                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 11, 2013 Session

    AUBREY E. GIVENS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE
               ESTATE OF JESSICA E. GIVENS, DECEASED
                                 v.
                  HARDIE V. SORRELS, III, M.D.

                 An Appeal from the Circuit Court for Wilson County
                    No. 2011-CV-169     John D. Wootten, Judge


                No. M2012-01712-COA-R3-CV - Filed August 21, 2013


This is an appeal from a jury verdict. The plaintiff filed this lawsuit against the defendant
physician, claiming that his medical malpractice caused the death of the decedent. The trial
court conducted an eight-day jury trial on the plaintiff’s claims. The jury ultimately rendered
a verdict in favor of the defendant physician. The plaintiff now appeals, asking this Court
to reverse the trial court’s judgment on the verdict on the basis of numerous alleged errors.
After careful review of the record, we affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.

Aubrey T. Givens and John Clark, Nashville, Tennessee, for the Plaintiff/Appellant, Aubrey
E. Givens, Individually and as Administrator of the Estate of Jessica E. Givens, Deceased.

J. Eric Miles and Michael F. Jameson, Nashville, Tennessee, for the Defendant/Appellee,
Hardie V. Sorrels, III, M.D.
                                   MEMORANDUM OPINION 1

This lawsuit arises out of the death of Jessica E. Givens (“Mrs. Givens”). The decedent, Mrs.
Givens, had a complicated medical history. Defendant/Appellee Hardie V. Sorrels, III, M.D.
(“Dr. Sorrels”), a board-certified internal medicine physician, was Mrs. Givens’ primary care
physician from 1990 until her death in 2007 at age 64.

In September 2006, Mrs. Givens presented to the emergency room of the University Medical
Center in Lebanon, Tennessee, with shortness of breath. It was later determined that she had
suffered a myocardial infarction or, in layman’s terms, a heart attack. Because of the
complexity of Mrs. Givens’ condition,2 the University Medical Center transferred her to the
Vanderbilt University Medical Center (“Vanderbilt”) in Nashville, Tennessee. The
Vanderbilt physician placed two stints in Mrs. Givens’ heart and discharged her on
September 12, 2006.

Mrs. Givens did not stay out of the hospital for long. Only a few days later, on September 15,
2006, Mrs. Givens returned to the University Medical Center, where she was diagnosed with
another myocardial infarction and atrial fibrillation. The University Medical Center again
transferred Mrs. Givens to Vanderbilt. The doctors at Vanderbilt treated her for myocardial
infarction, congestive heart failure, cardiogenic shock, atrial fibrillation, acute renal (kidney)
failure, respiratory failure, and two bouts of C. difficile 3 colitis. While at Vanderbilt, Mrs.
Givens suffered a significant embolic stroke. She remained hospitalized for approximately
six weeks; during this time she was placed on a ventilator and required a tracheostomy, a
feeding tube, and a catheter. Vanderbilt discharged Mrs. Givens on October 27, 2006.


1
    Rule 10. Memorandum Opinion

         This Court, with the concurrence of all judges participating in the case, may affirm, reverse
         or modify the actions of the trial court by memorandum opinion when a formal opinion
         would have no precedential value. When a case is decided by memorandum opinion it shall
         be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
         or relied on for any reason in any unrelated case.

Tenn. Ct. App. R. 10.
2
 Mrs. Givens had insulin-dependent diabetes, which caused a variety of problems, such as neuropathy (nerve
damage to the feet) and retinopathy (nerve damage to the eyes). She also had a history of fatigue, back pain,
and difficulty walking. At the ensuing trial, one expert testified, “people with diabetes have strange
symptoms when they have a heart attack.”
3
 C. difficile is an abbreviation for Clostridium difficile, a bacteria found in the colon, ordinarily caused by
taking excessive antibiotics.

                                                     -2-
From then on, Mrs. Givens was in and out of the hospital repeatedly. From the date she was
discharged from Vanderbilt on October 27, 2006, until January 15, 2007, Mrs. Givens was
hospitalized four times. During these hospitalizations, she was treated for a variety of
medical issues, including pulmonary edema, congestive heart failure, renal (kidney)
insufficiency, and atrial fibrillation. By this time, Givens was bedridden. She procured a
hospital bed for her home, could not get out of bed without assistance, and had to be
transported by ambulance to see her physician. By the end of 2006, Mrs. Givens had a
catheter, feeding tube, and respirator; she required round-the-clock care from either a family
member or a nurse.

On January 15, 2007, Mrs. Givens again presented to the University Medical Center
emergency room. This time, she had severe pain and confusion as well as other medical
issues. The emergency room physician, Michael Crane, M.D. (“Dr. Crane”), ordered a
urinalysis and a urine culture for Mrs. Givens.

Dr. Sorrels was notified that Mrs. Givens had been admitted to the University Medical Center
emergency room, so he went to the hospital to see her. After checking on Mrs. Givens, Dr.
Sorrels took over her care. Dr. Sorrels reviewed the results of the urinalysis ordered by Dr.
Crane and diagnosed Mrs. Givens with a urinary tract infection. He prescribed her two
antibiotics and discharged her to go home. At the time Dr. Sorrels discharged Mrs. Givens,
the results of the urine culture were not yet available, so he told Mrs. Givens’ daughter,
Rachel Givens (“Rachel”), to call his office the following week to check on the results of the
urine culture.

