Brittany Borngne Ex Rel. Miyona Hyter v. Chattanooga-Hamilton County Hospital Authority ( 2021 )

07/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 2, 2020 Session
BRITTANY BORNGNE EX REL. MIYONA HYTER v. CHATTANOOGA-
HAMILTON COUNTY HOSPITAL AUTHORITY ET AL.
Appeal from the Circuit Court for Hamilton County
No. 15C814 J.B. Bennett, Judge
No. E2020-00158-COA-R3-CV
This health care liability action arises from injuries suffered by a minor, Miyona Hyter,
during her birth. Miyona Hyter, a minor by and through her next friend and mother,
Brittany Borngne (“Plaintiff”) sued, among others, Dr. Michael Seeber who delivered the
child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with
the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to
recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber
for assistance sooner than she did. The Circuit Court for Hamilton County (“the Trial
Court”), by agreed order, granted Dr. Seeber partial summary judgment on all claims of
direct negligence against him; he remained in the case as a defendant only upon Plaintiff’s
theory that he was vicariously liable for Nurse Mercer’s actions as her supervising
physician. During his deposition, Dr. Seeber declined to answer questions that he argued
required him to render an expert opinion regarding Nurse Mercer’s care during times that
Dr. Seeber was not present and had no involvement in Plaintiff’s care. The Trial Court
declined to require Dr. Seeber to answer questions that “call[] for an opinion by Dr. Seeber
that asks him to comment on the actions of other healthcare providers and does not involve
his own actions, as required by Lewis v. Brooks,” 66 S.W.3d 883, 887-88 (Tenn. Ct. App.
2001). After Nurse Mercer’s deposition, she submitted an errata sheet that substantively
altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet,
arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes
to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the
opportunity to reopen Nurse Mercer’s deposition and to fully cross-examine her at trial
about the changes. The case proceeded to trial before a jury, which returned a verdict in
Defendants’ favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to
answer the questions at issue in his deposition. Deeming this case distinguishable from
Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify
concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial. We
1
also reverse the Trial Court in its decision to exclude proof of Miyona Hyter’s pre-majority
medical expenses. We affirm the Trial Court as to the remaining issues.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed, in Part, and Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the Court, in which JOHN W.
MCCLARTY, J., joined. KRISTI M. DAVIS, J., filed a separate opinion concurring in part and
dissenting in part.
Timothy R. Holton, Memphis, Tennessee, for the appellant, Brittany Borngne ex rel.
Miyona Hyter.
Joshua A. Powers and Alexandra E. Weiss, Chattanooga, Tennessee, for the appellee,
Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System.
Dixie Cooper and Jordan Gibson, Brentwood, Tennessee, for the appellees, Michael John
Seeber, Jennifer Mercer, and Caring Choice Women’s Center, P.C.
OPINION
Background
On March 3, 2014, Plaintiff, who was at term in her pregnancy, was admitted to the
hospital for observation and then for induction of labor. She was diagnosed with high
blood pressure and at risk for preeclampsia. Plaintiff’s delivery began on the evening of
March 5, 2014. It was managed by Nurse-midwife Mercer. After about an hour and 48
minutes of pushing, the baby had made no progress from zero station. The fetal heart
monitoring strip showed concerning signs that everyone agreed warranted close
observation and monitoring. Nurse Mercer called Dr. Seeber around 11:18 p.m. He arrived
at the hospital about 45 minutes later, reviewed Plaintiff’s chart, and ordered a c-section to
be performed as soon as possible. The child was not breathing when she was delivered.
She was diagnosed with permanent brain damage as a result of lack of oxygen and suffered
severely debilitating injuries.
Plaintiff brought this action in the Trial Court against Dr. Seeber; Nurse Mercer;
Sylvia Stephenson (another nurse who provided care during delivery); Caring Choice
Women’s Center, P.C., their employer; and Chattanooga-Hamilton County Hospital
Authority, d/b/a Erlanger Health System. Dr. Seeber moved for summary judgment on the
claims of direct negligence against him. The Trial Court granted his motion in an order
stating,
2
Plaintiff did not dispute Dr. Seeber’s motion and argument. . . .[A]ll claims
of direct negligence asserted against Dr. Seeber are hereby dismissed with
prejudice.
The only remaining claim against Dr. Seeber is under Plaintiff’s
theory that he is vicariously liable for the actions of Jennifer Mercer, C.N.M.,
by virtue of his role as her supervising physician.
During Dr. Seeber’s deposition, defense counsel stated that he “has asserted Lewis
v. Brooks and will not be commenting on the standard of care of the nurses, either directly
or indirectly.” Dr. Seeber testified in pertinent part as follows:
Q: What would your expectation of Mercer be if you had a patient of your
group with minimal variability and late for an hour? What would you
expect?
A: It depends . . . if Jennifer Mercer is aware of this, that’s one thing. And if
Jennifer Mercer is unaware of this is another thing. And I don’t know
whether she’s aware or not so I can’t really ̶ I can’t really say.
Q: Let’s take it ̶ assume she was aware of it. What would your expectation
be? Late ̶
[Defense counsel:] . . . I’m going to object to this and instruct him not to
answer. You’re asking for an opinion.
Q: What would your expectation of your employee, the one you’re
supervising, be in this scenario?
[Defense counsel:] Same objection. Instruct him not to answer.
* * *
Q: Well, according to your practice, would you have expected her to tell you
that they had had late and minimal variability for an hour?
* * *
A: So your question is ̶ Jennifer Mercer called me . . . at a time when she
felt it was appropriate to call me. And that was when a combination of a lack
of progress and concern about the fetal heart tones made ̶ made it in her
opinion necessary for me to come see this patient. And that’s what ̶ that’s
exactly what she’s supposed to do.
* * *
3
Q: Would it concern you that your patient had been in the hospital with
minimal variability and lates for more than an hour before someone bothered
to call you?
* * *
[Defense counsel:] No. I’m instructing him not to answer.
[Plaintiff’s counsel:] All right. We’re going to adjourn.
After they adjourned the deposition, Plaintiff filed a motion to compel Dr. Seeber
to answer the questions, arguing that “the facts in this case are not analogous to the fact
situation presented in Lewis and Dr. Seeber should be required to answer without
limitation.” The Trial Court denied the motion, ruling as follows, in pertinent part:
[T]he question calls for an opinion by Dr. Seeber that asks him to comment
on the actions of other healthcare providers and does not involve his own
actions, as required by Lewis v. Brooks. . . . Dr. Seeber is not required to
answer it.
The Court further finds that hypothetical questions posed to Dr.
Seeber about actions of other individuals or circumstances involving patient
care while he was not involved in the patient’s care, are not permissible under
Lewis v. Brooks[.]
