Larry Burchfield v. Timothy J. Renfree, M.D.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 6, 2013 Session

LARRY BURCHFIELD ET AL. v. TIMOTHY J. RENFREE, M.D.

Appeal from the Circuit Court for Knox County

No. 2-412-08 Harold Wimberly, Judge

No. E2012-01582-COA-R3-CV-FILED-OCTOBER 18, 2013

This is a health care liability action wherein the trial by jury resulted in a judgment for the

Defendant, Dr. Timothy Renfree. Plaintiffs, Larry and Dinnie Burchfield, filed this lawsuit

against Dr. Renfree alleging that he negligently performed surgery on Mr. Burchfield’s right

arm and caused nerve damage. After the jury returned its verdict in favor of Dr. Renfree, the

Burchfields filed post-trial motions seeking relief from the judgment and alleging numerous

errors in the administration of the trial. The trial court denied the post-trial motions and

affirmed the jury’s verdict as thirteenth juror. The Burchfields appealed. We vacate the

jury’s verdict, finding reversible error in the administration of the trial, and remand this

matter to the trial court for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part, Reversed in Part; Case Remanded

T HOMAS R. F RIERSON , II, J., delivered the opinion of the Court, in which C HARLES D.

S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Loring Justice and B. Chadwick Rickman, Knoxville, Tennessee, for the appellants, Larry

and Dinnie Burchfield.

James H. London, Libba Bond, and R. Scott Durham, Knoxville, Tennessee, for the appellee,

Timothy J. Renfree, M.D.

OPINION

I. Factual and Procedural Background

Larry Burchfield and his wife, Dinnie Burchfield, filed suit against Dr. Timothy

Renfree regarding carpal tunnel release surgery that was performed on Mr. Burchfield’s left

arm on August 23, 2007, and on his right arm on November 28, 2007. The Burchfields

alleged various causes of action, including negligence pursuant to the health care liability act,

medical battery, misrepresentation, and fraud. The Burchfields claimed that during the

surgery on Mr. Burchfield’s right arm, Dr. Renfree negligently severed the median nerve,

causing permanent injury. The Burchfields also alleged that both surgeries lacked Mr.

Burchfield’s informed consent. Dinnie Burchfield’s claim for damages alleged lack of

consortium.

A jury trial was conducted September 19-30, 2011. At the close of the Burchfields’

case-in-chief, the court granted a directed verdict on their claims of battery,

fraud/misrepresentation, and punitive damages. The jury deliberated for two days following

conclusion of the proof, returning with a verdict in favor of Dr. Renfree. The Burchfields

filed post-trial motions pursuant to Tennessee Rule of Civil Procedure 59 in November 2011.

The trial court orally denied the motions on March 28, 2012. The Burchfields filed a motion

seeking entry of an order on their post-trial motions on July 2, 2012, asserting that there had

been an unreasonable delay in the entry of an appealable order. The trial court subsequently

entered an order denying the post-trial motions on July 9, 2012. The Burchfields timely

appealed the trial court’s decision.

II. Issues Presented

The Burchfields present numerous issues for our review. We have generally

incorporated the Burchfields’ format in presenting the issues, while slightly restating them

as follows:

1. Whether rules related to the integrity of the proceedings were violated

warranting a new trial.

A. Whether a new trial is warranted because of the court’s

ex parte communications with the jury.

B. Whether a new trial is warranted because of the court’s

ex parte communications with defense counsel.

C. Whether a new trial is warranted because of defense

counsel’s contact with the husband of a seated juror.

D. Whether a new trial is warranted because it appears that

the court allowed defense counsel to change the court’s

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ruling.

E. Whether a new trial is warranted because of the court’s

disparagement of counsel and other injudicious conduct.

F. Whether a new trial is warranted because the court

implied it would give a cautionary instruction to the jury

regarding its disparagement of the Burchfields’ counsel

but failed to do so.

G. Whether a new trial is warranted because of the court’s

undue delay in addressing post-trial motions and failing

to address some motions altogether.

H. Whether a new trial is warranted because the court

subjected the Burchfields to unnecessary expense to

punish them for exercising their discovery rights

regarding Dr. Renfree’s experts.

I. Whether a new trial is warranted because defense

counsel removed and lost documents from the medical

file of Edward Workman, M.D. and the court did not

address this motion.

2. Whether the court failed to properly give jury instructions and erred by

failing to approve any verdict form, leaving the jury without one.

A. Whether a new trial is warranted because the court failed

to acknowledge or instruct the jury on medical res ipsa

loquitur.

B. Whether a new trial is warranted because the trial court

failed to properly read Tennessee Pattern Jury

Instructions - Civil 6.25, regarding informed consent.

C. Whether a new trial is warranted because the court

refused to give the jury its instructions in writing.

D. Whether a new trial is warranted because the court

refused to give the Burchfields’ requested jury

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instructions, though the court implied it would give them

and never denied the request for same.

E. Whether a new trial is warranted because the court,

without notice, gave a misleading jury instruction which

no one requested.

F. Whether a new trial is warranted because the court

refused to give the jury any verdict form, despite the fact

that both parties proposed a form.

G. Whether a new trial is warranted because the trial court

created its own set of jury instructions with no notice as

to what its charge would be.

3. Whether the trial court abused its discretion regarding key evidence.

A. Whether a new trial is warranted because the court failed

to allow evidence that Dr. Renfree stopped performing

Endoscopic Carpal Tunnel Release in May 2008.

B. Whether a new trial is warranted because the court

granted Dr. Renfree’s motion for a protective order

quashing a proof deposition of Dr. James Calandruccio,

who was retained as an expert by the defense but

subsequently “withdrawn” after a deposition favorable to

the Burchfields.

C. Whether a new trial is warranted because the court failed

to allow the Burchfields due process in discovering the

basis and validity of the psychological testing done by

the offices of defense psychologist Dr. Spica and

interpreted by defense psychiatrist Dr. Alexander.

D. Whether a new trial is warranted because the court

severely limited cross-examination and disparately ruled

on evidentiary and testimonial issues in a manner

disproportionately favorable to Dr. Renfree.

E. Whether a new trial is warranted because the court failed

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in its gatekeeping obligation and disparaged Supreme

Court case law.

F. Whether a new trial is warranted because the court failed

to exclude the unreliable expert opinions of Dr. Spica

and Dr. Alexander.

G. Whether a new trial is warranted because the trial court

previously informed the Burchfields it would exclude all

speculative causes of injury pursuant to Hunter v. Ura.

H. Whether a new trial is warranted because the court failed

to exclude the testimony of Dr. Lorio, particularly when

it appeared that Dr. Lorio charged a contingency fee.

4. Whether the trial court abused its discretion and made errors in

administering the case and trial.

A. Whether a new trial is warranted because the court’s

thirty minute limitation on the cross-examination of Dr.

Renfree was improper, in light of this Court’s precedent

in Mayo v. Shine.

B. Whether a new trial is warranted because the court

improperly restricted discovery deposition time and

failed to extend the time limits and allow further

examination, even when the need for such was evident.

5. Whether a new trial is warranted because of the trial court’s hostility to

discovery.

6. Whether a new trial is warranted because the verdict is against the

weight of the evidence.

7. Whether a new trial is warranted because the court erred in granting

directed verdicts on the Burchfields’ claims for battery and punitive

damages and failed to instruct on the non-dismissed, extant claims of

fraud and misrepresentation.

8. Whether the Burchfields are entitled to judgment as a matter of law on

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the issues of battery and medical negligence given the undisputed

evidence that the surgical consent forms were false in many respects

and the only competent evidence was that the knife cut Mr.

Burchfield’s median nerve, with the experts agreeing that any cut to the

nerve in that location during this surgery is medical negligence.

III. Standard of Review

The trial court’s rulings regarding admissibility of evidence are reviewed under an

abuse of discretion standard, and may only be overturned if the discretion is arbitrarily

exercised or abused. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997).

Similarly, decisions regarding pretrial discovery are inherently discretionary and are reviewed

under an abuse of discretion standard. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524

(Tenn. 2010).

When reviewing the trial court’s decision on a motion for a directed verdict, this Court

“must take the strongest legitimate view of the evidence in favor of the opponent, draw all

reasonable inferences therefrom in his favor, discard all countervailing evidence and deny

the motion if there is any doubt to be drawn from the whole evidence. A verdict should be

directed only when reasonable minds could draw but one conclusion.” Solomon v. First Am.

Nat. Bank of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App. 1989).

Generally speaking, if there is any material evidence to support the jury’s verdict, it

must be affirmed. Crabtree Masonry Co., Inc. v. C & R Const., Inc., 575 S.W.2d 4, 5 (Tenn.

1978). This Court has “a duty to uphold a jury’s verdict whenever possible. In doing so, we

must give effect to the jury’s intention, as long as that intention is permissible under the law

and ascertainable from the phraseology of the verdict.” Grandstaff v. Hawks, 36 S.W.3d 482,

497 (Tenn. Ct. App. 2000) (internal citations omitted). The question of whether the court’s

jury instructions were proper is a question of law, which this Court reviews de novo with no

presumption of correctness. Solomon, 774 S.W.2d at 940. This Court must review the jury

charge in its entirety and determine if it fairly defined the legal issues involved and did not

mislead the jury. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992).

We must also abide by Tennessee Rule of Appellate Procedure 36(b), which states:

A final judgment from which relief is available and otherwise appropriate shall

not be set aside unless, considering the whole record, error involving a

substantial right more probably than not affected the judgment or would result

in prejudice to the judicial process. When necessary to do substantial justice,

an appellate court may consider an error that has affected the substantial rights

of a party at any time, even though the error was not raised in the motion for

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a new trial or assigned as error on appeal.

IV. Errors in Administration of the Case and Trial

We begin our analysis with the Burchfields’ fourth issue regarding errors in the

administration of the trial, as the inquiry is primarily dispositive of the outcome of this

appeal.

A. Time Limit on Cross-Examination of Defendant

The Burchfields assert that the trial court improperly limited their cross-examination

of Dr. Renfree during trial to thirty minutes. In support of their motion, the Burchfields rely

principally upon this Court’s recent opinion in Mayo v. Shine, 392 S.W.3d 61 (Tenn. Ct. App.

2012). We agree.

In Mayo, the trial court limited cross-examination of the defendant physician to only

thirty minutes because the plaintiff chose to exhibit portions of the videotaped deposition of

the defendant physician to the jury during the plaintiff’s case-in-chief. See 392 S.W.3d at

68. This Court noted that, “[a]pparently the Trial Court’s reason for imposing this limitation

of thirty additional minutes was that portions of Dr. Shine’s deposition presented in

Plaintiff’s case-in-chief covered the same areas Dr. Shine was being questioned about on

cross-examination.” Id. This Court found that the trial court’s action was error, stating in

part:

Plaintiff had the right to adduce from Dr. Shine on cross-examination “any

information that may clarify, qualify, or undercut [Dr. Shine’s] testimony on

direct examination, impair its effectiveness, or affect the inferences the

trier-of-fact might draw,” within reasonable limits.

Dr. Shine is a party defendant in a complex medical malpractice action, and it

was unreasonable given the facts and circumstances of the case to set the limit

of an additional thirty minutes on Plaintiff’s cross-examination of Dr. Shine.

The fact that Plaintiff had introduced portions of Dr. Shine’s videotaped

deposition during her case-in-chief was immaterial. The cross-examination of

a witness, especially a witness who is a party to the lawsuit, is not the same

thing as presenting a portion of that witness’s deposition in the case-in-chief.

Cross-examination of a party witness serves a very different purpose from that

of introducing evidence in a party’s case-in-chief. The primary purpose of a

plaintiff’s cross-examination of a party defendant is not to prove the elements

of the plaintiff’s cause of action, but rather to “clarify, qualify, or undercut [the

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party defendant’s] testimony on direct examination, impair its effectiveness,

or affect the inferences the trier-of-fact might draw.”