On January 17, 2007, the results of the urine culture became available. The parties disputed
at trial when those results were sent to Dr. Sorrels. In any event, Dr. Sorrels did not know
on January 17, 2007 that the urine culture test results were available. The test results were
sent to emergency room physician Dr. Crane, who had ordered the test when Mrs. Givens
was admitted to the emergency room.

On January 18, 2007, a home health nurse assigned to Mrs. Givens recognized that Mrs.
Givens’ condition was not improving as expected, but was instead deteriorating. As a result,
either the home health nurse or daughter Rachel contacted Dr. Sorrels’ office on two
occasions that day to ascertain the results of the urine culture test. On both occasions, the
caller was advised that Dr. Sorrels’ office did not yet have the results of Mrs. Givens’ urine
culture.

Mrs. Givens’ condition continued to worsen. On the morning of January 22, 2007, Rachel
called Dr. Sorrels’ office. She asked about the urine culture test results and was told that Dr.
Sorrels’ office did not yet have them. Rachel left a message for Dr. Sorrels that indicated

                                              -3-
that Mrs. Givens had reduced urinary output and other related symptoms. Dr. Sorrels was
given Rachel’s message immediately and responded by instructing a member of his staff to
call Rachel and tell her to take Mrs. Givens to the emergency room. A note from Dr. Sorrels’
office indicates that, after receiving this instruction, Mrs. Givens refused to go to the
hospital, against Dr. Sorrels’ advice.

Later that afternoon, Rachel called Dr. Sorrels and spoke to him. During that telephone
conversation, Dr. Sorrels saw that the report from Mrs. Givens’ urine culture test had been
faxed to his office earlier that morning and was attached to Mrs. Givens’ medical file. The
report stated that the urine culture performed in the emergency room visit showed that Mrs.
Givens was suffering from a form of E. coli4 that was resistant to the antibiotics Dr. Sorrels
had prescribed for her. Dr. Sorrels indicated that Mrs. Givens needed additional blood work
taken; a home health nurse took the blood work from Mrs. Givens that afternoon. Dr. Sorrels
prescribed a different antibiotic for Mrs. Givens and ordered that she be taken directly to the
hospital emergency room. Mrs. Givens arrived at the University Medical Center that
evening.

The next day, on January 23, 2007, Mrs. Givens’ condition deteriorated still more. Dr.
Sorrels examined her and consulted with other physicians regarding her condition. Mrs.
Givens developed acute respiratory distress; she was intubated and transferred to the
hospital’s intensive care unit. In the ICU, it was determined that Mrs. Givens was suffering
from either cardiogenic shock (low blood pressure caused by a heart failure) or septic shock
(low blood pressure caused by severe infection). Further testing revealed that Mrs. Givens
had suffered yet another heart attack.

The next day, on January 24, 2007, Mrs. Givens was “LifeFlighted”5 to Vanderbilt. By that
time, she was suffering from cardiogenic shock, myocardial infarction, and respiratory
distress. Upon her arrival at Vanderbilt, Mrs. Givens was admitted to the hospital’s coronary
care unit. Some blood cultures taken after her arrival at Vanderbilt were negative for any
E. coli infection. Other testing done several days later on January 27 showed that Mrs.
Givens suffered a heart attack leading to cardiogenic shock, not septic shock. While at
Vanderbilt, Mrs. Givens was given sedating medications that put her in a medically induced
coma. On January 28 or 29, 2007, even though Mrs. Givens had been intubated and was
breathing via a ventilator, she received another tracheostomy to further help her breathing.
Soon after that, hospital personnel noticed some neurological abnormalities. They later


4
    E. coli is an abbreviation used for Escherichia coli, a bacteria found in the colon.
5
Vanderbilt LifeFlight provides emergency medical transportation by helicopter to Vanderbilt in the
Nashville area.

                                                        -4-
determined that, while in the medically induced coma, Mrs. Givens had suffered a severe
stroke that affected her brain stem.

Mrs. Givens never completely came out of the medically induced coma and she never
recovered from the stroke. The medical team at Vanderbilt suggested to Mrs. Givens’ family
that they consider palliative care for her. The family declined and requested extensive life
support measures. Consequently, Mrs. Givens remained hospitalized for another month at
Select Specialty Hospital. After Mrs. Givens was finally discharged from that facility, her
family cared for her at home. She died at home on August 28, 2007, at age 64.

On April 5, 2011,6 the instant wrongful death lawsuit was filed against Dr. Sorrels by Mrs.
Givens’ husband, Aubrey E. Givens (“the Plaintiff”), in his individual capacity and also as
the administrator of Mrs. Givens’ estate.7 The Plaintiff alleged in his complaint that Dr.
Sorrels committed medical malpractice by failing to timely and properly interpret, report, and
communicate the results of the January 15, 2007 urine culture that showed that Mrs. Givens
was suffering from an aggressive and resistant form of E. coli bacteria. He asserted that Dr.
Sorrels’ care of Mrs. Givens fell below the applicable standard of care and caused her death.
In his answer to the complaint, Dr. Sorrels denied that he breached the applicable standard
of care. He denied that Mrs. Givens’ death was caused by misdiagnosed E. coli bacteria, and
asserted that she died from causes related to her heart problems and other maladies.
Discovery ensued.

On April 4, 2012, the jury trial on the Plaintiff’s claims commenced. Due to scheduling
conflicts, the trial took place on eight nonconsecutive days — April 4, 5, 10, 11, 12, 13, 17,
and 18. The Plaintiff’s case-in-chief consisted of the testimony of several witnesses,
including the expert testimony of Richard Fishbein. M.D. and Glenn Goodhart, M.D. (by
video). The Plaintiff and Mrs. Givens’ daughter Rachel testified as well. Dr. Sorrels’
defense included his own testimony plus the expert testimony of Hohn G. Thompson, Jr.,
M.D., Asghar H. Shaikh (medical technologist), Juli Garner Horton, M.D., and Benny A.
Gardner, M.D.


