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Collier v. Roussis

Court of Appeals of Tennessee, Knoxville

August 7, 2017

CHAYCE COLLIER
v.
PERICLIS ROUSSIS, M.D., ET AL.

          Session March 23, 2017

         Appeal from the Circuit Court for Knox County No. 2-562-12 William T. Ailor, Judge.

         Chayce Collier, a minor, by and through his natural parent and next friend, Kendall Collier ("Plaintiff") sued Periclis Roussis, M.D. and Fort Sanders Perinatal Center and Fort Sanders Regional Medical Center ("the Hospital") for injuries allegedly suffered by Plaintiff when his mother had an allergic reaction during labor. After trial before a jury, the Circuit Court for Knox County ("the Trial Court") entered judgment on the jury's verdict that Dr. Roussis was not negligent and that the nurses employed by the Hospital were not negligent and dismissed the suit. Plaintiff appeals to this Court raising several issues including whether the Trial Court erred in allowing the admission of previously undisclosed testimony from the nurses and a defense expert witness, among other things. We find and hold that the Trial Court erred in allowing the previously undisclosed testimony of the nurses and the defense expert witness. We, therefore, vacate the Trial Court's judgment and remand this case for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated Case Remanded

          Joe Bednarz, Sr. and Joe Bednarz, Jr., Hendersonville, Tennessee, for the appellant, Chayce Collier, a minor, by and through his natural parent and next friend, Kendall Collier.

          James G. O'Kane and Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, Periclis Roussis, M.D.

          Rick L. Powers and Rachel Park Hurt, Knoxville, Tennessee, for the appellee, Fort Sanders Perinatal Center and Fort Sanders Regional Medical Center.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and JOHN W. MCCLARTY, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         In June of 2009, Plaintiff's mother, Kendall Collier ("the Patient"), went into labor and was admitted to the Hospital. Shortly after the Patient's admission to labor and delivery and per normal protocol, the Hospital's nurses administered Ampicillin to the Patient. The Patient experienced an unforeseen allergic reaction to the Ampicillin. This suit arose out of the events that occurred when the Patient suffered that reaction. The Patient gave birth to Plaintiff a few hours after suffering the reaction to the Ampicillin. Plaintiff was diagnosed with brain injury including developmental delay and cerebral palsy.

         In 2012, Plaintiff, through his mother, sued Dr. Roussis and the Hospital for the injuries allegedly sustained during the Patient's reaction to the Ampicillin. Plaintiff alleged, among other things, that Dr. Roussis fell below the standard of care by failing to administer epinephrine when the Patient experienced the reaction to the Ampicillin. Plaintiff also alleged, among other things, that the Hospital nurses fell below the standard of care by failing to monitor and document the Patient's blood pressure readings when the Patient had the reaction to the Ampicillin.

         The case proceeded to a ten day trial before a jury. After trial, the Trial Court entered judgment on the jury's verdict on August 4, 2015, that Dr. Roussis was not negligent and that the nurses employed by the Hospital were not negligent and, therefore, dismissed the suit with prejudice. Plaintiff filed a motion for new trial, which the Trial Court denied. Plaintiff appealed to this Court.

         Discussion

         Although not stated exactly as such, Plaintiff raises nine issues on appeal: 1) whether the Trial Court erred in allowing previously undisclosed testimony from the nurses; 2) whether the Trial Court erred in allowing previously undisclosed testimony from defense expert witnesses; 3) whether the Trial Court erred in restricting testimony from Plaintiff's expert about inconsistencies between the testimony of Dr. Roussis and the medical record; 4) whether the Trial Court erred in allowing allegedly speculative testimony from defense expert witnesses; 5) whether the Trial Court erred in prohibiting Plaintiff from cross-examining defense expert witnesses with literature published after 2009; 6) whether the Trial Court erred in directing a verdict and instructing the jury to disregard testimony about the failure to record blood pressure readings; 7) whether defense counsel made improper statements during closing argument that impacted the verdict; 8) whether the Trial Court erred in refusing to grant a mistrial; and, 9) whether the Trial Court erred in fulfilling its duty as the thirteenth juror.

