### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 3, 2001 Sessio

n JULIE AMANDA DURBIN, ET VIR 

### . v. SUMNER COUNTY REGIONAL

HEALTH SYSTEMS, INC., ET AL 

### . Appeal from the Circuit Court for Sumner County No. 15711-C Arthur McClellan, Judge

No. M2000-02109-COA-R3-CV - Filed September 6, 2001

The appellants

sued the appellees for claims connected with the death of the appellants’ twin f

etuses. The jury found

in favor of the appellees, and, in addition, after the jury verdict, the trial court granted appellee Dr. Caldwell’s motion to dismiss on the ground that the statute of limitations had run before he was sued. The appellants argue that this court should reverse the trial court’s order dismissing Dr. Caldwell and ove rturn the jury’s verdict. We reverse the trial court’s order dismissing Dr. Caldwell, but affirm the jury verdict in his favor and in favor of the other appellee

.

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

Affirmed in Part and Reversed in Part
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM B. C AIN , J. and J. S. D ANIEL , S P
. J., joined. Gary K. S mith and Sherry S. Fernandez, Memphis, Tennessee, for the appellants, Julie Aman d a Durbin and James M. Durbin.
Robert L. Trentham and G. Brian Jackson, Nashville, Tennessee, for the appellee, Sumn

er County Regional Health Systems, Inc. Phillip North, Michael F. Jameson, and Tom Shumate, Nashville, Tennes se e, for the appellee, William R. Caldwell, M.D.
OPINION
I. Appellant,Julie AmandaDurbin, was pregnant with twins in 1995. On July 20,1995, in the twenty-nint

h week of her pregnancy, Mrs. Durbin ca me to the Sumner Regional Medical Center (the-2-

“Hospital”) complain

ing of a backache and irregular contractions. After being tested with a fetal monitor, she was discharged and sent home.
On July 22, 1995 at 1:00 a.m., Mrs. Durbin again arrived at the Hospital complaining of back pain, abdominal pain andregular contractions. The Hospital admitted her for obstetric emergency out-patient observation. She was again hooked up to a fetal heart monitor. The nurses monitored the fet al hea rtbeats and did not report any evidence of distress to Dr. Caldwell, Mrs. Durbin’s physician. However, because of his concern over Mrs. Durbin’s back pain, Dr. Caldwell admitted her to the postpar

tum unit and ordere

d routine checkin

g of the fetal he

artbeats.
Dr. Caldwell suspected that her back pain might be due

to kidney stones. He ordered a renal ultrasound. During this ultra sound, Mrs. Durbin

asked the technician if she could look at the twins to ascertain their sex. The ultrasound showed that there were n o kidney st

ones present, but there were other complications with the tubes leading from her kidneys to her bladder, the ureters, and Dr. Caldwell concluded that could be the cause of her back pain. She was given medication for her pain, and discharged from the Hospital. Her instructions upon discharge included that she was put on bed rest with ba

throom privilege

s.
On July 26, 1995, Mrs. Durbin had a scheduled appointment with Dr. Caldwell. After being unable to find a fetal he

artbeat, Dr. Cal

dwell checked Mr

s. Durbin with an ult

rasound. The ultras ound confirmed t hat the twi ns were dead. The doctor a lso notice d an extrao rdinarily large pocket of fluid. He believed that thetwins had died as a result of a placental abruption due to the large amount of

fluid. Dr. Caldwell delivered the twins the next day. When Mrs. Durbin returned for her six-week follow-up visit on September 11, Dr. Caldwell told her that the twins had instead died as a result of Twin to Twin Transfusion Syndrome (“TTS”).
The twins shared one placenta, but each twin had their own amniotic sac. When twin fetuses share a placenta they are susceptible to TTS. TTS occurs when bloodpasses disproportionately from one fetus to the other

through connec

ting blood vessels

within the shared p

lacenta. One fe

tus gets too much blood, which overloads the cardiovascular system, and may cause heart failure. The other fetus does not get enough blood and may die from anemia. The fetus that receives the extra blood urinates more, therefore, inc reasing the flu

id in the amniotic

sac. TTS can trigger symptoms in the mother such as pain, pre-term labor, and abdominal distension.
On July 12, 1996, the appellants filed suit against the Hospital and several individual nurses. Dr. Caldwell

was not included as a defendant with the initial filing. The Hospital reserved the right to rely on comparative

fault wh en it filed its answers, and subsequent amended answers. The appellants

and the Hospital de

posed Dr. Caldwel

l on July 28, 1997. On December 4, 1997, the Hospital amended its answer to “invoke the def

ense of comparative fault” citing the actions of Dr. Caldwell. This motion was granted by agreed order. On F ebruary 11, 199 8, appellants move d to name Dr. Cal dwe ll a s a p art y to their complaint. Dr. Caldwell filed an answer which denied the allegations included in the ame nded complaint, an

d also argued th

at the appellants ’ ame ndme nt adding him as a party was time-barred. On June 4, 1999, Dr. Caldwell moved to dismiss the-3-

appellants’ action against him because it was barred by the statute of limitations. The motion was continuedindefinitely due to the death of the trial judge. On March 22, 2000, the appellants and the Hospit al opposed Dr. Caldwell’s motion to dismiss. The trial judge heard the motion on Ap ril 4 , 2000, and reserved the

right to issue a ruling after the hearing of the proof at trial. The Hospital and Dr. Caldwell both fi led motions in limine to exclude evidence on several issues. At the pretrial conference

held April 14, 2000,

the appellants dis

missed their claims

against the individual nurses. The tri al be gan April 18, 2000. The trial court granted both the Hospital’s and Dr. Caldwell’s motions in limi ne. On May 2, 2000, the jury returne d a verdict in favor of the Hospital and Dr. Caldwell. The trial court thenheld that the appellants’ claims against Dr. Caldwell were barred by the statute of limitations and entered an order to that effect on May 15, 2000. The

appellants filed a motion for judgment notwithstanding the verdict and new trial on May 25, 2000. The Hospital and Dr. Caldwell filed motions for discretionary costs. The trial court denied the appellants’ motion and granted the Hos

pital and Dr. Caldw

ell discretionar

y costs.
II. D R . C ALDWELL ’ S M OTION TO D ISMISS The appellants c

hallenge the tr

ial court’s post-t

rial dismissal of Dr

. Caldwell.
Because the notice of appeal did not specify the May 15, 2000 orde r, Dr. Caldwell fi rst argues that appellants fa

ile d to time ly appeal f

rom the trial cour

t’s order gran

ting the motion to dismiss. The appellants did , however, includ

e the granting

of the motion to

dismiss in their

motion for a new tria l. Therefore, the issue was preserved. The trial court filed an order deny ing the appellants’ motion for a new trial on July 27, 2000. This order is the beginning of the time for the appellants

to file their appe

al. The appellan

ts’ notice of appe

al on August

17, 2000 was within the thirty day time limit. Therefore, we hold that the appeal includes the order dismissing Dr. Caldwell on statute of limitat

ions grounds. Turning to the merits of this i ssue, we note

initially that

there has been some confusion in the briefs submitted as to whether the m otion shou ld have been treated as a motion for summary judgment or a motion to dismiss. A motion to dismiss under Tenn. R. Civ. P. 12.0 2 (6), failure to state a claim upon which relief can be granted, is converted to a motion for summary judgment if the trial judge considers matters outside the pleadings. Tenn. R. Civ. P. 12.02. This motion to dismiss is based on the expira

tion of the statute o

f limitations, Tenn.

R. Civ. P. 8.03. The mo tion has not been converted

to a motion for summa

ry judgmen

t, and we address

it as a motion to dismiss

. The trial court stated “Based upon the record as a w hole, the C ourt finds that there is no genuineissue of material fact as to whether the applicable statute of limitationsTenn. Code Ann. § 29-26-116 has run. The Court holds that it has run

prior to Dr. Caldwe

ll being named as a

party to this suit.” The trial court based this decision on several factors:(1) the cause of action accrued

in July or September of 19

95 and Dr. Caldwe

ll was not sued until Februar y 11, 1998; (2

) the statute of limitations for medical malpractice is one year, Tenn. Code Ann. § 29-26-116(a)( 1); and(3) Tenn. Code Ann. § 20-1-119, whichin some cases allows a new defendant to be added after the statute of-4-

limitations has run does not apply when the plaintiff was aware of the potential liability of the new defendant.
The appellants argue on appeal that there is an exception to the one year statute of limitations that applies in their case. They rely

on Tenn. Code Ann. § 29-26-116(3), which states that the sta

tute of limitations will not apply if there is “fraudulent concealment on the part of the defendant.”
The appellants specifically argue that Dr. Caldwell fraudule ntly concealed

the timing of the fetal monitoring strips. They allege that Dr. Caldwell stated in an interview prior to the filing of the

ir initial complaint and his deposition that the fetal monitoring strip on July 22, 1995 was taken after he examined Mrs. Durbin and he would not know the results of the strip unless the nurses called him. The appellants relied upon this contention when they did not include Dr. Caldwell in their initial or amended complaint filed in July and November of 1996, respectively

. Dr. Caldwell replies to the fraudulent concealment issue by pointing out that th

e appellants did not plead the iss

ue in the court below. See City State Bank v. Dean Witter Reynolds, Inc. , 948 S.W.2d 729 (Tenn. Ct. App. 1996). We agree that they did not raise the

statutory exception to the one year statu

te of limitations in

any of their pleadings, but they did raise the issue in their various responses to Dr. Caldwell’s motion to dismiss, and the trial judge considered the claim before granting the motion. We will therefore consider it here.
The trial judge foun

d as a fact that th

e appellants wer

e not misled by

Dr. Caldwell

andthat they had all the neces sary fact

s by Septembe

r 1995 to determine

Dr. Caldwell’s inv

olvement, if a ny. Our review of th ese findin gs is de novo on the record acc ompanied by

a presumption of c

orrectness unless the evidence preponderates against the findings. Tenn.R. App. P. 1 3(d). We have reviewed the evidence on which the appellants rely and we concur in the trial judge’s findings. Therefore, the statute of limitatio

ns was not extended b

y Dr. Caldwe

ll’s concealmen

t.
The appellants then argue that Tenn. Code Ann. § 20-1-119 applies to their situation. Tenn. Code Ann. § 20-1-119 al

lows plaintiffs to

amend their complaint

within ninety days of a defendant’s answer or amended answer that alleges a third party c aused or contributed to the p lai ntiff’s injury even if the statute

of limitations has ru

n. Tenn. Code Ann. §

20-1-119(a)(1 ) provides: (a) In civ il acti ons where comparative fault is or becomes an issue, if a defendant namedin an original complaint initiating a suit filed within the applicable statute of limitations, or namedin an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amend ed complaint that a person not a party to the suit caused or contributed to the injury or damage for

which the plaintiff seeks recovery, and if the plaintiff's cause or causes of action against such person would be barred by any applicable statute of limitations butfor the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such

person's fault, either:-5- (1) Amend the complaint to add such person as a defendant pur suant to Rule 15 of the Tennessee Rules of Civil Procedure and cause process to be issued for that person; This is the procedure the appellants relied upon in their motion to amend complaint to include Dr. Caldwell as a defendant without regard to the statute of limitations.
The trial court based

its order with reg

ard tothe application of Tenn. Code Ann. § 20-1-119 on Wittlesey v. Cole , 142 F.3d 340 (6 th Cir. 1998) and Lipscomb v. Doe , No. 02A01-9711-CV-00293, 1998 WL 886601 (Tenn. Ct. App. 1998), rev’d on other grounds , 32 S.W.2d 840 (Tenn. 2000). The court stated, “TENN. CO

