                                                                                          05/28/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  July 9, 2019 Session

       CYNTHIA E. YEBUAH ET AL. v. CENTER FOR UROLOGICAL
                       TREATMENT, PLC

                 Appeal from the Circuit Court for Davidson County
                  No. 14C4972        Joseph P. Binkley, Jr., Judge
                     ___________________________________

                           No. M2018-01652-COA-R3-CV
                       ___________________________________


Following surgery to remove a cancerous kidney, part of a gelport device was left inside
the patient. The patient and her husband brought this health care liability action against
multiple defendants, including the surgeon who removed the kidney and the radiologist
who initially failed to detect the foreign object. The defendants admitted fault, so the
trial focused solely on causation and damages. The jury returned a verdict in favor of the
plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and
suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her
husband for loss of consortium. The trial court initially applied the statutory cap on
noneconomic damages to the total damages award and entered a judgment of $750,000 in
favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial
court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor
of the husband. But the court refused to address the plaintiffs’ arguments premised on
the constitutionality of the statutory cap, ruling that the issue had been waived. The court
also denied the defendant’s motion for a new trial or for a remittitur. Upon review, we
conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional
issue. But because we also conclude that the statutory cap on noneconomic damages is
constitutional and was applied properly and that the defendant is not entitled to a new
trial or a remittitur, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Randall L. Kinnard, Mary Ellen Morris, Jessica J. Kinnard, and Donald Capparella,
Nashville, Tennessee, and John Vail, Washington, DC, for the appellants, Cynthia E.
Yebuah and Eric N. Yebuah.
Marty R. Phillips, Dale Conder, Jr., and Craig P. Sanders, Jackson, Tennessee, and
Wendy L. Longmire and T. William A. Caldwell, Nashville, Tennessee, for the appellee,
Center for Urological Treatment, PLC.

Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein,
Solicitor General, and Joseph P. Ahillen, Assistant Attorney General, for the appellee,
State of Tennessee.

Cary Silverman and Phil Goldberg, Washington, DC, and W. Morris Kizer, Knoxville,
Tennessee, for amici curiae, Tennessee Medical Association, American Medical
Association, Tennessee Chamber of Commerce and Industry, Chamber of Commerce of
the United States of America, American Tort Reform Association, and Coalition for
Litigation Justice, Inc.

Luke A. Wake, Washington, DC, and Braden H. Boucek, Nashville, Tennessee, for amici
curiae, The Beacon Center of Tennessee and the National Federation of Independent
Business Small Business Legal Center.


                                       OPINION

                                            I.

                                            A.

       A CT scan revealed a mass on Cynthia Yebuah’s left kidney. Her physician
referred her to Dr. Frank Lohrasbi, a urologist, for further evaluation. Because there was
a high likelihood that the mass was malignant, Dr. Lohrasbi recommended surgery to
remove the affected kidney. Mrs. Yebuah agreed. And on March 4, 2005, Dr. Lohrasbi
removed her left kidney using a laparoscopic technique. Mrs. Yebuah’s recovery from
surgery was uneventful.

       To guard against the recurrence of cancer, Dr. Lohrasbi recommended a series of
CT scans and ultrasounds. Mrs. Yebuah had her first CT scan four months after surgery.
On July 6, 2005, Dr. Edward Priest, the radiologist who interpreted the scan, reported no
signs of cancer. Dr. Lohrasbi reviewed his report and informed Ms. Yebuah of the good
news.

       Six months later, on February 10, 2006, Mrs. Yebuah had another CT scan.
Again, she was cancer free. But this radiology report also noted a “tubular structure”
within her abdominal cavity. Dr. Lohrasbi reviewed the report for signs of cancer but did
not read the reference to the foreign object. So again he informed his patient that she had
                                              2
no signs of cancer. This scenario was repeated with Mrs. Yebuah’s next CT scan on
February 8, 2007.

      Fast forward to 2012. After complaining of severe abdominal pain, Mrs. Yebuah
was referred to Dr. Leonardo Espinel for evaluation of suspected gallbladder disease.
Dr. Espinel agreed that Mrs. Yebuah exhibited signs of an acute gallbladder attack. He
recommended a gallbladder removal, but Mrs. Yebuah declined, hoping lifestyle changes
would alleviate her symptoms.

       But Mrs. Yehuah’s lifestyle changes proved ineffective. On July 31, 2013,
Dr. Espinel removed Mrs. Yebuah’s gallbladder in another laparoscopic procedure.
During the gallbladder surgery, Dr. Espinel discovered a white cylindrical object inside
Mrs. Yebuah’s abdominal cavity. Her small bowel was looped around the object and
multiple adhesions had formed. Dr. Espinel also noted some chronic inflammation
around the object.

      After the surgery, Dr. Espinel told Mrs. Yebuah what he had seen. And he
ordered another CT scan.        The CT scan showed a 14-centimeter ring inside
Mrs. Yebuah’s abdomen, but no bowel obstruction. Dr. Espinel suspected that the ring
had been left inside Mrs. Yebuah during her kidney surgery in 2005. So he also informed
Dr. Lohrasbi.

