# FILED
December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) GINGER

C. SNEAD an d ) Williamson County Circuit JAMES D. SNEAD , ) Court No. 95405 ) Plaintiff

s/Appella nts. )

) VS. ) C.A. No. 01A01-9702-CV-00085 ) LOIS V. METTS , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Williamson County at Franklin. Honorable Henry Denmark Bell, Judge

Steve C.Norris , Nashville, Tennessee Attorney for Plain tiffs/App ellants.
John L. Norr

is , HOLL INS, WAGSTER & YARBROUGH, Nashville, Te nnessee Attorney for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concur s) LILLARD, J. : (Concur s)The plaintiffs, Ginger C. Snea d and James D. Snead, sued the defendant, Lois A.

Metts as a result of a vehicular accident whic h occurred on

July 22, 1994. It is undisputed that the
car driven by Ms. Metts struck the ca r driven by Ms. Snead

in the re ar while

the Snead

vehicle was stopped at a stop sign. Ms. Snead sued for injuries and damage s and Mr. Snead sued for loss of consorti um.

The jury returne d a verd ict in favor of Ms. Snead for $750 and Mr. Snead in the amount of

$200. The

y a ppeal and presen

t the follo wing issu es:

1. Whether the trial court erred in admittinginto evidence the office notes of

Dr. Rober

t B. Sny der and o f Dr. Rog er A. Hod ge, bot h datedDecember 8, 1994, in which each doctor stated what the other doctor said during a telephone conversa tion. A. Whether

the statements contained in each doctor’s office notes reporting what t

he other docto r told h im on the telephone are in ad mi ss ib le he ar sa y. B. Whether th

e introduc tion of the se reco rds was h armless error.

The appellants’ argument is based on the following f roma Dece

mber 8, 19 94 note of Dr . H od ge an d a De ce mb er 8, 19 94 no te of Dr . S nyd er wh ic h s ta te re sp ec ti ve ly:

Dr. Snyder returned my call and we discussed her condition. He thinks that her accident was quiteminor and is not impressed with her musculoskeletal finding s. He think s that she is e motional and depressed, and seeking some secondary gain. He did no t want t o allow her to miss further work. I talked to Dr. Hodg e today . Appare ntly , Mrs. Snead wa s in his office yesterda y very upset a

nd crying and wanted him to keep her off work. He believes thereis a lot of anger and situationa

l depres sion as we

ll. I confirmed this, and that there a re a lot o f sy

mptoms and very

little signs involved in her case. He is going to continue a s her primary care ph ysi cian for

treatme nt.

The plaintiffs contend that these records of each doctor stating what

the other doctor stated are inadmissible hearsay . They ar gue that the“first le

vel” of h earsay consists of notes instead of in person testimony of

the doctor who made the notes, which they concede is admissible under the busines s r ecords exceptions of the hearsay rule. However, they

contend the “second level” of1 The pl ain ti ffs wer e re pre sen ted by Mr . S tev e C. Nor ris and th e de fen dan t b y Mr. Jo hn L.

Norris.
2 For example, Plaintiffs’ exhibit # 9 is a letter from Dr. Bobo Tanner to Dr. Hodg e which states in part “Dr. Parris said he may re-order one (refer

ring to an MRI) . . .” hearsay consists of each doctor reporting what the other said which does n ot qualify under a ny hearsay exception.

Defendant

first counters that there was an agr e ement between counsel that the medic al records could be introduced into evidence without objection. The basis of t his ar gument is an exch ange between counsel and the trial cou rt en camera wherein

plaintiff s’ attorney objected to the introduction into evidence of the above notes. The response of defendant’s counsel and the court’s ruling a re as fo llows:

MR. J. NORRI S: 1 May it please the Court, we stren

uously disagree. Mr. Norris wants to introduce this thick package of r ecords to which we would hav e all sort s of objections based on the Court’s ruling that these two entries go in. Based on whether or not it be a radiolog ist, a patholo gist, they

rely on conve rsations. They

rely on all so rts of infor

mation, a nd certa inly , one of those sourc es is wha t another doctor sa ys. So we submit that these are part of the office notes, part of the total picture history of this patient, and that Your Honor has corr ectly decided this matter. THE COURT: All r

ight. I rule ag ainst the P

laintiff on his objection, with the st

atement t hat the Cou

rt will hold

the defe nse counsel to his not objecting to any of the other records.

