                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      March 22, 2011 Session

PATTI ZAKOUR, A/K/A PATTI SMITH, DECEASED, BY NEXT OF KIN,
 INDIVIDUALLY AND AS NATURAL CHILDREN, NEXT FRIEND AND
ON BEHALF OF ANY AND ALL WRONGFUL DEATH BENEFICIARIES
OF PATTI ZAKOUR, A/K/A PATTI SMITH, DECEASED v. UT MEDICAL
                        GROUP, INC.

                 Direct Appeal from the Circuit Court for Shelby County
                No. CT-002051-08    D.J. Alissandratos, Retired Chancellor


                     No. W2010-01499-COA-R3-CV - Filed May 19, 2011


The trial court granted Defendant’s motion to set aside the judgment arising from a jury
verdict in favor of Plaintiffs in this medical malpractice/wrongful death action. It also
conditionally granted Defendant’s alternative motion for a new trial. In light of Abshure v.
Methodist Healthcare, we vacate the judgment and remand for further proceedings.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Daniel A. Seward, Memphis, Tennessee, for the appellants, Patti Zakour, deceased, by next
of kin, Jacob Shores, Eric Nelson, Leif Nelson and Misty Nelson.

John H. Dotson and Michael L. Robb, Memphis, Tennessee, for the appellee, UT Medical
Group, Inc.

                                   MEMORANDUM OPINION 1


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
                                                                                               (continued...)
       This is the second appeal in this medical malpractice lawsuit. On March 8, 2000, Patti
Zakour (Ms. Zakour) filed a complaint in the Circuit Court for Tipton County against Nancy
Moultrie-Rockstroh, M.D.; Scott Craig, M.D; John Kelly, M.D.; the University of Tennessee
Medical Group a/k/a Family Practice Center (“UTMG”); Baptist Memorial
Hospital–Covington; Soheil Hanna, M.D; and Independent Radiology Associates, PLC. In
her complaint, Ms. Zakour alleged that Defendants failed to timely diagnose and failed to
properly treat her breast cancer. Only UTMG and Dr. Craig remained as defendants when
the matter was tried. The trial court entered a judgment on a jury verdict in favor of the
Defendants, and Ms. Zakour appealed. We affirmed, and Ms. Zakour appealed to the
Tennessee Supreme Court. During the pendency of her appeal, Ms. Zakour died of cancer
and her four children (hereinafter, “Plaintiffs”) were substituted as parties. The supreme
court reversed and remanded upon determining that Defendants’ peremptory challenges
against African-American jurors were not race-neutral, and that Defendants had failed to
rebut Ms. Zakour’s prima facie case of purposeful gender discrimination with respect to its
peremptory challenges against female jurors. The supreme court held that the peremptory
challenges therefore violated Batson v. Kentucky, 476 U.S. 79 (1986), and remanded the case
for a new trial. Zakour v. UT Medical Group, Inc., 215 S.W.3d 763 (Tenn. 2007) (“Zakour
I”).

        The matter was set for a new trial in Tipton County. On April 25, 2008, Plaintiffs
voluntarily non-suited their action and filed a complaint in the Circuit Court for Shelby
County, naming UTMG as the sole Defendant. In their complaint, they asserted UTMG was
liable for damages caused by alleged negligent acts and omissions of its employees, Dr. Scott
Craig (Dr. Craig), Dr. Nancy Rockstroh (Dr. Rockstroh), and Dr. John Kelly (Dr. Kelly),
based upon the theory of respondeat superior. They prayed for compensatory damages in the
amount of $15,000,000 for damages arising from alleged medical malpractice, negligence,
wanton conduct, reckless conduct, wrongful death, and constitutional violations. Plaintiffs
also prayed for punitive damages in the amount of $30,000,000, and for compensatory
damages for loss of consortium in the amount of $1,000,000.

       UTMG answered, moved the court to dismiss the matter for failure to state a claim,
and asserted a number of affirmative defenses, including comparative fault and improper
venue. The trial court denied UTMG’s motion to dismiss on March 3, 2009. This court
denied permission for interlocutory appeal in June 2009. Relying on this Court’s opinion in


       1
        (...continued)
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.


                                                 -2-
Abshure v. Upshaw, No. W2008-01486-COA-R3-CV (Tenn. Ct. App. Mar. 17, 2009),
UTMG filed a motion to dismiss Plaintiffs’ claims based on the acts and omissions of Dr.
Craig and Dr. Rockstroh. The trial court granted UTMG’s motion in November 2009.

