Cindy Hatfield v. Allenbrooke Nursing and Rehabilitation Center, LLC

08/06/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 18, 2018 Session

CINDY HATFIELD, ET AL. v. ALLENBROOKE NURSING AND

REHABILITATION CENTER, LLC, ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-004249-10 Donna M. Fields, Judge

___________________________________

No. W2017-00957-COA-R3-CV

___________________________________

This appeal results from a jury trial on claims of negligence, medical malpractice, and

violations of the Tennessee Adult Protection Act by a nursing home. In addition to

finding the limited liability company nursing home liable for the resident’s injuries, the

jury awarded extensive compensatory and punitive damages against the nursing home’s

related administrative services provider, the nursing home’s parent companies, and the

individual members of the parent companies. Defendants appeal, raising a variety of

issues related to the jury impaneled, the evidence presented, and the finding of liability

against the non-nursing home defendants. We reverse the jury’s decision finding material

evidence to subject the nursing home’s parent companies and their members directly or

vicariously liable in this case. We affirm the direct liability of the nursing home’s

administrative services provider. Because the amount of punitive damages awarded by

the jury appears to be largely predicated on the liability of the non-nursing home

defendants, we vacate the award and remand for a new hearing solely as to the amount of

punitive damages to be awarded. In all other respects, the verdict is affirmed. Affirmed in

part, reversed in part, vacated in part, and remanded.

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

Part; Reversed in Part; Vacated in Part; and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.

GOLDIN and KENNY ARMSTRONG, JJ., joined.

Leo Bearman, Craig Conley, and Kristine L. Roberts, Memphis, Tennessee; and A.

La’verne Edney, Jackson, Mississippi, for the appellants, Allenbrooke Nursing and

Rehabilitation Center, LLC, d/b/a Allenbrooke Nursing and Rehabilitation Center;

Aurora Cares, LLC; DTD HC, LLC; D&N, LLC; Donald Denz, Individually and as the

Sole Member of DTD HC, LLC, and Chief Executive Officer and Chief Financial Officer

of Aurora Cares, LLC; and Norbert Bennett. Individually, and as the Sole Member of

D&N, LLC and Chief Executive Officer of Aurora Cares, LLC.

Cameron C. Jehl, Carey L. Acerra, Deena K. Arnold, Memphis, Tennessee; Kenneth L

Connor, Aiken, South Carolina; and Stephen Trzcinski, Philadelphia, Pennsylvania, for

the appellee, Cindy Hatfield, as Administratrix of Estate of Martha Jane Pierce,

Deceased, and on Behalf of the Wrongful Death Beneficiaries of Martha Jane Pierce.

OPINION

Background

This case involves the treatment and care of a patient, Martha Jane Pierce, while in

the care of Allenbrooke Nursing Home, LLC (“Allenbrooke” or “the facility”). When

Mrs. Pierce arrived at the facility, she had been diagnosed with several existing ailments,

such as high blood pressure, dementia, coronary artery disease, and had undergone a

bypass surgery. In May 2009, Mrs. Pierce suffered a stroke, which rendered her largely

immobile and reliant on substantial care at the facility. In June 2009, a pressure wound

was discovered on Mrs. Pierce’s foot.1 Ultimately, the wound became severely infected,

and Mrs. Pierce’s leg was amputated above the knee on August 7, 2009. Following the

operation, Mrs. Pierce returned to the facility. Mrs. Pierce died on October 11, 2009.2

On August 26, 2010, Cindy Hatfield, as Administratrix of Mrs. Pierce’s estate and

on behalf of her wrongful death beneficiaries (in her administrative capacity, “Plaintiff”)

filed a complaint against Allenbrooke, Aurora Cares, LLC (“Aurora Cares”), a limited

liability company that provided administrative services to Allenbrooke, DTD HC, LLC

(“DTD”) and D&N, LLC (“D&N”), the limited liability companies that own

Allenbrooke, and the members of DTD and D&N, Norbert Bennett and Donald Denz

(“the individual defendants,” with Aurora Cares, DTD, and D&N, “the non-Allenbrooke

Defendants,” and all together with Allenbrooke, “Defendants”). The non-Allenbrooke

Defendant companies are based in New York and the individual defendants are residents

of New York. The complaint alleged that Allenbrooke and the other defendants were all

liable for negligence, medical malpractice, breach of contract, violations of the Tennessee

Adult Protection Act (“TAPA”), and wrongful death.3 The complaint sought both

compensatory and punitive damages against all Defendants.

1

These types of injuries are referred to variously as pressure sores and pressure ulcers. See

Mosby’s Dictionary of Medicine, Nursing & Health Professions 1450 (9th ed. 2013) (defining a pressure

ulcer as synonymous with “bedsore, . . . pressure necrosis, pressure sore”).

2

Mrs. Pierce’s husband also resided at the facility and continued to do so after her death. There

are no allegations in this case concerning negligence toward Mr. Pierce.

3

In 2012, the Tennessee Generally Assembly enacted a law that changed all codifications

referring to “medical malpractice” to “health care liability.” See 2011 Tennessee Laws Pub. Ch. 510 (H.B.

2008), eff. Oct. 1, 2011. Because this action was instituted in August 2010, we continue to use the

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The parties litigated several motions in limine; some motions were resolved prior

to trial, while the trial court took some motions under advisement pending trial. The trial

court also denied several motions to dismiss the non-Allenbrooke Defendants, both on

jurisdictional grounds and because the non-Allenbrooke Defendants were allegedly not

involved in Mrs. Pierce’s care.

A five week jury trial began in July 2016. During juror selection two allegedly

improper jurors were placed on the jury despite for cause challenges by Defendants: (1) a

juror who stated that he had negative feelings toward nursing homes but could be fair;

and (2) a juror that the trial court described as having “special needs” who later told the

trial court he was off his “meds” and needed to see his psychiatrist.

Ms. Hatfield, Mrs. Pierce’s daughter, testified that Mrs. Pierce lost mobility

following a May 2009 stroke. As such, she required considerable care in repositioning

and bathing. According to Ms. Hatfield, she was often concerned about the lack of care

given to her mother at Allenbrooke and staff at Allenbrooke never informed her of the

severity of Mrs. Pierce’s wound until Mrs. Pierce’s son discovered it in August 2009.

Allenbrooke staff documented the wound, however, as early as June 29, 2009. By August

2009, the wound had become so infected that Ms. Hatfield testified that it smelled like

“death.” Because Mrs. Pierce’s flesh had necrotized, amputation above the knee was

required. According to Plaintiff’s witnesses, Allenbrooke’s records showed that Mrs.

Pierce did not receive proper care following the discovery of the wound, as consultations

with wound specialists and dieticians were improperly delayed, the recommendations

from these specialists were not timely or properly implemented, and Mrs. Pierce was not

properly receiving prescribed pain medications.

During trial, Plaintiff presented testimony from several former Allenbrooke

employees, including four certified nursing assistants (“CNAs”), one licensed practical

nurse (“LPN”), and one former staff development coordinator. These witnesses testified

as to their recollections of Mrs. Pierce, as well as general conditions in the nursing

home.4 Generally, these witnesses testified that because of understaffing at Allenbrooke,

residents were often not properly turned or found sitting in their own urine or feces,

including Mrs. Pierce. According to the testimony and Allenbrooke’s own training

videos, these conditions “can burn the skin making it five times more likely to get a

pressure ulcer.” At times, the CNAs testified that the residents had been sitting in that

condition for quite some time, as evidenced by the fact that the bodily fluids had dried to

brown rings on the residents’ bedding. The witnesses also testified that Allenbrooke was

made aware of the understaffing but made efforts to conceal the understaffing during

state surveys; the witnesses admitted, however, that the surveys were random and no

notice was provided of the dates of the surveys.

terminology applicable at that time.

4

Some of the witnesses had no recollection of Mrs. Pierce, particularly staffing coordinator

Tonette Rogers.

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The trial court permitted Plaintiff to ask leading questions of these witnesses on

the ground that they were former Allenbrooke employees and also refused to allow

Defendants to delve into any bias the witnesses may have had related to whether they

were terminated from Allenbrooke. Ms. Hatfield also testified that another doctor who

was not involved in the litigation had informed her that she definitely had a lawsuit. In

addition, despite an earlier motion in limine, Plaintiff’s “summary” expert, Victoria

Fierro, was also allegedly allowed to testify to matters other than what had been

previously ordered by the trial court. According to Defendants, Ms. Fierro was

unqualified to testify as to these issues. Ms. Fierro generally testified that according to

Allenbrooke’s records, it saved money by not properly staffing its facility to meet

resident needs. In contrast, Defendants called their own expert to rebut Ms. Fierro’s

calculations.

Mr. Denz and Mr. Bennett were also called to discuss their role in Allenbrooke.

Mr. Denz and Mr. Bennett admitted that DTD and D&N had no real operations outside of

ownership interests in other limited liability companies. Both Mr. Denz and Mr. Bennett

insisted, however, they were not involved in the day-to-day operations of either

Allenbrooke or Aurora Cares. Mr. Denz and Mr. Bennet maintained that DTD and D&N

likewise had no involvement in the operations of Allenbrooke or Aurora Cares. Corporate

documents were admitted, however, that showed that the individual defendants had

granted themselves “complete, full, exclusive discretion, power, and authority” in the

management of Allenbrooke and their respective holding companies. Mr. Denz and Mr.

Bennett contended, however, that they never exercised this power. With regard to

Allenbrooke specifically, they asserted that Tennessee law requires that the operational

power be vested in a licensed administrator. See Tenn. Comp. R. & Regs. 1200-08-06-

.04(a). Although Mr. Denz and Mr. Bennett admitted that they were on the governing

board of Allenbrooke, they asserted that they never exercised any control over staffing or

care issues at Allenbrooke, as those decisions were left to the administrator’s discretion.

Allenbrooke licensed administrator Bobby Meadows and Aurora Cares President Chance

Becnel confirmed that neither Mr. Denz nor Mr. Bennett ever interfered in staffing or

care decisions at Allenbrooke. Mr. Denz and Mr. Bennett did admit that, in connection

with their interest in Allenbrooke, they had created and recommended a bonus structure

for Allenbrooke’s administrator and other managing personnel that would award a bonus

based in part on budgetary issues. According to Administrator Meadows, however, the

bonus was merely a “recommendation.”

Plaintiff also presented two medical experts: (1) a nurse practitioner who opined

that the nursing care provided in this case fell well below the standard of care; and (2) Dr.

Todd Robbins, who opined that Mrs. Pierce’s injuries were the result of a “total neglect”

of care by Allenbrooke.

Following the denial of a motion for directed verdict, Defendants called a nurse

practitioner as an expert to testify that Allenbrooke’s care did not fall below the standard

of care; Plaintiff attacked the expert’s credibility on the basis that she had previously

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worked as an actress. Defendants also called a physician, who opined that Mrs. Pierce’s

injuries were not the result of Defendants’ negligence, but caused by other factors such as

loss of circulation in her legs. Current Allenbrooke employees and Defendants’ expert

witness testified that Allenbrooke was not understaffed and that Allenbrooke met all state

and federal requirements with regard to staffing. Defendants also called witnesses to

show that none of the non-Allenbrooke Defendants had any role in the day-to-day

operation of the nursing home or any of its medical or staffing decisions. Defendants

renewed their motion for a directed verdict at the close of the proof, but the motion was

again denied.

The parties engaged in extensive argument as to the jury verdict form and the jury

instructions; they eventually agreed to a twenty-page jury form involving claims of

medical negligence, general negligence, TAPA, and punitive damages. The jury form did

not specifically discuss comparative fault. After the jury was asked to find the Defendants

liable on the three claims alleged, the special verdict form then asked the jury to

determine if the Defendants were agents, joint ventures, or alter egos of each other. If the

jury found one or more of these theories to be supported by the proof, the jury verdict

form stated that the jury need not apportion fault among the parties. The jury ultimately

awarded a verdict against all of the Defendants for negligence in the amount of

$1,906,000.00 and for TAPA violations in the amount of $129,000.00.5 The jury also

found that the Defendants were jointly and severally liable under the theories of agency,

joint venture, and alter ego. Although the jury found all of the Defendants liable for

medical malpractice, it assessed no separate damages for this tort. The jury did not find

Defendants liable for Mrs. Pierce’s death. The jury did find, however, that Defendants’

conduct was sufficient to warrant the imposition of punitive damages.

A trial was thereafter held to determine the amount of punitive damages to be

awarded. The jury ultimately awarded $28,000,000.00 in punitive damages:

$2,000,000.00 each against Allenbrooke, Aurora Cares, DTD, and D&N; and

$10,000,000.00 against each of the individual defendants. The trial court asked each

party to submit proposed findings of fact and conclusions of law on the punitive damages

issue; according to Defendants, the trial court adopted Plaintiff’s proposed order largely

verbatim although it did not track the trial court’s oral ruling. The trial court later denied

all post-trial motions, including a motion for judgment notwithstanding the verdict or in

the alternative for a new trial (“motion for new trial”)6 and a motion requesting remittitur.

From this judgment, Defendants appeal.

5

The jury form included questions regarding the liability of the non-Allenbrooke Defendants on

the basis of direct liability, agency, joint venture, and alter ego. The jury found liability under all theories.

6

We are cognizant that motions for new trial and motions for judgment notwithstanding the

verdict, aka motions for judgment in accordance with a motion for directed verdict, have separate

purposes. See generally Cortez v. Alutech, Inc., 941 S.W.2d 891, 893 (Tenn. Ct. App. 1996) (discussing

the differences in these motions). We refer to Defendants’ motion simply as a motion for new trial for

ease of reading.

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Issues Presented

Defendants collectively raise the following issues, which are taken from their brief

and slightly restated:

1. Whether the trial court erred in refusing to strike biased and/or

incompetent jurors from the jury.

2. Whether the trial court erred in allowing irrelevant and highly

prejudicial testimony to be introduced by Plaintiff from former employees

of Allenbrooke and then refusing to allow Defendants to cross-examine

those former employees as to their bias.

3. Whether the trial court erred in allowing improper cross-examination

of one of Defendants’ expert witnesses in violation of Rule 608 of the

Tennessee Rules of Evidence.

4. Whether the trial court erred in refusing to grant a mistrial when

Plaintiff’s counsel elicited hearsay testimony from Ms. Hatfield that a

physician told her she “[d]efinitely” had a lawsuit, particularly after

Defendants had filed a motion in limine to prohibit such testimony.

5. Whether the trial court erred in allowing improper and prejudicial

opinion testimony from Plaintiff’s summary witness, Victoria Fierro, in

violation of Plaintiff’s representation that Ms. Fierro would not testify to

opinions, in violation of the trial court’s own order that Ms. Fierro would

not be allowed to testify to opinions, and in violation of Rule 1006 of the

Tennessee Rules of Evidence.

6. Whether the trial court erred in allowing Ms. Fierro to give opinion

evidence because she was unqualified to do so.

7. Whether the trial court erred in approving the jury verdicts, which,

as evidenced by the special jury verdict form, were inconsistent and

illogical, and which improperly apportioned fault jointly and severally

against all Defendants in disregard of Tennessee law.

8. Whether the trial court erred in approving a transparently excessive

compensatory damage verdict.

9. Whether the trial court erred in upholding the jury’s finding of

punitive damage liability against Defendants.

10. Whether the trial court erred in approving an unconstitutional and

clearly excessive punitive damage award.

11. Whether the trial court erred in adopting Plaintiff’s version of

findings of fact and conclusions of law with regard to punitive damages in

violation of the requirements delineated in Smith v. UHS of Lakeside, Inc.,

439 S.W.3d 303 (Tenn. 2014).

12. Whether the trial court’s punitive damage review pursuant to

Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992), was factually

inadequate and legally erroneous, as it was based on direct contradictions of

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the evidence, including a nonexistent finding by the jury that Defendants

were responsible for the death of Plaintiff’s decedent.

13. Whether the trial court erred in its Hodges review by applying the

wrong standard of review to the punitive damages verdict and the amount

of punitive damages awarded.

14. Whether the trial court erred in failing to grant a remittitur as to both

the compensatory and punitive damage awards.

15. Whether the trial court erred in failing to order a new trial in the

interests of justice.

The non-Allenbrooke Defendants also raise a number of issues that are particular only to

them:

1. Whether the trial court erred in failing to dismiss out-of-state

defendants Mr. Denz, Mr. Bennett, DTD, and D&N for lack of personal

jurisdiction.

2. Whether the trial court erred in considering Mr. Denz, Mr. Bennett,

DTD, D&N, Aurora Cares, and Allenbrooke as alter egos by allowing the

jury to pierce the corporate veil and by disregarding the separateness of

each corporate entity Defendant and each individual Defendant.

3. Whether the trial court erred in failing to grant a directed verdict in

favor of Mr. Denz, Mr. Bennett, DTD, D&N, and Aurora Cares at the

conclusion of Plaintiff’s proof.

4. Whether the trial court erred in allowing Plaintiff’s causes of action

for alleged medical malpractice and violation of TAPA to be submitted to

the jury against Mr. Denz, Mr. Bennett, DTD, D&N, and Aurora Cares.

Analysis

I. Personal Jurisdiction

We begin with the question of whether the trial court possessed personal

jurisdiction over the individual defendants, Mr. Denz and Mr. Bennett, as well as DTD

and D&N. “A decision regarding the exercise of personal jurisdiction over a defendant

involves a question of law.” Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 645

(Tenn. 2009). As such, the decision is reviewed de novo with no presumption of

correctness. Id. (citing Woodruff v. Anastasia Int’l, Inc., No. E2007-00874-COA-R3-

CV, 2007 WL 4439677, at *3 (Tenn. Ct. App. Dec.19, 2007) perm. app. withdrawn

(Tenn. Apr. 7, 2008)).

A brief recitation of the procedural history with regard to this issue is helpful.

Here, the individual defendants, DTD, and D&N filed a motion to dismiss on October 11,

2010, arguing that the trial court lacked personal jurisdiction over them for purposes of

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this case. The motions languished for some time and the parties proceeded to discovery.

On October 27, 2014, new counsel appeared for the individual defendants, DTD, and

D&N. Then, on November 7, 2014, the individual defendants, DTD, and D&N filed a

new motion to dismiss, or in the alternative, for summary judgment; the motion raised

several bases for dismissal, but did not specifically address personal jurisdiction.

On May 19, 2015, Plaintiff filed a motion for default judgment against the

individual defendants, DTD, and D&N. Therein, Plaintiff noted that while these parties

had filed a motion to dismiss based on personal jurisdiction years earlier, they had not

scheduled their motion for hearing, nor had they filed an answer. The individual

defendants, DTD, and D&N responded in opposition, noting that they had filed a motion

to dismiss, had fully participated in the case, and were vigorously defending their rights.

The individual defendants, DTD, and D&N filed an answer on the same day, raising as an

affirmative defense lack of personal jurisdiction. On July 2, 2015, the individual

defendants, DTD, and D&N filed a supplement to their motion to dismiss. On July 10,

2015, Plaintiff responded in opposition to the motion to dismiss.

Although the trial court had orally ruled that it maintained personal jurisdiction

over the individual defendants, DTD, and D&N, the trial court did not enter an order

denying any pending motions to dismiss until August 3, 2015. The order incorporated the

trial court’s oral ruling, wherein it found that the individual defendants had exerted

enough control over Allenbrooke to subject them to jurisdiction in Tennessee. The trial

court noted, however, that it wanted to “continue to read” and consider the jurisdictional

issue.

Apparently in response to the trial court’s oral ruling, the individual defendants,

DTD, and D&N filed a motion to alter or amend the denial of the motion to dismiss for

lack of personal jurisdiction on July 24, 2015. The trial court denied the motion by order

of May 10, 2016. Therein, the trial court denied the motion on two bases: (1) that the

individual defendants, DTD, and D&N had sufficient contacts with Tennessee to be

subject to personal jurisdiction here; and (2) that the individual defendants, DTD, and

D&N “waived the defense of lack of personal jurisdiction and submitted to the Court’s

jurisdiction when [they] sought affirmative relief from the Court in the form of [several

listed motions and orders].”

On appeal, the individual defendants, DTD, and D&N argue that the trial court

erred in finding that it possessed personal jurisdiction over them. Rather than arguing that

the trial court properly exercised personal jurisdiction over the individual defendants,

DTD, and D&N, Plaintiff asserts that this issue has been waived because the individual

defendants, DTD, and D&N did not address the second basis of the trial court’s May 10,

2016 order—waiver. We agree.

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Here, the trial court entered two written orders on the issue of personal

jurisdiction. First, on August 3, 2015, the trial court denied the motion to dismiss for lack

of personal jurisdiction on the ground that the facts showed sufficient contacts with

Tennessee to subject the individual defendants to jurisdiction here. The trial court,

however, essentially invited further litigation with its oral ruling, noting that further

research could be done on the issue. The individual defendants, DTD, and D&N accepted

the trial court’s invitation and filed a motion to alter or amend the trial court’s ruling. As

noted by the individual defendants, DTD, and D&N in their reply brief, because this case

was non-final at the time of the August 3, 2015 order, the trial court’s denial of the

motion to dismiss was interlocutory in nature and subject to revision at any time prior to

the entry of a final order. See Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983) (noting that

an interlocutory order “can be revised at any time before the entry of judgment

adjudicating all the claims and rights and liabilities of all parties”); Winter v. Smith, 914

S.W.2d 527, 535 (Tenn. Ct. App. 1995) (stating that an interlocutory order is “subject to

revision by the trial court any time prior to the entry of a final judgment adjudicating all

the claims raised”). As such, Rule 54.02 of the Tennessee Rules of Civil Procedure

provides a mechanism for revision of non-final orders:

When more than one claim for relief is present in an action, whether as a

claim, counterclaim, cross-claim, or third party claim, or when multiple

parties are involved, the Court, whether at law or in equity, may direct the

entry of a final judgment as to one or more but fewer than all of the claims

or parties only upon an express determination that there is no just reason for

delay and upon an express direction for the entry of judgment. In the

absence of such determination and direction, any order or other form of

decision, however designated, that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of the judgment

adjudicating all the claims and the rights and liabilities of all the parties.

Thus, the August 3, 2015 order was not the final order with regard to the

jurisdictional issue in this case. Instead, the individual defendants, DTD, and D&N

exercised their right under Rule 54.02 to seek revision of that order, which resulted in the

trial court’s May 10, 2016 order. The trial court’s May 2016 order does not specifically

reserve any issues with regard to personal jurisdiction for final review. Moreover, the

individual defendants, DTD, and D&N cite no later written orders in which the trial court

ruled on the jurisdictional argument or specifically altered its May 10, 2016 ruling prior

to final judgment in this case.7 The May 10, 2016 order was therefore the final written

7

The individual defendants, DTD, and D&N argue that the trial court’s oral rulings should also

be considered as separate instances in which the trial court issued a ruling on the jurisdictional issue, none

of which address waiver. It is well-settled, however, that the courts speak through their orders. See Ladd

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order in place on this issue at the time of the final judgment. Consequently, this order is

the operative order for purposes of this appeal. Cf., Hannah v. Beyer, No. 02A01-9110-

CH-00217, 1994 WL 37749, at *2 (Tenn. Ct. App. Feb. 7, 1994) (“[W]hen a final

judgment is entered all of the interlocutory orders become final.”).

The trial court’s May 10, 2016 order clearly contains two bases for denying the

motion to dismiss: (1) that minimum contacts had been found to support exercising

personal jurisdiction; and (2) that the individual defendants, DTD, and D&N waived the

defense of lack of personal jurisdiction. Generally, where a trial court provides more than

one basis for its ruling, the appellant must appeal all the alternative grounds for the

ruling. See 5 Am. Jur. 2d Appellate Review § 718 (“[W]here a separate and independent

ground from the one appealed supports the judgment made below, and is not challenged

on appeal, the appellate court must affirm.”); see also Tower Oaks Blvd., LLC v.

Procida, 219 Md. App. 376, 392, 100 A.3d 1255, 1265 (Md. 2014) (“The law of

appellate review establishes that, “‘[w]hen a separate and independent ground that

supports a judgment is not challenged on appeal, the appellate court must affirm.’”)

(citation omitted); Prater v. State Farm Lloyds, 217 S.W.3d 739, 740–41 (Tex. App.

2007) (“When a separate and independent ground that supports a ruling is not challenged

on appeal, we must affirm the lower court’s ruling.”); Johnson v. Commonwealth of

Virginia, 45 Va. App. 113, 116, 609 S.E.2d 58, 60 (Va. 2005) (“[W]e join the majority of

jurisdictions holding that in ‘situations in which there is one or more alternative holdings

on an issue,’ the appellant’s ‘failure to address one of the holdings results in a waiver of

any claim of error with respect to the court’s decision on that issue.’”) (citation omitted).

Tennessee recognized and applied this doctrine in Duckworth Pathology Grp.,

Inc. v. Reg’l Med. Ctr. at Memphis, No. W2012-02607-COA-R3-CV, 2014 WL

1514602 (Tenn. Ct. App. Apr. 17, 2014). In Duckworth, the trial court entered an order

dismissing the plaintiff’s complaint crediting several alternative grounds of dismissal. Id.

at *11. The plaintiff-appellant only raised one ground for dismissal on appeal, failing

even to mention the alternative grounds in its appellate brief. Id. The defendant-appellee

pointed out the plaintiff-appellant’s failure in its response brief and argued that the issues

were therefore waived. Id. The plaintiff-appellant thereafter attempted to argue the

alternative grounds in its reply brief. Id. This Court, however, refused to entertain the

plaintiff-appellant’s arguments that were raised for the first time in its reply brief, noting

that a reply brief was not the vehicle for raising new issues. Id. (“[W]e will not consider

[the plaintiff-appellant’s] belated attempt to challenge the propriety of the trial court’s

alternative rulings.”). Thus, we affirmed the judgment of the trial court on the basis of

waiver. Id. (“Because [the plaintiff-appellant’s] failed to appeal all of the alternative

v. Honda Motor Co., 939 S.W.2d 83, 104 (Tenn.Ct.App.1996) (“A court speaks only through its written

orders.”). We therefore do not consider these rulings separate from the written orders that memorialize

them.

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grounds for dismissal in the trial court’s order, the [defendant-appellee’s] argument that

we need not consider the two issues Duckworth presented on appeal is well-taken.”).

Here, the trial court’s final written order on the jurisdictional issue, the May 10,

2016 order, clearly provides that one basis for the ruling is waiver. Waiver is applicable

to the defense of lack of personal jurisdiction and may result in a defendant being unable

to challenge personal jurisdiction. See generally Woodruff, 2007 WL 4439677, at *3

(quoting Brokerwood Prods. Int’l, Inc. v. Cuisine Crotone, Inc., 104 Fed. App’x 376,

379-80 (5th Cir. 2004)) (holding that lack of personal jurisdiction may be waived “by

failing to pursue the defense”). As such, it constitutes an alternative and independent

basis for denying a motion to dismiss for lack of personal jurisdiction. See Johnson 609

S.E.2d at 60 (noting that we must determine whether a trial court’s ruling is indeed an

alternative holding, i.e., “one that (when properly applied to the facts of a given case)

would legally constitute a freestanding basis in support of the trial court’s decision”).

There can be no dispute that the individual defendants, DTD, and D&N were

aware of the trial court’s ruling on waiver, as the issue of waiver was raised during the

hearing on the motion for new trial.8 Despite this clear notice, waiver is not mentioned or

argued in the initial brief filed on behalf of the individual defendants, DTD, and D&N.

Rather, the individual defendants, DTD, and D&N only argue that the trial court erred in

finding a basis to exercise personal jurisdiction over them. “It is not the role of the courts,

trial or appellate, to research or construct a litigant’s case or arguments for him or her,

and where a party fails to develop an argument in support of his or her contention or

merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l

Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010). Here, although the

substantive merits of the lack of personal jurisdiction defense were fully argued in the

initial brief, the initial brief filed by the individual defendants, DTD, and D&N simply

contains no argument whatsoever concerning whether the defense was waived due to

participation in the case, as clearly found by the trial court.

After the omission of this argument in the initial brief was noted by Plaintiff in her

response brief, however, the individual defendants, DTD, and D&N attempted to

challenge the trial court’s finding of waiver of their personal jurisdiction defense in their

reply brief. It is well-settled, however, that appellants may not raise new issues in their

reply briefs or use reply briefs to correct deficiencies in initial briefs. See, e.g., Adler v.

Double Eagle Properties Holdings, LLC, No. W2014-01080-COA-R3-CV, 2015 WL

1543260, at *6 (Tenn. Ct. App. Apr. 2, 2015) (ruling that a reply brief could not correct

the errors in an initial brief); Denver Area Meat Cutters & Emp’rs Pension Plan v.

8

Despite this argument, we note that Defendants fail to point out anything in the trial court’s

order denying Defendant’s request for a new trial that specifically alters its prior decision with regard to

the jurisdictional issue. Instead, it appears that the trial court did not specifically address jurisdiction in

denying the motion for new trial. The holding of the May 10, 2016 order was therefore not altered.

- 11 -

Clayton, 209 S.W.3d 584, 594 (Tenn. Ct. App. 2006) (refusing to consider an argument

raised for the first time in a reply brief). Thus, like the plaintiff-appellant in Duckworth,

the individual defendants, DTD, and D&N waived any challenge to the trial court’s

waiver ruling by failing to address this argument in any fashion in their initial brief.

Duckworth, 2014 WL 1514602, at *11. Because the individual defendants, DTD, and

D&N failed to challenge one of the alternative grounds for denying the motion to dismiss

for lack of personal jurisdiction, the trial court’s decision must be affirmed.9 Id.; see also

5 Am. Jur. 2d Appellate Review § 718.

II. Jury Issues

Defendants next assert that the trial court erred in failing to disqualify two jurors.

In Tennessee, the parties in a civil case have the right to have the factual issues in their

lawsuit determined by a fair and unbiased jury. See Tenn. Const. Art. I, § 6. State law

provides expressly that cause to disqualify a juror exists if “a state of mind exists on the

juror’s part that will prevent the juror from acting impartially. . . .” Tenn. Code Ann. §

22-1-105. Where such cause exists, “a court may discharge” the juror from service. Id.

As explained by this Court,

The trial judge has “wide discretion in passing upon the qualification

of jurors in both civil and criminal cases.” Vines v. State, 190 Tenn. 644,

648, 231 S.W.2d 332, 334 (1950). Absent a clear showing of abuse of

discretion, the trial judge’s determination of the jurors’ qualifications is not

subject to review. Lindsey v. State, 189 Tenn. 355, 367, 225 S.W.2d 533,

538 (1949).

The ultimate goal of voir dire is to determine whether the jurors are

competent, unbiased, and impartial. The scope and extent of voir dire rests

within the discretion of the trial court. State v. Harris, 839 S.W.2d 54, 65

(Tenn.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746

(1993). Even if the court errs by excluding a juror for cause, the error is

harmless unless the jury who ultimately hears the case is not fair and

9

The individual defendants, DTD, and D&N assert that if this court were to conclude that they

failed to address the waiver issue as required in their initial brief, this Court could exercise its discretion

to consider the issue notwithstanding the omission. Under Rule 13(b) of the Tennessee Rules of Civil

Procedure, this Court may address issues that were not properly presented for review in certain limited

circumstances, including to prevent needless litigation, to prevent injuries to the public, and to prevent

prejudice to the judicial process. See also Tenn. R. App. P. 2 (allowing this Court to suspend its rules “for

good cause”). Here, the parties were permitted additional pages in their briefs to address their arguments

to this Court; Defendants chose to argue a total of nineteen issues. Of those issues, however, Defendants’

initial briefs contain no argument relevant to the waiver issue, despite clear notice that it formed one basis

for the trial court’s decision. Under these circumstances, we decline to exercise our discretion to allow

Defendants to argue an improperly raised issue.

- 12 -

impartial. State v. Simon, 635 S.W.2d 498, 508–11 (Tenn.), cert. denied,

459 U.S. 1055, 103 S. Ct. 473, 74 L.Ed.2d 621 (1982).

“It is axiomatic that a party is entitled to a jury composed of persons

free from bias or prejudice.” Carney v. Coca–Cola Bottling Works, 856

S.W.2d 147, 149 (Tenn.1993). “‘The right to challenge is a right to reject,

not to select a jury.’” Estep v. State, 193 Tenn. 222, 226, 245 S.W.2d 623,

625 (1951) (quoting Wooten v. State, 99 Tenn. 189, 199, 41 S.W. 813, 815

(1897)). Parties to a law suit have a right to an impartial jury, but they have

no vested right to any particular juror. Graham v. United States, 257 F.2d

724, 729 (6th Cir. 1958). The trial judge has the power and it is his duty to

discharge any juror who, for any reason, cannot or will not be an unbiased

juror. Walden v. State, 542 S.W.2d 635, 637 (Tenn. Crim. App. 1976). A

juror must be free of even a reasonable suspicion of bias or prejudice to

meet the requirement of impartiality. State v. Pender, 687 S.W.2d 714, 718

(Tenn. Crim. App. 1984).

Danmole v. Wright, 933 S.W.2d 484, 487 (Tenn. Ct. App. 1996).

Here, Defendants contend that two jurors were wrongly seated on the jury in this

case: (1) Juror Marshall, who expressed a bias against nursing homes; and (2) Juror

Council, who Defendants describe as having an “obvious mental disability” and who,

following the trial, posted a comment on social media noting that he had “prayed” that

the Plaintiffs would prevail. Based on the fact that these two jurors were allowed to serve,

Defendants assert that a new trial is warranted.

In response, Plaintiff argues that this issue has been waived by Defendants where

they failed to use remaining peremptory challenges to challenge these jurors.

It is a long-settled principle that a defendant who disagrees with a trial

court’s ruling on for cause challenges must, in order to preserve the claim

that the ruling deprived him of a fair trial, exercise peremptory challenges

to remove the jurors. Even then, however, the failure to correctly exclude a

juror for cause is grounds for reversal only if the defendant exhausts all of

his peremptory challenges and an incompetent juror is forced upon him.

State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993) (citing Ross v. Oklahoma, 487 U.S.

81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988)).

Here, at the time that Juror Council was initially seated on the jury, there can be no

dispute that Defendants had a remaining peremptory challenge to utilize to strike jurors.

Defendants, however, chose not to utilize that challenge at that time. After Juror Council

was impaneled on the jury, another juror was excused from the jury due to a work-related

issue, and juror selection commenced once again. During this second phase of jury

- 13 -

selection, questions arose regarding Juror Council’s mental competence.10 At this later

time, however, it still appears that Defendants had a remaining peremptory challenge,

which Defendants appear to have been saving for another juror that was to be called next.

As such, during the jury selection process, Defendants clearly waived any objection to

Juror Council by failing to utilize their remaining peremptory challenge. See Howell, 868

S.W.2d at 248.

The same is not true of Juror Marshall. Juror Marshall was called after another

juror was excused for work-related reasons. At the time this juror was excused, however,

Defendants had one remaining peremptory challenge. The first juror to be called was

Juror Knox. Defendants exercised a peremptory challenge against Juror Knox, which

then resulted in the next juror being Juror Marshall. At that time, Defendants had no

remaining peremptory challenges and sought to challenge Juror Marshall for cause. Thus,

they did not waive their challenge to Juror Marshall.

Still, we cannot conclude that the trial court erred in failing to excuse Juror

Marshall. It is true that Juror Marshall indicated during voir dire that he had a

preconceived negative perception of nursing homes due to television advertisements.

Juror Marshall, however, somewhat conversely agreed that these feelings would “cause

[him] to be more in favor of the defendant than the plaintiff in this case.” Regardless,

when asked whether he could set those feelings aside, Juror Marshall unequivocally

indicated that he could, even going so far as to agree to “promise” to be “fair and

impartial to both sides.” Although a trial court may exercise its discretion to “dismiss a

juror for cause even if the juror maintains that he or she will be able to set aside the

circumstance raising a question as to the juror’s impartiality[,]” McDonald v. Shea, No.

W2010-02317-COA-R3-CV, 2012 WL 504510, at *20 (Tenn. Ct. App. Feb. 16, 2012),

the Tennessee Supreme Court has held that a trial court does not abuse its discretion in

declining to dismiss a juror with preconceived notions concerning some issues at trial

when the juror states that he can be impartial. See State v. Bates, 804 S.W.2d 868, 877–

88 (Tenn. 1991).

In Bates, the defendant argued that the trial court erred in not granting for cause

challenges to jurors who expressed pre-conceived notions regarding the death penalty. Id.

at 877. The Tennessee Supreme Court opined, however, that, the jurors were proper

where each juror “made it clear that he or she would follow the law and consider all of

the evidence and the factors relevant to sentencing before reaching a decision.” Id.

(quoting Murphy v. Fla., 421 U.S. 794, 800, 95 S. Ct. 2031, 2036, 44 L. Ed. 2d 589

(1975) (“It is sufficient if the juror can lay aside his impression or opinion and render a

verdict based on the evidence presented in court.”)). Here, Juror Marshall unequivocally

10

From our review, at this time, a good deal of the concern regarding Juror Council’s mental

competence resulted from speculation and extra-judicial assumptions based on the nature of Juror

Council’s employment.

- 14 -

stated that he could set aside his preconceived feelings to impartially judge the evidence

presented. After recalling Juror Marshall’s responses regarding his impartiality, the trial

court judge ruled that she was satisfied that Juror Marshall could be fair. Given that Juror

Marshall clearly indicated that he could be fair and no evidence has been presented to this

Court that Juror Marshall’s decision resulted from anything other than the evidence

presented, we cannot conclude that the trial court abused its discretion in allowing Juror

Marshall to serve on the jury.

Finally, we note that some concerns regarding Juror Council’s ability to continue

serving on the jury were made known during trial. Depending on the type of for-cause

challenge, challenges may be made either up to the time of the jury verdict or even after

the jury reaches a verdict. See generally McDonald, 2012 WL 504510, at *20 (discussing

the different types of challenges). In a centuries-old case, the Tennessee Supreme Court

first recognized the fact that where “the juror in question was not in a state of mental and

bodily health enabling him to perform his duties intelligently,” a new trial should be

awarded. Hogshead v. State, 25 Tenn. 59, 60 (Tenn. 1845). Moreover, federal courts

have recognized that “a juror’s physical and mental capacity for service can change

throughout trial.” United States v. Huntress, 956 F.2d 1309, 1313 (5th Cir. 1992).

Here, after initial questions were raised as to Juror Council’s competence, the trial

court questioned Juror Council and he informed the trial court of his education level,

work experience, and other considerations. After this examination, the trial court was

satisfied with Juror Council’s competence and, as discussed supra, Defendants chose not

to use a peremptory challenge on Juror Council. Weeks later, however, Juror Council sent

a note to the trial judge indicating that he needed to see his psychiatrist because he was

“off his meds.” Juror Council had previously stated that he was not taking any

medications. Based on this note, the trial court called Juror Council’s social worker in the

presence of counsel for all parties; the social worker explained that Juror Council was

experiencing some difficulties, as he suffered from anxiety. When questioned as to

whether Juror Council could stay on the jury, the social worker indicated that Juror

Council was “just . . . nervous” and that he could see his psychiatrist the next week. As

such, the trial court allowed Juror Council to remain on the jury and a verdict was

announced shortly thereafter.

From the record, we cannot conclude that the trial court committed an abuse of

discretion in this regard. First, we note that unlike the cases cited by Defendants in

support of their position, there is no evidence that Juror Council was suffering from

delusions during the trial. See Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir. 1980) (where

the juror stated that he has hearing voices). Nor is this a case wherein the trial court

exercised its discretion to excuse a juror after “significant evidence” that the juror was

incompetent, including getting into a minor altercation with another juror and not

remembering the encounter moments later. See United States v. Gonzalez-Soberal, 109

F.3d 64, 68 (1st Cir. 1997). Instead, the trial court exercised its broad discretion to allow

- 15 -

Juror Council to remain after hearing from his social worker that he was suffering from

anxiety but could continue to serve as a juror. Moreover, although Defendants take issue

with the fact that Juror Council discussed the proceedings with his social worker,

Defendants do not assert in their brief that these conversations involved anything related

to the substantive merits of this case; rather, it appears that only Council Juror’s mental

health was discussed.11

Likewise, the evidence that Juror Council posted on social media following the

jury verdict in favor of Plaintiff is insufficient to show a bias on Juror Council’s part that

would necessitate a new trial. At the time of the posting, Juror Council had heard the

evidence concerning Allenbrooke’s alleged negligence and the injuries sustained by Mrs.

Pierce. In a different context, we have previously held that bias generally “must come

from an extrajudicial source and not result from the [] impressions during trial.” Eldridge

v. Eldridge, 137 S.W.3d 1, 7 (Tenn. Ct. App. 2002) (involving judicial recusal). Finally,

we note that extrajudicial evidence concerning juror deliberations is generally limited to

information concerning “whether extraneous prejudicial information was improperly

brought to the jury’s attention, whether any outside influence was improperly brought to

bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or

gambling verdict without further discussion,” rather than information concerning the

juror’s internal thought processes. Tenn. R. Evid. 606(b); see also State v. Smith, 418

S.W.3d 38, 48 (Tenn. 2013) (applying Rule 606(b)’s limitations to a social media

exchange). On the whole, we cannot conclude that Defendants have shown that the trial

court caused an injustice by applying an incorrect legal standard, reaching an illogical

decision, or basing its decision on a clearly erroneous assessment of the evidence. See

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). As such, there was no

abuse of discretion in the trial court’s decision to allow Juror Council to remain on the

jury and no new trial is warranted on this basis. See Danmole, 933 S.W.2d at 487

(holding that the trial court’s assessment of a juror’s qualifications is reviewed for an

abuse of discretion).

III. Evidentiary Issues

We next consider the evidentiary issues raised by Defendants. Issues regarding the

admission of evidence are reviewed for an abuse of discretion. Commercial Bank & Tr.

Co. v. Children’s Anesthesiologists, P.C., 545 S.W.3d 470, 474 (Tenn. Ct. App. 2017),

perm. app. denied (Tenn. Feb. 14, 2018). “[T]rial courts are accorded a wide degree of

11

It further appears that counsel for Defendants agreed that such discussions were proper. When

discussing the possibility that Juror Council had discussed the merits of the case with his social worker,

the trial court stated that they could ask the social worker about the conversations, but that, as of what

they knew at that time, it appeared that the conversation was confined to Juror Council stating: “I’m

nervous. I’m serving on a jury.” Counsel for Defendants agreed that such a conversation was “fine.”

Defendants do not point to any evidence that the social worker was further questioned or indicated that

the substantive merits of the case was ever discussed.

- 16 -

latitude in their determination of whether to admit or exclude evidence[.]” Dickey v.

McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). According to the Tennessee

Supreme Court,

Under the abuse of discretion standard, a trial court’s ruling “will be upheld

so long as reasonable minds can disagree as to [the] propriety of the

decision made.” A trial court abuses its discretion only when it “applie[s]

an incorrect legal standard, or reache[s] a decision which is against logic or

reasoning that cause[s] an injustice to the party complaining.” The abuse of

discretion standard does not permit the appellate court to substitute its

judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

A. Testimony of Victoria Fierro

We first determine whether the trial court should have excluded the testimony of

Victoria Fierro as a summary witness. Again, a brief procedural history is helpful to the

analysis of this issue. Here, Plaintiff disclosed Ms. Fierro as witness on January 19, 2015.

Following some dispute about the timeliness of the disclosure, Plaintiff stated by letter of

July 14, 2015, that Ms. Fierro would not be providing opinion testimony, but would

rather solely testify as a summary witness. This statement was confirmed in a July 2015

supplemental expert disclosure in which Plaintiff stated that Ms. Fierro would only testify

to “summaries, charts, graphs, timelines,” and the like. After Defendants moved to

exclude Ms. Fierro on the basis that the disclosures did not provide sufficient information

regarding Ms. Fierro’s expert opinions, Plaintiff again noted that Ms. Fierro was not an

expert and therefor would not “testify to the truth of the contents of any documents.” The

trial court later entered an order noting that the parties had agreed that Ms. Fierro “will be

offering summaries, not opinions.” Ms. Fierro was thereafter called to testify both in the

compensatory damages phase of trial and the punitive damages phase.12

During her testimony in the compensatory damages phase of trial, Ms. Fierro first

detailed her experience, which included working as a forensic accountant and consultant,

with experience in tax fraud, accounting in a health care setting, and Medicaid and

Medicare reimbursements. Ms. Fierro testified that the summary chart she prepared

compared Allenbrooke’s budget for nursing staff with the nursing home’s “expected”

staffing levels, as determined on an hours per patient per day, or “HPPD,” basis. To

calculate the “expected” staff level, Ms. Fierro relied on data compiled by the Center for

12

Defendants focus solely on the compensatory damages portion of Ms. Fierro’s testimony in

their initial brief. Indeed, Defendants do not discuss the testimony elicited in the punitive damages portion

of trial until their reply brief. Again, issues must be raised in initial briefs. Moreover, as discussed in

detail, infra, we vacate the punitive damages award and remand for a new hearing on this issue. We

therefore confine our review to Ms. Fierro’s testimony in the compensatory damages phase of trial.

- 17 -

Medicare and Medicaid Services, or “CMS.” CMS published a governmental study that

details the expected staff needed to care for patients depending on their care needs, or

RUG score. Comparing Allenbrooke’s expected staffing needs as extrapolated from the

CMS data to Allenbrooke’s budget for staffing during this time, Ms. Fierro ultimately

calculated that “[i]f [Allenbrooke] had staffed to the expected, it would have cost them

$1,669,761 more than it did.” Defendants objected multiple times throughout Ms.

Fierro’s testimony, cross-examined Ms. Fierro, and called their own witness who testified

that comparing CMS “expected” staffing to budgeted staffing was not the proper method

of calculating purported understaffing, as other methods, including the actual staffing

reported by Allenbrooke, were more accurate,13 and CMS “expected” staffing levels are

used for billing and not staffing decisions. Defendant’s expert instead opined that

Allenbrooke exceeded all state and federal staffing guidelines, often spent more on

staffing than was budgeted, and staffed at an appropriate level.

Summaries are authorized by the Tennessee Rules of Evidence:

The contents of voluminous writings, recordings, or photographs which

cannot conveniently be examined in court may be presented in the form of a

chart, summary or calculation. The originals or duplicates shall be made

available for examination or copying, or both, by other parties at reasonable

times and places. The court may order that they be produced in court.

Tenn. R. Evid. 1006. “For [a Rule 1006] summary to be admissible, the party seeking

admission must lay the proper foundation, consisting of testimony that ‘(1) the original

evidence is voluminous, and (2) the summary is sufficiently accurate in representing the

original evidence.’” Ward v. Ward, No. W2001-01078-COA-R3-CV, 2002 WL

31845229, at *4 (Tenn. Ct. App. Dec. 19, 2002) (quoting Neil P. Cohen et al., Tennessee

Law of Evidence § 10.06(3) at 10-21 (4th ed. 2000)).

Because relatively few cases have addressed concerns related to Rule 1006

summaries, and in particular the use of summary witnesses, we may look to Rule 1006’s

substantially similar federal counterpart for persuasive authority regarding the rule’s

construction. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 430

(Tenn. 2011) (citing Harris v. Chern, 33 S.W.3d 741, 745 n.2 (Tenn. 2000)); see Fed. R.

Evid. 1006 (providing a substantially similar rule to Tennessee’s version of Rule 1006).14

13

When questioned on cross-examination about her failure to look to the actual staffing numbers

reported by Allenbrooke, Ms. Fierro testified that she could not confirm the numbers due to inadequate

production of time cards by Allenbrooke, specifically that the time cards omitted some necessary

information. Defendants’ expert testified that the time cards were complete and accurate and showed

appropriate levels of staffing.

14

Specifically, Federal Rule 1006 provides:

The proponent may use a summary, chart, or calculation to prove the content of

- 18 -

The United States Court of Appeals for the Sixth Circuit has provided a more detailed

description of what is required to qualify for admission under Rule 1006:

This court has interpreted Rule 1006 as imposing five requirements for the

admission of an evidentiary summary: (1) the underlying documents must

be so voluminous that they cannot be conveniently examined in court, (2)

the proponent of the summary must have made the documents available for

examination or copying at a reasonable time and place, (3) the underlying

documents must be admissible in evidence, (4) the summary must be

accurate and nonprejudicial, and (5) the summary must be properly

introduced through the testimony of a witness who supervised its

preparation.

United States v. Modena, 302 F.3d 626, 633 (6th Cir. 2002) (citing United States v.

Bray, 139 F.3d 1104, 1109–10 (6th Cir. 1998)). Here, Defendants do not assert that the

documents involved were not voluminous, that the documents were not properly made

available, that the underlying documents were inadmissible, or that the summary

evidence was presented by a witness who did not supervise its preparation. Rather,

Defendants assert that the summary provided by Ms. Fierro did not meet the requirement

to be “accurate and nonprejudicial.” Modena, 302 F.3d at 633. As such, Defendants

argue that Ms. Fierro’s testimony was beyond the scope of a summary witness, instead

including opinions that veered into the testimony of an expert. Defendants further assert

that testifying as an expert is a role which Ms. Fierro was ordered not to inhabit and in

which the trial court failed to assess the admissibility of the evidence under the rules

applicable to expert testimony.

Federal courts have previously grappled with similar questions regarding whether

a summary was “accurate and nonprejudicial.” For example, in United States v. Bray,

139 F.3d 1104 (6th Cir. 1998), the Sixth Circuit described this requirement as follows:

This means first that the information on the document summarizes the

information contained in the underlying documents accurately, correctly,

and in a nonmisleading manner. Nothing should be lost in the translation. It

also means, with respect to summaries admitted in lieu of the underlying

documents, that the information on the summary is not embellished by or

annotated with the conclusions of or inferences drawn by the proponent,

whether in the form of labels, captions, highlighting techniques, or

otherwise. Once a Rule 1006 summary is admitted, it may go to the jury

voluminous writings, recordings, or photographs that cannot be conveniently

examined in court. The proponent must make the originals or duplicates available

for examination or copying, or both, by other parties at a reasonable time and

place. And the court may order the proponent to produce them in court.

- 19 -

room, like any other exhibit. Thus, a summary containing elements of

argumentation could very well be the functional equivalent of a mini-

summation by the chart’s proponent every time the jurors look at it during

their deliberations, particularly when the jurors cannot also review the

underlying documents.

Id. at 1110. At least one federal district court has gone so far as to say that a Rule 1006

summary cannot contain “any hint or suggestion in the summary of a conclusion that the

party proffering the summary hopes the jury will reach on some disputed issue of fact.”

Anderson v. Otis Elevator Co., No. 11-10200, 2012 WL 5493383, at *3 (E.D. Mich.

Nov. 13, 2012) (citing Bray, 139 F.3d at 1111); see also Peat, Inc. v. Vanguard

Research, Inc., 378 F.3d 1154, 1159–60 (11th Cir. 2004) (quoting United States v.

Smyth, 556 F.2d 1179, 1184 n.12 (5th Cir. 1977)) (“[B]ecause ‘summaries are elevated

under Rule 1006 to the position of evidence, care must be taken to omit argumentative

matter in their preparation lest the jury believe that such matter is itself evidence of the

assertion it makes.’”).

Defendants assert that the summary testimony provided by Ms. Fierro in this case

did not meet this standard because she chose to rely on certain information supporting

Plaintiff’s position, while allegedly ignoring other information that called that position

into question. From our review, however, federal courts have held that the dangers posed

by summaries can sometimes be alleviated where the party opposing the summary had a

full opportunity to cross-examine the witness. See, e.g. United States v. Jones, 135 F.3d

771 (4th Cir. 1998) (quoting United States v. Paulino, 935 F.2d 739, 753 (6th Cir.1991),

superseded by statute on other grounds as stated in United States v. Caseslorente, 220

F.3d 727, 736 (6th Cir. 2000)) (“It is important, however, that opposing counsel is

provided with the opportunity to cross-examine the witness whose summarized testimony

has been introduced in order to ‘alleviate any danger of inaccuracy or unfair

characterization.’”); United States v. Zeman, 978 F.2d 1260 (6th Cir. 1992) (holding that

the defendant’s cross-examination of the witness concerning the preparation of the

summary and its meaning alleviated “any danger of inaccuracy or unfair

characterization”).

This rule was applied in a more recent case authored by the Sixth Circuit. See

United States v. Kilpatrick, 798 F.3d 365, 383 (6th Cir. 2015). In Kilpatrick, the

defendants objected to a summary because the government agents relied on only some

test messages to draw conclusions regarding ambiguous statements; only a small

percentage of the test messages were shown to the jury. The Sixth Circuit held, however,

that the evidence was not improper because the defendants “had access to all the evidence

cited by the agents, they were free to challenge the accuracy of any summary testimony

through cross-examination.” Id. Thus, where “both parties possess the entire collection of

recordings or writings, Rule 1006 witnesses can be cross-examined about the accuracy of

their summaries.” Id.

- 20 -

Here, Defendants assert in their brief that Ms. Fierro “created and presented one-

sided, unduly prejudicial exhibits, selectively highlighting only the portions of the []

Reports supposedly favorable to Plaintiff and opining that other data points were not

relevant.” As an initial matter, Defendants did not assert at trial that any of the

information contained in Ms. Fierro’s chart or testimony was inaccurate.15 Rather, the

alleged inaccuracy resulted from the information on which Ms. Fierro chose to rely.

Additionally, there can be no dispute that Ms. Fierro’s testimony concerning her chart

was subjected to vigorous cross-examination by Defendants.16 Indeed, of the five

allegedly improper opinions given by Ms. Fierro cited in Defendants’ brief, four occurred

during cross-examination. Moreover, in addition to cross-examining Ms. Fierro,

Defendants called their own witness to rebut Ms. Fierro’s statements. Thus, while it is

alleged that Ms. Fierro presented incomplete information, the alleged omissions were

brought to the attention of the jury by Defendants. Consequently, any danger of unfair

prejudice that resulted from Ms. Fierro’s decision to summarize allegedly incomplete

information was largely alleviated. See Kilpatrick, 798 F.3d at 383. Given the fact that

both sides were fully able to present evidence on this issue, it appears that the jury was

best able to choose the narrative that was more credible in their eyes.

Defendants additionally argue, however, that Ms. Fierro improperly testified

outside the scope of her role as a summary witness by expressing opinions regarding the

data she presented, specifically citing five instances of improper opinion. First, we

dispense with any argument concerning the alleged opinions elicited during cross-

examination. Here, Defendants sought to cross-examine Ms. Fierro for the basis of her

data, in particular why she chose to rely on certain data to the exclusion of others. This

line of questioning led Ms. Fierro to state certain purported “opinions” concerning the

unreliability of data that she excluded and the favorability of the data she chose. It is

well-settled, however, that where certain allegedly inadmissible statements are elicited on

cross-examination, the party who elicited the testimony cannot object unless the

15

Specifically, the record on appeal contains the following exchange regarding the summary at

issue:

THE COURT: So does that mean, yes, all of those figures on that bar are correct for what

they purport to be?

[Counsel for Defendants]: Those are what they purport to be, Your Honor.

16

Defendants assert, however, that their cross-examination of Ms. Fierro was unduly limited by

the trial court, who refused to allow Defendants to cross-examine Ms. Fierro as to the budgets of other

nursing homes. As an initial matter, we note that Defendants cite no law in support of this argument. See

Sneed, 301 S.W.3d 615 (holding that an issue may be waived where the proponent fails to cite legal

authority in support of the argument). Moreover, both at trial and on appeal, Defendants insist that Ms.

Fierro’s testimony be limited only to providing a summary of the documents relating to Allenbrooke.

Anything more, they contend, is impermissible expert opinion. Comparisons of Allenbrooke’s budget to

the budgets of other nursing homes simply does not fall within the scope of summary testimony, as

determined by the trial court’s order on the motion in limine. As such, we discern no abuse of discretion

in the trial court’s decision to limit Defendants’ ability to cross-examine Ms. Fierro on these matters.

- 21 -

statements were unresponsive to the question asked. See Baxter v. State, 83 Tenn. 657,

663 (Tenn. 1885) (“[I]t is equally well settled that a party who elicits illegal evidence

cannot object to it, unless it is shown not to have been responsive to the question.”); State

v. Rochelle, No. M2011-02639-CCA-R3-CD, 2013 WL 285747, at *11 (Tenn. Crim.

App. Jan. 25, 2013) (quoting Pulley v. State, 506 S.W.2d 164, 168 (Tenn. Crim. App.

1973) (“A defendant cannot be heard to complain about incompetent evidence he elicits

by cross-examination.”)). Here, Defendants do not assert in their brief that these

statements were unresponsive to the questions presented. As such, Defendants cannot

now object to the testimony that was elicited therefrom.

A single remaining objectionable statement was elicited during redirect.

According to Defendants, this statement was an opinion “that Allenbrooke allegedly

spent less on care using this false comparison of Expected HIPPD and budgeted HIPPD.”

At issue is an exchange in which counsel for Plaintiff asked Ms. Fierro to calculate “the

financial results of staffing in accordance with the budget,” in comparison to the expected

level of staffing according to federal guidelines for certain types of Medicare patients.

Ms. Fierro testified as to her calculation that subtracting the “budgeted” RN time from

the “expected” RN time “comes to $1,669.761.” Following this calculation, the following

exchange occurred:

Q. Is that a cost to the facility or a savings to the facility for that practice?

[Counsel for Defendants]: Objection, Your Honor.

THE COURT: What’s difference in the two numbers?

BY [Counsel for Plaintiff]:

Q. What’s the difference in the two numbers? Is that the $1,669,761?

A. Right. I call that the savings impact. If they had staffed to the expected,

it would have cost them $1,669,761 more than it did.

We agree that this statement contains an implicit conclusion that Allenbrooke

saved funds by not “staff[ing] to the expected.” We also concede that the trial court’s

order disallowing Ms. Fierro from testifying to her “opinions” somewhat complicates this

issue. Generally, however, summaries “may include assumptions and conclusions,” so

long as the evidence relied upon is in the record.17 United States v. Wainright, 351 F.3d

816, 820–21 (8th Cir. 2003) (citing United States v. Lewis, 759 F.2d 1316, 1329 n.6 (8th

Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985)). Thus, where a

summary witness explained in detail how he developed his summary of the data and how

he made the assumptions and conclusions at issue based upon the evidence collected, the

summary was not found to be prejudicial or misleading so as to necessitate a finding that

the trial court abused its discretion in admitting it. Id.

17

Defendants do not argue that Ms. Fierro improperly relied on inadmissible evidence or that

evidence was not properly included as part of the record.

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The conclusion drawn by Ms. Fierro in the above testimony veers perilously close

to the line between summary testimony and expert testimony. In reaching our decision on

this issue, however, we must be mindful of the standard of review applicable to the issue.

As previously discussed, trial courts are afforded broad discretion in determining the

admissibility of evidence and we do not overturn their decisions where reasonable minds

could differ. See Eldridge, 42 S.W.3d at 85. Moreover, we note that the limitations

placed on Rule 1006 summaries result from the fact that these summaries are considered

substantive evidence and are therefore allowed in the jury room during deliberations. See

Bray, 139 F.3d at 1110 (“Once a Rule 1006 summary is admitted, it may go to the jury

room, like any other exhibit. Thus, a summary containing elements of argumentation

could very well be the functional equivalent of a mini-summation by the chart’s

proponent every time the jurors look at it during their deliberations, particularly when the

jurors cannot also review the underlying documents.”); Anderson, 2012 WL 5493383, at

*3 (drawing a distinction between summaries submitted as evidence to the jury and

documents which merely aid the jury’s examination; noting that the second type of

documents are generally “akin to argument” and therefore not governed by the limitations

applicable to Rule 1006 summaries). From our review of the voluminous record,

however, it is not clear that the summary prepared by Ms. Fierro that was objectionable

to Defendants was actually made an exhibit in this case. Here, both parties’ briefs and the

testimony at issue refer to Ms. Fierro’s exhibit as a bar chart.18 While the parties’ briefs

reference this bar chart and the testimony surrounding it, neither party cites to the specific

exhibit number where this chart may be found. See generally Tenn. R. Ct. App. 6(a)(1)

(requiring that, in order to raise an error, the appellate brief contain “a statement . . . of

alleged erroneous action of the trial court . . . with citation to the record where the

erroneous or corrective action is recorded”). Indeed, from Ms. Fierro’s testimony, it is

unclear if this objectionable exhibit was even entered into evidence. In the absence of

proof that this document was actually entered as exhibit and given to the jury,19 it is not

clear that the heightened protections applicable to Rule 1006 summaries are even

applicable in this case.

Moreover, other courts have held that summary witnesses may testify as to

assumptions and conclusions regarding the data summarized. See Wainright, 351 F.3d at

820–21. The fact that the summary witness testified as such does not transform the

testimony into expert testimony. See id. at 819–820 (not describing the summary witness,

an investigator, as an expert or considering the admissibility of his testimony in the

context of expert proof). Ms. Fierro clearly made assumptions and offered conclusions

18

Another chart is included in the record. This chart, however, does not appear to be the color-

coded “bar” chart to which Defendants lodged their strongest objection. Instead, when the chart contained

in the record, Exhibit 74, was admitted into evidence, there was no objection from Defendants.

19

The record in this case spans twenty-two banker’s boxes and includes a multitude of documents

specifically excluded by our rules. See generally Tenn. R. App. P. 24(a) (governing the contents of the

record on appeal). It is not this Court’s duty to conduct an archeological dig of the record to find a

document where the party complaining of its entry has failed to direct this Court to its location.

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regarding the data she presented. Defendants, however, were able to cross-examine Ms.

Fierro and even presented their own witness to rebut Ms. Fierro’s testimony. Considering

the totality of the circumstances, at most, reasonable minds could disagree as to the

propriety of Ms. Fierro’s testimony. Eldridge, 42 S.W.3d at 85. As such, Defendants

have not shown an abuse of discretion in the trial court’s decision.20

B. Testimony of Allenbrooke’s Former Employees

Next, Defendants assert that the trial court erred in allowing Plaintiff to present the

testimony of several former Allenbrooke employees, which testimony Defendants

contend was irrelevant and unduly prejudicial, while preventing Defendants from

properly cross-examining these witnesses. Here, Plaintiff called six former employees of

Allenbrooke in her case-in-chief. Each former employee testified in some fashion that

Allenbrooke was understaffed and that patients, particularly those that were required to

be repositioned to prevent pressure sores, were not properly cared for due to lack of

sufficient staff. Defendants raise a multitude of alleged errors with regard to these

witnesses, which we will address in turn.

First, Defendants assert that the evidence was not relevant. The Tennessee Rules

of Evidence define relevant evidence as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without evidence.” Tenn. R. Evid. 401. The

Tennessee Supreme Court has described this as “a relatively lenient threshold[.]” State v.

Gilliland, 22 S.W.3d 266, 271 (Tenn. 2000). The evidence here was clearly relevant. The

witness all worked at Allenbrooke around the relevant time period and had personal

knowledge of the staffing levels and care that was provided to patients there. Although

these witnesses were allowed to testify as to generalized care during the time frame at

issue, this testimony was relevant to Plaintiff’s assertion that a pattern or practice of

Allenbrooke’s, beginning with the non-Allenbrooke Defendants, resulted in the

substandard care at issue. Indeed, this pattern or practice made up the bulk of Plaintiff’s

argument that it was entitled to punitive damages based on reckless or grossly negligent

conduct.

20

Defendants also assert that the trial court erred in not providing a limiting instruction to the jury

regarding the Rule 1006 summary. “When [the trial] court sends a chart or diagram admitted under Rule

1006 to a jury, a limiting instruction is appropriate.” Wainright, 351 F.3d at 821 (citing United States v.

Possick, 849 F.2d 332, 339 (8th Cir. 1988)). In addition to the fact that the record is unclear as to whether

the summary at issue was actually sent to the jury, Defendants did not raise this issue in their motion for

new trial. As such, this issue is waived. See Tenn. R. App. P. 3(e)“[I] all cases tried by a jury, no issue

presented for review shall be predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or

occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same

was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.”)

(emphasis added).

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The Tennessee Supreme Court has previously held that a nursing home may be

liable for injuries that resulted from understaffing the facility. See Wilson v. Americare

Sys., Inc., 397 S.W.3d 552, 563–64 (Tenn. 2013). In that case, the evidence included

general testimony about understaffing that was not always specific to the decedent. Id. at

559 (concerning evidence that the nursing home failed to provide adequate staff “to meet

the needs of the residents”). Id. at 559. Likewise, this Court has held that evidence of

understaffing problems at the facility was relevant in the context of a request for punitive

damages against a nursing home where the patient suffered similar injuries to Mrs.

Pierce. See Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-

CV, 2009 WL 482475, at *13 (Tenn. Ct. App. Feb. 24, 2009) (discussed in detail, infra).

Defendants cite no caselaw in which a trial court was found to have abused its discretion

in ruling that this type of evidence was relevant. As such, we simply cannot conclude that

the trial court applied an incorrect legal standard, reached an illogical decision, or based

its decision on a clearly erroneous assessment of the evidence in ruling that this evidence

was relevant.

Nevertheless, evidence that is relevant may still be excluded when it meets an

exception outlined in Rule 403 of the Tennessee Rules of Evidence: “The court may

exclude relevant evidence if its probative value is substantially outweighed by a danger

of one or more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” As such,

Defendants assert that the evidence was cumulative. Although Defendants somewhat

address their argument that the evidence was cumulative in their brief, Defendants do not

point out where an objection to the cumulative nature of this evidence was raised

contemporaneously at trial.21 See State v. Thomas, 158 S.W.3d 361, 400 (Tenn. 2005)

(holding that the State’s position—that an objection to cumulative evidence was waived

where no contemporaneous objection was entered at trial— was well taken, but electing

to review the issue on the merits); see also Tenn. R. Evid. 103(a)(1) (noting that error

may not be predicated on the admission of evidence unless “a timely objection or motion

to strike appears of record, stating the specific ground of objection if the specific ground

was not apparent from the context”).

Under Rule 6(a) of the Rules of the Tennessee Court of Appeals, appellant’s briefs

must include.

(1) A statement by the appellant of the alleged erroneous action of the trial

court which raises the issue and a statement by the appellee of any action of

21

At one point, counsel for Defendants does state that some evidence was cumulative. This

objection was somewhat buried in a bench conference that covered multiple issues, rather than

contemporaneously. In addition, this was the only time an objection to the cumulative nature of the six

former Allenbrooke’s employees’ testimony was lodged. Coupled with Defendants’ failure to comply

with the rules of this Court, we cannot conclude that this was sufficient to preserve this issue on appeal.

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the trial court which is relied upon to correct the alleged error, with citation

to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to

the attention of the trial judge with citation to that part of the record where

appellant’s challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged

error, with citations to the record showing where the resultant prejudice is

recorded.

(4) A statement of each determinative fact relied upon with citation to the

record where evidence of each such fact may be found.

It is not this Court’s duty to comb through the appellate record to find support for an

appellant’s assertions of error. See Cartwright v. Jackson Capital Partners, Ltd. P’ship,

478 S.W.3d 596, 616 (Tenn. Ct. App. 2015) (quoting Flowers v. Bd. of Professional

Responsibility, 314 S.W.3d 882, 899 n. 35 (Tenn. 2010)) (“‘[J]udges are not like pigs,

hunting for truffles’ that may be buried in the record, . . . or, for that matter, in the

parties’ briefs on appeal.”). In the absence of an appropriate statement in Defendants’

brief noting where this issue was seasonably called to the trial court’s attention, this issue

is waived. Cf. Berry v. City of Memphis, No. W2014-01236-COA-R3-CV, 2015 WL

1650763, at *3 (Tenn. Ct. App. Apr. 13, 2015) (holding that an alleged error was waived

where it was not shown to have been seasonably called to the trial court’s attention).

Defendants next assert that the probative value of this evidence was substantially

outweighed by the danger of unfair prejudice. Here, the witnesses had personal

knowledge of the staffing and care of Allenbrooke residents. Some witnesses testified

specifically about Mrs. Pierce’s care, while others testified about the care received by

other patients during the same time frame. Again, Defendants cite no caselaw in which a

trial court’s decision to admit similar evidence was found to be an abuse of discretion.

We likewise do not discern one in this case.

“Generally speaking, most all evidence presented by one side at trial is, at least,

intended to be prejudicial to the other side.” State ex rel. Com’r of Transp. v. Meek, No.

E2012-01177-COA-R3-CV, 2013 WL 6529569, at *5 (Tenn. Ct. App. Dec. 13, 2013).

Only evidence in which the danger of “unfair” prejudice substantially outweighs its

probative value should be excluded. Tenn. R. Evid. 403. Unfair prejudice is defined as

“the undue tendency to suggest a decision based on improper considerations; it ‘does not

mean the damage to a [party’s] case that results from the legitimate probative force of the

evidence.’” Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343,

353 (Tenn. Ct. App. 1999) (quoting Doe v. Claiborne County, Tenn., 103 F.3d 495, 515

(6th Cir. 1996)). As the Tennessee Supreme Court has explained,

Rule 403 is a rule of admissibility, and it places a heavy burden on the party

seeking to exclude the evidence. See Roy v. Diamond, 16 S.W.3d 783, 791

- 26 -

(Tenn. Ct. App. 1999). “Excluding relevant evidence under this rule is an

extraordinary remedy that should be used sparingly and persons seeking to

exclude otherwise admissible and relevant evidence have a significant

burden of persuasion.” White v. Vanderbilt Univ., 21 S.W.3d 215, 227

(Tenn. Ct. App. 1999).

State v. James, 81 S.W.3d 751, 757–58 (Tenn. 2002).

Here, the evidence was highly probative of Allenbrooke’s alleged practice of

understaffing and Defendants have failed to show how its probative value was

substantially outweighed by the danger that the jury would base its decision on improper

considerations. Defendants therefore did not meet their burden of persuasion to justify the

extraordinary remedy under Rule 403. As such, there was no abuse of discretion in the

admission of this evidence.

Defendants next assert that the trial court erred in allowing counsel for Plaintiff to

examine these former employees by way of leading questions. “[T]he propriety, scope,

manner and control of the examination of witnesses is a matter within the discretion of

the trial judge.” State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993). Pursuant to Rule

611 of the Tennessee Rules of Evidence, “[t]he court shall exercise appropriate control

over the presentation of evidence and conduct of the trial when necessary to avoid abuse

by counsel.” Tenn. R. Evid. 611(a). Leading questions are generally only permitted in

certain circumstances:

(1) Leading questions should not be used on direct examination of a witness

except as may be necessary to develop the witness’s testimony. Leading

questions should be permitted on cross-examination.

(2) When a party calls a hostile witness, an adverse party (or an officer,

director, or managing agent of a public or private corporation or of a

partnership, association, or individual proprietorship which is an adverse

party), or a witness identified with an adverse party, interrogation may be

by leading questions. The scope of cross-examination under this paragraph

shall be limited to the subject matter of direct examination, and cross-

examination may be by leading questions.

Tenn. R. Evid. 611(c). Like the other evidentiary issues raised in this case, the trial

court’s decision to treat a witness as hostile and allow leading questions is reviewed for

an abuse of discretion. See State v. McKnight, No. W2010-00688-CCA-R3-CD, 2011

WL 744746, at *8 (Tenn. Crim. App. Mar. 1, 2011).

Regardless of whether the trial court abused its discretion in allowing leading

questions of these witnesses, we conclude that this argument is waived. Pursuant to Rule

3(e) of the Tennessee Rules of Appellate Procedure,

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[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or counsel, or

other action committed or occurring during the trial of the case, or other

ground upon which a new trial is sought, unless the same was specifically

stated in a motion for a new trial; otherwise such issues will be treated as

waived.

In determining whether the degree of specificity required by Rule 3(e), this Court has

opined as to the following requirements:

First, the motion should contain a concise factual statement of the

error, “sufficient to direct the attention of the court and the prevailing party

to it.” Johnson, 114 Tenn. at 644, 88 S.W. at 170–71. Under this standard,

it is clearly improper to simply allege, in general terms, that the trial court

committed error, either by taking some action or by admitting or excluding

evidence; rather, the motion should identify the specific circumstances

giving rise to the alleged error so that it may be reasonably identified in the

context of the entire trial. See State v. Ashburn, 914 S.W.2d 108, 114

(Tenn. Crim. App. 1995). . . .

Second, as it is well-settled in law that a general objection is usually

not sufficient to assign error, Tenn. R. Evid. 103(a)(1); Jack M. Bass & Co.

v. Parker, 208 Tenn. 38, 48, 343 S.W.2d 879, 883 (1961), the motion

should also contain a specific legal ground alleged for the error.

Accordingly, in addition to setting forth a concise statement of the factual

grounds, a well-drafted motion for a new trial should also identify, with

reasonable clarity, the legal ground upon which the trial court based its

actions and contain a concise statement asserting the legal reasons why the

court’s decision was improper. However, because motions for a new trial

should not be expanded “into all the voluminosity of ‘briefs’ and printed

arguments,” National Hosiery & Yarn Co. v. Napper, 124 Tenn. 155, 171,

135 S.W. 780, 784 (1911), the movant is not required to identify such

errors in the motion with the same precision expected in the appellate

courts. Therefore, precise citation to a rule, statute, or case as the legal

ground for the alleged error is normally not required to preserve the issue

for appeal under Rule 3(e), although to the extent that citation to authority

aids in fairly bringing the legal nature of the error to the attention of the

trial judge, such a practice ought to be encouraged.

Finally, Rule of Appellate Procedure 1 provides that the Rules “shall

be construed to secure the just, speedy, and inexpensive determination of

every proceeding on its merits.” Accordingly, when an appellate court

reviews a motion for a new trial under Rule 3(e), it should view the motion

- 28 -

in the light most favorable to the appellant, and it should resolve any doubt

as to whether the issue and its grounds were specifically stated in favor of

preserving the issue. Any other method of review would result in needlessly

favoring “technicality in form” over substance, a practice specifically

discouraged by the comments to Rule 1. . . .

Fahey v. Eldridge, 46 S.W.3d 138, 142–44 (Tenn. 2001) (footnotes omitted). Applying

this standard, the Tennessee Supreme Court concluded that several errors were stated

with sufficient specificity so as to be preserved for appellate review, where both factual

allegations and legal grounds were cited to call the court’s attention to the alleged errors.

Id. at 144.

Here, even giving Defendants the benefit of all reasonable inferences, we cannot

conclude that the motion for new trial alleged an error regarding the trial court’s

allowance of leading questions during the direct examinations of Allenbrooke’s former

employees with sufficient specificity. While Defendants’ failure to cite to Rule 611 in

their motion for new trial may be excused on the basis of the Tennessee Supreme Court’s

decision in Fahey, we cannot overlook that the motion for new trial simply did not

mention any error regarding the leading questions; instead, this issue, including any

factual allegations involving the issue or any legal grounds showing that the trial court

erred, was completely omitted from the motion for new trial. As we perceive it, the

decision in Fahey does not excuse litigants from the requirements of Rule 3(e), nor does

it require this Court to consider issues that simply were not preserved for appellate

review. Consequently, we conclude that this issue is waived.

Finally, Defendants contend that the trial court erred in barring Defendants from

inquiring as to the former employees’ bias against Allenbrooke during cross-examination.

Here, during the discovery process, Defendants invoked a statutory privilege under

Tennessee Code Annotated section 68-11-272 to prevent the discovery of all employee

personnel files. Plaintiff thereafter filed a motion in limine to exclude mention of the

contents of the personnel files, including facts pertaining to any disciplinary matters or

terminations from Allenbrooke that were included. Defendants responded in opposition,

arguing that they could question the former employers regarding their own employment

history. On June 24, 2016, the trial court entered an order granting Plaintiff’s motion in

limine, which stated that, “Defendants are prohibited from questioning witnesses using

these personnel files or information contained in the personnel files. Defendants may ask

general questions such as an employee’s name, address, and current employment.

Defendants may ask whether an individual is a current or former employee.” Later, the

trial court orally clarified that Defendants were allowed to inquire as to whether the

former employers were “fired from Allenbrooke,” but not why the employee was

terminated. During trial, however, the trial court appeared to reverse course, ruling that

Defendants could not ask former Allenbrooke employees if they had been terminated.

- 29 -

Defendants argue that the trial court’s decision results in a “trial-by-ambush” and

prevented Defendants from properly delving into the former employee’s biases.

Evidence of bias is a proper ground for impeachment of a witness. See Tenn. R.

Evid. 616, adv. comm’n cmt. (citing Creeping Bear v. State, 113 Tenn. 322, 87 S.W. 653

(1905)) (“Bias is an important ground for impeachment.”):

“It is always competent to prove the friendliness or unfriendliness of a

witness, his partiality for one party or hostility to the other, in order that the

jury may judge of his credibility and the trustworthiness of his testimony.”

Creeping Bear v. State, 87 S.W. at 653. “The rule of admissibility of

evidence to show bias or interest of a witness encompasses all facts and

circumstances which, when tested by human experience, tend to show that

a witness may shade his testimony for the purpose of helping to establish

one side of a cause only.” Whittemore v. Classen, 808 S.W.2d 447, 452

(Tenn. Ct. App. 1991) (citing Majestic v. Louisville & N.R. Co., 147 F.2d

621 (6th Cir.1945)). . . .

Tennessee Rule of Evidence 611(b) is also relevant to our analysis, as it

provides that “[a] witness may be cross-examined on any matter relevant to

any issue in the case, including credibility[.]” This Rule allows for the

“wide-open scope of cross-examination historically favored in Tennessee.”

Tenn. R. Evid. 611, Adv. Comm’n Cmt. “It is well established that wide

latitude should be afforded on cross-examination.” Steele v. Ft. Sanders

Anesthesia Group, P.C., 897 S.W.2d 270, 278 (Tenn. Ct. App. 1994).

“Furthermore, a witness may be cross-examined to show possible prejudice

or bias, and this right should be limited only upon a showing of the most

extraordinary circumstances.” Id. (citing Phillips v. Pitts, 602 S.W.2d 246,

249 (Tenn. Ct. App. 1980)).

Laseter v. Regan, 481 S.W.3d 613, 632 (Tenn. Ct. App. 2014).

Here, Plaintiff does not argue, nor did the trial court rule, that the information

regarding whether the former employees had been fired from Allenbrooke or other

nursing homes was actually privileged pursuant to section 68-11-272. See generally

Pinkard v. HCA Health Servs. of Tenn., Inc., 545 S.W.3d 443, 453–58 (Tenn. Ct. App.

2017), perm. app. denied (Tenn. Nov. 16, 2017) (discussing the privilege provided by

section 68-11-272). Indeed, this Court has previously opined that “persons who provided

testimony or information to or as part of a [quality improvement committee] are not

exempt from discovery and are not prohibited from testifying as to their knowledge of

facts or their opinions.” Id. at 453 (citing Tenn. Code Ann. § 68-11-272(c)(2)). Instead, it

appears that the trial court’s ruling was predicated on issues of fairness. As such, Plaintiff

argues on appeal that this material was properly excluded where its probative value was

substantially outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403; see

- 30 -

also 98 C.J.S. Witnesses § 712 (“[R]elevant evidence of bias is subject to balancing and

may be excluded if it would result in unfair prejudice to the witness or a party, and such

prejudice substantially outweighs its probative value.”).

Again, we note that the exclusion of evidence based on the danger of unfair

prejudice is an extraordinary remedy. See James, 81 S.W.3d at 757–58. This rule is

doubly true regarding the exclusion of bias evidence. See Laseter, 481 S.W.3d at 632.

The trial court’s written order and oral rulings provide little justification for the exclusion

of this evidence. Moreover, the trial court gave inconsistent rulings with regard to

whether this evidence would be admitted. Thus, we tend to believe that it was error to

exclude evidence to show that the former employees had a bias against Allenbrooke.

Even if we were to conclude that the trial court erred in this regard, however, Defendants

must show that prejudice resulted from this error. See Citadel Investments, Inc. v. White

Fox Inc., No. M2003-00741-COA-R3-CV, 2005 WL 1183084, at *11 (Tenn. Ct. App.

May 17, 2005) (citing Coakley v. Daniels, 840 S .W.2d 367, 371 (Tenn. Ct. App. 1992))

(“The burden to show prejudice, that the excluded or admitted evidence affected the

judgment, is on the complaining party.”). Following our review of the parties’ briefs and

the record, we conclude that Defendants failed to meet this burden.

Under Rule 36(b) of the Tennessee Rules of Appellate Procedure, a final judgment

will 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.” Errors like the one at issue here are therefore subject to a harmless error

analysis. See generally State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)

(discussing the different types of errors that may occur in trial). As explained by our

supreme court,

An erroneous exclusion of evidence is harmful “when 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.”

See In re Estate of Smallman, 398 S.W.3d 134, 152 (Tenn. 2013) (quoting

State v. Gomez, 367 S.W.3d 237, 249 (Tenn. 2012)) (internal quotation

marks omitted); see also Tenn. R. App. P. 36(b). In a jury case, we must

carefully examine the entire record to determine “whether [exclusion] of

the evidence, more probably than not, influenced the jury’s verdict.” See

Smallman, 398 S.W.3d at 152 (“[W]hether [the evidentiary error] is

sufficiently prejudicial to require reversal depends on the substance of the

evidence, its relation to the other evidence, and the peculiar facts and

circumstances of the case.”). We do not act as a second jury by combining

our harmlessness inquiry with our own assessment of liability. State v.

Rodriguez, 254 S.W.3d 361, 373–74 (Tenn. 2008). Rather, the goal is to

identify the actual basis for the jury’s decision, State v. Mallard, 40 S.W.3d

473, 489 (Tenn. 2001) (quoting Momon v. State, 18 S.W.3d 152, 168

- 31 -

(Tenn. 1999)), and to determine whether the exclusion of evidence, more

probably than not, affected the verdict. Smallman, 398 S.W.3d at 152.

White v. Beeks, 469 S.W.3d 517, 529 (Tenn. 2015), as revised on denial of reh’g (Aug.

26, 2015). In determining whether an error in excluding evidence was harmless, we may

consider “‘the importance of the witness’[s] testimony in the [] case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of cross-

examination otherwise permitted, and, of course, the overall strength of the [] case.” State

v. Bowman, 327 S.W.3d 69, 92 (Tenn. Crim. App. 2009) (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)).