* * *
[Dr. Seeber] is prohibited from rendering opinions about the care provided
by others unless and until he is designated as an expert witness pursuant to
the requirements of TRCP 26. In the event Dr. Seeber is so designated, he
may be deposed as an expert witness and the costs/expenses referenced
hereinafter shall not apply.
Regarding Defendants’ Motion to Quash Dr. Seeber’s deposition, the
Motion is granted in part and denied in part. The Court finds that the Plaintiff
may reconvene Dr. Seeber’s deposition to ask any additional questions of Dr.
Seeber not previously asked but only to the extent the questions address Dr.
Seeber’s direct involvement and actions in the care and treatment of
[Plaintiff] and her daughter, Miyona Hyter . . .
The Motion to Quash is granted in so far as it seeks to prohibit the
Plaintiff from asking questions that are governed by Lewis v. Brooks. . . .
4
Moreover, because the Plaintiff was given the opportunity to ask all the
questions she wanted to ask about Dr. Seeber’s own actions and involvement
in the care and treatment of [Plaintiff] during his first deposition, and her
counsel refused to do so and instead adjourned the deposition to seek a ruling
by the Court on the question at issue, . . . she should be required to pay for
all expenses . . . incurred by Dr. Seeber associated with reconvening his
deposition as well as the attorney’s fees incurred by his counsel in filing that
portion of the Motion to Quash which was granted as to Dr. Seeber.
Nurse Mercer submitted an errata sheet after her deposition in which she made
changes to her testimony pursuant to Tenn. R. Civ. P. 30.05. Some of the changes were
material and substantive, and some were more simple corrections of obvious
misstatements. Nurse Mercer provided explanations for her changes on the errata sheet
and in an affidavit. The Trial Court denied Plaintiff’s motion to strike or suppress the
proposed changes based on its judgment that Rule 30.05, which by its express terms allows
“[a]ny changes in form or substance which the witness desires to make,” authorizes the
proposed changes by Nurse Mercer made after her deposition.
Dr. Marla Sammer is a pediatric radiologist who treated Miyona Hyter by reviewing
her cranial ultrasound, CT, and MRI scans. Plaintiff filed Dr. Sammer’s sworn declaration
in which she opined that “Ms. Hyter most likely suffered from severe hypoxic ischemic
encephalopathy that occurred at or around the time of her birth.” Defendants moved to
exclude Dr. Sammer’s testimony, arguing that Plaintiff had failed to timely disclose that
she would be offering her expert opinion on the timing and causation of the injuries. The
Trial Court denied the motion but also ruled that Defendants would be allowed to take a
discovery-only deposition of Dr. Sammer that “cannot be used as evidence at the trial of
this matter by any party, but may be used for cross-examination of Dr. Sammer.” The court
noted that “[n]o objection was made by Plaintiff at any time during the . . . hearing
regarding Defendants’ request to take a discovery-only deposition. . . .”
By this time, Dr. Sammer had moved to Texas. She filed a motion in a Texas court
to quash the subpoena for her deposition. This prompted Defendants to again ask the Trial
Court to exclude her as a trial witness. The Trial Court ordered as follows:
If the Motion to Quash pending in the Texas Court is denied[, the] deposition
shall occur no later than May 16, 2019. If the Motion to Quash is granted, .
. . or if the deposition does not occur due to some other legal procedure, then
the Court will convene a McDaniel hearing before trial to carry out the
Court’s “gatekeeper” function[.] To accommodate Dr. Sammer, the said
hearing may proceed via video conference with Dr. Sammer at a remote
location. . . The Court will also try to accommodate Dr. Sammer by allowing
5
a combination of the offered McDaniel hearing dates and times, such that the
hearing could begin on one of the offered dates and times, recess, and then
resume until conclusion on another of the offered dates and times.
(Footnotes in original omitted).
The Texas court denied Dr. Sammer’s motion to quash the subpoena. Her attorney
then sent a letter to defense counsel stating,
The time commitment imposed by your firm has made [Dr.
Sammer’s] participation impossible. Dr. Sammer is not able to testify at trial,
even though she was willing, because of the time commitment your firm
imposed.
This will confirm our agreement that you have removed your request
for the deposition of Dr. Sammer, if and only if, she agreed not to testify at
trial.
The jury trial was conducted in late May and early June of 2019. The jury returned
a verdict finding that neither Nurse Mercer nor Nurse Stephenson deviated from recognized
standards of acceptable professional practice. Plaintiff filed a motion for a new trial, which
the Trial Court denied. Plaintiff timely appealed to this Court.
Discussion
Although not stated exactly as such, Plaintiff raises the following issues on appeal:
1) whether the Trial Court erred in failing to quash, suppress, or strike Nurse Mercer’s
errata sheet testimony; 2) whether the Trial Court erred in “imposing onerous and
burdensome conditions on the testimony of Dr. Sammer”; 3) whether the Trial Court erred
in refusing to compel Dr. Seeber to answer questions regarding his expert opinion about
the care and treatment provided by Nurse Mercer to Plaintiff pursuant to Lewis ex rel. Lewis
v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001); and, 4) whether the Trial Court erred in
excluding proof of Miyona Hyter’s pre-majority medical expenses.
The issues on appeal primarily involve the Trial Court’s pretrial decisions regarding
discovery and admissibility of evidence. “In Tennessee admissibility of evidence is within
the sound discretion of the trial judge. When arriving at a determination to admit or exclude
even that evidence which is considered relevant[,] trial courts are generally accorded a wide
degree of latitude and will only be overturned on appeal where there is a showing of abuse
of discretion.” Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992);
accord Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (“Because decisions
6
regarding pretrial discovery are inherently discretionary, they are reviewed using the
‘abuse of discretion’ standard of review.”). As our Supreme Court explained in Lee Med.,
Inc.,
The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d
189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the decision
being reviewed involved a choice among several acceptable alternatives.
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus,
it does not permit reviewing courts to second-guess the court below, White
v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to
substitute their discretion for the lower court’s, Henry v. Goins, 104 S.W.3d
475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
(Tenn. 1998). The abuse of discretion standard of review does not, however,
immunize a lower court’s decision from any meaningful appellate scrutiny.
Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga–Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision by
(1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville,
154 S.W.3d at 42.
Lee Med., Inc., 312 S.W.3d at 524. We “review the lower court’s legal determinations de
novo without any presumption of correctness.” Id. at 525.
The first issue we address is whether the Trial Court erred in failing to quash,
suppress, or strike Nurse Mercer’s errata sheet testimony. After reviewing the transcript
of her deposition, Nurse Mercer submitted an errata sheet making 24 changes to her
testimony and explaining the reasons for the changes. The reasons included “clarification
7
of answer,” “misspoke,” and “more accurately answers the questions.” Some of the
changes involve a correction to an obvious misstatement that was not caught at the time.
