FILED

December 30, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MARGARET WHITE and )

MURL WHITE, )

)

Plaintiffs/Appellants, )

)

VS. )

)

THE VANDERBILT UNIVERSITY, ) Davidson Circuit

THE VANDERBILT UNIVERSITY 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/Appellants: For Defendants/Appellees:

Jeffrey A. Garrety H. Lee Barfield

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., JUDGE
1

Spinal stenosis is 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 the lower part of the subarachnoid

space within the vertebral canal below the first 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 malpractice action stemsfrom a rare post-operative complication of back

surgery called the cauda equina syndrome. A patient diagnosed with the syndrome filed suit

in the Circuit Court for Davidson County alleging that four physicians and the hospital where

her back surgery was performed had caused her permanent injury by negligently failing to

monitor, diagnose, and treat her post-operative condition. The trial court granted summary

judgment for one physician and directed verdicts for two others, and a jury returned a verdict

for the remaining physician and the hospital. We have dete rmined that the directed verdicts

for two of the physicians and the jury’s verdict for the hospital and one other physician must

be set aside because the court erroneously prevented the patient from using at trial the

depositions of one of the defendants’ designated expert witnesses. 

I.

Margaret White and her husband of almost fifty years live in Jackson, Tennessee. Mr.

White is a retired railroad conductor, and Ms. White retired as a salesperson in 1983 to take

care of her mother. Prior to the events giving rise to this lawsuit, Ms. White had genera lly

been in good health and had been devoting most of her time and energy to homemaking,

gardening, church activities, and serving as a Red Cross volunteer at a local hospital. 

After Ms. White began to experience lower back pain, she consulted several Jacksonarea physicians who determined that surgery was indicated but who also recommended that

the surgery be postponed for a time. As Ms. White’s back pain worsened, she consulted Dr.

Dan M. Spengler, a Nashville orthopaedic surgeon. Dr. Spengler diagnosed Ms. White’s

condition as spinal stenosis 1 and recommended surgery. On October 25, 1991, Dr. Spengler

and Dr. Clement K. Jones, a fellow in spinal surgery, performed the surgery at Vanderbilt

University Medical Center. The surgery was a success and is not the subject of this

litigation.

Ms. White’s post-operative recovery was uneventful for the first two days following

surgery. At 11:00 p.m. on Sunday, October 27, 1991, Catalina Baun, Ms. White’s nurse,

conducted a neurovascular examination with normal results. However, four hours later at
2Cauda 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 neurologic damage. Symptoms include incontinence, bilateral sciatica and

motor weakness of the lower extremities, 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. Gordy eds. 3d ed. 1999). Ms. White’s compression was the result of an epidural

hematoma.

-3-

approximately 4:00 a.m. on October 28, 1991, Ms. White asked her husband to summon Ms.

Baun because she was suffering from pain in her lower buttocks and right leg that “was just

so bad, I could hardly stand it.”

Ms. Baun, following standard physician’s orders, gave Ms. White pain medication.

At 4:18 a.m., Ms. Baun paged Dr. Robert Bradley Wyrsch, the junior resident orthopaedic

physician on duty, because Ms. White ’s pain had not le ssened. A dispute exists concerning

whether Ms. Baun told Dr. Wyrsch that Ms. White’s symptoms were new and progressive.

Dr. Wyrsch simply instructed Ms. Baun to give Ms. White more pain medication.

Approximately two hours later, between 6:00 and 6:30 a.m., Ms. White was examined for

the first time by Dr. Michael J. Chmell, a second-year orthopaedic resident. Dr. Chme ll

ordered more pain medication and a sked Dr. Jones, who had assisted Dr. Spengler during

Ms. White’s surgery, to examine Ms. White.

Dr. Jones eventually examined Ms. White between 8:15 and 8:30 a.m. and diagnosed

her condition as cauda equina syndrome,2 a rare complication of spinal surgery. Dr. Jones

summoned Dr. Spengler who conducted his own examination and ordered an emergency

myelogram to confirm the location of the compression. At 11:30 a.m., the physicians

reviewed the myelogram, and at 12:35 p.m., M s. White unde rwent emergency surgery. 

Because of these post-operative complications, Ms. White lost bowel and bladder

control and suffered back pain for severa l months. She still experiences pain and discomfort

that interferes with daily activities 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 suit in the Circuit Court for Davidson County against

Drs. Spengler, Jones, Wyrs ch, and Chmell and Vanderbilt University Medical Center,

seeking to recover damages for the delay in diagnosing and treating the causa equina

syndrome. The trial court granted Dr. Chmell a summary judgment prior to trial and directed

verdicts for Drs. Spengler and Wyrsch at the close of the plaintiff’s proof. Thereafter, the

jury returned a verdict for Dr. Jone s and Vanderbilt University Medical Center. On this
3The Whites are not taking issue with the summary judgment for Dr. Chmell.

4Dr. Kostuik has published numerous articles on the 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 the locality 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 in refuting

plaintiff’s [sic] theory in this case that the defendants acted too slowly in conducting surgery in

response to plaintiff’s presentation of cauda equina syndrome.” In a supporting 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 refusal to permit them to use the

deposition testimony of one of the defendants’ experts designated as a testifying witness, the

directed verdicts for Drs. Spengler and Wyrsch, and the trial court’s refusal to strike the

testimony of one of the defendants’ experts.3

 

II.

