Court reviews admissibility of a physician's evaluation when physician is unavailable for deposition by the opposing party

ANDREW CARTER v. QUALITY OUTDOOR PRODUCTS, INC. ET AL. (Tenn. January 22, 2010)

The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf

Note: On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General. The corrected opinion can be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf