                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                August 15, 2012 Session

                    DANNY E. ILOUBE, SR. v. DON M. CAIN

               Direct Appeal from the Circuit Court for Shelby County
                 No. CT-000349-08      Robert Samuel Weiss, Judge


                No. W2011-02460-COA-R3-CV - Filed August 30, 2012


This action arises from an automobile accident. The trial court granted Defendant’s motion
for a directed verdict on Plaintiff’s claim for damages for medical expenses at the close of
proof. The jury returned a verdict in favor of Defendant on Plaintiff’s claim for pain and
suffering and loss of earning capacity. On appeal, Plaintiff asserts the trial court erred by
granting the directed verdict on his claim for medical expenses. We reverse and remand for
further proceedings.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Ralph T. Gibson, Memphis, Tennessee, for the appellant, Danny E. Iloube, Sr.

Robert L. Moore, Memphis, Tennessee, for the appellee, Don M. Cain.

                                        OPINION


       This lawsuit arises from an October 2004 automobile collision. Following a voluntary
nonsuit in January 2007, in January 2008 Plaintiff Danny E. Iloube, Sr. (Mr. Iloube) re-filed
a complaint for damages against Defendant Don M. Cain (Mr. Cain) in the Circuit Court for
Shelby County. In his complaint, Mr. Iloube asserted claims of negligence and negligence
per se. He sought damages for personal injuries including pain and suffering, medical
expenses, loss of earning capacity, and property damages. Mr. Iloube alleged damages in the
amount of $200,000, and demanded a trial by jury. Mr. Cain answered, denying allegations
of negligence and negligence per se and asserting the defense of comparative fault. The
matter was tried by a jury in November 2010. The jury was unable to reach a verdict, and
the trial court entered a order of mistrial in December 2010.

        The matter again was heard before a jury on July 18-20, 2011. Prior to opening
statements, the trial court granted Mr. Cain’s oral motion in limine to bar Mr. Iloube from
introducing evidence that Mr. Cain had paid property damages in the amount of $1400, but
permitted Mr. Iloube to testify that the cost to repair his vehicle was $1400. At the close of
proof, the trial court granted Mr. Iloube’s motions for a directed verdict on the issues of
liability and Mr. Cain’s defense of comparative fault. It also granted Mr. Cain’s motion for
a directed verdict on Mr. Iloube’s claim for medical expenses, but denied Mr. Cain’s motion
for a directed verdict on Mr. Iloube’s claims for pain and suffering and loss of earning
capacity. The jury returned a verdict in favor of Mr. Cain, finding that Mr. Iloube had
sustained no damages.

        Mr. Iloube filed a motion for a new trial in August 2011. In his motion, Mr. Iloube
asserted the trial court erred by granting Mr. Cain’s motion in limine; by granting a partial
directed verdict on the issue of Mr. Iloube’s medical expenses; and by refusing Mr. Iloube’s
request for a special verdict form. He also asserted that there was no evidence to rebut “the
fact that an injury occurred,” and that the verdict was against the weight of the evidence. On
September 30, 2011, the trial court denied Mr. Iloube’s motion for a new trial and Mr. Iloube
filed a timely notice of appeal to this Court.

                                      Issues Presented

        Mr. Iloube presents the following issues for our review, as we slightly reword
them:

        (1)   Whether the trial court erred by granting Mr. Cain’s motion for a
              directed verdict on Mr. Iloube’s claim for medical expenses.

        (2)   Whether the trial court erred by finding that there was evidence to
              rebut proof of injury.

        (3)   Whether the trial court erred by denying Mr. Iloube’s motion for a
              new trial on the grounds that the verdict was against the weight of
              the evidence.

        (4)   Whether the trial court erred by granting Mr. Cain’s motion in
              limine.



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       (5)    Whether the trial court erred by denying Mr. Iloube’s request for a
              special verdict form.