THE EXCLUSION OF DR. JOHN P. KOSTUIK’S DEPOSITION TESTIMONY

We first take up the question regarding the Whites’ efforts to introduce portions of the

depositions of one of the defendants’ designated expe rts during the ir case-in-chie f, as well

as their desire to use these depositions in rebuttal and to cross-examine the defendants’ other

expert witnesses. The trial court held that the Whites could not use these depositions for any

purpose until the defendants actually called the expert as a witness. We disagree.

A.

After the Whites filed suit, the defendants enlisted the assistance of Dr. John P.

Kostuik, an orthopaedic surgeon recognized nationally as an expert on the development and

treatment of cauda equina syndrome.4

 Because Dr. Kostuik lives and practices in Maryland,

the defendants sought and obtained a judicial waiver of the locality rule5

 to enable him to

testify.6

 The Whites first deposed Dr. Kostuik by telephone on August 21, 1996. During this

deposition, Dr. Kostuik opined that Ms. Baun and Dr. Wyrsch should have conducted their

own neurovascular examination of Ms. White after she began complaining of pain at 4:00

a.m. on October 28, 1991. In addition, he stated that Ms. White’s condition should have been

diagnosed earlier than 8:30 a.m. and tha t obtaining the myelogram caused an unnecessary

delay of the remedial surgery.
-5-

Despite Dr. Kostuik’s seemingly adverse testimony during the telephone deposition,

the defendants decided to obtain a videotaped deposition from Dr. Kostuik for possible use

at trial. Accordingly, the parties’ lawyers traveled to Baltimore and again deposed Dr.

Kostuik on August 29, 1996. On this occasion, Dr. Kostuik repeated that M s. Baun should

have performed a nursing neurovascular examination on Ms. White at 4:00 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 not been prompt and that there was no “absolute

indication” than a mye logram needed to be performed. 

The Whites listed Dr. Kostuik as one of their potential witnesses on their witness list

filed on September 3, 1996, and also disclosed that Dr. Kostuik’s two depositions were

among the exhibits they planned to introduce at trial. On the following day, the defendants

filed their witness and exhibit list stating that Dr. Kostuik was among the witnesses “who

may be called to testify.” 

When the trial commenced on September 9, 1996, the Whites requested the trial court

to limit the number of expert witnesses called by the defendants. The de fendants sought to

head off the Whites’ use of Dr. Kostuik’s testimony by filing motions in limine to prevent

the Whites from using Dr. Kostuik’s depositions and from alluding to the substance of any

of their experts’ testimony during voir dire, opening statements, or during the crossexamination of any other defense witness. During a hearing on these motions, the de fendants

informed the trial court that Dr. Kostuik was “particularly important in terms of causation”

and that Dr. Kostuik wo uld testify in person if called as a witness. Based on these

representations, the trial court declined to grant the Whites’ motion to limit the number of

the defendants’ witnesses. The court also ruled tha t the Whites could not use Dr. Kostuik’s

depositions in their case-in-chief but reserved deciding whether to permit them to use th e

depositions in rebuttal or during their cross-examination of the defendants’ expert witnesses.

The subject of Dr. Kostuik’s deposition resurfaced on September 13, 1996 before the

defendants began to present their evidence. The trial court inquired whether the parties had

found any additional authorities regarding the permissible use of the depositions. After the

parties restated their positions, the trial court decided that it was not ready to rule on the use

of Dr. Kostuik’s depositions but indicated that it was inclined to permit the Whites to use

them for cross-examination and rebuttal with some limitations. 

At the beginning of the next day of trial, the trial court ruled definitively that the

Whites could not use Dr. Kostuik’s depositions for rebuttal if the defendants did not call him

as a witness. However, the trial court held that the Whites could use the depositions during
7

See Overstreet v. Shoney’s, Inc., No. 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 they avoided mentioning that Dr. Kostuik had

originally been the defendants’ witness. Later, the trial court modified its holding by stating

that “unless that expert is going to be called to testify at trial, a party has the right to

designate . . . [him] as a consultant at any point. And once they [the defendants] elect not to

utilize . . . [the expert] at trial, the other party may not . . . discover the opinions. And if they

have been discovered, if there have been depositions, [the other party] . . . may not utilize

those depositions at trial.”

B.

STANDARDS FOR REVIEWING EVIDENTIARY DECISIONS

The admission or exclusion of evidence is within the trial court’s disc retion. See

Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998); Otis v. Cambridge

Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). The discretionary nature of the

decision does not shield it completely from appellate review but does result in subjecting it

to less rigorous appellate scrutiny. See Tennessee Dep’t of Health 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 filed); BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *2

(Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed) . Because, by their

very nature, discretionary decisions involve a choice among acceptable alternatives,

reviewing courts will not second-guess a trial court’s exercise of its discretion simply

because the trial court chose an alternative that the appellate courts would not have chosen.

See Overstreet v. Shoney’s, Inc., ___ S.W.3d ___, ___ (Tenn. Ct. App. 1999). 7

Discretionary decisions require cons cientious judgment. See BIF v. Service Constr.

Co., 1988 WL 72409, at *2. They must take the applicable law into account and must also

be consistent with the facts before the court. See Overstreet v. Shoney’s, Inc., ___ S.W.3d

at ___. Appellate courts will set aside a discretionary decision only when the trial court has

misconstrued or misapplied the controlling legal principles or has acted inconsistently with

the substantial weight of the evidence. See Overstreet v. Shoney’s, Inc., ___ S.W.3d at ___.