DE ANN. § 20-1-11 9 is not applicable to this case beca

use clearly

plaintiffs knew or s hou ld h ave k now n th at D r. C ald wel l ma y hav e bee n at faul t ma ny m onths and perhaps years prior to the Hospital’s amended answer.”
The interpretations between two sections of this court differ as to whether this statute applies to all third parties who are named in a de fendant’s answe

r or amended ans

wer or solely

to unknown or “phantom” third pa

rties. A panel of the midd le section of this c

ourt in Townes v. Sunbeam Oster Co., Inc. , No. M1997-00245-COA-R3-CV, 2001 WL 92057 (Tenn. Ct. App. 2001) held t hat it woul d notfollow the analysis of Wittlesey and Lipscomb in its interpretation of Tenn. Code Ann. § 20-1- 119. This panel held

that T enn. Code Ann. § 20-1-119(a) applies to any third party named in an answer or amended

answer, not just to h

eretofore unkn

own parties. Townes , 2001 WL 92057, *4-5. Therefore, we will follow this precedent. Following the interpretationof this court in Townes , the appellants would be able to file an amended complaint

including Dr. Caldwell within ninety days of the Hospital’s filing of its amended answer. The fact that

the appellants knew of Dr. Caldwell’s potential liability does not nullify the application of Tenn. Code Ann. § 20-1-119(a).
The appellants filed a motion to amend the complaint on Februa ry 11 , 1998 to add Dr. Caldwell as a defendant which was granted the same day. The appellants’ fi led th eir Second AmendedComplainton February 13,1998. This complaint was clearly filed within ninety day s of the order granting

Hospital’s motion to amend its answer. Therefore, the suit against Dr. C

aldwell was tim ely.
The appellants also argue that they should be able to r ely on Tenn. R. Civ. P. 15.03, The Relation Back of Amendments, to amend their complaint. B ecause we have found that their action is saved from the sta

tute of limitations by

Tenn. Code Ann. § 20

-1-119, we do not n

eed to address this issue.
For this reason, we reverse the post-trial order dismissing Dr. Caldwell on statute of limitations ground

s.-6- III. J URY V ERDICT
The case went to the jury and the jury r eturned a verdict in favor of the defendants. The appellants

assert that the ve

rdict is contrary

to the weight of the evidence. Our role in an appeal from a jury verdict does not

allow us to reweigh the evidence or consider where the preponderance lies. Instead

, we must determine whether there is any material evidence to support the verdi ct. If there is, we must affirm i t. See Reynolds v. Ozar k Motor L ines, Inc. , 887 S.W.2d 822, 823 (Tenn.1994); Pullen v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn. Ct. App.1992). We are required to take the stronge

st legitimate vie

w of the evidence

in favor of the ve

rdict, assume the truth

of the evidencein support thereof, allow all reasonable inferences to sustain the verdict and disregard

all to the contrary. Hobson v. First State Bank , 777 S.W.2d 24 (Tenn. Ct. App.1989).
This trial lasted for two weeks. The jury heard the evidence a nd determined that neither the Hospital nor Dr. Caldwell w ere at fault for the death of the tw

ins or the injuries t

o the appellants. After reviewing the e

vidence, we find

that there is ample

materia l evidence to support the jury’s verdict.
D r. Cal dwe ll t est ifi ed t hat Ms. Dur bin arri ved at t he H osp ita l on bot h Ju ly 20 and Jul y 2 2 complaining of back pain and having contractions. On July 20, he ordered medication to stop her contractions.The nurse informed Dr. Caldwell that the contractions had stopped, and Ms. Durbin was sent home. Her back pain lessened after the contractions stopped, and Dr. Caldwell assumed they were thecause of her back pain. When she came to the Hospital on July 22, the doctor ordered an ultrasound to see if she was havinga problem with her kidneys.The ultrasound revealed that she was indeed having a problem with her ureter on the side where she complained about the back pain. Dr. Caldwell dete

rmined that this wa

s the cause

of her back pain. Ms. Durbin was also put on the fetal heart monitor. The nurses testified that they did not find any evidence of distress, so the

y did notcall Dr. Caldw ell. Ms. D urbin was then disc harged with inst

ructions for bed r

est and to call about any complic

ations. There wa

s testimony tha

t Ms. Durbin did not c

all to report any

problems except for nausea. Ms. Durbin testifiedthat she never filled the prescription for medicine prescribed for her nausea. The expert witnesses of both appellees testified that all these actions were within the standard of care.
The jury also he

ard testimony

from Dr. Caldwell

andtwo expert witnesse

s for the appelle

es, Dr. S tep hen Fortunato an d Dr. Joseph P. Brune

r, that the TTS coul

d have developed

in the time period between M

s. Durbin’s discha

rge on July

22 and her visit to D

r. Caldwell on July

26. Both of appellees’ exper

t witnesses t

est ified extensively

to the occurrenc

e of acute TTS. Th

ey both testified from their

pers onal experiences that the amount of fluid found in this case could be produced in less th

an four day

s, maybe ev

en within twenty

-four hours.
Fromt he evidence presented the jury could have come to seve ral conclusions that

woul d require them to render a verdict in favor of the appellees. The jury could have concluded that TTS hadnot occurred whe

n Ms. Durbin came to the

Hospital on July

22. They could have concluded that-7-

it occur red in t he day s betwe en July 22 and Ju

ly 26. The jury could have concluded that the TTS may have been present, but that Dr. Caldwell and the Hospital all acted within the standard of care in the treatment of Mrs. Durbin.
As we have stated above, our role is not to reweigh the evidence. Because we have found ample evidence t

o support the jury’s decision, we c annot overturn the

verdict.
IV.
Since the jury returned a verdict for the defendants a nd we have deter

mined that there is material evidence to support it, the appellants must show that something went wrong at the trial or leading up to the trial that p revented them from getting a fair hearing. They have ra ised several issues that they cl

aim did amount to

such prejudice. When the appellant s first filed their

complaint, they did not include Dr. Caldwell as a defendant.

A. R EFERENCE TO THE H OSPITAL ’ S A MENDED A NSWER
On O ctober 15, 1997, the Hospital filed its amended answer regarding comparative fault

. On December 1, 1997, the Hospital filed a motion further amending its answer to point the finger at Dr. Caldwell. T

his amendment rea

d as follows: 32(a) The plaintiff and her twin fetuses were under the care and tr eatment of William Caldwell, M.D. In the ev

ent that a jury determines that

the plaintiff’s alleged injuries were the result

of negligence, these defendants aver that the acts and omissions of Dr. Caldwell, in violation of the recognized standard of acceptable professional practice, caused or contributed to

the plaintiff’s injuries. Specifically, these defendants aver that Dr. Caldwell may be found to have been negligent f or: (1) Failing to monitor Ms. Durbin with sufficient frequency between May

30 and June 28, 1995; (2) Failing to refer Ms. Durb in to an obstetricia

n specializ

ing in high-risk monochromatic twin pregnancies; and (3) Failing to order continuous external fetal monitoring for Ms. Dur bin by a trainedla b or and delivery nurse and by failing to ascertain fetal well-being prior to discharging Ms. Durbin from the Hospital on July 22,1995; (4) Failing to order anultrasound, biophysical profile and a repeated non-s

tress test or a contractio

n stress test with Pitocin within 24 hours of the July 22 fetal monitoring

strip, which did not d

ocument reactiv

ity of the fe

tus.-8- These defendants deny that any actor omission on their own part, or any act or omission of Dr. Cald

well, caused the plaint

iffs to suffer an

y injury they otherw

ise would not have suffered. Howev er, in the event a jury conclu

des otherwise, th

ese defendants invok

e the defense of

comparative fa

ult. Immediately

before trial, the

trial court gra

nted the Hospit

al’s motion to withdraw this de fense withoutobjection from the appellants. At trial, the appellants attempted to question the Hospital’s expertwitness, Dr. Bruner, regarding this amended answer. The appe llant wished to prove at trial that th e H ospital believed th at Dr. Caldwell wa

s at fault. The tria

l court denied the

appellants’ requ est because, in the court’s opinion, the probative value of the questions did not outweigh the adverse affect. Tenn. R. Evid. 403. The trial court did state that the appellants could ask Dr. Bruner questio ns regarding the same issue as to Dr. Caldwell’s culpability, but that the amende d answer could not be brought into the examination. We agree with

the trial court

– and for an additional reason. Allegations in pleadings may be intr oduced but only as admissions against the pleader. Pankow v. Mitchel l , 737 S.W.2 d 29 3 (Tenn. Ct. App. 1987); Goodman v . Balthrop Co nstruction Co. , 626 S.W.2d 21 (Tenn. Ct. App. 1981). In this case, the plaintiffs sought to use the allegations in the amended answer against Dr. Caldwell and to cross-exami

ne Dr. Bruner a

bout his belief tha

t Dr. Caldwell

was partially

at fault. Neither the hospital nor Dr

. Bruner can a

dmit liability

on the part of Dr. Caldwell. Therefore, the amended answer was not admissible.
B. D R . S TUBER ’ S D EPOSITI ON Appellants

also contend that t

he trial court er

red when it did not a

llow them to us e the deposition of Dr. Caldwell’s proposed expert witness, Dr. Harry L. Stuber, in their examinations of appellees’ expert witnesses Dr. Bruner and Dr. Fortunato. When Dr. Caldwell su bmitted his Rule 26 disclosures on May 20, 1999, he included as expert witnesses, Dr. Stuber and Dr. Fortunato. The Rule 26 disclosure included a summary as to what

Dr. Stuber would te

stify to at tr

ial. The appellan

ts then deposedDr. Stuberon April 5, 2000, about two weeks before trial. At this deposition, Dr. Stuber’s testimony wa

s not consistent with

the Rule 26 disclosure. On April 7, 2000, Dr. Caldwell sent certified copies of a Revised Rule 26 Disclosure to the cou rt and counsel involved in the litigation. This Revised Rule 26 Disclosure only included Dr. Fortunato as an expert witness for Dr. Caldwell. In the cover

letter, Dr. Caldw

ell specifically stated that Dr. Stuber was no longer going to be called as a w

itness at trial, but rather had be en re-designa

ted as a consulting

expert. At trial, Dr. Caldwell filed a motion in limine to prevent the appellants from using Dr. Stuber’s deposition at trial.
The appellants sta

te in their brief that they should have been allowed to use Dr. Stuber’s deposition in their cross-examination of Dr. Caldwell and the appellees’ expert witnesses, Dr. Bruner andDr. Fortunato. The use o f expert depositions in the cross-examination of the other party’s experts has been allowed when the expert on the standhas “read and considered” the deposition of the other expert. Steele v. Fort Sanders Anesthesia Group , P.C. , 897 S.W.2 d 270, 278-79 (Tenn.-9-

