IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 3, 2021 Session

DAVID JERNIGAN, AS NEXT OF KIN AND SURVIVING HUSBAND TO JANE ANN 

JERNIGAN, DECEASED v. ROBERT EVAN PAASCHE, M.D., ET AL.

Appeal from the Circuit Court for Putnam County

No. 2015-CV-214 Jonathan L. Young, Judge

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No. M2020-00673-COA-R3-CV

___________________________________

In this health care liability action, an initial jury trial resulted in a verdict for the 

defendant physicians. The plaintiff filed a motion for new trial, which the trial court 

granted. Prior to the second jury trial, the trial court determined that the trial should be 

bifurcated such that the first phase would address only the applicable standard of care and 

whether the defendants deviated therefrom, and the second phase would address 

causation. Following completion of the standard of care phase, the jury again ruled in 

favor of the defendants. The plaintiff filed a second motion for new trial, which the trial 

court denied. The plaintiff timely appealed. Discerning no reversible error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Joe Bednarz, Sr., and Joe Bednarz, Jr., Hendersonville, Tennessee, for the appellant, 

David Jernigan, as next of kin and surviving husband to Jane Ann Jernigan, deceased.

Daniel H. Rader, IV; Daniel H. Rader, III; and Lane Moore, Cookeville, Tennessee, for 

the appellee, Robert Evan Paasche, M.D.

Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, James F. Wojcik, 

M.D.

06/21/2021
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OPINION

I. Factual and Procedural Background

The plaintiff, David Jernigan, as surviving spouse of Jane Ann Jernigan 

(“Decedent”), filed a complaint on August 17, 2015, in the Putnam County Circuit Court 

(“trial court”), alleging wrongful death and health care liability claims against Dr. Robert 

Evan Paasche; Cumberland Medical Center, Inc. (“Cumberland”); Dr. James F. Wojcik; 

and Emergency Coverage Corporation. In his complaint, Mr. Jernigan alleged that Dr. 

Paasche had examined Decedent in the emergency room of the Cookeville Regional 

Medical Center on August 11, 2012, due to Decedent’s complaints of severe abdominal 

pain and nausea. Dr. Paasche ordered a computerized tomography (“CT”) scan and other 

tests. According to Mr. Jernigan, the CT scan revealed that Decedent suffered from a 

large paraesophageal hernia.1 Following the CT scan, Decedent was discharged with 

medication prescriptions and advised to follow up with her primary care physician within 

two to three days.

Mr. Jernigan stated in his complaint that Decedent was subsequently taken to the 

Cumberland emergency room on August 12, 2012, where she was seen by Dr. Wojcik. 

Dr. Wojcik purportedly noted that Decedent had been to the Cookeville Regional 

Medical Center emergency room the prior day for the same symptoms of abdominal pain 

and vomiting. Decedent was discharged after receiving fluids, medication, and Dr. 

Wojcik’s advice that she follow up with her primary care physician that week. 

According to Mr. Jernigan’s complaint, Decedent was again taken to the 

Cumberland emergency room, where she presented with severe pain and vomiting. A CT 

scan performed at that time revealed that Decedent had suffered a perforation with 

portions of her stomach having herniated into her chest. Mr. Jernigan averred that a

surgical procedure was performed on Decedent with the post-operative diagnosis listed as 

perforated posterior gastric ulcer with peritonitis. Decedent survived the surgery but, 

tragically, passed away in the recovery room. Mr. Jernigan further averred that 

Decedent’s cause of death was noted to be a perforated gastric ulcer.

Mr. Jernigan alleged that both Dr. Paasche and Dr. Wojcik were negligent for 

failing to properly diagnose Decedent’s condition, failing to obtain a surgical consult 

following their respective initial examinations of Decedent, and discharging her in an 

unstable condition. Mr. Jernigan also averred that Cumberland was similarly liable for 

the above reasons and for failing to provide reasonable care and treatment to Decedent. 

According to Mr. Jernigan, he believed Dr. Wojcik to be an employee of Emergency 

 

1 The medical experts who testified at trial generally described this condition as an opening in the 

diaphragm that would allow portions of the esophagus, the stomach, or other organs to enter the chest 

cavity.
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Coverage Corporation, and Mr. Jernigan therefore claimed that Dr. Wojcik’s negligence 

should be imputed to his employer. Mr. Jernigan sought damages for wrongful death and 

medical negligence in the amount of three million dollars. Mr. Jernigan also noted that 

his complaint had been refiled pursuant to the savings statute.

Dr. Paasche and Dr. Wojcik each filed respective answers denying liability. Dr. 

Wojcik additionally denied that he was an employee of Emergency Coverage 

Corporation. On August 21, 2017, Mr. Jernigan filed an amended complaint, containing 

additional negligence allegations primarily concerning Dr. Paasche. Both Dr. Paasche 

and Dr. Wojcik (collectively, “Defendants”) answered, with each respectively denying 

liability. The trial court granted summary judgment in favor of Cumberland and 

Emergency Coverage Corporation on September 28, 2017.

