                    IN THE COURT OF APPEALS OF TENNESSEE                                   01/30/2019
                                AT NASHVILLE
                              August 8, 2018 Session

               SHERRY SMITH EX REL LAUREN TAYLOR AGEE
                       v. HANNAH NICOLE PALMER

                  Appeal from the Circuit Court for DeKalb County
                   No. 2016-CV-59 Jonathan L. Young, Judge
                     ___________________________________

                           No. M2017-01822-COA-R3-CV
                       ___________________________________

The mother of a woman whose body was discovered in Center Hill Lake, where she had
been camping with several friends, brought this wrongful death action against those
friends, alleging that they caused her daughter’s death and conspired to cover it up. One
of the defendants asserted her Fifth Amendment privilege against self-incrimination in
her answer to the complaint and in response to discovery requests; in due course, the
defendant moved for summary judgment. The mother filed several affidavits and
declarations in response, as to which the defendant filed motions in limine and motions to
strike in total or in part. The defendant also asserted her Fifth Amendment privilege as to
additional statements of disputed facts filed by the mother in response to the summary
judgment motion. The trial court granted or denied, in whole or in part, each motion in
limine and to strike; held that the mother was not entitled to an adverse inference as to the
defendant’s invocation of the privilege in response to discovery and mother’s statement
of disputed facts in opposition to the summary judgment motion; and granted summary
judgment to the defendant. Mother appeals. Upon a thorough review of the record, we
reverse the grant of summary judgment, vacate the rulings on the motions in limine that
are at issue in this appeal, vacate the holdings relative to defendant’s invocation of her
Fifth Amendment privilege, and remand the case for further proceedings consistent with
this opinion.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court DeKalb
          County Reversed in Part and Vacated in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, J., joined. W. NEAL MCBRAYER, J., filed a concurring opinion.

J. Alex Little and Maria Q. Campbell, Nashville Tennessee, for the appellant, Sherry
Smith.

Todd G. Cole and Jake VanAusdall, Brentwood, Tennessee, for the appellee, Hannah
Nicole Palmer.
                                             1
                                                      OPINION

I.         FACTS AND PROCEDURAL HISTORY

        Lauren Taylor Agee, along with her friend Hannah Palmer, Ms. Palmer’s
boyfriend, Aaron Lilly, and Mr. Lilly’s friend, Christopher Stout, attended a three-day
event in July 2015, “Wakefest,” which was held on Center Hill Lake;1 during the festival,
the group camped on a bluff overlooking the lake. Lauren was not at the campsite when
her friends awoke on the morning of July 26; at approximately 4:00 p.m. on that day, two
fishermen found Lauren’s body floating in a cove close to the bluff where she had been
camping. The DeKalb County Sheriff’s Department investigated the [incident] and
prepared an investigative report; no criminal charges were brought relating to Ms. Agee’s
death.

       Lauren Agee’s mother, Sherry Smith, brought a wrongful death action against
Aaron Lilly, Brixner Gambrell,2 Hannah Palmer, Christopher Stout, and “John Does 1-10
and Jane Does 1-10” on July 22, 2016. The complaint set forth facts surrounding the
circumstances and medical causes of Lauren’s death, alleged that Defendants
intentionally, recklessly, or negligently caused Lauren’s death, and asserted causes of
action for wrongful death and intentional infliction of emotional distress. Hannah Palmer
answered the complaint, refusing to answer many of the factual allegations of the
complaint by invoking her right against self-incrimination under the Fifth Amendment of
the United States Constitution, and asserting numerous affirmative defenses.3

       In due course, Ms. Palmer moved for summary judgment, asserting nine grounds;
eight of the grounds challenged the sufficiency of the factual allegations of the complaint
to support the causes of action alleged by the plaintiff, and the other asserted comparative
fault on the part of Ms. Agee.4 The motion was accompanied by a Tennessee Rule of
1
   Center Hill Lake is a reservoir created by the U.S. Army Corps of Engineers in 1948 as a result of the
construction of the Center Hill Dam.” Center Hill Lake Information, http://centerhill.uslakes.info (last
visited Jan. 1, 2019); U.S. Army Corp of Engineers Center Hill Lake Project History,
https://www.lrn.usace.army.mil/Locations/Lakes/Center-Hill-Lake/History/ (last visited Jan. 1, 2019). It
is located in the Cumberland River Basin, on the Caney Fork River, and covers parts of DeKalb, Putman,
White, and Warren Counties. See U.S. Army Corp of Engineers Center Hill Lake Project History. The
lake is “64 miles long at the normal summer pool of 648 feet above mean sea level” and has a “[s]horeline
distance is 415 miles at the 685 elevation.” Hurricane Marina – Center Hill Lake Info,
http://hurricanemarina.net/lake-info/ (last visited Jan. 1, 2019).

2
  The record does not show who this person is or the person’s relationship to Ms. Agee or the other
defendants.
3
     The other defendants answered separately and are not parties to this appeal.
4
     The grounds stated in the motion were:

           1. The Complaint fails to aver facts sufficient to establish personal jurisdiction over

                                                       2
Civil Procedure 56.03 Statement of Undisputed Material Facts (“the Statement”)5 and
four exhibits, the nature and content of which will be discussed later in this opinion.

       Ms. Smith responded to the motion, disputing several of the material facts; as part
of her response, she attached her own affidavit, the affidavit of Sheila Wysocki, a private
investigator, and Ms. Palmer’s answer to the complaint, responses to discovery, and
deposition upon written questions. In her response to Ms. Palmer’s Rule 56.03 statement,
Ms. Smith included additional material facts that she contended were disputed and
precluded summary judgment; she later supplemented her response, asserting additional
disputed facts, and filed the declarations of Dr. Amy Gruszecki, a forensic pathologist,
Dan Hodges, Lou Leiker, an officer for 34 years with the Los Angeles Police
Department, and Chris Yarchuk, a former Sargeant with the White County Sheriff’s
Department and the affidavit of Ryan Melanson, a Sargeant with the White County
Sheriff’s Department.

        Ms. Palmer responded to Ms. Smith’s statement of additional disputed material
facts, asserting that the evidence cited by Ms. Smith in her statement “was inadmissible”
and asserting her Fifth Amendment privilege against self-incrimination as to each of the
statements.6 Along with her response, Ms. Palmer filed motions to strike the affidavit of

          Defendant.
          2. The Complaint fails to aver facts sufficient to establish that venue is proper in DeKalb
          County, Tennessee.
          3. The Complaint fails to aver facts sufficient to satisfy the elements of intentional tort
          as to Defendant.
          4. The Complaint fails to aver any specific acts by Defendant that directly or proximately
          caused the injuries from which Plaintiff seeks relief.
          5. The Complaint fails to aver facts sufficient to satisfy the elements of reckless conduct
          as to Defendant.
          6. The Complaint fails to aver facts sufficient to satisfy the elements of negligent conduct
          as to Defendant.
          7. The Plaintiff is barred from recovery due to the comparative fault of Lauren Agee.
          8. The Complaint fails to aver facts sufficient to satisfy the elements of intentional
          infliction of emotional distress as to Defendant.
          9. The Complaint fails to aver facts sufficient to support Plaintiff’s request for punitive
          damages.
5
    Tennessee Rule of Civil Procedure 56.03 states:

          In order to assist the Court in ascertaining whether there are any material facts in dispute,
          any motion for summary judgment made pursuant to Rule 56 of the Tennessee Rules of
          Civil Procedure shall be accompanied by a separate concise statement of the material
          facts as to which the moving party contends there is no genuine issue for trial. Each fact
          shall be set forth in a separate, numbered paragraph. Each fact shall be supported by a
          specific citation to the record.
6
 Ms. Palmer’s response was styled “Defendant Palmers’ Reply Consolidated Statement Of Undisputed
Material Facts And Responses To Additional Material Facts In Support Of Defendant Palmer’s Motion

                                                       3
Sherry Smith and the declaration of Dan Hodges, and motions in limine to exclude
portions of the declarations or affidavits of Dr. Gruszecki, Lou Leiker, Sheila Wysocki,
Chris Yarchuk, and Ryan Melanson. In reply, Ms. Smith filed the declaration of Chris
Brown.

