                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 13, 2010 Session

                   JEAN HENSLEY v. ROBERT CERZA ET AL.

                   Appeal from the Circuit Court for Putnam County
                     No. 06N0166      John J. Maddux, Jr., Judge


                 No. M2009-01860-COA-R3-CV - Filed August 25, 2010


A jury returned a verdict in favor of the defendants in this medical malpractice action. On
appeal, the plaintiff assigns error to various decisions made by the trial court concerning the
admission of evidence and arguments and to the trial court’s grant of summary judgment on
the plaintiff’s claim of negligent retention. While the trial court erred in several respects, we
consider the errors to be harmless and affirm the judgment based on the jury verdict.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS, J.,
joined. F RANK G. C LEMENT, J R., J., filed a concurring opinion.

Stephen C. Knight and Nader Baydoun, Nashville, Tennessee, for the appellant, Jean
Hensley.

Heidi Anne Barcus, Knoxville, Tennessee, and Donald W. Darby, Louisville, Kentucky, for
the appellees, Robert Cerza, M.D. and Cardiac Anesthesia Services, PLLC.

                                          OPINION

                         F ACTUAL AND P ROCEDURAL B ACKGROUND

        Jean Hensley was admitted to Cookeville Regional Medical Center (“CRMC”) on
March 29, 2004, for removal of an intrathoracic goiter. Dr. Robert Cerza, the
anesthesiologist for Ms. Hensley’s surgery, inserted a double lumen tube into her trachea to
allow one of the lungs to be deflated, thereby facilitating surgery in the chest cavity. During
this process, Ms. Hensley sustained a tracheal laceration, a life-threatening complication that
required additional surgical procedures and resulted in a prolonged recovery period.
       Ms. Hensley filed this suit in June 2006 against Dr. Cerza and Cardiac Anesthesia
Services, PLLC (“CAS”), for medical malpractice. The court subsequently permitted Ms.
Hensley to amend her complaint to include a claim for negligent retention against CAS. In
March 2009, the court granted the defendants’ motion for partial summary judgment on the
negligent retention claim.

       In February 2009 after extensive discovery, the defendants filed motions in limine
to exclude certain testimony from various witnesses. With respect to named non-physician
members of the surgical team, the court ruled:

       The testimony . . . is limited to lay witness testimony regarding what they
       heard and observed in the operating room on March 29, 2004. These witnesses
       are excluded from providing any expert opinion testimony regarding the
       technique Dr. Cerza used in the intubation including but not limited to any
       characterization of Dr. Cerza’s intubation as “forceful.”

During the trial, Ms. Hensley made offers of proof with respect to testimony ruled by the
court to be inadmissible.

       The case was tried before a jury from March 2 through March 9, 2009. The plaintiff’s
proof included the testimony of Lisa Poe, a registered nurse; Ms. Hensley’s son and daughter;
Jimmy Brock, a surgical technician; Ms. Hensley; the hospital’s director of surgery; another
surgical technician; and another registered nurse. Ms. Hensley’s counsel also had read into
the record portions of the testimony of Dr. Robert Wilson, the cardiothoracic surgeon who
was called in to repair the tracheal laceration. The plaintiff’s final witness on direct proof
was her expert witness, Dr. Dennis Doblar, an anesthesiologist. At the close of the plaintiff’s
proof, Dr. Cerza moved for a directed verdict based upon the plaintiff’s alleged failure to
prove the applicable standard of care. Dr. Cerza also moved for a directed verdict on the
issue of punitive damages. The court took these motions under advisement. The defendants
put on testimony from expert witnesses: Dr. Arthur Grimball, a cardiothoracic surgeon; Dr.
Dan Cotten, a radiologist; and Dr. Alex Woodruff, a cardiac anesthesiologist. Dr. Cerza
himself also testified. Dr. Cerza renewed his motions for a directed verdict at the end of the
defendants’ proof. In rebuttal, the plaintiff put on more expert testimony from Dr. Doblar.

      The jury returned a verdict in favor of the defendants, and the court thereafter denied
Dr. Cerza’s motions for a directed verdict. On April 13, 2009, the trial court entered
judgment in favor of the defendants. Ms. Hensley filed a motion for a new trial on April 7,
2009, which was denied by the court on August 26, 2009. This appeal followed.




                                              -2-
       On appeal, Ms. Hensley argues that the trial court erred in excluding certain testimony
by two non-physician members of the surgical team, in excluding an argument of plaintiff’s
counsel during closing arguments, in allowing certain testimony by defense expert witnesses,
and in granting the defense motion for partial summary judgment on the claim of negligent
retention. The defendants assert that the trial court erred in denying their motions for a
directed verdict on the basis that the plaintiff failed to prove the applicable standard of care
and on the issue of punitive damages.

                                  E YEWITNESS T ESTIMONY

       Ms. Hensley asserts that the trial court erred in excluding certain testimony of two
members of the surgical team: nurse Lisa Poe and scrub technician Jimmy Brock. By
excluding this testimony, she argues, the trial court prevented her from presenting compelling
testimony to support her theory in this case: that Dr. Cerza encountered resistance as he
advanced the double lumen tube and used excessive force to push through the resistance.