Although no transcript from the first trial appears in the appellate record, the 

parties concede and the pretrial hearing transcripts demonstrate that a jury trial was 

conducted by Judge Amy Hollars in December 2017, resulting in a verdict for Defendants 

that was subsequently set aside by Judge Hollars’s grant of Mr. Jernigan’s motion for 

new trial. On May 23, 2018, Judge Hollars entered an order transferring the matter to 

Judge Jonathan L. Young for further proceedings. 

Following the filing of numerous pretrial motions, the trial court conducted

hearings on those motions, during which Mr. Jernigan and Defendants presented 

substantial argument concerning alleged evidentiary problems during the first trial. As a 

result of those hearings, the trial court entered an order dated September 13, 2019, 

directing that the trial would be bifurcated. According to the trial court’s order, evidence 

of liability would be presented first, and “only if the jury returns a verdict finding one or 

both Defendants negligent, then the jury will hear issues regarding causation.” Mr. 

Jernigan filed a motion seeking reconsideration of the trial court’s ruling concerning 

bifurcation, arguing that such approach would be “impossible to effectively implement 

and [would] create more problems than it solves.” The trial court denied Mr. Jernigan’s 

motion by order dated February 4, 2020, directing that the trial would be bifurcated on 

the issues of standard of care and causation/damages. The trial court also denied Mr. 

Jernigan’s oral motion for an interlocutory appeal.

The trial court conducted a jury trial spanning five days concerning the issue of 

standard of care, beginning February 4, 2020, and ending February 10, 2020. The trial 

court entered a final order on February 13, 2020, incorporating the jury’s verdict in favor 

of Defendants. The jury explicitly found that neither doctor deviated from the recognized 

standard of acceptable professional practice in his care of Decedent.

On March 15, 2020, Mr. Jernigan filed a motion for new trial, which was opposed 

by both Dr. Paasche and Dr. Wojcik. Following a telephonic hearing, the trial court 
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entered an order on April 24, 2020, denying the motion for new trial and awarding 

discretionary costs to Defendants. Mr. Jernigan timely appealed.

II. Issues Presented

Mr. Jernigan presents the following issues for this Court’s review, which we have 

restated slightly:

1. Whether the trial court erred by bifurcating the trial between the 

issues of standard of care and causation.

2. Whether trial court erred by excluding Mr. Jernigan’s surgical and 

radiological experts from testifying during the standard of care phase 

of the trial.

3. Whether the trial court erred by declining to allow Mr. Jernigan to 

call rebuttal witnesses.

4. Whether the trial court erred by permitting blame-shifting.

Dr. Paasche raises the following additional issue:

5. Whether Mr. Jernigan waived the issue of “blame-shifting” because 

he failed to object to the alleged improper testimony at trial and 

failed to identify such testimony in his motion for new trial.

III. Standard of Review

With regard to bifurcation of issues, our Supreme Court has previously elucidated:

The decision whether or not to sever the issues for the jury must be left to 

the sound discretion of the trial judge, and the interests of justice will 

warrant a bifurcation of the issues in only the most exceptional cases and 

upon a strong showing of necessity. In making its decision the trial court 

should consider the possibility of juror confusion, the risk of prejudice to 

either party, and the needs of judicial efficiency. Above all, the issues at 

trial must not be bifurcated unless the issue to be tried is so distinct and 

separable from the others that a trial of it alone may be had without 

injustice. 

Ennix v. Clay, 703 S.W.2d 137, 139 (Tenn. 1986) (citing Gasoline Prods. Co. v. 

Champlin Refining Co., 283 U.S. 494, 500 (1931)).
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Concerning the applicable standard of review with regard to the trial court’s 

exclusion of an expert witness’s testimony, our Supreme Court has explained:

Decisions regarding the admissibility of evidence are discretionary, and, 

therefore, the appellate courts review these decisions using the “abuse of 

discretion” standard. Biscan v. Brown, 160 S.W.3d 462, 468 (Tenn. 2005); 

Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004). This 

standard applies to appellate review of decisions by a trial court when it is 

acting as a gatekeeper with regard to the admissibility of an expert 

witness’s opinion testimony. Accordingly, the appellate courts review 

decisions regarding the qualifications, admissibility, relevancy, and 

competency of expert testimony using the abuse of discretion standard.

Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005); 

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997). 

Davis v. McGuigan, 325 S.W.3d 149, 168-69 (Tenn. 2010). As this Court explained in In 

re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005): “A trial court will 

be found to have ‘abused its discretion’ only when it applies an incorrect legal standard, 

reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of 

the evidence, or employs reasoning that causes an injustice to the complaining party.” 

