Diane R. Cannon Kellon and William T. Kellon v. Marsha Lee, M.D. and Semmes-Murphey Clinic ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 17, 2012 Session Heard at Memphis
DIANE R. CANNON KELLON and WILLIAM T. KELLON v. MARSHA
LEE, M.D. and SEMMES-MURPHEY CLINIC
Appeal from the Circuit Court for Shelby County
No. 97419TD Donna M. Fields, Judge
No. W2011-00195-COA-R3-CV - Filed May 21, 2012
This is a medical malpractice case wherein a patient suffered permanent neurological
impairment after delay of surgery to correct a ruptured disc in her spine. The patient sued the
doctor who treated her at a minor medical clinic, and a neurological clinic, alleging that both
failed to ensure that the patient was treated promptly. The jury found that the doctor did not
breach the standard of care, but awarded damages against the neurological clinic. The
neurological clinic moved for judgment in accordance with a motion for a directed verdict
on the ground that the patient failed to prove causation. The trial court granted the motion,
as well as a conditional motion for new trial as to the neurological clinic only. The trial court
concurred in the jury verdict in favor of the doctor. We reverse the grant of the motion for
judgment in accordance with a motion for a directed verdict and affirm the grant of a new
trial as to the neurological clinic only. The jury verdict in favor of the minor medical clinic
doctor, as concurred in by the trial court, is affirmed. Affirmed in part, reversed in part, and
remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.
William R. Bruce and Duncan E. Ragsdale, Memphis, Tennessee, for the appellants, Diane
R. Cannon Kellon and William T. Kellon.
David M. Cook and Albert G. McLean, Memphis, Tennessee, for the appellee, Marsha Lee,
M.D.
Stephen W. Vescovo and Margaret Cooper, Memphis, Tennessee, for the appellee, Semmes-
Murphey Clinic.
OPINION
I. Background
On October 19, 1997, Plaintiff/Appellant Diane Kellon awoke with severe leg and
back pain, accompanied by leg weakness. Nearly two years prior, Mrs. Kellon had been
diagnosed with lumbar disc syndrome by a physician at Defendant/Appellant Semmes-
Murphey Clinic (“SMC”). She had been prescribed pain medications, but her physician did
not recommend surgery. Over the next two years, however, Mrs. Kellon was seen by
physicians several times at Baptist Minor Medical Clinic1 due to pain allegedly caused by her
lumbar disc syndrome.
Mrs. Kellon returned to Baptist Minor Medical Clinic on the afternoon of October 19,
1997 with her husband William T. Kellon (with Mrs. Kellon, “Appellants”), where she
informed her treating physician, Defendant/Appellee Dr. Marsha Lee, of her history with
lumbar disc syndrome. Dr. Lee performed an examination, noting that Mrs. Kellon’s gait
was slow when walking into the office. Dr. Lee’s exam notes for Mrs. Kellon’s case do not
mention anything about “foot drop,” a “neurological deficit,” nor do the notes indicate
whether Dr. Lee checked Mrs. Kellon’s reflexes during the exam. Neither Dr. Lee, nor
Clinic Minor Medical, ordered an imaging study (e.g. a CT scan or MRI). However, during
the appointment, Dr. Lee called SMC for guidance and, based on a conversation with Dr.
John Robertson, who was the on-call doctor with SMC that day, Dr. Lee instructed Mrs.
Kellon to rest and to call SMC the following morning, October 20, 1997, to obtain an
appointment. In addition, Dr. Lee instructed Mrs. Kellon that, if her pain increased after
leaving Baptist Minor Medical Clinic, she should go to the emergency room.
At approximately 8:20 a.m., on October 20, 1997, Mrs. Kellon attempted to obtain an
appointment with SMC by calling its appointment desk. She spoke to a receptionist, who then
forwarded her call to another nurse. The nurse informed Mrs. Kellon that her usual doctor
had retired and that it would take approximately three weeks to get an appointment to see
another doctor. According to Mrs. Kellon, she explained that a doctor with Baptist Minor
Medical Clinic had called the on-call doctor the previous afternoon, and that the doctor had
informed her that she needed to be seen by SMC on Monday, October 20 th . The nurse took
the information from Mrs. Kellon and informed her that she would return the call. Several
hours passed with no return call from SMC. Mrs. Kellon called again around 10:30, but she
1
Baptist Memorial Hospital d/b/a Baptist Minor Medical Clinic was originally a defendant in this
case. However, the Appellants voluntarily dismissed both the hospital and the clinic on September 8, 2010.
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was given the same response as before. Mrs. Kellon’s husband then came home from work
and again attempted to call SMC to obtain an appointment, but to no avail. Finally, on the
afternoon of October 20, Mrs. Kellon remembered that she has a cousin who worked for a
different location of SMC. She was able to call her cousin who set an appointment for
Tuesday morning, October 21, 1997.
When Mrs. Kellon awoke on the morning of October 21, 1997, she testified that her
weakness had increased and that she was unable to fully raise her foot from the ground, a
condition known medically as “foot drop.”2 According to testimony from the treating
physician, Claudio Feler, M.D., Mrs. Kellon told the physician that the foot drop had
occurred the night prior to the appointment. Dr. Feller ordered a CT Scan, which showed a
“huge . . . disc rupture.” Due to Mrs. Kellon’s statement that the foot drop had occurred the
previous night, and based upon the massive disc rupture, Dr. Feler proceeded to emergency
surgery that afternoon.