       Shocked by the discovery, Mrs. Yebuah and her husband, Eric Yebuah, met with
Dr. Lohrasbi in early August to discuss the situation. Dr. Lohrasbi told the couple that he
believed the ring was part of a gelport device used during her previous surgery.
Unbeknownst to him, part of the device had separated during the procedure. Luckily, the
ring was made of an inert material and appeared not to have caused Mrs. Yebuah any
problems. In his medical opinion, Mrs. Yebuah could safely leave the ring in place.

        But after consultation with another urologist, Mrs. Yebuah chose to have
Dr. Espinel remove the ring. In November 2013, Mrs. Yebuah underwent yet another
surgery. During this surgery, Dr. Espinal noticed an increased amount of inflammation,
but still no bowel obstruction. Safely removing the multiple adhesions around the ring
turned out to be a tedious and time-consuming process. He ultimately removed the ring
in pieces. Mrs. Yebuah tolerated the procedure well and returned to work in just a few
days.

                                            B.

       The Yebuahs filed this healthcare liability action against Dr. Lohrasbi and
Dr. Priest and their respective employers, the Center for Urological Treatment, PLC (the


                                            3
“Center”) and Radiology Alliance, P.C.1 Among other things, the complaint alleged that
Dr. Lohrasbi was negligent in leaving the ring in Mrs. Yebuah’s abdomen after kidney
surgery and in not removing the ring after it was noted on her subsequent CT scans. The
complaint also alleged that Dr. Priest was negligent in failing to mention the ring in the
initial radiology report. The Yebuahs eventually dismissed the doctors, electing to pursue
vicarious liability claims against their employers.

       In early 2018, the Yebuahs moved to amend their complaint. Among other things,
the proposed amended complaint alleged for the first time that the statutory cap on
noneconomic damages in Tennessee Code Annotated § 29-39-102(a)(2) was
unconstitutional. The Center and Radiology Alliance opposed the motion to amend,
arguing that the motion was untimely as it was only one month before trial. They also
objected to including a constitutional challenge in the complaint, particularly when the
jury was precluded from knowing about the existence of the statutory cap. See Tenn.
Code Ann. § 29-39-102(g) (2012).

       The Yebuahs served a copy of the proposed amended complaint on the Tennessee
Attorney General as notice of their constitutional challenge. See Tenn. R. Civ. P. 24.04.
The Attorney General notified the court that he was aware of the Yebuahs’ constitutional
challenge. But he would not move to intervene unless the jury rendered a verdict in
excess of the statutory cap.

       At the pretrial conference, the Yebuahs’ counsel announced that he would submit
a new proposed amended complaint without the constitutional challenge. With the
court’s permission, an amended complaint was filed shortly before trial.

       Both the Center and Radiology Alliance admitted fault. So the trial focused solely
on causation and damages. At the conclusion of the proof, the court directed a verdict in
favor of Radiology Alliance. But the case against the Center went to the jury. The jury
returned a verdict in favor of the Yebuahs. And they awarded $4 million in noneconomic
damages to Mrs. Yebuah for pain and suffering and loss of enjoyment of life and
$500,000 in noneconomic damages to Mr. Yebuah for loss of consortium.

      The Yebuahs’ proposed judgment order did not reduce the jury’s award of
noneconomic damages as required by Tennessee Code Annotated § 29-39-102(a)(2).
Rather, they proposed entering a total judgment of $4.5 million. The Center submitted a
competing order that applied the statutory cap and reduced the damage award to
$750,000.




      1
          The initial complaint also named other defendants, but they are not pertinent to this appeal.
                                                     4
       After notifying the Attorney General that the jury’s verdict had exceeded the
statutory cap,2 the Yebuahs asked the court for a hearing on the language of the final
judgment. They contended a hearing was necessary to resolve the pending constitutional
issue. The Center objected and urged the court to apply the statutory cap. According to
the Center, “the plaintiffs can raise all arguments against the constitutionality of the
noneconomic limits once an order of judgment has been entered.”

       Rather than granting a hearing, the court adopted the Center’s proposed order
without comment and entered a judgment in favor of the Yebuahs in the amount of
$750,000. The Yebuahs moved to alter or amend the judgment. They argued that the
statutory cap was unconstitutional, and even if the statute passed constitutional muster,
the court had applied the cap incorrectly. Meanwhile, the Center moved for a new trial or
a remittitur contending that the damages awarded were excessive and multiple errors
during trial affected the verdict.

       Satisfied with the verdict, the court declined to order a new trial or suggest a
remittitur. It granted the Yebuahs’ motion to amend in part. The court applied the
statutory cap separately to each plaintiff’s award and entered a judgment of $750,000 in
favor of Mrs. Yebuah and a judgment of $500,000 in favor of Mr. Yebuah. But the court
agreed with the Center that the Yebuahs had waived their constitutional challenge. So
the court declined to consider the constitutionality of the statutory cap.