        In November 2009, Plaintiffs amended their complaint to add a claim for violation of
constitutional rights and a claim for direct negligence arising from negligent supervision.
Plaintiffs amended their prayer for damages and sought $30,000,000 in compensatory
damages for medical malpractice, negligence, wanton conduct, reckless conduct, and
wrongful death; punitive damages in the amount of $30,000,000; compensatory damages in
the amount of $5,000,000 for loss of consortium and severe emotional distress; and damages
in the amount of $10,000,000 for constitutional damages. Plaintiffs demanded a trial by jury.

        In February 2010, the trial court granted UTMG’s motion for summary judgment with
respect to Plaintiffs’ claims for violation of constitutional rights and for negligent
supervision. The trial court denied UTMG’s motion to dismiss for claims based upon acts
of Dr. Kelly as time-barred. The matter was tried before a jury in March 2010. UTMG
moved for a directed verdict at the close of Plaintiffs’ proof and at the close of all proof. The
trial court granted the motion with respect to Plaintiffs’ claim for punitive damages, but
denied UTMG’s motions based upon the comparative fault of Ms. Zakour.

       On March 26, 2010, the jury returned a verdict in favor of Plaintiffs. The jury
assessed 1% fault against Ms. Zakour, and 99% against UTMG. On April 5, 2010, the trial
court entered an order on the jury verdict awarding Plaintiffs damages in the amount of
$2,574,000. In April 2010, UTMG filed a motion to set aside the verdict or, in the
alternative, for a new trial. On May 14, 2011, the trial court entered an order setting aside
the verdict, entering judgment in favor of UTMG, and alternatively and conditionally
granting UTMG’s motion for a new trial. Plaintiffs filed a timely notice of appeal to this
Court.

                                       Issues Presented

       Plaintiffs assert the trial court erred by granting UTMG’s motion to set aside the
judgment and, conditionally, for a new trial; by dismissing claims for alleged negligence on
the part of Dr. Craig and Dr. Rockstroh in light of Abshure v. Methodist Healthcare; by
granting UTMG’s motion for directed verdict on Plaintiffs’ claim for punitive damages; and
by awarding UTMG summary judgment with respect to claims of constitutional violations.
UTMG asserts the trial court erred by denying its motion to dismiss for lack of venue.




                                               -3-
                                         Discussion

      We turn first to UTMG’s assertion that the trial court erred by denying its motion to
dismiss for lack of venue. The Tennessee Code provides:

       (a) In all civil actions of a transitory nature, unless venue is otherwise
       expressly provided for, the action may be brought in the county where the
       cause of action arose or in the county where the defendant resides or is found.
              (b) If, however, the plaintiff and defendant both reside in the same
       county in this state, then the action shall be brought either in the county where
       the cause of action arose or in the county of their residence.
              (c) Where the action is brought either in the county where the cause of
       action arose or in the county where the defendant resides, process may be sent
       to another county as in local action, and it shall not be necessary nor required
       that the defendant be in the county of action either when the action is
       commenced or during the time between the commencement of the action and
       service of process.

Tenn. Code Ann. § 20-4-101 (2009).

        UTMG cites E.R. Garland v. Seaboard Coastline Railroad Co., 658 S.W.2d 528
(Tenn. 1983), for the proposition that a defendant is deemed to reside in any county in which
it has an office or agency. It further cites Yeubanks v. Methodist Healthcare, 227 F.Supp.2d
934 (W.D. Tenn. 2002), for the proposition that, in a wrongful death action, the residency
of the decedent at the time of death establishes the residency of the plaintiff in a wrongful
death action. UTMG argues that venue is proper only in Tipton County because UTMG
resides in Tipton County where it “operates an entire office there, with multiple employees”;
the allegedly negligent acts occurred in Tipton County; and Ms. Zakour resided in Tipton
County. UTMG asserts that, under section 20-4-101, when the parties reside in the same
county, venue is proper only where the parties reside or where the claim arises. Plaintiffs,
on the other hand, assert that UTMG clearly resides in Shelby County; that, at the time the
lawsuit was filed in Shelby County, UTMG did not own or operate the medical clinic where
Ms. Zakour was treated; that three of the four Plaintiffs in the lawsuit reside in Shelby
County, and that venue is therefore proper in Shelby County.

