                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           August 7, 2003 Session

     SHERRY HUNTER, As Administratrix of the Estate of LAWRENCE
          HUNTER, Deceased v. JAY MICHAEL URA, ET AL.

                   A Direct Appeal from the Circuit Court for Davidson County
                   No. 96C-3784     The Honorable Marietta M. Shipley, Judge



                       No. M2002-02573-COA-R3-CV - Filed October 28, 2003


        Administratrix of estate of deceased husband filed wrongful death action against defendants
anesthesiologist and anesthesia services group. Jury returned a verdict for plaintiff, finding
defendants at fault and awarding damages for medical and funeral expenses, and the pecuniary value
of the life of the deceased including loss of consortium of wife and children. Defendants appeal,
raising several procedural and evidentiary issues for consideration. We vacate and remand.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

E. Reynolds Davies, Jr., Ed R. Davies, Nashville; Daniel D. Warlick, Nashville - For Appellants, Jay
Michael Ura, M.D. and Nashville Anesthesia Services

Gary K. Smith, C. Philip M. Campbell, Memphis, For Appellee, Sherry Hunter

                                                     OPINION

        The deceased, Mr. Lawrence Hunter (“Husband”), was admitted to the Columbia Southern
Hills Medical Center on October 27, 1995, to undergo an arthroscopy of his right shoulder.1 Prior
to the operation, Dr. Stephen J. Obermeier (“Dr. Obermeier”) administered an interscalene nerve
block.

       On October 17, 1996, Plaintiff, Sherry Hunter, as Administratrix of the Estate of Lawrence
Hunter, deceased, filed a Complaint for wrongful death against the Defendants, Jay Michael Ura ,

       1
           The scheduled procedure wa s described as an “o ut-patient proc edure” in p laintiff’s complaint.
M.D. (“Dr. Ura”); Stephen J. Obermeier, M.D.; Susan Moyers, CRNA; Nashville Anesthesia
Services (“NAS”); H.C.A. Health Services, Inc.; H.C.A. Health Services of Tennessee, Inc., d/b/a
Columbia Southern Hills Medical Center, and Columbia Southern Hills Medical Center.2

        The Complaint avers that the operation was “initiated as an arthroscopy of the right shoulder
and intraoperatively converted to an open rotator cuff repair.” During the surgery, Dr. Ura
administered a general anesthesia to the patient. Upon completion of the operation, the “anesthesia
team” was unable to awaken Husband. Continued post-operative efforts to awaken the patient
proved unsuccessful and, on November 1, 1995, Husband was declared brain dead. At the time of
his death, the deceased was a 49-year-old executive with Nissan Motor Manufacturing Corporation,
U.S.A., and the father of two minor sons. The Complaint alleges, among other thing:

                  Plaintiff alleges that Plaintiff’s decedent suffered, in conjunction with
                  the operative procedure, a diffuse hypoxic insult to the brain. Said
                  loss of oxygen to the brain was the direct and proximate cause of
                  Plaintiff’s decedent’s death and said hypoxic episode was due to and
                  directly and proximately caused by the negligence of the Defendants,
                  Ura, Obermeier, Moyers, CRNA, as well as other employees or
                  agents of the Defendant Hospital staff.

                  Plaintiff alleges that the Defendants, their agents/employees, were
                  negligent and that the professional services rendered to Plaintiff’s
                  decedent fell below acceptable standards of professional practice
                  including, but not limited to the following:

                  a. Failing to provide appropriate informed consent or adhere to
                  consent given by the patient and as such, the administration of general
                  anesthesia constitutes assault and battery resulting in the death of
                  Plaintiff’s decedent;

                  b. Failing to properly monitor and/or accommodate proper monitoring
                  of Plaintiff’s decedent preoperatively and intraoperatively;

                  c. Failing to diagnose in a timely fashion loss of oxygen to Plaintiff’s
                  decedent’s brain when reasonable care, had it been exercised, would
                  have indicated that Plaintiff was suffering from cerebral hypoxia;

                  d. Failing to take appropriate steps to prevent cerebral hypoxia;




         2
          Plaintiff voluntarily dismissed the suit against Defenda nt Mo yers and summ ary jud gments were granted to
the remaining D efendants, except Defendants, Jay M ichael Ura, M.D ., and Nashville Anesthesia Services.

                                                        -2-
               e. Failure to take appropriate steps to resolve existing cerebral
               hypoxia before significant and ultimately fatal brain damage
               occurred;

               f. Failure to exercise reasonable and ordinary care under the
               circumstances; and

               g. Failure to follow acceptable standards of professional practice
               under the circumstances while providing medical services to
               Plaintiff’s decedent.

               ******************************************************

               The negligence of the Defendants, their agents, servants and
               employees, including, but not limited to those acts set forth above,
               were the direct and proximate cause of Plaintiff’s decedent’s death
               and the physical and mental pain and suffering sustained by
               Plaintiff’s decedent prior to death.

        The Complaint seeks judgment for damages for (1) the pecuniary value of the deceased’s life;
(2) physical and mental pain and suffering incurred by the deceased prior to death; and (3) “[v]alue
of services to be provided by [deceased] to Plaintiff and Plaintiff’s minor children.” On these
grounds, Plaintiff prayed for a judgment against defendants in the amount of $15,000,000.00 “plus
pre-judgment interest, discretionary costs and all other allowable costs.”

        On October 28, 1998, Plaintiff filed a Motion to Amend Complaint adding a claim for loss
of consortium damages and a claim for punitive damages in the amount of $45,000,000.00.
Defendants’ response to Plaintiff’s motion objected to the inclusion of a claim for punitive damages
but did not object to Plaintiff’s loss of consortium claims. The trial court allowed the amendment
only as to the loss of consortium claims.

        By Order entered February 27, 2001, the case was set for a jury trial to begin September 10,
2001. On May 2, 2001, Plaintiff filed a Motion in Limine seeking to preclude defendants “from
offering expert testimony as to the causation or “possible” causation of the injuries or death of
Plaintiff’s decedent from occlusion of the carotid artery(ies)....” The trial court entered a
Memorandum Opinion on July 2, 2001, addressing Plaintiff’s motion to preclude defense expert
testimony regarding the aforementioned “carotid artery occlusion theory.” As the basis for its
opinion, the court examined the deposition testimony of defense experts, Dr. Michael Hays (“Dr.
Hays”), Dr. John Eichhorn (“Dr. Eichhorn”), and Dr. Ballard Wright (“Dr. Wright”) with regard to
the carotid artery occlusion theory, noting:

               The doctors that have set forth the “carotid artery occlusion theory”
               posit that three simultaneous events caused the death of Mr. Hunter.


                                                -3-
               The three events are (1) a left styloid process sufficiently elongated
               to occlude the left carotid artery, (2) a turning of Mr. Hunter’s head
               to the left during the surgery, and (3) an interscalene block which
               colluded the right carotid artery.

        Upon examination of the individual deposition testimony of each doctor, the court granted
Plaintiff’s motion as to Dr. Hays, finding that his testimony “while within the realm of scientific
possibility, falls short of the strictures of legal probability necessary to be an admissible expert
opinion.” With regard to defense experts Dr. Eichhorn and Dr. Wright, the court expressed “some
concern about the admissibility” of the experts’ testimony based on their depositions. However,
recognizing that the experts’ testimony was offered in the limited and highly scrutinized form of
discovery depositions, the court decided to hold a Daubert/McDaniel hearing prior to trial to further
consider the admissibility of the experts’ testimony regarding the carotid artery occlusion theory.

       The trial court held a Daubert/McDaniel hearing on August 30, 2001. Several months later,
the court entered a Memorandum Opinion examining the question of “whether Dr. Eichhorn’s
testimony complies with the factors for determining reliability of scientific evidence in McDaniel
v. CSX, 955 S.W.2d 257 (Tenn. 1997)[,] as well as the legal sufficiency of a professional opinion
in Lindsey v. Miami Development Corp., 689 S.W.2d 856 (Tenn. 1985).” After determining that
Dr. Eichhorn was qualified to testify as an expert, the court found that the expert “passed the initial
threshold necessitated by McDaniel,” and thereby permitted both Dr. Eichhorn and Dr. Wright,
provided Dr. Wright testified “in a similar vein,” to testify at trial.

        On September 4, 2001, Plaintiff filed a Motion in Limine seeking to preclude defendants
from “introducing or attempting to introduce into evidence or making any reference in opening or
closing arguments to any collateral source payments at the trial of this case.” Plaintiff filed a
Memorandum of Law in support of her motion, asserting that defendants were not entitled to set-offs
or credits for payments made to Plaintiff by Husband’s employer in the form of insurance and death
benefits, and retirement plan payouts. Plaintiff also sought to exclude introduction of social security
benefits, and investment payouts.


        Defendants filed Motion in Limine #10 on September 4, 2001, seeking to exclude, as
substantive evidence, any learned treatise materials “that may be utilized or referred to by plaintiffs’
expert witness.” On April 8, 2002, defendants filed another Motion in Limine, seeking to preclude
Plaintiff from introducing “proof of actual economic losses relating to loss of services and loss of
earned income to the extent these losses will be paid or have been paid and replaced by monies
received by Plaintiff and her children as a result of Larry Hunter’s death.” Alternatively, defendants
moved for a set-off or credit of the above-cited amounts against any judgment rendered in favor of
Plaintiff.




                                                  -4-
        Defendants filed Motion in Limine #13 on April 19, 2002, renewing their application for “a
total of eight (8) peremptory challenges at the time of jury selection.” Defendants also moved to
limit Plaintiff to four total peremptory jury challenges.

