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

         SAPINDER SINGH v. LARRY FOWLER TRUCKING, INC.

             Direct Appeal from the Circuit Court for Henderson County
                        No. 09085     Roger A. Page, Judge


                No. W2011-01986-COA-R3-CV - Filed August 29, 2012


This case arises from an accident involving two semi-trucks. The truck owned by Appellee
trucking company rear-ended the truck driven by Appellant, causing injury to Appellant’s
back. Litigation ensued and the Appellee filed a motion in limine to exclude portions of
Appellant’s medical expert’s testimony concerning Appellant’s possible future need for
surgery and the costs thereof. The trial court granted the motion, and Appellant appeals.
Discerning no error, we affirm.

  Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed

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

Charles H. Barnett, III and Sarah E. Barnett, Jackson, Tennessee, for the appellant, Sapinder
Singh.

Nicholas E. Bragorgos and Pam Warnock Blair, Memphis, Tennessee, for the appellee, Larry
Fowler Trucking, Inc.

                                        OPINION

      Appellant Sapinder Singh is a resident of Stockton, California. At the time of the
accident at issue in this case, he was employed as a long-haul truck driver for Trans-Guru
Trucking Company. Mr. Singh's route was from California to Virginia, with three "runs" per
month.

      On September 11, 2005, Mr. Singh was operating his truck in Henderson County,
Tennessee, traveling on Interstate 40 in the east-bound lane. At the same time, Jeffrey
Williams was driving a truck directly behind Mr. Singh. Mr. Williams' truck was owned by
Appellee Larry Fowler Trucking, Inc., where Mr. Williams was employed. Mr. Singh was
traveling at approximately 70 mph when he noticed that traffic in his lane had come to a stop.
Accordingly, he applied his brakes and turned on his emergency flashers. Mr. Williams did
not notice the brake lights on Mr. Singh's trailer and was unable to stop, resulting in a
collision.

       Mr. Singh did not initially realize any injury from the accident and was able to
continue his route toward Virginia. However, while driving, he began to experience pain,
which allegedly got more severe as time passed. It was not until he returned to California
that he sought medical attention.

        Mr. Singh first sought treatment with Dr. Michael Arishin, a chiropractor. After forty-
two visits, his pain was not getting better and Dr. Arishin referred Mr. Singh to Dr. Michael
Jaffin, a board certified orthopedic surgeon. Dr. Jaffin first saw Mr. Singh on January 31,
2006. An MRI revealed several disc issues in Mr. Singh's back. Dr. Jaffin opined that Mr.
Singh could not work because his condition was worsening. Dr. Jaffin referred Mr. Singh
to a neurosurgeon. Although, in his deposition, Dr. Jaffin states that this neurosurgeon
recommended that Mr. Singh should have surgery, we note that the neurosurgeon who is not
named in the record did not testify in this case. Regardless, because Mr. Singh did not have
medical insurance, he was unable to have surgery. Mr. Singh is not able to work because of
his injuries.

       On June 8, 2009, Mr. Singh filed suit against Larry Fowler Trucking and Mr.
Williams, alleging negligence.1 On July 13, 2011, Larry Fowler Trucking filed two motions
in limine. The first was to exclude portions of Dr. Arishin’s deposition testimony. This
motion was granted, but the exclusion of Dr. Arishin’s testimony is not an issue in this
appeal. The second motion in limine, which is the subject of this appeal, was to exclude
portions of Dr. Michael Jaffin’s deposition testimony, which was taken on June 3, 2011.
Specifically, Larry Fowler Trucking argued:

                During his deposition, Dr. Jaffin was asked questions regarding
                a possible future surgery for Mr. Singh. During his testimony,
                Dr. Jaffin was unable to testify with any degree of certainty as
                to what type of surgery Mr. Singh would need, and the cost of
                that surgery . . . . Dr. Jaffin’s testimony demonstrated that he
                was not familiar with the type of surgery . . . Mr. Singh may


       1
         In the Final Judgment entered in this case, all claims against Mr. Williams were dismissed with
prejudice upon the court’s finding that Mr. Williams “was never served with this lawsuit.” No appeal is
taken from this decision.

                                                  -2-
              need, nor was he familiar with what the charges would be . . . .
              [Larry Fowler Trucking] would ask the Court to exclude from
              evidence all testimony contained in Dr. Jaffin’s deposition
              regarding surgery. Dr. Jaffin testified throughout the deposition
              as to the possibility of future surgery, however, Dr. Jaffin’s
              ultimate opinion was that he did not know what type of surgery
              [Mr. Singh] would need nor did he know what the costs would
              be . . . .

