                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  August 6, 2013 Session

       LARRY BURCHFIELD ET AL. v. TIMOTHY J. RENFREE, M.D.

                    Appeal from the Circuit Court for Knox County
                      No. 2-412-08    Harold Wimberly, Judge




             No. E2012-01582-COA-R3-CV-FILED-OCTOBER 18, 2013


This is a health care liability action wherein the trial by jury resulted in a judgment for the
Defendant, Dr. Timothy Renfree. Plaintiffs, Larry and Dinnie Burchfield, filed this lawsuit
against Dr. Renfree alleging that he negligently performed surgery on Mr. Burchfield’s right
arm and caused nerve damage. After the jury returned its verdict in favor of Dr. Renfree, the
Burchfields filed post-trial motions seeking relief from the judgment and alleging numerous
errors in the administration of the trial. The trial court denied the post-trial motions and
affirmed the jury’s verdict as thirteenth juror. The Burchfields appealed. We vacate the
jury’s verdict, finding reversible error in the administration of the trial, and remand this
matter to the trial court for further proceedings.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                Affirmed in Part, Reversed in Part; Case Remanded

T HOMAS R. F RIERSON , II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Loring Justice and B. Chadwick Rickman, Knoxville, Tennessee, for the appellants, Larry
and Dinnie Burchfield.

James H. London, Libba Bond, and R. Scott Durham, Knoxville, Tennessee, for the appellee,
Timothy J. Renfree, M.D.

                                         OPINION

                         I. Factual and Procedural Background

       Larry Burchfield and his wife, Dinnie Burchfield, filed suit against Dr. Timothy
Renfree regarding carpal tunnel release surgery that was performed on Mr. Burchfield’s left
arm on August 23, 2007, and on his right arm on November 28, 2007. The Burchfields
alleged various causes of action, including negligence pursuant to the health care liability act,
medical battery, misrepresentation, and fraud. The Burchfields claimed that during the
surgery on Mr. Burchfield’s right arm, Dr. Renfree negligently severed the median nerve,
causing permanent injury. The Burchfields also alleged that both surgeries lacked Mr.
Burchfield’s informed consent. Dinnie Burchfield’s claim for damages alleged lack of
consortium.

        A jury trial was conducted September 19-30, 2011. At the close of the Burchfields’
case-in-chief, the court granted a directed verdict on their claims of battery,
fraud/misrepresentation, and punitive damages. The jury deliberated for two days following
conclusion of the proof, returning with a verdict in favor of Dr. Renfree. The Burchfields
filed post-trial motions pursuant to Tennessee Rule of Civil Procedure 59 in November 2011.
The trial court orally denied the motions on March 28, 2012. The Burchfields filed a motion
seeking entry of an order on their post-trial motions on July 2, 2012, asserting that there had
been an unreasonable delay in the entry of an appealable order. The trial court subsequently
entered an order denying the post-trial motions on July 9, 2012. The Burchfields timely
appealed the trial court’s decision.

                                     II. Issues Presented

        The Burchfields present numerous issues for our review. We have generally
incorporated the Burchfields’ format in presenting the issues, while slightly restating them
as follows:

       1.     Whether rules related to the integrity of the proceedings were violated
              warranting a new trial.

              A.      Whether a new trial is warranted because of the court’s
                      ex parte communications with the jury.

              B.      Whether a new trial is warranted because of the court’s
                      ex parte communications with defense counsel.

              C.      Whether a new trial is warranted because of defense
                      counsel’s contact with the husband of a seated juror.

              D.      Whether a new trial is warranted because it appears that
                      the court allowed defense counsel to change the court’s

                                               -2-
            ruling.

     E.     Whether a new trial is warranted because of the court’s
            disparagement of counsel and other injudicious conduct.

     F.     Whether a new trial is warranted because the court
            implied it would give a cautionary instruction to the jury
            regarding its disparagement of the Burchfields’ counsel
            but failed to do so.

     G.     Whether a new trial is warranted because of the court’s
            undue delay in addressing post-trial motions and failing
            to address some motions altogether.

     H.     Whether a new trial is warranted because the court
            subjected the Burchfields to unnecessary expense to
            punish them for exercising their discovery rights
            regarding Dr. Renfree’s experts.

     I.     Whether a new trial is warranted because defense
            counsel removed and lost documents from the medical
            file of Edward Workman, M.D. and the court did not
            address this motion.

2.   Whether the court failed to properly give jury instructions and erred by
     failing to approve any verdict form, leaving the jury without one.

     A.     Whether a new trial is warranted because the court failed
            to acknowledge or instruct the jury on medical res ipsa
            loquitur.

     B.     Whether a new trial is warranted because the trial court
            failed to properly read Tennessee Pattern Jury
            Instructions - Civil 6.25, regarding informed consent.

     C.     Whether a new trial is warranted because the court
            refused to give the jury its instructions in writing.

     D.     Whether a new trial is warranted because the court
            refused to give the Burchfields’ requested jury

                                    -3-
            instructions, though the court implied it would give them
            and never denied the request for same.

     E.     Whether a new trial is warranted because the court,
            without notice, gave a misleading jury instruction which
            no one requested.

     F.     Whether a new trial is warranted because the court
            refused to give the jury any verdict form, despite the fact
            that both parties proposed a form.

     G.     Whether a new trial is warranted because the trial court
            created its own set of jury instructions with no notice as
            to what its charge would be.

3.   Whether the trial court abused its discretion regarding key evidence.

     A.     Whether a new trial is warranted because the court failed
            to allow evidence that Dr. Renfree stopped performing
            Endoscopic Carpal Tunnel Release in May 2008.

     B.     Whether a new trial is warranted because the court
            granted Dr. Renfree’s motion for a protective order
            quashing a proof deposition of Dr. James Calandruccio,
            who was retained as an expert by the defense but
            subsequently “withdrawn” after a deposition favorable to
            the Burchfields.

     C.     Whether a new trial is warranted because the court failed
            to allow the Burchfields due process in discovering the
            basis and validity of the psychological testing done by
            the offices of defense psychologist Dr. Spica and
            interpreted by defense psychiatrist Dr. Alexander.

     D.     Whether a new trial is warranted because the court
            severely limited cross-examination and disparately ruled
            on evidentiary and testimonial issues in a manner
            disproportionately favorable to Dr. Renfree.

     E.     Whether a new trial is warranted because the court failed

                                    -4-
            in its gatekeeping obligation and disparaged Supreme
            Court case law.

     F.     Whether a new trial is warranted because the court failed
            to exclude the unreliable expert opinions of Dr. Spica
            and Dr. Alexander.

     G.     Whether a new trial is warranted because the trial court
            previously informed the Burchfields it would exclude all
            speculative causes of injury pursuant to Hunter v. Ura.

     H.     Whether a new trial is warranted because the court failed
            to exclude the testimony of Dr. Lorio, particularly when
            it appeared that Dr. Lorio charged a contingency fee.

4.   Whether the trial court abused its discretion and made errors in
     administering the case and trial.

     A.     Whether a new trial is warranted because the court’s
            thirty minute limitation on the cross-examination of Dr.
            Renfree was improper, in light of this Court’s precedent
            in Mayo v. Shine.

     B.     Whether a new trial is warranted because the court
            improperly restricted discovery deposition time and
            failed to extend the time limits and allow further
            examination, even when the need for such was evident.

5.   Whether a new trial is warranted because of the trial court’s hostility to
     discovery.

6.   Whether a new trial is warranted because the verdict is against the
     weight of the evidence.

7.   Whether a new trial is warranted because the court erred in granting
     directed verdicts on the Burchfields’ claims for battery and punitive
     damages and failed to instruct on the non-dismissed, extant claims of
     fraud and misrepresentation.

8.   Whether the Burchfields are entitled to judgment as a matter of law on

                                    -5-
              the issues of battery and medical negligence given the undisputed
              evidence that the surgical consent forms were false in many respects
              and the only competent evidence was that the knife cut Mr.
              Burchfield’s median nerve, with the experts agreeing that any cut to the
              nerve in that location during this surgery is medical negligence.

                                  III. Standard of Review

       The trial court’s rulings regarding admissibility of evidence are reviewed under an
abuse of discretion standard, and may only be overturned if the discretion is arbitrarily
exercised or abused. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997).
Similarly, decisions regarding pretrial discovery are inherently discretionary and are reviewed
under an abuse of discretion standard. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010).

       When reviewing the trial court’s decision on a motion for a directed verdict, this Court
“must take the strongest legitimate view of the evidence in favor of the opponent, draw all
reasonable inferences therefrom in his favor, discard all countervailing evidence and deny
the motion if there is any doubt to be drawn from the whole evidence. A verdict should be
directed only when reasonable minds could draw but one conclusion.” Solomon v. First Am.
Nat. Bank of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App. 1989).

        Generally speaking, if there is any material evidence to support the jury’s verdict, it
must be affirmed. Crabtree Masonry Co., Inc. v. C & R Const., Inc., 575 S.W.2d 4, 5 (Tenn.
1978). This Court has “a duty to uphold a jury’s verdict whenever possible. In doing so, we
must give effect to the jury’s intention, as long as that intention is permissible under the law
and ascertainable from the phraseology of the verdict.” Grandstaff v. Hawks, 36 S.W.3d 482,
497 (Tenn. Ct. App. 2000) (internal citations omitted). The question of whether the court’s
jury instructions were proper is a question of law, which this Court reviews de novo with no
presumption of correctness. Solomon, 774 S.W.2d at 940. This Court must review the jury
charge in its entirety and determine if it fairly defined the legal issues involved and did not
mislead the jury. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992).
We must also abide by Tennessee Rule of Appellate Procedure 36(b), which states:

       A final judgment from which relief is available and otherwise appropriate shall
       not be set aside unless, considering the whole record, error involving a
       substantial right more probably than not affected the judgment or would result
       in prejudice to the judicial process. When necessary to do substantial justice,
       an appellate court may consider an error that has affected the substantial rights
       of a party at any time, even though the error was not raised in the motion for

                                              -6-
       a new trial or assigned as error on appeal.

                   IV. Errors in Administration of the Case and Trial

       We begin our analysis with the Burchfields’ fourth issue regarding errors in the
administration of the trial, as the inquiry is primarily dispositive of the outcome of this
appeal.

                    A. Time Limit on Cross-Examination of Defendant

       The Burchfields assert that the trial court improperly limited their cross-examination
of Dr. Renfree during trial to thirty minutes. In support of their motion, the Burchfields rely
principally upon this Court’s recent opinion in Mayo v. Shine, 392 S.W.3d 61 (Tenn. Ct. App.
2012). We agree.

        In Mayo, the trial court limited cross-examination of the defendant physician to only
thirty minutes because the plaintiff chose to exhibit portions of the videotaped deposition of
the defendant physician to the jury during the plaintiff’s case-in-chief. See 392 S.W.3d at
68. This Court noted that, “[a]pparently the Trial Court’s reason for imposing this limitation
of thirty additional minutes was that portions of Dr. Shine’s deposition presented in
Plaintiff’s case-in-chief covered the same areas Dr. Shine was being questioned about on
cross-examination.” Id. This Court found that the trial court’s action was error, stating in
part:

       Plaintiff had the right to adduce from Dr. Shine on cross-examination “any
       information that may clarify, qualify, or undercut [Dr. Shine’s] testimony on
       direct examination, impair its effectiveness, or affect the inferences the
       trier-of-fact might draw,” within reasonable limits.

       Dr. Shine is a party defendant in a complex medical malpractice action, and it
       was unreasonable given the facts and circumstances of the case to set the limit
       of an additional thirty minutes on Plaintiff’s cross-examination of Dr. Shine.
       The fact that Plaintiff had introduced portions of Dr. Shine’s videotaped
       deposition during her case-in-chief was immaterial. The cross-examination of
       a witness, especially a witness who is a party to the lawsuit, is not the same
       thing as presenting a portion of that witness’s deposition in the case-in-chief.
       Cross-examination of a party witness serves a very different purpose from that
       of introducing evidence in a party’s case-in-chief. The primary purpose of a
       plaintiff’s cross-examination of a party defendant is not to prove the elements
       of the plaintiff’s cause of action, but rather to “clarify, qualify, or undercut [the

                                                -7-
       party defendant’s] testimony on direct examination, impair its effectiveness,
       or affect the inferences the trier-of-fact might draw.”

