Tennessee Expert Witness Rules: What Litigators Need to Know

Tennessee civil litigation places significant emphasis on the proper handling of expert witnesses. Courts in the state have repeatedly underscored the necessity of strict compliance with expert disclosure protocols, and failure to do so can result in exclusion of testimony or other sanctions. Attorneys must pay close attention to timing, disclosure content, and admissibility standards to effectively leverage expert opinions at trial.

Designation Requirements

Tennessee does not mandate a formal expert designation separate from the expert disclosure process; however, courts expect parties to clearly identify experts they intend to call at trial. This typically occurs during discovery, and names, contact information, and subject matter expertise must be provided within required disclosures.

Under Tenn. R. Civ. P. 26.05, each party must identify witnesses, including experts, expected to testify at trial. This obligation extends to detailing the general subject matter of the testimony and a summary of facts and opinions to which the expert is expected to testify. While the rule does not require a separate designation filing, inadequate disclosure could lead to a challenge under Tenn. R. Civ. P. 37, which governs discovery sanctions.

Expert Disclosure Process

Tennessee adheres to a modified version of the federal disclosure rules under Rule 26. Parties must disclose expert information as part of their discovery responses, either through interrogatories or Rule 26.05 disclosures. Courts expect:

• A summary of the expert’s opinions
• The basis for those opinions
• The data considered
• Qualifications and publications (if requested)
• Prior testimony and compensation history

If the expert was retained specially for litigation, disclosure may also require production of a written report, especially in complex civil matters. However, Tennessee does not categorically require written reports for all retained experts unless ordered by the court or stipulated by the parties.

Disclosure is not a one-time event. Parties have a continuing duty to supplement disclosures under Tenn. R. Civ. P. 26.05(2) if they learn that the information previously provided is incomplete or incorrect.

Required Declarations

Tennessee does not explicitly require expert witnesses to submit formal declarations or affidavits as part of the standard disclosure process. However, declarations or affidavits may be strategically used in summary judgment proceedings to demonstrate the existence of triable issues or, conversely, the absence of them.

Notably, for medical malpractice cases, Tenn. Code Ann. § 29-26-115 imposes stricter rules. Plaintiffs must provide an expert affidavit of merit, establishing that the case has been reviewed by a qualified medical expert who believes that there is a good faith basis for the claim. This requirement, often referred to as the certificate of good faith, is a prerequisite for filing suit and must comply with statutory criteria.

Fees and Compensation

Tennessee does not regulate expert witness fees directly through statute. Compensation is typically governed by agreement between counsel and the expert. However, Tenn. R. Civ. P. 26.03 permits courts to issue protective orders if expert fees become burdensome or are used oppressively.

Additionally, when a party seeks to depose an opposing party’s expert, Tenn. R. Civ. P. 26.02(4) allows that the party requesting the deposition must pay the expert a reasonable fee for time spent in deposition. This aligns with Federal Rule 26(b)(4), ensuring fairness in expert depositions.

Discovery Scope and Limitations

Tennessee permits robust discovery of expert witnesses. Under Rule 26.02(4), a party may depose any person identified as an expert who is expected to testify. However, limitations apply:

• Draft expert reports are generally protected under work-product doctrine.
• Communications between attorney and expert may be shielded unless they relate to compensation, data considered, or assumptions relied upon.
• Experts retained solely for consulting purposes and not expected to testify are generally not discoverable unless exceptional circumstances exist.

Tennessee courts have shown reluctance to allow fishing expeditions into an expert’s background. Discovery is focused on the methodology, reasoning, and data used in forming opinions, rather than personal correspondence or irrelevant background information.

Admissibility Standards

Tennessee follows the McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997) standard for admissibility of expert testimony, which diverges from the federal Daubert standard but shares many core principles.

Under McDaniel and subsequent cases, trial courts must determine whether expert testimony:

1. Is based on reliable principles and methodology
2. Will assist the trier of fact
3. Is relevant to the issues in the case
4. Has a sufficient factual foundation
5. Has been tested, subjected to peer review, or otherwise validated

Tennessee Rule of Evidence 702 governs the threshold for admissibility. The trial judge serves as the gatekeeper, and expert opinions lacking a sound scientific basis or relying on speculation are subject to exclusion.

Key Deadlines & Strategy Notes

Expert disclosure deadlines are typically established by the case management order. Courts may set deadlines for disclosure of the plaintiff’s experts, followed by a separate deadline for the defense. A common timeline structure includes:

• Plaintiff's expert disclosures: 90–120 days before trial
• Defendant's expert disclosures: 60–90 days before trial
• Rebuttal expert disclosures: 30–45 days before trial
• Close of expert discovery: 30 days prior to trial

Failing to disclose experts within these timeframes risks exclusion under Rule 37.03, which allows courts to prohibit the use of information not properly disclosed.

From a strategic perspective, early identification and consultation with experts is crucial. Tennessee’s adherence to McDaniel ensures a focus on methodology and factual grounding—making thorough preparation and vetting of expert opinions essential well before deadlines arrive.

State-Specific Statutes & Local Rules

Several Tennessee-specific statutes affect expert witness handling:

Tenn. Code Ann. § 29-26-115: This statute governs the burden of proof in healthcare liability actions and includes Tennessee’s locality rule, which significantly shapes expert witness qualifications.

• Under subsection (a), plaintiffs bear the burden of proving:
  • The standard of acceptable professional practice in the same or similar community where the defendant practiced at the time of the alleged injury.
  • That the defendant failed to meet this standard through negligent action or omission.
  • That this negligence proximately caused the plaintiff’s injury.
• Subsection (b)
  • The expert must be licensed in Tennessee or a contiguous bordering state.
  • They must have practiced in a relevant specialty within one of those states during the year before the alleged act or omission.
  • These rules apply to both plaintiff and defense experts and may be waived only if no qualified witness is otherwise available.
• The locality rule ensures that experts understand the standard of care specific to the community in which the defendant practiced—or a similar one—recognizing differences between urban hospitals and rural clinics.
• Additionally, under subsections (c) and (d), Tennessee:
  • Rejects a presumption of negligence
  • Allows a rebuttable presumption of negligence only in rare cases where the injury results from an instrumentality under the defendant’s exclusive control.
  • Requires juries to be instructed that proof of negligence—not injury alone—is essential to recovery.

Tenn. Code Ann. § 24-7-122

Many Tennessee judicial districts issue local rules or standing orders that impact expert disclosures, particularly in complex or expedited dockets. These local rules may include form requirements, earlier deadlines, or special scheduling conferences specific to expert issues.

Attorneys practicing in Tennessee should consult both the Tennessee Rules of Civil Procedure and applicable local court rules to ensure compliance with jurisdictional nuances. Failure to adhere to local requirements could result in procedural setbacks or exclusion of key testimony.