Plaintiff s’ attorney made

no further

statement and no further objection at the time the notes were read

into evidence. Our review of the record re veals that Plaintiffs did introduce, without objection, numerousexhibits consisting of medical reports, doctor’s notes, medical bills and various other documents consisting of some 50 to 60 pages. The defendants argument

is further buttressed by the fac t that s om e of the d octors’ notes intr

oduced b y Pla

intiffs lik ewise co ntained s tatement s made by doctors and he alth care providers other than the one who made the note. 2 We can re adily understandhow the defendant’s counsel was led to believe that there wa s a tacit

agreement between
counse l that each could introduce the medical recor ds without objection. While the recor d introducedby the

plaintiff s contained notati on from se veral me dical pr

oviders, the only

physicians3 Records of Regularly Conducted Activity. A memora ndum, rep ort, rec ord, or da ta compilation in any form of ac ts, events, conditions, opinions, or diagnoses made at or near the time by or from in

formatio n transmit

ted by a person with knowl edge a

nd a busine ss duty

to record or transmit if kept in the course of a re gularly conducted business activity a nd if it was the regula r pract ice of th at busine ss activit y to make the memoran dum, repo

rt, rec ord, or da

ta compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of pr eparation indicate lack of trustwor thiness. T

he term “ business”as used in

this para graph includesevery

kind of bus iness, institution , associa

tion, prof ession, oc cupation , and ca lling, wh ether or not condu cted for

profit.
4 When a wr

iting or record ed state ment or pa

rt there of is intro duced by a party , an adve

rse party may require the introduction at that time of any other part or any

other writing or recorded statemen t which ou ght in fa

irness to b e conside

red cont emporaneously

with it. who testified, both by deposition, were Dr. William Richard Carl Stew art, III and Dr. Rober t B. Snyder.

Howeve r, since it is not patently obvious that there was a n agreement between counsel, we will exa

mine the p laintiff

s’ argument further. As to Plaintiffs’ arg ument of inadmis sible he ar sa y, the defendant counters that the contested notes of Drs. Snyde r and Hodg e were

admissible
as business r

ecord s pursuant to Rule 803(6) of the Tennessee Rules of Evidence. 3 She further contends the notes were admissible under the complete ness doctrine as set forth at Rule 106 T.R.E. 4 As to the record of Dr. Sny der, after stating what was said to him by Dr. Hodge, Dr. Snyder

went on to say that “I

confirmed this, and that there are a lot of sy mptoms and very little s ig ns involve d in her case.” With respect to Dr. Hodge’s notation that Dr. Snyder stated to him that the patient was emotional and depressed, there is evidence of depression in the evidence submitted bythe plaintiff herself. In discussing his telephone con versa tion with Dr. Hodge, Dr. Sny der testified that “I confirmed

that it had

mirrore d my

asse ssm ent and I explained to him that there were a lot of symptoms; that is, a lot of complaints but very little signs involved in her case.”

However, assum ing arguendo that Plaintiffs are correct on their evidentiary argume nt, we believe that if there was error it was harmless. Rule 36 T.R.A.P. As will be shown, the severity of the impact was sharply disputed and it was Defendant’s theory throughout the trial that the impact was so slight that it could n ot have caused the injuries of which Ms. Snead complained. Dr. Snyder, a n orthoped

ic surg eon, test

ified tha t Ms. Snead

was ref erred t o him by Dr. James P. Wilson, an internal medicine special ist and primary c are physic ian. Dr. Snyder te stified that, basedon his examination, Ms. Snead appear ed depre ssed. When

he examine d her on A

ugust18, 1994 he did not find any evidenc e of any injury at all to her nec

k or should

ers. Othe r than som

e tenderness, he di d not f

ind a ny thing wron g wit

h her low ba ck. H e fou

nd no m uscle spas m. All

xra ys were normal and he

expected her symptoms to resolve with time. I t was his opinion that as of Decemb er 1, 199 4 Ms. Snea d was abl e to return to regular job dutiesbut she tol d him that sh e did notwant to go back to work. The only objective evidenceof injury found was minimu

m tender ness in the lumba

r spine. He descr

ibed an ob

jective s ign as a

reprodu cible, e

xternal evidence o r observa ble evidence of underly

ing symptoms of what the pa tient says. H e testified that her complain ts of pain were g reater than those

of most of h

is other patie nts wi th si mila r physica l find ings and that her comp laints of pain were out of proportion to the phy sical and observable findings that he could find on physica

l examination.

