# FILED

December 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MARGARET WHITE and ) MURL WHITE, ) ) Plaintiffs/Ap

pellants, ) ) VS. ) ) THE VANDERBILT UNIVERSITY, ) Davidson C ircuit THE VANDE

RBILT UNIV

ERSITY d/b

/a ) No. 92C-2740 VANDERBILT UNIVERSITY MEDICAL ) CENTER and VANDERBILT UNIVERSITY ) HOSPITAL, DAN SPENGLER, M.D., ) Appeal No. R. BRADLEY WYRSCH, M.D., ) M1997-00105-COA -R3-CV MICHAEL CHMELL, M.D., and ) CLEMENT JONES, M.D., ) ) Defendants

/Appellees. )

IN THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE THOMAS W. BROTHERS, JUDGE

For Plaintiffs/Ap

pellants : For Defendants /Appelle es : Jeffrey A. G

arrety H. Lee Barfi eld LAW OFFICES OF JEFFREY A. GARRETY Steven E. Anderson Jackson, Tennessee E. Clifton Knowles BASS, BERRY & SIMS Larry D. Ashworth Nashville, Tennessee David E. High ASHWORTH & HIGH Nashville, Tennessee



## REVERSED IN PART AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Spinal stenosisis the narrowing or compression of the portion of the vertebral canal where the cauda equina is located. The cauda equina is the “bundle

of spinal nerve roots arising from the lumbar enlargement

and conus medullaris and running through thelower part of the subarachnoid spacewithin the vertebral canal below the f irst lumbar vertebra; it comprises the roots of all the spinal nerves below the first lumbar vertebra.” Stedman’s Medical Dictionary 238 (5th unabr. law. ed. 1982). 

### -2- 

## O P I N I O N

This medical malpract

ice action ste

ms from a rare pos t-operati ve complication of bac

k surgery called the cauda e quina syndrome. A patient diagnosed with the syndro me filed su it in the Circuit Court

for Davidson County alleging that four physicians and t

he hospital where her back surgery w as perform ed had ca used her p ermane nt injury by n egligently failing to monitor, diagnose, and tr eat her post-operative cond ition. The trial court granted sum mary judgment for one physician a nd directed verdi

cts for two other

s, and a jury re

turned a verdict forthe rem aining p hysicia n and th e hosp ital. We have dete rmined th at the directed verdicts fortwo of the physicians and the jury’s verdict for the hospital and one other physician must be set aside because the court erroneousl y preven te d the patient from using at tr

ial the depos itions of one of t he defe ndants ’ design ated ex pert wi tnesses
.

I.
Margaret White and her husband of almost fifty years live in Jackson , Tennessee. M r. White is a reti

red railroa

d conductor, and Ms. White ret ired as a salesperson i

n 1983 to take
care of her moth er. Prior to the e vents giving rise to this lawsuit, M s. White h ad genera lly been in good health a

nd had been devoting most of her time and energy to homemaking, garden ing, chu rch activ ities, and serving as a Re d Cros s volun teer at a lo cal hos pital.

AfterMs. White began to experience l ower back pain, she consul ted several Ja

cksonarea physicians who determined that surgery was i

ndicated but who also recommended that the surgery be postponed for a time. As Ms. White’s ba ck pain worsened, she consultedDr. Dan M. Spengler, a Nashvill e orthopaedic sur

geon. Dr. Spengler diagn osed Ms. W hite’s condition

as spinal stenosis 1 and recomm ended surgery. O n October 25, 19 91, Dr. Spengler and Dr. Clement K. Jones, a f ellow in spinal

surgery, perf

ormed the surgery at Vand erbilt University Med ical Ce nter. T he surgery w as a succes s and is not th e subject of th is litigat ion.

Ms. White’s post-opera tive recovery was unevent ful for thefirst t

wo days following surgery. At 11:0 0 p.m. on Sunday, October 27, 1991, Catalina Baun, Ms. White’s nurse, conducted a neurovascular examinat ion with normal resul

ts. However, four hour s later at2 Cauda equina compression syndrome is caused by “either a herniated disc, or an epidural hematoma

or abscess that is compressing the caudal sack. Emergent surgical intervention is required to prevent permanent ne urologic damage. Symptoms include incontinence, bilateral sciatica and motor weakness of the l

ower extremitie

s, saddle anesthesia (partial or complete loss of sensation in the portion of the buttocks, perineum and thighs that would come into contact with a saddle when riding a horse) and even paraplegia.” 5 Attorneys’ Textbook of Medicine ¶ 15.33 (Roscoe N. Gray & Louise J. Go rdy eds . 3d ed. 1999). Ms. White’s compression was the result of an epidural hematoma. 

### -3- approxim ately 4:00 a.m. on October 28, 1991, Ms. White asked her husband to sum mon Ms. Baun because she was suffer ing from pain in her

lower buttocks and ri

ght leg that “was just so bad , I could hardly stand it.”

Ms. Baun, following standa rd physician’s

orders, gave Ms. White pai n medication. At 4:18 a.m., Ms. Baun paged Dr. Robert B radley W yrsch, the jun ior resident or thopaedic physicianon duty , becau se Ms . White ’s pain h ad not le ssened

. A dispute exist s concerning whether Ms. Baun

told Dr. Wyrs ch t

hat Ms. White’ssymp tomswere new and progressive. Dr. Wyrsch simply instruct ed Ms. Baun to give Ms. White more pain medicati on. Approx imately two hours later, between 6:00 and 6:30a.m., Ms. White was examined for the first t

ime by Dr. Michael J. Chmell,a s e cond-ye ar orthopae dic resident. D r. Chme ll ordered more pain m edicatio n and a sked D r. Jones , w ho had ass isted Dr. Spengle r during Ms. White’s surgery, t

o examine Ms. White.

Dr. Jones eventuall

y examined Ms. White between 8:15 and 8:30 a. m. and diagnosed her condition as

cauda equina syndrome, 2 a rare complicati on of spinal sur

gery. Dr. Jones summoned Dr. Spengler who conducted his own examination and ordered an emergency myelog ram to confirm the location of the compres sion. At 11:30 a. m., the physici ans review ed the m yelogr am, an d at 12:3 5 p.m., M s. Wh ite unde rwent e merg ency su rgery.

Because of these post- operative complica tions, Ms. White lost

bowe l and bladder controland suffere d back pain fo r severa l mon ths. She still experiences pain and discomfort that interferes with daily activi ties such as sitting,standing, walking, and sexual relations. She also underwent a colostomy and has been required to c atheterize he rself because of her bladder problems.

The Whites filed

a malpractice sui

t in theCircuit Court for Davidson County against Drs. Spengler, Jones, Wyrs ch, and Chm ell and Vanderbilt U niversity Medical C enter, seeking to recover d amage s for the delay in dia gno sing and treat ing the causa equina syndrome. The trial court granted Dr. Chmell a summary judgment prior to tria l and directed verdicts for Drs. Sp engler and Wyrsc h at the close of the plainti ff’ s proof. Thereaf ter, the jury returned a verdi

ct f or Dr. Jone s and Va nderbilt Un iversity M edical Cen ter. On this3 The Whites are n ot taking issue with t

he summary judgmen

t for Dr. Chmell.

