### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

SHERRIE GRAHAM FARVER v . DR. KENNETH CARPENT ER

Direct Appeal from the Circuit Court for Anderson County No. 98LA0168 Hon. James B. Scott, Jr., Circuit Judge

No. E1999-01840-COA-R3-CV - Decided June 23, 2000

The Trial Court approved plaintiff’s verdict for dama ges. On appeal, defendant seeks dismissal of the action on grounds there was insuff icient evidence

to submit to the jury or

a new trial beca

use the verdict is excessive.

Tenn. R. App. P.3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed.

F RANKS , J., deliver ed the opinion of the court, in which G ODDARD , P.J., joined, and S WINEY , J., dissented.

Edward A. Slavin, Jr., St. Augustine, Florida, for Plaintiff-Appellee.

James G. O’ Kane, B aker, McReynolds, Byrne, O’Kane, Shea & Townsend, Knoxville, for Defendant-App

ellant.

OPINION

Plaintiff is a former empl oyee o f U.S. Department of Energy (DOE) contractor Lockheed Martin in Oak Ridge, and the defendant, a psychiatr ist, performed an evaluation of plaintiff at DOE’s behest. Plaintiff sued defendant, alleging he misdiagnosed her as paranoid and delusional, which

she averred ca

used her to lose he

r security clea

rance and resu

lting damages.

From 198 7 to 1999, plaintiff worked at the Y-12 and K-25 plants, where she wa s allegedly exposed to radia

tion and toxic chem

icals, which caused her

to suffer physical illness. In January of 1997, plaintiff participated in a security int erview w ith a DOE examiner regarding an upgrade of her security c learance. She was then asked to consent to a psychiatric evaluation and-2-

defendant was instructed to evalua

te her to “determine whether, in your professional opinion, she has an illness or mental condition which causes or may cause a significant defect in her judgment

or reliability.” Following an interview and psychological screening test, defendant s

ent a report to DOE which opined that p laintiff had a pa

ranoid delusional

diso rder a nd needed additional psychiatric

treatment and medication, and that he “would be concerned about her in a security setting because of her poor common sense, logic and judgment, and because of her paranoi d delus ion symptoms.” This report was sent to DOE on March 1, 1997, and plaintiff’s security clearance was revoked approximately one month later.

This case was tried before a jury who returned a verdict in the amount of $600,000.00 which was approved by the Trial Judge, and defendant has appealed.

First, defendant argu

es that plaintiff d

id not present comp

etent, material e vidence that defendant’s breach of the standa rd of car e was the proximate cause of plaintiff’s injuries. The Tennessee malpractice statute requires plaintiff to prove that she suffered injuries which would not otherwise have occurred as a proximate result of defendant’s negligence, which evidence must be established by expert testimony. Tenn. Code Ann. §29-26-115. In this case, plaintiff’s expert testified that de fend ant breached the standard to care by failing to seek external corroboration of plaintiff’s claims of

DOE conspiracy and cover-up before classifying her as paranoid

and delusional. Plaintiff’s expert further testified that he had also evaluated

plaintiff, and after seeking corroborative information, had determined that she was neither paranoid nor del usional. P laintiff’s expert was then askedwhether defendant’s breach of standard care had harmed plaintiff, and he responded “cer tainly being labeled as she wa

s would certainly h

ave an impact on h er security cle arance which w

ould impact on her livelihood.”

During cross-examination, plaintiff’s expert was asked about certain portions of the report of the DOE hearing examiner. Plaintiff’s expert testified that he was aware that the hearing officer indicated relian

ce on testimony fr

om plaintiff’s own

psychologist,

as well as her sta

tements made in the personal security interview, in making his determination. He conceded that he did not know the role defendant’s report played in the revocation of her security clearanc e.

Defendant

argues that

plaintiff’s proof does not meet the requirements of Tenn. Code Ann. §29-26-115. This p rovision require

s proof that is r

equired in an y negligence case, i.e., causation in fact, and

proximate or

legal cause. See Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996). Causation in fact has been defined as “but for” causa

tion, as in the injury would not have occurred butfor the negligence of defendant. Kilpatrick v. Bryant , 868 S.W.2d 594 (Tenn. 1993). It is well settled that an injury can have more than o ne proximate cause, and if plaintiff establishes that defendant is responsible for any one of the alleged proximate causes, an issue for jury determination is present. Stokes v. Leung , 651 S.W.2d 704 (Tenn. Ct. App. 1982).

