                IN THE COURT OF APPEALS OF TENNESSEE
                             AT MEMPHIS
                                February 24, 2015 Session

          BROOKS MONYPENY, ET AL. V. CHAMROEUN KHEIV

                    Appeal from the Circuit Court for Shelby County
                        No. CT00205012      Jerry Stokes, Judge




                  No. W2014-00656-COA-R3-CV - Filed April 1, 2015




This is an appeal from a judgment entered on a jury verdict. The case arises from a motor
vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured
motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries
sustained in the accident, the other some two years after the accident. The plaintiffs’ children
were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict
on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of
cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing
argument; (4) exclusion of notations on medical records; (5) various acts of alleged
wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of
medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict;
(9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for
medical and death payments made by State Farm under the insurance policy; and (11) award
of discretionary costs. Because there is material evidence to support the jury’s verdict, and
because the trial court did not abuse its discretion, we affirm and remand.

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

K ENNY A RMSTRONG, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J., W.S., and B RANDON O. G IBSON, J., joined.

Robert L. Moore, Memphis, Tennessee, for the appellant, State Farm Mutual Insurance
Company.

Thomas R. Greer and R. Sadler Bailey, Memphis, Tennessee, for the appellees, Brooks
Monypeny and David Monypeny; Donald Capparella and Tyler Chance Yarbro, Nashville,
Tennessee, for the appellees, Robert Edwin Sadowski and John Russell Sadowski.



                                             OPINION

                                          I. Background

       On March 11, 2012, Mr. Emil Sadowski and his wife, Kathryn Sadowski (together the
“Sadowskis”) were injured in an automobile accident. At the time of the accident, Mr.
Sadowski was driving a 2000 Lexus RX3 SUV, in which Mrs. Sadowski was a front-seat
passenger. The Sadowskis had just finished lunch near the Wolfchase Mall in Memphis and
were exiting the mall onto Highway 64/Stage Road. As the Sadowskis’ vehicle exited onto
Highway 64, it was hit by Mr. Chamroeun Kheiv’s 2005 Subaru Impreza,1 which was
traveling east on Highway 64. Mr. Kheiv had three passengers in his vehicle. At the time
of the accident, Mr. Kheiv was 28 years old. Mr. Sadowski was 90 years old, and Mrs.
Sadowski was 82 years old.

       Prior to the accident, all of the evidence indicates that the Sadowskis were both in
very good health despite their age. Mr. Sadowski was a diabetic, but he was able to care for
himself and administer his insulin. Mr. Sadowski was also an avid exerciser, who rode his
bicycle almost daily. He had undergone hip replacement surgery some years prior and had
replaced his daily walks with bike rides. Likewise, Mrs. Sadowski was physically fit and
mentally sharp. She and Mr. Sadowski ate lunch out at a restaurant most days. Mr.
Sadowski also loved to drive. According to the testimony of family members, it was not
uncommon for the Sadowskis to take day trips from Memphis to Little Rock or Nashville just
to each lunch and drive around. There was no testimony that Mr. Sadowski’s age had
impaired his ability to safely drive. The couple was actively involved in their church, and
they were also very involved with their family. At the time of the accident, the Sadowskis
had been married for approximately thirty years, and it was the second marriage for both.
Mrs. Sadowski had two children from her first marriage, Brooks Monypeny and David
Monypeny. Mr. Sadowski had three children from his first marriage, Terri McCord,2 Robert
Edwin Sadowski, and John Russell Sadowski.


       1
        Throughout the record, Mr. Kheiv’s name is spelled “Kheiv” and “Khiev.” For
purposes of consistency, we will use the spelling contained in the original complaint, i.e.,
“Kheiv.”
       2
           Ms. McCord is not a party to this appeal.

                                                  2
        The site of the accident, Highway 64, is a six-lane road, with a grass median in the
center, separating the east-bound three lanes from the west-bound three lanes. The exit that
Mr. Sadowski was using is designed to direct merging traffic into the right lane of Highway
64; however, it is possible for a vehicle to cross the three east lanes of Highway 64 from the
exit to turn west onto Highway 64. As discussed infra, there is dispute as to whether Mr.
Sadowski was turning right (east) onto Highway 64, or whether he was attempting to cross
the three east lanes to go west onto Highway 64.

        There was one eyewitness to the accident, Connie Taylor, an emergency room nurse
from Nashville. She testified at the trial by deposition. Ms. Taylor stated that she was
traveling east on Highway 64 in the middle lane, having just made a right turn from
Germantown Road. According to her testimony, she saw Mr. Kheiv’s vehicle in her rear-
view mirror, coming up “very fast” behind her. She stated that she initially thought the
Kheiv vehicle was going to hit the back of her car; however, according to Ms. Taylor, Mr.
Kheiv passed her vehicle on the right and almost immediately collided with the Sadowskis’
vehicle. After impact, the Sadowskis’ vehicle came to rest between two utility poles that
were just east of the Wolfchase Mall exit. The Kheiv vehicle crossed the median and came
to rest on the far north side of Highway 64, facing west. Ms. Taylor testified that she parked
her vehicle by the Sadowskis’ vehicle and got out to render help. She stated that Mrs.
Sadowski complained of shortness of breath, pain in her chest, and that she had a cut on her
leg that was bleeding. According to Ms. Taylor, Mr. Sodowski was confused, asking “what
happened,” and had some apparent injury to his face.

        The Sadowskis were taken, by ambulance, to Baptist Memorial Hospital. While at the
hospital, both of the Sadowskis were treated by Dr. Kamul Jit Mohan, a board-certified
internal medicine specialist. Dr. Mohan testified at trial that Mrs. Sadowski’s injuries were
more acute that Mr. Sadowski’s. Mrs. Sadowski presented with a broken neck at her C7
vertebra and injury to the ligaments supporting her spine. She also sustained injury to her
aorta, which resulted in blood leaking into the pericardium. Mrs. Sadowski went into cardiac
arrest shortly after she arrived at the hospital and had to be resuscitated. Although Mrs.
Sadowski’s injuries would normally require immediate surgery, Dr. Mohan testified that she
was not a surgical candidate because her blood pressure would not stabilize due to the aortic
leak. She was placed on a ventilator to help her breath but could not be weaned off the
ventilator due to the problems with her blood pressure. Dr. Mohan stated that when he
attempted to lower the amount of oxygen she received, her heart would go into atrial
fibrillation. Because Mrs. Sadowski could not be weaned from the ventilator, Dr. Mohan had
to perform a tracheotomy. Mrs. Sadowski subsequently developed a trachea infection due
to pseudomonas. The infection caused the area around the tracheotomy to become red and
inflamed and to produce foul-smelling discharge. Dr. Mohan stated that, approximately two
or three days after the accident, Mrs. Sadowski suffered a stroke that affected her right side.

                                              3
A CT scan revealed that she had suffered one or two older strokes, but there is no evidence
that these earlier ischemic incidents affected her daily life. Dr. Mohan stated that Mrs.
Sadowski remained paralyzed on her right side. The stroke she suffered after the accident
also resulted in the development of deep vain thromboses in her right leg and arm. Although
the usual course of treatment would be blood thinners, Dr. Mohan testified that he could not
give Mrs. Sadowski blood thinners because of her aortic injury. Accordingly, he had to insert
a blood filter into her inferior vena cava. This resulted in additional pain, swelling, and
stiffness in her right leg and arm.

        Dr. Mohan further testified that after the first ten days in the hospital, Mrs. Sadowski
was conscious and aware of her condition. He stated that from that point, “her suffering
never stopped.” She was prescribed very strong pain medications, including Dilaudid (which
is six or seven times stronger than morphine, according to Dr. Mohan). Mrs. Sadowski
suffered from depression and post traumatic stress disorder, which required psychiatric
consultation and treatment with Xanax and Ativan. She developed a secondary infection,
which Dr. Mohan called “healthcare acquired pneumonia.” This required him to put her back
on the ventilator. Mrs. Sadowski was also put on a feeding tube. Dr. Mohan and Mrs.
Sadowski’s family members testified that she had to be restrained at times because she would
attempt to remove the tubes, which bothered her greatly. Due to her immobility, she
developed decubitus ulcers. Although Mrs. Sadowski was moved to Baptist Restorative Care
Hospital, a separate long-term acute care center, Dr. Mohan stated that she was still in an
intensive care unit.

       Unlike Mrs. Sadowski, Mr. Sadowski’s injuries were not immediately life threatening.
He presented at the hospital with back and chest pain. Approximately eight months prior to
the accident, Mr. Sadowski broke his sternum in a fall. The chest pain was largely due to
aggravation of the existing injury. Mr. Sadowski was, however, in a great deal of pain during
his hospital stay. The family did not immediately tell Mr. Sadowski about the direness of
Mrs. Sadowski’s condition. Mr. Sadowski was discharged from the hospital on March 20,
2012 and was admitted to Baptist Rehabilitation in Germantown, where he was treated by
Dr. Sunita Jain. Dr. Jain testified that Mr. Sadowski needed both physical and occupational
therapies and required twenty-four hour nursing care. Dr. Jain opined that because Mr.
Sadowski had no prior complaints of pain, the functional impairments that necessitated
rehabilitation were likely caused by the accident. While at the rehabilitation center, Mr.
Sadowski was assigned a case manager, social worker, and a counselor due to his agitation
and increasing depression.

      Although he had lived independently prior to the accident, Dr. Jain testified that Mr.
Sadowski never improved beyond “supervision level,” which required another person plus
a walker for his daily functions. Accordingly, on the recommendation of his physicians, Mr.

                                               4
Sadowski was discharged to Ave Maria assisted living center. The testimony indicates that
Mr. Sadowski did not adjust well to assisted living; he called the center “jail” and fell into
a deeper depression. In addition, although his cognitive function tested in the 77 th percentile
during his stay at the rehabilitation center, after he moved to assisted living, the evidence
indicates that his mental health deteriorated fairly rapidly.

       On May 8, 2012, the Sadowskis filed a complaint against Chamroeun Kheiv in the
Circuit Court of Shelby County. In their complaint, the Sadowskis asserted that Mr. Kheiv
was liable for their injuries due to various acts of common law negligence, violation of
numerous statutes governing operation of a motor vehicle, and violation of numerous Shelby
County and City of Memphis ordinances. Mr. Kheiv was not insured at the time of the
accident. Accordingly, on or about June 6, 2012, State Farm Mutual Automobile Insurance
Company and State Farm Fire and Casualty Company (“State Farm,” or “Appellant”), as Mr.
Sadowski’s uninsured motorist carrier, entered an appearance as unnamed parties.

       On May 14, 2012, Mrs. Sadowski died as a result of the injuries she sustained in the
accident. Thereafter, on August 8, 2012, her children, Brooks Monypeny and David
Monypeny, as executors of Mrs. Sadowski’s estate, and Mr. Sadowski, as her surviving
spouse (together with Brooks Monypeny and David Monypeny, “Plaintiffs”), filed a joint
motion to amend the complaint to add Mrs. Sadowski’s children to the lawsuit and to add a
claim for wrongful death and loss of consortium. Without objection by State Farm, the trial
court granted the motion to amend the complaint, and the first amended complaint was filed
on August 17, 2012. State Farm filed its answer to the first amended complaint on August
20, 2012.

      On November 2, 2012, Mr. Kheiv’s three passengers, Jake Pravongiengkham, Jessica
L. Huynh, and Vuthy C. Srey, filed a separate complaint against Mr. Kheiv and Mr.
Sadowski alleging personal injuries arising out of the March 11, 2012 accident. On
December 28, 2012, Plaintiffs filed a motion to consolidate their case with that of the Kheiv
passengers. The motion was granted by order of January 11, 2013. By consent order entered
on October 18, 2013, the Kheiv passengers voluntarily dismissed their claims against Mr.
Sadowki. The Kheiv passengers ultimately settled their complaint against Mr. Kheiv.

       The case was tried to a jury on November 19 through 21, 2013. On December 13,
2013, the trial court entered its judgment on the jury verdict. The order provides, in pertinent
part:

              [T]he jury returned a verdict in favor of plaintiffs. . . and the
              written jury verdict is incorporated herein by reference. . . .
                     The jury found the defendant, Chamroeun Kheiv 85% at

                                               5
              fault, and the plaintiff, Emil Sadowski, 15% at fault.

The jury awarded Mr. Sadowki $1,050,000 in non-economic damages and $325,746 in
economic damages. Based upon the jury’s assessment of 15% fault to Mr. Sadowski, the trial
court reduced these amounts by 15% and then applied the $750,000 statutory cap to the non-
economic damages. Tenn. Code Ann. §29-39-102. Accordingly, Mr. Sadowski’s damages
were reduced to $1,026.884.10 ($750,000 in non-economic damages + $276,884.10 in
economic damages). The jury awarded Mrs. Sadowski’s estate $875,000 in non-economic
damages and $473,378.08 in economic damages, which amounts were reduced, by 15% and
the applicable statutory cap, to $750,700 and $402,371.36 respectively, for a total damage
award of $1,152,371.36. In addition, the jury awarded Plaintiffs a total of $450,000 on their
loss of consortium claims. The trial court reduced this amount by 15%, bringing the total
loss of consortium damages to $382,500.3

        On January 8, 2014, Mr. Sadowski filed a motion for discretionary costs, along with
supporting documentation. Brooks and David Monypeny filed a separate motion for
discretionary costs and supporting documentation on January 10, 2014. The trial court
granted Mr. Sadowski’s motion by order of February 25, 2014, awarding Mr. Sadowski
$9,500.25 in discretionary costs. On February 28, 2014, the trial court entered an order
granting David and Brooks Monypeny’s motion for discretionary costs in part and denying
it in part. The court awarded the Monypenys $5,247.90 in discretionary costs.