6
 This lawsuit was originally filed under docket number 15238, but that case was voluntarily dismissed. The
complaint from which the instant appeal arises was filed within one year after the voluntary dismissal
pursuant to the savings statute, Tennessee Code Annotated § 28-1-105. Most of the parties’ discovery was
completed while the first case was pending so, for the sake of efficiency, the trial court allowed all discovery
taken in case number 15238 to apply in the instant case. It also made all orders from case number 15238
applicable to this case.
7
 Mrs. Givens’ daughter Rachel was a named plaintiff in the first lawsuit, but the trial court in that lawsuit
dismissed her as an improper party plaintiff. The instant re-filed lawsuit again named Rachel as a plaintiff,
but the trial court below enforced the prior order dismissing Rachel as a plaintiff.

                                                      -5-
Throughout the trial, the trial court ruled on numerous evidentiary matters, and also accepted
offers of proof outside the presence of the jury. After the parties completed their presentation
of the proof, the trial court gave jury instructions and the jury retired to deliberate.

On April 18, 2012, after one hour of deliberation, the jury returned a defense verdict in favor
of Dr. Sorrels. The jury found that the Plaintiff had not “proven by a preponderance of the
evidence that [Dr. Sorrels] was negligent by failing to comply with the recognized standard
of acceptable professional practice for his profession and specialty in this community or a
similar community providing care and treatment to Jessica E. Givens.” On May 4, 2012, the
trial court entered an order approving the jury’s verdict. On July 20, 2012, the trial court
entered two orders, the first denying the Plaintiff’s motion for a new trial and the second
awarding Dr. Sorrels $27,489.34 in discretionary costs. The Plaintiff now appeals.

                                    S TANDARD OF R EVIEW

On appeal, the Plaintiff challenges the jury verdict in favor of Dr. Sorrels on a variety of
grounds, as detailed below. The applicable standard for appellate review of a jury verdict
is set out in Tennessee Rule of Appellate Procedure 13(d), which provides: “Findings of fact
by a jury in civil actions shall be set aside only if there is no material evidence to support the
verdict.” Elaborating on the “material evidence” standard of review:

       To determine if there is material evidence to support the jury verdict, we “take
       the strongest legitimate view of all the evidence in favor of the verdict, assume
       the truth of all evidence that supports the verdict, allow all reasonable
       inferences to sustain the verdict, and discard all countervailing evidence.”

Barkes v. River Park Hosp., 328 S.W.3d 829, 833 (Tenn. 2010) (quoting Whaley v. Perkins,
197 S.W.3d 665, 671 (Tenn. 2006) (quoting Barnes v. Goodyear Tire & Rubber Co., 48
S.W.3d 698, 704-05 (Tenn. 2000))). Stated another way:

       When reviewing an appeal from a jury trial, we will not set aside the jury’s
       findings of fact unless there is no material evidence to support them. Goodale
       v. Langenberg, 243 S.W.3d 575, 583 (Tenn. Ct. App. 2007); Tenn. R. App. P.
       13(d). This Court will not re-weigh the evidence, but will take the strongest
       view possible of the evidence in favor of the prevailing party, discarding
       evidence to the contrary and allowing all reasonable inferences to uphold the
       jury’s verdict. Id. A jury verdict will be set aside only if there is no material
       evidence to support it. Id.




                                               -6-
Watson v. Payne, 359 S.W.3d 166, 168 (Tenn. Ct. App. 2011). Thus, in applying the
material evidence standard of review in this appeal, we give “full faith and credit to all of the
evidence that tends to support” the verdict and disregard the evidence that is inconsistent
with it. Poole v. Kroger Co., 604 S.W.2d 52, 54-55 (Tenn. 1980).

In this appeal, the Plaintiff challenges the trial court’s voir dire procedures, the admission
or exclusion of evidence, the sequestration of witnesses during trial, and the award of
discretionary costs. The decisions on all of these issues are left to the sound discretion of the
trial judge and are reviewed for an abuse of that discretion. A trial court abuses its discretion
when it “applie[s] an incorrect legal standard or reache[s] a decision which is against logic
or reasoning that cause[s] an injustice to the party complaining.” Williams v. Baptist Mem’l
Hosp., 193 S.W.3d 545, 551 (Tenn. 2006) (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999) (quotation and citation omitted)). In applying the abuse of discretion standard,
we do not substitute our judgment for that of the trial court; the “trial court’s ruling ‘will be
upheld so long as reasonable minds can disagree as to [the] propriety of the decision made.’”
Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012) (quoting Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000))).

The propriety of the trial court’s jury instructions is a question of law; as such, it is reviewed
de novo, with no presumption of the correctness of the trial court’s decision. Nye v. Bayer
Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011). Jury instructions must “reflect the
theories that are supported by the parties’ pleadings and proof, as well as the parties’ claims
and defenses.” Pomeroy v. Ill. Cent. R.R. Co., No. W2004-01238-COA-R3-CV, 2005 WL
1217590, at *3 (Tenn. Ct. App. May 19, 2005). They need not be “perfect in every detail,”
they need only be correct and valid as a whole. Id. We will not reverse the judgment based
on the jury instructions unless the instructions, as a whole, mislead the jury by failing to fairly
define the legal issues involved. Nye, 347 S.W.3d at 699.