There is material evidenc e tha t defendant’s report was a cause in fact of plaintiff’s security clearance revocation. Defendant was asked by DOE to evaluate plaintiff in relation to her potential clearance upgrade, and to render an opinion as to whether or not she had a “mental conditi on whic h causes or may cause a significant defect in her judgment or reliability.”-3-

D efendant’s report portrayed plaintiff as a person with paranoid delusions in need of furthe r ps ych iatrictreatment and medication, and a probable security risk. Defendant argues that the
statements

made by plaintiff in the personal security interview were also a cause of her cleara nce revocation, but the clearanc e was not revoked

until shortly after

defendant’s report was received, although the security interview had been several mont hs previous ly. Whether the clearance revocation would have occurred but for the defendant’s negative report, was an issue for th e jury to determine. See Carney v. Goodman , 270 S.W.2d 572 (Tenn. Ct. App. 1954). The hearing officer stated that he considered and relied upon defendant’s report, and material evidence supports the finding, that defendant’s report was a cause of the revocation of plaintiff’s security clear ance. Causation questions are “f act-sensitive” a

nd must be determin

ed “in light of logic, common sense, policy, and precedent.” Burgess v. Harl ey , 934 S.W.2d 58, 68 (T enn. Ct. App. 1996) . Further, it has been held that unle

ss undisputed fact

s permit a reasonable person to reach only one conclusion, the issue of causation must be resolved by the jury. Id. See also McClenahan v. Cooley , 806 S.W.2d 767 (Tenn. 1991). We conclude plaintiff met her burden on the issue of causation.

Defendant

argues that plaintiff’s expert, Dr. Patterson, should not have been allowed
to testify because he did not de monstr ate that he was familiar with the standard of care in the community

in which defendant practices or a similar community, as required by Tenn. Code. Ann. §29-26-115. At the outset, we note the familiar rule that requires no citation gives trial judges broad discretion in determining the qualifications of an expert witness. Defendant’s counsel claims to have objected on this ba

sis during the trial, and was overruled, but a review of the purported objections leave considerable do

ubt as to whether th

e Tria l Court co uld have possibly ever determined what the actual basis of th

e objection was a

nd whether the obj ection, in fact, t ouched on this issue

at all.

The defendant

is correct in that

Dr. Patterson’s te

stimony at trial doe

s not set forth the factual basis for his assertion that he was familiar with the applicable standar d of car e. Defendant

did not, however, object when Dr. Patterson stated that he was familiar with the standard of care, and the later objections were so vague and ambiguous (general “lack of foundation, lack of qualifications”) that

the Trial Court would have understood the objections to ha

ve been dealing w

ith any number of issue

s.

A thoro ugh review of the transcript in this case demonstrates that defendant never actually questioned Dr. Patterson’s ability to testify as to the standard of care. The defendant knew that Dr. Patterson was plaintiff’s proposed expert, and took Dr. Patterson’s discovery deposition. In a hearing on pre

-trial motions, def

endant’s counse

l asked the Trial Co

urt to al low defendant to question Dr. Patterson regarding the ide ntity of doctors he had spoken to in Knoxville in researching the standard of care, since, at the deposition, Dr. Patterson would not reveal their identity. The Trial Courtthen told defendant’s counsel that he could ask Dr. Patterson those questions during the course of the trial and the Court would require Dr. Patterson to disclose that information.

At t rial, defendant’s counsel did not question Dr. Patterson on that issue, nor an y issue regarding his

familiarity with the standard of care. While it is true that the plaintiff bears the burden of establishing that her expert is competent, when Dr. Patterson was offered and testified that he was familiar with

the standard of c

are, the defen

dant did not at that ti

me object nor seek to voir-4-

dire the witness on his qualifications. We conclude in the context of this trial, that the defendan t waivedthe right to question the competency of this expert witness on appeal. See Bowman v. State
, 598 S.W.2d 809 (Tenn. Crim. App. 1980); State v. Killebrew , 760 S.W.2d 228 (Te nn. Crim. App. 1988).

This issue is resolv ed against the def

endant.

Finally, defendant argues there was no material evidence to support the jury’s award of $600,000.00 in compensatory damages. Plaintiff sought damages for lost income, employability, pain and suffering, and loss of reputation. In defendant’s Motion for a New Trial, he did not seek

a remittitur, but argued the jury’s verdi ct was so high as to be the result of passion and prejudice. The Trial Court’s approval of a jur y verdict requir

es this Court when th

e verdict is quest

ioned, to review the record to determine whether there is any mate

rial evidence to

support it, and if there is
mat eri al evidence, the verdict will not be disturbed. Overstreet v, Shoney’s, Inc. , 4 S.W.3d 694 (Tenn. Ct. App. 1999). We are required to give full faith and credit toall evidence in the record which tend s t o support the award, allowing all reasonable inferences to sustain the verdict and disre gard al l that are contrary. Poole v. Kroger Co. , 604 S.W.2d 52 (Ten n. 1980); Johnson v. Cargill, Inc. , 984 S.W.2d 233 (Tenn. Ct. App. 1998).

Plaintiff was earning approximately $20,000.00 when she was fired and was working part-time. She testified that s he was subjected

to embarrassme

nt due to the revocation of her clearance, and she was forced to wonder about the status of her job for nearly two years and opined that she had no furth

er career in radiation protection. She testified that the ordeal affected her marriage and reputation. Sh e is 45 years old

and other employees testifying on her behalf stated that withouta security clearance it would be very difficult to get another DOE position. The j ury and Trial Judge saw and heard the witnesses, and we cannot say the evidence preponderates against the finding of the jury, as approved by the Trial Judge.

We affirm the judgme

nt of th e Trial Co urt and remand, with cost of the appeal assessed to appe

llant.