Thus, a trial court’s discretionary decision should be reviewed to determine: (1) whether the

factual basis for the decision is supported by the evidence, (2) whether the trial court

identified and applied the applicable legal principles, and (3) wheth er the trial court’s

decision is within the range of acc eptable alternatives. See BIF v. Service Constr. Co., 1988
8

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

In 1997, the Tennessee Supreme Court amended Tenn. R. Civ. P. 26.02(4)(A)(ii) to permit

depositions of experts as a matter of right.

-7-

WL 72409, at *3. Appellate courts should permit a discretionary decision to stand if

reasonable judicial minds can differ concerning its soundness. See Overstreet v. Shoney’s,

Inc., ___ S.W.3d at ___. 

Concluding that a trial court improperly excluded otherwise admissible evidence does

not end the inquiry. The erroneous exclusion of evidence will not require reversal of the

judgment if the evidence would not have affected the outcome of the trial even if it had been

admitted. See Hensley v. Harbin, 782 S.W.2d 480, 482 (Tenn. Ct. App. 1989); Pankow v.

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

C.

THE DISCOVERY OF THE OPINIONS OF AN OPPONENT’S EXPERT

The Tennessee Rules of Civil Procedure permit the discovery of relevant, nonprivileged information. See Wright v. United Servs. Auto Ass’n, 789 S.W.2d 911, 915 (Tenn.

Ct. App. 1990); 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 important, policy is

that discovery should enable the parties and the courts to seek the truth so tha t disputes will

be decided by facts rather than by legal maneuvering. See Harrison v. Greeneville ReadyMix, Inc., 220 Tenn. 293, 302, 417 S.W.2d 48, 52 (1967); Pettus v. Hurst, 882 S.W.2d 783,

786 (Tenn. Ct. App. 1993). The second policy is that the discovery rules should not permit

less diligent lawyers to benefit from the work of their more diligent opponents. See

Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 357 (Tenn. Ct. App. 1985). Both

these policies are evident in the rules governing the discovery of experts.

The courts and commentators generally divide experts into four classifications for

discovery purposes.8 The first classification includes experts a pa rty expects to c all at trial.

At the time of this proceeding, Tenn. R. Civ. P. 26.02(4)(A) permitted the party’s opponents

to learn by interrogatories the names of these experts and the substance of their testimony.

Further discovery of these experts could be obtained only by agreement or on motion and

court order.9
10Courts construing rules similar to Tenn. R. Civ. P. 26 have held that a party may place a

previously designated testifying expert beyond the reach of an opposing party by redesignating the

expert from a testifying witness to a consultant prior to the witness’s deposition. See Ross v.

Burlington 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.2d 864, 874-75 (Ind. Ct. App. 1995); General Motors Corp. v. Jackson, 636 So. 2d 310, 313-14

(Miss. 1992). Some courts, however, will not give this effect to the redesignation of a testifying

expert if they determine that the parties are undertaking to suppress evidence or seeking to shield the

expert witness from discovery for any other improper purpose that violates the clear purpose and

intent of the discovery 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 discovery for examining

physicians under Tenn. R. Civ. P. 35, see Kennedy v. Superior 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

designated as 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 retained or not, who have been

consulted by a party in anticipation of litigation or in preparation for trial but who will not

be called as a witness. Except as provided in Tenn. R. Civ. P. 35 pertaining to examining

physicians, Tenn. R. Civ. P. 26.02(4)(B) provides that neither the identity of these experts

nor their opinions can be discovered without a showing that “the party seeking discovery

cannot obtain facts or opinions on the same subject by other means.” 

The third classification includes experts who were not specifically retained in

anticipation of litigation or in preparation for trial, such as regular employees of a party or

treating physicians. Because these experts do not fit within Tenn. R. Civ. P. 26.02(4)(A) or

26.02(4)(B), their identity, as well as their facts and opinions, are freely discoverable a s with

any ordinary witness. See Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 258 (Tenn. Ct. App.

1990); Alessio v. Crook, 633 S.W.2d 770, 779-80 (Tenn. Ct. App. 1982).

The fourth classification includes experts designated by a party as a witness expected

to testify at trial but whose designation is subsequently withdrawn.10 The designation of

these experts as testifying witnesses, even if that designation is subsequently withdrawn,

takes an opposing party’s demand to depose and use the expert at trial out of the

requirements of Tenn. R. Civ. P. 26.02(4)(B). However, the Tenn. R. Civ. P. 26.02(4)(A)

designation does not automatically entitle the opposing party to depose or use another party’s

expert at trial. Rather, the trial court must use its discretion, guided by Tenn. R. Evid. 403's

balancing of probative value against prejudice, to determine whether the opposing pa rty

should be permitted to call or depose or use the other party’s expert a t trial. See House v.

Combined Ins. Co. of Am., 168 F.R.D. 236, 245-46 (N.D. Iowa 1996). 