According to Mrs. Kellon, she suffered permanent neurological injury and physical
impairment as a result of the disc rupture. In a post-operative appointment, Dr. Feler
allegedly told Mrs. Kellon and her husband that, if Mrs. Kellon had received more prompt
attention, her injury would “probably not have been as severe.”
The Kellons filed a complaint against Dr. Lee and SMC on October 14, 1998.3 The
complaint alleged that Dr. Lee’s conduct fell below the recognized standard of care when she
failed to perform a proper physical exam and to immediately refer Mrs. Kellon to the
emergency room for surgery on October 19, 1997. The claims against SMC also sounded
in negligence. Specifically, the Kellons asserted at trial that SMC failed to have a proper
protocol in place to ensure that Mrs. Kellon was seen promptly at its clinic and that SMC
should be vicariously liable for the negligence of its employees in failing to promptly set an
appointment for Mrs. Kellon.
From August 25, 2010 to September 8, 2010, the case was tried to a jury. At the close
of their proof, the Appellants orally moved for a directed verdict, which was denied by the
trial court from the bench. SMC also moved for a directed verdict, based on two grounds: 1)
SMC could not be vicariously liable for the negligence of its employees because the statute
of repose had run; and 2) Mrs. Kellon failed to meet her burden to show that SMC’s failure
2
The treating physician in this case defined “foot drop” as “when you’ve got weakness of the tibialis
anterior muscle, which is the big muscle that goes down the front of your shin and makes your ankle go up.”
3
The Appellants in this case amended their complaint three times, adding and deleting defendants
and allegations each time. The only defendants at issue on this appeal are Dr. Lee and SMC.
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to have a proper procedure in place was the cause-in-fact of her injuries. The trial court orally
granted the directed verdict as to the vicarious liability issue,4 leaving to the jury only the
allegation that SMC failed to have a proper protocol in place to ensure that Mrs. Kellon was
seen on October 20, 1997. The trial court declined to rule on the causation issue until after
the weekend. When court resumed, the trial court orally denied SMC’s motion for a directed
verdict.
On September 8, 2010, the jury returned a verdict in favor of Mrs. Kellon in the
amount of $453,846.00, with her husband awarded an additional $87,153.00 for loss of
consortium. The jury apportioned 49% fault to Mrs. Kellon and 51% fault to SMC. No
liability was assessed to Dr. Lee, as Dr. Lee was found not to have breached the standard of
care. SMC renewed its motion for a directed verdict, becoming a motion for judgment in
accordance with a motion for a directed verdict. Immediately after trial, counsel for SMC
spoke with jurors, who revealed the possibility of a quotient verdict.5
On September 21, 2010, the trial court entered an order on the jury verdict. On the
same day, SMC filed a motion and memorandum in support of its motion for judgment in
accordance with a motion for a directed verdict. SMC also filed a conditional motion for new
trial, supplementing the motion with juror affidavits and arguing that a new trial should be
granted because the verdict rendered by the jury was a quotient verdict.
The trial court granted the motion for judgment in accordance with a motion for a
directed verdict on October 18, 2010. The court’s decision was based on Mrs. Kellon’s
failure to meet her burden of proof as to causation. In the order, the trial court reserved ruling
on SMC’s conditional motion for a new trial, but specifically found that the jury had not
rendered a quotient verdict.
Several post-trial motions were filed by the Appellants and these were denied by the
trial court on January 24, 2011.6 On the same day, the trial court granted SMC’s conditional
4
Appellants do not take issue with this ruling on appeal.
5
A quotient verdict occurs “[w]hen a jury agrees in advance to be bound by a verdict reached
through an averaging process.” Our Supreme Court has opined that “[a] verdict arrived at by averaging
various figures is not, in and of itself, illegal. It is only when there is an antecedent agreement, express or
implied, to abide by the results that a quotient verdict will be vitiated.” Odom v. Gray, 508 S.W.2d 526, 532
(Tenn. 1974).
6
These motions included a motion for addittur, to set aside the grant of judgment in accordance with
the motion for a directed verdict, to reconsider the grant of judgment in accordance with the motion for a
(continued...)
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motion for new trial, in the event that this Court overturned the grant of judgment in
accordance with a motion for a directed verdict. The order provided that, in its role as
thirteenth juror, the trial court believed that the jury’s verdict was contrary to the weight of
the evidence. The conditional new trial would only apply to SMC because the trial court
agreed with the jury’s verdict regarding Dr. Lee. The Appellants appeal.7
II. Issues Presented
1. Whether the trial court erred in granting SMC’s Motion for Judgment
in Accordance with the Motion for a Directed Verdict?
2. Whether the trial court erred in granting SMC’s Conditional Motion for
New Trial premised on the court’s granting of the Motion for Judgment
in Accordance with the Motion for a Directed Verdict?
3. Whether the trial court erred in finding that a quotient verdict as to
damages did not exist and should a new trial as to damages be granted?
III. Analysis
A. Motion for Judgment in Accordance with Motion for a Directed Verdict
Appellants first argue that the trial court erred in granting the motion for judgment in
accordance with the motion for a directed verdict. Our review of a trial court's decision
regarding a post-trial motion for entry of judgment in accordance with a motion for a directed
verdict is gauged by the standard applicable to motions for a directed verdict. Holmes v.
