                                                                                           02/06/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                              November 14, 2017 Session

        CHRISTOPHER O’DNEAL, ET AL. v. BAPTIST MEMORIAL
                   HOSPITAL-TIPTON, ET AL.

                   Appeal from the Circuit Court for Tipton County
                       No. 6692     Joe H. Walker, III, Judge
                      ___________________________________

                           No. W2016-01912-COA-R3-CV
                       ___________________________________

Plaintiff parents of infant who died in child birth appeal a jury verdict in favor of the
medical provider defendants. During voir dire, the trial court denied Plaintiffs’ request for
additional peremptory challenges under Tennessee Code Annotated section 22-3-104(b)
on the basis that Plaintiffs were bringing their claim on behalf of the decedent infant.
Based upon the Tennessee Supreme Court’s decision in Beard v. Branson, 528 S.W.3d
487 (Tenn. 2017), we conclude that the trial court erred in treating Plaintiffs as a single
“party plaintiff” and that Plaintiffs were entitled to eight peremptory challenges under the
statute at issue. We also hold that under Tuggle v. Allright Parking Sys., Inc., 922
S.W.2d 107 (Tenn. 1996), the trial court’s error resulted in prejudice to the judicial
process that necessitates a new trial. All other issues are pretermitted. Reversed and
remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.

W. Bryan Smith, Memphis, Tennessee, for the appellants, Christopher O’DNeal, and
Cassani Turner.

James L. Kirby and Tabitha F. McNabb, Memphis, Tennessee, for the appellee, Baptist
Memorial Hospital-Tipton.

James T. McColgan and Sherry S. Fernandez, Cordova, Tennessee, and Sybil V. Newton,
Birmingham, Alabama, for the appellees, Thomas J. Caruthers, Jr., M.D., and Premier
Women’s Care, Inc.
                                              OPINION

                                            BACKGROUND

       Plaintiffs/Appellants Christopher O’Dneal (“Father”) and Cassani Turner
(“Mother,” and together with Father, “Plaintiffs”) are the parents of an infant who died in
child birth in February 2009 at Defendant/Appellee Baptist Memorial Hospital-Tipton
(“the Hospital”). On April 6, 2010, Mother, individually and as administrator of the
child’s estate, and Father, individually and as the child’s next of kin, filed a complaint
against the Hospital, the treating physician Thomas Caruthers, Jr., M.D., and Premier
Women’s Care, Inc. (“Premier Women’s Care” and together with the Hospital and Dr.
Caruthers, “Defendants”). The complaint alleged negligence and vicarious liability for
the wrongful death of their child. Eventually, Plaintiffs were permitted to file an amended
complaint to raise claims of negligent infliction of emotional distress. Defendants in turn
filed separate answers, denying that they committed negligence or that their negligence
was the proximate cause of the infant’s death. Dr. Caruthers and Premier Women’s Care
also asserted that neither Mother nor Father had individual claims apart from the
wrongful death action and that the individual claims of both parents should be dismissed.1

       Prior to trial, Defendants also filed a motion in limine to exclude a “home video”
taken of the child’s birth. The trial court granted the motion to exclude the video by order
of November 30, 2015, finding that the prejudicial effect of the evidence substantially
outweighed its probative value.

        Trial began on May 10, 2016, and lasted six days. During voir dire, Plaintiffs
requested eight peremptory challenges pursuant to Tennessee Code Annotated section 22-
3-104(b), arguing that eight challenges were required because there were two “party
plaintiffs.” The trial court denied the request, finding that “it’s really the estate’s lawsuit”
and granted Plaintiffs four peremptory challenges, with two additional challenges for
alternates. Defendants were given eight challenges without objection. Plaintiffs utilized
all of their peremptory challenges during voir dire and indicated on a form contained in
the record that they had no remaining challenges. Also during voir dire, Plaintiffs lodged
a challenge to the exclusion of a juror by the Hospital on the basis of race. The trial court
determined that Plaintiffs had set forth a prima facie challenge under Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Hospital then stated that the
exclusion of the juror was on the basis of her possible bias in favor of Dr. Caruthers and
an alleged derogatory name used by the potential juror for one of the Hospital’s doctors.
The trial court thereafter allowed the juror to be excluded.

        1
         Dr. Caruthers and Premier Women’s Care filed separate answers. Both answers, however,
contended that the correct style of this case should be “Christopher R. O’Dneal and Cassani D. Turner, for
and on behalf of [the child].” No motion to dismiss on this basis was filed by any party and neither
Mother nor Father’s individual claims were dismissed from this case prior to trial.
                                                  -2-
       During trial, much of the testimony concerned whether the child’s death was due
to negligence or a pre-existing condition with a multitude of experts testifying for each
side. At the close of proof, the trial court granted a directed verdict as to Plaintiffs’
negligent infliction of emotional distress claim, generally finding that the claim had been
abandoned. Thereafter, the jury returned a verdict finding that Dr. Caruthers and the
Hospital were guilty of medical negligence but that the child’s death was not caused by
Defendants’ negligence. The trial court entered judgment on the jury verdict on May 18,
2016. Plaintiffs later filed a motion for new trial, which was denied by order on August 8,
2016. This appeal followed.

                                          ISSUES PRESENTED

        Plaintiffs raise three issues in this case, which are taken and slightly restated from
their brief:

        1. Whether the trial court erred in limiting Plaintiffs to less than eight
           peremptory challenges?
        2. Whether the trial court erred in denying Plaintiffs’ challenge to the
           striking of an African-American juror.
        3. Whether the trial court erred in excluding the video of the delivery of
           the infant at trial.

