Sherrie Graham Farver v. Dr. Kenneth Carpenter ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
SHERRIE GRAHAM FARVER v. DR. KENNETH CARPENTER
Direct Appeal from the Circuit Court for Anderson County
No. 98LA0168 Hon. James B. Scott, Jr., Circuit Judge
No. E1999-01840-COA-R3-CV - Decided June 23, 2000
The Trial Court approved plaintiff’s verdict for damages. On appeal, defendant seeks dismissal of
the action on grounds there was insufficient evidence to submit to the jury or a new trial because the
verdict is excessive.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
FRANKS, J., delivered the opinion of the court, in which GODDARD , P.J., joined, and SWINEY , J.,
dissented.
Edward A. Slavin, Jr., St. Augustine, Florida, for Plaintiff-Appellee.
James G. O’Kane, Baker, McReynolds, Byrne, O’Kane, Shea & Townsend, Knoxville, for
Defendant-Appellant.
OPINION
Plaintiff is a former employee of U.S. Department of Energy (DOE) contractor
Lockheed Martin in Oak Ridge, and the defendant, a psychiatrist, performed an evaluation of
plaintiff at DOE’s behest. Plaintiff sued defendant, alleging he misdiagnosed her as paranoid and
delusional, which she averred caused her to lose her security clearance and resulting damages.
From 1987 to 1999, plaintiff worked at the Y-12 and K-25 plants, where she was
allegedly exposed to radiation and toxic chemicals, which caused her to suffer physical illness. In
January of 1997, plaintiff participated in a security interview with a DOE examiner regarding an
upgrade of her security clearance. She was then asked to consent to a psychiatric evaluation and
defendant was instructed to evaluate her to “determine whether, in your professional opinion, she
has an illness or mental condition which causes or may cause a significant defect in her judgment
or reliability.” Following an interview and psychological screening test, defendant sent a report to
DOE which opined that plaintiff had a paranoid delusional disorder and needed additional
psychiatric treatment and medication, and that he “would be concerned about her in a security setting
because of her poor common sense, logic and judgment, and because of her paranoid delusion
symptoms.” This report was sent to DOE on March 1, 1997, and plaintiff’s security clearance was
revoked approximately one month later.
This case was tried before a jury who returned a verdict in the amount of $600,000.00
which was approved by the Trial Judge, and defendant has appealed.
First, defendant argues that plaintiff did not present competent, material evidence that
defendant’s breach of the standard of care was the proximate cause of plaintiff’s injuries. The
Tennessee malpractice statute requires plaintiff to prove that she suffered injuries which would not
otherwise have occurred as a proximate result of defendant’s negligence, which evidence must be
established by expert testimony. Tenn. Code Ann. §29-26-115. In this case, plaintiff’s expert
testified that defendant breached the standard to care by failing to seek external corroboration of
plaintiff’s claims of DOE conspiracy and cover-up before classifying her as paranoid and delusional.
Plaintiff’s expert further testified that he had also evaluated plaintiff, and after seeking corroborative
information, had determined that she was neither paranoid nor delusional. Plaintiff’s expert was then
asked whether defendant’s breach of standard care had harmed plaintiff, and he responded “certainly
being labeled as she was would certainly have an impact on her security clearance which would
impact on her livelihood.”
During cross-examination, plaintiff’s expert was asked about certain portions of the
report of the DOE hearing examiner. Plaintiff’s expert testified that he was aware that the hearing
officer indicated reliance on testimony from plaintiff’s own psychologist, as well as her statements
made in the personal security interview, in making his determination. He conceded that he did not
know the role defendant’s report played in the revocation of her security clearance.
Defendant argues that plaintiff’s proof does not meet the requirements of Tenn. Code
Ann. §29-26-115. This provision requires proof that is required in any negligence case, i.e.,
causation in fact, and proximate or legal cause. See Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).
Causation in fact has been defined as “but for” causation, as in the injury would not have occurred
but for the negligence of defendant. Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993). It is well
settled that an injury can have more than one proximate cause, and if plaintiff establishes that
defendant is responsible for any one of the alleged proximate causes, an issue for jury determination
is present. Stokes v. Leung, 651 S.W.2d 704 (Tenn. Ct. App. 1982).
There is material evidence that defendant’s report was a cause in fact of plaintiff’s
security clearance revocation. Defendant was asked by DOE to evaluate plaintiff in relation to her
potential clearance upgrade, and to render an opinion as to whether or not she had a “mental
condition which causes or may cause a significant defect in her judgment or reliability.”
