IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 7, 2000 Session

RANDALL E. JORDAN v. CSX TRANSPORTATION, INC.

An Appeal from the Circuit Court for Davidson County

No. 95C-3216 Hamilton Gayden, Judge

No. M1999-01415-COA-R3-CV - Filed April 17, 2001

This is a suit by an employee against his employer, a railroad operator, under the Federal Employers’

Liability Act. The employee alleged that he suffered injuries caused by chemical solvents used by

the employer. Prior to trial, the employer made an offer of judgment under Rule 68 of the Tennessee

Rules of Civil Procedure. This offer was refused. After the trial, the jury found that the employee

failed to prove that his injuries were caused by the chemical solvents. The employer moved for an

award of costs not included in the court clerk’s bill of costs, under Rules 68 and 54.04 of the

Tennessee Rules of Civil Procedure. The employee moved for a new trial. The trial court denied

both parties’ motions, and both parties appealed. We affirm the trial court’s denial of both parties’

motions. 

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and

DAVID R. FARMER, J., joined.

Wayne L Robbins, Jr., Gareth S. Aden, Nashville, Tennessee, for the appellant, CSX Transportation,

Inc.

Cyrus L. Booker, Charlnette Richard, Nashville, Tennessee, for the appellee, Randall E. Jordan.

OPINION

On September 29, 1995, Plaintiff/Appellee Randall Jordan (“Jordan”) filed a lawsuit against

Defendant/Appellant CSX Transportation, Inc. (“CSX”), a railroad operator, pursuant to the Federal

Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”). Jordan’s lawsuit was similar to several

other suits filed against CSX by employees and former employees, alleging serious injuries due to

chronic exposure to four particular organic solvents at CSX mechanical stops in Nashville,
1

Jordan’s suit was consolidated with other similar employee suits against CSX by agreed order

on March 14, 1996. The consolidated cases were previously heard by the Tennessee Supreme Court for

purposes of determining the admissibility of the plaintiffs’ scientific evidence. See McDaniel v. CSX

Transp., Inc., 955 S.W.2d 257 (Tenn. 1997).

2

Tennessee.1

 The solvents at issue in the cases were trichloroethane (“TCE”or “TCA”),

trichloroethylene, perchloroethylene, and mineral spirits. In Jordan’s complaint, he alleged that,

while employed by CSX, he had been exposed to several toxic chemicals, including chlorinated

hydrocarbons, mixed chemical solvents, and other neurotoxic chemicals, and that the exposure had

caused permanent brain damage. He asserted that he now has an increased risk of developing cancer

as a result of his exposure to the chemicals, many of which are known carcinogens. Jordan

contended that CSX negligently handled and used highly toxic chemicals in the workplace, that CSX

negligently failed to warn its employees of the hazardous nature of the chemicals, that CSX

negligently failed to provide its employeeswith adequateprotective equipment, that CSX negligently

failed to train its employees in the proper use of the chemicals, that CSX failed to adequately monitor

its employees to determine whether they were suffering the effects of exposure to the chemicals, and

that CSX negligently monitored the toxic limits to which its employees were exposed. 

On September 29, 1995, Jordan served his first interrogatories on CSX. In Interrogatory

Number 5, Jordan asked CSX to give the name of any person whom it expected to call as an expert

witness at trial, the qualifications of the expert witness, the subject matter of the facts and opinions

to which the expert was expected to testify, and a summary of the grounds for each of the expert’s

opinions. On November 23, 1998, CSX sent a letter to Jordan naming two experts whom it intended

to call at trial, Dr. Barry Gordon (“Dr. Gordon”), a behavioral neurologist, and Dr. Neil Rosenberg

(“Dr. Rosenberg”), a neurologist. Along with the letter, CSX transmitted copies of reports from Dr.

Gordon and Dr. Rosenberg in which the doctors discussed their findings concerning Jordan. The

letter stated:

In addition to the findings in these reports, I anticipate that both experts will testify

in general about their knowledge of solvents’ effect on brain functions; levels

necessary for neurotoxicity; exposures necessary for neurotoxicity; alternate causes

of loss of memory, loss of concentration, and other claims made by your client; and

general safety concerns.

The seven-page report from Dr. Gordon indicated that he had conducted an examination and

interview with Jordan on November 10, 1998. The report stated that Jordan complained of several

physicalailments,including headaches,difficultywith concentration and memory, balance problems,

sensation problems in his left hand, sleep difficulties, anxiety, depression, and mood swings. Dr.