         We begin by considering whether the Trial Court erred in allowing previously undisclosed testimony from the nurses, testimony which was inconsistent with the nurses' earlier deposition testimony. On the fourth day of trial, Plaintiff's counsel called Karen Hensley, R.N. as a witness. Nurse Hensley was one of the nurses employed by the Hospital who was involved in the care of the Patient during labor and delivery. Plaintiff's counsel asked Nurse Hensley if she had any independent recollections of the events that occurred on the day of Plaintiff's birth. Nurse Hensley responded: "A few, yes, sir, I do." Plaintiff's counsel then asked if Nurse Hensley had disclosed those recollections during her deposition. Nurse Hensley responded: "There's been a few things that I've recalled since the deposition, but there's been other evidence that's been presented since then." Nurse Hensley then was asked what she had remembered since her deposition was taken, and she responded: "The pictures that your client's family had taken, there were some things that I saw there and recognized the patient a little more from there."

         Out of the presence of the jury, Plaintiff's counsel raised an objection to the new testimony Nurse Hensley was about to present. The Hospital's counsel informed the Trial Court that Nurse Hensley "looked at the pictures that [the Patient's family] made, and it brought up memories about that Dinamap machine." The Trial Court allowed Plaintiff's counsel to conduct a voir dire examination of Nurse Hensley during which Nurse Hensley revealed that she and the other nurses had been shown some photographs during a pre-trial meeting with the Hospital's counsel and that these photographs caused her to recall that "blood pressures were being taken by a Dinamap." Nurse Hensley further testified that she "saw [the blood pressure readings on the Dinamap] while [she] was caring for the patient." Nurse Hensley further stated: "As soon as I saw that she had a Dinamap applied, I knew that blood pressures had been taken, and the patient was not hypotensive, or we would have treated that."

         This testimony about a Dinamap machine monitoring the Patient's blood pressure was not disclosed during Nurse Hensley's deposition. During her deposition, Nurse Hensley testified that her only recollection of the events came from the medical chart. The medical chart shows two blood pressure readings documented by a fetal monitor and taken approximately a half an hour apart. The chart also shows a blood pressure reading written in by Dr. Roussis. The blood pressure reading noted by Dr. Roussis apparently was taken between the two readings taken by the fetal monitor. The medical chart contained no readings taken by a Dinamap.

         During her deposition when Nurse Hensley was asked if she had any way to determine what the Patient's blood pressure was during the time between the two blood pressure readings taken by the fetal monitor, which is when the Patient experienced the reaction to the Ampicillin, Nurse Hensley stated: "The only way to determine that would be if we did a manual blood pressure." Nurse Hensley then stated: "If I had done [a manual blood pressure], I would have documented it." Nurse Hensley could not recall anyone taking any other blood pressure readings. Nurse Hensley was asked several times if she had any recollections of the events at issue, and each time she testified that she had no independent recollection other than what was written in the medical chart.

         The Trial Court also allowed Plaintiff's counsel to conduct a voir dire examination of Karen Ott, R.N., another of the Hospital's nurses involved in caring for the Patient. Nurse Ott gave testimony similar to that given by Nurse Hensley about being shown photographs during a pre-trial meeting with the Hospital's counsel that jogged her memory about the events at issue. Similar to the situation with Nurse Hensley, Nurse Ott offered new testimony about a Dinamap machine monitoring the Patient's blood pressure although during her deposition Nurse Ott had stated that she had no recollection about the events other than what was in the medical record. During the voir dire, however, Nurse Ott stated: "we were continuously glancing over at that [Dinamap] monitor to see what her blood pressures were."

         After conducting the voir dire examinations of Nurse Hensley and Nurse Ott, Plaintiff's counsel moved for a mistrial. The Trial Court denied the motion. The Trial Court then instructed the attorneys to allow Plaintiff's counsel to re-depose the nurses during the off-hours while the trial continued. The presentation of evidence was altered to allow Plaintiff to do this prior to the nurses testifying before the jury. Plaintiff's expert witnesses, however, already had testified and been released before Plaintiff discovered that the nurses were going to offer testimony new and different from their deposition testimony, and Plaintiff was unable to recall his expert nursing witness.