We must also note the harmless error doctrine, embodied in Rule 36(b) of the Tennessee
Rules of Appellate Procedure. Under Rule 36(b), even if the trial court commits an error, the
appellate court may not set aside the judgment “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.” Therefore, in appellate review of a judgment on a jury
verdict, the trial court’s error will not result in reversal of the judgment unless the error
“more probably than not prejudiced the jury in its verdict and thereby unfairly tainted the
decision-making process.” In re Estate of Smallman, 398 S.W.3d 134, 152-52 (Tenn.
2013).




                                                -7-
                                               A NALYSIS

We have carefully reviewed the substantial record in this case, including the voluminous
technical record, trial transcript, and nearly 100 exhibits. As is dictated by our standard of
review, set out above, we have viewed the evidence in the light most favorable to the verdict,
discarding the evidence that detracts from it. After doing so, we must conclude that the
jury’s verdict is supported by substantial and material evidence, and that the errors allegedly
committed by the trial court did not “involv[e] a substantial right [that] more probably than
not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
P. 36(b). We will address the issues raised by the Plaintiff in the order they are raised in his
appellate brief.

The Plaintiff first argues that the trial court erred in excluding a potential female juror based
solely on the disclosure in her jury questionnaire that she works for State Volunteer Mutual
Insurance Company (known as “SVMIC”), a medical malpractice insurance carrier. The trial
court excluded this juror after Dr. Sorrels’ counsel suggested to the court that she be
excluded based on her place of employment listed on the questionnaire. The Plaintiff argues
that disqualifying the juror upon the suggestion of defense counsel violated the Plaintiff’s
constitutional rights by, in effect, giving Dr. Sorrels an extra strike without accounting for
it. The Plaintiff contends that the trial court’s disqualification of the juror without proper
voir dire is an error that warrants a new trial.

Dr. Sorrels argues, and we agree, that the Plaintiff did not raise this issue to the trial court at
the time the juror was excluded, so the Plaintiff cannot now complain about the
disqualification of the juror.8 More importantly, the Plaintiff does not contend on appeal that
this alleged error affected the outcome of the case. It is undisputed that the case was
ultimately tried before a panel of competent, impartial jurors. See State v. Smith, 857
S.W.2d 1, 20 (Tenn. 1993) (“Defendant’s only right is to have a fair trial at the hands of an
unprejudiced, unbiased and impartial jury. He has no right to select certain jurors.”).
Therefore, any error in excusing the juror based on her questionnaire answers, without voir
dire, is harmless. See McDonald v. Shea, No. W2010-02317-COA-R3-CV; 2012 WL
504510, at *22 (Tenn. Ct. App. Feb. 16, 2012); Danmole v. Wright, 933 S.W.2d 484, 486
(Tenn. Ct. App. 1996).


8
 The Plaintiff states in his appellate brief that he was “never granted the opportunity to formalize the
objection.” Based on our review of the record, we must disagree. The record reflects that, when defense
counsel brought this juror to the attention of the trial judge by suggesting that her occupation made it
inappropriate for her to serve as a juror, the Plaintiff asked for clarification as to why she would be
inappropriate. After further discussion, the trial court struck the juror in order to “be safe [rather] than
sorry.” The Plaintiff made no other comment to the trial court about this juror strike.

                                                    -8-
The Plaintiff next argues that the trial court erred in excluding any testimony or medical
records from Donelson Home Health Care (“DHHC”)9 as a sanction against the Plaintiff for
failure to comply with discovery rules. By way of background, Dr. Sorrels submitted
interrogatories to the Plaintiff during pretrial discovery. The interrogatories in question
asked the Plaintiff to identify individuals with knowledge of the facts alleged in the
complaint, to identify any treating health care provider expected to offer opinions regarding
the cause of injury or standard of care, and to identify any healthcare provider who had ever
advised that Dr. Sorrels was negligent or had not met the standards of professional practice.
Tenn. R. Civ. P. 26.02. The Plaintiff responded to these interrogatories first by objecting to
them and then by identifying the individuals in only vague terms; the Plaintiff did not identify
DHHC as an entity with witnesses who possessed the described knowledge, nor did he
identify any individual DHHC employees. Dr. Sorrels made several efforts to extract this
information from the Plaintiff, but the Plaintiff refused to give a substantive response, instead
reserving the “right to call all medical providers” throughout discovery and through the pre-
trial conference.

At trial, the Plaintiff proceeded to call “five or six” DHHC employees as fact witnesses.
These witnesses had never been previously identified in discovery; instead, their names were
disclosed to Dr. Sorrels’ counsel the day before trial on a “supplemental witness list.”
Perhaps predictably, Dr. Sorrels objected, based on the Plaintiff’s failure to disclose the
identity of the witnesses. Dr. Sorrels asked the trial court to disallow the Plaintiff from
calling the DHHC witnesses and related medical records at trial, arguing that permitting the
Plaintiff to call the employees as fact witnesses would amount to trial by ambush. Initially,
the Plaintiff claimed that the failure to identify the DHHC witnesses was an “oversight.”
Later, the Plaintiff took the position that he was not obligated to identify the DHHC
witnesses because “medical providers do not need to be listed as Rule 26 experts.” The
Plaintiff argued that Dr. Sorrels could have independently ascertained the identity of the
DHHC witnesses because they were mentioned in various places in the medical records
provided in discovery. The Plaintiff noted that Dr. Sorrels had the DHHC medical records
years before trial, even if the individual names of the DHHC employees were omitted from
the Plaintiff’s responses to Dr. Sorrels’ discovery requests, and so insisted that the DHHC
records should not have been excluded at trial.

