IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 14, 2010 Session

BETTY ROSE v. COOKEVILLE REGIONAL MEDICAL CENTER

AUTHORITY, ET AL.

Appeal from the Circuit Court for Putnam County

No. 06J0185 Amy T. Hollars, Judge

No. M2010-01438-COA-R3-CV - Filed January 13, 2011

Plaintiff, a lactation consultant formerly employed by Cookeville Regional Medical Center,

sued the hospital for common law retaliatory discharge and violation of the Tennessee Public

Protection Act; plaintiff also asserted a claim for punitive damages. The case was tried

before a jury. At the close of plaintiff’s proof, the court granted the Medical Center’s motion

for directed verdict on the Protection Act and punitive damages claims; the common law

retaliatory discharge claim was allowed to proceed to the jury. The jury found for the

Medical Center. Plaintiff appeals, asserting error in the trial court’s grant of directed verdict

and its rulings on evidentiary issues. Finding no error, we affirm.

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

RICHARD H. DINKINS,J., delivered the opinion of the court, in which PATRICIA J. COTTRELL,

P.J., M.S., and ANDY D. BENNETT, J., joined.

James L. Harris, Nashville, Tennessee, for the appellant, Betty Rose.

Thomas Michael O’Mara, Cookeville, Tennessee, for the appellee, Cookeville Regional

Medical Center Authority d/b/a Cookeville Regional Medical Center.

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OPINION

Betty Rose (“Plaintiff”) was employed on a pro re nata basis as a lactation consultant

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at Cookeville Regional Medical Center (“CRMC”). Her patientsincluded expectant mothers

and newborns and she worked with new mothers on issues concerning breast-feeding. In the

course of her duties, Plaintiff worked with patients of Dr. Jeffrey Gleason, an obstetrician

and gynecologist. On April 25, 2005, Plaintiff sent a letter to Jeanie Austin, risk manager

of CRMC, inter alia, complaining of Dr. Gleason’s withdrawal of permission for Plaintiff

to consult with patients from his practice group. In April 2006, Plaintiff’s employment was

terminated.

Plaintiff sued Cookeville Regional Medical Center Authority (“Defendant”) for

wrongful discharge, asserting that the hospital fired her for filing what she characterized as

a grievance against Dr. Gleason. She asserted a claim for common law retaliatory discharge

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and a claim under the Tennessee Public Protection Act (“the Act”), Tenn. Code Ann. §

50-1-304. She also asserted a claim for punitive damages.

The case was tried before a jury. At the close of Plaintiff’s proof, Defendant moved

for a directed verdict on all of Plaintiff’s theories of recovery. The trial court held that

Plaintiff failed to provide sufficient evidence of a violation of the Act and granted the motion

on that claim. The court also found that Defendant had produced no evidence that Defendant

acted with malice when it terminated Plaintiff and directed a verdict for Defendant on the

claim for punitive damages. The court found that sufficient proof had been presented to

allow the remaining claim to proceed to the jury, and Defendant presented its proof. At the

close of all proof, Defendant again moved for a directed verdict. The court denied the

motion and submitted the case to the jury, which returned a verdict for Defendant.

On appeal, Plaintiff claims that the trial court erred in excluding certain evidence

offered by her and in directing a verdict on the Tennessee Public Protection Act claim.

Pro re nata (“PRN”) derives from Latin and translates as “in the light of what has arisen.” 1

BLACK’S LAW DICTIONARY 1257 (8 ed. 2004). At CRMC, PRN is an employee classification indicating th

that the employee is maintained on staff as needed.

The lawsuit originally named the City of Cookeville d/b/a Cookeville Regional Medical Center as 2

Defendant. An amended complaint was filed naming Cookeville Regional Medical Center Authority as

Defendant, and an order was entered dismissing the complaint as to the City of Cookeville.

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I. Exclusion of Testimony

Plaintiff asserts error in the trial court’s rulings on two evidentiary matters, stating the

issue as follows:

Did not the trial judge err in refusing to allow the plaintiff to testify about what

Shannon Hunter, defendant’s Director of Women’s Services, told the plaintiff

about statements made to Ms. Hunter by Dr. Jeffrey Gleason, and about the

instructions given plaintiff by defendant’s management?

A. Plaintiff’s testimony regarding Shannon Hunter

In support of her contention that the court erred in excluding her testimony of

statements made to her by Shannon Hunter, Plaintiff cites the following testimony during

Plaintiff’s direct examination:

[Mr. Harris]. Did anyone in management tell you that Dr. Gleason had

complained to them about you?

[Plaintiff]. Yes, sir.

Q. All right. And who in management was that?

A. Shannon Hunter. Well --

Q. What’s her position with CRMC?

A. She was the director of women’s services.

Q. All right. And did she tell you -- well, first of all let me get a ruling from

the Court on this.

MR. HARRIS: Ms. Hunter is a hospital official and I don’t want to get

into any hearsay here, but being in management I would think that would come

under the exception of the hearsay rule. I want to get that clear before I got

into that.

MR. O’MARA: What’s the exception?

MR. HARRIS: Well, it’s an admission of a party of interest.

MR. O’MARA: Ms. Hunter is here. So most of the exceptions are not

available because she’s present and is on his witness list. If he wants to solicit

anything that she might say, he can ask her, Ms. Hunter, directly.

THE WITNESS: Okay.

MR. HARRIS: But she’s not on the stand, so I can’t ask her.

THE COURT: I’m going to disallow any testimony about what Ms.

Hunter may have said.

MR. HARRIS: All right.

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THE COURT: We can hear that directly later.

MR. HARRIS: All right. That’s fine, Your Honor. Thank you.

Plaintiff did not make an offer of proof of what Ms. Hunter said and her counsel did not

otherwise summarize the expected testimony for the court.

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Rule 103 of the Tennessee Rules of Evidence provides:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is

affected, and

. . . .

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance

of the evidence and the specific evidentiary basis supporting admission were

made known to the court by offer or were apparent from the context.

Tenn. R. Evid. 103(a)(2). Under this rule, when the specific evidentiary basis supporting

admission is not apparent from the context, the party challenging the trial court’s decision

must make an offer of proof in order to preserve the issue for appeal. We will not reverse

a trial court’s ruling excluding evidence if the appellant fails to make an offer of proof

regarding the substance of the evidence and the supporting evidentiary basis to support its

admission. Dickey v. McCord, 63 S.W.3d 714 (Tenn. Ct. App. 2001); Anderson v. American

Limestone, Co., 168 S.W.3d 757 (Tenn. Ct. App. 2005).

On appeal, Plaintiff claims that “[t]here was no need for an offer or proof, since

Exhibit 2 fully delineates the incident. We know what Ms. Rose’s excluded testimony would

have been.” Plaintiff makes the inconsistent argument that an offer of proof of excluded

testimony was not necessary because the substance of the excluded testimony was contained

in an exhibit which was admitted at trial. To the extent that the testimony Plaintiff attempted

to introduce was the same as had already been introduced through Exhibit 2, she has not been

harmed by exclusion of the same evidence during her testimony.

In her brief on appeal, Plaintiff specifies that “[t]he first instance of hearsay error [was] the court’s 3

refusal to allow Ms. Rose to testify about what the hospital[’]s Director of Women’s Services[, Shannon

Hunter,] told her about Dr. Gleason having complained . . . .” Elsewhere in her brief, Plaintiff states that the

court “committed [its] first reversible error [by] not permitting [Plaintiff] to testify about what Ms. Hunter

told [Plaintiff] about Dr. Gleason’s report on presumptive hearsay grounds.” We do not consider these

statements as offers of proof. Not only is it not sufficient for Plaintiff’s counsel merely to say that he

expected the witness to prove certain facts, see Stacker v. Louisville & N.R. Co., 61 S.W. 766 (Tenn. 1901),

the statements were not presented to the trial court.

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B. Exclusion of alleged instructions given to Plaintiff

Plaintiff claims that a “second incident of erroneous hearsay exclusion” occurred

when the trial court “either misconstrued or misapplied the hearsay rule in forbidding Ms.

Rose to testify about instructions given her by hospital management that were, in her view,

in violation of the Patients Bill of Rights.” Defendant argues that this issue was not raised

in Plaintiff’s Motion for New Trial and has been, therefore, waived pursuant to Tenn. R.

