                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 13, 2001 Session


         DONALD MILLER, ET AL. v. CHOO CHOO PARTNERS, L. P.

                      Appeal from the Circuit Court for Hamilton County
                         No. 99CV0720      Samuel H. Payne, Judge

                                   FILED NOVEMBER 5, 2001

                                  No. E2001-00007-COA-R3-CV



D. MICHAEL SWINEY, J., dissenting


                 I find it necessary to dissent, respectfully, from the majority opinion. I believe the
Trial Court erred in failing to direct a verdict in Defendant’s favor based upon Plaintiffs’ failure to
present medical evidence that Mr. Miller’s back and neck injuries were more likely than not caused
by his fall. I believe the medical testimony presented by Plaintiffs fails to satisfy this burden, even
taking the strongest legitimate view of the evidence in favor of Plaintiffs as we must.

              As discussed in the majority opinion, Plaintiffs presented medical evidence by the
testimony of Mr. Miller’s two treating physicians. It is this testimony that is the crux of my dissent.

                I have no disagreement with the law as discussed in the majority opinion. I agree with
the majority as to what the law is, but disagree as to whether or not Plaintiffs met their burden as
required by law. As discussed by the majority, the causation of a medical condition must be
established by testimony from a medical expert. Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278,
283 (Tenn. 1991). I rely upon the same Tennessee Supreme Court case, and in fact the same
language, as the majority, as follows:

       “The plaintiff must introduce evidence which affords a reasonable basis for the
       conclusion that it is more likely than not that the conduct of the defendant was a
       cause in fact of the result. A mere possibility of such causation is not enough; and
       when the matter remains one of pure speculation or conjecture or the probabilities are
       at best evenly balanced, it becomes the duty of the court to direct a verdict for the
       defendant …

        The plaintiff is not, however, required to prove the case beyond a reasonable doubt.
        The plaintiff need not negative entirely the possibility that the defendant’s conduct
       was not a cause and it is enough to introduce evidence from which reasonable
       persons may conclude that it is more probable that the event was caused by the
       defendant than that it was not ...” Prosser [and Keeton, Torts, § 41, p. 269 (5th ed.
       1984)].

       “A doctor’s testimony that a certain thing is possible is no evidence at all. His
       opinion as to what is possible is no more valid than the jury’s own speculation as to
       what is or is not possible. Almost anything is possible, and it is thus improper to
       allow a jury to consider and base a verdict upon a ‘possible’ cause of death.” Palace
       Bar, Inc. v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 864 (1978). “The mere
       possibility of a causal relationship, without more, is insufficient to qualify as an
       admissible expert opinion.” Kirschner v. Broadhead, 671 F.2d 1034, 1039 (7th Cir.
       1982).

       The admissibility of an expert medical opinion, of course, should not turn on whether
       the testifying physician characterizes a particular potential cause of an injury as
       “conceivable,” “possible” or “probable.” See Trapp v. 4-10 Investment Corp., 424
       F.2d 1261, 1268 (8th Cir. 1970). Regardless of the term employed, if the physician’s

               “testimony is such in nature and basis of hypothesis as to judicially
               impress that the opinion expressed represents his professional
               judgment as to the most likely one among the possible causes of the
               physical condition involved, the court is entitled to admit the opinion
               and leave its weight to the jury.” Norland v. Washington General
               Hospital, 461 F.2d 694, 697 (Cir. 8, 1972).

       Nevertheless, a mere possibility is not an affirmative basis for a finding of fact. “In
       the language of the law of evidence, [a medical opinion suggesting] that which is
       merely possible, standing alone and not offered as auxiliary or rebuttal testimony is
       immaterial to the ascertainment of the fact and so is inadmissible as evidence of that
       fact.” Martin v. United States, 284 F.2d 217, 219 (D.C. Cir., 1960). Kirschner v.
       Broadhead, supra, 671 F.2d at p. 1039-1040.

Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 861-62 (Tenn. 1985) (emphasis in original).

The central point of this quote is that plaintiffs must present evidence affording a reasonable basis
for the conclusion that it is more likely than not that the defendant’s conduct was a cause in fact of
the result. In short, Plaintiffs here were required to present medical evidence affording a reasonable
basis for the conclusion that it is more likely than not that Defendant’s negligence resulting in Mr.
Miller’s fall was a cause in fact of his back and neck problems. Plaintiffs failed to do so.

                The majority believes the testimony of Dr. Schock and Dr. Lister establishes
causation as to Mr. Miller’s injuries. I disagree. I believe Dr. Schock’s and Dr. Lister’s testimony


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fail to afford “a reasonable basis for the conclusion that it is more likely than not that the conduct
of the defendant was a cause in fact of the result.” Lindsey 689 S.W.2d at 861.

                First, a review of Dr. Schock’s testimony is necessary. The majority sets out much
of Dr. Schock’s relevant testimony on this issue. I will not repeat all of that testimony in this dissent,
but rather will refer to the specific portions that form the basis for my dissent. Specifically, Dr.
Schock testified as follows:

                                                .    .    .

                A       So I cannot say with any, you know, certainty that, yes, the
                        herniated disc was exacerbated by the fall. But I can say that
                        the fall could have exacerbated the herniation.

                Q       And that’s about - you’re talking about the neck herniation?

                A       Both of them.

Dr. Schock clearly testified that he cannot say with any certainty that either Mr. Miller’s neck or
back injury was exacerbated by the fall, only that “the fall could have exacerbated the herniation”.
This testimony does not rise to the level of showing these injuries more likely than not were caused
by Mr. Miller’s fall.