                                                  II.

        Both the Yebuahs and the Center raise issues on appeal. We begin by considering
whether the trial court properly determined that the Yebuahs had waived their challenge
to the constitutionality of the statutory cap, a decision which was made in the context of a
motion to alter or amend.

                                                   A.

       We review a trial court’s decision on a motion to alter or amend for an abuse of
discretion. Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305
(Tenn. 2020). A court abuses its discretion when it applies the wrong legal standard,
reaches an illogical or unreasonable decision, or bases its decision on a clearly erroneous
assessment of the evidence. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010). Our review of a discretionary decision is limited to determining whether the trial
court’s decision had the necessary factual support, whether the court identified and
applied the correct law, and whether the court’s decision was “within the range of
acceptable alternative dispositions.” Id.

        2
           The court granted the Attorney General permission to intervene to defend the constitutionality
of the statutory cap.
                                                   5
       A Rule 59.04 motion “provide[s] the trial court with an opportunity to correct
errors before the judgment becomes final.” In re M.L.D., 182 S.W.3d 890, 895 (Tenn.
Ct. App. 2005). A motion to alter or amend may be granted “(1) when the controlling
law changes before a judgment becomes final, (2) when previously unavailable evidence
becomes available, or (3) when, for [unique] reasons, a judgment should be amended to
correct a clear error of law or to prevent injustice.” Bradley v. McLeod, 984 S.W.2d 929,
933 (Tenn. Ct. App. 1998), rev’d on other grounds, Harris v. Chern, 33 S.W.3d 741, 742
(Tenn. 2000).

        The Yebuahs premised their Rule 59.04 motion on what they viewed as two clear
errors of law. At this juncture, we focus on the court’s treatment of their first ground—
the failure to address their constitutional challenge before entering judgment. A motion
to alter or amend is an appropriate vehicle for drawing the court’s attention to matters
that were overlooked. See Chadwell v. Knox Cty., 980 S.W.2d 378, 383 (Tenn. Ct. App.
1998). Rule 59.04 “afford[s] litigants a limited opportunity to readdress previously
determined issues and afford[s] trial courts an opportunity to revisit and reverse their own
decisions.” Harris, 33 S.W.3d at 744.

       But the trial court ruled that the Yebuahs had waived their constitutional
challenge. “[T]he importance of correctly resolving constitutional issues suggests that
constitutional issues should rarely be foreclosed by procedural technicalities.”
Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 457 (Tenn. 1995). Still, a
challenge to the constitutionality of a statute can be waived. Ellithorpe v. Weismark, 479
S.W.3d 818, 830 (Tenn. 2015). And “there is little difference between an issue
improperly raised before the trial court at the last minute and one that was not raised at
all.” In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001).

       We review the trial court’s waiver ruling as a mixed question of law and fact. See,
e.g., State v. Hester, 324 S.W.3d 1, 29-30 (Tenn. 2010) (waiver of right to counsel);
Charleston, S.C. Mining & Mfg. Co. v. Am. Agr. Chem. Co., 150 S.W.1143, 1146 (Tenn.
1911) (waiver of rights under a lease); Culbertson v. Culbertson, 455 S.W.3d 107, 125
(Tenn. Ct. App. 2014) (waiver of a privilege). So “a presumption of correctness attaches
to the trial court’s findings of fact,” but “we are not bound by the trial court’s
determination of the legal effect of its factual findings.” Starr v. Hill, 353 S.W.3d 478,
481-82 (Tenn. 2011). The facts on which the waiver is based must be supported by a
preponderance of the evidence. Culbertson, 455 S.W.3d at 125. Whether the facts as
supported by a preponderance of the evidence constitute a waiver is a question of law,
subject to de novo review. Id.

        Here, the trial court’s waiver ruling was based on a factual finding that the
Yebuahs did not raise their constitutional issue “before or during trial” but raised it “for
the first time during a Rule 59 motion.” We find that the evidence preponderates against
                                             6
these findings. See Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005).
Before trial, the Yebuahs raised their constitutional challenge in a proposed amended
complaint, which they also served on the Attorney General.3 True, the Yebuahs did not
raise the issue again until after the jury rendered its verdict. But arguments or evidence
relating to the constitutionality of the statutory cap during trial were precluded. See
Tenn. Code Ann. § 29-39-102(g) (prohibiting disclosure of the existence of the statutory
cap to the jury). After the jury rendered its verdict, the Yebuahs again notified the
Attorney General. And before the court entered a judgment, they requested a hearing on
their constitutional challenge.