The only witnesses testify ing to the accident itself were the two drivers. Ms. Snead testified that she was stopped when her car was struck from the rear very hard and that her car was thrown forward. She described her rea r bumper as smashed. According to Dr. Wilson’s notes the patient told him that she was rear-ended at 35 miles an hour. Ms. Snead denied this but testified that the defendant’s car was traveling at least 30 miles per hour

when it wa s struck. The rep air coststo the Snead vehicle was $253.

Ms. Snead did

not reme mber whe ther or not the impa

ct awak ened he r child who was in the car seat beside her. Her c hild was not injured and she did not see any damag e to the defendant’s vehicle. She testified that she kept notes on her condition beginning the Monday fo ll ow in g t he ac ci de nt up un ti l t he ti me sh e e mp lo yed an at to rn ey.

Ms. Metts testified that she is a registered nurse and was onher way to work at the time of the accident. As she approached a n intersection, there was a line of traffic stopped in front of her at a 4-way

stop. She slowed her car, put her foot on the brake and began

to roll forward. At that time her car phone rang, startling her, and she struck the car in front of her
. She testified at the time her car was moving at between 2 and 5 miles per hour. At first she didn’t

realize that she had struck the vehic le in fro nt of h er, but th oug ht she had ju st app li ed h er b rak es t oo h ard . It wasn’t un til she got out of her car that she realized that there had been an accident. She testified she wasn’t hurt and her glasses were not knocked of f. Her purse on the seat beside her was not knocked off and

her5 The record indicates that a photogra ph of the Metts car was introduced into evidence as exhibit no. 2 2. Howev er, we do not find t hat exhibit a

mong the other 25 e

xhibits. coffee, which was in a holder, was not spilled. She furth er testif ied that th e Snead v ehicle

was not knockedforward. Ms. Snead told her that she was not hurt. They were at the scene for approxima

tely one hour and

Ms. Metts ob served no signs of phy sical inju

ry to her but Ms. Snead did say that her ba

ck hurt. Ms. Metts testified that there was no damage to her car. 5
Roger Metts, Lois Metts’ husband, testified that he is a supervisor at a maintenance and repair garage fo r Ryder Tru ck Ren tal. H is wi fe was d rivin g a 1990 Nissan Sentra at

the time of the acc ident. He

examined it

after the accident and

found no phys ical dama

ge exce pt for a c ouple of black marks on the front bumper which were re moved with wax. He testified that the bumper on his wife’s car had an impact rating of 2-1/2 to 5 miles per hour and is anenergy -absorbing bumper.

Our scope of review is set for

th in Rule 13 (d) T.R.A .P. Findin gs of fa ct by a jury in civilactions shall be set aside only if there is no material evidence to support the verdict. The jury
was presented with evidence that Ms. Snead incurred medical expenses in excess of $8,000 and loss of earnings of approximately $10,000. There was disputed medical testimony

as to when she was medicall y determined to be a

ble to return to work. T

he defe ndant adm

itted liab ility . Given the gross discrepancy

between the drivers as to the nature and extent of the impact, based upon our review of this record we cannot say

that the introduction of the portions of the notes of Drs. Hodge and Snyder
more probably than not af fected the judgment or would result in prejud ice to the judicial p

rocess. Rule 36(b ) T.R.A.P. Theref ore, the judgmen t of the tr ial cour t is affir med and th

e costs of this appeal a re taxed to

the plain tiffs/ap pellants.

____________________________________

FAR MER , J.

______________________________ HIG HERS, J. (Conc

urs)

______________________________ LI LL ARD, J. (Conc

urs)