Our careful and thorough review of the record on appeal reveals no valid

reason for so severely limiting Plaintiff’s cross-examination of Dr. Shine in the

manner that the Trial Court did. Given the complexity of this trial and the

complex factual issues that were being placed before the jury, the Trial Court’s

limitations on the cross-examination of Dr. Shine simply were not necessary

“to prevent obstruction of the orderly progress of [this] trial.” We, therefore,

hold that it was error to limit Plaintiff’s cross-examination of Dr. Shine in the

manner and extent that the Trial Court did.

Id. (quoting Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708-709 (Tenn. Ct. App. 1999)).

Similarly, in this case, where the trial court limited the Burchfields’ cross-examination

of Dr. Renfree to thirty minutes because they chose to play portions of Dr. Renfree’s video-

taped deposition for the jury during their case-in-chief, we find this to be error. This action

is likewise a complex medical malpractice case, and Dr. Renfree is a party defendant. As

explained above, cross-examination serves a much different purpose than the presentation

of proof in the case-in-chief, and the Burchfields should not have been thwarted in their

efforts to “clarify, qualify, or undercut [the party defendant’s] testimony on direct

examination, impair its effectiveness, or affect the inferences the trier-of-fact might draw.”

Id. Combined with other errors discussed in this opinion, we find that this error resulted in

the Burchfields being denied a fair trial. We conclude that the trial court erred in limiting the

cross-examination of Dr. Renfree in this manner and, therefore, vacate the trial court’s

judgment due to this finding of reversible error.

B. Time Limit on Discovery Depositions

The Burchfields also assert that it was error for the trial court to place a specific time

limit on depositions during discovery. Dr. Renfree states that he requested of the court such

a limitation after the Burchfields’ counsel allegedly deposed Dr. Renfree’s damages expert

for over seven hours. In ruling on the respective motion, the judge stated that he had read

prior depositions, and found that the Burchfields’ counsel was “asking things over and over

and just wandering around.” The court thus limited all future depositions to four hours. Dr.

Renfree asserts that this was an appropriate limitation to prevent abuse of the discovery

process.

Tennessee Rule of Civil Procedure 26.03 states that a party or other person from

whom discovery is sought may ask for an order to protect them from “annoyance,

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embarrassment, oppression, or undue burden or expense” upon a showing of good cause.

Such an order may include “that the discovery may be had only on specified terms and

conditions, including a designation of the time or place.” Tenn. R. Civ. P. 26.03 (2). Dr.

Renfree sought such an order in this case relating to deposition length. He referenced the

fact that depositions previously taken had been excessively long and, in Dr. Renfree’s

opinion, unduly burdensome because many repetitive questions were asked by the

Burchfields’ counsel. The trial court reviewed the prior depositions and agreed with defense

counsel, limiting all future depositions to four hours. This limitation appears to have been

reasonable under the circumstances and was applied in equal fashion to all subsequent

depositions, whether scheduled by the Burchfields or Dr. Renfree. We find this to be an

appropriate exercise of the trial court’s discretion, and find no abuse of that discretion upon

the facts shown. See McDaniel, 955 S.W.2d at 263-64.

V. Integrity of the Proceedings

A. Ex Parte Communications Between Judge and Jury

The Burchfields assert that many procedural rules were violated in this case which

affected the integrity of the proceedings. First, the Burchfields contend that the trial court

engaged in improper ex parte communications with the jury. Based on an affidavit of one

of the jurors, the Burchfields assert:

a. On September 29, 2011, the jury requested a copy of the sections of the

Tennessee Code Annotated relevant to the issues to be decided. This request

was denied by the Court.

b. On September 29, 2011, following denial of the above referenced request, the

jury requested that relevant sections of the Tennessee Code Annotated be read

to the jury a second time. In response to this request, the jury was brought

back into the courtroom and sections of the Tennessee Code Annotated were

read by the Court.

c. On September 29, 2011, the jury requested that the jury be provided with a

timeline demonstrative referenced during trial. The jury was advised that the

requested demonstrative was not available to the jury, as it was not made an

exhibit during trial.

d. On September 30, 2011, the jury made a written inquiry to the Court regarding

whether it was possible to find the Defendant had not committed medical

malpractice and still award damages to the Plaintiffs. The jury foreperson

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advised the jury that the Court’s response to this question was that it was not

possible.

The Burchfields represent that they (and their counsel) were neither informed of nor present

during the communications referenced in paragraphs (a) and (d), above.1 Dr. Renfree

likewise states that neither he nor his counsel were present during these communications.

The transcript contains no reference to these particular communications.

The Burchfields argue that the allegations contained in paragraphs (a) and (d) of the

affidavit demonstrate prohibited ex parte communication between the judge and jury. See

Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994). The parties and their

counsel were not informed or consulted regarding the questions from or responses provided

to the jury, and were not present for these communications. The Burchfields contend that

such circumstances raise a question as to whether the judge might have done something

improper during these communications, such as making a remark to the foreperson that

supplied extraneous information or reflected disparagement toward the Burchfields, which

ultimately influenced the verdict.

Our Supreme Court has elucidated the following rule with regard to ex parte

communications between a judge and jury:

The analytical framework for determining whether reversal is required in a

civil case due to a trial judge’s ex parte communication with a jury or juror

was enunciated in Guy v. Vieth, 754 S.W.2d 601 (Tenn. 1988). In Guy,

affidavits in support of a motion for new trial were to the effect that during the

deliberations, the jurors had informed the bailiff that they had a question.

Without the lawyers or a court reporter accompanying him, the trial judge

entered the jury room alone, closed the door, and remained in the room for

approximately two minutes. When emerging from the jury room, the trial

judge stated that the jury wanted to go to lunch, and the jurors then went to

lunch. After recognizing that some courts consider ex parte communications

between judge and jury or juror reversible error regardless of prejudice, this

Court stated:

The best position seems to us to be that a trial judge’s ex parte

1

The Burchfields state that the court’s actions described in paragraphs (b) and (c) were included

to show that the trial court knew how to properly address questions from the jury, but failed to do so in every

instance.

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communication with a jury in a civil case does not require

reversal per se, but reversal is required where a timely

complaining party shows specific prejudice or where, owing to

the nature of the ex parte communication, the reviewing court

is unable to determine whether the action was actually harmless.

Id. at 605 (emphasis in original). Applying that rule, this Court commented

that the ex parte communication concerned administrative matters, specifically

the excusing of the jury for lunch, but in any event, held that the issue had been

waived because no timely objection was entered.

The rule announced in Guy remains workable and sound. Moreover, it is

re-enforced by Tennessee Rule of Appellate Procedure 36(b) which provides:

A final judgment from which relief is available and otherwise

appropriate shall not be set aside unless, considering the whole

record, error involving a substantial right more probably than

not affected the judgment or would result in prejudice to the

judicial process.

Accordingly, the determinative question is whether A-1 Crane demonstrated

specific prejudice, either to its substantial rights or to the judicial process.

Because of the nature of the communication herein, A-1 Crane, had the

opportunity to demonstrate whether or not specific prejudice resulted.

Spencer, 880 S.W.2d at 940-41. The Court held that ex parte communication between the

judge and jury “is always error and should not occur under any circumstances.” Id. at 941.

The Court rejected, however, a per se rule of reversal for that error. Id.

In the case at bar, there are two alleged instances of improper ex parte

communications between the court and the jury. First, the jury requested a copy of the

sections of the Tennessee Code Annotated relevant to the issues to be decided. This request

was denied by the trial court. The juror’s affidavit does not state whether the judge actually

spoke to the jury foreperson, or whether there was a written request and response.

Regardless, no prejudice can be shown as it is clear that allowing the jury to view a copy of

the Tennessee Code Annotated in the jury room would have been improper. See Henson v.

State, 72 S.W. 960 (Tenn. 1903).

The Burchfields contend that this does not end the inquiry, however, because the

nature of the ex parte communication renders this Court unable to determine whether the

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action was actually harmless. In other words, the Burchfields posit that this Court cannot

determine from the record whether the judge might have said or done something that

influenced the jury in some fashion.

Precedent on this issue leads us to disagree with the Burchfields’ contention. In the

seminal case of Guy v. Vieth, 754 S.W.2d 601 (Tenn. 1988), as explained above, the Supreme

Court was faced with the allegation that the trial judge entered the jury room alone, spoke to

the jury for approximately two minutes with the door closed, and then emerged, announcing

that the jury wished to go to lunch. Id. at 601. The trial judge stated that he did not “recall

any such entry in the jury room.” Id. at 602. He further stated that if such an incident did

occur, “it was only to excuse the jury for lunch or to take some other break,” and that if the

door had shut, “it was only momentarily and by accident.” Id.

The Supreme Court reviewed the allegations, concluding, “every indication is that the

communication between the trial judge and the jury concerned administrative matters, that

is, the excusing of the jury for lunch.” Id. The Court ultimately found that by failing to

timely object to this communication, the plaintiffs had waived their right to complain. Id.

The Court’s analysis suggests, however, that the Court did not find a reason to question its

ability to determine whether the action was actually harmless simply because the judge

briefly spoke to the jury alone.

Similarly, in Spencer, it was alleged that one of the attorneys observed the judge

speaking to the jury foreperson outside the jury room alone. See 880 S.W.2d at 939. The

judge later disclosed that the foreperson told him the jury wanted to know if they could

simply pro rate damages between both defendants. Id. at 940. The judge stated that he told

the foreperson that the jury could not pro rate damages, but rather had to determine which

defendant was liable and assess damages. Id. The defendant who was ultimately found to

be liable by the jury asserted that this ex parte communication constituted reversible error.

Id.

The Supreme Court concluded that the defendant had the opportunity to demonstrate

whether specific prejudice had resulted, but failed to do so. Spencer, 880 S.W.2d at 941.

The Court reasoned that there was no evidence that this communication (1) tainted the

deliberative process of the jury, (2) was even relayed to the jury by the foreperson, or (3)

influenced the foreperson individually. Id. Again, despite the fact that the judge briefly

spoke to the foreperson alone, the Court did not find this to be an issue, and did not speculate

regarding what “might” have occurred. Id. The Court simply concluded that, having found

no evidence of specific prejudice, the error was harmless. Id.

Similarly, in the case at bar, the trial court did not prejudice either party by refusing

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to allow the jury to take the relevant Tennessee Code Annotated sections into the jury room,

as to do so would have been improper. Having found no evidence of specific prejudice, we

determine that the trial court’s error in having such ex parte communications with the jury

was harmless and does not constitute reversible error.

The second alleged incident of improper ex parte communications occurred when the

jury transmitted a written inquiry to the court regarding whether it was possible to find that

Dr. Renfree had not committed medical malpractice but still award damages to the

Burchfields. The juror’s affidavit states that the jury foreperson, after communicating with

the trial court, advised the jury that the court’s response to this question was in the negative.

Again, it is unclear from the affidavit whether the judge’s response to the foreperson was

written or oral. We find no reference to this incident in the record.

The Burchfields do not take issue with the correctness of the judge’s response; rather,

their complaint is that during the exchange, the judge could possibly have said or done

something that influenced the jury. There is no evidence that anything improper occurred

during the exchange between the judge and jury foreperson. Further, there is no evidence

that anything other than the judge’s response was communicated by the foreperson to the

jury. As stated above, while it is correct that the judge should not have undertaken any ex

parte communication with the jury, such error is harmless in this instance, where the

Burchfields have failed to present evidence of any resulting prejudice.

B. Ex Parte Communication Between Judge and Defense Counsel

The Burchfields also allege that on two occasions during the trial, the judge was seen

conversing alone with defense counsel, once in the hallway behind the courtroom, and later

in the parking area. The Burchfields assert that these ex parte communications between the

judge and defense counsel constitute a violation of Canon 2 of the Code of Judicial Conduct2

and warrant a new trial. Dr. Renfree contends that no improper ex parte communication

occurred, and that the Burchfields’ counsel observed the judge and defense counsel having

nothing more than “water cooler exchanges” in public.

Tennessee Supreme Court Rule 10, Rule of Judicial Conduct 2.9, states, “A judge

shall not initiate, permit, or consider ex parte communications, or consider other

communications made to the judge outside the presence of the parties or their lawyers,

concerning a pending or impending matter . . . .” (Emphasis added.) Defense counsel

posits that there was no discussion of the pending matter and characterizes the conversations

as an exchange of “polite pleasantry.” The trial judge ostensibly agreed that there was no

2

The Code of Judicial Conduct is codified at Tennessee Supreme Court Rule 10.

