Hunter v. Ura

ing obtained during information the media-

tion without parties. the consent of the 31(10)(d) (2004). Sup.Ct.

Tenn. R. Based 31,

on the language ap- Rule it would

pear that a may present mediator not evi-

dence of an oral agreement. mediation As

additional support, we look to Tennessee 408,

Rule of provides Evidence which

evidence of conduct or statements made in

compromised negotiations is not admissi- prove liability

ble to validity for or in of a rules,

civil claim. Based those we con- agreement here,

clude that involved

made during the mediation re-

duced to a signed writing, is not an en-

forceable Accordingly, contract. we affirm

the judgment of the trial court.

The costs of mediation are taxed to the

appellee, Bryan Ledbetter and his sure-

ties, and of appeal the costs are taxed to appellant, Maylene and her Ledbetter

sureties, for which execution may issue if

necessary.

Sherry HUNTER, Administratrix Estate Lawrence

Hunter, Deceased

Jay URA, M.D., Michael al. et Tennessee,

Supreme Court

at Nashville. 7, 2004

Oct. Session. 29,

March 2005.

Petition Rehear Denied

April

see, for Appellees, Jay Ura, Michael M.D., and Anesthesia Services. Nashville OPINION J., E. RILEY ANDERSON, delivered opinion court, in which JANICE HOLDER, J., M. and ALLEN W. WALLACE, Sp.J., joined. WILLIAM M. BARKER, J., filed a concurring and dissenting opinion, in which FRANK F. DROWOTA, III, C.J., joined. granted We appeal to determine whether the trial court committed revers- ible error in granting the plaintiff eight peremptory challenges selec- tion, whether the trial properly court de- nied a motion for a mistrial after the plaintiff cross-examined a expert defense prior statement, witness with a whether the trial properly court plain- allowed the tiff to expert cross-examine a defense with treatise, an alleged learned and whether the trial court properly excluded depo- the sition of a expert defense witness. The Court of Appeals held that the trial court committed reversible error on these four issues, reversed the jury’s verdict in favor plaintiff, and remanded for a new trial. The intermediate court not to chose review remaining numerous issues raised by parties. carefully reviewing

After the record and 1) authority, we conclude: that the trial granting court erred in plaintiff eight peremptory challenges but the error did not affect the outcome or prejudice the 2) justice, administration of that the trial court did not deny- abuse its discretion in ing a motion for a mistrial plain- after the tiff had an expert cross-examined witness Gary K. Smith and Phillip Camp- C. M. 3) statement, prior with a the trial bell, Tennessee, Memphis, Appel- court allowing plaintiff did not err in lant, Sherry Hunter. expert defense witness cross-examine Davies, Jr., Reynolds Davies, 4) E. treatise, Ed R. alleged with an learned Warliсk, Nashville, and Daniel D. Tennes- the trial court did not abuse its discre- 1995, Hunter 27, Lawrence On October deposition excluding tion in surgery repair shoulder addition, underwent expert witness. of a defense at the Columbia South- cuff right rotator issues, in- remaining reviewing the after Nashville, Center Hills Medical ern by pretermitted cluding those were given general Hunter was Tennessee. 1) that the Appeals, we hold: the Court Ura, and Jay Michael by anesthesia jury’s remitting trial court erred by Dr. Jack performed surgery was 2) $1,500,000, by verdict awakened could not be Hunter Renfro. deny- did not abuse its discretion on No- and he died following surgery, 3) plaintiff, interest to the ing prejudgment forty-nine years He was vember awarding damages for loss age. defendants’ not violate the consortium did or Tennes- under the United States

rights alleged that her husband 4) constitutions, decedent”) court did that the trial (hereinafter see as a re- died “the finding plaintiffs i.e., that the not err hypoxia, insufficient of cerebral sult professional stan- brain, surgery established witness oxygen to his community in the in which proxi- dard of care a direct and his death was and that denying practiced comply failure mate result of Ura’s verdict on to an applicable motion for directed defendants’ standard of care with the 5) basis, not err that the trial court did anesthesiologist. hear- to introduce allowing that the trial, Sherry Hunter testified At from medical literature or say statements engi- an electrical had worked as decedent presence as to the arguments make mar- their She described neer for Nissan. 6) literature, absence of family relationship riage and their motion denying did not err in a trial court sons, Joey. Ben Hunter Ben and their two a or a continuance based for mistrial with relationship his about also testified unavailability of a defense wit- the his fаther. 7) ness, not err and that the trial court did Brookshire, Ph.D., profes- L. Michael a credit refusing to allow the defendants University, at Marshall of economics sor jury’s pay- verdict based on a against the history, work the decedent’s testified about the by the under ment received income, Nissan, family contri- position with Ac- plan. insurance decedent’s executive Dr. Brook- butions, earning capacity. and Ap- of cordingly, we reverse the Court net lost that the decedent’s shire testified jury’s the peals’ judgment and reinstate $5,200,000when cal- was earning capacity plaintiff. verdict favor of the seventy- of expectancy his life culated with the further testified that years. He

seven BACKGROUND capacity was earning lost net decedent’s ex- $2,755,125 on his work-life when based 1996, Sherry Hunter October years. pectancy of 63.4 against Dr. complaint filed a (“plaintiff’) Witt, M.D., and Nashville Anesthesia a board-certi- Jay Michael Ura T. Dr. William (“defendants”), $15,000,000 that he re- seeking anesthesiologist, testified Service fied husband, deposi- records and wrongful death of her viewed the treatment, surgery, was la- to the complaint pertaining Hunter. The tions Lawrence He conclud- of the decedent. autopsy loss of consortium and amended to add ter was the result death two minor ed that the decedent’s and her claims for to his brain supply blood briefly inadequate is summa- children. The evidence and that the death surgery rized below. and foreseeable of Dr. numerous occasions and constituted “a direct result comply failure to from Ura’s standard dramatic deviation the standard of applicable anesthesiologist of care to an emphasized care.” Dr. Witt that Dr. Ura Nashville, action, Tennessee. any to take as failed corrective such anesthesia, decreasing adding level of explained Dr. decedent Witt fluids, compressing patient’s lower operated had been on in a “semi-recum- body, lowering patient’s head. “very position patient bent” and that a is any susceptible type injury to this time Balko, Gregory patholo- Dr. Michael the head is elevated the heart.” Dr. above gist professor pathology of forensic at “absolutely Witt testified that it is critical” Cincinnati, University testified gravity to consider the effect of to make he examined the decedent’s brain after the patient’s receiving sure that a brain is an had autopsy. He determined there adequate supply “perfusion and that blood supply been an insufficient of blood to the probably the brain is the most funda- brain, i.e., hypoxic an “acute event.” Dr. thing anesthesiologist respon- mental is develop- Balko testified that there was no sible for.” abnormality mental the decedent’s brain and that the two internal carotid arteries

Dr. described a basic formula for Witt leading two vertebral arteries using patient’s pressure, mean arterial “Circle of Willis” at the base of brain by a pressure taken blood cuff at heart normal and intact.2 were level, perfusion pres- to measure cerebral adjusted gravity during sure as Obermier, an anesthesiolo- Steven surgery. simply, an anesthesiolo- Stated gist, by videotaped deposition testified gist estimates the distance in inches of the he an interscalene block to administered heart, patient’s multiplies head above the right the decedent’s shoulder before two, that number subtracts “no idea” as to surgery. Although he had total mean pressure from the arterial mea- death, the cause of testified Obermier patient’s sured heart.1 Dr. Witt pressure that a loss of perfusion cerebral that a normal patient’s said inter-cranial could the outcome. Dr. Obermier explain from mean pressure is also subtracted stated that whether there is a difference of pressure. arterial (as pressure blood at heart level measured arm) Witt, According by pressure upper to Dr. the medical rec- a blood cuff on the position on the upon “depends ords revealed that Dr. Ura relied the and the brain pressure patient.” Although decedent’s mean arterial taken at Dr. Obermier formula, specific not familiar with the the level of the heart and did not make was a mean arterial adjust gravity. patient’s conversions to for he stated that these Moreover, at the heart could be converted to pressure Dr. Witt testified that when pressure. He adjusted gravity, perfusion the cere- cerebral the effect measure pres- to believed one would need to know the perfusion pressure dropped bral levels vein, arm, jugular at the the internal acceptable” that were “not close to on sure multiplied also that the is flow to the brain. Dr. Witt had testified 1. Dr. Witt said distance by pressure two to convert the to millimeters autopsy the records revealed that the that mercury. organs and that decedent’s vital were normal and verte- the decedent's two carotid arteries explained Witt had that the Circle of 2. Dr. leading the Circle of Willis at bral arteries Willis located at the base of an individual's is were normal. the base of the brain governing is a mechanism “auto- brain and regulation,” process balancing blood or the fluid, stan- complied believed that he the brain. spinal the cerebral and anesthesiologists care applicable he had dard of opin- Dr. testified that no Obermier Tennessee, Nashville, and that Dr. аcts omis- ion as to whether Ura’s his was related to actions Hunter’s death not sions caused Lawrence death. omissions. Head, Hugh anesthesiologist, Dr. an tes- that Although that Dr. conceded by videotaped deposition