        With respect to this issue and others regarding the admission or exclusion of evidence,
we review the trial court’s decision under an abuse of discretion standard. Brown v. Crown
Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005); Mercer v. Vanderbilt Univ., Inc., 134
S.W.3d 121, 131 (Tenn. 2004). Under this standard, we are required to uphold the trial
court’s ruling “as long as reasonable minds could disagree about its correctness.” Caldwell
v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007). So, “we are not permitted to substitute
our judgment for that of the trial court.” Id. An appellate court “will set aside a discretionary
decision only when the trial court has misconstrued or misapplied the controlling legal
principles or has acted inconsistently with the substantial weight of the evidence.” White v.
Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). We review a trial court’s
discretionary decision to determine: “(1) whether the factual basis for the decision is
supported by the evidence, (2) whether the trial court identified and applied the applicable
legal principles, and (3) whether the trial court’s decision is within the range of acceptable
alternatives.” Id.

      We begin by examining the testimony of Ms. Poe and Mr. Brock that was allowed and
excluded by the trial court. The court allowed the following testimony from Ms. Poe
concerning Dr. Cerza’s insertion of the tube:

       Q. Can you describe what you saw and what you heard with respect to how
       Dr. Cerza inserted the tube in Ms. Hensley?




                                              -3-
          A. It’s just sort of one fluid motion with a turn on the end. One motion with
          a turn. And then at the end, when it’s inserted, you take the stylet, I would pull
          it out. Is that what you’re asking?

Ms. Hensley objects to the court’s exclusion of testimony by Ms. Poe that Dr. Cerza shoved
or rammed the double lumen tube down Ms. Hensley’s throat quickly and forcefully, that Ms.
Poe involuntarily grimaced because of the way Dr. Cerza inserted the tube, and that Dr.
Cerza used more force than Ms. Poe had seen any anesthesiologist use before.

        The court allowed testimony from Mr. Brock that Dr. Cerza began inserting the tube,
that he paused, that his hand turned white and he grunted, and that he pushed the tube down
more. Ms. Hensley assigns error to the court’s exclusion of testimony by Mr. Brock that Dr.
Cerza appeared to encounter “quite a bit” of resistance, that he increased the amount of force
he used (to the extent that he grunted and his hand turned white), that he crammed the tube
down Ms. Hensley’s throat, that he tried to force the tube in, and that Dr. Cerza was the only
anesthesiologist Mr. Brock had seen who increased the amount of force when he encountered
resistance during an intubation.

        The trial court did not specify which evidentiary rule it was applying in excluding the
testimony at issue. Ms. Hensley argues that the trial court abused its discretion in applying
Tenn. R. Evid. 702, concerning opinion testimony by experts, rather than Tenn. R. Evid. 701,
concerning lay opinion testimony. In its pretrial order, the trial court specifically stated that
these witnesses could not give “any expert opinion regarding the technique Dr. Cerza used
in the intubation including but not limited to any characterization of Dr. Cerza’s intubation
as ‘forceful.’” During the trial, the court ruled on a number of objections to specific
testimony. In so doing, the court sometimes explained its ruling by stating that the hospital
staff could not offer expert opinions. Tenn. R. Evid. 702 has no application to the testimony
of Ms. Poe and Mr. Brock since the plaintiff did not present either witness as an expert or
attempt to qualify them as experts.1

          The relevant evidentiary rule in this case is found in Tenn. R. Evid. 701(a), which
states:

          If a witness is not testifying as an expert, the witness’s testimony in the form
          of opinions or inferences is limited to those opinions or inferences which are
          (1) rationally based on the perception of the witness and


          1
         Unlike non-experts, experts are permitted, under certain circumstances, to state opinions based on
facts or data not within their personal knowledge. See Tenn. R. Evid. 703; Neil P. Cohen, Sarah Y.
Sheppeard & Donald F. Paine, TENN . LAW OF EVID . §§ 7.01[4][b], 7.03[2].

                                                   -4-
       (2) helpful to a clear understanding of the witness’s testimony or the
       determination of a fact in issue.

This rule, as amended in 1996, reflects the trend in favor of allowing lay opinion testimony
under certain circumstances:

       Although American law traditionally has treated lay opinion testimony as an
       unpopular relative who keeps appearing at family reunions, there is now a
       recognition that this relative not only should be invited to the gathering but
       may be a contributing part of the family. . . . The reason for this [trend in
       favor of allowing the admission of lay opinion testimony] is simple: sometimes
       lay opinion testimony is both necessary and valuable. The lay witness may not
       be able to provide helpful proof without giving an opinion. For example, how
       could a witness testify about age, identity, speed, or height without delving
       into the realm of opinion? What is helpful is the witness’s total impression,
       not the constituent elements.

Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, T ENN. L AW OF E VID. § 7.01[3].
Tenn. R. Evid. 602 requires that a witness who is not an expert have personal knowledge of
the matter about which he is testifying.

