                  IN THE COURT OF APPEALS OF TENNESSEE,
                               AT JACKSON

            _______________________________________________________   FILED
                                    )                                March 17, 1999
LYNN H. HARRIS and                  )     Shelby County Circuit Court
RHONDA W. HARRIS,                   )     No. 47556-9 T.D.         Cecil Crowson, Jr.
                                    )                              Appe llate Court C lerk
   Plaintiffs/Appellants.           )
                                    )
VS.                                 )     C.A. No. 02A01-9803-CV-00074
                                    )
SUSAN GAIL THURMOND, M.D.,          )
and NEUROLOGICAL AND                )
NEUROSURGICAL CLINIC, P.A.,         )
                                    )
   Defendants/Appellees.            )
                                    )
______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.
Honorable Jon Kerry Blackwood, Judge by designation



Douglas A. McTyier,
WILSON, McRAE, IVY, McTYIER and STRAIN, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.


John J. Thomason,
Elizabeth T. Collins,
THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee
Attorneys for Defendants/Appellees.



OPINION FILED:

AFFIRMED AND REMANDED


                                        FARMER, J.

HIGHERS, J.: (Concurs)
HAYES, J.: (Concurs)
               In this medical malpractice action, the jury returned a verdict in favor of the

Defendants. The Plaintiffs filed a motion for new trial, which was denied by the trial judge. For the

reasons set forth below, we uphold the jury verdict and affirm the trial judge’s denial of the

Plaintiffs’ motion for new trial.



               On March 4, 1988, Lynn H. Harris went to see Dr. Susan Gail Thurmond, a

neurologist, complaining of various symptoms including changes in body temperature, changes in

breathing rate, a feeling of lack of oxygen, breaks in concentration, dry mouth, dry throat, tingling

throat, a flushed appearance, splotches on his face, and crossing of his eyes. Mr. Harris explained

that he had been having what he described as fifteen to twenty second “spells” for approximately one

and one-half years and that, on the days immediately preceding Mr. Harris’ appointment with Dr.

Thurmond, the “spells” had been occurring approximately twice per day. After obtaining his

medical history, Dr. Thurmond examined Mr. Harris. Although the results of this examination were

normal, Dr. Thurmond recommended that Mr. Harris obtain an electroencephalogram (EEG). Dr.

Thurmond explained that if the results of the EEG were abnormal, she would then recommend that

Mr. Harris obtain a magnetic resonance imaging test (MRI). Mr. Harris subsequently obtained two

EEGs, a regular EEG and a sleep-deprived EEG. While the results of the regular EEG were normal,

the results of the sleep-deprived EEG were “mildly abnormal” or “borderline.” After reviewing

these results, Dr. Thurmond did not order an MRI but instead gave Mr. Harris a prescription for

Tegretol, an anti-convulsant medication. According to Dr. Thurmond, if Mr. Harris did not have any

“spells” while taking Tegretol, this would indicate that the “spells” were seizure-related.



               Mr. Harris saw Dr. Thurmond again on April 21, 1988. During this visit, Mr. Harris

reported that he had not had any further “spells” and that he seemed to have more energy. Dr.

Thurmond performed another examination of Mr. Harris. Again, the results of this examination were

normal.



               On July 19, 1988, Mr. Harris telephoned Dr. Thurmond’s office, complaining of

intermittent drowsiness and short term memory loss. Dr. Thurmond reduced the dosage on the

medication that Mr. Harris was taking and scheduled an appointment for Mr. Harris on July 25,

1988. During this appointment, Dr. Thurmond conducted another examination of Mr. Harris, again
receiving normal results. Dr. Thurmond then altered Mr. Harris’ medication, prescribing a different

anti-convulsant drug named Depakote.