Shielding consulting experts from discovery runs contrary to the broad policy favoring

the discovery of non-privileged information; however, it serves several other legitima te
-9-

interests. It encourages lawyers to seek expert advice to prope rly evaluate and present their

client’s position. See Rocky Mountain Nat’l Gas Co. v. Cooper Indus., Inc., 166 F.R.D. 481,

482 (D. Colo. 1996); McKinnon v. Smock, 445 S.E.2d 526, 528 (Ga. 1994); Tom L. Scott,

Inc. v. McIlhaney, 798 S.W.2d 556, 559 (Tex. 1990). Without this protection, parties would

be reluctant to consult experts because they would be forced to live or die based on the

unknown opinion of the expert consulted. See General Motor Corp. v. Gayle, 924 S.W.2d

222, 230 (Tex. App. 1996). It also prevents the unfairness of permitting a pa rty to benefit

from the opposing party’s efforts and expense. See Durflinger v. Artiles, 727 F.2d 888, 891

(10th Cir. 1984). In addition, shielding consulting witnesses from discovery helps assure the

availability of experts who will assist with litigated disputes and minimizes the prejudice

caused by revealing the prior retention of an expert by the opposing party. See Rubel v. Eli

Lilly & Co., 160 F.R.D. 458, 460 (S.D.N.Y. 1995).

Most of the reasons in favor of shielding a consulting expert from discovery become

attenuated once a party identifies or designates an expert as a witness expected to testify at

trial. Identifying an expert as a testifying witness in accordance with Tenn. R. Civ. P.

26.02(4)(A) has the practical effect of waiving the protection of Tenn. R. Civ. P. 26.02(4)(B),

see Brown v. Hamid, 856 S.W.2d 51, 54 (Mo. 1993), and of making the expert available to

be deposed. See Brown v. Ringstad, 142 F.R.D. 461, 465 (S.D. Iowa 1992); In re Shell Oil

Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990). Once an expert has been deposed, the

limitation on the discovery of consulting experts ha s little or no applic ation, see Agron v.

Trustees of Columbia Univ., 176 F.R.D. 445, 449 (S.D.N.Y. 1997), and the expert is

recognized as presenting part of the common body of discoverable and generally admissible

information and testimony available to all parties. See House v. Combined Ins. Co. of Am.,

168 F.R.D. at 245.

While Dr. Kostuik may once have been a consulting expert, the defendants eventually

designated him as a testifying expert pursuant to Tenn. R. Civ. P. 26.02(4)(A). Not only did

they designate him as a testifying expert, they voluntarily made him available for two

depositions – one of the depositions to preserve his testimony because of his legal

unavailability. In addition, the lawyers representing the defendants participated in these

depositions without objection. Instead of attempting to redesignate Dr. Kostuik as a

consulting expert following his depositions, the defendants repeatedly reinforced Dr.

Kostuik’s status as a testifying expert by including him on their list of potential trial

witnesses and alluding to his expected appearance in court to testify in person. 

Based on these facts, we find that Tenn. R. Civ. P. 26.02(4)(B) is inapplicable to the

defendants’ motion in limine for two reasons. First, Tenn. R. Civ. P. 26.02(4)(B) governs
-10-

limitations on discovery, not on the admissibility of properly discovered evidence. Second,

this record contains no evidence that the Whites abused the discovery process or that they

learned of Dr. Kostuik’s identity or opinions through any means inconsistent with either the

letter or the spirit of the discovery rules. Because Tenn. R. Civ. P. 26.02(4)(B) is

inapplicable, all that is left for the court to do is to determine the admissibility of Dr.

Kostuik’s depositions under the applicable provisions of the Tennessee Rules of Civil

Procedure and the Tennessee Rules of Evidenc e. See Argon v. Trustees of Columbia Univ.,

176 F.R.D. at 449-50; Rubel v. Eli Lilly & Co., 160 F.R.D. at 460-61 (both cases finding that

in the absence of discovery abuse, the admissibility of expert testimony is governed by Fed.

R. Evid. 403). 

D.

THE ADMISSIBILITY OF DR. KOSTUIK’S TESTIMONY AT TRIAL

The Whites’ request to read portions of Dr. Kostuik’s depositions into evidence and

to use the depositions to cross-examine the defendants’ experts triggers the consideration of

three issues. First, we must determine whether, under the facts of this case, Tenn. R. Civ. P.

32 permitted the use of deposition testimony at trial. Second, we must decide whether the

portions of Dr. Kostuik’s testimony that the Whites’ desired to use were relevant. Third, we

must determine whether the probative value of the portions of the depositions the Whites

proposed to use outweighs the possible prejudice to the defendants. We decide each of these

questions in the Whites’ favor.

1.

USE OF DR. KOSTUIK’S DEPOSITIONS

We turn first to the question of whether the Whites could have used Dr. Kostuik’s

deposition at trial. Tenn. R. Civ. P. 32.01(3) provides that the deposition of a witness may

be used at trial for any purpose if the court finds that the witness is either at a greater distance

than one hundred miles from the place of the trial or that the witness is out of the state. Dr.

Kostuik meets both criteria because he resides and works in Baltimore, Maryland.

Accordingly, because there is no evidence that the Whites procured his absence, Dr.

Kostuik’s status as a witness satisfies the distance and geographic requirements in Tenn. R.

Civ. P. 32.01(3).
11The deposition is not subject to a hearsay objection. See Tenn. R. Evid. 804(b)(1).

12Negligence and causation are normally required to be established by expert medical

testimony. See Kennedy v. Holder, 1 S.W.3d 670, 672 (Tenn. Ct. App. 1999); Stokes v. Leung, 651

S.W.2d 704, 706 (Tenn. Ct. App. 1982). However, the need for expert medical proof can be

dispensed with when the acts of negligence are so obvious that they come within the common

knowledge of 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 this

case.

