp (citing Ballew v. Ballew, 309 S.W.2d 125, 128 (Tenn. Ct.
App. 1957)).

                Dr. Rist’s testimony based upon his notes from the March 25, 1987 procedure and
his routine practice, states that he removed the entire lesion clinically from Mr. Brock. He further
testified that he absolutely tries to remove the entire lesion and not just a part. This testimony
constitutes material evidence supporting the jury’s verdict.

                Plaintiff contends that the Trial Court erred in excluding relevant medical evidence
in support of plaintiff’s case and also in allowing defendants to read into evidence the deposition of
Dr. O’Quinn.

                The admission or exclusion of evidence is within the sound discretion of the trial
court. See Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); White v. Vanderbilt
University, 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999). Discretionary decisions require
conscientious judgment and they must take the applicable law into account and must also be
consistent with the facts before the court. See White and Overstreet v. Shoney’s Inc., 4 S.W.3d 694,
708 (Tenn. Ct. App. 1999). A trial court’s discretionary decisions should be reviewed to determine:
(1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court
identified and applied the applicable legal principles, and (3) whether the trial court’s decision is
within the range of acceptable alternatives. White, 21 S.W.3d at 223. We permit discretionary
decisions to stand if reasonable judicial minds can differ concerning its soundness. See White, 21
S.W.3d at 223, Overstreet, 4 S.W.3d at 709.

               An Agreed Scheduling Order was entered on May 5, 1999, setting out specific
discovery and motion deadlines in this case. Pursuant to this Order, plaintiff was to name all expert
witnesses and answer the defendant’s interrogatories on or before June 11, 1999. Both parties were
allowed to “supplement the testimony of their experts” up until September 1, 1999. Plaintiff
answered Defendants’ Interrogatories on June 11, 1999, naming Dr. Bandeian, Dr. O’Quinn, and
Robert Bohm, as her experts.

                On July 27, 1999, Plaintiff filed a supplemental Tenn. R. Civ. P. Rule 26 disclosure
naming Dr. Okun as an expert witness. She then filed a second supplemental Rule 26 disclosure on
August 26, 1999, naming Dr. Safer as an expert witness. Defendants moved to strike these two
experts on the basis that they were named after the deadline imposed by the Scheduling Order. The
Trial Court granted this motion and disallowed the use of any expert testimony by Dr. Okun and Dr.
Safer.

                Tennessee Rule of Civil Procedure 26.02 allows a party through interrogatories to


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require the other party to identify any expert witnesses the other party expects will testify at trial
along with the substance of that expert’s testimony. In addition, a party is under a duty to
“seasonably” supplement his response to a request for the identity of expert witnesses expected to
be called at trial. Tenn. R. Civ. P. 26.05.

               Under the provisions of the Rules, various sanctions are provided for when a party
abuses the discovery process, and the trial judge is clothed with the authority to take appropriate
corrective action against a party for discovery abuse. Lyle v. Exxon Corp., 746 S.W.2d 694, 699
(Tenn. Ct. App. 1988) (citing Strickland v. Strickland, 618 S.W.2d 496, 601 (Tenn. Ct. App. 1981)).

                In Lyle, the Court recognized that excluding the testimony of an expert witness may
be an appropriate sanction, and listed four factors that the trial court should consider in determining
the appropriate sanction. Id., at 699. These factors are (1) the explanation given for the failure to
name the witness; (2) the importance of the testimony of the witness, (3) the need for time to prepare
to meet the testimony; and (4) the possibility of a continuance. Id.

                Applying these factors, it is clear that the Trial Judge did not abuse his discretion in
excluding the expert testimony of Drs. Okun and Safer. Plaintiff explained that her failure to name
the experts earlier was due to the fact that she “just needed to replace one, wasn’t sure about another
one, and I need a dermatologist.” Plaintiff’s counsel stated that she had sent records to a
dermatologist prior to the deadline but was having communication problems and was unable to
timely secure a expert dermatologist for trial. No explanation was given as to why these two
witnesses were necessary, as she had already named Dr. Bandeian as an expert on the standard of
care. The naming of additional experts two months prior to trial caused the defendants to alert the
Court to a possible need for defendants to obtain additional experts. The Plaintiff concedes that a
continuance would not have been desirable because of the long time that had passed since the initial
law suit was commenced. However, plaintiff argues that defendant was not prejudiced by the late-
naming of Dr. Okun as an expert because he had previously been listed as a witness. However, Dr.
Okun had been listed as someone with knowledge of the facts of the case, and that previous
disclosure made no mention that Dr. Okun would be offered as an expert, as well. Plaintiff also
argues that the agreed Order allows her to supplement her list of witnesses until September 1.
However, that Order simply allows her to supplement “the testimony” of her experts and does not
authorize adding additional experts.