Ct. App. 1994). We based this decision on the fact that the expert witness had based

his conclusions on all the material he had been given, which included the other expert’s deposition. This is not the situation in the present case. Neither Dr. B runer nor Dr. Fortunato had read the deposition of Dr. Stuber before tr

ial.
TennesseeRule of Civil

Procedure Rule 32.01(3) states that depositions may be used at trial for any purpose if the

court finds that certain cri teria are met. H

owever, the fina

l sentence of Rule 32.01(3) states that “depositions of experts . . . may not be used at the trial except to impeach” the deponent. The Adv iso ry Co mmi ssi on C omm ent sta tes tha t th is r ule app lie s on ly to discov ery depositions of an adversar y’s expert. T

enn. R. Civ. P. 32.01, A

dvisory Commis sion Comment to 1986 Amendment; see also , White v. Vande rbilt , 21 S.W.3d 215, 226 (Tenn. Ct. App. 1999). Dr. Stuber’s deposition was a discovery deposition taken by the appe llants’ attorney. Therefore, the only use of Dr. Stuber’s deposition can be to impeach his own testimony. Therefore, under the curre nt rules and case

law, Dr. Stuber’s deposition should not have been used to cross-examine either Dr. Caldwell or the expert witnesses.
C. D R . C ALDWELL ’ S M OTION IN L IMINE E XCLUDING D R . S HAVER ’ S T ESTIMONY When Mrs. Durbin came in for an appointment on July 26, 1997, Dr. Caldwell discovered that t he twins were dead. He then told the appellants that Mrs. Durbin had suffered a placental a bruption. He delivered the twins the next day. When Mrs. Durbin returned for her six-week follow-up visit, Dr

. Caldwell informe

d her that the twins

had died from TTS.
Prior to trial, appellants filed an expert disclosure from their expert witnes s, Dr. Shave r, stating that Dr. Shaver intended to testify that Dr. Caldwell deviated from the standard of care when he diagnosed a placental abruption upon the death of the twins. Dr. Caldwell filed a m otion in limine prior

to trial to prevent

this testimony . The trial court g ranted the motion b

ecause it was not relevant to the issues raised for the court’s consideration.
The appellants arg

ue that this

testimony should have been allowed at trial to prove that Dr. Caldwell deviate

d from the standar

d of care beca

use he failed to di

agnose the hy

dramnios on July 26 and instead diagnosed t h e problem as plac

ental abruption. I

n addition, Dr. Cald

well sent Mrs. Durbin home with what he thought was placental abruption, which according to the appellants, was a potentially l

ife-threatenin

g condition. The a

ppellants state

that this further shows a deviation from the standard of car

e. Appellants also

assert that Dr. Ca

ldwell’s “deviat

ion is so stark as to su

ggest Dr. Caldwell knew ther e was a mishandling of TTS and deflected attention from the issue long enough to investigate what needed to be said to defend the case.” Appellants

didnot include the misdiagnosis after the babies’ deaths as a negligent act by Dr. Caldwell in their Second Amended Complaint. Even though the appellants alleged the infliction of emotional distress, there is no statement in the e

xpert disclosure tha

t states this

misdiagnosis on July 26 caused emotional distress. Therefore, evidence of the misdiagnosis is ou tside the scope of the-10-

appellants’ complaint. In addition, the doctor’s misdiagnosis after the death of the twins is not relevant to Dr. Caldwell’s care of Mrs. Durbin’s pregnancy. Evidence is relevant if it “ha[s] any tendency to make the existence of

any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
We also note that

appellants’ conj ecture that Dr. C aldwell purposef

ully misdiagnosed Mrs

. Durbin’s condition to “buy himself more time” is completely without support in the record. This unsupported alleg

ation does not make

this testimony

suddenly re

levant.
D. T ESTIMONY R EGARDING D R . C ALDWELL ’ S C ARE OF A NOTHER S ET OF T WINS
At tri al, Mrs . Du rbi n at tem pte d to tes tif y r ega rding another s et of twins that Dr.

Caldwell delivered after the delivery of her twins. She stated that Dr. Caldwell had a conversation with her co ncerning that delivery. At that point, Dr. Caldwell objected to the testimony. T he trial cour t responded

to the objection by stating that the appellants needed t o lay the foundation as to the relevance of the other set of twins to the issues at trial. Mrs. Durbin agai n te stified that she had a conversationwith Dr. Caldwell, and he told her that hehad delivered a set of twins who lived. Dr. Caldwell objected agai

n. The appell

ants’ attorney, Ms. Fernandez, responded that she was try ing to lay a foundation for a later action. She then stated that she would move directly to that action.
The appellants

now argue that the trial court should have allowed Mrs. Durbin’s testimony regarding the other set of tw

ins. The trial court gave appellants the opportunity to lay a foundation in order to

bring in the testimony, but appellants chose not to do so. Appellants clearly did not make an offer of p roof regardin g this testimony

and moved on with the

ir direct examinat

ion of Mrs. Durbin. Relief shall not be granted “to a p arty responsible for an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). Clearly, the appellants were given ample opportunity by the trial court to introduce the testimony . Because they did not attempt to lay

a foundation, the

testimony wa

s not relevant.
E. P ECUNIARY V ALUE OF THE L IVES OF THE T WINS The appellants argue that the trial court erred when it did not allow them to enter evidence of their earni ngs history, present earnings, future earnings a nd future education of the appellants, as wellas their pl ans, hopes and dreams f or the twin s. The appel lants stat e in their ar gu ment to th is court that such evidence “has historically formed the basis for a calculation of the pecuniary value of the life of a minor . . . .” They cite no authority for this proposition. The c ases concerning pecuniary value of the life of a minor state that the pecuniary value should “be me asured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex and physical and mental characteristics of

the child.” Strother v. Lane , 554 S.W.2d 631, 636 (Tenn. Ct. App. 1976); Crowe v. Provost