Ultimately, the trial court agreed with Dr. Sorrels. It held that the Plaintiff was obligated to
identify DHHC and the DHHC witnesses during discovery. The trial court described the
Plaintiff’s responses to Dr. Sorrels’ discovery requests as an attempt to engage in a “shell
game.” The trial court fairly implored the Plaintiff’s counsel to give some plausible


9
 The home health nurse who noticed Mrs. Givens’ decline on approximately January 18, 2007, was
apparently employed by DHHC.

                                               -9-
justification for waiting until the day before trial to identify the DHHC witnesses to Dr.
Sorrels’ counsel: “Why wouldn’t you do that until today? Tell me. Just give me a good
reason. Make up one.” The trial court found no justification for the Plaintiff’s choice to
withhold from Dr. Sorrels the identity of DHHC and its employees, and it held that
permitting the Plaintiff to use the DHHC evidence at trial would be “just absolutely unfair
to the Defendant.” Accordingly, the trial court excluded from the trial the DHHC witnesses
and the DHHC medical records of the treatment of Mrs. Givens.

The Plaintiff now complains that the trial court’s exclusion of both testimony and medical
records from DHHC was reversible error. Rule 37.03 of the Tennessee Rules of Civil
Procedure provides:

       (1) A party who without substantial justification fails to supplement or amend
       responses to discovery requests as required by Rule 26.05 is not permitted,
       unless such failure is harmless, to use as evidence at trial, at a hearing, or on
       a motion any witness or information not so disclosed.

Tenn. R. Civ. P. 37.03(1). The Rule authorizes the trial court to sanction a party who violates
it by, inter alia, assessing expenses and attorney fees, prohibiting the party from introducing
designated matters into evidence, striking pleadings or parts thereof, or dismissing the action.
See Tenn. R. Civ. P. 37.03(1); see also id. at 37.02. Thus, once a party is found to be
“without substantial justification” for failing to supplement or amend discovery responses,
and if such failure is not harmless, that party may not use the evidence that was not disclosed.
See Dean v. Weakley County Bd. of Educ., No. 2007-00159-COA-R3-CV, 2008 WL
948882, at *13 (Tenn. Ct. App. Apr. 9, 2008).

From our review of the record, we conclude that the trial court did not abuse its discretion
in excluding the testimony and medical records of DHHC and its employees. The Plaintiff
was given ample opportunity to identify to Dr. Sorrels DHHC and its employees, but did not
do so. The record supports the trial court’s holding that the Plaintiff’s failure to respond fully
to Dr. Sorrels’ discovery requests was “without substantial justification.” The trial court’s
decision to sanction the Plaintiff by excluding the DHHC evidence and records was the
consequence of the Plaintiff’s chosen strategy, and it was fully authorized under Rule 37.03.
This argument is without merit.

As a corollary to this argument, the Plaintiff argues that the trial court erred in changing its
position on the issue — it initially denied Dr. Sorrels’ motion in limine to exclude the DHHC
evidence but later reversed its position and excluded the DHHC testimony and medical
records at trial. The trial judge explained why he reversed the initial ruling:



                                              -10-
        The Motion in Limine broadly addressed witnesses, but I was under the
        assumption back when we had this pretrial conference that all these people
        were at least identified by entity. And I said you’ll have to do the best you can,
        [defense counsel]. But when I found out, obviously, that there was no
        identification of [DHHC] that’s why I excluded them . . . . And I’m going to
        stand by that ruling.

Thus, the trial judge changed his ruling when he more fully understood the basis for the
Plaintiff’s failure to disclose the requested information.

Of course, when the trial court changed its position on the admission of the DHHC evidence,
the case remained in the bosom of the trial court and its initial ruling was subject to revision.
See Cooper v. Tabb, 347 S.W.3d 207, 219 (Tenn. Ct. App. 2010). The trial court’s
explanation was clear, and its decision was not an abuse of discretion. This argument is also
without merit.

In another related argument, the Plaintiff claims that the trial court committed reversible error
in finding that the DHHC medical records were overly prejudicial pursuant to Rule 403 of
the Tennessee Rules of Evidence. Toward the latter part of the trial, long after the trial court
had decided to exclude the DHHC medical records as a sanction for the Plaintiff’s discovery
abuse, the Plaintiff tried to have certain DHHC medical records admitted into evidence
through an expert witness who had relied on the records in forming his expert opinion. The
trial court disallowed the evidence. It cited two reasons; first, that the Plaintiff was
attempting “to back door that which [the trial court] have excluded as substantive proof,”
and second, that the probative value of the evidence was substantially outweighed by unfair
prejudice pursuant to Rule 403 of the Tennessee Rules of Evidence.10 The Plaintiff now
argues that the trial court erred in holding that the evidence was overly prejudicial and
excluding it on that basis.

We have already affirmed the trial court’s exclusion of the DHHC medical records as a
sanction under Rule 37.03. This holding pretermits any issue on whether the exclusion of
the evidence was supported by additional grounds. Nevertheless, we find no abuse of the
trial court’s discretion in its exclusion of the evidence because its prejudicial effect
outweighed its probative value. This alleged error is not a basis for reversal.




10
  The parties had stipulated that the DHHC records came within the business records exception to the hearsay
rule. Tenn. R. Evid. 803(6). This stipulation did not result in a waiver of all objections to the business
records, only the hearsay objection.