In order to determine whether the exclusion of this evidence was harmful, it is

necessary to examine the evidence that was excluded. See Singh v. Larry Fowler

Trucking, Inc., 390 S.W.3d 280, 285 (Tenn. Ct. App. 2012) (noting that an appellate

court cannot determine whether an error was harmful “without knowing what the

excluded evidence would have been”). To that end, Tennessee law requires that a party

appealing the exclusion of evidence “make an offer of proof to enable the reviewing court

to determine whether the trial court’s exclusion of proffered evidence was reversible

error.” Id. at 286 (citing Tenn. R. Evid. 103(a)(2)). Thus, in order to prevail on appeal

regarding the erroneous exclusion of evidence, the proponent of the evidence must show

that “the substance of the evidence and the specific evidentiary basis supporting

admission were made known to the court by offer or were apparent from the context.”

Tenn. R. Evid. 103(a)(2).

Here, Defendants do not assert in their brief or otherwise point to the portion of

the record where a contemporaneous offer of proof was made as to the excluded

evidence. See Tenn. R. Ct. App. 6(a)(1) (requiring in all appellant’s briefs a “citation to

the record where the erroneous or corrective action is recorded”). Still, the record and

Defendants’ brief makes clear that the substance of the evidence that was excluded

involved impeachment evidence regarding the employment histories of the former

Allenbrooke employees. See Singh, 390 S.W.3d at 286 (quoting Gillum v. McDonald,

No. M2003-00265-COA-R3-CV, 2004 WL 1950730, at *5 (Tenn. Ct. App. Sept. 2,

2004)) (“‘[A]n offer of proof is not needed when the substance of the evidence and its

reason for exclusion are apparent from the context.’”). In order to determine the

prejudicial effect of this alleged error, however, we must determine whether other

witnesses who were not affected by the alleged exclusion of admissible evidence were

also able to testify to the matters at issue. See Bowman, 327 S.W.3d at 92 (directing

courts to consider whether the evidence was cumulative or was corroborated by other

evidence).

As pointed out by Defendants, Plaintiff called six different witnesses to testify

about the conditions at Allenbrooke during the time of Mrs. Pierce’s stay. Defendants do

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not state in their brief, much less cite to evidence in the record identifying, which of these

witnesses was specifically affected by the alleged erroneous exclusion of bias

impeachment evidence. See Tenn. R. Ct. App. 6(a)(1). Moreover, even after reviewing

the record as a whole, we can discern that only two of the six former Allenbrooke

employees who testified were affected by the exclusion of this evidence. Specifically, it

appears that Plaintiff filed portions of the depositions of Cheryl Gatlin-Andrews22 and

Querrida Johnson23 in support of their motion in limine to exclude this testimony.24

In the absence of a specific citation by Defendants to proof identifying the specific

witnesses affected by the exclusion of this evidence or indicating that the trial court

excluded impeachment evidence against more than just two of Plaintiff’s six witnesses on

this issue, 25 we must conclude that any error in excluding this evidence was harmless.

Here, while the evidence regarding the conditions at Allenbrooke were integral to

Plaintiff’s case, see Bowman, 327 S.W.3d at 92 (considering the importance of the

evidence), it appears from the record on appeal that this evidence was presented by

several witness for which no impeachment evidence has been cited by Defendants. Id.

(considering whether the evidence was cumulative or corroborated by other witnesses).

Thus, even if the jury were to discount the evidence presented by Ms. Gatlin-Andrews

and Ms. Johnson, it could also have chosen to accept the testimony of the remaining four

witnesses for which no bias evidence was presented. Likewise, Ms. Hatfield testified to

her observations regarding Mrs. Pierce’s care and no error has been alleged that bias

evidence was improperly excluded during her testimony. As such, there was considerable

“corroborating [evidence] of the[se] witness[es] on material points[.]” Id. Indeed, as

previously discussed, it was Defendants’ argument that this evidence was cumulative.

Defendants were also permitted to present extensive testimony from other witnesses that

there was no understaffing issue at Allenbrooke and that the issues that Plaintiff’s

witnesses observed were not true.

Finally, we note that Defendants’ brief on this issue is largely deficient; rather than

include any argument or analysis involving the prejudice that resulted from this error,

Defendants merely include a conclusory statement that reversal is required due to this

alleged error, as the jury must have been “substantially swayed by the error.” Kotteakos

v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946) (“If one

22

Ms. Gatlin-Andrews’s deposition indicates that her employment was terminated at other

nursing homes. The portion of the deposition included in the record does not clearly indicate that she was

fired from Allenbrooke. Accordingly, while this evidence may involve impeachment, Defendants have

not shown that the excluded impeachment evidence involves bias against Allenbrooke.

23

Ms. Johnson’s entire deposition is included in the record.

24

The motion also cites portions of the deposition of Lashandra Michelle Turner. Ms. Turner did

not testify at trial.

25

Again, we emphasize that it is not this Court’s burden to comb the record to find support for the

appellant’s arguments. See generally Cartwright, 478 S.W.3d at 616. Here, Defendants failed to address

specifically the impeachment evidence of any single witness, instead addressing the issue collectively.

- 33 -

cannot say, with fair assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not substantially swayed by the

error, it is impossible to conclude that substantial rights were not affected.”). In no way

do Defendants’ elaborate or explain in this section of their brief why the exclusion of this

impeachment evidence constitutes a harmful error. Based on the totality of the evidence

in the case and the parties’ briefs, Defendants have failed to show that the jury’s decision,

more likely than not, would have been affected by the alleged error at issue. As such, any

alleged error in the exclusion of this evidence does not necessitate reversal.

C. Impeachment Evidence against Defendant’s Expert

Defendants next assert that the trial court erred in allowing Plaintiff to cross-

examine Plaintiff’s nurse practitioner expert, Amanda Bailey, regarding her prior

experience as an actress and her work with a professional acting coach.26 Defendants

assert that this evidence was irrelevant to her credibility as an expert and failed to have

any effect on the basis of Ms. Bailey’s opinions. Plaintiff argued at trial however, that the

evidence was highly relevant to Ms. Bailey’s credibility and “her whole performance

here today[.]”

Again, as previously discussed, Rule 611 of the Tennessee Rules of Civil

Procedure generally allows broad cross-examination, including with regard to credibility.

See Tenn. R. Evid. 611. Its purpose is to enable the trier-of-fact to assess a witness’s

“‘demeanor [and] sincerity[.]’” Mayo v. Shine, 392 S.W.3d 61, 67 (Tenn. Ct. App. 2012)

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

rule is particularly apt in the context of expert witnesses: “Opposing counsel should be

given broad latitude in their cross-examination [of an expert].” Bradley v. Bishop, 538

S.W.3d 518, 530 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Aug. 18, 2017)

(quoting Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 197–98 (Tenn. Ct. App.

2008)). In particular, this Court has approved of cross-examination tactics intended to

expose an expert as a “professional ‘hired gun,’ who earns a significant portion of his or

her livelihood from testifying and . . . may have a general economic interest in producing

favorable results for the employer of the moment.” Laseter v. Regan, 481 S.W.3d 613,

628 (Tenn. Ct. App. 2014). The trial court’s decision regarding the propriety, manner, or

scope of cross-examination will not be interfered with in the absence of an abuse of

discretion. State v. Echols, 382 S.W.3d 266, 285 (Tenn. 2012).

In this case, Ms. Bailey was clearly the type of professional expert witness in

which cross-examination into her professional history and possible biases was

appropriate. Indeed, Ms. Bailey’s fee for testifying was well above the fee charged by the

other experts associated with this case. As such, Defendants asserted that part of Ms.

26

Ms. Bailey admitted to having been in more than ten films, seven of which included lead roles,

as well as number of commercials and industrial films.

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Bailey’s cache resulted not just from her experience as a nurse practitioner, but also her

experience as an actress. Although the evidence in this case does not fall squarely within

the holding in Laseter, which involved financial information, evidence of Ms. Bailey’s

acting history was relevant to her sincerity and demeanor before the jury. See Mayo, 392

S.W.3d at 67 (citing Overstreet, 4 S.W.3d at 708). Like the financial information at issue,

this evidence exposes Ms. Bailey’s status as a professional expert witness, in this case,

one arguably more apt at testifying than other expert witnesses, as illustrated by her

acting training and elevated fee. Given the broad authority allowed when cross-

examining expert witnesses, see Bradley v, 538 S.W.3d at 530, we cannot conclude that

the trial court abused its discretion in admitting this evidence on the basis of relevance.

Defendants raise an additional argument, however—that this evidence should have

been excluded for failure to comply with Rule 608 of the Tennessee Rules of Evidence.

Under Rule 608, specific instances of conduct pertaining to the truthfulness or

untruthfulness of a witness may only be inquired into on cross-examination where certain

conditions are met, including a jury-out hearing on the probative value of the evidence

and the recentness of the conduct at issue. See Tenn. R. Evid. 608(b). Again, Defendants

fail to include a citation to the record where they objected under Rule 608 to the

admission of this evidence. From our review of Ms. Bailey’s testimony, no such

objection was lodged.27 As such, this issue is waived. See State v. Brown, No. E2015-

00899-CCA-R3-CD, 2016 WL 3633474, at *10–*11(Tenn. Crim. App. June 29, 2016),

perm. app. denied (Tenn. Oct. 20, 2016) (citing Tenn. R. Evid. 103(a)(1)) (holding that a

Rule 608(b) objection was waived where the defendant objected to the evidence on

another basis but did not raise 608(b) at trial).

D. Hearsay Statement

Defendants next contend that the trial court should have granted a mistrial based

upon the testimony of Ms. Hatfield that the surgeon involved in Mrs. Pierce’s care

informed her that she “definitely” had a case for a lawsuit. Like the admission of

evidence, the decision to grant or deny a mistrial is “a matter resting within the sound

discretion of the trial court and will not be reversed absent an abuse of discretion[.]”

State v. Saylor, 117 S.W.3d 239, 250–51 (Tenn. 2003); see also Hunter v. Ura, 163

S.W.3d 686, 699 (Tenn. 2005) (applying the abuse of discretion standard to a mistrial

dispute in civil court). “‘[T]he burden of establishing the necessity for mistrial lies with

the party seeking it.’” Teague v. Kidd, No. E2016-01995-COA-R3-CV, 2017 WL

2299059, at *4 (Tenn. Ct. App. May 25, 2017) (quoting State v. Moss, No. M2014-

00746-CCA-R3-CD, 2016 WL 5253209, at *24 (Tenn. Crim. App. Sept. 21, 2016), perm.

app. denied, (Tenn. Jan. 19, 2017)).

27

Instead, it appears that Defendants only objected to the relevance of Ms. Bailey’s acting

experience.

- 35 -

Again, the procedural history relevant to this issue is important to a full

understanding of the dispute. During the deposition of Ms. Hatfield, she testified that

during an examination of Mrs. Pierce’s leg prior to the amputation, Ms. Hatfield asked

the surgeon, “Is this a lawsuit?” According to Ms. Hatfield, the physician answered,

“Yes.” Defendants filed a motion in limine to exclude any mention of this testimony. The

motion in limine was taken under advisement pending trial. During trial, however, Ms.

Hatfield testified about her conversations with the surgeon. In summation, Plaintiff’s

counsel asked Ms. Hatfield, if there was “anything else that ya’ll discussed besides that

and the amputation?” Ms. Hatfield replied that, “I asked him is this a case for a lawsuit,

and he said, ‘Definitely.’” Defendants immediately objected and asked for a mistrial.

Defense counsel later appeared to acquiesce to the trial court giving a curative instruction

for the jury to disregard the evidence; another lawyer for Defendants later renewed the

motion for a mistrial.

Plaintiff does not assert that the statement by Ms. Hatfield was admissible; rather

Plaintiff asserts that Defendants cannot show any prejudice that resulted from the single

statement made during the beginning of a five-week trial. We agree. The Tennessee

Supreme Court has previously elucidated three factors that may be considered when

determining whether a mistrial was warranted because inappropriate testimony was

presented to the jury: “(1) whether the [proponent] elicited the testimony, or whether it

was unsolicited and unresponsive; (2) whether the trial court offered and gave a curative

jury instruction; and (3) the relative strength or weakness of the [proponent’s] proof.”

State v. Nash, 294 S.W.3d 541, 547 (Tenn. 2009) (citing State v. Smith, 893 S.W.2d 908

(Tenn.1994)). The court noted, however, that there was no mathematical formula in

which to precisely determine whether a mistrial should be granted and that other factors

could be considered. Id. at 547 n.4.

Here, the parties devote considerable attention to whether the statement was

unsolicited. To be sure, counsel for Plaintiff did not ask a specific question regarding the

surgeon’s alleged comment on whether a lawsuit would be viable. However, counsel for

Plaintiff was certainly on notice that Ms. Hatfield’s discussions with the surgeon included

the alleged statement regarding a future lawsuit and had been warned by the trial court

not to elicit hearsay from the witnesses. As such, neither party’s position is the clear

victor.

The other factors, however, more clearly favor Plaintiff in this case. First, there

can be no dispute that at the request of counsel for Defendants, a curative instruction was

given by the trial court. Id. at 547. Generally, the jury is presumed to have followed the

trial court’s curative instruction. See State v. Reid, 164 S.W.3d 286, 342 (Tenn. 2005). In

addition, while the proof of negligence in this case was certainly conflicting, Plaintiff

presented a competent expert witness who testified that Allenbrooke’s negligence caused

Mrs. Pierce’s injuries and indeed, the jury was well-aware that a lawsuit had resulted. In

addition, other factors weigh in favor of finding that this statement was non-prejudicial.

- 36 -

For example, the Tennessee Supreme Court previously held that where a single

improper statement was made during the course of a two-week trial, “any prejudicial

effect that resulted from the [] comment would have been slight.” Mercer v. Vanderbilt

Univ., Inc., 134 S.W.3d 121, 134 (Tenn. 2004) (involving a comment by the trial court).

Ms. Hatfield’s comment in this case occurred on the first day of testimony in what would

be a five-week trial. More than a dozen witnesses testified and over one hundred exhibits

were admitted into the record. As such, the prejudicial effect here is no more than what

was at issue in Mercer. Given that several factors favor a finding that a mistrial was not

warranted, regardless of whether the statement was solicited by Plaintiff’s counsel, we

cannot conclude that the trial court abused its discretion in failing to grant a mistrial on

this basis.

IV. Verdict Form

Defendants next contend that the special verdict form used by the trial court was

confusing and inconsistent and resulted in an irreconcilable verdict. In support,

Defendants note four alleged errors in the jury verdict form: (1) the verdict form failed to

instruct the jury as to comparative fault;28 (2) the verdict form asked the jury to find the

Defendants collectively liable before determining whether to pierce the corporate veil; (3)

the jury returned a verdict finding Defendants guilty of medical malpractice but awarded

no damages for this tort; and (4) the joint and several liability award is at odds with the

punitive damages award, which awards damages against each defendant individually.

We begin with Defendants’ first two issues, which involve the special verdict form

submitted to the jury. As we have previously explained,

Decisions regarding the use of a special verdict form and the questions to

be included on the form are discretionary. See Tenn. R. Civ. P. 49; Smith v.

Parker, 213 Tenn. 147, 159–60, 373 S.W.2d 205, 211 (1963). When a

special verdict form is used, it should repeat and highlight the issues

covered in the charge and should be couched in the same terms as the jury

instructions. See Concrete Spaces, Inc. v. Sender, No. 01A01-9607-CH-

00288, 1998 WL 430165, at *6 (Tenn. Ct. App. July 31, 1998) (Tenn.

R.App. P. 11 application pending).[29] Instructions and special verdict

forms should be considered together to determine whether they present the

contested issues to the jury in an unclouded and fair manner. See Morton v.

28

From our review, the jury instructions likewise did not include any specific instructions

on comparative fault. No issue has been raised regarding this omission on appeal.

29

The Tennessee Supreme Court later affirmed the Court of Appeals’ decision that the special

verdict forms were deficient, but reversed as to the appropriate remedy. See Concrete Spaces, Inc. v.

Sender, 2 S.W.3d 901, 906 (Tenn. 1999).

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City of Chicago, 286 Ill.App.3d 444, 222 Ill.Dec. 21, 676 N.E.2d 985, 990

(1997); Capers v. The Bon Marche, 91 Wash.App. 138, 955 P.2d 822, 825

(Wash.Ct.App.1998). Reversal is required only when the special verdict

form is confusing or inconsistent with the trial court’s instructions. See

Helmar v. Harsche, 296 N.J.Super. 194, 686 A.2d 766, 775 (N.J. Super.