          The jury trial began on April 22, 2002, and lasted through May 3, 2002. During the course
of the trial, it was learned that Dr. Hays, defendants’ primary causation and standard of care expert,
had been diagnosed with cancer and would be unable to testify at trial due to treatment conflicts.
Defendants asserted that it would be prejudicial to their case if Dr. Hays were unable to testify live
at trial, and therefore moved for a mistrial.3 The court denied defendants’ motion, but permitted the
parties to make arrangements to take Dr. Hays’s videotaped deposition during the upcoming
weekend. When the trial convened the following week, defense counsel informed the court that it
did not take the videotaped deposition as planned because of concerns regarding Dr. Hays’s health.
Defendants thereby renewed their motion for mistrial to no avail.

        At the close of trial, the jury rendered a verdict for Plaintiff against Dr. Ura and NAS,
awarding Plaintiff damages in the amount of $43,950.00 for medical expenses, $11,360.64 in funeral
expenses, and $5,800,000.00 for the “[p]ecuniary value of life of Larry Hunter including loss of
consortium of wife and children.” The jury refused to award Plaintiff damages for the “[m]ental
suffering of Larry Hunter from time of injury until time of death.” On May 17, 2002, the trial court
entered judgment on the jury verdict in the total amount of $5,855,310.64.


      Plaintiff filed a Motion for Prejudgment Interest on June 17, 2002. This same day,
Defendants filed “Defendants’ Motion to Set Aside Judgment And To Have A Judgment Entered
In Accordance With the Motion for Directed Verdict,” “Defendants’ Motion for New Trial,”
“Defendants’ Motion for Remittitur,” and “Defendants’ Motion to Alter or Amend the Judgment.”


        On October 7, 2002, the court entered an Order on the post-trial motions submitted by the
respective parties. The court supported the jury’s verdict finding defendants “at fault,” and entered
the following rulings as to the parties’ post-trial motions:

                           It is therefore, ORDERED as follows:

                          1. Defendants’ motion to set aside the judgment and to have
                  judgment entered in accordance with the motion for directed verdict
                  is denied.



         3
          Defense counsel acknowledged that Dr. Hays could give a videotaped deposition over the upcoming weekend,
but expressed conc ern with regard to whether Dr. H ays would be in the proper state o f mind to offer an opinion at this
time.



                                                          -5-
                          2. Defendants’ motion for new trial based upon the
                  assignments of error in Section II, A-P, and R-S of the motion, is
                  denied.

                         3. The court agrees with the jury’s verdict relating to the
                  determination of Defendants’ fault and the jury’s award of $2.8
                  million dollars for the present-day-value of the lost earning capacity
                  of the decedent. The court disagrees with the jury’s award of an
                  additional $3.0 million dollars for loss of consortium damages, and
                  disagrees with the jury’s award of $5.8 million dollars for the
                  pecuniary value of the life of the decedent.

                         4. Defendants’ motion for remittitur is granted. The court
                  suggests a remittitur in the amount of $1.5 million dollars of the
                  judgment entered on May 17, 2002.

                           5. Plaintiff must file a notice with the Circuit Court Clerk
                  accepting the suggested remittitur, accepting the suggested remittitur
                  under protest, or rejecting the suggested remittitur within 15 days
                  from the entry of this order. If Plaintiff fails to file such notice, or if
                  Plaintiff rejects the suggested remittitur, Defendants’ motion for new
                  trial is granted.

                            6. Defendants’ motion to alter or amend the judgment is
                  denied.

                  ******************************************************

                            8. Plaintiff’s motion for an award of pre-judgment interest is
                  denied.

The court further awarded defendants a set-off against the judgment entered in this case in the total

amount of $426,565.00 to account for collateral source payments received by Plaintiff.4 Plaintiff was

awarded $35,468.59 in discretionary costs. Taking into account the set-offs, the court’s discretionary



         4
           The court specifically found that defendants’ were entitled to the following set-offs for amounts paid on
account of Mr. Hunter’s death: (1) life insurance proceeds to Sherry Hunter totaling $185,000.00; (2) life insurance
proceeds paid to B enjamin H unter in the amount of $185,000 .00; (3) “child’s social security benefits” paid to Benjamin
Hunter in the amount of $5,523.00, and Joseph S. Hunter in the amou nt of $42,897.00; (4) “one-time widow’s social
security benefit” paid to Sherry Hunter in amount totaling $255.00 ; and (5) social security benefits payment to Sherry
Hunter in the total am ount of $7,8 90.0 0.

                                                          -6-
cost award, and the suggested remittitur, the court calculated a total modified judgment in favor of

Plaintiff in the amount of $3,964,214.23.

        On October 16, 2002, Plaintiff filed a Notice of Acceptance of Remittitur Under Protest. On
January 10, 2003, this Court filed an Order directing plaintiff to obtain a final judgment from the trial
court, as the trial court had “not yet entered an order reducing the amount of the judgment” in
accordance with its suggestion of remittitur. On January 28, 2003, the trial court filed an Order
stating in pertinent part:

                         The court hereby reduces the May 17, 2002 judgment to
                reflect the accepted remittitur (under protest) and other reductions, all
                as more fully described in the order of October 7, 2002 the contents
                of which are hereby incorporated by reference.

                        As stated in the order of October 7, 2002, the amount of the
                remitted final judgment in this case is $3,928,745.64, plus
                discretionary costs in the amount of $35,468.59, for which execution
                may issue if necessary.

        Defendants appeal, presenting the following issues for review, as stated in their brief:

                1. Whether the trial court erroneously awarded Plaintiff Sherry Hunter
                eight peremptory challenges contrary to T.C.A. § 22-3-105 which
                allows only four peremptory challenges per party.

                2. Whether the trial court erred in denying Defendants’ pre-trial
                motion in limine #10 relating to the exclusion of learned treatise
                materials resulting in the improper admission and use of hearsay
                treatises and other “medical literature” by Plaintiff throughout the
                trial.

                3. Whether the trial court erred in determining that Plaintiff’s out-of-
                state expert witness on anesthesiology and causation issues, Dr.
                William O. Witt, was competent to testify under T.C.A. § 29-26-115,
                and whether it erred by allowing Dr. Witt to testify as an expert at
                trial over Defendants’ objections to his qualifications based upon the
                locality rule.

                4. Whether the court erred in allowing Dr. Witt to introduce the
                substance of unidentified “medical literature” and/or treatise materials
                into evidence in violation of the rule excluding hearsay.



                                                  -7-
5. Whether the court erred by allowing Plaintiff’s counsel to conduct
a cross-examination of Defendants’ expert witness, John Eichhorn,
M.D., with statements contained in published treatises or periodicals
which were never identified or established as reliable authority by any
witness contrary to TRE 618.

6. Whether the court erred by permitting Plaintiff’s counsel to
conduct a cross-examination of Dr. Eichhorn by challenging the
witness on various occasions to “cite me to one piece of medical
literature” supporting his testimony contrary to the provisions of TRE
618 and 705.

7. Whether the trial court abused its discretion in denying
Defendants’ motion for mistrial after Plaintiff’s counsel conducted an
improper cross-examination of Dr. Eichhorn concerning a specific
instance of prior conduct; namely, a statement allegedly attributed to
the witness that he compared his role as a defense expert to that of a
“prostitute,” when there was no reasonable factual basis for such
questioning and where Plaintiff failed to request a jury-out hearing
before questioning the witness as required by TRE 608(b)(1).

8. Whether the trial court abused its discretion in denying
Defendants’ motions for mistrials or to continue the trial after
Defendants were notified at the end of the first week of trial that a
planned expert witness, Dr. Michael Hays, a local anesthesiologist in
private practice in Nashville, was unavailable to testify due to the fact
that he had been diagnosed with malignant lymphoma during the trial
and planned to undergo immediate diagnostic tests and chemotherapy
treatment.

9. Whether the trial court erred in granting Plaintiff’s pre-trial motion
in limine relating to Dr. Hays’ anticipated expert testimony about
causation of injury and the carotid artery occlusion theory.

10. Whether the trial court erred in denying Defendants’ motion for
directed verdict at the close of all the evidence based upon
Defendants’ objections to Dr. Witt’s competence to testify as an
expert witness under the locality rule, T.C.A. § 29-26-115.

11. Whether the trial court erred in allowing Plaintiff’s counsel to
argue to the jury that everything the Plaintiff claims in this case is
supported by the “medical literature;” i.e., the “vast body of
information that is shared among medical professionals” when, in


                                  -8-
fact, no supporting treatises, periodicals, or literature had been
identified or established as reliable authority by any witness.

12. Whether the trial court erred in allowing Plaintiff’s counsel to
argue to the jury that Defendants had failed to produce “any medical
literature to support their version – their defense of the case,” when
Plaintiff even acknowledged and the court had ruled during the pre-
trial hearing on motions in limine that introduction of medical
literature into the evidence would not be permitted.

13. Whether the trial court erred in allowing Plaintiff’s counsel to
argue to the jury that testimony given by Plaintiff’s expert witness has
been “in textbooks longer than we’ve been alive,” “that it has been in
every book written on this subject during our lifetime,” and that “not
once in the history of medicine” had this testimony been challenged.

14. Whether the trial court erred in allowing Plaintiff’s counsel to
argue to the jury that in establishing the standard of care in this
community, is it okay to ignore “years and years and years of
collective knowledge – brilliant doctors who have practiced who have
never had their opinions disputed” or “to ignore all medical
knowledge that has never been drawn into question.”

15. Whether the court’s retrospective application of the Jordan
decision allowing the jury to award loss of consortium damages in
this case is unconstitutional as it violates Defendants’ rights under
Art. I, § 20 of the Tennessee Constitution, and vested rights protected
by the Due Process and Equal Protection Clauses of the 14th
Amendment to the Constitution of the United States.

16. Whether the court violated Defendants’ guaranty to trial by jury
under the Tennessee Constitution by commenting upon the evidence
during the jury charge that this case was “a very interesting and
difficult case,” and that the jury would find Question #1 on the
verdict form (were the Defendants at fault?) to be a “deceptively
simple question” and one to which there was “obviously not a simple
answer.”

