                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 21, 2016 Session


    MARCHELLE RENEE BUMAN, EXECUTOR OF THE ESTATE OF
       KENNETH JENKINS v. ALYCIA D. GIBSON, P.A., ET AL.

                   Appeal from the Circuit Court for Henry County
                      No. 3429    Charles C. McGinley, Judge

                          ________________________________

              No. W2015-00511-COA-R3-CV – Filed February 18, 2016
                      _________________________________


This is a health care liability case. The trial court granted summary judgment to the
defendant-medical providers after the exclusion of the plaintiff‟s standard-of-care expert due
to failure to comply with discovery requests. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, AND KENNY ARMSTRONG, JJ., joined.

Barton F. Robison, Paris, Tennessee, and Al H. Thomas and Aaron L. Thomas, Memphis,
Tennessee, for the appellant, Marchelle Renee Buman.

Suzanne G. Marsh, Clarkville, Tennessee and Jennifer S. Harrison, Memphis, Tennessee, for
the appellees, Alycia D. Gibson, Andrew H. Lundberg, M.D. and Paris Surgical Specialists,
PLLC.

                                         OPINION

                                        Background
       On July 15, 2011, Kenneth Jenkins, along with his wife Euline Jenkins, filed a health
care liability complaint against Defendants/Appellees Alycia D. Gibson, P.A., Felix C.
Ugbaja, M.D., McCoy Medical, Inc., Thomas Paul Evans, M.D., Andrew H. Lundberg, M.D.,
and Paris Surgical Specialists, PLLC (“Paris Surgical”) After Mr. Jenkins died,
Plaintiff/Appellant Marchelle Renee Buman (“Appellant”), the executor of Mr. Jenkins‟s
estate, was substituted as plaintiff. The parties eventually agreed that summary judgment
should be granted as to the claims of Ms. Jenkins. Additionally, Dr. Ugbaja was voluntarily
dismissed from this lawsuit by order of January 17, 2012. Finally, the trial court granted
summary judgment in favor of McCoy Medical, Inc. and Dr. Thomas Paul Evans on February
25, 2013 and July 19, 2013, respectively.1 Accordingly, only Ms. Gibson, Dr. Lundberg, and
Paris Surgical (collectively, “Appellees”) are at issue in this appeal.
       The parties entered a Rule 16 Agreed Scheduling Order on April 9, 2013. Despite the
fact that this order was entered in April, there is no dispute that the parties agreed that
Appellant was required to disclose expert witnesses by March 6, 2013. Trial was set for
August 5, 2013.
        Prior to the entry of the scheduling order, on September 20, 2012, Appellant had
identified Dr. Martin Evans (“Dr. Evans”) as an expert witness with regard to the applicable
standard of care. Dr. Evans‟s deposition occurred on November 28, 2012. During the
deposition, Dr. Evans refused to answer questions regarding his income from medical-legal
review. On February 25, 2013, Appellees filed a Rule 37 motion to compel discovery on this
issue. The trial court heard the motion on May 30, 2013, orally ruling that Dr. Evans was to
provide his annual income from medical-legal review from 2005-2011 within thirty days of
the entry of the written order. At the hearing, however, Appellant made an oral motion to be
allowed additional time to obtain a new expert. According to the transcript of this hearing,
discussed in detail infra, Appellant was directed to file a written motion to that effect within
ten days of the hearing. No written motion, however, was filed within ten days of the motion
hearing, or at any time during the pendency of the proceedings in the trial court. Accordingly,
the trial court granted the motion to compel discovery on June 21, 2013, giving Appellant
thirty days to submit the requested information to Appellees. The requested information was
not forthcoming.
       Thereafter, on August 23, 2013, Dr. Lundberg and Paris Surgical filed a motion to
exclude Dr. Evans for failing to comply with the June 21, 2013 order on the motion to
compel. Ms. Gibson later joined in the motion. There is no dispute that Dr. Evans failed to
provide the requested information regarding his annual income. Appellees also filed a motion
for summary judgment, based upon the impending exclusion of Dr. Evans as Appellant‟s
only standard of care expert.