Wilson, 551 S.W.2d 682, 685 (Tenn. 1977). Directed verdicts are appropriate only when
reasonable minds cannot differ as to the conclusions to be drawn from the evidence.
Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d
587, 590 (Tenn. 1994); Ingram v. Earthman, 993 S.W.2d 611, 627 (Tenn. Ct. App.1998).
A case should not be taken away from the jury, even when the facts are undisputed, if
reasonable persons could draw different conclusions from the facts. Gulf, M. & O.R. Co. v.
Underwood, 182 Tenn. 467, 474, 187 S.W.2d 777, 779 (1945); Hurley v. Tenn. Farmers
6
(...continued)
directed verdict, and two motions for new trial.
7
The record on appeal was filed with the clerk of this court on August 16, 2011. Upon review of the
record, this court determined that the order appealed did not appear to be a final judgment. Accordingly, on
August 17, 2011, this Court ordered the Appellants to obtain a final judgment in the trial court within ten
days or show cause why this appeal should not be dismissed. The Appellants obtained a final order and
timely supplemented the record on appeal. It now appearing that the order appealed is final, this Court has
jurisdiction to consider this appeal.
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Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A trial court may, however,
direct a verdict with regard to an issue that can properly be decided as a question of law
because deciding purely legal questions is the court's responsibility, not the jury's.
In appeals from a directed verdict, reviewing courts do not weigh the evidence,
Conatser v. Clarksville Coca–Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Benton
v. Snyder, 825 S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of the witnesses.
Benson v. Tenn. Valley Elec. Coop., 868 S.W.2d 630, 638–39 (Tenn. Ct. App. 1993).
Instead, they review the evidence in the light most favorable to the motion's opponent, give
the motion's opponent the benefit of all reasonable inferences, and disregard all evidence
contrary to that party's position. Alexander v. Armentrout, 24 S.W.3d at 271; Eaton v.
McLain, 891 S.W.2d at 590; Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 199
(Tenn. Ct. App. 1999).
To avoid a directed verdict or a motion for judgment in accordance with a motion for
a directed verdict, “the non-moving party must present some evidence on every element of
its case—enough evidence to establish at least a prima facie case.” Richardson v. Miller, 44
S.W.3d 1, 30 (Tenn. Ct. App. 2000) (citing Harrogate Corp. v. Systems Sales Corp., 915
S.W.2d 812, 818 (Tenn. Ct. App. 1995)). Normally, a directed verdict is proper only where
no material evidence exists on one or more elements that the non-moving party must prove.
See generally Conatser v. Clarksville Coca–Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn.
1995).
The prima facie case in a medical malpractice action is set out in the Tennessee
Medical Malpractice Act, which states, in pertinent part:
(a) In a malpractice action, the claimant shall have the burden of
proving by evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice
in the profession and the specialty thereof, if any, that the
defendant practices in the community in which the defendant
practices or in a similar community at the time the alleged injury
or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with
ordinary and reasonable care in accordance with such standard;
and
(3) As a proximate result of the defendant's negligent act or
omission, the plaintiff suffered injuries which would not
otherwise have occurred.
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(b) No person in a health care profession requiring licensure
under the laws of this state shall be competent to testify in any
court of law to establish the facts required to be established by
subsection (a), unless the person was licensed to practice in the
state or a contiguous bordering state a profession or specialty
which would make the person's expert testimony relevant to the
issues in the case and had practiced this profession or specialty
in one (1) of these states during the year preceding the date that
the alleged injury or wrongful act occurred. This rule shall apply
to expert witnesses testifying for the defendant as rebuttal
witnesses. The court may waive this subsection (b) when it
determines that the appropriate witnesses otherwise would not
be available.
Tenn. Code Ann. § 29-26-115. Accordingly, the plaintiff must include, in his or her evidence,
a prima facie showing of duty, breach of duty and causation; a failure to do so will subject
him or her to a motion for judgment in accordance with a motion for a directed verdict.
Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 562 (Tenn. Ct. App. 1985). However, this
initial burden differs from the ultimate burden in that it does not require a preponderance of
evidence, Id., but only requires “any material evidence in the record to support a verdict for
the plaintiff under any of his [or her] alleged theories.” City of Bartlett v. Sanders, 832
S.W.2d 546, 549 (Tenn. Ct. App. 1991) (emphasis added).
The critical issue in this appeal is whether the Appellants have failed, as a matter of
law, to establish the existence of causation, i.e., that the purported medical malpractice
actually caused the harm complained of. “Causation, or cause in fact, means that the injury
or harm would not have occurred ‘but for’ the defendant's negligent conduct.” Kilpatrick v.
Bryant, 868 S.W.2d 594, 598 (Tenn. 1993) (citing Caldwell v. Ford Motor Co., 619 S.W.2d
534, 543 (Tenn. Ct. App. 1981); Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 280
(Tenn. Ct. App. 1977)). As discussed by our Supreme Court:
Th[e] question [of causation] dominates because the rule
requiring causation be proven by a preponderance of the
evidence dictates that Plaintiffs demonstrate that the negligence
more likely than not caused the injury. Lindsey v. Miami Dev.
Corp., 689 S.W.2d 856, 861 (Tenn.1985) (“[p]laintiff must
introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the
defendant was a cause in fact of the result.”). To be sure, the
mere occurrence of an injury does not prove negligence, and an
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admittedly negligent act does not necessarily entail liability. Doe
[v. Linder Const. Co., Inc.], 845 S.W.2d [173,] 181 [(Tenn.
