                 IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                 ________________________________________

BRENDA J. SNEED,

      Plaintiff-Appellant,
                                               Shelby Circuit No. 57955T.D.
Vs.                                            C.A. No. W1998-00607-COA-R9-CV

THOMAS G. STOVALL, M.D.,
GUY VOELLER, M.D., and
UNIVERSITY PHYSICIANS
                                                    FILED
FOUNDATION, d/b/a
UNIVERSITY OF TENNESSEE                             December 15, 1999
MEDICAL GROUP, INC.,
                                          Cecil Crowson, Jr.
      Defendants-Appellees.              Appellate Court Clerk
_____________________________________________________________________

                FROM THE SHELBY COUNTY CIRCUIT COURT
                THE HONORABLE KAREN R. WILLIAMS, JUDGE




                     Robert L. Green;Neely, Green, Fargarson,
                         Brooke & Summers, of Memphis
                          Bruce Kelley, Jr., of Memphis
                          Steven R. Walker of Memphis
                                   For Appellant

                     William H. Haltom, Jr.; Thomason, Hendrix,
                      Harvey, Johnson & Mitchell of Memphis
                                    For Appellees




                             AFFIRMED AND REMANDED

                                   Opinion filed:




                                                     W. FRANK CRAWFORD,
                                                     PRESIDING JUDGE, W.S.


CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE
       This case is before the Court pursuant to T.R.A.P. 9. Plaintiff/Appellant, Brenda

Sneed, appeals from the order of the trial court that denied her motion in limine

concerning inquiry about disciplinary proceedings against plaintiff’s medical expert

witness.

       Plaintiff filed a complaint on November 23, 1993, against Dr. Thomas G. Stovall,

University Physicians Foundation, d/b/a UT Medical Group, Inc., and Dr. Guy R.

Voeller, alleging that the defendants committed medical malpractice in their care and

treatment of the plaintiff. On May 10, 1996, counsel for the defendants took the

discovery deposition of plaintiff’s medical expert, Dr. David Swan. During the course

of the deposition, defense counsel examined Dr. Swan about the status of his medical

license, and whether he had been the subject of any disciplinary proceedings. Dr.

Swan responded that he had not. Several months later, however, defense counsel

learned that Dr. Swan had been the subject of investigations and hearings before the

Kentucky State Board of Medical Licensure (KSBML). Plaintiff filed a Motion in Limine

on October 15, 1997, to prohibit defendants from “making a disclosure of any

disciplinary action taken by the Board of Medical Licensure for the State of Kentucky

against Dr. David S. Swan, M.D., during the voir dire of the jury or at any time during

the trial of the cause.”

       The facts leading up to the investigation by the KSBML are as follows: David

Swan, M.D., is board-certified in obstetrics and gynecology. In June 1995, an “initiating

grievance” was filed with the Kentucky Board of Medical Licensure alleging that Dr.

Swan engaged in inappropriate sexual behavior with some of his patients.             On

September 26, 1995, Dr. Swan gave a statement to Doug Wilson, a KSBML

investigator, regarding the complaints and grievances against him. Swan admitted that

between early 1975 and late 1981, he engaged in inappropriate sexual behavior with

some of his patients. On February 15, 1996, The KSBML held a hearing regarding the

complaints and grievances against Dr. Swan. The Board’s Inquiry Panel asked that Dr.

Swan enter into an Agreed Order of Probation to avoid issuing an Administrative

Complaint against Dr. Swan’s Kentucky medical license. Dr. Swan entered into an

Agreed Order of Probation on June 24, 1996, which, among other things, put Swan on



                                           2
probation for five years.

       Upon consideration of the evidence, the trial court denied plaintiff’s Motion in

limine. The order denying the motion states: “The Court is of the further opinion

because of Dr. Swan’s untruthfulness, that at the trial of this cause counsel for the

defendants shall be permitted to inquire into the alleged facts underlying Dr. Swan’s

disciplinary proceeding.” Plaintiff’s motion in the trial court for interlocutory appeal

pursuant to T.R.A.P. 9 was granted, and this Court granted plaintiff’s application for

permission to appeal.