       The court heard the motions in limine, motions to strike, and motion for summary
judgment and subsequently entered an order: granting the motion to strike the declaration
of Mr. Hodges; partially striking the affidavit of Ms. Smith; denying the motion in limine
as to Dr. Gruszecki; and granting in part the motions in limine as to the declarations or
affidavits of Mr. Leiker, Ms. Wysocki, Mr. Yarchuk, and Mr. Melanson; and holding that
the statements in the declaration of Mr. Brown “are hereby retained.” In the order, the
court also granted the motion for summary judgment. Ms. Smith appeals the grant of
summary judgment as well as the rulings on the motions in limine and motions to strike.

        Upon our de novo review, we have determined that summary judgment was
improvidently granted and should be reversed and the case remanded. Because the
appeal also raises issues relative to the court’s rulings on the motions in limine and to
strike, as well as Ms. Palmer’s invocation of her Fifth Amendment privilege against self-
incrimination, the resolution of which will guide the court and the parties on remand, we
will address those matters.

II.    ANALYSIS

       A.      Summary Judgment

        Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. A trial court’s decision on a

For Summary Judgment.” She prefaced the response with the following statement:

       COMES NOW, Defendant Hannah Nicole Palmer, (hereinafter “Defendant”), by and
       through undersigned counsel and pursuant to Tenn. R. Civ. P. 56, and hereby replies to
       Plaintiff’s Supplemental Responses to Defendant Palmer’s Statement of Material Facts
       and Responds to Plaintiff’s Additional Material Facts. Through this pleading, Defendant
       Palmer provides the Court with the identification of those Statements of Undisputed
       Material Facts that Plaintiff claims to dispute along with a reply to Plaintiff’s purported
       dispute, showing that the identified Statement of Fact (“SOF”) is not in dispute – because
       Plaintiff either cited to evidence that is inadmissible and should be excluded and/or
       stricken from the record to support the dispute (violation of Tenn. R. Civ. P. 56.03) or the
       response and/or cited testimony does not refute the SOF as Plaintiff claims. As further
       described below, the primary substance of each SOF is not disputed. Plaintiff’s actual
       admission and implied admission of Defendant Palmer’s SOF entitles Palmer to summary
       judgment dismissing Plaintiff’s claims against Defendant Palmer with prejudice.


                                                    4
motion for summary judgment presents a question of law, which we review de novo, with
no presumption of correctness. Rye v. Women’s Care Ctr. Of Memphis, MPLLC, 477
S.W.3d 235, 250 (Tenn. 2015), cert. den., 136 S.Ct. 2452 (2016). Thus, we must “make
a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure have been satisfied.”

        The moving party has the burden of persuading the court that no genuine issues of
material fact exist and that it is entitled to judgment as a matter of law. Byrd v. Hall, 847
S.W. 2d 208, 215 (Tenn. 1993). If the moving party fails to satisfy that burden, the
motion should be denied. Id. If the moving party fails to make the required showing,
then “the non-movant’s burden to produce either supporting affidavits or discovery
materials is not triggered and the motion for summary judgment fails.” McCarley v. West
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); accord Staples v. CBL& Assoc.,
Inc., 15 S.W.3d 83, 88 (Tenn. 2000).7 As noted earlier, Rule 56.03 requires the movant
to set forth facts as to which it contends there is no genuine issue for trial, supported by a
specific citation to the record. “The purpose of the requirements of Tenn. R. Civ. P.
56.03 is to ‘assist the Court in focusing on the crucial portions of the record’ in
determining whether there is a genuine issue requiring a trial on the merits.” Cox v.
Tennessee Farmers Mut. Ins. Co., 297 S.W.3d 237, 244 (Tenn. Ct. App. 2009) (citing
Advisory Committee Comment to Tenn. R. Civ. P. 56.03). Accordingly, documents filed
in support of a motion for summary judgment must be authenticated and admissible at
trial. Tenn. R. Civ. P. 56.06; Cox, 297 S.W.3d at 246.

       Along with the Statement, Ms. Palmer filed four exhibits: an unsworn and
unverified handwritten document entitled “voluntary statement,” ostensibly given by
Kassie Marie Franks on August 17, 20158; an unverified laboratory report prepared by
Aegis Crime Labs; an unverified and unsigned document entitled “Autopsy Report”; and
an unverified document entitled “DeKalb County Sheriff’s Department Investigative
Report.” The Statement itself consists of sixteen statements of material fact, seven of
which are supported by citation to the allegations at paragraphs 14, 15, 16 and 20 of the


7
    Our Supreme Court has instructed:

         [I]n Tennessee, as in the federal system, when the moving party does not bear the burden
         of proof at trial, the moving party may satisfy its burden of production either (1) by
         affirmatively negating an essential element of the nonmoving party’s claim or (2) by
         demonstrating that the nonmoving party’s evidence at the summary judgment stage is
         insufficient to establish the nonmoving party’s claim or defense.

Rye, 477 S.W.3d at 250, 264-65.
8
  It appears from the statement that Ms. Franks attended Wakefest and interacted with Ms. Agee and Ms.
Palmer.


                                                    5
complaint9; one statement is derived from the unverified statement of Kassie Franks; two
statements are from the unverified laboratory report; and three statements each from the
unverified autopsy report and Sheriff’s report.10

       To the extent that Ms. Franks’ statement and the Investigative Report are tendered
as testimony of Ms. Franks and Officer Taylor, they wholly fail to comply with the
requirements of Rule 56.06 that “supporting . . . affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.” In like
manner, the laboratory and autopsy reports do not meet the requirement of Rule 56.06
that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith.” In addition, the unverified documents
constitute inadmissible hearsay, see Tennessee Rule of Evidence 802, and the
presentation of the documents wholly fails to meet the requirement of Tennessee Rule of
Evidence 901 that the documents be authenticated “as a condition precedent to
admissibility.” Ms. Palmer cannot rely on these documents to satisfy her burden.


9
     The allegations of the complaint were:

           14. In the early morning hours of July 26, 2015, Lauren Agee was killed through the
           intentional, negligent, or reckless acts of Defendants.
           15. Prior to her death, Lauren Agee had attended a three-day event, known as
           “Wakefest,” at Center Hill Lake with Defendants Palmer, Lilly, and Stout, during which
           she stayed at a campsite selected by Defendants Gambrell and Lilly. The campsite
           consisted of a tent and two Enos (“hammocks”).
           16. In initial statements to the authorities, Defendant Palmer claimed that Lauren Agee
           returned to the campsite with all Defendants in the early morning hours of July 26, 2015
           after visiting a bar on the lake. Palmer claimed that Lauren Agee wanted to go home, but
           that Palmer took Lauren Agee’s keys. Upon returning to the campsite, Palmer claimed
           that she and her boyfriend, Defendant Lilly, went to sleep in the tent while Lauren Agee
           slept in the hammock with Defendant Stout.

           ***

           20. At approximately 4:00 P.M. on July 26, 2015, two fishermen found Lauren Agee’s
           lifeless body floating in the water in a cove.

In her answer to the complaint, Ms. Palmer states “Defendant refuses to answer the averments in
Paragraph [14, 15 and 16] and asserts her rights under the Fifth Amendment to the United States
Constitution” as to those paragraphs, and responds that she is “without knowledge or belief as to the truth
of the averments in Paragraph 20.”
10
    This document is entitled “DeKalb County Sheriff’s Department Investigative Report” and is
represented to detail Detective Jeremy Taylor’s investigation of Ms. Agee’s death; it is not verified or
otherwise authenticated as either his report or as an official record of the Sheriff’s Department. Ms.
Palmer refers to this as “Detective Taylor’s Investigative Report.”


                                                      6
        The seven statements in the Statement of Undisputed Material Facts referencing
the allegations of the complaint state:

       1. This cause of action arises from the death of Lauren Taylor Agee.
       Complaint ¶ 14.
       RESPONSE:

       2. Agee’s death occurred on or about July 26, 2015. Complaint ¶ 14.
       RESPONSE:

       3. Agee’s body was found in Center Hill Lake on or about 4:00 PM on July
       26, 2015. Complaint ¶ 20.
       RESPONSE:

       4. At the time of Agee’s death, Plaintiff avers Defendant was attending a
       three day music festival called “Wakefest” at Center Hill Lake. Complaint
       ¶15.
       RESPONSE:

       5. Plaintiff avers that Agee and the other Defendants were also attending
       Wakefest. Complaint ¶ 15.
       RESPONSE:

       6. Agee did not object to the location of the campground the group chose to
       stay at during Wakefest. Complaint ¶ 15.
       RESPONSE:

       ***

       8. Plaintiff avers Agee visited a local bar the evening of July 25, 2015 and
       stayed until the early hours of July 26, 2015. Complaint ¶ 16.
       RESPONSE:

These statements do not constitute “facts as to which [Ms. Palmer] contends that there is
no genuine issue for trial.” See Tenn. R. Civ. P. 56.03. Rather, they are merely
unverified reworded statements of some of the factual allegations of the complaint, and
are not proof of the fact asserted; a bare citation to the complaint does not establish the
fact alleged therein for summary judgment purposes.

