charles-roach-and-joyce-roach-v-dixie-gas-company-ben-thomas-williams ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
March 24, 2011 Session1
CHARLES ROACH AND JOYCE ROACH
V.
DIXIE GAS COMPANY; BEN THOMAS WILLIAMS, JR., INDIVIDUALLY
AND AS OWNER AND MANAGER OF DIXIE GAS COMPANY; SEMSTREAM, L.P.;
SANTIE WHOLESALE OIL COMPANY, A DIVISION OF BLUE RHINO
RELIABLE PROPANE; AND JOHN DOES 1 THROUGH 10
An Appeal from the Circuit Court for Hardeman County
No. 06-02-0140 J. Weber McCraw, Judge
_________________________________
No. W2010-01496-COA-R3-CV - Filed November 14, 2011
This lawsuit for damages arises out of an explosion. The plaintiff customers went to the
defendant propane gas facility to fill their recreational vehicle with propane. Soon after they
arrived, one of the propane hoses began to leak, and propane gas vapor began to envelope
the premises. After a short period of time, the propane gas tank exploded, causing
devastating property damage and destroying the plaintiffs’ recreational vehicle. The
plaintiffs filed this lawsuit against the defendants, alleging that they were near the explosion
site when the explosion occurred, and that the explosion caused them numerous physical and
psychological injuries. The defendants admitted liability and compensated the plaintiffs for
their property damage. The defendants claimed, however, that the plaintiffs were not present
at the explosion site when the explosion occurred and did not sustain any personal injuries
1
After oral argument in this cause, the Court asked the parties to submit supplemental briefs on the issue of
whether Tenn. R. Civ. P. 35 requires an appointed medical examiner to be “independent,” and the Court
considered the appeal after the filing of the supplemental briefs.
To say that the appellate record in this case was problematic is an understatement. The record,
consisting of 10,578 pages in 66 volumes, had little organization. The Circuit Court Clerk specifically noted
numerous problems necessitating the return of various transcripts and exhibits for correction. The transcripts
and exhibits had no index. The only table of contents for the entire 10,000 plus page record listed documents
alphabetically, which is of little use due to the innumerable ways in which a given document may be titled,
and gives the page number, without reference to the volume. Such almost random organization in a record
of this size necessitates an undue amount of judicial time. We note that caselaw from this Court consistently
holds that the appellant is charged with providing the appellate court with a record that will enable the Court
to adequately consider the issues raised on appeal.
caused by the explosion. After a jury trial, the jury returned a verdict in favor of the
defendants, determining that the explosion did not cause any personal injuries to the plaintiffs
and awarding zero damages. The plaintiffs now appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.
Edward M. Bearman, Memphis, Tennessee, for the Plaintiff/Appellants Charles Roach and
Joyce Roach
John V. McCoy and Eugene M. LaFlamme, Waukesha, Wisconsin; and Kenneth R.
Rudstrom, Memphis, Tennessee, for the Defendant/Appellees Dixie Gas Company and
Benjamin Thomas Williams, Jr.
OPINION
F ACTS AND P ROCEEDINGS B ELOW
Background
Defendant/Appellee Dixie Gas Company (“Dixie Gas”) is a retail propane business on
Highway 125 in Bolivar, Tennessee. Dixie Gas is owned by Defendant/Appellee Benjamin
Thomas Williams, Jr. (“Mr. Williams”).
On April 22, 2005, Plaintiff/Appellants Charles Roach (“Mr. Roach”) and his wife, Joyce
Roach (“Mrs. Roach”), then 56 years old and 54 years old respectively, visited Dixie Gas to
buy propane for their recreation vehicle (“RV”). Mr. Roach went into the Dixie Gas office
to get assistance, while Mrs. Roach stayed in or near the RV. When Mr. Roach went inside,
a Dixie Gas employee, Mary Gomez (“Ms. Gomez”), was in the office talking on the
telephone.
While Mr. Roach waited for Ms. Gomez to finish her telephone conversation, he heard a loud
noise. The noise turned out to be the rupture of a hose on the propane tank near the Roaches’
RV. Mr. Roach went outside the Dixie Gas office and saw a vapor cloud beginning to
envelope the RV and a stream of liquid propane flowing from the propane bulk storage unit.
The events that followed in the next several minutes are the subject of sharp dispute between
the parties.
-2-
According to the Roaches, Mr. Roach told Ms. Gomez to call 911 and to flee. Ms. Gomez
ran from the facility. Mr. Roach then realized that Mrs. Roach was still in their RV, which
by then was engulfed in the dense gray vapor cloud from the leaking propane gas. He found
Mrs. Roach in a semi-conscious state inside the RV and either pulled her out or urged her to
get herself out. Once out of the RV, the Roaches began to run away from the worsening
scene. As they neared the front gate at the entrance of the facility on Highway 125, the
leaking propane ignited, causing a huge explosion. The explosion blew the roof off of the
Dixie Gas office, causing it to rise some thirty feet in the air. The pressure wave from the
explosion knocked Mr. and Mrs. Roach to the ground. The Roaches picked themselves up
off the ground and again began running. As they ran, Mr. Roach saw fire trucks down the
road, backing up, but did not see fire trucks at the entrance gate. Mr. and Mrs. Roach made
their way to a ditch behind a nearby mobile home. As they sheltered in the ditch, a second
explosion occurred, so loud that Mr. Roach put his hands over Mrs. Roach’s ears to shield
them.
The initial explosions triggered the explosion of numerous smaller canisters of propane gas
on the Dixie Gas property.2 Fire department personnel then backed away from the scene,
concerned about the flying propane gas canisters. Mr. and Mrs. Roach remained in the
nearby ditch for some time, and when the explosions subsided, they ran into the woods to get
further away. When they exited the woods, they came upon a nearby homeowner who called
the Roaches’ friend, their insurance agent, to come and pick up Mr. and Mrs. Roach. The
insurance agent friend arrived shortly thereafter and took the Roaches home. The Roaches’
RV was left on the Dixie Gas premises, destroyed by the propane gas explosions and fire.
The Roaches did not immediately report any injuries from the incident. However, they later
claimed that they suffered substantial physical and psychological injury as a result of the
incident, including hearing loss, tinnitus,3 speech disorder,4 vertigo, post traumatic stress
disorder (“PTSD”), and depression. About two months after the explosion incident, Mr. and
Mrs. Roach sought medical treatment for these injuries. Mr. Roach claimed that his injuries
from the incident completely disabled him from working and cost him millions of dollars in
potential earnings.
2
The small canisters were referred to as “grill” canisters, as for a backyard barbeque grill.
3
Tinnitus is sometimes referred to as a “ringing” in the ears. One expert defined “tinnitus” as “a noise heard
in one or both of your ears that is not present in your environment. In other words, you are hearing it but it
is not in your environment.”
4
Mr. Roach said that he developed a vocal pattern abnormality referred to in the record as “baby talk.”
-3-
Dixie Gas had a sharply contrasting view of the events. Dixie Gas acknowledged that the
propane gas leak occurred, that Mr. and Mrs. Roach were on the Dixie Gas premises when
the leak began, and that the ensuing explosions destroyed the Roaches’ RV. However, Dixie
Gas maintained that, by the time the explosions occurred, Mr. and Mrs. Roach were no
longer on or near the Dixie Gas property, but had fled to a safe distance away from the scene,
several minutes before the explosion. Therefore, Dixie Gas denied that the propane gas
explosion caused Mr. and Mrs. Roach any personal injuries or any loss of income.
Lawsuit
On April 19, 2006, the Roaches filed the instant lawsuit in the Circuit Court of Hardeman
County, Tennessee, against Dixie Gas, Mr. Williams, individually and as the owner of Dixie
Gas (collectively, “the Defendants”), and numerous other defendants.5 The complaint
alleged negligence by the Defendants and asserted that Mr. and Mrs. Roach suffered physical
and emotional injuries as a result of the accident. The Defendants filed responses denying
liability and disputing the damages claimed by the Plaintiffs. Extensive discovery ensued.
Pretrial Matters
We recount only the pretrial proceedings that are pertinent to the issues raised on appeal.
During discovery, the Roaches obtained testimony from four medical experts who testified
by deposition that either Mr. Roach, Mrs. Roach, or both, sustained PTSD and depression as
a result of the Dixie Gas explosion. The Plaintiffs’ experts included a psychiatrist, a
neurologist, a neuropsychologist, and a physician who specialized in preventive medicine.
To rebut this evidence, the Defendants sought to use the expert testimony of a psychiatrist
and a neuropsychologist. To inform the evaluations of these defense experts, the Defendants
asked Mr. and Mrs. Roach to allow the psychiatrist and the neuropsychologist to evaluate
them in person. They refused.
Consequently, on April 6, 2009, the Defendants filed a “Motion for Permission to Conduct
a Rule 35.01 Examination on Plaintiffs,” requesting permission for the defense psychiatrist
to conduct psychiatric examinations on both Mr. and Mrs. Roach, and for the defense
neuropsychologist to conduct a neuropsychological examination on Mr. Roach pursuant to
5
Also named as defendants were Semstream, L.P., Santie Wholesale Oil Company, a division of Blue Rhino
Reliable Propane, and John Does 1 through 10. The Roaches later amended their complaint to add
Ferrellgas, Inc., d/b/a Blue Rhino; Ferrellgas, L.P.; Bryant Trucking, Inc.; and CHS Inc. as defendants.