, 52 Tenn. App. 397, 417, 374 S.W.2d 645, 654 (Tenn . Ct. App. 1963) (em

phasis added). The trial court’s ruling excluding the parents’ earnings past, present and future, as well as their hopes, dreams and plans for the twins, was proper.-11- F. A PPELLEES ’ M OTIONS IN L IMINE
1. E MOTIONAL D ISTRESS , M ENTAL AND E MOTIONAL D AMAGES AND L OSS OF C ONSORTIUM Appellants,Julie and James Durbin, sued the appellees for negligent infliction of emotional distress and loss of consortium. James Durbin, alone, also sued for ment al and emotional di

stress; andJulie Durbin, alone, sued for personal injury and the resulting pain and suffering and mental and emotional distress

. Before trial, appellees each filed various motions in limine. The Hospital filed a motion in limine “to exclude any and all evidence of the plaintiffs’ alleged emotional injuries.” Dr. Caldwell filed a motion in limine “to exclude Plaintiffs’ allegations of intentional and/or negligent infliction of emotional distress and all related evidence . . . .” The trial court then filed an order on April 20, 2000 granting Dr. Caldwell’s motion. On April 24, 2000, the trial court granted the Hospital’s mot ion following an offer of proof. In addition, at the end of the appellants’ proof, the Hos pita l moved for a directed

verdict as to the claims for negligent infliction of emotional distress. The trial court dismissed these cla

ims with prejudice on the g

rounds that the app

ellants had faile

d to establish a cause of action by competent proof.
Our supreme court set out the standards for proof of negligent infl

iction of emotional

distress in Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996). One of the requirements to prove this cause of action is the presentation of expert medical or scientific proof to support the injury claim. Camper, 915 S.W.2d at 446. The appellants did not present any expert medical or scientific proo f of their emotional injury at an

y time befor

e or during the tr

ial. Therefore , since the plaintiffs had not designated

any experts to verify their claims of emotional distress , the trial judge acted properly

in granting the motions in limine and in dismissing the claims against the hospital at the trial.
The appellants argue

Julie Durbin’s emotional distress claim does not require expert medical or scientific proof, because she alleged she

was physically injured. The court in Camper specifically stated, “we conclude

that the [physical

manifestation or i

njury] rule sh

all no longer be

used to test the validity o

f a prima facie

case of negligent infliction of emotional distress.” Id. Therefore, the court abolished the physical injury rule as a limiting factor in a claim for emotional distress, and we do n ot think the pr esence of a phy sical injury

dispenses with the r

equirement of expe

rt proof to establish the clai

m. The appellees also

filed motions in limine

to exclude appella

nts’ evidence fo

r their loss of consortiumclaims. The trial cour t gran ted the motions and based its decision on the belief that Jordan v. Baptist Three Rivers Hospital , 984 S.W.2d 593 (Tenn. 1999), should not be applied retroactively.
The Jordan case allowed fo r consortium dama

ges in connecti

on with a wrongf

ul death claim. Immediately

after Jordan , this court declined to ret roac tiv ely a ppl y Jordan absent the suprem e-12-

court’s intent to do so. E.g., McCracken v. City of Millington , No. 02A01-9707-CV-00165, 1999 WL 142391, *14-17 (T enn. Ct . App. 1999); Hill v. City of Germantown, No. 02A01-9803-CV00078, 1999 WL 142386, *8-11 (Tenn. Ct. App. 1999). The supreme court la ter decided that Jordan should indeed be applied retroactively. Hill v. City of Germantown , 31 S.W.3d 234 (Tenn. 2000). The supreme court stated: We hold that Jordan applies retroac tively to: (1) all cases tried or retried aft erthe date of our decision in Jordan ; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Hill , 31 S.W.3d at 240.
Th is trial was held in April of 2000. Therefore, the Jordan decision should have been appliedin this cas e. The trial court erred i n not applying Jordan in its decision. However, we think this error was harml

ess. This issue go

es to the question of damages, and the jury was instructed not to consider damage issues until finding one or bothof the appellees liable. Because the jury found for the appellees, the issue of damages would not have been considered in the deliberations.

2. P HOTOGRAPH S OF A PPELLANTS H OLDING THE T WINS
One of the mot ions in l imine filed by the appellees concerned the admissibility of three photographs of the twins andthe appellants after the twins were delivered. After arguments on the issue the trial court found that the “prejudicial impact of the photographs outweigh[ed] the probative value . . . .” The trial court based this ruling on Tennessee Rules of Evidence Rule 403.
In a recent case c

oncerning the a

dmissibility of

evidence under

Rule 403, th

is court has stated:
The admissibilit y of evide nce is a matter which rests within the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993); State v. Williams , 657 S.W.2d 405, 411-12 (Tenn.1983); Murray v. State , 214 Tenn. 51, 377 S.W.2d 918, 920 (1964); Wright v. Quillen , 909 S.W.2d 804, 809 (Tenn.App.1995); State v. Rhoden , 739 S.W.2d 6, 13 (Tenn.Crim.App .1987). This Courtwill not interfere with the trial court's exercise of it s discretion absent clear abuse. Williams , 657 S.W.2d at 411-12 ; M urr ay v. State , 377 S.W.2d at 920; Rhoden , 739 S.W.2d at 13. Roy v. Diamond , 16 S.W.3d 783, 791 (Tenn. Ct. App. 1999).
We do not find that the trial court abused its discretion in excluding the photographs. The appellants

wished to enter the

photographs to pr

ove that the twins di

e d at different

times. The appellants also wished to enter thephotographs to counteract the appellees characterization of the twins as “fetuses.” They wanted to show that the twins were “small, human babies.” The appellants also argue that the pho tographs show that the appellants were already involved in the lives of the twins.-13-

