                                                                                             07/24/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  August 8, 2018 Session

            WAYNE JONES, JR. ET AL. v. STATE OF TENNESSEE

          Appeal from the Tennessee Claims Commission, No. T20130811
                        Robert N. Hibbett, Commissioner
                     ___________________________________

                            No. M2017-02198-COA-R3-CV
                        ___________________________________


This wrongful death action arises from the tragic death of a state university student-
athlete during football practice. The student’s parents filed a claim against the State of
Tennessee in the Tennessee Claims Commission. After a trial, the Commissioner found
that the parents had failed to prove by a preponderance of the evidence that: (1) the head
athletic trainer violated the applicable standard of care after the student’s collapse; (2) the
trainer’s negligence was the cause in fact of the student’s death; and (3) the university
was otherwise negligent in caring for the student after his collapse. Because the evidence
does not preponderate against the Commissioner’s causation findings, we affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims
                              Commission Affirmed

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

Kirk L. Clements, Nashville, Tennessee, for the appellants, Wayne Jones, Jr. and Sonya
Johns.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, Heather C. Ross, Senior Counsel, and Joe Ahillen, Assistant Attorney General,
for the appellee, State of Tennessee.
                                            OPINION

                                                 I.

       On November 7, 2012, Wayne Jones III, a cornerback for the Tennessee State
University football team, suffered a sudden cardiac arrest during practice. The athletic
trainers called for emergency assistance. Sadly, the paramedics were unable to
resuscitate him, and Mr. Jones was later pronounced dead at an area hospital. Mr.
Jones’s parents blame TSU for their son’s death, contending that his life could have been
saved if the athletic staff had recognized and properly treated his sudden cardiac arrest.

        Football practice that day began as usual at 4 p.m. The team warmed up with ten
to fifteen minutes of stretching. After a punt drill, the players divided into position
groups for individual drills. Coach Edward Sanders, the special teams coordinator and
defensive backs coach, directed the drills that day for the defensive backs. During a
“deep ball” drill, Mr. Jones caught the ball, began his return run, and collapsed face down
to the ground. When he failed to rise or respond to questions, Coach Sanders called for
an athletic trainer. The first to arrive was Sydney McGhee, a student trainer. She was
quickly followed by Monroe Abram, the head athletic trainer.1 Coach Sanders moved the
remaining players to another part of the field.

        Both Ms. McGhee and Mr. Abram were certified in cardiopulmonary resuscitation
(CPR) and the use of an automated external defibrillator (AED). An AED is a portable
device that can both analyze a patient’s heart rhythm and, if necessary, provide an electric
shock to restore the heart’s normal rhythm. TSU had an AED on the football practice
field in the athletic trainers’ equipment van.

       Mr. Abram’s initial assessment was that Mr. Jones was breathing and had a pulse.
But he was nonresponsive, and his breath sounds were abnormal. Some witnesses
thought he was snoring. Ms. McGhee called for emergency medical assistance. Because
he did not suspect sudden cardiac arrest, Mr. Abram did not immediately send for an
AED. While Ms. McGhee was explaining the situation to the emergency operator,
Mr. Jones had a muscle spasm that resembled a seizure. Then, he stopped breathing.
Mr. Abram immediately began CPR and sent for an AED. He continued CPR until the
paramedics arrived. He later explained that he never used the AED because it did not
arrive before the paramedics took over Mr. Jones’s care.

      When the paramedics arrived, Mr. Jones was not breathing and had no pulse.
They continued CPR and also applied an AED, which advised defibrillation. Although

       1
          Mr. Abram had been a certified athletic trainer since 1990. Certified athletic trainers are
licensed medical personnel in Tennessee. See Tenn. Code Ann. § 63-24-103 (2017).
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Mr. Jones received three electric shocks on the field and one more during transport to the
hospital, he did not revive. He was pronounced dead at 6:33 p.m.

       Mr. Jones’s autopsy report listed his cause of death as a fatal arrhythmia of his
heart due to scar tissue. The medical examiner noted that his heart’s right atrium and
ventricle were enlarged. And further microscopic analysis found extensive amounts of
scar tissue throughout the left and right ventricles. The cause of the scar tissue was
unknown.

        Mr. Jones’s parents, Wayne Jones, Jr. and Sonya Johns, filed a wrongful death
action against the State of Tennessee in the Tennessee Claims Commission. They alleged
that TSU failed to establish or execute a satisfactory emergency action plan and/or failed
to properly train their athletic personnel to recognize and/or properly respond to signs of
sudden cardiac arrest. They were subsequently permitted to amend their complaint to
allege that TSU’s licensed medical personnel failed to use all means available to
resuscitate Mr. Jones, including the use of an AED, and that TSU failed to ensure that its
athletic staff would have an AED readily accessible.