-11-

Tenn. R. Civ. P. 32.01(3) also provides that depositions of expe rts taken pursuant to

the provisions of Tenn. R. Civ. P. 26.02(4) may only be used at trial to impeach the

testimony of the deponent. The comments to Tenn. R. Civ. P. 32.01 make clear that this

restriction applies only to discovery depositions of an adversary’s expert. See Tenn. R. Civ.

P. 32.01 advisory commission cmt. to 1986 amendment. Dr. Kostuik’s videotaped

deposition of August 29, 1996 was not a discovery deposition taken by the Whites but rather

was a deposition taken at the defendants’ insistence to preserve Dr. Kostuik’s testimony.

Accordingly, this deposition meets the requirements of Tenn. R. Civ. P. 32.01(3). Dr.

Kostuik’s telephone deposition of August 21, 1996 was a discovery deposition taken by the

Whites. Rather than being completely inadmissible, however, it can be used to impeach Dr.

Kostuik’s testimony in his August 29, 1996 deposition.

Having determined that Dr. Kostuik’s depositions satisfy the conditions for use at trial

in Tenn. R. Civ. P. 32.01, we must still determine whethe r the deposition testimony would

be admissible under the applicable rules of evidence if Dr. Kostuik we re to have given the

same testimony live in the courtroom.11 The answer to this question requires us to consider

two rules of evidence – Tenn. R. Evid. 401 and 403. 

2.

THE RELEVANCE OF DR. KOSTUIK’S TESTIMONY

This is a medical malpractice action. To prevail, the Whites had to present expert

evidence (1) establishing the applicable standard of care, (2) demonstrating that the

defendants’ conduct fell below that standard of care, and (3) that the defendants’ conduct was

the proxima te cause of injuries that would not otherwise have occurred. See Tenn. Code

Ann. § 29-26-115(a) (1980); Moon v. Saint Thomas Hosp., 983 S.W.2d 225, 229 (Tenn.

1998); Hurst v. Dougherty, 800 S.W.2d 183, 185 (Tenn. Ct. App. 1990). 12 Accordingly, it

was incumbent on the Whites to present expert testimony regarding the standard of care of

the nurse and the four physicians treating Ms. White on Oc tober 27 and 28, 1991 and

whether the conduct of these health care providers at that time fell below the applicable
-12-

standard of care and caused Ms. White to sustain injuries that she would not otherwise have

suffered.

In light of the Whites’ burden of proof, there is little need for a prolonged discussion

concerning whether Dr. Kostuik’s testimony is relevant to their case. Tenn. R. Evid. 401

defines relevant evidence as “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the a ction more probable or less probable than

it would be withou t the evidence.” Dr. Kostuik’s testimony relates to the issues of the

applicable standard of care for the hea lth care providers tre ating Ms. White, as well as to the

issues of breach of this standard of care and causation. Because each of these issues was

hotly contested, there is no question tha t Dr. Kostuik’s testimony was relevant to the issues

at trial.

3.

BALANCING UNDER TENN. R. EVID. 403

We now turn to the balancing of the probative value of Dr. Kostuik’s testimony

against the countervailing factors identified in Tenn. R. Evid. 403. This balancing process

has several general ground rules. It begins by recognizing that the rules of evidence favor

the admissibility of relevant evidence, see 10 James W. Moore et al., Moore’s Federal

Practice § 403.02[3] (2d ed. 1995), and that relevant evidence 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 relevant evidence under Tenn. R. Evid. 403 is an

extraordinary remedy that should be used sparingly, see United States v. Rodriguez, 192 F.3d

946, 949 (10th Cir. 1999); Caparotta v. Entergy Corp., 168 F.3d 754, 758 (5th Cir. 1999);

Westcott v. Crinklaw, 68 F.3d 1073, 1077-78 (8th Cir. 1995); Trevino v. Texas Dep’t of

Protective & Regulatory Servs., 893 S.W.2d 243, 248 (Tex. App. 1995); Towner v. State, 685

P.2d 45, 49 (Wyo. 1984), and persons seeking to exclude otherwise admissible and relevant

evidence have a significant burden of pe rsuasion. See Neil P. Cohen e t al., Tennessee Law

of Evidence § 403.3, at 152 (3d ed. 1995) (“Tennessee Law of Evidenc e”). 

Each Tenn. R. Evid. 403 question must be decided on its own facts, see Tennessee

Law of Evidence § 403.7, at 156, and the trial court must be careful not to usurp the function

of the jury in the process. See 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal

Practice and Procedure § 5220, at 306 (1978) (“Wright & Graham”). The balancing process

under Tenn. R. Evid. 403 is a two-step process. The trial court must first balance the

probative value of the evidence sought to be excluded against the countervailing factors.

After the court has engaged in the balancing analysis, it may then exercise its discretion to
13The Whites also indicated that they intended to rely on either the testimony of or portions

of the depositions of the defendant physicians. It is obvious 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 prejudice substantially outweighs

the probative value of the evidence. See Wright & Graham § 5214, at 264.

During the first phase of the analysis, the court must determine whether the

countervailing factors in Tenn. R. Evid. 403 “substantially outweigh” the probative value of

the evidence. The trial court has no discretion to exclude evidence under Tenn. R. Evid. 403

unless it concludes that the probative worth of the evidenc e is substantially outweighed by

one or more of the counte rvailing factors. See Wright & Graham § 5214, at 263. Thus, a

trial court should not exclude evidence under Tenn. R. Evid. 403 when the balance between

the probative worth of the evidence and the countervailing factors is fairly debatable . See

Wright & Graham § 5221, at 309.