                                         Discussion

        We turn first to whether the trial court erred by granting Mr. Cain’s motion for a
directed verdict on Mr. Iloube’s claim for medical expenses. In his brief, Mr. Iloube asserts
the trial court erred by granting Mr. Cain’s motion for a directed verdict based on Mr. Cain’s
assertion at trial that application of the best evidence rule compelled judgment in his favor.
Mr. Iloube asserts that, although he did not enter his medical bills into evidence, his medical
expenses, and the necessity and reasonableness thereof, were established through competent
medical proof. Mr. Iloube asserts that he complied with Tennessee Code Annotated § 24-5-
113(b), submitting itemized bills in excess of $10,000 to Mr. Cain in advance of the 90-day
period prescribed by the statute. He further asserts that his medical expenses were
established by the testimony of Dr. Vernois Buggs (“Dr. Buggs”), whose 2010 trial
testimony was read into the record. Mr. Iloube asserts that Dr. Buggs testified that Mr.
Iloube had incurred reasonable and necessary medical expenses in the amount of $10,630.30,
and that Mr. Cain had waived any objection to Dr. Cain’s testimony where he did not object
to it at the first trial of this matter. Mr. Iloube further asserts that Mr. Cain raised no
objection to the evidence until he moved for a directed verdict, and that the trial court erred
by denying his request to reopen proof on the issue to allow him to enter the medical bills
into evidence. Mr. Iloube asserts that Mr. Cain’s strategy was “classic sandbagging,” which
Rule 1.03 of the Tennessee Rules of Evidence was designed to prevent. Mr. Iloube asserts
the trial court erred by granting Mr. Cain’s motion for a directed verdict in light of the
rebuttable presumption provided by section 24-5-113.

       Mr. Cain, on the other hand, asserts he did not waive any objection to Mr. Iloube’s
evidence of medical expenses by failing to object to the evidence at the first trial of this
matter. He further asserts that application of the best evidence rule requires exclusion of Mr.
Iloube’s evidence of medical expenses. Mr. Cain asserts that medical bills constitute
“writings,” and that without the actual bills, Mr. Iloube cannot rely on Dr. Buggs’ testimony
for proof of medical expenses. He further asserts that the trial court did not abuse its
discretion by denying Mr. Iloube’s motion to re-open the proof.

       A directed verdict is appropriate only when one conclusion reasonably may be reached
from the evidence. Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365, 370
(Tenn. 2006). If there is any dispute regarding material evidence, or any doubt regarding the
conclusion to be reached from the evidence, a motion for directed verdict must be denied.
Id. We review a trial court’s disposition of a motion for directed verdict de novo, with no
presumption of correctness. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 206 (Tenn.

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Ct. App. 2008) (citations omitted). Like the trial court, the appellate court “must ‘take the
strongest legitimate view of the evidence in favor of the non-moving party, construing all
evidence in that party’s favor and disregarding all countervailing evidence.’” Sanford v.
Waugh & Co., Inc., 328 S.W.3d 836, 848 (Tenn. 2010)(quoting Johnson v. Tenn. Farmers
Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006)).

        We begin our discussion of this issue by noting that, contrary to Mr. Iloube’s
assertion, Mr. Cain’s failure to object to Mr. Iloube’s medical evidence at the first trial of
this matter does not constitute a waiver. A new trial has been said to “vacat[e]” the earlier
one; it is not a continuance, but an entirely new proceeding. Garner v. State, 13 Tenn. 160
(Tenn. 1833); see State v. Brooks, No. M2000-00909-CCA-R3-PC, 2001 WL 839661, at *3
(Tenn. Crim. App. July 25, 2001), perm. app. denied (Tenn. Dec. 17, 2001). The failure to
raise an objection at the first trial does not preclude an objection at the second trial.
Nashville v. C. & St. L. Ry. Co., 78 Tenn. 351 (Tenn. 1882).

        We turn next the trial court’s entry of a directed verdict on Mr. Iloube’s claim for
medical expenses based on the best evidence rule and the trial court’s denial of Mr. Iloube’s
motion to re-open the proof to allow him to enter his medical bills into evidence. As Mr.
Iloube asserts, upon review of the record we note that Mr. Cain’s objection to Mr. Iloube’s
proof of medical expenses was based entirely on the best evidence rule. Mr. Cain asserted
in the trial court that Mr. Iloube’s medical bills constituted a “writing” and that “if you’re
going to introduce proof of a writing, like a bill, then the law says it is required that the
original or a copy of that writing be introduced into evidence.” Mr. Cain’s argument, as we
perceive it, is that without the actual bills, there can be no proof of medical expenses, and
that the trial court’s decision not to re-open the proof was within its sound discretion.