        1
          The trial court designated the order granting summary judgment to Dr. Thomas Paul Evans, along
with an order denying Appellant‟s request to amend her complaint, as final pursuant to Rule 54.02 of the
Tennessee Rules of Civil Procedure. Accordingly, Appellant appealed those rulings to this Court. This Court
affirmed the trial court‟s rulings in their entirety in Buman v. Gibson, No. W2013-01867-COA-R3-CV, 2014
WL 3893293, at *1 (Tenn. Ct. App. Aug. 11, 2014), perm. app. denied, not for citation (Tenn. Mar. 12, 2015).
                                                   -2-
       Appellant responded to the motions by filing a motion to revise the June 21, 2013
order, arguing that other jurisdictions considering this issue had ruled that discovery of an
expert‟s financial information was not discoverable and that “rummaging through” Dr.
Evans‟s finances was an invasion of privacy. The trial court heard the issue on November 18,
2013, orally denying the motion to revise, but allowing Appellant additional time to submit
the required information. The trial court denied the motion to revise by order of January 17,
2014, which reiterated that Appellant was given an additional 60 days from the November
18, 2013 hearing to comply with the June order‟s mandates.
       On April 8, 2014, the trial court stayed the proceedings pending the outcome in
Laseter v. Regan, No. W2013-02105-COA-R3-CV, --- S.W.3d ---, 2014 WL 3698248 (Tenn.
Ct. App. July 24, 2014), perm. app. denied (Tenn. Dec. 18, 2014), a separate case also
involving the exclusion of Dr. Evans for his refusal to produce evidence regarding his
income from medical-legal review. The Laseter Court ruled that the discovery of an expert‟s
income from medical-legal review was proper and that it was not an abuse of discretion to
exclude the expert for his failure to comply with valid discovery requests. Id. at *19. After
the Laseter Opinion was issued, the trial court in the case-at-bar held a hearing on the
pending motions to exclude Dr. Evans and for summary judgment on September 10, 2014.
The trial court orally ruled that Dr. Evans was to be excluded in accordance with Laseter and
that summary judgment was therefore appropriate. Appellant, however, again sought sixty
days to obtain another expert. The trial court denied the request, citing the parties‟ scheduling
order and the Appellant‟s failure to file a written motion to that effect as directed by the trial
court at the June 21, 2013 hearing. A written order granting summary judgment to Appellees
was entered on October 10, 2014. Appellant thereafter filed a motion to alter or amend,
which was denied. Appellant thereafter filed this appeal.
                                       Issues Presented
       Appellant raises three issues, which are taken, and slightly restated, from her brief:
               1.      Did the trial court err in ordering Appellant‟s medical
               expert “to provide information concerning the amount of income
               he earns annually from medical-legal review, consulting, and
               testifying as an expert witness” pursuant to Defendants‟
               discovery request over Appellant‟s objection that such discovery
               was precluded by the 2011 amendment to Rule 26.02(4)(A)(i) of
               the Tennessee Rules of Civil Procedure which establishes that a
               party does not have the right to discover the amount of an
               expert‟s annual forensic income?