       While the motions for discretionary costs were pending, on January 10, 2014, State
Farm filed a motion for new trial, remittitur, or alternatively to alter or amend the judgment.
The requirement of filing a motion for new trial is governed by Rule of Appellate Procedure
3(e), which provides, in part:

              [I]n all cases tried by a jury, no issue presented for review shall
              be predicated upon error in the admission or exclusion of
              evidence, jury instructions granted or refused, misconduct of
              jurors, parties or counsel, or other action committed or occurring
              during the trial of the case, or other ground upon which a new
              trial is sought, unless the same was specifically stated in a
              motion for a new trial; otherwise such issues will be treated as
              waived.


       3
          State Farm does not appeal the award to Mrs. Sadowski’s estate, nor the $75,000 of the
 loss of consortium damages that were awarded to her children, David and Brooks Monypeny. As
discussed infra, State Farm appeals the damages awarded to Mr. Sadowski, including the $375,000
in loss of consortium.

                                               6
Accordingly, “in all civil cases tried to a jury, any ground not cited in the motion for new trial
has been waived for the purposes of appeal.” Waters v. Coker, 229 S.W.3d 682, 689 (Tenn.
2007) (citing Boyd v. Hicks, 774 S.W.2d 662, 625 (Tenn. Ct. App. 1989)). Furthermore,
“[t]he issues presented in a motion for new trial must be specified with reasonable certainty
so as to enable appellate courts to ascertain whether the issue was first presented for
correction in the trial court; otherwise, the matter cannot be considered on appeal.” Id. (citing
State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987)). On our review, State
Farm is compliant with the Tennessee Rule of Appellate Procedure 3(e) requirement in that
the issues raised on appeal are set out with sufficient specificity in its motion for new trial.
By order of March 7, 2014, the trial court denied State Farm’s motion for new trial,
remittitur, or to alter or amend the judgment.

        State Farm filed its notice of appeal on April 4, 2014. Upon review of the appellate
record, this Court determined that the order appealed was not a final judgment so as to confer
jurisdiction on the Court under Tennessee Rule of Appellate Procedure 3. Specifically, we
determined that the order appealed did not adjudicate the Plaintiffs’ claims for punitive
damages, nor did the order adjudicate the claims of Mr. Kheiv’s passengers. Accordingly,
on September 12, 2014, this Court entered an order, allowing Plaintiffs ten days to obtain a
final judgment in the trial court. Pursuant to this order, on September 19, 2014, the trial court
entered a supplemental order, adjudicating the remaining claims. The appellate record was
supplemented to include the adjudicatory order.

       While the appeal was pending, on November 26, 2014, Mr. Sadowski died, having
never left the Ave Maria assisted living center. On December 5, 2014, State Farm filed a
suggestion of death in this Court. By order of January 21, 2015, we granted a motion to
substitute, as parties to the appeal, the Co-Executors of Mr. Sadowski’s estate, his sons
Robert Edwin Sadowski and John Russell Sadowski (together with Brooks and David
Monypeny, “Appellees”).

                                           II. Issues

       State Farm appeals. It raises eleven issues as stated in its brief:

               1. Whether the court erred by failing to grant a directed verdict
               in favor of State Farm on all issues;

               2. Whether the court erred by allowing Chamroeun Kheiv to be
               cross-examined with the hearsay allegations of fault contained
               in the separate complaint filed against him on behalf of non-
               parties Jake Pravongienhkham, Jessica Huynh and Vuthy Srey

                                                7
while at the same time denying State Farm the right and ability
to prove that those allegations were subsequently voluntarily
dismissed by these same parties.         The error was then
exacerbated by plaintiffs’ counsel who highlighted these same
hearsay allegations in closing argument;

3. Whether the court erred by denying the motion for mistrial
made by defense counsel when plaintiff’s counsel told the jury,
during closing argument, that it should not be concerned about
“where the money might come from” to pay a judgment against
Mr. Kheiv, as this argument was a deliberate, improper allusion
to insurance;

4. Whether the court erred by allowing only selected Baptist
Memorial Hospital medical records into evidence while
excluding from evidence trial exhibit 22 in which the statement
is made and attributable to the plaintiff that “the reason he was
there [in the emergency room] was failure to yield, hit by a car;”

5. Whether plaintiffs’ counsel was guilty of acts of wrongdoing
(a) by displaying photographs of Kathryn Sadowski during
opening statement and then not offering those photographs into
evidence; (b) by displaying selected medical records of Kathryn
Sadowski with key words lifted and highlighted for the jury
without subsequently offering those records into evidence; and
(c) by telling the jury, during closing argument, that it should
“send through your verdict a message.”

6. Whether the court erred by instructing the jury concerning
TCA §55-8-118[, i.e., “Overtaking and passing on right,”] when
this statute was not applicable to the facts of this case.

7. Whether the court erred by allowing the introduction of the
past and future “medical” expenses at the Ave Maria assisted
living facility for Emil Sadowski in the absence of any proof
that these expenses were (a) causally related to the automobile
accident; and (b) consistent with the customary and prevailing
charges in the community for the same or similar services.

8. Alternatively, State Farm says that the jury award to the

                                8
                plaintiffs was excessive and not supported by the material
                evidence such that the court should remit the total damages
                awarded to the plaintiffs pursuant to T.C.A §20-10-102 . . . .

                9. Whether the court erred by granting judgment on the jury
                verdict by applying principles of comparative fault to the total
                assessment of damages before reducing the non-economic
                damages to the statutory caps instead of first reducing the non-
                economic damages to the statutory caps and then applying the
                principles of comparative fault.

                10. Whether the court erred by failing to reduce the total
                judgment in order to reflect pre-verdict payments made by State
                Farm to the plaintiffs totaling $5,000 in medical payments and
                $20,000 in death benefits.

                11. Whether the court erred by awarding plaintiffs discretionary
                costs which included fees paid to treating physicians who
                testified either by deposition or live at trial.

                                   III. Standard of Review

        The standard of review when examining a jury verdict approved by the trial court is
whether there is any material evidence to support the verdict. Tenn. R. App. P. 13(d). To
determine if material evidence supports the jury’s verdict, the appellate court shall: “(1) take
the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth
of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the
verdict; and (4) discard all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber
Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co., Inc. v. C & R Constr.,
Inc., 575 S.W.2d 4, 5 (Tenn.1978)).

                                          IV. Analysis

                                      A. Directed Verdict

      At the close of Plaintiffs’ proof, State Farm moved for a directed verdict under
Tennessee Rule of Civil Procedure 50.01.4 Plaintiffs’ theory of the case and contention is

       4
           Tennessee Rule of Civil Procedure 50.01 provides:


                                                9
that Mr. Kheiv was operating his vehicle at a high rate of speed, beyond the posted speed
limit along Highway 64, and that he was passing Ms. Taylor’s vehicle on the right when he
collided with the Sadowski vehicle as Mr. Sadowski pulled into the right lane to merge onto
Highway 64. State Farm argued that the Kheiv vehicle was “there to be seen” and that Mr.
Sadowski apparently did not see the oncoming vehicle before proceeding onto Highway 64.
As grounds for its motion for directed verdict, State Farm relied on Tennessee Trailways,
Inc. v. Ervin, 438 S.W.2d 733 (Tenn. 1969) and made the following argument at trial:

              This accident was going to happen. . . . And it didn’t matter if
              Mr. Kheiv was going 65 . . . or if he was going the speed limit.
              . . . [Mr. Kheiv] couldn’t miss [Mr. Sadowski] in either scenario.
              This accident was going to happen.
                         Now, the Tennessee Trailways case is directly on point.
              . . . [In that case,] [a]n accident reconstructionist testified. . . that
              . . . a bus was speeding down the highway, when a motorcyclist
              against the right-of-way coming out of a private drive entered
              the roadway in front of that speeding bus. . . . And when he did,
              the accident happened. At the close of plaintiff’s case, the bus
              company . . . moved for directed verdict . . . . The Court . . .
              ruled in favor of the bus company.
                         It went up to the Tennessee Supreme Court. And the
              Tennessee Supreme Court said, yes, under that situation, that
              exact same situation we have today, the proximate cause of the
              accident isn’t speed. The proximate cause of the accident is the
              motorcyclist, the plaintiff, who pulled from a position of safety
              against the right-of-way. . . for that bus company and caused this
              accident to happen.



              A motion for a directed verdict may be made at the close of the
              evidence offered by an opposing party or at the close of the case. The
              court shall reserve ruling until all parties alleging fault against any
              other party have presented their respective proof-in-chief. A party
              who moves for a directed verdict at the close of the evidence offered
              by an opponent may offer evidence in the event that the motion is not
              granted, without having reserved the right so to do and to the same
              extent as if the motion had not been made. A motion for a directed
              verdict which is not granted is not a waiver of trial by jury even
              though all parties to the action have moved for directed verdicts. The
              order of the court granting a motion for a directed verdict is effective
              without any assent of the jury.

                                                 10
                      As a matter of law, the proximate cause of that accident
              was Mr. Sadowski. . . . Mr. Sadowski must be found to be
              guilty of fault because all of the testimony to this point, he
              didn’t see Mr. Kheiv coming. And he has a duty under the law
              to see that which is there to be seen.

The trial court subsequently denied the motion for directed verdict, finding that the question
of fault was one for the jury.

        Directed verdicts are appropriate only when reasonable minds cannot differ as to the
conclusions to be drawn from the evidence. Alexander v. Armentrout, 24 S.W.3d 267, 271
(Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Ingram v. Earthman,
993 S.W.2d 611, 627 (Tenn. Ct. App. 1998). A case should not be taken away from the jury,
even when the facts are undisputed, if reasonable persons could draw different conclusions
from the facts. Gulf, M. & O.R. Co. v. Underwood, 187 S.W.2d 777, 779 (Tenn. 1945);
Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App.1995). A trial
court may, however, direct a verdict with regard to an issue that can properly be decided as
a question of law because deciding purely legal questions is the court’s responsibility, not the
jury’s.

        In appeals from a directed verdict, reviewing courts neither weigh the evidence,
Conatser v. Clarksville Coca–Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Benton
v. Snyder, 825 S.W.2d 409, 413 (Tenn.1992), nor evaluate the credibility of the witnesses.
Benson v. Tenn. Valley Elec. Coop., 868 S.W.2d 630, 638–39 (Tenn. Ct. App.1993).
Instead, they review the evidence in the light most favorable to the motion’s opponent, give
the motion’s opponent the benefit of all reasonable inferences, and disregard all evidence
contrary to that party’s position. Alexander, 24 S.W.3d at 271; Eaton, 891 S.W.2d at 590;
Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 199 (Tenn. Ct. App. 1999). A trial court
may, however, direct a verdict with regard to an issue that can properly be decided as a
question of law because deciding purely legal questions is the court’s responsibility, not the
jury’s.

        Concerning State Farm’s reliance on the Tennessee Trailways case, in ruling on the
motion for directed verdict, the trial court noted that “comparative fault change[d] how we
look at these cases in measuring fault. [When Tennessee Trailways was decided] in 1969.
. . we had simply fault, any fault or rule would prevent the plaintiff from prevailing.” It is
true that historically, Tennessee courts have applied the common law doctrine of contributory
negligence, which barred recovery by plaintiffs whose own negligence contributed to their
injury in any way. Carroll v. Whitney, 29 S.W.3d 14, 16 (Tenn. 2000) (citations omitted).
However, in 1992, the Tennessee Supreme Court abandoned contributory negligence in favor

                                              11
of a system of modified comparative fault. McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn.
1992). In doing so, the Court sought a tighter fit between liability and fault. Carroll, 29
S.W.3d at 16. Under the new system, a defendant would only be liable for the percentage of
damages that his or her own negligence caused. Id. at 16-17 (citing McIntyre, 833 S.W.2d
at 58.) Additionally, the Court adopted the non-party defense, allowing juries to apportion
fault to a culpable person or entity though they are not a party to the lawsuit. McIntyre, 833
S.W.2d at 58. The court recognized that without allowing participants in the negligent act to
share in the apportionment of fault, the tight fit between fault and liability would be lost.
Carroll, 29 S.W.3d at 20. Indeed, this Court has stated that, “[t]he trial court has the
responsibility to apportion fault to anyone having a degree of culpability.” Lindgren v. City
of Johnson City, 88 S.W.3d 581, 585 (Tenn. Ct. App. 2002) (citing Carroll, 29 S.W.3d at
22; Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000); Bervoets v. Harde Ralls Pontiac–Olds,
Inc., 891 S.W.2d 905 (Tenn.1994)). Although the Tennessee Trailways case may be
instructive on the issue of how much fault should be assigned to Mr. Sadowski, following
the adoption of comparative fault in Tennessee, Tennessee Trailways does not, necessarily,
preclude assignment of liability to Mr. Kheiv. In fact, the instant case is distinguishable from
Tennessee Trailways, where the Tennessee Supreme Court held that there was “no doubt that
plaintiff’s intestate rode his motorcycle up to the intersection, either hesitated or stopped,
and, with the bus in unobstructed view, suddenly and abruptly crossed the highway into the
northbound lane to the point of collision.” 438 S.W.2d at 735. Under this scenario, the Court
reasoned that “whether the bus was traveling 73.5 miles per hour or 63 miles per hour, speed
was not a proximate cause of the accident as a matter of law.” Id. The Court stated that it
was “plain that the immediate cause of the collision was not the speed of the bus; but
apparently the sudden and heedless entry of plaintiff’s intestate onto the north side of the
highway.” Id. As noted above, in reviewing the denial of a motion for directed verdict, this
Court must view the evidence in the light most favorable to the motion’s opponent, give the
motion’s opponent the benefit of all reasonable inferences, and disregard all evidence
contrary to that party’s position. Alexander, 24 S.W.3d at 271; Eaton, 891 S.W.2d at 590;
Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d at 199. Applying this standard to the facts
at bar, we conclude that unlike the plaintiff’s intestate in Tennessee Trailways, who
heedlessly pulled into the path of an observed vehicle, here, there is evidence that Mr.
Sadowski may not have had the opportunity to observe the Kheiv vehicle as it approached
from the west.