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improper communication as he denied the Burchfields’ post-trial motion raising the issue.

We do not find reversible error where there has been no showing of prejudice related

to these communications. See State v. Jones, 735 S.W.2d 803, 810 (Tenn. Crim. App. 1987);

State v. Ramsey, No. 01C01-9412-CC-00408, 1998 WL 255576 (Tenn. Crim. App. May 19,

1998). As stated in Jones, while the trial court’s decision to participate in ex parte

communication might be lacking in judgment, it is harmless error unless there is a showing

of prejudice. From a careful examination of the record, there appears no evidence that these

conversations concerned the pending case, were witnessed by the jury, or that the jury was

influenced in any way. We find this issue to be without merit.

C. Defense Counsel’s Contact with the Husband of a Seated Juror

The Burchfields next assert that during a trial recess, defense counsel “conversed

extensively” with the husband of a seated juror and failed to terminate the conversation upon

learning of the relationship. Defense counsel explains that he introduced himself to this

gentleman, who was sitting in the courtroom at a time when only court officers were present.

The Burchfields’ counsel was present in the courtroom as well. Defense counsel states that

opposing counsel then joined the conversation, which “basically terminated” thereafter.

Our Supreme Court has previously explained that “any unauthorized ‘private

communication, contact, or tampering directly or indirectly, with a juror during a trial about

the matter pending before the jury’” will be considered an improper outside influence. State

v. Adams, No. W2009-01492-SC-R11-CD, 2013 WL 2102683 at *3 (Tenn. May 16, 2013)

(quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)).

The Court instructed further that “[a] party challenging the validity of a verdict must produce

admissible evidence to make an initial showing that the jury was exposed to extraneous

prejudicial information or subjected to an improper outside influence.” Adams, 2013 WL

2102683 at *3.

No such showing was made in this case. The meager evidence presented was that of

a short exchange of pleasantries between a juror’s husband and defense counsel, for which

the Burchfields’ counsel was mostly present. Again, while this Court is not condoning such

communication between counsel and the spouse of a juror, we also cannot find that this

communication creates reversible error absent a showing of prejudice. There is no evidence

in the record to establish that improper information was exchanged, any information was

conveyed to the jury, or the jury was even aware of this communication. This issue is also

without merit.

D. Defense Counsel “Changing” the Court’s Ruling

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The Burchfields posit that during a motion hearing conducted in this case, the trial

court allowed defense counsel to modify its previous ruling regarding the presentation of

proof at trial. A review of the transcript of that hearing, however, demonstrates that no such

change actually occurred. Motion hearings typically involve oral arguments by opposing

parties with questions and related comments from the judge, all resulting in the court’s

ruling. Such occurred at the motion hearing in question, with the trial court issuing a ruling

following an adjudication of the motion. We discern no error in the trial court’s actions.

E. Disparagement by the Court/Injudicious Conduct

The Burchfields also contend that the trial court exhibited numerous instances of bias

by making improper comments in the presence of the jury. For example, the Burchfields

claim that the judge made disparaging remarks about the Burchfields’ counsel and the

manner in which he presented certain proof. The Burchfields assert that the trial court’s

words, tone, and demeanor suggested that their counsel was less than competent and, at

times, deceitful. The Burchfields state that the trial court also demonstrated hostility toward

their witnesses.

In an action involving “sharp” exchanges between the judge and counsel occurring

in front of the jury, Goedel v. State, 567 S.W.2d 180 (Tenn. Crim. App. 1978), the Criminal

Court of Appeals explained:

“A trial judge must be patient, yet firm, and not allow personal irritation to

ruffle his judicial demeanor while trying a case.” Brooks v. State, 187 Tenn.

67, 213 S.W.2d 7, 10 (1948). On the other hand, attorneys owe a

corresponding duty to refrain from conduct which might create irritation in the

trial of a case.

Id. at 183.

In Mayo, in addition to the issue regarding the limitation of the plaintiff’s cross-

examination of the defendant, a question was raised regarding whether the trial court erred

by making potentially disparaging comments about the plaintiff’s case in the presence of the

jury. See 392 S.W.3d at 68. The trial court, when announcing its ruling limiting the time for

cross-examination of the defendant, also stated, “Well, why did you waste two hours of our

time playing questions that you’re going to ask of her before?” Id. The plaintiff asserted on

appeal that this comment about wasting time implied that the plaintiff’s claims were a waste

of the court’s and the jury’s time, and this Court agreed. Id. This Court stated, “[a]t a

minimum, the Trial Court’s comment, however unintentionally, implied that Plaintiff’s

counsel’s questions and, therefore, also the witness’s answers to those questions, were a

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waste of time and unimportant. While this comment alone may not have risen to the level

of reversible error, it was potentially prejudicial and, when considered together with the other

errors as discussed in this Opinion, resulted in the Plaintiff being denied a fair trial.” Id.

Similarly, in this case, the trial court made several disparaging comments toward and

concerning the Burchfields’ counsel and his presentation of the proof in front of the jury.

While we acknowledge that the judge was often frustrated with the slow progression of

Plaintiffs’ presentation of the proof, we find that these instances of disparagement clearly left

the jury with an unfavorable impression of the Burchfields’ counsel which likely affected

their opinion of the Burchfields’ case. As in Mayo, we find that while the comments alone

might not constitute reversible error, when considered with the other errors discussed herein,

the trial court’s comments resulted in the Burchfields being denied a fair trial.

F. Failure to Give Cautionary Instruction

The Burchfields assert that the trial court indicated a need to give a cautionary

instruction for the jury to disregard any impression they might have held about the court’s

view of the lawyers or the facts. The Burchfields contend that the court ultimately failed to

provide such instruction. The Burchfields suggested in a motion filed during trial that any

one of the following instructions would have been appropriate:

The Court’s remarks to counsel or about counsel or the parties must not be

taken by you to indicate the Court’s opinion of the facts you should find or the

verdict you should return.

...

By my commentary to the lawyers if you think that I have expressed or even

hinted at any opinion as to the facts in this case, you should disregard it.

...

If you think by my words or conduct you can interpret or infer any

manifestation of my bias or prejudice to one side or the other, you should not

do so.

Dr. Renfree argues that the trial court did give a proper instruction regarding this

issue, as follows:

I know that during the course of the trial there was concern conveyed to me

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more than once on the part of the jury about the time that we were taking in

this case and maybe some of the things that went on in court. You know, this

admittedly was not the smoothest presented case we’ve ever had. The

important thing to realize is that we have to ignore all such things as that and

focus only on the two things that can have any influence on your verdict, and

that is the actual evidence in the case and the rules of law as I will state them

to you at the end of the closing arguments.

After closing arguments, the trial court also gave the following jury instruction:

So, finally, sitting here as judge in the case, I do not, can not, and would not

assume, indicate, or suggest that any contested fact has or has not been proved

or that any witness has or has not told the truth. Again, you, the jury, are the

sole judges of the evidence, of the credibility of the witnesses, and the value

to be given their testimony. As a jury you can have no prejudice, no sympathy,

or allow anything but the law and the evidence to have any input upon your

verdict. You must return the verdict with absolute fairness and impartiality

according to the law and the evidence as you think justice and truth indicate.

The Burchfields contend that these instructions were insufficient and did not properly instruct

the jury to disregard any impression they might have drawn from the court’s remarks during

trial.

As our Supreme Court has previously stated:

Reversal of a judgment is appropriate . . . only when the improper denial of a

request for a special jury instruction has prejudiced the rights of the requesting

party. It is not sufficient that refusal to grant the requested instruction may

have affected the result; “[i]t must affirmatively appear that it did in fact do

so.” Tennessee courts view the jury charge in its entirety and consider the

charge as a whole in order to determine whether the trial judge committed

prejudicial error. It is not error to deny a requested instruction if its substance

is covered in the general charge.

Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365, 372 (Tenn. 2006) (internal

citations omitted) (quoting Otis, 850 S.W.2d at 446).

Reviewing the jury instructions in their entirety, we find that the trial court adequately

covered the substance of the special requested instruction in its jury charge. The jury was

twice instructed to consider only the evidence and disregard all other influences. We find

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no prejudicial error therein.

G. Undue Delay

The Burchfields complain that the trial court unduly delayed entering its decision on

their post-trial motions. The Burchfields admit, however, that the trial court apologized for

the delay, explaining that it was due, at least in part, to a clerical error. We find that this

delay, although unfortunate, did not cause prejudice to the parties. A trial court is not

required to rule on such a motion within any particular time frame, although it is encouraged

to act promptly. See Johnson v. Torrington Co., No. M2010-01924-COA-R3-CV, 2012 WL

2337615 at *9-10 (Tenn. Ct. App. June 19, 2012).

H. Unnecessary Expense

The Burchfields argue that a new trial is warranted because the trial court subjected

them to unnecessary expense as punishment for exercising discovery rights regarding the

defense experts. This argument will be addressed below in the section regarding evidentiary

rulings.

I. Removal of Documents from Dr. Workman’s File

The Burchfields likewise argue that a new trial is warranted because defense counsel

allegedly removed and lost documents from the medical file of Dr. Workman. This argument

will also be addressed below in the section regarding evidentiary rulings.

VI. Jury Instructions

A. Res Ipsa Loquitor

The Burchfields contend that the trial court erred in failing to instruct the jury

regarding res ipsa loquitor. Dr. Renfree does not dispute the fact that this jury instruction

was not given, but posits that such charge was precluded because the Burchfields presented

evidence of specific acts of negligence. Upon our review of the record, the trial court

appears to have instructed the jury in part by simply reading from Tennessee Code Annotated

§29-26-115, the health care liability statute. The court stopped short of reading the entire

statute, however, omitting subsection (c), which provides:

In a health care liability action as described in subsection (a), there shall be no

presumption of negligence on the part of the defendant; provided, that there

shall be a rebuttable presumption that the defendant was negligent where it is

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shown by the proof that the instrumentality causing injury was in the

defendant’s (or defendants’) exclusive control and that the accident or injury

was one which ordinarily doesn’t occur in the absence of negligence.

The Burchfields argue that this subsection embodies medical res ipsa loquitor, which they

raised in their pleadings. The Burchfields further contend that because such claim was never

dismissed, the trial court should have instructed the jury regarding same. We disagree. The

Burchfields’ argument fails to apprehend that:

Res ipsa loquitur is a rule of evidence, not a rule of law. It is intended to come

to the aid of plaintiffs who have no direct evidence of a defendant’s

negligence, by providing a specialized vehicle for considering circumstantial

evidence in negligence cases. It permits, but does not require, a fact-finder

“to infer negligence from the circumstances of an injury.”

Burton v. Warren Farmers Co-op., 129 S.W.3d 513, 525-26 (Tenn. Ct. App. 2002) (quoting

Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999)) (internal citations omitted).

In this case, there was no basis for the Burchfields to rely on res ipsa loquitor as there

was direct evidence presented of Dr. Renfree’s alleged negligence. See Smith v. Mills, No.

E2010-01506-COA-R3-CV, 2011 WL 4553144 at *10 (Tenn. Ct. App. Oct. 4, 2011). The

Burchfields’ expert, Dr. Natelson, testified at length regarding multiple alleged deviations

from the standard of care by Dr. Renfree during the surgical procedure, which Dr. Natelson

opined were the cause of Mr. Burchfield’s injury. Dr. Natelson opined that Dr. Renfree had

cut Mr. Burchfield’s median nerve as the result of negligence because Dr. Renfree, inter alia,

(1) failed to take measurements, (2) failed to cut distal to proximal, (3) failed to visualize the

nerve and ligament, and/or (4) performed the operation too quickly. Dr. Renfree and his

experts agreed that the nerve was lacerated during the procedure, but stated that the

laceration was not the result of negligence and that Dr. Renfree did not deviate from the

standard of care. Thus, Dr. Renfree presented proof that the injury could have occurred in

the absence of negligence, as Dr. Renfree and his experts testified that there was no

negligence in this case.