       Our careful and thorough review of the record on appeal reveals no valid
       reason for so severely limiting Plaintiff’s cross-examination of Dr. Shine in the
       manner that the Trial Court did. Given the complexity of this trial and the
       complex factual issues that were being placed before the jury, the Trial Court’s
       limitations on the cross-examination of Dr. Shine simply were not necessary
       “to prevent obstruction of the orderly progress of [this] trial.” We, therefore,
       hold that it was error to limit Plaintiff’s cross-examination of Dr. Shine in the
       manner and extent that the Trial Court did.

Id. (quoting Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708-709 (Tenn. Ct. App. 1999)).

       Similarly, in this case, where the trial court limited the Burchfields’ cross-examination
of Dr. Renfree to thirty minutes because they chose to play portions of Dr. Renfree’s video-
taped deposition for the jury during their case-in-chief, we find this to be error. This action
is likewise a complex medical malpractice case, and Dr. Renfree is a party defendant. As
explained above, cross-examination serves a much different purpose than the presentation
of proof in the case-in-chief, and the Burchfields should not have been thwarted in their
efforts to “clarify, qualify, or undercut [the party defendant’s] testimony on direct
examination, impair its effectiveness, or affect the inferences the trier-of-fact might draw.”
Id. Combined with other errors discussed in this opinion, we find that this error resulted in
the Burchfields being denied a fair trial. We conclude that the trial court erred in limiting the
cross-examination of Dr. Renfree in this manner and, therefore, vacate the trial court’s
judgment due to this finding of reversible error.

                          B. Time Limit on Discovery Depositions

        The Burchfields also assert that it was error for the trial court to place a specific time
limit on depositions during discovery. Dr. Renfree states that he requested of the court such
a limitation after the Burchfields’ counsel allegedly deposed Dr. Renfree’s damages expert
for over seven hours. In ruling on the respective motion, the judge stated that he had read
prior depositions, and found that the Burchfields’ counsel was “asking things over and over
and just wandering around.” The court thus limited all future depositions to four hours. Dr.
Renfree asserts that this was an appropriate limitation to prevent abuse of the discovery
process.

     Tennessee Rule of Civil Procedure 26.03 states that a party or other person from
whom discovery is sought may ask for an order to protect them from “annoyance,

                                               -8-
embarrassment, oppression, or undue burden or expense” upon a showing of good cause.
Such an order may include “that the discovery may be had only on specified terms and
conditions, including a designation of the time or place.” Tenn. R. Civ. P. 26.03 (2). Dr.
Renfree sought such an order in this case relating to deposition length. He referenced the
fact that depositions previously taken had been excessively long and, in Dr. Renfree’s
opinion, unduly burdensome because many repetitive questions were asked by the
Burchfields’ counsel. The trial court reviewed the prior depositions and agreed with defense
counsel, limiting all future depositions to four hours. This limitation appears to have been
reasonable under the circumstances and was applied in equal fashion to all subsequent
depositions, whether scheduled by the Burchfields or Dr. Renfree. We find this to be an
appropriate exercise of the trial court’s discretion, and find no abuse of that discretion upon
the facts shown. See McDaniel, 955 S.W.2d at 263-64.

                              V. Integrity of the Proceedings

                  A. Ex Parte Communications Between Judge and Jury

        The Burchfields assert that many procedural rules were violated in this case which
affected the integrity of the proceedings. First, the Burchfields contend that the trial court
engaged in improper ex parte communications with the jury. Based on an affidavit of one
of the jurors, the Burchfields assert:

       a.     On September 29, 2011, the jury requested a copy of the sections of the
              Tennessee Code Annotated relevant to the issues to be decided. This request
              was denied by the Court.

       b.     On September 29, 2011, following denial of the above referenced request, the
              jury requested that relevant sections of the Tennessee Code Annotated be read
              to the jury a second time. In response to this request, the jury was brought
              back into the courtroom and sections of the Tennessee Code Annotated were
              read by the Court.

       c.     On September 29, 2011, the jury requested that the jury be provided with a
              timeline demonstrative referenced during trial. The jury was advised that the
              requested demonstrative was not available to the jury, as it was not made an
              exhibit during trial.

       d.     On September 30, 2011, the jury made a written inquiry to the Court regarding
              whether it was possible to find the Defendant had not committed medical
              malpractice and still award damages to the Plaintiffs. The jury foreperson

                                              -9-
                 advised the jury that the Court’s response to this question was that it was not
                 possible.

The Burchfields represent that they (and their counsel) were neither informed of nor present
during the communications referenced in paragraphs (a) and (d), above.1 Dr. Renfree
likewise states that neither he nor his counsel were present during these communications.
The transcript contains no reference to these particular communications.

        The Burchfields argue that the allegations contained in paragraphs (a) and (d) of the
affidavit demonstrate prohibited ex parte communication between the judge and jury. See
Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994). The parties and their
counsel were not informed or consulted regarding the questions from or responses provided
to the jury, and were not present for these communications. The Burchfields contend that
such circumstances raise a question as to whether the judge might have done something
improper during these communications, such as making a remark to the foreperson that
supplied extraneous information or reflected disparagement toward the Burchfields, which
ultimately influenced the verdict.

     Our Supreme Court has elucidated the following rule with regard to ex parte
communications between a judge and jury:

        The analytical framework for determining whether reversal is required in a
        civil case due to a trial judge’s ex parte communication with a jury or juror
        was enunciated in Guy v. Vieth, 754 S.W.2d 601 (Tenn. 1988). In Guy,
        affidavits in support of a motion for new trial were to the effect that during the
        deliberations, the jurors had informed the bailiff that they had a question.
        Without the lawyers or a court reporter accompanying him, the trial judge
        entered the jury room alone, closed the door, and remained in the room for
        approximately two minutes. When emerging from the jury room, the trial
        judge stated that the jury wanted to go to lunch, and the jurors then went to
        lunch. After recognizing that some courts consider ex parte communications
        between judge and jury or juror reversible error regardless of prejudice, this
        Court stated:

                 The best position seems to us to be that a trial judge’s ex parte


        1
          The Burchfields state that the court’s actions described in paragraphs (b) and (c) were included
to show that the trial court knew how to properly address questions from the jury, but failed to do so in every
instance.


                                                     -10-
              communication with a jury in a civil case does not require
              reversal per se, but reversal is required where a timely
              complaining party shows specific prejudice or where, owing to
              the nature of the ex parte communication, the reviewing court
              is unable to determine whether the action was actually harmless.

       Id. at 605 (emphasis in original). Applying that rule, this Court commented
       that the ex parte communication concerned administrative matters, specifically
       the excusing of the jury for lunch, but in any event, held that the issue had been
       waived because no timely objection was entered.

       The rule announced in Guy remains workable and sound. Moreover, it is
       re-enforced by Tennessee Rule of Appellate Procedure 36(b) which provides:

              A final judgment from which relief is available and otherwise
              appropriate shall not be set aside unless, considering the whole
              record, error involving a substantial right more probably than
              not affected the judgment or would result in prejudice to the
              judicial process.

       Accordingly, the determinative question is whether A-1 Crane demonstrated
       specific prejudice, either to its substantial rights or to the judicial process.
       Because of the nature of the communication herein, A-1 Crane, had the
       opportunity to demonstrate whether or not specific prejudice resulted.

Spencer, 880 S.W.2d at 940-41. The Court held that ex parte communication between the
judge and jury “is always error and should not occur under any circumstances.” Id. at 941.
The Court rejected, however, a per se rule of reversal for that error. Id.

        In the case at bar, there are two alleged instances of improper ex parte
communications between the court and the jury. First, the jury requested a copy of the
sections of the Tennessee Code Annotated relevant to the issues to be decided. This request
was denied by the trial court. The juror’s affidavit does not state whether the judge actually
spoke to the jury foreperson, or whether there was a written request and response.
Regardless, no prejudice can be shown as it is clear that allowing the jury to view a copy of
the Tennessee Code Annotated in the jury room would have been improper. See Henson v.
State, 72 S.W. 960 (Tenn. 1903).

       The Burchfields contend that this does not end the inquiry, however, because the
nature of the ex parte communication renders this Court unable to determine whether the

                                              -11-
action was actually harmless. In other words, the Burchfields posit that this Court cannot
determine from the record whether the judge might have said or done something that
influenced the jury in some fashion.

        Precedent on this issue leads us to disagree with the Burchfields’ contention. In the
seminal case of Guy v. Vieth, 754 S.W.2d 601 (Tenn. 1988), as explained above, the Supreme
Court was faced with the allegation that the trial judge entered the jury room alone, spoke to
the jury for approximately two minutes with the door closed, and then emerged, announcing
that the jury wished to go to lunch. Id. at 601. The trial judge stated that he did not “recall
any such entry in the jury room.” Id. at 602. He further stated that if such an incident did
occur, “it was only to excuse the jury for lunch or to take some other break,” and that if the
door had shut, “it was only momentarily and by accident.” Id.

        The Supreme Court reviewed the allegations, concluding, “every indication is that the
communication between the trial judge and the jury concerned administrative matters, that
is, the excusing of the jury for lunch.” Id. The Court ultimately found that by failing to
timely object to this communication, the plaintiffs had waived their right to complain. Id.
The Court’s analysis suggests, however, that the Court did not find a reason to question its
ability to determine whether the action was actually harmless simply because the judge
briefly spoke to the jury alone.

       Similarly, in Spencer, it was alleged that one of the attorneys observed the judge
speaking to the jury foreperson outside the jury room alone. See 880 S.W.2d at 939. The
judge later disclosed that the foreperson told him the jury wanted to know if they could
simply pro rate damages between both defendants. Id. at 940. The judge stated that he told
the foreperson that the jury could not pro rate damages, but rather had to determine which
defendant was liable and assess damages. Id. The defendant who was ultimately found to
be liable by the jury asserted that this ex parte communication constituted reversible error.
Id.

       The Supreme Court concluded that the defendant had the opportunity to demonstrate
whether specific prejudice had resulted, but failed to do so. Spencer, 880 S.W.2d at 941.
The Court reasoned that there was no evidence that this communication (1) tainted the
deliberative process of the jury, (2) was even relayed to the jury by the foreperson, or (3)
influenced the foreperson individually. Id. Again, despite the fact that the judge briefly
spoke to the foreperson alone, the Court did not find this to be an issue, and did not speculate
regarding what “might” have occurred. Id. The Court simply concluded that, having found
no evidence of specific prejudice, the error was harmless. Id.

       Similarly, in the case at bar, the trial court did not prejudice either party by refusing

                                              -12-
to allow the jury to take the relevant Tennessee Code Annotated sections into the jury room,
as to do so would have been improper. Having found no evidence of specific prejudice, we
determine that the trial court’s error in having such ex parte communications with the jury
was harmless and does not constitute reversible error.

        The second alleged incident of improper ex parte communications occurred when the
jury transmitted a written inquiry to the court regarding whether it was possible to find that
Dr. Renfree had not committed medical malpractice but still award damages to the
Burchfields. The juror’s affidavit states that the jury foreperson, after communicating with
the trial court, advised the jury that the court’s response to this question was in the negative.
Again, it is unclear from the affidavit whether the judge’s response to the foreperson was
written or oral. We find no reference to this incident in the record.

       The Burchfields do not take issue with the correctness of the judge’s response; rather,
their complaint is that during the exchange, the judge could possibly have said or done
something that influenced the jury. There is no evidence that anything improper occurred
during the exchange between the judge and jury foreperson. Further, there is no evidence
that anything other than the judge’s response was communicated by the foreperson to the
jury. As stated above, while it is correct that the judge should not have undertaken any ex
parte communication with the jury, such error is harmless in this instance, where the
Burchfields have failed to present evidence of any resulting prejudice.

              B. Ex Parte Communication Between Judge and Defense Counsel

        The Burchfields also allege that on two occasions during the trial, the judge was seen
conversing alone with defense counsel, once in the hallway behind the courtroom, and later
in the parking area. The Burchfields assert that these ex parte communications between the
judge and defense counsel constitute a violation of Canon 2 of the Code of Judicial Conduct2
and warrant a new trial. Dr. Renfree contends that no improper ex parte communication
occurred, and that the Burchfields’ counsel observed the judge and defense counsel having
nothing more than “water cooler exchanges” in public.