        Turning to the evidence that was presented in support of Plaintiffs’ case, Ms. Taylor
testified that she was traveling in the middle lane of Highway 64 when Mr. Kheiv’s vehicle
came up suddenly behind her. Ms. Taylor testified that she thought Mr. Kheiv’s vehicle was
going to hit her car until the vehicle suddenly swerved into the right lane to pass her. She
explained that as the Kheiv vehicle swerved, it was out of control, almost “fishtailing”:



                                              12
              As I remember, [the Kheiv vehicle] came up so fast behind me
              when I was looking in the rearview mirror I thought he was
              going to hit me. He swerved really sharp and came back and
              then hit the [Sadowski] car. That’s why I said he was out of
              control because it was almost like a fishtailing.

Ms. Taylor went on to state that, once Mr. Kheiv swerved into the right lane of Highway 64,
the collision happened “pretty immediately.” There was no evidence that Mr. Sadowski
failed to stop at the stop sign, and Ms. Taylor further opined that Mr. Sadowski could not
have seen Mr. Kheiv’s vehicle:

              Q. Could the SUV have seen–well, from the perspective of the
              SUV was there anyone else in the right-hand lane when they
              were making the turn?

              A. No. There was just the three of us right before the accident
              happened.

              Q. And the car that was coming up, it was coming up behind
              you, correct.?

              A. Uh-huh (Witness nods head affirmatively).

       In making its motion for directed verdict, State Farm relied, inter alia, on its cross-
examination of Plaintiffs’ accident reconstruction expert, Rob Miller. State Farm presented
Mr. Miller with a hypothetical that required him to assume that, if Mr. Kheiv’s vehicle was
just 33 feet away from Mr. Sadowski’s vehicle and was only going 45 miles per hour (the
posted speed limit on Highway 64) as opposed to 65 miles per hour,5 the accident would still
have occurred:

              Q [to Mr. Miller on cross-examination]. Mr. Sadowski never
              saw Mr. Kheiv at all, did he?

              A. That was his testimony to the officer and his statement to the
              officer he didn’t know what happened.



       5
        It was never established that Mr. Kheiv was traveling 65 miles per hour; accordingly, we
assume that the 65 miles per hour used in the hypothetical was an estimation of his alleged speed
based upon Ms. Taylor’s testimony and the other facts surrounding the accident.

                                               13
              *                             *                           *

              Q. If we back up Mr. Sadowski one half second as we did
              before that is going to put him at or just below the fog line, isn’t
              it?

              A. Yes.

              Q. That is going to put Mr. Kheiv 33 feet away?

              A. Yes, sir.

              Q. Is Mr. Kheiv going to be able to miss Mr. Sadowski?

              A. He couldn’t miss him in either scenario.

It must be noted that the foregoing testimony is based upon a hypothetical scenario.
Nonetheless, we must disregard all countervailing proof when reviewing a trial court’s
decision not to grant a directed verdict. Alexander, 24 S.W.3d at 271.

      Concerning the actual circumstances of the collision, Mr. Miller testified that if Mr.
Kheiv was not speeding when he changed lanes, he would not have been at the collision site
and would have been observable by Mr. Sadowski:

              Q. It has been said that speed doesn’t matter, that the decision
              to pull out, in some ways it wouldn’t have mattered what speed
              the Kheiv car was going. Would you agree with that?

              A. No.

              Q. Why not?

              A. Well, but for excessive speed on the Kheiv vehicle there
              would have been no collision. If he’s following behind Connie
              Taylor at 30 miles an hour, there’s no collision. If he’s driving
              even at 45 miles an hour there’s probably not going to be a
              collision, because then he’s further back down the road. Even
              if he’s in the right lane at 45 miles an hour there’s probably no
              collision because then Mr. Sadowski looks left and sees a
              vehicle in the right lane and doesn’t pull out, so speed does

                                                14
              matter in this particular case.

         The testimonies of Mr. Miller and Ms. Taylor bring this case in line with the case of
Roberson v. Motion Industries, Inc., No. E2004-02310-COA-R3-CV, 2005 WL 1584035
(Tenn. Ct. App. July 7, 2005). In that case, defendant Travis Weathers testified that he
stopped his vehicle at a stop sign and looked down the street both ways to see if there were
any vehicles approaching. Id. at *3. Seeing that it was safe to proceed, he pulled onto the
road, where his vehicle collided with plaintiff Carl Roberson’s vehicle. Id. Relying on the
Tennessee Trailways case, Mr. Roberson claimed that his allegedly excessive speed could
not be a proximate cause of the accident. Id. at *3-*4. The jury found Mr. Roberson 38%
at fault for the accident. The issues on appeal to this Court were whether Mr. Roberson’s
excessive speed was the proximate cause of the collision as a matter of law and whether the
trial court erred by not directing a verdict under Tennessee Trailways. Id. at *4-*5. This
Court affirmed the trial court’s denial of directed verdict and distinguished the Tennessee
Trailways decision. Id. Specifically, we noted that the passengers of the bus at issue in
Tennessee Trailways testified that the “motorcycle driver’s entry onto the highway was
‘sudden’ and ‘right in front’ of the bus.” Id. at *4. In contrast, Mr. Weathers testified that
when he looked down the street, the only visible vehicle was a garbage truck that was not
involved in the accident. Id. We held that “[i]f the jury credited Weathers’ testimony, which
apparently it did, then Weathers cannot be said to have pulled out in front of a vehicle which
was in his unobstructed view.” Id. at *4. We concluded that “[b]ecause there was evidence
in the . . . case from which a jury could reasonably conclude that Mr. Roberson’s vehicle was
not yet in sight and therefore not visible when Weathers looked for oncoming traffic and that
Weathers did not simply pull out in front of an observed vehicle, the above cases [which
included Tennessee Trailways]. . . are not controlling on the comparative fault issue.” Id.
at *5. Likewise, in the instant case, there is evidence from which the jury could reasonably
conclude that Mr. Kheiv’s vehicle was not in sight, either because it was still traveling
behind Ms. Taylor’s vehicle, or because it swerved into the right lane so suddenly that Mr.
Sadowski could not have seen it before he proceeded onto Highway 64. Thus, there was
sufficient conflicting evidence to create an issue of fact for the jury to decide. Accordingly,
we conclude that the trial court did not err in its refusal to direct a verdict.

                           B. Cross-Examination of Mr. Kheiv

        In its second issue, State Farm asserts that the trial court erred by allowing Mr. Kheiv
to be cross-examined concerning sworn allegations made by the three individuals who were
passengers in his vehicle on the day of the accident. Mr. Kheiv was State Farm’s witness;
he was called to give his account of how the accident occurred. Contrary to Mr. Miller and
Ms. Taylor’s testimonies, Mr. Kheiv testified that he was proceeding down Highway 64 in
the middle lane when the Sadowskis’ vehicle pulled straight in front of his vehicle. Mr.

                                                15
Kheiv testified that Mr. Sadowski was pulling across the three eastbound lanes of Highway
64 in an attempt to go west onto Highway 64. He further stated that the point of collision
was in the middle eastbound lane and that he was never in the right lane where Plaintiffs
assert the accident occurred. On cross-examination, Plaintiffs’ lawyer questioned Mr. Kheiv
about the differing versions. Mr. Kheiv was asked about the version of events offered by Ms.
Taylor, the eyewitness. He responded that “she has her version; I have mine.” Then,
Plaintiffs’ lawyer questioned Mr. Kheiv concerning the version of events offered in Mr.
Kheiv’s passengers’ sworn complaint:

              Q. Did Mr. Srey file a lawsuit against you?

              A. Yes, he did.

              Q. And did he say you were driving recklessly?

              A. I don’t know what he said.

              Q. Did he say you were speeding?

              A. I don’t know what he said.

              Q. Did he say you failed to maintain a proper lookout?

              A. I don’t know what he said.

              Q. All right. Now, wait a minute. Let’s get this straight. You
              got sued. You got sued by Mr. Srey, the passenger in your car,
              and your testimony to the Jury is that you don’t know whether
              those allegations were made against you?

              A. I don’t remember him saying that.

              Q. Well, do you want to read it or do you want me to read it to
              you or what? You got the complaint, didn’t you, sir? Didn’t
              you get it?

              A. Yeah, I got it.

              Q. You got served. Is this the kind of thing that happens to you
              every day?

                                            16
              A. No.

At this point in the cross-examination, State Farm’s lawyer objected and the following bench
conference was held outside the hearing of the jury:

              MR. MOORE [State Farm’s lawyer]: Objection. Hearsay. He’s
              been cross examined about allegations outside of this courtroom.

              *                                    *                        *

              MR. BAILEY [lawyer for Mrs. Sadowski’s estate]: This is not
              being introduced for the truth of the matter asserted. This is
              being introduced to show that other people obviously had a
              different perception of this than he did. And he knows that he
              got sued and that he acknowledged it and didn’t answer
              any–didn’t cooperate in any way.
                     This is all highly relevant to show the kind of person Mr.
              Kheiv is with regard to–

              THE COURT: You’re seeking to introduce the document [i.e.,
              the complaint filed against Mr. Kheiv by his passengers]

              MR. BAILEY: No. I’m not going to introduce the document.
              I’m just going to cross examine this witness.

              THE COURT: Objection overruled.

              MR. MOORE: As I understand it–

              THE COURT: Hang on a second.

              MR. MOORE: As I understand it from what he just said he’s
              trying to introduce it to show the state of mind of these
              passengers. And the state of mind of these passengers is not
              relevant.

              THE COURT: Objection overruled.

        State Farm’s argument concerning Mr. Bailey’s questioning of Mr. Kiev is two-fold.
First, State Farm contends that the allegations made in the Kheiv passengers’ lawsuit were

                                             17
hearsay statements or improper character evidence and, thus, it was improper for Plaintiffs’
lawyer to cross-examine Mr. Kheiv about what his passengers averred in their sworn
complaint against Mr. Kheiv. Second, State Farm contends that the alleged error in the scope
of cross-examination was exacerbated by the fact that Plaintiffs’ lawyer highlighted the
testimony in his closing argument. State Farm cites the following excerpt from the closing
argument:

               Now, we have some additional evidence to compare these
               stories to. There were six people at this collision site that saw
               everything. There was Jake Pravongviengkham, Jessica Huyn,
               and Vuthy Srey, who were the three passengers in the Kheiv
               vehicle. That’s three. There was Mr. Kheiv himself. That’s
               four. Connie Taylor, five; Emil Sadowski, six; and Kate
               Sadowski, seven. There’s actually seven people. So the three
               passengers all sued Chamroeun Kheiv and accused him of
               causing the collision.

State Farm contends that of these “seven witnesses,” only two, i.e., Ms. Taylor and Mr.
Kheiv, actually testified at the trial. As noted above, Ms. Taylor and Mr. Kheiv gave
contradictory accounts of how the accident occurred. By not omitting the questioning and
argument concerning the Kheiv passengers’ complaint, State Farm contends that the trial
court allowed Plaintiffs to “improperly argue to the jury that there was a weight of evidence
against Mr. Kheiv which included the passengers in his own vehicle. . . .”

         We note at the outset that State Farm did not make a contemporaneous objection
during Plaintiffs’ closing argument. The best practice would have been for State Farm to
object promptly and to request a curative instruction from the trial court. Morgan v. Duffy,
30 S.W. 735, 736 (Tenn. 1895); Lee v. Lee, 719 S.W.2d 295, 299 (Tenn. Ct. App.1986).
However, even if we allow, arguendo, that State Farm preserved its issue concerning the
scope of the Plaintiffs’ closing, it is well settled that in reviewing a trial court’s decision with
respect to arguments made by counsel, including those made in closing argument, this Court
applies an abuse of discretion standard. Perkins v. Sadler, 826 S.W.2d 439, 442 (Tenn. Ct.
App. 1991). Likewise, concerning the scope of cross-examination, we note that the
admissibility of evidence also rests within the sound discretion of the trial court. Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992) Accordingly, we review
the trial court’s decision under an abuse of discretion standard. State Dep't of Transp. v.
Veglio, 786 S.W.2d 944, 948 (Tenn. Ct. App.1989). The abuse of discretion standard requires
us to consider “(1) whether the decision has a sufficient evidentiary foundation, (2) whether
the trial court correctly identified and properly applied the appropriate legal principles, and
(3) whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn

                                                18
v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). “While we will set aside a
discretionary decision if it rests on an inadequate evidentiary foundation or if it is contrary
to the governing law, we will not substitute our judgment for that of the trial court merely
because we might have chosen another alternative.” Id. If this Court finds error, we will only
set aside the final judgment upon a finding that the error “more probably than not affected
the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).

        Turning back to Plaintiffs’ cross-examination of Mr. Kheiv, generally, “[a] witness
may be cross-examined on any matter relevant to any issue in the case, including credibility.
. . .” Tenn. R. Evid. 611. This rule “retains the English rule permitting wide-open scope of
cross-examination historically favored in Tennessee.” Tenn. R. Evid. 611 advisory
commission comment (citing Sands v. Southern Railway Co., 64 S.W. 478 (Tenn. 1901)).
Accordingly, “[i]t is well established that wide latitude should be afforded on
cross-examination.” Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270, 278
(Tenn. Ct. App. 1994). “Furthermore, a witness may be cross-examined to show possible
prejudice or bias, and this right should be limited only upon a showing of the most
extraordinary circumstances.” Id. (citing Phillips v. Pitts, 602 S.W.2d 246, 249 (Tenn. Ct.
App. 1980)).