                                              DISCUSSION

       We begin with Plaintiffs’ first issue: that the trial court erred in determining that
they were entitled to less than eight peremptory challenges under Tennessee Code
Annotated section 22-3-104 in this wrongful death action.2 “The right to challenge
peremptorily is the right to exclude the prospective juror without assigning any reason for
the challenge. Peremptory challenges are allowed by the Legislature as an act of grace
and can be exercised as a matter of right only to the extent allowed by statute.” Tuggle v.


        2
           At oral argument, Plaintiffs also asserted that additional peremptory challenges were proper
because of the negligent infliction of emotional distress claims that had been raised in Plaintiffs’ amended
complaint. A thorough review of Plaintiffs’ initial brief to this court, however, reveals that Plaintiffs did
not argue that their negligent infliction of emotional distress claims entitled them to additional peremptory
challenges. Rather, the first mention of the negligent infliction of emotional distress claims raised by
Plaintiffs was in their reply brief in a rather conclusory response to Defendants’ briefs. As such, any
argument that the negligent infliction of emotional distress claims were at issue with regard to the
peremptory challenges allotted to Plaintiffs was waived. See Sneed v. Bd. of Prof’l Responsibility of
Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“[W]here a party fails to develop an argument in
support of his or her contention or merely constructs a skeletal argument, the issue is waived.”); State v.
Walter Francis Fitzpatrick, III, No. E2014-01864-CCA-R3-CD, 2015 WL 5242915, at *8 (Tenn. Crim.
App. Sept. 8, 2015), perm. app. denied (Tenn. Feb. 18, 2016), cert. denied, 137 S. Ct. 72 (2016) (“Issues
raised for the first time in a reply brief are waived.”).
                                                   -3-
Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn. 1996). In deciding this issue, we
are called upon to interpret various statutes. As explained by our supreme court:

      When determining the meaning of statutes, our primary goal “is to carry out
      legislative intent without broadening or restricting the statute beyond its
      intended scope.” Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)
      (quoting Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)).
      We presume that every word in a statute [or rule] has meaning and purpose
      and that each word’s meaning should be given full effect as long as doing
      so does not frustrate the [drafter’s] obvious intention. Id. Words “‘must be
      given their natural and ordinary meaning in the context in which they
      appear and in light of the statute’s general purpose.’” Id. (quoting Mills v.
      Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)). When a statute’s
      meaning is clear, we “‘apply the plain meaning without complicating the
      task’ and enforce the statute as written.” Id. (quoting Lind, 356 S.W.3d at
      895).

Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015). Issues of statutory
construction are reviewed by this Court de novo with no presumption of correctness.
McFarland v. Pemberton, 530 S.W.3d 76, 91 (Tenn. 2017) (quoting Martin v. Powers,
505 S.W.3d 512, 518 (Tenn. 2016)).

        As such, we begin with the language of the statute at issue. See McFarland, 530
S.W.3d at 91 (quoting Martin, 505 S.W.3d at 518) (“[W]e begin with the actual words of
the statute . . . .”)). Section 22-3-104 provides, in relevant part:

      (a) Either party to a civil action may challenge four (4) jurors without
      assigning any cause.
      (b) In the event there is more than one (1) party plaintiff or more than one
      (1) party defendant in a civil action, four (4) additional challenges shall be
      allowed to such side or sides of the case; and the trial court shall, in its
      discretion, divide the aggregate number of challenges between the parties
      on the same side, which shall not exceed eight (8) challenges to the side,
      regardless of the number of parties. Even when two (2) or more cases are
      consolidated for trial purposes, the total challenges shall be eight (8), as
      provided in this subsection (b).

Thus, where a case involves more than one “party plaintiff,” the plaintiffs “shall” be
given eight “peremptory” challenges. The Tennessee Supreme Court has previously held
that Tennessee’s civil peremptory challenge statute mandates that the trial court provide
the statutorily required number of peremptory challenges where there are multiple party


                                          -4-
plaintiffs.3 See Tuggle, 922 S.W.2d at 107 (holding that the trial court erred in not
providing the two party plaintiffs four peremptory challenges each). Moreover, the court
held that no showing of “antagonistic interests” between the plaintiffs was required to
trigger the additional peremptory challenges mandated by the statute. Id. (“Fatal to the
defendant’s argument is the absence of language in the Tennessee statute which
conditions additional challenges on the antagonistic interests of the party plaintiffs.”).

        Although the term “party plaintiff” is not defined by section 22-3-104, the
Tennessee Supreme Court has previously indicated that the term party “‘is a technical
word with a precise legal meaning’” that “‘refers to those by or against whom a legal suit
is brought; the party plaintiff or defendant.’” State v. Flood, 219 S.W.3d 307, 314 (Tenn.
2007) (quoting State v. Antillon, 229 Neb. 348, 426 N.W.2d 533, 538 (1988), superseded
by statute on other grounds, 1989 Neb. Laws, L.B. 443, as recognized in State v.
Andersen, 232 Neb. 187, 440 N.W.2d 203, 205 (1989)); see also Boles v. Smith, 37
Tenn. 105, 107 (1857) (“By the term party, in general, is meant one having a right to
control the proceedings, to make a defence [sic], to adduce and cross-examine witnesses,
and to appeal from the judgment.”). “Plaintiff” is defined as “[t]he party who brings a
civil suit in a court of law.” Black’s Law Dictionary 1267 (9th ed. 2009). Because both
Mother and Father are named plaintiffs in this case, they argue that they too should have
been awarded four peremptory challenges each, for a total of the eight peremptory
challenges mandated under the statute. Any fewer, they argue, requires reversal. See id. at
108 (holding that the trial court’s failure to provide the plaintiffs with fewer than the
statutorily mandated number of peremptory challenges resulted in reversal) (discussed in
detail, infra).