4 Dr. Kostuik has published numerous articles onthe cauda equina syndrome. See, e.g. , John P. Kostuik, Cauda Equina Syndrome: The Lumbar Spine (1996); John Kostuik, Controversies in Cauda Equina Syndrome and Lumbar Disk Herniation , 4(2) Spine 125 (Apr. 1993); John P. Kostuik et al., Cauda Equina Syndrome and Lumbar Disk Herniation , 68A Journal of Bone and Joint Surgery 386 (March 1986).

5 See Tenn. Code Ann. § 29-26-115(b) (1980).

6 In their motion to waive thelocality rule, the defendants represented to the trial court that Dr. Kostuik has written

the “preeminent

medical article

on the development

and treatment of cauda equina syndrome” and that the “results of Kostuick’s [sic] study are of great significance inrefuting plaintif f’s [si c] theory in this c

ase that the defe

ndants acted too sl

owly in conducting s

urgery in response to plaintiff’s presentation of cauda equina syndrome.” In a sup porti ng affidavit, Dr. Spengler stated that

Dr. Kostuik’s study “may affect a determination as to the applicable standard of care in this case and may help refute plaintiffs’ theory that earlier surgical intervention on Ms. White would have spared her any injury.” 

### -4- appeal, the Whites take issue with the trial court’s ref usal to permit t

hem to use the deposition

testimony of one of t

he defendan ts’ experts designated as a t estifying wit

ness, the directed verdicts for

Drs. Spengler and Wyrsch, and t he trial cou

rt’s refus al to stri

ke the testimony of one of the defendants’ experts. 3

II. T HE E XCLUSION OF D R . J OHN P. K OSTUIK ’ S D EPOSITION T ESTIMONY

We first t ake up the question r

egarding the Whites’ efforts t o introduce port

ions of the depositionsof one of

the defend ants’ design ated expe rts during the ir case-in-chie f, as well
as their desire to usethese deposit ions in rebutt

al and to cross-examine t he defendants’ ot

her expert witnesses. The t

rial court held that the

Whites could not use t

hese depositions for any purpose until t

he defendants actua

lly called the expert as a wit ness. We disagree.

A.

Afterthe Whites fil ed suit, the defendants enl

isted t he assistance of Dr.John P. Kostuik, an orthopaedic sur geon recognized nationally as an expert on the development and treatment

of cauda equina syndrome. 4 Because Dr. Kostuik li ves and practices in Maryland, the defendan ts sought an d obtained a judicial w aiver of the lo calit y r ule 5 to enable h im to testify. 6 The W hites first depo sed Dr. K ostuik by telep hone o n Aug ust 21, 1 996. During th is deposition,Dr. Kostuik o pined that M s. Baun an d Dr. W yrsch sho uld have c onducted their
own neurovascular exam ination of Ms. W hite after s he be gan complaining of pain at 4:00
a.m.on October 28, 1991. In addi tion, he st

ated that Ms. White’s condi tion should have

been diagnosed earlier than 8:30 a.m. and tha t obtaining the myelog ram caused an unnecessary delay of the remedial

surgery.

### -5- Despite Dr. Kostuik’s seemingl y adverse testi

mony during the telephone deposition, the defendants decided t o obtain a videot

aped deposition

from Dr. Kostuik for

possible use at trial. Accordingly, the pa rties’ law yers t raveled to Baltimore a nd again depose d Dr. Kostuik on Aug ust 29, 199 6. On this o ccasion, D r. Kostuik re peated that M s. Baun sh ould have per for med a nur sing neu

rov asc ula

r ex amin ation on

Ms. White at

4:0 0 a. m. and that

Dr. Wyrsch should have examined Ms. White when he first received Ms. Baun’s call. He also stated that Dr. Jones’ s response had n ot be en prom pt and that th ere was n o “absolu te indicatio n” than a mye logram neede d to be p erform ed.

The Whites liste d Dr. Ko stuik as one of their poten tial witnesses on their witness list filed on September 3, 1996, and also disclos ed that Dr. Kostuik’s tw o depositions were among the exhibits

they planned to intr

oduce at trial . On the following day, the de fendants filed their witnes s and exhibit l ist stat ing that Dr. Kostui

k was among the witnes ses “who may be called to test

ify.”

When the trial

commenced on September 9, 1996, the W hites requested the trial court to limit the num ber of exp ert witnesse s called by th e defenda nts. The de fendants so ught to head off the Whites’ use of Dr. Kostuik’s testimony by fil

ing motions in li

mine to prevent the Whites from using Dr. Kostui k’s depositions and from alluding to t he substance of any of their experts’ testimony during voir dire, opening statements, or during the crossexaminationof any other defense witness. During a hearing o n these m otions, the de fendants informed the

trial c our

t t hat Dr. Kost uik was “par

ti cul arl y imp ort ant in t ermsof causation” and that Dr . K ostuik wo uld testify in person if call ed as a witness. Based on these representations, the tria l court declined to grant the Whites’ motion to l imit the number of the defendants’ witnesses. The cou rt also ruled tha t the Wh ites could not use Dr. Kostu ik’s d epositionsin their cas e-in-chief but reserved deciding whether to permit the m to use th e depositionsin rebuttal

or during thei

r cross-examinat

ion of thedefendants’ expert witnesses.

The subject of Dr. Kost

uik’s deposit

ion resurfaced on Sep tember 13, 1996 before the defendan ts began to present t heir evidence. The trial court inquired whether the parties

had found any additional

authorities regarding the permissible use

of the dep ositions

. After the parties restated

their posit

ions, the t

rial court decided that i

t was not ready to rul

e on the use of Dr. Kos tuik’s depo sitions but ind icated that it was inclined to permit the Whites to use them f or cross -exam ination a nd rebu ttal with some limitatio ns.

At the beginning of t

he next day of trial, the tr ial court r

uled definit

ively t hat th e Whites could not u se Dr. Ko stuik’s depo sitions for rebu ttal if the defend ants did not call him
as a witness. However, t he trial cour

t held that t

he Whites could use the depositions duri ng7 See Overstreet v. Shoney’s, In c. , N o. 01A01-9612-CV-00566, 1999 WL 355912, at *11

(Tenn. Ct. App. June 4, 1999) (Tenn. R. App. P. 11 application denied Oct. 4, 1999). 

### -6- their cross-examination of the defendants’ experts as long as they established that the witness had read Dr. Kostuik’s depositions and t

hey avoided mentioning t hat Dr. Kostuik had originally been the defendants’ witne ss. Later,the trial court modified i

ts holding by st

ating that “unless that

expert is goi

ng to be called to testify at trial, a party h as the right to designate . . . [hi

m] as a consultant at

any point. And once they [the defend ants] elect no t to utilize . . . [t he expert] at t

rial, t he other party may not

. . . dis cover the opinions . And if they have been discovered, i f ther e have been depositions , [the other party] . . . may not utilize those d epositio ns at trial.”

B.