1992)]. Even when it is shown that the defendant breached a
duty of care owed to the plaintiff, the plaintiff must still
establish the requisite causal connection between the defendant's
conduct and the plaintiff's injury. Id. (“Proof of negligence
without proof of causation is nothing”).
Kilpatrick, 868 S.W.2d at 598–99. Expert testimony is required to establish causation in
medical malpractice cases, except where the act of alleged malpractice lies within the
knowledge of ordinary laymen. Kenyon v. Handal, 122 S.W.3d 743, 758 (Tenn. Ct. App.
2003); Mercer v. HCA Health Services of Tennessee, 87 S.W.3d 500, 507 (Tenn. Ct. App.
2002); see also Tenn. Code Ann. §29-26-115. Additionally, “[c]ausation in fact is a matter
of probability and not possibility, and must be shown to a reasonable degree of medical
certainty.” White v. Vanderbilt University, 21 S.W.3d 215, 232 (Tenn. Ct. App. 1999).
Accordingly, in order to survive the Appellee’s motion for judgment in accordance with a
motion for a directed verdict, the Appellants must have presented expert testimony, given to
a reasonable degree of medical certainty, that SMC’s breach of duty was more likely than not
the cause in fact of Mrs. Kellon’s injuries.
Appellants first argue that comments made by the trial court demonstrate a
misinterpretation of the standard of proof required to show causation, as well as an improper
weighing of the evidence in considering SMC’s motion for judgment in accordance with a
motion for a directed verdict. Indeed, during SMC’s oral motion for a directed verdict, the
trial court cautioned counsel for the Appellants that “You need to ban probable from your
vocabulary. . . . Probable doesn’t help you. . . . Because that’s not the test.” Contrary to the
trial court’s statement, the term “probable” is sufficient to establish the prima facie element
of causation. White v. Vanderbilt University, 21 S.W.3d 215, 232 (Tenn. Ct. App. 1999)
(requiring that expert testimony show a “probability” rather than a possibility); see also
Stovall v. Clarke, 113 S.W.3d 715, 724 (Tenn. 2003) (concluding that expert testimony that
had the defendant doctor complied with the standard of care, the plaintiff “probably [would]
have undergone successful medical and or surgical management of his heart problem” was
sufficient evidence of causation to survive summary judgment”) (emphasis added). In
addition, in considering the motion for a directed verdict, the trial court stated, “I’m saying
we need to look at both sides of the coin.” However, as previously discussed, during a motion
for a directed verdict, or a motion for judgment in accordance with a motion for a directed
verdict, the court is constrained to consider the evidence in the light most favorable to the
motion's opponent, give the motion's opponent the benefit of all reasonable inferences, and
disregard all evidence contrary to that party's position. Accordingly, the trial court’s comment
that we must look to “both sides of the coin” was an incorrect statement of the law. However,
-8-
even with these misstatements by the trial court, the burden remains on the Appellants to
present expert testimony, given to a reasonable degree of medical certainty, that SMC’s
breach of duty was more likely than not the cause in fact of Mrs. Kellon’s injuries.
Accordingly, if there is no such evidence in the record, the misstatements by the trial court
were harmless. See In re London V.P., No. E2010-02650-COA-R3PT, 2011 WL 4477997,
(Tenn. Ct. App. Sept. 9, 2011) (noting that a misstatement by the trial judge that does not
effect the outcome of the case is harmless error). Therefore, we turn to consider the evidence
presented at trial.
Appellants argue that Dr. Feler’s alleged out-of-court statement that, had Mrs. Kellon
received “more prompt” attention, her injuries would “probably not have been as severe” is
sufficient to establish causation in this case.8 We disagree. Even assuming that this statement
was admissible as an exception to the hearsay rule,9 this testimony is, nonetheless,
insufficient to establish the necessary element of causation. The Medical Malpractice Act
makes clear that each element of a medical malpractice action must be established by expert
medical testimony. See Tenn. Code Ann. §29-26-115; see also Kenyon, 122 S.W.3d at 758.
In addition, it is well-settled that causation testimony from an expert must be to a reasonable
degree of medical certainty. See Vanderbilt, 21 S.W.3d at 232. The question of whether
testimony is based on a reasonable degree of medical certainty is a question law, which is
decided by the court rather than the jury. Miller v. Choo Choo Partners, L.P., 73 S.W.3d
8We note that Mrs. Kellon testified that Dr. Feler stated that “had [Mrs. Kellon] received more
prompt attention, . . . my injury probably would not have been as severe.” (emphasis added). However,
according to Mr. Kellon, Dr. Feler stated that “had [Mrs. Kellon] gotten attention earlier, that she may not
have had foot drop.” (emphasis added). The Tennessee Supreme Court in Kilpatrick v. Bryant, 868 S.W.2d
594 (Tenn. 1993), has stated:
[P]roof of causation equating to a “possibility,” a “might have,” “may
have,” “could have,” is not sufficient, as a matter of law, to establish the
required nexus between the plaintiff's injury and the defendant's tortious
conduct by a preponderance of the evidence in a medical malpractice case.
Causation in fact is a matter of probability, not possibility . . . .
Id. at 602 (emphasis added) (citing White v. Methodist Hosp. South, 844 S.W.2d 642, 648–49 (Tenn. Ct.
App. 1992)). Accordingly, Mr. Kellon’s version of Dr. Feler’s statement is insufficient to establish causation
under Kilpatrick.