       The issues presented for review as stated in plaintiff-appellant’s brief are:


              1. Whether the trial court erred in concluding that Dr. Swan
              had exhibited a “pattern of untruthfulness.”

              2. Whether the trial court erred in overruling Plaintiff’s
              Motion in limine and ruling that the Defendants would be
              permitted to present proof to the jury of 17 to 24 year-old
              instances of inappropriate sexual conduct by Plaintiff’s
              medical expert, Dr. David Swan.

       As to plaintiff-appellant’s first issue, the judge stated:

                      But the conduct discussed before me is the answer
              to a statement, an answer to a question. “Have you been
              the subject of any disciplinary proceedings, medical
              disciplinary proceeding regarding your license?” Answer,
              “No, sir.” I believe that that answer was untruthful. I
              believe from the records presented to me that, in 1978, Dr.
              Swan had his license called into challenge in Fayette
              County and that they made a ruling that his conduct was
              inappropriate.

              . . . But what troubles me most about it is that then he
              never bothers to mention it to the Kentucky Board of
              Medical Licensure, which begins to suggest a pattern of
              untruthfulness. I believe that if I had been called upon to
              respond by letter to a complaint filed against me by
              someone that I would feel that I was involved in a
              disciplinary matter. So, therefore, I will allow the defense
              to inquire along those lines, and the jury can decide.

       Plaintiff contends that the trial court made two factual errors in finding Dr. Swan’s

testimony untruthful. She first asserts that the trial court erred in its conclusion that Dr.

Swan was untruthful in his deposition with regard to whether he had been the subject

of disciplinary proceedings. Plaintiff also submits that the KSBML has bifurcated

proceedings in dealing with grievances filed against doctors: first, an investigation of

the facts; second, if necessary, a disciplinary proceeding. Plaintiff argues that since Dr.


                                             3
Swan entered into an Agreed Order of Probation, there was no Administrative

Complaint issued against his license and, therefore, no formal disciplinary proceedings.

Thus, plaintiff argues that Dr. Swan answered truthfully when he said he had not been

the subject of any “disciplinary proceedings.” Plaintiff further submits that the court

misconstrued the facts in the record to conclude that there was a pattern of

untruthfulness. She contends that Dr. Swan knew that the KSBML had a copy of the

October 31, 1978 letter, and thus, there was no need to “mention it” to the KSBML.

       Considering the record before us, we conclude that the trial court did not err. At

the time of the deposition on May 10, 1996, Dr. Swan knew that a complaint had been

filed against him in the past with the Grievance Committee of the Fayette County

Kentucky Medical Society alleging improper sexual contact with a patient and that the

Medical Society issued an Opinion on October 31, 1978, finding that his conduct was

inappropriate. Dr. Swan was also aware that a complaint was filed with the Kentucky

State Board of Medical Licensure on June 15, 1995. He was also aware that he gave

a statement on August 8, 1995 to Mr. Doug Wilson, an investigator of the KSBML,

regarding the complaints against him and that on September 26, 1995, Swan submitted

a report to Mr. Wilson responding to the specific allegations in the complaint. Based

on the foregoing, it is apparent that Swan knew he was under investigation by the

licensing board. Certainly, Dr. Swan knew that the board had the power to impose

sanctions to the extent of revoking his license. The investigation of necessity must be

a part of any proceedings leading to imposition of sanctions. It appears to this Court

that the usual and ordinary meaning of “proceedings” would include involvement by the

board in considering imposition of sanctions. Simply stated, Dr. Swan answered

untruthfully at his deposition.

       Plaintiff asserts in her second issue that the trial court erred as a matter of law

by overruling her motion in limine and ruling that defendants would be permitted to

present proof of Dr. Swan’s past conduct. Specifically, plaintiff asserts that the specific

instances of inappropriate sexual conduct committed by Dr. Swan are excluded by

Tennessee Rules of Evidence, 608 (b), which provides:

       Rule 608. Evidence of character and conduct of witness.