         Plaintiff argues in his brief on appeal that he was severely prejudiced by the new evidence offered by the nurses and that the Hospital had a duty pursuant to Tenn. R. Civ. P. 37.03 to supplement and disclose to Plaintiff the new testimony prior to trial. In pertinent part, Rule 37.03 provides:

A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. . . .

         Tenn. R. Civ. P. 37.03(1). As pertinent, Tenn. R. Civ. P. 26.05 provides:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information therafter acquired, except as follows:
(2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which the party (A) knows that the response was incorrect when made; or (B) knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Tenn. R. Civ. P. 26.05(2).

         The Hospital argues in its brief on appeal that it had no duty to supplement and disclose to Plaintiff that after being shown by the Hospital's attorney the photographs of the Patient the Hospital's nurses remembered information that changed their testimony. The Hospital bases this argument, in part, upon the fact that the nurses employed by the Hospital were not parties to this suit. Although conceeding that it would have had a duty to disclose newly discovered testimony of the Hospital's corporate representatives, the Hospital asserts that it had no duty to supplement with regard to these non-party employee nurse witnesses. This argument is disengenous.

         Our Supreme Court has discussed the definition of the word 'party' stating:

The word "party" is not a term of art uniformly defined at common law or by statute; rather, its meaning depends upon the context in which it appears. See, e.g., Tenn. Code Ann. § 39-11-401(a) (2010) ("A person is criminally responsible as a party to an offense, if the offense is committed by the person's own conduct, by the conduct of another for which the person is criminally responsible, or by both."); State v. Flood, 219 S.W.3d 307, 314 (Tenn. 2007) (holding that a rape victim was not a "party" for purposes of the hearsay exception for party admissions); Monceret v. Bd. of Prof'l Responsibility, 29 S.W.3d 455, 460 (Tenn. 2000) (holding that the professional obligation of an attorney to obtain consent before communicating with a represented "party" extends to a witness represented by counsel); Boles v. Smith, 37 Tenn. (5 Sneed) 105, 106 (1857) (holding that a landlord was not a "party" to an action of ejectment where the trial court improperly allowed him to conduct his tenant's defense).
These examples demonstrate, moreover, that general definitions of "party, " while helpful, cannot be dispositive. Compare Boles, 37 Tenn. at 107 ("By the term party, in general, is meant one having a right to control the proceedings, to make a defence, to adduce and cross-examine witnesses, and to appeal from the judgment."), with Black's Law Dictionary 1154 (8th ed. 2004) (defining "party" as "one by or against whom a lawsuit is brought.").

Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 49 (Tenn. 2012).

         In another case, one involving a disciplinary action against an attorney who had deposed a witness without obtaining the consent of the witness's attorney, our Supreme Court discussed the meaning of the word 'party' as used in a disciplinary rule stating:

The initial question in this case deals with the meaning and scope of "party" as used in the Rule. According to Black's Law Dictionary 1122 (6th ed.1990), "party" includes any "person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually." Id. Another source, however, contains multiple definitions of "party, " including: "a person who participates or is concerned in an action, proceeding, plan, etc., " and "either of the persons or sides concerned in a legal matter." Webster's New World Dictionary 1037 (2d ed.1980). Accordingly, to the extent that the term is reasonably susceptible to more than one meaning, it is ambiguous.
In a formal opinion released on July 28, 1995, the American Bar Association agreed that the word "party" as used in the rule is ambiguous and stated that "[t]he key to resolving this ambiguity . . . is consideration of the purposes intended to be served by the Rule." ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396 (1995). The ABA observed that interests of "protecting the client-lawyer relationship from interference by [adverse] counsel, and protecting clients from disclosing privileged information that might harm their interests, are not limited ...

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