S TANDARDS FOR R EVIEWING E VIDENTIARY D ECISIONS

The admissio n or exclus ion of evid ence is within the trial co urt’s disc retion. See Seffernick

v. Saint Thomas Hosp. , 969 S.W.2d 3 91, 393 (Ten n. 1998); Otis v. Cambridge Mut. Fire In s. C o. , 850 S .W.2d 439, 442 (Tenn. 1992). The discretionar y nature of the decisiondoes not shield i t completely fr

om appellate revie

w but does result in subje cting it to less rigo rous ap pellate s crutiny

. See Tennessee Dep’t of Healt h v. Frisbee , No. 01A01- 9511-CH-00540, 1998 WL 4718, at *2 (Tenn. Ct. App. Jan. 9, 1998) (No Tenn. R. App. P. 11 application file d); BIF v. Service Constr . Co. , No. 87 -136-II , 1988 W L 724 09, a t *2 (Tenn. Ct. App. July 13, 1988)(No Tenn. R. App. P. 11 applicat ion filed). Because, by their very nature, dis cretionary deci sions involve a c hoice among accept abl e alternatives,
re viewin g courts will n ot second -guess a trial co urt’s exercise of its discretion s imply because the trial court chosean alternati ve that the appellat

e courts would not have chos en. See Overstreet v. Shoney’s, Inc. , ___ S.W.3d _ __, ___ (Tenn. C t. App. 1999). 7
Discretionary decisio ns requ ire cons cientiou s judgm ent. See BIF v. ServiceConstr. Co. , 1988 WL 72409, at *2. They must take the applicable law into account and must also be con sistent w ith the fa cts befo re the co urt. See Overstreet v. Shoney’s, Inc. , ___ S.W.3d at ___. Appellate cou rts will set aside a discretionary decision on ly when the trial court has misconstrued

or misapp lied the con trolling legal prin ciples or has acted incon sistently with the substantial

weight of theevidence. See Overstreet v. Shoney’s, Inc. , ___ S.W.3d at ___. Thus, a trial cour

t’s discr etionary decision should be reviewed to determine: (1) whether the factualbasis for t

he decision is

supported by t

he ev idence, (2) whether the trial cou rt identified and applied the appl icable legal

principles , and (3) wheth er the trial court’s decisionis within the ra nge of acc eptable alternativ es. See BIF v. ServiceConstr. Co. , 19888 See 8 Charles A. Wright, et al., Federal Practice and Procedure

§ 2029, at

428-29 (2d ed. 1994). This treatise notes that Fed. R. Civ. P. 26 draws a distinction between experts who have been retained or specifically

employed in anticipation of litigation or preparation for trial but who are not expected to testify and experts who have been consulted informally but who have not been retained. Tenn. R. Civ. P. 26 does not draw this distinction.

9 In1997, the Tennessee Supreme Court amended Tenn. R. C

iv. P. 26.02(4)(A) (ii) to permit depositions of expe

rts as a matter of

right. 

### -7- WL 72409, at *3. Appellate courts should permit a discretionary decision to stand if reasonab le judicial

minds can differ

conce rning its sound ness. See Overstreet v. Shoney’s, Inc. , ___ S .W.3d at ___.

Co nclu ding that a trial court improperl y excluded otherwise admis sible evidence doe s not end the inquiry

. The erroneo us exclusion of evi dence will not requi

re reversal of

the judgment if the evidence would not have aff

ect ed t he ou tco me of the tri al even if it had been admitted. See Hen sley v. Har bin , 782 S.W.2d 480, 482 (Tenn. C t. App. 198 9); Pankow v. Mitchell , 737 S.W.2d 2 93, 298 (Tenn. C t. App. 1987).

C. T HE D ISCOVERY OF THE O PINIONS OF AN O PPONENT ’ S E XPERT

The Tennessee Rules of Civil Procedure permit the

discovery of rel

evant, nonprivileged

inform ation. See Wright v. U nited Servs. Auto Ass’n , 789 S.W.2d 911, 915 (Tenn. Ct. App. 19 90); Duncan v. Duncan , 789 S.W.2d 557, 560 (Tenn. Ct. App. 1990). They strike
a balance between two important policies. The first,and perhaps most importan t, policy is that discovery should en able the par ties and the c ourts to seek the truth so tha t disputes w ill be decided by facts rathe r than by legal maneuveri ng. See Harrison v. Greeneville ReadyMix, Inc. , 220 Ten n. 293, 302 , 417 S.W .2d 48, 52 (1 967); Pettus v. Hurst , 882 S.W.2d 783, 786 (Tenn. Ct. App. 1993). The second policy is that t he discovery rule s should no t permit less diligent lawyers to b enefi t from th e work of their m ore dilig ent opp onents
. See Vythoulkas v. Vanderbilt Univ . Hosp. , 693 S.W.2d 350, 357 (Tenn. Ct. App. 19 85). Both these policies are evident in the rul es governing the discovery of experts.

The courts and commentators gener ally divide e

xperts into f

our classif

ications f

or discovery purposes. 8 The first classificat ion includesexperts a pa rty expects to c all at trial. At the time of thi s proceeding, Tenn. R. Civ. P. 2 6.02(4)(A ) permitted the party’s o pponen ts to learn by int

errogatorie s the names of these experts a

nd the substance of t

heir test imony. Furthe r discov ery of these exper ts could be obtai

ned only by agreement or on motion and court order. 910 Courts const r uing rules similar to Tenn. R. Civ. P. 26 have held that a party may place a previously

designatedtestifying expert beyond the reach of an opposing party by redesignating the expert from a testifying w

itness to a consulta

nt prior to the wit

ness’s deposition. See Ross v. B urlingt on Northern R.R. , 136 F.R.D. 638, 638-39 (N.D. Ill. 1991) ; County of Los Angeles v. Superior Court , 271 Cal. Rptr. 698, 703 -04 (Ct. App. 1990); Reeves v. Boyd & Sons, Inc. , 654 N.E.2d864, 874-75 (Ind.

Ct. App. 1995); General Motors Corp. v. Jackson , 636 So. 2d 310, 313-14 (Miss. 1992). Some cou rts, however, will not give this effect to the redesignation of a testifying expert if they determine that the

parties are unde

rtaking to suppress evidence or seeking to shield the expert witness from discovery for any other improper purpose that violates the clear purpose an d intentof the discov er y rules. See In re Doctors’ Hosp. of Loredo , 2 S.W.3d 504, 506 (Tex. App. 1999); Castellanos v. Littlejohn , 945 S.W.2d 236, 239-40 (Tex. App. 1997). Likewise, courts have held that the redesignation of an expert witness does not affect right of d iscover y for examining physicians under Tenn. R. Civ. P. 35, s ee Kennedy v. Su

perior Court

, 75 Cal. Rptr. 2d 373, 375 (Ct. App. 1998); Pinkett v. Brittingham , 567 A.2d 858, 860 (Del. 1989), and that an expert cannot be designatedas a

testifying expert for some purposes and a consulting expert for others. See Furniture World, Inc. v. D.A.V. Thrift Stores, Inc. , 168 F.R.D. 61, 63 (D.N.M. 1996). 