17. Whether the trial court erred by allowing Plaintiff to recover the
total amount awarded by the jury for the pecuniary value of the life of
the deceased where such value included economic damages which
were “replaced” (within the meaning of T.C.A. § 29-26-119) by a



                                  -9-
                $1M+ death benefit paid to Plaintiff Sherry Hunter in 1996 by Nissan
                Motor Manufacturing Corporation (Mr. Hunter’s employer).

                18. Whether the cumulative effect of all the errors complained of in
                this appeal denied Defendants a fair trial by a fair and impartial jury.

Plaintiff raises the following additional issues, as stated in her brief:

                1. Whether the trial court erred in remitting by 1.5 million dollars the
                jury’s award for loss of consortium as a component of the pecuniary
                value of the life of Plaintiff’s decedent Larry Hunter.

                2. Whether the trial court erred in denying Plaintiff’s Motion for
                Award of Prejudgment Interest.

         The first issue for review is whether the trial court erred in allowing Plaintiff eight
peremptory jury challenges. To provide a brief procedural background for this issue, we note that
the trial court first considered the question of the number of allowable peremptory challenges per
side at a pre-trial hearing on April 18, 2002. At this hearing, the court made no final ruling as to the
number of peremptory challenges to be granted, instead remarking:

                        THE COURT: Now, we could look at this in a nonlegal way
                and just say, “Either we all get four, or well all get eight.” We could
                do it that way.

                        MR. SMITH [PLAINTIFF COUNSEL]: I don’t care which it
                is.

                        MR. WARLICK [DEFENDANTS’ COUNSEL]: The
                wrongful death is a statutory cause of action, and it – there – I’ve tried
                this recently. It’s a titular plaintiff. The – derivation of the –

                        THE COURT: There is no derivative claim here.

                        MR. WARLICK: Damages come out of the statute.

                       THE COURT: Well, I thought we could start with something
                easy, but I don’t know where to put it on the list. Okay. Well,
                whether we have 4 or 8, we’ll have at least 12.

The following day, defendants filed Motion in Limine #13, renewing their application for a total of
eight peremptory challenges, and seeking to limit Plaintiff to four peremptory challenges.



                                                  -10-
       As stated, a jury trial began on April 22, 2002. The court opened the proceedings by first
addressing the issue of peremptory challenges:

                      THE COURT: Okay. I guess the first issue is the number of
               challenges. I’ve decided that there’s no perfect answer to this
               question. I’m still not clear that the practice of – that Dr. Ura is a part
               of –

               ******************************************************

                       I’m still not clear as to whether there could be a judgment
               against Dr. Ura’s practice. By the same token, I’m not exactly clear
               as to whether the son could have a different loss of consortium in the
               estate. So I’m sure we’ll get to those questions later at trial.

                      But I’m going to give everybody eight, and that’s what we’ll
               do on the challenges. Okay? I don’t think there is a –

Defendants entered no oral objection to the court’s ruling. It is further undisputed that Plaintiff’s
counsel exercised eight peremptory challenges during the course of jury selection.

        T.C.A. § 22-3-105 (1994) establishes the number of peremptory challenges allowed per party
in a civil trial. The statute provides, in pertinent part:

               22-3-105. Peremptory challenges – Effect of consolidation of
               cases. – (a) Either party to a civil action may challenge four (4) jurors
               without assigning any cause.

               (b) In the event there is more than one (1) party plaintiff or more than
               one (1) party defendant in a civil action, four (4) additional challenges
               shall be allowed to such side or sides of the case; and the trial court
               shall in its discretion divide the aggregate number of challenges
               between the parties on the same side which shall not exceed eight (8)
               challenges to the side, regardless of the number of parties. Even
               when two (2) or more cases are consolidated for trial purposes, the
               total challenges shall be eight (8), as herein provided.

Defendants contend that the trial court erred in allowing plaintiff eight peremptory challenges, as
T.C.A. § 22-3-105 limits a single plaintiff party in a civil action to four peremptory challenges.
According to defendants, Husband’s estate is the sole plaintiff in this matter, and is therefore only
entitled to four challenges pursuant to the statute. Moreover, defendants maintain that the trial
court’s decision to allow Plaintiff to exercise five challenges resulted in prejudice to the judicial
process, and thereby constitutes reversible error.


                                                  -11-
        When interpreting a statute, the role of the Court is to “ascertain and give effect to the
legislative intent.” Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn. 1996). In the absence of
ambiguity, legislative intent is derived from the face of a statute, and the Court may not depart from
the “natural and ordinary” meaning of the statute’s language. Davis v. Reagan, 951 S.W.2d 766, 768
(Tenn. 1997); Westland West Cmty. Assoc. v. Knox County, 948 S.W.2d 281, 283 (Tenn. 1997).

       Applying the above-cited principles of statutory construction, we find that T.C.A. § 22-3-
105(a) plainly limits a single party plaintiff or defendant in a civil action to four peremptory
challenges. The statute is free of ambiguity, and we are thus unwilling to depart from the “natural
and ordinary” meaning of the statute’s language. Cf. Tuggle v. Allright Parking Sys., Inc., 922
S.W.2d 105, 107 (Tenn. 1996) (Holding of Court that plain language of T.C.A. § 22-3-105(b) allows
for four additional peremptory challenges where there is more than one party plaintiff or party
defendant).

        Plaintiff’s contends that this action involves three separate consortium claimants: Plaintiff,
and her two sons, both minors at the time of their father’s death. Based on this assertion, Plaintiff
argues that they [she and her two sons] were entitled to use eight peremptory challenges pursuant
to T.C.A. § 22-3-105(b).


         In Jordan v. Three Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999), our Supreme Court held
that a court may consider spousal and parental consortium damages in wrongful death actions “when
calculating the pecuniary value of a deceased’s life,” but stressed that “[t]his holding does not create
a new cause of action but merely refines the term “pecuniary value.”” Id. at 601. Three years later,
in Kline v. Eyrich, 69 S.W.3d 197 (Tenn. 2002), the Court again explained the status of a wrongful
death action:

                         The parties do not dispute that the statutes permitting an
                action for the wrongful death of another create “no right of action
                exist[ing] independently of that which the deceased would have had,
                had [he or she] survived.” See Rogers v. Donelson-Hermitage
                Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn. Ct. App.
                1990); Memphis St. Ry. Co. v. Cooper, 203 Tenn. 425, 431; 313
                S.W.2d 444, 447 (1958). Although the living beneficiaries of the
                action may seek a limited recovery for their own losses in addition to
                those of the decedent, see Hill v. City of Germantown, 31 S.W.3d
                234, 239 (Tenn. 2000); Jordan v. Baptist Three Rivers Hosp., 984
                S.W.2d 593, 598 (Tenn. 1999), the right of action itself remains one
                that is “single, entire[,] and indivisible.” See Wheeler v. Burley, No.
                01A01-9701-CV-00006, 1997 WL 528801 (Tenn. Ct. App. filed at
                Nashville, Aug. 27, 1997), perm. to appeal denied, Apr. 13, 1998.
                In point of fact, therefore, “[t]here can be but one cause of action for



                                                 -12-
                the wrongful death of another.” Matthews v. Mitchell, 705 S.W.2d
                657, 660 (Tenn. Ct. App. 1985).

Id. at 206-07. Accordingly, we find that the sons’ loss of consortium claims do not constitute new
and separate causes of action. Plaintiff, as Administratrix, is the sole party plaintiff and, as such, is
entitled to only four peremptory challenges.

         Having determined that the trial court erred in granting Plaintiff eight peremptory challenges,
and thereafter permitting Plaintiff to exercise five such challenges, we must now examine whether
the trial court’s ruling constitutes reversible error requiring remand for a new trial. T.R.A.P. 36(b)
provides:
                 (b) Effect of Error. A final judgment from which relief is available
                 and otherwise appropriate shall not be set aside unless, considering
                 the whole record, error involving a substantial right more probably
                 than not affected the judgment or would result in prejudice to the
                 judicial process. [emphasis supplied].

In Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105 (Tenn. 1996), our Supreme Court, faced
with noncompliance with T.C.A. § 22-3-105, said:

                Having determined that the trial court erred, we must next consider
                whether the error requires remand for a new trial. We have
                previously stated, in the criminal context, that “[t]he Legislature, in
                its wisdom, certainly has the right and power to direct the judicial
                process.” State v. Cook, 816 S.W.2d 322, 327 (Tenn. 1991). We
                also have emphasized that, “[r]ules prescribing jury selection
                procedures are intended to protect the integrity of the jury system by
                providing a uniform and ordered method that ensures the accused a
                fair and impartial jury chosen from a fair cross-section of the
                community.” State v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993).
                Although the stakes are different in civil cases, the power of the
                Legislature to direct the judicial process is unchanged, and the
                purpose of the procedural rules is the same – to insure uniformity,
                impartiality, and fairness in jury selection. While it is difficult for an
                individual litigant to prove that a deviation from such procedural
                rules “more probably than not” affects the judgment in a particular
                case, it is clear that compliance with such rules protect the integrity
                of the jury system and safeguard the administration of justice. Id.
                Therefore, such deviations from prescribed procedural rules have
                been held to constitute prejudice to the judicial process under Tenn.
                R. App. P. 36(b).




                                                  -13-
                        In this case, [plaintiff] was denied the use of his statutorily
                mandated number of peremptory challenges. In our view, denial of
                that right, which was designed to safeguard the administration of
                justice, constitutes prejudice to the judicial process and requires a
                reversal in this case under Tenn. R. App. P. 36(b). As a result, we
                affirm the Court of Appeals’ decision that a new trial must be
                granted.

Id. at 108 (citations omitted) (emphasis added).

