EvidenceProf Blog

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

Saturday, January 16, 2021

Court of Appeals of Tennessee Finds Declarants Subject to Subpoena Exemptions Are "Unavailable"

Similar to its federal counterpart, Tennessee Rule of Evidence 804(a)(5) provides that a declarant is unavailable if the declarant

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process.

In turn, if a declarant is unavailable, her hearsay statements can be admitted pursuant to the hearsay exceptions contained in Rule 804(b) and other pertinent rules of civil procedure. So, is a declarant unavailable if she is covered by a trial subpoena exemption? That was the question addressed by the Court of Appeals of Texas in its recent opinion in Spearman v. Shelby County Board of Education, 2021 WL 142170 (Tenn. App. 2021).

In Spearman, a teacher assistant and track and field coach threw a shot put that struck Kenji Lewis, prompting his mother to bring a negligence action. Dr. Klimo performed surgery on Lewis and submitted to a deposition for the case. Thereafter, the plaintiff introduced the deposition at trial, and the jury found for the plaintiffs.

The defendants then appealed, claiming "that the trial court erred in admitting into evidence portions of the transcript from Dr. Klimo's deposition." The Court of Appeals of Tennessee disagreed, holding as follows:

Defendants argue that Plaintiff did not prove that Dr. Klimo was “unavailable” to testify as defined by Tennessee Rule of Evidence 804(a), so his deposition transcript could not be admitted under Tennessee Rule of Civil Procedure 32.01(3). We disagree.
Tennessee Code Annotated section 24-9-101 states that deponents such as “[a] practicing physician, physician assistant,...or attorney” are “exempt from subpoena to trial but [are] subject to subpoena to deposition.”...Rule 32.01(3) of the Tennessee Rules of Civil Procedure permits the use of a deposition transcript at trial if the witness is “unavailable,” as defined by Tennessee Rule of Evidence 804(a)....Rule 804(a) lists several situations in which a witness may be unavailable to testify. One situation includes the witness being “absent from the hearing and the proponent of a statement has been unable to procure the [witness's] attendance by process.” Tenn. R. Evid. 804(a)(5).
Defendants’ argument that the trial subpoena exemption under section 24-9-101 is not a ground for “unavailability” under Rule 804(a) is simply an erroneous statement of law. Time and again, this Court has held that the term “unavailable” under Rule of Evidence 804(a)(5) includes a deponent subject to the subpoena exemption under section 24-9-101. See, e.g., In re Madison M., No. M2013-02561-COA-R3-JV, 2014 WL 4792793, at *4 (Tenn. Ct. App. Sept. 25, 2014) (citing Cullum v. Baptist Hosp. System, Inc., No. M2012-02640-COA-R3-CV, 2014 WL 576012, at *3 (Tenn. Ct. App. Feb. 12, 2014)); Citadel Invs., Inc. v. White Fox Inc., No. M2003-00741-COA-R3-CV, 2005 WL 1183084, at *9 (Tenn. Ct. App. May 17, 2005).
It is clear that Dr. Klimo is a “practicing physician” and therefore exempt from subpoena to trial under section 24-9-101(a). He is a licensed neurosurgeon in seven different states, including Tennessee. He has been a full-time neurosurgeon since 2010, currently performing surgeries at LeBonheur Children's Hospital in Memphis. His primary focus is pediatric neurosurgery. To no avail, Defendants argue that Plaintiff failed to satisfy the requirements of section 24-9-101(a) because they did not attempt to serve Dr. Klimo with a subpoena to trial. They claim that a party must attempt to serve the witness with a subpoena before the deposition can be admitted, regardless of whether the witness would inevitably exercise the exemption. There is no such requirement in Tennessee (emphasis added).



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