By Jane Salem, staff attorney, Nashville

An employer’s vocational expert won’t be allowed to testify in an increased benefits case—unless the Appeals Board reverses that call by the trial judge. The decision will turn on what the appellate judges decide the word “disclose” means.

Counsel gave sharply disparate opinions on that question at oral arguments last week in Knoxville.

In Taylor v. Coca-Cola Consolidated, Ariel Taylor seeks extraordinary relief. At the arguments, counsel focused closely on the trial judge’s exact words in a scheduling order.  He wrote:

Immediately after the scheduling hearing, Coca-Cola emailed Taylor’s attorney to state that it had hired an expert and to set up the evaluation. After the evaluation, Coca-Cola sent the report to Taylor’s attorney on May 15. Afterward, Taylor filed a motion to exclude, which the judge granted.

Garrett Franklyn, Coca-Cola’s attorney, told the Board it was “in strict compliance” with the order, comparing it to a contract. He said the judges should look no further than the order’s four corners, and all the orders should be read together, to discern its meaning.

Franklyn said the post-hearing email served as his expert “disclosure” and was done long before May 5. Franklyn pointed out that the order didn’t require the exchange of reports by May 5, nor did it make a distinction between consulting experts versus those who would be called at trial. Moreover, Taylor never served written discovery asking about its expert or attempted to depose the expert, even after he’d been evaluated and was on notice of the expert’s participation in the case.

But even if Coca Cola’s interpretation of the order were “incorrect,” Franklyn argued its interpretation was “reasonable” and not in bad faith. Alternatively, he said the exclusion, sometimes called “the nuclear option,” was too harsh a sanction. He said, “The punishment has to fit the crime.”

Taylor’s attorney, Michael Fisher, countered that Coca Cola could’ve asked for an extension. It also didn’t admit its mistake and argue excusable neglect. Fisher said, “I feel like the majority of their argument is, ‘We didn’t mean to do this.’”

Fisher argued that merely conveying the expert’s name is not “disclosure.” “Identification” and “disclosure” are not the same, he asserted. He cited Hutchins v. Cardinal Glass Industries, where the Board wrote that “the purpose of the court’s scheduling order is not merely to identify potential witnesses, but to put other parties on notice of the expert testimony the party intends to present at trial.”

Fisher said to him and most other practitioners in Tennessee, “disclosure” means disclosing both the identity of the expert and a summary of the expert’s substantive opinions or anticipated testimony. That means answering an interrogatory response giving the bases of the expert’s opinions, or giving opposing counsel the expert’s written report by the disclosure deadline.

He added that “plenty of times,” an expert will be identified, only to later be labeled as merely a consulting expert, and he never hears from them again.

Presiding Judge Timothy Conner observed that the meaning of “disclosure” is “the nitty-gritty” of the case.

Judge Conner stated that Taylor received the defense expert report on May 15 and still had time to depose her before June 5. So how was she prejudiced?

Fisher conceded that its receipt on May 15 opened a 20-day window to depose the expert. But the law doesn’t require that they show they were harmed, he insisted. If the Court had given Coca-Cola additional time and continued the trial, that would have been prejudicial to his client because Taylor doesn’t have any regular income.

Regardless, the trial judge reasoned that parties are expected to comply with court orders. That expectation isn’t “ground-breaking or unreasonable,” Fisher said. The judge based his decision on a court rule regarding motions to extend deadlines.

Fisher, and the trial court in its order, observed that, “coincidentally,” the expert’s report, exchanged on May 15, was dated May 5, the same date as the deadline.

Franklyn maintained he was not being “coy,” and the report was received on May 5. They needed a little time to confer with their client before turning it over. That still gave Taylor time to decide what to do next, well before other deadlines.

Franklyn concluded he was under no obligation to turn over the expert’s report at all under the terms of the scheduling order.

“I fundamentally disagree with the appellee’s interpretation of what the word ‘disclose’ entails. That word is doing a lot of legwork in this case. It is one verb. They keep saying it means ‘x, y, and z,’” Franklyn said.

“I’ve seen multiple scheduling orders where the Court has obligated parties to make disclosures, and then subsequently say, ‘Make sure you turn over your experts’ reports by that day as well.’”

Because the order is interlocutory, the Board must release its opinion within 20 business days after the arguments.

Welcome, fall! Smith Park, Brentwood. Photo by the author.