tified he con- Ura perfusion,” he duty was to “assure cerebral sulted with Dr. Ura when decedent that not monitor cerebral surgery. could not awakened after testified he does be from pressure separately blood perfusion Dr. Head out the interscalene block ruled surgery, Dr. During the Ura happened” pressure. but was “not sure what to cause reading a with an pressure the death. He testified the mean took blood every pressure high upper be arm cuff two one-half kept arterial must every enough pa- signs when a minutes and vital five perfuse the brain recorded minutes. dece- during tient’s head is above the heart sur- Dr. Ura believed gery. pressure, Dr. dent’s blood as measured although Head stated cuff, pressure upper cuff on a level arm was patient’s upper blood heart with the perfusion patient’s arm does measure a mean sufficient maintain cerebral not brain, surgery. an pressure adequate pressure throughout arterial Dr. Ura pressure measuring patient’s mean arterial at the testified that cere- cuff “will require cra- perfuse perfusion pressure the brain.” Dr. Head testified bral would perfusion pressure not nial devices that were not re- monitoring cerebral is by measured standard care. during surgery, quired applicable he be- measuring perfusion lieved that cerebral by formula Dr. Ura did not know of a pressure require placing would interior arterial pres- which to the mean convert monitoring line the brain. perfusion at heart to cerebral sure level Finally, Roy Renfro, an or- believe thеre was a pressure. James He did not thopedic by testified in the blood surgeon, videotaped “significant pres- difference” deposition performed by that he the decedent surgery sure maintained positioning surgery pressure while the was in a needed to decedent and the forty-five degree angle. device at a Dr. maintain He did perfusion. cerebral also well, thought surgery gravity signifi- Renfro not think the went effect cant, he explanation patient placed had no for the death. even is in an where Testing surgery. angled position during revealed the decedent’s elec- trolytes, oxygen, the numbers gases, “accept” blood and EKG Ura did used calculating had been and showed un- Dr. formula cere- nothing normal Witt adjusted autopsy perfusion usual. showed that pressure the dece- bral Moreover, Dr. Ura organs gravity. dent’s vital were normal. effect of stat- other pressure a lack of that even if the mean arterial Dr. Renfro stated that ventilation ed adjusted measured heart level was or cerebral which were under perfusion, auto-regulation Ura, gravity, control Dr. to be the for the decedent’s “seem[ed] the of normal ce- process most of these would have maintained likely explanation events.” perfusion. rebral plaintiffs proof, After close of the the Eichorn, Ura, a an- Jay a an- Dr. John board-certified Michael board-certified esthesiologist, he on behalf of the testified that had “no testified esthesiologist, why Although agreed he that knowledge” definite of the decedent defendants. during oxygen surgery lack of the brain surgery. failed to after the He to awaken during surgery cuff explanation” normally was the “most reasonable for arm reflects death, the decedent’s Dr. Eichorn believed perfusion prеssure. cerebral He did the decedent’s carotid arteries were gravitational believe that signif- effects are compressed by occluded or unforeseeable enough compromise icant the flow stated, “external forces.” Dr. Eichorn for patient’s to a head. Dr. Eichorn blood instance, that an elongat- the decedent had believed that the risks of performing sur- styloid process may ed have com- in a gery position head-elevated were “ov- pressed or occluded the flow of in blood erplayed” “over-emphasized” and that artery manip- the left carotid and that the only way perfu- the to measure cerebral right ulation of the shoulder decedent’s pressure “precision” sion is to use an during may surgery the have caused his interior cranial monitor. enough head to tilt or turn far to the left trial, Following the awarded compression. to cause the occlusion or verdict for the in the amount of may Eichorn also stated thát there have $43,950 $11,360.64 expenses, artery blockage right been carotid $5,800,000 expenses, funeral for com- to a palpable due mass the decedent’s pensatory damages. The trial court later injection neck from the of the interscalene for overruled the defendants’ motion a new block. trial suggested but a remittitur Dr. Eichorn conceded that he did not $1,500,000. think of the occlusion theories when he appealed The defendants to the Court first examined medical records and the. Appeals, raising eighteen issues. The depositions in of 1996. He first June turn, plaintiff, argued thought theory in December of 1998 jury’s remitting court had erred in after for Dr. him an counsel Ura sent elongated styl- denying prejudgment article on an verdict and in inter- the effects of process. oid Dr. Eichorn stated Appeals est. The Court of concluded on” light go article caused “the because the trial court committed reversible error autopsy had revealed that the dece- in granting plaintiff eight peremptory styloid larger right left was than his dent’s four, allowing challenges instead conceded, however, styloid. Dr. Eichorn expert cross-examine defense that there no that the dece- evidence and a prior witness with a statement had turned or tilted to the left dent’s neck treatise, excluding deposi- learned surgery and that there was no tion of a defense witness. The of an inflammation from the in- evidence pretermitted remaining issues terscalene block.3 He also conceded that and remanded for a new trial. findings indicated that the pathology granted plaintiffs application We ar- of Willis and carotid decedent’s Circle permission appeal. acknowledged teries were normal. He publications report- that he knew of no ANALYSIS ed cases that similar to his “carotid were Peremptory Challenges artery theory. occlusion” first address whether the Court We will Dr. Eichorn testified that a normal Appeals correctly held that pressure upper blood measured with during surgery deposition on at least three occasions 3. Dr. Renfro testified ' that, occasion, decedent's head was in a neutral that ‍​‌‌​​‌‌‌​‌‌​‌​​​​‌‌​​​‌​​​‌‌​​‌‌‌​​‌​‌‌‌​​‌​​‌‌​‍his head was not on each - position during surgery. Dr. Ura also turned or tilted. testified that he checked the decedent’s head

695 challenges shall be the total grant- purposes, error in court committed reversible (8), provided. eight as herein chal- ing plaintiff eight peremptory 22-3-105(b). jury lenges during selection. §Ann. Tenn.Code Ap with the Court agree We in a plaintiff party The concedes that language of рlain peals’ conclusion peremptory civil trial is entitled to four Annotated section 22-3- Tennessee Code challenges pursuant to Tennessee Code 105(a) plaintiff peremptory four allows (1994) but ar- Annotated section 22-3-105 in a action. See Per jury challenges civil gues properly that the trial court allowed Co., 823, Gaylord rin v. Entm’t peremptory challenges an additional four (Tenn.2003) (courts apply must claims based on the loss of consortium In statutory language). plain meaning of the two minor filed on behalf decedent’s deed, statutory language upon there is no plaintiff argues any also sons. The may plaintiff that a re which to conclude error committed the trial court did peremptory four chal ceive more than prejudice affect the outcome or the admin- lenges wrongful in a death action based justice. istration attendant loss of consortium claims. 22-3-105(a)-(b). §§ Ann. TenmCode hand, On the other the defendants as- Moreover, wrongful held that a we have plain sert that the trial court violated the single cause of action: death action is a statutory language of Tennessee Code An- dispute that the stat parties do not by allowing the notated section 22-3-105 wrong an action for the permitting utes plaintiff eight peremptory challenges dur- right ful another create “no death of argue ing selection. The defendants independently of existing] action Appeals properly the Court of held have had had which the deceased would prejudicial that the error ad- to the liv Although survived.” she] [he justice ministration of a new required may seek ing of the action beneficiaries trial. losses in recovery a limited for their own decedent, of the addition to those begin We our review of this issue with itself remains one that is right оf action Tennessee Code Annotated section 22-3- entire, point In “single, and indivisible.” “[ejither 105(a), provides party which fact, therefore, can be but “[t]here (4) may challenge to a civil action four wrongful one cause of action jurors assigning any without cause.” The death of another.” statute further states: 197, 206-07 Eyrich, Kline v. S.W.3d (1) In more than one the event there is added) (citations (Tenn.2002) (emphasis (1) plaintiff party or more party than omitted). there was Accordingly, because (4) action, defendant in a civil four addi- case, in this only party plaintiff one challenges tional shall allowed to such be allowing trial court erred case; or sides of the and the trial side challenges. eight peremptory court shall in its discretion divide the whether must next determine We challenges number of be- aggregate of Tennessee Code trial court’s violation side parties tween the on the same 22-3-105(a) required a Annotated section (8) eight chal- which shall not exceed 44 Tenn. Hays, new trial. Blackburn side, lenges regardless (1867), for a this Court remanded (2) parties. when concluding number of Even two trial after new more allowing erred in or more cases are consolidated for 696

than peremptory challenges guards judicial the two process protects and then statutory allowed under law. That justice,” of administration we conclud- decision, however, which was on based ed that there nowas reversible error be- predecessor to Tennessee Code Annotated cause the defendant failed to show that the 22-3-105, analyze section did not whether unfair, jury that he was denied his was error was harmful to the court’s cause, right challenge jurors for or that jus- defendant or to the administration of he statutorily- was the use denied result, tice. Id. As a Blackburn is of peremptory mandated number of chal- in resolving limited use this case. lenges. Id. Inc., In Tuggle Allright v. Parking Sys., In considering principles, these we first 105, (Tenn.1996), 922 107 S.W.2d emphasize showing that there was no Court concluded that the trial court erred the defendants suffered harm actual in granting than the fewer prejudice as a result of the trial court’s peremptory challenges four allowed Indeed, Blackburn, ruling. contrary to Tennessee Code Annotated section 22-3- apparent majority required of courts have emphasized pre We that the rules a showing party of actual harm when a has scribing jury selection procedures insured received an excessive perempto- number of “uniformity, impartiality, and fairness in ry challenges. Supreme As the Alaska