        3
        Tuggle was based on the predecessor to the current peremptory challenge statute. See Tuggle,
922 S.W.2d 107 (citing Tenn. Code Ann. § 22-3-105). Section 22-3-105 provided:

                 (a) Either party to a civil action may challenge four (4) jurors without assigning
        any cause.
                 (b) In the event there is more than one (1) party plaintiff or more than one (1)
        party defendant in a civil action, four (4) additional challenges shall be allowed to such
        side or sides of the case; and the trial court shall in its discretion divide the aggregate
        number of challenges between the parties on the same side which shall not exceed eight
        (8) challenges to the side, regardless of the number of parties. Even when two (2) or more
        cases are consolidated for trial purposes, the total challenges shall be eight (8), as herein
        provided.
                 (c) If a party is both a plaintiff and a defendant, that party is considered one (1)
        party for the purpose of this section.

Tenn. Code Ann. § 22-3-105, repealed by 2008 Pub.Acts, c. 1159 § 1, eff. Jan. 1, 2009. Despite a minor
change in location and slight alteration in language, it is clear that the import of the statute was not
changed in any meaningful way for purposes of this case.


                                                   -5-
       Defendants assert, however, that the peremptory challenge statute cannot be read
in a vacuum, but must be considered in light of the fact that this is a wrongful death
action, with its own attendant statutes and precedents. See generally Tenn. Code Ann. §
20-5-106 (outlining the wrongful death cause of action) (discussed in detail, supra).4
Because of the unique nature of wrongful death lawsuits, Defendants assert there is only
a single plaintiff in this case, relying in large part on the Tennessee Supreme Court’s
decisions in Ki v. State, 78 S.W.3d 876 (Tenn. 2002), and Hunter v. Ura, 163 S.W.3d
686 (Tenn. 2005).

       We begin with Ki v. State, 78 S.W.3d 876 (Tenn. 2002), a wrongful death case
that, while not involving peremptory challenges, appears to lend support to Defendants’
argument. In Ki, the parents of a student filed a complaint against a university for
wrongful death. Both parents were named as plaintiffs in the lawsuit. Id. at 878. The
Claims Commission eventually ruled in favor of the plaintiffs on the issue of liability. Id.
Additionally, the Claims Commissioner ruled that each parent constituted a separate
“claimant” for purposes of Tennessee Code Annotated section 9-8-307(e)’s damage cap.5
The Tennessee Supreme Court ultimately reversed the decision of the Claims
Commission, holding that

        The plain language of [the wrongful death statute] establishes that in a
        wrongful death suit only one right of action exists: the action that the
        decedent would have had, absent death, against the negligent wrongdoer.
        “Claimant” is defined as “[o]ne who claims or asserts a right, demand, or
        claim.” Black's Law Dictionary 247 (6th ed.1990). The decedent is the sole
        party who holds a right of action or claim in a wrongful death suit. See
        Lynn v. City of Jackson, 63 S.W.3d 332, 336 (Tenn. 2001) (stating that
        “Tennessee’s wrongful death statute does not create a new cause of action
        for the beneficiaries but instead preserves the right of action of the
        decedent.”). The decedent’s survivors are only asserting the decedent's right
        of action on behalf of the decedent. Accordingly, because [the wrongful
        death statute] creates one claim or right of action vested in the decedent, the
        decedent is the sole “claimant” in a wrongful death action.

Id. at 879–80 (emphasis added). The Supreme Court thereafter rejected the plaintiffs’
argument that because the wrongful death statute “creates two separate rights to
damages,” including the damages owed to the decedent and the loss of consortium
damages owed to the next of kin, the wrongful death action must permit “two claimants
        4
           The Hospital filed its brief apart from the brief filed by Dr. Caruthers and Premier Women’s
Care. The arguments raised in each brief, however, are generally consistent.
        5
          Section 9-8-307(e) limits the State’s liability for damages in tort to $300,000 per “claimant” and
$1,000,000 per occurrence. See Tenn. Code Ann. 9-8-307(e) (“For causes of action arising in tort, the
state shall only be liable for damages up to the sum of three hundred thousand dollars ($300,000) per
claimant and one million dollars ($1,000,000) per occurrence.”).
                                                   -6-
to exist[.]” As the court explained, the allowance of loss of consortium damages does not
create an “individual claim or cause of action . . . [but allows] beneficiaries [to] recover
damages for their individual losses that arise pursuant to the right of action vested in the
decedent.” Id. at 881 (citing Kline v. Eyrich, 69 S.W.3d 197, 207 (Tenn. 2002))
(emphasis added).

        Less than three years after the decision in Ki, the Tennessee Supreme Court
considered a similar question, this time in the context of peremptory challenges. See
Hunter, 163 S.W.3d at 691. In Hunter v. Ura, the widow of the decedent filed what was
then known as a medical malpractice action related to the death of her husband. Although
the widow was always the only named plaintiff, her complaint was amended to include
loss of consortium claims on behalf of herself and her minor children. Id. The case
eventually proceeded to trial. Id. During jury selection, the trial court allowed the
plaintiff eight peremptory challenges. In response to the defendants’ argument that the
trial court erred in this regard, the plaintiff-widow asserted that the additional peremptory
challenges were authorized by the peremptory challenge statute then in effect because she
was raising loss of consortium claims on behalf of her minor children.6 Id. at 695.

       The supreme court rejected the plaintiff’s argument, however, concluding that
“there is no statutory language upon which to conclude that a plaintiff may receive more
than four peremptory challenges in a wrongful death action based on attendant loss of
consortium claims.” Id. Rather, the court noted its previous holding that:

        [T]he statutes permitting an action for the wrongful death of another create
        “no right of action exist[ing] independently of that which the deceased
        would have had had [he or she] survived.” Although the living beneficiaries
        of the action may seek a limited recovery for their own losses in addition to
        those of the decedent, the right of action itself remains one that is “single,
        entire, and indivisible.” In point of fact, therefore, “[t]here can be but one
        cause of action for the wrongful death of another.”