### -8- The second classification includes experts, whether r etained or not, who have been consulted

by a party in anti

cipation of l

itigati on or in preparat

ion for trial but who will not be called as a witne ss. Except as provid

ed in Tenn. R. Civ. P. 35 pertainin g to examining physicians, Tenn. R . Civ. P. 26.0 2(4)(B) pro vid es that neither the identity of the se experts
nor their opinion s can be d iscovered w ithout a show ing that “th e par ty seeking discovery cannot obtain fac

ts or opinions

on the same subject by ot her means.”

The third clas sificat

ion includes exper

ts who were not specifi cally ret ained in anticipat ion of litigation or in preparat ion for trial, such as regular employees of a party or treating physicians. Because these experts do not fit withi n Tenn. R. Civ. P. 26.02( 4)(A) or 26.02(4)(B), their identity, as w ell as their facts an d opinion s, are freely disc overable a s with any ordina ry witn ess. See Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 258 (Tenn. Ct. App. 1990); Alessio v. Crook, 633 S.W.2d 7 70, 779-80 (Ten n. Ct. App. 1982).

The fourth classification includes expert s designated by a par

ty as a witness expec

ted to tes tify at trial

but whose designation is subsequentl y withdrawn. 10 The designation of these experts as testif ying witnesses,even if that designation is subsequently withdr

awn, takes an opposing party’s demand to depose and use the expert at trial out of the requirem ents of Tenn. R . Ci v. P. 26.0 2(4) (B). Howe ver, the Tenn. R. Civ. P. 26.0 2(4) (A) designation

does not automatical

ly entitl e the opposing party to de pose oruse another party’s expert at trial . Rather, t he trial cour

t must use its di scretion,guided by Tenn. R. Evid. 403 's balancing of probative val ue against prej udice, to det ermine wh ether the op posing pa rty should be permitted to cal l or depose or use t

he other party’s expert a t trial. See House v. Combined I

ns. Co. o f Am. , 168 F .R.D. 2 36, 245 -46 (N .D. Iow a 1996 ).
Shielding consul ting experts from discovery ru ns contrary to t he broad policy favor

ing the discovery of non-priv ileged inform ation; how ever, it s erv es several o ther legitima te

### -9-

interests. It encourag es lawye rs to seek expert adv ice to prope rly evaluate a nd presen t their client’s position

. See Rocky Mountain Nat’l Gas Co. v. Cooper Indus., Inc. , 166 F.R.D. 481, 482 (D. Colo. 1996); Mc Kinnon v. Smock , 445 S.E.2d 526, 52 8 (Ga. 1994); Tom L . Scott, Inc. v. McIlhaney , 798 S.W .2d 556, 55 9 (Tex. 19 90). With out this protection, p arties wou ld be reluctant to co nsult exper ts because th ey wou ld be forced to liv e or d ie based on the unknown opinio n of the expert c onsulte d. See General Motor Corp. v. Gayle , 924 S.W.2d 222, 230 (Tex. Ap p. 1996). It also prevents the un fairness of p er mitting a pa rty to benefit from the oppos ing par ty’s effo rts and e xpens e. See Durflinger v. Artiles , 727 F.2d 888, 891 (10th Cir. 1984). In addit ion, shielding consulti

ng witnesses from dis covery helps assure the availability of experts who will as sist with l itigated di sputes and minimizes t he prejudice caused by revealing the pr iorretentio n of an e xpert b y the op posing party. See Rubel v. Eli Lilly & Co. , 160 F.R.D. 458 , 460 (S.D.N.Y . 1995).

Most of the reasons i

n favorof

shi eld inga con sul

ti ng ex per t fr om di sco ver

y bec ome attenuated

once a party ident

ifies or designates an expert as a witness expect

ed to testi

fy at trial. Identifying an expert as a testifying w itness in accord ance wit h Te nn. R. Civ. P. 26.0 2(4) (A) has the practi cal effect of

waiving the protect

ion of Tenn. R. Civ. P. 26.02(4)(B),

see Brown v. Ham id , 856 S.W.2d 51, 54 (M o. 1993), an d of mak ing the exp ert available to be depos ed. See Brown v. Ringstad, 142 F.R. D. 461, 465 (S.D. Iow a 1992); In re Shell O il Refinery , 132 F.R.D. 437, 440 (E.D. La. 1990). Once a n e xpert has been deposed,the limitation on the discovery of cons ulting ex perts ha s little or n o applic ation, see Agron v. Trustees of Columbia Univ. , 176 F.R.D. 445, 449 (S. D.N.Y. 1997 ), and the expert is recognizedas presenting part of the common body of discoverab le and gen erally adm issible information

and tes timon y availa ble to all p arties. See House v. Combined I ns. Co. o f Am. , 168 F.R.D. at 245.

While Dr. Kostuik may once hav e been a c onsulting ex pert, the defend ants eventu ally designated

him as a testifying expert pursuant to Tenn. R. Civ. P. 26.02(4)(A ). Not only did they designate him as a t estifying e

xpert, they vol

untarily made him availab le for tw o dep ositions – o ne of the deposit ions to preser

ve his testi

mony because of his legal unavailabil

ity. In addition,the lawyers repre senting t he de fendants participated in these depositionswithout objection. Instead of attempting to redesignat e Dr. Kostuik as a consultingexpert following his depositi ons, the defend ant s repeatedly reinforced D r. Kostuik’s status as a testify ing expert b y including him on th eir list of p otential t rial witnes ses and alluding to his ex pected appea rance in court to testify in p erson.

Based on these facts,

we find that Tenn. R. Ci v. P. 26.02(4)(B) i s inapplicabl e to the defendan t s’ motion in limine for two reasons. First, Tenn. R. Civ. P. 26.02(4)(B) gover ns

### -10-

limitations on discovery, not on the admissibili ty of properly di scovered evidence. Second, this record contains no evidence that the Whites abused the discovery process or that th ey learnedof

Dr. Kostuik’s ide

ntity or opi

nions through any means inconsistent wit h either the letter or the spiri

t of the disc overy rules. Beca use Tenn . R. Civ. P. 26 .02(4)(B) is inapplicable, all that is left for the c ourt to do is to determin e the adm is sibili ty of Dr. Kostuik’s depos itions un der t he appl icab le pr ovis ionsof the Tenne ssee Ru les of C ivil Procedure and the Tenn essee R ules of E videnc e. See Argon v. Trustees of Columbia Univ. , 176 F.R.D. at 449-50; Rubel v. Eli Lil ly & Co. , 160 F.R.D. at 460-61 (bot h cases finding that in the absence of dis covery abuse, the admissibili

ty of expert t

estimony is governed by Fed. R. Evi d. 403)

.

D.

T HE A DMISSIBIL

ITY OF D R . K OSTUIK ’ S T ESTIMONY AT T RIAL

The Whites’ re quest to read portions of Dr. Kostuik’s deposi

tions into e

vidence and to use the deposit

ions to cross- examine the defendants’ experts tri ggers the consider

ation of three issues. F

irs t, we must de termi ne whet her, under

the f actsof th is ca se, T enn. R. Civ. P. 32 permitted th e use of de position testim ony at trial. Second, we must decide whether the portions of Dr . Kos tui

k’s t est imony that the White s’ de sir

ed to use we re r ele vant . Thi

rd, we must dete rmine whether the probati ve value of the port

ions of the deposi

tions the Whites proposed to use outweighs the possible prej udice to the defendants. We decide each of these questions in the W hites’ favor.