                                              -3-
              2.     Did the trial court err in excluding Appellant‟s medical
              expert for his failure to comply with the Court‟s order described
              above?
              3.     Did the trial court err in not granting Appellant additional
              time to find another expert after the court excluded Appellant‟s
              only medical expert?
                                           Analysis
       This is the third appellate case involving the exclusion of Dr. Evans due to his refusal
to divulge information concerning the income he receives from medical-legal review. See
generally Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV, 2015 WL 8773801
(Tenn. Ct. App. Dec. 14, 2015); Laseter v. Regan, No. W2013-02105-COA-R3-CV, ---
S.W.3d ---, 2014 WL 3698248 (Tenn. Ct. App. July 24, 2014), perm. app. denied (Tenn.
Dec. 18, 2014). Indeed, the arguments that are set forth in this appeal are largely repeated
from the prior two cases.
        Here, Appellant first argues that the trial court erred in requiring Dr. Evans to produce
information regarding his income derived from medical-legal review in the years prior to the
case-at-bar. Trial courts have “broad discretion over discovery matters, including requests
for sanctions, and, on appeal, that discretion will not be disturbed absent an affirmative
showing that the trial court abused its discretion.” Parks v. Mid-Atlantic Finance Co., Inc.,
343 S.W.3d 792, 802 (Tenn. Ct. App. 2011) (citing Brooks v. United Uniform Co., 682
S.W.2d 913, 915 (Tenn. 1984)). To the extent that this issue involves only the interpretation
of the Tennessee Rules of Civil Procedure, however, our review is de novo. Fair v. Cochran,
418 S.W.3d 542, 544 (Tenn. 2013) (“Interpretation of the Tennessee Rules of Civil
Procedure is a question of law, which we review de novo with no presumption of
correctness.”) (citing Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)).
       Appellant specifically argues in this case that the trial court erred in interpreting Rule
26.02 of the Tennessee Rules of Civil Procedure as allowing, much less requiring, the
discovery of information concerning an expert‟s income for medical-legal review in cases
other than the case-at-bar. To support this argument, Appellant cites Rule 26.02(4) of the
Tennessee Rules of Civil Procedure, which provides:
              Discovery of facts known and opinions held by experts . . . may
              be obtained only as follows:
              . . . . In addition, upon request in an interrogatory, for each
              person so identified, the party shall disclose the witness‟s
              qualifications (including a list of all publications authored in the
              previous ten years), a list of all other cases in which, during the
                                              -4-
              previous four years, the witness testified as an expert, and a
              statement of the compensation to be paid for the study and
              testimony in the case.
(Emphasis added). Based upon this language, Appellant argues that Appellees were limited
to discovering only the compensation that was paid to Dr. Evans for his expertise in the case-
at-bar.
       This argument was previously raised, and rejected, in Laseter. As the Laseter Court
explained:
              Because the last sentence requires disclosure of the
              compensation “to be paid . . . in the case,” Plaintiff argues that
              “the amount of [an expert‟s] compensation can only be
              discovered regarding the particular case at issue.” Plaintiff
              claims that it is clear from the 2011 amendment that the
              Supreme Court “contemplated the issue before this Court” and
              concluded that “a party does not have the right to inquire about
              the actual amount of an expert‟s annual forensic income.”
              (Emphasis added).
                    We do not agree with Plaintiff‟s suggestion that the last
              sentence of Rule 26.02(4)(A)(i) imposes a ceiling on the amount
              of information that can be discovered about an expert witness.
              The Advisory Commission Comment to the 2011 amendment
              states, “The sentence added to Rule 26.02(4)(A)(i) concerning
              discovery of information about those intended to be called as
              expert witnesses at trial is designed to minimize the cost of
              learning additional information about an opposing party‟s expert
              witnesses.”

Laseter, 2014 WL 3698248, at *18–19. The Laseter Court then went on to consider the
federal counterpart to Rule 26.02 in concluding that:
                   We likewise conclude that the last sentence of Tennessee
              Rule of Civil Procedure 26.02(4)(A)(i) was intended to clarify
              that certain information about an expert must be provided if
              requested by an interrogatory, in order to “minimize the cost of
              learning additional information.” Tenn. R. Civ. P. 26.02, Adv.
              Comm‟n Cmt to 2011 Amendment. However, it was not
              intended to establish an outer limit for what can be discovered
              about an expert. There is no indication on the face of the rule to
              suggest that a party is absolutely prohibited from seeking
                                            -5-
              additional information about an opponent‟s expert witnesses,
              and we decline to interpret the rule in such a manner. We
              therefore reject Plaintiff‟s argument that Rule 26.02(4)(A)(i)
              prohibited the discovery of information about Dr. Evans‟[s]
              annual income from testifying as an expert.
Laseter, 2014 WL 3698248, at *20. Based upon the foregoing, the Laseter Court held that
the trial court did not abuse its discretion in requiring that Dr. Evans produce evidence
concerning his income from medical-legal review in cases prior to the case-at-bar or in
subsequently excluding Dr. Evans as an expert witness when he failed to comply with the
trial court‟s discovery order. Id. at *21.
       Appellant urges this Court to revisit the holding in Laseter and come to the opposite
conclusion. At the time this appeal was filed, permission to appeal to the Tennessee Supreme
Court in Laseter had been denied, but the Opinion had not been submitted for publication in
the official reporter. Pursuant to Rule 4 of the Rules of the Tennessee Supreme Court,
unpublished opinions are merely persuasive authority on this court. See Tenn. R. Sup. Ct.
4(G)(1). While this appeal was pending, however, the Laseter Opinion was accepted for
publication in the official reporter. Accordingly, the decision “shall be considered controlling
authority for all purposes unless and until such opinion is reversed or modified by a court of
competent jurisdiction.” Tenn. R. Sup. Ct. 4(G)(2).
      The Laseter Opinion is, therefore, controlling on this Court. As this Court explained
in Boyce v. LPP Mortgage Ltd., 435 S.W.3d 758 (Tenn. Ct. App. 2013):