As stated in Smith:

the facts of this case do not lend themselves to proving negligence

circumstantially through res ipsa loquitur because Patient has presented

evidence at trial of specific acts of negligence. The doctrine of res ipsa

permits the jury to infer negligence when there is a lack of evidence about

what occurred – it is not a mechanism for having the jury ignore the evidence.

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In this case, the parties do not dispute what actually caused Patient’s injury –

i.e. the inserting of a stitch into the bowel during the closing of the fascia.

However, there was ample evidence in the record upon which the jury could

find that this injury can occur even when the physician uses due care. Further,

we cannot find that Patient established that this is the type of injury which

ordinarily would not occur but for negligence. Thus, we affirm the judgment

of the trial court that Patient failed to carry her burden of demonstrating that

res ipsa loquitur applied in this case.

2011 WL 4553144 at *10.

Similarly, here, the Burchfields presented expert proof from which the jury could

determine that Dr. Renfree was negligent, and Dr. Renfree presented expert proof to refute

that testimony. As was the case in Smith, the jury was presented with a “battle of the

experts” and had to decide which expert to believe. See 2011 WL 4553144 at *2. As such,

there was no need for the court to instruct the jury regarding res ipsa loquitor, as the jury’s

verdict did not have to be based on circumstantial evidence.

B. Instruction Regarding Informed Consent

The Burchfields assert that the trial court’s reading of the Tennessee Pattern Jury

Instructions - Civil 6.25,3 regarding informed consent, was incorrect.4 The Burchfields state

that the trial court changed the phrase “alternative treatment or procedure” to “another

treatment,” which prejudiced the Burchfields because they had used the term “alternative”

repeatedly during the presentation of their proof. Dr. Renfree posits that the trial court’s

instruction was substantially accurate, and that this is the appropriate standard by which it

must be measured.

3

This instruction provides, in pertinent part:

In determining how a reasonable patient would have acted under the circumstances, you should

consider the testimony of the [patient][plaintiff], the plaintiff’s [idiosyncrasies], [fears], [age],

[medical condition], [and][religious beliefs], the presence or absence of alternative

[procedures][treatments] and the potential risks and benefits thereof, and the impact of no

[treatment][procedure] on plaintiff’s health.

4

As this Court has previously recognized, the Tennessee Pattern Jury Instructions, while helpful,

do not constitute mandatory authority for the trial courts in their instruction of juries. Cortazzo v. Blackburn,

912 S.W.2d 735, 740 (Tenn. Ct. App. 1995).

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As this Court has previously explained:

[T]he soundness of every jury verdict rests on the fairness and accuracy of the

trial court’s instructions. Since the instructions are the sole source of the legal

principles needed to guide the jury’s deliberations, trial courts must give

substantially accurate instructions concerning the law applicable to the matters

at issue.

Jury instructions need not be perfect in every detail. A single erroneous

statement will not necessarily undermine otherwise proper instructions that, on

the whole, fairly define the issues and do not mislead the jury.

Instructions must be viewed as a whole, and the challenged portion of the

instructions should be considered in light of its context. An erroneous

instruction will not be considered reversible error if the trial court explains or

corrects it in other portions of the charge.

Juries are generally composed of persons who do not have formal legal

training. Accordingly, a trial court’s instructions should be couched in plain

terms that lay persons can readily understand. It also follows that appellate

courts must view the challenged instructions not through the practiced eyes of

a judge but rather through the eyes of an average lay juror.

Ladd by Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 94 (Tenn. Ct. App. 1996) (internal

citations omitted).

Utilizing these guiding principles, we do not find the trial court’s instruction to be

erroneous. Viewing the instruction as a whole and in proper context, the substitution of

“another treatment” for the phrase “alternative treatment or procedure” did not alter the

instruction’s meaning so as to render it substantially inaccurate. If anything, the trial court

was simply employing a phrase that was more readily understandable. The trial court gave

a substantially accurate instruction concerning the law applicable to this matter. This issue

is without merit.

C. Written Jury Instructions

The Burchfields argue that the trial court erred in refusing to provide the jury with

written instructions. As claimed by the Burchfields, they requested the instructions be

provided to the jury in writing, but the court denied their request and refused to allow them

to present argument or authority regarding same. A review of the record demonstrates that

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the Burchfields’ request was not presented until after the jury had been charged and had

retired to deliberate. In support of their position, the Burchfields rely upon Tennessee Rule

of Civil Procedure 51.04, which states:

If any party requests that the instructions given under Rule 51.03(2) be reduced

to writing, or if the judge sua sponte elects to reduce the instructions to

writing, the judge shall give the jury one or more copies of the written

instructions, in their entirety, for use in the jury room during deliberations.

After the deliberations are concluded, the written charge shall be returned to

the judge.

Dr. Renfree contends that the Burchfields’ request for written jury instructions was

properly denied by the trial court due to its untimeliness. Dr. Renfree relies on the 2009

Advisory Commission Comments to the above rule in support of this argument. These

Comments explain, inter alia, that, “[r]evised Rule 51.04 gives any party the right to require

the jury charge to be reduced to writing and given to the jury. The new language

incorporates T.C.A. § 20-9-501.” Tennessee Code Annotated § 20-9-501 states:

On the trial of all civil cases, it is the duty of the judge before whom the civil

case is tried, at the request of either party, plaintiff or defendant, to reduce

every word of the judge’s charge to the jury to writing before it is delivered to

the jury, and all subsequent instructions that may be asked for by the jury, or

that may be given by the judge, shall, in like manner, be reduced to writing

before being delivered to the jury.

Tennessee Rule of Civil Procedure 51.04 and Tennessee Code Annotated § 20-9-501 share

an obvious similarity, which is the requirement that the trial court must reduce its charge to

writing at the request of either party. There exists, however, a clear distinction - Tennessee

Code Annotated § 20-9-501 expressly requires that this be accomplished before the charge

is delivered to the jury, while Rule 51.04 includes no such requirement. Dr. Renfree asserts

that this requirement is implied in Rule 51.04, however, because the rule’s new language

incorporates Tennessee Code Annotated § 20-9-501. We agree.

As our Supreme Court has explained:

Although the rules of civil procedure are not statutes, the same rules of

statutory construction apply in the interpretation of rules. Our goal is to

ascertain and give effect to the legislative intent without unduly restricting or

expanding a statute’s coverage beyond its intended scope. . . . In construing the

rules of this Court, however, our goal is to ascertain and give effect to this

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Court’s intent in adopting its rules.

Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009) (internal citations omitted). Further,

as this Court has elucidated, “it is the court’s duty to reconcile provisions to give them a

consistent meaning and harmonize the purposes of each. In addition, an act should be

construed in pari materia with all other acts on the same subject.” First Tennessee Bank,

N.A. v. Dougherty, 963 S.W.2d 507, 509 (Tenn. Ct. App. 1997) (internal citations omitted).

Bearing these principles in mind, we recognize that Tennessee Code Annotated § 20-

9-501 has been in existence for decades, requiring the trial court to reduce its charge to

writing at the request of either party before the charge is read to the jury. It has been

construed by the courts of this state, however, as not requiring that the written version of the

charge be physically provided to the jury. See Smith v. Steele, 313 S.W.2d 495, 501 (Tenn.

Ct. App. 1956). In 2003, the Tennessee Supreme Court adopted Tennessee Rule of Civil

Procedure 51.04, providing that “If the judge elects to reduce to writing the instructions given

under Rule 51.03(2), the judge shall give the jury one or more copies of the written

instructions, in their entirety, for use in the jury room during deliberations. . . .” Thus, under

the newly-adopted Rule 51.04, the judge was required to provide a copy of the written

instructions to the jury if the judge elected to reduce the charge to writing.

The 2003 Advisory Commission Comments state in pertinent part:

New Rule 51.04 provides that if the judge is required to provide jurors with

one or more copies of the written jury instructions for use during deliberations.

This provision is similar to Rule 30(c) of the Tennessee Rules of Criminal

Procedure (requiring that the written instructions be provided to the jury),

which has been part of Tennessee law for many years. Because written jury

instructions can markedly increase the jurors’ understanding of the often

complex law they must apply in the case, trial judges are encouraged to reduce

their jury instructions to writing and, pursuant to this rule, to provide the jury

with the written instructions.

Subsequently, in 2009, Rule 51.04 was amended to add a provision requiring the judge

to reduce the charge to writing at the request of any party; the balance of Rule 51.04 was

basically unchanged. The 2009 Advisory Commission Comments state, “Revised Rule 51.04

gives any party the right to require the jury charge to be reduced to writing and given to the

jury. The new language incorporates T.C.A. § 20-9-501.”

Reconciling the above provisions to afford them a consistent meaning and harmonize

the purposes of each, we find that Rule 51.04 was not intended to expand the time limitation

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imposed in Tennessee Code Annotated § 20-9-501, which expressly states that the

appropriate time for requesting that the charge be put in writing is before the charge is

delivered to the jury. The clear intent of Rule 51.04 was to encourage trial courts “to reduce

their jury instructions to writing and, pursuant to this rule, to provide the jury with the written

instructions.” See 2003 Advisory Commission Comments. The proper time for making such

a request to the trial court, as expressed in the statute, would still be before the charge is

delivered to the jury. Tenn. Code Ann. §20-9-501. This is the only logical construction, as

to allow such a request to be made after the jury has begun deliberations would result in

undue delay and interruption of the deliberation process.

In the instant case, despite the Burchfields’ contentions otherwise, the record reveals

that no request was made for the jury instructions to be reduced to writing and given to the

jury until after they had begun deliberating and thereafter sent out a question. The

Burchfields assert that they “provided written instructions and moved for their acceptance”

before deliberations began. The Burchfields did file requests for proposed jury instructions,

but never asked for the jury instructions to be reduced to writing until after jury deliberations

had begun. Based on the above authority, we find that such request was untimely.

D. Remaining Issues Regarding Jury Instructions and Verdict Form

The Burchfields further contend that the trial court’s failure to deliver some of the jury

instructions requested by the Burchfields after “implying” that such instructions would be

given is prejudicial error. The Burchfields rely principally on Tennessee Rule of Civil

Procedure 51.01, which states in relevant part that a party may file written requests for jury

instructions, and that the court “shall inform counsel of its proposed action upon their

requests prior to their arguments to the jury.” In this case, the Burchfields requested that the

court adopt numerous sections of the Tennessee Pattern Jury Instructions - Civil in its charge

to the jury. The Burchfields also submitted several requests for special instructions. During

the hearing regarding jury instructions, the court separately reviewed the proposed special

instructions, ruling upon them in turn. The court then announced:

We have a number of things, which people tend to do, give me a bunch of

numbers out of the jury charge book. You have to understand that the Court

is limited in time just as you are, and many times we can’t say everything that

might possibly be related. We have to pick out the ones that are, and we just

do the best we can on that.

No further discussion was held regarding the general jury charge. The Burchfields’

counsel made no further requests or objections regarding same until after the jury was

instructed. Thus, the trial court did not inform counsel of the precise instructions that would

-24-

be read. The trial court also clearly did not imply, however, that all of the Burchfields’

requested instructions would be given, contrary to the Burchfields’ contention.

Our Supreme Court has opined that Tennessee Rule of Civil Procedure 51.01 creates

a mandatory duty that the trial court inform counsel of its proposed action on counsel’s

requested jury instructions prior to argument, and that the trial court’s failure to do so is

error. See Moredock v. McMurry, 527 S.W.2d 462, 464 (Tenn. 1975). The Court also held,

however, that such error does not always warrant reversal. Id. at 463. As the Court

explained:

Whether this is reversible error would depend upon many factors, including the

complexity of the issues, the number of special requests, their nature, purpose

and merit, the necessity for them and, above all, the existence of a bona fide

and particularized need for the guidance of counsel in advance of argument.

Id.