Gordon said that the report “should be considered an outline” and that he had “not intended to

duplicate every material fact.” Dr. Gordon concluded that “to a reasonable degree of medical

probability, Mr. Jordan’s current neurologic and neuropsychologic symptoms, signs, and/or

examination results cannot be attributed to organic effects of the alleged possible exposure to

trichloroethane or other solvents. . . .” The nine-page report from Dr. Rosenberg included a list of
3

complaints of physical ailments similar to those given in Dr. Gordon’s report. Dr. Rosenberg’s

assessment of Jordan stated, “This patient relates difficulties with memory and concentration as well

as numerous other symptoms, none of which were substantiated by other objective findings on

neurological examination.” 

On approximately February 11, 1999, CSX served Jordan with an Offer of Judgment in

which it offered to allow judgment to be taken against it for $20,000.00 plus court costs accrued to

the time of the offer. Jordan did not accept the offer.

On February26, 1999, CSX’s attorney sent Jordan’s attorneys a letter concerning their failure

to depose Dr. Gordon and Dr. Rosenberg. The letter stated:

In November of 1998, when I provided the IME reports from Dr. Gordon and

Dr. Rosenberg to you, I stated in the cover letter a number of subject matters upon

which each of these experts is expected to testify. Despite my repeated suggestions

and inquiries, you have never indicated any willingness or desire to take the

deposition of either of these expert witnesses, nor have you sought supplementation

of their reports.

I want to make sure that you understand that both of these experts are going

to testify that Mr. Jordan’s exposure levels are insufficient to cause toxic

encephalopathy. They are both going to testify about the state of literature on the

subject, and they are both going to testify about the lack of causation between

chemicals to which Mr. Jordan was exposed and the symptoms of which he is

complaining.

Because you have chosen not to take their depositions as was contemplated

by the Agreed Scheduling Order, I want to make sure there is no surprise at trial.

You have been given in-depth reports from each of these experts about their opinions

concerning your client, and they are going to support those facts and opinions with

their general knowledge and understanding of this subject and the reasons why they

do not think your client is demonstrating the symptoms of which he is complaining.

Jordan did not depose either expert in preparation for trial.

On March 19, 1999, the trial court commenced proceedings in Jordan’s case. Prior to the

presentation of evidence, the trial court heard argument on the parties’ previously-filed motions in

limine. CSX’s attorney requested that the trial court exclude any testimony regarding Jordan’s

alleged exposure to chemical solvents other than TCE. CSX’s attorney argued that TCE was the

only chemical solvent specifically identified in the evidence, that TCE was the only chemical solvent

used at CSX’s Radnor Yard site, and that testimony as to other chemical solvents would be

prejudicial to CSX and would confuse the jury. CSX’s attorney also said that its witnesses were

prepared to discuss only Jordan’s exposure to TCE and that, if the trial court failed to limit the scope
4

of the evidence in the case, CSX would need a continuance in order to prepare its witnesses. In

response, Jordan’s attorney argued that the deposition testimony in the case demonstrated that Jordan

had been exposed to chemical solvents other than TCE, that CSX was aware that Jordan alleged

exposure to chemical solvents other than TCE, and that, consequently, the proof in the case should

not be limited to exposure to one particular chemical. The trial court then addressed Jordan’s

attorney, stating:

COURT: Do you want a continuance for this trial, or do you want to try it on [TCE]?

JORDAN’S ATTORNEY: We don’t dispute that [TCE] was the primary chemical.

We can proceed on that basis.

TRIAL COURT: The case will be limited to [TCE].

Thus, Jordan’s attorney chose to forego a continuance and, consequently, the trial court ruled that

evidence in the case would be limited to Jordan’s exposure to TCE.

Jordan’s attorney also made a motion in limine to limit the testimony of Dr. Gordon and Dr.

Rosenberg solely to the opinions expressed in their reports. Jordan’s attorney asserted that both

reports submitted by CSX failed to provide a summary of the grounds for the doctors’ opinions and

that, consequently, Jordan’s attorney did not receive adequate notice of the doctors’ expected

testimony. In response, CSX’s attorneymaintained that both reports sufficiently detailed Dr. Gordon

and Dr. Rosenberg’s opinions concerning Jordan’s condition and that Jordan had an opportunity to

depose both doctors but declined to do so. The trial court overruled Jordan’s motion, holding that

Jordan was not surprised by the doctors’ opinions and that he had ample opportunity to depose both

doctors prior to trial.