              The sound principle of stare decisis requires us to uphold our
              prior precedents to promote consistency in the law and to
              promote confidence in this Court‟s decisions. Carroll v.
              Whitney, 29 S.W.3d 14, 25 (Tenn. 2000) (Anderson, C.J.,
              dissenting). This Court will overturn a settled rule of law only
              when there is an error in the precedent, when the precedent is
              obsolete, when adhering to the precedent would cause greater
              harm to the community than disregarding stare decisis, or when
              the prior precedent conflicts with a constitutional provision. In
              re Estate of McFarland, 167 S.W.3d 299, 306 (Tenn. 2005).

Boyce, 435 S.W.3d at 767 (quoting Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639
(Tenn. 2013)). Having reviewed the decision in Laseter, we conclude that no grounds exist
to overturn its holding.

       Tennessee law generally allows for broad discovery, as “mutual knowledge of all the
relevant facts gathered by both parties is essential to proper litigation.” Johnson v. Nissan N.
                                              -6-
Am., Inc., 146 S.W.3d 600, 605 (Tenn. Ct. App. 2004) (citing Hickman v. Taylor, 329 U.S.
495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (U.S. 1947)). “Tennessee‟s discovery and
evidentiary rules reflect a broad policy favoring discovery of all relevant, non-privileged
information.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 525 (Tenn. 2010) (citing
Harrison v. Greeneville Ready–Mix, Inc., 220 Tenn. 293, 302, 417 S.W.2d 48, 52 (Tenn.
1967)). Relevancy is to be construed liberally and with common sense instead of “narrow
legalisms.” Johnson, 146 S.W.3d at 605, n.3 (citing Wright, Miller & Marcus, Federal
Practice and Procedure: Civil 2d § 2008, p. 107 (1994)). While “a request for discovery
should be considered relevant if there is any possibility that the information sought may be
relevant to the subject matter of the action,” discovery of information that has no conceivable
bearing on the case should not be allowed. Johnson, 146 S.W.3d at 605, n.3 (quoting
Federal Practice and Procedure: Civil at § 2008, p. 107, 108). “Whether information sought
is reasonably calculated to lead to the discovery of admissible evidence must, of course, be
determined on a case-by-case basis.” Robert Banks, Jr. & June F. Entman, Tennessee Civil
Procedure § 8-1(f) (2004) (quoting Federal Practice and Procedure: Civil § 2008, p. 114).
        Here, the discovery of information relating to an expert‟s income from medical-legal
review certainly meets this standard. As explained in Laseter, “exposure of financial interest
bias may sometimes be the most effective challenge that can be made to an expert‟s
testimony[.]” Laseter, 2014 WL 3698248, at *12 (quoting Wrobleski v. de Lara, 353 Md.
509, 518 727 A.2d 930, 934 (Md. 1999)). Furthermore, the Laseter Court pointed out that: “It
is well-settled in Tennessee that „[a] finder of fact may consider an expert‟s bias or financial
interest in the litigation when determining the weight to be given to his or her opinions.‟”
Laseter, 2014 WL 3698248, at *12 (quoting GSB Contractors, Inc. v. Hess, 179 S.W.3d
535, 547 (Tenn. Ct. App. 2005)). Thus, discovery of an expert‟s income from medical-legal
review is highly relevant to the admissible issue of an expert‟s bias. Based on the foregoing,
we see no need to depart from the rule established in Laseter.
        Here, the trial court expressly ruled that Appellant and Dr. Evans were required to
submit information to the Appellees concerning Dr. Evans‟s income from medical-legal
review in the years prior to the case-at-bar. Based upon the holding in Laseter, the trial court
in this case did not abuse its discretion in requiring that Dr. Evans provide that information.
Furthermore, in Laseter the Court of Appeals held that the trial court did not abuse its
discretion in excluding Dr. Evans due to his failure to comply with a valid discovery order.
Laseter, 2014 WL 3698248, at *21 (“Plaintiff and Dr. Evans repeatedly and knowingly failed
to comply with the trial court‟s orders, despite multiple opportunities and generous
extensions of deadlines. There comes a time when, as the saying goes, “enough is enough.” . .
. The trial judge did not abuse her discretion in excluding Dr. Evans as a witness.”). Likewise
in this case, Dr. Evans undisputedly refused to comply with the trial court‟s discovery order,
“despite multiple opportunities and generous extensions of deadlines.” Id. Based upon


