# FILED

September 6, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

DOUGLAS E. SAMUELSON, ) as the Na tural Fa ther and ) Personal Represe ntative of ) KEVIN L. SAMUELSON, ) ) Plaintiff /Appella nt, )

) Davidson C ircuit ) No. 89C- 2581 VS. ) ) Appeal N o. ) 01-A-01- 9602-CV- 00060 CECIL E. McMURTRY, M.D., ) WILLIAM A. HOLLAND, JR., M.D., ) H.C.A. HEALTH SERVICES OF ) TENNESSEE, INC., d/b/a DONELSON ) HOSPITAL EMERGICARE, INC., ) ) Defenda nts, ) ) and ) ) MARK S . TOTTY, Individually a nd ) d/b/a MARK S. TOTTY, D.C., P.C., ) ) Defendant/Appellee. )



## DISSEN TING OPIN ION

This appeal inv olves one of the central principles of our com parative fault

s ystem - that all

persons invo lved in an oc currenc e giving ris e to injur y o r damages should have their rights and liabilities determin ed in oneaction. Douglas Samuelson

perfect ed this appeal sol ely to obtai n appellate review of the summary dismissal of his malprac tice cla im against

one of several defendant s on the day of trial. Rather t

han decidin g this question, the majority has decided that the jury’s verdictwith rega

rd to the r emaining pa

rties some

how forecloses Mr. Samuelso n from ever obtai n ing relief

from the defendant

who was r

emoved fr

om the cas e even befor

e the tria l started. I cannot a

gree wit h this decis ion.

I.-2- KevinSamuelso n died from an aggressive, undiagnosed c ase of pneumonia

on August 2, 1988. His fath er, Dou glas E. Samuelson , brought a wrongful dea th acti on against D rs. Cec il E. Mc Murtry and William A . Hollan d, Jr., physicians who treated his son during the w eeks befo re his death, H .C.A. Health S ervices o f Tennessee, Inc., and Dr. Mark S. Totty, a chiropractor who treated his son the day before he died. The compl aint alleg ed that Dr s. McMur try and Hol land had misdiagnosed Kevin Samuelson’s pneumonia, that an employee of a hospital owned by H.C. A. He alth Ser vices had w

rongfully r

efused to t

r eat Kevi n Samuelson , and that D r. Tott y had negligently failed torefer K evin Samuelson to a physici an for treatm ent.

Dr. Totty filed a motion fo r summar y judgment in

June 1992 supporte d by his own aff

idavit in w hich he ass erted tha t h e had “a cted with

ordinary a

nd reasonable care in accord ance wit h the standa

rds of the c hiroprac tic profe ssion”

an d that he “c onducted no ne gligent ac t or omissio n which w as the prox im at e result of Mr. Samuelson’s death.” Mr. Samuelson opposed the motion wi th the deposition

of Dr. Jack R. Uhrig, a

physician l icensed to practice in Missouri, and the affidavit of Dr. Robert E . Cunningha m, a chir opractor licensed t

o practic e in Geor gia. O n August 25, 1992, the trial court entered an order finding that Dr. Totty was not en

titled to a summary judgment on t

he negligen ce issue but that he

was entitled toa summar

y judgment on the issue of proximate

cause bec ause the undisputed facts demonstrated that his con duct did not c ause Kev in Samuelson’s death.

Mr. Samuelson requested the trial court to reconside r its deci sion based on (1) add itional af

fidavits f rom Drs. Uhrig and

Cunningham, (2) a new affidavi t from Dr. G erald Do nowitz, a Virgini a physician sp eci alizing in i nfectious diseases, and (3) Dr. Totty’s deposition. Dr. Donowitz stated in his affidavit that KevinSamuelso n’s conditio n was “r eversible within app roximately 6 to 12 hours of his death. ” The tr

ial court a

dhered to its origina

l decision b ased on its conclusion

that the e vidence w as undispute d that Kev in Samuel son had informed Dr. Totty that he was already under the c are of a phys ician.1 Tenn. Code Ann. § 29-26-115( b) provides that a licensed professional cannot give an