For instance, the first two changes involve Nurse Mercer’s testimony as to what time she
called Dr. Seeber. She answered “yes” to the question, “we do know that you called him
ultimately at 2218 [10:18 p.m.] . . . because that’s in here?” But other testimony and
evidence in the record, including notes taken by the nurses, shows that Nurse Mercer
actually called at 2318 military time, or 11:18 p.m. Her errata sheet shows the correct time.
Some changes are relatively minor, as when she changed her answer from “potentially” to
“not likely” and from “based on what the nurse documented, based on the fetal strip” to
simply, “based on what the nurse documented.” Other changes involved more substantive
alterations of Nurse Mercer’s interpretations of the fetal heart monitoring strip. She filed
an affidavit attempting to explain the post-deposition changes, in which she stated:
In reviewing the transcript of my deposition testimony to insure I had
accurately testified about the facts and my opinions regarding the fetal heart
tracing [FHT] in this case, I pulled out the section of the tracing where I was
being asked questions and as I reviewed the decelerations that I marked
“indeterminate” I could tell from looking at my copy of the FHT that
although the tracing broke up and stopped tracing briefly, the portion of the
fetal heart rate I could see, in combination with where the lowest place on
the tracing the fetal heart rate shows up, indicates clearly that the fetal heart
rate decelerations dropped abruptly. Consistent with my testimony that an
abrupt drop in the fetal heart rate from baseline is a variable deceleration, I
made the changes to my copy of the FHT that I had marked during the
deposition, changing my label from “indeterminate” to “variable” or “likely
variable” on each deceleration where I could see evidence of the fetal heart
rate decelerating from baseline and the fetal heart rate picking up again at the
bottom of the deceleration such that drawing a line between the two “pieces”
of tracing, creates an abrupt drop in the heart rate from the baseline, which,
by definition is a variable deceleration.
All of the other changes I made to my errata sheet were because the answer
I gave was unclear, I misunderstood the question, or I misspoke.
(Brackets in original, format modified).
Plaintiff filed a motion to suppress or strike Nurse Mercer’s changed testimony in
her errata sheet. In the alternative, she argued that the Trial Court should allow the use of
her original testimony as substantive proof, that she “should be allowed to be impeached
under her self-serving changes to her testimony,” and that Nurse Mercer’s deposition
should be reopened to allow inquiry into the reason for her changed testimony. The Trial
8
Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer’s
deposition to “inquire about the reasons for the changes to the deposition testimony . . . and
the source of the changes, such as whether they came from Ms. Mercer herself or her
counsel[.]” The Trial Court also allowed Plaintiff to fully cross-examine Nurse Mercer at
trial about the errata sheet changes to her testimony.
Plaintiff argues on appeal that the Trial Court erred in allowing Nurse Mercer to
submit “an errata sheet to her deposition that changed entirely the substance and meaning
of her testimony.” Tennessee Rule of Civil Procedure 30.05 provides as follows in
pertinent part:
When the testimony is fully transcribed the deposition shall be submitted to
the witness for examination and shall be read to or by the witness, unless
such examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement of the reasons
given by the witness for making them.
(Emphasis added). Tennessee appellate courts have not had the opportunity to consider
the issue presented here. Federal Rule of Civil Procedure 30(e)(1) is similarly but not
identically worded, and so the decisions of federal courts construing the parallel rule are
potentially persuasive authority. See Thomas v. Oldfield, 279 S.W.3d 259, 262 n. 3 (Tenn.
2009) (“We may look to the interpretation of comparable federal rules for guidance”). A
number of federal jurisdictions have considered the question of whether substantive
changes in an errata sheet submitted after a deposition may be allowed, and they appear to
be fairly evenly divided in their conclusions. Most of the courts refusing to allow such
changes have quoted and applied the reasoning of Greenway v. Int’l Paper Co., 144 F.R.D.
322, 325 (W.D. La. 1992), which stated:
The purpose of Rule 30(e) is obvious. Should the reporter make a substantive
error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported
the name to be “Lawrence Smith” but the proper name is “Laurence Smith,”
then corrections by the deponent would be in order. The Rule cannot be
interpreted to allow one to alter what was said under oath. If that were the
case, one could merely answer the questions with no thought at all then return
home and plan artful responses. Depositions differ from interrogatories in
that regard. A deposition is not a take home examination.
See also, e.g., Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir. 2002)
(stating, in dicta, “we . . . do not approve of the use of such altered testimony that is
controverted by the original testimony”); E.I. DuPont De Nemours & Co. v. Kolon Indus.,
9
277 F.R.D. 286, 296-98 (E.D. Va. 2011) (discussing “two basic approaches reflected in the
decisional law” and adopting stricter approach); Touchcom, Inc. v. Bereskin & Parr, 790
F.Supp.2d 435, 465 (E.D. Va. 2011) (striking errata sheet changes it found “tactical” and
“a bit too convenient”); Wyeth v. Lupin Ltd.., 252 F.R.D. 295, 296-97 (D. Md. 2008);
Coleman v. S. Pac. Trans. Co., 997 F. Supp. 1197, 1201 (D. Ariz. 1998); Rios v. Bigler,
847 F. Supp. 1538, 1546-47 (D. Kan. 1994) (“The court will only consider those changes
which clarify the deposition, and not those which materially alter the deposition testimony
as a whole”); Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C. 1986)
(denying changes where “[b]y virtue of either the sheer number of changes, or the cutting,
pasting and mutilation, plaintiff has effectively destroyed her deposition and sabotaged the
deposition process”).
Other federal courts have interpreted Fed. R. Civ. P. 30(e) to allow subsequent
substantive changes to deposition testimony. See, e.g., Hernandez v. Rush Enter., Inc., 336
F.R.D. 534, 535-36 (E.D. Tex. 2020) (stating “[t]he majority of federal courts place no
limit on the nature of the changes a witness may make to the substance of his testimony”)
(quoting Raytheon Co. v. Indigo Sys. Corp., No. 4:07-CV-109, 2009 WL 424773, at *2
(E.D. Tex. Feb. 18, 2009)); EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 270 (3rd Cir. 2010)
(“nothing . . . requires courts to strike contradictory errata if sufficiently persuasive reasons
are given, if the proposed amendments truly reflect the deponent’s original testimony, or if
other circumstances satisfy the court that amendment should be permitted”); Podell v.
Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2nd Cir. 1997) (“‘[t]he language of the Rule
places no limitations on the type of changes that may be made[,] . . . nor does the Rule
require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for
the changes’—even if those reasons ‘are unconvincing.’”) (quoting Lugtig v. Thomas, 89
F.R.D. 639, 641 (N.D. Ill. 1981)) (brackets and ellipses in original); Devon Energy Corp.
v. Westacott, No. H-09-1689, 2011 WL 1157334, at *5-6 (S.D. Tex. Mar. 24, 2011) (“the
strict approach to changes under Rule 30(e) is unpersuasive”); Foutz v. Town of Vinton,
Va., 211 F.R.D. 293, 295 (W.D. Va. 2002).
The federal district courts within the Sixth Circuit are also split on this question.
See Trout v. FirstEnergy Corp., 339 F. App’x 560, 565-66 (6th Cir. 2009) (stating “Rule
30(e) does not allow one to alter what was said under oath” but affirming where “the district
court gave [plaintiff] the benefit of her corrected deposition testimony”); compare Lanton
v. Ocwen Loan Serv., LLC, No. 3:15-cv-372, 2018 WL 4030540, at *5 (S.D. Ohio June 29,
2018) (disallowing changes while recognizing that “Trout did not expressly rule on
whether Rule 30(e) prevents substantive alterations to testimony”) (vacated in part on other
grounds by Lanton v. Ocwen Loan Serv., LLC, 793 Fed.Appx. 398 (6th Cir. 2019)); Lewis
v. Hawkins, No. 3:16-CV-315-TAV-HBG, 2017 WL 4322825, at *5-6 (E.D. Tenn. Sept.
28, 2017) (“the majority of recent decisions within the Sixth Circuit consistently interpret
Trout as establishing a rule that an errata sheet may not be used for substantive changes to
10
testimony”) (quoting Ramirez v. Bolster & Jeffries Health Care Grp., LLC, No. 1:12-CV-
00205-GNS, 2016 WL 4132294, at *3 (W.D. Ky. Aug. 3, 2016)); Walker v. 9912 E. Grand
River Assoc., LP, No. 11-12085, 2012 WL 1110005, at *3 (E.D. Mich. Apr. 3, 2012);
EEOC v. Skanska USA Bldg, Inc., 278 F.R.D. 407, 411 (W.D. Tenn. 2012), with Buchanan
v. City of Mt. Juliet, No. 3:11-0265, 2012 WL 13034546, at *1-2 (M.D. Tenn. Sept. 26,
2012) (allowing changes “[g]iven the widely divergent case law . . . and the lack of a
controlling published Sixth Circuit opinion,” applying “dictionary definition” of the term
“substance”); Hodak v. Madison Capital Mgmt., LLC, No. 5:07-cv-05-JMH, 2008 WL
2598309, at *2 (E.D. Ky. June 25, 2008) (“a broader interpretation of Rule 30(e) is correct
when it is applied to changes made to deposition testimony through an errata sheet”);
Jermano v. Graco Children’s Prods. Inc., No. 13-cv-10610, 2015 WL 1737548, at *2 (E.D.
Mich. Apr. 16, 2015) (“it is not crystal clear in this Circuit that a deponent cannot make
substantive changes to his deposition testimony under Rule 30(e)”).
As several courts addressing this question have noted, “[g]ood arguments can be
made on both sides.” Buchanan, 2012 WL 13034546, at *1. We conclude that the Trial
Court did not err in allowing the substantive changes to Nurse Mercer’s testimony, for
several reasons. First, and most importantly, the plain and clear language of Tenn. R. Civ.
P. 30.05 expressly allows “[a]ny changes in form or substance which the witness desires
to make. . . .” As the Supreme Court has stated, “[a]lthough the rules of civil procedure
are not statutes, the same rules of statutory construction apply in the interpretation of rules.”
Thomas, 279 S.W.3d at 261. Our goal is to ascertain and give effect to the Supreme Court’s
intent in promulgating the rule without unduly restricting or expanding its coverage beyond
its intended scope. Id. “We achieve this objective by examining the text, and if the
language is unambiguous, we simply apply the plain meaning of the words used.” Fair v.
Cochran, 418 S.W.3d 542, 544 (Tenn. 2013).
The plain meaning of the word “any” is clear. See Amer. Heritage Apts., Inc. v.
Hamilton Cnty. Water & Wastewater Treatment Auth., No. E2017-01307-COA-R9-CV,
2018 WL 4150875, at *6 (Tenn. Ct. App. Aug. 29, 2018) (“Any means any.”), no appl.
perm. appeal filed (quoting U.S. v. Winans, 748 F.3d 268, 272 (6th Cir. 2014)). In
Buchanan, the court applied the dictionary definition of “substance” as follows:
Black’s Law Dictionary, 7th Ed. lists as the first definition of substance: “The
essence of something; the essential quality of something, as opposed to its
mere form . . .” Thus, the plain definition of the word substance means that
it is something more than mere form, such as an incorrect spelling of a name.
2012 WL 13034546, at *1; see also, e.g., Hernandez, 336 F.R.D. at 536 (“the text of Rule
30(e) is clear-cut . . . The rule does not specify which changes are permissible or treat
certain changes differently than others”). If we were to apply Rule 30.05 as Plaintiff
11
suggests, we would effectively be rewriting it from saying “any changes in substance are
allowed” to “some, but not all, changes are allowed.” While we understand the concerns
expressed by Plaintiff, the language of Rule 30.05 is clear and unambiguous, and it is not
the role of this Court to rewrite the Rule.
Second, the safeguards allowed by the Trial Court in this case serve to temper the
legitimate concern that a deponent may try to change his or her prior testimony as a tactical
strategy rather than a correction of a legitimate error. Here, Nurse Mercer’s original
answers remained part of the record as admissible proof, and the Trial Court allowed
Plaintiff the opportunity to reconvene Nurse Mercer’s deposition to ask her about the
changes. Plaintiff also was allowed to cross-examine Nurse Mercer at trial about the errata
sheet changes. Courts have recognized these safeguards to be a likely sufficient deterrent
to merely tactical errata sheet alterations. See Hernandez, 336 F.R.D. at 536; Podell, 112
F.3d at 103; Foutz, 211 F.R.D. at 295; Lugtig, 89 F.R.D. at 642 (“The Rule is less likely to
be abused if the deponent knows that all the circumstances ̶ the original answers as well as
the changes and the reasons ̶ will be subject to examination by the trier of fact”).1 We
affirm the Trial Court’s judgment interpreting Tenn. R. Civ. P. 30.05 to allow Nurse
Mercer’s proposed errata sheet changes to her deposition testimony under the
circumstances presented in this case including what the Trial Court allowed Plaintiff to do
to address Nurse Mercer’s changes.