        Tennessee Supreme Court Rule 10, Rule of Judicial Conduct 2.9, states, “A judge
shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter . . . .” (Emphasis added.) Defense counsel
posits that there was no discussion of the pending matter and characterizes the conversations
as an exchange of “polite pleasantry.” The trial judge ostensibly agreed that there was no

       2
           The Code of Judicial Conduct is codified at Tennessee Supreme Court Rule 10.

                                                 -13-
improper communication as he denied the Burchfields’ post-trial motion raising the issue.

        We do not find reversible error where there has been no showing of prejudice related
to these communications. See State v. Jones, 735 S.W.2d 803, 810 (Tenn. Crim. App. 1987);
State v. Ramsey, No. 01C01-9412-CC-00408, 1998 WL 255576 (Tenn. Crim. App. May 19,
1998). As stated in Jones, while the trial court’s decision to participate in ex parte
communication might be lacking in judgment, it is harmless error unless there is a showing
of prejudice. From a careful examination of the record, there appears no evidence that these
conversations concerned the pending case, were witnessed by the jury, or that the jury was
influenced in any way. We find this issue to be without merit.

            C. Defense Counsel’s Contact with the Husband of a Seated Juror

       The Burchfields next assert that during a trial recess, defense counsel “conversed
extensively” with the husband of a seated juror and failed to terminate the conversation upon
learning of the relationship. Defense counsel explains that he introduced himself to this
gentleman, who was sitting in the courtroom at a time when only court officers were present.
The Burchfields’ counsel was present in the courtroom as well. Defense counsel states that
opposing counsel then joined the conversation, which “basically terminated” thereafter.

       Our Supreme Court has previously explained that “any unauthorized ‘private
communication, contact, or tampering directly or indirectly, with a juror during a trial about
the matter pending before the jury’” will be considered an improper outside influence. State
v. Adams, No. W2009-01492-SC-R11-CD, 2013 WL 2102683 at *3 (Tenn. May 16, 2013)
(quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)).
The Court instructed further that “[a] party challenging the validity of a verdict must produce
admissible evidence to make an initial showing that the jury was exposed to extraneous
prejudicial information or subjected to an improper outside influence.” Adams, 2013 WL
2102683 at *3.

        No such showing was made in this case. The meager evidence presented was that of
a short exchange of pleasantries between a juror’s husband and defense counsel, for which
the Burchfields’ counsel was mostly present. Again, while this Court is not condoning such
communication between counsel and the spouse of a juror, we also cannot find that this
communication creates reversible error absent a showing of prejudice. There is no evidence
in the record to establish that improper information was exchanged, any information was
conveyed to the jury, or the jury was even aware of this communication. This issue is also
without merit.

                   D. Defense Counsel “Changing” the Court’s Ruling

                                             -14-
       The Burchfields posit that during a motion hearing conducted in this case, the trial
court allowed defense counsel to modify its previous ruling regarding the presentation of
proof at trial. A review of the transcript of that hearing, however, demonstrates that no such
change actually occurred. Motion hearings typically involve oral arguments by opposing
parties with questions and related comments from the judge, all resulting in the court’s
ruling. Such occurred at the motion hearing in question, with the trial court issuing a ruling
following an adjudication of the motion. We discern no error in the trial court’s actions.

                   E. Disparagement by the Court/Injudicious Conduct

       The Burchfields also contend that the trial court exhibited numerous instances of bias
by making improper comments in the presence of the jury. For example, the Burchfields
claim that the judge made disparaging remarks about the Burchfields’ counsel and the
manner in which he presented certain proof. The Burchfields assert that the trial court’s
words, tone, and demeanor suggested that their counsel was less than competent and, at
times, deceitful. The Burchfields state that the trial court also demonstrated hostility toward
their witnesses.

       In an action involving “sharp” exchanges between the judge and counsel occurring
in front of the jury, Goedel v. State, 567 S.W.2d 180 (Tenn. Crim. App. 1978), the Criminal
Court of Appeals explained:

       “A trial judge must be patient, yet firm, and not allow personal irritation to
       ruffle his judicial demeanor while trying a case.” Brooks v. State, 187 Tenn.
       67, 213 S.W.2d 7, 10 (1948). On the other hand, attorneys owe a
       corresponding duty to refrain from conduct which might create irritation in the
       trial of a case.

Id. at 183.

       In Mayo, in addition to the issue regarding the limitation of the plaintiff’s cross-
examination of the defendant, a question was raised regarding whether the trial court erred
by making potentially disparaging comments about the plaintiff’s case in the presence of the
jury. See 392 S.W.3d at 68. The trial court, when announcing its ruling limiting the time for
cross-examination of the defendant, also stated, “Well, why did you waste two hours of our
time playing questions that you’re going to ask of her before?” Id. The plaintiff asserted on
appeal that this comment about wasting time implied that the plaintiff’s claims were a waste
of the court’s and the jury’s time, and this Court agreed. Id. This Court stated, “[a]t a
minimum, the Trial Court’s comment, however unintentionally, implied that Plaintiff’s
counsel’s questions and, therefore, also the witness’s answers to those questions, were a

                                             -15-
waste of time and unimportant. While this comment alone may not have risen to the level
of reversible error, it was potentially prejudicial and, when considered together with the other
errors as discussed in this Opinion, resulted in the Plaintiff being denied a fair trial.” Id.

        Similarly, in this case, the trial court made several disparaging comments toward and
concerning the Burchfields’ counsel and his presentation of the proof in front of the jury.
While we acknowledge that the judge was often frustrated with the slow progression of
Plaintiffs’ presentation of the proof, we find that these instances of disparagement clearly left
the jury with an unfavorable impression of the Burchfields’ counsel which likely affected
their opinion of the Burchfields’ case. As in Mayo, we find that while the comments alone
might not constitute reversible error, when considered with the other errors discussed herein,
the trial court’s comments resulted in the Burchfields being denied a fair trial.

                          F. Failure to Give Cautionary Instruction

       The Burchfields assert that the trial court indicated a need to give a cautionary
instruction for the jury to disregard any impression they might have held about the court’s
view of the lawyers or the facts. The Burchfields contend that the court ultimately failed to
provide such instruction. The Burchfields suggested in a motion filed during trial that any
one of the following instructions would have been appropriate:

       The Court’s remarks to counsel or about counsel or the parties must not be
       taken by you to indicate the Court’s opinion of the facts you should find or the
       verdict you should return.

       ...

       By my commentary to the lawyers if you think that I have expressed or even
       hinted at any opinion as to the facts in this case, you should disregard it.

       ...

       If you think by my words or conduct you can interpret or infer any
       manifestation of my bias or prejudice to one side or the other, you should not
       do so.

        Dr. Renfree argues that the trial court did give a proper instruction regarding this
issue, as follows:

       I know that during the course of the trial there was concern conveyed to me

                                              -16-
       more than once on the part of the jury about the time that we were taking in
       this case and maybe some of the things that went on in court. You know, this
       admittedly was not the smoothest presented case we’ve ever had. The
       important thing to realize is that we have to ignore all such things as that and
       focus only on the two things that can have any influence on your verdict, and
       that is the actual evidence in the case and the rules of law as I will state them
       to you at the end of the closing arguments.

After closing arguments, the trial court also gave the following jury instruction:

       So, finally, sitting here as judge in the case, I do not, can not, and would not
       assume, indicate, or suggest that any contested fact has or has not been proved
       or that any witness has or has not told the truth. Again, you, the jury, are the
       sole judges of the evidence, of the credibility of the witnesses, and the value
       to be given their testimony. As a jury you can have no prejudice, no sympathy,
       or allow anything but the law and the evidence to have any input upon your
       verdict. You must return the verdict with absolute fairness and impartiality
       according to the law and the evidence as you think justice and truth indicate.

The Burchfields contend that these instructions were insufficient and did not properly instruct
the jury to disregard any impression they might have drawn from the court’s remarks during
trial.

       As our Supreme Court has previously stated:

       Reversal of a judgment is appropriate . . . only when the improper denial of a
       request for a special jury instruction has prejudiced the rights of the requesting
       party. It is not sufficient that refusal to grant the requested instruction may
       have affected the result; “[i]t must affirmatively appear that it did in fact do
       so.” Tennessee courts view the jury charge in its entirety and consider the
       charge as a whole in order to determine whether the trial judge committed
       prejudicial error. It is not error to deny a requested instruction if its substance
       is covered in the general charge.

Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365, 372 (Tenn. 2006) (internal
citations omitted) (quoting Otis, 850 S.W.2d at 446).

       Reviewing the jury instructions in their entirety, we find that the trial court adequately
covered the substance of the special requested instruction in its jury charge. The jury was
twice instructed to consider only the evidence and disregard all other influences. We find

                                              -17-
no prejudicial error therein.

                                       G. Undue Delay

        The Burchfields complain that the trial court unduly delayed entering its decision on
their post-trial motions. The Burchfields admit, however, that the trial court apologized for
the delay, explaining that it was due, at least in part, to a clerical error. We find that this
delay, although unfortunate, did not cause prejudice to the parties. A trial court is not
required to rule on such a motion within any particular time frame, although it is encouraged
to act promptly. See Johnson v. Torrington Co., No. M2010-01924-COA-R3-CV, 2012 WL
2337615 at *9-10 (Tenn. Ct. App. June 19, 2012).

                                  H. Unnecessary Expense

       The Burchfields argue that a new trial is warranted because the trial court subjected
them to unnecessary expense as punishment for exercising discovery rights regarding the
defense experts. This argument will be addressed below in the section regarding evidentiary
rulings.

                   I. Removal of Documents from Dr. Workman’s File

        The Burchfields likewise argue that a new trial is warranted because defense counsel
allegedly removed and lost documents from the medical file of Dr. Workman. This argument
will also be addressed below in the section regarding evidentiary rulings.

                                   VI. Jury Instructions

                                    A. Res Ipsa Loquitor

        The Burchfields contend that the trial court erred in failing to instruct the jury
regarding res ipsa loquitor. Dr. Renfree does not dispute the fact that this jury instruction
was not given, but posits that such charge was precluded because the Burchfields presented
evidence of specific acts of negligence. Upon our review of the record, the trial court
appears to have instructed the jury in part by simply reading from Tennessee Code Annotated
§29-26-115, the health care liability statute. The court stopped short of reading the entire
statute, however, omitting subsection (c), which provides:

       In a health care liability action as described in subsection (a), there shall be no
       presumption of negligence on the part of the defendant; provided, that there
       shall be a rebuttable presumption that the defendant was negligent where it is

                                              -18-
       shown by the proof that the instrumentality causing injury was in the
       defendant’s (or defendants’) exclusive control and that the accident or injury
       was one which ordinarily doesn’t occur in the absence of negligence.

The Burchfields argue that this subsection embodies medical res ipsa loquitor, which they
raised in their pleadings. The Burchfields further contend that because such claim was never
dismissed, the trial court should have instructed the jury regarding same. We disagree. The
Burchfields’ argument fails to apprehend that:

       Res ipsa loquitur is a rule of evidence, not a rule of law. It is intended to come
       to the aid of plaintiffs who have no direct evidence of a defendant’s
       negligence, by providing a specialized vehicle for considering circumstantial
       evidence in negligence cases. It permits, but does not require, a fact-finder
       “to infer negligence from the circumstances of an injury.”

Burton v. Warren Farmers Co-op., 129 S.W.3d 513, 525-26 (Tenn. Ct. App. 2002) (quoting
Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999)) (internal citations omitted).

        In this case, there was no basis for the Burchfields to rely on res ipsa loquitor as there
was direct evidence presented of Dr. Renfree’s alleged negligence. See Smith v. Mills, No.
E2010-01506-COA-R3-CV, 2011 WL 4553144 at *10 (Tenn. Ct. App. Oct. 4, 2011). The
Burchfields’ expert, Dr. Natelson, testified at length regarding multiple alleged deviations
from the standard of care by Dr. Renfree during the surgical procedure, which Dr. Natelson
opined were the cause of Mr. Burchfield’s injury. Dr. Natelson opined that Dr. Renfree had
cut Mr. Burchfield’s median nerve as the result of negligence because Dr. Renfree, inter alia,
(1) failed to take measurements, (2) failed to cut distal to proximal, (3) failed to visualize the
nerve and ligament, and/or (4) performed the operation too quickly. Dr. Renfree and his
experts agreed that the nerve was lacerated during the procedure, but stated that the
laceration was not the result of negligence and that Dr. Renfree did not deviate from the
standard of care. Thus, Dr. Renfree presented proof that the injury could have occurred in
the absence of negligence, as Dr. Renfree and his experts testified that there was no
negligence in this case.