Summary judgment was granted in favor of most of these defendants, and they are no longer involved in this
lawsuit. Although there is no order in the record dismissing Ferrellgas, Inc., d/b/a Blue Rhino, or John Does
1 through 10, the parties have represented to this Court that they have been dismissed from this lawsuit as
well. There are no issues on appeal involving any defendants other than Dixie Gas and Mr. Williams.
-4-
Rule 35 of the Tennessee Rules of Civil Procedure. In support of this motion, the
Defendants submitted the affidavits of the psychiatrist and the neuropsychologist, stating that
an in-person medical/neurological examination of Mr. and Mrs. Roach was necessary for
them to evaluate the extent of their injuries, if any. In opposition to the motion, the Roaches
argued that the facts did not justify compelling them to submit to a medical examination by
the Defendants’ experts, and that it was improper for a Rule 35 medical examiner to have ex
parte communications with counsel for either party prior to the examination because Rule
35 required the medical examiner to be “independent” of either party. In support of their
response opposing the Defendants’ Rule 35 motion, the Roaches submitted the affidavit of
the Roaches’ psychiatrist, stating that “having another person delve into this issue would be
detrimental to Charles and Joyce Roach’s already unstable psychological status.” After a
hearing, the trial court granted the Defendants’ Rule 35 motion, finding that the mental and
physical condition of both Mr. and Mrs. Roach had been placed “in controversy,” and that
the Defendants had shown good cause for the examinations.6
The Roaches also indicated that they intended to submit the testimony of an otolaryngologist,
who treated Mr. and Mrs. Roach for their hearing-related problems. The Plaintiffs’
otolaryngologist opined that the tinnitus and hearing loss that Mr. and Mrs. Roach suffered
were caused by the Dixie Gas explosion. The Defendants sought to rebut this testimony with
the testimony of another otolaryngologist, who opined that Mr. Roach’s hearing loss and
tinnitus was either non-existent or was not caused by the Dixie Gas explosion. The Roaches
filed a motion in limine to exclude the testimony of the Defendants’ otolaryngologist because
he could not state to a “reasonable degree of medical certainty” what caused Mr. Roach’s
hearing loss. The trial court denied this motion.
Trial
On January 19, 2010, the seven-day jury trial commenced. On the morning of trial, the
Defendants stipulated to liability for the incident. They continued, however, to dispute
causation and damages. Specifically, the Defendants maintained that the Plaintiffs were well
away from the Dixie Gas premises by the time the first explosion occurred. Therefore, the
issues remaining for trial were whether Mr. and Mrs. Roach were at the scene of the
6
To prevent any appearance that these defense experts were being presented as “independent,” the trial court
granted the Roaches’ motion in limine to bar the Defendants from referring to either their psychiatrist or their
neuropsychologist as “independent” medical experts during the trial. This order also applied to another
defense expert, an otolaryngologist.
-5-
explosion when it occurred, whether they suffered any damages from the explosion, and, if
so, the extent of any such damages.7
Plaintiffs’ Proof
Mr. Roach was the first to testify. He described in vivid detail the events leading up to the
first explosion: alerting Ms. Gomez to the propane gas leak and telling her to flee, the dense
gas vapor surrounding their RV, finding his wife semi-conscious inside the RV, pulling her
out, and both of them struggling to escape in time. Mr. Roach testified that he feared for his
life, and believed “beyond a shadow of a doubt I [was] going to die.” Mr. Roach testified
that he and Mrs. Roach had made it nearly to the Dixie Gas entrance gate when the first
explosion occurred. The force of the explosion, he said, knocked them both to the ground.
When they managed to get up and pass the entrance gate, he did not see any fire trucks at the
entrance, but saw fire trucks backing down the road. Mr. Roach described his wife and
himself taking cover from the second large explosion in a ditch behind the mobile home of
a neighbor across the street from Dixie Gas, with Mr. Roach covering his wife’s ears to
protect them. They stayed in the ditch until the explosions subsided. By the time they finally
got home, Mr. Roach stated, he was soaked with propane, his ears were ringing badly, he had
a headache, and he was nauseated.
In the weeks that followed the incident, Mr. Roach testified, he got almost no sleep and had
repeated nightmares about the explosions. He suffered frequent nausea, frequent headaches,
and a constant ringing in the ears. He became forgetful, such as forgetting to turn off a stove
or running water. Mr. Roach experienced dizziness and developed balance problems and
vertigo, and at times had to walk with a cane because of it. Mr. Roach said that he also
developed an unusual speech disorder, referred to as “baby talk dysarthria,” at times using
agrammatic speech marked by errors in syntax and the omission of function words or
connecting words, while at other times using normal, fluent speech.8 Mr. Roach said that he
7
The Defendants stipulated liability for the damage to the Roaches’ RV and their other personal property that
was destroyed in the accident. Consequently, evidence regarding the Roaches’ property damage was not part
of the trial.
8
As later observed by the Plaintiffs’ expert witness, neurologist Thomas C. Head, M.D., the unusual speech
pattern displayed “variability,” that is, was not consistent. This appears true in Mr. Roach’s testimony. At
times the speech pattern in the trial transcript appears normal, at other times it displayed the claimed disorder.
For example, in describing his educational background, Mr. Roach testified:
I continued education for several years. I be one of those individuals that have hard time,
maybe lack of immaturity, have hard time ever decide what I would like to do for whole life.
Whole life is long time.
(continued...)
-6-
also developed bowel incontinence, forcing his wife to stay close to him at all times and
sometimes clean up after his fecal incontinence.
Mr. Roach explained that he did not seek medical treatment immediately after the explosion
because “I not be no hypochondriac.” Finally, some six weeks after the incident, Mr. Roach
visited his general physician, Dr. James Thomas, M.D. (“Dr. Thomas”), about a swelling near
his right ear that was unrelated to the propane gas explosion. Dr. Thomas referred him to an
otolaryngologist, John J. Shea, Jr., M.D. (“Dr. Shea”). Dr. Shea was more concerned with
the hearing loss, ear damage, and balance problems that Mr. Roach described than with the
swelling near Mr. Roach’s ear.
Mr. Roach also testified about his work history before the explosion. He stated that, for
many years, he had worked in automobile sales as a business manager and as a special
consultant. He then left the automobile industry to become an entrepreneur; among other
things, he owned a business called Action Metal Products. After the explosion, Mr. Roach
stated, he was unable to continue managing his business affairs, and he ultimately had to sell
his ownership interest in his businesses. Mr. Roach described in detail that the physical and
emotional problems resulting from the Dixie Gas explosion prevented him from working and
from enjoying life, and that the explosion adversely affected his relationship with his wife.
One year after the accident, Mr. Roach stated, he applied for and was awarded federal social
security disability benefits.
On cross-examination, Mr. Roach was asked about notations in his medical records
indicating that, prior to the Dixie Gas incident, he had complained of ringing in his ears and
hearing loss, and that he declined to use hearing aids after the incident, even though his
otolaryngologist, Dr. Shea, had advised that they could benefit him. Mr. Roach
8
(...continued)
In describing his tinnitus, Mr. Roach testified:
My ears ringing so bad. I never comprehend what ear ring were before until then. And you
don’t know what ear ring is until it’s block out you hearing somebody one day talk. But I
knew what it was then.
In contrast, when Mr. Roach was asked on cross-examination to pinpoint where he was after the first
explosion, his response was fluent and articulate:
At the time of the explosion I was fleeing for my life and I didn’t look to see who was where
and really, not being facetious, that was the least thing that was upon my mind.
-7-
acknowledged that he had had some minimal pre-existing conditions, but he insisted that his
diminished condition by the time of trial was different and was caused by the explosion. Mr.
Roach also acknowledged that, prior to the Dixie Gas incident, he and Mrs. Roach
experienced financial difficulties that resulted in foreclosure on their house and the filing of
a bankruptcy petition. Mr. Roach claimed, however, that the foreclosure and bankruptcy did
not appreciably affect his emotional condition, “didn’t stress me a bit,” because he knew he
just needed time for things to work out. He insisted that the explosion was the cause of his
depression and PTSD.
Mrs. Roach also testified at trial. Like Mr. Roach, she did not recall seeing the fire trucks
at the Dixie Gas entrance when the explosion occurred, nor did she see anyone standing near
the entrance. She corroborated Mr. Roach’s testimony that, while they were fleeing Dixie
Gas, “running for our life,” as they reached the Dixie Gas entrance gate, they were knocked
down by the explosion. She remembered them being in the ditch behind the home of the
neighbor across the road from Dixie Gas and Mr. Roach trying to cover her ears to protect
her. Mrs. Roach did not remember talking to the neighbor when she and Mr. Roach were
behind the neighbor’s house after the first explosion occurred. After that, they walked
through the woods and ended up at the home of another neighbor, where they borrowed a
telephone and called someone to pick them up.
After the explosion, Mrs. Roach said, she was “a nervous wreck.” She said they both could
not sleep, she had nightmares, they both were sick to their stomach, and Mr. Roach was
throwing up. Both of them had ringing in their ears. When asked why she did not seek
medical attention sooner than two months after the explosion, Mrs. Roach explained that she
“just did not see the need to go” to a doctor because she thought her symptoms would get
better. Instead, she said, they got worse. Mrs. Roach said that Mr. Roach’s speech disorder
did not begin until approximately two months after the accident. When asked about her
remaining physical problems at the time of trial, Mrs. Roach testified that she still has ringing
in her ears “24/7,” as well as nightmares, sleeping problems, degenerative back problems,
osteoporosis, nausea, and problems with balance. She admitted that before the Dixie Gas
incident, she had only mild hearing loss, and had short episodes of ringing in her ears only
if she had a sinus infection.
Mrs. Roach testified that the Dixie Gas explosion “destroyed” her husband. She said that Mr.
Roach had become introverted and dependent to the point that he no longer left home without
her. Mrs. Roach acknowledged that she and Mr. Roach had filed bankruptcy in 2003, but she
said that she “just didn’t worry” about their finances before the explosion, claiming that Mr.
Roach could have “easily” earned $200,000 to $250,000 per year had he not become disabled
as a result of the explosion.
-8-
The jury also heard testimony from Ms. Gomez, the Dixie Gas employee who was in the
Dixie Gas office when the propane leak started. Ms. Gomez testified that, by the time she
and Mr. Roach realized that the propane gas was leaking, Andy Williams, the son of Dixie
Gas owner Mr. Williams, was on the scene. She said that he turned the electricity off and
instructed Ms. Gomez to stay away from her van. Ms. Gomez, then fearing for her life,
began to run away from Dixie Gas, and she called 911 on her way out. When she reached
the highway, Ms. Gomez said, her son picked her up, and together they drove to a nearby
church. When they got out of the car at the church, they heard the first explosion. Ms.
Gomez said that, for about six weeks after the incident, she experienced a loss of hearing in
one ear and a loss of her sense of smell, but those effects were only temporary and had
subsided by the time of trial. She said that going through such a stressful situation caused
her to have “various nervous breakdowns” and apprehension about being near propane for
a while, but she indicated that she had no enduring negative effects from the explosion.
The 911 police dispatcher who received the call about the explosion, Marilyn Woody (“Ms.
Woody”), testified that the first distress call came in at 2:11 p.m. Ms. Woody said that the
fire department arrived on the scene at the Dixie Gas facility at approximately 2:13 p.m. The
jury also heard testimony from a firefighter, Lieutenant Kim Knuckles (“Lt. Knuckles”), who
testified that, after he received notice of the 911 call, it took him approximately two minutes
to get to the fire station, and he arrived on the scene at Dixie Gas two and one-half minutes
after that. By the time Lt. Knuckles’ vehicle arrived at Dixie Gas, another fire truck was
already there and firefighters were pulling fire hose off the truck. Lt. Knuckles stated that,
after he had arrived and had taken just three steps away from the fire truck, a span of about
thirty seconds, the first explosion occurred. From where he was standing, he felt the blast
but was not injured. Lt. Knuckles did not see the Roaches on the Dixie Gas premises at the
time of the blast.
The Roaches submitted the testimony of a homeowner who lived near Dixie Gas, Gregory
Brian Diffey (“Mr. Diffey”). After leaving the ditch behind the mobile home across from
Dixie Gas, the Roaches walked through the woods to Mr. Diffey’s home and asked to use his
telephone. Mr. Diffey testified that, when he saw the Roaches after the explosion, they
appeared to be “shaken up” and in “total shock.” Mr. Roach was talking loudly because he
could not hear well, and Mr. Diffey had to help them use the telephone to call a friend to pick
them up. Mr. Roach’s clothes were tattered, and his face was red. The Roaches also
proffered the testimony of the friend who came to pick them up after the explosion, insurance
agent Kreg Hamm (“Mr. Hamm”). Mr. Hamm testified that, when he picked the Roaches
up from Mr. Diffey’s home, they were wide-eyed and “talking real loud, real fast.” He
described Mr. Roach as being “flustered, and addled.”
-9-
As indicated above, the Roaches obtained the testimony and medical records from five
medical professionals to support their damages claim.9 The first was otolaryngologist John
J. Shea, Jr., M.D. (“Dr. Shea”). Dr. Shea testified that Mr. and Mrs. Roach both suffered
tinnitus and hearing loss from the explosion. Dr. Shea acknowledged that Mr. Roach had had
some hearing loss prior to the explosion, but nevertheless was “confident” that Mr. Roach
was near the explosion, and that the explosion made his preexisting hearing loss much worse.
Psychiatrist Valerie Augustus, M.D. (“Dr. Augustus”) treated Mr. Roach from October 2005
through November 2008, and treated Mrs. Roach from June 2007 through November 2008.
From her treatment of Mr. and Mrs. Roach, Dr. Augustus concluded that they both suffered
from PTSD and depression. Dr. Augustus was also confident that these psychiatric problems
were caused by the Roaches being present at the Dixie Gas explosion. Dr. Augustus testified
that, in order to have acquired PTSD, the Roaches need only have been near the vicinity of
the explosion and felt that they were in danger; they did not have to actually have been in
danger.
The Plaintiffs also presented testimony from two members of the Semmes-Murphey medical
group: a neuropsychologist, Michael Anton, M.D. (“Dr. Anton”), and neurologist Thomas
C. Head, M.D. (“Dr. Head”). Drs. Anton and Head both agreed with Dr. Augustus that the
explosion caused the Roaches to suffer PTSD and depression. Dr. Anton did not express an
opinion on Mr. Roach’s “baby talk” speech disorder, but noted in his medical records that
he had noticed that the unusual speech pattern was “variable,” that is, used inconsistently,
displayed prominently sometimes while other times Mr. Roach’s speech was normal. Dr.
Head expressed an opinion on Mr. Roach’s “baby talk” speech disorder. He said that he had
“never been able to fully explain” Mr. Roach’s speech problem “except in the context of
severe emotional and psychological distress” caused by the explosion. Dr. Head testified that
he did not find any neurological deficits in Mr. Roach, and his records state that he could not
explain Mr. Roach’s “bizarre speech pattern” on “a neurological basis.” 10
9
According to the trial transcript, the video deposition of neurologist Thomas Head, M.D., was played for
the jury, and a physician specializing in preventive medicine, Ray Garman, M.D., testified in person. The
depositions of psychiatrist Valerie Augustus, M.D., neuropsychologist Michael Anton, M.D., and
otolaryngologist John J. Shea, Jr., M.D., are included in the appellate record, but the Roaches do not cite in
their brief where this testimony was read to the jury at trial. Nevertheless, the exhibits to the depositions of
Dr. Augustus, Dr. Anton, and Dr. Shea, including their medical reports, were made exhibits at trial.
Therefore, for purposes of this appeal, we will presume that the testimony of these doctors was considered
by the jury in making their determination.
10
In his medical records, Dr. Head noted that, inexplicably, Mr. Roach’s “baby talk” speech disorder
manifested not only in Mr. Roach’s verbal communications, but also in his writing. For example, in his
medical history, Mr. Roach was apparently asked to list medications prescribed to him by other physicians,
and after listing one medicine prescribed by Dr. Thomas, Mr. Roach wrote, “Jim Thomas say life never get
(continued...)
-10-
The Plaintiffs also submitted the testimony of a physician specializing in environmental and
preventive medicine, Ray Garman, M.D. (“Dr. Garman”). Dr. Garman testified that he
treated Mr. Roach in November 2007, after the evaluations by Dr. Head and Dr. Anton, and
he continued to see Mr. Roach through March 2009. After performing various tests on Mr.
Roach, Dr. Garman opined that Mr. Roach suffered from PTSD and depression. He
indicated that Mr. Roach’s impairments, including the PTSD, depression, tinnitus, and
hearing loss, were caused by the explosion, and that the explosion also caused Mr. Roach’s
speech problems. Although he was more concerned with Mr. Roach, Dr. Garman also saw
Mrs. Roach three times beginning in November 2007. He found that she had tinnitus, but
he did not have enough information to diagnose her otherwise.
The Plaintiffs also submitted evidence of the financial losses they contended resulted from
the Dixie Gas explosion. They submitted the testimony of a vocational rehabilitation expert,
Leon Tingle (“Mr. Tingle”). Mr. Tingle evaluated Mr. Roach in April 2006. He concluded
that, given his communication problems, his hearing-related limitations, and his physical
issues such as vertigo, Mr. Roach had no transferrable skill and was totally disabled from
working. He agreed that, according to Dr. Shea’s report, Mr. Roach would have benefitted
from hearing aids but declined to get them.
The Plaintiffs also submitted the testimony of an economist, Larry Bates, Ph.D. (“Dr.
Bates”), who testified as an expert about Mr. Roach’s “income potential” lost because of his
inability to work. Dr. Bates described Mr. Roach as an “entrepreneur.” He looked at Mr.
Roach’s “potential” to earn income from age 57 to age 67. He concluded that Mr. Roach’s
lost economic potential over this period of time was over $4 million; specifically,
$4,094,000.
Defendants’ Proof
The Defendants then called witnesses to testify about the events that occurred on the day of
the explosion. The owner of Dixie Gas, Mr. Williams, 65 years old at the time of the incident,
testified that his family’s house is located on a hill just behind the Dixie Gas facility. On the
day of the explosion, Mr. Williams was outside his house and heard the propane gas leak start.
Immediately, Mr. Williams drove to the scene while his two adult sons ran down the hill to
the Dixie Gas premises. Mr. Williams parked his car near the Roaches’ RV, looked inside,
10
(...continued)
off,” and after listing a medicine prescribed by Dr. Shea in Memphis, Mr. Roach wrote, “Dr. Shea say life
no get off Memphis.” There is no explanation in the record, from the Plaintiffs’ experts or otherwise, as to
how a speech disorder supposedly caused by exposure to a blast would manifest in a patient’s written
communications.
-11-
and found it to be empty. After locating the source of the propane gas leak, Mr. Williams and
his sons determined that there was nothing they could do to stop it. About that time, Mr.
Williams noticed Mrs. Roach approach her RV as if to get into it. Mr. Williams yelled “no”
at her, to prevent her from entering the RV. Mr. Williams then saw Mr. Roach come around
the back of the RV and put his hand on Mrs. Roach’s shoulder, and they both turned and ran
out the front gate of Dixie Gas. Mr. Williams then turned his attention back to checking the
rest of the Dixie Gas property. He went into the Dixie Gas office, where he found a
firefighter, one of his sons, and Ms. Gomez; all were leaving. Mr. Williams then got back in
his car to leave himself. In scanning the property to see if anyone else was there, he saw two
people across the road running away, but he was not certain whether it was the Roaches. Mr.
Williams noticed the fire trucks at the front gate of Dixie Gas, with the firefighters pulling
their lines. As he drove away, Mr. Williams testified, he saw the first explosion in his rear-
view mirror. He said that the blast raised the roof of the Dixie Gas office about ten feet in the
air.
Mr. Williams’ adult sons, Andy and Benji Williams, also testified at trial. Both brothers,
taking a lunch break at the Williams’ home, heard the gas release sound of the propane gas
leak and immediately ran from the home to the Dixie Gas premises. As Andy was at the Dixie
Gas electricity shutoff, he saw the Roaches running away from the Dixie Gas property. He
said that the Roaches were gone by the time the fire trucks arrived at the Dixie Gas front
entrance and the firemen were laying out their fire hoses. As he was leaving the property on
foot, Andy testified, the first explosion occurred with a “whoosh” sound. Both brothers
jumped into a ditch at the end of the Dixie Gas property. Neither Andy nor Benji were injured
from the explosion. Benji did not recall seeing the Roaches on the Dixie Gas premises. He
said that he, his brother, and a firefighter were the last persons on the property before the
explosion. When the explosion occurred, it moved Benji’s shirt like a gust of wind, but did
not knock him down. Benji estimated that some six minutes elapsed between the onset of the
propane leak and the first explosion.
Andy testified that he met with the Roaches at Dixie Gas a few days after the accident so that
the Roaches’ insurance adjuster could look at what was left of the RV. At that meeting, they
“commented to each other how happy we were that nobody got hurt.” Mr. Roach and Mrs.
Roach looked through the wreckage of the RV. Andy’s mother, Janice Williams (“Mrs.
Williams”), testified that she was not present at the time of the explosion, but she was present
at the meeting at Dixie Gas a few days after the explosion when the Roaches returned to the
scene. At that time, she told Mr. Roach that she was “really glad and so thankful that nobody
was hurt or killed . . . .” In response, neither Mr. nor Mrs. Roach told her that they had been
injured in the explosion.
-12-
The Defendants called several firefighters — John Baker, Marshall Lloyd Bell, and Chris Bell
(Marshall’s son) — to testify at trial. All testified that they arrived at the Dixie Gas facility
before the first explosion occurred, and that they parked their trucks by the main entrance
gate. Each firefighter testified that he did not see the Roaches while there, either on the Dixie
Gas property or running away from the property. Firefighters Chris Bell and Marshall Bell
both testified that, prior to the first explosion, they specifically made sure that everyone was
off the Dixie Gas property. Firefighter John Baker testified that the first explosion occurred
less than one minute after he arrived. None of the firefighters who testified were knocked
down from the explosion, and none had any ringing in their ears or any other injuries from the
explosion.
The jury viewed the video deposition of William Bruce Baker (“Mr. Baker”), who lived in a
mobile home across the road from Dixie Gas at the time of the incident.11 On that day in April
2005, Mr. Baker was outside his home watching the entire incident unfold. Mr. Baker said
that the firefighters arrived about fifteen minutes after he first saw the smoke or vapor from
the propane leak. Prior to the first explosion, Mr. Baker said, he saw two individuals whom
he did not know running across the road toward his house. Mr. Baker claimed that the two
individuals “said they was leaving; it was fixing to blow up over there.” They then went up
the hill behind Mr. Baker’s home well before the first propane tank exploded. Mr. Baker
estimated that approximately five minutes passed from the time he saw the individuals leave
until the time of the first explosion. When Mr. Baker was asked whether the two individuals
who spoke to him were Mr. and Mrs. Roach, he said that the individuals told him that “that
RV that was over there [at Dixie Gas] was theirs,” and the Roaches’ RV was the only
recreational vehicle on the Dixie Gas property at the time. Mr. Baker was outside when the
first explosion occurred; he commented that the explosion “jarred the whole world” and
knocked everything off of the walls of his mobile home. However, Mr. Baker was not
knocked to the ground and suffered no personal injuries from the explosion.
The Defendants also introduced the testimony of their medical experts to rebut the Roaches’
personal injury claims. The video deposition of otolaryngologist Mitchell Schwaber, M.D.
(“Dr. Schwaber”), was played for the jury at trial. Dr. Schwaber examined Mr. Roach in
August 2007 and reviewed Mr. Roach’s medical records. He did not examine Mrs. Roach.
After performing a series of tests on Mr. Roach, Dr. Schwaber testified that the tests showed
definitely that Mr. Roach had no inner ear abnormality nor any other adverse medical
condition that could have been caused by exposure to an explosion. He explained that an
injury from an explosion does not result from the noise, it is caused by the force of the
11
The Roaches raise an issue on appeal as to whether the trial court erred in permitting the Defendants to
submit the deposition testimony of Mr. Baker, rather than compelling Mr. Baker to appear at trial to testify
in person based on the hearsay rule. This issue is discussed below.
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pressure wave from the blast. The pressure wave causes asymmetric hearing loss and a
characteristic acoustic reflex pattern that Mr. Roach did not have.12 The series of tests
performed by Dr. Schwaber showed that Mr. Roach’s eardrums and the muscles in his ears
were normal, indicating that he had not been exposed to a forceful explosion.
As to Mr. Roach’s claim of tinnitus or ringing in the ears, Dr. Schwaber concluded that Mr.
Roach had some tinnitus in both ears, but that it was not severe and was not caused by a blast.
Dr. Schwaber noted specifically that Mr. Roach’s medical records showed that Mr. Roach
complained of tinnitus several years before the incident at Dixie Gas. Dr. Schwaber also
testified that he could find no physical explanation for the “baby talk” vocal pattern that Mr.
Roach displayed, and said that it was not related to an ear abnormality.
The jury also viewed the video deposition of psychiatrist William Wolters, M.D. (“Dr.
Wolters”). Dr. Wolters reviewed the medical records of Mr. and Mrs. Roach, the depositions
of several of the Plaintiffs’ medical experts, and examined both Mr. and Mrs. Roach. As to
Mr. Roach, Dr. Wolters testified that, from his review of the evidence and his personal
examination of Mr. Roach in May 2009, he was of the opinion that Mr. Roach was not
suffering from PTSD. He noted that Mr. Roach first sought psychiatric treatment with Dr.
Augustus in October 2005, several months after the Dixie Gas incident, and that Mr. Roach
did not receive a diagnosis of PTSD until February 2007, almost two years after the incident.
Dr. Wolters found that Mr. Roach suffered from some psychiatric issues, including elements
of depression and anxiety, but said that the cause was unclear because Mr. Roach’s complaints
were inconsistent and unreliable, and because Mr. Roach had a history of financial and marital
problems before the explosion. Dr. Wolters found, however, that Mr. Roach’s presentation
was not consistent with PTSD. He noted that most PTSD patients have an aversion to talking
about the causative traumatic event; Mr. Roach, however, talked about the Dixie Gas
explosion freely and often, and even said that he “felt good” talking about it. Mr. Roach told
Dr. Wolters that he was experiencing delusional beliefs that the Defendants or their attorneys
or big oil companies had shot his dog or accessed his computer or intended to kill him; Dr.
Wolters said that delusions are not a symptom of PTSD. In fact, Dr. Wolters concluded that
at least some of the symptoms claimed by Mr. Roach, such as the “baby talk” speech pattern,
were at least in part purposeful:
. . . [A]s to the complaints of poor memory, poor concentration, bowel
incontinence, baby talk, paranoid delusions, I do not believe that these are
symptoms of PTSD, but . . . they are symptoms of some conscious process or
an unconscious process that he is demonstrating these symptoms. And what I
12
Dr. Schwaber testified that Mr. Roach had bilateral symmetric hearing loss, typically associated with causes
such as age, general noise exposure, or heredity.
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mean by that is, the conscious process would be purposely produced such as the
baby talk. He --- he’s at least in part purposely having that speech pattern.
Similarly, Dr. Wolters determined that Mrs. Roach’s symptoms perhaps exhibited some signs
of depression, but they did not bear out a diagnosis of PTSD, much for the same reasons as
Mr. Roach. Dr. Wolters opined that, like Mr. Roach, Mrs. Roach’s complaints of poor
memory, poor concentration, and paranoid delusions were not the result of PTSD, but rather
were “the result of conscious or unconscious production or feigning of signs or symptoms or
related to another psychiatric cause not created by the Dixie Gas explosion.”
The final medical expert testimony was the video deposition of clinical neuropsychologist
Brad Lee Roper, Ph.D. (“Dr. Roper”). To assess Mr. Roach, Dr. Roper reviewed his medical
records and the depositions of the Plaintiffs’ medical experts, and he also examined Mr.
Roach in May 2009 and administered a variety of tests to Mr. Roach. The tests included some
specifically designed to differentiate between persons with legitimate problems and persons
who are exaggerating or feigning problems. Dr. Roper stated that, from his review of the
medical records and other evidence, and from his examination of Mr. Roach and the tests
administered, Mr. Roach was not suffering from PTSD. Dr. Roper opined that Mr. Roach’s
complaints, such as loss of memory, attention, concentration, and other symptoms, were
“clearly exaggerated,” and in fact they were so exaggerated that “it was not possible for me
to trust that . . . he was actually having these symptoms.” Like Dr. Wolters, Dr. Roper
believed that the “baby talk” speech pattern exhibited by Mr. Roach had no neurological basis,
but instead was conscious and exaggerated. He believed that Mr. Roach was exaggerating his
symptoms for “the obvious secondary gain [in] the ongoing lawsuit.” Dr. Roper found that
Mr. Roach had major depressive disorder and conversion disorder, 13 which were
psychological and not neurological in nature, but Dr. Roper was not able to determine the
severity of these conditions because Mr. Roach had so exaggerated the intensity and frequency
of his symptoms.
Finally, to rebut the economic conclusions of the Plaintiffs’ economist, Dr. Bates, the
Defendants proffered the testimony of William Robert Vance (“Mr. Vance”), a forensic
accountant and business evaluation analyst. To prepare his analysis, Mr. Vance reviewed the
Roaches’ pre-April 2005 tax returns, their bankruptcy documents, and their business records,
as well as Dr. Bates’ report. Mr. Vance noted that the Roaches’ business ventures in the
three-year period prior to the Dixie Gas incident had continually lost money. Mr. Vance was
sharply critical of Dr. Bates’ “economic potential” projection that, were it not for the Dixie
13
Dr. Roper explained that a conversion disorder is “a psychological reaction that plays itself out some way
in the body.” Mr. Roach’s speech problem, he stated, was consistent with a conversion disorder, although
the problem was exaggerated by Mr. Roach.
-15-
Gas explosion, Mr. Roach could have made $325,000 in 2006. He explained that, in 2005,
the Roaches’ tax returns showed that the had a loss of $27,000 for the year, and that “[t]o go
from losing $27,000 in ‘05 to making [$325,000] in ‘06, absolutely does not add up. . . . [Mr.
Roach has] never made that much money ever in his life in one year.” Referring to Dr. Bates’
assertion that the Roaches had lost some $4 million in “economic potential,” Mr. Vance
characterized it as “a ludicrous claim.” From reviewing all of the Roaches’ records, Mr.
Vance concluded that the Roaches’ “economic loss is zero.”
Jury Verdict
At the conclusion of trial, the jury returned a unanimous verdict in favor of the Defendants.
The jury found that the April 22, 2005 Dixie Gas incident did not cause any injuries or
damages to Mr. and Mrs. Roach, and consequently it awarded zero damages. The Roaches
filed a motion for a new trial, arguing that the evidence presented at trial preponderated
against the jury’s verdict. That motion was denied. The Roaches now appeal.
Issues on Appeal and Standard of Review
On appeal, the Roaches raise the following issues:
1. Whether the trial court erred in allowing the Rule 35 medical examinations
by Dr. Wolters and Dr. Roper?
2. Whether the trial court erred in allowing the testimony of Dr. Schwaber?
3. Whether the trial court erred in allowing the testimony of William Bruce
Baker by deposition, rather than compelling him to testify in person?
4. Whether the jury verdict awarding zero damages is supported by the weight
of the evidence?
5. Whether the trial court erred in rejecting the Roaches’ motion for a new
trial?
Trial courts enjoy wide discretion in determining whether to order a Rule 35 medical
examination. Odom v. Odom, No. M1999-02811-COA-R3-CV, 2001 WL 1543476, at *5
(Tenn. Ct. App. Dec. 5, 2001). Therefore, to the extent that the trial court’s decision to allow
the Rule 35 examinations by Dr. Wolters and Dr. Roper was discretionary, we review that
decision for an abuse of discretion. The issue of whether a medical professional designated
under Rule 35 is required to be “independent” is a question of law, which we review de novo
on the record, with no presumption of correctness in the trial court’s decision. Nelson v. Wal-
Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
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Generally, “[t]rial courts in Tennessee are vested with broad discretion in determining the
admissibility, qualifications, and competency of expert testimony.” Taylor ex rel. Gneiwek
v. Jackson-Madison County Gen. Hosp. Dist., 231 S.W.3d 361, 365 (Tenn. Ct. App. 2006).
Therefore, we review the trial court’s admission of Dr. Schwaber’s testimony for an abuse of
discretion.
Likewise, a trial court has considerable discretion in determining whether a witness is
unavailable for trial pursuant to Rule 804, and we will not overturn a trial court’s ruling on
unavailability absent an abuse of that discretion. See Hicks v. State, 490 S.W.2d 174, 179
(Tenn. Crim. App. 1972); see also Wilkes v. Fred’s Inc., No. W2001-02393-COA-R3-CV,
2002 WL 31305202, at *5 (Tenn. Ct. App. Aug. 20, 2002). Therefore, we will also review
the trial court’s decision to permit Mr. Baker to testify by deposition, rather than requiring him
to testify in person, for an abuse of discretion.
Regarding the Roaches’ challenge to the jury’s verdict, Rule 13(d) of the Tennessee Rules of
Appellate Procedure states that “[f]indings of fact by a jury in civil actions shall be set aside
only if there is no material evidence to support the verdict.” Tenn. R. App. P. 13(d). Where
a motion for a new trial asserts that the verdict was contrary to the weight of the evidence, it
is the duty of the trial judge to weigh the evidence as the “thirteenth juror,” to determine
whether the evidence preponderates against the verdict and, if so, to grant a new trial.
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 717 (Tenn. Ct. App. 1999). Once the trial court
has approved the verdict and denied the motion for a new trial, this Court must affirm the
verdict if the record contains any material evidence to support it. Washington v. 822 Corp.,
43 S.W.3d 491, 493-94 (Tenn. Ct. App. 2000).
When addressing whether there is material evidence to support a verdict, an
appellate court shall: (1) take the strongest legitimate view of all the evidence
in favor of the verdict; (2) assume the truth of all evidence that supports the
verdict; (3) allow all reasonable inferences to sustain the verdict; and (4)
discard all [countervailing] evidence. Crabtree Masonry Co. v. C & R Constr.,
Inc., 575 S.W.2d 4, 5 (Tenn. 1978); Black v. Quinn, 646 S.W.2d 437, 439-40
(Tenn. App. 1982). Appellate courts shall neither reweigh the evidence nor
decide where the preponderance of the evidence lies. If the record contains
“any material evidence to support the verdict, [the jury’s findings] must be
affirmed; if it were otherwise, the parties would be deprived of their
constitutional right to trial by jury.” Crabtree Masonry Co., 575 S.W.2d at 5.
Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006) (quoting Barnes v. Goodyear Tire &
Rubber Co., 48 S.W.3d 698, 704-05 (Tenn. 2000)). “[W]e must . . . determine whether the
trial court properly reviewed the evidence and agreed or disagreed with the verdict. We
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cannot review the accuracy of the trial court’s determination as thirteenth juror.” Overstreet,
4 S.W.3d at 717-18 (citations omitted).
A NALYSIS
Rule 35 Examinations
The Roaches argue that the trial court erred in granting the Defendants’ Rule 35 motion under
Rule 35 of the Tennessee Rules of Civil Procedure to permit defense experts Dr. Wolters and
Dr. Roper to perform examinations on Mr. and Mrs. Roach. Rule 35.01 provides:
When the mental or physical condition (including the blood group) of a party,
or of a person in the custody or under the legal control of a party, is in
controversy, the court in which the action is pending may order the party to
submit to a physical or mental examination by a suitably licensed or certified
examiner or to produce for examination the person in custody or legal control.
The order may be made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person or persons by
whom it is to be made.
Tenn. R. Civ. P. 35.01 (emphasis added). Thus, where a party seeks an order requiring
another party to submit to a physical or mental examination, Rule 35 requires the moving
party to establish: (1) that a party’s mental or physical condition is “in controversy,” and (2)
that “good cause” for the medical examination exists. See Overstreet v. TRW Commercial
Steering Div., 256 S.W.3d 626, 638 (Tenn. 2008); abrogated on other grounds, Hays v. Am.
Zurich Ins. Co., No. E2010-00099-WC-R3-WC, 2011 WL 2039402, at *6 (Tenn. Workers
Comp. Panel, May 25, 2011). “Once the moving party establishes a mental or physical
condition ‘in controversy’ and ‘good cause,’ the rule gives the trial court discretion to order
a medical examination.” Id. The “in controversy” and “good cause” requirements of this rule
balance “the interest of personal privacy with the interest of truth and justice.” Id. (“Any type
of physical or mental examination entails an invasion of privacy.”). “Few precedents
construing Tenn. R. Civ. P. 35 exist because physical and mental examinations of parties or
persons in the custody of a party are usually done by agreement without the intervention of
the courts.” Odom, 2001 WL 1543476, at *5 (citing 4 Nancy F. MacLean, Tennessee
Practice § 35:2 (3d ed. 2000)). When parties do not reach an agreement on the matter,
however, a request for a medical exam may be made pursuant to Rule 35.
In this appeal, the Roaches argue that the trial court erred in granting the Defendants’ Rule
35 motion because the Defendants did not establish that either the Plaintiffs’ mental condition
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or their physical condition was “in controversy,” and that the Defendants did not show “good
cause” for compelling them to undergo further examination. The Roaches also argue that
compelling them to submit to medical examinations by defense psychiatrist Dr. Wolters and
by defense neuropsychologist Dr. Roper were improper, because those experts were not
“independent” medical examiners as required by Rule 35. Instead, both experts
communicated with counsel for the Defendants ex parte on several occasions, both before and
after conducting the medical examination of Mr. and Mrs. Roach. The Roaches assert that
the Defendants also provided both experts with selective information about the case prior to
their examination of Mr. and Mrs. Roach, without allowing the Roaches to give the experts
their own information, in order to ensure that the experts received a clear and fair
representation of the evidence. Under these circumstances, the Roaches argue, the Rule 35
motion to compel a physical and mental examination should have been denied.
We first address whether the “in controversy” requirement was met in this case. A party’s
physical or mental condition may be placed “in controversy” by a plaintiff by filing a
complaint seeking damages for physical injuries or emotional distress. Odom, 2001 WL
1543476, at *6 & n.7. In the case at bar, the complaint explicitly states that both Mr. Roach
and Mrs. Roach suffered physical and mental injuries caused by the Defendants, and seeks
compensation for these types of injuries. Therefore, by the filing of their complaint, the
Roaches placed their mental condition and their physical condition squarely “in controversy.”
We next address whether “good cause” existed for the Rule 35 examinations. The “good
cause” requirement “places the burden on the moving party to demonstrate that the requested
examination is needed. It requires the court to consider whether the information sought is
available through other discovery techniques and whether the available information is
adequate.” Id. at *6. Applying the federal counterpart to Tennessee’s Rule 35, the United
States Supreme Court has indicated that in some cases, the pleadings alone may be sufficient
to establish “good cause” for a physical or mental examination.14 See Schlagenhauf v.
Holder, 379 U.S. 104 (1964), in which the Court observed: “A plaintiff in a negligence action
who asserts mental or physical injury . . . places that mental or physical injury clearly in
controversy and provides the defendant with good cause for an examination to determine the
existence and extent of such asserted injury.” Schlagenhauf, 379 U.S. at 119 (emphasis
added).
Applying Tennessee’s Rule 35 in Odom, the court gave examples of situations in which “good
cause” is established, such as (1) when a party whose condition is in controversy has not yet
14
Decisions of federal courts construing Federal Rule of Civil Procedure 35 can provide helpful guidance in
interpreting Rule 35 of the Tennessee Rules of Civil Procedure. See Odom, 2001 WL 1543476, at *5 n.6
(citing, inter alia, Frazier v. East Tenn. Baptist Hosp., 55 S.W.3d 925, 928 (Tenn. 2001)).
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undergone a medical examination; (2) when an examination has been done and medical
records are available, but the conclusions of its own experts “is contrary to the opinion of the
other experts”; (3) if the moving party’s expert believes that the medical records are materially
incomplete; or (4) if the moving party’s expert disagrees with the methodology of the party
whose condition is in controversy. Odom, 2001 WL 1543476, at *6.
In the instant case, Mr. and Mrs. Roach had already undergone numerous medical
examinations. The Defendants’ Rule 35 motion was based on the affidavits of Dr. Wolters
and Dr. Roper stating that, after reviewing the medical records of the Mr. and Mrs. Roach, it
was necessary for these experts to conduct their own examinations of Mr. and Mrs. Roach in
order to determine the nature and extent of the Roaches’ injuries. The affidavits indicated that
it was possible that the diagnoses of these experts might differ from that of the Roaches’
medical experts.
A trial court’s decision on whether to grant a Rule 35 motion is “intensely fact-specific.” Id.
at *7. In light of the complaint filed by the Plaintiffs, and given the subjective nature of their
claimed injuries, we find that the trial court did not err in determining that the “in
controversy” and the “good cause” requirements of Rule 35 had been met.
Next, we address the Roaches’ argument that the Rule 35 motion should have been denied
because Dr. Wolters and Dr. Roper were not “independent” medical examiners. They point
out that counsel for the Defendants engaged in extensive ex parte communications with both
experts prior to the filing of their Rule 35 motion, establishing clearly that both were
associated with the Defendants. The Roaches argue that an independent examination ordered
under Rule 35 cannot be done by a defense expert who has reviewed the record and other
evidence supplied by the defendant, citing Overstreet, 256 S.W.3d at 638-39, and Ewing v.
Ayres Corp., 129 F.R.D. 137 (N.D. Miss. 1989). In response, the Defendants maintain that
Rule 35 contains no requirement that the medical examiner be “independent,” and that, once
the requirements of the Rule are met, the movant may choose his own physician to complete
the Rule 35 examination. See Newton v. Ceasar, No. M2000-01117-COA-R10-CV, 2000
WL 863447 (Tenn. Ct. App. June 29, 2000).
The argument of the Plaintiffs on this issue was liberally sprinkled with the term “independent
medical examiner” or IME, a term that has entered the popular legal lexicon. Indeed, in some
cases, the trial court may choose to appoint its own objective, non-adversarial medial expert,
as was done in a case cited by the Plaintiffs, Ewing v. Ayres Corp., 129 F.R.D. 137 (N.D.
Miss. 1989). In such a case, indeed in any case in which the trial court appoints its own
expert, the trial court may seek to “preserve” the “independence” of the court’s expert. Id.
at 138. In other cases, the Rule 35 medical examination may be “independent” in the sense
that it is not associated with, i.e. independent of, the other party’s medical examiner. See
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Hammons v. Simmons, No. 3:09CV-217-S, 2010 WL 3490994, at *1 (W.D. Ky. Aug. 31,
2010) (refusing to allow the plaintiff to call the Rule 35 independent medical examiner as a
witness, because he was considered to be a consulting expert for the defendants).
Nevertheless, despite intermittent use of the term “independent” in connection with Rule 35,
the word “independent” does not appear in the Rule itself.15 Rule 35 is broadly written,
intended to govern the myriad situations in which a party’s physical or mental state becomes
an issue in litigation and the truth of the claims may be ascertained only by an examination
of the party’s body or mind. Rule 35 requires only that the examination be done by a “suitably
licensed or certified examiner.” Tenn. R. Civ. P. 35.01. This Court in Newton, on which the
Defendants rely, stated that “the defendant’s choice of physician [under Rule 35] should be
honored in the absence of a valid objection by the plaintiff.” Newton, 2000 WL 863447, at
*2. This rule is based on the well-established proposition that, so long as the plaintiff had the
right to select his own doctor to testify as to his physical or mental condition, fundamental
fairness demands that the defendant have the same right. Id. (citing Timpte v. Dist. Ct. of
Denver, 421 P.2d 728 (Colo. 1966)); see Joseph E. Edwards, Annotation, Right of a
Defendant in Personal Injury Accident to Designate Physician to Conduct Medical
Examination of Plaintiff, 33 A.L.R. 3d 1012 (1996), cited in Newton, 2000 WL 863447, at *2;
see also C HARLES A LAN W RIGHT , ET AL., 8B F EDERAL P RACTICE & P ROCEDURE § 2234.2
(Updated Supp. 2011); R OBERT T. B ANKS, J R., & J UNE F. E NTMAN, T ENNESSEE C IVIL
P ROCEDURE § 8-12(b) (3d ed. 2009) (discussing Newton).
The Plaintiffs also argue that, even if the Defendants are permitted to choose a Rule 35
medical examiner, it is nevertheless inappropriate for the defense to have ex parte
communication with its chosen examiner, either before or after the examination.16 They assert
15
We note that the Plaintiffs’ supplemental brief on this issue states: “The rule [Rule 35] uses the term
‘independent.’ It must mean something or the term would not have been used.”
16
The Roaches claim that Overstreet v. TRW Commercial Steering Division provides support for their
argument that ex parte communication with a Rule 35 medical examiner is prohibited. Overstreet, however,
is inapplicable in this situation, because that case was decided under the workers’ compensation statutes,
which involve different considerations altogether. We also conclude that Overstreet is inapplicable because
the Court in that case held that it was improper for the defendant to have ex parte communications with the
plaintiff’s treating physician; it did not address whether the employer was entitled to have ex parte
communications with the Rule 35 medical examiner. See Overstreet, 256 S.W.3d at 629-30. Interestingly,
the Overstreet Court held that, although the defendant could not contact the plaintiff’s doctor, the trial court
erred in declining to grant the employer’s request for a Rule 35 independent medical examination “by a
physician of the employer’s choosing.” Id. at 639. The Court reasoned that “[f]undamental fairness dictates
that employers . . . have the opportunity to independently investigate the merits of a[n employee’s] claim.”
Id.
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that “the only contact that the Defense attorney should have with the Rule 35 examining
physician is to set up an appointment and to pay the bill.”
This argument is without merit. As noted above, litigation may necessitate a Rule 35
examiner under a number of circumstances, including the appointment of an independent
examiner for the court. In such a situation, as was presented in Ewing, supra, the trial court
may set the parameters for the parties’ contacts with the examiner, at the court’s discretion.
Any such limitations, however, are not mandated by Rule 35. Indeed, it is difficult to envision
how defense counsel would utilize a defense medical expert, or even establish the need for
a Rule 35 examination, if counsel is not permitted to communicate with its chosen examiner.
As discussed above, a party seeking to have a plaintiff submit to a medical examination under
Rule 35 must establish “good cause” for a physical or mental examination of the other party.
If the party at issue has already been examined, “good cause” is established with reference to
the existing medical records by showing that they are incomplete, or that they reflect an
opinion that is or may be contrary to the opinion of the Rule 35 examiner. See Odom, 2001
WL 1543476, at *6 (stating that “requests for examinations under [Rule 35] should be
considered in the context of the other discovery in the case”); see also Mitchell v. Iowa
Interstate RR, No. 07-1351, 2009 WL 2431590, at *2 (C.D. Ill Aug. 5, 2009); A.H., ex rel.
Hohe v. Knowledge Learning Corp., No. 09-2517-DJW, 2010 WL 4272844, at *2, *7 (D.
Kan. Oct. 25, 2010); Large v. Our Lady of Mercy Med. Ctr., No. 94 Civ. 5986(JGK)THK,
1998 WL 65995, at *6 (S.D.N.Y. Feb. 17, 1998). Without allowing the movant to give the
Rule 35 examiner the existing medical records, the examiner could not meaningfully assess
whether a further examination of the other party is necessary.
Therefore, we conclude that, once the requirements of Rule 35 have been met, a trial court has
the discretion to compel a plaintiff to submit to a medical examination by a medical expert
chosen by the defendant, and that the defendant and/or his counsel may have ex parte
communication with that expert in preparation for the medical examination and for trial. In
the instant case, we find that the Rule 35 requirements were met, and that the trial court did
not abuse its discretion in ordering the medical examinations of the Roaches by Dr. Wolters
and Dr. Roper.
Admissibility of Medical Expert
The Roaches argue that the trial court erred in denying their motion in limine to exclude the
expert testimony of otolaryngologist Dr. Schwaber at trial. In Dr. Schwaber’s deposition, on
cross-examination, he admitted that he did not have sufficient information about Mr. Roach’s
family history to know whether his hearing loss was due to heredity or long-term noise
exposure. The Roaches argue that, because Dr. Schwaber admitted that he could not opine
as to the cause of the Mr. Roach’s problems to a reasonable degree of medical certainty, his
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opinion lacks foundation, is speculative, would not assist the trier of fact, and therefore should
have been excluded.
The admissibility of expert testimony is governed by Rule 702 of the Tennessee Rules of
Evidence, which provides:
If scientific, technical, or other specialized knowledge will substantially assist
the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.
Tenn. R. Evid. 702. Under this rule, medical testimony is admissible if it will “substantially
assist the trier of fact.” Medical testimony must be made to a necessary degree of certainty
to prove causation. Primm v. Wickes Lumber Co., 845 S.W.2d 768, 771 (Tenn. Ct. App.
1992); see also Ambrose Bank v. Batsuk, No. M2006-01131-COA-R3-CV, 2008 WL
1901207, at *5 (Tenn Ct. App. Apr. 30, 2008); Hall v. Stewart, No.
W2005-02948-COA-R3-CV, 2007 WL 258406, at *6 (Tenn. Ct. App. Jan. 31, 2007). Thus,
Rule 702 requires a trial court to determine (1) whether expert testimony will substantially
assist a trier of fact in determining a fact in issue, and (2) whether the facts and data
underlying the testimony indicate a lack of trustworthiness. Hunter v. Ura, 163 S.W.3d 686,
704 (Tenn. 2005). If a medical opinion is not made to a reasonable degree of medical
certainty, it is considered to be overly speculative and not helpful to the trier of fact. See
Ambrose Bank, 2008 WL 1901207, at *5; Primm, 845 S.W.2d at 771.
The Roaches’ argument, however, ignores the fact that the Defendants did not offer Dr.
Schwaber’s testimony to establish an alternative theory of causation for Mr. Roach’s tinnitus
or his hearing loss. Rather, it was offered to rebut the Roaches’ evidence of causation by
showing that the tinnitus and hearing loss were not caused by the Dixie Gas explosion. The
Roaches at all times had the burden to establish causation between the Defendants’ negligence
and their injuries; the Defendants were not required to establish an alternative cause in order
to avoid liability. See Miller v. Choo Choo Partners, L.P., 73 S.W.3d 897, 901-02 (Tenn.
Ct. App. 2002). Dr. Schwaber demonstrated that he had extensive medical qualifications and
specialized knowledge: he is board certified in the field of otolaryngology, with a
subspecialty in otology and neurotology. He explained in detail the tests that he performed
on Mr. Roach and his conclusion, to a reasonable degree of medical certainty, that an
explosion did not cause the problems about which Mr. Roach complained. Therefore, because
Dr. Schwaber’s testimony about causation, or the lack thereof, was made to a reasonable
degree of medical certainty, it was not speculative, it assisted the trier of fact at trial, and it
was admissible under Rule 702. The trial court did not abuse its discretion in denying the
Roaches’ motion in limine to exclude the testimony of Dr. Schwaber.
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Neighbor Testimony by Deposition
At trial, the Defendants requested permission to submit the video deposition testimony of the
neighbor across the road from Dixie Gas, William Bruce Baker, rather than requiring him to
testify in person at trial. The request was made pursuant to Rule 804(a)(4) of the Tennessee
Rules of Evidence, due to Mr. Baker’s “physical or mental illness or infirmity.” 17 The
Defendants claimed that Mr. Baker was of advanced age (“at least in his seventies”), and that,
after the Dixie Gas incident, Mr. Baker met with some adverse illnesses that made it difficult
for him to leave his home. The Defendants pointed out that they “couldn’t even get [Mr.
Baker] across the street for a discovery deposition.” As indicated above, the trial court
granted the Defendants’ request, and Mr. Baker’s video deposition testimony was played for
the jury at trial.18
On appeal, the Roaches argue that Mr. Baker did not qualify as being “unavailable” under
Rule 804(a)(4). Although he was advanced in age, they argued, there is no evidence that he
was physically or mentally infirm, so he could have traveled the short distance to the
courthouse to testify at trial. In his deposition, Mr. Baker did not mention any particular
illness that would have kept him from leaving his house; he only mentioned that he could not
hear or see well. Therefore, the Roaches argue, allowing Mr. Baker to testify by video
deposition with no evidence as to his physical infirmity constituted an abuse of discretion.
The Roaches do not offer any evidence that Mr. Baker was fit for trial, and they did not
inquire about his condition at his deposition. They do not explain how they were prejudiced
by the trial court’s decision, except to say in a conclusory fashion that it was not harmless
error.
It is undisputed in the record that Mr. Baker is advancing in age. In his deposition, Mr. Baker
testified that he was in “bad health.” The Roaches did not seek to elicit any details on Mr.
Baker’s “bad health.” From reviewing the record as a whole, we find that the Roaches have
failed to show that the trial court abused its discretion in deferring to Mr. Baker and finding
that he was physically infirm and, therefore, unavailable to appear at trial under Rule
804(a)(4).
17
Rule 804(b) of the Tennessee Rules of Evidence provides an exception to the hearsay rule for former
testimony given by the declarant if the declarant is “unavailable” as a witness at the time of trial. Rule
804(a)(4) states that a declarant is “unavailable” if he “is unable to be present or to testify at the hearing
because of the declarant’s death or then existing physical or mental illness or infirmity.” See Tenn. R. Evid.
