Shay Lynn Jeanette Starnes v. Olukayode Akinlaja, M.D., Et Al.

I concur in the decision to affirm the judgment of the trial court as modified. I do
so because Tennessee law requires the result reached in the Court’s opinion. However, I
write separately to state my view that the 2010 amendment to Federal Rule of Civil
Procedure 26(b)(4), which protects draft reports and communications of expert witnesses
from discovery, is a better approach than that set out in Tennessee Rule of Civil Procedure
26.02 as it is currently written. Tennessee does not offer the same sort of protection from
discovery of draft reports and communications of expert witnesses that is provided under
the federal rules. As a result, and certainly after this Court’s opinion, counsel for both
defendants and plaintiffs likely will decline to write down their communications with
experts and instead rely exclusively on oral communication. Even more concerning, the
experts will communicate with counsel only by oral means leaving counsel, likely not a
healthcare provider, not having the benefit of what she is told being in a more detailed
writing. Counsel for Dr. Akinlaja candidly acknowledged as much at oral arguments,
saying “that is the way that it’s done practically.”