IV. Bifurcation of Issues

Mr. Jernigan asserts that the trial court erred by bifurcating the trial between the 

issues of standard of care and causation, arguing that these issues are so intertwined in a 

health care liability action that they cannot be separated without causing prejudice to the 

plaintiff. By contrast, Defendants contend that the trial court’s bifurcation ruling was 

within its discretion and resolved certain problems encountered in the case at bar by 

“focusing the standard of care question on what a reasonably prudent emergency 

department physician should have done with the information available to him.” Upon our 

review of this issue and the applicable law, we agree with Defendants.

Inasmuch as the decision of whether to bifurcate the issues to be heard by the jury 

is within the trial court’s discretion, such decision is reviewed pursuant to an abuse of 

discretion standard. See Ennix, 703 S.W.2d at 139. As our Supreme Court has 

explained:

The abuse of discretion standard of review envisions a less rigorous 

review of the lower court’s decision and a decreased likelihood that the 

decision will be reversed on appeal. It reflects an awareness that the 

decision being reviewed involved a choice among several acceptable 

alternatives. Thus, it does not permit reviewing courts to second-guess the 

court below, or to substitute their discretion for the lower court’s. The 
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abuse of discretion standard of review does not, however, immunize a 

lower court’s decision from any meaningful appellate scrutiny. 

Discretionary decisions must take the applicable law and the relevant 

facts into account. An abuse of discretion occurs when a court strays 

beyond the applicable legal standards or when it fails to properly consider 

the factors customarily used to guide the particular discretionary decision. 

A court abuses its discretion when it causes an injustice to the party 

challenging the decision by (1) applying an incorrect legal standard, (2) 

reaching an illogical or unreasonable decision, or (3) basing its decision on 

a clearly erroneous assessment of the evidence. 

To avoid result-oriented decisions or seemingly irreconcilable 

precedents, reviewing courts should review a lower court’s discretionary 

decision to determine (1) whether the factual basis for the decision is 

properly supported by evidence in the record, (2) whether the lower court 

properly identified and applied the most appropriate legal principles 

applicable to the decision, and (3) whether the lower court’s decision was 

within the range of acceptable alternative dispositions.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (internal citations omitted).

“[I]f the reviewing court determines that ‘reasonable minds can disagree with the 

propriety of the decision,’ the decision should be affirmed.” State v. McCaleb, 582 

S.W.3d 179, 186 (Tenn. 2019) (quoting State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 

2018)).

In the case at bar, following the grant of Mr. Jernigan’s motion for new trial, the 

parties filed numerous motions seeking to limit or exclude evidence concerning primarily 

the August 11, 2012 CT scan and how the radiologist’s report from that scan should have 

been interpreted and utilized by Defendants. The trial court conducted hearings 

regarding these motions on August 12, 2019, and September 5, 2019, during which the 

parties’ respective counsel argued copiously concerning whether certain experts should 

be allowed to testify and what parameters should be placed upon such testimony. 

Considerable debate occurred with regard to whether certain evidence was relevant to the 

standard of care or causation. After hearing these arguments, the trial court made the 

following observation:

So the only way I can think that we can do anything is maybe bifurcate the 

trial, and the first time we go and see if he violated the standard of care, 

send the jury out on that issue. If he didn’t violate the standard of care, 

then obviously we don’t even need to get to the causation part.
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Although the trial court continued to hear argument on the issue, the court 

subsequently entered an order on September 13, 2019, bifurcating the issues for trial. 

Following this ruling, Mr. Jernigan filed a motion seeking reconsideration of the ruling 

concerning bifurcation, and the trial court considered additional arguments with regard to 

this issue on January 10, 2020. The trial court denied Mr. Jernigan’s motion by order 

entered February 4, 2020, directing that the trial be bifurcated between the issues of 

standard of care and causation.2 

By reason of the unusual circumstances presented in this case, we find no abuse of 

discretion in the trial court’s order that these issues be bifurcated. These parties had 

previously participated in and completed one jury trial in this matter, which resulted in a 

defense verdict. Because the trial court’s subsequent order granting a new trial does not 

appear in the record, we do not have the benefit of knowing the court’s reasoning for 

such ruling. However, the parties allude in their appellate briefs to various evidentiary 

problems experienced during the first trial, which led the parties to file several pretrial 

motions prior to the second trial concerning expert witnesses and their proposed 

testimony. Although the trial court heard a substantial amount of argument concerning 

the evidentiary issues, no consensus was achieved regarding the parameters of the 

evidence to be introduced. As such, the trial court rendered the discretionary decision to 

allow the jury to address the standard of care issue initially and separately from the issue 

of causation in an apparent attempt to establish greater control of the evidence that would 

be introduced during each phase and presumably to avoid the problems that befell the 

first trial. 

We note that Mr. Jernigan cites no authority for his position that the issues of 

standard of care and causation “cannot be separated without doing extreme injustice.” 

Our research has likewise revealed no such authority. Based on the exceptional

circumstances presented in this case, we disagree with Mr. Jernigan’s contention.

