Elizabeth A. Popick v. Vanderbilt University, M2015-01271-COA-R3-CV

Background

Plaintiff Elizabeth Popick sued Vanderbilt after her husband Joshua Popick died following multiple airway surgeries and complications after a January 23, 2008 tracheostomy attempt and later procedures for subglottic stenosis.
A bedside percutaneous tracheostomy attempt was aborted and converted to an open tracheostomy in the OR; medical records contained an inaccurate procedure note describing a completed percutaneous technique.
March CT showed a white spot/abnormality at the anterior cricoid region and airway narrowing; plaintiff’s experts said this represented a fractured cricoid from a too-high bedside attempt causing stenosis; defense experts attributed stenosis to expected trauma from intubation/tracheostomy and disputed a fracture.
At trial plaintiff sought to introduce pretrial email exchanges between former physicians, offered three-dimensional CT models, complained about defense closing argument, requested a missing-evidence jury instruction, and challenged the special verdict form’s wording on causation.
The jury returned a verdict for Vanderbilt; the trial court denied a new trial. On appeal the Court of Appeals affirmed, finding no reversible error on evidentiary rulings, cross‑examination, closing argument, denial of the special instruction, or the special verdict form.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of email messages as hearsay	Emails recounting recollections (including a nurse’s alleged remark) were admissible or fit an exception (excited utterance) or could be used as prior inconsistent statements	Emails were hearsay, not party admissions, and did not meet exceptions; Rule 613(b) requirements for extrinsic prior inconsistent statements not met	Affirmed exclusion: emails hearsay; excited utterance and prior‑inconsistent/extrinsic requirements not satisfied; no abuse of discretion
Cross‑examination about 3D models	Defense questioning suggested models reflected plaintiff’s interpretation; plaintiff lacked model‑creator to rebut and was prejudiced	Defense counsel’s cross was proper; parties stipulated to models’ accuracy and cured any issue	Overruled: trial court did not abuse discretion; stipulation cured any potential prejudice; issue waived by plaintiff
Closing argument silence inference	Defense counsel had agreed not to reference why Dr. Reibel did not opine on Dr. Burkey; referring to his "silence" was improper and prejudicial	Defense said agreement only limited cross‑examination, not closing argument; comment was an inference jury could draw	Held harmless: court found possible impropriety but no agreement breach; any error was harmless under the record
Denial of requested missing‑evidence instruction	Court should instruct jury they may infer an accurate bedside procedure note (if shown elements) would be adverse to Vanderbilt	No proof an accurate note existed and was withheld; inaccurate auto‑populated note is not a missing document	Denied: instruction not warranted because plaintiff failed to show an existing, withheld accurate document in defendant’s exclusive control
Special verdict form wording re: causation	Form required a finding of a cricoid fracture; plaintiff argued jury should be allowed to find other non‑fracture cricoid injury caused stenosis	Causation evidence tied to fracture; other possibilities were speculative and insufficient to prove causation by preponderance	Affirmed: form appropriate; causation required proof of fracture to meet "more likely than not" standard; mere possibilities insufficient; directed‑verdict rationale upheld

Key Cases Cited

White v. Beeks, 469 S.W.3d 517 (Tenn. 2015) (abuse of discretion standard for evidentiary rulings)
Lee Med., Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010) (abuse of discretion; evidentiary review principles)
Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013) (presumption that trial court’s discretionary decision is correct)
Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365 (Tenn. 2006) (duty to instruct jury on every factual issue and review of jury charge as whole)
Spellmeyer v. Tenn. Farmers Mut. Ins. Co., 879 S.W.2d 843 (Tenn. Ct. App. 1993) (when to give requested special instruction)
Richardson v. Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000) (missing‑evidence instruction requirements for documents)
Tatham v. Bridgestone Americas Holding, Inc., 473 S.W.3d 734 (Tenn. 2015) (discussion of missing evidence and related requirements)
Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993) (medical malpractice causation requires probability, not mere possibility)
Lindsey v. Miami Dev. Corp., 689 S.W.2d 856 (Tenn. 1985) (directing verdict when causation proof is speculative)
Ingram v. Earthman, 993 S.W.2d 611 (Tenn. Ct. App. 1998) (special verdict forms must present issues fairly)
Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999) (new trial when special verdict form fails to allow jury to address each theory)
Stanfield v. Neblett, 339 S.W.3d 22 (Tenn. Ct. App. 2010) (trial court’s control over closing argument and standard of review)