Noting that Tennessee Rule of Civil Procedure 51.01 was identical to Federal Rule

of Civil Procedure 51 in this regard, the Supreme Court considered federal law on this

question as persuasive authority. Id. The Court recognized that a majority of decisions from

other jurisdictions, as well as the Sixth Circuit, “seem to require an affirmative showing of

‘material prejudice’ before awarding a new trial for failure of the trial court to announce

which requests will be charged and which will be refused.” Id.

Our Supreme Court concluded that in the case before it, where counsel had submitted

numerous special requests for instructions and the court had “declined to inform counsel of

its proposed action on these requests and persisted in that refusal in the face of a specific

motion for compliance with the rule,” such error was reversible absent a showing of lack of

prejudice. Id. The Court also held that “inadvertent noncompliance” with Rule 51.01 was

not reversible error unless material prejudice was shown to exist. Id.

In this case, the Burchfields filed a written request asking the trial court to charge

several sections of the Tennessee Pattern Jury Instructions - Civil, and submitted separate

requests for special instructions. At the respective hearing, the court specifically reviewed

and ruled upon the special instructions. The trial judge essentially stated that he would select

the applicable provisions of the Tennessee Pattern Jury Instructions - Civil to charge,

reminding the Burchfields’ counsel that he could not “say everything that might possibly be

related.” The Burchfields did not object at the point of the court’s announcement and did

not ask the trial court for clarification or a specific ruling pursuant to Tennessee Rule of Civil

Procedure 51.01 regarding the pattern jury instructions requested.

-25-

This case is distinguishable from Moredock, wherein the trial court “declined to

inform counsel of its proposed action on these requests and persisted in that refusal in the

face of a specific motion for compliance with the rule.” 527 S.W.2d at 463. In the case at

bar, the trial judge informed the Burchfields’ counsel that he would choose and charge only

those pattern instructions that he found to be relevant, a ruling to which the Burchfields’

counsel did not object. Further, there was no specific motion made at any time before the

charge was delivered pursuant to Tennessee Rule of Civil Procedure 51.01. Thus, the trial

court’s failure to comply with Tennessee Rule of Civil Procedure 51.01 does not appear to

be a “conscious” and “affirmative” refusal, as was found to be true in Moredock. Id. at 464.

Rather, it would appear to be inadvertent noncompliance, which raises the issue of whether

the Burchfields have shown material prejudice in the trial court’s noncompliance.

The Burchfields have asserted in this appeal that they were prejudiced because the

trial court failed to instruct the jury regarding res ipsa loquitor and failed to properly read the

instruction regarding informed consent. We have previously determined these issues to be

without merit; thus, no prejudice has been shown. The Burchfields’ remaining specific

assertion regarding the jury instruction was that the trial court charged the jury pursuant to

Tennessee Pattern Jury Instructions - Civil 6.14, entitled “Alternate Methods,” without notice

to the Burchfields that this instruction would be given. The Burchfields assert that they had

not asked for this instruction because they had not alleged that utilizing the type of procedure

Dr. Renfree performed on Mr. Burchfield was negligent. According to the Burchfields’

contention, giving this instruction to the jury was “destined to confuse.”

Dr. Renfree posits that the trial court’s instruction was entirely appropriate, as there

was testimony during the trial regarding different surgical techniques utilized in performing

carpal tunnel release. Dr. Renfree states that one expert was asked to comment on the type

of procedure Dr. Renfree used on Mr. Burchfield and whether it was “risky.” Dr. Renfree

also states that one of the Burchfields’ claims was that Mr. Burchfield’s injury would not

have occurred if Dr. Renfree had performed an open, rather than endoscopic, surgery.

The trial court’s instruction in this regard was as follows:

When it is shown in a case that there is more than one accepted method of

treatment and no one of them is used exclusively and uniformly by all doctors

in good standing, a doctor is not negligent simply for selecting an accepted

method of treatment that later turns out to be unsuccessful. This is true even

if the method is not one favored by certain other doctors. Before exercising

any judgment, the doctor should inform himself by proper examination and

proper investigation so as to ascertain the facts and circumstances on which

any reasonable exercise of judgment may be made.

-26-

The court’s instruction does appear to track Tennessee Pattern Jury Instructions - Civil 6.14,

which reads:

When there is more than one accepted method of diagnosis or treatment, and

no one of them is used exclusively and uniformly by all physicians of good

standing, a physician is not negligent for selecting an accepted method of

diagnosis or treatment that later turns out to be unsuccessful. This is true even

if the method is one not favored by certain other physicians.

Further, the comment following the pattern instruction states:

In Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979), the Court reaffirmed

Casenburg v. Lewis, 163 Tenn. 163, 40 S.W.2d 1038 (1931) as a limitation on

this rule: “Before exercising judgment the physician should inform himself by

proper examination so as to ascertain the facts and circumstances on which a

reasonable exercise of judgment might rest.”

The trial judge has a duty to instruct the jury “accurately with respect to the theories

of the parties and the legal principles applicable thereto.” Street v. Calvert, 541 S.W.2d 576,

584 (Tenn. 1976). The instructions given by a trial court should: (1) be supported by the

evidence, (2) embody a party’s theory, and (3) be a correct statement of the law. Hayes v.

Gill, 390 S.W.2d 213, 214 (Tenn. 1965). See also Austin v. City of Memphis, 684 S.W.2d

624, 637 (Tenn. Ct. App. 1984) (determining that the trial court’s instruction was proper

based on the defenses relied upon by defendant, and the facts introduced in support thereof).

One defense expert, Dr. Leibovic, was questioned extensively by the Burchfields’

counsel about his opinion regarding the safety of endoscopic carpal tunnel surgery. Dr.

Leibovic told the jury that there existed a controversy in the field regarding whether

endoscopic surgery led to greater risk of cutting nerves and tendons. A review of the

transcript clearly demonstrates that the Burchfields were calling into question the safety of

the procedure performed on Mr. Burchfield. The Burchfields contend that the intended point

of this line of questioning was simply to show that Mr. Burchfield should have been more

adequately informed of the risks for the purposes of the informed consent claim. The

Burchfields assert that they never claimed that the procedure performed on Mr. Burchfield

was per se negligence; thus, the trial court was in error to give the above instruction. The

substantial amount of testimony regarding alternate procedures, however, required the

instruction given by the court, as Dr. Renfree was clearly placed in the position of having to

defend the safety of the procedure he performed. Because the instruction (1) is supported by

the evidence, (2) embodies Dr. Renfree’s position, and (3) is a correct statement of the law,

we find no error in the court’s decision to give this instruction.

-27-

The Burchfields argue that they were still prejudiced because they had no notice that

this instruction would be given and could not “work it into their closing.” A review of the

transcript reveals that the Burchfields’ counsel did cover this in his closing argument,

however, stating as follows:

And let’s go back to that alternatives thing. If you’re having surgery, the

conservative things aren’t applicable anymore. In his deposition that you saw,

before the polish and shine of court was upon him, Dr. Renfree specifically

said the alternatives are - to endoscopic two-portal - open, endoscopic one-

portal, and other surgical techniques. I didn’t say that. He said it. One

testimony in his deposition, another testimony in here when it gets hot and the

steam starts coming up in the kitchen. But he said the alternatives were the

other forms of surgery like open. Would you like to know about open if you

had a carpal tunnel problem? Would you like to know the risks and benefits?

Would you like to know of the great debate and that some surgeons won’t even

do it because they’re concerned about the safety of the procedure? And we’re

not here to resolve that debate, but your verdict may have an impact on it to

make that comment what doctors have to tell patients.

Clearly, the Burchfields’ counsel adequately discussed alternate methods of surgery in his

closing argument, and there is no question that they were also discussed as part of the proof.

The Burchfields have shown no prejudice in not being made aware that the court would give

the challenged instruction. Further, because the instruction was not erroneous, we find no

prejudice to the Burchfields in having it read to the jury. We find the Burchfields’ arguments

regarding the jury instructions to be without merit.

The Burchfields also take issue with the trial court’s failure to utilize a written verdict

form. The Burchfields argue that this case presented complex issues and that the jury was

hampered by not having a form. During its instruction of the jury, the trial court stated:

When you come back into court I will ask your spokesperson these questions:

“Have you reached a verdict?” If the answer is “yes,” I will say, “With regard

to Mr. Burchfield, do you find for the plaintiff or for the defendant?” If your

answer is “for the defendant,” I will ask each member of the jury, “Do you

individually agree with that?” If your answer is “for the plaintiff,” I will ask

you, “What amount of damages do you find appropriate for the plaintiff?”

This is precisely the procedure that the court followed when the jury announced its verdict

for Dr. Renfree. The Burchfields argue, however, that they were prejudiced by the court’s

failure to utilize a written verdict form.

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Tennessee Rule of Civil Procedure 49.01 provides that the court “may” require the

jury to make special written findings on each issue of fact, and Rule 49.02 provides that the

court “may” submit written interrogatories to the jury. Absent from the language of

Tennessee Rule of Civil Procedure 49 is that the court “must” employ a written verdict form.

As this Court has previously recognized, “Rule 49.01 of the Tennessee Rules of Civil

Procedure affords the trial court wide latitude to use a special verdict form as it deems

appropriate.” Stanfield v. Neblett, 339 S.W.3d 22, 40 (Tenn. Ct. App. 2010). The

Burchfields have cited this Court to no authority which states that a court must use a written

general verdict form. We discern no error in the trial court’s failure to use a written verdict

form in this case. As we have previously stated, “We have a duty to uphold a jury’s verdict

whenever possible. In doing so, we must give effect to the jury’s intention, as long as that

intention is permissible under the law and ascertainable from the phraseology of the verdict.”

Grandstaff, 36 S.W.3d at 497 (internal citations omitted). The jury’s verdict was certainly

ascertainable in the case at bar, even in the absence of a written verdict form.

VII. Evidentiary Rulings

A. Evidence that Dr. Renfree No Longer Performed Endoscopic Procedure

The Burchfields contend that the trial court erroneously ruled that the fact that Dr.

Renfree no longer performed endoscopic carpal tunnel release for patients after May 8, 2008,

was inadmissible. The Burchfields assert that Dr. Renfree maintained in his deposition that

he routinely performed endoscopic carpal tunnel release, and that he believed the endoscopic

procedure to be safer than open surgery. According to the Burchfields’ theory, if open

surgery is not as safe, as Dr. Renfree opined, the fact that he later stopped performing

endoscopic surgery should not be considered a subsequent remedial measure pursuant to

Tennessee Rule of Evidence 407, and should not have been deemed inadmissible. The

Burchfields further contend that even if this is a subsequent remedial measure, the evidence

is still admissible to impeach Dr. Renfree because he had stopped performing this procedure

two years before his deposition was conducted.

Dr. Renfree asserts that it was not an abuse of discretion for the trial court to exclude

evidence that he stopped performing endoscopic carpal tunnel release in 2008 and has since

elected to perform only open surgery. Dr. Renfree posits that this is precisely the type of

subsequent remedial measure contemplated by Tennessee Rule of Evidence 407, as the

change was in response to the issues arising from Mr. Burchfield’s procedure and this

litigation. Dr. Renfree admits that this change was remedial and was intended to prevent

further injury to patients. Dr. Renfree further states that, pursuant to Tennessee Rule of

Evidence 407, this information can only be admitted for some purpose other than establishing

negligence, such as impeachment. Dr. Renfree contends that the Burchfields’ lack an ability

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to impeach in this case, as Dr. Renfree testified consistently about his change in surgical

technique to performing open surgeries.

Tennessee Rule of Evidence 407 provides:

When, after an event, measures are taken which, if taken previously, would

have made the event less likely to occur, evidence of the subsequent remedial

measures is not admissible to prove strict liability, negligence, or culpable

conduct in connection with the event. This rule does not require the exclusion

of evidence of subsequent measures when offered for another purpose, such

as proving controverted ownership, control, or feasibility of precautionary

measures, or impeachment.

As our Supreme Court has elucidated:

The purpose of this evidentiary rule is to “encourage remedial measures in

order to serve the public’s interest in a safe environment.” Neil P. Cohen et

al., Tennessee Law of Evidence § 4.07[2] (5th ed. 2005). The word

“subsequent” refers to events that occur after the events giving rise to the

lawsuit. Rothstein v. Orange Grove Ctr., Inc., 60 S.W.3d 807, 813 (Tenn.