       The Yebuahs’ efforts to raise their constitutional issue distinguish this case from
In re Adoption of E.N.R. and In re Adrianna S., the cases relied on by the trial court. See
In re Adoption of E.N.R., 42 S.W.3d at 32; In re Adrianna S., 520 S.W.3d 548, 561
(Tenn. Ct. App. 2016). In In re Adoption of E.N.R., the defendant never raised the
constitutional issue in a pleading or motion. And after carefully reviewing the record, the
supreme court concluded that the defendant “raised no constitutional challenge
whatsoever until closing argument.” 42 S.W.3d at 28-29. In In re Adrianna S., the first
indication that the defendant challenged the constitutionality of the parental termination
statute appeared in a post-trial brief. 520 S.W.3d at 554. By contrast, Mr. and
Mrs. Yebuah tried, albeit unsuccessfully, to raise their constitutional issue earlier.

        We conclude that the court erred in refusing to consider the Yebuahs’
constitutional challenge to the statutory cap. The Yebuahs did not raise this issue for the
first time in their motion to alter or amend. They raised the issue before trial. They
raised it again after the verdict. When the court entered judgment without addressing
their constitutional challenge, they availed themselves of the opportunity afforded by
Rule 59.04 to remind the court of an important issue that had been overlooked.

       The Center suggests that we should remand this case for the trial court to consider
the Yebuahs’ constitutional challenge. See Nunn v. Tenn. Dep’t of Corr., 547 S.W.3d
163, 190 (Tenn. Ct. App. 2017). As a court of appellate jurisdiction, we consider those
issues that were presented to the trial court and decided or pretermitted. See Tenn. Code
Ann. § 16-4-108(a)(1) (2009); Clement v. Nichols, 209 S.W.2d 23, 23 (Tenn. 1948).

        3
           We are unpersuaded by the Center’s argument that the Yebuahs affirmatively waived their
constitutional issue by removing the constitutional challenge from the amended complaint. Waiver is the
voluntary relinquishment of a known right. Chattem, Inc. v. Provident Life & Accident Ins. Co., 676
S.W.2d 953, 955 (Tenn. 1984). It is clear from this record that the Yebuahs did not remove the
constitutional allegations because they had abandoned this claim. Rather, they acquiesced to the Center’s
demand that the constitutional allegations be removed because they agreed that the jury should not be
informed of the existence of the cap and the allegations had served their purpose of informing all parties
of their intent to challenge the constitutionality of the statute if the damages awarded exceeded the
statutory cap.

                                                    7
       But our supreme court’s recent decision in McClay v. Airport Management
Services, LLC, resolves the majority of the Yebuahs’ constitutional claims. 596 S.W.3d
686, 696 (Tenn. 2020). And neither party has suggested what additional evidence, if any,
would be necessary to resolve a facial challenge to the validity of the statute.4 Cf.
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). Under these unique
circumstances, remand to the trial court for the sole purpose of addressing the plaintiffs’
constitutional issue would be a waste of judicial resources. In the interests of judicial
economy, we will address the Yebuahs’ arguments that the statutory cap is
unconstitutional.

                                                  B.

       Compensation for noneconomic damages in civil actions is capped at $750,000 for
each injured plaintiff “for all injuries and occurrences that were or could have been
asserted, regardless of whether the action is based on a single act or omission or a series
of acts or omissions that allegedly caused the injuries or death.” Tenn. Code Ann. § 29-
39-102(a)(2). For plaintiffs who experience a “catastrophic loss or injury,” the cap
increases to $1,000,000. Id. § 29-39-102(c)-(d). The trial court applies the cap after the
jury has assessed damages. Id. § 29-39-102(g). Some exclusions do apply. See id. § 29-
39-102(h), (l). But none of the statutory exemptions are relevant here.

       The Yebuahs cite multiple provisions of the Tennessee Constitution in their quest
to invalidate the statutory cap on noneconomic damages. In their words,

        (a) it violates the right to trial by jury in Article 1, section 6 of the
        Tennessee Constitution, which requires that the right to trial by jury shall
        be held “inviolate,” (b) it violates the separation of powers and the right to
        petition for redress of grievances, (c) it disproportionately burdens women,
        the elderly, and children, and (d) it violates the takings and equal protection
        doctrines, and the Plaintiffs’ rights to due process.

A facial challenge is “the most difficult [constitutional] challenge to mount successfully.”
See Waters v. Farr, 291 S.W.3d 873, 921 (Tenn. 2009) (Koch, J., concurring in part and
dissenting in part). All statutes are presumed to be constitutional. In re Burson, 909
S.W.2d 768, 775 (Tenn. 1995). This presumption “applies with even greater force” to a
facial challenge. Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003). To successfully
challenge the facial validity of a statute, “the challenger must demonstrate that the law
cannot be constitutionally applied to anyone.” Waters, 291 S.W.3d at 921-22 (Koch, J.,
concurring in part and dissenting in part).