Mr. Jernigan argues that “any inquiry into the standard of care necessarily requires 

an evaluation of the potential cause of a patient’s ailment and the consequences of not 

ruling out the most serious and potentially life threatening cause. Physicians are trained 

to use this method which is referred to as a differential diagnosis.” Assuming, arguendo, 

that these statements are correct, they do not support Mr. Jernigan’s position that the 

issues of standard of care and causation “cannot be separated without doing extreme 

injustice.” Instead, Mr. Jernigan has conflated the concepts of legal causation and the 

cause in fact of Decedent’s damages, see Cotten v. Wilson, 576 S.W.3d 626, 638 (Tenn. 

2019), with the medical cause of Decedent’s ailment.

 

2 During a subsequent hearing conducted on April 2, 2020, the trial court announced orally that 

bifurcation was necessary because the case was extraordinary in that one motion for new trial had already 

been granted, resulting in a retrial. Therefore, the trial court again confirmed its decision to bifurcate the 

trial.
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As our Supreme Court has explained:

Cause-in-fact, sometimes called actual cause, means “the injury or harm 

would not have occurred ‘but for’ the defendant’s negligent conduct.” Id. 

(quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). “The 

concept of ‘legal cause’ was formerly known as ‘proximate cause.’ It 

connotes a policy decision made by the judiciary to establish a boundary of 

legal liability and to deny liability for conduct that could otherwise be 

actionable.” Rains [v. Bend of the River], 124 S.W.3d [580,] 592 [(Tenn. 

Ct. App. 2003)] (citations omitted). “An actor’s negligent conduct is the 

legal cause of harm to another if the conduct is a substantial factor in 

bringing about the harm and there is no rule of law relieving the actor from 

liability because of the manner in which the actor’s negligence resulted in 

the harm.” Id.

Cotten, 576 S.W.3d at 638 (footnote omitted). Clearly, the legal concept presented by the 

causation element is a significantly different concept than the medical cause of 

Decedent’s illness and demise.

With regard to the proof necessary to prevail on a health care liability claim, our 

Supreme Court has explained in the context of what was then referred to as a medical 

malpractice claim:

We have previously observed the “subtle” distinction between 

medical malpractice and common law negligence recognizing that “medical 

malpractice is but a species of negligence and no rigid analytical line 

separates the two.” Gunter v. Lab. Corp. of America, 121 S.W.3d 636, 639 

(Tenn. 2003) (citations omitted). A negligence claim requires proof of “(1) 

a duty of care owed by the defendant to the plaintiff; (2) conduct by the 

defendant falling below the standard of care amounting to a breach of that 

duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal 

cause.” Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2005).

Medical malpractice actions are controlled by Tennessee Code 

Annotated section 29-26-115 (2000), which incorporates the common law 

elements of negligence. Gunter, 121 S.W.3d at 639. 

Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005). Tennessee Code Annotated § 

29-26-115 (2012) provides, in pertinent part:

(a) In a health care liability action, the claimant shall have the burden of 

proving by evidence as provided by subsection (b):
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(1) The recognized standard of acceptable professional practice in the 

profession and the specialty thereof, if any, that the defendant 

practices in the community in which the defendant practices or in a 

similar community at the time the alleged injury or wrongful action 

occurred;

(2) That the defendant acted with less than or failed to act with ordinary 

and reasonable care in accordance with such standard; and

(3) As a proximate result of the defendant’s negligent act or omission, 

the plaintiff suffered injuries which would not otherwise have 

occurred.

Of course, “expert proof is required to establish the recognized standard of acceptable 

professional practice in the profession.” Ellithorpe v. Weismark, 479 S.W.3d 818, 829 

(Tenn. 2015) (citing Tenn. Code Ann. § 29-26-115(b)).

Ergo, proof of the applicable standard of care in a medical defendant’s specialty 

and community and proof that the medical defendant failed to act in accordance with 

such standard, akin to duty and breach of duty, are distinct elements from causation, or 

showing that as “a proximate result of the defendant’s negligent act or omission, the 

plaintiff suffered injuries which would not otherwise have occurred.” See Tenn. Code 

Ann. § 29-26-115(a)(3). A health care liability plaintiff is required to satisfy each of 

these elements in order to prevail. See Tenn. Code Ann. § 29-26-115(a). We find these 

elements to be “distinct and separable.” See Ennix, 703 S.W.2d at 139. 

As our Supreme Court recognized in Ennix: “While a litigant has a constitutional 

right to have material controverted issues submitted to the jury, our constitution does not 

mandate that all such issues be submitted to the jury at the same time.” Id. Rather, in 

exceptional cases and upon a showing of necessity, the trial court has the discretion to 

bifurcate the issues before the jury, considering “the possibility of juror confusion, the 

risk of prejudice to either party, and the needs of judicial efficiency.” See id.; see also

Tenn. R. Civ. P. 42.02 (“The court for convenience or to avoid prejudice may in jury 

trials order a separate trial of any one or more claims, cross-claims, counterclaims, or 

third-party claims, or issues on which a jury trial has been waived by all parties.”). 