                                                   -11-
The Plaintiff also argues on appeal that the trial court erred in declining to permit his medical
expert, Dr. Fishbein, to testify about information he obtained from unidentified physicians
on the standard of care. At trial, over objection, the trial court permitted Dr. Fishbein to
testify about the standard of care applicable to Dr. Sorrels, and to testify that Dr. Sorrels
breached that standard. During his testimony, to explain the basis of the standard of care to
which he testified, Dr. Fishbein began describing discussions he had had with other
physicians regarding the appropriate standard of care: “I have spoke[n] to several physicians
about this, without naming names, concerning what they would do . . . .” This prompted an
objection by Dr. Sorrels’ counsel. The trial court sustained Dr. Sorrels objection: “He [Dr.
Fishbein] can talk about the standard of care, but he can’t say that Dr. A told me this. He
can’t conduct a poll.” The Plaintiff now argues that the trial court erred in prohibiting Dr.
Fishbein from talking about his discussions with other unidentified physicians because the
ruling prevented Dr. Fishbein from testifying about “the basis of his knowledge regarding
the standard of care in the area wherein Dr. Sorrels practiced medicine.”

In his argument, the Plaintiff concedes that, in Tennessee, a physician expert witness cannot
base his opinion testimony on the applicable standard of care upon what a majority of
physicians would do under similar circumstances. See Hopper v. Tabor, No. 03A01-9801-
CV-00049, 1998 WL 498211, at *1 (Tenn. Ct. App. Aug. 19, 1998). He claims, however,
that Dr. Fishbein’s discussions with other physicians were relevant for other purposes. He
argues, for example, that Dr. Fishbein’s discussions with other physicians helped Dr.
Fishbein form his own opinion regarding the applicable standard of care. See Tenn. R. Evid.
703. Evidence that other physicians agreed with Dr. Fishbein’s opinion, the Plaintiff
contends, would have bolstered Dr. Fishbein’s own testimony. For these reasons, the
Plaintiff argues that because the testimony on Dr. Fishbein’s discussion with other physicians
was relevant for other purposes, the testimony should have been allowed.

In our view, this argument is sophistry. Moreover, the Plaintiff fails to demonstrate how the
exclusion of this testimony affected the outcome of the trial. The trial court did not exclude
Dr. Fishbein’s testimony on either the applicable standard of care or whether Dr. Sorrels
breached the standard of care. If there were any error by the trial court in this regard, it was
harmless error.

The Plaintiff next argues that the trial court committed reversible error in permitting Dr.
Sorrels’ expert witnesses to be in the courtroom during the trial prior to their testimony.
Before the trial began, Dr. Sorrels asked the trial court to permit his experts to remain in the
courtroom during the trial because Dr. Sorrels planned to call them to respond to the
Plaintiff’s testimony, so they would need to be familiar with the evidence presented in order
to respond to it. The trial court granted that request over the Plaintiff’s objection. The
Plaintiff now contends that this was reversible error.

                                              -12-
In lawyer parlance, Rule 615 of the Tennessee Rules of Evidence is at times called the
“sequestration rule” or even just “the Rule.” In relevant part, it provides:

        At the request of a party the court shall order witnesses, including rebuttal
        witnesses, excluded at trial or other adjudicatory hearing. . . . This rule does
        not authorize exclusion of (1) a party who is a natural person, or (2) a person
        designated by counsel for a party that is not a natural person, or (3) a person
        whose presence is shown by a party to be essential to the presentation of the
        party’s cause. . . .

Tenn. R. Evid. 615 (emphasis added). The 2004 advisory commission comments to Rule 615
state explicitly that expert witnesses are generally considered “essential” within the meaning
of the Rule, and are therefore not excluded from the courtroom during the trial. Tenn. R.
Evid. 615 advisory comm’n comments; see State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010);
State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001).

The Plaintiff concedes that experts are generally considered “essential” under Rule 615, but
he argues that, because Dr. Sorrels himself is a medical doctor, it was unnecessary for his
experts to be present during trial in order for him to understand the medical testimony
presented. This is a specious argument indeed. The experts are not present during the trial
in order for the opposing party to understand the expert testimony; the advisory commission
comments to Rule 615 state that an expert witness may be essential “to help the lawyer
understand opposing testimony.” Tenn. R. Evid. 615 advisory comm’n comments. The trial
court did not abuse its discretion in permitting Dr. Sorrels’ experts to remain in the
courtroom. Furthermore, the Plaintiff has not shown that this alleged error would have
affected the outcome of this case. Id. Thus, even if the trial court’s decision were an error,
we would hold it to be harmless error.

The Plaintiff’s next three issues arise out of the trial court’s actions during the pretrial
conference. The Plaintiff argues that the trial court erred by declining to compel Dr. Sorrels’
experts to answer questions about their medical malpractice insurance carriers posed during
the experts’ depositions, and by refusing to permit the Plaintiff to voir dire Dr. Sorrels
himself about his medical malpractice insurance carrier outside the presence of the jury.11
The Plaintiff concedes that the insurance information was not admissible to show negligence,
but he contends that it “was intended to establish and/or dispel any consideration of bias on
behalf of the expert witness’s part.” He sought to establish that Dr. Sorrels and his experts


11
  Dr. Sorrels points out that the Plaintiff never filed a motion to compel Dr. Sorrels’ experts to answer the
questions, and that the issue was first raised by the Plaintiff at the pre-trial conference. Because we hold in
favor of Dr. Sorrels on this issue, we need not address whether the Plaintiff’s objection was properly made.