                                             -7-
Laseter, the trial court also did not abuse its discretion in excluding Dr. Evans as witness due
to his refusal to comply with discovery requests. Id.
       Appellant next argues that the trial court erred in failing to allow Appellant additional
time to obtain an expert after the exclusion of Dr. Evans. Like Appellant‟s argument supra,
this argument has also been previously addressed by this Court. See Weatherspoon v.
Minard, No. W2015-01099-COA-R3-CV, 2015 WL 8773801 (Tenn. Ct. App. Dec. 14,
2015). In Weatherspoon, this Court rejected a similar argument made by a plaintiff that he
should have been allowed more time to retain an expert after the exclusion of Dr. Evans. Id.
at *4. In that case, Dr. Evans was likewise excluded for failing to comply with valid
discovery requests. At the hearing in which Dr. Evans was ultimately excluded, the plaintiff
sought additional time to obtain another expert to testify to the applicable standard of care.
The trial court denied the request. Id. at *2.
       This Court affirmed the decision of the trial court to deny the plaintiff‟s request to be
allowed more time to obtain an expert, relying on the precedent set in Robinson v. Lecorps,
83 S.W.3d 718 (Tenn. 2002). In Robinson, the trial court excluded the plaintiff‟s only
standard of care expert and granted summary judgment due to the lack of a required expert
witness. Id. at 725. On appeal, the Tennessee Supreme Court affirmed the exclusion and
subsequent dismissal on the basis that although the plaintiff was aware of the impending
exclusion of his expert, it made no effort to remedy the issues that led to the expert‟s
exclusion:
                    [The plaintiff] was aware of the required elements of a
              malpractice action under Tenn. Code Ann. § 29-26-115(a) and
              (b) and also knew that the defendant objected to the testimony of
              Dr. Kennedy with regard to the standard of professional care in
              a discovery deposition. Moreover, counsel for [the defendant
              doctor] objected and cited this specific ground on two occasions
              during the evidentiary deposition of Dr. Kennedy. Despite these
              specific objections, [the plaintiff] did not [remedy the issue with
              Dr. Kennedy‟s testimony] and did not present any other expert
              witnesses to establish an appropriate standard. In addition, [the
              plaintiff] made no showing of how Dr. Kennedy‟s new
              testimony would [remedy the issues that led to the exclusion of
              Dr. Kennedy‟s testimony].
Id. As we noted in Weatherspoon, the Robinson holding illustrates that “a party faced with a
motion to exclude his or her required standard-of-care expert may be required to anticipate
the exclusion of the expert and make appropriate efforts to remedy the issues that led to the
expert‟s exclusion or present to the court “[an]other expert witnesses to establish an