        While we recognize that Plaintiff’s issue on appeal in Tuggle was premised upon the trial
court’s denial of entitlement to statutorily mandated peremptory challenges, we find the Supreme
Court’s ruling no less persuasive or applicable in the instant case. In Tuggle, the court interpreted
the plain and mandatory language set forth in T.C.A. § 22-3-105(b) to require a grant of four
additional challenges in circumstances involving more than one party plaintiff or defendant. Id. at
107. Although subsection (a) of this statute does not utilize the same mandatory language (“shall
be allowed”) as (b), we reiterate that the plain language of subsection (a) limits the number of
permissible peremptory challenges for a single party plaintiff or defendant to four. The trial court’s
failure to comply with the procedural guidelines set forth in subsection (a), when applying the
reasoning utilized by the Court in Tuggle, “constitutes prejudice to the judicial process” and
therefore requires a reversal in this case under T.R.A.P. 36(b).

         We briefly address Plaintiff’s final assertion that defendants waived this allegation of error
in failing to enter an oral or written objection to the court’s ruling at trial. Defendants contend that
their filing of Motion in Limine #13 on April 19, 2002, prior to commencement of trial, sufficiently
apprised the court of defendants objection to allowing plaintiff more than four peremptory
challenges. Defendants aver that “[t]here was no need for the Defendants to take exception to the
ruling of the trial court,” nor was action further required to “preserve this issue on appeal.”

        T.R.C.P. 46 states that “[f]ormal exceptions to rulings or orders of the court are unnecessary.”
This Court applied Rule 46 in the case of Smith v. Williams, 575 S.W.2d 503 (Tenn. Ct. App.
1978). In Williams, the parties entered an agreed order waiving a jury trial and agreeing that the
lawsuit would be tried before the trial court without a jury. Id. at 504. The trial judge refused to sign
the order and instead impaneled a jury to hear the issues. Id. On appeal, defendant raised as one of
his issues and assignments of error the correctness of the trial court’s decision to impanel a jury. In
examining the issue, this Court noted:

                         The record does not reveal an objection or exception by the
                defendants to the ruling of the trial judge that the issues would be
                submitted to a jury. We hold, however, that under Rule 46,
                Tennessee Rules of Civil Procedure, an objection at that point was
                not necessary. At the time the motion was tendered and the action of
                the trial judge was sought, both parties made known to the judge the


                                                  -14-
                   action desired on the motion, namely, to waive the jury. The
                   defendants made this ruling by the trial judge the basis of Ground
                   VIII of their Motion for New Trial and Assignment of Error No. 1
                   before this Court. We, therefore, hold that the claimed error is
                   properly before this Court for review.

Id. at 504.

We find Plaintiff’s assertion without merit. The judgment of the trial court is reversed and the case
is remanded for a new trial.

         Since this case will be remanded for trial, we will discuss the pertinent remaining issues.


        Upon our review of the issues and relevant case law in this matter, we find that defendants’
second and fourth issues can be considered simultaneously. 5 Defendants’ second issue raises the
question of whether the “trial court erred in denying Defendants’ pre-trial motion in limine #10
relating to the exclusion of learned treatise materials resulting in the improper admission and use of
hearsay treatises and other “medical literature” by Plaintiff throughout the trial.” Defendants’ fourth
issue asks this Court to review “[w]hether the court erred in allowing Dr. Witt to introduce the
substance of unidentified “medical literature” and/or treatise materials into evidence in violation of
the rule excluding hearsay.”

       Defendants’ Motion in Limine #10 sought to exclude the introduction of learned treatise
materials as substantive evidence, stating specifically:

                           Properly authenticated reliable authority may be used to
                   impeach an expert’s credibility. It may not be admitted as substantive
                   evidence. Tennessee Rule of Evidence 618. An expert may not,
                   however, read from the medical literature to establish as substantive
                   evidence the matters contained in the literature, nor may the expert
                   read the literature, and then testify to what the literature states. Cary
                   v. Aerosmith, 777 S.W.2d 8, 818 (Tenn. Ct. App. 1989).

                           The defendant hereby moves this Honorable Court in limine
                   to prevent improper use of medical literature beyond impeachment of
                   a witness’ credibility.

The parties have not pointed out, nor has the Court found in the record, an order of the court ruling
on this motion. Therefore, the issue pertaining to this motion in limine will not be considered.


         5
           Point of fact, we note that defendants’ brief does not explicitly or solely examine the issue of whether the court
erred in denying defendants’ Motion in Limine #10, but rather appears to address both questions as part of a single issue.

                                                           -15-
        During the course of trial, Plaintiff’s expert, Dr. Witt, was recalled to rebut the testimony of
defendant’s expert, Dr. Eichhorn, with regard to testimony offered by defendants’ expert on the
carotid artery occlusion theory. Defendants specifically charge as error the trial court’s decision to
allow Dr. Witt to state that several of his opinions were “supported in the medical literature.” We
quote at length from Dr. Witt’s testimony.

                       Q. Were any of the anesthetic medications administered to
                Larry Hunter detrimental to autoregulation?

                         A. Well, certainly the Desflurane modifies autoregulation,
                mostly at the upper levels, as I mentioned. But the significance of it
                is that it really takes the issue of autoregulation to a point where it’s
                really not a very significant issue in this – in this case.

                        Q. Why?

                        A. Because at the concentrations used, Desflurane eliminates
                virtually all of the autoregulatory response.

                        Q. And is that opinion supported in the medical literature?

                        A. Yes.

                        Q. Do you have literature to support that here with you today?

                        A. Yes.

                        Q. And, in substance, what does it say?

                       MR. WARLICK: Objection, Your Honor. We’re back to Rule
                618 and he’s not even crossing the witness.

        The court instructed the lawyers to approach and a bench conference ensued. Defense
counsel objected to Dr. Witt testifying about or directly stating the substance of the medical literature
relied upon for his opinion. Plaintiff’s counsel asserted that he was relying upon Tenn. R. Evid. 703
for admission of the expert’s opinion and statements. The court concluded that it would allow
Plaintiff’s counsel to complete direct examination and would permit the witness to “state how [the
literature] support[s] his theory.” When questioning resumed, counsel inquired:

                       Q. (By Mr. Smith) Dr. Witt, is the literature that you
                referenced on this issue, that you have here today, consistent with the
                testimony you’ve given on this issue?



                                                  -16-
       A. Yes.

         Q. Now, I want to ask you about something else that Dr. Ura
testified about, and that was that hyperventilation and some of these
anesthetic medications that he gave, will lower the intracranial
pressure. I want you to assume that he testified to that.

       Do you agree or disagree with that?

       A. Disagree with that.

       Q. Why?

        A. Hyperventilation will lower intracranial pressure that is
already pathologically elevated. It will not lower a baseline
intracranial pressure, except insofar as it produces vasoconstriction
of the blood vessels in the brain. And it’s possible to actually
produce ischemia in the brain – inadequate blood flow to the brain –
by hyperventilation alone, as well as several other deleterious effects.

        Q. Do you have literature here with you today that supports
that opinion?

        A. Yes.

******************************************************

       Q. I want you to assume that Dr. Eichhorn characterized your
testimony on the range of the central venous pressure of between 10
and 18 as ridiculous.

        Do you agree or disagree with that comment?

        A. I disagree.

        Q. Why?

        A. There is abundant evidence that positive pressure
ventilation impedes return of venous blood to the chest. That is, the
major impact of positive pressure ventilation is to increase central
venous pressure.

       Now, whether – I didn’t hear his testimony. Where there may
have been a misunderstanding is that what I said – and I think I was

                                 -17-
               clear – is that the CVP will not affect intracranial pressure unless or
               until it goes above the level of intracranial pressure.

                        So, in other words, on a ventilator, I calculated that the CVP
               was probably somewhere between 10 and 18. And I believe I
               testified to that earlier. I have no way of knowing what it was,
               because it wasn’t measured.

                      But what my point was, that the intracranial pressure could be
               increased by placing this patient on a ventilator, it would not be
               decreased, and in no case, would it be less than 10. I chose to use the
               more conservative number of 10 in my calculations of cerebral
               perfusion pressure.

                        Q. And is the statement that you just made supported in the
               literature?

                      A. Yes.

                      Q. Do you have that literature with you here today?

                      A. Yes.

               ******************************************************

                      Q. At what level of administration of Desflurane does
               autoregulation get perked?

                        A. You start seeing an impact – at least supported in the
               literature, it’s probably a continuum – but at least supported in the
               literature, somewhere around 3 percent, and by the time you get up to
               9 percent, it’s completely eliminated.

                      Q. And how much was administered for most of this case?

                      A. The range was from 3 to 8.

                        Q. And is that statement that you just made supported in the
               literature that you have here with you today?

                      A. Yes.

Defendants did not enter an oral objection to Dr. Witt’s above-cited testimony during the course of
direct examination; however, at the conclusion of the proof in this trial, defense counsel made a

                                                -18-
motion to strike “any testimony that [Dr. Witt] says was supported by the literature.” Said motion
was denied by the court.

         The trial court is afforded wide discretion in the admission or rejection of evidence, and the
trial court’s action will be reversed on appeal only when there is a showing of an abuse of discretion.
See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992); Davis v. Hall, 920 S.W.2d
213, 217 (Tenn. Ct. App. 1995).

       Tenn. R. Evid. 618 states:

               RULE 618. IMPEACHMENT OF EXPERT BY LEARNED
               TREATISES

                       To the extent called to the attention of an expert witness upon
               cross-examination or relied upon by the witness in direct
               examination, statements contained in published treatises, periodicals,
               or pamphlets on a subject of history, medicine, or other science or art,
               established as a reliable authority by the testimony or admission of
               the witness, by other expert testimony or by judicial notice, may be
               used to impeach the expert witness’s credibility but may not be
               received as substantive evidence.