Id. (quoting Kline v. Eyrich, 69 S.W.3d 197, 206–07 (Tenn. 2002) (citations omitted)
(emphasis added by the Hunter court)). “Because there was only one party plaintiff” in
Hunter, the Tennessee Supreme Court ruled that the trial court erred in allowing the
plaintiff-widow additional peremptory challenges under the peremptory challenge statute
then in effect. Hunter, 163 S.W.3d at 695. The court held, however, that unlike the
situation wherein the trial court prevents a party from exercising all of the peremptory
challenges allowed under the law, where a party receives an excessive number of

        6
          Hunter was based upon now-repealed Tennessee Code Annotated section 22-3-105, which we
have determined is substantially the same as the peremptory challenge statute at issue in this case. See
supra, footnote 3.

                                                 -7-
peremptory challenges, the error does not prejudice the administration of justice and will
not result in reversal of the jury verdict absent a showing of actual harm to the objecting
party. Id. at 696–97 (citing Tuggle, 922 S.W.2d at 108).

        Immediately following the issuance of the Hunter opinion, this Court applied its
holding to a case wherein the wrongful death claim was filed by a child’s parents as next
of kin, likewise holding that the loss of consortium claims filed by the parents did not
entitle them to eight peremptory challenges. McGeehee v. Davis, No. M2002-03062-
COA-R3-CV, 2004 WL 66686, at *3 (Tenn. Ct. App. Jan. 15, 2004) (no perm. app.
filed). The Court noted, however, that even if Hunter did not apply in this situation, the
plaintiffs could not show prejudice “because they failed to utilize the four peremptory
challenges they had.” Id.

       Based upon these holdings, Defendants assert that a wrongful death action is filed
on behalf of the estate of the decedent, who is the single party for purposes of
determining the number of peremptory challenges allowed. See also Rogers v. Donelson-
Hermitage Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn. Ct. App. 1990) (“[N]o
right of action exists independently of that which the deceased would have had, had she
survived.”). Although there are some factual differences, as pointed out by Plaintiffs, to
the present case, we agree that Ki and Hunter generally support the action of the trial
court here to award Plaintiffs less than eight peremptory challenges.

        Recently, however, the Tennessee Supreme Court issued an opinion that appears
to have abandoned the foundation of Ki and Hunter that the claim in a wrongful death
action is brought in a representative capacity on behalf of the decedent. See Beard v.
Branson, 528 S.W.3d 487 (Tenn. 2017). In Beard, the plaintiff surviving spouse of the
decedent filed a pro se wrongful death complaint against the defendant medical
providers, alleging that the medical providers’ negligence resulted in the death of his
wife. Id. at 490. The defendants thereafter filed a motion to dismiss the complaint,
arguing (1) that a wrongful death complaint is filed in a representative capacity on behalf
of the decedent; (2) that the surviving spouse as a non-attorney was not entitled to file a
complaint in a representative capacity; and (3) that as a result the initial complaint was a
nullity and the action was time-barred. Id. at 491. The surviving spouse later retained an
attorney and filed an amended complaint. The trial court denied the motion, finding that
because the surviving spouse was the sole statutory beneficiary of the wrongful death
claim, the surviving spouse was representing his own interests in filing the complaint. Id.
at 491–92.

       Discovery ensued, which revealed that the decedent and surviving spouse had two
adult daughters, who were also statutory beneficiaries of the wrongful death action. Id. at
492. The defendants thereafter filed a motion for summary judgment, again asserting that
surviving spouse had no ability to file a pro se wrongful death claim on behalf of either

                                           -8-
the estate or the other statutory beneficiaries. Id. The trial court again denied the motion,
concluding that surviving spouse was partially acting on his own behalf. Id. The trial
court therefore held that while the surviving spouse’s action was improper, it could be
cured by amendment, which related back to the filing of the initial complaint. Id. The
surviving spouse later passed away and one of the daughters was substituted as plaintiff.
Id. The case proceeded to trial and the jury returned a substantial verdict for the plaintiff.
Id.

        The defendants raised the question of whether the surviving spouse was entitled to
file the initial complaint pro se again on appeal to this Court. See Beard v. Branson, No.
M2014-01770-COA-R3-CV, 2016 WL 1292904 (Tenn. Ct. App. Mar. 31, 2016), app.
granted (Tenn. Sept. 22, 2016), opinion supplemented on denial of reh’g, 2016 WL
1705290 (Tenn. Ct. App. Apr. 26, 2016), and rev’d, 528 S.W.3d 487 (Tenn. 2017).
Relying largely on the language of Ki that a wrongful death claim is brought “on behalf
of the decedent,” we held that the surviving spouse “never had ‘his own individual
claim’” but, rather, asserted the claim “in a representative capacity on behalf of the
decedent.” Id. at *5 (quoting Ki, 78 S.W.3d at 880). Thus, we held that the surviving
spouse’s action in filing the pro se complaint was a nullity due to the surviving spouse’s
inability to file a pro se complaint as a representative of the decedent and that the error
was not cured by subsequent amendment. Id. at *7–*8.

        The Tennessee Supreme Court granted the plaintiff’s application for permission to
appeal and reversed the decision of this Court. In reaching its decision, the court began
with a discussion of wrongful death statutes in general, which the court noted typically
fall into one of two categories: (1) “true survival statutes[,]” which permit a victim’s
cause of action to survive the victim’s death so that the victim, through the victim’s
estate, may recover damages; and (2) “purely wrongful death statutes[,]” which “‘create a
new cause of action in favor of the survivors of the victim for their loss occasioned by the
death.’” Id. at 497 (quoting Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 596–
97 (Tenn. 1999)).