2001). An action is “remedial” if it “chang[es] a situation, usually an unsafe

property or product, to prevent the situation from causing further injury.” Id.

As with other evidentiary matters, we review a trial court’s decision to admit

or exclude evidence under Tennessee Rule of Evidence 407 under an abuse of

discretion standard. See State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007).

“An abuse of discretion occurs when the trial court applies an incorrect legal

standard or reaches a conclusion that is ‘illogical or unreasonable and causes

an injustice to the party complaining.’” Id. (quoting State v. Ruiz, 204 S.W.3d

772, 778 (Tenn. 2006)).

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 87-88 (Tenn. 2008).

In this case, we find that the trial court erred in refusing to allow the Burchfields to

present proof that Dr. Renfree had ceased performing endoscopic carpal tunnel release

surgery in 2008, for the purpose of impeaching his testimony. Dr. Renfree’s testimony

during his deposition in 2010 lead to the conclusion that he then regularly performed

endoscopic carpal tunnel release surgery. Dr. Renfree testified in pertinent part as follows:

If I was to see a patient in clinic, say Mr. Burchfield, initially you would start

with a course of conservative measures; i.e., splinting and time. And then if

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you get to a point where the patient is progressing, where they’re having

difficulty, they have weakness or increasing numbness and tingling, such as

Larry was having on his right.

Then the treatment options are - if he wants to move forward, which we

discussed - in my practice is discussing a carpal tunnel release. And the way

I do them is endoscopic carpal tunnel.

...

I think that a physician, you know, a physician would see a patient and, as we

talked about earlier, giving a diagnosis. And if the patient’s having

progressive problems you would discuss what the patient has, and then you

would discuss how to make that – or how to treat that. And in this specific

case I do an endoscopic carpal tunnel release.

Dr. Renfree further testified that while he did also perform open carpal tunnel release, he felt

that the incidence of damage or laceration to the median nerve was higher with open carpal

tunnel release.

At trial, questions posed to Dr. Renfree by his counsel were carefully couched in terms

of what he would have done in 2007, when Mr. Burchfield’s surgeries were performed. Dr.

Renfree, however, did not disclose that he no longer performed endoscopic carpal tunnel

release surgery in 2010. On cross-examination, the Burchfields’ counsel attempted to ask

Dr. Renfree whether endoscopic carpal tunnel release surgery was still a routine procedure

in February 2010, which was the date of Dr. Renfree’s deposition, but defense counsel

objected and the trial court refused to allow any questions relating to any year other than

2007.

The Burchfields assert that their purpose behind this line of questioning was simply

to impeach Dr. Renfree’s deposition testimony on the basis that he still regularly performed

the endoscopic procedure in 2010. We agree that such purpose for questioning was entirely

proper. Contrary to Dr. Renfree’s assertions, the deposition testimony lends the impression

that Dr. Renfree regularly performed the endoscopic procedure at the time of his deposition.

Further, this testimony was not properly barred as evidence of a subsequent remedial measure

pursuant to Tennessee Rule of Evidence 407 because a surgery that Dr. Renfree characterized

as more risky could not be deemed a remedial measure. The purpose behind a remedial

measure clearly is to reduce risk and increase safety. See Martin, 271 S.W.3d at 87-88. The

Burchfields should have been permitted to pursue this line of questioning both for the

purpose of impeaching Dr. Renfree’s deposition testimony, and because the testimony was

not inadmissible as relating to a subsequent remedial measure.

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B. Dr. Calandruccio

Dr. Calandruccio was initially disclosed as an expert witness for the defense. His

discovery deposition was taken on August 5, 2010. He was likewise listed as a witness on

Dr. Renfree’s witness list for trial. On October 6, 2010, Dr. Renfree withdrew Dr.

Calundruccio from his list as an expert witness; the Burchfields assert that this is because

during his deposition, Dr. Calundruccio provided information favorable to the Burchfields.

The Burchfields claim that when they retained Dr. Calundruccio and he began assisting them,

Dr. Renfree sent correspondence purporting to re-designate Dr. Calundruccio as a consulting

expert for the defense. The Burchfields filed a subpoena and notice seeking to again depose

Dr. Calundruccio, which the trial court quashed on Dr. Renfree’s motion.

Dr. Renfree attached an affidavit from Dr. Calundruccio to the motion, wherein he

stated:

I was consulted as an expert witness by the defendants in this case and my

discovery deposition was taken by plaintiff counsel on August 5, 2010.

Sometime after that, I was advised that I would not be needed as a witness at

trial. It was not clear to me that the defendants intended for me to remain as

a consulting expert in this case. I now understand and agree to serve as a

consulting expert to the defendants.

I am aware that the plaintiffs have filed a notice to take my deposition on

March 10, 2011. I do not wish to provide further expert testimony in this case

and am not in agreement to be deposed. I am not a treating physician in this

case.

In its order quashing the notice of deposition of Dr. Calundruccio, the court noted that

because Dr. Calundruccio had expressed that he no longer desired to provide testimony, it

would be inappropriate for the court to subpoena him to testify against his wishes.

The Burchfields assert that they should have been allowed to further depose Dr.

Calundruccio, if not regarding his opinions, at least regarding his reasons for no longer

wanting to testify. A careful review of the record discloses that the Burchfields did not ask

the trial court if they could depose Dr. Calundruccio regarding his reasons for no longer

wanting to testify. Rather, the Burchfields represented to the trial court that they wished to

take Dr. Calundruccio’s deposition for proof regarding his expert opinions in this case. This

Court cannot rule on the propriety of deposing Dr. Calundruccio regarding his affidavit or

his reasons for not testifying when that issue was never ruled upon by the trial court.

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On the issue of whether the Burchfields could further depose Dr. Calundruccio

regarding his expert opinion, they attempt to rely on this Court’s opinion in White v.

Vanderbilt Univ., 21 S.W.3d 215 (Tenn. Ct. App. 1999), but we find such authority

unavailing on this issue. In White, the question was whether a withdrawn expert’s deposition

testimony could be utilized at trial, not whether such expert could be further deposed. Id. at

225. The most important distinction between White and the case at bar, however, is that the

expert in White never withdrew his agreement to testify as an expert as Dr. Calundruccio did

in this action.

Applicable to this case is this Court’s opinion in Lewis v. Brooks, 66 S.W.3d 883, 887

(Tenn. Ct. App. 2001), wherein it was explained that doctors who were party defendants in

the case could not be compelled to answer questions in discovery regarding their opinions

of the treatment given by other doctors. Determining that there were no Tennessee cases

specifically on point, this Court relied upon a Pennsylvania case styled Pennsylvania Co. v.

City of Philadelphia, 105 A. 630 (1918). In that case, expert real estate appraisers were hired

by the plaintiff, but the plaintiff decided not to call them as witnesses because their appraisals

were lower than desired. Id. at 630. The defendant then subpoenaed them to testify. Id. The

experts objected to testifying, citing their business relationship with plaintiff, and the trial

court sustained the objection, “‘on the ground that the witness still maintains a confidential

relation’ with plaintiff.” Id.

The appellate court affirmed, stating that it was unnecessary to decide whether the

lower court’s reasoning was sound because the witnesses themselves objected to being

required to testify as experts:

The process of the courts may always be invoked to require witnesses to

appear and testify to any facts within their knowledge; but no private litigant

has a right to ask them to go beyond that. The state or the United States may

call upon her citizens to testify as experts in matters affecting the common

weal, but that is because of the duty which the citizen owes to his government,

and is an exercise of its sovereign power. So, also, where the state or the

United States, in her sovereign capacity, charges the citizen with crime, she

may, if need be, lend her power in that regard to the accused; for she is vitally

interested, as such sovereign, that public justice shall be vindicated within her

borders. Perhaps, also, under like circumstances, she may also lend her power

in civil cases. But the private litigant has no more right to compel a citizen to

give up the product of his brain, than he has to compel the giving up of

material things. In each case it is a matter of bargain, which, as ever, it takes

two to make, and to make unconstrained.

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Id.

Similarly, here, we hold that the trial court was correct in its determination that Dr.

Calundruccio could not be compelled to provide testimony as an expert against his will.

Where the expert’s agreement to serve in such capacity has been withdrawn, there is no

authority for compelling the expert to “give up the product of his brain.” See id. This

issue is without merit.

Regarding the issue of whether the trial court properly barred the use of Dr.

Calundruccio’s deposition at trial, however, we do find this Court’s opinion in White to

be controlling. See 21 S.W.3d at 225-230. In White, the defendant physicians named an

expert who was subsequently deposed by the plaintiffs. Id. During his deposition, the

expert stated an opinion that the defendants deviated from the standard of care in certain

respects. Id. Defendants elected to take a video-taped deposition of the expert thereafter,

and the expert again stated that the defendants deviated from the standard of care. Id.

Both the plaintiffs and the defendants named this expert as a potential witness on their

witness list for trial. Id.

When the trial began, the defendants filed motions in limine seeking to prevent the

plaintiffs from utilizing this expert’s testimony by reading from or alluding to his

depositions. See 21 S.W.3d at 222. The trial court ruled that the plaintiffs could not use

the expert’s deposition for rebuttal if the defendants did not call him as a witness. Id.

The trial court stated that, “unless that expert is going to be called to testify at trial, a

party has the right to designate . . . [him] as a consultant at any point. And once [the

defendants] elect not to utilize . . . [the expert] at trial, the other party may not . . .

discover the opinions. And if they have been discovered, if there have been depositions,

[the other party] . . . may not utilize those depositions at trial.” Id.

This Court reviewed the issue of whether the plaintiffs should have been allowed

to use the expert’s deposition testimony at trial, and found that the first inquiry was

whether Tennessee Rule of Civil Procedure 32 permitted the use of the deposition. Id. at

226. In White, this Court found that it was permissible to use the expert’s deposition

under Rule 32 because the expert lived out of state, and because his deposition was taken

by the defendants, who retained him, to preserve his testimony. Id. This Court

specifically noted that it would be inappropriate to utilize the deposition at trial if it was

“the discovery deposition of an adversary’s expert,” due to Rule 32.01(3), which states

that such depositions may only be used to impeach the deponent. Id.

Employing the same analysis in the case at bar, it is clear the Dr. Calundruccio’s

deposition was properly barred from use at trial because it was taken by the Burchfields

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and was the “discovery deposition of an adversary’s expert.” See 21 S.W.3d at 226. As

such, its use is not permitted pursuant to Tennessee Rule of Civil Procedure 32.01(3). We

discern no error in the trial court’s determination that the deposition could not be utilized

at trial.

C. Psychological Testing

The Burchfields complain that they, and ultimately, the jury, were deprived of the

ability to review the tests and raw data relied upon by defense experts Dr. Spica and Dr.

Alexander when forming their opinions that Mr. Burchfield demonstrated malingering and

a lack of credibility regarding his injury. The Burchfields also claim unfairness in being

required to incur significant additional expense because the trial court required that the

testing questions and data be delivered only to another psychologist.

Dr. Renfree explains that Dr. Spica voiced a concern that he could not ethically

disclose the raw testing materials because they involved sensitive proprietary information that

could compromise the efficacy of the tests if placed in the public domain. This concern was

conveyed to the trial court, with the court ruling that Dr. Spica would bring his entire file to

his deposition for review by the Burchfields. Dr. Spica allowed the Burchfields to review

his file during the deposition but refused to allow the testing materials to be removed and

copied. He stated that ethically he could only release those materials to another psychologist.

Thus, at a subsequent motion hearing, this issue and the fact that the Burchfields had hired

a psychologist to receive the information were presented to the trial court. The court

expressed approval of this arrangement, ordering that Dr. Spica would provide the

information to the Burchfields’ expert.

The Burchfields presented no additional objection that the testing information was not

provided to their psychologist. In fact, contrary to the Burchfields’ assertions on appeal, it

is clear they maintained access to the raw testing materials as was evidenced by their referral

to and use of the evidence at trial. Further, a review of the trial transcript reveals that this

testing information was also provided to the jury. The Burchfields’ contentions of prejudice

regarding an alleged lack of this testing information are without merit.