1. U SE OF D R . K OSTUIK ’ S D EPOSITIONS

We turn first to the quest ion of whether the Whites could have used Dr. Kos tuik’ s deposition

at trial . Tenn. R. Civ. P. 32. 01(3) providesthat the deposi tion of a witness may be used at trial for any purpose if the court find s that the witn ess is either at a gr eater dist ance than one hundred miles from the placeof the trial or that the witness is out of the state. Dr. Kostuik meets both crit eria bec ause he resides and works i n Baltimore, Maryland. Accord ingly , b ecause there is no eviden ce that the Whites pro cured his absence, D r. Kostuik’s status asa witness sati sfies the di stance andgeogr aphic requi rement s in Te nn. R. Civ. P. 32.01(3).11 The deposition is not subject to a hearsay objection. See Tenn. R. Evid. 804(b)(1).

12 Neg ligenceand causation are normally required to be established by expert med ica l testimony. See Kennedy v. Holder , 1 S.W.3d 670, 672 (Tenn. Ct. App. 1999); Stokes v. Leung , 651 S.W.2d704, 706 (Tenn. Ct. App. 1982). However, the need for expert medical proof can be dispensedwith when the acts of negligence are so obvio us that they come within the common knowledgeof laypersons. See Ayers v. Rutherford Hosp., Inc. , 689 S.W.2d 155, 160 (Tenn. Ct. App. 1984). The common knowledge exception to Tenn. Code Ann. § 29-26-115 is inapplicable in t his case. 

### -11- Tenn. R. Civ. P. 32.01(3) al so provides that depositio ns of expe rts taken pu rsuant to the provisio ns of T enn. R. Civ . P . 26.02(4) may only be used a t trial to impeach the testimony of the d epone nt. The comm ents to T enn. R . Civ. P. 3 2.01 make clea r that this restrict ion applies only to discovery depositions o f an adversary’s expert. See Tenn. R. Civ. P. 32.01 adv isory commission cmt. to 1986 amendment. Dr. Kostui k’s videotaped deposition

of August 29, 1996 was not a discovery deposi tion taken by the

Whites but rather
was a deposition t

aken at the defendant

s’ insist ence to preserve Dr. Kostuik’s test imony. Accordingly, this deposit ion meets the requi

rements of Tenn. R. Civ. P. 32.01 ( 3). Dr. Kostuik’s telephone deposition of August 21, 1996 was a discovery deposit ion taken by the Whites. Rather tha n being co mpletely in admissib le, howev er, it can be used to im peach Dr. Kostuik’s test

imony in his August 29, 1996 deposi tion.
Having determined that Dr. Kostuik’s deposit ions satis fy the conditions foruse at tri al in Tenn. R . Civ. P. 32.0 1, we m ust still determin e whethe r the depos ition testimon y would be admissible under t

he applicable ru les of eviden ce if Dr. K ostuik we re to have given the
same tes ti mony l

ive in t he co urt roo m. 11 The answer to this quest ion requires us

to consider two ru les of ev idence – Ten n. R. Ev id. 401 a nd 403

.
2. T HE R ELEVANCE OF D R . K OSTUIK ’ S T ESTIMONY

This is a medical malpractice action. To prevail, the Whites had to pre sent expert evidence (1) establi shing the ap pli cable standard of care, (2) demonstr

ating that t

he defendants’ conduct fell bel ow that standard of c are, and (3) that t he defendants’ conduct

was the proxima te c ause of injuries th at wou ld not o therwi se have occurr ed. See Tenn. Code Ann. § 29-26-1 15(a) (198 0); Moon v. Saint Thomas Hosp. , 983 S.W.2d 2 25, 229 (Tenn. 1998); Hurst v. D ougherty , 800 S.W.2d 183, 185 (Tenn . Ct. App. 1990). 12 Accordingly, it
was incumbent on the Whites to present expe rt testi mony regarding the st

andard of care of the nurse and the four ph ysicians treatin g Ms. W hit e on Oc to ber 27 and 28, 1991 and whether the c onduct o f these health care provid ers at that time fell below th e applicable

### -12-

standard of care and caused Ms. White to susta in injuries that she

would not otherwise have suffered.

In light of t

he Whites’ burden of proof , there is littl e need for a prolonged di scussion concerning whether Dr. Kostuik’s test imony is relevant to t heir case. Tenn. R. Evid. 401 defines relevant evide

nce as “evidencehaving an y tendenc y to make the existence of a ny fact that is of consequence t

o the determin ation of the a ction mo re probab le or less probabl e than it would be withou t t he evidence.” Dr. Kost uik’s test

imony relates t

o the issues of

the applicable standard of care for the hea lth care providers tre ating Ms . White, as w ell as to the issues of breach of thi s standard of car e and ca usation. Becau se each of these i ssues was hotly contested, t

here is no question tha t Dr. Kostu ik’s testimon y was rele vant to the issues at trial.

3. B ALANCING U NDER T ENN . R. E VID . 403

We no w turn to the balanci ng of the probati

ve value of Dr. Kostui k’s testi mon y against the count

ervailing f

actors ident

ified in Tenn. R. Evid. 403. This balancing process has several general

ground rules. I

t begins by recognizing that the rules of evidence favor the admissibili

ty of relevant

evidence, see 10 James W. Moore et al., Moo re’s Federal Practice § 403.02 [3] (2d ed. 1 995), and th at relevant ev idence is admissible unless otherwise provided. See Tenn. R . Evid. 402 ; Phillips v. F.W. Woolworth Co. , 867 S.W.2d 316, 318 (Tenn. Ct. App. 1992). Thus, excluding rel evant evidence under Tenn. R. Evid. 403 is an extraordinary remedy that should be used sp aringly , see United States v. Rodriguez , 192 F.3d 946, 949 (10th C ir. 1999); Caparotta v. Entergy Corp. , 168 F.3d 754, 75 8 (5th Cir. 1999); Westcott v. Crinklaw , 68 F.3d 1 073, 107 7-78 (8th C ir. 1995); Trevino v. Texas Dep’t of Protective& Regulatory Servs. , 893 S.W.2d 243, 248 (Tex. Ap p. 1995); Towner v. State , 685 P.2d 45, 49 (Wyo. 1984), andpersons seeking t o exclude otherwise admis sible and rel evant evidence have a significa nt burd en of pe rsuasio n. See Neil P. C ohen e t al., Tennessee Law of Evidence § 403.3 , at 152 ( 3d ed. 1 995) (“ Tenn essee L aw of E videnc e”).