       Under the best evidence rule, “[t]o prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required, except as otherwise
provided[.]” Tenn. R. Evid. 1002. The original writing is not required, and other evidence
of the writing is admissible, if the original has been lost or destroyed; if the original is not
obtainable; if the original is in the possession of the opposing party; or if the writing is not
related closely to a controlling issue. Tenn. R. Evid. 1004. The contents of a voluminous
writing may be presented in the form of a summary. Tenn. R. Evid. 1006. The party seeking
to prove the contents of a writing generally is required to introduce the original writing or a
duplicate. Integon Indem. Corp. v. Flanagan, No. 02A01-9812-CH-00382, 1999 WL
492656, at *4 (Tenn. Ct. App. July 13, 1999 (citing see Tenn. R. Evid. 1002, 1003)). The
best evidence rule is a rule of preference rather than exclusion. Id. (citations omitted). It
“does not exclude evidence but rather requires the introduction of the best available form of
the evidence.” Id. (quoting State ex rel. Glover v. Osteen, No. 01A01-9304-CV-00244, 1995
WL 546958, at *3 (Tenn. Ct. App. Sept.15, 1995)). The rule is premised on the theory that

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“only the best or most accurate proof of written or similar evidence should be admitted, to
the exclusion of inferior sources of the same proof, absent some extraordinary justification
for the introduction of secondary evidence.” Id. (quoting Neil P. Cohen et al., Tennessee
Law of Evidence § 1001.0, at 496 (2d ed. 1990)).

       The best evidence rule has evolved somewhat into an “original document” rule, under
which “‘[t]o prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these rules or by Act
of Congress or the Tennessee Legislature.’” State v. Sword, No. 03C01-9203-CR-00074,
1993 WL 100192, at *2 (Tenn. Crim. App. Mar. 31, 1993), perm. app. denied (Tenn. Aug.
2, 1993) (quoting Tenn. R. Evid. 1002). Thus, the first inquiry is whether it is the “content
of a writing” that the party offering evidence is attempting to prove. Id.

        Mr. Iloube’s argument, as we perceive it, is that the best evidence rule does not apply
in this case in light of the presumption created by Tennessee Code Annotated § 24-5-113.
This section provides:

               (a)(1) Proof in any civil action that medical, hospital or doctor bills
       were paid or incurred because of any illness, disease, or injury may be itemized
       in the complaint or civil warrant with a copy of bills paid or incurred attached
       as an exhibit to the complaint or civil warrant. The bills itemized and attached
       as an exhibit shall be prima facie evidence that the bills so paid or incurred
       were necessary and reasonable.
               (2) This section shall apply only in personal injury actions brought in
       any court by injured parties against the persons responsible for causing such
       injuries.
               (3) This prima facie presumption shall apply to the medical, hospital
       and doctor bills itemized with copies of bills attached to the complaint or civil
       warrant; provided, that the total amount of such bills does not exceed the sum
       of four thousand dollars ($4,000).
               (b)(1) In addition to the procedure described in subsection (a), in any
       civil action for personal injury brought by an injured party against the person
       or persons alleged to be responsible for causing the injury, if an itemization of
       or copies of the medical, hospital or doctor bills which were paid or incurred
       because of such personal injury are served upon the other parties at least ninety
       (90) days prior to the date set for trial, there shall be a rebuttable presumption
       that such medical, hospital or doctor bills are reasonable.
               (2) Any party desiring to offer evidence at trial to rebut the presumption
       shall serve upon the other parties, at least forty-five (45) days prior to the date
       set for trial, a statement of that party's intention to rebut the presumption. Such

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       statement shall specify which bill or bills the party believes to be unreasonable.

Tenn. Code Ann. § 24-5-113 (2000).

       Compliance with this statute constitutes prima facie evidence that the medical charges
were reasonable and necessary, and additional specific proof regarding the reasonableness
or necessity of those expenses is not needed. However, the plaintiff must nevertheless
demonstrate that the injuries or condition for which the medical treatment was sought was
caused by the conduct of the defendant. The plaintiff must prove causation. Gonzales v.
Long, No. W2008-02605-COA-R3-CV, 2009 WL 3321304, at *7 (Tenn. Ct. App. Oct. 15,
2009).

        In order to rely on the presumption under section 24-5-113(a), a plaintiff may itemize
his medical bills in his complaint and attach a copy of bills paid or incurred to his complaint.
Bills that are itemized and attached as an exhibit are prima facie evidence that the bills were
reasonable and necessary. Tenn. Code Ann. § 24-5-113(a)(1). However, under section 24-5-
113(a)(3), a plaintiff may rely on section 24–5–113(a) if the total amount of the medical bills
that are itemized and attached does not exceed $4,000, regardless of the total amount of
medical expenses that may have been incurred. A plaintiff is not entitled to the presumption,
however, if the plaintiff relies on medical bills that have been redacted to reflect a total of
$4,000 or less. Borner v. Autry, 284 S.W.3d 216, 220 (Tenn. 2009).