The next issue we address is whether the Trial Court erred in “imposing onerous
and burdensome conditions on the testimony of Dr. Sammer.” In its order denying a new
trial, the Trial Court summarized the procedural history and its rulings on this issue as
follows:
Dr. Sammer claimed via a declaration that she arrived at diagnosis opinions
as part of her care and treatment. Although these potentially pertinent
findings and opinions were never communicated to others in the medical
record, Dr. Sammer claimed for the first time on New Year’s Eve (December
31, 2018) before a February 5th trial date that she held such opinions, and
that she had formed such opinions as “part of [her] care and treatment,”
thereby allowing her to avoid expert witness requirements. The Court, in
exercising its necessary gatekeeping role, wanted these opinions vetted
before a jury trial was held on the issues.
1
We emphasize that this case does not present a situation where a party has tried to either obtain or defeat
summary judgment by changing his or her testimony, and we need not address that issue at this time.
Plaintiff argues in her brief that “had the testimony not been allowed to be changed, partial summary
judgment for [her] on the issue of Mercer’s deviation from the standard of care would have been
appropriate.” Defendants respond by pointing out that “such a motion was never filed” and that Plaintiff
prevailed on Defendants’ motion for summary judgment on behalf of Nurse Mercer.
12
The Court determined that allowing Dr. Sammer’s unvetted,
previously unreported opinions against her former employer during a jury
trial would be overly oppressive. The Court, therefore, followed Tennessee
Rule of Civil Procedure 26 rather than Rule 32, to allow the protection of
obtaining a discovery deposition. . . .
Furthermore, though the Court had the option of conducting a
McDaniel hearing, the more judicially economical option was to have Dr.
Sammer submit to a discovery deposition . . . pursuant to Rule 26.03 . . .
rather than an ordinary deposition under Rule 32. . . . [A] discovery-only
deposition would have served the same purpose as a McDaniel hearing, with
more judicial economy for the Court and less burden on the witness herself,
because it would not have required her to attend a separate hearing.
* * *
The Court bent over backwards to avoid excluding Dr. Sammer and
to create a path which would allow her to testify. For instance, in case the
Texas court had quashed Dr. Sammer’s deposition subpoena, the Court
provided numerous dates and times for a McDaniel hearing and would have
allowed Dr. Sammer to mix and match dates and times to better fit her
schedule (e.g., the hearing could have started one day, continued on another,
and finished on a third day). The Court was also amenable to allowing Dr.
Sammer to appear for a McDaniel hearing telephonically. Then, when the
Texas court ordered Dr. Sammer to appear at the deposition, there were two
separate courts ordering Dr. Sammer to appear for a deposition. At that point,
Dr. Sammer voluntarily and unilaterally chose not to testify at trial, rather
than have her previously unreported opinions adverse to her former employer
be properly vetted.
The Court did not say the failure to give a deposition would result in
exclusion of the witness, only that it may result in the exclusion of the
witness. Dr. Sammer would have been allowed to have a path to testify to a
jury. . . . If she continued to resist, the Court would have employed its last
resort by allowing a McDaniel hearing the same morning that she would have
testified before the jury. However, Dr. Sammer chose not to testify before
the jury. At that point, the option of conducting a McDaniel hearing was
taken away from the Court.
13
Moreover, Plaintiff did not object to the Court’s offer of the discovery
deposition and, although the Court asked more than once, there was no actual
prejudice ever clearly and specifically articulated by Plaintiff.
(Emphasis in original). The Trial Court concluded that “it did not err in excluding Dr.
Sammer’s testimony,” and denied Plaintiff’s request for a new trial on this ground.
The documents in the record support the Trial Court’s characterization that it “bent
over backwards to avoid excluding Dr. Sammer” and to allow her to testify. For her part,
Dr. Sammer went to extensive lengths to avoid testifying, including hiring her own counsel
in Texas to try to quash the deposition subpoena. As we have noted, “it is well settled that
decisions with regard to pre-trial discovery matters rest within the sound discretion of the
trial court.” Willeford v. Klepper, 597 S.W.3d 454, 470 (Tenn. 2020) (quoting Benton v.
Snyder, 825 S.W.2d 409, 416 (Tenn. 1992) (internal quotation marks omitted)). The Trial
Court did not abuse its discretion in making decisions regarding Dr. Sammer’s testimony.
It does not appear that the conditions imposed on her were so “onerous” or “burdensome”
that her decision not to testify was compelled by the Trial Court.
We next address whether the Trial Court erred in refusing to compel Dr. Seeber to
answer questions regarding his expert opinion about the care and treatment provided by
Nurse Mercer to Plaintiff pursuant to Lewis v. Brooks. The Trial Court declined to compel
Dr. Seeber to testify as to his opinion of the medical care rendered by Nurse Mercer at
times when Dr. Seeber was not directly involved with Plaintiff’s medical treatment. The
Trial Court ruled that Dr. Seeber was not required to answer a question that “calls for an
opinion . . . that asks him to comment on the actions of other healthcare providers and does
not involve his own actions, as required by Lewis v. Brooks.”
The Lewis case similarly involved an injury to an infant during the child’s delivery.
66 S.W.3d at 884. The plaintiff in Lewis alleged that “Dr. Moore and Dr. Lawrence were
negligent in selecting Dr. Brooks,” who delivered the child, “to cover for them when they
were not on duty.” Id. This Court stated:
Ms. Lewis argues that the trial court erred in limiting discovery as to the
opinions of Dr. Moore and Dr. Lawrence. Sometime before the depositions
of Dr. Moore and Dr. Lawrence were to be taken, Ms. Lewis’ counsel was
advised that the defendant doctors would refuse to answer questions calling
for opinions as to the treatment of Ms. Lewis by other defendant doctors and
nurses. Ms. Lewis filed a Motion to Compel. The trial court denied the
motion, ruling that Defendants Moore and Lawrence would only be required
to testify as to opinions expected to be rendered at trial or opinions relating
to their own actions.
14
Id. at 887. Upon the plaintiff’s appeal, the Lewis Court held:
we note that Dr. Moore and Dr. Lawrence were not listed as expert witnesses
by either party. They were simply party defendants who are “experts” by
nature of their chosen field. Under the facts of the instant case, we do not
find that their expertise is subject to compulsion. As a result, we find that
the trial court did not err when it refused to compel Dr. Moore and Dr.
Lawrence to answer questions outside the realm of their own actions and
opinions that they expected to render at trial.
Id. at 888.
In Burchfield v. Renfree, No. E2012-01582-COA-R3-CV, 2013 WL 5676268(Tenn. Ct. App. Oct. 18, 2013), no appl. perm. appeal filed, the Court considered and
applied Lewis in a case where the plaintiffs tried to subpoena an expert witness, Dr.
Calundruccio, who was originally retained by a defendant doctor, to take his deposition,
against his wishes. Dr. Calundruccio filed an affidavit stating, “I do not wish to provide
further expert testimony in this case and am not in agreement to be deposed. I am not a
treating physician in this case.” Id. at *24. The Burchfield Court stated:
Applicable to this case is this Court’s opinion in Lewis v. Brooks, 66
S.W.3d 883, 887 (Tenn. Ct. App. 2001), wherein it was explained that
doctors who were party defendants in the case could not be compelled to
answer questions in discovery regarding their opinions of the treatment given
by other doctors. Determining that there were no Tennessee cases
specifically on point, this Court relied upon a Pennsylvania case styled
Pennsylvania Co. v. City of Philadelphia, 105 A. 630 (1918).
Id. at *25. Burchfield quoted the Pennsylvania case as follows, in pertinent part:
The process of the courts may always be invoked to require
witnesses to appear and testify to any facts within their
knowledge; but no private litigant has a right to ask them to go
beyond that. . . . [T]he private litigant has no more right to
compel a citizen to give up the product of his brain, than he has
to compel the giving up of material things. In each case it is a
matter of bargain, which, as ever, it takes two to make, and to
make unconstrained.
Id. The Burchfield Court held that “the trial court was correct in its determination that Dr.
Calundruccio could not be compelled to provide testimony as an expert against his will.
15
Where the expert’s agreement to serve in such capacity has been withdrawn, there is no
authority for compelling the expert to ‘give up the product of his brain.’” Id.In Waterman v. Damp, No. M2005-01265-COA-R3-CV, 2006 WL 2872432, at *9-
10 (Tenn. Ct. App. Oct. 9, 2006), R. 11 appl. perm. appeal dismissed Feb. 26, 2007, the
Court addressed the issue of whether a defendant doctor, Dr. Damp, could be compelled to
answer questions of whether his own allegedly negligent conduct conformed to the
applicable standard of care in his expert opinion. Observing the well-established principle
that “[o]rdinarily, proof of malpractice requires the use of expert testimony concerning the
applicable standard of care and the defendant’s breach,” and noting that “[o]ccasionally, .
. . such proof comes by way of the defendant himself,” id. at *9, the Waterman Court stated:
Relative to the applicable standard of care for an emergency room physician
in Nashville, Tennessee, it is Dr. Damp’s own deposition testimony that is
critical to the survival of Plaintiff’s case on summary judgment. Such use by
Plaintiff of a defendant doctor’s own testimony is appropriate for reasons
explained by the Court of Appeals of New York.
While recognizing the right of a plaintiff in a
malpractice action to call as a witness the defendant doctor, the
courts of several states have sought to limit the type of
questions which the plaintiff may put to him. Specifically, it
has been held that a defendant physician may be required to
testify to ‘facts within his knowledge[;]’ that is, ‘what (he)
actually saw and did’ but not as to whether his actions deviated
from the accepted standard of medical practice in the
community, a matter deemed to call for ‘expert opinion.’ (Hull
v. Plume, 131 N.J.L. 511, 516-517, 37 A.2d 53; see, also,
Osborn v. Carey, 24 Idaho 158, 168, 132 P. 967; Hunder v.
Rindlaub, 61 N.D. 389, 406-410, 237 N.W. 915; Forthofer v.
Arnold, 60 Ohio App. 436, 441-442, 21 N.E.2d 869; cf.
Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687.) Other
courts, however, permit the plaintiff to examine his doctor-
opponent as freely and fully as he could any other qualified
witness. (See Lawless v. Calaway, 24 Cal.2d 81, 90-91, 147
P.2d 604; State for Use of Miles v. Brainin, 224 Md. 156, 167
A.2d 117, 88 A.L.R.2d 1178; cf. Snyder v. Pantaleo, 143 Conn.
290, 122 A.2d 21.)
The latter decisions strike us as the more enlightened.
That the defendant is an ‘expert’ and that the particular
16
questions asked of him are those which only an expert can
answer, seem beside the point. It is at least arguable that the
doctor’s knowledge of the proper medical practice and his
possible awareness of his deviation from that standard in the
particular case are, in a real sense, as much matters of ‘fact’ as
are the diagnosis and examination he made or the treatment
upon which he settled. More importantly, however, by
allowing the plaintiff to examine the defendant doctor with
regard to the standard of skill and care ordinarily exercised by
physicians in the community under like circumstances and
with regard to whether his conduct conformed thereto, even
though such questions call for the expression of an expert
opinion, the courts do no more than conform to the obvious
purpose underlying the adverse-party-witness rule. That
purpose, of course, ‘is to permit the production in each case of
all pertinent and relevant evidence that is available from the
parties to the action.’ (State for Use of Miles v. Brainin, 224
Md. 156, 161, 167 A.2d 117, 119, supra; see, also, Lawless v.
Calaway, 24 Cal.2d 81, 90, 147 P.2d 604, supra.) The issue
whether the defendant doctor deviated from the proper and
approved practice customarily adopted by physicians
practicing in the community is assuredly ‘pertinent and
relevant’ to a malpractice action. Indeed, absent such proof,
the plaintiff’s case would have to be dismissed. Moreover,
evidence on this issue is, in most instances, ‘available’ from
the defendant doctor.
The importance of enabling the plaintiff to take the
testimony of the defendant doctor as to both ‘fact’ and
‘opinion’ is accentuated by recognition of the difficulty
inherent in securing ‘independent’ expert witnesses. It is not
always a simple matter to have one expert, a doctor in this case,
condemn in open court the practice of another, particularly if
the latter is a leader in his field. In consequence, the plaintiff’s
only recourse in many cases may be to question the defendant
doctor as an expert in the hope that he will thereby be able to
establish his malpractice claim.
McDermott v. Manhattan Eye, Ear & Throat Hospital et al., 15 N.Y.2d 20,
255 N.Y.S.2d 65, 203 N.E.2d 469, 473-4 (N.Y. 1964).
17
Waterman, 2006 WL 2872432, at *9-10.
The Waterman decision places Tennessee among those jurisdictions recognizing
that medical experts alleged to have injured a patient by their own direct causal negligence
may be compelled to answer questions as to whether their conduct conformed to the
applicable standard of care. See McDermott, 203 N.E.2d 469, 473-74 (N.Y. 1964) and
cases cited therein; Ransom v. Radiology Specialists of the Nw., 425 P.3d 412, 421 (Or.
2018) (stating “we align ourselves with other courts that permit a plaintiff to question a
physician whose conduct is at issue in a medical negligence action about the physician’s
conduct, even if such questions call for their opinion…”); Parker v. Poole, 111 A.3d 101,
107 (N.J.Super.A.D. 2015); Carney-Hayes v. Nw. Wisconsin Home Care, Inc., 699 N.W.2d
524, 529 (Wis. 2005) (“A medical witness who is alleged to have caused injury to the
plaintiff by her medical negligence may be required to give her opinion on the standard of
care governing her own conduct”); Abbey v. Jackson, 483 A.2d 330, 333-34 (D.C. App.
1984) (“Nor do witnesses with personal knowledge of relevant facts have a right to refuse
to testify on the ground that the answer will be ‘expert’ evidence and they have received
no expert witness fee”); Webb v. Priest, 413 So.2d 43, 46 (Fla. App. 1982); Wilkinson v.
Vesey, 295 A.2d 676, 682 (R.I. 1972); Anderson v. Florence, 181 N.W.2d 873, 876 (Minn.
1970); Iverson v. Lancaster, 158 N.W.2d 507, 521-22 (N.D. 1968); Dark v. Fetzer, 149
N.W.2d 222, 224 (Mich. App. 1967); Oleksiw v. Weidener, 207 N.E.2d 375, 377 (Ohio
1965). Although in the mid-1960s there was a split of opinion on this question as noted in
McDermott, many jurisdictions have reconsidered it since then, and it can be fairly said
that a large majority of jurisdictions now follow a rule similar to the one recognized in
Tennessee by Waterman. See, e.g., Anderson, 181 N.W.2d at 875 (noting “an almost
unanimous shift of authority”).
Lewis stands for the proposition that “doctors who [a]re party defendants in the case
[may] not be compelled to answer questions in discovery regarding their opinions of the
treatment given by other doctors.” Burchfield, 2013 WL 5676268 at *25. Courts in other
jurisdictions have reached differing conclusions on this issue; the Iowa Supreme Court has
aptly stated that “[t]he cases concerning the compulsion of expert testimony vary greatly
depending on the factual situations presented and the legal approach taken.” Mason v.
Robinson, 340 N.W.2d 236, 240 (Iowa 1983). A number of states follow a similar approach
to that taken by this Court in Lewis. See, e.g., Ransom, 425 P.3d at 421 (“plaintiff would
not be entitled to ask, and the radiologists would not be required to answer, any questions
whatsoever about matters in which the radiologists did not participate”); Devine v.
Pinapati, 862 N.Y.S.2d 814, 2008 WL 2128135, at *2 (Sup. Ct. Albany Co. May 21, 2008)
(“in a medical malpractice action, a co-defendant physician may not be deposed about the
actions of another co-defendant physician if the questions posed relate solely to the alleged
negligence of the co-defendant and not to the actions of the witness”); Carney-Hayes, 699
N.W.2d at 529 (“Subject to [a] compelling need exception . . . , a medical witness who is
18
unwilling to testify as an expert cannot be forced to give her opinion of the standard of care
applicable to another person or her opinion of the treatment provided by another person”);
Abbey, 483 A.2d at 333-34 (“this argument [restricting expert testimony] has no merit
where the witness is not an expert hired by the adversary but is the adversary himself or
defense witnesses actually involved in the events from which the claim arose”); Jistarri v.
Nappi, 549 A.2d 210, 218 (Pa. Super. 1988). Some of the appellate courts that have
reversed a trial court’s decision to refuse to compel a defendant doctor’s expert testimony
decided cases that involved only the conduct of the defendant doctor. See Anderson, 181
N.W.2d at 877; Oleksiw, 207 N.E.2d at 377. Other cases involved more than one defendant
doctor, but the appellate court did not discuss or analyze a distinction between a doctor’s
expert opinion regarding his or her own conduct, as opposed to that of other treating
medical professionals. See McDermott, 203 N.E.2d at 470-71; Dark, 149 N.W.2d at 223;
Webb, 413 So.2d at 45; Wilkinson, 295 A.2d at 680.
In the present case, as already noted, Dr. Seeber’s own conduct in providing medical
care is not alleged to have caused Plaintiff’s injury. Plaintiff did not oppose summary
judgment in Dr. Seeber’s favor on all claims of direct causal negligence against him. Dr.
Seeber’s only potential liability stemmed from the argument that he was vicariously liable
for Nurse Mercer’s actions because of actual or apparent agency. Defendants argue that
the Trial Court correctly applied the holding in Lewis. Plaintiff argues that Lewis is
distinguishable because of Dr. Seeber’s status as Nurse Mercer’s supervisor.
The parties stipulated that “Jennifer Mercer was an employee of Caring Choice
Women’s Clinic” and that “Dr. Michael Seeber was Jennifer Mercer’s supervising
physician at the time she provided care to [Plaintiff] for the labor and delivery on 3/5/14
and 3/6/14.” Dr. Seeber testified as follows regarding their working relationship, and what
it meant for him to be her “supervising physician”:
A: Jennifer works under my supervision and I’m ̶ and she is a fully capable
practitioner in providing the services that a certified nurse midwife is allowed
to perform. And I’m available to help with anything that is beyond her scope,
and I’m able to help whenever there’s a problem and ̶ and I ̶ I believe that’s
what my legal responsibility is.
* * *
Q: . . . What are the limitations on what a midwife can do, to your knowledge,
as someone who supervises midwives?
A: She can take care of women who are coming in for gynecological
problems and obstetrical care. In terms of obstetrical care, she can take care
19
of women throughout the course of pregnancy and through labor and
delivery.
* * *
Q: Do you have to sign off on orders that are given by the midwife
eventually?
A: I have to ̶ I have to review about 20 percent of a midwife’s charts and sign
off on them. And orders that are done in the hospital, I ultimately sign off
on.
Q: Why do you do that?
A: Because it’s required.
Q: By whom?
A: The hospital.
* * *
A: . . . Jennifer is an independent practitioner, and I’m there to support her
and supervise her if ̶ when she needs help, I’m there to provide it.
Q: You said two, I think, irreconcilable things. She’s independent or she’s
under supervision. Which is it? . . .
A: It’s both. She’s allowed to ̶ to take care of pregnant patients within the
scope of what she can do. When ̶ when she believes that the scope of what
she can do is exceeded or she wants ̶ wants a consult or wants advice or wants
me to ̶ or a c-section has to be performed, then she calls upon me. And it’s
my job to get there and handle the problem.
Nurse Mercer testified similarly that she is qualified to provide obstetrical care and
oversight of a normal vaginal birth without complications. Dr. Seeber stated that she could
order induction of labor, but not a c-section. Nurse Mercer could not perform a vacuum or
forceps delivery, or surgery. Part of her job is to timely notify and call in the supervising
physician if medical complications arise that require a c-section, such as what ultimately
happened in this case. All of the patients of the practice are admitted under the name of
the supervising physician, not the certified nurse midwife.