9
It is undisputed that the above statement by Dr. Feler constitutes hearsay. Hearsay is “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Tenn. R. Evid. 801(c). Appellants argued at trial, however, that the statement
constituted an admission by a party opponent. Tenn. R. Evid. 803(1.2). However, because the determination
of whether this statement is properly admissible is not dispositive of this appeal, nor was this issue
specifically raised in the briefs of either party, we decline to address this issue.
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897 (Tenn. Ct. App. 2001). As this Court explained:
[T]he requirement that expert testimony on causation be
“reasonably certain” embodies a correct principle of law. . . .
That an expert's testimony is “reasonably certain” is said to be
a prerequisite to the admissibility of that testimony. See Lindsey
[v. Miami Dev. Corp.], 689 S.W.2d [856,] 862 [(Tenn. 1985)].
The admissibility of expert testimony is a matter of law for the
court, not the jury. See McDaniel v. CSX Transp., Inc., 955
S.W.2d 257, 263 (Tenn. 1997).
Id. at 906. This statement was made out of court and there is no indication that Dr. Feler held
this opinion to a reasonable degree of medical certainty.10 This Court has previously held that
the terms “reasonable degree of medical certainty” and “more probably than not” are not
synonymous. Bara v. Clarksville Memorial Health Systems, Inc., 104 S.W.3d 1, 10 (Tenn.
Ct. App. 2002) (“Unless one can, as a matter of every day common sense, say that
“reasonable degree of medical certainty” and “more probably than not” are synonymous
terms, the instructions in this case are inconsistent and contradictory and misleading to the
jury.”). Therefore, even though this testimony meets the Kilpatrick requirement that the
evidence present a probability that the injury was caused by the Appellees, rather than a mere
possibility, the evidence lacks the reasonable degree of medical certainty requirement. See
Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993 ) (“The plaintiff need not negat[e]
entirely the possibility that the defendant's conduct was not a cause and it is enough to
introduce evidence from which reasonable persons may conclude that it is more probable
that the event was caused by the defendant than that it was not.”). Without some indication
that Dr. Feler held this opinion to a reasonable degree of medical certainty, this out-of-court
statement is inadmissible for the purpose of establishing the prima facie element of
causation, regardless of whether it was properly or improperly admitted as an exception to
the hearsay rule.11 See Bara, 104 S.W.3d at 10 (“Thus, if the doctor cannot testify as to cause
in fact to a reasonable degree of medical certainty, his testimony is not admissible before the
jury and if there is no other expert evidence of causation in fact in a medical malpractice
case, summary judgment would be proper.”).
We next consider the evidence presented at trial. The first relevant testimony
10
Although Dr. Feler was deposed in this case, counsel for the Appellants did not ask him about this
alleged statement, nor did they inquire as to whether Dr. Feler held this opinion to a reasonable degree of
medical certainty.
11
We take no position as to whether this statement may be admissible for other purposes.
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presented to the jury was from Dr. Anthony Segal, a neurosurgical expert retained on behalf
of Dr. Lee.12 On cross-examination by Appellants’ counsel, Dr. Segal testified by video
deposition as follows:
Q. Now, your understanding of Dr. Robertson’s and Dr. Lee’s
conclusion about what should happen in this case was included
in the fact that Ms. Kellon should have been seen on the 20 th at
[SMC]?
A. Those were the arrangements made and I agree those were
the correct thing to do. Certainly Dr. Robertson wanted her to be
seen on the 20th and she was not seen. It strikes me something
happened—something didn’t happen that should have happened,
but I haven’t looked into it any further. As I said, I was not
asked to do that and I’m not testifying about that.
* * *
Q. Do you have an opinion based on a reasonable degree of
medical certainty whether . . . she does have permanent injury of
the nerve root?
A. Yes. She does.
* * *
Q. So you don’t have any question that on the morning of the
19th , she had a disc fragment compressing the nerve root that
ultimately on the evening, the night of the 20 th , resulted in foot
drop?
A. Correct.
* * *
Q. And that condition went on long enough that there’s
12
Due to various complications regarding the expert witnesses, the evidence in this case was taken
out of order. Accordingly, Dr. Segal’s video deposition was shown to the jury before the Appellants closed
their case-in-chief.
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permanent and irreversible nerve damage to that axon to that
nerve?
A. Correct.
* * *
Q. All right. And that intervention sometime between the
morning of the 19th and the foot drop on the evening of the 20 th
would probably have prevented the permanent nerve damage?
A. If she didn’t have foot drop before surgery, then we’re
assuming she’s not going to get it after surgery. It would have
stopped it happening.
Q. Is that based on—is that what’s probable based on a
reasonable degree of medical certainty.
A. Medical certainty that if she didn’t have a symptom, you
would stop it occurring by fixing the problem. . . . But reading
the future is not easy in medicine.
Q. But what we’re asking you to testify today is based on what’s
reasonable, based on your experience and training and
knowledge of 30 years and doing this and seeing hundreds and
hundreds of patients.
A. Yes.
Q. All right. And so had Mrs. Kellon had that disc removed on
the 20th before she developed the foot drop . . . do you have an
opinion based on a reasonable degree of medical certainty
whether she would have had a permanent injury?
A. She would not have had a permanent foot drop because she
didn’t have any at the time of the surgery.