        It appears to the Court that the questions and answers complained about are somewhat
analogous to Dr. Witt testifying that as a basis for his opinion he relied, among other things, on
medical literature, such as published articles and treatises. However, as noted above, no objection
was made to the questions propounded to Dr. Witt and it was only after renewing motions for
directed verdict in the case that defendant moved to strike this part of Dr. Witt’s testimony. Tenn.
R. Evid. 103 states in pertinent part:

               (a) Effect of Erroneous Ruling. - Error may not be predicated upon a
               ruling which admits or excludes evidence unless a substantial right of
               the party is affected, and
               (1) Objection. - In case the ruling is one admitting evidence, a timely
               objection or motion to strike appears of record, stating the specific
               ground of objection if the specific ground was not apparent from the
               context; . . .

       We do not believe that making a motion, after renewing motions for directed verdict, is a
timely motion to strike the alleged erroneous evidence.

         Defendants’ issues three and ten deal with the qualifications of plaintiff’s witness, Dr.
William O. Witt, as an expert witness. Because this question will necessarily be determined in
the trial on remand, we pretermit defendants’ issues three and ten.


                                                 -19-
       Defendants’ next three issues stem from plaintiff-counsel’s cross-examination of defense
expert Dr. Eichhorn.

        Defendants’ first related issue asks this Court to consider whether the trial court erred in
permitting Plaintiff’s counsel “to conduct a cross-examination of [Dr. Eichhorn] with statements
contained in published treatises or periodicals which were never identified or established as
reliable authority by any witness contrary to [Tenn. R. Evid. 618].”

        “The propriety, scope, manner and control of the cross-examination of witnesses” rests
within the discretion of the trial court. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim.
App. 1995) (citing Coffee v. State, 188 Tenn. 1, 4, 216 S.W.2d 702, 703 (1948); Davis v. State,
186 Tenn. 545, 212 S.W.2d 374, 375 (1948)). Exercise of this discretion will generally not be
disturbed absent a finding of abuse. State v. Bragen, 920 S.W.2d 227, 244 (Tenn. Crim. App.
1995) (citing State v. Lewis, 803 S.W.2d 260, 262 (Tenn. Crim. App. 1990)).

        Tenn. R. Evid. 618 indicates that a published treatise or medical journal/periodical must
be “established as a reliable authority by the testimony or admission of the witness, by other
expert testimony, or by judicial notice,” where said treatise or journal/periodical is relied upon to
impeach an expert witness’s credibility during cross examination. Stated more completely:

               “[T]he propriety, scope, manner and control of the
               cross-examination of witnesses ... rests within the sound discretion
               of the trial court.” State v. Korsakov, 34 S.W.3d 534, 545 (Tenn.
               Crim. App. 2000); see also State v. Barnard, 899 S.W.2d 617, 624
               (Tenn. Crim. App. 1994). Once again, however, the trial court’s
               exercise of discretion is circumscribed by the Tennessee Rules of
               Evidence. As relevant to the current discussion, Tenn. R. Evid.
               618 permits the use of “learned treatises,” i.e., “statements
               contained in published treatises, periodicals, or pamphlets on a
               subject of history, medicine, or other science or art,” to impeach an
               expert witness’ credibility provided the following prerequisites are
               satisfied: (1) The treatise was called to the attention of the expert
               witness upon cross-examination or relied upon by the witness in
               direct examination; and (2) The treatise has been established as a
               reliable authority by the testimony or admission of the witness, by
               other expert testimony, or by judicial notice. We note that the
               adoption of this rule in 1990 was merely a restatement of current
               Tennessee law, which provided:

                       “An expert witness may be cross-examined by the
                       use of standard authorities on the subject.... “When
                       a witness is testifying as an expert, it is competent
                       to test his knowledge and accuracy upon
                       cross-examination by reading to him, or having him

                                                -20-
                       read, extracts from standard authorities upon the
                       subject-matter involved, and then asking him
                       whether he agreed or disagreed with the authorities,
                       and comparing his opinion with those of the
                       writer.””

State v. Coulter, 67 S.W.3d 3, 64 (Tenn. Crim. App. 2001) (citing Nix v. State, 530 S.W.2d 524,
531 (Tenn. Crim. App. 1975) (quoting McCay v. Mitchell, 62 Tenn. App. 424, 463 S.W.2d 710,
720 (1970))) (citations omitted).

       Defendants take issue with several questions asked by Plaintiff’s counsel of Dr. Eichhorn
on cross-examination, contending that these questions were based upon or taken directly from
“published treatises or periodicals which were never identified or established as reliable authority
by any witness contrary to [Tenn. R. Evid. 618].” We quote from the trial transcripts the specific
questions challenged, and briefly reference the pertinent procedural facts:

                      Q. Let me see if you agree with this concept: Hypotension
               from any cause may produce cerebral or spinal cord ischemia.
               Hypotension may be associated with positioning and is usually
               caused by venous pooling; that is, the sitting position, or decreased
               venous return, as in a prone position with increased intra-
               abdominal pressure.

                       And that second part we did not have in that case, did we?

                       A. Correct.

                       Q. When the head and spinal cord are elevated above the
               level of the heart –

       Defense counsel interjected and requested that counsel be permitted to approach the
bench. During the ensuing bench conference, defense counsel remarked that Plaintiff’s counsel’s
questioning “sounds like cross-examination from a reliable authority that has not been identified
yet.” Defendants’ co-counsel further stated that Plaintiff’s counsel was reading as if from a
book, therefore requiring counsel to identify the quoted or referenced authority. We note that
defense counsel did not explicitly state an objection to counsel’s question. With the court’s
permission, Plaintiff’s counsel proceeded with the following line of questioning:

                       Q. (By Mr. Smith) Let me start over, Dr. Eichhorn.

                       Hypotension from any cause may produce cerebral or spinal
               cord ischemia....

               ******************************************************

                                               -21-
                      Q. Hypotension may be associated with positioning and is
               usually caused by venous pooling, e.g., in the sitting position.

                       When the head and spinal cord are elevated above the level
               of the heart, blood pressure should be referenced to head level to
               ensure that monitored pressure reflects perfusion pressure.

                       Do you agree or disagree with that?

               ******************************************************

                     Q. Are you familiar with the Manual of Complications in
               Anesthesia?

                       A. There are two or three of them, which one?

                       Q. How about Michael Mahla?

                       A. Say that again.

                       Q. Mahla. M-A-H-L-A?

                       A. I don’t believe I have that book.

                       Q. You’ve got those in your library, don’t you?

                       A. It’s possible, I don’t know.

                     Q. Do you consider those to be reliable texts,
               Complications in Anesthesia?

                       A. I understand the nature of your question. I don’t choose
               to characterize any textbook or publication as authoritative or
               reliable, because, frankly, they’re just words.

               ******************************************************

                       Q. Fair enough. Let me see if you would agree or disagree
               with this.

        Defense counsel asked for a bench conference and “renewed” his previous objection to
the questions as based upon a learned treatise that had not been established as a reliable authority.
The trial court permitted Plaintiff’s counsel to proceed despite defendants’ objection, and counsel
resumed questioning:

                                                -22-
       Q. (By Mr. Smith) Let me see if you agree with this.

        For patients in a head-elevated position, the appropriate
zero reference for blood pressure is the brain at the external
auditory meatus, not the heart. Failure to use the brain as the zero
reference, after sitting a patient up, will lead to an overestimation
of cerebral perfusion pressure.

       Do you agree or disagree with that?

******************************************************

       Q. Well, I’m going to stick right now with the word
“inadvertent,” but I certainly have no problem with you using
“accidental.” In fact, I’ll use it, okay?

        Accidental hypotension is quite probably the most frequent
complication of the sitting position. Its presence requires rapid
detection and prompt treatment if significant cerebral hypoxia is to
be avoided. Agree or disagree?

******************************************************

        Q. And you would agree with me that you have read in the
literature many, many times that the warnings are out there that,
indeed, would say, just because you get below the level of
autoregulation doesn’t mean that you’re going to lose blood flow to
the brain and have hypoxia, because some people will be able to
tolerate it, but others won’t, and you need to get the pressure back
up.

       That’s just all over the medical literature, isn’t it, Doctor?

******************************************************

       Q. Let[’s] see if you agree with this statement.

        MR. REYNOLDS DAVIES: Your Honor, I renew my
objection.

       THE COURT: Okay.

       MR. SMITH: May I proceed, Your Honor?


                                 -23-
                           THE COURT: Yes.

                          Q. (By Mr. Smith) Although difficult to determine
                  precisely, it has previously been estimated that at least 2,000
                  preventable instances of anesthesia-related death or permanent
                  brain damage occur in the United States each year. Agree or
                  disagree?

         Other than the two objections cited, no additional objections were entered by defense
counsel into the record. However, we note that where counsel interposes timely objections to a
line of testimony, counsel is not required to repeat his objection in every instance where such
testimony was elicited from the witness. Gulf Refining Co. v. Frazier, 19 Tenn. App. 76, 83
S.W.2d 285, 299 (Tenn. Ct. App. 1934). “One ruling on one question is enough, and a repetition
of similar exceptions is not to be required, if, indeed, to be tolerated.” Id. (quoting Louisville &
N. Railroad Co. v. Gower, 85 Tenn. 465, 471, 3 S. W. 824, 826; McCormick v. State, 135 Tenn.
218, 230, 186 S. W. 95, L. R. A. 1916F, 382).

        From our reading of the trial transcripts, it is apparent that counsel’s cross-examination
was framed by medical literature; literature that counsel failed to identify or establish as reliable
authority. In McCay v. Mitchell, 463 S.W.2d 710 (Tenn. Ct. App. 1970), this Court stated:

                          It is established in Tennessee [that] an expert witness may
                  be cross-examined by the use of standard authorities on the subject.
                  The Court in Sale v. Eichberg (1900) 105 Tenn. 333, 59
                  S.W.1020, cited Byers v. Nashville, C. & St. L. Railroad Co., 94
                  Tenn. 345, 29 S.W. 128, which states: “When a witness is
                  testifying as an expert, it is competent to test his knowledge and
                  accuracy upon cross-examination by reading to him, or having him
                  read, extracts from standard authorities upon the subject-matter
                  involved, and then asking him whether he agreed or disagreed with
                  the authorities, and comparing his opinion with those of the
                  writer.”

