                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 26, 2006 Session

              BARRY D. SMITH v. TAMARA YVETTE SMITH

                     Appeal from the Chancery Court for Sumner County
                           No. 2002D-208    Tom E. Gray, Judge


                     No. M2005-01688-COA-R3-CV - Filed April 9, 2008




JERRY SCOTT , SR. J., dissenting.

        I respectfully dissent from the majority’s conclusion that Dr. Victor A. Pestrak’s report was
properly admitted and that this Court’s interpretation of Rule 706 of the Tennessee Rules of
Evidence in Dover v. Dover, 821 S.W.2d 593, 595 (Tenn. Ct. App. 1991), is too rigid. I submit that
the majority's decision ignores the strict requirements of Rule 706 and opens the door for abuse of
that rule.

       Rule 706(a) of the Tennessee Rules of Evidence allows the court to appoint an expert witness
in bench-tried cases sua sponte or on motion of any party and specifically sets forth the procedures
the court shall follow to appoint and utilize such an expert. Rule 706(a) states:

       The court may not appoint expert witnesses of its own selection on issues to be tried
       by a jury except as provided otherwise by law. As to bench-tried issues, the court
       may on its own motion or on the motion of any party enter an order to show cause
       why expert witnesses should not be appointed and may request the parties to submit
       nominations. The court ordinarily should appoint expert witnesses agreed upon by
       the parties, but in appropriate cases, for reasons stated on the record, the court may
       appoint expert witnesses of its own selection. An expert witness shall not be
       appointed by the court unless the witness consents to act. A witness so appointed
       shall be informed of the witness’s duties by the court in writing, a copy of which
       shall be filed with the clerk, or at a conference in which the parties shall have
       opportunity to participate. A witness so appointed shall advise the parties of the
       witness’s findings, the witness’s deposition may be taken by any party, and the
       witness may be called to testify by the court or any party. The witness shall be
       subject to cross-examination by each party, including a party calling the witness.

       This case involves the custody of a little girl who has been placed in the home of her father
who was accused of improperly touching her. The very experienced trial judge decided to appoint
an expert to determine whether the father was a man who would be likely to commit the acts of
which he was accused. After several psychologists and psychiatrists turned the judge down, he
found Dr. Pestrak and appointed him as the court’s expert witness. The judge stated that Dr. Pestrak
had “good credentials.” However, Dr. Pestrak’s credentials do not appear anywhere in the record,
and the record is unclear as to whether the parties or the Court really knew anything at all about Dr.
Pestrak’s qualifications.

        After being appointed, Dr. Pestrak performed evaluations of the parties and the child and
submitted a copy of his report to the Court with copies to counsel for both parties. When the report
was offered into evidence by the father’s counsel, the mother’s counsel timely objected to its
admission. However, the trial judge overruled the objection stating that he had relied on the report
in prior hearings. The majority’s opinion implies that the parties knew at the time of the prior
hearings that the trial judge relied on the report, and therefore, waived any right to object. However,
there are no transcripts of the prior hearings in the record, and it is not shown anywhere in the record
that the parties knew that the trial judge had relied on the report prior to it being offered as evidence.


       No order to show cause why an expert witness should not be appointed was entered as
required by Rule 706(a). The court did not request the parties to submit nominations. However, the
Rule does not require such nominations. It only provides that nominations may be submitted.

        Rule 706(a) further provides that a court appointed expert witness should be agreed upon by
the parties, but in appropriate cases, for reasons stated in the record, the court may appoint an expert
of its own selection. Here the parties agreed that the judge could appoint the expert, but there was
no evidence of an agreement to waive any of the other requirements of Rule 706(a).

        Rule 706(a) further requires that the expert can only be appointed if the expert agrees. He
obviously agreed. The next step mandated by the Rule is that a witness so appointed shall be
informed of the expert witness’ duties by the court in writing, a copy of which shall be filed with the
clerk of the court, or the expert may be advised of his duties at a conference in which the parties shall
have an opportunity to participate. That step was skipped entirely. There is no statement of duties
in the record and no evidence that a conference was held.

         Next, the expert witness is required to advise the parties of the witness’ findings, which this
witness apparently did. The witness’ deposition may be taken by any party and the expert witness
may be called to testify by the court or any party. Neither party deposed the expert witness nor was
he called to testify by the court or either party. Of course, the party that the expert witness would
testify against would not be expected to call him. The party who was recommended in the expert
witness’ report as the custodial parent would not want to call the expert witness for fear he might
equivocate in his testimony or even change his opinion under cross-examination. That only leaves
the judge as the one to call the expert witness to testify.

       The final requirement and the one that is most crucial is that the “witness shall be subject to
cross-examination” by all parties. Tenn. R. Evid. 706(a)(emphasis added). Since the judge did not


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summon the witness to the court to testify, there simply was no opportunity for cross-examination
in this case.

        As pointed out in the majority opinion this was a protracted divorce case with great acrimony
between the parties. Several changes of counsel occurred during the proceedings. There is no
transcript of any of the preliminary proceedings, so this appellate court has no record of what was
said by anyone at the prior hearings.

         The parties left it up to the judge to find an expert. The judge said that he called several
psychologists and psychiatrists before he could find anyone who would conduct the examination.
It is not known what the judge told the psychologist or what the psychologist said to the judge. It
is not known whether the judge told the parties he was relying on the psychologist’s report when
making preliminary rulings. It is clear that the judge failed to follow the required procedure for
informing the witness of his duties by letter, with a copy to the court clerk, and the judge also failed
to hold a conference with the expert giving the parties an opportunity to participate.