Q. Under that scenario?
A. Under that scenario. But I must say that I’ve never seen any
indication for surgery which included we must do something to
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prevent a symptom that hasn’t occurred yet in a disc. You
wouldn’t do that. Otherwise, you would operate on everybody
who got leg pain to prevent a further neurological deficit.
SMC’s brief focuses on Dr. Segal’s statement that intervention “sometime between
the morning of the 19th and the foot drop on the evening of the 20th ” and argues that such
statement is inconclusive. According to SMC’s brief, Dr. Segal’s testimony merely shows
that “Ms. Kellon could have had surgery at any time in her life prior to the evening of
October 20, 1997, and this surgery would have prevented her from having developed foot
drop, because intervention would prevent a symptom that had not yet occurred.” SMC points
out that the only relevant period for SMC’s breach of duty occurred on Monday, October 20,
1997. However, SMC ignores the remainder of Dr. Segal’s testimony, in which counsel for
Appellants asked the very specific question: “had Mrs. Kellon had that disc removed on the
20th before she developed the foot drop,” would that intervention have prevented her
permanent injury?13 Dr. Segal testified in the affirmative. Accordingly, this testimony goes
directly to the relevant time period to establish a causal link between SMC’s breach of duty
and Mrs. Kellon’s permanent foot drop.
SMC argues, however, that Dr. Segal went onto explain that, in his experience, no
doctor would operate to prevent a symptom (i.e., foot drop), before that symptom occurred.
Therefore, SMC argues that Mrs. Kellon failed to establish that she would have had surgery
on the same day, even if she was seen by SMC on October 20, 1997. However, the standard
of review for a motion for judgment in accordance with a motion for a directed verdict
requires us to “construe all evidence in favor of the nonmoving party and disregard all
countervailing evidence.” Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 370
(Tenn. 2006). Accordingly, we are required to consider only the evidence in favor of
establishing causation as to SMC and are required to disregard all evidence that does not
support that conclusion. This Court has previously considered the directed verdict standard
when faced with conflicting evidence from the same expert witness. In Miller v. Choo Choo
Partners, L.P., 73 S.W.3d 897 (Tenn. Ct. App. 2001), this Court stated:
[W]e have before us expert testimony that tends to establish
causation on the one hand, and other testimony by the same
13
SMC’s brief quotes a portion of the above testimony from Dr. Segal’s video deposition. However,
without any indication of an omission, SMC omits Appellants’ counsel’s question regarding whether surgery
specifically on the 20th would have prevented Mrs. Kellon’s permanent injury. The Tennessee Rules of
Professional Conduct provide that “[a] lawyer shall not knowingly . . . make a false statement of fact or law
to a tribunal.” Tenn. R. Sup. Ct. 8, RPC 3.3(a). We do not imply that this testimony was intentionally
misstated in SMC’s brief, but we caution all attorneys to be diligent in the preparation of their appellate
briefs in the future.
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experts that tends to diminish the effect of their causation
testimony. In our judgment, the latter testimony goes to the
weight to be given the former testimony. We believe it was for
the jury to sort all of this out.
It is unreasonable to expect a medical expert to testify with legal
precision. This is not to say that his or her testimony does not
have to meet a certain standard; clearly . . . it does. But such
testimony must be viewed as the testimony of a medical person
and not that of an individual trained in the law. We are
expecting too much if we think that doctors can speak with the
precision of a hornbook on causation.
Id. at 905.
Likewise, in this case, Dr. Segal’s testimony first tends to establish causation, then
tends to weaken that testimony. However, given the minimal evidentiary requirements
presented in review of motions for judgment in accordance with motions for a directed
verdict, we must conclude that this testimony presented sufficient evidence of causation to
submit to a jury.
Other testimony in the record also goes to causation. As is relevant to this appeal Dr.
Edward Morgan, a medical expert, testified:
[A]ny time you have pressure on a nerve that’s causing what we
call progressive neurological symptoms, then it needs to be dealt
with emergently, in which case the sooner you operate and get
that pressure off, the better chance you have of recovering. The
longer you let it go, your recovery lessens.
In addition, another expert, Dr. George Long, testified as follows:
Q. Do you have any opinions that [SMC] fell below the standard
of practice on the 20 th ?
A. Yes.
Q. And did that delay getting surgery, in your opinion?
A. Yes.
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Q. And had the surgery been done sooner than it was, do you
think that there would have been a different outcome?
A. Very probably.
SMC argues, however, that these experts were emergency room doctors with expertise
and qualifications to testify only as to Dr. Lee’s alleged negligence. We note that the
Appellees did not object to these specific questions during the trial,14 nor was the admission
of this testimony designated as an issue on appeal. See Childress v. Union Realty Co., 97
S.W.3d 573, 578 (Tenn. Ct. App. 2002) (noting that an issue is waived if not designated as
an issue on appeal). Further, on an appeal from the grant of a motion for judgment in
accordance with a motion for a directed verdict, “appellate courts do not resolve disputes in
the evidence.” Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 647, 647 (Tenn.
1995). Because this evidence was admitted in the trial, and the admission has not been
questioned on appeal, we must consider this evidence properly admitted. At this point, the
question becomes the “weight to be given” to the testimony and the “resolution of legitimate
but competing . . . views, [which] are matters appropriately entrusted to the trier of fact.”
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn.1997) (citation omitted). On
appeal from a motion for judgment in accordance with a motion for a directed verdict,
however, this Court must not weigh the evidence or evaluate the credibility of witnesses.