         In the current case, Mr. Iloube asserts that he incurred medical expenses in excess of
$10,000. He further asserts that, although the medical bills were not attached to his
complaint, he is entitled to the presumption created by subsection 113(b)(1) where his
medical bills were itemized in an “exact list of medical expenses” submitted in his response
to Mr. Cain’s interrogatories. He relies on Hogan v. Reese to support his argument that the
list of itemized expenses submitted in his response to interrogatories is sufficient to invoke
the statutory presumption of reasonableness. We note that Hogan is factually distinguishable
from the current case where the plaintiff in Hogan attached her medical bills to her response
to defendants request for production of documents.                   Hogan v. Reese, No.
01-A-01-9801-CV-00023, 1998 WL 430627, at*7 (Tenn. Ct. App. July 31, 1998). Whether
an itemized list constitutes sufficient evidence to prove expenses under the best evidence rule
was not an issue in Hogan. The inquiry in Hogan was whether the trial court erred by
charging the jury that it “may presume these expenses were reasonable and necessary.” We
held that the trial court erred in its charge to the jury where “no prima facie evidence of
necessity exists” under section 25-5-113(b)(1). Id. at *8. Accordingly, notwithstanding a
rebuttable statutory presumption of reasonableness, the plaintiff in Hogan carried the initial
burden to demonstrate that her medical expenses were necessary and that they were caused
by the defendant’s conduct.

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        We noted in Hogan that the General Assembly’s purpose in enacting the statute was
to relieve the plaintiff of the common law burden of proof to demonstrate the reasonableness
and necessity of medical expenses in cases involving “small claims.” Id. *6. As noted
above, the presumption of necessity and reasonableness afforded by current section 24-5-
113(a) applies in cases wherein the plaintiff incurred medical expenses not exceeding $4000.
Section 24-5-113(b) provides a rebuttable presumption of reasonableness where a plaintiff
serves an itemization or copies of medical bills which were paid or incurred upon the
defendant at least 90 days prior to the date set for trial. In order to rebut the presumption of
reasonableness, the defendant must serve the plaintiff with a statement of intent at least 45
days prior to the date set for trial. In his statement, the defendant must specify which bill or
bills he believes to be unreasonable.

       In this case, Mr. Cain did not challenge the reasonableness of the medical expenses
allegedly incurred by Mr. Iloube. Rather, he asserted that Mr. Iloube failed to introduce
sufficient evidence that he incurred the expenses alleged. As noted above, when Mr. Cain’s
motion for directed verdict was heard by the trial court at the close of proof, Mr. Iloube
moved the trial court to re-open the proof to allow him to enter his medical bills and
documentary proof of medical expenses into evidence. Counsel for Mr. Iloube stated that
he had the bills and was prepared to enter them into evidence. He further argued that re-
opening the proof would not prejudice Mr. Cain where the proof had rested immediately
prior to discussion of Mr. Cain’s motion, and where the jury had been out during the
interchange between counsel and the court.

       Whether to re-open the proof to permit additional evidence after the proof has closed
is within the discretion of the trial court. Simpson v. Frontier Cmty. Credit Union, 810
S.W.2d 147, 149 (Tenn. 1991). We will not disturb the trial court’s exercise of discretion
unless its decision has permitted an injustice. Id. In this case, the trial court offered no
explanation for its refusal to re-open the proof to allow Mr. Iloube to enter his medical bills
into evidence. Further, the trial court granted Mr. Cain’s motion for directed verdict based
only on the best evidence rule, notwithstanding Dr. Buggs’ testimony with respect to costs
associated with his own treatment of Mr. Iloube and the itemization of expenses provided
in response to Mr. Cain’s discovery requests. We additionally note that Mr. Iloube did not
seek to offer proof of any expenses not previously itemized in his discovery responses.