At trial, Jordan testified that he began working for CSX at their Radnor Yard site in March

1978. He testified that until 1987 or 1988 he regularly used liquid electric cleaner containg TCE

during his employment with CSX. Jordan stated that using the electric cleaner caused him to

experience dizziness, headaches, and a high feeling. Jordan acknowledged that he had abused

alcohol and marijuana in the past. He said, however, that he had not consumed alcohol or smoked

marijuana since 1991. Jordan also admitted that Dr. Gary Soloman, a clinical neuropsychologist

who evaluated Jordan in December 1994, told him by letter that virtually all of his memory test

scores were normal for a person of his age, that there was no strong evidence indicating that

chemical exposure had negatively affected his basic intellectual abilities, and that he could not tell

with certainty whether chemical exposure was primarily responsible for the overall difficulties

Jordan was experiencing.

Dr. Michael Kelly (“Dr. Kelly”), Dr. Jack Gilliland (“Dr. Gilliland”), and Dr. Michelle

Cochran (“Dr. Cochran”), testified that they believed that Jordan’s condition was caused by his

exposure to chemical solvents. Dr. Kelly testified that he evaluated Jordan based upon Jordan’s

complaints of breathing problems, memory loss, and dizziness. Based on his evaluation, Dr. Kelly
5

believed that Jordan had some impairment to his ability to think and to process information as well

as deficits in attention and concentration. Dr. Kelly diagnosed Jordan as suffering from toxic

encephalopathy, or brain damage, as a result of exposure to chemical solvents during his

employment with CSX. He stated that he based his opinion on information that Jordan had worked

with TCE and other solvents at CSX for approximately ten years, that Jordan felt “high and dizzy”

while using the solvents, and that Jordan now complained of ailments associated with exposure to

solvents. 

Dr. Gilliland, Jordan’s psychologist, testified by deposition that he believed that Jordan

suffers from depression, anxiety, and memory and concentration problems. Dr. Gilliland stated that

he had eliminated Jordan’s use of alcohol and marijuana as well as other stresses in his life as

potential causes of his mental condition. He stated that he believed, based on his evaluation and

treatment of Jordan as well as Jordan’s medical and personal history, that Jordan’s exposure to TCE

at work caused his mental problems. 

Dr. Cochran, Jordan’s psychiatrist, testified by videotape deposition that she believed that

Jordan suffers from depression, anxiety, and memory and attention deficits. Dr. Cochran stated that

she believed “to a reasonable degree of psychiatric certainty” that Jordan’s condition was caused by

exposure to toxic chemicals, though she characterized this conclusion as a “60/40 split,” meaning

that there was a sixty percent chance that Jordan’s condition was caused by toxic encephalopathy and

a forty percent chance that it was caused by a mood disorder. Dr. Cochran stated that she might

never know which diagnosis was correct, but that she “lean[ed] toward” toxic encephalopathy

because she realized that Jordan was exposed to toxic chemicals and because his level of anxiety and

his mood would likely have improved over a period of time had they been caused by a mood

disorder.

At trial, CSX’s experts, Dr. Gordon and Dr. Rosenberg, both testified that they did not

believe Jordan’s condition was caused by exposure to TCE. Dr. Gordon testified that, in his opinion,

Jordan’s memory and concentration problems were caused by anxiety and depression due to several

stress factors present in his life and not by any injury to his brain. He also speculated that Jordan’s

use of alcohol and marijuana and his sleep problems may have also played a role in causing Jordan’s

memory problems. Dr. Gordon testified that Jordan’s IQ,memoryand attention span were consistent

with his educational and vocational background, and also consistent with the results of previous tests

administered before Jordan began working for CSX. Dr. Gordon said that the consistency of the

results indicated that any loss of memory or attention did not result from Jordan’s alleged exposure

to solvents while employed by CSX.

Dr. Rosenberg testified that, based on his experience working with patients with solventinduced health problems, he did not believe that Jordan’s condition was caused by exposure to TCE

or other chemical solvents. Dr. Rosenberg stated that there is no evidence that chronic, low level

exposure to TCE causes brain damage. He speculated that it would require approximately seven

years of high-level occupational exposure to TCE before a person would begin to develop even mild

health problems; he stated that Jordan’s work for CSX did not involve occupational exposure at such
6

a high level. Dr. Rosenberg stated that Jordan’s reported short-term dizziness while working with

chemical solvents at CSX did not mean that he suffered brain damage.

