### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 7, 2000 Sessi

on 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 emp

loyee ag ainst his employ

er, a railroad o

perator, under

the Federal Emp

loyers’ Liability Act. The employee alleged that he suffere d 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 failedto prove that his injuries were caused by the chemical

solvents. The employer moved for an award of costs not included in the co urt 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 bothparties’ motions, and both parties appealed. We affirm the trial court’s denial of both parties’ motions. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

H OLLY K IRBY L ILLARD , J., delivered the opinion of the c ourt, in which A LAN E. H IGHERS , J., and D AVID R. F ARMER , J., joined. Wayne L Robbins, Jr., Ga

reth S. Aden, Nashville

, Tennessee, for

the appellant,

CSX Transportation, Inc. Cyrus L. Booker, Charlnette Richard, Nashville, Te nnessee, 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 w as similar to

several other suits

filed against CSX by employees and f ormer employees, alleging serious injuries du

e to chron ic exposure to four particular organic solvents at CSX mechanical stops in Nashville,1 Jordan’s suit was consolidated with other similar em ployee suits against CSX by ag reed order on March 14, 1996. The consolidated cases w ere previously heard by the Tennesse e Supreme Court for purposes of determining the adm issibility of the plaintiffs’ scientific evidence. See McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257 (Tenn. 199

7).
2 Tennessee. 1 The so lvents at issue in the cases were trichloroethane (“TCE”or “TCA”), trichloroethylene, perchlo roet hylene, an

d mineral spirits. I

n Jordan’s complain

t, he alleged tha

t, while employ ed by CS X, he had b

een expose

d to sever

al toxi c chemicals, including chlorinated hydrocar bons, mixed chemical solvents, and other neurotoxic c hemicals, 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 carcinog ens. Jord an contended

that CSX negligently handled and used highly

toxic chemicals in th

e workplace, tha

t CSX negligently

failed to warn its emp loye es of the hazardou s nature of the ch

emicals, that CSX negligently

failed to provide its empl oyees with adequate prote ctive equipment, t hat CSX neglige

ntly failedto 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 e

ffects of exposur

e to the chemical

s, 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 Interrog atory Number 5, Jordan asked CSX to g ive the name of an

y person who

m 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. Ros enberg in whi ch the docto rs discuss ed their fin dings concer ning Jordan. Th e letter stated:

In addition t o the findi ngs in these reports, I anticipate that both experts will testify in genera l about their knowle dge of solvents’ effect on brain functions; levels necessary for neurotoxicity; exposures necessary for neurotoxicity; alternate causes of los s of mem ory, loss of concentration, and other claims made by y our client; and general safe

ty concern

s.
The seven-page report from Dr. Gordon indicated that he had conducted an examination and interview withJordan on November 10, 1998. The report stated that Jordan complained of several ph ysical ailments, including headaches, difficulty w ith concentratio n and memory

, balance proble

ms, sensation problems in

his left hand, sleep difficulties, anxiety, depression, and mood swings. Dr. Gordon said that t

h e report “should b

e considered an

outline” and that h

e had “not intende

d to dupli cat e every material fact.” Dr. Gordon concluded that “ to a reasonable degree of medical prob abi lit y, Mr. Jordan’s current neurologic and neuropsychologic sy mptoms, signs, a nd/o r examination results cannot be at tribute d to organic ef

fects of the alle

ged possible expos

ure to trichloroethane or other solvents. . . .” The nine-pa

ge report from

Dr. Rosenberg i

ncluded a list

of3

complaints

of physical ailments similar to those given in D r. Gordon’s report. Dr. Rosenberg’s assessment

of Jordan stated, “This patient relates difficu

lties with memory and c

oncentration as w

ell
as numerous other sy

mptoms, none of whic

h were substantia

ted by other

obje ctive findi ngs on neurological examination.”

On appro ximately Feb

ruary 11, 1 999, CSX served Jorda n with an Offer of

Judgment i n which it offered

to allow judgment to be taken against it for $20,000.00 plus court costs accr ued to the time of the offer. Jordan did not accept the offer.