       As stated in Smith:

       the facts of this case do not lend themselves to proving negligence
       circumstantially through res ipsa loquitur because Patient has presented
       evidence at trial of specific acts of negligence. The doctrine of res ipsa
       permits the jury to infer negligence when there is a lack of evidence about
       what occurred – it is not a mechanism for having the jury ignore the evidence.

                                              -19-
        In this case, the parties do not dispute what actually caused Patient’s injury –
        i.e. the inserting of a stitch into the bowel during the closing of the fascia.
        However, there was ample evidence in the record upon which the jury could
        find that this injury can occur even when the physician uses due care. Further,
        we cannot find that Patient established that this is the type of injury which
        ordinarily would not occur but for negligence. Thus, we affirm the judgment
        of the trial court that Patient failed to carry her burden of demonstrating that
        res ipsa loquitur applied in this case.

2011 WL 4553144 at *10.

       Similarly, here, the Burchfields presented expert proof from which the jury could
determine that Dr. Renfree was negligent, and Dr. Renfree presented expert proof to refute
that testimony. As was the case in Smith, the jury was presented with a “battle of the
experts” and had to decide which expert to believe. See 2011 WL 4553144 at *2. As such,
there was no need for the court to instruct the jury regarding res ipsa loquitor, as the jury’s
verdict did not have to be based on circumstantial evidence.

                             B. Instruction Regarding Informed Consent

       The Burchfields assert that the trial court’s reading of the Tennessee Pattern Jury
Instructions - Civil 6.25,3 regarding informed consent, was incorrect.4 The Burchfields state
that the trial court changed the phrase “alternative treatment or procedure” to “another
treatment,” which prejudiced the Burchfields because they had used the term “alternative”
repeatedly during the presentation of their proof. Dr. Renfree posits that the trial court’s
instruction was substantially accurate, and that this is the appropriate standard by which it
must be measured.




        3
            This instruction provides, in pertinent part:

        In determining how a reasonable patient would have acted under the circumstances, you should
        consider the testimony of the [patient][plaintiff], the plaintiff’s [idiosyncrasies], [fears], [age],
        [medical condition], [and][religious beliefs], the presence or absence of alternative
        [procedures][treatments] and the potential risks and benefits thereof, and the impact of no
        [treatment][procedure] on plaintiff’s health.


        4
          As this Court has previously recognized, the Tennessee Pattern Jury Instructions, while helpful,
do not constitute mandatory authority for the trial courts in their instruction of juries. Cortazzo v. Blackburn,
912 S.W.2d 735, 740 (Tenn. Ct. App. 1995).

                                                      -20-
       As this Court has previously explained:

       [T]he soundness of every jury verdict rests on the fairness and accuracy of the
       trial court’s instructions. Since the instructions are the sole source of the legal
       principles needed to guide the jury’s deliberations, trial courts must give
       substantially accurate instructions concerning the law applicable to the matters
       at issue.

       Jury instructions need not be perfect in every detail. A single erroneous
       statement will not necessarily undermine otherwise proper instructions that, on
       the whole, fairly define the issues and do not mislead the jury.

       Instructions must be viewed as a whole, and the challenged portion of the
       instructions should be considered in light of its context. An erroneous
       instruction will not be considered reversible error if the trial court explains or
       corrects it in other portions of the charge.

       Juries are generally composed of persons who do not have formal legal
       training. Accordingly, a trial court’s instructions should be couched in plain
       terms that lay persons can readily understand. It also follows that appellate
       courts must view the challenged instructions not through the practiced eyes of
       a judge but rather through the eyes of an average lay juror.

Ladd by Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 94 (Tenn. Ct. App. 1996) (internal
citations omitted).

       Utilizing these guiding principles, we do not find the trial court’s instruction to be
erroneous. Viewing the instruction as a whole and in proper context, the substitution of
“another treatment” for the phrase “alternative treatment or procedure” did not alter the
instruction’s meaning so as to render it substantially inaccurate. If anything, the trial court
was simply employing a phrase that was more readily understandable. The trial court gave
a substantially accurate instruction concerning the law applicable to this matter. This issue
is without merit.

                                 C. Written Jury Instructions

       The Burchfields argue that the trial court erred in refusing to provide the jury with
written instructions. As claimed by the Burchfields, they requested the instructions be
provided to the jury in writing, but the court denied their request and refused to allow them
to present argument or authority regarding same. A review of the record demonstrates that

                                              -21-
the Burchfields’ request was not presented until after the jury had been charged and had
retired to deliberate. In support of their position, the Burchfields rely upon Tennessee Rule
of Civil Procedure 51.04, which states:

       If any party requests that the instructions given under Rule 51.03(2) be reduced
       to writing, or if the judge sua sponte elects to reduce the instructions to
       writing, the judge shall give the jury one or more copies of the written
       instructions, in their entirety, for use in the jury room during deliberations.
       After the deliberations are concluded, the written charge shall be returned to
       the judge.

       Dr. Renfree contends that the Burchfields’ request for written jury instructions was
properly denied by the trial court due to its untimeliness. Dr. Renfree relies on the 2009
Advisory Commission Comments to the above rule in support of this argument. These
Comments explain, inter alia, that, “[r]evised Rule 51.04 gives any party the right to require
the jury charge to be reduced to writing and given to the jury. The new language
incorporates T.C.A. § 20-9-501.” Tennessee Code Annotated § 20-9-501 states:

       On the trial of all civil cases, it is the duty of the judge before whom the civil
       case is tried, at the request of either party, plaintiff or defendant, to reduce
       every word of the judge’s charge to the jury to writing before it is delivered to
       the jury, and all subsequent instructions that may be asked for by the jury, or
       that may be given by the judge, shall, in like manner, be reduced to writing
       before being delivered to the jury.

Tennessee Rule of Civil Procedure 51.04 and Tennessee Code Annotated § 20-9-501 share
an obvious similarity, which is the requirement that the trial court must reduce its charge to
writing at the request of either party. There exists, however, a clear distinction - Tennessee
Code Annotated § 20-9-501 expressly requires that this be accomplished before the charge
is delivered to the jury, while Rule 51.04 includes no such requirement. Dr. Renfree asserts
that this requirement is implied in Rule 51.04, however, because the rule’s new language
incorporates Tennessee Code Annotated § 20-9-501. We agree.

       As our Supreme Court has explained:

       Although the rules of civil procedure are not statutes, the same rules of
       statutory construction apply in the interpretation of rules. Our goal is to
       ascertain and give effect to the legislative intent without unduly restricting or
       expanding a statute’s coverage beyond its intended scope. . . . In construing the
       rules of this Court, however, our goal is to ascertain and give effect to this

                                              -22-
       Court’s intent in adopting its rules.

Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009) (internal citations omitted). Further,
as this Court has elucidated, “it is the court’s duty to reconcile provisions to give them a
consistent meaning and harmonize the purposes of each. In addition, an act should be
construed in pari materia with all other acts on the same subject.” First Tennessee Bank,
N.A. v. Dougherty, 963 S.W.2d 507, 509 (Tenn. Ct. App. 1997) (internal citations omitted).

       Bearing these principles in mind, we recognize that Tennessee Code Annotated § 20-
9-501 has been in existence for decades, requiring the trial court to reduce its charge to
writing at the request of either party before the charge is read to the jury. It has been
construed by the courts of this state, however, as not requiring that the written version of the
charge be physically provided to the jury. See Smith v. Steele, 313 S.W.2d 495, 501 (Tenn.
Ct. App. 1956). In 2003, the Tennessee Supreme Court adopted Tennessee Rule of Civil
Procedure 51.04, providing that “If the judge elects to reduce to writing the instructions given
under Rule 51.03(2), the judge shall give the jury one or more copies of the written
instructions, in their entirety, for use in the jury room during deliberations. . . .” Thus, under
the newly-adopted Rule 51.04, the judge was required to provide a copy of the written
instructions to the jury if the judge elected to reduce the charge to writing.

       The 2003 Advisory Commission Comments state in pertinent part:

       New Rule 51.04 provides that if the judge is required to provide jurors with
       one or more copies of the written jury instructions for use during deliberations.
       This provision is similar to Rule 30(c) of the Tennessee Rules of Criminal
       Procedure (requiring that the written instructions be provided to the jury),
       which has been part of Tennessee law for many years. Because written jury
       instructions can markedly increase the jurors’ understanding of the often
       complex law they must apply in the case, trial judges are encouraged to reduce
       their jury instructions to writing and, pursuant to this rule, to provide the jury
       with the written instructions.

       Subsequently, in 2009, Rule 51.04 was amended to add a provision requiring the judge
to reduce the charge to writing at the request of any party; the balance of Rule 51.04 was
basically unchanged. The 2009 Advisory Commission Comments state, “Revised Rule 51.04
gives any party the right to require the jury charge to be reduced to writing and given to the
jury. The new language incorporates T.C.A. § 20-9-501.”

       Reconciling the above provisions to afford them a consistent meaning and harmonize
the purposes of each, we find that Rule 51.04 was not intended to expand the time limitation

                                               -23-
imposed in Tennessee Code Annotated § 20-9-501, which expressly states that the
appropriate time for requesting that the charge be put in writing is before the charge is
delivered to the jury. The clear intent of Rule 51.04 was to encourage trial courts “to reduce
their jury instructions to writing and, pursuant to this rule, to provide the jury with the written
instructions.” See 2003 Advisory Commission Comments. The proper time for making such
a request to the trial court, as expressed in the statute, would still be before the charge is
delivered to the jury. Tenn. Code Ann. §20-9-501. This is the only logical construction, as
to allow such a request to be made after the jury has begun deliberations would result in
undue delay and interruption of the deliberation process.

       In the instant case, despite the Burchfields’ contentions otherwise, the record reveals
that no request was made for the jury instructions to be reduced to writing and given to the
jury until after they had begun deliberating and thereafter sent out a question. The
Burchfields assert that they “provided written instructions and moved for their acceptance”
before deliberations began. The Burchfields did file requests for proposed jury instructions,
but never asked for the jury instructions to be reduced to writing until after jury deliberations
had begun. Based on the above authority, we find that such request was untimely.

            D. Remaining Issues Regarding Jury Instructions and Verdict Form

        The Burchfields further contend that the trial court’s failure to deliver some of the jury
instructions requested by the Burchfields after “implying” that such instructions would be
given is prejudicial error. The Burchfields rely principally on Tennessee Rule of Civil
Procedure 51.01, which states in relevant part that a party may file written requests for jury
instructions, and that the court “shall inform counsel of its proposed action upon their
requests prior to their arguments to the jury.” In this case, the Burchfields requested that the
court adopt numerous sections of the Tennessee Pattern Jury Instructions - Civil in its charge
to the jury. The Burchfields also submitted several requests for special instructions. During
the hearing regarding jury instructions, the court separately reviewed the proposed special
instructions, ruling upon them in turn. The court then announced:

       We have a number of things, which people tend to do, give me a bunch of
       numbers out of the jury charge book. You have to understand that the Court
       is limited in time just as you are, and many times we can’t say everything that
       might possibly be related. We have to pick out the ones that are, and we just
       do the best we can on that.

       No further discussion was held regarding the general jury charge. The Burchfields’
counsel made no further requests or objections regarding same until after the jury was
instructed. Thus, the trial court did not inform counsel of the precise instructions that would

                                               -24-
be read. The trial court also clearly did not imply, however, that all of the Burchfields’
requested instructions would be given, contrary to the Burchfields’ contention.

       Our Supreme Court has opined that Tennessee Rule of Civil Procedure 51.01 creates
a mandatory duty that the trial court inform counsel of its proposed action on counsel’s
requested jury instructions prior to argument, and that the trial court’s failure to do so is
error. See Moredock v. McMurry, 527 S.W.2d 462, 464 (Tenn. 1975). The Court also held,
however, that such error does not always warrant reversal. Id. at 463. As the Court
explained:

       Whether this is reversible error would depend upon many factors, including the
       complexity of the issues, the number of special requests, their nature, purpose
       and merit, the necessity for them and, above all, the existence of a bona fide
       and particularized need for the guidance of counsel in advance of argument.

Id.

       Noting that Tennessee Rule of Civil Procedure 51.01 was identical to Federal Rule
of Civil Procedure 51 in this regard, the Supreme Court considered federal law on this
question as persuasive authority. Id. The Court recognized that a majority of decisions from
other jurisdictions, as well as the Sixth Circuit, “seem to require an affirmative showing of
‘material prejudice’ before awarding a new trial for failure of the trial court to announce
which requests will be charged and which will be refused.” Id.

       Our Supreme Court concluded that in the case before it, where counsel had submitted
numerous special requests for instructions and the court had “declined to inform counsel of
its proposed action on these requests and persisted in that refusal in the face of a specific
motion for compliance with the rule,” such error was reversible absent a showing of lack of
prejudice. Id. The Court also held that “inadvertent noncompliance” with Rule 51.01 was
not reversible error unless material prejudice was shown to exist. Id.

       In this case, the Burchfields filed a written request asking the trial court to charge
several sections of the Tennessee Pattern Jury Instructions - Civil, and submitted separate
requests for special instructions. At the respective hearing, the court specifically reviewed
and ruled upon the special instructions. The trial judge essentially stated that he would select
the applicable provisions of the Tennessee Pattern Jury Instructions - Civil to charge,
reminding the Burchfields’ counsel that he could not “say everything that might possibly be
related.” The Burchfields did not object at the point of the court’s announcement and did
not ask the trial court for clarification or a specific ruling pursuant to Tennessee Rule of Civil
Procedure 51.01 regarding the pattern jury instructions requested.

                                              -25-
        This case is distinguishable from Moredock, wherein the trial court “declined to
inform counsel of its proposed action on these requests and persisted in that refusal in the
face of a specific motion for compliance with the rule.” 527 S.W.2d at 463. In the case at
bar, the trial judge informed the Burchfields’ counsel that he would choose and charge only
those pattern instructions that he found to be relevant, a ruling to which the Burchfields’
counsel did not object. Further, there was no specific motion made at any time before the
charge was delivered pursuant to Tennessee Rule of Civil Procedure 51.01. Thus, the trial
court’s failure to comply with Tennessee Rule of Civil Procedure 51.01 does not appear to
be a “conscious” and “affirmative” refusal, as was found to be true in Moredock. Id. at 464.
Rather, it would appear to be inadvertent noncompliance, which raises the issue of whether
the Burchfields have shown material prejudice in the trial court’s noncompliance.

        The Burchfields have asserted in this appeal that they were prejudiced because the
trial court failed to instruct the jury regarding res ipsa loquitor and failed to properly read the
instruction regarding informed consent. We have previously determined these issues to be
without merit; thus, no prejudice has been shown. The Burchfields’ remaining specific
assertion regarding the jury instruction was that the trial court charged the jury pursuant to
Tennessee Pattern Jury Instructions - Civil 6.14, entitled “Alternate Methods,” without notice
to the Burchfields that this instruction would be given. The Burchfields assert that they had
not asked for this instruction because they had not alleged that utilizing the type of procedure
Dr. Renfree performed on Mr. Burchfield was negligent. According to the Burchfields’
contention, giving this instruction to the jury was “destined to confuse.”

        Dr. Renfree posits that the trial court’s instruction was entirely appropriate, as there
was testimony during the trial regarding different surgical techniques utilized in performing
carpal tunnel release. Dr. Renfree states that one expert was asked to comment on the type
of procedure Dr. Renfree used on Mr. Burchfield and whether it was “risky.” Dr. Renfree
also states that one of the Burchfields’ claims was that Mr. Burchfield’s injury would not
have occurred if Dr. Renfree had performed an open, rather than endoscopic, surgery.

       The trial court’s instruction in this regard was as follows:

       When it is shown in a case that there is more than one accepted method of
       treatment and no one of them is used exclusively and uniformly by all doctors
       in good standing, a doctor is not negligent simply for selecting an accepted
       method of treatment that later turns out to be unsuccessful. This is true even
       if the method is not one favored by certain other doctors. Before exercising
       any judgment, the doctor should inform himself by proper examination and
       proper investigation so as to ascertain the facts and circumstances on which
       any reasonable exercise of judgment may be made.

                                               -26-
The court’s instruction does appear to track Tennessee Pattern Jury Instructions - Civil 6.14,
which reads:

       When there is more than one accepted method of diagnosis or treatment, and
       no one of them is used exclusively and uniformly by all physicians of good
       standing, a physician is not negligent for selecting an accepted method of
       diagnosis or treatment that later turns out to be unsuccessful. This is true even
       if the method is one not favored by certain other physicians.

Further, the comment following the pattern instruction states:

       In Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979), the Court reaffirmed
       Casenburg v. Lewis, 163 Tenn. 163, 40 S.W.2d 1038 (1931) as a limitation on
       this rule: “Before exercising judgment the physician should inform himself by
       proper examination so as to ascertain the facts and circumstances on which a
       reasonable exercise of judgment might rest.”

        The trial judge has a duty to instruct the jury “accurately with respect to the theories
of the parties and the legal principles applicable thereto.” Street v. Calvert, 541 S.W.2d 576,
584 (Tenn. 1976). The instructions given by a trial court should: (1) be supported by the
evidence, (2) embody a party’s theory, and (3) be a correct statement of the law. Hayes v.
Gill, 390 S.W.2d 213, 214 (Tenn. 1965). See also Austin v. City of Memphis, 684 S.W.2d
624, 637 (Tenn. Ct. App. 1984) (determining that the trial court’s instruction was proper
based on the defenses relied upon by defendant, and the facts introduced in support thereof).

        One defense expert, Dr. Leibovic, was questioned extensively by the Burchfields’
counsel about his opinion regarding the safety of endoscopic carpal tunnel surgery. Dr.
Leibovic told the jury that there existed a controversy in the field regarding whether
endoscopic surgery led to greater risk of cutting nerves and tendons. A review of the
transcript clearly demonstrates that the Burchfields were calling into question the safety of
the procedure performed on Mr. Burchfield. The Burchfields contend that the intended point
of this line of questioning was simply to show that Mr. Burchfield should have been more
adequately informed of the risks for the purposes of the informed consent claim. The
Burchfields assert that they never claimed that the procedure performed on Mr. Burchfield
was per se negligence; thus, the trial court was in error to give the above instruction. The
substantial amount of testimony regarding alternate procedures, however, required the
instruction given by the court, as Dr. Renfree was clearly placed in the position of having to
defend the safety of the procedure he performed. Because the instruction (1) is supported by
the evidence, (2) embodies Dr. Renfree’s position, and (3) is a correct statement of the law,
we find no error in the court’s decision to give this instruction.

                                              -27-
        The Burchfields argue that they were still prejudiced because they had no notice that
this instruction would be given and could not “work it into their closing.” A review of the
transcript reveals that the Burchfields’ counsel did cover this in his closing argument,
however, stating as follows:

       And let’s go back to that alternatives thing. If you’re having surgery, the
       conservative things aren’t applicable anymore. In his deposition that you saw,
       before the polish and shine of court was upon him, Dr. Renfree specifically
       said the alternatives are - to endoscopic two-portal - open, endoscopic one-
       portal, and other surgical techniques. I didn’t say that. He said it. One
       testimony in his deposition, another testimony in here when it gets hot and the
       steam starts coming up in the kitchen. But he said the alternatives were the
       other forms of surgery like open. Would you like to know about open if you
       had a carpal tunnel problem? Would you like to know the risks and benefits?
       Would you like to know of the great debate and that some surgeons won’t even
       do it because they’re concerned about the safety of the procedure? And we’re
       not here to resolve that debate, but your verdict may have an impact on it to
       make that comment what doctors have to tell patients.

Clearly, the Burchfields’ counsel adequately discussed alternate methods of surgery in his
closing argument, and there is no question that they were also discussed as part of the proof.
The Burchfields have shown no prejudice in not being made aware that the court would give
the challenged instruction. Further, because the instruction was not erroneous, we find no
prejudice to the Burchfields in having it read to the jury. We find the Burchfields’ arguments
regarding the jury instructions to be without merit.

      The Burchfields also take issue with the trial court’s failure to utilize a written verdict
form. The Burchfields argue that this case presented complex issues and that the jury was
hampered by not having a form. During its instruction of the jury, the trial court stated:

       When you come back into court I will ask your spokesperson these questions:
       “Have you reached a verdict?” If the answer is “yes,” I will say, “With regard
       to Mr. Burchfield, do you find for the plaintiff or for the defendant?” If your
       answer is “for the defendant,” I will ask each member of the jury, “Do you
       individually agree with that?” If your answer is “for the plaintiff,” I will ask
       you, “What amount of damages do you find appropriate for the plaintiff?”

This is precisely the procedure that the court followed when the jury announced its verdict
for Dr. Renfree. The Burchfields argue, however, that they were prejudiced by the court’s
failure to utilize a written verdict form.

                                              -28-
        Tennessee Rule of Civil Procedure 49.01 provides that the court “may” require the
jury to make special written findings on each issue of fact, and Rule 49.02 provides that the
court “may” submit written interrogatories to the jury. Absent from the language of
Tennessee Rule of Civil Procedure 49 is that the court “must” employ a written verdict form.
As this Court has previously recognized, “Rule 49.01 of the Tennessee Rules of Civil
Procedure affords the trial court wide latitude to use a special verdict form as it deems
appropriate.” Stanfield v. Neblett, 339 S.W.3d 22, 40 (Tenn. Ct. App. 2010). The
Burchfields have cited this Court to no authority which states that a court must use a written
general verdict form. We discern no error in the trial court’s failure to use a written verdict
form in this case. As we have previously stated, “We have a duty to uphold a jury’s verdict
whenever possible. In doing so, we must give effect to the jury’s intention, as long as that
intention is permissible under the law and ascertainable from the phraseology of the verdict.”
Grandstaff, 36 S.W.3d at 497 (internal citations omitted). The jury’s verdict was certainly
ascertainable in the case at bar, even in the absence of a written verdict form.

                                  VII. Evidentiary Rulings

       A. Evidence that Dr. Renfree No Longer Performed Endoscopic Procedure

          The Burchfields contend that the trial court erroneously ruled that the fact that Dr.
Renfree no longer performed endoscopic carpal tunnel release for patients after May 8, 2008,
was inadmissible. The Burchfields assert that Dr. Renfree maintained in his deposition that
he routinely performed endoscopic carpal tunnel release, and that he believed the endoscopic
procedure to be safer than open surgery. According to the Burchfields’ theory, if open
surgery is not as safe, as Dr. Renfree opined, the fact that he later stopped performing
endoscopic surgery should not be considered a subsequent remedial measure pursuant to
Tennessee Rule of Evidence 407, and should not have been deemed inadmissible. The
Burchfields further contend that even if this is a subsequent remedial measure, the evidence
is still admissible to impeach Dr. Renfree because he had stopped performing this procedure
two years before his deposition was conducted.

        Dr. Renfree asserts that it was not an abuse of discretion for the trial court to exclude
evidence that he stopped performing endoscopic carpal tunnel release in 2008 and has since
elected to perform only open surgery. Dr. Renfree posits that this is precisely the type of
subsequent remedial measure contemplated by Tennessee Rule of Evidence 407, as the
change was in response to the issues arising from Mr. Burchfield’s procedure and this
litigation. Dr. Renfree admits that this change was remedial and was intended to prevent
further injury to patients. Dr. Renfree further states that, pursuant to Tennessee Rule of
Evidence 407, this information can only be admitted for some purpose other than establishing
negligence, such as impeachment. Dr. Renfree contends that the Burchfields’ lack an ability

                                              -29-
to impeach in this case, as Dr. Renfree testified consistently about his change in surgical
technique to performing open surgeries.

       Tennessee Rule of Evidence 407 provides:

       When, after an event, measures are taken which, if taken previously, would
       have made the event less likely to occur, evidence of the subsequent remedial
       measures is not admissible to prove strict liability, negligence, or culpable
       conduct in connection with the event. This rule does not require the exclusion
       of evidence of subsequent measures when offered for another purpose, such
       as proving controverted ownership, control, or feasibility of precautionary
       measures, or impeachment.

       As our Supreme Court has elucidated:

       The purpose of this evidentiary rule is to “encourage remedial measures in
       order to serve the public’s interest in a safe environment.” Neil P. Cohen et
       al., Tennessee Law of Evidence § 4.07[2] (5th ed. 2005). The word
       “subsequent” refers to events that occur after the events giving rise to the
       lawsuit. Rothstein v. Orange Grove Ctr., Inc., 60 S.W.3d 807, 813 (Tenn.
       2001). An action is “remedial” if it “chang[es] a situation, usually an unsafe
       property or product, to prevent the situation from causing further injury.” Id.
       As with other evidentiary matters, we review a trial court’s decision to admit
       or exclude evidence under Tennessee Rule of Evidence 407 under an abuse of
       discretion standard. See State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007).
       “An abuse of discretion occurs when the trial court applies an incorrect legal
       standard or reaches a conclusion that is ‘illogical or unreasonable and causes
       an injustice to the party complaining.’” Id. (quoting State v. Ruiz, 204 S.W.3d
       772, 778 (Tenn. 2006)).

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 87-88 (Tenn. 2008).

       In this case, we find that the trial court erred in refusing to allow the Burchfields to
present proof that Dr. Renfree had ceased performing endoscopic carpal tunnel release
surgery in 2008, for the purpose of impeaching his testimony. Dr. Renfree’s testimony
during his deposition in 2010 lead to the conclusion that he then regularly performed
endoscopic carpal tunnel release surgery. Dr. Renfree testified in pertinent part as follows:

       If I was to see a patient in clinic, say Mr. Burchfield, initially you would start
       with a course of conservative measures; i.e., splinting and time. And then if

                                              -30-
       you get to a point where the patient is progressing, where they’re having
       difficulty, they have weakness or increasing numbness and tingling, such as
       Larry was having on his right.

       Then the treatment options are - if he wants to move forward, which we
       discussed - in my practice is discussing a carpal tunnel release. And the way
       I do them is endoscopic carpal tunnel.

       ...

       I think that a physician, you know, a physician would see a patient and, as we
       talked about earlier, giving a diagnosis. And if the patient’s having
       progressive problems you would discuss what the patient has, and then you
       would discuss how to make that – or how to treat that. And in this specific
       case I do an endoscopic carpal tunnel release.

Dr. Renfree further testified that while he did also perform open carpal tunnel release, he felt
that the incidence of damage or laceration to the median nerve was higher with open carpal
tunnel release.

       At trial, questions posed to Dr. Renfree by his counsel were carefully couched in terms
of what he would have done in 2007, when Mr. Burchfield’s surgeries were performed. Dr.
Renfree, however, did not disclose that he no longer performed endoscopic carpal tunnel
release surgery in 2010. On cross-examination, the Burchfields’ counsel attempted to ask
Dr. Renfree whether endoscopic carpal tunnel release surgery was still a routine procedure
in February 2010, which was the date of Dr. Renfree’s deposition, but defense counsel
objected and the trial court refused to allow any questions relating to any year other than
2007.
       The Burchfields assert that their purpose behind this line of questioning was simply
to impeach Dr. Renfree’s deposition testimony on the basis that he still regularly performed
the endoscopic procedure in 2010. We agree that such purpose for questioning was entirely
proper. Contrary to Dr. Renfree’s assertions, the deposition testimony lends the impression
that Dr. Renfree regularly performed the endoscopic procedure at the time of his deposition.
Further, this testimony was not properly barred as evidence of a subsequent remedial measure
pursuant to Tennessee Rule of Evidence 407 because a surgery that Dr. Renfree characterized
as more risky could not be deemed a remedial measure. The purpose behind a remedial
measure clearly is to reduce risk and increase safety. See Martin, 271 S.W.3d at 87-88. The
Burchfields should have been permitted to pursue this line of questioning both for the
purpose of impeaching Dr. Renfree’s deposition testimony, and because the testimony was
not inadmissible as relating to a subsequent remedial measure.

                                              -31-
                                      B. Dr. Calandruccio

       Dr. Calandruccio was initially disclosed as an expert witness for the defense. His
discovery deposition was taken on August 5, 2010. He was likewise listed as a witness on
Dr. Renfree’s witness list for trial. On October 6, 2010, Dr. Renfree withdrew Dr.
Calundruccio from his list as an expert witness; the Burchfields assert that this is because
during his deposition, Dr. Calundruccio provided information favorable to the Burchfields.
The Burchfields claim that when they retained Dr. Calundruccio and he began assisting them,
Dr. Renfree sent correspondence purporting to re-designate Dr. Calundruccio as a consulting
expert for the defense. The Burchfields filed a subpoena and notice seeking to again depose
Dr. Calundruccio, which the trial court quashed on Dr. Renfree’s motion.

          Dr. Renfree attached an affidavit from Dr. Calundruccio to the motion, wherein he
stated:

          I was consulted as an expert witness by the defendants in this case and my
          discovery deposition was taken by plaintiff counsel on August 5, 2010.
          Sometime after that, I was advised that I would not be needed as a witness at
          trial. It was not clear to me that the defendants intended for me to remain as
          a consulting expert in this case. I now understand and agree to serve as a
          consulting expert to the defendants.

          I am aware that the plaintiffs have filed a notice to take my deposition on
          March 10, 2011. 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.

In its order quashing the notice of deposition of Dr. Calundruccio, the court noted that
because Dr. Calundruccio had expressed that he no longer desired to provide testimony, it
would be inappropriate for the court to subpoena him to testify against his wishes.

        The Burchfields assert that they should have been allowed to further depose Dr.
Calundruccio, if not regarding his opinions, at least regarding his reasons for no longer
wanting to testify. A careful review of the record discloses that the Burchfields did not ask
the trial court if they could depose Dr. Calundruccio regarding his reasons for no longer
wanting to testify. Rather, the Burchfields represented to the trial court that they wished to
take Dr. Calundruccio’s deposition for proof regarding his expert opinions in this case. This
Court cannot rule on the propriety of deposing Dr. Calundruccio regarding his affidavit or
his reasons for not testifying when that issue was never ruled upon by the trial court.



                                               -32-
        On the issue of whether the Burchfields could further depose Dr. Calundruccio
regarding his expert opinion, they attempt to rely on this Court’s opinion in White v.
Vanderbilt Univ., 21 S.W.3d 215 (Tenn. Ct. App. 1999), but we find such authority
unavailing on this issue. In White, the question was whether a withdrawn expert’s deposition
testimony could be utilized at trial, not whether such expert could be further deposed. Id. at
225. The most important distinction between White and the case at bar, however, is that the
expert in White never withdrew his agreement to testify as an expert as Dr. Calundruccio did
in this action.

        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). In that case, expert real estate appraisers were hired
by the plaintiff, but the plaintiff decided not to call them as witnesses because their appraisals
were lower than desired. Id. at 630. The defendant then subpoenaed them to testify. Id. The
experts objected to testifying, citing their business relationship with plaintiff, and the trial
court sustained the objection, “‘on the ground that the witness still maintains a confidential
relation’ with plaintiff.” Id.

       The appellate court affirmed, stating that it was unnecessary to decide whether the
lower court’s reasoning was sound because the witnesses themselves objected to being
required to testify as experts:

       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. The state or the United States may
       call upon her citizens to testify as experts in matters affecting the common
       weal, but that is because of the duty which the citizen owes to his government,
       and is an exercise of its sovereign power. So, also, where the state or the
       United States, in her sovereign capacity, charges the citizen with crime, she
       may, if need be, lend her power in that regard to the accused; for she is vitally
       interested, as such sovereign, that public justice shall be vindicated within her
       borders. Perhaps, also, under like circumstances, she may also lend her power
       in civil cases. But the 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.


                                              -33-
Id.

        Similarly, here, we hold 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.
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.” See id. This
issue is without merit.

       Regarding the issue of whether the trial court properly barred the use of Dr.
Calundruccio’s deposition at trial, however, we do find this Court’s opinion in White to
be controlling. See 21 S.W.3d at 225-230. In White, the defendant physicians named an
expert who was subsequently deposed by the plaintiffs. Id. During his deposition, the
expert stated an opinion that the defendants deviated from the standard of care in certain
respects. Id. Defendants elected to take a video-taped deposition of the expert thereafter,
and the expert again stated that the defendants deviated from the standard of care. Id.
Both the plaintiffs and the defendants named this expert as a potential witness on their
witness list for trial. Id.

        When the trial began, the defendants filed motions in limine seeking to prevent the
plaintiffs from utilizing this expert’s testimony by reading from or alluding to his
depositions. See 21 S.W.3d at 222. The trial court ruled that the plaintiffs could not use
the expert’s deposition for rebuttal if the defendants did not call him as a witness. Id.
The trial court stated that, “unless that expert is going to be called to testify at trial, a
party has the right to designate . . . [him] as a consultant at any point. And once [the
defendants] elect not to utilize . . . [the expert] at trial, the other party may not . . .
discover the opinions. And if they have been discovered, if there have been depositions,
[the other party] . . . may not utilize those depositions at trial.” Id.

        This Court reviewed the issue of whether the plaintiffs should have been allowed
to use the expert’s deposition testimony at trial, and found that the first inquiry was
whether Tennessee Rule of Civil Procedure 32 permitted the use of the deposition. Id. at
226. In White, this Court found that it was permissible to use the expert’s deposition
under Rule 32 because the expert lived out of state, and because his deposition was taken
by the defendants, who retained him, to preserve his testimony. Id. This Court
specifically noted that it would be inappropriate to utilize the deposition at trial if it was
“the discovery deposition of an adversary’s expert,” due to Rule 32.01(3), which states
that such depositions may only be used to impeach the deponent. Id.

       Employing the same analysis in the case at bar, it is clear the Dr. Calundruccio’s
deposition was properly barred from use at trial because it was taken by the Burchfields


                                             -34-
and was the “discovery deposition of an adversary’s expert.” See 21 S.W.3d at 226. As
such, its use is not permitted pursuant to Tennessee Rule of Civil Procedure 32.01(3). We
discern no error in the trial court’s determination that the deposition could not be utilized
at trial.

                                  C. Psychological Testing

        The Burchfields complain that they, and ultimately, the jury, were deprived of the
ability to review the tests and raw data relied upon by defense experts Dr. Spica and Dr.
Alexander when forming their opinions that Mr. Burchfield demonstrated malingering and
a lack of credibility regarding his injury. The Burchfields also claim unfairness in being
required to incur significant additional expense because the trial court required that the
testing questions and data be delivered only to another psychologist.

        Dr. Renfree explains that Dr. Spica voiced a concern that he could not ethically
disclose the raw testing materials because they involved sensitive proprietary information that
could compromise the efficacy of the tests if placed in the public domain. This concern was
conveyed to the trial court, with the court ruling that Dr. Spica would bring his entire file to
his deposition for review by the Burchfields. Dr. Spica allowed the Burchfields to review
his file during the deposition but refused to allow the testing materials to be removed and
copied. He stated that ethically he could only release those materials to another psychologist.
Thus, at a subsequent motion hearing, this issue and the fact that the Burchfields had hired
a psychologist to receive the information were presented to the trial court. The court
expressed approval of this arrangement, ordering that Dr. Spica would provide the
information to the Burchfields’ expert.

        The Burchfields presented no additional objection that the testing information was not
provided to their psychologist. In fact, contrary to the Burchfields’ assertions on appeal, it
is clear they maintained access to the raw testing materials as was evidenced by their referral
to and use of the evidence at trial. Further, a review of the trial transcript reveals that this
testing information was also provided to the jury. The Burchfields’ contentions of prejudice
regarding an alleged lack of this testing information are without merit.

       The Burchfields also complain that they were required to bear the expense of hiring
another expert (a licensed psychologist) in order to obtain the relevant test information from
Dr. Spica. As noted above, the record reveals that this appears to have been a solution
suggested by Dr. Spica at his deposition, to which the Burchfields agreed, despite voicing
their objection to this proposal. Contrary to the Burchfields’ assertions, this was not a
requirement imposed by the trial court, although the court did approve the parties’ agreement
in an effort to resolve this discovery dispute.

                                              -35-
        The Burchfields further assert that the trial court disparaged Tennessee Supreme Court
case law and failed to properly allow the Burchfields to challenge the opinions of Drs. Spica
and Alexander. We find no merit to these contentions. The Burchfields presented the
testimony of their own expert, a neuropsychiatrist, who testified regarding Mr. Burchfield’s
credibility and lack of malingering. The Burchfields were allowed ample opportunity to
challenge the opinions of Drs. Spica and Alexander, both in their cross-examination of these
witnesses and their use of other experts. The Burchfields also argue that the trial court
disparately ruled on evidentiary and testimonial issues in a manner disproportionately
favorable to Dr. Renfree. We have reviewed the Burchfields’ allegations and find no merit
to their contentions.

      Lastly, the Burchfields appear to argue that the trial court should have excluded the
opinions of Drs. Spica and Alexander as scientifically unreliable. As explained by our
Supreme Court:

       In general, questions regarding the admissibility, qualifications, relevancy and
       competency of expert testimony are left to the discretion of the trial court. The
       trial court’s ruling in this regard may only be overturned if the discretion is
       arbitrarily exercised or abused. The specific rules of evidence that govern the
       issue of admissibility of scientific proof in Tennessee are Tenn. R. Evid. 702
       and 703. The former 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.

       And Tenn. R. Evid. 703 states:

              The facts or data in the particular case upon which an expert
              bases an opinion or inference may be those perceived by or
              made known to the expert at or before the hearing. If of a type
              reasonably relied upon by experts in the particular field in
              forming opinions or inferences upon the subject, the facts or
              data need not be admissible in evidence. The court shall
              disallow testimony in the form of an opinion or inference if the
              underlying facts or data indicate lack of trustworthiness.

McDaniel, 955 S.W.2d at 263-64 (internal citations omitted).

                                             -36-
        A trial court should “admit the testimony of a competent expert unless the party
opposing the expert’s testimony shows that it will not substantially assist the trier of fact or
if the facts or data on which the opinion is based are not trustworthy pursuant to Rules 702
and 703.” Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn. 2011). As the Supreme Court
further explained, “The trial court is not to decide how much weight is to be given to the
witness’s testimony. Once the minimum requirements are met, any questions the trial court
may have about the extent of the witness’s knowledge, skill, experience, training, or
education pertain only to the weight of the testimony, not to its admissibility.” Id.

        In this case, the Burchfields failed to demonstrate that the facts or data on which the
opinions of Drs. Spica and Alexander were based were untrustworthy. The Burchfields
likewise did not demonstrate that these experts’ testimony would not substantially assist the
trier of fact. As such, the trial court did not abuse its discretion in allowing Drs. Spica and
Alexander to testify. Any questions regarding the weight to be given their testimony were
properly addressed by the jury.

       On a related matter, the Burchfields assert that defense counsel removed portions of
Dr. Workman’s written records regarding Mr. Burchfield during defense counsel’s cross-
examination of Dr. Workman, and that those records were never returned. A review of the
transcript evinces that defense counsel did retrieve Dr. Workman’s records during cross-
examination, then purported to return them. Dr. Workman objected on the record that his
entire file was not returned. Defense counsel stated that he would return the subject
documents as needed. The record reflects no further reference to those documents.

        The Burchfields filed a motion regarding these missing documents post-trial, but the
trial court failed to make any specific ruling. Dr. Renfree filed a response stating that no
documents were taken. The Burchfields responded by filing an affidavit from Dr. Workman,
wherein he stated that he observed defense counsel remove documents from his file during
trial. Dr. Workman further identified the specific documents that were removed and are now
missing. We consider this to be a significant allegation. This Court cannot address the
matter in the first instance inasmuch as the trial court made no ruling on the motion;
however, upon remand, the trial court is directed to address this issue of missing documents
expeditiously, before this matter is retried.

                         D. Hunter v. Ura and Speculative Causes

        The Burchfields argue that the only admissible evidence of injury causation in this
case is that Mr. Burchfield’s median nerve was cut with the surgeon’s knife. The Burchfields
assert that evidence of other causes of the laceration is speculative and should have been
excluded pursuant to Hunter v. Ura, 163 S.W.3d 686, 702 (Tenn. 2005) (wherein the

                                              -37-
Supreme Court affirmed trial court’s decision to exclude testimony of expert witness who
characterized alternate cause of death as “possibility”, concluding such testimony was
speculative and would not substantially assist trier of fact). Dr. Renfree counters that the
Burchfields’ counsel elicited these responses from the experts and thus should not be heard
to complain.

       During cross-examination of Dr. Leibovic, the Burchfields’ counsel asked, “Doctor,
the most likely cause of the cut is the knife, isn’t it?” Dr. Leibovic then responded that while
the use of the knife was a possibility, it was also possible that the median nerve could have
been cut by one of the other surgical instruments, stating, “I don’t know that we can ever in
fact know what cut this nerve.” The Burchfields’ counsel persisted in his questioning
regarding whether the knife was the most likely instrumentality, to which Dr. Leibovic again
responded that it could have been any of the other surgical instruments as well, and that there
was no way to tell for certain.

        Dr. Lorio was similarly pressed on cross-examination, testifying that any of the
surgical instruments could have severed the nerve. He testified that “failure to obey the
landmarks could explain this laceration,” and further that “advancing instrumentation in the
wrong plane could explain this laceration.” Dr. Lorio admitted that any of these explanations
were possibilities, after being asked these questions by the Burchfields’ counsel. Regardless,
the experts maintained that Dr. Renfree acted within the standard of care at all times when
performing this procedure. As Dr. Renfree points out, “a party cannot generally be heard to
complain about testimony elicited by his own cross-examination of an opposing party or a
witness.” Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 392 (Tenn. Ct. App. 2006). We find
that the Burchfields elicited the testimony which they now argue was inadmissible, and as
such, cannot complain of error.

                                  E. Dr. Lorio’s Testimony

       The Burchfields assert that Dr. Lorio should not have been allowed to testify because
“he demonstrated a lack of judgment such that the court should not have trusted him to
substantially assist the jury to understand the evidence or determine any fact at issue under
Tenn. R. Evid. 702.” In support, the Burchfields state that Dr. Lorio cursed and employed
an ethnic slur during his deposition, and that he also charged an exorbitant fee for his
testimony at trial with little or no explanation. The Burchfields surmise that such charge was
an “apparent impermissible contingency fee.”

       As earlier stated, “questions regarding the admissibility, qualifications, relevancy and
competency of expert testimony are left to the discretion of the trial court. The trial court’s
ruling in this regard may only be overturned if the discretion is arbitrarily exercised or

                                              -38-
abused.” McDaniel, 955 S.W.2d at 263. A trial court should “admit the testimony of a
competent expert unless the party opposing the expert’s testimony shows that it will not
substantially assist the trier of fact or if the facts or data on which the opinion is based are
not trustworthy pursuant to Rules 702 and 703.” Shipley, 350 S.W.3d at 551. Despite the
Burchfields’ characterization of Dr. Lorio’s deposition testimony, there was no showing that
Dr. Lorio’s testimony would not substantially assist the jury or that the facts or data on which
his opinion was based were not trustworthy. Further, as the Burchfields admit, Dr. Lorio’s
invoice was sent after the trial was concluded.5 We find no abuse of discretion in the trial
court’s ruling that Dr. Lorio’s testimony was admissible.

                                         VIII. Discovery Issues

        The Burchfields next contend that the trial court was “hostile” toward their discovery
efforts and improperly quashed many legitimate discovery requests. The Burchfields state
that Dr. Renfree lacked standing to seek the court’s order in quashing subpoenas issued to
third parties, such as the hospitals where Dr. Renfree performed surgery. The Burchfields
also assert that the trial court improperly refused to allow the Burchfields to file additional
written discovery requests of Dr. Renfree after ruling that he could not be further deposed.
The Burchfields further argue that, by contrast, the trial court improperly failed to exclude
Dr. Renfree’s supplemental discovery response which contained a booklet allegedly provided
to patients by Dr. Renfree’s nurse, when the supplement was filed a few months following
Dr. Renfree’s deposition.

        Dr. Renfree contends that the Burchfields engaged in a course of abusive and unduly
burdensome discovery requests which were properly limited by the trial court. Dr. Renfree
states that as the litigation progressed, “it became clear that no amount of discovery would
ever satisfy the Burchfields,” as the Burchfields filed written discovery requests that
exceeded the limits set by local rules and their counsel deposed Dr. Renfree for almost
twelve hours.

           Tennessee Rule of Civil Procedure 26.02 (1) provides:

           The frequency or extent of use of the discovery methods set forth in
           subdivision 26.01 and this subdivision shall be limited by the court if it
           determines that: (i) the discovery sought is unreasonably cumulative or
           duplicative or is obtainable from some other source that is more convenient,
           less burdensome or less expensive; (ii) the party seeking discovery has had


       5
            There is nothing in the record to show that Dr. Lorio charged a contingency fee as the Burchfields
suggest.

                                                     -39-
       ample opportunity by discovery in the action to obtain the information sought;
       or, (iii) the discovery is unduly burdensome or expensive, taking into account
       the needs of the case, the amount in controversy, limitations on the parties’
       resources, and the importance of the issues at stake in the litigation. The court
       may act upon its own initiative after reasonable notice or pursuant to a motion
       under subdivision 26.03.

       Our Supreme Court has further explained:

       Although the Tennessee Rules of Civil Procedure do not provide a sanction for
       abuse of the discovery process, trial judges have the authority to take such
       action as is necessary to prevent discovery abuse. Trial courts have wide
       discretion to determine the appropriate sanction to be imposed. Such a
       discretionary decision will be set aside on appeal only when “the trial court has
       misconstrued or misapplied the controlling legal principles or has acted
       inconsistently with the substantial weight of the evidence.” Appellate courts
       should allow discretionary decisions to stand even though reasonable judicial
       minds can differ concerning their soundness.

Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004) (internal citations
omitted).

        We find no abuse of the trial court’s discretion in the limitations placed on discovery
in this case. As the trial court found, the discovery requests that were quashed were unduly
burdensome and often duplicative. For example, the request that hospitals and surgery
centers search years’ worth of records and provide copies of every consent form signed by
Dr. Renfree regarding carpal tunnel surgery on any patient is unreasonable at best. Further,
the trial court had the authority pursuant to Tennessee Rule of Civil Procedure 26.02 (1) to
“act on its own initiative” in limiting this burdensome discovery. We do not find that the trial
court “misconstrued or misapplied the controlling legal principles or has acted inconsistently
with the substantial weight of the evidence” in the manner in which discovery was limited
in this case. See Mercer, 134 S.W.3d at 133.

       The Burchfields also assert that the trial court should have excluded Dr. Renfree’s
supplemental discovery response, which identified a booklet allegedly provided to Mr.
Burchfield by Robin Jenks, R.N. The Burchfields state that Dr. Renfree originally answered
their written discovery on December 22, 2008, and therein failed to disclose the existence of
this booklet or Ms. Jenks as a known witness of events. The Burchfields state that Dr.
Renfree was deposed on February 22, 2010, and never testified regarding this booklet or Ms.
Jenks. The booklet and Ms. Jenks’ knowledge regarding same were not disclosed until a

                                              -40-
supplemental response was filed on May 18, 2010. The Burchfields insist that it was error
for the trial court to have failed to exclude this evidence and/or for the trial court to have
refused the Burchfields’ request to depose Dr. Renfree again after this evidence was
disclosed.

       Again, we find no abuse of discretion in the trial court’s decision regarding this
discovery issue. As stated above, this Court “should allow discretionary decisions to stand
even though reasonable judicial minds can differ concerning their soundness.” See Mercer,
134 S.W.3d at 133. We discern no error in the trial court’s rulings regarding discovery
matters.

                        IX. Verdict Against Weight of Evidence

        Because we have previously determined that reversible error exists mandating a new
trial, an analysis of this issue is pretermitted.

