EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 4, 2010

The Underlying Theme: Court Of Appeals Of Tennessee Doesn't Require Deposition's Disclosure Despite Rule 705

Like its federal counterpartTennessee Rule of Evidence 705 provides that 

The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

A defendant's expert offers opinion testimony after testifying that she read an otherwise inadmissible deposition along with other material provided to her in order to understand what happened in the case. Should that expert be required to disclose the contents of that deposition on cross-examination. I say "yes." In its recent opinion in Melton v. BNSF Ry. Co., 2010 WL 597457 (Tenn.Ct.App. 2010), the Court of Appeals of Tennessee said "no."

In Melton, Laura Jan Melton filed an action as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for BNSF. Specifically,

On July 11, 2006, Ronald Melton...was struck by a rail car in the BNSF Tennessee Yard and died as a result of his injuries. At the time of his death, Mr. Melton was employed by...BNSF Railway Company...as a “carman.” Mr. Melton and his co-worker, John Carnell...had been instructed to locate and repair a rail car with a bent pin lifter. The car needing repair was located on track 301, a protected track....Mr. Melton and Mr. Carnell went to track 2051...(“Track 51”) to look for the rail car needing repair. The parties dispute whether Pat Vaiden..., a Leadman for BNSF and Mr. Melton's supervisor, sent Mr. Melton and Mr. Carnell to Track 51 or Track 301.

Track 51 is a “bad order” track, where cars needing repair are sent. The rail cars on track 51 are “humped” onto the track-that is they are moved down an incline onto track 51, passing through “retarders,” which reduce the speed, and then roll freely until they are stopped by the force of gravity or until they come into contact with another car. The section of track 51 at issue is located in an area of the yard that is sloped on either side and referred to as the “bowl.”

Mr. Melton drove a BNSF road truck to locate the rail car needing repair. He parked the road truck between track 301 and track 51 with the rear of the road truck facing south. Two cars were coupled... together on track 51, rail car AOK-181556 (“AOK”) and rail car FURX-824206 (“FURX”), adjacent to where Mr. Melton parked the road truck. There were several other rail cars north of these two coupled rail cars. Upon exiting the road car, Mr. Melton told Mr. Carnell to be careful as track 51 was a “live” track. Mr. Melton and Mr. Carnell then walked in a northerly direction up track 51, looking for the rail car needing repair. When they could not find it, they decided to return to their truck to call Mr. Vaiden for more information. Upon reaching the truck, Mr. Melton went towards the driver's side and Mr. Carnell went towards the passenger side. After the two parted, Mr. Carnell saw a rail car approaching from the south on track 51 and yelled to warn Mr. Melton. The car Mr. Carnell saw was CEFX-30498 (“CEFX”), which had been humped onto track 51. CEFX collided with FURX causing FURX and AOK to move forward. AOK struck Mr. Melton, causing his injuries. The parties dispute where exactly Mr. Melton was in relation to his road truck and the track when he was struck.

Foster Peterson was an expert hired by BNSF after the accident to do an investigation and was eventually deposed; he did not testify at trial and his deposition was not introduced into evidence. Dr. Elaine Serina, however, did offer expert opinion testimony for BNSF. And, at one point in her testimony, "Dr. Serina did testify that she read the Peterson deposition along with other material provided to her in order to understand what happened in the case." Later, though,

Mrs. Melton's counsel actually asked Dr. Serina, “Isn't it true, Dr. Serina, that you had to rely upon the basic investigative facts that Foster Peterson provided, because you did not have any of your own?” Dr. Serina responded that she reviewed it, but did not rely on it for her opinion, indicating that her knowledge of the facts in the deposition was not necessary for her to form her opinion. As Dr. Serina stated, her opinions were based on the injuries to Mr. Melton, the geometry of the rail car and the body dimensions of Mr. Melton. In fact, Dr. Serina testified that she did not even receive the deposition at issue until after she wrote her report.  

According to the trial court, Dr. Serina was then required to disclose the contents of that deposition on cross-examination, but the Court of Appeals of Tennessee disagreed, finding that

While we do not want to create a situation where an expert may simply deny that he relied on material provided to him in forming his opinion in order to curtail cross-examination, there must be some indication that the material upon which cross-examination is sought provides, at least in part, the underlying facts and data upon which the expert's opinion is based. In this case, there is simply no indication that any material from the Peterson deposition, while read, underlies Dr. Serina's opinion. Therefore, we find that cross examination based on the Peterson deposition was improper.

I think, though, that the court created the very situation that it was trying to avoid. Dr. Serina clearly testified that she read the Peterson deposition (and other material) to understand what happened in the case. This being the case, how could the court find that the Peterson deposition did not underly her expert opinion? The implication of Dr. Serina's testimony is that, without the deposition, she would have had an incomplete understanding of what happened in the case. This being the case, the deposition clearly underlay her testimony and should have been fair game for cross-examination under Tennessee Rule of Evidence 705.



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