        Upon our de novo review, we have determined that Ms. Palmer did not satisfy her
initial burden to produce evidence showing there was not a genuine issue of fact for trial;
without doing so, the burden never shifted to Ms. Smith to produce evidence showing



                                            7
that there was a genuine issue for trial. Rye, 477 S.W.3d at 265; Martin, 271 S.W.3d at
83. For these reasons, we conclude that summary judgment was improvidently granted. 11

        B.      Motions in Limine and Motions to Strike

       Ms. Smith filed three affidavits and five declarations in response to the summary
judgment motion; Ms. Palmer moved to strike or to exclude parts or the whole of each
affidavit and declaration except the declaration of Chris Brown. As part of the order
granting summary judgment, the trial court ruled on each motion, striking Mr. Hodges’
declaration, partially striking Ms. Smith’s affidavit, denying the motion in limine as to
Dr. Amy Gruszecki, and granting in part the motions in limine as to the declarations of
Mr. Leiker and Mr. Yarchuk, and the affidavits of Ms. Wysocki and Mr. Melanson.12
Ms. Smith argues that the trial court erred in its rulings on these motions because it
“impermissibly weighed the expert’s affidavits and considered some fact testimony to be
opinion testimony.”

       A motion in limine refers to “any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence is actually offered.” Pullum
v. Robinette, 174 S.W.3d 124, 135 n. 11 (Tenn. Ct. App. 2004) (quoting Luce v. U.S., 469
U.S. 38, 40 n. 2 (1984)). This court has previously discussed the role that motions in
limine play in litigation:

        A motion in limine provides a vehicle for requesting guidance from the trial
        court prior to trial regarding an evidentiary question which the court may
        provide, at its discretion, to aid the parties in formulating their trial strategy.
        It enables the trial court, prior to trial, to exclude anticipated evidence that
        would clearly be inadmissible for any purpose at trial. It is, essentially, a
        substitute for an evidentiary objection at trial.

Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 192 (Tenn. Ct. App. 2008) (citations
and footnotes omitted). We have also discussed the applicable standard of review for
motions in limine:

11
    Additionally, with the exception of the allegation of comparative fault, the grounds on which Ms.
Palmer based her motion for summary judgment were that Ms. Smith failed to aver facts in the complaint
sufficient to establish the causes of action. This is an argument more properly made in a motion under
Tennessee Rule of Civil Procedure 12.02(6).11 In that context, the allegations of the complaint are taken
as true and the movant must show that “the alleged facts will not entitle the plaintiff to relief” or “the
complaint is totally lacking in clarity and specificity.” Cty. of Brentwood v. Metro. Bd. of Zoning Appeals,
149 S.W.3d 49, 54 (Tenn. Ct. App. 2004) (citing Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct.
App. 1992)). Taken as true, the allegations of the complaint clearly state a claim for relief.
12
   The court denied the motion in limine as to Dr. Gruszecki’s declaration; while no motion to strike or
exclude the declaration of Mr. Brown had been filed, the court held that he “is an eyewitness” and that the
statements in his declaration “are hereby retained.” Ms. Palmer does not appeal either ruling.

                                                     8
        With a few exceptions, . . . the trial court is given broad discretion in the
        timing of its decisions on the admissibility of evidence. . . . An appellate
        court will not reverse a trial court’s decision on the admissibility of
        evidence, including a ruling on a motion in limine, absent clear abuse.
        Similarly, an appellate court will not reverse a trial court’s exercise of
        discretion in ruling on an evidentiary motion in limine unless the trial court
        abused the wide discretion given it to handle such motions.

Pullum, 174 S.W.3d at 136-37 (citations omitted).13


       The trial court excluded portions of the declarations of Mr. Leiker, Ms. Wysocki,
Mr. Yarchuk, and Mr. Melanson on the basis of Tennessee Rules of Evidence 701, 702
and/or 703, which govern the admissibility of opinions by lay persons and experts. The
court struck the declaration of Mr. Hodges as inadmissible hearsay. Although not
expressly stated, it is apparent that the court struck a portion of Ms. Smith’s affidavit
under the cited rules of evidence, inasmuch as the court stated that it took the action
because “the Plaintiff does not have expert knowledge.” Upon our review of the record,
we have concluded that, in ruling on the motions, the trial court erroneously excluded
admissible opinions; in addition, the court erroneously classified some permissible lay
opinions as impermissible expert opinions.

       We begin our analysis by noting that Ms. Palmer did not file any competing
affidavits or declarations to those filed by Ms. Smith or challenge the ability of the
witnesses proffered by Ms. Smith to give the opinions they did. In ruling on summary
judgment, the trial court had only the affidavits and declarations which had been filed by
Ms. Smith, as abridged by the rulings on the motions in limine and to strike, as well as
the Rule 56.03 statements. While a trial court has the responsibility to determine the
competency of any proffered expert, as well as the admissibility of the expert’s
13
   While not dispositive of this issue, we are also mindful that, in ruling on the motion for summary
judgment, the trial court considered affidavits and declarations that were the subject of the motions in
limine. As noted in Duran:

        Motions in limine serve fundamentally different purposes than motions for summary
        judgment. They are not subject to the same procedural safeguards. Thus, a motion in
        limine should not be used as a substitute for a dispositive motion such as a motion for
        summary judgment. Courts that have addressed attempts to use a motion in limine in such
        a manner, either explicitly or implicitly, have found such use to be in error. As several
        courts have noted, a motion in limine should not be used to “choke off” a party’s entire
        claim or defense.

271 S.W.3d at 192-93 (citations omitted). As more fully explained herein, the wisdom of this instruction
is borne out in our consideration of this case.


                                                   9
testimony, it is not clear from the record which standards the trial court in this case used
in making its rulings. We discuss each ruling in turn.

                1.      Declaration of Lou Leiker

       Mr. Leiker is a former police officer who now does “investigative and consulting
work, including homicide investigations.” In his declaration, Mr. Leiker states the
following as to the basis of his expertise and opinions:

        2. During my law enforcement career, I worked for 34 years in the Los
        Angeles Police Department, from 1974 — 2009, including 18 years of
        homicide experience involving 400 murder investigations, and toward the
        end of my career, supervision of the biggest gang unit in the United States.
        I participated along with the Federal Bureau of Investigation in a multi-year
        Organized Crime and Drug Enforcement Task Force investigation which
        led to the federal prosecution of more than 40 defendants for drug
        trafficking, money laundering, firearms, and violent offenses. I retired
        from the Los Angeles Police Department in 2009, and since that time, I
        have undertaken investigative and consulting work, including homicide
        investigations. I have attached a copy of my resume as Exhibit 1.

        3. I have reviewed the investigation of the death of Lauren Agee. In the
        course of my review, I analyzed the police file, witness statements given to
        police and others, and photographs of the scene and Lauren Agee’s body. I
        consulted with individuals who conducted interviews with those who were
        with Lauren Agee on the weekend of her death, and I have reviewed the
        declaration of Amy C. Gruszecki, MSFS, DO, FCAP who reviewed Lauren
        Agee’s autopsy.