              Dr. Jaffin testifies that he is “moderately” familiar with such
              charges, and therefore [Larry Fowler Trucking] submits he is
              not qualified to testify as to whether or not the charges are in
              fact reasonable or necessary with other medical providers in the
              community . . . . Dr. Jaffin’s testimony is not based upon any
              degree of certainty or familiarity [with] charges . . . .

      The trial court granted the motion in limine in part after a telephone conference.
However, the court did not enter an order until December 16, 2011. The order on the
admissibility of Dr. Jaffin’s testimony states, in pertinent part:

              The Court is of the opinion that the motion in limine . . . should
              be granted with respect to Dr. Jaffin’s proposed testimony as to
              the need for future surgery and/or cost of same. The Court finds
              that Dr. Jaffin’s testimony is not competent with regard to any
              possible surgery, and therefore Dr. Jaffin should not be allowed
              to give any testimony by way of deposition as to any possible
              surgery that [Mr. Singh] might need or the cost of same.

Dr. Jaffin’s testimony was otherwise allowed.

        The matter proceeded to jury trial on July 19 and 20, 2011. The Appellee admitted
liability and the sole issue for the jury was the amount of damages. The jury returned a
verdict in favor of Mr. Singh against Larry Fowler Trucking for $50,000. On August 17,
2011, the court entered an order on the jury verdict. Mr. Singh appealed this order. Upon
review of the record, this Court determined that the August 17, 2011 order was not final, as
it did not adjudicate all claims. Upon remand and upon Mr. Singh’s motion, on December
16, 2011, the court entered "Final Judgment," awarding Mr. Singh $50,000 plus $6,810.71
in discretionary costs. On December 21, 2011, Mr. Singh filed a motion for new trial, which
specifically sets out the issue of whether the trial court erred in excluding portions of Dr.
Jaffin’s deposition testimony. See Tenn. R. App. P. 3(e) (requiring a motion for new trial to

                                             -3-
preserve certain issues pertaining to trial “in all cases tried by a jury”). The motion was
denied by order of March 12, 2012. Mr. Singh appeals.2

      The sole issue for review is whether the trial court erred in granting, in part, the
motion in limine, excluding portions of Dr. Jaffin’s deposition testimony.

        We review a trial court's decision regarding the admissibility of evidence, including
a ruling on a motion in limine, under an abuse of discretion standard. Pullum v. Robinette,
174 S.W.3d 124, 137 (Tenn. Ct. App. 2004) (citing Heath v. Memphis Radiological Prof'l
Corp., 79 S.W.3d 550, 558–59 (Tenn. Ct. App. 2002)). A trial court abuses its discretion
when it “causes an injustice by applying an incorrect legal standard, reaches an illogical
result, resolves the case on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
2011) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.2011));
Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). In other words, although
rulings on motions in limine are within the discretion of the trial court, “[d]iscretionary
choices are not left to a court's inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.” State v. Lewis, 235 S.W.3d 136, 141 (Tenn.2007) (quoting
Martha S. Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking,
2 J. App. Prac. & Process 47, 58 (2000) (citations and internal quotation marks omitted)).
We are required to uphold the trial court’s ruling “as long as reasonable minds could disagree
about its correctness,” and “we are not permitted to substitute our judgment for that of the
trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007).

       In its order granting the motion in limine, the trial court specifically excluded three
portions of Dr. Jaffin’s deposition testimony:

                Q. Now, Dr. Jaffin, at the present time what is Mr. Singh’s
                prognosis if he does not have surgery?

                A. Statistically he will get weaker and have trouble walking.

                Q. You say statistically?

                A. Yeah, most likely he is already developing right lower
                extremity weakness which was not present on initial exam and
                one would expect that to progress.


        2
           We note that the attorneys who are representing Mr. Singh in this appeal did not represent him at
the trial level.

                                                    -4-
              Q. And without looking into the future with certainty what
              would you foresee or predict the benefit from surgery might be
              if he were able to afford it and have it soon?

              A. Absence of pain and ability to walk.

              Q. And ability to walk would include ability to sit and stand?

              A. Yes, sir.

              Q. And perhaps work as a driver?

              A. Yes, sir.

The trial court also excluded the following:

              Q. And once more for the sake of summary what is your
              prognosis for him if he does not receive surgery and then your
              prognosis if he did have surgery?

