The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at www.birddoglaw.com. (Additional information below.)

§26.3 Limited Uses of Discovery Deposition of Experts

The Case: Dial v. Harrington , 138 S.W.3d 895 (Tenn. Ct. App. 2003).

The Basic Facts: Trial court held that plaintiffs could not use discovery deposition of their expert witness in opposition to motion for summary judgment in medical malpractice. In the absence of expert proof on the issue of breach of the standard of care, the trial court granted summary judgment for the defendant.

The Bottom Line:

  • "Tennessee Rule of Civil Procedure 32.01 is primarily a rule of evidence. Wilkes v. Fred's, Inc., No. W2001-02393-COA-R3-CV, 2002 WL 31305202, at *4 (Tenn. Ct. App. Aug. 20, 2002) (no perm. app. filed) (citing Robert Banks, Jr. & June E. Entman, Tennessee Civil Procedure § 8-7(b) (1999)). It applies to the use of deposition testimony for cross-examination and impeachment, is a rule of completeness, and provides a hearsay exception for former testimony. Wilkes, 2002 WL 31305202, at *4. Section 32.01(3) governs when a deposition may be used as substantive proof under the former testimony exception to hearsay. Tenn. R. Civ. P. 32 advisory commission comments." 138 S.W.3d at 898.
  • Rule 32.01 provides:
    Use of Depositions. - At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against the party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions[.]
    Id.
  • "Tenn. R. Civ. P. 32.01. Rule 32.01(3) provides that the deposition of a witness who is unavailable as defined by the Rule may be used 'by any party for any purpose' unless 'it appears that the absence of the witness was procured by the party offering the deposition.' Tenn. R. Civ. P. 32.01(3) (emphasis added)." Id.
  • "The hearsay exception provided by this rule, however, contains an exception to the exception. The final sentence of Rule 32.01(3) reads:
    Notwithstanding the foregoing provisions, depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at the trial except to impeach in accordance with the provisions of Rule 32.01(1) (emphasis added).
    Id.
  • "Commonly called 'the Bearman Rule,'FN1 this sentence prohibits the introduction, as substantive proof, of discovery depositions of experts taken in accordance with Rule 26.02(4).
    FN1. This final sentence of Rule 32.01(3), inserted in 1984, was recommended by distinguished Memphis attorney Leo Bearman when he was a member of the Rules Commission. Hence it lives on as "the Bearman Rule." Donald F. Paine, The Bearman Rule, 39 Tenn. B.J. 33 (April 2003).
    Id.
  • "The Bearman Rule was included to address the dilemma faced by a lawyer taking a discovery deposition of a hostile expert who is or becomes unavailable under the rule, which includes witnesses exempt from subpoena under Tenn. Code Ann. § 24-9-101. Tenn. R. Civ. P. 32 advisory commission comments. Essentially, it is a rule of fairness which permits discovery of a hostile expert without the threat of unfavorable responses being introduced as substantive proof under what is, in essence, a hearsay exception. Id. The party who hired the expert may still take a deposition for proof by notice or agreement. Id." Id. at 898.
  • "In the case now before this Court, the Bearman Rule clearly would proscribe the use of Dr. Engle's discovery deposition as substantive proof at trial. We must here determine, however, whether an expert discovery deposition may be used by the trial court not as substantive proof at trial, i.e. to prove the truth of the matter asserted, 899 but at the summary judgment stage to determine the existence of a disputed material fact. We hold that the Bearman Rule does not prohibit the use of expert depositions to point to disputed issues of material fact in opposition to a motion for summary judgment." Id. at 898-99.

  • "A sworn Rule 26 deposition of an expert is likewise admissible at a summary judgment proceeding. Bowen, 1992 WL 12129, at *2. At the summary judgment stage, consideration of a Rule 26 deposition presents no more unfairness than admission of an affidavit. In both instances, the sworn statement is reviewed by the trial court only to determine whether a disputed issue of material fact exists. Once the court has determined such a dispute exists, it is left to the trier of fact to weigh the admissible evidence. The Bearman Rule prohibits the trial court from admitting a Rule 26 deposition as substantive proof at the trial, although it might otherwise be admissible under the hearsay exceptions provided by Rule 32." Id. at 900.

  • "In addition to being consistent with the purposes and limitations of a summary judgment determination, this holding is consistent with the language of the rule itself. Rule 32 provides a hearsay exception for the use 'by any party for any purpose' of a deposition of a witness defined by the rule as unavailable. Tenn. R. Civ. P. 32.01(3). The final sentence, the Bearman Rule, however, partially negates this exception for depositions taken of experts. The sentence provides that where such depositions are taken in accordance with Rule 26.02(4), "they may not be used at the trial except to impeach in accordance with the provisions of Rule 32.01(1)." Tenn. R. Civ. P. 32.01(3) (emphasis added). The Bearman Rule does not address use of a discovery deposition of an expert for any purpose other than at trial. It simply limits the application of Rule 32.01(3), which makes what is otherwise hearsay admissible as substantive proof at trial." Id.

Other Sources of Note: Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270 (Tenn. Ct. App. 1994) (discussing the circumstances under which one expert may be cross-examined about the testimony of another expert).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866.812.8787.



The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at www.birddoglaw.com. The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

Client Reviews
★★★★★
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff. Jamar Gibson
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day, P.C. is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire The Law Offices of John Day, P.C. again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson