               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               November 1, 2016 Session

            PATRICK R. MILLER v. VANDERBILT UNIVERSITY

                 Appeal from the Circuit Court for Davidson County
                     No. 11C3836 Thomas W. Brothers, Judge
                     ___________________________________

             No. M2015-02223-COA-R3-CV – Filed September 29, 2017
                    ___________________________________


RICHARD H. DINKINS, JUDGE, concurring in part and dissenting in part.


        I concur in so much of the majority opinion that affirms the trial court’s exclusion
of testimony regarding Mr. Miller’s health insurance status and grant of a directed verdict
on the claim for punitive damages. I dissent from the grant of a directed verdict on the
remaining claims, however, because I believe the proof introduced was sufficient to
establish a prima facie case of liability.

        The standards applicable to a motion for a directed verdict were succinctly set
forth in Brown v. Christian Bros. University:

       A motion for a directed verdict provides a vehicle for deciding questions of
       law; the question presented is whether the plaintiff has presented sufficient
       evidence to create an issue of fact for the jury to decide. Appellate courts
       must conduct a de novo review of a trial court’s ruling on a motion for a
       directed verdict, applying the same standards that govern the trial court’s
       determination. A directed verdict cannot be based upon speculation,
       conjecture, guesswork, or a mere spark or glimmer of evidence. A directed
       verdict is appropriate only when evidence, viewed reasonably, supports
       only one conclusion. If “reasonable minds could ... differ as to the
       conclusions to be drawn from the evidence,” the motion must be denied.
       Motions for a directed verdict require more certainty and proof than do
       motions for an involuntary dismissal. In reviewing a motion for a directed
       verdict, courts must take the strongest legitimate view of the evidence
       against the directed verdict and must deny the motion in any case where all
       reasonable persons would not reach the same conclusion. Only if there is
       no material evidence in the record that would support a verdict for the
       plaintiff under any of the plaintiff’s theories, may the trial court’s action in
       directing a verdict be sustained. Accordingly:

              To avoid a directed verdict under Tenn. R. Civ. P. 50, the
              nonmoving party must present some evidence on every
              element of its case—enough evidence to establish at least a
              prima facie case. Normally, a directed verdict is proper only
              where no material evidence exists on one or more elements
              that the non-moving party must prove. Whether the trial
              court should have directed a verdict presents [the appellate
              court] with the legal question of whether material evidence
              was introduced on every element sufficient to create a jury
              issue.

428 S.W. 3d 38, 49-50 (Tenn. Ct. App. 2013) (quoting Richardson v. Miller, 44 S.W.3d
1, 30 (Tenn. Ct. App. 2000) (internal citations omitted).

        Measured against this standard, I believe the proof introduced by Mr. Miller was
sufficient to survive the motion for directed verdict. Both Dr. Felts and Dr. Gandy
opined as to the applicable standards of care, the deviations therefrom, and causation.
The record shows that Mr. Miller’s white blood cell count was elevated on November 2,
the date of his last surgery and three days prior to his release, symptomatic of an
infection; with no medical attention being directed to that condition, the infection
progressed and resulted in the amputation of a portion of his leg. I do not believe that the
standard the court is to apply in considering a motion for directed verdict required the
grant of the motion. To the extent the court would require that a specific physician be
named, I believe Dr. Gandy’s reference to Dr. Mir, quoted in the majority opinion, while
not the clearest identification of the responsible physician, is sufficient to meet the
agency principles applicable in this case and would require Vanderbilt to proceed with
the presentation of its proof. Further, I believe that, if there were any question in the trial
court’s mind, Mr. Miller’s motion to reopen the proof should have been granted; I discern
no unfairness to the defendant in allowing Mr. Miller an opportunity to recall Dr. Gandy
for this purpose.



                                                   _________________________________
                                                   RICHARD H. DINKINS, JUDGE




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