Id. at 720.

       In this case, it appears as though Plaintiff’s counsel was permitted to circumvent the
requirement of establishing and identifying the literary authority upon which he was relying to
frame his cross-examination questions6 by simply presenting his inquiries as general questions


         6
           During a bench conference, the trial court appeared to acknowledge that counsel was required to identify a
relied upon authoritative text, stating:

                  THE CO UR T: Y ou just can’t say, “It’s an authoritative text, let me show you the
                                                                                                       (continued...)

                                                        -24-
seeking agreement or disagreement with a noted theory or statement of facts. The format utilized
by counsel in questioning Dr. Eichhorn closely mirrors the generally accepted method of first
reading excerpts from a standard authority to the expert, and then asking whether he agrees or
disagrees with the stated authority. See id. However, in questioning an expert witness with
regard to statements or excerpts from a standard authority, counsel must first establish the
authoritative character of the book or treatise offered for the purpose of cross-examination. See
id. In the instant case, counsel failed to identify the authority or authorities upon which he was
basing his questions, and therefore failed to establish the authoritative nature of these texts. As
such, the trial court erred in permitting counsel to question Dr. Eichhorn with regard to theories
or statements plucked from or based upon unidentified treatises or books.

        Moreover, from our review of the record and trial transcripts in this case, we find no
evidence to indicate that Michael Mahla’s Manual of Complications in Anesthesia was ever
established as a reliable authority. We note that Dr. Eichhorn refused to acknowledge this text as
standard authority, and therefore the burden was on Plaintiff to introduce proof of the
authoritative nature of the text by independent evidence:

                   [W]here the expert being cross-examined does not or will not
                   acknowledge the medical authority presented, the authoritative
                   character of the book or treatise offered for the purpose of cross-
                   examination must be proven by independent evidence. Stallings v.
                   State (1953) 232 Ind. 646, 114 N.E.2d 771; Smarr v. State (1953)
                   260 Ala. 30, 68 So.2d 6. Demanding proof as to the authoritative
                   nature of the medical work offered has the wholesome effect of not
                   permitting this issue to be determined by mere statement of
                   counsel. Laird v. Boston & M.R. Co. (1922) 80 N.H. 377, 117 A.
                   591.

McCay, 62 Tenn. App. 424, 463 S.W.2d at 720.

        While counsel did not explicitly ask the witness to agree or disagree with a statement
from this particular treatise, it is evident that the questions immediately following counsel’s
inquiry into the expert’s familiarity with this text were premised upon Mr. Mahla’s work. Under
the circumstances of this particular case, we find no reason for counsel to question Dr. Eichhorn
as to his familiarity with this text other than to determine whether the expert agreed or disagreed
with specific statements or excerpts from the text. Therefore, any question premised upon Mr.
Mahla’s Manual of Complications in Anesthesia was improper, where said treatise or text was
not established as reliable authority.



       6
           (...continued)
                    text.” As far as we’re concerned, this is anesthesia by [Wife’s counsel].




                                                          -25-
        In conclusion, we find that the trial court erred in permitting Plaintiff’s counsel to ask Dr.
Eichhorn to agree or disagree with statements or excerpts from unidentified authorities. Further,
we find that the trial court erred in permitting counsel to ask questions premised upon Mr.
Mahla’s Manual of Complications in Anesthesia, where plaintiff failed to establish this text as
reliable authority.

        Defendants next present for review the issue of whether the trial court erred in allowing
Plaintiff’s counsel “to conduct a cross-examination of Dr. Eichhorn by challenging the witness
on various occasions to “cite me to one piece of medical literature” supporting his testimony
contrary to the provisions of [Tenn. R. Evid. 618 and Tenn. R. Evid. 705.]”

        In their brief to this Court, defendants identify three specific instances in which Plaintiff’s
counsel asked Dr. Eichhorn to “cite me to one piece of medical literature” supporting the expert’s
testimony. Counsel is entitled to cross examine to determine the basis of an expert’s opinion.
Although the questions as posed take an adversarial attitude, as cross examination generally does,
counsel’s questions were seeking to elicit a basis for the opinion. Nevertheless, from our reading
of the trial transcript, we find that defense counsel did not enter a timely objection after any of
the allegedly improper questions. A party who invites or waives error, or who fails to take
reasonable steps to cure an error, is not entitled to relief on appeal. See Tenn. R. App. P. 36(a),
cmt. a.

       The final issue related to Plaintiff’s counsel’s cross-examination of Dr. Eichhorn asks this
Court to consider the following question, as stated in defendants’ brief:

               Whether the trial court abused its discretion in denying
               Defendants’ motion for mistrial after Plaintiff’s counsel conducted
               an improper cross-examination of Dr. Eichhorn concerning a
               specific instance of prior conduct; namely, a statement allegedly
               attributed to the witness that he compared his role as a defense
               expert to that of a “prostitute,” when there was no reasonable
               factual basis for such questioning and where Plaintiff failed to
               request a jury-out hearing before questioning the witness as
               required by [Tenn. R. Evid.] 608(b)(1).”

During his cross-examination of Dr. Eichhorn, Plaintiff’s counsel questioned the witness
regarding his role as an expert testifying for the defense in a medical malpractice action. We
quote at length from the trial transcript:

               Q. Well, we’re going to – as I said, we’re going to discuss that a
               little bit more later.

                      But I want to talk, for a moment, about your roles – what
               you perceived your role to be in a case like this where you’re


                                                 -26-
coming into a court to offer expert opinions. First question about
that.

        Do you perceive it as your role in participating in a case for
the defense, with issues like this, that it is incumbent upon you to
create a theory of defense?

A. No.

Q. That would be inappropriate, wouldn’t it?

A. And potentially not possible.

Q. Do you consider it your role to be an advocate for the party for
whom you’re testifying?

A. No.

Q. That would be inappropriate, wouldn’t it?

A. Correct.

******************************************************

Q. Now, let me take it like this, and make it a little bit more
specific. You’ve testified in a case before where you were the
expert witness for an anesthesiologist in a case where the blood
pressure got too low and the patient’s brain died, haven’t you?

A. I don’t recall specifically, but it’s certainly possible.

Q. Well, we’re going to – let me see if I can help you.

        Have you ever before, Dr. Eichhorn, in serving in this type
of role, when serving as an expert witness for an anesthesiologist,
sued because a patient came out of a surgery procedure brain dead,
because of low blood pressure, said to the defense lawyer who
hired you, “There are big problems with what your anesthesiologist
did, but I will help you create a theory to defend this case, and
short of hiring an outright prostitute, I’m the best you’re going to
find?” Have you ever said that?

MR. REYNOLDS DAVIES: Your Honor, may we approach the
bench.

                                  -27-
       Before the court had an opportunity to grant defense counsel’s request, Dr. Eichhorn
denied that he had ever made this statement. During the ensuing bench conference, defense
counsel objected to the alleged statement as hearsay within hearsay. The trial court ordered the
jury out, and asked counsel to provide a background for the alleged statement. After Plaintiff’s
counsel provided the necessary background, defense counsel restated his objection:

                      MR. REYNOLDS DAVIES: What we have is a letter that
               was written by this lawyer who was indicted where – wherein he
               quotes a quotation that’s attributable to Dr. Eichhorn, which Dr.
               Eichhorn just denies.

                       THE COURT: Okay. Take me through this again. Because
               I asked him if whatever Dr. Eichhorn said was in a piece of paper.

                      MR. REYNOLDS DAVIES: No. Dr. Eichhorn never said
               anything in a piece of paper. The lawyer – a lawyer – said
               something in a letter to his insurance carrier –

                       THE COURT: I see.

                      MR. REYNOLDS DAVIES: – attributing a quote to Dr.
               Eichhorn that Dr. Eichhorn denies he ever made.

       In response to defendants’ objection, Plaintiff’s counsel explained that the intended
purpose of the question was to “impeach this witness on his bias” through use of a prior
inconsistent statement pursuant to Tenn. R. Evid. 613. Defense counsel thereafter raised
additional objections under Tenn. R. Evid. 403 and Tenn. R. Evid. 609. Defense counsel
additionally asked that a curative instruction be given to the jury or, if no such instruction was to
be given, moved for a mistrial.

        After consideration of the parties’ arguments on this issue, the trial court determined that
Tenn. R. Evid. 616 was not applicable, and further concluded that the alleged statement was not a
prior inconsistent statement of the witness, but rather a “lawyer’s characterization of what Dr.
Eichhorn said.” The court reasoned that the letter provided a reasonable factual basis for
counsel’s inquiry, but determined that the prejudice of allowing counsel to question Dr. Eichhorn
as to this statement substantially outweighed its probative value. On this basis, the court decided
to “leave out” the statement. Defense counsel elected to forego a curative jury instruction. The
court did not rule on defendants’ motion for mistrial.

       A hearing on the parties’ post-trial motions was held on August 13, 2002. During this
hearing, defendants addressed the prejudicial effect of counsel’s cross-examination question as
grounds for their motion for mistrial. We quote at length the discourse between defense counsel
and the court on this issue:


                                                -28-
        MR. REYNOLDS DAVIES: I think, since that was our
only expert witness, coupled with the fact that Dr. Hays could not
be available, at no fault of the defendants, to ask Dr. Eichhorn that
question, knowing that there was no way to prove it or nothing to
back it up, without asking for a jury-out hearing, was wrong.

        You did suggest that you would give the jury an instruction
to ignore it. However, you didn’t exactly – you stated you didn’t
exactly know what you were going to say.

        Because it happened before lunch and we took a long lunch
break. We moved for a curative instruction, or in the alternative
for a mistrial. We felt like the curative instruction really couldn’t
cure that error, and that we accepted – we went on with the trial
without getting the instruction.

       But we did move for a mistrial.

       THE COURT: Uh-huh. You certainly did.