      In Yeubanks, the federal district court relied on Tennessee Code Annotated §
20-5-106(a), which provides:

       [T]he right of action which a person, who dies from injuries received by
       another, or whose death is caused by the wrongful act, omission, or killing by

                                              -4-
      another, would have had against the wrongdoer, in case death had not ensued,
      shall not abate or be extinguished by the person’s death but shall pass to the
      person’s ... next of kin; or to the person’s personal representative, for the
      benefit of the person’s surviving spouse or next of kin; or to the person’s
      natural parents or parent[.]

Tenn. Code Ann. § 20-5-106(a). The Yeubanks court stated:

      Tennessee law governs the interpretation of its substantive law. Legg v.
      Chopra, 256 F.3d 286, 289 (6th Cir. 2002). The Tennessee Supreme Court has
      repeatedly stated that the statute creates only one cause of action. See Ki v.
      State, 78 S.W.3d 876 (Tenn.2002); Lynn v. City of Jackson, 63 S.W.3d 332,
      336 (Tenn. 2001). The sole cause of action is the one that the decedent would
      have had, absent death, against the tortfeasor. Id. at 879. “The decedent is the
      sole party who holds a right of action or claim in a wrongful death suit.” Id. at
      879-80 (citing Lynn, 63 S.W.3d 332, 336 (Tenn. 2001)). “Tennessee’s
      wrongful death statute does not create a new cause of action for the
      beneficiaries but instead preserves the right of action of the decedent.” Lynn,
      63 S.W.3d at 336. The survivors or beneficiaries of the decedent are merely
      “asserting the decedent’s right of action on behalf of the decedent.” Ki, 78
      S.W.3d [876, 880 (Tenn. 2002)] (emphasis added).

              Section 20-5-113 of the Tennessee Code Annotated permits
      beneficiaries to recover damages for their losses and the decedent’s loss. The
      Tennessee Supreme Court has held that Tenn. Code Ann. § 20-5-113 only
      establishes the type of damages recoverable for wrongful death and does not
      create a new right of action in the beneficiaries. Id. “[B]eneficiaries do not
      have an individual claim or cause of action for the wrongful death of the
      decedent. Instead, the beneficiaries may recover damages for their individual
      losses that arise pursuant to the right of action vested in the decedent.” Id.
      (citing Kline v. Eyrich, 69 S.W.3d 197, 207 (Tenn. 2002)).

              [Plaintiff] argues that she is not acting as the “legal representative of the
      estate,” but instead is acting individually on her own behalf. It is clear,
      however, that under Tennessee law any party bringing an action for wrongful
      death does so in his representative capacity for the decedent. A “legal
      representative” is defined generally as “one who stands in place of, and
      represents the interests of, another.” Black’s Law Dictionary 1041 (4th
      Ed.1968). Therefore, pursuant to Tennessee law, a beneficiary who brings an
      action for wrongful death is in reality pursuing the decedent’s cause of action.

                                               -5-
       Although a beneficiary may recover damages for his or her losses, he or she
       retains no individual right to bring suit. Accordingly, this Court holds that
       [Plaintiff], in bringing this action for the wrongful death of [decedent], is in
       effect acting as the decedent’s legal representative as contemplated by 28
       U.S.C. § 1332(c)(2).

               Furthermore, [Plaintiff’s] assertion that she is bringing this action in her
       individual capacity is unavailing. Only the decedent is vested with a right of
       action which the beneficiaries may assert on behalf of the decedent. To accept
       [this] argument would require the Court to conclude that Plaintiff’s action
       must be dismissed for failure to state a claim upon which relief may be granted
       because under Tennessee law a beneficiary of a decedent does not have a right
       of action for wrongful death absent the decedent’s right of action.

Yeubanks, 227 F.Supp. 934, 937-38 (W.D. Tenn. 2002). The federal court in Yeubanks
dismissed the matter for lack of subject matter jurisdiction upon determining that the
decedent and defendant were residents of Tennessee, and, therefore, that diversity of
citizenship did not exist notwithstanding that plaintiff was a resident of Mississippi.

       In Pack v. Ross, we stated:

       [w]hen venue is possible in only one county, . . . the localization of venue
       creates subject matter jurisdiction restrictions. This returns us to the
       Tennessee Supreme Court’s pronouncement that “[t]he Courts of our State
       have no jurisdiction of local actions brought in the wrong county and consent
       cannot give jurisdiction.” Since venue as to [defendant] is limited to one
       county, Curtis v. Garrison teaches that the court of that county alone has
       jurisdiction to entertain the action. . . . The defendant cannot consent to or
       confer jurisdiction.