After the evidence was presented, the trial court held a conference with the attorneys

regarding the instructions that would be given to the jury. Both Jordan and CSX submitted proposed

special jury instructions and proposed verdict forms. The trial court indicated that it had reviewed

the materials and that it intended to use the verdict form submitted by CSX. The CSX verdict form

asked, in part:

Do you find from a preponderance of the evidence that the negligence of CSX

Transportation Inc. caused damages to Plaintiff Randall Jordan?

The trial court then asked Jordan and CSX to discuss during a recess how to merge their two sets of

proposed jury instructions together. After the recess, CSX’s attorney indicated that they had agreed

on all of the jury charges except for Jordan’s proposed instruction concerning causation. The jury

instruction proposed by Jordan stated, in part:

To be a cause of an injury, the negligence must have played some part, no matter how

small, in bringing that injury about.

The trial court overruled CSX’s objection and held that it would use Jordan’s proposed instruction

on causation. Jordan proposed other jury instructions which were given to the jury. These included

the following: 

A [legal] cause of any injury is a cause which in natural and continuous sequence

produces the injury and without which the injury would not have occurred.

* * *

Negligence is the proximate cause of an injury or damage if it played any part, no

matter how small, in bringing about the injury or damage.

* * *

Mr. Jordan must prove that CSX, with the exercise of due care could have reasonably

foreseen that the conditions in which Mr. Jordan worked could cause an injury to

him.

The record on appeal does not indicate that Jordan objected to any proposed jury charge during the

conference with the trial judge.

Subsequently, during the jury’s deliberations, the jury submitted a question to the trial court,

asking “[i]s the term ‘injury’ synonymous with brain damage or memory loss, depression, and
2 The clerk’s file stamps on the notices of appeal indicate that CSX filed its notice at 1:42 p.m.

and that Jordan filed his notice at 3:17 p.m.

7

anxiety?” Outside the presence of the jury, the trial court asked the attorneys for both Jordan and

CSX whether “there [is] any reason for me not to say yes?” Both attorneys indicated that they had

no objection to this answer. 

After deliberation, the jury found CSX negligent, but found that CSX’s negligence did not

cause damages to Jordan. Consequently, on April 6, 1999, the trial court entered an order dismissing

Jordan’s complaint with prejudice.

On April 22, 1999, CSX filed a post-trial motion under Rule 54.04(2) and Rule 68 of the

Tennessee Rules of Civil Procedure, seeking reimbursement for its discretionary costs. CSX sought

discretionary costs in the amount of $33,144.77, $26,751.75 of which accrued after CSX served

Jordan with an offer of judgment. On May 5, 1999, Jordan filed a motion for a new trial. In a

subsequent pleading, Jordan argued that a new trial was necessary because the verdict form and the

trial court’s answers to the jury’s question regarding causation and the definition of the term “injury”

were inconsistent with the jury instructions, because the trial court erred in limiting the trial to

exposure from trichloroethane, because the testimony of CSX’s experts should have been excluded

or limited to their reports, and because the jury’s verdict was contrary to the evidence. The trial court

denied both CSX’s post-trial motion for discretionary costs and Jordan’s motion for a new trial.

CSX and Jordan each filed a notice of appeal on the same day.2

On appeal, CSX argues that the trial court erred in denying its post-trial motion for

reimbursement of its discretionary costs under Rules 68 and 54.04(2) of the Tennessee Rules of Civil

Procedure. CSX argues that an award of its discretionary costs not included in the court clerk’s bill

of costs was mandatory under Rule 68, since Jordan rejected CSX’s offer of judgment. CSX also

argues that the trial court abused its discretion in denying CSX’s motion for discretionary costs

under Rule 54.04(2). Jordan argues that Rule 68 provides only for the recovery of court costs and

that the trial court’s denial of discretionary costs under Rule 54.04(2) was proper and within its

discretion.

On appeal, Jordan argues that the trial court erred in its jury instructions, in its response to

the jury’s inquiry during deliberation, in using CSX’s jury verdict form, in refusing to limit the

testimony of CSX’s expert witness, and in limiting the proof at trial to the effect of TCE and not

other substances. Jordan asserts that the jury verdict was contrary to the weight of the evidence

presented, and argues that the trial court erred in requiring Jordan to pay half the cost of preparing

the trial transcript.

