# FILED September 6, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk DOUGLAS E. SAM UELSON, as the ) Natural Father and Personal ) Representativ

e of KEVIN L. ) SAMUELSON, ) ) Plaintiff/Appellant, ) Appeal No. ) 01-A-01-9602- CV-00060 VS. ) ) Davidson Circuit CECIL E. Mc MURTRY, M.D., ) No. 89C-2581 WILLIAM A. HOLLAND, JR., M.D., ) H.C.A. HEALTH SERVICES OF ) TENNESSEE, INC ., d/b/a ) DONELSON H OSPITAL ) EMERGICARE , INC., ) ) Defendants, ) ) and ) ) MARK S. TOTTY, I ndividuall y and ) d/b/a MARK S. TOTTY, D.C., P.C ., ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE THOMAS W. BROTHERS, JUDG E
JOE BEDNARZ Suite 1400, Parkway Towers 404 James Roberts on Parkway Nashvil le, Tennessee 37219 Attorney for Plaintiff/Appellant ROGER T. MAY Suite 300 219 Second Avenue North Nashvil le, Tennessee 37201 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: LEW IS, J. DISSEN T: KOCH, J.- 2 - 

## O P I N I O N

In this wrongful death case w e have determi ned that when the p lai ntiffappellantaccepted a jury verdict finding the dec edent was forty-nine percent at fault, that findin g became binding in the appeal of the t rial judg e’s action i n dismissing another defendant on the day of the trial. We, therefore, preter mit the issues raised by the appe llan t and aff irm th e jud gmen t bel ow.

I.

Kenneth L. Samuelson, age 28, died of pneumonia on August 2, 1 988. In the few days prior to his death, Mr . Samuelson had cons ulted sever al medical practitioners and had been seen in the emergency room at Donelson Hospital. He had also consulted Dr. Mark S. Totty, a chiropractor.

The pla inti ff, DouglasE. Samuelson, is the natural father

of Kenneth L. Samuelson. He sued the other profession als, Donelson Hospital, and Dr. Totty for his son’s wrongful death and the case was set for tri al before a jury on April 17, 1995. On March 28, 1995 c ounsel for Dr. Totty filed a mot ion in limi ne seeking t o prevent the plai ntiff from using its expert to establis h that Dr. Totty had violat ed the standard of care. Dr. Totty asserted that the expert did not meet th e practice requirements in Tenn. Code Ann. § 29-26 -115(b). Thetrial judge conducted a hearing on March 31, 1995 but adjourne d the h earing to t he morning of the t rial. After completing th e hearing, the trial judge ruled that the expert did not mee t the require ments o f the statute and that his testimony would not substantially assist the trier of f act. See Rule 702, Tenn. R . Evi d. Dr . Totty then mov

ed to di smissthe ca se aga inst h im. The trial judge treated the motion as one for summary judg ment and dismissed Dr. Totty. The trial proceeded agai nst the other defendants, and t he jury returned a verdict against- 3 -

one of them, finding that he was fifty-one perc ent at fault and that the decedent w as forty-ninepercent at fault. The verdict also establi shed the pe cuniary v alue of the decedent’s li fe.

W ithin thirt y days of the entry of the order gra nting summary judgment to Dr. Totty , the plaintiff filed a moti on to set aside the order, suppo rted by an affidavit from another chir

opractic ex pert. The tria l judge deni ed the motion.

On September 27, 1995, t he plaintiff filed a Sati sfaction ofJudgment in the trial cour

t, certifyi ng that the ju dgmentagainst the other defendant had been fully satisfied.

The plaintiff appe aled the trial judge ’s dismiss al of Dr. Totty , allegingthat the expert witness was in fact qualified, th at Rule 56.03, Tenn. R. Civ . Proc., req uired a thirty day period before the motion cou ld be heard, and that the trial judge should have set the summary

judgment asi de on the streng th of th e second affidavit. The appellee raised the issue that the appe llant was estopped to contest the jury’s allocation of fault.

II. Res Judicata/

Collateral E stoppel

Since the appelle e ’s c onte ntio n that thejur y verdi ct b inds

the p lai ntiff would be di spositive on appeal, w e will address that i ssue first.

As Judge Goddard said in Phillips v . General Mot

ors Corp. , 669 S.W.2d 665 (Tenn. App. 1984), th e rule as to res judica ta and collater al estoppel is

easy to state but diff icult to ap ply. The starting point is found in Shelley v. Gi pson , 218 Tenn. 1, 400 S.W.2d 709 (1966) wherethe court sai d:- 4 - The doctrine of

res judicata is

that an exi sting final judgment rendered upon the merits by a court of competent juris diction is conclusive of the rights , questions and facts in is sue as to t he parties and th eir priv ies in the same action in othe r judic ial tribunals of concurrent jurisdiction. This doctrine is distingu ishe d from the doctrine of collateral estoppel which precludesfurther liti gation of the particul ar facts on w hich the juryorcourt necess arily madefindings in the former action. Restatement of Judg ments, sec. 68. 218 Tenn. at 12, 400 S.W.2d at 714.

While “the application of col lateral estop pel requir es identity

of parties or their pri vies,” Blue Diam ond Coal v. H olland-Am erica Ins. C

o. , 671 S.W.2d 829 at 832 (Tenn. 1984), we most oft en interpret the rule to re quire that the parties be exactly the same. Clements

v. Pearson , 209 Tenn. 223, 352 S.W.2d 236 (1961). In most cases that is correct, but there is a class of cases wher e an adjudicati on in one case is con clus ive on the s ame quest ion a gains t ano ther part y.