Pack v. Ross, 288 S.W.3d 870, 873 (Tenn Ct. App. 2008)(quoting Curtis v. Garrison, 211
Tenn. 339, 364 S.W.2d 933, 936 (1963))(internal citations omitted). In Pack, we noted that
the common law rule for transitory actions was that venue was proper “wherever the plaintiff
could find the defendant.” Id. at 872 (citing June F. Entman, Jurisdiction, Venue and
“Localized” Actions in Tennessee, 39 Tenn. B. J. 34 (Apr. 2003)). The purpose of the venue
statutes was to “localize” transitory actions in order

       to prevent the proceeding whereby a plaintiff would be permitted to catch his
       neighbor away from home, and the home of his witnesses, and surprise him
       with a suit, which, however able he may be to resist at home, he is wholly

                                               -6-
       unable to do so among strangers.

Id. at 873, (quoting Curtis v. Garrison, 364 S.W.2d 933, 935 (1963)). We specifically
declined to “address the theoretical case where the statute permits a choice of two venues.”
Id.

        In this case, assuming that Plaintiffs reside in Tipton County, where Ms. Zakour
resided prior to her death, UTMG clearly resides in Shelby County, where it undisputedly has
its principal place of business. Further, at oral argument of this matter, counsel suggested
that venue in this case is more appropriate in Tipton County because all of the alleged acts
and omissions giving rise to this dispute occurred in Tipton County. This argument, as we
perceive it, is more appropriately characterized as one of forum non conveniens.

        In Luna v. Sherwood, 208 S.W.3d 403, 404 (Tenn. Ct. App. May 14, 2006)(perm. app.
denied (Tenn. Oct. 30, 2006), a medical malpractice action, the plaintiffs were residents of
White County, and the negligent acts complained of occurred in Dekalb County. Two of the
four defendants were residents of Dekalb County, and two had their principal places of
business in Davidson County. Id. Plaintiffs filed their action in Davidson County, and the
Dekalb County residents filed a motion to dismiss based on venue or, in the alternative,
forum non conveniens. The trial court found that venue was proper in Davidson County, and
that forum non conveniens did not apply to intrastate actions. Id. We granted permission for
interlocutory appeal and affirmed. Accordingly, insofar as UTMG’s argument is based on
the doctrine of forum non conveniens, it is without merit. We affirm the trial court’s denial
of UTMG’s motion to dismiss for lack of venue.

        We next turn to Plaintiffs’ assertion that the trial court erred by awarding summary
judgment to UTMG on their claim for damages for violations of their constitutional rights.
Plaintiffs assert UTMG’s peremptory jury challenges in Zakour I violated their constitutional
rights. The question of whether UTMG’s peremptory jury challenges violated the requisites
of Batson v. Kentucky was litigated in Zakour I. The supreme court determined the jury
challenges violated Batson, and awarded Plaintiffs a new trial. The supreme court’s
judgment in Zakour I was final with respect to this issue. This issue is therefore res judicata
where Plaintiffs asserted a claim for relief in Zakour I, and where the supreme court awarded
Plaintiffs relief by granting them a new trial. The doctrine of res judicata applies to all issues
litigated in a prior lawsuit between the same parties or their privies. Barnett v. Milan Seating
Sys., 215 S.W.3d 828, 835 (Tenn. 2007). If the status of the earlier action was such that the
parties might have had their claim for damages disposed of had they properly asserted it, res
judicata applies. See Brown v. Shappley, 290 S.W.3d 197, 201 (Tenn. Ct. App. 2008).
When the supreme court remanded the matter for a new trial in Zakour I, it did not instruct
the trial court to assess monetary damages for Batson violations. Rather, it awarded relief

                                               -7-
in the form of a new trial. That determination was final, and we affirm on this issue.

        We next turn to whether the trial court erred in awarding UTMG a judgment
notwithstanding the jury’s verdict, and whether the trial court erred in dismissing Plaintiffs’
claims against UTMG based upon alleged acts/omissions of Dr. Craig and Dr. Rockstroh.
With respect to the trial court’s dismissal of claims based upon alleged acts or omissions of
Dr. Craig and Dr. Rockstroh, UTMG concedes that, under Abshure v. Methodist Healthcare,
325 S.W.3d 98 (Tenn. 2010), the dismissal of the claims was improper. Thus, even if we
were to affirm the trial court’s judgment notwithstanding the verdict based on Plaintiffs’
claims with respect to the alleged negligence of Dr. Kelly, this matter must be remanded to
the trial court for further proceedings.