       To illustrate that Tennessee’s “patchwork” of wrongful death statutes constitute
“‘a hybrid between the survival and wrongful death statutes’” the court considered the
language of several statutory provisions. Beard, 528 S.W.3d at 497 (quoting Jordan, 984
S.W.2d at 598). First, Tennessee Code Annotated section 20-5-106 creates the wrongful
death cause of action:

       The right of action that a person who dies from injuries received from
       another, or whose death is caused by the wrongful act, omission, or killing
       by another, would have had against the wrongdoer, in case death had not
       ensued, shall not abate or be extinguished by the person’s death but shall
       pass to the person’s surviving spouse and, in case there is no surviving

                                            -9-
       spouse, to the person’s children or next of kin; to the person’s personal
       representative, for the benefit of the person’s surviving spouse or next of
       kin; to the person’s natural parents or parent or next of kin if at the time of
       death decedent was in the custody of the natural parents or parent and had
       not been legally surrendered or abandoned by them pursuant to any court
       order removing such person from the custody of such parents or parent; or
       otherwise to the person’s legally adoptive parents or parent, or to the
       administrator for the use and benefit of the adoptive parents or parent; the
       funds recovered in either case to be free from the claims of creditors.

Tenn. Code Ann. § 20-5-106(a). Consistent with section 20-5-106(a), Tennessee Code
Annotated section 20-5-107(a) provides, in relevant part: “The action may be instituted
by the personal representative of the deceased or by the surviving spouse in the surviving
spouse’s own name, or, if there is no surviving spouse, by the children of the deceased or
by the next of kin; . . . .” Additionally, Tennessee Code Annotated section 20-5-110
provides that a wrongful death action “may be brought in the name of the surviving
spouse for the benefit of the surviving spouse and the children of the deceased, in the
name of the administrator of the deceased spouse or in the name of the next of kin of the
spouse.” Tenn. Code Ann. § 20-5-110(a). “The surviving spouse may effect a bona fide
compromise in such a suit or right of action and may execute a valid release that shall be
binding upon all the children of the deceased or next of kin of the deceased.” Tenn. Code
Ann. § 20-5-110(b). Finally, the court noted that the damages allowed in a wrongful
death action include the damages “‘resulting to the deceased’” as well as “‘resulting to
the parties whose use and benefit the right of action survives.’” Beard, 528 S.W.3d at 498
(quoting Tenn. Code Ann. § 20-5-113). Thus, Tennessee’s wrongful death damages
provision has somewhat of a “split personality” in that “statutory beneficiaries may
recover both damages suffered by the decedent (like true survival statutes) and also
damages suffered by the beneficiaries (like purely wrongful death statutes).” Beard, 528
S.W.3d at 498.

       Although the court noted its prior pronouncements in Ki and the like, the court
held that its prior “recognition that the right of action asserted in a wrongful death lawsuit
originated in the decedent does not equate to a holding that the surviving spouse is acting
as a legal representative for the decedent.” Id. at 502. Rather than look to prior precedent
then, the court held that the answer to this question was found within the plain language
of the wrongful death statute. As the court explained:

       [D]istilled to its essence, section 20-5-106(a) provides that “[t]he right of
       action” that the decedent “would have had against the wrongdoer . . . shall
       not abate . . . but shall pass to the person’s surviving spouse.” Id. Thus,
       under the statute’s plain language, the decedent’s right of action that, under
       the common law, would have extinguished upon his death instead passes to
       the spouse. The statute does not merely authorize the surviving spouse to
                                            - 10 -
        file the wrongful death action on behalf of the decedent; it “passes” or
        transfers the right of action to the spouse. This indicates that, in filing a
        wrongful death lawsuit, the surviving spouse does not represent the
        decedent but instead asserts the spouse’s own right of action.

Id. at 502. The court further noted that other provisions of the wrongful death
“patchwork” supported this interpretation, as, among other things, the proceeds from a
wrongful death action pass directly to the statutory beneficiaries, and the action, even
when instituted by a personal representative, is asserted on behalf of the beneficiaries,
rather than the decedent’s estate. Id. at 502–03 (citing Tenn. Code Ann. § 20-5-108(b)
(“The damages shall go to the surviving spouse and next of kin free from the claims of
creditors.”); § 20-5-106(a) (listing the personal representative as one who can bring suit
“for the benefit of the person’s surviving spouse or next of kin”)). Based upon this
holding, the court ultimately ruled that the pro se complaint was not a nullity despite the
fact that the original plaintiff, as surviving spouse, was bringing the action not only on his
own behalf but also on behalf of decedent’s children, and that it could be amended to add
the proper parties. Id. at 505–06.

       Here, the trial court denied Plaintiffs’ request for eight peremptory challenges
under Tennessee Code Annotated section 22-3-104 on the basis that “it’s really the
estate’s lawsuit[.]” Likewise, Defendants argue throughout their briefs that under the
prior decisions by our supreme court, a wrongful death action is brought on behalf of the
decedent. Clearly, however, the Tennessee Supreme Court has rejected that interpretation
of our wrongful death statutes. Instead, a wrongful death cause of action is brought by the
statutory beneficiaries “on [their] own behalf” rather than on behalf of the decedent. Id. at
505. As such, the wrongful death action in this case passed to the statutory beneficiaries
as outlined by Tennessee Code Annotated section 20-5-106(a), as set forth above.