jury selection.” Id. at 108. We held that Court has observed: “was denied the use of his authority in weight The numerical statutorily mandated perempto number of supports judg- civil cases the rule that a ry challenges” and that the “denial of that ment will not.be reversed for error in right, designed which safeguard allowing peremptory one or more chal- justice, preju administration of constitutes lenges provided by in excess of that judicial dice process requires statute, complaining party unless the Id.; see also reversal.” Hea Crawford per- shows that he has exhausted his berg, 611, 709 S.W.2d 613 (Tenn.Ct.App. emptory challenges and has suffered 1986) (new required trial was where the injury material from the action of .the plaintiffs were denied full number of court, and that as a result thereof one or peremptory jury challenges). objectionable jurors more on the sat Coleman, 455, In State v. case, equally cogent or for some other (Tenn.1993), however, this Court held reasons. the trial court’s failure to comply with al., 745, v. Hughes, Bohna et 828 P.2d required jury selection prоcedures did not (Alaska 1992) (citations omitted); see also case, require a trial. In that new trial Mack, Praus ex rel. Praus v. 626 N.W.2d eighteen jurors allowed selection of (N.D.2001) 239, (concurring 255-56 opin- dire, required for voir instead of the twelve ion).4 Procedure, by the Rules of Criminal case, In this did not the defendants parties then allowed the to exercise chal- object to ruling per court’s lenges cause and the maximum number object peremptory challenges. Although emptory challenges Id. did not jurors compliance competency we cautioned that who were prescribing empaneled. plaintiff, rules selection “safe- Like the the defen- Jacobi, 3(a) (1964). Allowing § 4. See also G.R. Ex- A.L.R.2d Effect Peremptory Challenges, cessive Number as a defense his role had described chal- ness eight peremptory received dants case. The in an unrelated expert five. The they of which exercised lenges, was jurors no who ruled that the cross-examination have identified or excused were was not war- have been retained that a mistrial improper would but ruling. Accord- it not for the trial court’s ranted.

ingly, showing has been no there following reveals that The record actually preju- harmed or defendants were during the cross-exami- exchange occurred ruling. diced the trial court’s Eichorn: nation of Dr. addition, disagree In we with the Court role in your it as Q. you perceive Do prej- that the trial court’s error Appeals a for the de- in case participating justice. administration of Un- udiced the fense, this, it is like with issues party in neither was denied Tuggle, like you create a the- upon incumbent statutorily-mandated per- number of ory of defense. challenges Tennessee Code emptory under A. No. 22-3-105(a) (b), Annotated section Q. inappropriate, That be would party given neither was than the fewer it? wouldn’t chal- required peremptory number potentially possible. A And Indeed, received lenges. parties both eight peremptory challenges. Although your be Q. you Do consider it role to uniformity in maintaining party selection for whom an advocate concern, procedures important is an testifying? you’re prejudice concern alone does not the ad- A. No. justice in ministration of a case where no Q. inappropriate, That be would right specific been denied a to a party has wouldn’t it? procedure remedy, party no has suf- A. Correct. harm, potential fered even the and no party has that harm caused to shown this, and Q. me take it like Now let justice. the administration See Cole- specific. more make it a little bit man, Bohna, 458; see also S.W.2d testified a case before You’ve 828 P.2d at 762.5 witness you expert were the where sum, although the trial court erred anesthesiologist for an where granting plaintiff eight peremptory pressure got too low and blood not harm the challenges, error did died, you. haven’t patient’s brain justice not result administration did it’s specifically, I recall but A. don’t in actual harm to the defendants. certainly possible. Examination: Prior Statement Cross if I Well, me see Q. going we’re to—let you Have ever be- help you. can next address whether Court We fore, Eichorn, serving correctly held that the trial court Appeals role, serving when type of a motion for a mistrial denying erred in for an anesthesiolo- expert witness cross-examined de- after came witness, Eichorn, patient sued because a gist, John fense surgery brain dead because the wit- out of statement which prior is incon- point. the extent that Blackburn predecessor To 5. Because Blackburn involved however, today, it is with our decision Tennessee Code Annotated section sistent statute to 22-3-105, squarely on overruled. that decision is not pressure, low blood said to the Prior Inconsistent Statements lawyer you, defense who hired The trial may of a witness be big problems ‘There are with what impeached prior with a written or oral did, your anesthesiologist but I will by statement made the witness. Tenn. R. help you theory create a to defend 613; Cohen, al., Evid see Neil P. et Ten- case, and short hiring an (4th § nessee Law Evidence 6.13 ed. outright prostitute, I’m you the best ’ 2000) [“Cohen, et a al”]. When witness is are going you Have ever find? examined about a written or oral state- said that? ment, “the statement need not be shown objected, After the defense Dr. Eichorn nor its contents disclosed to the witness at denied that he made the statement. time, but on request same shall be jury-out a hearing, counsel for the shown or to opposing disclosed counsel.” plaintiff proffered a letter in which a law- 613(a). Tenn. R. Evid. Extrinsic evidence yer attributed the statement to Dr. Eic- prior of a inconsistent statement “is not horn in an unrelated argued case and admissible unless and until the witness is impeached witness could be with the opportunity afforded an to explain deny prior inconsistent statement and with evi- opposite party same and the is afford- dence of his bias in favor of the defen- opportunity ed an to interrogate the wit- dants. The argued that there thereon, justice ness or the interests of was no upon factual basis which to find 613(b). otherwise require.” Tenn. R. Evid. that Dr. Eichorn had made the statement.6 The trial court concluded that the state- A prior statement being impeach used to ment was not to impeach admissible a witness “must be inconsistent with the prior Eichorn as a inconsistent statement Cohen, al., witness’s trial et testimony.” under Rule 613 of the Tennessee Rules of 613(b) § at 6-134. Although 6.13[3] Rule Evidence probative because its value was “inconsistent,” not does define a in- prior substantially outweighed by prejudicial its consistent by statement made a witness effect. The trial court also found that the tendency must “a have reasonable to dis- prior statement could not be used to show credit the testimony of the witness.” Co- Eichorn’s bias favor of the defen- hen, al., § et at 6-133 (quoting 6.13[3] dants under Rule 616 of the Tennessee Graham, Michael H. 1 Handbook Feder- Rules of Evidence. The trial court’s offer (4th ed.1996)). al Evidence 882 The trial to instruct disregard ques- may court prior exclude evidence of the tion was declined the defendants. The probative inconsistent statement if its val- trial court denied the defendants’ later mo- substantially ue is outweighed by the dan- tion for a mistrial. ger prejudice, of unfair confusion of the Appeals issues, Court of held that there misleading jury, or a risk of was no reasonable factual basis for the delay. undue R. Tenn. Evid. 403. question and that the cross-examination of view,

Dr. Eichorn with prior statement was In our the trial court did not reversible error under Rule 613. ruling abuse its discretion in objection 6. The properly gov- defendants’ was based on based on Rule which 608(b), statements, Rule prior Tennessee of Evidence which erns witness's 616, and Rule governs admissibility prior governs possible of witness's which a witness's bias. review, therefore, impeachment. Although conduct for encompasses the trial Our the trial 608(b), ruling rulings court also mentioned Rule its under Rules 613 and 616. view, court did not In our prior statement plaintiff could use ruling abuse its discretion impeachment for attributed to Dr. Eichorn prior use the statement plaintiff could not Al- inconsistent statement. prior impeachment to Dr. Eichorn attributed argu- plaintiff made a credible though the above, the of bias. As noted as evidence incon- prior ment that the statement was alleged prior trial court found testimony that Dr. Eichorn’s sistent with attrib statement was a “characterization” an witness does not his role as lawyer in by Dr. Eichorn a an uted to theory a of defense or creating include found court also unrelated case. trial advocate, the trial court was acting as statement, alleg was prior which reliability proba- and concerned with the involving different edly in a case made statement. alleged prior tive value of the defendants, and different parties, different Indeed, that the trial court found in insurers, probative value did not have made was a “characterization” statement the de showing that Dr. Eichorn favored by lawyer a in an unrelated case was in this or the defendants’ insurer fendants by prior not a inconsistent statement made Similarly, the trial court indicated case. addition, Dr. Eichorn. In the trial court statement alleged prior probative concluded that the value of the demonstrating in value probative minimal alleged prior substantially statement was in Dr. bias favor of the defense Eichorn’s outweighed by prejudice the risk of unfair cases, had particularly in all since he testi not to the defense. The record does dem- plaintiffs and defendants fied behalf the trial court its onstrate abused short, in other eases. the record does discretion. its not the trial court abused show discretion. Bias Mistrial Denial of

Rule 616 of the Tennessee Rules of Evi- is a grant a mistrial Whether party may dence states that offer evi- “[a] left to the discretion decision by cross-examination, dence extrinsic evi- 239, 117 Saylor, court. S.W.3d State dence, both, that a witness is biased (Tenn.2003); McCullough v. 250 see alsо prejudiced against party favor of or a City Emergency Physicians, Johnson examples of another witness.” Common P.C., (Tenn.Ct.App. S.W.3d prejudice promises bias or include of le- 2002). view, In our the trial court did witness, niency made to a threats made refusing grant abuse its discretion witness, a against personal witness’s motion for a mistrial based the defendants’ litigation, stake in the outcome of the alleged Dr. Eichorn’s on the reference to pending settlement or settlement witness’s prior statement for several reasons.7 litigation, party with a involved relationship party First, to a in the after the witness’s we note lawsuit, Eichorn de- testifying, objected question, a witness’s motives for prob- jury’s that he made presence a witness’s relevant mental health nied Second, al., lems, animosity. prior and racial Cohen et statement. to disre-