        4
           In their reply brief, the Yebuahs state no evidence is necessary and argue that we may decide
their facial challenge to the constitutionality of the statutory cap.
                                                   8
       At the outset, we note that the Yebuahs failed to construct an argument in support
of their due process claim. And the right to petition for redress of grievances received
only scant attention and even then only in conjunction with their separation of powers
argument. See Tenn. R. App. P. 27(a)(7). These failings are more than procedural
technicalities. Our role is not “to research or construct a litigant’s case or arguments for
him or her, and where a party fails to develop an argument in support of his or her
contention or merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of
Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). So we deem the due process
and right to petition claims waived.

       The bulk of the Yebuahs’ argument is devoted to their claims that the statutory cap
violates the right to trial by jury and the doctrine of separation of powers and has a
disproportionate impact on women in violation of the equal protection clause. See Tenn.
Const. art. I, sec. 6 (trial by jury); id. art. II, sec. 1, 2 (establishing the legislative and
judicial branches of government); id. art. I, sec. 8 and art. XI, sec. 8 (equal protection
guarantee). While this appeal was pending, our supreme court ruled, as a matter of law,
“that the statutory cap on noneconomic damages in Tennessee Code Annotated section
29-39-102 does not violate the right to trial by jury, the doctrine of separation of powers,
or the equal protection provisions of the Tennessee Constitution.” McClay, 596 S.W.3d
at 696. We are bound by that decision.

       One last constitutional argument requires our attention. The Yebuahs contend that
the statutory cap diminishes the value of a plaintiff’s cause of action “without sufficient
public purpose, and without compensation, in violation of the takings doctrine.” Like its
federal counterpart, our state constitution precludes the government from taking private
property without just compensation. Tenn. Const. art. I, § 21. This constitutional
prohibition applies with equal force to “every type of property.” Zirkle v. City of
Kingston, 396 S.W.2d 356, 361 (Tenn. 1965). “[A] vested right of action is as much
property as are tangible things.” Morris v. Gross, 572 S.W.2d 902, 905 (Tenn. 1978).

        But a property interest in a cause of action cannot vest until the cause of action has
accrued. Mills v. Wong, 155 S.W.3d 916, 921 (Tenn. 2005). And the statutory cap only
applies prospectively to causes of action that accrued on or after the effective date of the
statute.5 McClay, 596 S.W.3d at 689. Thus, it does not diminish any vested property
rights. Besides, it is well-settled in Tennessee that “no one has a vested right in a
particular remedy.” Morris, 572 S.W.2d at 905.



       5
            Mrs. Yebuah’s cause of action accrued in July 2013 when she discovered her injury. See
Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010).

                                                9
                                             C.

       The Center argues that the trial court erred in amending its original judgment to
apply the statutory cap separately to each plaintiff’s award. The Center contends the
legislature intended for the cap to be applied to the total award of noneconomic damages.
In other words, the court should have aggregated the noneconomic damages awarded to
each plaintiff and then reduced the total award to $750,000. The answer to this dispute
lies in the language of the statute. See Tenn. Code Ann. § 29-39-102. Statutory
interpretation is a question of law, which we review de novo, with no presumption of
correctness. Davis ex rel. Davis v. Ibach, 465 S.W.3d 570, 573 (Tenn. 2015).

        Our goal in statutory interpretation is to “ascertain and effectuate the legislature’s
intent.” Kite v. Kite, 22 S.W.3d 803, 805 (Tenn. 1997). When a statute’s language is
unambiguous, we derive legislative intent from the statute’s plain language. Carson
Creek Vacation Resorts, Inc. v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). The
words used in the statute should be given their natural, ordinary meaning “in the context
in which they appear in the statute and in light of the statute’s general purpose.” Lee
Med., Inc., 312 S.W.3d at 526. But, when a statute’s language is subject to several
interpretations, we also consider the broader statutory scheme, the statute’s general
purpose, and other sources to ascertain legislative intent. Wachovia Bank of N.C., N.A. v.
Johnson, 26 S.W.3d 621, 624 (Tenn. Ct. App. 2000).

       Here, our focus is on two subsections of the statute. The subsections provide:

       (a) In a civil action, each injured plaintiff may be awarded:

       (1) Compensation for economic damages suffered by each injured
       plaintiff; and
       (2) Compensation for any noneconomic damages suffered by each injured
       plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for
       all injuries and occurrences that were or could have been asserted,
       regardless of whether the action is based on a single act or omission or a
       series of acts or omissions that allegedly caused the injuries or death.

              ....

       (e) All noneconomic damages awarded to each injured plaintiff, including
       damages for pain and suffering, as well as any claims of a spouse or
       children for loss of consortium or any derivative claim for noneconomic
       damages, shall not exceed in the aggregate a total of seven hundred fifty
       thousand dollars ($750,000), unless subsection (c) applies, in which case
       the aggregate amount shall not exceed one million dollars ($1,000,000).