              Dr. Schock’s testimony continued, also as discussed by the majority. He was
questioned regarding Mr. Miller’s neck problem:

                Q       Given Mr. Miller’s history and given your physical
                        evaluations in 1996 and then in early 1997, can you state, Dr.
                        Schock, within a reasonable degree of medical certainty
                        whether the fall he described to you in April of 1996 at the
                        Chattanooga Choo-Choo, formerly a Holiday Inn, did or did
                        not aggravate or exacerbate this gentleman’s preexisting neck
                        problem?

                A       I - I definitely cannot put a - say that the fall caused it. He
                        definitely has a predisposing condition that would make him
                        susceptible to that type of an injury from a fall.

Once again, Dr. Schock says he cannot say the fall caused Mr. Miller’s neck injury.

                Dr. Schock also testifies, again as discussed in the majority opinion, only that it is his
opinion to a reasonable degree of medical certainty that Mr. Miller’s symptoms “could be” consistent



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with his fall. Again, he does not testify that it is more probable than not, or likely, or to a reasonable
degree of medical certainty, but instead testifies only to a “could be” standard.

                Next is Dr. Lister’s testimony, also as quoted in the majority opinion as follows:

                Q       In your opinion, Dr. Lister, is it more likely than not that the
                        recurrent disc disease in the lumbar spine was caused as a
                        result of the fall he described to you?

                A       I don’t know what caused his recurrent disc herniation. Based
                        on his history, the two are related, but I don’t know what
                        caused the disc herniation.

The majority, in discussing this testimony of Dr. Lister, admits that Dr. Lister testified that he did
not know “what caused the disc herniation.” The majority explains away this testimony by saying
it “can be legitimately construed as a statement by the doctor that he did not know what caused this
condition originally. This is the “strongest legitimate view” of this evidence in favor of the plaintiffs
. . . .” I would not necessarily disagree with that interpretation, except that the majority overlooks
the fact that in the very first sentence of that exact same answer Dr. Lister testified not that he didn’t
know “what caused the disc herniation” but specifically that “I don’t know what caused the recurrent
disc herniation.” [emphasis added]. I believe there is no way to argue that the strongest legitimate
view in Plaintiffs’ favor of the first sentence of Dr. Lister’s answer can be anything other than
pertaining to Mr. Miller’s conditions after the fall as Dr. Lister specifically referenced Mr. Miller’s
recurrent disc herniation. This being so, what Dr. Lister testified to was that he did not know what
caused Mr. Miller’s recurrent disc herniation, only that he believed they were related to the fall.

                Contrary to the majority’s statement, I do not exclude from consideration Dr. Lister’s
testimony that “I don’t know what caused the disc herniation.” I agree with the majority that this can
be construed as Dr. Lister’s admission that he did not know what caused the disc herniation to first
manifest itself. The problem with the majority’s opinion on this issue is that Dr. Lister said more.
He specifically testified “I don’t know what caused the recurrent disc herniation.” The statement by
Dr. Lister relied on by the majority in no way qualifies his statement that he does not know what
caused Plaintiff’s recurrent disc herniation. Dr. Lister made two statements. In the first, he said he
did not know what caused Plaintiff’s recurrent disc herniation. In the second, according to the
majority’s interpretation with which I do not disagree, Dr. Lister arguably stated he did not know
what caused the original disc herniation. Therefore, Dr. Lister testified he does not know what
caused the disc herniation originally and he does not know what caused the recurrent disc herniation.
This was his testimony. Again, we are left with medical testimony not that Mr. Miller’s injuries
were more likely than not or probably caused by his fall, but only that Dr. Lister does not know what
caused Mr. Miller’s recurrent disc herniation but believes that the injury and fall are related in some
way.




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                I agree with the majority that we must “take the strongest legitimate view of the
evidence favoring the opponent of the motion.” Long, 797 S.W.2d at 892. I likewise agree that all
reasonable inferences in favor of Plaintiffs as the opponents of the motion must be allowed and all
evidence contrary to Plaintiffs’ position must be disregarded. Eaton, 891 S.W.2d at 590; Long, 797
S.W.2d at 892. I, however, would hold that even taking the strongest legitimate view of the medical
evidence presented by Plaintiffs and applying all reasonable inferences in favor of Plaintiffs,
Plaintiffs’ medical testimony simply never “affords a reasonable basis for the conclusion that it is
more likely than not that the conduct of the defendant was a cause in fact of the result.” Lindsey, 689
S.W.2d at 861. Plaintiffs’ lawyers attempted to get this level of opinion testimony from Dr. Schock
and Dr. Lister, but were unsuccessful in getting medical testimony that Mr. Miller’s neck and back
injuries more likely than not were caused by his fall. Plaintiff’s attorneys used the appropriate
language in their questions to these two doctors, language such as “within a reasonable degree of
medical certainty” and “more likely than not.” The short-coming was not in the lawyer’s questions,
but rather in the witnesses’ answers. I believe the strongest legitimate view of Plaintiffs’ medical
evidence can be no more than Mr. Miller’s fall could have been the cause of his neck and back
injuries, and that his injuries were consistent with such a fall. This falls far short of being a
reasonable basis for the conclusion that Mr. Miller’s injuries were more likely than not caused by
his fall.

                The majority says that a medical expert is not required “to testify with legal
precision.” While I am unsure exactly what the term “legal precision” means, a medical expert is
required, under the law of this state, to testify to a reasonable degree of medical certainty which, I
believe, means more likely than not. Plaintiffs’ experts did not do that. Therefore, there being no
evidence that Mr. Miller’s injuries were more likely than not caused by his fall, it became “the duty
of the court to direct a verdict for the defendant . . . .” Lindsey, 689 S.W.2d at 861.

                For these reasons, I believe it was error for the Trial Court to fail to direct a verdict
in favor of Defendant. I would reverse the judgment of the Trial Court, and award judgment in favor
of Defendant.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




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