       Given that the infant obviously had no surviving spouse or issue, there has never
been any dispute that the claim was properly brought by both Mother and Father, who
constitute both the child’s next of kin and natural parents.7 See Beard, 528 S.W.3d at
499–500 (citing (“If there is no surviving spouse, then the children have priority to bring
the action; if no children survive, then the action passes to the decedent’s next of kin.”);
In re Estate of Dobbins, 987 S.W.2d 30, 36 (Tenn. Ct. App. 1998) (“[T]he right of action
of a deceased minor child passes to his/her natural parents or parent or next of kin if that
child at the time of death was in the custody of the natural parents or parent, who had
maintained their parental rights.”); Mangrum v. Owens, 917 S.W.2d 244, 245 n.1 (Tenn.

        7
          Although Mother and Father were not married at the time of the child’s birth, there is no dispute
that Father is also the child’s legal parent, as he executed a voluntary acknowledgement of paternity with
regard to the child. See Tenn. Code Ann. § 36-1-102(28)(A)(iv) (indicating that a biological father is the
legal father where, among other things, he “has signed . . . an unrevoked and sworn acknowledgement of
paternity under Tennessee law”).
                                                  - 11 -
Ct. App. 1995) (“In the law of descent and distribution the term ‘next of kin’ properly
denotes the persons nearest of kindred to the decedent, that is, those who are most nearly
related to him by blood. . . . ‘Next of kin’ is the nearest blood relation of the deceased
according to the law of consanguinity. The natural parents of a deceased child are equally
the next of kin.”) (quoting In re Estate of Bruce, No. 2, 1986 WL 654, at *2 (Tenn. Ct.
App. Jan. 7, 1986)) (internal citations omitted)).8 Likewise, Tennessee Code Annotated
section 31-2-104 provides that property will pass through intestate succession, “[i]f there
is no surviving issue, to the decedent’s parent or parents equally[.]” See also Beard, 528
S.W.3d at 499 (holding that wrongful death proceeds “pass to the statutory beneficiaries
in accordance with the laws of intestate succession”).

        Unlike the situation wherein the claim vests in a surviving spouse who has priority
to settle the claim over other statutory beneficiaries, the wrongful death statutes do not
provide the same type of claim superiority to other types of statutory beneficiaries. See
Tenn. Code Ann. § 20-5-110(a–b) (stating that a wrongful death claim may be brought in
the name of the surviving spouse and “may effect a bona fide compromise in such a suit
or right of action and may execute a valid release that shall be binding upon all the
children of the deceased or next of kin of the deceased.”); Beard, 528 S.W.3d at 499
(stating that the surviving spouse “has ‘the prior and superior right above all others to file
the wrongful death action and control the litigation[,]” and the spouse is therefore entitled
to control the action, including all questions of settlement). In the absence of similar
superiority language regarding next of kin or natural parents, this Court has previously
held that section 20-5-106 contains no language giving priority to one parent over
another, even where the child lives primarily with one parent. Mangrum, 917 S.W.2d at
245 (“We find nothing in [section] 20-5-106 which suggests that the right of action for
the wrongful death of a child belongs to one natural parent over the other.”). As such, we
have held:

        [T]he statute grants the right of action for the wrongful death of a child to
        the parents (if both are living and if not to the surviving parent), if, at the
        time of the child’s death, the child was in the custody of both parents or one
        of the parents and there had been no termination of parental rights by
        surrender.

Id. at 246; c.f. Jamison v. Memphis Transit Mgmt. Co., 381 F.2d 670, 674 (6th Cir.
1967) (“[S]urviving natural parents have a joint right of action, with equal interests
therein, as the surviving next of kin of the child.”). Given that neither parent has
surrendered their rights to the child, the wrongful death action passed to Plaintiffs
equally.

        8
          Although Mother filed her claim both individually and as representative of her child’s estate,
under Beard, Mother’s “own right of action” arises from her individual claim as next of kin and natural
parent of the child, rather than her role as administrator of the estate. Beard, 528 S.W.3d at 502.
                                                - 12 -
        Because both Mother and Father had an equal right to participate in this action, we
must conclude that they constitute separate “party plaintiff[s]” for purposes of
determining the number of peremptory challenges due under Tennessee Code Annotated
section 22-3-104. Clearly, both were named as plaintiffs and their joint complaint
initiated this action. See Black’s Law Dictionary 1267 (9th ed. 2009) (defining plaintiff).
Moreover, under the holding in Beard, the wrongful death action “pass[ed] to” both
Mother and Father as natural parents and next of kin of the infant and was asserted as
their “own right of action.” Beard, 528 S.W.3d at 502, 504; see also Flood, 219 S.W.3d
at 314 (defining “party”); Boles, 37 Tenn. at 107 (same). Thus, while a wrongful death
claim may be indivisible, see Kline, 69 S.W.3d at 207, in the absence of statutory
language giving one party dominance over another, the parties are not one undivided
entity proceeding on behalf of the decedent or estate; rather, each asserts the wrongful
death claim on their own behalf. Beard, 528 S.W.3d at 505. Finally, as previously
discussed, the number of peremptory challenges owed under the statute does not depend
on whether the plaintiffs have antagonistic interests. As such, the fact that Mother and
Father were aligned in this case is simply not relevant to our analysis. See Tuggle, 922
S.W.2d at 107 (holding that antagonistic interests were not required by the plain language
of the statute). Rather, under the plain language of section 22-3-104 and the Tennessee
Supreme Court’s decision in Beard, Mother and Father constitute two “party plaintiff[s]”
and should have been awarded eight peremptory challenges. The trial court’s failure to
award the statutorily required challenges was, therefore, in error. See Tuggle, 922 S.W.2d
at 108 (holding that the trial court erred in denying the two plaintiffs the mandated
number of peremptory challenges).

