               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                August 21, 2012 Session

              AMANDA SMITH v. WILLIAM R. WALKER ET AL.

                  Appeal from the Circuit Court for Moore County
                      No. 930    Franklin Lee Russell, Judge


              No. M2012-00593-COA-R3-CV - Filed September 19, 2012


In this negligence action, the jury awarded the plaintiff a verdict against one of the two
defendants. We find no error in the judgment regarding liability, but we must vacate and
remand as to damages because the trial court erred in excluding testimony and evidence
regarding the plaintiff’s medical expenses.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., and F RANK G. C LEMENT, J R., J., joined.

Floyd Don Davis and Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant,
Amanda Smith.

S. Todd Bobo, Shelbyville, Tennessee, for the appellee, William R. Walker.

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Jimmy F. Maloy.

                                        OPINION

                       F ACTUAL AND P ROCEDURAL B ACKGROUND

       This case arises out of a five-car-pile-up accident that occurred on Highway 55 near
Motlow State Community College in Moore County on April 12, 2007. Amanda Smith’s
vehicle was the second car in the line of cars. She filed this negligence action in August
2008 against William Walker (fifth vehicle in line) and Jimmy Maloy (third vehicle in line).1

       A jury trial was held on August 17, 2011. During the trial, the plaintiff presented the
deposition testimony of Dr. Richard Fishbein, who saw her for injuries sustained in the
accident. Defense counsel objected to certain questions posed to Dr. Fishbein, and the trial
court excluded testimony given in response to those questions. The trial court also excluded
medical bills included as exhibits to Dr. Fishbein’s deposition. The jury returned a verdict
finding Walker 100% at fault and Maloy 0% at fault. The only damages found by the jury
were the stipulated property damage of $3,500. The trial court entered judgment on the jury
verdict.

       The plaintiff filed a motion to amend the judgment or for a new trial and to suggest
additur, and the trial court denied the motion.

        On appeal, the plaintiff argues that the trial court erred in excluding Dr. Fishbein’s
deposition testimony pertaining to medical expenses and treatment and that the trial court
erred in excluding the medical bills included as exhibits to his deposition. Further, the
plaintiff asserts that the jury verdict as to comparative fault is against the weight of the
evidence and that the trial court erred in denying the plaintiff’s motion to amend the
judgment or for a new trial.

                                                  A NALYSIS

                                             Comparative fault

       The plaintiff asserts that the jury erred in finding that Maloy was not at fault.

        We apply a deferential standard of review to a jury’s allocation of fault. Braswell v.
Lowe’s Home Ctrs., Inc., 173 S.W.3d 41, 43 (Tenn. Ct. App. 2005). Comparing and
allocating fault is for the jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789
(Tenn. 2000); Braswell, 173 S.W.3d at 43. A reviewing court “will not second-guess a jury’s
allocation of fault if it is supported by any material evidence.” Braswell, 273 S.W.3d at 43.
In reviewing the evidence, we must “(1) take the strongest legitimate view of the evidence
that favors the verdict, (2) assume the truth of all the evidence that supports the verdict, and
(3) allow all reasonable inferences that sustain the verdict.” Id.

      In this case, there is material evidence to support the jury’s verdict allocating all fault
to Walker, the last driver in the line of cars. The plaintiff testified that she “got hit,” but

       1
           Ms. Smith originally filed suit in general sessions court but nonsuited that action.

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could not identify what caused the impact with her car. According to the testimony of Maloy
and Walker, the accident began when Walker’s car ran into the rear of Maloy’s car. Maloy
lost control of his car after it was struck by Walker’s car. The plaintiff asserts that, “[i]f Mr.
Maloy had been driving in a careful and prudent manner, the accident would not have
occurred.” The plaintiff does not, however, point to any evidence to support this theory.
There is material evidence to support the jury’s verdict apportioning no fault to Maloy.

       We affirm the judgment of the trial court as to liability.

                                       Evidentiary issues

       The admissibility of evidence is within the trial court’s sound discretion, and we
review the trial court’s decision to admit or exclude evidence by an abuse of discretion
standard. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004); Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). Under the abuse of
discretion standard, a reviewing court cannot substitute its judgment for the trial court’s
judgment. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). Rather, a
reviewing court will find an abuse of discretion only if the trial court “applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employ[ed] reasoning that causes an injustice to the
complaining party.” Konvalinka v. Chattanooga–Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008); see also Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010).

        Plaintiff’s counsel read Dr. Fishbein’s deposition testimony to the jury at trial, and the
trial court granted several objections to the admission of certain testimony based upon
leading questions. The following excerpts from the trial are relevant here:

       “Q. And based upon your treatment of Mrs. Smith and the diagnosis that you
       have made would it be your position based upon a reasonable degree of
       medical certainty that the condition for which you treated her and which you
       saw her was directly related to the automobile accident in April of 2007?”

