        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                            AT NASHVILLE

             _______________________________________________________

                                    )
GINGER C. SNEAD and                 )     Williamson County Circuit
JAMES D. SNEAD,                     )     Court No. 95405
                                    )
   Plaintiffs/Appellants.           )
                                    )
VS.                                 )     C.A. No. 01A01-9702-CV-00085
                                    )
LOIS V. METTS,                      )

   Defendant/Appellee.
                                    )
                                    )
                                    )
                                                            FILED
______________________________________________________________________________
                                                     December 5, 1997

From the Circuit Court of Williamson County at Franklin.    Cecil W. Crowson
Honorable Henry Denmark Bell, Judge                        Appellate Court Clerk



Steve C. Norris, Nashville, Tennessee
Attorney for Plaintiffs/Appellants.


John L. Norris, HOLLINS, WAGSTER & YARBROUGH, Nashville, Tennessee
Attorney for Defendant/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED


                                           FARMER, J.

HIGHERS, J.: (Concurs)
LILLARD, J.: (Concurs)
               The plaintiffs, Ginger C. Snead and James D. Snead, sued the defendant, Lois A.

Metts as a result of a vehicular accident which occurred on July 22, 1994. It is undisputed that the

car driven by Ms. Metts struck the car driven by Ms. Snead in the rear while the Snead vehicle was

stopped at a stop sign. Ms. Snead sued for injuries and damages and Mr. Snead sued for loss of

consortium.



               The jury returned a verdict in favor of Ms. Snead for $750 and Mr. Snead in the

amount of $200. They appeal and present the following issues:



                       1. Whether the trial court erred in admitting into evidence the
               office notes of Dr. Robert B. Snyder and of Dr. Roger A. Hodge, both
               dated December 8, 1994, in which each doctor stated what the other
               doctor said during a telephone conversation.

                       A. Whether the statements contained in each doctor’s office
               notes reporting what the other doctor told him on the telephone are
               inadmissible hearsay.

                        B. Whether the introduction of these records was harmless
               error.



               The appellants’ argument is based on the following from a December 8, 1994 note

of Dr. Hodge and a December 8, 1994 note of Dr. Snyder which state respectively:



               Dr. Snyder returned my call and we discussed her condition. He
               thinks that her accident was quite minor and is not impressed with her
               musculoskeletal findings. He thinks that she is emotional and
               depressed, and seeking some secondary gain. He did not want to
               allow her to miss further work.

               I talked to Dr. Hodge today. Apparently, Mrs. Snead was in his office
               yesterday very upset and crying and wanted him to keep her off work.
               He believes there is a lot of anger and situational depression as well.
               I confirmed this, and that there are a lot of symptoms and very little
               signs involved in her case. He is going to continue as her primary
               care physician for treatment.



               The plaintiffs contend that these records of each doctor stating what the other doctor

stated are inadmissible hearsay. They argue that the “first level” of hearsay consists of notes instead

of in person testimony of the doctor who made the notes, which they concede is admissible under

the business records exceptions of the hearsay rule. However, they contend the “second level” of
hearsay consists of each doctor reporting what the other said which does not qualify under any

hearsay exception.



                    Defendant first counters that there was an agreement between counsel that the medical

records could be introduced into evidence without objection. The basis of this argument is an

exchange between counsel and the trial court en camera wherein plaintiffs’ attorney objected to the

introduction into evidence of the above notes. The response of defendant’s counsel and the court’s

ruling are as follows:



                            MR. J. NORRIS:1 May it please the Court, we strenuously
                    disagree. Mr. Norris wants to introduce this thick package of records
                    to which we would have all sorts of objections based on the Court’s
                    ruling that these two entries go in. Based on whether or not it be a
                    radiologist, a pathologist, they rely on conversations. They rely on all
                    sorts of information, and certainly, one of those sources is what
                    another doctor says.

                             So we submit that these are part of the office notes, part of the
                    total picture history of this patient, and that Your Honor has correctly
                    decided this matter.

                            THE COURT: All right. I rule against the Plaintiff on his
                    objection, with the statement that the Court will hold the defense
                    counsel to his not objecting to any of the other records.



                    Plaintiffs’ attorney made no further statement and no further objection at the time the

notes were read into evidence. Our review of the record reveals that Plaintiffs did introduce, without

objection, numerous exhibits consisting of medical reports, doctor’s notes, medical bills and various

other documents consisting of some 50 to 60 pages. The defendants argument is further buttressed

by the fact that some of the doctors’ notes introduced by Plaintiffs likewise contained statements

made by doctors and health care providers other than the one who made the note.2 We can readily

understand how the defendant’s counsel was led to believe that there was a tacit agreement between

counsel that each could introduce the medical records without objection. While the record

introduced by the plaintiffs contained notation from several medical providers, the only physicians



          1
              The plaintiffs were represented by Mr. Steve C. Norris and the defendant by Mr. John L.
Norris.
          2
         For example, Plaintiffs’ exhibit # 9 is a letter from Dr. Bobo Tanner to Dr. Hodge which
states in part “Dr. Parris said he may re-order one (referring to an MRI) . . .”
who testified, both by deposition, were Dr. William Richard Carl Stewart, III and Dr. Robert B.

Snyder.



               However, since it is not patently obvious that there was an agreement between

counsel, we will examine the plaintiffs’ argument further. As to Plaintiffs’ argument of inadmissible

hearsay, the defendant counters that the contested notes of Drs. Snyder and Hodge were admissible

as business records pursuant to Rule 803(6) of the Tennessee Rules of Evidence.3 She further

contends the notes were admissible under the completeness doctrine as set forth at Rule 106 T.R.E.4

As to the record of Dr. Snyder, after stating what was said to him by Dr. Hodge, Dr. Snyder went on

to say that “I confirmed this, and that there are a lot of symptoms and very little signs involved in

her case.” With respect to Dr. Hodge’s notation that Dr. Snyder stated to him that the patient was

emotional and depressed, there is evidence of depression in the evidence submitted by the plaintiff

herself. In discussing his telephone conversation with Dr. Hodge, Dr. Snyder testified that “I

confirmed that it had mirrored my assessment and I explained to him that there were a lot of

symptoms; that is, a lot of complaints but very little signs involved in her case.”



               However, assuming arguendo that Plaintiffs are correct on their evidentiary

argument, we believe that if there was error it was harmless. Rule 36 T.R.A.P. As will be shown,

the severity of the impact was sharply disputed and it was Defendant’s theory throughout the trial

that the impact was so slight that it could not have caused the injuries of which Ms. Snead

complained. Dr. Snyder, an orthopedic surgeon, testified that Ms. Snead was referred to him by Dr.

James P. Wilson, an internal medicine specialist and primary care physician. Dr. Snyder testified

that, based on his examination, Ms. Snead appeared depressed. When he examined her on August



       3
         Records of Regularly Conducted Activity. A memorandum, report, record, or data
compilation in any form of acts, events, conditions, opinions, or diagnoses made at or near the
time by or from information transmitted by a person with knowledge and a business duty to
record or transmit if kept in the course of a regularly conducted business activity and if it was the
regular practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified witness, unless the
source of information or the method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this paragraph includes every kind of business,
institution, association, profession, occupation, and calling, whether or not conducted for profit.
       4
       When a writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.
18, 1994 he did not find any evidence of any injury at all to her neck or shoulders. Other than some

tenderness, he did not find anything wrong with her low back. He found no muscle spasm. All x-

rays were normal and he expected her symptoms to resolve with time. It was his opinion that as of

December 1, 1994 Ms. Snead was able to return to regular job duties but she told him that she did

not want to go back to work. The only objective evidence of injury found was minimum tenderness

in the lumbar spine. He described an objective sign as a reproducible, external evidence or

observable evidence of underlying symptoms of what the patient says. He testified that her

complaints of pain were greater than those of most of his other patients with similar physical findings

and that her complaints of pain were out of proportion to the physical and observable findings that

he could find on physical examination.



                The only witnesses testifying to the accident itself were the two drivers. Ms. Snead

testified that she was stopped when her car was struck from the rear very hard and that her car was

thrown forward. She described her rear bumper as smashed. According to Dr. Wilson’s notes the

patient told him that she was rear-ended at 35 miles an hour. Ms. Snead denied this but testified that

the defendant’s car was traveling at least 30 miles per hour when it was struck. The repair costs to

the Snead vehicle was $253.



                Ms. Snead did not remember whether or not the impact awakened her child who was

in the car seat beside her. Her child was not injured and she did not see any damage to the

defendant’s vehicle. She testified that she kept notes on her condition beginning the Monday

following the accident up until the time she employed an attorney.



                Ms. Metts testified that she is a registered nurse and was on her way to work at the

time of the accident. As she approached an intersection, there was a line of traffic stopped in front

of her at a 4-way stop. She slowed her car, put her foot on the brake and began to roll forward. At

that time her car phone rang, startling her, and she struck the car in front of her. She testified at the

time her car was moving at between 2 and 5 miles per hour. At first she didn’t realize that she had

struck the vehicle in front of her, but thought she had just applied her brakes too hard. It wasn’t until

she got out of her car that she realized that there had been an accident. She testified she wasn’t hurt

and her glasses were not knocked off. Her purse on the seat beside her was not knocked off and her
coffee, which was in a holder, was not spilled. She further testified that the Snead vehicle was not

knocked forward. Ms. Snead told her that she was not hurt. They were at the scene for

approximately one hour and Ms. Metts observed no signs of physical injury to her but Ms. Snead did

say that her back hurt. Ms. Metts testified that there was no damage to her car.5



               Roger Metts, Lois Metts’ husband, testified that he is a supervisor at a maintenance

and repair garage for Ryder Truck Rental. His wife was driving a 1990 Nissan Sentra at the time of

the accident. He examined it after the accident and found no physical damage except for a couple

of black marks on the front bumper which were removed with wax. He testified that the bumper on

his wife’s car had an impact rating of 2-1/2 to 5 miles per hour and is an energy-absorbing bumper.



               Our scope of review is set forth in Rule 13(d) T.R.A.P. Findings of fact by a jury in

civil actions shall be set aside only if there is no material evidence to support the verdict. The jury

was presented with evidence that Ms. Snead incurred medical expenses in excess of $8,000 and loss

of earnings of approximately $10,000. There was disputed medical testimony as to when she was

medically determined to be able to return to work. The defendant admitted liability. Given the gross

discrepancy between the drivers as to the nature and extent of the impact, based upon our review of

this record we cannot say that the introduction of the portions of the notes of Drs. Hodge and Snyder

more probably than not affected the judgment or would result in prejudice to the judicial process.

Rule 36(b) T.R.A.P. Therefore, the judgment of the trial court is affirmed and the costs of this

appeal are taxed to the plaintiffs/appellants.



                                                       ____________________________________
                                                       FARMER, J.

______________________________
HIGHERS, J. (Concurs)



______________________________
LILLARD, J. (Concurs)




       5
        The record indicates that a photograph of the Metts car was introduced into evidence as
exhibit no. 22. However, we do not find that exhibit among the other 25 exhibits.