804(a), (b).
18
The Plaintiffs’ supplemental brief indicates that Mr. Baker’s deposition was read to the jury, but the official
trial transcript indicates that Mr. Baker’s video deposition was played at trial.
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Weight of the Evidence
The Roaches argue that the evidence at trial preponderated against the jury’s verdict of “zero”
damages caused by the Defendants, and that the verdict, therefore, should be reversed. They
assert that (1) the Defendants stipulated to liability; (2) every physician who testified stated
that the Roaches were injured in some way; (3) most, if not all, of the expert physicians
testifying for the Defendants testified that the Dixie Gas explosion caused some injury to the
Roaches; (4) all of the physicians who testified for the Roaches related their injuries to the
incident; and (5) virtually all of the physicians who testified agreed that the explosion did or
could have caused the Roaches some damages. They also point to the testimony of Dixie Gas
employee Mary Gomez, vocational expert Leon Tingle, friend Kreg Hamm, and Dixie Gas
neighbor Gregg Diffey as supporting their claim that they suffered at least some damage as
a result of the explosion. Mr. and Mrs. Roach claim that evidence suggesting that the Roaches
had gotten far away from the explosion scene before it ignited was impeached, and that the
evidence showed that Mr. and Mrs. Roach did not have time to leave the scene before the first
explosion. They characterize Mr. Baker’s testimony, that Mr. and Mrs. Roach had been gone
for approximately five minutes when the first explosion occurred, as “incorrect.” The
Roaches insist: “Certainly the evidence preponderates in favor of the Roaches suffering
damages as a result of and caused by the explosion and therefore against the jury verdict.”
At the outset, we note that the Roaches’ argument is based on an erroneous standard of
review. A jury verdict is not reviewed on appeal under a preponderance of the evidence
standard. Rather, the jury verdict must be upheld if any material evidence supports it. See
Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009). In determining whether material
evidence supports the verdict, “[a]ppellate courts shall neither reweigh the evidence nor
decide where the preponderance of the evidence lies.” Barnes v. Goodyear Tire & Rubber
Co., 48 S.W.3d 698, 704-05 (Tenn. 2000) (citing Crabtree, 575 S.W.2d at 5), abrogated on
other grounds, Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010).
From a careful review of all of the evidence, including the entire trial transcript, we find that
there is material evidence, indeed ample evidence, to support the jury’s verdict of zero
damages. Certainly Mr. and Mrs. Roach and their witnesses testified to a version of events
that, if credited, could have resulted in a different verdict. The jury, of course, was not
required to credit the testimony of Mr. Roach, Mrs. Roach, or any of their witnesses.
The Defendants submitted substantial evidence showing that the Roaches were not near the
initial explosion at Dixie Gas, and that their claimed injuries were either fabricated,
exaggerated, preexisting, or not caused by the explosion. Several fact witnesses indicated that
Mr. and Mrs. Roach were not on or near the Dixie Gas property at the time the first explosion
occurred: Mr. Baker spoke to Mr. and Mrs. Roach minutes before the first explosion as they
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were running away; Ms. Gomez testified that she and the Roaches began to leave the Dixie
Gas property at the same time, and that the fire department showed up a few minutes later;
Mr. Williams testified that he saw Mr. and Mrs. Roach run away from Dixie Gas minutes
before the first explosion; and Andy Williams testified that he saw Mr. and Mrs. Roach run
through the Dixie Gas entrance gate minutes before the first explosion. Several firefighters
testified that they arrived at Dixie Gas and were parked at the entrance gate before the first
explosion, that they did not see Mr. and Mrs. Roach leave, and that they took measures to
ensure that the area was cleared of any bystanders before the explosion. The jury was entitled
to credit this testimony and conclude that, contrary to their assertion, Mr. and Mrs. Roach in
fact had left the Dixie Gas property minutes before the first explosion occurred.
The Roaches’ expert witnesses testified that the Roaches suffered from tinnitus, hearing loss,
PTSD, depression, vocal pattern disorder, and other injuries that were caused by the
explosion. However, the trier of fact is not bound to accept an expert witness’s testimony as
true, and it may reject any expert testimony that it finds to be inconsistent with the credited
evidence or is otherwise unreasonable. Dickey v. McCord, 63 S.W.3d 714, 720-21 (Tenn. Ct.
App. 2001).
The medical evidence submitted by Mr. and Mrs. Roach was directly rebutted by the
testimony of the Defendants’ experts, Dr. Schwaber, Dr. Wolters, and Dr. Roper. Dr. Wolters
and Dr. Roper stated outright that Mr. and Mrs. Roach were exaggerating their emotional and
physical injuries. They also concluded that the vocal abnormality displayed by Mr. Roach was
not caused by any neurological disorder, but was, at least in part, purposeful, fabricated, or
exaggerated. The evidence at trial, including the medical records of Plaintiffs’ expert Dr.
Shea, indicated that both Mr. and Mrs. Roach had some hearing loss before the Dixie Gas
incident, suggesting that their tinnitus and gradual hearing loss was not caused by the
explosion. The jury was entitled to credit this evidence as well.
Moreover, it is undisputed that Mr. and Mrs. Roach did not seek medical attention for their
claimed injuries until six to eight weeks after the Dixie Gas incident; from this the jury could
conclude that the severity of their injuries was exaggerated. Even after they sought medical
attention, most of the injuries they claimed were based on subjective complaints that could
not be physically verified. In its role as fact-finder, it is the duty and prerogative of the jury
to assess the credibility of the witnesses, and the jury was at liberty to either believe or
disbelieve the subjective complaints of Mr. and Mrs. Roach. See Gibson v. Francis, No.
E2003-02226-COA-R3-CV, 2004 WL 1488541, at *4 (Tenn. Ct. App. June 30, 2004).
The parties in this case presented sharply contrasting evidence of the circumstances
surrounding the Dixie Gas incident and of the damages caused, or not caused, by the
explosion. At trial, the jury was entitled to disbelieve Mr. and Mrs. Roach and their experts,
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and to credit the evidence submitted by the Defendants. From our careful review of all of the
evidence submitted at trial, we find ample evidence to support the jury’s verdict of zero
damages.
Motion for a New Trial
Finally, the Roaches argue that the trial court erred in declining to grant their motion for a new
trial. They note that the order denying the motion for a new trial did not explain the trial
court’s decision; it simply stated that the motion was denied. From this, the Roaches argue
that the order did not establish that the trial court carried out its duty as thirteenth juror to
consider whether the preponderance of the evidence weighed against the jury verdict.
When a motion for a new trial is filed, the trial court is under a duty to act as the “thirteenth
juror” and independently weigh the evidence and determine whether the evidence
preponderates in favor of or against the verdict. Cooper v. Tabb, 347 S.W.3d 207, 220 (Tenn.
Ct. App. 2010); Woods v. Herman Walldorf & Co., 26 S.W.3d 868, 873 (Tenn. Ct. App.
1999). If the trial court has misconceived its duty or has not fulfilled it, this Court must
reverse and remand for a new trial, notwithstanding the existence of material evidence to
support the verdict. Shivers v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996). If,
however, the trial court fulfilled its duty to act as the “thirteenth juror,” it is given wide
latitude in deciding a motion for a new trial; its decision in this regard will not be overturned
on appeal absent an abuse of the trial court’s discretion. Loeffler v. Kjellgren, 884 S.W.2d
463, 468 (Tenn. Ct. App. 1994).
In Cooper, this Court held: “In addressing a motion for a new trial, the trial court has such
broad discretion that it is not bound to give reasons for its action in granting or denying a new
trial based on the preponderance of the evidence.” Cooper, 347 S.W.3d at 221. In fact,
“when a trial judge approves the verdict without comment, the appellate court will presume
that the trial judge has adequately performed his function as the thirteenth juror.” Id. In the
case at bar, the order denying the motion for a new trial states that it was rendered “after
having considered the briefs and other filings and arguments made by each party.” 19 We find
nothing in the record indicating that the trial judge misconceived his duty or clearly did not
follow it. Id. at 222. Therefore, we affirm the trial court’s denial of the Roaches’ motion for
a new trial.
19
The trial court held a hearing on the Plaintiffs’ motion for a new trial. A transcript of that hearing is not
included in the appellate record.
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C ONCLUSION
In sum, we conclude that the trial court did not err in granting the Defendants’ Rule 35 motion
to compel the Roaches to submit to examination by the defense experts, Dr. Wolters and Dr.
Roper, and it did not abuse its discretion in allowing the testimony of Dr. Schwaber.
Furthermore, the trial court did not abuse its discretion in allowing Mr. Baker to testify by
deposition in lieu of appearing in person to testify at trial. We affirm the trial court’s decision
to deny the Roaches’ motion for a new trial and to approve the jury verdict, because material
evidence supported the verdict, and the record does not indicate that the trial court abdicated
its responsibility to weigh the evidence as thirteenth juror.
The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellants
Charles and Joyce Roach, and their surety, for which execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
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