                                             10
Tenn. Code Ann. § 29-39-102(a), (e) (emphasis added).

       The repeated phrase “each injured plaintiff” tells us that the legislature chose to
impose a “per plaintiff” limit on noneconomic damages. There were other possibilities
available, such as a limit on the total damages recoverable in each action. See, e.g.,
Mich. Comp. Laws Ann. § 600.2946a (West, Westlaw through P.A.2020, No. 84, of the
2020 Reg. Sess., 100th Legis.) (“In an action for product liability, the total amount of
damages for noneconomic loss shall not exceed $280,000.00.”); Va. Code Ann. § 8.01-
581.15 (West, Westlaw through the End of 2019 Reg. Sess.) (“In any verdict returned
against a health care provider in an action for malpractice . . ., the total amount
recoverable for any injury to, or death of, a patient shall not exceed . . . .”). Given the
legislature’s choice to impose a “per plaintiff” cap, we conclude that, when there are two
injured plaintiffs, the cap should be applied separately to the noneconomic damages
awarded to each injured plaintiff.

        Implicit in the Center’s argument is the view that plaintiffs raising solely loss of
consortium claims should be afforded less than full plaintiff status. But in Tennessee a
“loss of consortium claim is a distinct cause of action vested solely in the spouse.”
Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 557 (Tenn. 2001); accord Jackson
v. Miller, 776 S.W.2d 115, 117 (Tenn. Ct. App. 1989). “[T]he right to recover for loss of
consortium is . . . independent of the spouse’s right to recover for the[ir own] injuries.”
Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987). And our
supreme court has previously rejected the argument that “consortium” plaintiffs are not
entitled to be treated as “party plaintiffs.” See Tuggle v. Allright Parking Sys., Inc., 922
S.W.2d 105, 107 (Tenn. 1996).

       Even so, the Center argues that applying a separate cap to damages awarded for
loss of consortium ignores subsection (e). We disagree. A familiar canon of statutory
interpretation requires us to give effect “to every clause and part of the statute, thus
producing a consistent and harmonious whole.” Finley v. Keisling Lumber Co., 35
S.W.2d 388, 388 (Tenn. 1931). The text of subsection (e) reinforces our conclusion that
the statutory cap is a “per plaintiff” cap. See Tenn. Code Ann. § 29-39-102(e) (“All
economic damages awarded to each injured plaintiff . . . .”). And it tells us that “each
injured plaintiff” is subject to the statutory cap. Subsection (e) addresses the all-too-
common scenario in which an injured plaintiff suffers more than one type of
noneconomic damage. When one injured plaintiff seeks compensation for both personal
injuries and loss of consortium, subsection (e) limits that plaintiff to one award of
noneconomic damages for all injuries not to exceed $750,000.




                                            11
                                                  D.

1. Conduct of Trial

       Now we turn to the Center’s request for a new trial or a remittitur. The Center
argues that multiple errors at trial affected the verdict and necessitate a new trial.6 “Trial
judges have broad discretion in controlling the course and conduct of a trial.” Meals ex
rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 420 n.7 (Tenn. 2013). So we apply the
deferential abuse of discretion standard of review to the trial court’s decisions on matters
such as the admission or exclusion of evidence, the examination of witnesses, and the
conduct of closing argument. See White v. Beeks, 469 S.W.3d 517, 527 (Tenn. 2015), as
revised on denial of reh’g (Aug. 26, 2015); Elliott v. Cobb, 320 S.W.3d 246, 249 (Tenn.
2010); Coffee v. State, 216 S.W.2d 702, 703 (Tenn. 1948).

       The Center’s first complaint is that the Yebuahs improperly elicited standard of
care testimony from Dr. Lohrasbi in violation of a previously-granted motion in limine.
Because the Center failed to make a timely objection to this testimony during trial, we
deem this issue waived. See Tenn. R. App. P. 36(a); Grandstaff v. Hawks, 36 S.W.3d
482, 488 (Tenn. Ct. App. 2000) (“A party who invites or waives error, or who fails to
take reasonable steps to cure an error, is not entitled to relief on appeal.”).

        a. Opening the Door

       Next, the Center contends that the trial court erred in excluding evidence that the
gelport device may have malfunctioned because the Yebuahs’ questioning of
Dr. Lohrasbi “opened the door.” “A party opens the door to evidence when that party
‘introduces evidence or takes some action that makes admissible evidence that would
have previously been inadmissible.’” State v. Vance, 596 S.W.3d 229, 249 (Tenn. 2020)
(quoting 21 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE
EVIDENCE § 5039 (2d ed. 1987)). Evidence that the gelport device may have
malfunctioned was inadmissible at trial as a blame-shifting device because the Center did
not raise the comparative fault of the product manufacturer as an affirmative defense.
See George v. Alexander, 931 S.W.2d 517, 522 (Tenn. 1996). So the only way this
inadmissible evidence became admissible is if the plaintiffs opened the door.