The Burchfields also complain that they were required to bear the expense of hiring

another expert (a licensed psychologist) in order to obtain the relevant test information from

Dr. Spica. As noted above, the record reveals that this appears to have been a solution

suggested by Dr. Spica at his deposition, to which the Burchfields agreed, despite voicing

their objection to this proposal. Contrary to the Burchfields’ assertions, this was not a

requirement imposed by the trial court, although the court did approve the parties’ agreement

in an effort to resolve this discovery dispute.

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The Burchfields further assert that the trial court disparaged Tennessee Supreme Court

case law and failed to properly allow the Burchfields to challenge the opinions of Drs. Spica

and Alexander. We find no merit to these contentions. The Burchfields presented the

testimony of their own expert, a neuropsychiatrist, who testified regarding Mr. Burchfield’s

credibility and lack of malingering. The Burchfields were allowed ample opportunity to

challenge the opinions of Drs. Spica and Alexander, both in their cross-examination of these

witnesses and their use of other experts. The Burchfields also argue that the trial court

disparately ruled on evidentiary and testimonial issues in a manner disproportionately

favorable to Dr. Renfree. We have reviewed the Burchfields’ allegations and find no merit

to their contentions.

Lastly, the Burchfields appear to argue that the trial court should have excluded the

opinions of Drs. Spica and Alexander as scientifically unreliable. As explained by our

Supreme Court:

In general, questions regarding the admissibility, qualifications, relevancy and

competency of expert testimony are left to the discretion of the trial court. The

trial court’s ruling in this regard may only be overturned if the discretion is

arbitrarily exercised or abused. The specific rules of evidence that govern the

issue of admissibility of scientific proof in Tennessee are Tenn. R. Evid. 702

and 703. The former provides:

If scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify

in the form of an opinion or otherwise.

And Tenn. R. Evid. 703 states:

The facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or

made known to the expert at or before the hearing. If of a type

reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or

data need not be admissible in evidence. The court shall

disallow testimony in the form of an opinion or inference if the

underlying facts or data indicate lack of trustworthiness.

McDaniel, 955 S.W.2d at 263-64 (internal citations omitted).

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A trial court should “admit the testimony of a competent expert unless the party

opposing the expert’s testimony shows that it will not substantially assist the trier of fact or

if the facts or data on which the opinion is based are not trustworthy pursuant to Rules 702

and 703.” Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn. 2011). As the Supreme Court

further explained, “The trial court is not to decide how much weight is to be given to the

witness’s testimony. Once the minimum requirements are met, any questions the trial court

may have about the extent of the witness’s knowledge, skill, experience, training, or

education pertain only to the weight of the testimony, not to its admissibility.” Id.

In this case, the Burchfields failed to demonstrate that the facts or data on which the

opinions of Drs. Spica and Alexander were based were untrustworthy. The Burchfields

likewise did not demonstrate that these experts’ testimony would not substantially assist the

trier of fact. As such, the trial court did not abuse its discretion in allowing Drs. Spica and

Alexander to testify. Any questions regarding the weight to be given their testimony were

properly addressed by the jury.

On a related matter, the Burchfields assert that defense counsel removed portions of

Dr. Workman’s written records regarding Mr. Burchfield during defense counsel’s cross-

examination of Dr. Workman, and that those records were never returned. A review of the

transcript evinces that defense counsel did retrieve Dr. Workman’s records during cross-

examination, then purported to return them. Dr. Workman objected on the record that his

entire file was not returned. Defense counsel stated that he would return the subject

documents as needed. The record reflects no further reference to those documents.

The Burchfields filed a motion regarding these missing documents post-trial, but the

trial court failed to make any specific ruling. Dr. Renfree filed a response stating that no

documents were taken. The Burchfields responded by filing an affidavit from Dr. Workman,

wherein he stated that he observed defense counsel remove documents from his file during

trial. Dr. Workman further identified the specific documents that were removed and are now

missing. We consider this to be a significant allegation. This Court cannot address the

matter in the first instance inasmuch as the trial court made no ruling on the motion;

however, upon remand, the trial court is directed to address this issue of missing documents

expeditiously, before this matter is retried.

D. Hunter v. Ura and Speculative Causes

The Burchfields argue that the only admissible evidence of injury causation in this

case is that Mr. Burchfield’s median nerve was cut with the surgeon’s knife. The Burchfields

assert that evidence of other causes of the laceration is speculative and should have been

excluded pursuant to Hunter v. Ura, 163 S.W.3d 686, 702 (Tenn. 2005) (wherein the

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Supreme Court affirmed trial court’s decision to exclude testimony of expert witness who

characterized alternate cause of death as “possibility”, concluding such testimony was

speculative and would not substantially assist trier of fact). Dr. Renfree counters that the

Burchfields’ counsel elicited these responses from the experts and thus should not be heard

to complain.

During cross-examination of Dr. Leibovic, the Burchfields’ counsel asked, “Doctor,

the most likely cause of the cut is the knife, isn’t it?” Dr. Leibovic then responded that while

the use of the knife was a possibility, it was also possible that the median nerve could have

been cut by one of the other surgical instruments, stating, “I don’t know that we can ever in

fact know what cut this nerve.” The Burchfields’ counsel persisted in his questioning

regarding whether the knife was the most likely instrumentality, to which Dr. Leibovic again

responded that it could have been any of the other surgical instruments as well, and that there

was no way to tell for certain.

Dr. Lorio was similarly pressed on cross-examination, testifying that any of the

surgical instruments could have severed the nerve. He testified that “failure to obey the

landmarks could explain this laceration,” and further that “advancing instrumentation in the

wrong plane could explain this laceration.” Dr. Lorio admitted that any of these explanations

were possibilities, after being asked these questions by the Burchfields’ counsel. Regardless,

the experts maintained that Dr. Renfree acted within the standard of care at all times when

performing this procedure. As Dr. Renfree points out, “a party cannot generally be heard to

complain about testimony elicited by his own cross-examination of an opposing party or a

witness.” Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 392 (Tenn. Ct. App. 2006). We find

that the Burchfields elicited the testimony which they now argue was inadmissible, and as

such, cannot complain of error.

E. Dr. Lorio’s Testimony

The Burchfields assert that Dr. Lorio should not have been allowed to testify because

“he demonstrated a lack of judgment such that the court should not have trusted him to

substantially assist the jury to understand the evidence or determine any fact at issue under

Tenn. R. Evid. 702.” In support, the Burchfields state that Dr. Lorio cursed and employed

an ethnic slur during his deposition, and that he also charged an exorbitant fee for his

testimony at trial with little or no explanation. The Burchfields surmise that such charge was

an “apparent impermissible contingency fee.”

As earlier stated, “questions regarding the admissibility, qualifications, relevancy and

competency of expert testimony are left to the discretion of the trial court. The trial court’s

ruling in this regard may only be overturned if the discretion is arbitrarily exercised or

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abused.” McDaniel, 955 S.W.2d at 263. A trial court should “admit the testimony of a

competent expert unless the party opposing the expert’s testimony shows that it will not

substantially assist the trier of fact or if the facts or data on which the opinion is based are

not trustworthy pursuant to Rules 702 and 703.” Shipley, 350 S.W.3d at 551. Despite the

Burchfields’ characterization of Dr. Lorio’s deposition testimony, there was no showing that

Dr. Lorio’s testimony would not substantially assist the jury or that the facts or data on which

his opinion was based were not trustworthy. Further, as the Burchfields admit, Dr. Lorio’s

invoice was sent after the trial was concluded.5 We find no abuse of discretion in the trial

court’s ruling that Dr. Lorio’s testimony was admissible.

VIII. Discovery Issues

The Burchfields next contend that the trial court was “hostile” toward their discovery

efforts and improperly quashed many legitimate discovery requests. The Burchfields state

that Dr. Renfree lacked standing to seek the court’s order in quashing subpoenas issued to

third parties, such as the hospitals where Dr. Renfree performed surgery. The Burchfields

also assert that the trial court improperly refused to allow the Burchfields to file additional

written discovery requests of Dr. Renfree after ruling that he could not be further deposed.

The Burchfields further argue that, by contrast, the trial court improperly failed to exclude

Dr. Renfree’s supplemental discovery response which contained a booklet allegedly provided

to patients by Dr. Renfree’s nurse, when the supplement was filed a few months following

Dr. Renfree’s deposition.

Dr. Renfree contends that the Burchfields engaged in a course of abusive and unduly

burdensome discovery requests which were properly limited by the trial court. Dr. Renfree

states that as the litigation progressed, “it became clear that no amount of discovery would

ever satisfy the Burchfields,” as the Burchfields filed written discovery requests that

exceeded the limits set by local rules and their counsel deposed Dr. Renfree for almost

twelve hours.

Tennessee Rule of Civil Procedure 26.02 (1) provides:

The frequency or extent of use of the discovery methods set forth in

subdivision 26.01 and this subdivision shall be limited by the court if it

determines that: (i) the discovery sought is unreasonably cumulative or

duplicative or is obtainable from some other source that is more convenient,

less burdensome or less expensive; (ii) the party seeking discovery has had

5

There is nothing in the record to show that Dr. Lorio charged a contingency fee as the Burchfields

suggest.

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ample opportunity by discovery in the action to obtain the information sought;

or, (iii) the discovery is unduly burdensome or expensive, taking into account

the needs of the case, the amount in controversy, limitations on the parties’

resources, and the importance of the issues at stake in the litigation. The court

may act upon its own initiative after reasonable notice or pursuant to a motion

under subdivision 26.03.

Our Supreme Court has further explained:

Although the Tennessee Rules of Civil Procedure do not provide a sanction for

abuse of the discovery process, trial judges have the authority to take such

action as is necessary to prevent discovery abuse. Trial courts have wide

discretion to determine the appropriate sanction to be imposed. Such a

discretionary decision will be set aside on appeal only when “the trial court has

misconstrued or misapplied the controlling legal principles or has acted

inconsistently with the substantial weight of the evidence.” Appellate courts

should allow discretionary decisions to stand even though reasonable judicial

minds can differ concerning their soundness.

Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004) (internal citations

omitted).

We find no abuse of the trial court’s discretion in the limitations placed on discovery

in this case. As the trial court found, the discovery requests that were quashed were unduly

burdensome and often duplicative. For example, the request that hospitals and surgery

centers search years’ worth of records and provide copies of every consent form signed by

Dr. Renfree regarding carpal tunnel surgery on any patient is unreasonable at best. Further,

the trial court had the authority pursuant to Tennessee Rule of Civil Procedure 26.02 (1) to

“act on its own initiative” in limiting this burdensome discovery. We do not find that the trial

court “misconstrued or misapplied the controlling legal principles or has acted inconsistently

with the substantial weight of the evidence” in the manner in which discovery was limited

in this case. See Mercer, 134 S.W.3d at 133.

The Burchfields also assert that the trial court should have excluded Dr. Renfree’s

supplemental discovery response, which identified a booklet allegedly provided to Mr.

Burchfield by Robin Jenks, R.N. The Burchfields state that Dr. Renfree originally answered

their written discovery on December 22, 2008, and therein failed to disclose the existence of

this booklet or Ms. Jenks as a known witness of events. The Burchfields state that Dr.

Renfree was deposed on February 22, 2010, and never testified regarding this booklet or Ms.

Jenks. The booklet and Ms. Jenks’ knowledge regarding same were not disclosed until a

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supplemental response was filed on May 18, 2010. The Burchfields insist that it was error

for the trial court to have failed to exclude this evidence and/or for the trial court to have

refused the Burchfields’ request to depose Dr. Renfree again after this evidence was

disclosed.

Again, we find no abuse of discretion in the trial court’s decision regarding this

discovery issue. As stated above, this Court “should allow discretionary decisions to stand

even though reasonable judicial minds can differ concerning their soundness.” See Mercer,

134 S.W.3d at 133. We discern no error in the trial court’s rulings regarding discovery

matters.

IX. Verdict Against Weight of Evidence

Because we have previously determined that reversible error exists mandating a new

trial, an analysis of this issue is pretermitted.