Ct. App. Div. 1996).

Ingram v. Earthman, 993 S.W.2d 611, 640–41 (Tenn. Ct. App. 1998). When on notice

of the contents of a special verdict form, however, the failure to object to the form

constitutes a waiver on appeal:

Counsel should object promptly to a proposed verdict form. If possible,

they should object to the form before its submission to the jury. However, if

unaware of the form’s substance, they should object before the jury returns

its verdict. . . . Failure to make a timely objection to a verdict form

constitutes a waiver of the objection.

Creech v. Addington, 281 S.W.3d 363, 386 (Tenn. 2009) (quoting Keith v. Murfreesboro

Livestock Mkt., Inc., 780 S.W.2d 751, 759 (Tenn. Ct. App. 1989) (citations omitted))

(“Although it is the duty of the trial court to provide accurate instructions to the jury, the

Plaintiffs, after being made aware of the limitations on the jury’s consideration of the

evidence prior to closing arguments, neither objected nor made a special request for any

alternative directive. The Plaintiffs, therefore, waived appellate consideration of [this

issue].”). But see Waters v. Coker, 229 S.W.3d 682, 689 (Tenn. 2007) (citing Tenn. R.

Civ. P. 51.02) (holding that there is no waiver when a party fails to object to an erroneous

jury instruction).30

Here, Defendants did not object to the special verdict form on the bases that are

now raised in this appeal, despite having access to the special verdict form and

opportunity to raise objections thereto. Indeed, Defendants did raise certain objections to

the form, which included placing the question of negligence before the question of alter

ego/joint venture/agency, the very issue they now complain of. At the very least, issues

regarding the lack of directions on comparative fault and the order of the special verdict

form were known to Defendants prior to the jury rendering its verdict. In fact, it appears

that one of the errors alleged by Defendants was actually requested by them. See Tenn. R.

30

Specifically, Rule 51.02 provides:

After the judge has instructed the jury, the parties shall be given opportunity to object,

out of hearing of the jury, to the content of an instruction given or to failure to give a

requested instruction, but failure to make objection shall not prejudice the right of a party

to assign the basis of the objection as error in support of a motion for a new trial.

Defendants raise this issue with regard to the verdict form, not the instructions given.

- 38 -

App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a

party responsible for an error[.]”). Finally, we note that neither the placement of the

questions on the special verdict form nor the omission of comparative fault appears to

have been raised as a ground in Defendants’ motion for new trial. See Tenn. R. App. P.

3(e). While a party need not always object to erroneous jury instructions to preserve the

issue on appeal, the erroneous instruction must be raised as an error in a motion for new

trial following the verdict. Waters, 229 S.W.3d at 689 (holding that while a party need

not always object to jury instructions during trial, the issue must be raised in the motion

for new trial). As such, in the absence of both a timely objection to the special verdict

form on these bases and an effort to raise these issues as grounds in Defendants’ motion

for new trial, these arguments are waived.

We concede that Defendants may be correct that the issues regarding

irreconcilable jury verdicts may have not been known to Defendant until after the jury

rendered its verdict. Unlike the above challenges to the special verdict form, these issues

were also raised in Defendant’s motion for new trial. See Tenn. R. App. P. 3(e). We

cannot agree, however, that these issues constitute errors sufficient to necessitate a new

trial.

It is true that an irreconcilable verdict cannot stand. See, e.g., Milliken v. Smith,

218 Tenn. 665, 668, 405 S.W.2d 475, 476 (Tenn. 1966) (“The general rule is that verdicts

which are inconsistent and irreconcilable must not be allowed to stand.”). In one case

cited by Defendants, this Court held that a jury verdict that found the defendant had

injured the plaintiff but awarded no damages was “erroneous on its face.” Clements v.

Veterans Cab Co., 48 Tenn. App. 152, 161, 344 S.W.2d 572, 576 (Tenn. 1960). We note,

however, that “[i]t is the duty of the court in construing verdicts to give them the most

favorable interpretation and to give effect to the intention of the jurors if that intention be

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

v. Allison, 200 Tenn. 115, 125–26, 290 S.W.2d 864, 868 (Tenn. 1956)). In reviewing the

jury’s verdict, we must therefore “place a construction there on that will uphold the

verdict[.]” Newsom v. Markus, 588 S.W.2d 883, 886 (Tenn. Ct. App. 1979) (quoting

Briscoe, 290 S.W.2d at 868) (“If, after an examination of the terms of the verdicts, the

court is able to place a construction there on that will uphold the verdict, it is incumbent

upon the court to do so.”).

Reviewing the jury’s verdict in the light most favorable to it, we cannot conclude

that the verdict is irreconcilable, either because of the lack of damages for medical

malpractice or the finding of joint and several liability that is purportedly at odds with the

later punitive damages award. First, we note that although verdicts in which liability is

found but no damages are awarded are unusual and disfavored, we have previously

recognized that “[a] jury verdict reflecting zero damages where negligence has been

determined in favor of the plaintiff, either by summary judgment, directed verdict, or a

one-hundred-percent defendant fault finding, has been upheld in a number of cases

- 39 -

reported in Tennessee and in sister jurisdictions.” Dixon v. Cobb, No. M2006-00850-

COA-R3-CV, 2007 WL 2089748, at *5 (Tenn. Ct. App. July 12, 2007) (citing McDonald

v. Petree, 409 F.3d 724, 731 (6th Cir. 2005); Blosfeld v. Hall, 511 S.E.2d 196, 199 (Ga.

Ct. App. 1999); Pearson v. Wasell, 723 N.E.2d 609, 616–17 (Ohio Ct. App. 1998);

Newsom, 588 S.W.2d at 887). Moreover, the jury’s verdict is not erroneous on its face

because it complies with the instructions therein. Specifically, the special verdict form

provides that “if you award damages for injuries sustained by Mrs. Pierce as a result of

Negligence, you must not award damages for those same injures as a result of Medical

Malpractice.”31 The jury awarded damages as a result of ordinary negligence. In failing to

award any damages as a result of medical malpractice, it therefore appears that the jury

followed the instructions of the jury form. Consequently, we cannot conclude that the

jury verdict is erroneous on its face based on this irregularity. See Clements, 344 S.W.2d

at 576; Newsom v. Markus, 588 S.W.2d at 886.

We also agree with Plaintiff that the issues of compensatory damages and punitive

damages involve divergent focuses; indeed, Defendants have cited no law in support of

their theory that it is inconsistent to hold multiple defendants liable collectively for acting

in concert for purposes of compensatory damages while placing differing amounts of

culpability on each defendant during the punitive damages phase.32 Indeed, while the

issue of compensatory damages is determined by the amount of Mrs. Pierce’s injuries, an

amount that remains static as to each defendant held jointly and severally liable, punitive

damages are based on other factors, including the defendant’s conduct and financial

status, which can change from defendant to defendant. See Hodges v. S.C. Toof & Co.,

833 S.W.2d 896, 901 (Tenn. 1992) (discussing the factors applicable in determining

punitive damages). As such, viewing the jury verdict in the light most favorable to it, we

cannot conclude that this constitutes an error that necessitates a new trial.

V. Liability of non-Allenbrooke Defendants

The non-Allenbrooke Defendants next argue that (1) the trial court failed to grant

their requested directed verdict on the issue of their individual liability; and (2) the jury

erred in finding material evidence to hold them individually liable for the alleged

negligence of Allenbrooke. In resolving these issues, we must first discuss the applicable

standards of review. As an initial matter, we note that following the denial of Defendants’

motion for directed verdict at the close of Plaintiff’s proof, Defendants chose to present

their own evidence. As such, consideration of the trial court’s initial decision to deny the

motion for directed verdict is waived. See Searle v. Bryant, 713 S.W.2d 62, 66 (Tenn.

31

Defendants do not appear to have objected to this particular instruction either at trial or on

appeal.

32

Moreover, issues relating to the damages awarded against the individual defendants for acting

in concert compared to how the jury awarded punitive damages are largely rendered moot by our decision

to vacate the amount of punitive damages awarded in this case, as well as our decision regarding the

liability of a majority of the non-Allenbrooke Defendants.

- 40 -

1986) (citing Nashville Ry. & Light Co. v. Henderson, 118 Tenn. 284, 99 S.W. 700, 700

(Tenn. 1907) (“It not infrequently happens that the defendant himself by his own

evidence supplies the missing link [requiring denial of a motion for a directed verdict].”))

(“It is well-settled that a defendant waives his right to rely on error in the denial of his

motion for directed verdict made at the end of the plaintiff’s proof if he goes forward

with his own proof rather than resting on the motion.”); see also Hand v. Norfolk S. Ry.

Co., No. 03A01-9704-CV-00123, 1998 WL 281946, at *1 (Tenn. Ct. App. June 2, 1998)

(“[I]ntroduction of evidence by the Defendant waived the motion for directed verdict

made at the conclusion of the Plaintiff’s proof.”); Robert J. Banks, June F. Entman,

Tennessee Civil Procedure § 10-9(b) (4th ed. 2015) (citing James v. Swindell, No.

E1999-02407-COA-R3-CV, 2000 WL 1195683, at *3 (Tenn. Ct. App. Aug. 23, 2000))

(“A defendant does waive its right to rely on the error of the trial judge in the denial of its

motion for directed verdict made at the close of the plaintiff’s proof if it goes forward

with its own proof rather than resting on the motion.”).

Defendants did properly renew the motion following the close of all proof and by

filing a post-trial motion for judgment notwithstanding the verdict. We review the denial

of Defendant’s motion for judgment notwithstanding the verdict as follows:

In ruling on the motion, the court must take the strongest legitimate view of

the evidence in favor of the non-moving party. In other words, the court

must remove any conflict in the evidence by construing it in the light most

favorable to the non-movant and discarding all countervailing evidence.

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. Sauls

v. Evans, 635 S.W.2d 377 (Tenn.1982); Holmes v. Wilson, 551 S.W.2d

682 (Tenn.1977). If there is any doubt as to the proper conclusions to be

drawn from the evidence, the motion must be denied. Crosslin v. Alsup,

594 S.W.2d 379 (Tenn. 1980).

Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994) (noting that the standard for

reviewing a motion for a directed verdict is the same); cf. Baggett v. Louisville & N. R.

Co., 51 Tenn. App. 175, 185, 365 S.W.2d 902, 906 (Tenn. Ct. App. 1962) (holding that in

reviewing a motion for a directed verdict, the court may consider all the proof presented

to the jury, including the proof presented by the defense); see also Potter v. Tucker, 688

S.W.2d 833, 835 (Tenn. Ct. App. 1985) (holding that in an appeal from the denial of a

motion for directed verdict, the court should consider “all of the evidence” or “the whole

evidence”).

Likewise, we review the sufficiency of the evidence to sustain the jury’s verdict as

follows:

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In reviewing the sufficiency of a civil jury verdict, we will set aside

findings of fact by a jury “only if there is no material evidence to support

the verdict.” Tenn. R. App. P. 13(d); see also Wilson v. Americare Sys.,

Inc., 397 S.W.3d 552, 558 (Tenn. 2013). To determine whether there is

such material evidence, we “(1) take the strongest legitimate view of all the

evidence in favor of the verdict; (2) assume the truth of all evidence that

supports the verdict; (3) allow all reasonable inferences to sustain the

verdict; and (4) discard all [countervailing] evidence.” Creech v.

Addington, 281 S.W.3d 363, 372 (Tenn. 2009) (alteration in original)

(quoting Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704

(Tenn. 2000) (internal quotation marks omitted)), abrogated by Gossett v.

Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010). We do not re-weigh the

evidence, Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 532 (Tenn.

2008), and do not recalibrate the jury’s preponderance of the evidence

assessment, Barnes, 48 S.W.3d at 704. The credibility of witnesses is the

province of the jury, not appellate courts. See, e.g., State v. Flake, 88

S.W.3d 540, 554 (Tenn. 2002) (“Questions concerning the credibility of

witnesses, the weight and value of the evidence, as well as all factual

disputes raised by the evidence, are for the trier of fact; appellate courts do

not reweigh the evidence or reevaluate credibility determinations.”);

Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994).

Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375, 380 (Tenn. 2014). In

performing this analysis, we consider only the evidence presented during the

compensatory damages phase of trial, as it was following this phase of trial that the jury

made its decision to hold the non-Allenbrooke Defendants liable. See State v. Williams,

No. W2001-02606-CCA-R3-CD, 2002 WL 31259499, at *6 (Tenn. Crim. App. Sept. 18,

2002) (citing State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981), overruled in part

on other grounds by State v. Leveye, 796 S.W.2d 948, 953 (Tenn. 1990)) (“Whether the

evidence at trial is legally sufficient to support the verdict is examined in light of the

evidence actually presented to the jury.”). Thus, our review of either the judgment

notwithstanding the verdict or sufficiency of the evidence issues generally involve

whether, after reviewing all of the evidence, there was material evidence presented for

the jury to impose liability on the non-Allenbrooke Defendants.

We begin our discussion of the applicable law and facts regarding the entities at

issue in this case. Here, Defendants do not appear to dispute that, setting aside the

procedural issues discussed above, the jury had sufficient evidence to find that

Allenbrooke, a Tennessee limited liability company that operated the nursing facility in

Tennessee, committed negligence and medical malpractice in this case. The dispute in

this case involves whether the non-Allenbrooke Defendants, that is Aurora Cares, DTD,

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D&N, Mr. Denz, and Mr. Bennett, may likewise be liable in this case.33 The relationships

between the parties are somewhat convoluted, so some explanation is again helpful.

D&N and DTD are limited liability companies organized under the laws of New

York; each entity maintains a fifty percent membership interest in Allenbrooke, a

Tennessee limited liability company. D&N and DTD likewise maintain equal

membership in Aurora Cares, another limited liability company organized under New

York law. Aurora Cares provides administrative support services to nursing homes,

including Allenbrooke. There is no dispute that neither D&N nor DTD have employees

or agents. The majority and sole voting member of D&N is Mr. Bennett, who also serves

as D&N’s company manager. Mr. Bennett is also a limited liability company manager for

Aurora Cares and Allenbrooke, and serves as the co-Chief Executive Officer of Aurora

Cares. Mr. Bennett served as the co-Chief Executive Officer of Allenbrooke until

December 2008. The majority and sole voting member of DTD is Mr. Denz, who

likewise serves as that company’s manager. Mr. Denz is a limited liability company

manager for Aurora Cares and Allenbrooke. Mr. Denz also served as the co-Chief

Executive Officer and Chief Financial Officer of Allenbrooke until December 2008.

In general, “a limited liability company exists separate and apart from its

members” in the same way that a corporation is separate from its shareholders. Johnson

v. Tanner-Peck, L.L.C., No. W2009-02454-COA-R3-CV, 2011 WL 1330777, at *13

(Tenn. Ct. App. Apr. 8, 2011) (applying rules regarding corporate separateness to a

limited liability corporation). Specifically, Tennessee Code Annotated section 48-217-

101 provides that “a member, holder of financial interest, governor, manager, employee

or other agent of an LLC does not have any personal obligation and is not otherwise

personally liable for the acts, debts, liabilities, or obligations of the LLC whether such

arise in contract, tort or otherwise.” Tenn. Code Ann. § 48-217-101 (a)(1). One caveat to

this rule, however, is that “a member, holder of financial interest, governor, manager,

employee or other agent may become personally liable in contract, tort or otherwise by

reason of such person’s own acts or conduct.” Tenn. Code Ann. § 48-217-101(a)(3).

Additionally, this Court has previously held that the equitable doctrine of piercing the

corporate veil is equally applicable to limited liability corporations. Edmunds v. Delta

Partners, L.L.C., 403 S.W.3d 812, 828 (Tenn. Ct. App. 2012) (quoting Schlater v.

Haynie, 833 S.W.2d 919, 925 (Tenn. Ct. App. 1991) (“The doctrine of piercing the

corporate veil applies equally to cases in which a party seeks to pierce the veil of a

limited liability company.”). Thus, there are two theories of liability at issue: (1) direct

liability against the non-Allenbrooke Defendants for their own role in the torts of

negligence and medical malpractice, as well as violations of TAPA, as found by the jury;

33

We note that Tennessee Code Annotated section 29-26-102(a) provides that “[a] passive

investor shall not be liable” in a healthcare liability action. The statute goes on to provide an exception.

Because section 29-26-102 did not become effective until 2015, however, neither party alleges that it is

applicable in this case. See 2015 Tenn. Laws Pub. Ch. 254 (H.B. 1285), eff. April 24, 2015.