Conatser, 920 S.W.2d at 647; Benson v. Tenn. Valley Elec. Coop., 868 S.W.2d 630, 638–39
(Tenn. Ct. App. 1993). As we are required to give the Appellants in this case the “benefit of
all reasonable inferences,” Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 199 (Tenn.
Ct. App. 1999), we conclude that the above testimony establishes an issue of causation that
is properly entrusted to the jury. “Weak or strong, [the above expert] testimony at least
created a jury question on causation,” and therefore the trial court erred in granting the
motion for judgment in accordance with a motion for a directed verdict. Richardson v.
Miller, 44 S.W.3d 1, 31 (Tenn. Ct. App. 2000). Accordingly, the motion for judgment in
accordance with a directed verdict is reversed.
14
SMC did object to previous questions directed toward both Dr. Morgan and Dr. Long concerning
causation with regard to SMC. However, SMC offered no specific objections to the above statements by
either Dr. Morgan or Dr. Long. In addition, the trial court specifically ruled that Dr. Morgan could testify
as to causation because counsel for SMC asked causation questions of Dr. Long on cross-examination. See
Cohen e. al., Tennessee Law on Evidence § 611[6][a] (5th ed. 2005) (noting that the defendant may open the
door to otherwise inadmissible testimony on cross-examination, allowing clarification on redirect); see also
United States v. Walker, 421 F.2d 1298, 1299–1300 (3d Cir. 1970) (stating that a defendant can, “by
cross-examination of a witness[,] . . . open the door for the admission on redirect examination of matters
tending to support the case, which would not have been admissible on the case in chief”). SMC does not take
issue with this ruling on appeal.
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B. New Trial as to SMC
Appellants next argue that the trial court erred in granting a conditional motion for
new trial based on the motion for judgment in accordance with a motion for a directed
verdict. The Appellants point to the transcript of the hearing, noting that the trial court stated
that it was granting the motion for new trial based on the grant of the motion for judgment
in accordance with a motion for a directed verdict. The Appellants argue that this was error
and request that the jury verdict be reinstated. We disagree. First, the proper procedure for
granting a motion for judgement in accordance with a motion for a directed verdict is to also
conditionally grant a new trial. Rule 50.03 of the Tennessee Rules of Civil Procedure, states,
in pertinent part:
If the motion for judgment entered in accordance with a motion
for a directed verdict, provided for in 50.02, is granted, the court
shall also rule on the motion for a new trial, if any, by
determining whether it should be granted if the judgment is
thereafter vacated or reversed, and shall specify the grounds for
granting or denying the motion for a new trial. If the motion for
a new trial is thus conditionally granted, the order thereon does
not affect the finality of the judgment. If the motion for a new
trial is thus conditionally granted and the judgment is reversed
on appeal, the new trial shall proceed unless the appellate court
has otherwise ordered.
This requirement is explained in Tennessee Circuit Court Practice:
If the court grants the motion, it should also grant or deny a new
trial. If the trial court fails to address this question and its
judgment entered in accordance with a motion for directed
verdict is reversed because of an error of law, the appellate court
cannot reinstate the verdict because the trial court has not acted
on the verdict as a thirteenth juror and approved it. In such a
case, remand would be necessary. The granting of a motion for
new trial here is conditional and has no immediate effect on the
judgment.
Lawrence A. Pivnick, Tennessee Circuit Court Practice § 28:6 (2011–12 ed.). As such, the
trial court followed proper procedure in granting the conditional motion for new trial.
Even if the trial court were not authorized by Rule 50.03 to grant a new trial based on
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a motion for judgment in accordance with a motion for a directed verdict, the trial court’s
order states that the court “finds, acting as thirteenth juror, that the jury’s verdict was
contrary to the weight of the evidence and grants the Conditional Motion for New Trial as
to [SMC], only.” It is well-settled that the court speaks through its orders. Palmer v. Palmer,
562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). Therefore, based on the trial court’s order, the
court was acting under its authority as thirteenth juror to grant a new trial, after finding that
the jury’s verdict was contrary to the weight of the evidence. See Tenn. Rule Civ. P. 59.07
(noting that “[a] new trial may be granted to all or any of the parties and on all or part of the
issues in an action in which there has been a trial by jury” when the trial court finds that the
verdict is contrary to the weight of the evidence).
Tennessee Circuit Court Practice explains the procedure when an appellate court
reviews the grant of a conditional motion for new trial:
If a new trial is conditionally granted and, on appeal, the
judgment entered in accordance with a motion for directed
verdict is reversed, the appellate court may order that a new trial
proceed or it may order that the jury’s verdict be reinstated. The
former is preferable and most common and only under
extraordinary circumstances and in the interests of justice, e.g.
circumstances indicating that the trial court has abused its
discretion or where the trial judge has erred in its interpretation
or application of the law to the facts found by the jury, will the
jury’s verdict be reinstated.
Pivnick, Tennessee Circuit Court Practice § 28:6; see also Loeffler v. Kjellgren, 884 S.W.2d
463, 468 (Tenn. Ct. App. 1994) (noting that a trial court is given wide latitude in granting a
motion for a new trial as the thirteenth juror, and appellate courts will not overturn such
decision unless there has been an abuse of discretion). Given the trial court’s misgivings over
the causation testimony in this case, and considering the entire record, we discern no abuse
of discretion in the trial court’s decision to grant SMC a new trial. Accordingly the grant of
the motion for a new trial as to SMC is affirmed. Any issue of a quotient verdict with regard
to SMC is pretermitted.