        Following a three day trial, the Commissioner found, among other things, that the
“failure to attach the AED did not cause Mr. Jones’[s] death. The cause of Mr. Jones’[s]
death was fatal arrhythmia of the heart due to scar tissue in his heart.” The
Commissioner ruled that Mr. Jones’s parents failed to prove by a preponderance of the
evidence that: (1) Mr. Abram violated the standard of care applicable to a certified
athletic trainer; (2) as a proximate result of Mr. Abram’s alleged negligent act or
omission, Mr. Jones suffered death which would not otherwise have occurred; and (3) the
TSU staff was negligent in its care of Mr. Jones after his collapse. This appeal followed.

                                            II.

        We apply the same standard of review to the judgment of the Claims Commission
as we do to appeals from a bench trial. Tenn. Code Ann. § 9-8-403(a)(1) (Supp. 2018).
We presume that the findings of fact are correct unless the evidence in the record
preponderates against them. Tenn. R. App. P. 13(d). Evidence preponderates against a
finding of fact if the evidence “support[s] another finding of fact with greater convincing
effect.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct.
App. 2001). In weighing the preponderance of the evidence, we give great deference to
findings based on the trial court’s assessment of the weight or credibility of live
testimony. Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 515 (Tenn. 2012). We review
conclusions of law de novo, with no presumption of correctness. Kaplan v. Bugalla, 188
S.W.3d 632, 635 (Tenn. 2006).

       Although Mr. Jones’s parents have raised numerous issues, one issue is dispositive
of this appeal: whether the evidence preponderates against the Commissioner’s finding
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that TSU’s negligence was not the cause in fact of Mr. Jones’s death. An essential
element of any negligence action is proof that the defendant’s conduct was the cause in
fact of the injury. Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 861 (Tenn. 1985).
“Proof of negligence without proof of causation is nothing.” Doe v. Linder Constr. Co.,
845 S.W.2d 173, 181 (Tenn. 1992) (quoting Drewry v. County of Obion, 619 S.W.2d
397, 398 (Tenn. Ct. App. 1981)). Cause in fact “means that the injury or harm would not
have occurred ‘but for’ the defendant’s negligent conduct.” Kilpatrick v. Bryant, 868
S.W.2d 594, 598 (Tenn. 1993). As claimants, Mr. Jones’s parents had the burden of
showing by a preponderance of the evidence that TSU’s negligence “more likely than
not” caused Mr. Jones’s death. See id. at 598-99. Causation must be shown as “a matter
of probability, not possibility.” Id. at 602. In a healthcare liability action, causation in
fact must be demonstrated to a reasonable degree of medical certainty. Id.; see also
Tenn. Code Ann. § 29-26-115(a)(3) (2012) (incorporating the traditional test for cause in
fact in a healthcare liability action). The key question here is whether Mr. Jones, more
likely than not, would have survived his sudden cardiac arrest absent TSU’s alleged
negligence. See Kilpatrick, 868 S.W.2d at 602-03 (explaining the requirement of proving
causation in fact when the injured party had a pre-existing condition).

       To establish causation, the student’s parents submitted the deposition testimony of
Dr. John Bright Cage. Dr. Cage, a practicing cardiologist, opined, with a reasonable
degree of medical certainty, that more likely than not, Mr. Jones would have survived his
sudden cardiac arrest if prompt CPR and early defibrillation had occurred. He defined
early defibrillation as within five minutes of Mr. Jones’s collapse. After five minutes, the
likelihood of successfully resuscitating Mr. Jones diminished.

       In Dr. Cage’s opinion, the scar tissue noted in the autopsy report was caused by a
condition called arrhythmogenic right ventricular cardiomyopathy or ARVC. ARVC is a
rare genetic abnormality in which healthy tissue in the right ventricle is replaced with
fibro-fatty tissue. He explained that Mr. Jones’s scar tissue created an electrical
instability that led to his sudden cardiac arrest. But Dr. Cage opined that Mr. Jones’s
heart could have been returned to a normal rhythm with early defibrillation. According
to Dr. Cage, if Mr. Jones had been successfully resuscitated, his prognosis, even with
ARVC, would have been very good to excellent.

       Dr. Cage explained that early defibrillation provides the best opportunity for
successful resuscitation. He relied on medical studies that showed that the likelihood of
survival from a sudden cardiac arrest is dramatically higher if CPR or AED is performed
in the first three to five minutes after collapse. Survival chances decrease 10% every
minute after collapse without intervention. Ten minutes after collapse, the chance of
survival without CPR and AED is less than 50%.

       When asked whether the cause of the sudden cardiac arrest impacted the
effectiveness of an electric shock, Dr. Cage replied “[n]obody knows that answer.”
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According to Dr. Cage, defibrillation within five minutes of a sudden cardiac arrest is
typically effective regardless of the cause.