§ court offered instruct 6.16[4]. failed to show implicitly reiterated that the defendants 7. The trial court denied the defen- denying the de- by continuing grounds for a mistrial when dants’ motion mistrial on this ruling motion for a new trial after on the use of the fendants' with the trial ground. alleged prior statement. The trial court later gard improper question, but defen- identified established to be reliable as (cid:127) required by dants declined the trial court’s Rule offer of Third, corrective action. the trial court’s The record reveals that the following ruling prevented asking from exchanges occurred the plaintiffs questions additional alleged based on the cross-examination of Dr. Eichorn: prior using or from statement extrinsic Q. you Let me see if agree with this result, single improper evidence. As a concept: Hypotension from any question must be viewed the context of may produce cause cerebral or spi- testimony, Eichorn’s entire which con- Hypotension nal сord inschemia. pages transcript sisted of over 250 may positioning be associated with questions hundreds of on both direct and usually and is caused venous cross-examination. Dr. Eichorn’s creden- is, pooling; sitting position, tials, background, experience, educational return, or decreased venous as in a in happened theories as what this prone position with increased intra- fully presented jury case were pressure. abdominal And that sec- argued by later counsel for both sides part ond we did not in that have Accordingly, summation. the trial court case, did we? did not in denying abuse its discretion A. Correct. solely motion for a mistrial on a based alleged reference to prior an statement by

that was denied Dr. Eichom.8 Q. may Hypotension be associated with usually positioning and is caused Cross-Examination: Learned Treatise pooling, e.g., sitting posi- venous spinal tion. When the head and next We address whether . cord are elevated the level of above Appeals correctly Court of held that the heart, pressure blood should be trial court erred in allowing plaintiff to referenced to head level ensure cross-examine Dr. Eichorn with a learned pressure that monitored reflects identifying treatise ‍​‌‌​​‌‌‌​‌‌​‌​​​​‌‌​​​‌​​​‌‌​​‌‌‌​​‌​‌‌‌​​‌​​‌‌​‍without first the trea pressure. you agree Do perfusion establishing tise and treatise be disagree with that? R. reliable. See Tenn. Evid. 618. plaintiff argues the Court of Q. you Are familiar the Manual with Appeals holding erred in that the cross- Complications in Anesthesia? improper examination was because there showing was no that a learned treatise was them, A. or three There are two being challenging used in Dr. Eichorn’s which one? opinions as to the cause of Q. How about Michael Mahla?

the decedent’s death. The defendants ar- Say again. A. gue Appeals the Court of properly Q. Mahla. M-A-H-L-A? concluded that the cross-examination re- I I upon lied a learned treatise that was not A. don’t believe have that book. Moreover, Similarly, reject we related about the statement. con- defendants’ tioned assertion, allowing issue that the trial court erred in trary to the defendants' to "ambush” Dr. Eichom with the plaintiff's court found that counsel had a noted; prior statement. As Rule 613 does not good attempting pursue faith basis for require prior the witness be shown issue. being ques- inconsistent statement before must understand —and your library,

Q. got You’ve those that con- needs to understand —that you? don’t in the anesthe- cept generated I know. possible. A. It’s don’t literature hav- teaching and siology Q. youDo consider those to be reliable patients sitting bolt ing to do with texts, Complications Anesthesia? sitting In that kind of upright.... your I nature of A. understand the state- yes that’s valid position, question. I don’t choose to charac- type of sur- Applied to ment. any publication terize textbook that we’re patient that this had gery because, reliable, authoritative or no, today, it doesn’t talking about frankly, they’re just words. apply. objected ground counsel on the Defense of Evi- the Tennessee Rules Rule 618 of rehable, not shown to be that the text was im- requirements for dence contains the the cross-exami- but the trial court allowed with a learned peaching expert an witness Although to continue. the Mahla nation treatise: mentioned, again transcript text is to the attention of To the extent called following: shows the upon cross-examina- witness Q. you agree if this. Let me see by the witness upon tion or relied patients po- For a head elevated examination, contained statements direct sition, the zero refer- appropriate treatises, periodicals, or published the pressure ence for blood is brain subject history, medi- on a pamphlets meatus, the at the external art, cine, science or established or other heart. Failure to use the brain as testimony authority by the as a reliable reference, sitting the zero after witness, by other or admission of patient up, will lead to an overesti- notice, testimony, by judicial or expert perfusion pres- mation of cerebral wit- impeach expert may be used you agree disagree Do or sure. credibility may not be re- ness’s but with that? evidence. ceived as substantive very specific A. In circum- selected impeach party Rule 618 allows stances, I would that. A agree with expert’s by testing expert witness craniotomy sitting posterior fossa understanding topic of a knowledge and This would fall under that rubric. 6.18[2], al., § et When issue. Cohen talking type procedure we’re satisfied, are of Rule 618 requirements today not. about would using this im- approach for most common to read technique is for counsel

peachment treatise, expert ask the portion of a Q. quite is hypotension Accidental agrees he or she with whether compli- witness probably frequent the most treatise, the treatise with the compare It’s sitting position. cation of the §at response. 6.18[2][b]. Id. expert’s detection presence requires rapid significant if prompt treatment we first considering principles, these In hypoxia is to be avoided. cerebral entirely the record is not emphasize that disagree? Agree noted, the defen- As clear on this issue. initially objected on the basis In dants Again, A. same answer. selected shown to be circumstances, treatise was not you if used the Mahla because Eic- or authoritative. When passage rehable exact words—and (or identify this treatise you horn declined ‘sitting position,’ the words used Hays’ Deposition textbook) Exclusion of Dr. indeed, authoritative, no any as on the Mahla questions were asked based next address We whether treatise, shown to be nor was the treatise Appeals properly Court of concluded any way. or used in physically present depo in excluding the trial court erred the trial court overruled the defen- When Hays, a testimony sition of Dr. Michael W. objection by allowing dants’ the cross-ex- expert defense witness. continue, asked plaintiff amination to disagree agree Dr. Eichorn to plaintiff, argues that the trial mentioning -principles several without testimony Hays’ excluded Dr. af- properly any Mahla treatise or other learned trea- speculative it on the finding ter that was tise, just had done plaintiff as the before death. issue of what caused the decedent’s was mentioned. The the Mahla treatise The defendants maintain that Court the. at trial and maintains on plaintiff asserted Appeals correctly reversed the trial court’s appeal questions that these were not read ruling Hays’ testimony pre- because Dr. treatise, rather, specific from a learned but alternative causes” of the “possible sented testimony were based on the and evidence death. decedent’s Indeed, already presented at trial. notes that Dr. Eichorn was not filed The record shows compare testimony his to another asked deposition a motion to exclude the testimo- why explain source and was not asked to for the de- ny of three -witnesses specif- differed from another artery fense who discussed the “cаrotid ic source. occlusion” as the cause of the decedent’s that there was re- presume We cannot Hays, Dr. Michael death this case: on the record versible error based before Wright, Ballard and Dr. Eichorn. objected After the us. Hays, motion to Dr. granting the treatise, that mention of the Mahla treatise Hays that Dr. made nu- trial court found Moreover, again mentioned. was never being a merous references to occlusion any not make further the defendants did in and “possible” cause of death this case objections did specific questioning, to the overwhelming weight concluded that “the proof, not make an offer of and did ask testimony of that he be- indicate[d] his- findings factual as the trial court to make theory only possibility.”9 is lieves this being a learned treatise was whether emphasized that when Dr. The trial court subsequent cross-examina- used a loss of blood Hays was asked whether short, presume tion. In cannot that a we cause of death to a reasonable flow was the being learned treatise was used violation certainty, replied: he degree of medical solely ques- on how the Rule 618 based phrased. tions were [Tjhere information that seems be possibly that could support would erred Accordingly, Appeals the Court artery. had a on the carotid He impinge that the trial court commit- concluding could opposite on the side which block in allowing error the cross- ted reversible artery through blood flow of Dr. Eichorn. decrease examination contrast, an evi- testimony the trial court later held Hays’ was ruled in- In 9. Because Dr. testimony being speculative, hearing dentiary to assess the admissible testimony did not have to court noted that the Wright and and Eichorn under McDaniel Drs. Transp. CSX be evaluated under McDaniel v. to the "ca- that their concluded Inc., (Tenn.1997), gov- which 955 S.W.2d theory artery was admissible. rotid occlusion” admissibility of scientific evidence. erns the Indeed, function our way possibility. on mere in a positioned then he could be the tidal whether only to determine is through slightly decrease flow that could excluding its discretion court abused arteries. the vertebral our substitute testimony and not to Hays’ Dr. emphasized trial court also The McDan- court. for that of the trial view following statements: iel, at 263-64. Q: your opinion, is [occlusion] In support addition, does not In the record as to the out- probable explanation and the holding, Appeals’ the Court come? view, trial court’s exclu- dissent’s versus— A: Probable testimony affected the Hays’ Dr. sion of Q: Yes. trial court con- the trial. The result of possible. A: It is Hays Dr. testimony of trasted the Eichorn, conducted Wright Drs. hearing, and ruled that the testi- additional Q: compromise on the flow on the The Wright and Eichorn was mony of Drs. left, say, possibility? you is a great testified admissible. Dr. Eichorn yes. possible, A: It’s artery occlusion” the “carotid detail about Q: right compromise of flow the at trial. of the defendants theory on behalf you possibility? characterize as theory as to alternative The defendants’ Possibility. A: fully presented death was cause you Q: the vertebráis Compromising Accordingly, given the jury. to the argued possibility? characterized as a consideration, full detailed trial court’s A: That’s correct. other findings, and admission of Q: Now, issue, you equate possibili- do three conclude that testimony on this we that that’s probable

ties to make it discretion the trial court did not abuse its happen you or are fact what did trial court’s exclusion of and that the just saying they’re all three Hays’ deposition did not affect the result my expla- it possibilities and is best of the trial. I