On Feb ruary 26, 199 9, CSX’s attorney sent Jordan’s attorneys a letter conc erning their failure to depose Dr. Gordon and Dr. Rosenberg. The letter stated:

In November of 1998, when I providedthe IME reports from Dr. Gordon and Dr. Rosenberg to y

ou, I stated in

the cover letter

a numb er 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 tomake sure that you understand that both of these experts are going to tes tif y that Mr. Jordan’s e xposure levels are

insufficient to ca

use toxic
ence pha lop ath y. They are both going to te stify about the state of literature on the sub ject, a nd they are both going to testify about the lack of causation between
c hemicals to which Mr. Jordan wa s exposed and the sy

mptoms of which he is complaini ng. 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 su

rprise at trial. You have been give

n in-depth report

s from each of the

se expertsabout 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 d emonstrat ing the sympto ms of which he is compl aining. Jordan did not depose

either expert in pr

eparation for tr

ial.

On March 19, 19 99, the tri al court com menced proce edings in Jordan’s c ase. Prior to the presentation of evidence, the trialcourt heard argument on the parties’ pre

viously-file

d motions in limine

. CSX’s attorney

requested that th

e trial court exclude a ny testimony regarding Jordan’s alleged expo sure to chemical solvents other than TCE. CSX’s attorney argued that TCE was the only chemical solvent

specifically

identified in the e

vidence, that TCE

was the only chemical solvent used at C SX’ s Ra dno r Yar d si te, and tha t te sti mon y as to o ther chemical solvents would be prejudicial to CSX and would confuse the jury. CSX’s attorney also said that its wi tnesses w ere prepared to discuss only Jordan’s exposure to TCE and t hat, if the trial c

ourt failed to

limit the scope4

of the evidence in the case, CSX would need a continuance in o rder t o prep are it s witn esses . In response , Jordan’s attorney argued that the deposition testimony in the c ase demonstrated that Jord an had been exposed to chemical solvents other than TCE, that CSX wa s aware that Jordan alleged exposure to chemical solvents other thanTCE, and that, consequently, the proof in the case should notbe limited to exposure to one particular chemical. T he trial court then addressed Jordan’s attorney, stat ing:

COURT: Do you want a

continuance for

this trial, or do you want

to try i t on [TCE]?

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

n 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 a

lso 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 assert ed t hat both reportssubmitted by CSX failed to provide a summary of the grounds for the doctors’ opinions and that, consequently

, Jordan’s attorne

y did not rec

eive adequate n

otice of the docto

rs’ e xpected tes tim ony. In response,

CSX’s atto

rney mainta

ined 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 de

clined to do so. The trial court overruled Jordan’s motion, holding that Jordan was not surprised

by the docto

rs’ opinions and tha

t he had ample oppo

rtunity to de

pose both doctors prior to tr

ial.

At trial, Jordan testified that he began working for CSX at their Radnor Yard site in March 19 78. He testified that until 1987 or 1988 he regularly used liquid electric cleaner cont aing TC E during his employme

nt with CSX. Jordan stat ed that using the e

lectric cleane

r caused him to experience dizziness, headaches, and a high feeling. Jordan acknowledged that he had abused alcohol and marijuana in t he past. He said, however, that he had not consumed alcohol or smoked marijuana since 1991. Jordan also admitted that Dr. Gary Soloman, a clinica

l neuropsyc

hologist who evalu ated Jordan in Dec ember 1994, told him

by letter tha

t virtually a

ll of his memory

test score s were normal for a person of his age, that there was no strong evidence indicating that chemical exposure had neg atively af fected his basic

intellectual abilities, and that he could not tell withcertainty whether chemical exposure was primarily responsible for the overall difficulties Jordan was experienci ng.
Dr. Michael Kelly (“Dr. Kelly” ), Dr. Jack Gilliland (“Dr. Gilliland ”), an d Dr. Michelle Cochran (“Dr. Cochran”

), testified that th

ey believe

d that Jordan’s cond

ition was caused b

y his
e xposure to chemical solvents. Dr. Kelly testified that he evaluated Jordan based u pon Jordan’ s complaints

of breathing problems, memory loss, and dizziness. Based on his eva luation, Dr. Kelly5

believedthat

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 sufferi ng from toxic
ence pha lop ath y, or brain damage, a s a r esult of exposure to chemical solvent

s during his employment

with CSX. He stated that he based his opinion on information that Jordan had worked withTCE and other solve nts at CSXfor app rox ima tel y ten years , th at J ord an fe lt “ high and diz zy” while using the solvents, and that Jordan now complained of ailments associ ated with exposure

to solvents.