                                             -8-
appropriate standard.” Weatherspoon, 2015 WL 8773801, at *4 (citing Robinson, 83 S.W.3d
at 725).
       In this case, much like in Weatherspoon and Robinson, Appellant was aware as early
as the May 30, 2013 hearing that Dr. Evans was likely to be excluded and that a new expert
would be required to prosecute the case. Indeed, counsel for Appellant made the following
statement during the hearing:
               He [i.e., Dr. Evans] definitely will not, to a high level of
               certainty, he definitely is not going to supply this information.
               Then, therefore, Your Honor is going to be presented with a
               Motion to Exclude him because Dr. Evans is not complying with
               the Motion to Compel, so please excuse -- preclude Dr. Evans.
                    Therefore, I‟m making a Motion Ore Tenus for Your
               Honor to allow us 60 days to find a new expert in this case,
               because Dr. Martin Evans is simply not going to appear at trial
               under these -- under Your Honor‟s ruling.
Thus, counsel for Appellant was well-aware as of the May 30, 2013 hearing that Dr. Evans
would refuse to comply with the trial court‟s discovery order and that he would likely be
excluded due to his noncompliance.
        Furthermore, the trial court was not indifferent to Appellants‟ request for additional
time, despite the fact that the time for identifying experts had expired. Instead, the trial court
orally ruled that Appellant should file a written motion seeking additional time to obtain the
required expert. The trial court even stated that: “In all candor, I probably will look on your
motion with favor.” Appellant was thus given ten days to file the written motion seeking
additional time to obtain another standard of care expert.
       Despite this exchange, no written motion seeking additional time to obtain another
expert was filed within ten days of the May 30, 2013 hearing. In fact, our review of the
record reveals that no such motion was ever filed in the case. Rule 36(a) of the Tennessee
Rules of Appellate Procedure provides, in pertinent part: “Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of an
error.” Here, Appellant had every opportunity to nullify the harmful effect caused by Dr.
Evans‟s exclusion by filing a written motion seeking additional time to obtain another expert,
as directed by the trial court at the June 30, 2013 hearing. Indeed, the trial court indicated that
it would look upon such a motion favorably. Appellant, however, chose not to file a written
motion, disregarding the trial court‟s oral ruling. Instead, Appellant focused her efforts on a
motion to reconsider the trial court‟s decision to require Dr. Evans to produce the financial

                                               -9-
information,2 and apparently delayed any effort to obtain another expert until the trial court
ultimately ruled on the dismissal of the case in September 2014, over fourteen months later.
At this point, Appellant once again lodged an oral motion for additional time to obtain
another expert. Based upon the holding in Robinson, this action was simply far too little,
much too late. The trial court‟s decision to deny Appellant‟s oral request for additional time
to obtain an expert was, therefore, not an abuse of discretion.
       As previously stated, the trial court did not abuse its discretion in requiring that Dr.
Evans produce evidence regarding his income from medical-legal review in the years
preceding the case-at-bar. Furthermore, the trial court did not abuse its discretion in
ultimately excluding Dr. Evans from testifying due to his failure to comply with a valid
discovery request. Finally, the trial court did not abuse its discretion in denying Appellants‟
oral motion for additional time to obtain another expert where Appellant failed to comply
with the trial court‟s earlier ruling to file a written motion seeking such relief. Appellant does
not raise as an issue on appeal that the trial court erred in granting summary judgment in
favor of Appellees after the exclusion of Dr. Evans. Accordingly, the judgment of the trial
court is affirmed in all respects.
                                            Conclusion
       The judgment of the Circuit Court of Henry County is affirmed and this cause is
remanded for all further proceedings as are necessary and are consistent with this Opinion.
Costs of this appeal are taxed to Appellant Marchelle Renee Buman, and her surety.



                                                         _________________________________
                                                         J. STEVEN STAFFORD, JUDGE




       2
       Appellant chose this avenue despite the fact that the trial court warned that “it‟s going to get
you nowhere probably.”
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