We determine that the matter before us presents an exceptional case, such that 

bifurcation of the health care liability elements was necessary. Moreover, it is clear that 

the trial court afforded appropriate attention to the above considerations listed in Ennix

when determining that bifurcation was warranted. Although we certainly do not suggest 

that bifurcation of these issues would be necessary or advisable in every health care 

liability case, we determine that the trial court did not abuse its discretion in bifurcating 
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the standard of care and causation issues here because of the unique procedural history 

presented in this matter and the apparent difficulty experienced by the parties during the 

original trial. We conclude that (1) the factual basis for the decision was properly 

supported by evidence in the record, (2) the lower court properly identified and applied 

the most appropriate legal principles applicable to the decision, and (3) the lower court’s 

decision was within the range of acceptable alternative dispositions. See Lee Med., Inc., 

312 S.W.3d at 524. We therefore affirm the trial court’s bifurcation ruling.

V. Evidentiary Issues

Having determined that bifurcation of the health care liability elements was 

appropriate, we now address Mr. Jernigan’s issues concerning the trial court’s evidentiary 

rulings. First, Mr. Jernigan contends that the trial court erred by excluding Mr. Jernigan’s 

surgical and radiological experts from testifying during the standard of care phase of the 

trial. Second, Mr. Jernigan argues that the trial court erred by declining to allow him to 

call these same witnesses as rebuttal witnesses during the first phase of the trial. Finally, 

Mr. Jernigan posits that the trial court erred by allowing Defendants to engage in blameshifting. We will consider each of these issues in turn.

A. Exclusion of Expert Witnesses Respecting Surgery and Radiology

Mr. Jernigan asserts that the trial court erred by excluding his expert witnesses 

regarding surgery and radiology from testifying during the standard of care phase of the 

trial. As Mr. Jernigan points out, this Court has previously explained that with regard to

an expert on standard of care, “there is no requirement that the expert witness be in the 

same specialty of the medical profession as the defendant; only that the expert be licensed 

to practice a specialty which makes his testimony relevant to the issues in the case.” 

Ledford v. Moskowitz, 742 S.W.2d 645, 647 (Tenn. Ct. App. 1987). Defendants contend 

that Mr. Jernigan’s emergency department experts offered a substantial amount of 

testimony concerning the appropriate standard of care, including extensive testimony 

regarding the significance of Decedent’s paraesophageal hernia, such that the additional 

testimony of Mr. Jernigan’s surgical and radiological experts would have been 

cumulative.

In its February 4, 2020 order, the trial court directed that “the parties will be 

limited to only offering expert testimony from emergency department physicians during 

the standard of care phase of the trial . . . .” The court specifically ruled that Mr. 

Jernigan’s experts, Dr. Scott Davis, Dr. James Maher, and Dr. Juan Olazagasti, would not 

be allowed to testify during the standard of care phase. The court further ordered that 

each party would be permitted to present testimony from two emergency department 

physician experts and that “allowing any more expert proof regarding alleged violation of 

standard of care by the Defendants during the standard of care phase of the trial would be 

cumulative and a waste of the jury’s time, in accordance with Tenn. R. Evid. 403.”
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We emphasize that decisions regarding the exclusion of evidence are reviewed 

under an abuse of discretion standard. See Davis, 325 S.W.3d at 168. Therefore, the 

decision “should be reviewed to determine: (1) whether the factual basis for the decision 

is supported by the evidence, (2) whether the trial court identified and applied the 

applicable legal principles, and (3) whether the trial court’s decision is within the range 

of acceptable alternatives.” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. 

App. 1999). 

Tennessee Rule of Evidence 401 defines relevant evidence as “evidence having 

any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Evidence that is otherwise relevant may be excluded, however, “if its 

probative value is substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

In excluding additional expert testimony concerning the standard of care, the trial 

court found that such evidence would be cumulative and would waste the jury’s time 

pursuant to Tennessee Rule of Evidence 403. Regarding this issue, we note that Mr. 

Jernigan provided testimony from two expert witnesses during the trial. The first such 

witness was Dr. Bruce Janiak, who practiced emergency medicine in Augusta, Georgia, 

and also taught emergency medicine at the Medical College of Georgia. Dr. Janiak 

testified that he had reviewed the medical records and deposition testimony in this matter, 

opining that Defendants had violated the applicable standard of care. With regard to Dr. 

Paasche, Dr. Janiak indicated that based upon the finding in the original CT scan of a 

paraesophageal hernia and the symptoms Decedent was exhibiting, a surgical consult was 

necessary to determine whether Decedent had an emergent issue that required surgical 

intervention. Dr. Janiak explained that a paraesophageal hernia could result in portions 

of the stomach and intestines “pushing up” through the diaphragm into the chest cavity 

and that if this problem was sufficiently severe, the patient would require immediate 

surgery. 