nation can offer? conclusion,we necessar- reaching our A: I think the latter. Hays’ testimo- ily reject the view that “possi- of a ny admissible as evidence admissibility, Determining the theory plaintiffs ble” alternative relevance, competency and qualifications, Assocs., Anesthesiology under Sakler testimony is left to the sound expert of P.S.C., (Ky.Ct.App.2001). 210 trial court. McDan discretion of the See Sakler, part: stated in In the court iel, Here, the trial 263. S.W.2d in medical conclude that defendants We fully Hays’ deposi court considered may actions introduce ex- malpractice tion, Hays’ theory that Dr. as to found ex- testimony plaintiffs to rebut a pert speculative, and the cause of death was in terms testimony couched pert witness testimony that the was inadmis concluded probability,” even of “reasonable medical its con supported The trial court sible. expert witness’s though the defendant’s findings. Al clusion with detailed written of only in terms testimony is couched portions though the dissent now relies “possibility.” for its view Hays’ deposition of Dr. that re- court reasoned admissible, at 213. The totality Id. testimony was other to establish testimony quiring Hays’ supports

of of medi- degree within a reasonable theory was based causes finding court’s that his however, judicial probability unduly efficiency, cal “would tie a defen interests of rebutting plaintiffs pending and because this case has been dant’s hands 214; judicial system period case.” Id. at see also v. Eber our for substantial Wilder Cir.1992). (1st hart, 673, time, remaining 977 F.2d of elect to review the we by plaintiff issues raised both the and.the view, In our the Sakler rule is not need- defendants, pretermit- of were most which proof shifting ed to avoid burden by Appeals. ted the Court of instead, if ap- the defendants and would plied literally, allow defendants use ex- Remittitur pert testimony “possible” as to theories or argues that the trial court plaintiff The satisfying safeguards causes without reducing jury’s verdict an erred Rules 702 and 703 of the Tennessee Rules $1,500,000 amount of because the evidence evidentiary re- of Evidence. These rules supported jury’s jury’s verdict and the 1) quire a trial court to determine whether general distinguish verdict form did not testimony substantially will assist expert earning ca- damages loss awarded determining the trier of fact in a fact in damages from for loss of pacity awarded 2) issue, and whether the facts and data argue consortium. The defendants underlying testimony indicate lack a remit- correctly suggested the trial court trustworthiness. Tenn. R. Evid. accepted by plaintiff. titur that was Indeed, testimony that a trial court expert speculative would not “sub- determines is presented The estab- evidence Nothing stantially assist” the trier of fact. lishing present that the value of the dece- evidentiary in the rules or elsewhere ex- $2,755,125 earning capacity dent’s lost from these fundamental empts defendants work- using when calculated assumed evidentiary inquiries. expectancy years and was life 63.4 $5,200,000 using when calculated an as- addition, determining the admissibili- years. The expectancy sumed life of 77 relevance, ty, qualifications, competen- and expenses also that medical showed cy expert testimony is left to the discre- $43,950 expenses were and that funeral McDaniel, 955 tion of the trial court. See $11,360.64. Finally, plaintiff pre- were Adopting at 263. the Sakler rule S.W.2d testimony of the decedent’s wife sented the applied by Appeals sup- the Court of support of their loss of consor- sons ported by effectively the dissent would tium The returned a verdict claims. con- eliminate the trial court’s discretion $5,800,000. in the amount of сerning expert a defendant’s use of testi- mony. believe that the rule from Sak- We trial court found that the evidence case, in appropriate ler in this which is verdict, it noted jury’s supported specifically found the relationship was a that “there wonderful and we hold speculative, to be and Mrs. Hunter and be- between Mr. trial court did not abuse its discre- family.” The Mir. Hunter and his tween deposition. excluding Hays’ tion in way no “to trial court noted there was relationship between this fa- measure the Remaining Issues certainly sons and to Ms. ther and two or “[ejvery and that case stands primary issues Hunter” have resolved the We on its own facts.” Nonethe- per- probably for falls plaintiffs application raised in the less, a remittitur of suggesting and- could remand the appeal mission to $1,500,000, found that the the trial court Appeals of for its consid- case to the Court in this case” jury’s In the verdict was “excessive remaining eration of the issues.

705 court, adults, by a accompanied trial children almost record of the because “these are the find an adult of the correctness of presumption one is an adult and one will be court the evi years preponderance from The trial of ing, two now.” unless Thrailkill, “in 879 commented that the whole scheme otherwise.” dence is P. things, (quoting R.App. I believe loss of consortium at 841 Tenn. S.W.2d it 13(d)). evidence would me to believe lead

was excessive.” view, in the In our the evidence action, wrongful In a death trial preponderates against record pe for the - may damages receive of the verdict remittitur court’s jury’s cuniary value of decedent’s life. See $1,500,000. Although the amount Patterson, v. Thrailkill 879 S.W.2d ex found that the verdict was trial court (Tenn.1994). spouse A or child of the 841 damages for the cessive as to the awarded may alsо damages decedent receive consortium, way no loss of there is consortium, in the loss of which is included jury’s general from the verdict determine life. pecuniary value the decedent’s damages amount of were form what Baptist Hosp., Three Rivers 984 Jordan of earning capacity for the loss awarded (Tenn.1999). 593, 601-02 In Jor S.W.2d damages and amount of were award what dan, said: this Court Indeed, the for the loss of consortium. ed

Loss of consortium consists of several plaintiff introduced of loss evidence elements, encompassing only tangi- $2,755,125 and earning capacity between provided by family ble services mem- $5,200,000, de depending long the how ber, also each intangible but benefits Moreover, have worked. cedent would family member from the contin- receives portion if a of the verdict even family ued existence of members. other claims, way of consortium there is no loss attention, guid- Such benefits include jury appor to know whether and how ance, care, protection, compan- training, damages the loss of tioned consortium love, affection, ionship, cooperation, three among the claimants. spouse, of a in the ease sexual relations. Finally, although Although may 602. Id. at children “[a]dult concern the consortium expressed parents be too attenuated from their excessive the dece damages were because proffer cases to evidence of some sufficient (or nearly ‍​‌‌​​‌‌‌​‌‌​‌​​​​‌‌​​​‌​​​‌‌​​‌‌‌​​‌​‌‌‌​​‌​​‌‌​‍were dent’s children adults losses,” child “age consortium adults) hear post-trial at the time of the not, itself, preclude does and of consid- reveals children ing, the record parental damages.” eration of consortium at the years were seventeen fifteen old 601; Lindsey, Id. at see also Davidson v. holding father’s time of their death. Our (Tenn.2003). 483, 493 implicitly recognized in Jordan jury’s damages A verdict begins at the time a loss of consortium need not be reviewed for mathematical at parent lost and not the time the is Thrailkill, certainty. precision Jordan, at occurs. See S.W.2d However, practice S.W.2d (parental a child’s recognizes consortium developed to correct exces remittitur was nurture, education, guidance, ad loss of a cost requiring sive verdicts without love, vice, training, companionship). time-consuming Id. at ly and new trial. must 840; Accordingly, § trial court see also TenmCode Ann. 20-10-102 (1994). sug findings factual as to the specific review of trial court’s Our make sufficiency of the evidence when upon weight remittitur is novo gested “de 706 remittitur;

suggesting a particularly fully analyzed where issue and plaintiffs ar- general jury there is a verdict form that guments and evidence. The trial court explain does not the damage award. In expressed concern about the time that had findings, absence of such we conclude trial, elapsed prior to as well as the uncer- that the evidence in the preponder- record tainty as to the existence and amount of against ated the trial suggested court’s possible obligation. There is no indica- remittitur. tion that the trial court failed to consider the relevant factors or that the trial court Prejudgment Interest any considered of the factors dispositive. Finally, argues that the trial record, reviewing After the extensive we court also erred in refusing pre- to award cannot conclude that court abused judgment part interest as of damages Inman, its discretion. See Alexander v. in this case. The argue defendants' 689, (Tenn.1998). 974 S.W.2d 698 the trial properly pre- found that judgment interest was not appropriate be- Constitutionality Consortium Claims

cause the amount of damages was not rea- sonably ascertainable and the existence of The argue defendants that allowing obligation disputed was and contested. damages for the loss of consortium under A trial court has the discretion retrospective application of Jordan prejudgment award Myint interest. v. Baptist Three Rivers Hosp., 984 S.W.2d Co., Allstate Ins. 927 (Tenn.1999), I, violated article section (Tenn.1998). purpose The of prejudgment 20 of the Tennessee Constitution and the interest “is to fully compensate a plaintiff Fourteenth Amendment to the United loss the use of funds to which he States Constitution. plaintiff argues The entitled, legally or she penalize was not to the defendants failed to raise this a defendant wrongdoing.” Id. The that, prior issue to or the trial and trial court must consider whether event, in any there was no constitutional amount of the obligation was certain or' error. ascertainable and whether the existence of obligation disputed on reasonable This issue is resolved our decision in grounds. Id. applied The factors must be Germantown, City Hill v. S.W.3d equitably rigid requirements: and are not (Tenn.2000). Hill, expressly we held

The uncertainty of either the existence that our decision in apply Jordan was to or amount of an obligation does not “(1) retroactively to: all cases tried or mandate a prejudgment denial of inter retried after the date "of our decision in est, grant trial court’s of such (2) Jordan; to all pending cases automatically interest is not an abuse of appeal in which the issue decided Jor- discretion, provided the decision was dan appropriate was raised at an time.” equitable. otherwise certainty The Id. 240. The defendants have cited no plaintiffs many claim is but one of convincing authority rеasons or for us to nondispositive facts to consider when de reconsider or overrule our decision in Hill. is, ciding prejudgment whether interest law, as a equitable matter of under the Locality Rule circumstances.