Dr. Gilliland, Jordan’s psychologist, testified by deposition that he believed th at Jordan suffers fro m de pres sio n, a nxi ety, and memory and concentration problems. Dr. Gilliland stated that he had eliminated Jordan’s use of alcohol and marijuana as well as other s tresses in his life as potential causes of his mental condition. H e state d that he believed, based on his evaluation and treatment of J ord an as wel l as Jor dan ’s m edi cal and pers ona l hi sto ry, that Jordan’s exposur e to TCE at work caused his mental problems.

Dr. Cochran, Jordan’s psychi atri st, testified by videotape deposition that she believed that Jordan suf fers fro m de pres sio n, a nxi ety, and memory a nd attention defic

its. Dr. Cochran stated that she believed“to a reasonable degree of psychia tric certainty” that Jordan’s condition was caused by exposure to toxic chemicals, t hough she char

acterized 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 fort y percent chance that it was caused by a mood disorder. Dr. Cochr an stated that she might
never know which diagnosis was correct, b ut that she “lean[ed] toward” toxic encephalopathy because she realizedthat Jordan was exposed to toxic chemicals and because his level of anxiety and his mood would likely

have improved ove

r a perio d of time had they been caused by a mood disorder.

At trial, CS X’s expe rts, 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 presen

t 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 playe d a role in causing Jordan’s memory problems. Dr. Gor

don testified that Jor

dan’s IQ, memory an d attention span were consistent withhis educational and vocational ba ckground, and a

lso consistent with the

results of previo

us tests administeredbefor e Jordan began working for CSX. Dr. Gordon said that the consistency of the results indicated that any loss of memory or a

ttention did not resu

lt from Jordan’s alleged exposure to solvents while employed by CSX.

Dr. Rosenberg testified that, based on his experience w orking with patie

nts with solventinducedhealth

problems, he did not believe tha t Jordan’s condition

was caused by

exposure to TCE
or other chemical s

olvents. Dr. Rosen

berg stated tha

t there is no evidence that chronic, low level exposure to TCE causes brain damage. He speculated that it wo uld require approximately seven yearsof high-level oc

cupational exposur

e to TCE before a

person would beg

in to develop even mild health problems; he state

d that Jordan’s work

for CSX did notinvolve occupational exposure at such6

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

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

After the evidenc e was pres ent ed, the tri al c our t he ld a con fere nce w ith the att orn eys 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 fro

m a preponderan

ce of the eviden

ce that the neg

ligence of CSX Transportation Inc. caused damages to Plaintiff Randall Jordan?

The trial court then a

sked Jordan and CSX to

discuss during a

recesshow to merge their two sets of proposedjury 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 propos

ed by Jordan s

tated, in part:

To be a cause of

an injury, the negligence must have play ed some part, no matter how small, in bringing

that injury a

bout.

The trial court

overruled CSX’s objection and held that it would use Jordan’s proposed instruction
on causation. Jordan proposedother jury instructions which were given to the jury. These included the following:

A [legal] cause of any injury is a ca use which in natural and continuous sequ ence produces the injury and without which the injury would not have oc curred.

* * * Negligence

is the proximate cau

se of an in

jur y o r 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 du

e care could ha

ve reasonably foreseen that th e condi tions in which M r. Jo rdan workedcould cause an in jury to him.

The record onappeal does not in dicate that Jordan

objected to

any proposed jury charg

e during the conference with the trial judge.

Sub seq uen tly, during the jury’s deliberations, the jury submitted a question to the trial court, asking “[i]s the term ‘injury’ synony mous with brain damage or mem ory loss, depression, and2 The cle rk’s fil e stamps o n the not ices of a ppeal in dicate that CSX filed it s notice at 1:42 p .m.

and that Jordan filed hi s notice at 3:17 p .m.
7 anxie ty?” Outside the presence of the jury, the trial court asked the attorney s for both Jord an and CSX whether “there [is] any reason for me not to say yes?” Both attorney s indicatedthat 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) a nd Rule 68 of the Tennessee Rules of Civil

Procedure, seeking reimbursement for its discretionary c osts. 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 jud gmen t. O n Ma y 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 c ausation and the defi nit ion of t he t erm “injur y”
were inconsistent with the jury instructions, becaus e the trial court e rred in limiting th

e trial to exposure from trichloroethane, because the testimony of CSX’s experts should have been excluded
or limited to their rep

orts, and because the jury’s verdict was contrary to the evidence. The trial court deniedboth CSX’s post-trial motion for discret ionary cost s and Jordan’s motion

for a new trial. CSX and Jor dan each fil ed a n oti ce of app eal on t he s ame day. 2