                 Mr. Harris visited with Dr. Thurmond again on June 13, 1989. During this

appointment, Mr. Harris reported that he had not had any further “spells” and that he had not been

taking his medication consistently. Dr. Thurmond concluded that, because Mr. Harris’ “spells” had

ceased even though Mr. Harris had not been taking his medication regularly, the “spells” probably

were not seizure-related. Dr. Thurmond ordered a second sleep-deprived EEG, the results of which

were normal.



                 Mr. Harris’ final visit with Dr. Thurmond occurred on January 8, 1990. As of this

final visit, Dr. Thurmond still had not made any specific diagnosis with respect to Mr. Harris’

condition.



                 In May of 1991, an incident occurred during which Mr. Harris’ body began to shake,

his legs were rigid, and his speech was slurred. The “spells” that Mr. Harris had described to Dr.

Thurmond began to reoccur. Additionally, Mr. Harris began to experience increasing amount of

trembling of his hands. Consequently, on July 24, 1991, Mr. Harris went to see Dr. Lee Stein. At

the suggestion of Dr. Stein, Mr. Harris underwent an MRI. The MRI report indicated that Mr. Harris

had a large tumor in his brain. Dr. Stein referred Mr. Harris to Dr. John Crockarell, a neurosurgeon,

who explained the results of the MRI to Mr. Harris. Dr. Crockarell then referred Mr. Harris to Dr.

Winston Craig Clark, also a neurosurgeon. Dr. Clark performed surgery on Mr. Harris, removing

as much of the tumor as possible. Subsequent to this initial surgery, Mr. Harris has undergone

radiation therapy, chemotherapy, and a second surgery. After this second surgery in January of

1995, Mr. Harris developed paralysis on the left side of his body.



                 On July 23, 1992, Mr. Harris and his wife Rhonda W. Harris1 filed a medical

malpractice action against Dr. Thurmond and the Neurological & Neurosurgical Clinic, a

professional association of physicians of which Dr. Thurmond was a member during the period of



       1
           Mrs. Harris sought damages for loss of consortium.
time that Mr. Harris was under her care.2 In their answer, the Defendants raised the doctrine of

comparative fault as an affirmative defense. The matter came to be heard by a jury from August 18,

1997 to August 21, 1997. The jury returned a verdict in favor of the Defendants. The Plaintiffs filed

a motion for new trial, which was denied by the trial judge. This appeal followed.



               Under the Tennessee Rules of Appellate Procedure, “[f]indings of fact by a jury in

civil actions shall be set aside only if there is no material evidence to support the verdict.” T.R.A.P.

13(d). See also Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Forrester

v. Stockstill, 869 S.W.2d 328, 329-30 (Tenn. 1994); Hodges v. S.C. Toof & Co., 833 S.W.2d 896,

898 (Tenn. 1992). In returning a verdict in favor of the Defendants, the jury implicitly found that

the conduct of Dr. Thurmond did not fall below the applicable standard of care and that,

consequently, Dr. Thurmond did not breach a duty owed to Mr. Harris. The Plaintiffs argue on

appeal that there is no material evidence in the record to support this finding.



                The Defendants offered the testimony of two expert witnesses, Dr. Thurmond and Dr.

James Rodney Feild, a neurosurgeon. With respect to whether her conduct fell below the standard

of care, Dr. Thurmond testified as follows:



                Q.      Under those circumstances, even if he had
                        demonstrated a tumor, would conservative care have
                        been a reasonable option for him?

                A.      It would have been a reasonable option.

                Q.      And is that what you gave him, conservative care?

                A.      He had conservative care, yes.

                Q.      Is that in conformance with the standard of
                        neurological practice in Memphis, Tennessee during
                        that time?

                A.      Yes.

                ....

                Q.      Not knowing the cause of his symptoms, was the
                        medication that you administered to him, did that
                        appear to be a successful course of treatment for him?


       2
      The Neurological & Neurosurgical Clinic is now known as the Canale Group. Dr.
Thurmond’s association with this entity ended in November of 1989.
               A.      Well, I don’t know if that was a successful course or
                       if the spells went away on their own, as I said,
                       because he took the medicine somewhat erratically.