                                                     -13-
were all insured by SVMIC, and that the experts were testifying on Dr. Sorrels’ behalf so that
their own SVMIC insurance premiums would not increase. The Plaintiff argues that he was
unable to establish this bias because the trial court erroneously refused to permit him to
discover information about the medical malpractice insurance of Dr. Sorrels and his experts.
This error, he claims, requires reversal of the judgment.

Rule 411 of the Tennessee Rules of Evidence provides: “Evidence that a person was or was
not insured against liability is not admissible upon issues of negligence or other wrongful
conduct.” The Rule itself contains a built-in exception, in that it “does not require the
exclusion of evidence of insurance against liability when offered for another purpose, such
as proof of agency, ownership, or control or bias or prejudice of a witness.” Tenn. R. Evid.
411 (emphasis added). For this issue, the Plaintiff relies on the emphasized portion of Rule
411, arguing that he was erroneously precluded from obtaining the evidence necessary to
show bias.

After reviewing the appellate record, it is clear that the Plaintiff failed to establish any
foundation for his argument that Dr. Sorrels’ experts were biased in Dr. Sorrels’ favor based
on a common malpractice insurance carrier. Outside the presence of the jury, the trial court
permitted the Plaintiff to ask the defense experts whether they knew the identity of Dr.
Sorrels’ insurance carrier; all of the defense experts who were asked this question answered
that they did not.12 If the expert does not know the identity of the defendant’s liability
insurance carrier, then he cannot have a bias based on a common insurance carrier. Under
similar circumstances, this Court held that a trial court did not abuse its discretion in
excluding evidence of medical malpractice insurance proffered to show bias where the
proponent of the evidence does not establish a foundation to support a showing of bias. See
Heath v. Memphis Radiological Prof’l Corp., 79 S.W.3d 550, 558-59 (Tenn. Ct. App. 2001)
(noting that defendant’s experts were not aware of the defendant’s liability insurance carrier);
Roberson v. Netherton, No. 01A01-9310-CV-00470, 1994 WL 164153, at *2-3 (Tenn. Ct.
App. May 4, 1994) (holding that evidence of insurance was not admissible to show bias when
the defense experts did not know how their insurance rates were affected by an adverse
judgment). For the same reason, the trial court in this case did not abuse its discretion in
refusing to compel Dr. Sorrels’ witnesses to identify their medical malpractice insurance
carriers or in refusing to allow the Plaintiff to voir dire Dr. Sorrels about his own insurance
carrier.

The Plaintiff further argues on appeal that the trial court erred in permitting Dr. Sorrels,
throughout the trial, to make repeated references to other medical malpractice lawsuits filed


12
 It appears that Dr. Juli Horton was not asked whether she knew the identity of Dr. Sorrels’ medical
malpractice insurance carrier.

                                               -14-
by the Plaintiff against other defendants that were also based on the wrongful death of Mrs.
Givens. As background, the Plaintiff filed two other lawsuits against physicians other than
Dr. Sorrels and against Vanderbilt, alleging that Mrs. Givens’ death was caused by
negligence that occurred in September 2006, prior to the incidents that are the subject of the
instant lawsuit. The Plaintiff argues that any reference to those lawsuits should have been
prohibited under Rule 403 of the Tennessee Rules of Evidence, which states that relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading of the jury . . . .” By permitting
evidence of the other lawsuits, the Plaintiff claims, “the jury was faced with the possibility
that Plaintiff could indeed receive a double recovery for his losses and/or that others, not
involved in the present lawsuit, could be held responsible for the wrongs alleged by the
Plaintiff.” The Plaintiff acknowledges that the trial court gave a curative instruction to the
jury that they were to consider only the fault of Dr. Sorrels, but he argues that this and other
curative instructions did little to keep the jury from concluding from this evidence either that
a third party was responsible or that the Plaintiff sought to get a double recovery by pursuing
multiple lawsuits. For this reason, the Plaintiff argues that he did not receive a fair and
impartial trial, and he asks this Court to reverse the judgment on this basis.

In his appellate briefs, the Plaintiff does not cite to the pages in the record containing the
alleged impermissible references to other lawsuits, except to say in the reply brief that it “was
done so through the cross examination of Rachel Givens,” without specific reference to a
record page cite. After reviewing the record, we surmise that the Plaintiff is referring to an
excerpt in which Rachel first testified that Dr. Sorrels’ conduct in January 2007 caused her
mother’s death, and on cross-examination Dr. Sorrels’ counsel sought to impeach Rachel’s
testimony by asking her about the other lawsuits. Of course, “statements contained in
pleadings filed in other actions may . . . be used as evidentiary admissions as long as they are
inconsistent with the party’s present contentions.” Pankow v. Mitchell, 737 S.W.2d 293, 296
(Tenn. Ct. App. 1987); see Baxter v. Vandenheovel, 686 S.W.2d 908, 910-11 (Tenn. Ct.
App. 1984). Rachel’s testimony asserting that Dr. Sorrels’ negligence was the sole cause of
Mrs. Givens’ death is directly contrary to the prior assertion that Vanderbilt and its doctors
caused Mrs. Givens’ death.13 We cannot conclude that the trial court abused its discretion
in permitting evidence of the Plaintiff’s other lawsuits for purposes of impeachment.

In a related argument, the Plaintiff claims that the trial court erred in denying the Plaintiff’s
motion for a mistrial, made in response to Dr. Sorrels’ repeated references to other lawsuits.