expert opinion in a medical malpractice action unless he or she “ was licensed to practice in the state or a contiguous bordering state . . . during the year preced ing the da te that the alleged injury or wrongful act occurred.” -3- The tr ial cou rt certi fied its or der grant ing Dr. Totty’s su mmary judg ment
as a final or

der, and Mr. Sa muelson app ealed to this court. On September 8, 1 993,

we reversed the summary jud gment on the grounds that Dr. Cunningham’s affid avits mad e out a prima facie case of negligence and that Dr. D onowitz’s affidavi t create d a mater

ial fact ual issue w ith regard to cau sation. Samuelsonv. McMurtry, App. No

. 01-A-01- 9301-CV- 00023, slipop. at 10, 11 (Tenn. Ct. App. Sept. 8, 1993) ( No Tenn. R. App. P. 11 appl ication fi led). D r. Tott y did not challenge Dr. Cunningham’s expert qualifications at this stage o f the proceedi ng.

Once the case was rem anded, Dr. T otty set o ut to undermine Dr. Cunningh am ’s credibility and qualifications to testify as an expert. In October 1994, the case was set f or trial o n April 17, 199 5. On Marc h 1, 1995, approxima

tely one year a

fter Dr . Cun ningham’s deposition, Mr. Samuelso n served int errogato ries on Dr. T otty seekingto discover whether Dr. T otty intende d to challenge Dr. Cu nningham’s qualifica tions. In response, Dr. Totty fil ed a motion in limine on March 28, 1995, seeking to prevent Dr. Cunningham from test ifying because he did not meet the practice requireme nts in Tenn. Code Ann. § 29-26- 115(b) (1980). 1 The tria

l court hea

rd Dr. Totty’s motion on March 3 1, 1995 but deferred acti ng on it u ntil the d ay of trial.
The trial court took up Dr. Totty’s motion in lim ine again on the morning of trial and decide d that Dr. Cunningham could not tes tify as an expert be cause he did not meet th e requirements of Tenn. C ode Ann. § 29-26-115( b) and bec ause his opinionwould not ma

terially assist the

trier-o f-fact . Dr. Totty threatened to seek sanctions against Mr. Samuelso n if he re quired him to remain in the case after th e trial c o urt denied Mr. Sam uelson’s mo tions to wa

ive the re quirement s of Tenn. C ode Ann. § 29-26-115(b) and for a continuance. Realizing the impac t of it s ruling on the allocation of fault among the parties , the t rial cour t requeste d the parties to consider severi ng the claim s against D r. Tott y from thos e against t

he other def endants.2 The trial noted in doing so that it was “cognizant of the Court of Appeals’ ruling where

they relied heavily upon Dr. Cunningham’s affidavit.”

3 This should not be surprising. Mr. Samuelson certai nly was not going to a ttempt to apportion fault to

a party who had been dismissed from the case over his objection. None of the remaining defendants could argue that Dr. Totty had caused or contributed to Kevin Samuelson’s death because th

ey had not include d the appr opriate cross-claims in their original answers and hadnot amended their answers to lay off part or all of the fau lt on Dr. Totty as permitted by Tenn. Code Ann. § 20-1-119 (1994). -4- After the parties w ould not agre e to sever the claim s, Dr. Totty move d to “reopen” his June17, 1992 mot ion for sum

mary judgm

ent or to dismiss the claims against him pursuan

t to his affir

mative de fense tha

t Mr. Sa muelson had

failed to state a claim upo n which reli ef could be granted. M r. Sam uelson oppose d both motions by pointin g out that they came lon g after t he deadline

for filin g dispositive

motions and t

hat he inte nded to attempt to provehis claims against Dr. Totty without D r. Cunning ham’s tes timon y. O ver Mr. Samuelso n’s object ions, the trial court seve

red his cla

ims against

Dr. Totty and then “reconsi dered” a nd granted Dr. T otty’s moti on for summ ary judgme ntand motion todismiss. 2 Even though none of the proof had been presented, the trial court explained that it coul d not “see anyt

hing to gain f

rom requiring D r. Tot

ty . . . to remain

in this act

ion wh en it appear s that a mot ion for dir

ected ver dict at the

conclusion of th e plainti ff’s case is g oing to b e granted.”