Each Tenn . R. Evi d. 403 q uestion must b e decid ed on its own f acts, s ee Tenne ssee Law of Evidence § 403.7, at 156, and the trial court must be car eful not to usur

p the function of the jury in the pr ocess. See 22 Ch arles A . Wrig ht & K enneth W. G raham , Jr., Federal Practice and Procedure § 5220, at 306 (1978) (“Wright & Graham”). The balanci ng process und er T enn. R. Evid. 403 is a two-step process . The trial court must first balance the pro bative va lue of the evidence sought to be excluded against the countervailing factors. After the co urt has eng aged in the balancing analysis, it m ay then ex ercise its discretio n to13 The Whites also indicated that they intended to rely on either the testimony of or portions

of the depositions of t

he defendant phy

sicians. It is obviou

s that the Whites did not intend to use these depositions with regard to the issues of standard of care or causation. 

### -13- determine whether the evidence should be excluded

if the prej udice substant ially outweighs the pro bative v alue of th e evide nce. See Wright & Graham § 5214, at 264.
During the first phase of the analysi s, the co urt must determine whether the countervaili

ng factors in Tenn. R. Evid. 403 “substant ially outweigh”

the probative val

ue of the evidence. The trial court has no di scretion to exclude evidence unde r Tenn. R. Evid. 403 unless it con cludes that th e probative worth of th e evidenc e is substantial ly outweighed by
one or mo re of the counte rvailing factors. See Wrig ht & G raham § 5214 , at 263. T hus, a trial court should not

exclude evidence under Tenn. R. Evid. 403 when the balance between the probative worth of the evidence and the c ountervailing factors is fa irly de batable

. See Wright & Graham § 5221, at 309.

The trial court’s decision to exclude D r. Kostuik’s deposition must be vi ewed in light of the circumstances

at the trial. When the trial b egan, the W hites had ind icated that the ir
case would rest on the expert test imony of a Knoxville neurosur geon, a nurse from Jacks on, and portions of Dr. Kostuik’s depositions. 13 At the same time, the defendant physicians and the h ospi tal had s igna

led t heir int enti on to cal l th ree o ut- of- sta te ph ysi cia ns, incl uding Dr

. Kostuik, and three n urses to testify a bout the stan dard of car e and cau satio n issues . I n addition to these experts, each of the defendants i

ntended to give t

heir expert opi

nion that they were not negligent and that thei

r actions or i

nactions did not

cause Ms. White to suffer an injury she would not otherwise have suff

ered.

The probative value of

Dr. Kostuik’s opini

ons regarding the act

ions of Ms. Baun, D r. Wyrsch, Dr. Jones, and D r. Spengler is significant because it is consistent w ith the expert opinion of the only neuros urgeon testifying for the Whites. Dr. Kostuik questioned Ms. Baun’s a nd Dr. W yrsch’s failure to exam ine Ms. W hite when she reported the new p ain in her legs. He also observed th at Dr. Jones’s two-hour delay in examining Ms. White was

“ probably” not prompt and that Dr. Spengler could have proce eded to perform the em ergenc y
sur ger y wit hout the myel ogram.

The value of

this evidence mus t now be w eighed against the six cou ntervailing factors in Tenn. R. Evid. 4 03. Three of these, undue delay, waste of time, and the needless presentation of cumulative evidence, can be qu ickly discou nted. Perm itting the W hites to
use Dr. Kostuik’s depositions would not have delayed thetrial or wasted time. The Whites already had the de positions in h and and r eading the relevant po rtions into the record w ould

### -14-

not have taken an appreciable amount of time. Likewise,

Dr. Kostuik’s deposi

tion test imony would not have been cumulative.The trial court had earlier concluded, at the defendants’ insistence , that D r. Kostuik’ s testimony was not cumulat ive when it decli

ned to grant the Whites’ motion at the beginni ng of the tri al to requir

e the defendants t

o limit the number of their expert witnesses . Just as Dr. Kostuik’s test imony would not have been cumulative had it been used by the defendants, it would not have been cumulative if used by the Whites.

Two of the remaining Te nn. R. Evid. 403 co untervailing factors are confusion of the issues and misleading the jury. Dr. Kostuik’s test imony does not run afoul of these factors either. His testimony concerni ng the applicable s tandard of c are and ca usation is focused and directly on point. H is answers are responsi ve to the questions and are c ouched in terms that
can be easily underst

ood by the lay persons on t he jury. Consider

ing both his te stimony as
a whole, as well as t

he portions of t

he testimony the Wh ites sought to use at tri al, we find that Dr. Kos tuik’s testimo ny wou ld have m aterially assisted the trier of fact.

The final counter

vailing fact

or in Tenn. R. Evid. 403 i s the danger of unfair prej udice. At the outset,we find that the substance of m uch of Dr. Kostuik’s deposit ion testi mony does not create a danger of

unfair prejudi

ce to the defendant

s. T his is certainly th e case with regard to his test

imony concerning the st andard of care and causa tion issues . However, the Whites argue in the ir brief that in ad dition to presenting Dr. Ko stuik’s opinions regardi ng the matters at issue in the c ase, they sho uld have b een perm itted to disclose to the jury that Dr. Kostuik had originall

y been retained by the

defendants. That

information rai ses substantial fairness concerns.
Informing t he ju ry that an ex pert witnes s was orig inally retained by the opp osing party creates a danger

that the j ury wi

ll d raw t wo unwarra nted conc lusions. First, it cou ld create the unwarranted impression that the opposi ng party is suppr

essing ev idence that it had a n obligation

to prese nt. See Grange r v. Wisner , 656 P.2d 1238, 12 42-43 (A riz. 1982); 8 Charles A. W right et a l., Federal Practice and Proced ure § 2032, at 447 (2d ed. 1994) (characteri

zing this infor

mation as “explosi

ve”). Second, it could induce the jury t o believe that the exp ert is som ehow more credible than the other ex perts. Accordingly, we haveheld that the info rmatio n conc erning who o riginally hired an expert w itness is ir relevan t. See State v. Wilkinson-Snowden-McGehee, I nc. , 571 S.W.2d 84 2, 843 (Tenn. C t. App. 1978). A majority of jur

isdictions considering t

he question have held t

hat it is improper

to elicit on direct examin ation of an e xpert witne ss that the exp ert was orig inally retained by the opposing party. See Peter son v. W illie , 81 F. 3d 1033 , 1037 -38 ( 11th Ci r. 1996); House v. Combined Ins. Co. o

f Am. , 168 F.R.D. at

248; Rubel v. Eli Lil

ly & Co. , 160 F.R.D. at 460;14 But see Cogdell v. Brown , 531 A.2d 1379, 1382 ( N.J. Super. Ct. Law . Div. 1987); Fenlon v. Thayer , 506 A.2d 319, 323 (N.H. 1986) (holding that the identity of who originally retained an expert is material to the weight and credibility of the expert’s testimony).

15 The parties made Dr.

Kostuik a centra

l figure in this cas

e whether he testified or not. His articles were mentioned in thepresence of the jury on at least six o

ccasions while

Drs. Spengler and Jones and their physician expert were on the stand. During cross-examination,one of theWhites’ lawyers askedDr. Chmell if he wa s aware that the d

efendants had retained Dr. Kostuik to render an opinion in this case. While the trial court found that the question was improper, it concluded that the lawyer’s refe

rence to Dr. Kos

tuik’s original emp

loyment had not bee

n intentional. Simply mentioning which party origin ally retained a p

articular expe

rt witnessdoes not

necessarily require reversal. See Peterson v. Willie, 81 F.3d at 1038. Other remedial action, such as curative or limiting instructions, may a

lso be warrante

d in appropriate

circumstances. In this case, the defendants d id notrequest the trialcourt to give a curative instruction after the trial c

ourt admonished the

Whites’ lawyer about the question. Accordingly, we perceive nobasis for holding that the Whites’ lawyer’s inadvertent

statement should p revent them from obtaining relief from the trial court’s erroneous decision to prevent them from using Dr. Kostuik’s deposition at trial. 

