IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 1, 2016 Session

PATRICK R. MILLER v. VANDERBILT UNIVERSITY

Appeal from the Circuit Court for Davidson County

No. 11C3836Thomas W. Brothers, Judge

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No. M2015-02223-COA-R3-CV – Filed September 29, 2017

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RICHARD H. DINKINS, JUDGE, concurring in part and dissenting in part.

I concur in so much of the majority opinion that affirms the trial court’s exclusion 

of testimony regarding Mr. Miller’s health insurance status and grant of a directed verdict 

on the claim for punitive damages. I dissent from the grant of a directed verdict on the 

remaining claims, however, because I believe the proof introduced was sufficient to 

establish a prima facie case of liability. 

The standards applicable to a motion for a directed verdict were succinctly set 

forth in Brown v. Christian Bros. University:

A motion for a directed verdict provides a vehicle for deciding questions of 

law; the question presented is whether the plaintiff has presented sufficient 

evidence to create an issue of fact for the jury to decide. Appellate courts 

must conduct a de novo review of a trial court’s ruling on a motion for a 

directed verdict, applying the same standards that govern the trial court’s 

determination. A directed verdict cannot be based upon speculation, 

conjecture, guesswork, or a mere spark or glimmer of evidence. A directed 

verdict is appropriate only when evidence, viewed reasonably, supports 

only one conclusion. If “reasonable minds could ... differ as to the 

conclusions to be drawn from the evidence,” the motion must be denied. 

Motions for a directed verdict require more certainty and proof than do 

motions for an involuntary dismissal. In reviewing a motion for a directed 

verdict, courts must take the strongest legitimate view of the evidence 

against the directed verdict and must deny the motion in any case where all 

reasonable persons would not reach the same conclusion. Only if there is 

no material evidence in the record that would support a verdict for the 
2

plaintiff under any of the plaintiff’s theories, may the trial court’s action in 

directing a verdict be sustained. Accordingly:

To avoid a directed verdict under Tenn. R. Civ. P. 50, the 

nonmoving party must present some evidence on every 

element of its case—enough evidence to establish at least a 

prima facie case. Normally, a directed verdict is proper only 

where no material evidence exists on one or more elements 

that the non-moving party must prove. Whether the trial 

court should have directed a verdict presents [the appellate 

court] with the legal question of whether material evidence 

was introduced on every element sufficient to create a jury 

issue.

428 S.W. 3d 38, 49-50 (Tenn. Ct. App. 2013) (quoting Richardson v. Miller, 44 S.W.3d 

1, 30 (Tenn. Ct. App. 2000) (internal citations omitted). 

Measured against this standard, I believe the proof introduced by Mr. Miller was 

sufficient to survive the motion for directed verdict. Both Dr. Felts and Dr. Gandy 

opined as to the applicable standards of care, the deviations therefrom, and causation. 

The record shows that Mr. Miller’s white blood cell count was elevated on November 2, 

the date of his last surgery and three days prior to his release, symptomatic of an 

infection; with no medical attention being directed to that condition, the infection 

progressed and resulted in the amputation of a portion of his leg. I do not believe that the 

standard the court is to apply in considering a motion for directed verdict required the 

grant of the motion. To the extent the court would require that a specific physician be 

named, I believe Dr. Gandy’s reference to Dr. Mir, quoted in the majority opinion, while 

not the clearest identification of the responsible physician, is sufficient to meet the 

agency principles applicable in this case and would require Vanderbilt to proceed with 

the presentation of its proof. Further, I believe that, if there were any question in the trial 

court’s mind, Mr. Miller’s motion to reopen the proof should have been granted; I discern 

no unfairness to the defendant in allowing Mr. Miller an opportunity to recall Dr. Gandy 

for this purpose. 

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RICHARD H. DINKINS, JUDGE