Mr. Samuelson then proceeded to trial against Drs. McMurtry and Holla nd and H.C.A. H ealth Services. While Dr. T otty and one of his employees were called as fact witnesses, neither Mr . Samue lson nor the remainingdefendant s attempted to prove or

arguethat Dr. Totty wa s in any way r esponsible f

or Kevin Samuelson’s death. 3 The jury was asked to determine whether D rs. McM urtry or Holland or H.C .A. H ealth Ser

vices had ne gligentlydeviated from the recognized standa rd of ca re and wh ether the ir neglige nce had pr oximately c aused Ke vin Samuelson’s death. The jury was also asked to allocat e fault b etween K evin Samuelson

and any of t

he partie s whose fa

ult caused Kevin Sa

muelson’s death. The jury found that Dr. McMurtry and H.C.A. Health Services had not been negligent but that Dr. Ho ll and had bee n negligent a nd that his ne gligence w as a proximate

cause of Kevin Samuelson’s death. Accordingly, the jury allocated4 The record contains no explana tion of the jury’s decision to a

llocate 4 9% of the

fault to KevinSamue lson. Mr. Samuelson hypothesized in this court that the jury must have decided that his son should have returned to the hospital rather than consulting a chiropractor

on August 1, 1988.

5 Mr. Samuelson

supporte d his mot ion with an affidavit from another chiropractor licensedto practice in Georgia stating that Dr. Totty had breached the applicable standard of care andthat Dr. Totty’s fa

ilure to im

mediatel y refer Kevin Samuelson to a physician for emergency treatment was a proximate cause of Kevin Samuelson’s de ath.

6 This court had already overturned the ea rlier summary judg ment for Dr. Totty. Likewise, Dr. Totty had not challenged Dr. Cunningham’s ability to testify as an expe rt in these earlier proceedings and had waited until after the deadline for filing dispositive motions to seek to prevent Dr. Cunni ngha m from testifying. In addition, the trial court did not afford Mr. Samuelson the time to respond to Dr. Totty’s “r eopened” mo tion for summary judgment required in Tenn. R. Civ. P. 56.03 and the lo cal Davidson Count y rules. -5- 51% of the fa

ult to Dr. H olland and 49 % of the f ault to Ke vin Samuel son. 4 The jury also found that Mr. Sa muelso n’s total da mages we

re $500,00 0, and according ly the trial

court aw arded Mr . Samue lson a $255, 000 judgment a gainst Dr. Holland.

Dr. Holland moved for a judgment n otwithstanding the verdict and for a

new trial. Mr. Sam

uelson file d a Tenn. R. Civ. P. 59.04 motion req

uesting the trial court to va

cate the dismissal of

his claims against

Dr. T otty. 5 The trial court denied the p o st-trial

motions but r

emitted th e judgment a

gainst Dr . Hollan d to $204,000. Mr. Samuelson later ce rtified t hat this judgm

ent had been fully satisfied

.

Mr. Samuelso n perfec ted this app eal to take issue with

the trial c ou rt’s decision to disqualif

y Dr. C unningham as an expert witness and to dismiss hi s claims against D r. Tott

y rather than permi tting hi m to proceed to trial. Even though the major

ity does not di sa gree tha

t the soundness of these decisions are substantial ly in doubt, 6 they have decided that it is unneces sary to add

ress these issues because Mr. Sam

uelson’s ac ceptance

of the judgment against Dr. Holland prevents him from ever

proceedi ng against D r. Tott y based on the doctrines of res judicata a nd collate ral estopp el.

I cannot agree with the majority’s decision. It is a mis applicati on of the doctrines of res judi cata and c ollatera l estoppel i n a compa rative f ault environme nt. I would first determine whether the trial court ’s exclu sion of Dr.7 The concepts of fairness and efficiency are thebasis for the comparative fault syst em. Owens v. Truckstops of Am., 915 S.W.2d at 424. -6- Cunningham and its dismissal of the claims against Dr. Totty we re erro r. If t

hese decisions are incorrect, I would proceed to determine whether these errors more likely th an not affect ed the jury ’s verdict

.

II.