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

of its discretionary costs under Rules 68and 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 bi

ll of costs was mandatory under Rule 68, since Jordan rejected CSX’s offer of judgment. CSX also argues that the trial cour

t abused its discre

tion in denying CSX’s m otion for discreti

onary 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 discre

tionary costs

under Rul e 54.04(2) was pr oper and within its discretion. On appeal, Jordan a

rgues that the tr

ial court erred

in its jury inst

ructions, in its response to the jury’s inquiry during delibe ration, in using CSX’s jury verdict form, in refusing to limit the testimonyof CSX’s ex pert witnes s, and in li miting t he proof at trial to the effect of TCE and not other substances. Jordan asserts that the jury verdict was contrary to the weigh t of the evidence presented, and argues that the trial court er

red in requiring

Jordan topay half the cost of preparing the trial transcr

ipt.

We first consider CSX’s argument that under Rule 68 of the Tenne sse e Rules of Civil Procedure, CSX was entitled to rei mbursem ent 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 CSX3 Section 1920, which defines

the costs allow

ed under Rule 54(d) of the Fe deral Rules of Civil Procedure, currently provides that a judg e or clerk of any federal court m ay tax as costs any of the following: (1) Fees of the clerk and m

arshal; (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 ex

emplification

and copies of papers necessa rily obtained

for use in
8 only costs included in the bill of costs prepared by the trial court clerk. Rule 68 o f the Tennessee Rules of Civil Proce

dure provides, in

part:
At any t ime mor e th an 1 0 da ys be for e th e tr ial begi ns, a par ty d efe nding against a claim may serve upon the advers e pa rty an offer to allow judgment to be taken against the defending party for the money or property, or to the ef fect specified in the offer, with costs then accrued.

* * *

An offer not accepted shall be deemed withdrawn and evidence thereof is no t admissible

e xc ept in the procee

ding to determine

costs. If the j udgment finally obtained by the offeree is not more favorable than the offer, the offeree sha ll 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 haveconsidered 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 i n failing to award her costs under Rule 68 for photographs used at trial, for court reporte r 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 judg

ment. The defend

ants then moved the trial court to assess all costs against the plaintiffs under Rule 68. The trial court denied the motion, statingthat “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 a

nd that, under fe

deral law, costs

of the type sought by the defe ndant were permitted. See Id.

On appeal, the Court

of Appeals obser

ved that Tennesse

e’s Rule 68 was pa

tt erned afte

r FederalRule 68. Id. The appellate court noted, howev er, th at Tennessee had not enacted a law comparable

to 28 U.S.C. § 1920, which expressly authorized a judge or clerk of an y federal court to tax as costs items of th e type soug

ht by the def

endants

. 3 Id

. The court stated that “[w]hatthe case; (5) Docket fees under section 1923 of th is title; (6) Compensation for court appointed exp erts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation serv ices under section 1828 of this title. * * * 28 U.S.C. § 1920.

4 Prior to the 19

93 amendm

ents, Rule 54 .04 provided , in part: (1) Except when express provision therefor is made either in a statute or in these rules, costs sh

all be allowed as of course to the prevailin

g party unl

ess the court otherwise directs. . . . (2) A party w

ho desires to r

ecover discre

tionary costs

or any recov

erable costs not included in the bill of costs prepared by the clerk of the trial court shall mov e 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 foundthe 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 c ourt affirmed the

trial court’ s denial of the def endant’s motion fo

r 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 prev ail ing p art y. 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 allow

able only in t he court’s discretion. Discretionary costs allowable are: reasonable a nd necessary court reporter expenses for depositions or trials, reasonable and necessary expert wit ness fees for depositions or trials, and guardian ad litem fees; trave l expenses are not allowable discretionary costs. . . .
Thus, Rule 54.04 was amended to include items such as court reporter expenses and exper

t witness fees within the de

finition of discre

tionary cos

ts.