Id. at 928. argue court erred in allowing

The record reveals that the trial court gave witness, Witt, extensive consideration to the plaintiffs expert be-

707 applicable in recognized sional care the defendant’s cause he did not know the stan- community the standard community knowledge in the or professional dard of care community that is practiced professional in or in of care in which the defendant Ura the to be to defendant’s community required by a similar as Ten- shown similar community.” LeCorps, nessee section Robinson Code Annotated 29-26- 718, (Tenn.2002). 115(a)(1). argue The defendants also that S.W.3d failing the trial in court erred direct Robinson, the plaintiffs In held that we on verdict for the defendants this basis. failed surgeon, an expert, orthopaedic The maintains that the trial court stan- professional standard establish that Dr. was properly qualified found Witt orthopaedic sur- applicable dard of care testify “locality under the so-called rule” Nashville, at geons in Tennessee. Id. refused to direct properly the verdict that he expert’s deposition The showed for the defendants. in of care Nashville believed standard reveals that the record “the same as a national standard” and did not object testimony prior to Dr. Witt’s recog- that is no differentiation “[t]here to trial instead examined Dr. locality but Witt profession nized in our of one this issue trial and then moved to opposed holding to the other.,Id. testimony. In concluding exclude his satisfy testimony that the did not Tennes- testimony Dr. Witt’s established the re- see Code Annotated section 29-26- Annotated quirements Code 115(a)(1), of Tеnnessee expert emphasized we 29-26-115(a)(l) (2000), section did the basis for his witness not “relate court observed: ... knowledge of of care the standard medical com- case, why indicate the Nashville particular obviously he’s

[I]n this to, had munity was similar and thus here, never medicine has practiced he as, times, same standard of care professional eight been six to rea- here community was familiar.” [he] with which sons medical person- [and] some some sum, 725. In we concluded al; Vanderbilt; Id. at people at he knows he to a expert reference national witness’s has been at national conferences substitute for “may standard of care just people any people old an- but —not require- evidence first establishes in esthesiologists; university po- he Annotated sec- ments Tennessee Code sition, serving on some of these 29-26-115(a)(l).” Id. at 724. committees, tion national he would have as familiarity much or more with Nash- Clarke, In Stovall v. ville as he would with other communi- (Tenn.2003), however, we held ties. witness, expert plaintiffs action, prac- specialist an internal who malpractice plain In a medicine Missouri, “recognized Tennessee Code tiff must establish the stan ticed satisfied 29-26-115(a)(1) where acceptable professional practice dard of Annotated section practiced in profession prac physician ... that the defendant the defendant Franklin, community emphasized in which tices the defen Tennessee. We that he had practices community expert dant or in a similar witness testified charts Tennes- alleged injury wrongful twenty reviewed medical time the see, malpractice § had testified in three action Tenn.Code Ann. 29- occurred.” Tennessee, 26-115(a)(l). had reviewed in- A relied cases in community therefore, “must fоrmation about the medical- upon by plaintiff, Id. More- practiced. which the defendant knowledge profes have of the standard of over, we contrasted the case Hearsay with Robin- Literature —Medical son observing that plaintiffs expert The argue defendants that the trial did rely solely on a national standard (a) court erred in allowing to of care but instead underly- “showed some introduce evidence indicating that medical ing basis for his testimony.” Id. supported literature testimony view, In our the record before us witness, (b) plaintiffs expert Witt, Dr. in- supports the trial finding court’s that Dr. troduce evidence that no medical literature competent Witt was testify under Ten supported the testimony of the defendants’ nessee Code Annotated section 29-26- witness, (c) expert Eichorn, Dr. and make 115(a)(1). Dr. Witt was board-certified arguments jury several based on anesthesiologist practiced who had in Lex existence or absence of medical literature. ington, Kentucky since 1980. Dr. Witt tes The argue the medical tified that he was involved with the Aca literature evidence was inadmissible hear- demic Program Association of Anesthesia say and that arguments were improp- Directors, which an organization was “with er. people Vanderbilt, from Lexington, from plaintiff argues The hearsay that no surrounding area.” Dr. Witt had statements were read from meeting

attended a the medical the Southern Uni literature or used as versity Department substantive evidence of Anesthesia Chairs Nashville, testimony regarding at Vanderbilt in the lack of Tennessee. Dr. medical Witt stated that he literature was non-hearsay. had been to Ac- Nashville times, six or cordingly, seven argues he knew the Chair also that no at improper Vanderbilt’s department very arguments anesthesia were made to the well, “familiar, and that he region regard. was in a al setting, general [with] kinds of care The record plaintiffs reveals that offered in Lexington [ ] well as Nash witness, Witt, expert Dr. was recalled to ville.” Dr. Witt discussed several hospi testimony rebut the defendants’ ex- tals in Nashville and stated that the stan witness, pert Dr. stating Eichorn. After professional dard of care in this case used, that “at the concentrations Desflu- approximately “would be the same as what rane virtually eliminates all of the aut- we would see at some of the hospitals oregulatory response,” responded Dr. Witt where I have been Nashville.” “yes” when if opinion asked his “sup- was Although the trial court did not have the ported in the medical literature.” When benefit of Robinson or at Stovall the time asked, “And, Dr. Witt was then in sub- trial, the record reveals that Dr. Witt stance, say,” what does it the trial court did not base on a national sustained objection. defendants’ standard of care for anesthesiologists and Thereafter, Dr. Witt was asked on four simply equate he did not his medical occasions whether “medical literature” was community in Lexington with a national “supported” “consistent with” or his testi- of care or with standard the defendants’ mony. Dr. “yes” Witt answered to these community Nashville, Tennes- questions any objection by without the de- Stovall, see. See 113 S.W.3d at 723. fendants. sum, the trial court did not in allowing err Dr. testify Witt and in denying the The record reveals that the defendants’ witness, defendants’ Eichorn, motion for a directed verdict expert testified that on this basis. the death in this case resulted from occlu- witness, Dr. unavailable Hays, crossex- sion the carotid arteries. On amination, testify Eichorn on at trial due a sudden serious was asked piece plaintiff argues occasions to one least three “cite illness. in motion for supported denying literature” not err the

medical that court did object a the opinion. The did not to or a continuance because defendants mistrial accept not the trial opted Dr. did not identi- to questions. the Eichorn defendants fy any specific proposed articles. alternatives. court’s trial, during that The record establishes view,

In our the record does Dr. told the trial court that the defendants that support argument the defendants’ he testify unavailable to because Hays was the trial court committed reversible error with and forced diagnosed had been cancer regard questions regarding with to the The undergo immediate treatments. to existence or the absence of medical litera argued Hays that Dr. was their First, above, as noted ture. the defen “key” expert their de- witness and object contemporaneously dants failed to prejudiced fense would be without his tes- asked Dr. or Dr. questions of Witt he doctor timony because was a “local” Thus, the Eichorn. defendants failed to The to from Nashville. trial court offered preserve the issue for appeal. review on an evi- videotape allow the defendants to Second, if the pre even issue had been dentiary deposition pend- the courtroom served, hearsay record the reveals that no ability trial ing Hays’ Dr. to do so. The read statements were from medical texts court also ‍​‌‌​​‌‌‌​‌‌​‌​​​​‌‌​​​‌​​​‌‌​​‌‌‌​​‌​‌‌‌​​‌​​‌‌​‍stated it would consider or articles and medical admitted as sub Hays’ physical Dr. condition whether stantive evidence. See R. Evid. Tenn. adversely depo- mind the state of affected 801(c). degree To the Dr. tes that Witt’s sition. The trial court the defen- denied timony implicitly revealed the substance of a dants’ motion for mistrial or continuance literature, i.e., the mediсal that the medical your only expert, he was I finding, “[i]f support literature was consistent think that would be different situation.” testimony, showing ive of his there was no that it was intended to truth show the grant to or a Whether a mistrial the matter asserted. questions Indeed the to continuance is left the sound discretion presence as to the or absence of literature Saylor, of the trial court. designed to elicit were the basis of the Inc., 250; Mark, Blake v. Plus 952 S.W.2d McDaniel, testimony. experts’ See (Tenn.1997). Here, the trial court at 266. S.W.2d arguments the considered defendants’