With respect to Dr. Wojcik, Dr. Janiak articulated that Dr. Wojcik should have 

been concerned because Decedent had been seen in the emergency room the previous day 

and was reporting continued pain and vomiting. Dr. Janiak elucidated that patients 

making repeated visits to the emergency room were statistically at higher medical risk 

than those appearing for a first visit. Dr. Janiak further stated that Dr. Wojcik violated 

the standard of care by discharging Decedent with knowledge that she had a 

paraesophageal hernia and with the noted history of her recent, recurring symptoms. 

Dr. Janiak generally opined that an emergency room physician should know the 

difference between a “typical” hiatal hernia and a paraesophageal hernia. Dr. Janiak 
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explained that the CT finding of “large paraesophageal hernia with left basilar area of 

compressive atelectasis” meant that there was a large part of the stomach that was in the 

chest cavity pressing on the lungs. Dr. Janiak agreed that a paraesophageal hernia was a 

type of hiatal hernia, albeit a “very large” one. Dr. Janiak testified that it was appropriate 

and within the applicable standard of care for an emergency department physician to rely 

on the CT scan report. He also stated, however, that emergency department physicians 

could not rely on the radiologist to make a diagnosis; rather, the physician had to read the 

radiology report and observe the patient’s clinical presentation in order to properly 

diagnose.

Dr. Bill Lunders also testified as an expert witness on behalf of Mr. Jernigan. Dr. 

Lunders testified that he lived in Smyrna, Tennessee, where he practiced emergency 

medicine. Having reviewed the medical records and depositions in this matter, Dr. 

Lunders also opined that Defendants had violated the applicable standard of care. Dr. 

Lunders stated that the finding of basilar atelectasis in conjunction with a paraesophageal 

hernia demonstrated that the hernia was so large that it was “pushing on the left lung 

causing it to have some collapse.” Dr. Lunders explained that a hernia could be either 

sliding or paraesophageal, and he elucidated that the report of a large paraesophageal

hernia was an abnormality. He further explained that the only treatment for a 

paraesophageal hernia was surgery. Dr. Lunders opined that with Decedent’s symptoms 

and the CT finding of a paraesophageal hernia, the standard of care required that Dr. 

Paasche seek a surgical consult.

With regard to Dr. Wojcik and the second emergency room visit, Dr. Lunders 

stated that when a patient complains of abdominal pain and returns to the emergency 

room for a second time, the emergency room physician should immediately assume that 

“something was missed.” Dr. Lunders indicated that due to Decedent’s symptoms, the 

results of her laboratory tests, and the earlier CT scan report showing a paraesophageal 

hernia, Dr. Wojcik also violated the standard of care by failing to obtain a surgical 

consult. Dr. Lunders further opined that if the paraesophageal hernia had been surgically 

repaired as it should have been, Decedent would not have died. Dr. Lunders 

acknowledged, however, that the emergency room physicians appropriately relied on the 

radiologist’s report from a CT scan of the abdomen. Dr. Lunders also acknowledged that 

an asymptomatic paraesophageal hernia could wait for surgery at a later date.

As this Court has previously explained concerning a trial court’s exclusion of 

evidence:

An erroneous exclusion of evidence requires reversal only if the 

evidence would have affected the outcome of the trial had it been admitted. 

Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987). 

Reviewing courts cannot make this determination without knowing what 

the excluded evidence would have been. Stacker v. Louisville & N. R.R. 
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Co., 106 Tenn. 450, 452, 61 S.W. 766 (1901); Davis v. Hall, 920 S.W.2d 

213, 218 (Tenn. Ct. App. 1995); State v. Pendergrass, 795 S.W.2d 150, 156 

(Tenn. Crim. App. 1989). Accordingly, the party challenging the exclusion 

of evidence must make an offer of proof to enable the reviewing court to 

determine whether the trial court’s exclusion of proffered evidence was 

reversible error. Tenn. R. Evid. 103(a)(2); State v. Goad, 707 S.W.2d 846, 

853 (Tenn. 1986); Harwell v. Walton, 820 S.W.2d 116, 118 (Tenn. Ct. App.

1991). Appellate courts will not consider issues relating to the exclusion of 

evidence when this tender of proof has not been made. Dickey v. McCord, 

63 S.W.3d 714, 723 (Tenn. Ct. App. 2001); Rutherford v. Rutherford, 971 

S.W.2d 955, 956 (Tenn. Ct. App. 1997); Shepherd v. Perkins Builders, 968 

S.W.2d 832, 833-34 (Tenn. Ct. App. 1997).

As stated, an offer of proof must contain the substance of the 

evidence and the specific evidentiary basis supporting the admission of the 

evidence. Tenn. R. Evid. 103(a)(2). These requirements may be satisfied 

by presenting the actual testimony, by stipulating to the content of the 

excluded evidence, or by presenting an oral or written summary of the 

excluded evidence. 

Hampton v. Braddy, 270 S.W.3d 61, 65 (Tenn. Ct. App. 2007) (quoting Thompson v. City 

of LaVergne, No. M2003-02924-COA-R3-CV, 2005 WL 3076887, at *9 (Tenn. Ct. App. 