        Mr. Leiker expressed four opinions in his declaration: that Lauren Agee’s death
was a homicide and not an accident; that her death was covered up by the Defendants;
that the police investigation was insufficient; and that there was evidence of a continued
conspiracy on the part of the Defendants. As to each opinion, Mr. Leiker set forth the
factual basis of the opinion, and attached relevant documents. Ms. Palmer did not file
any countervailing affidavit or declaration to rebut the opinions expressed by Mr. Leiker
but moved to exclude every paragraph of Mr. Leiker’s declaration, except paragraph 2,
quoted above; a written argument was incorporated into the motion and a memorandum
filed in support, but no exhibits were filed in support of the motion. The trial court struck
the following statements from Mr. Leiker’s declaration (stricken statements in italics):14



14
  The words in regular type were not excluded by the trial court, but are included to give context to those
excluded.

                                                    10
9. There is evidence of homicide in this case, including:

      a. There was no water found in Lauren’s lungs. (Exh. 9, at 5.)

      b. There are injuries to Lauren’s body that indicate that she was
      involved in a struggle prior to her death, and are not consistent with
      a fall:

      i. There are symmetrical injuries to Lauren’s back. (Exh. 10.)
      These symmetrical marks consistent with a body being
      dragged.

      ii. Lauren’s clothes and injuries are inconsistent with a fall.
      (Exh. 11.) Lauren’s injuries do not include scrapes on the
      uncovered portions of her body as would be expected if a
      person had fallen through the brush that was present on the
      hillside.
              -
      iii. Lauren’s neck shows signs of hemorrhaging, consistent
      with being held down by the throat. The medical examiner’s
      report did not note the hemorrhaging.

      iv. The bruising on Lauren’s body is not consistent with a fall.
      (See all photo exhibits.)

10. Based upon my experience in law enforcement and my review of the
facts in this matter, it is my conclusion that there is evidence that Lauren
Agee’s death was a homicide caused by the defendants in this case.

12. In addition to the symmetrical scraping on Lauren’s back discussed
above (Exh. 10), while Lauren was found in the water, there was no
indication that she drowned. Thus, Lauren was dead before she entered the
water.

13. Also highly suspicious was the arrival of two of the defendants at the
location of the body within moments after it was found. In addition, Stout
and Lilly called out that their friend was missing. Their statements and
quick arrival indicate prior knowledge on their part as to the placement of
Lauren’s body. In my experience, the likelihood that the defendants would
arrive by chance at the location of the body at the exact same moment it
was found by a third party is almost zero.

20. The medical exam omitted key information that is clearly visible in the
autopsy photographs, including the fact that Lauren’s neck shows signs of
                                     11
        hemorrhaging, consistent with being held down by the throat.

        21. The medical exam listed “possible drowning” as a contributing cause
        of death despite the fact that no fluid was found in Lauren's lungs.

        22. The alcohol rate listed in the medical report does not mention the
        medically recognized potential for fermentation of alcohol post-death
        which can result in raised levels being found.

       In excluding the portions of Mr. Leiker’s declarations, the court stated the
following:

        a. Mr. Leiker is an expert regarding law enforcement considerations and is
        qualified to render an opinion on the sufficiency of the police investigation.

        b. Mr. Leiker is not an expert regarding autopsies or the medical
        circumstances surrounding Ms. Agee’s death and therefore is neither
        capable of concluding that there was a homicide based on these facts, nor
        qualified to render an opinion on the sufficiency of Dr. Deering’s medical
        examination.

        c. Mr. Leiker, as a law enforcement officer but not an otherwise qualified
        expert, is not capable of rendering an expert medical opinion as to the time
        of Ms. Agee’s death.

        d. Mr. Leiker’s statement of an “almost zero”[15] probability is a non-
        scientific opinion which violates the Tennessee Rules of Evidence 702 and
        703 and the first four prongs of the McDaniel test.

       As noted earlier, we review the court’s ruling under the abuse of discretion
standard, succinctly set forth in Lee Medical, Inc. v. Beecher:

        An abuse of discretion occurs when a court strays beyond the applicable
        legal standards or when it fails to properly consider the factors customarily
        used to guide the particular discretionary decision. A court abuses its
        discretion when it causes an injustice to the party challenging the decision
        by (1) applying an incorrect legal standard, (2) reaching an illogical or
        unreasonable decision, or (3) basing its decision on a clearly erroneous
        assessment of the evidence.

15
   Mr. Leiker had specifically opined that “[i]n his experience, the likelihood that the defendants would
arrive by chance at the location of the body at the exact same moment it was found by a third party is
almost zero.”


                                                   12
312 S.W.3d 515, 524 (Tenn. 2010) (internal citations omitted).

        Tennessee Rules of Evidence 701,16 702,17 and 70318 govern the admissibility of
opinions by lay persons and experts. In determining Mr. Leiker’s areas of expertise, the
trial court did not explain the “law enforcement considerations” as to which the court
deemed him qualified to express an opinion or the considerations that rendered him
unqualified to express an opinion as to the other matters. The court did not define an area
of expertise or otherwise set out the parameters of Mr. Leiker’s ability to express an
opinion relative to the evidence he reviewed. Ms. Palmer failed to file any countervailing
affidavits or evidence informing the court’s determinations at paragraphs b and c, above.
Moreover, to the extent the court determined that Mr. Leiker was not qualified to express
an opinion as to all the matters which were stricken, it is apparent that the court did not
consider the opinions admissible under Rule 701.

       Mr. Leiker’s declaration established that he investigated homicides for 18 years as
part of his 34 year history with the Los Angeles Police Department, and that he has
worked as a private investigator, also investigating homicides since that time. The trial
court determined that Mr. Leiker was not qualified to express the opinions which were
stricken by the court, each of which is based on facts in the record or inferences drawn
from those facts. In the stricken portions of paragraphs 9, 12, and 13, Mr. Leiker

16
     Tennessee Rule of Evidence 701 states in pertinent part:

          (a) Generally. If a witness is not testifying as an expert, the witness’s testimony in the
          form of opinions or inferences is limited to those opinions or inferences which are
          (1) rationally based on the perception of the witness and
          (2) helpful to a clear understanding of the witness’s testimony or the determination of a
          fact in issue.
17
     Tennessee Rule of Evidence 702 states:

          If scientific, technical, or other specialized knowledge will substantially assist the trier of
          fact to understand the evidence or to determine a fact in issue, a witness qualified as an
          expert by knowledge, skill, experience, training, or education may testify in the form of
          an opinion or otherwise.
18
     Tennessee Rule of Evidence 703 states:

          The facts or data in the particular case upon which an expert bases an opinion or
          inference may be those perceived by or made known to the expert at or before the
          hearing. If of a type reasonably relied upon by experts in the particular field in forming
          opinions or inferences upon the subject, the facts or data need not be admissible in
          evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury
          by the proponent of the opinion or inference unless the court determines that their
          probative value in assisting the jury to evaluate the expert’s opinion substantially
          outweighs their prejudicial effect. The court shall disallow testimony in the form of an
          opinion or inference if the underlying facts or data indicate lack of trustworthiness.

                                                       13
expressed his opinion as to certain physical and circumstantial evidence; there is nothing
in the record to indicate that he is not qualified to express those opinions, which are
consistent with his experience and training as a homicide investigator.

       For the same reason, Ms. Leiker is fully qualified to express the opinion in
paragraph 10, which is squarely within the scope of his expertise and experience, and is
based on the evidence in the record.

        With respect to paragraphs 20 through 22, in addition to the foregoing reasons, the
trial court erred in excluding these paragraphs because they do not contain opinions that
are contrary to Rule 702 and the statements are supported by evidence in the record. In
these paragraphs, Mr. Leiker compares contradictory pieces of evidence and describes
information that he would expect to see as part of the investigation, given his experience
and expertise.

        For the foregoing reasons, we conclude that the court abused its discretion in
striking paragraphs 9, 10, 12, 13, and 20-22 of Mr. Leiker’s declaration and vacate the
ruling.

              2.      Affidavit of Sheila Wysocki

       Ms. Wysocki is a licensed private investigator who was hired by Sherry Smith to
investigate Ms. Agee’s death. In her declaration, she explained the basis for her expertise:

       I have been a licensed private investigator since 2004. During my career as
       a private investigator I have logged more than 10,000 hours of investigatory
       work. In addition to other general investigatory work, I specialize in cold
       case homicides, violent crime, and missing persons cases. I have attached a
       summary of my scope of experience and the responsibilities associated with
       each area of specialization.

        She also explained how she became involved in the case and what steps she took
in her investigation:

       I was hired by Sherry Smith to investigate the death of her daughter, Lauren
       Agee. In the course of my year-long investigation, I analyzed the police
       file, witness statements given to police and others, and photographs of the
       scene and Lauren Agee’s body. I conducted interviews with those who
       were with Lauren Agee on the weekend of her death, and I consulted with
       Amy C. Gruszecki,[19] MSFS, DO, FCAP to review Lauren Agee’s autopsy.

19
   Dr. Gruszecki is the Medical Director and Chief Forensic Pathologist for American Forensics in
Dallas, Texas; she also works as a contract Medical Examiner for the Mississippi State Medical

                                               14
        I also participated in investigatory experiments at the scene of Lauren
        Agee’s death. These experiments concluded as described below, that
        Lauren Agee could not have fallen into the water from the campsite, and
        even if she had, her body would not have been carried by natural forces to
        the location where it was ultimately found.