        As noted above, State Farm argues that the Kheiv passengers’ statements were
hearsay, or, alternatively, that the statements were offered as improper “character evidence,”
in violation of Tennessee Rule of Evidence 404, which provides, in relevant part, that
“[e]vidence of a person’s character or trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion. . . .” As set out in full
context above, Mr. Bailey defended his cross-examination of Mr. Kheiv, stating that the
questions concerning Mr. Kheiv’s passengers’ complaint were “not being introduced for the
truth of the matter asserted. This is being introduced to show that other people obviously had
a different perception of this than he did.” Mr. Kheiv’s testimony contradicted Ms. Taylor’s
and Mr. Miller’s. Accordingly, Plaintiffs should have been allowed to impeach Mr. Kheiv’s
credibility on cross examination. Furthermore, our review of the transcript of the trial
indicates that State Farm’s lawyer was, in fact, the first to bring the passengers’ statements
to the attention of the jury. During opening argument, State Farm’s lawyer stated: “[Kheiv’s]
in the middle of those three eastbound lanes. That’s what he will say, that’s what his three
friends will say. . . .” Later, when State Farm’s lawyer was cross-examining Plaintiffs’
expert, Mr. Miller, he brought up the Kheiv passengers’ deposition testimonies, saying: “[I]f
the accident had instead happened–not in the center, in the middle of those three eastbound
lanes as the accident report shows and as the witnesses in the Kheiv vehicle say. . . ;” and “I
want you to confirm for the jury that when you read the depositions of [the three Kheiv
passengers] that’s what they all said is this accident happened in the middle of those three
center lanes.” Respectfully, State Farm cannot have its proverbial cake and eat it too.

                                              19
Because State Farm opened the door to the Kheiv passengers’ observations, we cannot
conclude that the trial court erred in declining to shut that same door on the Plaintiffs.
Regardless, State Farm has not shown that the disputed line of questioning “more probably
than not affected the judgment or would result in prejudice to the judicial process.” Tenn.
R. App. P. 36(b).

                                       C. Mistrial

      In its third issue, State Farm argues that Plaintiffs’ lawyer offered an improper
argument and injected the issue of insurance into the case by making the following
statements during his closing argument:

              Another thing I’m concerned about is if anybody says, “Oh,
              well, Mr. Kheiv doesn’t look to me like a very rich guy. He
              probably doesn’t have any money. Maybe we should cut him
              some slack.” Then I hope the rest of you will say, “Wait a
              minute. That’s not a factor for us to consider. We are not
              supposed to guess whether he does or doesn’t have money or
              where the money might come from or anything like that.”

Following this statement, State Farm objected and the following transpired outside the
hearing of the jury:

              MR. MOORE: I object and move for a mistrial. That was an
              obvious veiled reference to insurance for which there can be no
              excuse. I saw Your Honor’s eyebrows go up just as mine did.

              *                                  *                      *

              MR. BAILEY: That’s ridiculous. I’m telling the jury they are
              not supposed to even think about that subject.

              MR. MOORE: By bringing it up?

              MR. BAILEY: It’s a correct statement of the law.

              THE COURT: By saying don’t be concerned about where it
              comes from?

              MR. BAILEY: That’s right.

                                            20
                MR. MOORE: I ask for a mistrial.

                THE COURT: Stay away from that altogether, Mr. Bailey. That
                could mean Mr. Moore or family members, but you are getting
                dangerously close, so leave that subject alone.

                MR. BAILEY: All right.

                THE COURT: Your motion is denied.

       Generally speaking, the more modern cases recognize that before the “liability
insurance” error will warrant reversal, there must be a showing that the injection of liability
insurance into the case was an “error involving a substantial right [that] more probably than
not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
P. 36(b); Terry v. Plateau Electric Coop., 825 S.W.2d 418, 422-23 (Tenn. Ct. App.1991).
Some of the earlier cases analyzed such an error in the context of the so-called “harmless
error” statute, last codified at Tennessee Code Annotated Section 27-1-117.6 See e.g., East
Tennessee Natural Gas Co. et al. v. Peltz, 270 S.W.2d 591, 609 (Tenn. Ct. App.1954).

       In arguing that Plaintiffs’ lawyer’s statement that the jury should not be concerned
with “where the money might come from” was improper because it was “a deliberate attempt
to convey the fact of insurance to the jury,” State Farm compares the statements at issue here
to those made by a lawyer in the case of Lovin v. Stanley, 493 S.W.2d 725 (Tenn. Ct. App.
1973). In Lovin, this Court reversed the jury’s verdict and remanded the case for new trial
based, inter alia, upon the following statements made by counsel:

                You do not have to concern yourself one bit with the source of
                whatever you deem is reasonable and proper in this case. I
                normally wouldn’t or couldn’t say that and would be ashamed
                to, but now I have to. She’s in good hands, gentlemen, is all I
                can say. I am ashamed to have to bring it to you in this way.

Id. at 726-27 (emphasis added). Although State Farm asserts that Mr. Bailey’s statement is
“virtually identical” to the one that required reversal of the jury’s verdict in Lovin, we
conclude that Mr. Bailey’s statement, although (as the trial court correctly noted) perhaps
burgeoned on inappropriate argument, did not rise to the level of the statements made in
Lovin. In Lovin, the lawyer not only argued that the jury should not concern itself with “the



       6
           Repealed by Chapter 449 of the Public Acts of 1981.

                                                21
source” of payment on its verdict, but the lawyer also went so far as to make an overt
reference to a popular Allstate slogan, i.e., “You’re in Good Hands with Allstate.” The
Lovin Court reasoned that the statement “She’s in good hands” was a direct reference to
insurance and, as such, could lead “most jurors [to] equate counsel’s statement to defendants’
having insurance coverage” because the advertising slogan was universally known. Id. at
727. Because the gravamen of our holding in Lovin was the direct reference to the insurance
company’s advertising slogan, we cannot, as State Farm argues, stretch our holding in that
case to cover those situations, such as the one at bar, where a lawyer tells the jury not to be
concerned with the source of any payments. While such tactic may fall in the gray area of
what is appropriate argument, in order to warrant a mistrial, there would have to be some
evidence that Mr. Bailey’s statements were willfully made for the purpose of improperly
influencing the jury. Id.

        State Farm also cites the case of Woods v. Meachum, 333 S.W.2d 567 (Tenn. Ct.
App. 1960), where this Court remanded the case for a retrial. In Woods, the lawyer
inappropriately asked the defendant: “If this jury should give a $10,000 verdict against you,
not one penny of it would come out of your pocket, would it?” Although this statement does
improperly suggest the existence of insurance, our holding in Woods was also based on the
fact that the statement suggested the amount the jury should award. Id. at 577. Furthermore,
in Woods, the lawyer repeated the statement after the trial court ruled that it was improper.
Id. It was, therefore, the culmination of several errors that led us to order a new trial in
Woods. In this regard, the instant case is distinguishable. Here, Mr. Bailey’s statement does
not specifically mention or overtly allude to insurance; he states that the jury should not
worry about the source of payment. He does not, however, go so far as to indicate that the
payment would come from insurance proceeds. Furthermore, after the trial court cautioned
Mr. Bailey that he was proceeding dangerously close to the insurance topic, he immediately
changed his course and did not attempt to continue the line of argument. In Lasater Lumber
Co. v. Harding, 189 S.W.2d 583 (Tenn. Ct. App. 1944), this Court noted:

              The tendency of the courts is towards a more liberal rule in
              refusing reversals upon the ground that it appears from the
              evidence that the defendant carries indemnity insurance in such
              cases, especially where it appears that no improper practice has
              been resorted to inject the subject into the record. And this is as
              it should be, in view of the fact that the custom of automobile
              owners in carrying liability insurance against loss or damage has
              become so general that jurors must be assumed to be cognizant
              of the fact.

Id. at 588 (internal citations omitted). Likewise, in the case of Stroud v. Seaton, No.

                                              22
03A01-9802-CV-00060, 1998 WL 641923 (Tenn. Ct. App. Sept. 18, 1998), this Court
explained:

              It is error for a witness or an attorney to mention–in the presence
              of the jury–liability insurance during the trial of a motor vehicle,
              negligence case such as the one now before us. Lovin v. Stanley,
              493 S.W.2d 725, 727-28 (Tenn. Ct. App.1973). See also Rule
              411, Tenn. R. Evid. Our cases have emphasized that a party’s
              deliberate attempt to interject such evidence, especially if
              persistently pursued, is more apt to lead to reversal than is
              an inadvertent reference to insurance. See, e.g., Potts v.
              Leigh, 15 Tenn. App. 1, 5 (1931). In any event, it is clear from
              the cases that the issue of whether a reference to insurance is
              egregious enough to warrant a new trial is a matter that
              addresses itself to the sound discretion of the trial court, and that
              such discretion will be disturbed on appeal “only in exceptional
              cases.” Klein v. Elliott, 59 Tenn. App. 1, 436 S.W.2d 867, 880
              (Tenn. Ct. App.1968). See also Prewitt-Spurr Mfg. Co. v.
              Woodall, 90 S.W.2d 623, 624 (Tenn.1905).

Id. at *2 (emphasis added). Here, Mr. Bailey’s statement is not sufficiently egregious and
his pursuit of the insurance line of argument is not so overt as to rise to the level of the
“exceptional cases” that warrant retrial. Although the trial court was correct to caution Mr.
Bailey to immediately change the course of his argument, we cannot conclude that the denial
of State Farm’s motion for mistrial on this issue constitutes an abuse of discretion.

                                   D.    Medical Records

        During Dr. Mohan’s testimony, Plaintiffs introduced excerpted medical records from
the emergency room portion of Mr. Sadowski’s hospital bill. One of the portions of the bill
that was redacted was a handwritten notation concerning a statement that State Farm
attributed to Mr. Sadowski, wherein he allegedly stated that “the reason he was there [i.e.,
in the emergency room] was failure to yield, hit by a car.” State Farm’s lawyer asked Dr.
Mohan, on cross-examination:

              Q. Now, when you saw Mr. Sadowski you were able to speak
              with him and he was able to speak with you?

              A. That’s right.



                                               23
              Q. You were also able to read what had been written in the
              records before you saw him?

              A. Yes.

              Q. Do you recollect reading out of the emergency room that he
              told them–

At this point, Plaintiff’s lawyer objected and argued (outside the hearing of the jury) that the
disputed notation on Mr. Sadowski’s medical record was “double hearsay” in that “we don’t
know who said it. We don’t know who it was said to.” During further discussion at the
bench, Plaintiffs’ lawyer argued that “[the disputed notation] doesn’t even say who failed to
yield . . . [and] it would be unduly prejudicial to us to put this in here because it is not even
clear who it is referring to.” In addition, Plaintiffs’ lawyer noted that “there is nothing about
failure to yield, hit by a car that would in any way contribute to [Dr. Mohan’s] treatment of
Mr. Sadowski.” At this point, the trial court allowed State Farm’s lawyer to voir dire Dr.
Mohan to establish that the disputed record was kept in the ordinary course of business and
that the information contained therein was “recorded at the time [Mr. Sadowski] presented
to the emergency room.” Dr. Mohan also established that “the people who wrote down that
information. . . were under a business duty to record the information truthfully and
accurately.” Thereafter, Plaintiffs’ lawyer was given the opportunity to question Dr. Mohan.
During that portion of the voir dire, Dr. Mohan stated that he did not rely on the statement
“hit by a car, failure to yield,” in treating Mr. Sadowski. Furthermore, Dr. Mohan could not
definitively state who made the statement, or who wrote it down, although he assumed it was
written by an emergency room nurse during Mr. Sadowski’s triage.

       In overruling State Farm’s objection, the trial court stated, in relevant part:

              I have looked at the rules again, the Rules of Evidence and the
              document itself. Based upon what I have read from the
              document and the rules, Mr. Moore, I am going to deny your
              right to introduce this document on the following basis. Number
              one, I have heard that there was no reliance on this document by
              [Dr.] Mohan. Two, it was not used as an exception. It could be
              established as a business record exception, but not as to the
              admission statement contained in the record. And in this
              Court’s mind you have not demonstrated a second exception to
              the hearsay rule to allow this statement. It is not medical
              diagnosis of treatment. The Court did not view this as an
              admission by party opponent for admission against interest.

                                               24
                    Further, I did not look at this and view this as some prior
             inconsistent statement as it was a statement not signed or
             recorded by a physician.

      Regarding relevance, Tennessee Rule of Evidence 401 provides:

             Rule 401. Definition of “relevant evidence.”—“Relevant
             evidence” means evidence having any tendency to make the
             existence of any fact that is of consequence to the determination
             of the action more probable or less probable than it would be
             without the evidence.

Our Supreme Court recently explained:

             Relevant evidence is admissible, and irrelevant evidence is not,
             unless excepted by the state and federal constitutions, the
             Tennessee Rules of Evidence, or other rules or laws generally
             applicable to the courts. Tenn. R. Evid. 402. Relevant evidence
             is defined as “evidence having any tendency to make the
             existence of any fact that is of consequence to the determination
             of the action more probable or less probable than it would be
             without the evidence .” Tenn. R. Evid. 401. The admission of
             evidence is left to “the sound discretion of the trial judge,” Otis
             v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442
             (Tenn.1992), and “[r]elevancy is always a judicial question to be
             determined according to the issue which is to be tried.”
             Randolph v. State, 570 S.W.2d 869, 872 (Tenn. Crim.
             App.1978) (quoting Ellison v. State, 549 S.W.2d 691, 696
             (Tenn. Crim. App.1976)). We review a trial court's admission of
             evidence under an abuse of discretion standard and will reverse
             the decision to admit evidence only if “the court applied an
             incorrect legal standard, or reached a decision which is against
             logic or reasoning” and admission of the evidence “caused an
             injustice to the party complaining.” State v. Gilliland, 22
             S.W.3d 266, 270 (Tenn.2000) (quoting State v. Shirley, 6
             S.W.3d 243, 247 (Tenn.1999)) (internal quotation marks
             omitted).