Accordingly, the defendants have failed procedures short of de proposed several the trial show court committed continuing a mistrial or the trial. claring follows, regard. reversible error It explored possibility The trial court therefore, that court did not abuse Hays’ option obtaining deposition, counsel allowing plaintiffs its discretion ultimately pursue. the defense chose not to to make references to the existence or court noted The trial that the defendants witness; absence of literature clos- not left without an were argument. ing pres contrary, the defense was able Eichorn, whom trial court ent Unavailability Expert Witness Defense very “a and a found was credible witness” Moreover, next argue “good The defendants that the trial witness for defense.” that Dr. already motion for a trial court had ruled denying court erred speculative a defense was too Hays’ deposition mistrial or continuance where testify artery “carotid Ms. Neuman occlusion” testified after taxes theory. Finally, adjustments the defendants’ motion early for the decedent’s with- already drawals, came after had pre- $722,517.84. received sented in a extensive evidence trial that In denying defendants’ for a motion had years started some seven after the trial, against jury’s credit verdict after decedent’s death. Given these circum- that it court stated had considered stances, the trial court did not abuse its the testimony of Ms. Neuman and had discretion in the motion for denying a mis- language read the Insur- Executive trial or a continuance. ance Plan. trial court found decedent deferred compen- “made income Compensation and Deferred sation to out of re- plan, which he Death Benefits Moreover, ceived a benefit.” the trial Finally, argue defendants the that court “purchased found that Nissan insur- the by allowing trial court erred plain the they ance with his benefits [and whether] by tiff to recover the total amount awarded gave them to him back is immaterial.” jury plaintiff the even the though had re Accordingly, the court did not credit $1,003,497 paid ceived a death as benefit by the amount plaintiff received the under by employer. the decedent’s The defen plan against jury’s the the verdict. argue dants that the death benefits offset by the amount awarded the begin our review of this We issue pecuniary value of the decedent’s life. The with Code Annotated Tennessee section plaintiff argues that the trial court correct 29-26-119, governs a damages which ly denied the defendants’ motion to de malpractice action: crease jury’s verdict the amount of In malpractice liability action in which emp by paid benefits the decedent’s established, damages is admitted or loyer.10 (in oth- may awarded include addition to damages by

The record that er shows elements of authorized law), by by raised this to trial prior seeking issue to actual economic losses suffered prevent from plaintiff introducing by personal the claimant reasоn of the payment injury amount of the benefit but not including, death limited to cost economic necessary evidence of actual losses. Ac- of reasonable and medical care, services, cording deposition testimony rehabilitation and custodi- Gail Neuman, care, the head of human al loss of services and resources- loss Nissan, income, only had decedent worked at Nis- earned but to the extent san had that are not or participated paid payable since 1981 and in an such costs Plan. are not or According replaced, Executive Insurance to and such losses Neuman, in- Ms. in whole or in part, by the decedent deferred a cer- indemnified ..., by tain amount income an provided employer of annual with which surance benefits, security purchased plan Nissan insurance. The social service bene- benefits, provided programs, unemployment fit participating employ- awhen died, any except the employee’s ee estate or beneficia- other source assets of an equal ries were amount claimant or the claimant’s immediate entitled fifty family purchased in times the annual deferred amount. and insurance correctly granted plaintiff emphasizes The the actual trial court credits $426,565 $722,517.84 payment taxes was and set-offs of based on life insur- received after $1,003,497. security plaintiff and not ance benefits. also notes and social

7H CONCLUSION part, privately or in individ- whole ually. reviewing carefully After the record added.) (emphasis 1) the trial authority, conclude: we Annotated sec

Because Tennessee Code eight granting court erred in derogation is of the com tion 29-26-119 but did challenges the error peremptory plaintiffs mon law rule that allowed prejudice not аffect the outcome expenses, paid by recover medical whether 2) justice, that the trial administration of not, strictly insurance or it must be con deny- its court did not abuse discretion v. Ft. Anesthesia strued. Steele Sanders plain- a mistrial ing a motion for after (Tenn.Ct. P.C., Group, S.W.2d an expert had witness tiff cross-examined Steele, App.1994). Appeals the Court 3) statement, prior with a rejected argument the defendant’s did error not commit reversible plaintiff may not introduce evidence of allowing cross-examine expenses expenses where the were alleged defense witness with paid by plan purchased an insurance 4) treatise, trial court learned and that the in part by employee part by the and the excluding discretion in did not abuse its The court that the employer. reasoned testimony of ex- deposition the a defense argument overlooked the stat defendant’s addition, reviewing In after pert witness. utory language plaintiff a allows issues, remaining including the those the expenses plain recover medical where pretermitted by Ap- the of were Court purchased tiff has insurance “in whole or 1) trial peals, we as follows: that the hold (citing §Ann. part.” in Id. Tenn.Code 29- remitting jury’s court in verdict erred the 26-119). sum, In the court concluded that 2) $1,500,000, that the court did by trial plain language the Tennessee An of Code by denying pre- not abuse its discretion “permits notated section 29-26-119 a 3) that judgment plaintiff, to the interest plaintiff expenses to introduce medical awarding of consor- damages loss plaintiff part when the has of paid the rights tium did the not violate defendants’ Steele, insurance premium.” the or con- under States Tennessee United at 282. stitutions, 4) err that the trial court did not view, In our trial court properly the finding plaintiffs expert the wit- in applied Tеnnessee Annotated Code section professional the standard ness established in denying 29-26-119 the defendants’ mo- the community care in which of in the against jury’s a credit tion for the verdict denying and in the practiced defendants payment on the by based received the on motion for directed verdict defendants’ plaintiff the under “Executive Insurance 5) basis, err that the trial court did not this trial Plan.” The court considered the lan- hear- in the to introduce allowing plan guage testimony of the and the say from medical literature statements Nissan’s head human resources. The as to arguments presence make the trial court found that the decedent had 6) literature, of medical absence plan and that the contri- contributed in a motion denying trial not err court did part butions were used in for Nissan’s a a based for mistrial or continuance Accordingly, purchase of insurance. of a wit- unavailability defense supports finding trial court’s record 7) ness, did not err and that the were not entitled to a defendants a credit to allow defendants plain refusing language credit under the Tennes- pay- on a against jury’s verdict based see Annotated section 29-26-119. Code issues, I a grant under the would nevertheless new ment received plan. decedent’s executive insurance I am trial to the defendants because of the opinion should have been Accordingly, we reverse the Court of Dr. Hays’ opinion. allowed to hear judgment jury’s and reinstate the Appeals’ plaintiff. verdict in favor of the The costs today, majority By its decision has appeal are taxed to the defendants- defending malprac- that in held Ura, M.D., appellees, Jay Michael and may only tice action a defendant offer Services, Nashville Anesthesia for which if expert medical of causation proof necessary. if execution shall issue expressed on behalf of the de- opinions fense are those held to reasonable de- BARKER, J., WILLIAM M. filed view, In gree certainty. my of medical concurring dissenting opinion, DROWOTA, III, J., which FRANK F. C. it such a conclusion is erroneous because joined. proof serves to shift the burden objectives comport does not with the BARKER, J., M. with whom WILLIAM Tennessee Rules of Evidence 702 and 703. DROWOTA, III, C.J., joins, FRANK F. dissenting concurring part, part. case, sought disagree majority’s holding I testimony deposition of Dr. introduce correctly that the trial court excluded the Hays diagnosed during because he was Hays of Dr. Michael deposition and, according trial with cancer defense as to opinion because he did not state counsel, testify person. was unable to plaintiffs injury causation of to a “reason- court, reviewing deposi- after the The certainty.” I am degree able of medical of opinions that the testimony, tion concluded testimony should have opinion the that his Hays “speculative” Dr. offered were and by jury the and that it was been heard therefore not admissible.1 for trial court to ex- reversible error the case, malpractice plain- In a medical the fully agree it. I with the clude While tiff, defendant, of bears the burden majority’s resolution of all of the other not the may I Despite and tion of what have caused this event. the conclusion of the trial court majority Hays’ opinions possibilities that Dr. were know there are a lot of and the speculative, maybes anybody the record indicates otherwise. in there. I don't think has point Specifically, Hays at one good understanding Dr. was asked a or can write down degree a of if he could state "to reasonable exactly happened they what think in this certainty hap- medical that that is what case. He had reasons to have diminished That, pened?” Hays responded, "I think I can Dr. brain. flow in various arteries to the say to that of me, "[a]ll that.” He went on state explanation provides to a reasonable of combined, I feel with medical [these factors] this outcome. responsible certainty is what is for that that fac- Hays added that the combination of Dr. Later, near the- end of his this outcome.” explanation that makes the tors was "the deposition, following exchange place: the took Finally, question the- most sense” to him. your opinion that these posed, was it Question counsel): "[I]s (by your opin- Is defense likely more than not combined causation, factors] [three about the ion about combination Dr. during case to cause this outcome?” the this these factors that combine to cause of answered, Hunter, Hays’ "Yes.” problem you that with Mr. do hold however, agree, I that on several occa- do degree opinion a reasonable of medical to testimony Hays during Dr. did state sions certainty? mean, opinion provided "possible” alter- that his (by Hays): I that is Answer Dr. Yes. plaintiff’s injury other native cause the get is that what I out of all this information is, negligence. my explana- the defendant's opinion a reasonable than that cases, during surgery perfusion pressure proof.2 In most medical tes- bral regard, the timony required is to establish both Dr. actions this and that Ura’s of care recognized standard and a devia- to with his failure take corrective along care, tion from that acceptable standard measures, applicable fell the stan- below proximately plaintiffs injury. causing the care the decedent’s dard of and resulted Med. See Sеavers Methodist Ctr. Oak held Dr. Witt testified that he death. (Tenn.1999). The Ridge, S.W.3d degree of opinions to a reasonable these defendant, contrast, by is required certainty. prove nothing. is to The defendant’s task theory of causa- plaintiffs To rebut plaintiffs so rebut evidence Witt, testimony of tion and the Dr. and may properly weigh evaluate sought deposi- to introduce the defendant plaintiffs theory evidence. supporting Hays, Dr. board-certi- tion case In this theorized Dr. practicing anesthesiologist. fied and the decedent died as a result of cerebral opinion that of Hays held an different from i.e., oxygen insufficient to the hypoxia, Hays Although agreed Dr. Witt. brain, during theo- surgery. was re- the decedent’s death caused supply that the oxygen rized the dece- brain, it was his duced blood flow was dent’s brain diminished due to the fact was opinion that this reduced blood flow surgery performed was of “a combination factors” the result in a decedent “semi-recumbent” or inclined concurring combining point one position. Dr. William Witt testified Hays fac- identified these three time. plaintiff and opinion was of the (1) abnormally as: decedent’s tors position surgery decedent’s inclined during (2) bone, elongated styloid the effects of “very him susceptible type made the interscalene block administered to injury” and it was critical to properly (3) the during operation, decedent patient an ade- monitor ensure that turning positioning of the decedent’s quate supply of oxygen reaching opin- operation.3 brain. Dr. Witt head In his testified that Dr. Ura ion, improperly possibly monitored the decedent’s cere- each of these three factors 29-26-115(a); § 2. to also Pursuant Tennessee Code Annotated sec- see Tenn.Code Ann. Bechtol, 29-26-115(a) (2000), 724 S.W.2d tion the "Medical Mal- Cardwell Act,” (Tenn. 1987). practice plaintiff the in a mal- medical practice proving case of the has the burden Although was no there evidence following: to decedent's head was turned the side (1) recognized acceptable surgery, Hays standard Dr. testified that based his he practice profession regard personal professional opinion and in this on his own thereof, any, experience. Hays specialty Dr. stated: if that the defen- practices community dant in the in which watching say experience from I would practices community at he or in a similar point head is these cases that the at some alleged injury wrongful ac- the time the or non-operative during the case turned occurred; shoulder, side, tion away from either from (2) That the acted with less than starting defendant pulling on the or with the shoulder ordinary head, to basically, or failed act with and reason- straight the neck but just able care in accordance with such stan- as I slightly turned to the left head dard; get exposure and before to more stated (3) proximate operative As a result of defendant’s I would shoulder on the side. omission, slightly negligent expect act suf- that it would be turned de- injuries quantify would I think I can fered which not otherwise the left. don’t angle anything grees of like that. have occurred. impeded blood flow to the decedent’s brain Id. at 213-14. provided The court and that they “all in provide combination following analysis: an explanation” for the death. Hays’ These possible other causes need not be disagreed with plaintiffs theory that proved with certainty ór probably more the decedent’s reduced blood flow resulted than not. To fashion such a rule would solely being placed from in an inclined unduly tie a defendant’s hands rebut- position during surgery. Instead, Dr. case, ting plaintiffs here, where as Hays’ that, opinion upon based his plaintiffs expert testifies that no other experience, medical “something else had to cause could plaintiffs inju- have caused account for this Hays outcome.” Dr. fur- ry.... accept Were we to plaintiffs ther added that “I don’t think anybody is argument that once a puts on a going to be able to know exactly what case, prima facie a defendant cannot re- happened However, to Mr. Hunter.” but it proving cause, without another Hays stated that his theory provided a resulting inequities would abound. For explanation reasonable for the decedent’s if example ninety-nine out of one hun- injury view, my death. In this testi- dred medical experts agreed'that there mony should have been admitted and the equally possible were four causes of a jury, fact, as the sole trier of allowed to A, B, injury, D, certain plain- C and weigh and consider it in reaching its ver- produces tiff the one expert who conclu- dict. sively that A states was the certain injury, cause of his defendant would be jurisdictions