App. P. 3(e).

The Motion for New Trial includes the following grounds for relief:

6. That the court erred in not allowing Plaintiff to testify regarding the

contents of the Code of Ethics for Nurses with Interpretive Statements and

what she perceived as a violation by the Defendant of this document. (TR 53)

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. . . .

8. That the court erred in not allowing Plaintiff to testify as to what

Defendant’s management instructed her. (TR, page 136)

While the words used in Plaintiff’s brief differ from those used in the Motion for New Trial,

a fair reading of the motion and the testimony cited therein allows us to conclude that the

substance of this issue –the assignment of error to what she perceived as the court’s action

in excluding Plaintiff from testifying as to certain instructions given to her by CRMC

management, which instructions she deemed to be in violation of the Patient’s Bill of

Rights–was presented in the motion for new trial and, consequently, not waived. We will,

therefore, address this issue.

Plaintiff cites two portions of her testimony as the court’s “second incident of

erroneous hearsay exclusion.” The first cited testimony is as follows:

[Mr. Harris]. Do you feel like the hospital, in denying the treatment to patients

that you were treating, violated the provisions of any of [the Tennessee Board

of Nursing Rules and Regulations of registered nurses]?

[Plaintiff]. Yes. If you look under unprofessional conduct and negligence,

habits or other costsitsays, unprofessional conduct, unfitness or incompetency

by reason of negligence, habits, or other causes; it says that those terms are

used in the statute as defined but not limited to.

Here’s the ones that are significant: A, intentionally or negligently

causing physical or emotional injury to a patient. And I felt like the hospital

 The numbers after each sentence are references to the trial transcript. 

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was trying to force me as a registered nurse to intentionally neglect the

patients.

Then also C applied: Abandoning or neglecting a patient requiring

nursing case. Women were crying, begging for help, asking for me by name.

Let’s see.

MR. O’MARA: Your Honor, once again, that’s the standing objection

to hearsay we’ve been cautioned about in the past.

THE COURT: Ms. Rose, I’m going to instruct you those types of

statements are hearsay --

THE WITNESS: Okay.

THE COURT: -- repeating out-of-courtstatements of other individuals.

And I would instruct you to refrain from conveying those types of statements.

THE WITNESS: May I ask --

MR. O’MARA: Your Honor, I ask that be stricken and the jury be

asked to disregard it, please.

THE COURT: The Court will instruct that that comment be stricken --

statement be stricken from the record and the jury’s instructed not to put any

emphasis or to not pay attention to that statement.

THE WITNESS: Your Honor?

BY MR. HARRIS:

Q. Do you have a question for me, Ms. Rose?

MR. O’MARA: I object to any questions from the stand.

THE WITNESS: I wanted to clarify what she said to me.

MR. HARRIS: Okay.

THE WITNESS: If management instructs me that the patients are

crying, is that hearsay if it’s from management?

THE COURT: Well, that would be a double layer of, I would say,

hearsay. It’s still hearsay.

MR. HARRIS: All right.

THE WITNESS: Okay.

Plaintiff did not make an offer of proof of the testimony which she wished to give and which

she contends was excluded; she contends that no offer of proof was necessary. Since the

context of the testimony provides a sufficient evidentiary basis to analyze whether the

exclusion of the testimony amounted to error, we will address this issue. See Tenn. R. Evid.

103(a)(2).

The question that initiated the ruling challenged by Plaintiff related to whether

Plaintiff thought Defendant had violated the Tennessee Board of Nursing Rules and

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Regulations. In immediately preceding questions, Plaintiff explained how Defendant’s

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actions, in her view, constituted violations of the regulations. Initially, no objections were

raised; however, when Plaintiff stated that “[w]omen were crying, begging for help, asking

for me by name,” Defendant objected. The court instructed Plaintiff that “repeating out-ofcourt statements of other individuals” was hearsay and could not be introduced.

Based on the manner in which the objection was raised and the court’s instruction to

the jury that the statement be disregarded, it is clear that the court was not excluding

testimony regarding the Patient’s Bill of Rights or Defendant’s instructions; rather, the court

was excluding testimony containing hearsay—the women’s alleged statements.