In re Estate of Smallman, 398 S.W.3d 134, 149 (Tenn. 2013). Evidence that is relevant can
still be deemed inadmissible, however, if its probative value was substantially outweighed

                                             25
by the danger of unfair prejudice. See Herbert by Herbert v. Brazeale, 902 S.W.2d 933, 938
(Tenn. Ct. App.1995); Tenn. R. Evid. 403. Tennessee Rule of Evidence 403 provides:

              Exclusion of relevant evidence on grounds of prejudice,
              confusion, or waste of time.—Although relevant, evidence may
              be excluded if its probative value is substantially outweighed by
              the danger of unfair prejudice, confusion of the issues, or
              misleading the jury, or by considerations of undue delay, waste
              of time, or needless presentation of cumulative evidence.

       As noted above, Plaintiffs’ objection to the notation “failure to yield, hit by a car,”
was made on grounds that the statement was inadmissible hearsay contained within a hearsay
document. Specifically, Plaintiffs argue that “[b]ecause the . . . statement . . . is a statement
made by some unknown person that was then recorded by a different unknown person who
was treating Mr. Sadowski in the emergency room, this statement is double hearsay.”
Tennessee Rule of Evidence 805 addresses hearsay within hearsay and provides: “Hearsay
within hearsay is not excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules or otherwise by law.”

        In the first instance, medical records are not admissible unless they meet an
enumerated exception under Tennessee Rule of Evidence 803. Tenn. R. Evid. 802; State v.
Goldston, 29 S.W.3d 537, 540-41 (Tenn. Crim. App. 1999) (verifying that a hearsay
exception was met before agreeing that medical records were properly admitted by the trial
court). Here, State Farm makes three arguments. First, State Farm argues that because
Plaintiffs were permitted to introduce excerpted portions of the medical records “from that
very same emergency room presentation,” it should be allowed to introduce the portion of
the record containing the failure to yield statement. We have reviewed the portion of the trial
transcript where Plaintiffs were allowed to introduce certain portions of Mr. Sadowski’s
emergency room medical records, and there is no indication that State Farm lodged any
objection to the Plaintiffs’ proffer of this evidence. Consequently, any issues regarding the
portion of the medical records that were allowed into evidence are waived. Wright v. United
Servs. Auto. Ass'n, 789 S.W.2d 911, 914 (Tenn. Ct. App.1990). Simply because certain
portions of a hearsay document are allowed into evidence does not, ipso facto, mean that the
entire document will qualify for admission under the Tennessee Rules of Evidence, see
discussion supra.

      State Farm next contends that the disputed portion of Mr. Sadowski’s record should
come into evidence as an exception to the hearsay rule under Tennessee Rule of Evidence
803(4). The Rule provides:
             Statements for Purposes of Medical Diagnosis and

                                               26
              Treatment. Statements made for purposes of medical diagnosis
              and treatment describing medical history; past or present
              symptoms, pain, or sensations; or the inception or general
              character of the cause or external source thereof insofar as
              reasonably pertinent to diagnosis and treatment.

The rationale for this exception to the hearsay rule is that persons who are seeking medical
diagnosis and treatment will make reliable statements to assure proper medical care. State
v. Livingston, 907 S.W.2d 392, 396 (Tenn. 1995).

        As set out in full context above, Dr. Mohan established that he did not rely on the
statement “failure to yield, hit by a car” in diagnosing or treating Mr. Sadowski. Specifically,
Dr. Mohan testified: “I don’t care what they say. For treating this is not an important part of
information that this accident happened because of failure to yield or red light or green light.”
Furthermore, there was no evidence that any other physician, nurse, or medical employee
relied on this statement in treating Mr. Sadowski. In this regard, the instant case is similar
to State v. Lynn, 924 S.W.2d 892 (Tenn. 1996). In Lynn, our Supreme Court noted that a
statement in a medical record that the patient had been hit with a baseball bat was hearsay
by itself and could be admitted only if a hearsay exception existed. Id. at 898. In Lynn, the
proponent of the evidence argued that the statement that the patient had been hit by a baseball
bat was admissible under Tennessee Rule of Evidence 803(4) as the statement was arguably
made for purposes of medical diagnosis and treatment. The Supreme Court noted:

              The statements are admissible, however, only if they are
              reasonably pertinent to both diagnosis and treatment. In this
              instance, the state's expert witness, a neurosurgeon, testified
              that, for purposes of treatment, it made no difference whether
              the victim was hit with a baseball bat or a pool cue. This opinion
              contradicted that contained in the paramedic report which was
              admitted over objection. Upon retrial, the trial judge should
              carefully consider whether the statement in the paramedic's
              report satisfies the 803(4) requirements.

Id. at 898 (internal citation omitted). Dr. Mahon’s testimony that he did not rely on the
disputed statement in either his diagnosis or treatment of Mr. Sadowski, coupled with the
lack of any evidence that other medical personnel relied on the statement, precludes the
operation of Tennessee Rule of Evidence 803(4) in this case.

       Alternatively, State Farm argues that the medical record should come into evidence
under the exception outlined at Tennessee Rule of Evidence 803(6), which provides:

                                               27
              Records of Regularly Conducted Activity. A memorandum,
              report, record, or data compilation, in any form, of acts, events,
              conditions, opinions, or diagnoses made at or near the time by
              or from information transmitted by a person with knowledge and
              a business duty to record or transmit if kept in the course of a
              regularly conducted business activity and if it was the regular
              practice of that business activity to make the memorandum,
              report, record or data compilation, all as shown by the testimony
              of the custodian or other qualified witness or by certification
              that complies with Rule 902(11) or a statute permitting
              certification, unless the source of information or the method or
              circumstances of preparation indicate lack of trustworthiness.
              The term “business” as used in this paragraph includes business,
              institution, profession, occupation, and calling of every kind,
              whether or not conducted for profit.

        As noted above, Dr. Mahon testified that the disputed emergency room record was
“recorded at the time [Mr. Sadowski] presented to the emergency room.” Dr. Mohan also
established that “the people who wrote down that information. . . were under a business duty
to record the information truthfully and accurately.” This testimony may establish the medical
record itself as a business record that would qualify for admission under Rule 803(6).
However, recall that not only the record itself, but also the disputed statement “failure to
yield, hit by a car” must fall within a hearsay exception in order to come into evidence over
Plaintiffs’ objection. Dr. Mahon testified that he did not make the notation on the medical
record; he further explained that he did not know who made the notation. In short, the source
of the notation was never established.

        In addition, we note that the statement “failure to yield, hit by a car,” does not answer
the question of who failed to yield. Accordingly, its probative value is suspect. For this
reason, and for those enumerated above, we conclude that the disputed statement could
confuse, mislead, or prejudice the jury in violation of Tennessee Rule of Evidence 403,
supra. Conley v. Life Care Centers of America, Inc., 236 S.W.3d 713, 740-41 (Tenn. Ct.
App. 2007) (affirming the trial court’s exclusion of statements in a hospital record regarding
patient’s combative behavior where the source of that information was not known because
it was unreliable hearsay and more prejudicial than probative under Tennessee Rule of
Evidence 403). Therefore, we cannot conclude that the trial court abused its discretion in
declining to allow the portion of the medical records containing the statement “failure to
yield, hit by a car.”




                                               28
                                   E. Lawyer Misconduct

        State Farm further submits that it is entitled to a new trial because the jury was guided
by “bias, passion, and prejudice.” Specifically, State Farm asserts that Plaintiffs’ lawyer was
guilty of acts of wrongdoing including: (1) displaying photographs of Mrs. Sadowski in her
hospital bed without offering the photographs into evidence; (2) displaying selected medical
records with key words highlighted without offering the records into evidence; and (3) telling
the jury that it should “send through your verdict a message” during his closing argument.
It is well settled that “[m]isconduct by an attorney that results in prejudice may serve as a
basis for new trial. The burden of showing prejudice rests with the party seeking the new
trial, and [trial courts] have broad discretion in deciding whether to grant a motion for new
trial.” Maday v. Public Libraries of Saginaw, 480 F.3d 815, 819 (6th Cir. 2007) (citations
omitted). To be entitled to a new trial on the basis that the trial was unfair, the moving party
must show that the jury was influenced by prejudice or bias. Holmes v. City of Massillon,
Ohio, 78 F.3d 1041, 1045 (6th Cir.1996). This Court must “determine ‘whether there is a
reasonable probability that the verdict of the jury has been influenced by improper conduct.’”
Maday, 480 F.3d at 819 (citations omitted). The reviewing court must consider the totality
of the circumstances, considering the number of comments, the nature of the comments,
possible relevance to the issues, and the manner in which the parties and the court treated the
comments. Id.

                              1. Photos of Kathryn Sadowski

        Important to this issue is the fact that Brooks and David Monypeny, as Co-Executors
of Mrs. Sadowski’s estate, were represented by R. Sadler Bailey at trial. Mr. Sadowski was
represented by Donald Capparella. During his opening argument, Mr. Bailey allegedly
displayed photographs of Mrs. Sadowski in extremis, lying in her hospital bed. State Farm’s
lawyer lodged a timely objection to these photos, arguing that they had not been produced
during discovery and that the photos were outside the court’s pre-trial instruction limiting the
photographic evidence that could be presented to the jury. Although Mr. Bailey initially
insisted that he had produced the photos in response to State Farm’s requests for discovery,
he later clarified that his office never received a request from State Farm concerning the
disputed photographs. It was later discovered that State Farm had propounded this discovery
request only on Mr. Caparella and not on Mr. Bailey. Accordingly, we cannot conclude that
the trial court erred in denying State Farm’s motion for mistrial on grounds of displaying the
photographs.

       Furthermore, we note that the offending photographs are not contained in our
appellate record, as no offer of proof was made following the objection. The Tennessee
Rules of Appellate Procedure require the appellant to prepare the record on appeal so that it

                                               29
conveys a fair, accurate, and complete account of what transpired with respect to those issues
that are the bases of appeal. Tenn. R. App. P. 24(b). Furthermore, “it is essential that a proper
offer of proof be made in order that the appellate court can determine whether or not
[inclusion or exclusion of evidence] was reversible.” Harwell v. Walton, 820 S.W.2d 116,
118 (Tenn. Ct. App. 1991) (citing State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986)). We
will not reverse a trial court’s evidentiary ruling if the appellant fails to make an offer of
proof regarding the substance of the evidence. Dickey v. McCord, 63 S.W.3d 714 (Tenn. Ct.
App. 2001); Anderson v. American Limestone, Co., 168 S.W.3d 757 (Tenn. Ct. App. 2005).
Therefore, in the absence of these photographs, this Court cannot review them so as to make
an independent assessment of their potential impact on the jury. Accordingly, we defer to
the trial court’s decision on this issue.

                         2. Kathryn Sadowski’s Medical Records

       State Farm also contends that it is entitled to a new trial on the grounds that Mr. Bailey
displayed highlighted portions of Mrs. Sadowski’s medical records in an attempt to appeal
to the jury’s emotions. Again, we note that the offending portions of Mrs. Sadowski’s
medical records were not made part of our record on appeal so as to allow us any meaningful
review. However, more problematic is the fact that State Farm failed to lodge a timely
objection to the highlighted records. Any issues relating to the admission of the highlighted
records are waived because State Farm did not object when the documents were shown to
the jury. Tenn. R. App. P. 36(a) (providing that failure to contemporaneously object to the
admission of inadmissible evidence results in waiver of the issue on appeal).

                             3. Closing Argument Comments

       During closing argument, Mr. Bailey made the following statements:

                      Juries are called sometimes the conscience of the
              community. You set the standard for what is safe, what we will
              tolerate here in Shelby County, Tennessee, whether or not it’s
              okay in Shelby County, Tennessee, to drive like Mr. Kheiv did,
              because if we say that’s okay, then everybody is in danger,
              everybody.
                      I would hope and I ask this jury to send through your
              verdict a message that we don’t tolerate that kind of driving.
              We are not going to stand for it, and if you’re going to do that,
              you are going to be held accountable.

State Farm contends that the instruction to “send through your verdict a message” constitutes

                                               30
reversible error and requires remand for re-trial. We reiterate that, “[i]n general, the control
over the argument of counsel resides with the trial court, and the trial court has broad
discretion as to what shall and shall not be permitted in argument.” Davis v. Hall, 920
S.W.2d 213, 217 (Tenn. Ct. App.1995). In reviewing a trial court’s action in Davis, this
Court stated that it:

               generally will not interfere with the discretionary action of a trial
               court in refusing to grant a mistrial or a new trial for misconduct
               of counsel in argument unless the argument is clearly
               unwarranted and made purely for the purpose of appealing to
               passion, prejudices and sentiment which cannot be removed by
               sustaining the objection of opposing counsel.

Id. (citing Perkins v. Sadler, 826 S.W.2d 439, 442 (Tenn. Ct. App.1991)).

