Session March 23, 2017
from the Circuit Court for Knox County No. 2-562-12 William
T. Ailor, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated Case Remanded
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.
G. O'Kane and Raymond G. Lewallen, Jr., Knoxville,
Tennessee, for the appellee, Periclis Roussis, M.D.
L. Powers and Rachel Park Hurt, Knoxville, Tennessee, for the
appellee, Fort Sanders Perinatal Center and Fort Sanders
Regional Medical Center.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which ANDY D. BENNETT and JOHN W. MCCLARTY, JJ., joined.
MICHAEL SWINEY, CHIEF JUDGE.
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.
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.
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.
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.
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."
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."
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.
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
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."
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.
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. . . .
R. Civ. P. 37.03(1). As pertinent, Tenn. R. Civ. P. 26.05
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
Tenn. R. Civ. P. 26.05(2).
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
Supreme Court has discussed the definition of the word
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
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).
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