The Tennessee Supreme Court’s en actment o f a system of comparative fau lt drastica lly transforme d tort law in Tennessee. Whitehead v. Toyota Motor Cor p., 897 S.W.2d 684, 686 (Tenn. 1995). The Court desired to replace the “outmoded and unjust common la w doctrine of contributory negligence,” McIntyre v. Balentine, 833 S.W.2d 52 , 56 (Tenn. 19 92), wi th a doct rine that m ore close ly linked fault and l iabili ty. Owens v. Trucks tops of Am., 915 S.W. 2d 420, 430 (Tenn. 1996). Accordingly, it concluded that a modified comparative fault system without joint and sever al liabilit

y would more fa irly and ef

ficiently 7 (1) provide full compensat

ion for inju

red plaint iffs reduced in proportion to the damages prope rly attribut able to th em, Owens v. Trucks tops of Am., 915 S.W. 2d at 430; McIntyr e v. Balentine , 833 S.W. 2d a t 58 (doctrine of contributory negligence completely denied injured litigants r ecompense

for their damages), and (2) assure thatculpable parties would be liable for only their fair share of the total negligence or fault. Ridingsv. Ralp h M. Parsons Co ., 914 S.W. 2d 79, 83 (T enn. 1996); Whitehead

v. Toyota Mot or Corp., 897 S.W. 2d at 686; Volz v. Ledes, 895 S.W.2 d 677, 680 (T enn. 1995) ; McIntyre v. Balentine, 833 S.W. 2d at 58.

The Court has rep ea tedly ackno wledged t hat it lef t many signif

icant questions concerning its new comparative fault system unan swered. Eaton v. McLain, 891 S.W. 2d 587, 593 ( Tenn. 199 4); McIntyr e v. Balentine, 833 S.W. 2d at57. Among the issues req uiring more

detailed j udicial sc rutiny we re questio ns relating to the consideration of the fault of non-parties and to the joinder o f potentially

culpable p arties. During the four intervening years since the McIntyr e
v. Balentinedecision, the Court has provided additional insight into the answers to these q uestion s.8 Tenn. R. Civ . P. 8.0 3 requires defendants in comparative fault ca ses to plead as an

affirmative defense “the identity or descr iption of any other alleged tortfeasors.”

9 Tenn. Code Ann. § 20-1-11 9(a) pe rmits plain

tiffs toamend their complaint to add other allegedtortfeasors named or identified by a def

endant in accordance with Tenn. R. Civ. P. 8.03. -7- We now unders tand that th ere is a theo retical distinction b etween t he concepts of “comparative negligence ” and “compa rative f ault.” C omparativ e negligence refers to the appor tionment of damages attributable to the plaintiff as again st the culpable de fendants. Compara tive fault refers to the proc ess of apporti oning d amages a mong multipl e or joint tortfeaso rs accor ding to the percenta ge of fault a

ttributabl e to those pe

rsons. Owens v. Trucks tops of Am., 915 S.W.2d at 425 n.7.

In additio n, the Cou

rt has ar ticulated four princ iples with

regard to the apportionment

of fault o r

awardin g damages a

gainst non-p arties. First, fault may be apportio ned only to pe rsons again st whom the

plaintiff has a caus e of

action. Owensv. Truckstop s of Am., 915 S.W.2d at 428; Ridings v. Ralph M. Parsons Co ., 914 S.W.2 d at 83. S econd, f ault may be

apportione d to both par

tie s a nd nonparties. Volz

v. Lede s, 895 S.W.2d at 680. Third, the plaintiff bears the risk of not joining a potentially liable tortfeasors against whom it has a cause of ac tion. Ridingsv. Ralph M. Parsons Co ., 914 S.W. 2d at 83; Volz v. Ledes, 895 S.W.2d at 680. Fourth, f

ailure to i dentify potentially liable tor tfeasors who are not already parties as r equired by Tenn. Code Ann. § 20- 1-119(a) will pre vent defe ndants from attributin g fault to t

hese non-part ies. Ridingsv. Ralph M. Parso ns Co., 914 S.W.2d at 84.