       MR. REYNOLDS DAVIES: And I don’t think we were
required to take a curative instruction, because I think under those
circumstances, asking a doctor if he’s ever said that, “Short of an
outright prostitute, I’m the best you’re ever going to get,” I don’t
know how you could have unrung that bell. So –

        THE COURT: Well, it – I think you were right. I probably
encouraged you not to have a curative instruction, because it was –
it was so out of the line of questioning that – and we took a lunch
break after that, that it’s often been my theory about not
emphasizing, it doesn’t bring it back to the jury’s mind about,
“What in the world is that about,” okay? Because the subject
matter of that letter would have been much – would have been
potentially much more familiar to us in the legal world than it
would have been to the jurors.

       But you can’t – you couldn’t really unring the bell, that’s
true. But we did not – and we did not look at any specific wording,
because I usually leave that up to the folks, if, you know,
somebody talks about insurance, if, you know, they just wanted the
curative instruction from the jury instructions, or if they want
something else, or if they want nothing.

       I don’t think that dilutes your motion for a mistrial.

                                -29-
                       Okay. Let’s go to the next issue.

                       MR. REYNOLDS DAVIES: Did – have you – have you
               overruled that ground, Your Honor? I’m a little confused as to the
               ruling. The ruling about the – I understand about Dr. –

                        THE COURT: I don’t believe that there – I’m not even
               ruling on whether the question should have been asked. I never
               had to make a ruling on that. I went right to the hearing part. And
               it’s not clear in the rule whether the hearing has to be done.
               Obviously, I was very – I was not happy about the question. I think
               I made that very clear to the plaintiffs.

                      MR. REYNOLDS DAVIES: Well, I just – I mean, just for
               the purposes of the record –

                      THE COURT: I still say that no mistrial should be granted.
               So, yes, I overrule it.

        Plaintiff contends that counsel’s question was proper pursuant to Tenn. R. Evid. 613 for
the purpose of impeaching Dr. Eichhorn with a prior inconsistent statement that demonstrated
bias on behalf of the witness. We find Plaintiff’s assertion without merit, and note that there is
no evidence to indicate that Dr. Eichhorn ever made the statement attributed to him. The expert
denied making the statement, and Plaintiff’s only basis for asking the question is a letter, entered
as an exhibit at trial, written by an individual unavailable for cross-examination, alleging that Dr.
Eichhorn made such a statement. For these reasons, we find that there was no reasonable factual
basis for counsel to pursue this line of inquiry. At the very least, it appears that the prejudicial
effect of the question, when asked of Defendants’ sole expert witness in the presence of the jury,
far outweighs its probative value. In view of Dr. Eichhorn’s importance to Defendants’ case, the
error more probably than not affected the jury’s decision and is ground for reversal.

       Defendants’ next issue, as quoted from their brief, states:

               Whether the trial court abused its discretion in denying
               Defendants’ motions for mistrial or to continue the trial after
               Defendants were notified at the end of the first week of trial that a
               planned expert witness, Dr. Michael Hays, a local anesthesiologist
               in private practice in Nashville, was unavailable to testify due to
               the fact that he had been diagnosed with malignant lymphoma
               during the trial and planned to undergo immediate diagnostic tests
               and chemotherapy treatment.

       We pretermit defendants’ issue on the basis of our decision to remand this matter for a
new trial.

                                                -30-
       Defendants’ next issue asks this Court to consider the following:

               Whether the trial court erred in granting Plaintiff’s pre-trial motion
               in limine relating to Dr. Hays’ anticipated expert testimony about
               causation of injury and the carotid artery occlusion theory?

       The trial court is afforded discretion to determine the “admissibility, qualifications,
relevancy and competency of expert testimony.” McDaniel v. CSX Transp., Inc., 955 S.W.2d
257, 263 (Tenn. 1997). The trial court’s rulings in this regard will be upheld except upon a
showing of an abuse of this discretion. See id. at 263-64.

        To reiterate, Plaintiff filed a pre-trial motion in limine seeking to preclude defendants
“from offering expert testimony as to the causation or “possible” causation of the injuries or
death of Plaintiff’s decedent from occlusion of the carotid artery(ies)....” In ruling upon
Plaintiff’s motion, the court considered the deposition testimony of Dr. Hays, Dr. Eichhorn, and
Dr. Wright. With regard to Dr. Hays’s carotid artery occlusion theory testimony, the court
determined that the “overwhelming weight of his testimony indicates that he believes this theory
is only a possibility. This is not sufficient for an admissible expert opinion.” The court thereby
granted Plaintiff’s motion with respect to Dr. Hays’s carotid artery occlusion theory testimony.


         Throughout the course of his deposition testimony, Dr. Hays was questioned extensively
with regard to the issue of causation, and specifically the aforementioned carotid artery occlusion
theory. The carotid artery theory testified to by Dr. Hays is a theory of causation as an alternative
theory of causation than that presented by Plaintiff. In presenting this causation theory, Dr. Hays
testifies in terms of possibilities and assumptions, and at one point stated that that he did not
think “anybody is going to be able to know exactly what happened to Mr. Hunter.” Dr. Hays
stated that the impeding of the left and/or right carotid arteries, and/or the impeding of the
vertebrals were possible explanations for the complications experienced and concluded that a
combination of all of these factors provides a possible explanation for Mr. Hunter’s death. Dr.
Hays was testifying with regard to possible alternative causes and did not attempt to make a
definitive determination to express an opinion as to the cause of Mr. Hunter’s death. In Mitchell
v. Ensor, No. W2001-01-683-COA-R3-CV, 2002 WL 31730908 (Tenn. Ct. App. November 18,
2002), a medical malpractice action filed by a female plaintiff alleging drastic physical changes
caused by an injection of a male hormone drug, this Court was faced with a similar issue as the
case at bar. This Court determined that the trial court did not abuse its discretion in permitting a
defendant’s expert to testify as to alternate causes of the plaintiffs’s medical condition. Plaintiffs
had objected to the expert’s testimony as speculative, noting that he admitted that he “did not
have an opinion as to the actual cause of the [patient’s] condition.” Id. at *13. This Court agreed
with the trial court’s decision that the expert’s testimony was “rendered for the sake of bringing
light to other potential explanations for [the patient’s] condition, but not to prove ultimate
causation.” Id. at *14. We noted that the expert did not express an opinion concerning causation
of the plaintiff’s condition but merely addressed possible alternate causes for the condition. In

                                                -31-
support of our conclusion, we relied upon Sakler v. Anesthesiology Assocs., P.S.C., 50 S.W.3d
210 (Ky. Ct. App. 2001) where the Court said:

                     We conclude that defendants in medical malpractice actions
              may introduce expert witness testimony to rebut a plaintiff’s expert
              witness testimony couched in terms of “reasonable medical
              probability,” even though the defendant’s expert witness’s
              testimony is couched only in terms of “possibility.” In so deciding,
              we are persuaded by the reasoning of the United States Court of
              Appeals for the First Circuit in the case of Wilder v. Eberhart, 977
              F.2d 673 (1st Cir. 1992) cert. denied 508 U.S. 930-113 S.Ct. 2396,
              124 L. Ed. 2d 297 (1993).

                       In Wilder, a plaintiff patient filed suit against her defendant
              doctor and clinic for medical malpractice, alleging the doctor’s
              surgical procedure caused her to suffer an esophageal injury. At
              trial, the plaintiff’s expert witness testified that her injury was
              caused by the defendants’ medical negligence. Expert medical
              testimony on behalf of the defendants, however, was ruled
              inadmissible by the trial court because it could not be expressed in
              terms of “probability” as distinguished from “medical possibility.”
              In holding the trial court erred in excluding this testimony, the First
              Circuit reasoned as follows:

                      Proximate causation between negligence and the
                      injury complained of in a medical malpractice case
                      must be established by expert testimony. (Citation
                      omitted). On the other hand, the defendant need not
                      disprove causation. Rather, he must produce
                      credible evidence which tends to discredit or rebut
                      the plaintiff’s evidence. (Citation omitted). As the
                      New Hampshire Supreme Court recently stated in
                      Tzimas [v. Coiffures by Michael, 135 N.H. 498,
                      606 A.2d 1082, 1084 (N.H. 1992)], the plaintiff in a
                      negligence action bears the burden of producing
                      evidence “to prove that it is more likely than not
                      that [plaintiff’s] injury was “caused by the
                      defendant’s negligence.” (Citation omitted).
                      Defendant need not prove another cause, he only
                      has to convince the trier of fact that the alleged
                      negligence was not the legal cause of injury.
                      (Citation omitted). In proving such a case, a
                      defendant may produce other “possible” causes of
                      the plaintiff’s injury. These other possible causes

                                               -32-
                      need not be proved with certainty or more probably
                      than not. To fashion such a rule would unduly tie a
                      defendant’s hands in rebutting a plaintiff’s case,
                      where as here, plaintiff’s expert testifies that no
                      other cause could have caused plaintiff’s injury.
                      The burden would then shift and defendant would
                      then bear the burden of positively proving that
                      another specific cause, not the negligence
                      established by plaintiff’s expert, caused the injury.
                      Certainly, this is much more than what should be
                      required of a defendant in rebutting a plaintiff’s
                      evidence.

                              Were we to accept plaintiff’s argument that
                      once a plaintiff puts on a prima facie case, a
                      defendant cannot rebut it without proving another
                      cause, the resulting inequities would abound. For
                      example if ninety-nine out of one hundred medical
                      experts agreed that there were four equally possible
                      causes of a certain injury, A, B, C and D, and
                      plaintiff produces the one expert who conclusively
                      states that A was the certain cause of injury,
                      defendant would be precluded from presenting the
                      testimony of any of the other ninety-nine experts,
                      unless they would testify that B, C, or D was the
                      cause of the injury. Even if all of defendant’s
                      experts were prepared to testify that any of the
                      possible causes A, B, C or D, could have equally
                      caused plaintiff’s injury, so long as none would be
                      prepared to state that one particular cause, other
                      than that professed by plaintiff more probably than
                      not caused plaintiff’s injury, then defendant’s
                      experts would not be able to testify at all as to
                      causation.

