Kelly on Malpractice

In Dickey v. McCord, 63 S.W.3d 714 (Tenn.Ct.App.2001), plaintiffs filed a personal injury action arising from a boating accident in the Bahamas. The plaintiffs’ boat had encountered a very large wave that broke over the boat, causing the boat to go under the wave. The defendants identified an oceanographer named Dr. Van Dorn as an expert witness whom they expected to call at trial. Apparently, Dr. Van Dorn did not do well as an expert for defendants. At a pre-trial hearing, the defendants informed the court that they did not intend to call Dr. Van Dorn as a witness at trial. Defendants then moved the court to prohibit any use of or reference to Dr. Van Dorn’s discovery deposition pursuant to Rule 32.01 of the Tennessee Rules of Civil Procedure. The trial court ruled that Dr. Van Dorn could not be mentioned in the presence of the jury and that the court would address the particular issues relating to Dr. Van Dorn’s involvement in the case as they arose during the course of trial. On appeal, the plaintiff asserted error with the trial court’s ruling regarding Dr. Van Dorn in three respects: (1) its prohibiting the Dickeys from identifying Dr. Van Dorn as a missing witness; (2) its limiting the plaintiffs’ cross-examination of Mr. McCord regarding Dr. Van Dorn; and (3) its prohibiting the plaintiffs from using Dr. Van Dorn’s discovery deposition at trial.

The key issue on appeal involved the proper application of the missing witness rule. This rule provides that:

Failure of a party to call an available witness possessing peculiar knowledge concerning the facts essential to a party’s case, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness would naturally be favorable to the party’s contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of the party. No such inference arises where the only object of calling such witness would be to produce corroborative, cumulative, or possibly unnecessary evidence; or when an adverse inference would be improper for any other reason…. See State v. Francis, 669 S.W.2d 85 (Tenn.1984).

As a prerequisite to commenting on a missing witness, the evidence must show “that the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for the trial.” See Delk v. State, 590 S.W.2d 435 (Tenn.1979). The mere fact that a party fails to produce a particular person who may have some knowledge of the facts involved does not justify application of the inference against him. However, when it can be said “with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony,” an inference may be drawn by the jury that the testimony would have been unfavorable. The rule is premised on the idea that “the absent witness, if produced, would have made an intelligent statement about what was observed.”

The plaintiffs argued that they should have been allowed to identify Dr. Van Dorn as a missing witness. The Court of Appeals disagreed. In order to identify a witness as missing, the witness “must have knowledge of material facts.” Dr. Van Dorn was not present in the boat at the time of the accident; thus, he did not possess knowledge of how the wave materialized, a fact material to this dispute. The Court of Appeals was careful to note, however, that the trial court premised its decision on an erroneous belief that the missing witness rule does not apply to experts, “when, in fact, it does indeed apply to expert witnesses.” In other words, the rule would apply to an independent medical examiner or any witness who gains some knowledge of the facts. This rule is found in the pattern charge at T.P.I. — Civil 2.04. Know it well.