       The State’s causation expert, Dr. Hal Roseman, testified in person. He was
qualified as an expert in both cardiology and epidemiology.2 For a number of reasons,
Dr. Roseman disagreed with Dr. Cage’s ARVC diagnosis. He explained that ARVC is a
pathologically distinctive condition easily diagnosed in an autopsy. According to
Dr. Roseman, several hallmarks of the condition were not present. There was no fatty
replacement of the heart muscle or inflammation, as would be typical with ARVC. And
Mr. Jones’s scar tissue was not confined to the right ventricle or to one layer of the heart,
but was diffuse throughout the heart and its layers. The enlarged right atrium also
contraindicated ARVC. Typically, only the right ventricle would be enlarged. Finally,
there was no family history of ARVC or sudden cardiac arrest. Since ARVC was a
genetic disorder, he would expect to find other family members with the same
abnormality.

       Unlike Dr. Cage, Dr. Roseman opined that the underlying pathology of the
patient’s heart could have a profound impact on resuscitation efforts. Here, the scar
tissue in Mr. Jones’s heart interfered with the normal electrical patterns in his heart,
allowing rogue electrical impulses to alter the heart’s rhythm. Dr. Roseman testified that,
in the same way, scar tissue can interfere with an AED-administered electric shock. In
his opinion, use of an AED anywhere from two to seven minutes after Mr. Jones’s
collapse would not have been successful because of his extensive scar tissue, as
evidenced by the inability of the paramedics to revive Mr. Jones.

       Dr. Roseman conceded that he did not find specific data on survival rates for a
patient with Mr. Jones’s condition. But he explained that his opinion was based on his
knowledge of cardiology and medical literature on the effectiveness of defibrillation on
patients with similar conditions.

       Dr. Roseman also cited several studies that indicated that survival rates for out-of-
hospital sudden cardiac arrests are low even when CPR and AED are used. He agreed
that early CPR and defibrillation increase a patient’s chance of survival. But even with
early defibrillation, the pathology of the patient’s condition impacts the survival rate.
This is particularly true with young athletes because of the types of conditions that cause
sudden cardiac arrest in young adults. Based on the condition of Mr. Jones’s heart,
Dr. Roseman opined that he had a less than average chance of survival.

      In a vigorous cross-examination, the parents’ attorney attacked the basis for
Dr. Roseman’s opinions. He questioned Dr. Roseman’s analysis of the medical literature

       2
          Dr. Roseman explained that epidemiology is the study of the causes and effects of disease
conditions in the general population.
                                                5
and maintained that he had misinterpreted the relevant studies or blatantly ignored them.
Yet Dr. Roseman did not yield. He defended his methodology and explained at length
how he reached his conclusions.

       The Commissioner determined that Dr. Roseman’s opinions were “more
congruent with the findings of the autopsy.” And, based on that testimony, the
Commissioner found that Mr. Jones would not have survived his sudden cardiac arrest
even “if he had received CPR and an AED shock within five minutes of his collapse.”

       The challenge of Mr. Jones’s parents on appeal is two-pronged. First, they
contend that Dr. Roseman’s testimony was irrelevant. Second, they maintain his
testimony was entitled to little or no weight because it lacked a scientific basis.

       We cannot agree that Dr. Roseman’s testimony was irrelevant to the causation
issue. Contrary to the parents’ assertions, Dr. Roseman did not merely testify that “in
general, the survival rate of an out of hospital [sudden cardiac arrest] is less than 50%.”
Dr. Roseman specifically opined that, more likely than not, Mr. Jones would not have
survived his sudden cardiac arrest even if he had received defibrillation within five
minutes of his collapse.

        Mr. Jones’s parents also contend that Dr. Roseman’s opinions lacked a sufficient
scientific basis. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997)
(explaining that Tennessee Rules of Evidence require a determination of the scientific
validity and reliability of evidence relied upon by expert witnesses). But they are not
challenging the admissibility of Dr. Roseman’s testimony, merely the weight it should be
given. “[T]he weight to be given to stated scientific theories, and the resolution of
legitimate but competing scientific views, are matters appropriately entrusted to the trier
of fact.” Id.; see also State v. Scott, 275 S.W.3d 395, 410 (Tenn. 2009) (affirming the
trier of fact’s role in assessing the weight to be afforded to expert testimony); Johnson v.
Richardson, 337 S.W.3d 816, 824 (Tenn. Ct. App. 2010) (“After the trial court
determines that the testimony is admissible, the weight and credibility to be given to the
testimony lies with the trier of fact.”). We afford great deference to the Commissioner’s
assessment of the weight to be given to Dr. Roseman’s opinions. See Allstate Ins. Co.,
363 S.W.3d at 515. We find no basis to overturn that assessment here.

       In sum, we do not find the challenges to Dr. Roseman’s testimony availing. The
testimony of Dr. Roseman was relevant; the testimony related to the issue of medical
causation. And the Commissioner acted within his province in assigning greater weight
to Dr. Roseman’s causation testimony than the testimony of the expert offered by
Mr. Jones’s parents.



                                             6
                                        III.

       The evidence does not preponderate against the Commissioner’s finding that
TSU’s alleged negligence was not the cause in fact of Mr. Jones’s death. So we affirm
the dismissal of his parents’ claim.

.

                                               _________________________________
                                               W. NEAL MCBRAYER, JUDGE




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