        Based upon the trial court’s failure to award the statutorily required number of
peremptory challenges, Plaintiffs argue that reversal is proper, citing the Tennessee
Supreme Court’s decision in Tuggle v. Allright Parking Systems. As previously
discussed, the Tennessee Supreme Court in Tuggle held that the trial court erred in
denying the plaintiffs eight peremptory challenges under the peremptory challenge statute
in effect at the time. Id. at 107. In determining the proper remedy for this error, the court
first explained that the Tennessee General Assembly “has the right and power to direct
the judicial process. Id. at 108. In exercising this power by adopting rules regarding
peremptory challenges, the court noted the Legislature’s purpose: “to insure uniformity,
impartiality, and fairness in jury selection.” Finally, the court noted the difficulty that
would be encountered by the “individual litigant to prove that a deviation from such
procedural rules “more probably than not” affects the judgment in a particular case[.]” Id.
As such, the court concluded that compliance with the rules regarding peremptory
challenges is meant to “protect the integrity of the jury system and safeguard the
administration of justice.” Id. (citing State v. Coleman, 865 S.W.2d 455, 458
(Tenn.1993)). Consequently, the Tennessee Supreme Court held that “such deviations
from prescribed procedural rules have been held to constitute prejudice to the judicial


                                           - 13 -
process under [Rule] 36(b) [of the Tennessee Rules of Appellate Procedure].”9 Tuggle,
922 S.W.2d at 108 (citing Coleman, 865 S.W.2d at 458). The trial court’s failure to allow
the plaintiffs all of their statutorily mandated peremptory challenges therefore
necessitated a new trial. Tuggle, 922 S.W.2d at 108 (“In this case, [one plaintiff] was
denied the use of his statutorily mandated number of peremptory challenges. In our view,
denial of that right, which was designed to safeguard the administration of justice,
constitutes prejudice to the judicial process and requires a reversal in this case under
[Rule] 36(b).”). In reaching this decision, the Tuggle court simply did not consider the
absence of an offer of proof as to the jurors that were selected or the jurors that would
have been selected had the proper number of peremptory challenges been granted. Id

       Defendants argue, however, that we should not grant a new trial in this case where
Plaintiffs’ failed to show any prejudice that resulted from the trial court’s failure to allow
Plaintiffs’ all of the statutorily mandated peremptory challenges.10 In support, Dr.
Caruthers and Premier Women’s Care cite a more recent case from the Tennessee Court
of Criminal Appeals that they argue “rejected the application of a blanket rule that any
deprivation of a peremptory challenge is automatically cause for reversal.” See State v.
Taylor, No. W2012-02535-CCA-R3-CD, 2014 WL 4922629 (Tenn. Crim. App. Sept. 30,
2014), perm. app. denied (Tenn. Jan. 16, 2015). In Taylor, the Court of Criminal Appeals
indeed considered whether the defendant had shown prejudice from the trial court’s
decision to truncate voir dire, allegedly resulting in the deprivation of two of the
defendant’s peremptory challenges. Id. at *21–*22. Ultimately, the court concluded that
while the trial court erred in not allowing the defendant to exercise her final two
peremptory challenges, the error was not reversible where the trial court was concerned
about severe weather and the defendant could not show “any actual prejudice” that
resulted from the denial. Id. at *18–*22. After considering a number of other issues, the
court ultimately affirmed the defendant’s conviction. Id. at *66.11

       Unreported cases of the intermediate courts are not binding on this Court. See
Tenn. R. Sup. Ct. 4(G)(1) (noting that unpublished opinions are considered persuasive
authority except as between the parties to the case). Additionally, we need not read the

        9
           Rule 36(b) provides: “A final judgment from which relief is available and otherwise appropriate
shall not be set aside 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.” Tenn. R.
App. P. 36(b).
         10
             Although this argument is mentioned in the briefs of both the Hospital and Dr.
Caruthers/Premier Women’s Care, the argument contained in the Hospital’s brief states nothing more on
this issue than the following: “Also, [Plaintiffs] have shown no prejudice.” Respectfully, the lack of legal
argument addressing this contention by the Hospital would generally result in a waiver on appeal. The
issue is fully addressed, however, by Dr. Caruthers and Premier Women’s Care.
         11
            Dr. Caruthers and Premier Women’s Care also cite this Court’s Opinion in Walker v. Jackson,
No. 01-A-019203-CV-00117, 1992 WL 172396, at *3 (Tenn. Ct. App. July 24, 1992). Walker, however,
was decided prior to the Tennessee Supreme Court’s decision in Tuggle.
                                                  - 14 -
Tennessee Supreme Court’s decision to deny permission to appeal in Taylor as approval
of all of the analysis therein. See Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987)
(“This Court is not committed to all of the views expressed in an opinion of the
intermediate appellate courts when we deny discretionary review[.]”); c.f. Evans v.
Steelman, No. 01-A-01-9511-JV00508, 1996 WL 557844, at *2 (Tenn. Ct. App. Oct. 2,
1996), aff'd, 970 S.W.2d 431 (Tenn. 1998) (holding that where a case decides only a
single issue and permission to appeal is denied, there can be no argument that the
supreme court did not approve the interpretation made by the intermediate court). Even
more importantly, intermediate courts are not free to depart from the Tennessee Supreme
Court’s unequivocal holdings. “The Court of Appeals has no authority to overrule or
modify Supreme Court’s opinions.” Bloodworth v. Stuart, 221 Tenn. 567, 572, 428
S.W.2d 786, 789 (Tenn. 1968) (citing City of Memphis v. Overton, 54 Tenn.App., 419,
392 S.W.2d 86 (Tenn. 1964)); Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976). As
such, “[o]nce the Tennessee Supreme Court has addressed an issue, its decision regarding
that issue is binding on the lower courts.” Morris v. Grusin, No. W2009-00033-COA-
R3-CV, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v.
Davis, No. M2003-02312-COA-R3-CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct.
12, 2004)); see also Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997)
(“[I]t is a controlling principle that inferior courts must abide the orders, decrees and
precedents of higher courts. The slightest deviation from this rigid rule would disrupt and
destroy the sanctity of the judicial process.”) (quoting State v. Irick, 906 S.W.2d 440, 443
(Tenn. 1995)); Levitan v. Banniza, 34 Tenn. App. 176, 185, 236 S.W.2d 90, 95 (Tenn.
Ct. App. 1950) (“This court is bound by the decisions of the Supreme Court.”).