Nov. 16, 2005), perm. app. denied (Tenn. Apr. 24, 2006)). “[T]he failure of [a party] to 

make an offer of proof constitutes a waiver of the right to challenge the exclusion of this 

testimony.” Id.

In the case at bar, Mr. Jernigan did make an offer of proof regarding the excluded 

testimony of his surgical and radiological experts, Drs. Davis, Olazagasti, and Maher, 

following the trial court’s denial of his request to allow these experts to testify as rebuttal 

witnesses during the first phase of the trial.3 We have, therefore, reviewed the offer of 

proof in order to determine whether the trial court’s exclusion of the proffered evidence 

constituted reversible error. See id. Following our thorough comparison of this 

testimony with the testimony provided at trial, as summarized above, we conclude that 

the trial court did not err in excluding the proffered evidence as cumulative. See Tenn. R. 

Evid. 403.

For example, Dr. Maher testified that he practiced as a surgeon in Virginia and 

taught as a professor of surgery at Virginia Commonwealth University. Following his 

review of the medical records and depositions in this matter, Dr. Maher opined that 

Decedent’s untreated paraesophageal hernia led to her stomach rupturing, which 

 

3 Mr. Jernigan presented Dr. Davis’s testimony via deposition, and the respective testimonies of Drs. 

Maher and Olazagasti were taken from the transcript of the first trial.
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ultimately caused her demise. Dr. Maher specifically stated that he was not rendering an 

opinion regarding the standard of care applicable to emergency department physicians, 

although he did relate that he was familiar with such standard. Dr. Maher discussed 

various types of hernias and, like Dr. Lunders, opined that a symptomatic paraesophageal 

hernia constituted an emergent condition requiring prompt surgical repair. Although Dr. 

Maher testified that he did not disagree with the radiologist’s report from the CT scan, he

opined that the CT scan showed fluid in the stomach indicating some level of gastric 

obstruction not listed in the findings.

Dr. Olazagasti testified that he practiced radiology in Virginia, and he indicated 

that he likewise was not offering an opinion regarding the standard of care applicable to 

emergency department physicians. Dr. Olazagasti acknowledged that although the CT 

scan report did not indicate the existence of an emergent situation, a physician needed to 

correlate that report with the patient’s history and clinical presentation to render a proper 

diagnosis. We note that Dr. Janiak testified similarly.

Dr. Davis testified that he was a surgeon who practiced in Atlanta. Dr. Davis also 

stated that he was not providing an opinion regarding the standard of care applicable to 

emergency department physicians. Dr. Davis testified that he did not know what the 

standard of care required of emergency department physicians tasked with reviewing CT 

scans. Dr. Davis acknowledged that if an emergency department physician said that such 

physician could rely on the radiologist’s report from the CT scan, Dr. Davis could not 

dispute that assertion.

Dr. Davis opined that although there was technically “nothing wrong” with the CT 

scan report, it did not “raise the level of concern needed” in this case. However, Dr. 

Davis testified that he would expect an emergency department physician to rely on such 

report, and if an obstruction or volvulus, explained to be a twisting of the stomach, were 

present, he would expect the report to reflect that. Dr. Davis’s primary criticism of 

Defendants’ actions in this matter, much like Dr. Janiak’s stated criticism, was that 

Defendants failed to correlate Decedent’s clinical presentation with the CT scan findings.

Based upon our review of the testimony presented at trial and the testimony 

contained in the offer of proof, we determine that the proffered testimony from Drs. 

Maher, Olazagasti, and Davis would have been cumulative to the testimony offered 

concerning the applicable standard of care. Although these witnesses generally testified 

concerning different types of hernias and the consequences of each, such evidence was 

already presented through Dr. Lunders’s testimony. Each of the three proffered witnesses 

opined that Defendants should have correlated the CT findings with Decedent’s clinical 

presentation and medical history to determine that a surgical consult was needed, a 

position advanced by both Dr. Lunders and Dr. Janiak. Importantly, none of the 

testimony contained in the offer of proof provided evidence concerning the standard of 

care applicable to emergency department physicians, because each respective witness 
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declined to offer such opinion. We reiterate that “[a]n erroneous exclusion of evidence 

requires reversal only if the evidence would have affected the outcome of the trial had it 

been admitted.” Hampton, 270 S.W.3d at 65. Upon careful review, we conclude that the 

proffered evidence would not have affected the outcome of the trial had it been admitted. 

On appeal, Mr. Jernigan also argues that he should have been allowed to present 

these witnesses as rebuttal witnesses in order to rebut points made during the testimony 

of Defendants’ expert witnesses during the first phase of the trial. Mr. Jernigan contends 

that Defendants were allowed to provide testimony that the radiologist “was a very good 

radiologist” and that “if there was a volvulus or obstruction he would have said so.” Mr. 

Jernigan further contends that Defendants’ experts were allowed to “misle[a]d the jury 

into believing that this was a common problem in the emergency room and no reason for 

concern,” and he argues that “the jury needed to hear what was seen on the CT scan,” 

which could purportedly only be explained by the experts in surgery and radiology. We 

disagree with Mr. Jernigan’s postulate.