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The second cited testimony, which occurred during Plaintiff’s cross-examination in

the context of questioning regarding other physicians’ utilization of her services, is as

follows:

Q. So we have all the pediatricians and those people – and the family

practitioners – see all the babies. In fact, that group of pediatricians see

virtually every baby that comes out of the hospital, don’t they?

A. Virtually every, no.

Q. How many? What do you think?

A. I have no idea.

Q. Okay. So they still were available to write orders. So all of Dr.

Gleason’s prohibition was his OB group, correct?

A. No

Q. Why? That’s all he had the authority over.

A. Am I allowed to say?

Q. If you know on firsthand knowledge and it’s not hearsay, you’re

allowed to say it.

A. What management instructed me?

Q. What management instructed you? I think the judge has already

said those kinds of comments are hearsay if those people are available here at

trial.

A. They’re here.

The regulations were introduced into evidence immediately prior to the question asked of Plaintiff, 5

which began the quoted portion of the testimony.

When Plaintiff asked the court whether such statements would be inadmissible even if conveyed 6

by management, the court stated that the testimony “would be a double layer of, I would say, hearsay.” This

was merely a statement of the court’s opinion on the admissibility of the evidence and was not a ruling on

specific evidence. 

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The cited testimony does not contain an objection to any testimony or question; nor

is there any ruling or comment by the court. Consequently, there was no action by the court

on which error might be predicated.

In neither of the excerpts quoted above does it appear that the court precluded Plaintiff

from testifying regarding instructions that had been adopted by hospital management.

Because Plaintiff failed to make an offer of proof, we cannot review the alleged error of the

trial court in excluding her testimony regarding Ms. Hunter. We find no error in the trial

court’s evidentiary rulings.

II. Directed Verdict on the Tennessee Public Protection Act claim

Ms. Rose also contends that the court erred when it granted a directed verdict on Ms.

Rose’s claim that her termination violated the Tennessee Public Protection Act, which

provides that “[n]o employee shall be discharged or terminated solely for refusing to

participate in, or for refusing to remain silent about, illegal activities.” Tenn. Code Ann. §

50-1-304(b).

As noted previously, Ms. Rose’s common law retaliation claim survived a motion for

directed verdict and was submitted to the jury, which returned a verdict in favor of CRMC.

Because Tenn. Code Ann. § 50-1-304(b) requiresthat the termination be “solely” for refusing

to participate in or remain silent about illegal activities, a claim that a termination violated

the Act places a higher burden on a plaintiff than does a claim of common law retaliation.

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In deciding for Defendants on the common law claim, the jury determined that Ms. Rose’s

activities did not play a part in her termination. Consequently, this issue is pretermitted. See

To prevail on a common law claim of retaliatory discharge, an employee must prove: 1) that an 7

at-will employment relationship existed; 2) that the employee was discharged; 3) that the employee was

discharged for attempting to exercise a statutory or constitutional right, or for any other reason that violates

a clear public policy; and 4) that such action was a substantial factor in the employer's decision to discharge

the employee. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 535 (Tenn. 2002); see also Anderson v.

Standard Register Co., 857 S.W.2d 555, 557–58 (Tenn. 1993). As noted in Phillips v. Anderson County, No.

E2009-01883-COA-R3-CV, 2010 WL 4514886 (Tenn. Ct. App. Nov. 10, 2010): 

[T]he first three elements of a statutory retaliatory discharge claim are identical to the

elements of a cause of action under the common law. The fourth element of a TPPA claim

differsfromthe common law claimin that, to benefit fromstatutory protection, an employee

must demonstrate that his or her refusal to participate in or remain silent about illegal

activities was the sole reason for his or her discharge. 

Phillips, 2010 WL 4514886, at *4 (citing Guy, 79 S.W.3d at 535–37). 

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Gager v. River Park Hosp., No. M2007-02470-COA-R3-CV, 2009 WL 112544 at *8 (Tenn.

Ct. App. Jan. 14, 2009) (“. . . inability to sustain a common law retaliatory discharge claim

. . . necessarily dooms a statutory retaliatory discharge case.”).

III. Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED.

___________________________________

RICHARD H. DINKINS, JUDGE

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