While Defendants are correct in that Lewis stands for the proposition that a party
defendant may not be compelled to answer questions about the treatment provided by other
independent medical professionals “[u]nder the facts of [that] case,” Lewis, 66 S.W.3d at
888, we are dealing with a different set of facts here. This is not a scenario featuring co-
defendant healthcare providers on an equal footing and at arm’s length from one another.
It is undisputed that Dr. Seeber was Nurse Mercer’s supervising physician. As such, Nurse
20
Mercer was not simply ‘another healthcare provider’ in relation to Dr. Seeber; she was in
a subordinate role. In our judgment, the holding of Lewis does not extend to circumstances
such as these. The ramifications of such an extension would ripple beyond health care
liability lawsuits; it could be applied to any field involving expert defendants in a
supervisor and supervisee relationship. The results could be absurd and unjust. In this
case, adopting Defendants’ position with respect to Lewis means in practical terms that no
one at Caring Choice may be compelled to testify as to whether its employee, Nurse
Mercer, complied with the acceptable standard of care. We do not believe Lewis stands
for this sort of expansive and unjustified expert privilege.
Compelling Dr. Seeber to testify regarding the conduct of his supervisee would not
wrongly force him to yield up ‘the product of his brain’ in contravention of Lewis and
progeny as he would not be conscripted, as it were, into testifying as an expert to another
independent healthcare provider’s actions. Instead, it would be more akin to compelling
him to testify as to his own conduct, in accordance with Waterman v. Damp, as it is Nurse
Mercer’s conduct as Dr. Seeber’s supervisee that gives rise to his liability, if any. The
position of “supervisor” is hollow if the supervisor somehow is regarded as utterly walled
off from the supervisee. Nurse Mercer either was acting independently or she was not.
Under this record, she was not. It would represent an unwarranted extension of Lewis to
hold that a supervisor who is an “expert” is permitted to choose to testify or not to testify
as to certain actions of her own supervisee, including whether the supervisee’s actions
complied with the acceptable standard of care. As this Court observed in Waterman, the
purpose of the adverse-party-witness rule is to permit the production of all pertinent and
relevant evidence available from the parties in the action. 2006 WL 2872432, at *10. Dr.
Seeber’s testimony as to Nurse Mercer’s conduct would have been highly pertinent and
relevant in this matter. The Trial Court erred in expanding Lewis to exclude this highly
pertinent and relevant evidence based on an erroneous application and extension of the
holding in Lewis to medical professionals working in a supervisor-supervisee relationship.
We hold that the Trial Court committed reversible error in applying Lewis v. Brooks to
exclude Dr. Seeber’s testimony. We reverse the Trial Court as to this issue and remand for
a new trial.
The final issue we address is whether the Trial Court erred in excluding proof of
Miyona Hyter’s pre-majority medical expenses. In Gardner v. Flowers, 529 S.W.2d 708(Tenn. 1975) our Supreme Court articulated a scenario when a minor child may be liable
for medical expenses. The High Court stated, in part:
In this case, according to the stipulated facts, the infant receives her
support from a merciful government not from the mother’s efforts. Even if
the mother had her own means of providing the ordinary needs of the family,
it is conceded in the appellee’s argument that she has been financially unable
21
to provide the needed hospital care. Thus, we hold that the infant’s situation
is that contemplated by the exception to the general rule that an infant has no
capacity to make a contract, viz., the infant was destitute of the articles, and
had no way of procuring them except by his own contract. The cases from
other jurisdictions are almost unanimous in saying, either expressly or by
necessary implication, that the parents’ inability to provide necessaries to the
infant is enough to bind the infant. We agree with what appears to be the
majority rule and hold that the inability of parents to pay for essential medical
treatment for an infant renders such treatment a necessary for which the
infant is liable.
Gardner, 529 S.W.2d at 711 (internal citations and quotation marks omitted).
In Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624 (Tenn.
Ct. App. 2017), this Court elaborated on when a minor child may be liable for medical
expenses. We stated two separate and distinct causes of action are created when a minor
child is injured—a cause of action on behalf of the parent for loss of services and medical
expenses to which the parent will be put and a cause of action in favor of the child for the
elements of damage to him. Blackwell, 523 S.W.3d at 657; see also Tenn. Code Ann. §
20-1-105(a) (2009).2 We concluded: “Son cannot maintain an action for pre-majority
medical expenses that were paid or will be paid by his parents. Rather, under the rule in
Wolfe and Smith, Son may only maintain an action for those medical expenses that he paid
or is obligated to pay.” Blackwell, 523 S.W.3d at 663.
In the instant case, Miyona Hyter is a TennCare member and her medical expenses
were paid through TennCare. Her support thus came “from a merciful government not
from the mother’s efforts,” 529 S.W.2d at 711, as was the characterization in Gardner. In
addition, a declaration made under penalty of perjury filed in conjunction with Plaintiff’s
response to Defendants’ motion for partial summary judgment on this issue reflects that
BlueCare, which administers TennCare, has asserted its statutory right of reimbursement
against Miyona Hyter. Thus, the minor child Miyona Hyter, as a TennCare member, is
liable to a subrogation claim. Consequently, under the holdings of Gardner and Blackwell,
Miyona Hyter is personally obligated for her medical expenses. These medical expenses
are not “medical expenses that were paid or will be paid by [her] parents.” Blackwell, 523
S.W.3d at 663. Given this subrogation liability faced by Miyona Hyter, the Trial Court
erred in declining to allow her to put on proof of her pre-majority medical expenses
incurred because of the alleged negligence of her tortfeasor(s).3 We reverse the Trial Court
2
“The father and mother of a minor child have equal rights to maintain an action for the expenses and the
actual loss of service resulting from an injury to a minor child in the parents’ service or living in the
family….”
3
We take no position on the underlying merits of the case.
22
as to this issue. In a new trial conducted on remand, Plaintiff may put on proof of Miyona
Hyter’s pre-majority medical expenses.
Conclusion
The judgment of the Trial Court is affirmed, in part, and reversed, in part, and this
cause is remanded to the Trial Court for collection of the costs below and for further
proceedings consistent with this Opinion, including a new trial. The costs on appeal are
assessed to the Appellees, Caring Choice Women’s Center, P.C., Chattanooga-Hamilton
County Hospital Authority d/b/a Erlanger Health System, Jennifer Mercer, and Michael
John Seeber.
s/ D. Michael Swiney_________________
D. MICHAEL SWINEY, CHIEF JUDGE
23