As Defendants point out, rebuttal evidence is intended to “explain or controvert 

evidence produced by an adverse party.” Godbee v. Dimick, 213 S.W.3d 865, 877 (Tenn. 

Ct. App. 2006). Having reviewed the proffered rebuttal evidence, we note that this 

testimony did not controvert testimony that the radiologist report was accurate or that a 

volvulus or obstruction likely would have been noted. In fact, Mr. Jernigan’s proffered

rebuttal experts essentially agreed with these points. As stated previously, Mr. Jernigan’s 

experts who did testify were allowed to provide their opinions that Decedent’s condition 

should have been recognized as emergent, similar to the opinions of Mr. Jernigan’s 

rebuttal experts. Moreover, Dr. Janiak and Dr. Lunders each respectively testified 

concerning how the CT scan should have been considered and interpreted by the 

emergency department physicians. In addition, Dr. Lunders specifically testified that the 

report of a large paraesophageal hernia was an abnormality.

Again, we conclude that because the proffered evidence would not have affected 

the outcome of the trial had it been admitted, the trial court did not err in excluding it. 

See Hampton, 270 S.W.3d at 65. Furthermore, with regard to Mr. Jernigan’s contention 

that Defendants were improperly allowed to present testimony that purportedly touched 

on the causation issue during the first phase of the trial, we note that Mr. Jernigan’s 

counsel failed to contemporaneously object to the testimony during trial and thus has 

waived the ability to do so on appeal. See Goss v. Hutchins, 751 S.W.2d 821, 827 (Tenn. 

1988) (citing Layne v. Speight, 529 S.W.20 209 (Tenn. 1975)). We therefore affirm the 

trial court’s evidentiary rulings.

B. Blame-shifting

Finally, Mr. Jernigan posits that the trial court erred by allowing Defendants to 

present certain testimony in an attempt to shift blame for their actions to Dr. Josue 
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Montanez, the radiologist who performed the CT scan on Decedent. Mr. Jernigan 

contends that by allowing testimony that an emergency room physician had a right to rely 

on a radiologist to properly read the CT scan or to rely on the radiologist’s report, the trial 

court allowed the Defendants to shift the blame to Dr. Montanez, who was not a 

defendant in this action. Mr. Jernigan asserts that such evidence should have been 

excluded, pursuant to Tennessee Rule of Evidence 403, as irrelevant and unfairly 

prejudicial.

As a threshold matter, Dr. Paasche asserts that Mr. Jernigan has waived this issue

because he failed to object to the alleged improper testimony at trial and failed to identify 

such testimony in his motion for new trial. We agree that Mr. Jernigan failed to 

contemporaneously object to the testimony during trial and accordingly has waived the 

ability to do so on appeal. See Goss, 751 S.W.2d at 827. We also determine that the

evidence that Mr. Jernigan now seeks to exclude was provided in part by his own experts. 

For example, Dr. Janiak testified that it was appropriate and within the applicable 

standard of care for an emergency department physician to rely on the CT scan report. 

His criticism of Defendants was that emergency department physicians could not rely on 

the radiologist to make a diagnosis; rather, the physician had to read the radiology report 

and look at the patient’s clinical presentation in order to properly diagnose a patient. Dr. 

Lunders’s testimony was substantially similar. As such, we determine Mr. Jernigan’s 

issue in this regard to be waived because the testimony that he sought to exclude was 

provided in part by his own experts without his objection. See Tenn. R. App. P. 36 

(“Nothing in this rule shall be construed as requiring relief be granted to a party 

responsible for an error or who failed to take whatever action was reasonably available to 

prevent or nullify the harmful effect of an error.”).

Moreover, with regard to the concept of blame-shifting, we note that neither Dr. 

Paasche nor Dr. Wojcik attempted to shift the blame to Dr. Montanez by presenting proof 

that the CT report was inaccurate or that Dr. Montanez was negligent in some manner. In 

fact, Dr. Sullivan Smith, one of Dr. Paasche’s expert witnesses, testified that he worked 

with Dr. Montanez, and he characterized Dr. Montanez as “very good” and “thorough.” 

Likewise, Dr. Paasche testified that Dr. Montanez was “a very thorough radiologist.” In 

addition, Dr. Paasche specifically stated that he was not relying on Dr. Montanez to do 

Dr. Paasche’s job of diagnosing Decedent’s condition. We determine Mr. Jernigan’s 

arguments regarding blame-shifting to be unavailing.
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VI. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in all respects. 

Costs on appeal are assessed to the appellant, David Jernigan, as next of kin and 

surviving husband to Jane Ann Jernigan, deceased. This case is remanded to the trial 

court for enforcement of the judgment and collection of costs assessed below.

s/Thomas R. Frierson, II

_________________________________

THOMAS R. FRIERSON, II, JUDGE