       Ms. Wysocki opined that Ms. Agee’s death was not an accident, that defendants
had engaged in a conspiracy and a cover up to hide Ms. Agee’s true cause of death, and
that the police had performed an insufficient investigation into Ms. Agee’s cause of
death. She also performed several experiments meant to recreate the circumstances
surrounding Ms. Agee’s death and recounted those experiments and their results in her
affidavit.

        In her motion to exclude portions of Ms. Wysocki’s affidavit, Ms. Palmer argued
that Ms. Wysocki lacked the expertise necessary to form medical opinions and the
experiments she performed were inadmissible because they did not meet the requirements
set forth in McDaniel v. CSX Trans., Inc., 955 S.W.2d 257 (Tenn. 1997).

       Without indicating the specific statements to which it referred, the trial court ruled
that “[t]he non-factual statements of paragraph 9, experiments of 9(c), 10, 11, second
sentence of 12, 17-21, 22-24, experiments of 25-41, and experiments of 44 of the
Affidavit of Sheila Wysocki are hereby stricken from the record.” In excluding these
portions of the affidavit, the court stated;

        a. Ms. Sheila Wysocki is an expert in private investigation and therefore is
        qualified to search for and investigate facts.

Examiner’s Office. In her declaration she stated, inter alia, that she “reviewed Lauren Agee’s autopsy
report and the photographs taken during the autopsy” and made the following findings:

                a. Lauren Agee’s throat shows some areas of hemorrhage as
                demonstrated in the autopsy photographs. While Lauren’s throat was
                documented through photographs during the autopsy, the hemorrhages
                were not noted in the autopsy report.
                b. The hemorrhaging in Lauren Agee’s throat are consistent with a
                significant fall or pressure to the neck as in strangulation.
                c. Lauren Agee’s back shows a tremendous amount of hemorrhage,
                indicating that she received significant blunt force trauma to her back
                while she was still alive.
                d. The hemorrhage in Lauren Agee’s back represents blunt force trauma
                to the back, consistent with a significant fall or inflicted trauma.

        4. Further investigation and outside of the medical exam is needed to determine the
        manner of death as other than accident.

The trial court did not exclude any portions of Dr. Gruszecki’s declaration.

                                                    15
        b. Ms. Wysocki is not a qualified medical expert, accident reconstruction
        expert nor an expert on formal law enforcement procedures pursuant to the
        Shipley analysis, and therefore cannot testify as an expert as to anything
        outside her private investigation expertise.

        c. Ms. Wysocki’s entire affidavit shall be analyzed as an expert opinion,
        except for her observation of Aaron Lilly in ¶36 of her affidavit.

        d. Ms. Wysocki can testify as a lay witness as to what she heard described
        in ¶36 of her affidavit.

        e. Ms. Wysocki’s Affidavit ¶9 non-factual statements, including
        conclusions that there were bite marks on Ms. Agee’s body are inconsistent
        with expert medical opinions.

        f. Ms. Wysocki and Mr. Melanson20 are not qualified medical experts.

        g. Ms. Wysocki and Mr. Melanson’s experiments lacked any scientific,
        technical, or otherwise specialized knowledge and therefore their
        experiments violated the fifth prong of the McDaniel test.

        h. Ms. Wysocki provided no competent proof regarding Ms. Agee’s death,
        specifically, no proof that Defendant Palmer caused Ms. Agee’s death and
        therefore her statements violate Tennessee Rules of Evidence 701, 702, and
        703.

        i. Ms. Wysocki’s Affidavit ¶25-41 experiments are improper conclusions
        about truthfulness as Ms. Wysocki is neither a behavioral expert, nor a
        medical expert.

       In determining Ms. Wysocki’s area of expertise, the trial court ruled that Ms.
Wyocki is qualified to “search for and investigate facts”; however, Ms. Wysocki also
formulated and rendered opinions as to the issues in the case based on those facts
investigated. See Tenn. R. Evid. 702. In this regard, the court did not specify the
considerations that led the court to render Ms. Wysocki unqualified to express the
opinions that the court ruled were not within what the court characterized as “her private
investigation expertise.” Moreover, as with Mr. Leiker, to the extent Ms. Wysocki was


20
   Mr. Melanson was a sergeant with the White County Sherriff’s Department at the time of Ms. Agee’s
death and, according to his declaration, was “present during the law enforcement response to the death of
Lauren Agee and observed the investigation.”


                                                   16
not qualified to express an opinion as to those matters which the court struck, it is
apparent that the court did not consider the opinions admissible under Rule 701.

        Mr. Wysocki’s affidavit established that she has been a licensed private
investigator for over a decade, and as such, she has “logged more than 10,000 hours of
investigatory work.”21 In paragraph 9(a), Ms. Wysocki states her opinion that Ms. Agee
could not have drowned because there was no water found in her lungs; in paragraph
9(b), Ms. Wysocki states various opinions about the source of Ms. Agee’s injuries; in
paragraph 9(c),22 Ms. Wysocki recounts three “experiments” she performed at the scene
of Ms. Agee’s death, their results, and her conclusions. We conclude that the opinions
stated in paragraph 9 of Ms. Wysocki’s affidavit are permissible opinions within her
expertise as stated in her declaration. As with Mr. Leiker’s declaration, Ms. Palmer
failed to introduce any evidence to refute Ms. Wysocki’s expertise, training, or ability to
express the opinions which were stricken; as a result, there is no evidence in the record to
conclude that she is not qualified to express those opinions, all of which are consistent
with her experience and training as a private investigator.




21
   In the attachment to her affidavit, Ms. Wysocki states that, among other things, she has worked “cold
cases” wherein she reviewed the autopsy and police report, interviewed witnesses, and “recreated crime
scene based on the police report” and “on evidence.”
22
     Paragraph 9(c) of Ms. Wysocki’s affidavit stated:

          c. I participated in three experiments at the scene of Lauren Agee’s death to determine
          whether evidence supported the conclusion that her death resulted from an accidental fall
          from the campsite. These tests all concluded that the theories and conclusions of the
          police investigation were incorrect.

                  i. In the first test, a body the size and weight of Lauren was pushed,
                  pulled, and thrown from various locations at the campsite. In no scenario
                  did the body fall into the water after striking the cliffside in such a way
                  that was consistent with the injuries suffered by Lauren.

                  ii. In the second test, buoys were placed along the waterfront by the
                  campsite. The currents never carried the buoys to the location where
                  Lauren’s body was ultimately found.

                  iii. A third experiment was conducted with milk jugs filled with water to
                  test the flow of water to the second cove. The day the experiment was
                  done the weather conditions were conducive to the jugs reaching the
                  second cove because the wind was blowing in the direction of the second
                  cove. The milk jugs never made it, in fact they floated back to the bank
                  of the cliff where Lauren was camping.


                                                      17
       The trial court also struck the following statements from Ms. Wysocki’s
declaration (stricken statements in italics):23

          10. Based upon my experience as an investigator, the facts discovered
          during my investigation and the evidence of a cover-up discussed below, it
          is my conclusion that Lauren Agee’s death was a homicide caused by the
          defendants in this case.

          11. Based on my experience, there is strong evidence that the defendants
          conspired to cover up Lauren Agee’s homicide.

          12. Lauren’s body was found by the water’s edge. As discussed above,
          however, the body could not have been carried by natural forces to the
          location where it was ultimately found.

For the same reasons that the statements in paragraph 9 are admissible, these paragraphs
contain opinions which are within the scope of her expertise and experience and are
based on the evidence in the record.

        In paragraphs 17 through 21, Ms. Wysocki expressed her opinion that the police
investigation into Ms. Agee’s death was inadequate and stated the evidence which she
felt supported that opinion. With respect to these paragraphs, in addition to the foregoing
reasons, we see no reason that Ms. Wysocki, who the trial court held was qualified to
search for and investigate facts, was not qualified to express an opinion on the adequacy
of the police investigators investigation; Ms. Wysocki can opine as to the adequacy and
conduct of an investigation, whether it is performed by a private investigator or a
government investigator.

        Paragraphs 22 through 24 of Ms. Wysocki’s affidavit are almost verbatim24
recitations of paragraphs 20 through 22 of Mr. Leiker’s declaration, quoted previously.