Whilethe photographs are relevant as to the condition of the twin s, we believe that the appellants’ expert witness testimony was more reliable as to the difference in timesof death of the twins. We do not believe tha t a lay pers

on could make a conclusion

as to the time difference from viewing the phot ographs. Th e appellants’ expert witness did not even rely on the photographs as basis for his testimony. We therefore believe that

the probative value of the photographs is limited andthe other evidenc

e presented by

the appellants’ expert

witness was more probative evidence on the same question. The use of the photographs for the other two statedreasons would clearly have an emotional impact on the jurors viewing the photographs.
Because the admission of

the photographs would be more prejudicial than probative, we find that the trial cour

t correctly

excluded the photog

raphs.
G. T RIAL C OURT ’ S C OMMENTS ON THE C HARGE
The appellants argue that the trial court made imper

missible comments when it was reading the jury instr

uctions to the jury

. The languag

e in question is as f

ollows:
As nurses, the employer, Sumner Regional Medical Center is responsible for the nurses’ neglig

ence. In ad

dition, you ma

y also conc

lude that fault with

or against Sumner Regional Medical Center if you find that Sumner Regional Medical Center was at fault sepa

rate and apart f

rom the fault of the

nurses.

* * *
Ladies and Gentleman [sic], what Mr. Trentham was properly pointing out in reading the jury charge, one of the charges I read was with regar ds to– I won’t repeat the deleted term but it’s actually an agency relationship. And what

I read was that Sumner County– or Regional Medical Center, a

s an employe

r, is responsible for the employee’s negligence. What I should have done is stop right there because in this case there is no independent evid ence that the Hos

pital did any negli gence of its own apart from the

actions of the ag

ents, i.e., the nur

ses. But, disregard

that next sentence that I read which said, “In addition, y ou may also attribute fault directly against the Hospital if y our find that the Hospital was at fault apart and separ

ate from the fa ult of the n urses.” The Hospital d id nothin g. There’s no evidence the Hospital did anything so just simply disregard that second sentence of that charge.
Do y’all understand? Okay, there’s one no-hea d shaking. All right. We’ve been here for two weeks listening to proof. All the proof against the Hospital is that the nurses did things w

rong. If y

ou give it its b

est shot, if you give it – there’s no evidenceindependent of the nurses that the Hospital itself did anything wrong. The instructions I read

had a s enten ce in i t that said, “In addition, you could consider the-14-

independent

negligence

of the Hospital.” And, I’m telling you the Hospital didn’t do a nything independent of th

eir nurses. I

f you find the

nurses did someth

ing wrong , then there are other jury instructions where it’s a vica rious liability they would be responsible

for the negligence of their nurses. But, disregard the instruction that said tha t th e Ho spi tal its elfwas negl igen t. O kay?
The appellant argues that this excerpt und uly influen ced the jury in their deliberations with five statements that the

Hospital was not ne

gligent.
We disa gree. The trial court was merely correcting a mistake made in r eading the instructions to the jury. T he trial court ad

equately e

xplained the diffe

rence between

the Hospita

l being negligent and the Hospital being held liable because of the nurses, neglig ence. We believethat the jury could easily understand the judg e’s comments. In addition, there was no evidence at trial of the Hospital’s negligence, independent of the nurses. Therefore, the trial court

did not make any impermissible comments on a question presented to the jury.
In Grandstaff v. Hawks , 36 S.W.3d 482 (Tenn. C t. App. 2000), we st

ated “we should

not set aside a jury’s verdict because of an erroneo us instruction unless it affirmatively appears that the erroneous instruction actually misled the jury. Id. at 49 7 ( citing Carney v. Coca-Cola Bottling Works , 856 S.W.2d 147, 150 (Tenn. Ct. App. 1993) and Helms v. Wea ver , 770 S.W.2 d 552, 553 (Tenn. Ct. App. 1989)). We do not bel iev e th at t he t ria l co urt ’s m ist ake m isl ed t he j ury. The trial court made every effort to clearly explain the instruction.
H. J URY C HARGE
The appellants argue

on appeal that the trial court erred on several occasions when charging the jury. For a judgment to be overturned on appeal based on the jury instructions, the instruction must be shown to have more likely than not affected the outcome. Tenn. R. App. P. 36(b). When reviewed on appeal, jury instructions are considered as a whole when determining whether the trial court erred in the instructions. Estate of Elam v. Oakley , 738 S.W.2d 169, 174 (Tenn. 1987). Even if a portion of the jury instruction is objectionable, if the trial court explains it and corrects it in other parts of the jury charge so that the instructions as a whole are n ot misleading, then the jury instructions will not be considered prejudicial. Id.
1. C OMPARATIVE F AULT
The appellants first argue that the trial court erred i n its instruction of Tennessee Pattern Instructions 3- Civil 3.50 (here in after “T.P .I. 3-Civil”) This instruction is the instruction on comparative fault. The appel lants argue tha

t the trial court e

rred when it did no

t substitute

the word “defendants”

for the word “party.” The appellants argue that the instruction indicated that the appellants themse

lves were to blame

for some part of th

e fault.-15-

In other parts

of the instructions, the trial court clearly stated that the jury was to consider the liability of only the a

ppellees “In deciding this case, y ou must determine the fault of each of the de fendants.” The instructions a s a whole are not m

isleading so that

the jury wou

ld consider an y p otential fault of the appe llants. In add

ition, the verdict f

orm did not contain a

space for the fa

ult of the appellants. Therefore, t his m istake in the jury instruction is not a basis for overturning the verdict. See Estate of Elam , 738 S.W.2d at 174.
2. D UTY TO F OLLOW I NSTRUCTIONS
The appellants then argue that the trial court erred in its instruction of T .P.I. 3- Civil 6.21 which concerns a patient ’s duty to follow instructions. The appellants argue that there was error because there was no evid

ence presente

d by the appe

llees that Mrs. Dur

bin’s failu

re to follo w instructions caused her injury. The appellants argue that the inclusion of this instruction implied that the appellants we