X. Directed Verdicts Regarding Battery, Fraud/Misrepresentation,

and Punitive Damages

At the conclusion of the Burchfields’ case-in-chief, the trial court granted Dr.

Renfree’s motion for directed verdict on the battery, fraud, and misrepresentation claims

presented by the Burchfields. As Dr. Renfree concedes, a motion for directed verdict should

only be granted when the evidence is insufficient to create an issue for the jury to decide or

when the evidence is susceptible to only one conclusion. Newcomb v. Kohler Co., 222

S.W.3d 368, 390 (Tenn. Ct. App. 2006). This Court further stated:

The rule for determining a motion for directed verdict requires the trial judge

and the appellate courts to look to all of the evidence, take the strongest,

legitimate view of the evidence in favor of the opponent of the motion and

allow all reasonable inferences from it in his favor. The court must disregard

all countervailing evidence and if there is then any dispute as to any material,

determinative evidence or any doubt as to the conclusions to be drawn from

the whole evidence, the motion must be denied.

Id. (Internal citations omitted). “The court may grant the motion only if, after assessing the

evidence according to the foregoing standards, it determines that reasonable minds could not

differ as to the conclusions to be drawn from the evidence.” Id. (quoting Eaton v. McLain,

891 S.W.2d 587, 590 (Tenn. 1994). See also Biscan v. Brown, 160 S.W.3d 462, 470 (Tenn.

2005).

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The Burchfields raised claims of both lack of informed consent and medical battery

in this case. This Court has previously explained the distinction between these claims as

follows:

A medical battery occurs when a physician performs an unauthorized

procedure. Typically, a medical battery involves a physician performing a

procedure that the patient did not know the physician was going to perform or

a physician performing a procedure on a part of the body other than the one

described to the patient. The controlling factual issues in these cases are

whether the patient knew the physician was going to perform the procedure

and whether the patient authorized the physician to perform it. According to

the Tennessee Supreme Court, if the answer to either of these questions is no,

a medical battery has been committed. Because the answers to these questions

focus on the patient’s knowledge and awareness, patients pursuing a medical

battery claim need not present expert evidence to support their claim.

In contrast, a lack of informed consent violation occurs when the patient is

aware that a procedure is going to be performed but is unaware of the potential

risks associated with the procedure. The tort does not relate to the manner in

which the procedure was performed, but rather to the manner in which the

physician obtained the patient’s consent to perform the procedure. These

claims are part of the medical malpractice statutes. See Tenn. Code Ann. § 29-

26-118 (1980). Accordingly, patients seeking damages for lack of informed

consent must prove that the physician’s conduct fell below the applicable

standard of care and that reasonably prudent persons in the patient’s position

would not have consented to the procedure if they had been suitably informed

of the risks, benefits, and alternatives.

The inquiry in lack of informed consent cases is whether the physician

provided the patient sufficient information to enable the patient to make an

intelligent and informed decision either to refuse or consent to the procedure.

To prove that the information was insufficient, a patient must present evidence

that his or her physician failed to disclose information about the risks of the

proposed procedure that a reasonable physician would have disclosed under

similar circumstances. This evidence must take the form of expert testimony

because it is clearly beyond the common knowledge of laypersons.

Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. Ct. App. 2000) (other internal citations

omitted). Regarding a medical battery claim, this Court went on to explain that a signed

consent form gives rise to a presumption that the patient authorized the procedure “in the

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absence of proof of misrepresentation, inadequate disclosure, forgery, or lack of capacity.”

Id. at 161.

This Court has previously found that a plaintiff stated a claim for medical battery

sufficient to survive summary judgment wherein his agreement to sign a consent form was

based on the physician’s alleged factual misrepresentation that he had spoken to the

plaintiff’s treating physician and the treating physician agreed that the procedure should be

performed. Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370 (Tenn. Ct.

App. Jan. 13, 2005). In its analysis of this issue, this Court explained:

Dr. Alexander correctly asserts that a signed consent form shows that the

plaintiff was aware that the surgery was going to take place. The signed

consent form, however, raises only a presumption of consent to surgery. A

claim for medical battery can be established if it is shown that the physician

intentionally or recklessly misrepresented a material fact in order to obtain the

patient’s signature on the consent form, thus vitiating the patient’s consent.

For example, in Petzelt v. Tewes, 581 S.E.2d 345, 347 (Ga. Ct. App. 2003), the

plaintiff consented to a “denervation” procedure to alleviate pain in her back,

based on the defendant physician’s representation that the patient’s orthopedic

surgeon was “fully aware” of everything the defendant physician was doing.

In reality, the defendant physician had dictated notes indicating a “c.c.” to the

orthopedic surgeon, but had no idea whether the orthopedic surgeon had either

received or reviewed the notes. It turned out that the orthopedic surgeon was

unaware of the defendant physician’s course of treatment of the plaintiff. The

appellate court found that the jury could conclude from the evidence that the

defendant physician had misrepresented to the plaintiff that the orthopedic

surgeon had acquiesced to her treatment plan for the plaintiff. Under these

circumstances, the plaintiff’s consent to the medical procedure “may be

vitiated.” Id.; see also Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435,

440 (Ariz.2003) (en banc) (holding that although consent to injection was

given, consent was obtained by misrepresentation and, thus, was invalid).

In the instant case, Holt submitted his own testimony that Dr. Alexander

represented to him that he had spoken to Dr. Meriwether before the surgery

and that Dr. Meriwether approved of the procedure. In fact, Dr. Alexander

admits he did not talk with Dr. Meriwether, and he later discovered that Dr.

Meriwether did not order the procedure. This claim is not one of lack of

informed consent, where the physician “failed to inform [the patient] of any or

all risks or aspects associated with a procedure.” According to the

Restatement of Torts:

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If the person consenting to the conduct of another is induced to

consent by a substantial mistake concerning the nature of the

invasion of his interests or the extent of the harm to be expected

from it and the mistake is known to the other or is induced by

the other’s misrepresentation, the consent is not effective for the

unexpected invasion or harm.

Restatement 2d Torts 892B(2) (1979), quoted in Duncan, 70 P.2d at 440.

Under comment h of the Restatement, a patient adversely affected by the

misrepresentation may either bring an action for misrepresentation or “treat the

consent as invalid and maintain any tort action open to him in the absence of

consent.” Where a signed consent form raises the presumption of valid

consent, and the plaintiff claims that his consent was vitiated by

“misrepresentation, inadequate disclosure, forgery, or lack of capacity,” a

claim for medical battery is stated and expert testimony is not necessary to

prove such a claim.

Holt, 2005 WL 94370 at *6 (Tenn. Ct. App. Jan. 13, 2005) (other internal citations omitted).

In the case at bar, the Burchfields allege that the consent forms signed by Mr.

Burchfield are fraudulent and/or contain material misrepresentations because said forms state

that Dr. Renfree had discussed “anesthetics” with Mr. Burchfield, as well as “alternatives”

to endoscopic carpal tunnel release surgery and the risks and benefits of those alternatives.

The Burchfields contend that Dr. Renfree did not discuss such matters with Mr. Burchfield;

thus, Mr. Burchfield’s consent was “vitiated” by this alleged fraud/misrepresentation. Dr.

Renfree contends that he did discuss with Mr. Burchfield that he would be given anesthesia

as well as the type of anesthesia that would be used. Dr. Renfree further contends that he

discussed “alternatives” to the endoscopic carpal tunnel release procedure with Mr.

Burchfield many times, and that they had, in fact, attempted a number of conservative

treatment options prior to the surgery.

Mr. Burchfield testified that when he first consulted Dr. Renfree, he was experiencing

pain in his hands and left elbow. Dr. Renfree initially suggested he try wearing splints. Mr.

Burchfield testified that the splints helped while he was wearing them, but did not completely

alleviate the pain. When Mr. Burchfield returned to see Dr. Renfree, he was given samples

of medication and a test was ordered. Mr. Burchfield testified that upon his return to see Dr.

Renfree a few weeks later, surgery on his left arm was first discussed. Mr. Burchfield

testified that he had a subsequent visit with Dr. Renfree during which they discussed the

surgery before he decided to have it done. Mr. Burchfield testified that Dr. Renfree told him

he performed the surgery using a scope because such procedure caused less scarring, had less

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chance of infection, and Mr. Burchfield would return to work more quickly. Mr. Burchfield

testified that he asked Dr. Renfree about open surgery, which he referred to as “the old

surgery,” that his wife and mother had done years before. Dr. Renfree told him that he

probably wouldn’t find anyone to perform that type of surgery, as the endoscopic procedure

was “the thing that was going on right now.” Mr. Burchfield understood from this

conversation that the surgery his wife and mother had was “a thing of the past.” Mr.

Burchfield testified that if open surgery had been offered to him, he would have chosen that

alternative.

Mr. Burchfield admitted signing the informed consent form before his first surgery,

and he stated that he and Dr. Renfree “talked about some of the risks and benefits, but I

didn’t know them all.” Mr. Burchfield testified that the risks and benefits of the surgery were

discussed on two separate occasions. Mr. Burchfield testified that the surgery on his left arm

was successful. He returned to see Dr. Renfree about three weeks later. As his left elbow

was still tender, Dr. Renfree referred him to physical therapy. Mr. Burchfield saw Dr.

Renfree again approximately one month later, and discussed having the surgery on his right

arm. Mr. Burchfield again admitted that Dr. Renfree discussed the risks and benefits of the

surgery with him, but he stated that Dr. Renfree did not specifically mention the possibility

of damage to the median nerve or other surgical procedures. Mr. Burchfield testified that Dr.

Renfree told him, “We’ll just do it like we did the other one.” Mr. Burchfield signed a

second consent form. Mr. Burchfield also signed anesthesia consent forms, and he testified

that Dr. Renfree told him he would be given anesthesia, but did not discuss any specifics.

Mr. Burchfield’s testimony regarding these events was corroborated by his wife.

Viewing the proof in the light most favorable to the Burchfields, it is clear that Dr.

Renfree discussed and attempted alternatives to surgery with Mr. Burchfield before Mr.

Burchfield signed the informed consent form. It is also clear that Mr. Burchfield knew and

understood that anesthesia would be used for the procedure. As the trial court correctly

found, Mr. Burchfield’s claims regarding types and availability of alternative procedures, the

risks of the procedures, and other related matters, sound in lack of informed consent rather

than medical battery. Mr. Burchfield signed a consent form for each procedure, which raises

a presumption that he authorized the procedure “in the absence of proof of

misrepresentation, inadequate disclosure, forgery, or lack of capacity.” Church, 39 S.W.3d

at 161. Upon a careful review of the record, we do not find proof of any such

misrepresentation or fraud that would vitiate Mr. Burchfield’s signed consent form in this

case. As such, we affirm the trial court’s grant of a directed verdict on the Burchfields’

medical battery claims, along with the underlying claims of fraud and misrepresentation, as

well as the accompanying claim for punitive damages.

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XI. Judgment as Matter of Law Regarding Battery and Negligence

The Burchfields assert that they are entitled to partial summary judgment or judgment

as a matter of law on their claim of medical battery. We disagree. Having found no fraud

or misrepresentation that would vitiate Mr. Burchfield’s consent form, there is no basis for

finding that a medical battery occurred.

The Burchfields also assert that they are entitled to partial summary judgment or

judgment as a matter of law on their claim of negligence pursuant to the health care liability

act. A review of the record demonstrates that the Burchfields never made such a motion

before the trial court, however, thereby precluding our ability to rule on this issue.

XII. Motion to Supplement the Record

Prior to oral argument, the Burchfields filed a Motion asking this Court to allow them

to supplement the record with an audio recording of a telephonic message left for their

counsel by appellee’s counsel. We hereby grant the Motion as it was unopposed by Dr.

Renfree. We have considered the additional information but find that the audio recording

has no bearing on the outcome of this appeal.

XIII. Conclusion

The jury’s verdict is vacated, as there was reversible error in the administration of the

trial. The case is remanded for further proceedings consistent with this opinion. Costs on

appeal are assessed to the Appellee, Dr. Timothy Renfree.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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