                                            4
              (b) Specific Instances of Conduct. - Specific instances of
              conduct of a witness for the purpose of attacking or
              supporting the witness’s credibility, other than convictions
              of crime as provided in Rule 609, may not be proved by
              extrinsic evidence. They may, however, if probative of
              truthfulness or untruthfulness and under the following
              conditions, be inquired into on cross-examination of the
              witness concerning the witness’s character for truthfulness
              or untruthfulness or concerning the character for
              truthfulness or untruthfulness of another witness as to
              which the character witness being cross-examined has
              testified. The conditions which must be satisfied before
              allowing inquiry on cross-examination about such conduct
              probative solely of truthfulness or untruthfulness are:

                     (1) The court upon request must hold a hearing
              outside the jury’s presence and must determine that the
              alleged conduct has probative value and that a reasonable
              factual basis exists for the inquiry;

                      (2) The conduct must have occurred no more than
              ten years before commencement of the action or
              prosecution, but evidence of a specific instance of conduct
              not qualifying under this paragraph (2) is admissible if the
              proponent gives to the adverse party sufficient advance
              notice of intent to use such evidence to provide the adverse
              party with a fair opportunity to contest the use of such
              evidence and the court determines in the interests of justice
              that the probative value of that evidence, supported by the
              specific facts and circumstances, substantially outweighs
              its prejudicial effect . . .

Tenn.R.Evid. 608(b).

       Plaintiff also argues that the conduct occurred more than seventeen years ago,

that the conduct is not “probative solely of truthfulness or untruthfulness,” and that the

probative value of such evidence does not “substantially outweigh its prejudicial effect.”

       Defendants assert that Tenn.R.Evid. 608 (b) is not applicable in this case, but

Rule 402 and Rule 403, Tenn.R.Evid., are the appropriate rules:

              Rule 402. Relevant evidence generally admissible;
              irrelevant evidence inadmissible.

              All relevant evidence is admissible except as provided by
              the Constitution of the United States, the Constitution of
              Tennessee, these rules, or other rules or laws of general
              application in the courts of Tennessee. Evidence which is
              not relevant is not admissible.

              Rule 403. Exclusion of Relevant evidence on grounds
              of prejudice, confusion, or waste of time.

              Although relevant, evidence may be excluded if its
              probative value is substantially outweighed by the danger
              of unfair prejudice, confusion of the issues, or misleading
              the jury, or by considerations of undue delay, waste of time,

                                            5
              or needless presentation of cumulative evidence.

Tenn.R.Evid. 402 and 403.

       Defendants assert that 608(b) deals with impeachment of a witness by cross-

examination concerning a witness’s “prior bad acts” and that they are not seeking to

impeach Dr. Swan’s credibility by evidence of prior convictions, prior bad acts,

subsequent convictions, or subsequent bad acts. They argue that they will present

evidence regarding his current medical licensure, medical status, and medical practice.

However, defendants acknowledge that cross-examination and extrinsic evidence

regarding Swan’s medical licensure will include evidence of Dr. Swan’s past

misconduct. Defendants also argue that the current state of Dr. Swan’s medical

licensure and the history and circumstances regarding it are relevant issues in this

case. They further point out that even though the misconduct occurred sixteen years

ago, the restrictions on his license are in place now.

       Tennessee Law of Evidence provides:

       § 608.1. Overview.

              It prescribes when . . . specific instances of conduct, other
              than criminal convictions, may be used to impeach or
              rehabilitate a witness by proving the truthful or untruthful
              character of that witness. It should be obvious that Rule
              608 is an exception to the general principle of Rule 404(a)
              that character evidence is inadmissible . . . Rule 608 is
              based on the idea that sometimes character evidence
              should be admitted. By implication, the rule accepts the
              idea that a person’s character is both a relevant and
              important factor in assessing that person’s credibility. But
              it should be noted that Rule 608 opens the door to proof of
              only certain aspects of a person’s character. This rule
              authorizes proof of a person’s character for truthfulness or
              untruthfulness. Proof of other facets of character is not
              affected by Rule 608.