The trial court’s decision to exclude Dr. Kostuik’s deposition must be viewed in light

of the circumstances at the trial. When the trial began, the Whites had indicated that their

case would rest on the expert testimony of a Knoxville neurosurgeon, a nurse from Jackson,

and portions of Dr. Kostuik’s depositions.13 At the same time, the defendant physicians and

the hospital had signaled their intention to call three out-of-state physicians, including Dr.

Kostuik, and three nurses to testify about the standard of care and causation issues. In

addition to these experts, each of the defendants intended to give their expert opinion that

they were not negligent and that their actions or inactions did not cause Ms. White to suffer

an injury she would not otherwise have suffered.

The probative value of Dr. Kostuik’s opinions regarding the actions of Ms. Baun, Dr.

Wyrsch, Dr. Jones, and Dr. Spengler is significant because it is consistent with the expert

opinion of the only neurosurgeon testifying for the Whites. Dr. Kostuik questioned Ms.

Baun’s and Dr. Wyrsch’s failure to examine Ms. White when she reported the new pain in

her legs. He also observed that Dr. Jones’s two-hour delay in examining Ms. White was

“probably” not prompt and that Dr. Spengler could have proceeded to perform the emergency

surgery without the myelogram.

The value of this evidence must now be weighed against the six countervailing factors

in Tenn. R. Evid. 403. Three of these, undue delay, waste of time, and the needless

presentation of cumulative evidence, can be quickly discounted. Permitting the Whites to

use Dr. Kostuik’s depositions would not have delayed the trial or wasted time. The Whites

already had the depositions in hand and reading the relevant portions into the record would
-14-

not have taken an appreciable amount of time. Likewise, Dr. Kostuik’s deposition testimony

would not have been cumulative. The trial court had earlier concluded, at the defendants’

insistence, that Dr. Kostuik’s testimony was not cumulative when it declined to grant the

Whites’ motion at the beginning of the trial to require the defendants to limit the number of

their expert witnesses. Just as Dr. Kostuik’s testimony 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 Tenn. R. Evid. 403 countervailing factors are confusion of the

issues and misleading the jury. Dr. Kostuik’s testimony does not run afoul of these factors

either. His testimony concerning the applicable standard of c are and causation is focused and

directly on point. His answers are responsive to the questions and are couched in terms that

can be easily understood by the lay persons on the jury. Considering both his testimony as

a whole, as well as the portions of the testimony the Whites sought to use at trial, we find that

Dr. Kostuik’s testimony would have materially assisted the trier of fact.

The final countervailing factor in Tenn. R. Evid. 403 is the danger of unfair prejudice.

At the outset, we find that the substance of much of Dr. Kostuik’s deposition testimony does

not create a danger of unfair prejudice to the defendants. This is certainly the case with

regard to his testimony concerning the standard of care and causation issues. However, the

Whites argue in the ir brief that in addition to presenting Dr. Kostuik’s opinions regarding the

matters at issue in the c ase, they should have been permitted to disclose to the jury that Dr.

Kostuik had originally been retained by the defendants. That information raises substantial

fairness concerns.

Informing the jury that an expert witness was originally retained by the opposing party

creates a danger that the jury will draw two unwarranted conc lusions. First, it could create

the unwarranted impression that the opposing party is suppressing evidence that it had an

obligation to present. See Granger v. Wisner, 656 P.2d 1238, 1242-43 (Ariz. 1982); 8

Charles A. Wright et al., Federal Practice and Procedure § 2032, at 447 (2d ed. 1994)

(characterizing this information as “explosive”). Second, it could induce the jury to believe

that the expert is somehow more credible than the other experts. Accordingly, we have held

that the information conc erning who originally hired an expert witness is irrelevant. See

State v. Wilkinson-Snowden-McGehee, Inc., 571 S.W.2d 842, 843 (Tenn. Ct. App. 1978).

A majority of jurisdictions considering the question have held that it is improper to elicit on

direct examination of an expert witne ss that the expert was originally retained by the

opposing party. See Peterson v. Willie, 81 F.3d 1033, 1037-38 (11th Cir. 1996); House v.

Combined Ins. Co. of Am., 168 F.R.D. at 248; Rubel v. Eli Lilly & Co., 160 F.R.D. at 460;
14But 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).

15The parties made Dr. Kostuik a central figure in this case whether he testified or not. His

articles were mentioned in the presence of the jury on at least six occasions while Drs. Spengler and

Jones and their physician expert were on the stand. During cross-examination, one of the Whites’

lawyers asked Dr. Chmell if he was aware that the defendants 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 reference to Dr. Kostuik’s original employment had not been intentional. Simply

mentioning which party originally retained a particular expert witness does not necessarily require

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

instructions, may also be warranted in appropriate circumstances. In this case, the defendants did

not request the trial court to give a curative instruction after the trial court admonished the Whites’

lawyer about the question. Accordingly, we perceive no basis for holding that the Whites’ lawyer’s

inadvertent statement should prevent 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. Howlette, 586 N.W.2d 445, 451 (Neb. 1998).14