       MR. EWELL [counsel for Maloy]: I objected to that one as leading too.

       THE COURT: Sustain the objection. Don’t read the answer.

       MR. DAVIS [plaintiff’s counsel]: Judge, that’s not leading.

       THE COURT: Well, state your objection, but I think that’s an interesting

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response–a way to make the response. Go ahead. Do you want a bench
conference?

MR. DAVIS: Judge, yes, sir. That–

THE COURT: Read the question again.

[Question is read again.]

THE COURT: How does that not suggest the answer, which is the definition
of leading?

MR. DAVIS: It is a question based on what he’s testified to.

THE COURT: Okay. My ruling stands that it’s leading. Sustain the objection.

....

“Q. . . . Did you receive a group of medical records and medical bills for other
treatment that Mrs. Smith had received?

A. Well, she went to Dr. Anderson, a chiropractor, who did conservative
treatment, and that was in the period from April to July of ‘07, which his bill
was $4,063. And then she had an MRI done at Harton Hospital, which was
$4,027. She has a list of some drugs, with minimum cost of $164, treatment
by me for three months for $390. Then she went to Therapy Works, which I
have a [great] deal of records from 1/17/06, for a number of years, and the bill
for all of those treatments was $6,518. She went to Dr. Eko. I can’t
pronounce his name . . . [b]ut he treated her for management, and his bill was
$2,355, with a final MRI of $1,075 done in September of ‘09.

[Questions regarding Dr. Fishbein’s familiarity with charges by medical
providers in Middle Tennessee]

Q. And based upon your review of these medical records you have just gone
over for us do you feel like these records are reasonable and necessary for the
treatment of Mrs. Smith for the injuries for which you saw her as a result of
this automobile accident?”

MR. EWELL: I objected to the form there. It’s leading, “Do you feel like?”

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       THE COURT: Sustain the objection.

Based upon its conclusion that the excluded testimony had been obtained in response to
leading questions, the trial court subsequently excluded all of the medical bills included as
exhibits to Dr. Fishbein’s deposition.

       We must respectfully disagree with the trial court’s evidentiary rulings. Rule 611(c)
of the Tennessee Rules of Evidence provides that leading questions “should not be used on
direct examination of a witness except as may be necessary to develop the witness’s
testimony.” A leading question has been defined as a question that “suggests the specific
answer desired.” Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, T ENNESSEE L AW
OF E VIDENCE § 6.11[7][a] (2011); see also Mothershed v. State, 578 S.W.2d 96, 99 (Tenn.
Crim. App. 1978). The fact that a question allows for a “yes” or “no” answer does not make
the question leading. Mothershed, 578 S.W.2d at 99. We find nothing in the questions
quoted above to suggest the desired answer. Rather, the attorney was making reference to
previous testimony regarding the treatment received by the plaintiff to ask Dr. Fishbein for
his opinion as to whether that treatment was related to the car accident at issue and whether
the medical charges incurred were reasonable and necessary for the injuries sustained. We
conclude that the trial court erred in excluding this testimony of Dr. Fishbein. Since the trial
court’s exclusion of the medical bills themselves was predicated on the exclusion of Dr.
Fishbein’s testimony, we likewise find that the exclusion of the medical bills was erroneous.2

        The erroneous exclusion of evidence does not require reversal unless it affected the
jury’s verdict. Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App. 1987); Tenn. R.
Evid. 103(a). In this case, we conclude that the exclusion of Dr. Fishbein’s testimony and
the related medical bills did affect the jury’s verdict. In the jury instruction regarding
compensatory damages, the trial court deleted any reference to medical expenses. Moreover,
prior to reading the jury instructions, the court made the following statement to the jury:

       Now, one thing that I have been asked to give you a curative instruction on, the
       medical bills that were referenced to some degree in Dr. Fishbein’s deposition
       have been stricken now as an element of damages here, so you will not–if you
       reach the issue of damages, in other words if you decide liability in favor of
       the plaintiff and you’re setting damages against one or more of the defendants
       you would not be including in that figure a figure for medical expenses, okay?
       Hopefully everybody understands that.



       2
        Although the excluded medical bills do not appear in the record on appeal, the substance of the
evidence is apparent from the context and from Dr. Fishbein’s testimony. See Tenn. R. Evid. 103(a)(2).

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In limiting the plaintiff’s damages to the stipulated amount of property damage, the jury
followed the trial court’s prohibition on any consideration of medical expenses.

        Because the trial court’s error in excluding this evidence affected a substantial right
of the plaintiff, we vacate the judgment with respect to damages and remand for a new trial
on that issue.

                                        C ONCLUSION

        We affirm the trial court’s judgment with respect to liability, but vacate the judgment
as to the amount of damages and remand for a new trial on that issue. Costs of appeal are
assessed against appellee Walker, and execution may issue if necessary.




                                                       ______________________________
                                                            ANDY D. BENNETT, JUDGE




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