      The Center relies on the following exchange between the Yebuahs’ counsel and
Dr. Lohrasbi:


        6
         We decline the Center’s invitation to apply the cumulative error doctrine. See In re Kaycee M.,
No. M2017-02160-COA-R3-PT, 2018 WL 4778018, at *8 n.8 (Tenn. Ct. App. Oct. 3, 2018) and In re
Abbigail C., No. E2015-00964-COA-R3-PT, 2015 WL 6164956, at *25 (Tenn. Ct. App. Oct. 21, 2015)
(both declining to apply the cumulative error doctrine in a civil action).
                                                  12
      Q. And so I’m sure you wanted to do investigation in order to give good
      medical advice to the Yebuahs. Is that fair?

      A. Yes.

      Q: Did you, in the meantime, call the manufacturer of the ring and ask
      them, “What is this thing made of? How many layers are there in it? And
      what would happen if it was left in a patient for eight years and it wasn’t
      supposed to be in there?” Did you call the manufacturer?

      A. I remember having a discussion with our local representative.

      Q. What did that person tell you?

      A. They did not give me an opinion, as I – as far as I can remember.

        The most common way to open the door to otherwise inadmissible evidence is to
raise the subject at trial. Vance, 596 S.W.3d at 250. But more than mere relevance is
necessary before the door to inadmissible evidence is opened. Id. “[O]pening the door is
a doctrine intended to serve fairness and truth-seeking.” Id. The door opens when the
party who raised the subject gains a misleading advantage from introducing the initial
evidence. Id.; see also Brown v. Christian Bros. Univ., 428 S.W.3d 38, 48 (Tenn. Ct.
App. 2013) (explaining that unless the opposing party has been unfairly prejudiced by the
introduction of the original evidence, the door has not been opened). And even then “the
remedy . . . should be both relevant and proportional.” Vance, 596 S.W.3d at 251.
Responsive evidence should be limited to the evidence necessary to correct the
misleading advantage or unfair prejudice created by the initial evidence. Id.

       Not surprisingly, the trial court “is in the best position to gauge the prejudicial
impact of particular testimony.” Id. (citation omitted). Here, the trial court heard Dr.
Lohrasbi’s testimony and determined that the door had not been opened. We cannot say
that the trial court abused its discretion. The Yebuahs’ counsel asked Dr. Lohrasbi
several questions about how he prepared for his meeting with the Yebuahs and how he
came to the conclusion that it would be safe to leave the ring in place. No prejudice or
confusion could reasonably have arisen from the mere mention of the product
manufacturer.

      b. Closing Argument

       The final alleged error occurred during the Yebuahs’ closing argument. The
Center objected to counsel’s references to Dr. Lohrasbi’s conduct as “dangerous” and his
appeals to the jury to “make it right.” According to the Center, these comments shifted
the jury’s focus to punishment, rather than reasonable compensation.
                                             13
       Lawyers use closing argument “to present their theory of the case and to point out
strengths and weaknesses in the evidence.” Stanfield v. Neblett, 339 S.W.3d 22, 43
(Tenn. Ct. App. 2010); see also Elliott, 320 S.W.3d at 250 (“During arguments to the
jury, counsel may argue their analysis of the evidence that has been presented at trial.”).
The Yebuahs’ counsel reminded the jury that Dr. Lohrasbi had both admitted fault and
agreed that failure to read a complete CT scan report was dangerous. There is “nothing
wrong with reminding the jury in closing argument of the testimony of various
witnesses.” Perkins v. Sadler, 826 S.W.2d 439, 443 (Tenn. Ct. App. 1991). The Center
had an equal opportunity to discuss the evidence and present its theory of the case.

        Likewise, we do not view the request that the jury “make it right” as an
unwarranted appeal to the jury’s emotions. The jury was tasked with assessing damages.
“The goal of awarding damages is to repair the wronged party’s injury or, at least, to
make the wronged party whole as nearly as may be done by an award of money.”
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999). In other words,
juries in a negligence action can “make it right” by awarding reasonable compensation.

2. Excessive Damages

        The jury awarded Mrs. Yebuah $2 million for pain and suffering and $2 million
for loss of enjoyment of life. They also awarded Mr. Yebuah $500,000 for loss of
consortium. Convinced that the jury award was excessive, the Center asked the trial
court to suggest a remittitur or grant a new trial on damages. “As thirteenth juror, the
trial judge must independently weigh and review the evidence presented at trial to
determine whether it preponderates in favor of the verdict and decide whether he or she
agrees with and is satisfied with the jury’s verdict.” Meals ex rel. Meals, 417 S.W.3d at
420. Here, the trial court was satisfied with the amount of the verdict.

        Given the trial court’s approval, our ability to grant the Center its requested relief
is limited.7 See id. at 422 (holding that “[w]here the trial judge has approved the verdict
in its role as thirteenth juror . . . [appellate] review . . . is limited to a review of the record
to determine whether the verdict is supported by material evidence”). We must take the
strongest legitimate view of the evidence supporting the verdict, including all reasonable
inferences, assume the truth of the supporting evidence, and discard all countervailing
evidence. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978).
If there is any material evidence to support the verdict, we must affirm. Id. “Material
evidence” is evidence “which must necessarily enter into the consideration of the
controversy and by itself, or in connection with the other evidence, be determinative of
the case.” Meals ex rel. Meals, 417 S.W.3d at 422 (citation omitted).