13
  As we have stated, Rachel is no longer a named plaintiff in this lawsuit. Nevertheless, she signed the
complaint as an original plaintiff and alleged in her testimony that Dr. Sorrels caused Mrs. Givens’ death.
Under these circumstances, it was clearly permissible for Dr. Sorrels’ counsel to cross-examine Rachel about
the contradiction between the assertions in this lawsuit versus those made in the other lawsuits.

                                                   -15-
Such references, he claims, continuously implied to the jury that a third party was the party
who was truly at fault for Mrs. Givens’ untimely death. In addition, the Plaintiff argues, Dr.
Sorrels repeatedly asserted that the Plaintiff or someone in Mrs. Givens’ family had some
degree of fault for failing to properly care for Mrs. Givens. The Plaintiff asserts that such
allegations were in contravention of the trial court’s instruction that only Dr. Sorrels’ fault
would be considered in this case, without applying the doctrine of comparative fault. For
these reasons, the Plaintiff claims, a mistrial was warranted, and the trial court erred in
declining to grant the Plaintiff’s motion.

As noted above, the trial court did not err in permitting Dr. Sorrels to refer to the Plaintiff’s
other lawsuits for purposes of impeachment. Moreover, the trial court admonished the jury
on multiple occasions to consider only the fault of Dr. Sorrels, no other person. The jury
verdict form contained only Dr. Sorrels’ name, and the jury was specifically instructed to
consider only his fault in their deliberations. From our review of the record as a whole, we
reject the Plaintiff’s argument that the trial court erred in declining to grant the Plaintiff’s
motion for a mistrial.

The Plaintiff next argues that the trial court erred in instructing the jury as to Tennessee
Pattern Jury Instructions 6.21 and 6.12. Instruction 6.21, regarding a patient’s responsibility
to follow instructions, reads:

       A patient must follow all reasonable instructions by the physician regarding
       the patient’s care, activities and treatment. A physician is not liable for any
       injury caused by the patient’s failure to follow those instructions. The
       physician remains responsible for any injury caused by the physician’s own
       negligence.

Instruction 6.12, entitled “Perfection Not Required,” reads:

       By undertaking treatment a physician does not guarantee a good result. A
       physician is not negligent merely because of an unsuccessful result or an error
       in judgment. An injury alone does not raise a presumption of the physician’s
       negligence. It is negligence, however, if the error of judgment or lack of
       success is due to a failure to have and use the required knowledge, care and
       skill as defined in these instructions.

The Plaintiff argues that the trial court’s decision to give Instruction 6.21 was inappropriate
in this case because the trial court had explicitly held that the fault of third parties —
including Mrs. Givens (the patient) — was not to be considered during the trial. The Plaintiff
claims that Instruction 6.21 refers directly to third-party liability and, thus, placed the issue

                                              -16-
of comparative fault and third-party fault before the jury. Instruction 6.12, the Plaintiff
contends, implied facts that were not established at trial. The Plaintiff notes that Dr. Sorrels
insisted that he had made no mistake or error in judgment, so the “perfection not required”
(or “honest mistake”) jury instruction served only to confuse the jury.

In reviewing the jury instructions given by the trial court, we review them as a whole, rather
than piecemeal. Importantly, both of the instructions to which the Plaintiff objects constitute
correct statements of Tennessee law. When read with the other instructions given to the jury,
the jury instructions at issue are neither confusing nor misleading, and the instructions as a
whole fairly define the legal issues involved in the case. See Nye, 347 S.W.3d at 699. Under
this standard, we conclude that the trial court’s inclusion of Instructions 6.21 and 6.12 in the
jury instructions was not reversible error.

Finally, the Plaintiff argues that the trial court abused its discretion in awarding Dr. Sorrels
the full amount of the discretionary costs claimed, because any costs related to videotapes
or videotaping services are not allowable as a matter of law under Rule 54.04 of the
Tennessee Rules of Civil Procedure. We note that the Plaintiff did not make this specific
argument to the trial court. Instead, he objected to any award of any discretionary costs or,
in the alternative, he asked the trial court to reserve ruling on this issue pending appeal.
Under these circumstances, any challenge to the specific costs of videotaping is waived.
Furthermore, from our review, the discretionary costs claimed by Dr. Sorrels were
reasonable. Accordingly, we affirm the trial court’s award of discretionary expenses in favor
of Dr. Sorrels in its entirety.

The Plaintiff acknowledges that some of the alleged errors raised on appeal may be deemed
harmless error if considered alone. The Plaintiff argues forcefully that the aggregation of the
trial court’s errors cannot be considered harmless; under the cumulative error doctrine, the
Plaintiff insists that he was denied a fair and impartial trial.14 Respectfully, we disagree. In
light of our decision on the specific issues raised above, and from a careful consideration of
the entire record, the Plaintiff received a full, fair, and impartial trial in this cause. For this
reason, we affirm the judgment entered on the verdict.




14
  Pursuant to the Court’s request at oral argument, Dr. Sorrels filed supplemental authority on the cumulative
error doctrine.

                                                    -17-
                                      C ONCLUSION

        The decision of the trial court is affirmed. Costs on appeal are to be taxed to the
Plaintiff/Appellant Aubrey E. Givens, Individually and as Administrator of the Estate of
Jessica E. Givens, Deceased, and his surety, for which execution may issue, if necessary.




                                                  _________________________________
                                                  HOLLY M. KIRBY, JUDGE




                                           -18-