### -15- Granger v. Wisner , 656 P.2d at 1242; General Motors Corp. v. Jackson , 636 So. 2d at 314- 15; Seeber v. H owlette , 586 N.W .2d 445, 451 (N eb. 1998). 14

We have determin ed that the majori ty rule that

disfavors i

nforming the jury t

hat an exper t witness was originall y retained by an opposi ng party is most consi stent with t he balancing requirem ent s of Tenn. R. Evid. 403. Accordingly, the t rial court

should have permitted

the Whites to use Dr. Kost uik’s deposit

ion at tri al but should have required them to edit the port

ions of the depos ition they plan ned to use to remove any refere nce to the fact that Dr. Kos tuik had be en initially con sulte d by the d efendants. R emova l of reference s to this infor mation eliminates any r eal risk of dange

r of unfair prej udice to the defe ndants by permitting th e Whites to use Dr. K ostuik’s dep ositions at trial. 15

Under the facts of this c ase, we fin d thatthe possible ha rm to the defendants f

rom permittingthe Whites to use Dr. Kost uik’s deposit

ion at trial does

not substantial

ly outweigh the probative

value of the evidence. The defendants designated Dr. Kostuik as a testifyi ng expert witness in accorda nce w ith T enn. R. C iv. P. 26.02(4 )(A) and n ever withd rew this designation. The manner in which the Whites obtai ned Dr. Kostuik’s deposi tion complied with the lette

r and the spiri

t of the disc overy rules. Acco rdingly, t he trial cour

t erred by refusing to a llow them to rely on D r. Kostuik’s d eposition at trial.
Finally, we must de termine whethe r the trial court’s error in excluding Dr. K ostuik’s deposition

has harm le ss. Under the facts of t his case, t

he trial cour

t’s decision worked an injustice on th e Whites by pre venting them from introducing relevant eviden ce to support their medical malpractice claim. Given the cl oseness of the cas e and the weight of the expert proof against thei

r claim, we co nclude that the trial court’s e rror, more p robably tha n not,16 Wemust address a ra ther disingenuou s argument in the defendants’ brief to uphold the exclusion of Dr. Kostuik’s testimony. The defendants argue that the trial court properly excluded the testimony because

the Whites had not o

btained a waiver

of the locality

rule. The Whites had

no obligation to obtain this waiver because the defendants had already obtained the waiver from the trial court over the Whites’ objections. The tr ial court based its

decision to

exclu de Dr. Kostuik’s testimony on a misapplication of Tenn. R. Civ. P. 26.02(4)(B) and Tenn. R. Evid. 403, not b y applying the locality rule. By successfully seeking a waiver of the locality rule for

their own benefi

t, the defendants effectively hoisted themselves on their own petard. 

### -16- affected the outcome of the case. Therefore, we decli ne to find that

the trial court’s wrongful exclusion of Dr. K ostuik’s testimony w as harmless error. 16

III. D R . T HOMAS W HITESIDES ’ S T ESTIMONY

The Whites a lso argue th at the trial cour t should have str

icken Dr. Thomas Whitesides’s testimony because he did not demonstrate suf ficient knowledge a

nd understandingof the key facts of the case. Decisi

ons regarding the a

dmission or exclusion of expert te stimon y are dis cretiona ry. See McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 263 (Tenn. 1997); Lazy S even Co al Sal

es, I nc. v. Stone & Hind

s, P. C. , 813 S.W.2d 400, 406- 07 (Tenn. 19 91); Smith County v. Eatherly , 820 S.W.2d 3 66, 368 (Tenn. C t. App. 1991). Accordingly, we will not overtur n a trial cour

t’s decision either to adm it or to exclude expert testimony unless it was ar bitrary or an a

buse of di scretion

. See Buc hanan v . Harris , 902 S.W.2d 941, 945 (Tenn. C t. App. 199 5); Thomas v. Har per , 53 T enn. App. 549, 561, 385 S.W.2d 130 , 136 (1964).

An expert witness qual

ified by “knowledge, skill , experience,training,or education”

m ay tes tify to scientific, tech nical, or other s pecialized k nowled ge if it “will sub stantially assist the trier of fact to understand t

he evidence or to determine a f act in issue .” See Tenn. R. Evid. 702. A tria

l court may disal

low expert test

imon y if th e underlyin g facts or da ta show a lack o f trustw orthine ss. See Tenn. R. Evid. 703. Though t here is littl e Tennessee
case law in

terp reti ng Tenn . R. Evid. 703, one pan el of this court has suggested tha t an expert opinion with a weak fac tual foundation ma y be excluded if t he re is a danger that the jury might give the opinion

more weigh t than it d eserve s. See Knight v. Hospital Corp. Of Am. , No. 01A01-9509-CV-00408, 1997 WL 5161, at *6 (Tenn. Ct . App.Jan. 8, 19 97) ( No Tenn. R. App. P. 11 application filed). Another panel has sta ted that “t

he obvious meaning of the rule is that an opi

nion may be excl uded if it is bas ed upon facts which are not ade quately shown to be true.” Seffernick v. Saint Thomas Hospital , No. 01A01-9606-CV-00282, 1996 WL 724914, at *3 (Tenn. Ct. App. Dec. 18, 1996) , rev’d on other grounds , 969 S.W.2d 391 (Tenn. 1998).

### -17- We are convinced that Dr. Whitesides’s t

estimony, taken as

a whol e, me ets the threshold requirements of adm issibility. Though Dr. Whitesides stat ed on severaloccasions that he did not reme mber sp ecific facts, his testimony indicates he was m erely attem pting to be careful in rendering his opinion . Dr. Whitesid es’s statem ents and questions show that he wanted to ensure th at his testimo ny was n ot taken ou t of context. In no way does the rec ord reflect a lack of knowle dge and u nderstand ing of the fac ts such that h is testimony should be stricken. An inability t

o remember specific facts goes to t he weight of the evide

nce and not to its admissi

bility.

IV. T HE D IRECTED V ERDICTS FOR D RS . S PENGLER AND W YRSCH

In their fina l issue, t he Whites a ssert that the trial court erred by gra

nting direct

ed verdicts for Drs. Spengler and Wyrsch at the close of t he plaintif

fs’ proof. The out

come of th is issue is inextricably linked to the trial court’s decision to ex clude Dr. Kostuik’s deposition. We have determined that Drs. Spengl er and Wyrsch would not have been entitled t o a directed verdi

ct had Dr. Kostuik’s

deposition been considered.