We have determined that the majority rule that disfavors informing the jury that an

expert witness was originally retained by an opposing party is most consistent with the

balancing requirements of Tenn. R. Evid. 403. Accordingly, the trial court should have

permitted the Whites to use Dr. Kostuik’s deposition at trial but should have required them

to edit the portions of the deposition they planned to use to remove any reference to the fact

that Dr. Kostuik had be en initially consulted by the defendants. Remova l of reference s to

this information eliminates any real risk of danger of unfair prejudice to the defendants by

permitting the Whites to use Dr. Kostuik’s depositions at trial. 15

Under the facts of this c ase, we find that the possible harm to the defendants from

permitting the Whites to use Dr. Kostuik’s deposition at trial does not substantially outweigh

the probative value of the evidence. The defendants designated Dr. Kostuik as a testifying

expert witness in accordance with Tenn. R. Civ. P. 26.02(4)(A) and never withdrew this

designation. The manner in which the Whites obtained Dr. Kostuik’s deposition complied

with the letter and the spirit of the discovery rules. Accordingly, the trial court erred by

refusing to a llow them to rely on Dr. Kostuik’s deposition at trial.

Finally, we must de termine whethe r the trial court’s error in excluding Dr. Kostuik’s

deposition has harmless. Under the facts of this case, the trial court’s decision worked an

injustice on the Whites by preventing them from introducing relevant evidence to support

their medical malpractice claim. Given the closeness of the case and the weight of the expert

proof against their claim, we conclude that the trial court’s error, more probably than not,
16We must address a rather disingenuous 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 obtained 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 trial court based its decision to exclude Dr. Kostuik’s

testimony on a misapplication of Tenn. R. Civ. P. 26.02(4)(B) and Tenn. R. Evid. 403, not by

applying the locality rule. By successfully seeking a waiver of the locality rule for their own benefit,

the defendants effectively hoisted themselves on their own petard. 

-16-

affected the outcome of the case. Therefore, we decline to find that the trial court’s wrongful

exclusion of Dr. Kostuik’s testimony was harmless error. 16

III.

DR. THOMAS WHITESIDES’S TESTIMONY

The Whites a lso argue that the trial court should have stricken Dr. Thomas

Whitesides’s testimony because he did not demonstrate sufficient knowledge and

understanding of the key facts of the case. Decisions regarding the admission or exclusion

of expert te stimony are dis cretiona ry. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257,

263 (Tenn. 1997); Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 406-

07 (Tenn. 1991); Smith County v. Eatherly, 820 S.W.2d 366, 368 (Tenn. Ct. App. 1991).

Accordingly, we will not overturn a trial court’s decision either to admit or to exclude expert

testimony unless it was arbitrary or an abuse of discretion. See Buchanan v. Harris, 902

S.W.2d 941, 945 (Tenn. Ct. App. 1995); Thomas v. Harper, 53 Tenn. App. 549, 561, 385

S.W.2d 130, 136 (1964).

An expert witness qualified by “knowledge, skill, experience, training, or education”

may testify to scientific, technical, or other specialized knowledge if it “will substantially

assist the trier of fact to understand the evidence or to determine a fact in issue.” See Tenn.

R. Evid. 702. A trial court may disallow expert testimony if the underlying facts or data

show a lack of trustworthiness. See Tenn. R. Evid. 703. Though there is little Tennessee

case law interpreting Tenn. R. Evid. 703, one panel of this court has suggested tha t an expert

opinion with a weak fac tual foundation may be excluded if there is a danger that the jury

might give the opinion more weight than it deserves. See Knight v. Hospital Corp. Of Am.,

No. 01A01-9509-CV-00408, 1997 WL 5161, at *6 (Tenn. Ct. App. Jan. 8, 1997) (No Tenn.

R. App. P. 11 application filed). Another panel has stated that “the obvious meaning of the

rule is that an opinion may be excluded if it is based upon facts which are not adequately

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 testimony, taken as a whole, meets the

threshold requirements of admissibility. Though Dr. Whitesides stated on several occasions

that he did not remember specific facts, his testimony indicates he was merely attempting to

be careful in rendering his opinion. Dr. Whitesides’s statements and questions show that he

wanted to ensure that his testimony was not taken out of context. In no way does the record

reflect a lack of knowledge and understanding of the fac ts such that his testimony should be

stricken. An inability to remember specific facts goes to the weight of the evidence and not

to its admissibility.

IV.

THE DIRECTED VERDICTS FOR DRS. SPENGLER AND WYRSCH

In their fina l issue, the Whites assert that the trial court erred by granting directed

verdicts for Drs. Spengler and Wyrsch at the close of the plaintiffs’ proof. The outcome of

this issue is inextricably linked to the trial court’s decision to exclude Dr. Kostuik’s

deposition. We have determined that Drs. Spengler and Wyrsch would not have been

entitled to a directed verdict had Dr. Kostuik’s deposition been considered.

A motion for directed verdict requires the trial court to determine whether, as a matter

of law, the evidence is sufficient to create an issue for the jury to decide. See Underwood v.

Waterslides of Mid-America, Inc., 823 S.W.2d 171, 176 (Tenn. Ct. App. 1991). When faced

with a motion for dire cted verdict, a trial court must take the strongest legitimate view of the

evidence and allow all reasonable inferences in favor of the non-moving party, while

discarding all evidence to the contrary. See Conatser v. Clarksville Coca-Cola Bottling Co.,

920 S.W.2d 646, 647 (Tenn. 1995); Dobson v. Shortt, 929 S.W.2d 347, 349-50 (Tenn. Ct.

App. 1996). Directed verdicts are proper only when reasonable minds, after considering the

evidence, could reach only one conclusion. See Eaton v. McClain, 891 S.W.2d 587, 590

(Tenn. 1994); Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993). Thus, if there is any

dispute as to material determinative evidence or any doubt as to conclusions to be drawn

from the evidence, the motion must be denied. See Hurley v. Tennessee Farmers Mut. Ins.