In 1999, Person was cited in Woods v . Walldorf , 2 6 S.W.3d 868 (Tenn. Ct. App.1999) ( perm. t o app. den. ). In Woods , the plain tiff sued for discr imination on the bas

is of race and sex.10

Id. at 870. The jury returned a verdict in favor of the defe ndants. Id. at 872. Pri or to trial, the defendants

had made an o ffer 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 t he offer of judgment. Id. The trial co urt awarded t he defendant s’ court rep orter charge s incurred after the date of their offer of judgment to the plaintiff. Id. at 878-79. It also granted the defendants

other discr etionary c

osts under Rule 54.04(2). Id. at 879. The plaintiff appealed the award of costs against her. On appeal,this Court reverse d the trial court’ s award of costs u nder Rule 68, citing Person for the propositio n that costs under R

ule 68 include only

“the costs taxed by the Clerk of the Court. . . .” Id. (citing Person , 582 S.W.2d a t 766). T he Court ruled that the trial court’s award of costs under Rule 54.04(2) was within its discretion. Id. The Woods Courtdid not addresswhether

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 fed eral counterpa

rt, was e n acted 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 ca

se does little to motiv

ate the parties to undertake a meaningful assessment of the risks and costs of litig ation and does not significantly

facilitate settle

ment. See, e.g., Staffend v. Lake Ce ntral 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 rul

e which imposes costs upon a party who refuses an Offer of Judgment and who later recovers nomore than the offer . . . puts teeth in the rule and makes it effective by encoura gin g acceptance”). However, fede

ral cases cited

by CSX interpreting Rule 68 of the Federal Rules of Civil Procedure have awarded such costs only wh ere t he underlying substantive statute that provided the basis for the plaint iff’s claims

defined “costs” as including other items, such as attorney’s fee s. See for example, Cross mann v. Marcoccio , 806 F.2d 329 (1 st Cir. 1986) , citing Marek v. Chesny , 473 U.S.1, 105 S.Ct. 3012,

87 L.Ed2d 1 (19 85). 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 Proce dure, or its

federal counterpart, have been the sole basis for an award of such costs under Ru

le 68 of the Tenne

ssee Rules of Civil P

roc edure or Rule 68 of the Federal Rules. Thus, while the poli cy argum ents supportin

g CSX’s ar gument 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 aw

ard in this case on

ly of costs in

cluded in the bil

l of costs prepared by the clerk of the cour

t.
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, hear

ing the jury ’s verdict and co nsidering CSX’s p

ost-trial motions, th e trial court deniedthe motions, commenting that “to use it as that kind of hatchet of some kind I believe wou

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

On appeal, Jordan disp

utes a number of the trial court’s decisions as well. Jordan argues f

irst that the trial court erred in denying his motion for a new trial. He contends that the jury instruction11

given by the trial court regarding the definition of “causation” was both incorrect and inconsistent withthe 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 “foreseea bility” incorrect. Jorda

n maintains that the

se alleged err

ors 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 c ourt’s j ury instruction or to its answer to the jury’s subsequent inquiry regarding th

e definition of “in

jury.” CSX a

sserts 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 wa s 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 en

tirety to det

ermine wheth

er the tri al judge committed reversible err

or. Jury instru

ctions are not mea

sured against

the standard of perfection. The charge will not be invalidated if it “fairly defines the leg al issues involved in the case and does not mislead thejury.” 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 Ru

les of Civil Procedu

re permits a tria

l court to require the use of a special verdict

for m co mpr ise d of det ail ed fa ctu al q ues tio ns f or t he j ury. 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. 1 999) (citi ng Petty v. Estate of N ichols , 569 S.W.2d 840, 847. As the court i n Concrete Spaces, I

nc. v. Sender noted: Special verdict forms sho uld use the same te

rms as tho se used in the jury instructions. They should r epeat and highl

ight the salient is sues discuss ed in the instructions. Inconsistencies with jury instructions and the special verdict form may
con fus e th e ju ry.
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 proposedverdict form was inconsistent with the jury instructions given. Likewise, the r ecord contains no indication that Jordan’s counsel objected to the answer given by the trial j u dge to the jury’s inquiry during

delibera tions. Indeed, when asked by the trial judge whether there was any
reason not to say “y

es” in response to the jury’s question, Jordan’s counsel responded, “I don’t think12

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 jur y’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. Conse quently, we

affirm the trial c

ourt’s verdict fo

rm and jury i

nstructions.

Jordan next argues that the trial court erred in limiting the scope of the trial to only the harm caused by exposure to TCE a

nd that a new trial is warr

anted on this basis.