Based on these pr

inciples a nd Tenn. R. Civ. P. 8.03 8 and Tenn. Code Ann. § 20-1-119, 9 the Court has pointed out that “[ t]he goals of effic iency and f airness

are . . . served by joining as defendants all persons against whom the plaintiff can asserta cause of action.” Ri din gs v. Ralph M. Par sons Co., 914 S.W. 2d at 84. This holding is con sistent wi th the moder n trend to combine in one action for trial all claims and actions i nvolvi ng all po tentiall y liable p ersons. Th e Court , however, has not

yet adopted the “one-action rule” which would prevent plaintiffs from bringing subsequen t actions against per sons who we re not sued

in the original a ction.10 John S. Hickman, Note, Efficiency, Fairness, and Common Sense: The Case for One Action as to Percentage of Fault in Comparative Negligence Jurisdictions That Have Abolished or Modified Joint and Several Liability, 48 Vand. L. R ev. 739, 753 (1995); David Polin, Annotation, Comparative Negligence: Judgment Allocating Fault in Action Against Less Than All Potential Defendants as Precluding Subsequent Action Against Parties Not Sued in Original Action, 4 A.L.R.5th 753 (1992).

11 Hickman, supranote 10, at 750 (pl aintiffswill keep a defendant in re serve to

obtain a secondchance at

a satisfactory recovery

if the first trial did not result in a sufficient judgment).

12 Tenn. R. Civ. P. 19. 01 requir es perso ns subject to the court’s jurisdiction to be joined as parties if comple

te relief cannot

be acco rded to th e existing parties in their a

bsence o r if their absencewill subje ct t

he existing parties to a substantial risk of incurring double, multiple, or otherwis e inconsistentobligations. In light of the Tennessee Supreme Court’s observation that efficiency and fairness are best served by joining all potential defendants in one action, Ridings v. Ralph M. Parsons Co., 914 S.W.2d at 84, it c ould be ar

gued that all pers ons who are potentially liable to a plaintiff are indispensable parties under Tenn. R. Civ. P. 19. -8- Several compara

tive fault jurisdicti ons haveadopted the “one-action rule” either by statute or judicia l fiat. 10 The cour

ts in these juri sdictions ha ve frequently relied on preclusion doctrines such as res judicata or collateral estoppel to justify their reliance on the rule. They assert that there can be no second successive trial in compara

tive negligence case s where one hundred per cent of the fault was allocated in the firs t trial. Kathios v. General Mot ors Corp ., 862 F.2d 944 , 951 (1st Cir. 1988 ); Albertson

v. Volk swagenwer

k Aktie ngesellsch aft, 634 P.2d 1127, 1132 (Kan. 1981). H owever, other juri sdictions ha ve specif ically declined t

o use traditional preclusio n doctrines to prevent a subsequen

t trial in a comparative fau lt

case. Drescher v. Hof

fman Motor s Corp., 585 F. Sup p. 555, 558 (D. Conn. 1984); Norris v. Atlanta & W.P.R.R., 333 S.E. 2d 835 , 83 7-38 (Ga . 1985); Selchert v. State, 420 N.W .2d 816, 81 8 (Iowa 1 988); Oldaker v. Peters, 869 S.W. 2d 94, 97- 98 (Mo. Ct. App. 1993). Even jurisdic tions that f ollow the “one-ac tion rule” do not apply it when the plaintiff was pre vented fr

om procee ding against

a culpable party in t he first act ion. Anderson v . Scheffler, 752 P.2d 667, 672 (Kan. 1988).

Mr. Samuelson did not engage in the strategic, inefficient behavior that prompted the “one-ac tion rul e.” 11 He sued all person s whose co nduct could h ave caused or contrib uted to his son ’s death. Thus, thi s case doe s not provide a proper vehicle for dete

rmining w hether T ennessee s houl d al ign itself w ith the jurisdicti ons foll owi ng the “on e-action ru le.” 12 This disc ussion of the rule is relevant , however , becaus e it rests on the same preclu sion doctrines deemed controlling by the majority in this case.-9- III.

The majority h a s d ecided that the doctrines of res judicata and collateral estoppel prevent Mr. Sam uelson from

proceedi ng against D r. Tott y becaus e he has alreadyobtained a judgment against Dr. Holland. I can not agree be cause the necessary ingredients for both of these defenses are lacking in this case.

A.