        As our supreme court has noted, the role of the trial judge is not to act as a referee, but
to exercise its discretion to promote justice and avoid injustice. The Simpson court observed
that the function of a trial judge “is not limited to that of a mere referee or umpire between
contestants in a game of skill. Upon the contrary, in many respects he has wide discretion
to be exercised in the promotion of the purpose for which the trial is had[.]” Id. at 150
(quoting Bellisomi v. Kenny, 206 S.W.2d 787, 788 (Tenn. 1947). With respect to re-opening

                                                -7-
the proof after the defendant has moved for a directed verdict, the Bellisomi court stated:

       Where the trial is before a jury, the function of the judge of a law court is not
       limited to that of a mere referee or umpire between contestants in a game of
       skill. Upon the contrary, in many respects he has wide discretion to be
       exercised in the promotion of the purpose for which the trial is had, and he is
       required to bear in mind that ‘courts are made for complainants (or plaintiffs):
       defendants neither need nor desire courts’. . . . The court should really favor
       the party on whom the burden of proof rests, so as to give him a reasonable
       opportunity to prove his case. Gibson’s Suits in Chancery, Sec. 521, Note 5.
       This, as Mr. Gibson shows, is the modern view, and while it is said with
       particular reference to the discretion a judge or chancellor has in allowing a
       motion for the continuance of the case, it applies generally. Thus it is settled
       in this state that the judge in his discretion may permit a plaintiff to introduce
       further evidence after the defendant has moved for a directed verdict.

Bellisomi v. Kenny, 206 S.W.2d 787, 788 (Tenn. 1947)(quoting Boone v. Citizens’ Bank &
Trust Co., 154 Tenn. 241, 290 S.W. 39, 50 A.L.R. 1369; Petway v. Hoover, 12 Tenn. App.
618).

       In light of the entirety of the circumstance in this case, we believe the trial court erred
by denying Mr. Iloube’s request to re-open the proof after Mr. Cain’s motion for a directed
verdict for the narrow purpose of allowing Mr. Iloube to put his medical bills into evidence.
Accordingly, we reverse the directed verdict in favor of Mr. Cain with respect to Mr. Iloube’s
claim for medical expenses.

       We turn next to whether the trial court erred by granting Mr. Cain’s motion in limine
to exclude evidence that Mr. Cain agreed that Mr. Iloube had incurred property damage in
the amount of $1400, or that Mr. Cain had tendered that amount. Upon review of the trial
court’s order, we note that the trial court ruled that Mr. Iloube could testify that he incurred
costs in the amount of $1400 to repair his vehicle, but that Mr. Iloube was “barred from
introducing evidence of any kind that [Mr. Cain] paid that amount . . . or that [Mr. Cain] in
any way agreed to or determined that the property damage to [Mr. Iloube’s] vehicle was
$1400.”

        Upon review of the trial transcript, we note that, when Mr. Cain’s motion in limine
was heard by the trial court, counsel for Mr. Iloube advised the court that he sought only to
introduce evidence regarding the amount that it cost to repair Mr. Iloube’s vehicle. Counsel
stated:



                                               -8-
       Your Honor, I’m not asking to bring in the settlement. All I’m asking is the
       opinion. In 803.1.2 it says, “An admission is not excluded merely because the
       statement is in the form of an opinion.” So when the adjustor came out and it
       was his opinion that $1400 was fine, that’s fine. We’re not going to say the
       adjustor’s opinion. We’re going to say how much did it cost to fix the vehicle,
       $1400.

The trial court replied, “That I don’t have a problem with.” Counsel then replied, “That’s
all I’m going to do.” The trial court stated that it would exclude testimony that an adjustor
for Mr. Cain’s insurance carrier “came out and said there was $1400 worth of damage,” but
that it would not exclude Mr. Iloube’s testimony that he incurred damages to his vehicle in
the amount of $1400. Counsel for Mr. Iloube stated, “That’s all I need, Your Honor. That’s
fine.” This issue is without merit.

                                            Holding

         In light of the foregoing, we reverse the trial court’s directed verdict in favor of Mr.
Cain on Mr. Iloube’s claim for medical expenses. Mr. Cain has not appealed the trial court’s
entry of a directed verdict on his defense of comparative fault, and in his brief acknowledges
that “this was a case of admitted liability.” Where the trial court erred as to only specific
issues, we may remand for a new trial and limit the new trial to those issues affected by the
trial court’s error. Acuff v. Vinsant, 443 S.W.2d 669, 739 (Tenn. Ct. App. 1969). We agree
with Mr. Iloube that the trial court’s directed verdict with respect to his claim for medical
damages reasonably may have impacted the jury’s verdict with respect to pain and suffering
and loss of earning capacity. Accordingly, this matter is remanded to the trial court for a new
trial limited to the issue of damages. The remaining issues are pretermitted as unnecessary.
Costs of this appeal are taxed to the appellee, Don M. Cain.




                                                     _________________________________
                                                     DAVID R. FARMER, JUDGE




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