Jordan asserts th

at 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 whe

ther he wished to proceed solely on the issue of his exposure to TCE or whether he wished to continue t h e trial and have the jury consider evidence on Jordan’s exposure to other chemical solvents. Jordan’s attorney replied, “We don’t dispute t hat TCA [TC E] 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 tria

l. This issue is withou

t merit.

Jordan argues that the

trial court erre

d in refusing to exclude the testimony of CSX’s expert witnesses or to limit their testimonyto the information contained in their reports. Jordan contends that the reports submitted by Dr. Gord on and Dr. Rosenbe

rg failed to

adequately

relate the opinio

ns, as wellas summaries of the grounds for the

opinions, to which CSX expected the doctors to testify at trial. Jordan asserts that he wa s unduly prejudiced at tr

ial by CSX’s f

ailure to adequa

tely disclose its experts’ opinions in accordance with Rule 26 of the Tennessee Rules of Civil Procedure. CSX argu es that the expert reports provided to Jordan were thorough and that they accura tely reflected the experts’ anticipated trial testimony. CSX also contends that Jordan’s claim of “surprise” at trial is belied by his failure to depose C SX’s expert witness as provided for in the agreed scheduling order.

Rule 26.02 of the Tennessee Rules of Civil Pro cedu re provides a pa rty the oppor

tunity to discover informa

tion about witnesse

s another party

intends to call as a

n expert at trial. I

t states: (i) A party may through interr ogatories 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 mat ter on w hic h th e ex pert is e xpe cte d to tes tif y, and to state the substance of the facts and opin

ions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) A party ma

y also depos

e any other

party’s expe

rt witness expecte

d to testify at tr

ial.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 co

pies of reports in which the doctors

discussed their c

onclusions rega

rding Jordan’s cl

aimed injuries.

It is undisputed that Jordan had ampl e opportunity

to depose both of CSX ’s expert witnesse s. Jordan chose not to do so. In fact, w hen it appeared to CSX th

at Jordan had chose

n not to depose its expert witnesses prior to trial, CSX sent Jordan a letter empha sizing that both expe rts would “testify about the lack of causation between chemica ls to which Mr. Jordan was exposed and the symptoms of wh

ich he is complainin

g” in order to ensure that

“there is no surprise at trial.” After reviewing the expert’s repo rts, their testimony and the record as a whole, we find that CSX’s disclosure of its expert witness es 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 jur

or, the trial judg

e is under a duty

to independen tly weigh the evidence and determine whether the evidence preponder at es 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 supportthe verdict. See Tenn.R.App.P. 13(d ); see also Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988). Aft er reviewing t he record as a w

hole, we find that

the trial court pr

operly performed

his duty as thirteenth juror and that there is material evidence to support the jury’s ver dict. The decision of the trial court on these issues is affirmed.

Fin all y, Jordan argues that the trial cour t erred in order

ing him to pay

half of the costs to prepare the trial t

ranscript for appeal. He states that CSX, as the appellant, is required to pay the costs to pre pare the trial transcript under Rule 24 of the Tennessee Rules of Appellate Procedure. CSX argues that both

Jordan and CSX appea

led decisions of th

e trial court and

that c onseque ntly the trial court’s division of the costs to prepare the trialtranscript was appropriate and within the trial court’s discretion.

Rule 24 of the Tennesse e Rules of Appella

te Pr ocedure places on the appellant the responsibility

of preparing a transcript of that part of the evidence necessary to convey

a fair, accurate and co mplete account of what transpired with respect to the issues that are the bases of appeal. Tenn.R.A

pp.P. 24(b). Rule 24

(b) further pro

vides:

Unless the entire transcript is to be included, the appellant shall, within 15 days after filing the not ice of appe al, 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 declara tion of the issues the appellant14

intends to present on appe al. If the ap

pellee 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 additiona l 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 a ppellee to do so. . . .
Id.

CSX and Jordan each filed notic es of appeal in thi

s case on the same day

, contesting sep

arate 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 c ost of the preparation of the trial transcript. The trial court su bsequently e

ntered an order

requiring CSX an

d Jordan to each be

ar 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 T ransportatio n, Inc., and their sureties, for whi ch ex ecut ion may i ssu e if nece ssa ry.

HOLL Y KIR BY LI LLA RD, J.