               We conclude the Trial Court properly acted within its discretion in excluding the
expert testimony of Drs. Okun and Safer. See Buckner v. Hassell, 44 S.W.3d 78 (Tenn. Ct. App.
2000). In answering defendants’ interrogatories, plaintiff identified Drs. Okun, Kleto and Kubota
as witnesses in the case, but did not designate them as expert witnesses. The Trial Court excluded
certain testimony of these physicians on the ground that the testimony represented opinions by
experts who had not been timely identified as Rule 26 experts for the Plaintiff. The Trial Judge is
supported in his rulings by Bucker at p. 84. We affirm the Trial Court’s ruling on this issue.

                However, plaintiff argues the testimony of Dr. Okun and Kubota were wrongfully


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excluded concerning the pathology and progression of a melanoma in general, and did not
specifically address a review and diagnosis of Brock’s lesion. The excluded testimony asked Dr.
Okum about the criteria for pathologists with respect to what should be labeled a dysplastic nevus
versus melanoma in situ. This clearly asks for Dr. Okun’s expert opinion. Likewise, the excluded
testimony of Dr. Kleto involved matters of expert opinion in that he testified as to the standard of
care, from a surgeon’s perspective, for removing a dysplastic nevus. For the same reasons, Dr.
Kubota was precluded from testifying as to the standard of care from a medical oncologist’s
perspective, for removing a dysplastic nevus.

              Finally, it is argued that the Court erred in allowing the defendants offering in
testimony from Dr. O’Quinn’s discovery deposition.

                Dr. James O’Quinn was the pathologist in Georgia who examined the slides sent by
Dr. Rist. Defendant named Dr. O’Quinn as a witness with knowledge of the facts of the case in the
original filing of the case, and plaintiff took Dr. O’Quinn’s discovery deposition on February 9,
1995. In defendants’ response to plaintiff’s first set of interrogatories in 1998, defendants included
Dr. O’Quinn in the list of possible expert witnesses, stating that deposition taken in February 1995
may be read into evidence. Plaintiff also identified Dr. O’Quinn as a Rule 26 expert witness in its
own case. At trial, the Court allowed defendant to read from the deposition of Dr. O’Quinn over the
objection of plaintiff, and without making any showing that Dr. O’Quinn had ever been asked to
appear live at trial or give a deposition for evidence.

                Rule 32 of the Tennessee Rules of Civil Procedure governs the use fo depositions in
court proceedings. The Rule allows the use of a deposition against any party who was present or
represented at the taking of the deposition in accordance with the following:

                       (3) The deposition of a witness, whether or not a party, may be used by any
               party for any purpose if the court finds: (A) that the witness is dead; or (B) that the
               witness is at a greater distance than 100 miles from the place of trial or hearing or is
               out of state, unless it appears that the absence of the witness was procured by the
               party offering the deposition; or (C) that the witness is unable to attend or testify
               because of age, illness, infirmity, or imprisonment; or (D) that the party offering the
               deposition has been unable to procure the attendance of the witness by subpoena or
               the witness is exempt from subpoena to trial under T.C.A. § 24-9-101; or (E) upon
               application and notice, that such exceptional circumstances exist as to make it
               desirable, in the interest of justice and with due regard to the importance of
               presenting the testimony of witnesses orally in open court, to allow the deposition to
               be used. Notwithstanding the foregoing provisions, depositions of experts taken
               pursuant to the provisions of Rule 26.02(4) may not be used at the trial expert to
               impeach in accordance with the provisions of Rule 32.01(1).

                      (4) If only part of a deposition is offered in evidence by a party, an adverse
               party may require the offering party to introduce any other part which ought in


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               fairness to be considered with the party introduced, and any party may introduce any
               other parts.

Tenn. R. Civ. P. 32.01.

                 Dr. O’Quinn was a witness with knowledge of facts of the case, and was not merely
an expert obtained to render an opinion in the case. He resides in Georgia, and meets the distance
or location criteria of Rule 32.01(3)(B). Accordingly, to the extent that Dr. O’Quinn testified via
deposition as to matters relating to his treatment of Mr. Brock, the use of the deposition at trial was
allowable. The evidence admitted concerned Dr. O’Quinn’s knowledge of the facts as gained as an
actor in the treatment of Mr. Brock, but the Court excluded other portions of the deposition in which
O’Quinn was offering expert opinion or speculation. We conclude the Trial Judge properly allowed
the portions of the deposition to be read into evidence.

                For the foregoing reasons, we affirm the judgment of the Trial Court and remand and
assess the cost of the appeal to appellant.




                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS , J.




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