May 21, 2009

Expert witnesses precluded from testifying for failure to fully comply with T.R.C.P. 26; Trial court has wide discretion in allowing expert architect

(Tenn. Ct. App. October 28, 2008).

This litigation arises out of the renovation of and addition to a 100-year old house. While suit was pending, the plaintiff, Billy S. Walls dba B.S. Walls Construction ("Contractor") failed to respond to interrogatories with respect to requested information regarding experts. He likewise did not respond to a motion to compel responses to the interrogatories and an order of the court compelling responses. As a consequence of Contractor's inaction, the trial court refused to allow his two expert witnesses to testify. At trial, Contractor objected to the testimony of an expert tendered by the defendants, Jeffrey S. Conner and Tresia Conner ("Homeowners"). The trial court overruled the objection. Contractor argues in this court that the trial court abused its discretion when it refused to allow his experts to testify and when it held that Homeowners' expert was qualified to testify. We affirm.

Opinion may be found at the TBA website:

"The interrogatory answer supplied stated the names of two expert witnesses that Contractor intended to call at trial, but did not supply the other information required under Rule 26 and requested in the interrogatory concerning experts." Id.

'The sanction in this case is admittedly harsh. But “harsh sanctions have been used with some frequency to address a party’s failure to comply with discovery orders.” We hold that the trial court’s decision to preclude Contractor’s experts from testifying does not amount to an abuse of discretion.' Id. (Citations omitted).

"The witness was then tendered for voir dire. On appeal, Contractor points to several facts brought out during voir dire, which he contends shows that the trial court erred in admitting the witness’ expert testimony: (1) that Homeowners' expert had no experience renovating 100-year old structures; (2) the expert had not performed a renovation of an existing residential structure for nine years; (3) the expert’s experience was in building new structures; and (4) the expert testified that he calls his friends about pricing in the field of renovating homes. As the trial court noted, the facts brought out on voir dire of the witness go to the weight and credibility to be given to the witness’s testimony. We give the trial court’s determinations in that regard great deference on appeal. We find that the trial court did not abuse its discretion in determining that the witness was qualified to testify and admitting his testimony." Id.