Re s judicata and collateral estoppel are preclusionary doctrines. Res judicata is a cla im preclusion doctrine that bars a second suit between the same parties or their p rivies on th e same ca use of act ion with re gard to all

issues that

were or could hav e been liti gated in t he former su it. Richardson v. Tennesse e Bd. of Dentistry, 913 S.W. 2d 446, 459 ( Tenn. 1995); Massengill v. Scott, 738 S.W. 2d 629, 631 (Tenn . 1987); Collins v. Greene County B ank, 9 16 S.W. 2d 941, 945 (Tenn. Ct. App. 1995). Under the res ju dicata doc trine, pl aintiffs who preva il on their original c laim cann ot therea fter ma intain a ne w action against the same defendant s o r their priv ies on th eir origin al claim or an y part ther eof. National Cordova Corp. v. City of M emphis, 214 Tenn. 37 1, 3 8 0, 380 S. W.2d 793, 797 (1964); Restatement (Second) o f Judg ments § 18(1 ) (1980). Plaintif fs may, however, pursue other similarclaims ag ainst other parties, Restatem

ent (Sec ond) of Judgment s § 49, except to the extent that these claims involve the relitigat ion of issues determined advers ely to the plain tiff in the prior ac tion. Res tatement (Second) of

Judgmen ts §§ 29 & 49 cmt. a.

On the other hand, collateral estoppel is an issue preclusion doctrine that bars the same parties or their privies from relitigating in a second suit issues that

were actually l itigated and determi ned in a for mer suit. Dickerson v. Godfrey, 825 S.W.2 d 692, 694 (T enn. 1992) ; Goeke v . Woods, 777 S .W.2d 34 7, 349 (T enn. 1989); Allied Sound, Inc. v. Neely, 909 S.W. 2d 815, 820 (T enn. Ct. App. 1995). The doctrine does not apply to issues that were not necessar y for the decision in the former case, Scales v. Scales, 564 S.W. 2d 667, 670 ( Tenn. C t. App. 1977), or when the party against whom pre clusion is sought did no t have a f ull and fair opportunityto litigate

the issue in

the prior suit. Morris v. Esma rk Apparel , Inc.,-10-

832 S.W.2d 563, 566 (Tenn. Ct. App. 1991); Restatem ent (Sec ond) of Judgment s § 29.

Both doctrines require identity bet ween the parties or their privies. In this context, privity re lates to the subject ma

tter of the litig ation. Harris v. St. Mary’s Medical Ctr., Inc., 726 S.W .2d 902, 905 (T enn. 1987) ; Shelley v . Gipson, 218 Tenn. 1, 7, 400 S.W.2d 709, 712 ( 1966). Accor dingly , adefendant ’s verdic t in a breach of warranty actio n against an automobile dealer barredthe relit igation of the same cla

im against

the automob ile’s man

ufacture r because the deale r and the manufacturer

were in privity wi th regard

t o the warranty on the automobile. Phillipsv. General Mot ors Corp ., 669 S.W. 2d 665, 669 (Tenn. Ct. App. 1984). But by the same token, a prior verdict in favor of one emergency room physician did not bar a s econd suit a gainst the hospita

l, anothe r emergency room phys ician, and other hospital employe es. Harris v. St. Mary ’s Medic alCtr., Inc., 726 S.W. 2d at 905.

B.

Neither res judicata nor collateral estoppel bars Mr. Samuelson’s claims against Dr. Totty under the facts of this case. While D r. Tott y was orig inally a p arty to Mr. Samuelson’s suit, he became a non-party once the trialcour t summarily

dismissed Mr. Sa

muelson’s c laims aga

inst him pri or to trial. Nor was he in privity w ith Dr. Holland, Dr. Mc Murtry, or H.C .A. H ealth S ervices. Dr. Totty’s alleged ne glige nt acts did not occur at the hospi tal, and t

he proof w ith regard to his conduct was not necessary for the adjudication of Mr. Samuelson’s claims against D rs. Holl and and McMurtr y or H.C .A. H ealth Ser

vices. In fact, the proof required for Mr. Samuelson’s case against Dr. T otty was substantial ly different than the p roof requ ired for his claims against the other def endants.