         X. Directed Verdicts Regarding Battery, Fraud/Misrepresentation,
                               and Punitive Damages

       At the conclusion of the Burchfields’ case-in-chief, the trial court granted Dr.
Renfree’s motion for directed verdict on the battery, fraud, and misrepresentation claims
presented by the Burchfields. As Dr. Renfree concedes, a motion for directed verdict should
only be granted when the evidence is insufficient to create an issue for the jury to decide or
when the evidence is susceptible to only one conclusion. Newcomb v. Kohler Co., 222
S.W.3d 368, 390 (Tenn. Ct. App. 2006). This Court further stated:

       The rule for determining a motion for directed verdict requires the trial judge
       and the appellate courts to look to all of the evidence, take the strongest,
       legitimate view of the evidence in favor of the opponent of the motion and
       allow all reasonable inferences from it in his favor. The court must disregard
       all countervailing evidence and if there is then any dispute as to any material,
       determinative evidence or any doubt as to the conclusions to be drawn from
       the whole evidence, the motion must be denied.

Id. (Internal citations omitted). “The court may grant the motion only if, after assessing the
evidence according to the foregoing standards, it determines that reasonable minds could not
differ as to the conclusions to be drawn from the evidence.” Id. (quoting Eaton v. McLain,
891 S.W.2d 587, 590 (Tenn. 1994). See also Biscan v. Brown, 160 S.W.3d 462, 470 (Tenn.
2005).



                                             -41-
        The Burchfields raised claims of both lack of informed consent and medical battery
in this case. This Court has previously explained the distinction between these claims as
follows:

      A medical battery occurs when a physician performs an unauthorized
      procedure. Typically, a medical battery involves a physician performing a
      procedure that the patient did not know the physician was going to perform or
      a physician performing a procedure on a part of the body other than the one
      described to the patient. The controlling factual issues in these cases are
      whether the patient knew the physician was going to perform the procedure
      and whether the patient authorized the physician to perform it. According to
      the Tennessee Supreme Court, if the answer to either of these questions is no,
      a medical battery has been committed. Because the answers to these questions
      focus on the patient’s knowledge and awareness, patients pursuing a medical
      battery claim need not present expert evidence to support their claim.

      In contrast, a lack of informed consent violation occurs when the patient is
      aware that a procedure is going to be performed but is unaware of the potential
      risks associated with the procedure. The tort does not relate to the manner in
      which the procedure was performed, but rather to the manner in which the
      physician obtained the patient’s consent to perform the procedure. These
      claims are part of the medical malpractice statutes. See Tenn. Code Ann. § 29-
      26-118 (1980). Accordingly, patients seeking damages for lack of informed
      consent must prove that the physician’s conduct fell below the applicable
      standard of care and that reasonably prudent persons in the patient’s position
      would not have consented to the procedure if they had been suitably informed
      of the risks, benefits, and alternatives.

      The inquiry in lack of informed consent cases is whether the physician
      provided the patient sufficient information to enable the patient to make an
      intelligent and informed decision either to refuse or consent to the procedure.
      To prove that the information was insufficient, a patient must present evidence
      that his or her physician failed to disclose information about the risks of the
      proposed procedure that a reasonable physician would have disclosed under
      similar circumstances. This evidence must take the form of expert testimony
      because it is clearly beyond the common knowledge of laypersons.

Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. Ct. App. 2000) (other internal citations
omitted). Regarding a medical battery claim, this Court went on to explain that a signed
consent form gives rise to a presumption that the patient authorized the procedure “in the

                                           -42-
absence of proof of misrepresentation, inadequate disclosure, forgery, or lack of capacity.”
Id. at 161.

        This Court has previously found that a plaintiff stated a claim for medical battery
sufficient to survive summary judgment wherein his agreement to sign a consent form was
based on the physician’s alleged factual misrepresentation that he had spoken to the
plaintiff’s treating physician and the treating physician agreed that the procedure should be
performed. Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370 (Tenn. Ct.
App. Jan. 13, 2005). In its analysis of this issue, this Court explained:

       Dr. Alexander correctly asserts that a signed consent form shows that the
       plaintiff was aware that the surgery was going to take place. The signed
       consent form, however, raises only a presumption of consent to surgery. A
       claim for medical battery can be established if it is shown that the physician
       intentionally or recklessly misrepresented a material fact in order to obtain the
       patient’s signature on the consent form, thus vitiating the patient’s consent.
       For example, in Petzelt v. Tewes, 581 S.E.2d 345, 347 (Ga. Ct. App. 2003), the
       plaintiff consented to a “denervation” procedure to alleviate pain in her back,
       based on the defendant physician’s representation that the patient’s orthopedic
       surgeon was “fully aware” of everything the defendant physician was doing.
       In reality, the defendant physician had dictated notes indicating a “c.c.” to the
       orthopedic surgeon, but had no idea whether the orthopedic surgeon had either
       received or reviewed the notes. It turned out that the orthopedic surgeon was
       unaware of the defendant physician’s course of treatment of the plaintiff. The
       appellate court found that the jury could conclude from the evidence that the
       defendant physician had misrepresented to the plaintiff that the orthopedic
       surgeon had acquiesced to her treatment plan for the plaintiff. Under these
       circumstances, the plaintiff’s consent to the medical procedure “may be
       vitiated.” Id.; see also Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435,
       440 (Ariz.2003) (en banc) (holding that although consent to injection was
       given, consent was obtained by misrepresentation and, thus, was invalid).

       In the instant case, Holt submitted his own testimony that Dr. Alexander
       represented to him that he had spoken to Dr. Meriwether before the surgery
       and that Dr. Meriwether approved of the procedure. In fact, Dr. Alexander
       admits he did not talk with Dr. Meriwether, and he later discovered that Dr.
       Meriwether did not order the procedure. This claim is not one of lack of
       informed consent, where the physician “failed to inform [the patient] of any or
       all risks or aspects associated with a procedure.” According to the
       Restatement of Torts:

                                             -43-
              If the person consenting to the conduct of another is induced to
              consent by a substantial mistake concerning the nature of the
              invasion of his interests or the extent of the harm to be expected
              from it and the mistake is known to the other or is induced by
              the other’s misrepresentation, the consent is not effective for the
              unexpected invasion or harm.

       Restatement 2d Torts 892B(2) (1979), quoted in Duncan, 70 P.2d at 440.
       Under comment h of the Restatement, a patient adversely affected by the
       misrepresentation may either bring an action for misrepresentation or “treat the
       consent as invalid and maintain any tort action open to him in the absence of
       consent.” Where a signed consent form raises the presumption of valid
       consent, and the plaintiff claims that his consent was vitiated by
       “misrepresentation, inadequate disclosure, forgery, or lack of capacity,” a
       claim for medical battery is stated and expert testimony is not necessary to
       prove such a claim.

Holt, 2005 WL 94370 at *6 (Tenn. Ct. App. Jan. 13, 2005) (other internal citations omitted).

       In the case at bar, the Burchfields allege that the consent forms signed by Mr.
Burchfield are fraudulent and/or contain material misrepresentations because said forms state
that Dr. Renfree had discussed “anesthetics” with Mr. Burchfield, as well as “alternatives”
to endoscopic carpal tunnel release surgery and the risks and benefits of those alternatives.
The Burchfields contend that Dr. Renfree did not discuss such matters with Mr. Burchfield;
thus, Mr. Burchfield’s consent was “vitiated” by this alleged fraud/misrepresentation. Dr.
Renfree contends that he did discuss with Mr. Burchfield that he would be given anesthesia
as well as the type of anesthesia that would be used. Dr. Renfree further contends that he
discussed “alternatives” to the endoscopic carpal tunnel release procedure with Mr.
Burchfield many times, and that they had, in fact, attempted a number of conservative
treatment options prior to the surgery.

        Mr. Burchfield testified that when he first consulted Dr. Renfree, he was experiencing
pain in his hands and left elbow. Dr. Renfree initially suggested he try wearing splints. Mr.
Burchfield testified that the splints helped while he was wearing them, but did not completely
alleviate the pain. When Mr. Burchfield returned to see Dr. Renfree, he was given samples
of medication and a test was ordered. Mr. Burchfield testified that upon his return to see Dr.
Renfree a few weeks later, surgery on his left arm was first discussed. Mr. Burchfield
testified that he had a subsequent visit with Dr. Renfree during which they discussed the
surgery before he decided to have it done. Mr. Burchfield testified that Dr. Renfree told him
he performed the surgery using a scope because such procedure caused less scarring, had less

                                             -44-
chance of infection, and Mr. Burchfield would return to work more quickly. Mr. Burchfield
testified that he asked Dr. Renfree about open surgery, which he referred to as “the old
surgery,” that his wife and mother had done years before. Dr. Renfree told him that he
probably wouldn’t find anyone to perform that type of surgery, as the endoscopic procedure
was “the thing that was going on right now.” Mr. Burchfield understood from this
conversation that the surgery his wife and mother had was “a thing of the past.” Mr.
Burchfield testified that if open surgery had been offered to him, he would have chosen that
alternative.

       Mr. Burchfield admitted signing the informed consent form before his first surgery,
and he stated that he and Dr. Renfree “talked about some of the risks and benefits, but I
didn’t know them all.” Mr. Burchfield testified that the risks and benefits of the surgery were
discussed on two separate occasions. Mr. Burchfield testified that the surgery on his left arm
was successful. He returned to see Dr. Renfree about three weeks later. As his left elbow
was still tender, Dr. Renfree referred him to physical therapy. Mr. Burchfield saw Dr.
Renfree again approximately one month later, and discussed having the surgery on his right
arm. Mr. Burchfield again admitted that Dr. Renfree discussed the risks and benefits of the
surgery with him, but he stated that Dr. Renfree did not specifically mention the possibility
of damage to the median nerve or other surgical procedures. Mr. Burchfield testified that Dr.
Renfree told him, “We’ll just do it like we did the other one.” Mr. Burchfield signed a
second consent form. Mr. Burchfield also signed anesthesia consent forms, and he testified
that Dr. Renfree told him he would be given anesthesia, but did not discuss any specifics.
Mr. Burchfield’s testimony regarding these events was corroborated by his wife.

       Viewing the proof in the light most favorable to the Burchfields, it is clear that Dr.
Renfree discussed and attempted alternatives to surgery with Mr. Burchfield before Mr.
Burchfield signed the informed consent form. It is also clear that Mr. Burchfield knew and
understood that anesthesia would be used for the procedure. As the trial court correctly
found, Mr. Burchfield’s claims regarding types and availability of alternative procedures, the
risks of the procedures, and other related matters, sound in lack of informed consent rather
than medical battery. Mr. Burchfield signed a consent form for each procedure, which raises
a presumption that he        authorized the procedure “in the absence of proof of
misrepresentation, inadequate disclosure, forgery, or lack of capacity.” Church, 39 S.W.3d
at 161. Upon a careful review of the record, we do not find proof of any such
misrepresentation or fraud that would vitiate Mr. Burchfield’s signed consent form in this
case. As such, we affirm the trial court’s grant of a directed verdict on the Burchfields’
medical battery claims, along with the underlying claims of fraud and misrepresentation, as
well as the accompanying claim for punitive damages.




                                             -45-
         XI. Judgment as Matter of Law Regarding Battery and Negligence

       The Burchfields assert that they are entitled to partial summary judgment or judgment
as a matter of law on their claim of medical battery. We disagree. Having found no fraud
or misrepresentation that would vitiate Mr. Burchfield’s consent form, there is no basis for
finding that a medical battery occurred.

       The Burchfields also assert that they are entitled to partial summary judgment or
judgment as a matter of law on their claim of negligence pursuant to the health care liability
act. A review of the record demonstrates that the Burchfields never made such a motion
before the trial court, however, thereby precluding our ability to rule on this issue.

                          XII. Motion to Supplement the Record

       Prior to oral argument, the Burchfields filed a Motion asking this Court to allow them
to supplement the record with an audio recording of a telephonic message left for their
counsel by appellee’s counsel. We hereby grant the Motion as it was unopposed by Dr.
Renfree. We have considered the additional information but find that the audio recording
has no bearing on the outcome of this appeal.

                                      XIII. Conclusion

        The jury’s verdict is vacated, as there was reversible error in the administration of the
trial. The case is remanded for further proceedings consistent with this opinion. Costs on
appeal are assessed to the Appellee, Dr. Timothy Renfree.




                                                     _________________________________
                                                     THOMAS R. FRIERSON, II, JUDGE




                                              -46-