       7
           The Center asks this Court to order a new trial or to suggest a remittitur under $750,000.
                                                     14
       A plaintiff is entitled to compensation for noneconomic losses. Id. at 420. Here,
we are concerned with two types of noneconomic damages—pain and suffering and loss
of enjoyment of life. Pain and suffering includes both physical and mental pain.
Overstreet, 4 S.W.3d at 715. So a pain and suffering award may include compensation
for the plaintiff’s “anguish, distress, fear, humiliation, grief, shame, or worry.” Id.
Damages for loss of enjoyment of life, a “separate and distinct loss,” seeks to compensate
the plaintiff for the impact the defendant’s conduct had on the plaintiff’s ability to enjoy
the normal pleasures of living. Id. at 715-16. “The policy underlying the award of loss
of enjoyment damages is of making the victim whole in the only way a court can—with
an equivalent in money for each loss suffered.” Id. at 716.

       “The assessment of non-economic damages is not an exact science, nor is there a
precise mathematical formula to apply in determining the amount of damages an injured
party has incurred.” Meals ex rel. Meals, 417 S.W.3d at 420. These awards are “often
highly subjective.” Dedmon v. Steelman, 535 S.W.3d 431, 438 (Tenn. 2017). Because of
the difficulty inherent in the task, jurors have “broad latitude in fixing the monetary
amount of non-economic damages.” Id. Courts “trust jurors to use their personal
experiences and sensibilities to value the intangible harms.” Meals ex rel. Meals, 417
S.W.3d at 425.

       According to the Center, $4 million is an unreasonable and excessive award of
damages for “a three-month period of minimal abdominal discomfort, a brief moment of
anxiety, an outpatient laparoscopic surgery, and occasional, vaguely-described
discomfort during sexual intercourse.”8 But the Center is viewing the evidence through
the wrong lens. When we take the “strongest legitimate view of the evidence supporting
the verdict,” assume its truth and discard all countervailing evidence, a different picture
emerges. See Crabtree Masonry Co., 575 S.W.2d at 5.

        Mrs. Yebuah was shocked and dismayed to learn that part of a medical device had
been left inside her abdomen for eight years. A few months after the discovery, she made
the difficult choice to have the device surgically removed. Another surgery came with its
own set of risks. And this surgery required extreme caution to remove the ring without
injury to Mrs. Yebuah.

       Mrs. Yebuah and her husband also told the jury about the “prickly pain” she
experienced for eight years. The pain was unpredictable, but it often occurred after
eating. The pain made marital intimacy uncomfortable, leading to a significant loss of
intimacy during those eight years. Dr. Black confirmed that Mrs. Yebuah’s complaints
were consistent with what he would expect given the location of the device in her
abdomen.

       8
          Both the Center and the Yebuahs address the reasonableness of the damages awarded before
reduction by the statutory cap. Thus, we do not decide the impact of the statutory cap on our review.
                                                 15
       The Center pointed out that Mrs. Yebuah’s pain could have been caused by her
gall bladder. And it emphasized to the jury that Mrs. Yebuah never told her physicians
about her prickly pain or its detrimental effect on her marital relations. But the jury
apparently believed the Yebuahs’ explanation that Mrs. Yebuah was a stoic woman who
only realized the full extent of her injury after the ring was removed.

       The Yebuahs were entitled to substantial noneconomic damages based on the
evidence presented. Still, the Center maintains that the jury’s verdict exceeds the
uppermost boundary of the range of reasonableness in comparison to other jury verdicts.
We are mindful that “each case must be judged on its own particular facts.” Meals ex rel.
Meals, 417 S.W.3d at 426. And in comparing jury verdicts, “we must take care to only
consider cases that are ‘similar’—presumably involving a similar plaintiff with similar
injuries” and take into account other factors such as inflation. Id. The Center cites jury
verdicts from 2003, 2008, and 2009 as evidence that this 2018 verdict is excessive. The
Center’s cases are simply too far removed in time to yield a useful comparison. The
amount awarded, while high, is within the range of reasonableness.

                                             III.

       Because the trial court’s waiver finding was based on a clearly erroneous
assessment of the evidence, we conclude the court erred in refusing to consider the
Yebuahs’ constitutional challenge to the statutory cap on noneconomic damages. But the
Yebuahs failed to establish that the statute is unconstitutional on its face. So the court did
not err in applying the statutory cap. We further conclude that the court properly applied
the cap separately to the noneconomic damages awarded to each injured plaintiff.

       The damages awarded by the jury are supported by material evidence. And we
discern no reversible error in the conduct of the trial. So we also affirm the court’s denial
of the motion for a new trial or remittitur.


                                                    _________________________________
                                                    W. NEAL MCBRAYER, JUDGE




                                             16