              A. Well, this again, you know, reasonable medical probability
              and good luck because I’ve seen excellent spine surgeries have
              bad results, but without surgery I would anticipate that he would
              get weaker and have more difficulty ambulating and have more
              pain. With surgery hopefully he would have less pain,
              substantially less pain and a restoration of his function.

              Q. And then one thing more, I believe you testified earlier that
              there would be a payment out of pocket that was inquired into
              some years again, I believe you said roughly $360,000.00?

              A. No, that’s what I paid. That’s what my bill was.

              Q. Okay. What would be an approximate cost for the type of
              surgery Mr. Singh is looking at today?

              A. I can’t tell for sure.

              Q. Would it be at least $300,000?



                                               -5-
              A. That I can’t tell either, sir. I would estimate what he would
              have—you see he has a disc in his thoracic spine and two in his
              lumbar spine and what that surgery may entail I can’t tell you
              because I’m not a spine surgeon. And what it would cost I can’t
              tell you because I can’t tell you what the surgery would entail.

              Q. Would it be the case that some decisions would have to be made
              after the surgery had begun that couldn’t be foreseen?

              A. No, but it would be the case that once the surgery—once the
              type of surgery is chosen then an approximate cost could be, you
              know, determined, but since I don’t pretend to tell you what
              kind of surgery would be done I can’t tell you what kind of cost
              it would be. I would estimate it would be well over
              $200,000.00, that I’m sure.

              Q. In any event?

              A. In any event, yes.

The court also excluded the following testimony:

              Q. In regard to the aftermath of cross-examination and the
              scrutiny of your opinions from direct examination is it still your
              testimony that Mr. Singh needs surgery?

              A. I think he needs surgical evaluation. Whether he needs
              surgery or what kind of surgery he needs I would leave that to
              a spine surgeon.

              Q. Is it your testimony that any type of surgery that you might
              contemplate him having would cost at least $200,000?

              A. Probably yes.

                                      No Offer of Proof

       In its brief, Larry Fowler Trucking first argues that, because Mr. Singh failed to make
an offer of proof concerning the excluded testimony, he has waived the issue on appeal.
Tennessee Rule of Evidence 103(a)(2) provides:

                                             -6-
             (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

             *                                     *                          *

             (2) Offer of Proof. In case the ruling is one excluding evidence,
             the substance of the evidence and the specific evidentiary basis
             supporting admission were made known to the court by offer or
             were apparent from the context.

       In Thompson v. City of LaVergne, No. M2003–02924–COA–R3–C, 2005 WL
3076887 (Tenn. Ct. App. Nov.16, 2005), perm. app. denied (Tenn. April 24, 2006), this
Court stated:

                     An erroneous exclusion of evidence requires reversal
             only if the evidence would have affected the outcome of the trial
             had it been admitted. Pankow v. Mitchell, 737 S.W.2d 293, 298
             (Tenn. Ct. App. 1987). Reviewing courts cannot make this
             determination without knowing what the excluded evidence
             would have been. Stacker v. Louisville & N. R.R. Co., 106
             Tenn. 450, 452, 61 S.W. 766 ([Tenn.] 1901); Davis v. Hall, 920
             S.W.2d 213, 218 (Tenn. Ct. App. 1995); State v. Pendergrass,
             795 S.W.2d 150, 156 (Tenn. Crim. App. 1989). Accordingly, the
             party challenging the exclusion of evidence must make an offer
             of proof to enable the reviewing court to determine whether the
             trial court's exclusion of proffered evidence was reversible error.
             Tenn. R. Evid. 103(a)(2); State v. Goad, 707 S.W.2d 846, 853
             (Tenn. 1986); Harwell v. Walton, 820 S.W.2d 116, 118 (Tenn.
             Ct. App. 1991). Appellate courts will not consider issues
             relating to the exclusion of evidence when this tender of proof
             has not been made. Dickey v. McCord, 63 S.W.3d 714, 723
             (Tenn. Ct. App. 2001); Rutherford v. Rutherford, 971 S.W.2d
             955, 956 (Tenn. Ct. App. 1997); Shepherd v. Perkins Builders,
             968 S.W.2d 832, 833-34 (Tenn. Ct. App. 1997).