        Finally, we note that following the decision in Taylor, the Tennessee Supreme
Court clarified the two types of prejudice that may be shown in order to invalidate a jury
verdict on the basis of “deviations from prescribed jury selection procedures.” State v.
Frausto, 463 S.W.3d 469, 484 (Tenn. 2015). In this situation, “Tennessee law places the
burden on the defendant who is seeking to invalidate his or her conviction to demonstrate
that the error ‘more probably than not affected the judgment or would result in prejudice
to the judicial process.’” Id. (quoting State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn.
2008)) (emphasis added); see also Tenn. R. App. P. 36(b). In support, the court noted
that “‘strict adherence to statutory jury selection procedures is essential to the integrity of
the judicial process and the instilling of public confidence in the administration of
justice.’” Frausto, 463 S.W.3d at 485 (quoting State v. Lynn, 924 S.W.2d 892, 898
(Tenn.1996)). Thus, even in the absence of “actual prejudice” likely affecting the
judgment, a jury verdict may still be invalidated if it “would result in prejudice to the
judicial process.” Frausto, 463 S.W.3d at 484. The court noted, however, that prejudice
to the judicial process would not typically result when the errors were “‘minor’ or
‘inadvertent’ deviations or deviations that were ‘necessitated by circumstances beyond
[a] trial court’s control.’” Frausto, 463 S.W.3d 485 (quoting State v. Bondurant, 4
S.W.3d 662, 670 (Tenn. 1999)). Because the Frausto court concluded that the trial court
utilized a jury procedure that was not in accordance with the Rules of Criminal Procedure
                                             - 15 -
and that the procedure prevented the defendant from intelligently exercising his
peremptory challenges, the Tennessee Supreme Court held that the defendant had shown
prejudice to the judicial process sufficient to necessitate a new trial. Frausto, 463 S.W.3d
at 486–87.

       The same is true in this case. Here, Plaintiffs sought and were denied the eight
peremptory challenges they were due under Tennessee Code Annotated section 22-3-
104(b). Plaintiffs used all six of the peremptory challenges awarded by the trial court and
suggested on a form that they would have used additional peremptory challenges had the
trial court not denied them of the challenges due under the statute. The Tennessee
Supreme Court in Tuggle has unequivocally held that a trial court’s failure in a civil case
to allow plaintiffs to exercise all of the peremptory challenges granted under our
peremptory challenge statute constitutes prejudice to the judicial process. See Tuggle,
922 S.W.2d at 108. Defendants have not cited nor has our research revealed any
Tennessee Supreme Court cases in which Tuggle was overruled or its holding in this
context called into question.12 Furthermore, the trial court’s error in this case was neither
minor, inadvertent, nor necessitated by the circumstances, unlike the truncated voir dire
that occurred in Taylor. See Taylor, 2014 WL 4922629, at *18 (noting that the trial
court’s decision rested in part on worsening weather). Under these circumstances, we
must conclude that the trial court’s failure to allow Plaintiffs to exercise all eight of the
peremptory challenges granted to them under Tennessee Code Annotated section 22-3-
104(b) constitutes prejudice to the judicial process that necessitates a new trial.

       In conclusion, the trial court erred in denying Plaintiffs eight peremptory
challenges under Tennessee Code Annotated section 22-3-104(b). Based upon the
Tennessee Supreme Court’s decision in Tuggle, the trial court’s error resulted in
prejudice to the judicial process, for which a new trial is warranted. “[W]hen presented
with multiple issues on appeal, one of which is dispositive, we have consistently found
the remaining issues to be pretermitted.” In re Jamie B., No. M2016-01589-COA-R3-
PT, 2017 WL 2829855, at *7 (Tenn. Ct. App. June 30, 2017) (citing State v. Mellon, 118
S.W.3d 340, 348 (Tenn. 2003) (“Because the issue of the knowing and voluntary nature
of the pleas [of the criminal defendant] is dispositive, the other numerous issues raised on
appeal are pretermitted.”)); see also Alexander v. Inman, 903 S.W.2d 686, 705 (Tenn.
Ct. App. 1995) (pretermitting issues on the basis of the grant of a new trial). As such,
any questions concerning the Hospital’s use of an alleged racially motivated peremptory
challenge or the trial court’s exclusion of the “home video” are pretermitted.

       12
            As previously discussed, in Hunter v. Ura, 163 S.W.3d 686 (Tenn. 2005), the Tennessee
Supreme Court held that the trial court’s decision to award a party more than the statutorily mandated
number of peremptory challenges did not constitute prejudice to the judicial process. Id. at 697. The
Hunter decision, however, did not overturn the holding in Tuggle where a party was “denied the
statutorily-mandated number of peremptory challenges under Tennessee Code Annotated section 22–3–
105(a) and (b)[.]” Id. (emphasis in original).
                                               - 16 -
                                    CONCLUSION

       The judgment of the Circuit Court of Tipton County is reversed and this cause is
remanded for a new trial. Costs of this appeal are taxed to Defendants, for which
execution may issue if necessary.


                                                 _________________________________
                                                 J. STEVEN STAFFORD, JUDGE




                                        - 17 -