Other that have addressed precluded from presenting this issue have also held that wit- any ninety-nine the other experts, testifying nesses pres- the defense can they unless testify would conclusively ent alternative theories of causation B, C, Dor was the injury. cause of couched terms of possibilities rather if all Even experts defendant’s were probabilities. than The facts of Sakler v. prepared testify any possi- Assocs., P.S.C., Anesthesiology A, B, D, ble causes C or could have 210 (Ky.Ct.App.2001), are particularly rel- equally plaintiffs caused injury, long so evant here. an expert Sakler witness as none would prepared be to state that for the defendants in a malpractice cause, onе particular other than that case testified possible several causes professed by plaintiff probably more plaintiffs that, injury, in than not caused plaintiffs injury, then opinion, one “only could talk possi- about experts defendant’s would not be able to bilities” rather than probabilities with re- testify at all as to causation. spect to causation. 50 S.W.3d at 212-13. that, Sakler,

The witness further stated because 50 214 (quoting S.W.3d at Wilder (1st aggravating Eberhart, 673, had several fac- v. 977 F.2d 676-77 Cir. 1992)). tors potentially inju- that could lead to the Several other courts have ad ry, it would be “presumptuous” to narrow dressed this issue and similarly. reasoned Wilder, causation to one factor. Id. at 212. 676-77; The See 977 F.2d at Haas v. Zaccaria, court held testimony (Fla.Dist. 1130, admissible 659 So.2d 1133 light of the fact Ensor, that it was offered in Ct.App.1995); Mitchell v. No. defendant, support of the who W2001-01683-COA-R3-CV, bore no 2002 WL proof, 2002).4 burden of plaintiff. 18, rather than the 31730908 (Tenn.Ct.App. Nov. support position 4. As further gain- provides that this is following dence in reference to ing acceptance, Jurispru- I note that proving negligence: American Through- in this case. allowing opinion to offer an majority The surmises that de Hays emphasized to introduce of other deposition, fendants evidence out his Dr. or would under possible theories causes current opinions he his on med- based Rules safeguards mine the Tennessee along own ical literature with his medical disagree. Evidence 702 and 703. I The expertise. example, For and experience by and safeguards provided Rules 702 had Hays participated Dr. testified he simply expert opinions serve to screen out on types surgical procedures theses untrustworthy scientifically based occasions, a although never in numerous invalid and data or that would not facts having outcome. He had similar one this of fact substantially assist trier de re- several medical treаtises also reviewed termining issue. See an McDaniel CSX to lating specifically pressure, blood anes- (Tenn. Inc., 257, Transp., relevant thesia and related issues to 1997) (holding properly evidence was ad Furthermore, Hays Dr. also case. had upon showing mitted it would sub history decedent’s medical reviewed the stantially jury assist the to understand the depositions plaintiffs and the medi- principles evidence and the scientific un forming an experts, prior opinion cal all to reliable). it derlying trustworthy were possible as to the causes of death. causation, Alternative theories of when sources, Hays Dr. Based these upon qualified presented by sup death was opinion was that decedent’s by ported the current state of medical or brain, to the caused reduced blood flow field, knowledge scientific relevant and that this reduced blood flow was the jury po serve educate the as to other factors that all result of “a combination of tential of the plaintiffs injury. causes happened point at one in time.” In his Presenting such evidence allows the defen factors opinion, of these three could each plaintiffs dant “test” the case and as possibly impeded flow the have blood sists the in understanding the full they and that “all in com- decedent’s brain import plaintiffs proof before as an explanation” bination provide[d] signing weight to the evidence ulti death. mately determining factual issues. Hays’ stated that each of three Rule Pursuant a witness who is possible supported causes of death were skill, qualified by “knowledge, experience, by scientific or medical literature medi- training, may testify or education” if such cal in this case. He testified that evidence “substantially will assist tri- autopsy report he had reveal- reviewed of fact er to understand the evidence or to styloid ing elongated bone decedent’s determine a fact in issue.” Tenn. R. Evid. and that medical “seemed to literature opinions 702. The expert’s or inferences support” impinge this could on the if are admissible based on facts or data “of artery. carotid doctor stated type reasonably by experts relied upon knowledge inter- from own particular in the field.” R. Tenn. Evid. block, as case, scalene administered dece- present there no dent, impede through blood flow Hays, could dispute that a board-certified Also, anesthesiologist, qualified artery. carotid the treatises practicing probably proved certainty or more Practice To the trier of be with Guide: convince alleged negligence fact that the is than not. legal injury, may Am.Jur.2d, (cita- (2004) cause of the defendant Negligence§ 441 57A possible plain- produce other causes omitted). tion injury; possible tiff's these causes need not 716

Hays supported researched theory turning a patient’s head to one side Charles H. WEBB would lessen blood flow to the Hays brain. Dr. also testified concerning the limitations of WERNER, Christian et al. medical science this area and was of the opinion that no say could Tennessee, Court of Appeals of with certainty what caused the Section, death. Eastern at Knoxville. 20, view, Sept.

In my Session. should have been allowed to Hays’ hear Dr. testimony that 28, Oct. 2004. these three possibly factors combined to Permission Appeal Denied ‍​‌‌​​‌‌‌​‌‌​‌​​​​‌‌​​​‌​​​‌‌​​‌‌‌​​‌​‌‌‌​​‌​​‌‌​‍death, cause the decedent’s that these fac- Supreme 7, Court March provided tors a reasonable alternative death, cause for his and that no one could

be certain as to the cause my of death.

view, for a trial court to exclude such injustice

evidence does an to the defendant

and is an abuse discretion. See State v.

Shirley, 243, (Tenn.1999). 6 S.W.3d I not,

am majority as the suggests, substi-

tuting my opinion for that of the trial

court. I conclude that the trial court in-

deed abused its discretion it “ap- because

plied an legal standard, incorrect

reached a decision which against log- [was]

ic or reasoning that injustice caused an party complaining.” (citing Id. State v.

Shuck, (Tenn.1997)).

Accordingly, in present I case would

hold, as did the of Appeals, Court

trial court committed reversible error in

excluding deposition testimony of Dr.

Hays and that the defendants are entitled

to a new trial.

I am authorized to state that Chief Jus- joins

tice DROWOTA inme this con-

curring and dissenting opinion.

Case Details

Case Name: Hunter v. Ura

Court Name: Tennessee Supreme Court

Date Published: Mar 29, 2005

Citation: 163 S.W.3d 686

Docket Number: M2002-02573-SC-R11-CV

Court Abbreviation: Tenn.