New Health Care Liability Action Opinion: Trial Court's Grant of Motion to Compel Upheld on Appeal as Modified; Expert's Draft Reports, Notes, Communicaitons with Counsel, Etc., Are Discoverable

The Tennesse Court of Appeals has issued its opinion in Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023). The syllabus from the slip opinion reads: 

In this health care liability action, the trial court granted the defendants’ motions to compel the plaintiff to produce expert witness materials despite the plaintiff’s claim of the work product doctrine. The trial court subsequently denied the plaintiff’s motion for interlocutory appeal. Upon the plaintiff’s application, this Court granted leave for an extraordinary appeal. Determining that the plaintiff has waived any privilege or protection for specific materials requested by the defendants, including expert witnesses’ notes, draft reports, and communications with counsel, we affirm the trial court’s grant of the defendants’ motions to compel, inclusive of the trial court’s proviso allowing the plaintiff to present specific materials for review if she believes they contain mental impressions of her counsel. However, also determining the trial court’s order to be overly broad, we modify the language of the order to more closely track the language of Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants’ specific requests.

Here is a link to the opinion: E2021-1308.pdf (tncourts.gov).

Here is Judge Swiney's concurring opinion: E2021-1308 Separate Opinion.pdf (tncourts.gov).

NOTE: This opinion concerns the scope of pretrial discovery, privilege logs, and waiver relating to expert witnesses. Any lawyer who is dealing with such pretrial discovery issues should read this opinion.