                   [A]n offer of proof must contain the substance of the
             evidence and the specific evidentiary basis supporting the
             admission of the evidence. Tenn. R. Evid. 103(a)(2). These

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                 requirements may be satisfied by presenting the actual
                 testimony, by stipulating to the content of the excluded
                 evidence, or by presenting an oral or written summary of the
                 excluded evidence. Neil P. Cohen, et al. Tennessee Law of
                 Evidence § 103.4, at 20 (3d ed. 1995).

Thompson, 2005 WL 3076887, at *9.

        This Court has also recognized that, in certain circumstances, an offer of proof is not
necessary. “However, an offer of proof is not needed when the substance of the evidence and
its reason for exclusion are apparent from the context.” Gillum v. McDonald, No. M2003-
00265-COA-R3-CV, 2004 WL 1950730, at *5 (Tenn. Ct. App. Sept. 2, 2004). In Gillum,
this Court recognized two exceptions to the Tennessee Rule of Civil Procedure 103(a)(2)
offer of proof requirement: (1) when the substance of the evidence and the specific
evidentiary basis supporting admission is apparent from the context of the question; and (2)
when the exclusion of the evidence seriously affects the fairness of the trial. Id.

       In this case, we are concerned with the exclusion of certain portions of the deposition
testimony of Dr. Jaffin. The appellate record contains the evidentiary deposition in its
entirety. Although we concede that Mr. Singh did not make a separate offer of proof,
because the appellate record contains Dr. Jaffin’s full deposition, the motion in limine, and
the trial court’s order on the motion, there is sufficient evidence in the record from which
to determine the trial court’s reasoning and whether it was erroneous. The purpose of Rule
103(a)(2) is to help this Court determine whether the trial court’s exclusion was reversible
error. Here, the substance of the evidence and the specific evidentiary basis supporting
admission or exclusion are apparent from the context. Accordingly, Mr. Singh’s failure to
make a separate offer of proof is not fatal to his appeal.

           Dr. Jaffin’s Qualification to Testify as to Future Surgeries and Costs

      Tennessee Rules of Evidence 702 and 703 govern a trial court’s decision concerning
the admissibility of expert testimony.3 These evidentiary rules require a trial court to

       3
           Tennessee Rule of Evidence 702 provides:

                 If scientific, technical, or other specialized knowledge will substantially
                 assist the trier of fact to understand the evidence or to determine a fact in
                 issue, a witness qualified as an expert by knowledge, skill, experience,
                 training, or education may testify in the form of an opinion or otherwise.

                                                                                                 (continued...)

                                                     -8-
determine: (1) whether expert testimony will substantially assist the trier of fact in
determining a fact in issue; and (2) whether the facts and data underlying the testimony
indicate a lack of trustworthiness. Tenn. R. Evid. 702; Tenn. R. Evid. 703. As noted above,
determinations concerning the admissibility, qualifications, relevance, and competency of
expert testimony is left to the sound discretion of the trial court. See McDaniel v. CSX
Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). Accordingly, our function is only to
determine whether the trial court abused its discretion in excluding the testimony and not to
substitute our view for that of the trial court. Id. at 263–64.

      As discussed by this Court, in Henley v. Amacher, No. M1999-02799-COA-R3-CV,
2002 WL 100402 (Tenn. Ct. App. Jan. 28, 2002), in Tennessee:

                      A person who is injured by another's negligence may
              recover damages from the other person for all past, present, and
              prospective harm. Included in the prospective harm for which
              damages may be recovered is the reasonable cost of the medical
              services that will probably be incurred because of the lingering
              effects of the injuries caused by the negligent person. To remove
              awards for future medical expenses from the realm of
              speculation, persons seeking future medical expenses must
              present evidence (1) that additional medical treatment is
              reasonably certain to be required in the future and (2) that will
              enable the trier-or-fact to reasonably estimate the cost of the
              expected treatment.

                    The first component of a claim for future medical
              expenses is, in the language of the Tennessee Pattern Jury

       3
        (...continued)
       Tennessee Rule of Evidence 703 provides:

              The facts or data in the particular case upon which an expert bases an
              opinion or inference may be those perceived by or made known to the
              expert at or before the hearing. If of a type reasonably relied upon by
              experts in the particular field in forming opinions or inferences upon the
              subject, the facts or data need not be admissible in evidence. Facts or data
              that are otherwise inadmissible shall not be disclosed to the jury by the
              proponent of the opinion or inference unless the court determines that their
              probative value in assisting the jury to evaluate the expert's opinion
              substantially outweighs their prejudicial effect. The court shall disallow
              testimony in the form of an opinion or inference if the underlying facts or
              data indicate lack of trustworthiness.