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Defendant’s report portrayed plaintiff as a person with paranoid delusions in need of further
psychiatric treatment and medication, and a probable security risk. Defendant argues that the
statements made by plaintiff in the personal security interview were also a cause of her clearance
revocation, but the clearance was not revoked until shortly after defendant’s report was received,
although the security interview had been several months previously. Whether the clearance
revocation would have occurred but for the defendant’s negative report, was an issue for the jury to
determine. See Carney v. Goodman, 270 S.W.2d 572 (Tenn. Ct. App. 1954). The hearing officer
stated that he considered and relied upon defendant’s report, and material evidence supports the
finding, that defendant’s report was a cause of the revocation of plaintiff’s security clearance.
Causation questions are “fact-sensitive” and must be determined “in light of logic, common sense,
policy, and precedent.” Burgess v. Harley, 934 S.W.2d 58, 68 (Tenn. Ct. App. 1996). Further, it
has been held that unless undisputed facts permit a reasonable person to reach only one conclusion,
the issue of causation must be resolved by the jury. Id. See also McClenahan v. Cooley, 806 S.W.2d
767 (Tenn. 1991). We conclude plaintiff met her burden on the issue of causation.
Defendant argues that plaintiff’s expert, Dr. Patterson, should not have been allowed
to testify because he did not demonstrate that he was familiar with the standard of care in the
community in which defendant practices or a similar community, as required by Tenn. Code. Ann.
§29-26-115. At the outset, we note the familiar rule that requires no citation gives trial judges broad
discretion in determining the qualifications of an expert witness. Defendant’s counsel claims to have
objected on this basis during the trial, and was overruled, but a review of the purported objections
leave considerable doubt as to whether the Trial Court could have possibly ever determined what
the actual basis of the objection was and whether the objection, in fact, touched on this issue at all.
The defendant is correct in that Dr. Patterson’s testimony at trial does not set forth
the factual basis for his assertion that he was familiar with the applicable standard of care.
Defendant did not, however, object when Dr. Patterson stated that he was familiar with the standard
of care, and the later objections were so vague and ambiguous (general “lack of foundation, lack of
qualifications”) that the Trial Court would have understood the objections to have been dealing with
any number of issues.
A thorough review of the transcript in this case demonstrates that defendant never
actually questioned Dr. Patterson’s ability to testify as to the standard of care. The defendant knew
that Dr. Patterson was plaintiff’s proposed expert, and took Dr. Patterson’s discovery deposition.
In a hearing on pre-trial motions, defendant’s counsel asked the Trial Court to allow defendant to
question Dr. Patterson regarding the identity of doctors he had spoken to in Knoxville in researching
the standard of care, since, at the deposition, Dr. Patterson would not reveal their identity. The Trial
Court then told defendant’s counsel that he could ask Dr. Patterson those questions during the course
of the trial and the Court would require Dr. Patterson to disclose that information.
At trial, defendant’s counsel did not question Dr. Patterson on that issue, nor any
issue regarding his familiarity with the standard of care. While it is true that the plaintiff bears the
burden of establishing that her expert is competent, when Dr. Patterson was offered and testified that
he was familiar with the standard of care, the defendant did not at that time object nor seek to voir
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dire the witness on his qualifications. We conclude in the context of this trial, that the defendant
waived the right to question the competency of this expert witness on appeal. See Bowman v. State,
598 S.W.2d 809 (Tenn. Crim. App. 1980); State v. Killebrew, 760 S.W.2d 228 (Tenn. Crim. App.
1988).
This issue is resolved against the defendant.
Finally, defendant argues there was no material evidence to support the jury’s award
of $600,000.00 in compensatory damages. Plaintiff sought damages for lost income, employability,
pain and suffering, and loss of reputation. In defendant’s Motion for a New Trial, he did not seek
a remittitur, but argued the jury’s verdict was so high as to be the result of passion and prejudice.
The Trial Court’s approval of a jury verdict requires this Court when the verdict is questioned, to
review the record to determine whether there is any material evidence to support it, and if there is
material evidence, the verdict will not be disturbed. Overstreet v, Shoney’s, Inc., 4 S.W.3d 694
(Tenn. Ct. App. 1999). We are required to give full faith and credit to all evidence in the record
which tends to support the award, allowing all reasonable inferences to sustain the verdict and
disregard all that are contrary. Poole v. Kroger Co., 604 S.W.2d 52 (Tenn. 1980); Johnson v.
Cargill, Inc., 984 S.W.2d 233 (Tenn. Ct. App. 1998).
Plaintiff was earning approximately $20,000.00 when she was fired and was working
part-time. She testified that she was subjected to embarrassment due to the revocation of her
clearance, and she was forced to wonder about the status of her job for nearly two years and opined
that she had no further career in radiation protection. She testified that the ordeal affected her
marriage and reputation. She is 45 years old and other employees testifying on her behalf stated that
without a security clearance it would be very difficult to get another DOE position. The jury and
Trial Judge saw and heard the witnesses, and we cannot say the evidence preponderates against the
finding of the jury, as approved by the Trial Judge.
We affirm the judgment of the Trial Court and remand, with cost of the appeal
assessed to appellant.
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