         We note that State Farm did not lodge a contemporaneous objection to this statement,
but waited until Mr. Bailey, immediately after the foregoing comments, made an alleged
reference to insurance coverage, see discussion supra. In this regard, the instant case is
similar to Smartt v. NHC Healthcare/McMinnville, LLC, et al., No. M2007-02026-COA-
R3-CV, 2009 WL 482475 (Tenn. Ct. App. Feb. 24, 2009), on which State Farm relies in its
brief. In Smartt, this Court held that the trial court did not err in finding that the “argument
was within the law provided in the jury instructions and defense counsel made no objection
at the time the argument was made.” Id. at *19. Likewise, in the instant case, the trial court
properly instructed the jury that “any question, objection, statement, or arguments made by
the lawyers during the trial are not evidence in the case.” Furthermore, the trial court
cautioned the jury “not [to] be influenced by sympathy, prejudice, or passion.” In light of
these instructions, and because there was no specific contemporaneous objection, we cannot
conclude that the trial court abused its discretion in declining to grant State Farm’s motion
for new trial on this ground.

                                     F. Jury Instructions

       In its sixth issue, State Farm asserts that the trial court erred in instructing the jury on
the statute governing the appropriate conditions for passing on the right. The statute,
Tennessee Code Annotated Section 55-8-118 provides:

               § 55-8-118. Overtaking and passing on right

                      (a) The driver of a vehicle may overtake and pass
                      upon the right of another vehicle only under the

                                                31
                      following conditions:

                      (1) When the vehicle overtaken is making or
                      about to make a left turn;

                      (2) Upon a street or highway with unobstructed
                      pavement not occupied by parked vehicles of
                      sufficient width for two (2) or more lines of
                      moving vehicles in each direction; and

                      (3) Upon a one-way street, or upon any roadway
                      on which traffic is restricted to one (1) direction
                      of movement, where the roadway is free from
                      obstructions and of sufficient width for two (2) or
                      more lines of moving vehicles.

                      (b) The driver of a vehicle may overtake and pass
                      another vehicle upon the right only under
                      conditions permitting that movement in safety. In
                      no event shall the movement be made by driving
                      off the pavement or main-traveled portion of the
                      roadway.

It is the trial court's duty to instruct the jury on “every factual issue and theory of the case
presented by the parties.” Ricketts v. Robinson, 169 S.W.3d 642, 646 (Tenn. Ct. App. 2004)
(citing Cole v. Woods, 548 S.W.2d 640, 642 (Tenn.1977)). This Court reviews the jury
charge in its entirety to determine whether the trial judge committed reversible error. Jury
instructions are not measured against the standard of perfection. The charge will not be
invalidated if it “fairly defines the legal issues involved in the case and does not mislead the
jury.” Id. Furthermore, a particular instruction must be considered in the context of the entire
charge. Id. (citing City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn.
Ct. App.1996)). Whether a jury instruction is erroneous is a question of law and is, therefore,
subject to de novo review with no presumption of correctness. Solomon v. First Am.
National Bank of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App.1989). The legitimacy of
a jury’s verdict is dependent on the accuracy of the trial court’s instructions, which are the
sole source of the legal principles required for the jury's deliberations. Therefore, a trial court
is under a duty to impart “substantially accurate instructions concerning the law applicable
to the matters at issue.” Hensley v. CSX Transp., Inc., 310 S.W.3d 824, 833 (Tenn. Ct. App.
2009) (quoting Bara v. Clarksville Mem'l Health Sys., Inc., 104 S.W.3d 1, 3-4 (Tenn. Ct.
App. 2002)). When considering whether a trial court committed prejudicial error in a jury

                                                32
instruction, it is our duty to review the charge in its entirety and to consider it as a whole. The
instruction will not be invalidated if it “fairly defines the legal issues involved in the case and
does not mislead the jury.” Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446
(Tenn.1992). The judgment of a trial court will not be set aside based on an erroneous jury
instruction unless it appears that the erroneous instruction more probably than not affected
the judgment of the jury. Tenn. R. App. P. 36(b); Gorman v. Earhart, 876 S.W.2d 832, 836
(Tenn.1994).

        State Farm argues that the jury instruction based on Tennessee Code Annotated
Section 55-8-118 has “no applicability in the case before the court.” Despite State Farm’s
argument, the testimony at trial indicated that the car driven by Mr. Kheiv passed Connie
Taylor’s vehicle on the right at a high rate of speed before colliding with the Sadowskis’
vehicle. Because Ms. Taylor’s version of events encapsulated Plaintiffs’ theory of the case,
Plaintiffs suggested that the trial court only instruct the jury concerning subsection (b) of the
statute, i.e., “[t]he driver of a vehicle may overtake and pass another vehicle upon the right
only under conditions permitting that movement in safety.” When asked whether he agreed
with the use of the truncated statute, State Farm’s lawyer stated: “I have no objection to the
plaintiff’s proposed instruction other than. . . [i]t is an incomplete excerpted statement of the
law.” From our reading of the jury charge conference, it appears that State Farm expressed
no general disagreement with the Tennessee Code Annotated Section 55-8-118 instruction
except that the entire statute was not proposed by the Plaintiffs. In light of State Farm’s
objection, the trial court agreed to instruct the jury with the entire statute. The trial court then
asked whether the following instruction was acceptable: “Number 10 I’m going to put at the
bottom, as I indicated, overtaking and passing on the right-hand side and I’m going to read
the entire statute, 55-8-118.” State Farm’s lawyer responded “No objection.” As noted
above, “a party who invites or waives error, or who fails to take reasonable steps to cure an
error, is not entitled to relief on appeal.” Tenn. R. App. P. 36(a). However, even if we
assume, arguendo, that State Farm has preserved this issue for appeal, we nonetheless
conclude that the trial court properly instructed the jury on Tennessee Code Annotated
Section 55-8-118 because part of Plaintiffs’ theory of the case was that Mr. Kheiv passed Ms.
Taylor’s vehicle in the right lane of Highway 64 and in an unsafe manner.

                              H. Ave Maria Medical Expenses

       In its next issue, State Farm asserts that the expenses Mr. Sadowski incurred for the
services provided by the Ave Maria assisted living center were not properly before the jury
because Plaintiffs failed to establish: (1) that the charges are “causally related to the
automobile accident;” and (2) that the expenses are “consistent with the customary and
prevailing charges in the community for the same or similar services.” It is well settled that
in personal injury lawsuits, the plaintiff “bears the burden of proving that medical expenses

                                                33
the plaintiff is seeking to recover are necessary and reasonable.” Borner v. Autry, 284
S.W.3d 216, 218 (Tenn. 2009).

       Turning to the record, as briefly discussed above, the evidence indicates that, prior to
the accident, Mr. Sadowski was living independently. However, Mr. Sadowski’s treating
physician, Dr. Sunita Jain, testified that after Mr. Sadowski left the Baptist Rehabilitation
Center, he needed supervision:

              Q [to Dr. Jain]: You indicated in your note that Mr. Sadowski
              would be going to an assisted living facility?

              A. Yes.

              Q. And you referred to that earlier as Ave Maria?

              A. Yes, that’s the name of the assisted living facility.

              Q. Did you have an opinion as to whether it was necessary for
              Mr. Sadowski to be discharged to an assisted living facility?

              A. Well, as was indicated in the notes, we . . . reviewed [Mr.
              Sadowski’s] status both from a functional point of view and
              from a disposition point of view . . . and it was determined that
              Mr. Sadowski still required supervision at the time of the
              discharge, which meant either somebody would have to be with
              him available at home or he needed to be in a place where
              another person would be available to provide that supervision.

              *                               *                          *

              Q. Why was it that he could no longer go home?

              A. Looking at his functional status he still required supervision
              for all of those tasks and in order for him to be home by himself
              he would have needed to be at least modified independent level,
              which he was not.

              *                                   *                          *

              Q. What is your opinion about whether his need for this around-

                                              34
              the-clock supervision was related to the car collision?

              A. Again, based on our history, he was reported to be
              independent prior to the trauma and given the injuries and the
              pain and the range of motion that we saw in the hospital as well
              as the safety issues, that’s what determined the need for
              supervision.

              Q. When you say prior to the trauma do you mean prior to the
              car collision that was reported?

              A. Yes.

              Q. Is this an opinion that you hold to a reasonable degree of
              medical certainty?

              A. Yes.

We glean from State Farm’s argument that it is of the opinion that because of Mr. Sadowski’s
advanced age and pre-existing conditions at the time of the accident, the requirement for
assisted living was not causally related to the accident. We note the well-established
principle that “a defendant takes a plaintiff as he finds him. The fact that a party is in a
weakened condition at the time of the injury is not a causal defense available to the
defendant.” Fuller v. Speight, 571 S.W.2d 840, 841 (Tenn. Ct. App. 1978). Regardless, from
Dr. Jain’s testimony, a reasonable jury could conclude that the Ave Maria expenses were
medically necessary and arose as a direct result of the accident.

       Beyond his initial need for assisted living, the record indicates that Mr. Sadowski
continued to need assistance for the two years he remained in assisted living. Ave Maria
Wellness Director Caralena Lawrence, who is a licensed social worker, has worked at the
Ave Maria facility for more than five years and oversees the day-to-day operations. Ms.
Lawrence testified that after arriving at Ave Maria, Mr. Sadowski did not improve. Rather,
he continued to need assistance with maintaining his living space, meal preparation,
administering his medication, and his personal hygiene. Ms. Lawrence further testified that
Mr. Sadowski’s cognition continued to decline after he came to the facility. She noted that
he continued to have difficulty with his “orientation,” especially concerning dates and time,
and that his short-term memory was affected. The record also indicates that, following the
accident and in light of the loss of his wife, Mr. Sadowski suffered from depression, which
further impaired his ability to care for himself.



                                             35
       Relying on Garner v. Maxwell, 360 S.W.2d 64 (Tenn. Ct. App. 1962), State Farm also
contends that “[i]n order for medical expenses to be introduced into evidence, there must be
testimony from a competent witness that the expenses are reasonable and necessary when
compared to other facilities that offer similar services in the community.” Id. at 68. The
relevant holding in Garner is as follows:

                      Defendants’ Assignment of Error VI complains of the
              ruling of the trial judge in allowing witness John W. Headrick,
              Office Manager of the Jackson-Madison County Hospital, to
              testify as to hospital and physical therapy bills incurred by
              plaintiff, without a showing that such medical expenses were
              necessary, and that charges therefor reasonable.
                      The witness, Headrick, testified as to the reasonableness
              of the charges made by the hospital as compared to charges
              made by other hospitals in the general area. Also, Dr. Dodson
              testified that he treated plaintiff at the Jackson-Madison County
              General Hospital and ‘put him on physiotherapy to limber up his
              knee’, and Dowling testified, specifically, that the amount of his
              bill, $200.00, was reasonable. We think the testimony objected
              to was competent. At most, even if the testimony objected to
              were considered as having been improperly admitted, it would
              not justify a reversal of the cause, but only a remittitur.

Id. at 167. Contrary to State Farm’s contention, Garner does not stand for the proposition
that proof of medical expenses may only be admitted in a personal injury or wrongful death
case when accompanied by proof that the charges are reasonable and necessary when
compared to other similar facilities in the community. In Garner, we held that testimony
from a hospital office manager that certain charges made by the hospital were reasonable as
compared to charges made by other hospitals in the area was competent evidence and
properly admitted. Id. at 168-69. In addition, we held that testimony from the plaintiff’s
treating physician that his own bill “was reasonable” was also competent and properly
admitted evidence to show the reasonableness of plaintiff’s medical expenses. Id. In short,
Garner stands for the proposition that “in a personal injury action the reasonableness of a
charge for medical or hospital services can be shown by testimony of a member of the
nonmedical staff of the hospital in which the injured party was treated.” Id.; see also L.C.
DiStasi, Jr., Annotation, Necessity and Sufficiency, in Personal Injury or Death Action, of
Evidence as to Reasonableness of Amount Charged or Paid for Accrued Medical, Nursing,
or Hospital Expenses. 12 A.L.R. 1347 (2011).




                                             36
        Here, Ms. Lawrence testified, in relevant part, that Mr. Sadowski’s medical charges
for his care at Ave Maria were reasonable:

              Q. Ms. Lawrence, you are familiar with the charges for Ave
              Maria, is that correct?

              A. Yes, I am . . . . I determine the level of care the person will
              [receive] and let the business office know . . . so she will know
              what to charge them.

              Q. Are the charges of Ave Maria for [Mr. Sadowski] living
              there, are they reasonable?

              A. Yes.

Under the holding in Garner, Ms. Lawrence was qualified to give testimony regarding the
reasonableness of Mr. Sadowski’s medical expenses. Furthermore, we note that State Farm
did not make a contemporaneous objection to the foregoing portion of Ms. Lawrence’s
testimony so as to dispute the foundation of her testimony. For these reasons, we cannot
conclude that the trial court erred in denying re-trial on this issue.

                                I. Excessive Jury Award

       In its next issue, State Farm argues that the jury’s award vis Mr. Sadowski is so
excessive and beyond the range of reasonableness that the trial court should have granted
State Farm remittitur of the entire award pursuant to Tennessee Code Annotated Section 20-
10-102, which provides in pertinent part as follows:

                     (a) In all jury trials had in civil actions, after the
                     verdict has been rendered and on motion for a
                     new trial, when the trial judge is of the opinion
                     that the verdict in favor of a party should be
                     reduced and a remittitur is suggested by the trial
                     judge on that account, with the proviso that in
                     case the party in whose favor the verdict has been
                     rendered refuses to make the remittitur, a new
                     trial will be awarded, the party in whose favor
                     such verdict has been rendered may make such
                     remittitur under protest, and appeal from the
                     action of the trial judge to the court of appeals.