Neil P. Cohen, et al., Tennessee Law of Evidence § 608.1 at 345 (3d ed. 1995).

       As above noted, the trial court correctly determined that Dr. Swan answered

untruthfully in his discovery deposition and that the defendants can question him

concerning the inconsistencies. Plaintiff asserts that no inquiry should be made to elicit

evidence of Dr. Swan’s specific acts with patients because: these acts occurred more

than ten years before the commencement of this action; they do not constitute

untruthful behavior; and, in any event, the probative value of the evidence does not



                                            6
substantially outweigh its prejudicial effect. Where the cross-examination leads will, of

course, depend on the witness’s answer. Under 608 (b), Dr. Swan’s specific acts may

only be inquired into on cross-examination and may not be established by extrinsic

evidence. Consequently, if Dr. Swan is questioned about the specific acts and denies

their occurrence, the question would arise as to whether extrinsic evidence is

appropriate.

       Defendants assert that Rule 608(b) is not applicable to this case, because the

appellees are not attempting to impeach Dr. Swan’s credibility as to the specific “prior

bad acts.” Rather, they seek to impeach his credibility because of his untruthful

answers under oath concerning prior disciplinary proceedings, and they seek to show

his current status as a practicing physician.

       The trial judge has wide discretion in the matter of qualification of expert

witnesses. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992).

However, “credibility is to be distinguished from the testimonial competency of a

witness.” 81 Am.Jur.2d, Witnesses Sec. 1027 at p. 841.

                      Essentially the same basic tests which are
               commonly applied in the evaluation of ordinary evidence
               should be used in judging the weight and sufficiency of
               expert and opinion testimony.

31 Am.Jur.2d Expert and Opinion Evidence Sec. 129 at p. 137.

       In the instant case, Dr. Swan’s role as a witness will be to establish the standard

of care for practicing physicians in the community and that the conduct of the

defendants breached or violated that standard of care. Obviously, there will be

countervailing proof concerning the standard of care and the violation thereof, and the

jury must give the testimony of every witness who testifies the weight, faith, and credit

that the testimony deserves. Certainly, the truthfulness of the witness will be a matter

of grave concern for the jury in making this determination. Dr. Swan was bound by the

ethical rules of his profession, and yet engaged in a practice of deception for a number

of years even though he knew that his acts could constitute grounds for revocation of

his license. His veracity as a witness should surely be questioned by virtue of this

conduct.

       Moreover, we must consider the context of Dr. Swan’s role. He is, in effect,

                                            7
pronouncing a judgment as to the conduct of fellow physicians. It seems to this Court

that one who undertakes such a task is exposed to a determination of his own view of

the profession by virtue of his own conduct. Dr. Swan’s conduct could be construed to

show disdain for a physician’s obligation to practice the profession on the highest

ethical plane with an ongoing deception during the continuance of the activities.

       In short, the jury must determine whether Dr. Swan’s testimony concerning the

conduct of the defendants is truthful and in giving weight to his testimony, the jury

should have the benefit of evidence concerning his veracity and character.

       The trial court obviously determined that defendants’ proposed cross-

examination would elicit relevant evidence, and that the probative value of the

evidence, under the facts of this case, substantially outweighs its prejudicial effect. The

trial court did not abuse its discretion in denying the motion in limine.

       Accordingly, the order of the trial court is affirmed, and this case is remanded for

such further proceedings as may be necessary. Costs of the appeal are assessed

against the appellant.

                                                  _____________________________
                                                  W. FRANK CRAWFORD, P.J., W.S.

CONCUR:


___________________________________
DAVID R. FARMER, JUDGE

___________________________________
HOLLY KIRBY LILLARD, JUDGE




                                            8