We first consider CSX’s argument that under Rule 68 of the Tennessee Rules of Civil

Procedure, CSX was entitled to reimbursement of its discretionary costs not included in the court

clerk’s bill of costs, such as expert witness fees for trial testimony. The trial court awarded CSX 
3

Section 1920, which defines the costs allowed under Rule 54(d) of the Federal Rules of Civil

Procedure, currently provides that a judge or clerk of any federal court may tax as costs any of the

following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript

necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily obtained for use in

8

only costs included in the bill of costs prepared by the trial court clerk. Rule 68 of the Tennessee

Rules of Civil Procedure provides, in part:

At any time more than 10 days before the trial begins, a party defending

against a claim may serve upon the adverse party an offer to allow judgment to be

taken against the defending party for the money or property, or to the effect specified

in the offer, with costs then accrued.

* * *

An offer not accepted shall be deemed withdrawn and evidence thereof is not

admissible except in the proceeding to determine costs. If the judgment finally

obtained by the offeree is not more favorable than the offer, the offeree shall pay all

costs accruing after the making of the offer.

Id. The Committee Comment following Rule 68 states that “[t]he use of the procedure provided for

by this Rule may facilitate the settlement of cases in many instances.” Id.

Tennessee courts have considered Rule 68 in previous decisions. In Person v. Fletcher, 582

S.W.2d 765 (Tenn. Ct. App. 1979) (cert. denied), the defendant argued on appeal that the trial court

erred in failing to award her costs under Rule 68 for photographs used at trial, for court reporter

expenses, and for attorney’s fees. Id. at 766. The defendant had made a Rule 68 offer of judgment

to the plaintiffs. The plaintiffs refused the offer, and the judgment following trial was less favorable

than the offer of judgment. The defendants then moved the trial court to assess all costs against the

plaintiffs under Rule 68. The trial court denied the motion, stating that “the provisions of [Rule 68]

are not interpreted to permit any costs other than the costs taxed by the Clerk of the Court. . . .” Id.

The defendant argued on appeal that Tennessee’s Rule 68 is patterned after Rule 68 of the Federal

Rules of Civil Procedure and that, under federal law, costs of the type sought by the defendant were

permitted. See Id. 

On appeal, the Court of Appeals observed that Tennessee’s Rule 68 was patterned after

Federal Rule 68. Id. The appellate court noted, however, that Tennessee had not enacted a law

comparable to 28 U.S.C. § 1920, which expressly authorized a judge or clerk of any federal court

to tax as costs items of the type sought by the defendants.

3

 Id. The court stated that “[w]hat
the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation for court appointed experts, compensation of interpreters, and salaries,

fees, expenses, and costs of special interpretation services under section 1828 of this title.

* * *

28 U.S.C. § 1920.

4

 Prior to the 1993 amendments, Rule 54.04 provided, in part:

(1) Except when express provision therefor is made either in a statute or in these

rules, costs shall be allowed as of course to the prevailing party unless the court

otherwise directs. . . .

(2) A party who desires to recover discretionary costs or any recoverable costs

not included in the bill of costs prepared by the clerk of the trial court shall move the

court to assess discretionary costs and attach thereto an itemized and verified bill of

costs. . . .

Id.

9

constitutes costs is determined from legislative enactment.” Id. at 767 (citing 20 Am. Jur. Costs §

52). The court found the existence of the federal statute to be “the controlling distinction” between

Tennessee’s Rule 68 and Federal Rule 68 insofar as which items were taxable as costs. Id. at 766-

767. On that basis, the court affirmed the trial court’s denial of the defendant’s motion for costs

under Rule 68. Id. at 767.

In 1993, after the decision in Person, Rule 54.04 of the Tennessee Rules of Civil Procedure

was amended to expressly define the discretionary costs allowable to a prevailing party.4 The current

version of Rule 54.04 provides:

(1) Costs included in the bill of costs prepared by clerk shall be allowed to the

prevailing party unless the court otherwise directs. . . .

(2) Costs not included in the bill of costs prepared by the clerk are allowable

only in the court’s discretion. Discretionary costs allowable are: reasonable and

necessary court reporter expenses for depositions or trials, reasonable and necessary

expert witness fees for depositions or trials, and guardian ad litem fees; travel

expenses are not allowable discretionary costs. . . .