The issues involv ed in Mr. Samuelso n’s first suit were likewise

not the

same as the issues involved in his second suit against Dr. Totty. The only issues i n volved in Mr. Samuelson’s first suit related to Kevin Samuelson’s negligence

v is à vis Drs. Holland and McMurtry and H.C.A . Health Services . Kevi n-11-

Samuelson’s negligence

vis à vis D r. Tott

y was not a part of the se procee dings and thus was no tadjudicat ed either directly or

indirectly. Other

compara tive fault jurisdicti ons have followed this reaso ning and have he ld that the a djudication

of fault between the plainti ff and one defendant did not preclude the plaintiff’s second action aga inst ano ther defend ant. Drescher v. Hof fman Motor s Corp., 585 F. S upp. at 558; Selchert v. State, 420 N.W .2d at 821; Oldaker v. Pe ters, 86 9 S.W.2d at 97.

The majority’s reliance on Cantrell v. Burnett & Hen derson Co ., 187 Tenn. 552 , 216 S.W.2d 307 (1948), is misplaced. In that case, the purchaser of a n automobile

that caught fire three days after purchase f iled suit ag ainst the manufacturer

and the dea

ler alle ging that the

automobile

was defective. The cas e proceeded to trial against

both defendants, but the trial court directed a verdict for the man ufacture

r before the case went to the

jury. A fter the

jury found t

hat th e automobile

was not defective and returned a verdict for the dealer, the purchaser appealed the trial court’s decision to grant a directed verdict for the manufacturer. The Tennes see Su preme Co urt, in a rare opi nion explaining its rea sons for denying a writ of

certior ari, hel d that the verdict f or the dea

ler estopp ed the purchaser from proc eeding aga

inst themanufac turer on

the same t

heory beca

use the jury had already determine d that the f ire that de stroyed the

automobile

was not caused by a defect. Cantrell v. Burnett & Hen derson Co ., 187 Tenn. at 558-59, 216 S.W.2d at 310.

The Ca ntrell

d ecision illustrates a

correct applicati on of issue p reclusion because, as pointed out by Judge G oddard, both cases involved precisely the same issue and becaus e the manufacturer was in privity with the dealer with rega

rd to the issue det ermined in the first s uit. P hillip s v. General Mo tors Cor p., 669 S.W.2 d at 669. No similar identity of parties or i ssues exis ts in this case. Dr. Totty was not in privity with the defendants in the fi rst suit, an d the issues involved in th e first

suit bore no relatio nship to Mr. Samuelso n’s claim s against Dr. T otty.

IV.13 Th e defendants would have been exposed to this prejudice ha d the case bee n commenced

after the enactment of Tenn. Code Ann. § 20-1-119 and the adoption of the amendme nts to Tenn. R. Civ. P. 8.03. How ever, th is case was commenced before the McInty re v. Balentine decision, and the defendants never claimed that Kev in Samuelson’s death was caused in whole or

in part by

others. -12- Based on the fore going, I w ould find that the jud gment agai nst Dr. H olland does not prevent this court from c onsidering whether the trial court er red by summarily

dismissing Mr. Sam

uels on’s cl aims against Dr. Totty. If the trial court’s decision was correct, then we need not proceed further. If, howe ver, we conclude thatthe trial court erred, we must consider whether the erro r affec ted the verdictand, if it di d, we must also fashion appropriate relief. In this transitional

case , we must

apply the comparative fault principles fairly to avoid substantial injustice to any of t he parties

. Owens v. Tr uckstops of Am., 915 S.W. 2d at 424; Ridings v. Ra lph M. Parso ns Co., 914 S.W. 2d at 80.

Mr. Samuelso n would

be entitle d to a new trial aga inst Dr. Totty if the trial courterred by su mmarily di smissin g his clai ms agains t Dr. Totty. Ho weve r, in addition to depriving Mr. Sam

uelson of a

trial aga inst Dr. Totty, the trial court’s

error w ould also have p revented the jury from apportioning negligence between KevinSamuelson and the other named defendants. Thus, the error could very well have prej udiced the remai ning defend ants by depr iving them of

their opportunityto lay off

all or a po rtion of the

fault to ot

hers and by

exposing them to liability f

or more th an their f

air share of damage s. 13 It is evidentthat th e
erroneous exclusion of

a defenda

nt against whom a plaint

iff has a colorable claim strikes at the heart of the policy favoring single trials involving all proper parties in compara

tive fault cases. We must, therefor e, also de cide whether the e rroneous
exc lu sion of a prope

rly named defendant

affect s the judgment against t he remainingdefendant s.