Co., 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995); Souter v. Cracker Barrel Old Country

Store, Inc., 895 S.W.2d 681, 683 (Tenn. Ct. App. 1994). 

Reviewing courts do not weigh the evidence, see Conatser v. Clar ksville Coca-Cola

Bottling Co., 920 S.W.2d at 647; Benton v. Snyder, 825 S.W.2d 409, 413 (Tenn. 1992), or

evaluate the credibility of the witnesses. See Benson v. Tennessee Valley Elec. Coop., 868

S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Instead, they review the evidence most

favorably to the party against whom the motion is made, give that party the benefit of all
-18-

reasonable inferences from the evidence, and also disregard all evidence contrary to that

party’s position. See Eaton v. McClain, 891 S.W.2d at 590; Gann v. International Harvester

Co., 712 S.W.2d 100, 105 (Tenn. 1986).

The combined testimony of Drs. Kostuik and Natelson is sufficient to enable the

Whites’ claims against Drs. Spengler and Wyrsch to survive a directed verdict motion. Dr.

Kostuik is a recognized authority on cauda equina syndrome and is also one of the few

experts who has conducted research regarding the effect of the timing of decompressive

surgery on a patient’s outcome. He testified that Dr. Wyrsch violated the applicable standard

of care when he did not examine Ms. White after Ms. Baun described her new symptoms to

him. He also testified that ordering a confirmatory myelogram wa s not necessarily indicated

and that Dr. Spengler’s decision to do so delayed Ms. White’s corrective surgery.

Dr. Natelson testified that Dr. Wyrsch violated the applicable standard of care by

failing to inquire about Ms. White’s neurovascular status when Ms. Baun informed Dr.

Wyrsch of her complaints about pain. He also testified that Dr. Wyrsch’s oversight caused

Ms. White to suffer damages that she would not otherwise have suffered. In addition, Dr.

Natelson testified that Dr. Spengler fell below the applicable standard of care by contributing

to the delay in Ms. White’s treatment and caused her to suffer damages because of his

actions.

Construing the testimony of Drs. Kostuik and Natelson in a light most favorable to

the Whites, we cannot say that the only conclusion that a reasonable person can draw is that

Drs. Spengler and Wyrsch were not negligent and that their conduct did not cause Ms. White

to suffer damages that she would not otherwise have suffered. Accordingly, we reverse the

directed verdicts in favor of Drs. Spengler and Wyrsch.

V.

THE ADEQUACY OF THE PROOF OF CAUSATION

The defendant physicians and Vanderbilt University Medical Center argue that the

Whites should not be entitled to a new trial be cause they failed to prove that any of their acts

or omissions were a cause-in-fact of Ms. White’s injuries. Specifically, they assert that the

Whites failed to prove with expert testimony exactly which injuries were caused by their

delay in performing the decompre ssive surgery rather than by the causa equina itself.

A plaintiff in a medical malpractice action must prove that he or she suffered injuries

that would not otherwise have occurred as a result of the defendant’s negligent act or
-19-

omission. See Tenn. Code Ann. § 29-26-115(a)(3) (1980). A plaintiff must show that the

negligent act or omission “more likely than not was the cause in fact of the harm.” Kilpatrick

v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993). Causation in fact is a matter of probability and

not possibility, and must be shown to a reasonable degree of medic al certainty. See Volz v.

Ledes, 895 S.W.2d 677, 679 (Tenn. 1995); White v. Methodist Hosp. S., 844 S.W.2d 642,

648-49 (Tenn. Ct. App. 1992). Once cause-in-fact is proven, the focus shifts to proximate

cause -- whether the law, as a matter of policy, will hold the defendant responsible for the

negligent conduct and its consequenc es. See Kilpatrick v. Bryant, 868 S.W.2d at 598.

Dr. Natelson, the Whites’ medical expert, testified that it is more likely than not that

the defendants’ negligence caused Ms. White to suffer injuries that she would not have

otherwise suffered. He also stated that the defendants could have diagnosed and evacuated

the hematoma before Ms. White developed cauda equin a syndrome and that “[i]t’s more

likely than not that the sooner that the blood clot was removed, the better off the patient

would end up.” This testimony is sufficient evidence of causatio n to overcome a directed

verdict. Dr. Natelson testified to a reasonable degree of medical certainty that Ms. White

suffered damages because of the defendants’ negligence. The law does not require the level

of specificity and certainty that the defendants advocate, but instead dictates that the plaintiff

produce evidence showing that it is more likely than not that the defendant’s negligence

caused his or he r injuries. 

VI.

We reverse the directed verdicts for Drs. Spengler and Wyrsch and the judgment for

Dr. Jones and Vanderbilt University Medical Center and remand the case to the trial court

for a new trial consistent with this opinion. We also tax the costs of this appeal, jointly and

severally to Vanderbilt University Medical Center, Dan M. Spengler, Clement K. Jones, and

Robert Bradley Wyrsch, for which execution, if necessary, may issue. 

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________

BEN H. CANTRELL, JUDGE 

_______________________________
-20-

WALTER W. BUSSART, JUDGE