                                              37
In denying this issue in its ruling on State Farm’s motion for new trial, the trial court, acting
as thirteenth juror, approved the jury’s verdict and specifically found that the damages
assessed were within the range of reasonableness. Where the trial court approves the verdict
as thirteenth juror, the appellate courts maintain the statutory authority to suggest or require
a remittitur on appeal. See Tenn. Code Ann. § 20-10-103(a). Specifically,

              if after the case was tried in the lower court with a jury and no
              remittitur was suggested by the trial judge, a remittitur is first
              suggested or required in the [C]ourt of [A]ppeals, on penalty
              of granting a new trial, then ... the party in whose favor the
              verdict or judgment has been rendered may make the remittitur
              under protest in the [C]ourt of [A]ppeals, and take the case, by
              application for permission to appeal, for review upon that point,
              to the [S]upreme [C]ourt.

 Id. (emphasis added); see Ellis v. White Freightliner Corp., 603 S.W.2d 125, 129 (Tenn.
1980); Murphy Truck Lines v. Brown, 313 S.W.2d 440, 443 (Tenn. 1958).

        Where the trial judge has approved the verdict in its role as thirteenth juror—as the
trial court did in this case—this Court’s review of the verdict and its ability to suggest a
remittitur is limited to a review of the record to determine whether the verdict is supported
by material evidence. Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn.1980); see also
Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn.1994); Ellis, 603 S.W.2d at 129.
Material evidence is “evidence material to the question in controversy, which must
necessarily enter into the consideration of the controversy and by itself, or in connection with
the other evidence, be determinative of the case.” Knoxville Traction Co. v. Brown, 89 S.W.
319, 321 (Tenn. 1905). An appellate court is required to take “the strongest legitimate view
of all the evidence in favor of the verdict, assume the truth of all evidence that supports the
verdict, allowing all reasonable inferences to sustain the verdict, and to discard all
countervailing evidence.” Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 501-
502 (Tenn. 2012) (quoting Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn.
2010)). The material evidence analysis is very deferential to the award by the jury and the
judgment of the trial court when it affirms the verdict as the thirteenth juror. See Ellis, 603
S.W.2d at 129 (“[W]hen the trial judge has approved the verdict, the review in the Court of
Appeals is subject to the rule that if there is any material evidence to support the award, it
should not be disturbed.”). “It matters not a whit where the weight or preponderance of the
evidence lies under a material evidence review.” Hohenberg Bros. Co. v. Mo. Pac. R.R. Co.,
586 S.W.2d 117, 119-20 (Tenn. Ct. App. 1979). “It is simply a search of the record to
ascertain if material evidence is present to support the verdict.” Id. Because the material
evidence standard lies at the foundation of the right to trial by jury, if there is material

                                               38
evidence to support a jury verdict, the appellate courts must affirm it. See Tenn. Const. art.
I, § 6; Truan v. Smith, 578 S.W.2d 73, 74 (Tenn.1979) (quoting D.M. Rose & Co. v. Snyder,
206 S.W.2d 897, 901 (Tenn. 1947)); see also Grandstaff v. Hawks, 36 S.W.3d 482, 497
(Tenn. Ct. App. 2000) (“We have a duty to uphold a jury’s verdict whenever possible.”). In
Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414 (Tenn. 2013), our Supreme Court
reiterated the role of the jury in assessing damages. Specifically, the Court held that the
plaintiff (here, Mr. Sadowski) has the burden of “proving damages to such a degree that,
while perhaps not mathematically precise, will allow the jury to make a reasoned assessment
of the plaintiff’s injury and loss.” Id. at 419. Then, “[w]e entrust the responsibility of
resolving questions of disputed fact, including the assessment of damages, to the jury.” Id.

     Turning to the record, as set out above, the jury awarded Mr. Sadowski the following
damages:

              Physical Pain and Suffering–Past            $150,000
              Physical Pain and Suffering–Future          $ 50,000
              Emotional Pain and Suffering–Past           $150,000
              Emotional Pain and Suffering–Future         $250,000
              Loss of ability to enjoy life–Past          $150,000
              Loss of ability to enjoy life–Future        $200,000
              Medical Expenses–Past                       $125,746
              Medical Expenses–Future                     $200,000
              Loss of consortium–past                     $ 50,000
              (period Kathryn Sadowski survived
              after collision)
              Loss of services of his wife, Katryn        $ 50,000
              Sadowski–past (period she survived
              after collision)

              *                               *                         *

              Loss of Emil Sadowski of the love,          $375,000
              society and companionship of his
              Wife, Kathryn Sadowski

       From the record, Mr. Sadowski spent several weeks in Baptist Hospital and in its
rehabilitation facility. He incurred over $58,000 in medical bills. State Farm asserts that Mr.
Sadowski had no overt injuries from the accident, i.e., no broken bones and no internal
injuries. State Farm further asserts that, during his hospital stay, Mr. Sadowski “was
consistently noted to be resting comfortably . . . without any complaint other than an

                                              39
overwhelming desire to ‘go home’.” The proof at trial does not fully support State Farm’s
contention on this point. Mr. Sadowski’s daughter, Terri McCord, testified about having to
leave Mr. Sadowski’s hospital room when the nurses would move him because she could not
listen to her father cry out in pain:

              [Mr. Sadowski] was in the hospital for about nine days. The
              first two or three days he was in absolute horrific pain. His back
              was hurting him real bad. Whenever he moved or if they tried
              to move him like if they would come in and want to turn him or
              move him and I would go out in the hallway and just wait and
              let them do their thing and I would hear him just yelling like,
              stop, stop, put me back.
                      His back was really in a lot of pain. He was on pain
              medication and it made him not clear headed. . . .

Likewise, Dr. Mohan testified that Mr. Sadowski “was in a lot of pain so we put him on
Morphine. IV Morphine he was getting as needed, every four hours as needed and also at that
same time we put him on Hydrocodone.” Dr. Mohan explained that, “[a]lthough he did not
break his bones . . . [Mr. Sadowski] had a pretty rough impact on his chest,” which
exacerbated his previous sternal injury.

        We have previously discussed the fact that, after he was discharged from the
rehabilitation center, his doctors required him to go to Ave Maria. According to Ms.
Lawrence’s testimony, by the time of trial, Mr. Sadowski had incurred an additional $74,000
in medical expenses at the assisted living facility. All evidence suggests that, prior to the
accident, Mr. Sadowski was independent and very able to care for himself. By the time of
trial, Mr. Sadowski had lost his wife of thirty years; had lost his ability to drive, which was
a favorite past time; and had lost his independence. From the time he came to live at Ave
Maria, the testimony indicates that Mr. Sadowski’s physical and mental condition continued
to decline, and he suffered from depression over the loss of Mrs. Sadowski and his
independent life. He also suffered from chronic back pain. The foregoing proof was largely
unrefuted in the record. At any rate, State Farm did not present countervailing evidence to
dispute either the losses Mr. Sadowski suffered or the costs of his care. From the totality of
the circumstances, we conclude that there was ample material evidence on which the jury
could base its award of both non-economic and economic damages to Mr. Sadowski.

       Concerning the damages for loss of consortium, it is well settled that damages
awarded for loss of enjoyment of life are intended to compensate a plaintiff for the
impairment of the ability to enjoy the normal pleasures of living. Lang v. Nissan N. Am.,
Inc., 170 S.W.3d 564, 571-72 (Tenn. 2005). Here, the trial court, without objection from

                                              40
State Farm, instructed the jury as follows:

              Loss of enjoyment of life takes into account the loss of the
              normal enjoyments and pleasures of life in the future, as well as
              limitations on the person’s lifestyle resulting from the injury.

“The determination of such non-pecuniary . . . damages involves a subjective element not
present in the determinations of ordinary facts. The jury trial guarantee requires that the
subjective element involved be that of the community and not of judges.” Smartt, 2009 WL
482475 at *21 (citing Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178 (Tenn. Ct. App.
2008)). Based upon the foregoing evidence concerning the effect of the accident on Mr.
Sadowski’s quality of life, there is ample evidence to justify the jury’s verdict for loss of
enjoyment of life and loss of consortium with Mrs. Sadowski.

                J. Application of Comparative Fault to Total Damages

      In its order on the jury’s verdict, the trial court reduced the total damages awarded to
Mr. Sadowski as follows:

              After reducing the [total] amount [of damages awarded] by the
              15% of fault allocated to Emil Sadowski, the judgment to Emil
              Sadowski is reduced from $1,050,000 in non-economic damages
              and $325,746 in economic damages to $892,500 in non-
              economic damages and $276,884.10 in economic damages. The
              $750,000 cap on non-economic damages in personal injury
              cases contained in Tenn. Code Ann. Sec. 29-39-102 further
              reduces the damages to Emil Sadowski as follows: non-
              economic damages of $892,500 is reduced to $750,000. Adding
              the economic damages after 15% fault reduction of $274,884.10
              to the remaining non-economic damages leaves a final judgment
              to Emil Sadowski of $1,026,884.10 ($750,000 + 276,884.10).
              [Mr. Sadowski was also awarded loss of consortium damages in
              addition to the $1,026,884.10].

The damages awarded to the other Plaintiffs were similarly reduced by the court upon the
application of comparative fault and the statutory cap on non-economic damages. On appeal,
State Farm argues that the trial court’s computation of the amount awarded to the Plaintiffs
was erroneous. Specifically, instead of reducing the total amount of the jury award first by
the 15% of fault assigned to Mr. Sadowski, and then applying the statutory cap to the reduced
amount, State Farm argues that the trial court should have first applied the statutory cap and

                                              41
then reduced the capped amount by the 15% for Mr. Sadowski’s fault.

        Although the statute governing the award of damages in civil actions, i.e., Tennessee
Code Annotated Section 29-39-102, does not specifically address the question of whether
comparative fault reductions should precede the application of the statutory cap, the statute
does state that “[t]he limitation on the amount of noneconomic damages . . . shall not be
disclosed to the jury, but shall be applied by the court to any award of noneconomic
damages.” Tenn. Code Ann. §29-39-102(g). In other words, the jury should make its award
as if the statutory cap does not exist, and the jury’s award should be based only on its
determination of the allocation of fault in the case and its determination of the type and
amount of damages. As noted above, “[w]e entrust the responsibility of resolving questions
of disputed fact, including the assessment of damages, to the jury.” Meals, 417 S.W.3d at
419. To apply the statutory cap before reducing the award by the percentage of fault–as State
Farm proposes– would undermine the autonomy of the jury and its role in the trial.

      In arguing its position, State Farm relies on subsection (b) of Tennessee Code
Annotated Section 29-39-102, which provides:

              If multiple defendants are found liable under the principle of
              comparative fault, the amount of all noneconomic damages, not
              to exceed seven hundred fifty thousand dollars ($750,000) for
              each injured plaintiff, shall be apportioned among the
              defendants based upon the percentage of fault for each
              defendant, so long as the plaintiff's comparative fault (or in a
              wrongful death action, the fault of the decedent) is not equal to
              or greater than fifty percent (50%), in which case recovery for
              any damages is barred.

The foregoing statute is applicable to those situations where liability has been assigned to
multiple tortfeasors. This is not the situation presented in the instant appeal. As correctly
noted by Plaintiffs in their brief:

             [P]aragraph [(b)] of the statute . . . does not apply to the issue
             presented by State Farm because an allocation of fault among
             multiple defendants does not reduce the overall award like the
             allocation of fault to a plaintiff. Indeed, in some cases, a fault
             allocation to a plaintiff can reduce the damages to an amount
             below the $750,000 cap, making the cap inapplicable and
             unnecessary.
       Although the statute addressing multiple defendants is not applicable in this case, and

                                             42
there are no Tennessee cases that directly address the question of whether a jury’s award on
non-economic damages in a personal injury case should be reduced to the statutory cap
before the application of comparative fault, we find the holding in Lindgren v. City of
Johnson City, 88 S.W.3d 581 (Tenn. Ct. App. 2002), involving another statutory cap, to be
instructive. By way of comparison, in Lindgren, which addressed the question of the
application of the statutory cap set out in the Governmental Tort Liability Act, Tennessee
Code Annotated Section 29-20-101 et seq., this Court held:

                   The trier of fact in a comparative fault case, such as this, should
                   first determine the total amount of the plaintiff's damages
                   without regard to fault, and then apportion damages on the
                   percentage of fault attributable to each tortfeasor. Grandstaff v.
                   Hawks, 36 S.W.3d 482 (Tenn. Ct. App.2000). In this case, the
                   Trial Court did not follow this procedure, although defendant
                   Johnson City had raised the comparative fault of Frizzell as an
                   affirmative defense. In a post-trial Motion, the plaintiff's
                   attorney sought to correct this error. However, at defendant's
                   urging, the Court ruled that it had lost jurisdiction of the case to
                   the appellate process. We vacate the award of damages and
                   remand with directions to the Trial Court on this record, without
                   hearing further proof, to determine the total amount of damages
                   to which plaintiff would be entitled, and then determine the
                   percentage of fault, if any, attributable to Frizzell, and then enter
                   Judgment against defendant, based upon the percentage of fault
                   attributed to the City in accordance within the constraints of the
                   Governmental Tort Liability Act. . . .

Id. at 585.