        UTMG asserts, however, that the trial court’s judgment with respect to acts of Dr.
Kelly was based on its determination that Dr. Kelly’s duty to Ms. Zakour was limited to a
brief time-span, and that any actions he may or may not have taken during this time-span did
not proximately cause Ms. Zakour’s injury. Thus, UTMG urges us to affirm the judgment
with respect to claims arising from the acts of Dr. Kelly. Plaintiffs, on the other hand, agreed
at oral argument and in their reply brief to abandon claims insofar as they are based on
alleged acts of Dr. Craig and Dr. Rockstroh should we reinstate the jury verdict.

       In its May 2010 order, the trial court determined that Dr. Kelly’s duty to Ms. Zakour
was limited to the time period of June 2, 1998 though July 5, 1998, and that Dr. Kelly owed
no duty to Ms. Zakour after July 5, 1998. The trial court found that Plaintiffs had failed to
present evidence sufficient to sustain a jury verdict that any acts or omissions on the part of
Dr. Kelly caused Ms. Zakour any injury during the time in which he owed Ms. Zakour a duty
of care. Thus the trial court’s judgment, as we perceive it, was based on its determination
with respect to causation. The trial court also alternately determined that, in the event this
Court reversed or vacated the judgment notwithstanding the verdict, UTMG’s motion for
new trial would be granted because the verdict was contrary to the weight of the evidence.

        A judgment notwithstanding the verdict is governed by the same standard of review
as a directed verdict and is subject to the provisions of Tennessee Rule of Civil Procedure
50. Mairose v. Fed. Express Corp., 86 S.W.3d 502, 511 (Tenn. Ct. App. 2001). Thus, it is
appropriate only when reasonable minds cannot differ as to the conclusions to be drawn from
the evidence. Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006).
Upon review, we must construe all evidence in favor of the nonmoving party and disregard
all countervailing evidence. Id. With a directed verdict or judgment notwithstanding the
verdict, “the trial court may not weigh the evidence, pass on witness credibility, or substitute
its judgment for that of the jury.”              Blackburn v. CSX Transp., Inc., No.
M2006-01352-COA-R10-CV, 2008 WL 2278497, at *4 (Tenn. Ct. App. May 30, 2008).

                                              -8-
Like the trial court, an appellate court is not permitted to weigh the evidence or evaluate the
credibility of witnesses. Johnson, 205 S.W.3d at 370. If material evidence is in dispute or
doubt exists as to the conclusions to be drawn, a motion for a judgment notwithstanding the
verdict is properly denied. Id. When considering a motion for a new trial, however, the court
may weigh the evidence. Blackburn, 2008 WL 227849, at *4. A trial court may grant a new
trial when the verdict is contrary to the weight of the evidence. Id. at *5. The trial court
clearly weighed the evidence in this case, and, its judgment was based on its assessment of
the weight of the evidence. The trial court’s judgment notwithstanding the verdict is vacated,
and its alternative grant of UTMG’s motion for a new trial is affirmed.

        We finally turn to whether the trial court erred in granting UTMG a directed verdict
on Plaintiffs’ claims for punitive damages. A plaintiff seeking punitive damages must
demonstrate, by clear and convincing evidence, that the defendant “acted either (1)
intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 (Tenn. 1992). Punitive damages are warranted when “the person is
aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that
its disregard constitutes a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances.” Davis v. McGuigan, 325 S.W.3d 149, 156
(Tenn. 2010)(quoting Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 531 (Tenn.2008)
(quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn.1992))) and citing see Doe
1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 37–38 (Tenn.
2005)). When considering a motion for a directed verdict on a punitive damage claim, the
trial court must determine whether the evidence is sufficient, in light of the clear and
convincing evidence standard, to submit the claim to the jury. Sanford v. Waugh & Co., Inc.,
328 S.W.3d 836, 848 (Tenn. 2010)(citations omitted). With respect to the acts of Dr. Kelly,
we find no evidence in this record which would entitle Plaintiffs to punitive damages. Upon
remand, Plaintiffs may reassert their claim with respect to the acts and omissions of Dr. Craig
and Dr. Rockstroh in a new trial.

                                           Holding

        Upon review of the record in this case, and in light of the foregoing, we vacate the
trial court’s order awarding UTMG a judgment notwithstanding the verdict, and affirm the
alternative order granting UTMG’s motion for a new trial. This matter is remanded to the
trial court for further proceedings consistent with this Opinion. Costs of this appeal are taxed
one-half to Appellee UT Medical Group, Inc., and one-half to Appellants, Patti Zakour,
deceased, by next of kin, and their surety, for which execution may issue if necessary.

                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE

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