                                                  -9-
              Instructions, evidence that additional medical treatment is
              “reasonably certain to be required in the future.” This
              “reasonable certainty” standard requires more than a mere
              likelihood or possibility. It requires the plaintiff to establish with
              some degree of certainty that he or she will undergo future
              medical treatment for the injuries caused by the defendant's
              negligence. It does not, however, require proof of future
              medical treatment to an absolute or metaphysical certainty.
              Rather, the “reasonable certainty” standard requires the plaintiff
              to prove that he or she will, more probably than not, need these
              medical services in the future.

Id. at *13-*14 (internal citations and footnotes omitted). Thus, in order to be helpful to a
jury, Dr. Jaffin’s testimony concerning possible future surgeries must be made with a
reasonable degree of medical certainty. In the first instance, we note that the deposing
attorneys did not ask Dr. Jaffin whether his testimony was given to a reasonable degree of
medical certainty. While we have held that “the use of the ‘magic language’ that the opinion
is to a reasonable degree of medical certainty is not necessary for admissibility,” Mitchell v.
Ensor, No. W2001-01683-COA-R3CV, 2002 WL 31730908, at * 11 (Tenn. Ct. App. Nov.
18, 2002), “the testimony must show, as a whole, that it is more probable than not” that
future surgery will be required. Jackson v. Allen, No. M2000-01673-COA-R3-CV, 2002 WL
661930, at *2(Tenn. Ct. App. April 23, 2002). Although D. Jaffin was not specifically asked
about the degree of certainty, as set out in full context above, it is clear, from the excluded
portions of Dr. Jaffin’s testimony, that he was unable to provide any level of certainty as to
Mr. Singh’s need for future medical intervention. After fully considering Dr. Jaffin’s
deposition, the trial court found that his testimony as to the need for future surgeries and the
costs thereof was speculative, and concluded that the testimony was inadmissible. The trial
court supported its conclusion with written findings. This Court has previously held that
“expert testimony that a trial court determines is speculative would not ‘substantially assist’
the trier of fact.” Gobee v. Dimick, 213 S.W.3d 865, 881 (Tenn. Ct. App. 2006) (citation
omitted); McDaniel, 955 S.W.2d at 265 (“The trial court must be assured that the expert
opinion testimony is based upon relevant scientific data, methods, and processes and not
upon the “mere speculation” of the expert.”).

        In those portions of his testimony that were excluded from evidence, Dr. Jaffin
testified that he would not “pretend to tell you what kind of surgery” Mr. Singh would
require in the future, and that he could not “tell for sure” what these surgeries would cost.
In fact, Dr. Jaffin testified that Mr. Singh would need further surgical evaluation, which he
“would leave [] to a spine surgeon.” By his own admission, Dr. Jaffin is not at all certain as
to what, if any, future surgeries will be medically necessary. Consequently, he is not qualified

                                              -10-
to testify as to what, if any, spinal surgeries Mr. Singh will need. As he testifies: “I can’t tell
you because I’m not a spine surgeon.” As such, Dr. Jaffin’s testimony does not demonstrate
a reasonable medical certainty concerning the need for future surgeries.

        Concerning the costs of future surgeries, Dr. Jaffin testified that the costs would “be
at least $300,000.” Later in his testimony, he opines that the costs would be “well over
$200,000.” This testimony is also speculative. As noted above, Dr. Jaffin, by his own
testimony, is not qualified to opine as to the specific surgeries that may be necessary and,
because he is not qualified concerning the surgeries, he is likewise not qualified to testify as
to the costs of the surgeries. We have reviewed Dr. Jaffin’s evidentiary deposition in its
entirety. From his statements, we cannot conclude that the trial court abused its discretion
in finding that Dr. Jaffin’s testimony as to future surgeries and costs was speculative and of
no value to assist the trier of fact.

        For the foregoing reasons, we affirm the order of the trial court. The case is remanded
for all further proceedings as may be necessary and are consistent with this Opinion. Costs
of this appeal are assessed against the Appellant, Sapinder Singh, and his surety.




                                                      _________________________________
                                                      J. STEVEN STAFFORD, JUDGE




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