               Q.      Do you think that was a course of treatment that was
                       in accordance with the neurological standard of care
                       expected of you during that time when you were
                       treating Mr. Harris?

               A.      Yes.

               ....

               Q.      And did you -- Dr. Thurmond, are you acquainted
                       during this period of time with the standard of care for
                       neurologists in Memphis?

               A.      Yes, sir.

               Q.      And did you conform to that standard?

               A.      Yes, sir.



Additionally, Dr. Feild testified as follows:



               Q.      Are you familiar with the standard of care of
                       neurosurgery and neurology in Memphis?

               A.      I am.

               Q.      And were you in 1988 through the present?

               A.      Correct.

               ....

               Q.      From your reading of the records, was Dr.
                       Thurmond’s first office visit when she saw Mr. Harris
                       within the standard of care?

               A.      It was.

               ....

               Q.      From your reading of Dr. Thurmond’s record, what
                       treatment did Dr. Thurmond give around the time of
                       that June 1989 visit?

               A.      Well, I assume -- I don’t have the record. I didn’t
                       follow that. But I assume that he was encouraged to
                       take his medicine and that his blood level was pushed
                       up a little bit. The significant part of that visit is
                       another sleep deprived EEG was ordered, and that was
                       the third EEG in a year, and it was normal. That’s
                       pretty heavy stuff, to have these spells and not take
                       your medicine and have the EEG a year later normal.
                Q.      Is that significant?

                A.      Right.

                Q.      And when you said heavy stuff, what does that mean?

                A.      Well, it means the -- there’s no activity, no seizures,
                        no spells, nothing going on. There’s no trace of
                        anything going on. She was relying on the
                        technology, and it hadn’t picked up any disorder,
                        hadn’t picked up any seizures and hadn’t picked up
                        any slowing or anything else.

                Q.      Was Dr. Thurmond’s treatment at that visit within the
                        appropriate standard of care for neurologist in
                        Memphis, Tennessee?

                A.      Yes.



The opposite conclusion was reached by Dr. Clark and Dr. Sheldon Margulies, who testified as

expert witnesses for the Plaintiffs. Dr. Clark and Dr. Margulies both testified that, in failing to order

an MRI or a CT scan, Dr. Thurmond’s conduct fell below the applicable standard of care. Dr.

Margulies is a neurologist and Dr. Clark’s specialty is neurological surgery.



                It is well settled that the trier of fact is in the best position to judge the credibility and

weight of testimony offered by expert witnesses. See, e.g., State ex rel. Comm’r, Dep’t of Transp.

v. Teasley, 913 S.W.2d 175, 179 (Tenn. App. 1995). Thus, on appeal from a jury verdict, we are not

permitted to reweigh evidence or reevaluate the credibility of expert witnesses. See, e.g., Witter v.

Nesbit, 878 S.W.2d 116, 121 (Tenn. App. 1993)(citing Grissom v. Metro. Gov’t, 817 S.W.2d 679,

684 (Tenn. App. 1991)). Rather, our inquiry is limited to determining whether there is any material

evidence in the record to support the jury’s verdict. See Reynolds, 887 S.W.2d at 823. If there is

any material evidence to support the jury’s verdict, it will not be disturbed on appeal. See Reynolds,

887 S.W.2d at 823; Forrester, 869 S.W.2d at 329-30; Hodges, 833 S.W.2d at 898; T.R.A.P. 13(d).



                In the instant case, the aforementioned testimony of Dr. Thurmond and Dr. Feild is

material evidence that supports the jury’s verdict. Thus, under the very deferential standard of

review that applies to findings of fact made by a jury, we must uphold the jury’s implicit finding that

Dr. Thurmond did not breach a duty of care owed to Mr. Harris.
                 The Plaintiffs next argue that the jury verdict should be reversed because it was the

result of juror misconduct. In support of this argument, the Plaintiffs offer the affidavits of Cammie

Thomas, III and Eugenia R. Straub, two members of the jury in the case at bar. These affidavits

indicate that the majority of the jurors believed that there was fault on the part of Dr. Thurmond.