Most courts in c omparativ e fault jur isdictions have f

ound that the

erroneou s dismissal of one defendant affects the verdict against the remai ning defend ants, see, e.g., Williams v. S l ade, 431 F.2d 605 , 608, 609 ( 5th Cir. 1 970); Buffett v. Vargas, 914 P.2d 100 4, 1009 (N .M. 1996) , and that the courts can only spe culate about what

the jury mi ght have done had alldefendant s been bef ore thecourt in

asingle pro ceeding

. Fitzhugh v. Elliott, 371 S.W.2d 533, 535 (Ark. 1963);14 A jury has already found that Dr. McMurtry and the H.C.A. Health Services employees were not neglig ent. Mr. Samue lson is not e

ntitled to a

new tria l against these defendant s becaus e their conduct is wholly separate from Dr. Totty’s negligent conduct. In light of the jury’s ve rdict in the first trial, neither Dr. Totty nor Mr. Samuelson would be prejudiced if Dr. McMurtry and H.C.A. He alth Serv

ices did not partic ipate in th e second trial. -13- McCormack

v. State, 553 A.2d 56 6, 569 (V t. 1988). According ly, the co urts consistently award the plaintiff a new tr ial when a

defendant

has been im

properly excluded from the firs t trial. Williams v. Slade, 431 F.2d at 60 8; Buffett v . Vargas, 914 P.2d at 10 09-10; Methodist H ospitals of D allas v. Sullivan, 714 S.W. 2d 302, 303 (Tex. 1986).

There is some disa

greement among the courts concerning whether the new trial should include all def endants or just the def

endants wh o were not exonerated in the first

trial. Some cour

ts require that the new tria

l include a

ll defenda

nts, includin g those who were exonerat ed in the fi rst trial. See, e.g., Bla ke v

. Mahaffey, 350 N.E .2d at 884. Other c ourts have held that pl aintiffs should not receive a second bi te at the apple a nd that exone

rated def endants shoul d not be partof thesecond tri al if

a new trial is granted. See, e.g., Buffett v . Vargas, 914 P.2d at 10 09-10; Methodis t Hosps. of Dallas v. Su llivan, 714 S.W. 2d at 303.

Our courts no lo nger view

ve r dicts as uni tary and m ay grant r elief to on e defendant without g ranting re lief to th e other defen dants. Brown & Sons Lumber Co. v . Sessler

, 128 Tenn. 665, 673-74 , 163 S.W . 812, 814 ( 1914); Bentley v. Hurxthal, 40 Tenn. (3 Head) 378, 379-80 (1859); Blu e Bird Coaches, Inc. v. McGreg or, 14 Tenn. App. 23, 26 (1931). However, we must grant the relief that the law and the fa

cts requir e when the

trial cour t’s erro r more prob ably than not affectedthe judgmen

t or would r

esult in prejudice to the jud icial proc ess. Tenn. R. App. P. 36.

Thus, if the summ ary dismis sal of the claims ag a inst D r. Totty was reversib le error , I woul d award M r. Sam uelson a new

trial aga inst Dr. T otty and Dr. Holland, the only remainin g defendant found to be a

t fault. 14 Assuming that the parties do not settle

prior to tr

ial, I w ould also find th at Dr. Holland w ould be entitled to a credit for the damage s he has already paid should the second trial result in a large

r judgment against him . If the second tri al resul ts in a lower-14-

judgment against D r. Holl and, then Mr. Sam uelsonwould be

required to repay th e difference between

the judgmen

t in the first

trial and the judgment in t he second trial.

V.

Mr. Samuelso n attempte d to assert his claims ag ainst all po tentially l iable tortfeasors in one suit. He should n ot be preju diced if th e trial c ourt erro neously prevented him from

pursuing his c laims aga

inst Dr. Totty. Mr. Sam

uelson and a

ll the parties ha

d a right to have liability determined and fault apportione d once and for all in one proce eding.

_________________ ___________ WILLIAM C. KOCH, JR., JUDGE