Thus, Rule 54.04 was amended to include items such as court reporter expenses and expert witness

fees within the definition of discretionary costs.

In 1999, Person was cited in Woods v. Walldorf, 26 S.W.3d 868 (Tenn. Ct. App.1999)

(perm. to app. den.). In Woods, the plaintiff sued for discrimination on the basis of race and sex.
10

Id. at 870. The jury returned a verdict in favor of the defendants. Id. at 872. Prior to trial, the

defendants had made an offer of judgment under Rule 68, which was rejected. Id. at 878. The

defendants made a post-trial motion for costs under Rule 68, including court reporter fees incurred

after the offer of judgment. Id. The trial court awarded the defendants’ court reporter charges

incurred after the date of their offer of judgment to the plaintiff. Id. at 878-79. It also granted the

defendants other discretionary costs under Rule 54.04(2). Id. at 879. The plaintiff appealed the

award of costs against her. On appeal, this Court reversed the trial court’s award of costs under Rule

68, citing Person for the proposition that costs under Rule 68 include only “the costs taxed by the

Clerk of the Court. . . .” Id. (citing Person, 582 S.W.2d at 766). The Court ruled that the trial

court’s award of costs under Rule 54.04(2) was within its discretion. Id. The Woods Court did not

address whether the amendment of Rule 54.04 to include items such as court reporter expenses for

depositions made such expenses included in the costs to be awarded under Rule 68. 

Tennessee’s Rule 68, like its federal counterpart, was enacted with the intention of

“facilitat[ing] the settlement of cases in many instances.” Tenn.R.Civ.P. 68, Committee Comment.

Interpreting Rule 68 of the Tennessee Rules to provide for an award only of costs taxed by the clerk

of the court and not discretionary costs of the type sought by CSX in this case does little to motivate

the parties to undertake a meaningful assessment of the risks and costs of litigation and does not

significantly facilitate settlement. See, e.g., Staffend v. Lake Central Airlines, Inc., 47 F.R.D. 218,

219-220 (N.D. Ohio 1969) (examining Federal Rule 68 and stating that “[t]he provision in the rule

which imposes costs upon a party who refuses an Offer of Judgment and who later recovers no more

than the offer . . . puts teeth in the rule and makes it effective by encouraging acceptance”).

However, federal cases cited by CSX interpreting Rule 68 of the Federal Rules of Civil Procedure

have awarded such costs only where the underlying substantive statute that provided the basis for

the plaintiff’s claims defined “costs” as including other items, such as attorney’s fees. See for

example, Crossmann v. Marcoccio, 806 F.2d 329 (1st Cir. 1986), citing Marek v. Chesny, 473

U.S.1, 105 S.Ct. 3012, 87 L.Ed2d 1 (1985). In this case, there are no underlying statutes defining

“costs” to include items such as expert witness fees. CSX cites no case in which Rule 54.04 of the

Tennessee Rules of Civil Procedure, or its federal counterpart, have been the sole basis for an award

of such costs under Rule 68 of the Tennessee Rules of Civil Procedure or Rule 68 of the Federal

Rules. Thus, while the policy arguments supporting CSX’s argument are appealing, in view of

Person, Woods and the federal caselaw cited by CSX, we must affirm the trial court’s holding that

Rule 68 mandates an award in this case only of costs included in the bill of costs prepared by the

clerk of the court.

CSX also argues that the trial court abused its discretion in denying CSX’s post-trial motion

for discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure. After listening

to the proof, hearing the jury’s verdict and considering CSX’s post-trial motions, the trial court

denied the motions, commenting that “to use it as that kind of hatchet of some kind I believe would

be onerous in this case.” We find no abuse of discretion in the trial court’s decision.

On appeal, Jordan disputes a number of the trial court’s decisions as well. Jordan argues first

that the trial court erred in denying his motion for a new trial. He contends that the jury instruction
11

given by the trial court regarding the definition of “causation” was both incorrect and inconsistent

with the definition given in the verdict form. Jordan also asserts that the trial court’s answer to the

jury’s inquiry during deliberations regarding the definition of the term “injury” rendered its jury

instruction as to “foreseeability” incorrect. Jordan maintains that these alleged errors resulted in

placing a greater burden of proof upon him than appropriate. CSX notes that Jordan failed to object

at trial to either the trial court’s jury instruction or to its answer to the jury’s subsequent inquiry

regarding the definition of “injury.” CSX asserts that these issues are therefore waived on appeal.