The affidavits of Ms. Thomas and Ms. Straub further indicate, however, that the jurors agreed that

Mr. Harris should have done more for himself. Specifically, the jurors thought that Mr. Harris

should have been more aggressive in his own medical care, that Mr. Harris should have obtained a

second opinion, and that Mr. Harris should have taken his medication more regularly.



                 Under the Tennessee Rules of Evidence, we are not permitted to consider the

statements of a juror unless they relate to the question of “whether extraneous prejudicial

information was improperly brought to the jury’s attention, whether any outside influence was

improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by

a quotient or gambling verdict.” T.R.E. 606(b). See also Goss v. Hutchins, 751 S.W.2d 821, 828

(Tenn. 1988); State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984); Terry v. Plateau Elec. Coop.,

825 S.W.2d 418, 423 (Tenn. App. 1991). In the instant case, the Plaintiffs do not allege that the jury

verdict was tainted by extraneous prejudicial information or outside influence. Nor do the Plaintiffs

allege that the jurors agreed to be bound by a quotient or gambling verdict. Thus, we are not

permitted to consider the aforementioned affidavits when determining whether the trial judge erred

in denying the Plaintiffs’ motion for new trial. Because the Plaintiffs have offered no admissible

evidence suggestive of juror misconduct, we find no error on the part of the trial judge with respect

to this issue.



                 Finally, the Plaintiffs argue that the trial judge should have granted their motion for

new trial because the jury verdict was affected by improper statements made by counsel for the

Defendants. During closing arguments, counsel for the Defendants stated as follows:



                          So this lawsuit of which coming back with a verdict for the
                 plaintiff is saying Dr. Thurmond, you were guilty. You were guilty
                 of medical negligence. You were guilty of medical malpractice. So
                 that is what a verdict for the plaintiff does. It puts that badge on Dr.
                 Thurmond. So it is as significant to Dr. Thurmond. This case is
                 every bit as important to her life and her profession.
These comments raised an objection from counsel for the Plaintiffs, which was overruled by the trial

judge.



               In general, trial judges are afforded a great deal of discretion regarding the types of

comments that are permissible during argument of counsel. See Davis v. Hall, 920 S.W.2d 213, 217

(Tenn. App. 1995). When a trial judge refuses to grant a new trial based on the misconduct of an

attorney, we may not interfere with this action unless the attorney’s argument was “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. App. 1991)). Consistent with this rule, decisions of trial judges

with respect to the conduct of attorneys in open court are examined using the abuse of discretion

standard of review. See In re Ellis, 822 S.W.2d 602, 605 (Tenn. App. 1991)(citations omitted). In

the instant case, we do not think that the statements made by counsel for the Defendants were clearly

unwarranted or made purely for the purpose of appealing to passion, prejudices, and sentiment.

Rather, it appears that these comments were made in order to emphasize to the jury that the outcome

of the lawsuit was just as important to the Defendants as it was to the Plaintiffs. We cannot say that

this purpose is in any way inappropriate. Thus, we find no abuse of discretion on the part of the trial

judge in refusing to grant a new trial based on the comments made by counsel for the Defendants

during closing arguments.



               Based on the foregoing, we uphold the jury’s verdict in the instant case. Additionally,

we affirm the trial judge’s denial of the Plaintiffs’ motion for new trial. Costs on appeal are charged

to the Plaintiffs, for which execution may issue if necessary.



                                                       ____________________________________
                                                       FARMER, J.



______________________________
HIGHERS, J. (Concurs)



______________________________
HAYES, J. (Concurs)