23
  The words in regular type were not stricken by the trial court, but are included to give context to those
excluded.
24
     Paragraph 22 of Ms. Wysocki’s affidavit states:

          22. The medical exam omitted key information that is clearly visible in the autopsy
          photographs, including:

                  a. Lauren’s neck shows signs of hemorrhaging, indicating that she was
                  strangled or
                  held down by the throat;
                  b: The bite-mark on Lauren’s chest;
                  c. The imprint on Lauren’s left knee; and
                  d. The U-shaped marks on her body.

                                                       18
For the same reason that Mr. Leiker was qualified and competent to give those opinions,
so was Ms. Wysocki.

        In paragraphs 25 through 41, Ms. Wysocki recounted the facts and her
observations arising from an interview she conducted with Ms. Palmer, during which she
also talked with Brix Gamble and Aaron Lilly. The trial court excluded these paragraphs,
stating that they were “experiments” and contained “improper conclusions about
truthfulness” because “Ms. Wysocki is neither a behavioral expert, nor a medical expert.”
The exclusion of these paragraphs was error for two reasons. First, the paragraphs
contain many factual statements that are based on Ms. Wysocki’s investigation of the
circumstances of Lauren Agee’s death and her interview with Ms. Palmer and the others;
there is no basis in law for the exclusion of those facts. Second, the opinions expressed by
Ms. Wysocki in the paragraphs do not require expert qualifications; Ms. Wysocki’s
statements that Ms. Palmer was “insincere” and “rehearsed,” that Mr. Gamble was
“panicky” and “weak,” that Mr. Lilly was “agitated,” do not call for expertise within the
purview of Rule 702, but are opinions that are “rationally based on the perception of the
witness” and “helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue” within the meaning of Rule 701.

       In paragraph 44, Ms. Wysocki stated:

       44. Based on the physical evidence, the circumstantial evidence, and the
       behavior of defendants, it is my conclusion that Lauren Agee’s death was a
       homicide caused by the defendants in this case.

        This opinion flows from Ms. Wysocki’s expertise in private investigation, which
the court determined qualified her “to search for and investigate facts.” The court abused
its discretion when it limited her ability to express her opinion as to the results of her
investigation. Again, there was no countervailing affidavit as to either her expertise or
her opinions, merely Ms. Palmer’s argument.

       For the foregoing reasons, we conclude that the court abused its discretion in
striking those portions of Ms. Wysocki’s affidavit and vacate the ruling.

              3.     Declaration of Chris Yarchuck

       Mr. Yarchuck is a reserve deputy with the White County Sheriff’s Department and
was the head of security for the WakeFest event; he states in his declaration that he “was
present during the law enforcement response to [Lauren Agee’s] death and observed the
investigation.” As the basis of his expertise he stated:

       I have worked in law enforcement as an officer since 2011, and I graduated
       from the police academy in 2012. Beginning in 2014 I worked for the
       White County Sheriff’s Department as a patrolman; in 2016 I made
                                            19
       Detective at the rank of [Sargeant]. Currently, I remain a reserve deputy
       with the White County Sheriff’s Department, and I am Director of Security
       for Tootsie’s Worldwide Entertainment.

      In her motion to exclude paragraphs 9 through 13 of Mr. Yarchuck’s declaration,
Ms. Palmer argued:

       Mr. Yarchuk is unqualified to make the majority of observations and
       conclusions he made in his Declaration, where his statements are based
       upon personal knowledge they exceed the realm of lay opinion testimony,
       his conclusions exceed the degree in which he is qualified as an expert, and
       his methods at arriving at his expert opinions are unreliable.

The trial court granted the motion in part, striking all or part of paragraphs 4, 5, 6, 7, 11
and 12; those paragraphs state:25

       4. On July 26, 2015, I was informed that there was a body in the water in
       Center Hill Lake. As I took a motorized boat over to the location of the
       body, I passed two men, Aaron Lilly and Christopher Stout, who were
       sitting in a canoe docked at a houseboat nearby. As my boat approached the
       body, Lilly and Stout followed us in their canoe and called out to us that
       their friend was missing.

       5. Based on my firsthand impressions and my experience in law
       enforcement, the response by Lilly and Stout was odd, indicating to me that
       they already knew where the body was located in the water and that they
       were waiting for the body to be found.

       6. Upon discovering the body in the lake, I knew immediately that the
       victim did not drown and that she had died before entering the water. In my
       experience as a member of law enforcement dive recovery teams, drowning
       victims sink due to water in the lungs. This body, in contrast, was floating
       which indicated that the victim did not have water in her lungs and did not
       drown.

       7. The injuries I observed on Lauren Agee’s body and the damage to her
       clothes, however, were not consistent with a fall down a cliff either. She did
       not have scrapes on her arms and legs from brush that [would] occur in a
       fall down the particular cliff at issue, and she did not have mud, grass, or
       other stains on her clothes that would likewise occur.
25
    The court stated it was striking “paragraphs 4 (regarding its conclusions), 5, 6 (regarding the
mentioned cause of death), 7 (regarding its medical conclusions), 11, and 12,” but did not specify the
particular words or phrases in paragraphs 4, 6 and 7.

                                                 20
        11. I later conducted an experiment at the scene of Lauren Agee’s death to
        determine whether evidence supported the conclusion that her death
        resulted from an accidental fall from the campsite. In this test, I pushed,
        pulled, and threw a dummy the size and weight of Lauren Agee was from
        various locations at the campsite. As I initially believed would be the case
        from my firsthand knowledge and my experience as a detective, in no
        scenario did the body fall into the water after striking the cliffside in such a
        way that was consistent with the injuries suffered by Lauren Agee.

        12. Based on this test I concluded that Lauren Agee did not die in the
        manner so concluded by law enforcement in this case.

In excluding these portions of Mr. Yarchuk’s declaration, the court stated:

        a. Mr. Chris Yarchuk is an expert in police procedures.

        b. Mr. Yarchuk is not qualified to give medical, behavioral or accident
        reconstruction expert testimony and therefore is not capable of rendering an
        expert medical opinion as to the cause of Ms. Agee's death.

        c. Mr. Yarchuk’s Affidavit ¶5 is based on speculation and no scientific
        evidence.

        d. Mr. Yarchuk’s Affidavit ¶8 was admissible for purposes of the Motion
        for Summary Judgment hearing, however, provides no proof that Defendant
        Palmer was involved in harming Ms. Agee.

        e. Mr. Yarchuk’s Affidavit ¶11-12 experiments lack any scientific,
        technical, or otherwise specialized knowledge or data and therefore their
        experiments violated the fifth prong of the McDaniel test.[26]

        In determining Mr. Yarchuck’s areas of expertise, the trial court did not explain
either the “police procedures,” as to which the court deemed him qualified to express an
opinion, or the considerations that rendered him unqualified to express an opinion as to
the other matters upon which he opined; neither did the court define the limits of Mr.
Yarchuck’s ability to express an opinion relative to the evidence he reviewed. The court
dismissed paragraphs 11 and 12 without an explanation of the perceived inadequacy of
the experiment. Again, to the extent Mr. Yarchuck was not qualified to express an
opinion as to those matters which the court struck, it is apparent that the court did not
consider the opinions admissible under Rule 701.
26
   The fifth prong of the test referred to is “whether the expert’s research in the field has been conducted
independent of litigation.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997).

                                                    21
        Mr. Yarchuk’s declaration stated that he has been a law enforcement officer since
2011, a police officer since 2012, a patrolman with the White County Sheriff’s
Department since 2014 and a detective since 2016. In the stricken portions of paragraphs
4 through 7, Mr. Yarchuck expressed his opinion as to certain physical and circumstantial
evidence; as with the other affidavits and declarations, there was no countervailing
affidavit as to either Mr. Yarchuk’s expertise or opinions, only argument. The stricken
opinions were consistent with his experience and training.    Similarly, in paragraphs 11
and 12, Mr, Yarchuk describes an experiment he conducted, and the conclusion he
reached based on the results of the experiment. As with Mr. Wysocki, the court abused
its discretion in striking his opinion; any reservation the court had was, first, not
supported by evidence in the record, and second, a matter of the weight to be afforded the
results of the test.