CSX also maintains that the trial court’s answer concerning the meaning of “injury” was not in error

because Jordan produced no evidence of any injury other than depression, anxiety, memory loss, or

loss of attention and concentration.

The standard for appellate review of a trial judge’s jury charge was stated in City of Johnson

City v. Outdoor West, Inc., 947 S.W.2d 855 (Tenn. Ct. App. 1996):

We review the jury charge in its entirety to determine whether the trial judge

committed reversible error. Jury instructions are not measured against the standard

of perfection. The charge will not be invalidated if it “fairly defines the legal issues

involved in the case and does not mislead the jury.” Furthermore, a particular

instruction must be considered in the context of the entire charge.

Id. at 858 (citations omitted).

Rule 49.01 of the Tennessee Rules of Civil Procedure permits a trial court to require the use

of a special verdict form comprised of detailed factual questions for the jury. See Tenn. R. Civ. P.

49.01. The rule “accords trial courts great latitude in using special verdict forms and tailoring special

interrogatories to meet the needs of each unique case.” Concrete Spaces, Inc. v. Sender, 2 S.W.3d

901, 910 (Tenn. 1999) (citing Petty v. Estate of Nichols, 569 S.W.2d 840, 847. As the court in

Concrete Spaces, Inc. v. Sender noted:

Special verdict forms should use the same terms as those used in the jury

instructions. They should repeat and highlight the salient issues discussed in the

instructions. Inconsistencies with jury instructions and the special verdict form may

confuse the jury.

Id. at 910-911 (internal citations omitted).

In this case, the trial court adopted CSX’s proposed jury form, but utilized instructions

concerning causation that were either proposed by Jordan or to which Jordan’s counsel agreed. The

record contains no indication that Jordan’s counsel objected to the trial court that the use of CSX’s

proposed verdict form was inconsistent with the jury instructions given. Likewise, the record

contains no indication that Jordan’s counsel objected to the answer given by the trial judge to the

jury’s inquiry during deliberations. Indeed, when asked by the trial judge whether there was any

reason not to say “yes” in response to the jury’s question, Jordan’s counsel responded, “I don’t think
12

so.” Moreover, after reviewing the instructions as a whole and the trial judge’s response to the jury’s

question, we find that the jury charge in its entirety, and the response to the jury’s inquiry, “fairly

define[] the legal issues involved in the case and [do] not mislead the jury.” City of Johnson City,

947 S.W.2d at 858. Consequently, we affirm the trial court’s verdict form and jury instructions.

Jordan next argues that the trial court erred in limiting the scope of the trial to only the harm

caused by exposure to TCE and that a new trial is warranted on this basis. Jordan asserts that CSX

was aware of Jordan’s claims regarding exposure to other chemical solvents. CSX contends that

Jordan expressly waived any objection to the trial court’s decision to limit the scope of the trial to

the issue of exposure to TCE only.

In this case, the trial court asked Jordan’s counsel at the outset of trial whether he wished to

proceed solely on the issue of his exposure to TCE or whether he wished to continue the trial and

have the jury consider evidence on Jordan’s exposure to other chemical solvents. Jordan’s attorney

replied, “We don’t dispute that TCA [TCE] was the primary chemical. We can proceed on that

basis.” Consequently, Jordan expressly waived any objection to the trial judge’s limitation on the

scope of the trial. This issue is without merit.

Jordan argues that the trial court erred in refusing to exclude the testimony of CSX’s expert

witnesses or to limit their testimony to the information contained in their reports. Jordan contends

that the reports submitted by Dr. Gordon and Dr. Rosenberg failed to adequately relate the opinions,

as well as summaries of the grounds for the opinions, to which CSX expected the doctors to testify

at trial. Jordan asserts that he was unduly prejudiced at trial by CSX’s failure to adequately disclose

its experts’ opinions in accordance with Rule 26 of the Tennessee Rules of Civil Procedure. CSX

argues that the expert reports provided to Jordan were thorough and that they accurately reflected

the experts’ anticipated trial testimony. CSX also contends that Jordan’s claim of “surprise” at trial

is belied by his failure to depose CSX’s expert witness as provided for in the agreed scheduling

order.