A motion for direct

ed verdict requi

res thetrial court to determine wh ether, as a matter of law,the evid ence is s ufficien t to create an issue for the ju ry to de cide. See Underwood v. Waterslidesof Mid-America, Inc. , 823 S.W.2d 171, 176 (Tenn. C t. App. 1991). When faced with a motio n for dire cted ve rdict, a trial cour t must take the st

rongest legi

timate view of

the evidence and allo w a ll reasonable inferences in favor of the non-m oving par ty, while discardingall evidence

to the contrar y. See Con atse r v. Cl arksv ill e Coca- Cola Bo ttling Co ., 920 S.W.2d 646, 647 (Tenn. 19 95); Dobso n v. Shortt , 929 S.W.2d 347, 349 -50 (Te nn. Ct. App. 1996)

. Directed verdict s are proper only when

reasonable minds, a

fter consider

ing the evidence, could reach o nly one concl usion. See Eato n v. McC lain , 891 S.W.2d 587, 590 (Tenn. 1994); Will iams v. Brown , 860 S .W.2d 854, 85 7 (Ten n. 1993 ). Thus, if ther e is any dispute as to material

determinative evi

dence or any doubt as to conclusions to be d ra wn from the evidence, t

he motion must be denied. See Hurley v. Tennessee Farmers Mut. Ins. Co. , 922 S. W. 2d 887, 891 (Tenn. C t. App. 199 5); Souter v. Cracker Barrel Old Country Store, Inc ., 895 S .W.2d 681, 68 3 (Ten n. Ct. A pp. 199 4).
Reviewing courts do not weigh the evid ence, see Con atser v. Clar ksville Coca-C ola BottlingCo. , 920 S.W .2d at 647; Benton v. Snyder , 825 S.W.2d 409, 413 (Tenn. 1992), or evaluate the credibility of t he witnesses. See Benson v. Tennessee Vall ey Elec. Coop ., 868 S.W.2d 630, 63 8-39 (T enn. Ct. Ap p. 1993). Instead, they review the evidence most favora bly t o the party a gainst wh om the m otion is ma de, give that p arty the ben efit of all

### -18-

re asonable inferences fr om the evidence, and als o disregard all evidence contrar

y to tha t party’s position

. See Eato n v. McC lain , 891 S.W .2d at 590; Gann v. Internat ionalHarvester Co. , 712 S.W.2d 1 00, 105 (Tenn. 19 86).

The combin ed testimo ny of Drs . Kostuik a nd Natels on is sufficie nt to enable the Whites’ claims against

Drs. Spengler

and W yrsch to survive a directed verdict m otion. Dr. Kostuik i s a recognized authori ty on cauda equina syndrome and is also one of the fe

w experts who has conducted research r egarding the eff

ect of the ti

ming of decom pressi ve surgery on a patient’s

outcome. He testif

ied that Dr. Wyrsch

violated the applicable standard of care when he did not examine M s. White after Ms. Baundescribed h er new sy mptom s to him. He also testified that ordering a co nfirmatory myelog ram wa s not neces sarily indicated and that Dr. Spengler ’s decision t o do so delayed Ms. White’s corr ective surger

y.

Dr. Natelson test

ified that Dr. Wyrsch violated t

he applicable st

andard of care by failing to inqu ire abou t Ms. White’s n eurovascular status wh en Ms. Bau n informed D r. Wyrsch of her c ompl aints ab out pain

. He also testifi ed that Dr. Wyrsch’s oversight caused Ms. White to suffer damages t hat she would not other wise have suf

fered. In addition, Dr. Natelson testified that Dr. Spengler fell below the applicable st

andard of care by contr

ibuting to the delay in Ms. White’s treatment and caused her to suffer dam ages beca use of his actions.
Construing the t

est imony of Dr s. Ko stuik and Na telson in a light most fa vorable to the Whites, we cannot say that the only conclusion t

hat a reasonable pe

rson can draw is that Drs. Spengler and Wyrsch were not negligent and that the ir conduct d id not cause Ms. W hite to suffer damages that

she would nototherwise have suff ered. Accordingly,

we reverse the directed verdi

cts in favor of

Drs. Spengler and Wyrsch.

V. T HE A DEQUACY OF THE P ROOF OF C AUSATION

The defendant physicians and Vanderbilt Univer sity Medical Center

argue that the Whites should no t be entitled to a new trial be cause they failed to prov e that any o f their acts
or omissions were a cause-in-fact of Ms. W hite’s injuries.Specificall y, they assert

that the Whites failed to pr

ove with expert testimony ex actl y which injuries we re caused b y their delay in performing the decompre ssive surgery rather than by the causa equina itself.

A plaintif

f in a medicalmalpractice act ion must prove that he

or she suffered i

njuries that would not otherwise ha ve o ccurred as a resul t of the defendant ’s negligent act or

### -19-

omission. See Tenn. Code Ann. § 29-26-115(a)(3) (1980). A plaint

iff must show that t

he negligent

act or omission

“more likely than

not was the cause in f

act of the harm.” Kilpatrick

v. Bryant , 868 S.W.2d 594, 602 (Tenn . 1993)

. Causation in fact is a matter of pr

obability and not possibili

ty, and must be shown to a reasonable degreeof medic al certain ty. See Volz v. Ledes , 895 S.W .2d 677, 67 9 (Tenn. 1 995); White v. Methodist Hosp. S. , 844 S.W.2d 642, 648-49 (Tenn. Ct. App. 1992). Once cause-in-fact is pr oven , the focus sh ifts to proxim ate
cause -- whether the law, as a matter of pol icy, will hol

d the de fendant responsible f or the neglige nt cond uct and its conse quenc es. See Kilpatrick v. Bryant , 868 S.W.2d at 598.

Dr. Natelson, the Whites ’ medical expert, testified t hat it is more li

kely than not tha

t the defendants’ negl

igence caused Ms. White t o suffer inj uries that

she would not have otherwise suff

ered . He also stated that the defendants coul

d have diagnosed and evacuated the hematoma before Ms. White developed ca uda equin a syndrome a nd that “[i]t’s more likely than not that t

he sooner that t

he bl ood clot was re moved, the better of f the patient would end up.” This test imony is suffici

ent evidenc e of causatio n to overcome a directed verdict. Dr. Natelson testified to a reason able degre e of medica l certainty that M s. White suffered damages because of thedefendants’ negl igence. The law does not r equire the leve

l of specifici ty and certaint

y that the defenda

nts advocate, but

instead dict

ates that the plaintiff produce evidence showing that it is more lik ely than no t that thedefendant’s negl igence caused his or he r injuries

.

VI.

We reverse the di

rected verdict

s for Drs. Spengler

and Wyrsch and the judgment for Dr. Jones and Vanderbilt Unive rsity Medical Cent

er and rem a nd the case to the trial court fora new trial con sistent w ith this op inion. W e also tax the c osts of this appeal, joi ntly and severally to Vand erbilt University Me dical Center, Dan M. Spengler, Clement K. Jones, a nd Robe rt Brad ley W yrsch, fo r which execu tion, if ne cessary , may is sue.

______________________________ WILLIAM C. KOCH, JR ., J UDGE

CONCUR:

_______________________________ BEN H. CANTRELL, JUDGE

_______________________________

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WALTER W. BUSSART, JUDGE