                 4.     Affidavit of Ryan Melanson

          Ms. Palmer moved to strike paragraphs 4 and 6 of Mr. Melanson’s affidavit, which
stated:

          4. On July 26, 2015 after Lauren Agee’s body was found, I sat with Aaron
          Lilly and Christopher Stout on a boat while the DeKalb County Sheriffs
          officers looked over the campsite where the suspects and Lauren Agee
          camped. While we engaged in only minimal conversation, Lilly and Stout’s
          general demeanor was not consistent with that of someone who had just
          been informed of a friend’s death, in my experience. They did not express
          surprise or shock at the victim’s death, but rather expressed only
          nervousness. They expressed no sympathy or concern regarding Lauren
          Agee’s death.

          6. Lauren Agee’s death was suspicious and the official explanation of her
          death provided by the DeKalb County Sheriff’s department could not have
          been correct. First, Lauren Agee’s body could not have landed in the water
          had she fallen from the cliff above. This fact is plain from my observation
          of the cliffside that day. Further, the current at that location was flowing in
          the opposite direction from where her body was found. Accordingly, even
          if her body had fallen into the water in some way, it would not have been
          carried by natural forces to where it was ultimately found. This means her
          body was moved.

Ms. Palmer argued that the paragraphs should be excluded because:

          (a) [The declaration] is not in compliance with this Court’s February 24,



                                                22
           2017 Order,[27] (b) Mr. Melanson is unqualified to make the majority of
           observations and conclusions he made in his Affidavit, where his
           statements are based upon personal knowledge they exceed the realm of lay
           opinion testimony, and (c) his methods at arriving at his opinions are
           unreliable.

Ms. Palmer did not include a countervailing affidavit or declaration in support of her
motion.

           The trial court agreed and struck the paragraphs, stating:

           a. Mr. Ryan Melanson is an expert in law enforcement, however Mr.
           Melanson is neither a behavioral expert, nor an expert in accident
           reconstruction.

           b. Mr. Melanson’s Affidavit ¶ 4 provides improper conclusions and
           therefore violates Tennessee Rules of Evidence 702 and 703.

           c. Mr. Melanson’s Affidavit ¶ 6 provides improper conclusions and
           therefore violates Tennessee Rules of Evidence 702 and 703.

        In determining Mr. Melanson’s areas of expertise, the trial court did not explain
 the opinions Mr. Melanson could express as an expert in “law enforcement” or the
 considerations that the court determined rendered him unqualified to express an opinion
 as to the matters which were stricken. Again, to the extent the court determined that Mr.
 Melanson was not qualified to express an opinion as to the matters stricken, the court did
 not consider the opinions admissible under Rule 701.

           As to his qualifications and expertise, Mr. Melanson stated in his declaration:

           I have worked in law enforcement since 2006. I have a certificate in law
           enforcement from Walter State Community College which is one of the
           most respected law enforcement training facilities in the Southeast. At the
           time that Lauren Agee died, I was a Sargeant with the White County
           Sheriff’s Department. I continue to work in law enforcement both formally
           and through private contracts under the commission of the White County
           Sheriff’s Department. I was present during the law enforcement response to
           the death of Lauren Agee and observed the investigation.

Again, there is no evidence in the record to support Ms. Palmer’s argument that, to the
extent paragraphs 4 and 6 contained opinions, Mr. Melanson’s training and experience
27
     This order was not located in the record on appeal.

                                                      23
did not qualify him to express them.

        C.      Ms. Palmer’s Invocation of her Fifth Amendment Privilege28

       Ms. Palmer invoked her Fifth Amendment privilege, declining to answer 27 out of
35 allegations of the Complaint; 10 out of 14 interrogatories; all requests for production
of documents; 91 out of 100 responses in her deposition on written questions; all requests
for admissions; and all of the statements of undisputed material facts put forth by Ms.
Smith in response to the motion for summary judgment. In her response to the motion
for summary judgment, Ms. Smith argued that “given the evidence in the record in
support, an adverse inference that Hannah Palmer committed a tortious act in Tennessee
is appropriate.” The court declined to draw an adverse inference, holding that there was
no corroborating evidence to support the inference. On appeal Ms. Smith argues that this
was error; in addition, she argues that, pursuant to Tennessee Rule of Civil Procedure
8.04, the factual allegations of the complaint as to which Ms. Palmer had invoked her
Fifth Amendment privilege should had been deemed admitted and summary judgment
denied.

                1.      Tennessee Rule of Civil Procedure 8.04

        Tennessee Rule of Civil Procedure 8.04 states:

               Averments in a pleading to which no responsive pleading is required
        or permitted shall be taken as denied or avoided. Averments in a pleading
        to which a responsive pleading is required are admitted when not denied in
        the responsive pleading, except that the following allegations must be
        proved:

                       (1) Those against a person under any disability;
                       (2) Those against executors or administrators;
                       (3) Those necessary to sustain an action for divorce or
                annulment;
                       (4) Those against persons whose names and residences
                are unknown, where there has been no attachment of
                property.


28
   No person can “be compelled in any criminal case to be a witness against” themselves. U.S. Const.
amend. V. While the Fifth Amendment references a criminal case, federal courts have interpreted the
Fifth Amendment to extend to any type of proceeding, including civil trials. Akers v. Prime Succession of
Tenn., Inc., 387 S.W.3d 495, 505-06 (Tenn. 2012) (citing Lefkowitz v. Turley, 414 U.S. 70, 77, (1973);
Kastigar v. U.S., 406 U.S. 441, 444, (1972)). The U.S. Supreme Court has deemed the privilege
incorporated into the Fourteenth Amendment, and thus made it applicable to the states. Malloy v. Hogan,
378 U.S. 1, 8 (1964).

                                                   24
                        (5) Those against persons whose parental rights are
                  sought to be terminated.

We have not been cited to, nor have we found, Tennessee authority addressing the
question of whether the assertion of the Fifth Amendment privilege in an answer filed in
a civil case operates as an admission for the purpose of Rule 8.04; it has been addressed
in other jurisdictions, and we allow the reasoning in those cases to inform our analysis in
this case.

       The touchstone federal case on this issue is Nat’l Acceptance Co. of Am. v.
Bathalter, wherein the court stated the question succinctly: “[t]his case presents the
question whether a civil defendant’s assertion of his Fifth Amendment privilege against
self-incrimination in answer to averments in the plaintiff’s complaint may properly be
deemed an admission of those averments pursuant to [Federal Rule of Civil Procedure
8(d)].” 705 F.2d 924, 925 (7th Cir. 1983). In that case, the defendant, who had been
sued for breach of fiduciary duty, fraud, and unjust enrichment, invoked his Fifth
Amendment privilege in responding to the salient allegations of the complaint.29 Id. at
926. The trial court deemed admitted those allegations to which the defendant had
asserted the privilege and granted the plaintiff judgment on the pleadings. Id. The
Seventh Circuit reversed the trial court, drawing upon Spevack v. Klein and Garrity v.
New Jersey, cases in which the Fifth Amendment privilege had been invoked in
noncriminal proceedings; the Seventh Circuit held that “[t]reatment of the claim of
privilege as an admission would . . . impose too great a cost. . . . [T]here cannot be a
general rule that a claim of privilege as to an allegation is to be treated as an admission of
it.” Id. at 932.30 See also Mayo v. Ford, 184 A.2d 38, 40 (D.C. 1962) (“The Fifth

29
     In responding to the allegations of the complaint, the defendant stated:

          The subject matter of the complaint has been the basis for at least one [grand jury]
          investigation conducted by the U.S. Attorney for the Northern District of Illinois, Eastern
          Division. Exercising his rights under the Fifth Amendment to the Constitution of the
          United States, defendant respectfully declines to answer any of the remaining allegations
          of the complaint on the grounds that his answers might tend to incriminate him.
          Defendant further respectfully requests that such declination have the same procedural
          effect under Rule 8(d), F. R. Div. P., as if he specifically denied said allegations.

Nat’l Acceptance Co. of Am. v. Bathalter, 705 F.2d 924, 926 (7th Cir. 1983).
30
   In Spevack v. Klein, 385 U.S. 511 (1967), an attorney had invoked his Fifth Amendment privilege in
the course of a disciplinary hearing and was disbarred; on appeal the U.S. Supreme Court held that the
Fifth Amendment prohibits the imposition of any sanction which makes the invocation of the privilege
“costly.” 385 U.S. at 515. In Garrity v. New Jersey, 385 U.S. 493 (1967), decided on the same day as
Spevack, the Supreme Court held that a policeman’s testimony at a disciplinary proceeding, which was
compelled by the threat of discharge, could not be used in a subsequent criminal proceeding. 385 U.S. at
500. The Court held that the threat of discharge functioned to make the testimony coerced, in violation of
the Fifth Amendment. Id. at 497-498.