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and (2) vicarious liability against the non-Allenbrooke Defendants under the theories of

alter ego/joint venture/agency.34 We begin with Plaintiff’s theory of direct liability.

A. Direct Liability

As previously discussed, there is no dispute that the non-Allenbrooke Defendants

may be liable for their “own acts or conduct” that constitutes negligence and/or medical

malpractice in this case. Tenn. Code Ann. § 48-217-101(a)(3). Here, the tortious conduct

at issue involves understaffing and negligence by Allenbrooke against Mrs. Pierce. The

non-Allenbrooke Defendants argue, however, that the jury lacked evidence to find that

they may be directly liable for the torts at issue in this case because there was no

evidence that they were involved in Mrs. Pierce’s care.

Here, both parties appear to agree that in order to be directly liable under this

theory, each non-Allenbrooke Defendant must have been involved in the day-to-day

operations of the facility.35 The parties appear to disagree, however, as to whether the

level of involvement shown in this case was sufficient to meet this test. Plaintiff asserts

that because the non-Allenbrooke Defendants were involved in the budget and staffing

levels of the facility, they can be directly liable for the injuries that resulted to Mrs.

Pierce. See 5 Mark R. Kosieradski & Joel E. Smith, Litigating Tort Cases § 63.45 (2017)

(citing United States v. Bestfoods, 524 U.S. 51, 118 S. Ct. 1876, 141 L. Ed. 2d 43

(1998)) (“In the nursing home context, . . . the parent’s control of the day-to-day

operation of the facility, as opposed to operation of the subsidiary, will create direct

liability.”). We cannot agree that mere involvement in financial decisions is always

sufficient to impose direct liability. Rather, the United States Supreme Court has

explained the following nuanced approach to this question:

[T]he acts of direct operation that give rise to parental liability must

necessarily be distinguished from the interference that stems from the

normal relationship between parent and subsidiary. Again norms of

corporate behavior . . . are crucial reference points. Just as we may look to

34

We note that DTD and D&N are not Tennessee limited liability companies, but rather are

organized under the laws of New York. New York law similarly provides for liability against limited

liability companies for direct negligence and in the case of sham/dummy companies. See NY Limit Liab

Co § 609(a) (providing that members and others associated with a limited liability company are not liable

for the liabilities of the company); Bd. of Managers of Beacon Tower Condo. v. 85 Adams St., LLC, 136

A.D.3d 680, 681–82, 25 N.Y.S.3d 233, 237 (N.Y. App. Div. 2016) (“[M]embers of limited liability

companies, such as corporate officers, may be held personally liable if they participate in the commission

of a tort in furtherance of company business. . . . [A] party may seek to hold a member of an LLC

individually liable despite this statutory proscription by application of the doctrine of piercing the

corporate veil.”) (citations omitted). In this appeal, the parties solely discuss Tennessee law. As such, we

likewise apply the law of Tennessee, where available.

35

Thus, we focus on the non-Allenbrooke Defendants’ involvement with Allenbrooke, rather than

their involvement with the other non-Allenbrooke entities.

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such norms in identifying the limits of the presumption that a dual

officeholder acts in his ostensible capacity, so here we may refer to them in

distinguishing a parental officer’s oversight of a subsidiary from such an

officer’s control over the operation of the subsidiary’s facility. “[A]ctivities

that involve the facility but which are consistent with the parent’s investor

status, such as monitoring of the subsidiary’s performance, supervision of

the subsidiary’s finance and capital budget decisions, and articulation of

general policies and procedures, should not give rise to direct liability.”

[Lynda J. Oswald, Bifurcation of the Owner and Operator Analysis Under

CERCLA: Finding Order in the Chaos of Pervasive Control, 72 Wash. U.

L.Q. 223, 280 (1994))]. The critical question is whether, in degree and

detail, actions directed to the facility by an agent of the parent alone are

eccentric under accepted norms of parental oversight of a subsidiary’s

facility.

* * *

[O]perator liability can only be evidenced by extensive parental

involvement in, and control over, the facility; the parent’s involvement in

the activities of the subsidiary itself are not important. Factors that tend to

support piercing, such as common directors or inadequate capitalization,

but that are unrelated to the operation of the facility, should not give rise to

liability. Likewise, activities that involve the facility but which are

consistent with the parent’s investor status, such as monitoring of the

subsidiary’s performance, supervision of the subsidiary’s finance and

capital budget decisions, and articulation of general policies and

procedures, should not give rise to direct liability of the parent. Rather,

operator liability should flow from the parent’s active management of the

facility as evidenced by its involvement in day-to-day operations of the

facility.

Bestfoods, 524 U.S. at 71–72 (citation omitted); see also Gordon v. Greenview Hosp.,

Inc., 300 S.W.3d 635, 651 (Tenn. 2009) (citing Bestfoods favorably).36 Thus, direct

liability will generally not attach where the parent’s actions are typical of parental

oversight of a subsidiary’s facility.

We cannot agree that the jury had material evidence to find direct liability against

Mr. Denz, Mr. Bennett, DTD, or D&N in this case. To be sure, the corporate documents

at issue indicate that Mr. Denz and Mr. Bennett have “complete, full, exclusive

discretion, power, and authority” in the management of Allenbrooke and their respective

36

Both parties cite the Bestfoods analysis in determining direct liability in this case. As such, we

likewise apply the test articulated therein.

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holding companies. In addition, tax returns show that Mr. Denz and Mr. Bennett each

devoted a small percentage of their week to work associated with Allenbrooke during the

time frame of Mrs. Pierce’s injury, while the testimony indicated that each individual

defendant made a handful of trips to Allenbrooke per year as part of the administrative

services that were provided to Allenbrooke. The “‘exercise of control’” by stockholders,

however, “‘will not create liability beyond the assets of the subsidiary.’” Bestfoods, 524

U.S. at 61–62 (quoting Douglas & Shanks, Insulation from Liability Through Subsidiary

Corporations, 39 Yale L.J. 193, 196 (1929) (“That ‘control’ includes the election of

directors, the making of by-laws . . . and the doing of all other acts incident to the legal

status of stockholders.”)). As previously discussed, the non-Allenbrooke Defendants must

take some actions beyond the typical action authorized by their investor status to be

directly liable for the torts at issue here. See id. at 71 (noting that “monitoring of the

subsidiary’s performance, supervision of the subsidiary’s finance and capital budget

decisions, and articulation of general policies and procedures should not give rise to

direct liability”). Likewise, the fact that Mr. Denz and Mr. Bennett installed themselves

as members and managers in the various companies at issue in this case is not sufficient

to impose direct liability. Id. (quoting Douglas, 39 Yale L.J. at 196 (“Nor will a

duplication of some or all of the directors or executive officers be fatal.”). Nor is the fact

that Mr. Benz and Mr. Bennett sat on Allenbrooke’s governing board, which was charged

with establishing and implementing policies for the facility, alone sufficient to impose

direct liability, in the absence of evidence that they were controlling or central figures in

the day-to-day operations of the facility. See id. at 70–71 (quoting American Protein

Corp. v. AB Volvo, 844 F.2d 56, 57 (C.A.2), cert. denied, 488 U.S. 852, 109 S.Ct. 136,

102 L.Ed.2d 109 (1988)) (“‘[I]t is entirely appropriate for directors of a parent

corporation to serve as directors of its subsidiary, and that fact alone may not serve to

expose the parent corporation to liability for its subsidiary’s acts.’ . . . [I]t cannot be

enough to establish liability here that dual officers and directors made policy decisions

and supervised activities at the facility.”).

Rather, the jury must have had material evidence to find that Mr. Denz, Mr.

Bennett, DTD, or D&N were actively involved in the operations of Allenbrooke with

regard to the specific transaction at issue. See Forsythe v. Clark USA, Inc., 224 Ill. 2d

274, 283–84, 864 N.E.2d 227, 234 (Ill. 2007) (citing Esmark, Inc. v. National Labor

Relations Board, 887 F.2d 739, 757 (7th Cir. 1989)) (“[A] parent corporation could be

held liable for the actions of its subsidiaries if the parent directly supervised the conduct

of a specific transaction.”). The evidence presented, however, did not show that Mr.

Denz, Mr. Bennett, DTD, or D&N participated in the day-to-day operations of

Allenbrooke to an extent sufficient to impose direct liability. See Bestfoods, 524 U.S. at

71–72 (requiring that the involvement be extensive). Importantly, Mr. Bennett, Mr. Denz,

and Administrator Meadows all testified that the non-Allenbrooke Defendants,

particularly Mr. Denz and Mr. Bennett, were simply not involved in the staffing and

operation of the facility. No other witnesses were able to contradict this testimony with

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personal knowledge that Mr. Bennett or Mr. Denz ever interfered or exercised extensive

parental involvement in Allenbrooke’s staffing or care decisions.

There can be no dispute, however, that Mr. Denz and Mr. Bennett were involved

in some of the financial dealings of Allenbrooke and that money from Allenbrooke

flowed to other entities associated with Mr. Denz and Mr. Bennett, ultimately resulting in

income to the individual defendants. Specifically, Plaintiff cites the decision to create a

quality bonus system that appears to incentivize cost-cutting.37 According to Plaintiff,

this involvement in the financial matters of Allenbrooke resulted in the understaffing that

the jury found caused Mrs. Pierce’s injury. As an initial matter, we note that “mere

budgetary mismanagement is not enough to support direct participant liability[,]” unless

coupled with “the direction or authorization of the manner in which an activity is

undertaken.” Forsythe, 864 N.E.2d at 237 (“In other words, these courts found that a

viable claim of liability under the direct participant theory cannot rest solely upon

budgetary mismanagement, but budgetary mismanagement can make up one part of a

viable claim, in conjunction with the direction or authorization of the manner in which an

activity is undertaken”). Nothing in the bonus offer specifically states that in order to be

awarded the bonus, Allenbrooke should cut staffing or in any way infringe on patient

care. Indeed, the bonus program was tied not only to budgetary issues, but generally also

required satisfactory levels of care to be awarded. As such, Administrator Meadows

testified that he did not feel incentivized to cut costs by the bonus program.

Additionally,

‘[W]here the parent specifically directs the actions of its subsidiary, using

its ownership interest to command rather than merely cajole,’ the

possibility of direct liability is present and will be imposed ‘where a parent

disregards the separate legal personality of its subsidiary (and the

subsidiary’s own decisionmaking ‘paraphernalia’), and exercises direct

control over a specific transaction.’

Id. at 234–35 (quoting Esmark, 887 F.2d at 757). The undisputed evidence in the record,

however, was that the bonus system was not mandatory, but was merely a

recommendation to the facility. Thus, given the other testimony in the record that Mr.

Denz, Mr. Bennett, DTD, or D&N were not involved in day-to-day operations of the

facility, particularly with regard to staffing, we cannot conclude that this bonus offer

constitutes material evidence of direct intervention by Mr. Denz, Mr. Bennett, DTD, or

D&N to impose direct liability in this case.

37

Specifically, the bonus system would provide a bonus to the facility administrator, Assistant

Executive Director, and the Director of Nursing if two criteria were met: (1) the facility met its net

income goal; and (2) the facility was not found to be deficient to a certain level during a state survey. The

administrator was also eligible for other bonuses related to accounts receivable, as well as revenue and

survey results.

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Plaintiff argues, however, that a number of cost reports created on behalf of

Allenbrooke from 2004 to 2008 indicate that Mr. Bennett was directly involved in patient

care, stating that his responsibilities included “oversight of resident care issues.”38 Even

disregarding the countervailing evidence that this statement was inaccurate, as we must

when reviewing a jury verdict, we cannot conclude that this provides material evidence in

support of direct liability. See Ferguson, 451 S.W.3d at 380 (outlining the standard of

review in appeals from jury verdicts). Here, the single statement contained in the cost

reports does not indicate that Mr. Bennett exercised direct control or extensive

involvement over the staffing levels of Allenbrooke, nor does it state that Mr. Bennett

was in any way involved in Mrs. Pierce’s care. See Esmark, 887 F.2d at 757 (requiring

that the parent “exercise[] direct control over a specific transaction”); United States v.

Sutton, 795 F.2d 1040, 1060 (Temp. Emer. Ct. App. 1986) (“A shareholder may be liable

if he is a ‘central figure’ in a corporation’s tortious conduct.”). Indeed, the final cost

report involved the year 2008; Mrs. Pierce’s injury occurred following her May 2009

stroke. As such, this cost report is not material evidence to support a finding of direct

liability against Mr. Bennett.

Here, the specific transaction at issue is the tortious conduct by Allenbrooke that

resulted in Mrs. Pierce’s injuries. As such, direct liability may result only where material

evidence is presented of “active management of the facility [by Mr. Denz, Mr. Bennett,

DTD, or D&N] as evidenced by [their] involvement in day-to-day operations of the

facility.” Bestfoods, 524 U.S. at 72. The only evidence in the record regarding the

involvement of Mr. Denz, Mr. Bennett, DTD, or D&N in Allenbrooke shows that their

actions were consistent with their investor status. Id. at 71. Based on the foregoing and

our review of the voluminous evidence in this case, we must conclude that Plaintiff failed

to present material evidence in support of its theory that there was “extensive parental

involvement in, and control over, the facility” sufficient to subject Mr. Denz, Mr.

Bennett, DTD, or D&N to direct liability. Id. The jury’s verdict on this issue, therefore,

cannot stand.

The same, however, cannot be said for Aurora Cares. Here, unlike with regard to

Mr. Denz, Mr. Bennett, DTD, or D&N, there is material evidence in the record to support

a finding that Aurora Cares participated in the care provided to residents at Allenbrooke

and thus, the specific transaction at issue.39 See id. The non-Allenbrooke Defendants

paint Aurora Cares as merely an administrative management company, providing payroll

services and the like to Allenbrooke and other facilities, without any involvement in the

38

Plaintiff also cites a 2003 cost report stating that Mr. Bennett has “daily” contact with

Allenbrooke. This cost report is not relevant to the time frame of Mrs. Pierce’s injuries, which occurred

half a decade later.

39

We note that unlike DTD and D&N, Aurora Cares is not the parent company of Allenbrooke. It

is, however, highly related to Allenbrooke through mutual ownership and duplication of officers and

members.

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actual operation of the facility. Indeed, the administrative services agreement between

Allenbrooke and Aurora Cares explicitly provides that Allenbrooke retains full power

over staffing issues. Likewise, Aurora Cares’ president during the relevant time, Chance

Becnel, testified that only the administrator of Allenbrooke was charged with the

responsibility of overseeing issues related to overstaffing and patient care, while Aurora

Cares’ work with Allenbrooke was “financial in nature.” Again, involvement in the

finances of Allenbrooke alone is insufficient to show direct liability without evidence that

Aurora Cares directed the day-to-day operations of Allenbrooke. See id. at 72.

The evidence, however, reveals involvement beyond the financial, specifically that

Aurora Cares held meetings on an annual or semi-annual basis to provide

recommendations to facilities regarding the care provided by Allenbrooke. These

recommendations were not merely financial, as “clinical people” were also involved.

Again, mere recommendations are generally not enough to impose direct liability. See

Forsythe, 864 N.E.2d at 234–35. The operating agreement between Aurora Cares and

Allenbrooke, however, also provides that Aurora Cares was tasked with “establish[ing]

employee performance standards as needed . . . to ensure the efficient operation of all

departments within and services offered” by Allenbrooke. In this vein, Aurora Cares

evaluates the performance of Allenbrooke’s administrator to determine if he is eligible

for a bonus under the bonus structure explained above.

In performing its contracted duty to Allenbrooke regarding employee performance

standards, the evidence also shows that Aurora Cares employed registered nurses who

would facilitate mock surveys at the facilities “to point out where perhaps [the facility]

could improve or make improvements.” This resource provided to facilities included both

“human resource people” and “dietary people” to ensure that the facility was operating in

compliance with legal guidelines. The purpose of the mock survey is to “look at care” to

ensure that the facility is “providing the best care that they can and that [Aurora] Cares

can assist them in pointing out where they may be doing things differently or consistent.”

The above involvement is therefore not merely financial, but also concerns the operations

of the facility, suggesting that Aurora Cares “‘directed and authorized the manner’ in

which the subsidiary conducted its business.” Forsythe, 864 N.E.2d at 237 (quoting

Waste Mgmt., Inc. v. Superior Court, 119 Cal. App. 4th 105, 112, 13 Cal. Rptr. 3d 910,

915 (Cal. Ct. App. 2004)). We agree that this evidence is not substantial, particularly

given the other testimony in the record regarding the lack of participation by Aurora

Cares in Allenbrooke’s staffing decisions. However, in this appeal from a jury verdict, we

must affirm the jury’s verdict if the record contains any material ev

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