              Wilder, 977 F.2d at 676-677 n.5. We agree with the First Circuit
              that expert testimony of this nature is admissible on behalf of
              defendants in medical malpractice cases in order to rebut the
              testimony of plaintiffs upon whom the burden of proof rests.

Mitchell, 2002 WL 31730908 at *16-17 (quoting Sakler, 50 S.W.3d at 213-14).

Finding the opinion in Wilder well reasoned, this Court adopted the holding expressed in Wilder
and Sakler as dispositive of the issue presented. Id. at *17.

                                              -33-
       After examining Dr. Hays’s deposition testimony, and in light of our decision in Mitchell,
we find that the trial court erred in granting Plaintiff’s pre-trial motion in limine precluding Dr.
Hays from testifying about possible alternative causes of Mr. Hunter’s death.           Dr. Hays was

testifying with regard to a possible alternate cause, rather than identifying a definitive cause for

Mr. Hunter’s death.

        Defendants next present for review several issues relating to opposing counsel’s closing
argument to the jury. In general, the control over the argument of counsel resides with the trial
court, and the trial court has broad discretion as to what shall and shall not be permitted in
argument. McCollum v. Huffstutter, No. M2002-00051-COA-R3-CV, 2002 WL 31247077, at
*9 (Tenn. Ct. App. Oct. 8, 2002). The appellate courts generally will not interfere with the
discretionary action of a trial court in refusing to grant a mistrial or a new trial for misconduct of
counsel in argument unless the argument is 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. Perkins v. Sadler, 826 S.W.2d 439, 442 (Tenn. Ct. App. 1991).


         These issues involve the repeated reference in Plaintiff’s closing argument to Dr. Witt’s
testimony being supported by the medical literature. Although three of the issues are waived for
failure to make a contemporaneous objection, see State v. Little, 854 S.W.2d 643, 651 (Tenn.
Crim. App. 1992), on retrial the Court should consider our earlier finding that it was error to
permit counsel to make references to unidentified medical literature in the examination of
witnesses. In the fourth related issue concerning argument of counsel, contemporaneous
objection was made and overruled by the trial court.

        Defendants next issue, as stated in their brief:

               Whether the court’s retrospective application of the Jordan
               decision allowing the jury to award loss of consortium damages in
               this case is unconstitutional as it violates Defendants’ rights under
               Art. I, § 20 of the Tennessee Constitution, and vested rights
               protected by the Due Process and Equal Protection Clauses of the
               14th Amendment to the Constitution of the United States.

        The cause of action in this matter arose on or about November 1, 1995. On October 28,
1998, Plaintiff filed a Motion for Leave to Amend Complaint adding, in part, loss of consortium
“claims” on her own behalf and that of her two sons. Defendants did not object to the inclusion
of the loss of consortium claims. On July 23, 2001, Plaintiff filed an Amended Complaint
seeking damages on the basis of the aforementioned claims. Trial in this matter began on April
22, 2002, and a jury verdict returned on May 2, 2002.



                                                 -34-
        In Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 600-02 (Tenn. 1999), the
Tennessee Supreme Court held, inter alia, that loss of consortium damages are recoverable by a
decedent’s family as part of the pecuniary value of the deceased’s life.7 The following year, in
Hill v. City of Germantown, 31 S.W.3d 234 (Tenn. 2000), the Court considered, inter alia, the
specific issue of “whether [Jordan] applies retroactively to this case to permit loss of consortium
damages to be awarded to the plaintiffs.” Id. at 235.

        In Hill, plaintiff-family members filed separate wrongful death actions against the City of
Germantown and a police officer for deaths resulting from a high-speed chase. Id. at 236. The
trial court, sitting without a jury, entered judgment for plaintiffs. Id. The court applied the
statutory damages cap imposed by the Tennessee Governmental Tort Liability Act (“GTLA”),
and “awarded $130,000.00 for each of the wrongful death claims, the maximum amount of
recovery permitted under the GTLA.” Id.

       Plaintiffs appealed, and the Tennessee Court of Appeals affirmed the trial court’s
decision in all respects. Id. The Supreme Court granted review, holding, in part:

                  We hold that Jordan applies retrospectively to: (1) all cases tried
                  or retried after [January 25, 1999,] the date of our decision in
                  Jordan; and (2) to all cases pending on appeal in which the issue
                  decided in Jordan was raised at an appropriate time.

Id. at 240.8

       Applying the holding in Hill, we find that the trial court did not err in allowing retroactive
application of the Jordan decision to the case at bar. Trial in this matter began on April 22,
2002. Plaintiff properly and timely amended her complaint to include a claim for loss of
consortium damages, and defendants entered no objection to said amendment. We therefore find
defendants’ issue without merit.

         Defendants next issue asks us to consider the following question:

                  Whether the court violated Defendants’ guaranty to trial by jury
                  under the Tennessee Constitution by commenting upon the
                  evidence during the jury charge that this case was “a very

         7
           The Court’s holding reversed Davidson Benedict v. Severson, 109 Tenn. 57 2, 72 S.W . 967 (Te nn. 19 02), “to
the extent that Davidson Ben edict prohibits consideration of spousal consortium losses when calculating the pecuniary
value of a deceased’s life under the wrongful death statute.” Id. at 600.

         8
            Although the court determined that the issue of loss of consortium damages was properly before it, the court
concluded that the retroactive application of Jordan to allow recovery for loss of conso rtium damages wo uld not increase
the plaintiff’s damages because both plaintiffs “received $130,000, the maximum allowable under the GTLA per injured
person.” Id. (citation o mitted).



                                                          -35-
              interesting and difficult case,” and that the jury would find
              Question #1 on the verdict form (were the Defendants at fault?) to
              be a “deceptively simple question” and one to which there was
              “obviously not a simple answer.”

       During the course of jury instructions, the trial judge made several comments to which
defendants now object and specifically challenge as improper and in violation of the Tennessee
Constitution’s guaranty to trial by jury. We quote at length from the trial transcript so as to
present the court’s comments in their proper context:

                       And I do want to say that, even though it was a very long
               two weeks, you were – if you were going to have sat through a
               two-week trial, this was certainly one of the better presented trials
               that I have seen from both sides. And you can see that – just two
               of our many boxes down there – you can see that this was a very
               interesting and difficult case and why you are now in the position
               of having to make a decision in this case.

               ******************************************************

                       Now, now we’re getting into trying to define a little bit
               more concisely what the answer to Question Number 1 is on your
               verdict form. I think you can even remember that.

                     “Is Dr. Ura or Nashville Anesthesia Services at fault?”
               Okay. Simple question. Obviously not a simple answer. Okay.

               ******************************************************

                      So all of the instructions – not the general ones, but all the
               ones about fault – all are contained in you consideration of
               Question Number 1, which is a deceptively simple question, okay?
               “Yes or No.” No explanations. You just get “Yes or No.”

               ******************************************************

               So I simply encourage those of you who are very strong in your
               opinions to perhaps sit back, okay? Those of you who are a little
               less used to expressing your opinion right at the beginning, this is
               an opportunity for you to really be a part of this whole group,
               okay?

                      We choose 13 persons for a reason. Okay? If we were only
               going to have one person making the decision, obviously that’s

                                                -36-
               what I get paid to do, in other kinds of case[s], okay? So we want
               to make sure that we’re getting the full measure of this entire jury
               to make this difficult decision.

                      Okay. So you need to listen to each other, and you need to
               discuss with each other, and you need to be respectful of each
               other. And I know that you will do that, because you just seem like
               the kind of jury that will be doing that, okay?

        Our law is clear that a trial judge shall avoid expressing his or her opinions to a jury in
any manner concerning matters to be passed upon by the jury. Pridemark Custom Plating, Inc.
v. Upjohn Co., Inc., 702 S.W.2d 566, 577 (Tenn. Ct. App. 1985) (citing McCay v. Mitchell, 62
Tenn. App. 424, 463 S.W.2d 710 (1970). “[Judges] must refrain from making statements that
might reflect on the weight of the evidence or the credibility of the witnesses or that might
otherwise influence the jury concerning the facts.” Mercer v. Vanderbilt Univ., Inc., No.
M2000-00801-COA-R3-CV, 2002 WL 31728864, at *4 (Tenn. Ct. App. Dec. 5, 2002) (citing
State v. Suttles, 767 S.W.2d 403, 406-07 (Tenn. 1989); McBride v. Allen, 720 S.W.2d 459,
462-63 (Tenn. Ct. App. 1979)).

       From our reading of the trial judge’s comments to the jury, we are unable to conclude that
the judge’s statements constituted error. Perhaps the court said more than necessary but there is
nothing to indicate an expression of opinion as to the weight of the evidence or any attempt to
influence the jury. We therefore find defendants’ issue without merit.


         Defendants’ final issue asks this Court to consider “[w]hether the cumulative effect of all
the errors complained of in this appeal denied Defendants a fair trial by a fair and impartial jury.”
Although we have held that the trial court’s error in granting Plaintiff eight peremptory
challenges alone necessitates a remand for new trial, we note that the cumulative effect of this
procedural error, along with the several errors already addressed, deprived defendants of a fair
trial, thereby constituting harmful error sufficient to warrant a new trial.

       In light of our holding remanding this case for new trial, we pretermit all other issues.

      In conclusion, the trial court’s judgment on the jury verdict is vacated and the case is
remanded for a new trial. Costs of the appeal are assessed one-half to plaintiff, Sherry Hunter,
Administratrix of the estate of Lawrence Hunter, deceased, and one-half to defendants, Jay
Michael Ura, M.D. and Nashville Anesthesia Services, and their sureties.


                                       __________________________________________
                                       W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.



                                                -37-