C. New Trial as to Dr. Lee
The Appellants do not raise as an issue in this case the trial court’s decision to exclude
Dr. Lee from the new trial. Dr. Lee argues that this Court should likewise exclude her from
a new trial and reinstate the jury’s finding that she did not breach the standard of care and
that she was not at fault for Mrs. Kellon’s injuries. We note that the general rule requires this
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Court to remand for a new trial as to all defendants when a motion for a directed verdict (or
a motion for judgment in accordance with a motion for a directed verdict) is reversed on
appeal. As our Supreme Court stated in Holmes v. Wilson, 551 S.W.2d 682 (Tenn. 1977):
[W]e believe the correct rule to be that in those cases wherein
the trial court has granted judgment [in accordance with a
motion for a directed verdict] and has conditionally granted a
new trial the appellate court, upon reversal of the judgment [in
accordance with a motion for a directed verdict], should, as a
general rule, remand the action for a new trial. Appellate courts,
however, may exercise a sound judicial discretion in the matter
and may, under exceptional circumstances and in the interest of
justice, reinstate the verdict of the jury where the trial judge
erred in ruling on a controlling conclusion of law and has
approved the verdict of the jury.
Id. at 687; see also Pivnick, Tennessee Circuit Court Practice § 28:6 (only under
extraordinary circumstances and in the interests of justice . . . will the jury’s verdict be
reinstated”). However, this Court previously dealt with a similar issue in Lee v. Melson, 387
S.W.2d 838 (Tenn. Ct. App. 1965), stating:
The modern trend . . . is to recognize the discretionary power of
the trial court to limit the issues on the second trial and to grant
a new trial as to one party but not as to others against whom a
verdict untainted by error or illegality has been returned.
* * *
The guiding principle is fairness to both parties. A verdict
tainted with error or confusion ought not to stand. On the other
hand, the parties are entitled to only one day in court. Once a
party has been accorded a fair trial on the merits, unaffected by
errors of law, he is not entitled to another trial merely because
another party to the suit has been granted a new trial to reverse
an error peculiar to him.
Id. at 840–41. Likewise, in Huskey v. Crisp, 865 S.W.2d 451 (Tenn. 1993), the trial court
set aside the jury verdict, but expressly denied a conditional motion for new trial. Id. at 455.
This Court reversed the trial court’s order setting aside the judgment, and remanded to the
trial court for a new trial. Our Supreme Court affirmed this Court’s determination that the
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trial court erred in setting aside the verdict. Id. However, the Supreme Court held that the
Court of Appeals erred in remanding the case for a new trial (holding that the case was not
controlled by Holmes), and reinstated the jury’s verdict. Id. (noting that “it is evident that
Holmes does not control this situation because . . . the trial court expressly denied
[appellants’] motion for a new trial”). The controlling factor in the Supreme Court’s decision
to reinstate the jury verdict in Huskey was the fact that the trial court expressly denied the
motion for new trial, which decision amounted to an extraordinary circumstance warranting
reinstatement of the original jury verdict. See also Usher v. Charles Blalock & Sons, Inc.,
339 S.W.3d 45, 66–67 (Tenn. Ct. App. 2010) (“Huskey conformed exactly to the example
of exceptional circumstances given in Holmes . . . . In Huskey, it was important that the trial
court “expressly denied ... [the] motion for a new trial.”). In this case, the trial court’s order
granting a new trial to SMC, states, in pertinent part:
The Court further finds that it agrees with the jury verdict in
favor of Marsha Lee, M.D., and specifically finds that the
conditional new trial granted to Semmes-Murphey Clinic
herein, shall not include Marsha Lee, M.D., and that no new
trial is granted as to Marsha Lee, M.D.
Based on the express language of the above order, the trial court has “acted on the
verdict as a thirteenth juror and approved it[,]” Pivnick, Tennessee Circuit Court Practice
§ 28:6, and has expressly denied a new trial with regard to Dr. Lee. Accordingly,
extraordinary circumstances require this Court to affirm the jury verdict, as concurred in by
the trial court, with regard to Dr. Lee.15
IV. Conclusion
The judgment of the Circuit Court of Shelby County is reversed in part, and affirmed
in part, and this cause is remanded to the trial court for a new trial as to Appellee, Semmes-
Murphey Clinic. The jury verdict as to Appellee, Marsha Lee, M.D. is affirmed. All issues
not specifically ruled on are pretermitted. Costs of this appeal are assessed one-half to
Appellants, Diane Kellon and William T. Kellon, and their surety, and one-half to Appellee
Semmes-Murphey Clinic, for all of which execution may issue if necessary.
15
With regard to the Appellants’ issue that the jury engaged in an impermissible quotient verdict,
we note that at trial counsel for the Appellants stated that “My argument was that it was a quotient verdict,
and it should be overturned—but as to damages, and since the jury went ahead and found in favor of Dr. Lee,
it was a good verdict in that regard regarding Dr. Lee.” Indeed, the Appellants do not argue in their brief
that a new trial solely as to damages would also apply to Dr. Lee, presumably because Dr. Lee was not found
at fault by the jury and, as such there can be no damages to assess against her. Accordingly, this Court need
not consider whether the jury’s verdict was an impermissible quotient verdict with regard to Dr. Lee.
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_________________________________
J. STEVEN STAFFORD, JUDGE
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