re at fault.
Once again, the trial co urt m ade clear in other parts of the jury instruction that the fault of only the appellees wa

s to be considered. When looking at the jury instructions as a whole, the trial court did not mislead the jury into considering the fault of the appellants.
3. A DVERSE I NFERENCE
The appellants also argue that the trial court erred in denying their reques t for a jury instruction on adverse inference because of the Hospital’s failure to produce the elec tronic fetal monitoring strip generated on J uly 20, 19 95. After an electronic fetal monitoring strip has been generated on a patient the Hospital procedure testified to at trial is that the strip is reviewed by the attending physician a

nd then placed in a

banker’s box with ot

her strips gene

rated on other pa

tients. In this case, the Hospita

l was unable

to locate the strip

generated on Jul

y 20, 1995. Th

e appellants argued at trial that the trial court should have instructed the jury that they could infer that the monitoring strip w

ould show that both tw

ins were in distre

ss. The appellants submitted a modified version of T.P.I. 3- Civil 2.04 Absence of Witness or Evidence that specifically addressed the missing July 20, 1995 fetal monitor ing st rip. This instruction allows the jury to determine that a

party’s fa ilure to supply

certain pieces

of evidence ca

st a negative refl

ection on their

potential liability. The trial court denied both the modified instruction andthe pattern instruction. The reasons as st ated in the recor

d are because July

22 was the pivotal day not J uly 20 . T he trial judge went on to state that he did not believe, “the absence of the monitoring strip rises to the level that a Jury can infer wrongdoing or there should be a presumption.”
This court recently addressed this issue in Richardson v. Miller , 44 S.W.3d 1 (Tenn. Ct. App. 2000). In Richardson , a prenatal patient was put on an infusion pump to deliver

medication to stop her contractions. The medicine delivered by the infusion pump caused the patient to suffer a heart attack. The patient later sued both the docto

r and the supplier

of the pump alleg

in g that th eir negligence

had caused her heart attack. Before being put on the infusion pump, the supplier of the-16-

pump sent a nurse to

assess the patient’s condition by reviewing medical records and spea king with the patient. This nurse was to determine whether the patient met the preconditions for the use of the pump. After this session

, the supplier’s nu

rse instructed bo

th the patient and n

ursing staff on t

he use of the pump. The missing document in Richardson , was the nursing assessment form in which the supplier’s nurse should

have recorded her findings. The document was not produced and all

egedly had been los t in tra nsi t fr om t he n urs e to the com pan y.
In Richardson , this court stated, “In Tennessee,as in other jurisdic tions, a party’s f

ailure to produc e a documentcapable of shedding light on a material contested issue can give rise to a perm issive inference that the missing document would have been unfavorable to the party possessing it.” Richardson v. Miller , 44 S.W.3d 1, 27-28 (T enn. Ct . A pp. 2000) (citing Tennessee Law of Evidence § 401.9, at 99). Cle arly, the nu

rses assessment o

f the patient’s me

dical condition “s

hed[s] light on a material contested issue” in Richardson

. However, the missing fetal monitor strip is

not as closely

connected with the material issues in this case. As the tr

ial court stated th

e important date a

ccording to the

parties in this cas

e was July 22 not July 20. The appellants definitely thought this was the case. Their Complaint re ferences only the events on July 22. Although it is clear that the fetal monitoring strips demonstrate the well-being of the twins, their we

ll-being is not at i

ssue until July

22. For this reason, the trial court’s denial of the negative inf

erence instruc

tion is not a ground

for reversal.
4. T WINS ’ L IVING E XPENSES
Fin all y, the appel la nts argue that the trial court erred in instructing the jury with T.P.I . 3- Civil 14.30 to deduct

the twins’ living expenses had the twins lived from any damages awarded. The argument is based on the fac

t that there was no

proof of the proje

cted li ving expenses. The same argument was made in Wallace v. Couch , 642 S.W.2d 141 (Tenn. 1982), the case that established the rule that living e

xpenses should

be taken into account

in arriving at the pecuniary value of the decedent’s life. The court refused to reverse the jury verdict despite the lack of evidence of living expenses in the record. The court recognized that in genera l th e ju ry m ust act only u pon what is presented to them

at the trial, but he

ld that in exceptional circumstances the jury could draw upon its own experience and knowledge.
We do not wish to

minimize the obliga

tion to establish fa

cts with competent proof, but in the circumstances of this case, we do not think the court erred in charging the jury on the rule laid down in Wallace v. Couch.
V. D ISCRETI

ONARY C OSTS
The trial court

awarded Dr. Caldwell $7,878.00 and the Hospital $8,444.00 in discretionary cos ts. Tennessee Rules of Civil Procedure provide for a trial court to award “reasonab le an d necessary court reporter expenses for depo siti ons or trials [and] reasonable and necessary expert-17-

witness fees for deposit

ions or trials . . . .”

Tenn. R. Civ. P. 54.04(2). The awarding of discretionary costs is in the trial court’ s discretion, and t he trial court’s d

ecision will

not be overturned absent an abuse of discretion. Oster, Div. of Sunbeam Corp. v. Yates , 845 S.W.2d 215, 217-18 (Tenn. 1992); Lock v. National Union Fire Ins. Co. of Pittsburgh, Pa , 809 S.W.2d 483, 490 (Tenn. 1991).
We f i nd no abuse of discretion in the trial court’s decision. Both appellees filed post-trial motions with accompanying affidavits outlining the costs they sought. Dr. Caldwell asked for a total of $11,681.31, and the Hospital asked for a total of $12,549.96. The trial court awarded less than the requested amounts. Therefore, this

issue is without meri

t.
We reverse in part and affirm in part the proceedings in the trial cour t. Tax the costs on appeal to the appellants, Julie Amanda Durbin and James M. Durbin.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.