       Since the judge stated that he did not even know Dr. Pestrak and his curriculum vitae does
not appear in the record, there is no way for this Court or the parties to know the qualifications of
the court appointed expert, unless the judge provided the parties with some information about the
psychologist off the record.

        Given the surprise expressed by the mother’s counsel when the expert was not called, it is
clear that her counsel was anticipating the expert to be called by the court for cross-examination.

        The majority puts the onus on the mother’s counsel to call the expert whose report was
adverse to her client. It is unlikely he would be called by the mother’s attorney. The father’s
attorney wasn’t likely to call him to testify and be cross-examined as his report was fully favorable
to the father’s position. Thus, as stated heretofore, the only one who could be expected to call the
expert was the judge, who surely would want to hear live testimony about the expert’s methodology,
his findings and his recommendations, and to have his testimony tested in the “crucible of vigorous
cross-examination,” the greatest tool for the discovery of truth ever devised. McDaniel v. CSX
Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997).

         The majority concludes that the objecting party waived her right to cross-examine the expert
because she had an opportunity to depose the expert or in the alternative, could have called the expert
to testify at a later date. It is true that either party could have subpoenaed him before the final
hearing, but my reading of the record leads me to believe that both parties reasonably expected the
judge to have the witness present for cross-examination. To expect either of these parties with their
limited incomes to pay to depose the expert is unrealistic, given the great number of hearings for
which they were forced to pay their attorneys. The majority’s conclusion ignores the requirement
of Rule 706(a) that the expert “shall be subject to cross-examination” and places the burden to call
the expert witness on the party who would least want the expert’s report entered into evidence. In
virtually all court proceedings, the party offering an expert’s report into evidence has the burden to
call the expert to testify in order to authenticate the report and thereby subject the expert to cross-

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examination. Since the father’s counsel wanted the report admitted and the judge obviously relied
on it, the onus should have been on the father’s counsel or the judge to get the witness before the
court, for authentication of his report and for cross-examination. Since the father’s counsel didn’t
subpoena the expert, the judge should have acted to get Dr. Pestrak before the court.

         When expert testimony is offered, the issues of admissibility and relevancy of the evidence
and the qualifications and competence of expert witnesses are generally left to the discretion of the
trial court and the court’s ruling in that regard may only be overturned if the discretion is arbitrarily
exercised or abused. McDaniel, 955 S.W.2d at 263-64. Rule 702 of the Tennessee Rules of
Evidence provides: “If scientific, technical, or other specialized knowledge will substantially assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an opinion
or otherwise.”

        Rule 703, of the Tennessee Rules of Evidence provides:

        The facts or data in the particular case upon which an expert bases an opinion or
        inference may be those perceived by or made known to the expert at or before the
        hearing. If of a type reasonably relied upon by experts in the particular field in
        forming opinions or inferences upon the subject, the facts or data need not be
        admissible in evidence. The court shall disallow testimony in the form of an opinion
        or inference if the underlying facts or data indicate lack of trustworthiness.

        The trial court must determine whether the evidence will substantially assist the trier of fact
to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack
of trustworthiness. Taken together the rules necessarily require a determination of the scientific
validity or reliability of the evidence.

       “[T]he trial court must analyze the science and not merely the qualifications, demeanor or
conclusions of experts,” and “must assure itself that the opinions are based on relevant scientific
methods, processes and data, and not upon the expert’s mere speculation.” McDaniel, 955 S.W.2d
at 265. “Once the evidence is admitted, it will be tested with the crucible of vigorous cross-
examination and countervailing proof.” Id.

        How a trial judge can make all those determinations from a written report by an “expert”
whom the judge has never met, without the testing of the science involved, without determining his
qualifications, without observing his demeanor and without testing the conclusions of the “expert”
without ever seeing, hearing and evaluating him with the assistance of attorneys to cross-examine
the “expert,” is beyond my comprehension. Given the gravity of the decision as to which parent is
better suited (or whether neither party is suited) to be the primary residential parent and whether a
parent will endanger or molest the child are issues of the utmost seriousness. The child is the
unrepresented pawn in custody cases. Her life was at a fork in the road and the judge determined
her future when the decision was made to send the child to a particular home for most of her nurture,
care, education and upbringing through the balance of her childhood. No decision made by any

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judge anywhere is more difficult, life-changing, life-directing and virtually unchangeable by the
affected party than the decision about the future of a helpless child. The full development of every
relevant fact should be the primary concern of every judge trying child custody cases.

        Based on the foregoing, I cannot vote to affirm. “The calling of an expert witness by the
court can have a significant impact on the adversarial role of the parties.” Dover, 821 S.W.2d at 595.
The majority’s conclusion will serve to undermine the rules of evidence and create opportunities for
abuse. As previously stated by this Court in Dover, “[Rule 706] contemplates that if the findings
of the expert witness are to be considered as evidence, the expert will be called to testify. This
requirement is not a departure from the general rule that the court may not rely on an unsworn report
from an expert to decide issues before the court.” Id. at 594. That is just what the trial judge did in
this case.

        Errors by the parties’ counsel should not and indeed cannot detract from the duties of the trial
judge to insure that inadmissible hearsay like as this report is excluded, that the court’s chosen expert
is before the court and ready to be questioned by each party and the court, and to insure that justice
is done for the child. It is the trial judge, not either party’s counsel, who is “ultimately responsible
for every aspect of the orchestration of a trial.” State v. McCray, 614 S.W.2d 90, 93 (Tenn. Crim.
App. 1981). The judge’s responsibilities include adherence to the evidentiary rules and also
requiring adherence by all of the parties. Since, I cannot condone such a blatant disregard of the
Tennessee Rules of Evidence, I must dissent.



                                                       _____________________
                                                        Jerry Scott, Senior Judge




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