       Although Tennessee has not yet had the opportunity to specifically address this
question in the context of a personal injury case, other jurisdictions that have addressed the
interaction between a damages cap and principles of comparative fault have almost
unanimously held that any reduction or allocation based on comparative fault must be done
before applying the statutory cap where a plaintiff’s damages are subject to reduction based
on his or her comparative fault.7 See, e.g., In re Asbestos Litigation, Nos. 91-MD-875, 04-


         7
             As discussed in 1 Jacob A. Stein, Stein on Personal Injury Damages § 4:43 (3d ed.
2014):

                   A Texas Court of Appeals held that the statutory punitive damages

                                                    43
CV-2405, 2013 WL 424687 (E.D.N.Y. Jan. 22, 2013) (“The starting point for imposing
applicable caps will be the total award determined by the jury for the cause of action. Where
the jury allocates fault . . . pursuant to the comparative negligence statute, the court will first
reduce each defendant’s damages so they are proportionate to the percentage of fault
attributable to that specific defendant. What remains after deduction of any percentage of the
[uncapped] damage award imputed to [the defendant] is the ‘aggregate sum’ to which the
statutory cap is applied. If the fault attributed to a defendant on an award subject to the
statutory cap is less than $250,000, no further deduction need be applied” (internal citations
omitted)); General Elec. Co. v. Niemet, 866 P.2d 1361 (Colo. 1994) (holding that, in cases
involving multiple defendants or plaintiff who is partially at fault, the trial court should
ascertain pro rata liability of defendants and plaintiff before applying statutory cap on non-
economic damages);8 Collins v. Commonwealth of Ky. Natural Resources and


                cap of four-times actual damages is calculated using actual damages
                amount awarded by jury, not amount reduced after comparative fault
                calculation. The jury awarded plaintiff $2.5 million on plaintiff's
                defective design claim against the manufacturer of a radial saw
                without a lower blade guard. The jury found that plaintiff sustained
                $592,704.91 in damages and award $2 million in punitive damages.
                Because the jury found plaintiff 30 percent liable, however, the
                damages amount was reduced to $414,893.44. Defendants argued that
                $2 million in punitives exceeded four times $414,893.44, and
                therefore must be reduced. The Texas Court of Appeals held that the
                cap applied to the damage award prior to reduction for comparative
                fault. Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416 (Tex. App.
                Beaumont 1999), reh'g overruled, (Oct. 7, 1999) and petition for
                review filed, (Nov. 23, 1999).

Id. From our research, Texas is the only jurisdiction that has specifically held that the damages cap
applies before comparative liability percentages.
       8
           We note that Chief Justice Rovira and Justice Lohr filed a separate dissent in Niemet,
arguing:

                The majority holds that the statutory cap for noneconomic damages
                applies to individual defendants, and therefore, it does not act as a cap
                on the total amount of noneconomic damages awarded to a plaintiff.
                In so holding, the majority concludes that in cases involving multiple
                defendants a trial court must first apportion liability to the appropriate
                parties, pursuant to the pro rata liability statute, and then apply the
                statutory cap for noneconomic damages to each individual defendant.
                Maj. op. at 1362. I disagree with this interpretation. Section

                                                   44
Environmental Protection Cabinet, 10 S.W.3d 122 (Ky. 1999) (holding that where damages
totaled $900,000 and decedent was found to be 80% comparatively negligent, Board erred
when it calculated damage award by first reducing the damages to the $100,000 statutory cap
and then further reducing this figure to $20,000 due to decedent’s comparative negligence
where the proper procedure is to apply reduction for comparative negligence to total amount
of damages and then limit recovery to statutory maximum); Hall v. Brookshire Bros., Ltd.,
848 So.2d 559 (La. 2003) (holding that, in a case covered by the Louisiana Medical
Malpractice Act, comparative fault is allocated prior to application of the damages cap);
Brown v. Crown Equipment Corp., 960 A.2d 1188, 1195 (Me. 2008) (“A jury’s finding of
comparative negligence should be applied before any statutorily mandated caps on [loss of
consortium] damages are subtracted from the total amount of damages.”); McAdory v
Rogers, 264 Cal.Rptr. 71 (2nd Dist. 1989) (holding that when a percentage of fault has been
attributed to a malpractice plaintiff, the jury’s verdict should be reduced by the percentage
of fault attributable to the plaintiff before the statutory limitation on damages is applied);
Gann v. Joeckel, 884 P.2d 451 (Kan. Ct. App. 1994) (holding that the then-existing
$100,000 cap on non-economic damages in the Kansas wrongful death statute is applied after
any reduction of the total non-economic damages to reflect the decedent’s or the plaintiff’s
comparative fault); Guiliani v. Shehata, 19 N.E.3d 971 (Ohio Ct. App. 2014) (holding that
trial court properly applied jury's comparative fault finding in medical malpractice action
before, rather than after reducing non-economic damage award under statute placing cap of
$250,000 on recovery of non-economic damages).

       We adopt the reasoning in the foregoing cases, which represent the holdings of the
majority of jurisdiction that have specifically addressed this question. Accordingly, we hold,
as a matter of law, that, in personal injury cases, the trial court should first reduce the jury’s
award of non-economic damages by the percentage of comparative fault, and then, if the
adjusted award is still above the statutory cap, the court should reduce the award further to
comport with the cap.




               13–21–102.5, 6A C.R.S. (1987 & 1993 Supp.), which creates the
               statutory cap for noneconomic damages, is clear and unambiguous.
               The statute is intended to limit a plaintiff's total recovery for
               noneconomic damages regardless of the number of defendants
               involved. Thus, in my view, a trial court should apply the statutory
               cap for noneconomic damages prior to apportioning liability among
               the defendants. Further, this application of the statutory cap is not
               inconsistent with the purposes inherent in the pro rata liability statute.

Niemet, 866 P.2d at 1368.

                                                  45
                    K. Reduction of Verdict by Policy Amounts Paid

        State Farm further asserts that it is entitled to a reduction of the total judgment by the
amount of the pre-verdict payments it made to the Sadowskis. Specifically, it requests a
credit for the $5,000 it paid in medical coverage payments and $20,000 in death benefits.
This issue rests upon an interpretation of the insurance policy entered by and between the
Sadowskis and State Farm. The policy was made part of the record as an exhibit to
Plaintiffs’ response to State Farm’s motion for new trial. The policy provides, in relevant
part:

               12. Our right to Recover Our Payments
               Death, Dismemberment and Loss of Sight Coverage and Loss of
               Earnings Coverage payments are not recoverable by us. Under
               all other coverages the following apply:

               a. Subrogation

               If we are obligated under this policy to make payment to or for
               a person who has a legal right to collect from another party, then
               we will be subrogated to that right to the extent of our payment.

               The person to or for whom we make payment must help us
               recover our payments by:
               (1) doing nothing to impair that legal right;
               (2) executing any documents we may need to assert that legal
               right; and
               (3) taking legal action through our representatives when we ask;
               and

               b. Reimbursement

               If we make payment under this policy and the person to or for
               whom we make payment recovers or has recovered from
               another party, then that person must:
               (1) hold in trust for us the proceeds of any recovery; and
               (2) reimburse us to the extent of our payments.

(Emphasis added).

       In Garrison v. Bickford, our Supreme Court set out the principle guiding the

                                               46
interpretation of insurance policies:

              Equally well-established is the principle that “[i]nsurance
              policies are, at their core, contracts.” As such, courts interpret
              insurance policies using the same tenets that guide the
              construction of any other contract. Thus, the terms of an
              insurance policy “ ‘should be given their plain and ordinary
              meaning, for the primary rule of contract interpretation is to
              ascertain and give effect to the intent of the parties.’ ” The
              policy should be construed “as a whole in a reasonable and
              logical manner,” and the language in dispute should be
              examined in the context of the entire agreement.

Garrison v. Bickford, 377 S.W.3d 659 663-64 (Tenn. 2012) (internal citations omitted).
Applying the Garrison holding to the policy at issue here, it is clear that the first sentence
of paragraph 12 precludes State Farm from recovering the $20,000 death benefits paid on
behalf of Mrs. Sadowski (i.e., “Death . . . payments are not recoverable by us” (emphasis
added)).

       Concerning the $5,000 in medical payments, in order to recover this amount, the
reimbursement clause (i.e., paragraph 12b of the policy) would need to apply. The
Sadowskis, however, did not recover any funds “from another party,” which is the triggering
event for State Farm’s right to reimbursement. Rather, because State Farm defended under
the uninsured motorist section of the policy, and because State Farm itself, as opposed to
another person, paid these amounts, which were never subsequently recouped from another
tortfeasor, the plain language of the policy precludes State Farm’s recovery of the $5,000.

                                  L. Discretionary Costs

       Finally, we consider State Farm’s issue concerning whether the trial court erred in
granting Plaintiffs’ motion for discretionary costs. We review a trial court’s decision to
award discretionary costs for an abuse of discretion. Quebecor Printing Corp. v. L & B Mfg.
Co., 209 S.W.3d 565, 583 (Tenn. Ct. App. 2006). As this Court has explained:

                      Tenn. R. Civ. P. 54.04(2) permits prevailing parties in
              civil actions to recover “discretionary costs.” The purpose of
              this provision is not to punish the losing party but rather to help
              make the prevailing party whole. Owens v. Owens, 241 S.W.3d
              478, 496–97 (Tenn.Ct.App.2007); Scholz v. S.B. Int'l, Inc., 40
              S.W.3d 78, 85 (Tenn.Ct.App.2000). The particular equities of

                                              47
             the case may influence a trial court’s decision to award
             discretionary costs, Perdue v. Green Branch Mining Co., 837
             S.W.2d 56, 60 (Tenn.1992), and, therefore, parties are not
             entitled to discretionary costs simply because they prevail.
             Scholz v. S.B. Int'l, Inc., 40 S.W.3d at 85; Sanders v. Gray, 989
             S.W.2d 343, 345 (Tenn. Ct. App.1998).
                     The party seeking discretionary costs has the burden of
             convincing the trial court that it is entitled to these costs.
             Carpenter v. Klepper, 205 S.W.3d 474, 490 (Tenn.Ct.
             App.2006); Stalsworth v. Grummons, 36 S.W.3d 832, 835
             (Tenn.Ct.App.2000). As a general matter, a party seeking
             discretionary costs can carry its burden by filing a timely and
             properly supported motion demonstrating (1) that it is the
             prevailing party, (2) that the costs being sought are included in
             Tenn. R. Civ. P. 54.04(2), (3) that the costs are necessary and
             reasonable, and (4) that it has not engaged in conduct during the
             litigation that would justify depriving it of the costs it is
             requesting. Trundle v. Park, 210 S.W.3d 575, 582
             (Tenn.Ct.App.2006); Waggoner Motors, Inc. v. Waverly
             Church of Christ, 159 S.W.3d 42, 65–66 (Tenn.Ct.App.2004);
             Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 35–36
             (Tenn. Ct. App. 2002).

Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 214-15 (Tenn. Ct. App. 2008).

      In pertinent part, Tennessee Rule of Civil Procedure 54.04, provides:

             Costs not included in the bill of costs prepared by the clerk are
             allowable only in the court's discretion. Discretionary costs
             allowable are: reasonable and necessary court reporter expenses
             for depositions or trials, reasonable and necessary expert witness
             fees for depositions (or stipulated reports) and for trials,
             reasonable and necessary interpreter fees not paid pursuant to
             Tennessee Supreme Court Rule 42, and guardian ad litem fees;
             travel expenses are not allowable discretionary costs . . . .

Tenn. R. Civ. P. 54.04(2).

     State Farm argues that the award of $7,100 for the costs of the testimony of the
Sadowskis’ treating physicians was improper because the physicians are not “experts,” as

                                            48
contemplated by the Rules of Civil Procedure. The cases relied upon by State Farm in its
appellate brief, i.e., Alessio v. Crook, 633 S.W.2d 770 (Tenn. Ct. App. 1982) and Small ex
rel. Russell v. Shelby County Schools, No. W2007-00045-COA-R3-CV, 2008 WL 360925
(Tenn. Ct. App. Feb. 12, 2008), stand only for the proposition that treating physicians should
not be considered “expert witnesses” for purposes of pre-trial disclosure under Tennessee
Rule of Civil Procedure 26. Rather, an expert for Rule 26 purposes develops his or her
opinion “in anticipation of litigation or for trial.” Tenn. R. Civ. P. 26.02(4). A treating
physician develops his or her opinions in the course of treating a patient and, thus, parties are
not required to fashion discovery requests in accordance with Rule 26.02(4) in order to learn
the identity and opinions of a treating physician. See Alessio, 633 S.W.2d at 779-80; see also
Buckner v. Hassell, 44 S.W.3d 78, 84 (Tenn. Ct. App. 2001) (distinguishing Alessio where
a treating physician was “rendered . . . an expert witness under Tennessee Rule of Civil
Procedure 26" when he considered matters outside his treatment of the plaintiff in rendering
his opinion on the standard of care). In short, State Farm’s reliance on cases addressing the
definition of “expert” for Rule 26 purposes is misplaced. Merely because treating physicians
are not “experts” under Rule 26 does not, ipso facto, mean that they are not experts for other
purposes. For example, a treating physician may be considered an “expert” as that term is
used in Tennessee Rule of Evidence 702 because of his or her “specialized knowledge” in
the areas of medical treatment. Furthermore, in personal injury lawsuits, “plaintiffs must
present competent expert testimony” to establish that the medical expenses plaintiff incurred
are “necessary and reasonable.” Borner v. Autry, 284 S.W.3d 216, 218 (Tenn. 2009); see
also Miller v. Choo Choo Partners, L.P., 73 S.W.3d 897, 901 (Tenn. Ct. App. 2001)
(holding that causation of medical condition must be established by a medical expert).
Typically, this “expert testimony” to meet the personal injury plaintiff’s burden is supplied
by the treating physician. Here, the testimonies of Dr. Jain and Dr. Mohan were “necessary”
to Plaintiff’s proof. Without these witnesses, Plaintiffs would not have shown that the
medical costs were necessary and reasonable or that they were related to the accident.
Accordingly, we cannot hold that the trial court abused its discretion in awarding Plaintiff’s
discretionary costs for this testimony under Tennessee Rule of Civil Procedure 54.04(b).

                                        V. Conclusion

      For the foregoing reasons, we affirm the judgment of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellant, State Farm Mutual Insurance
Company, and its surety, for all of which execution may issue if necessary.


                                                    _________________________________
                                                    KENNY ARMSTRONG, JUDGE

                                               49