                                                      25
Amendment protection against forced self-incrimination would be meaningless and
hollow if the objective sought through the asking of the question could be achieved as
well by a refusal to answer as by the answer itself.”) In Rogers v. Webster, Sixth Circuit
adopted the holding of National Acceptance:

       We agree with the sense of the Seventh Circuit in National Acceptance that,
       when a defendant in a civil proceeding invokes properly his Fifth
       Amendment privilege against compulsory self-incrimination in lieu of
       answering the averments contained in the pleading of his adversary, the
       District Court should treat his claim of privilege as the equivalent of a
       specific denial and put the plaintiff to his proof of the matter covered by the
       “denial.”

776 F.2d 607, 611 (6th Cir. 1985). We agree with the rationale and holdings of National
Acceptance and Rogers; applying them to the case before us, we hold that Ms. Palmer’s
assertion of her Fifth Amendment privilege in answer to the allegations of the complaint
cannot, in and of itself, be taken as an admission of the allegations in accordance with
Rule 8.04. This holding, however, does not end the inquiry.

       As noted in Rogers:

       . . . when a defendant in a civil proceeding invokes properly his Fifth
       Amendment privilege against compulsory self-incrimination in lieu of
       answering the averments contained in the pleading of his adversary, the
       District Court should treat his claim of privilege as the equivalent of a
       specific denial and put the plaintiff to his proof of the matter covered by the
       “denial.” An assertion of the privilege, however, does not give the
       defendant absolute discretion to circumvent the provisions of Rule 8(d); the
       person who claims the privilege is not the sole judge of its validity, and, if
       it clearly appears that he is mistaken as to its justification, the district court
       may require him to answer.

776 F. 2d at 611 (internal citations omitted). Here, the trial court did not make an
independent assessment of the validity of Ms. Palmer’s invocation of the privilege as to
the specific allegations of the complaint and, if the claim was not valid, allow her the
opportunity to admit or deny the allegation; if she then refused to admit or deny the
allegation, Rule 8.04 would apply and deem the allegation admitted.31 On the record

31
   The necessity for the court to make such an independent assessment is underscored by the following
holding in Rogers:

       When the Fifth Amendment privilege is invoked in a judicial proceeding, the person
       claiming its protection ordinarily “receives a judicial ruling at that time on the validity of
       his claim, and he has an opportunity to reconsider it before being [penalized] for refusal

                                                    26
before us, there is no motion to deem the allegations of the complaint admitted or asking
the court to make a determination of the validity of the claim as to specific allegations.
Upon proper motion being filed, the court should make such a determination.

                2.       Negative Inferences

       Courts have recognized that, in a civil proceeding where the parties are on a
“somewhat equal footing” and one of the parties invokes his or her Fifth Amendment
privilege, the invocation of the privilege ‘“should not obliterate another party’s right to a
fair proceeding.’” Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495, 506
(Tenn. 2012) (quoting Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir. 1996)). In
addressing the parties’ competing interests, courts have allowed the trier of fact to invoke
adverse inferences against the party invoking the privilege in certain circumstances. See
Akers, 387 S.W.3d at 506.32 In Akers, our Supreme Court “agree[d] with the standard
adopted by Doe [ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258]” and held:

        [T]he trier of fact may draw a negative inference from a party’s invocation
        of the Fifth Amendment privilege in a civil case only when there is
        independent evidence of the fact to which a party refuses to answer by
        invoking his or her Fifth Amendment privilege. In instances when there is
        no corroborating evidence to support the fact under inquiry, no negative
        inference is permitted.

387 S.W.3d at 506. Before an adverse inference is permitted:

        A plaintiff must present corroborating evidence regarding the specific fact
        to which the defendant refuses to answer. In determining whether a
        negative inference is permissible, the privilege analysis is applied on a
        question-by-question basis, and “therefore . . . the privilege necessarily
        attaches only to the question being asked and the information sought by that
        particular question.”


        to answer.” Not affording one who asserts the privilege an opportunity to answer, once
        his claim of privilege has been rejected, is to penalize him merely for asserting the
        privilege.

776 F.2d at 612 (internal citation omitted).
32
     See also Levine v. March, 266 S.W.3d 426, 442 (Tenn. Ct. App. 2007) (“[T]he majority of
jurisdictions, including Tennessee, permit fact-finders to draw adverse inferences against parties who
invoke their Fifth Amendment rights in a civil case.”); Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d
1258, 1264 (9th Cir. 2000) (“[N]ot allowing the negative inference to be drawn poses substantial problems
for an adverse party who is deprived of a source of information that might conceivably be determinative
in a search for the truth.”).

                                                   27
Id. at 506-07 (quoting Doe, 232 F.3d at 1265) (citations omitted) (emphasis in Akers).

       In this case, the trial court acknowledged that Tennessee law allows a jury to draw
a negative inference from Ms. Palmer’s refusal to answer questions about Ms. Agee’s
death; the court held that “the Plaintiff has failed to produce any evidence that Defendant
Palmer either intentionally, negligently, or recklessly caused any harm to Ms. Agee,” that
“[n]o evidence has linked anyone to Ms. Agee’s death or shown what further
investigation would have discovered,” that “no evidence corroborates the facts supporting
the inquiry in civil cases, pursuant to Akers,” and that, even if everything the experts’
affidavits were taken as true, it would not be enough to get a negative inference ruling
against the defendant Palmer.”

       Our resolution of this issue is complicated by the fact that the court’s ruling as to
any negative inference was done in the context of considering the summary judgment
motion and materials. As noted in the quote above, Akers allows that the plaintiff should
be afforded the opportunity to present corroborating evidence as to each fact for which it
seeks a negative inference; this was not done in this case, inasmuch as plaintiff was
responding to summary judgment. As a result, the trial court determined the issue or
negative inference as a blanket matter, weighing evidence and determining that Ms.
Smith was not entitled to a negative inference as to any fact for which the privilege was
asserted; the court used an incorrect analysis in its decision.

       On remand, if presented with the question of whether the Ms. Smith is entitled to a
negative inference, the trial court should analyze the specific fact and determine whether
there is independent, corroborating evidence of that fact. Further, the trial court is the
ultimate arbiter of the Fifth Amendment privilege; “[i]t is for the court to say whether his
silence is justified,” and the court has the power to compel an answer from one invoking
the Fifth Amendment privilege “if ‘it clearly appears to the court that [person invoking
the privilege] is mistaken.’” Hoffman v. United States, 341 U.S. 479, 486 (1951) (quoting
Temple v. Commonwealth, 75 Va. 892, 899 (Va. 1881)); see also Rogers v. Webster, 776
F.2d 607, 611 (6th Cir. 1985).33

          D.      Ms. Palmer’s Claim for Damages for the Appeal

      Ms. Palmer asserts that this appeal is frivolous and seeks an award of damages
pursuant to Tennessee Code Annotated section 27-1-122.34 To find an appeal frivolous,

33
    “[G]iven the tension between the rights of both parties in civil matters, the United States Supreme
Court has ruled that the trier of fact may under certain circumstances be allowed to draw adverse
inferences from a party's invocation of his Fifth Amendment privilege.” Akers, 387 S.W.3d 505-06.
34
     Tennessee Code Annotated section 27-1-122 states:

          When it appears to any reviewing court that the appeal from any court of record was

                                                   28
the appeal must be wholly without merit and lacking in justiciable issues. See Davis v.
Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). An appellate court’s decision on
this issue is discretionary, and this court is generally reluctant to award such damages
because we do not want to discourage legitimate appeals. Whalum v. Marshall, 224
S.W.3d 169, 180-81 (Tenn. Ct. App. 2006). Exercising our discretion, and in light of the
resolution of the issues in this appeal, we deny the request.

III.   CONCLUSION

        For the foregoing reasons, we reverse the grant of summary judgment, vacate the
rulings on the motions in limine that are at issue in this appeal, vacate the holdings
relative to defendant’s invocation of her Fifth Amendment privilege, and remand the case
for further proceedings consistent with this opinion.




                                                        RICHARD H. DINKINS, JUDGE




       frivolous or taken solely for delay, the court may, either upon motion of a party or of its
       own motion, award just damages against the appellant, which may include, but need not
       be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a
       result of the appeal.

                                                   29