Rule 26.02 of the Tennessee Rules of Civil Procedure provides a party the opportunity to

discover information about witnesses another party intends to call as an expert at trial. It states:

(i) A party may through interrogatories require any other party to identify each

person whom the other party expects to call as an expert witness at trial, to state the

subject matter on which the expert is expected to testify, and to state the substance

of the facts and opinions to which the expert is expected to testify and a summary of

the grounds for each opinion.

(ii) A party may also depose any other party’s expert witness expected to

testify at trial.
13

Tenn.R.Civ.P. 26.02(4)(A)(i) and (ii). In this case, CSX fully disclosed to Jordan its intent to call

Dr. Gordon and Dr. Rosenberg as expert witnesses and included with the letter copies of reports in

which the doctors discussed their conclusions regarding Jordan’s claimed injuries.

It is undisputed that Jordan had ample opportunity to depose both of CSX’s expert witnesses.

Jordan chose not to do so. In fact, when it appeared to CSX that Jordan had chosen not to depose

its expert witnesses prior to trial, CSX sent Jordan a letter emphasizing that both experts would

“testify about the lack of causation between chemicals to which Mr. Jordan was exposed and the

symptoms of which he is complaining” in order to ensure that “there is no surprise at trial.” After

reviewing the expert’s reports, their testimony and the record as a whole, we find that CSX’s

disclosure of its expert witnesses and their anticipated testimony at trial was sufficient to meet the

requirements under Rule 26. Consequently, the trial court’s decision on this issue is affirmed. 

Jordan also argues that the jury’s verdict was contrary to the evidence presented at trial and

that the trial court should have reversed the verdict as the “thirteenth juror.” Jordan asserts that he

established that CSX was negligent and that its negligence, at a minimum, played a part in Jordan’s

injuries. CSX contends that the evidence supported the jury’s verdict. 

As the thirteenth juror, the trial judge is under a duty to independently weigh the evidence

and determine whether the evidence preponderates in favor of or against the verdict. Shivers v.

Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996), perm. to app. den. Jan. 21,1997. Where the

trial judge has approved the jury’s verdict, our standard of review is whether there is any material

evidence to support the verdict. See Tenn.R.App.P. 13(d); see alsoFoster v. Bue, 749 S.W.2d 736,

741 (Tenn. 1988). After reviewing the record as a whole, we find that the trial court properly

performed his duty as thirteenth juror and that there is material evidence to support the jury’s verdict.

The decision of the trial court on these issues is affirmed.

Finally, Jordan argues that the trial court erred in ordering him to pay half of the costs to

prepare the trial transcript for appeal. He states that CSX, as the appellant, is required to pay the

costs to prepare the trial transcript under Rule 24 of the Tennessee Rules of Appellate Procedure.

CSX argues that both Jordan and CSX appealed decisions of the trial court and that consequently

the trial court’s division of the costs to prepare the trial transcript was appropriate and within the trial

court’s discretion.

Rule 24 of the Tennessee Rules of Appellate Procedure places on the appellant the

responsibility of preparing a transcript of that part of the evidence necessary to convey a fair,

accurate and complete account of what transpired with respect to the issues that are the bases of

appeal. Tenn.R.App.P. 24(b). Rule 24(b) further provides:

Unless the entire transcript is to be included, the appellant shall, within 15 days after

filing the notice of appeal, file with the clerk of the trial court and serve on the

appellee a description of the parts of the transcript the appellant intends to include in

the record, accompanied by a short and plain declaration of the issues the appellant
14

intends to present on appeal. If the appellee deems a transcript of other parts of the

proceedings to be necessary, the appellee shall . . . file with the clerk of the trial court

and serve on the appellant a designation of additional parts to be included. The

appellant shall either have the additional parts prepared at the appellant’s own

expense or apply to the trial court for an order requiring the appellee to do so. . . .

Id.

CSX and Jordan each filed notices of appeal in this case on the same day, contesting separate

rulings of the trial court. Over a month after the notices of appeal were filed, CSX filed a motion

asking the trial court for an order requiring Jordan to pay the entire cost of the preparation of the trial

transcript. The trial court subsequently entered an order requiring CSX and Jordan to each bear half

of the costs for production of the trial transcript. We find no error in the trial court’s decision.

The decision of the trial court is affirmed. Costs on appeal are assessed equally against the

appellee, Randall E. Jordan, and the appellant, CSX Transportation, Inc., and their sureties, for

which execution may issue if necessary.

 

HOLLY KIRBY LILLARD, J.