In Cantrell v

. Burnett & Hen derson

Co. , 187 Tenn. 552, 216 S.W.2d 307 (1948), a case in w hich the dispo siti ve issues are very similar to those in the case before us, a plainti ff sued the manufacturer and a local deal er for

selling an allegedly def ecti ve automobile. The tr ial judge directed a ver dict for the manufacturer and allowed the case to go to the jury against the loca l dealer , under instr uctions that would have resul ted in a ver dict for the plai ntiff if the jury found the loss res ulted from some defect in the car . The jury returned a defense verdict. The Supreme Court held that the jury ’s determinati on on the question of whether the car was defect ive at the time the plaintiff bough t it was conclusive on the claims against the manufa cturer. Quot ing from the e arl ier cas e of Ragan v. Kennedy , 1 Tenn. 91, the cour

t said, In order to ren der a verd ict in one acti on evidence in an other, it is not nec essary th at the parties should b e th e same. It is s ufficient if the party against whom the verdict is intended to be introduc ed was a par ty to the former suit, and that the same subject

matter was

directly put in issueby the pleadings. (Emphasis added.) 187 Tenn. at 556, 216 S.W.2d at 309.- 5 - Quoting agai n from Loveman Co. v. Bayless , 1 2 8 T e n n . 3 0 7 , 1 6 0 S

. W. 841 (1913), the court stated,

“That everyone is entitl ed to his day in court, and no more, on the same cause of action; that he has enjoyed this right when he has contested the ma tter wi th persons committing the wrong and primarily liable, and has been cast in such suit; that to permit him after this to contest the matter with one only secondarily liable would be to give hi m two suits upon the same cause of acti on. It is sai d to be a branch of the law of res

adjudicata, but not req ui ring that the par

ties should be the same, or those str ictly in privity.”

(Emphasis added.) 216 S.W.2d at 310.

In Hamm ons v. Walker H auling Co. , 196 Tenn. 26, 26 3 S.W .2d 753 (1953), the Supreme Cour t found that the jury verdict was not conclus ive on the poi nt in issue but s aid,

“W here the verdi ct of a jury affirmatively disclosesa particular finding with reference to a contr olling i ssue offact a pla inti ff in that suit is judicially bound by such finding in a subsequent suit by such plaintiff against a dif ferent defe ndant.” 196 Tenn. at 32, 263 S.W.2d at 755.

In Algood v. Nashv

ille Machi

ne Co., Inc. , 648 S.W.2d 260 (Tenn. App. 1983), this court recog nized the di fference between offensive and defensive col lateral estoppel. The court ap proved the latter while rejecting the former.

Collateral estoppel applies to parties and their pri vies

. Pri vity in this i nsta nce means “priv ity as i t exists in relatio n to the subject matter of the lit igation.” Cantrell v. Burnett & Hender

son Co. , 216 S.W .2d at 309-310. Or, as this court said in Phillips v

. General Mot

ors Corp. , 669 S.W.2d 665 (1984), privity exists as to “those
so connected in l aw wi th a party to the judgment a s to have su ch an identity of interest that the party

to the judgment represented the same legal r ight.”669 S.W.2d at 669. Under that definition D r. Totty was in priv ity w ith the other defendant s on the issue of the decedent’s fault

.- 6 - When the plaintiff accept ed the verdi ct of the jury i n the case agai nst the other defendan ts the judgm e nt in that case became final. The findings of the pecuniary value of the deced ent’s life, and t hat the decedent was forty nine per

cent at fault are bindingon the plainti ff. There can be only one recover

y. TSC Industries, Inc. v. Tomlin , 743 S.W.2d 169 (Tenn. App. 1987). The jury found th e value of that recovery and the plainti ff has been fully compens ated for it.

In none of the cases ci ted in the diss enting opini on did the plain t if f collect the judgment i n satisfaction of the jury’s verdict and then pursue th e other defendant s. In our opinion, the plaintiff cannot do so. He cannot affirm the verdict on one hand and disaffirm i t on the other.

Otherwis e, questionsra ised by the adoption of our version of comp arat ive negligence/fault will increase without number. The theory on which the cas es cit ed i n thedis sent pro ceed is t hat i t isunfai r tomakethe p lai ntiff procee d against one defendant when he mi ght have pr oceeded against two or more, because we cannot know

what t he jury wou ld ha ve don e und er th ose c ircum stan ces. If we acceptthat proposition, justice would demand that we set aside the verdict against Dr. Holland, and re-try

him along with Dr . Totty -- even though the verdict has not been attacked at all. And w hat of the other two defendants that the ju ry exonerated co mple tely? Shouldn’t they be thrown back into the mi x so that s omeone’s not ion s of fairness can be satisfied? Or, at least shouldn’t we allow Dr. Totty

to point to the other defendants as s haring the bl ame?

We repeat: the plaintiff hashad the jury determine the amo unt he should recover and he has been fully compensated.

W e pretermit the other issues.- 7 - The judgment of the t rial cou rt is affirmed and t he cause is remanded to the C ircui t Cou rt of Davids on Co unty f or an y furt her p roce edin gs nec essa ry. Tax the costs on appeal to the appellant.

_________________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE
WILLIAM C. KOCH, JR., J UDGE, SEPARATE DISSENTIN G OPINION