       Under Tenn. R. Evid. 701(a), lay opinion testimony is permissible if “rationally based
on the perception of the witness” and “helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue.” The statements excluded by the trial court
describe the amount of force used by Dr. Cerza in pushing the tube down Ms. Hensley’s
throat. Both Ms. Poe and Mr. Brock witnessed Dr. Cerza’s actions in inserting the double
lumen tube. Both had seen many intubations and were, therefore, able to compare the
amount of force applied by Dr. Cerza to the force they had seen applied by other
anesthesiologists. This evidence appears to be rationally based on the witnesses’ perception
and helpful to a clear understanding of what happened during the intubation.

       In arguing that this evidence was properly excluded, the defendants assert that
“opinions regarding the force exerted and the resistance encountered by Dr. Cerza were
expert opinions that a nurse and a scrub technologist are not qualified to offer.” They go on
to cite the Medical Malpractice Act, which requires expert testimony to establish the
applicable standard of care, breach of the standard of care, and causation. Tenn. Code Ann.
§ 29-26-115(a), (b). Tenn. R. Evid. 701 does “not authorize lay testimony on subjects that
require special skill or knowledge outside the realm of common experience.” Neil P. Cohen,
Sarah Y. Sheppeard & Donald F. Paine, T ENN. L AW OF E VID. § 7.01[4][b]. The excluded
testimony does not, however, establish the applicable standard of care, breach of that

                                             -5-
standard, or causation. The testimony at issue describes what happened in the operating
room; it does not indicate whether Dr. Cerza acted properly or not. There is a distinction
between the amount of force applied and whether that force was excessive or appropriate;
lay opinion is proper as to the former, but not as to the latter. If a lay witness testified that
Dr. Cerza applied “excessive” or “improper” force, that testimony would properly be
excluded.

        Two cases, are discussed by the parties. In State v. Brown, 836 S.W.2d 530 (Tenn.
1992), a murder case, the court determined that the trial court properly allowed a nurse who
helped treat the victim to testify as a lay witness that one of the victim’s injuries looked like
a cigarette burn. Id. at 550. Brown was decided prior to the 1996 amendment to Tenn. R.
Evid. 701.2 According to the general rule applicable at that time, a non-expert witness had
to confine her testimony “to a narration of the facts based on first-hand knowledge and avoid
stating mere personal opinions or their conclusions or opinions regarding the facts about
which they have testified.” Id. An exception was recognized where opinion testimony
“describes the witness’s observations in the only way in which they can be clearly described,
such as testimony that a footprint in snow looked like someone had slipped or that a
substance appeared to be blood..” Id. (citations omitted). Although the standard now
embodied in Tenn. R. Evid. 701(a) is less restrictive, we do not consider the result in Brown
to be inconsistent with the admission of the evidence at issue in the present case. Ms. Poe
and Mr. Brock could not adequately describe Dr. Cerza’s actions without describing the
degree of force they saw him use, just as a car accident witness might describe the speed at
which a car was traveling.

       By contrast, the court in Brown found error in the trial court’s admission of a
paramedic’s testimony concerning the cause of the victim’s bruises and the length of time
it would take for such bruises to develop. Id. at 549-50. The court reasoned that the
paramedic’s testimony “called for specialized skill or expertise” and should not have been
permitted. Id. at 550. In the present case, the witnesses’ description of the amount of force
applied by Dr. Cerza did not require special skill or expertise. As the defendants assert, “it
is a matter of medical judgment how much force to exert and what is an expected amount of
resistance to encounter.” These witnesses did not, however, testify about what amount of
force was proper or what amount of resistance would be expected. Rather, the excluded
testimony merely describes what they saw–i.e., that Dr. Cerza introduced the tube forcefully
and appeared to meet resistance.




        2
         Prior to the 1996 amendment, Rule 701 precluded lay opinion if the witness could substitute facts
for opinion. Tenn. R. Evid. 701 cmt.

                                                   -6-
        In the second case, State v. Wallace, No. M1999-02187-CCA-R3-CD, 2001 WL
208511, at *3-4 (Tenn. Crim. App. Mar. 1, 2001), the trial court allowed a police officer who
participated in a raid on the defendant’s home to testify that the quantity of drugs seized was
“in the top five percent” of the amounts from their seizures from crack houses. Applying
Tenn. R. Evid. 701(a), the appellate court reasoned that the testimony was rationally based
on the officer’s perception since he was present at the raid and compared the amount to other
crack houses he had raided. Id. at *5. The court further reasoned that the testimony at issue
was helpful to a clear understanding of the officer’s testimony because it would allow the
jury to assess whether the defendant intended to sell the cocaine or keep it for personal use.
Id. The court therefore found no error in the admission of the evidence. We see no conflict
between Wallace and our conclusion in the present case.

      From the language used by the trial court in making its rulings and from the rulings
themselves, it appears to this court that the trial court did not apply the proper standards,
which are found in Tenn. R. Evid. 701. We, therefore, conclude that the trial court erred.

       Pursuant to Tenn. R. App. P. 36(b), the erroneous exclusion of evidence does not
require reversal of the judgment unless “error involving a substantial right more probably
than not affected the judgment or would result in prejudice to the judicial process.” See also
Tenn. R. Evid. 103(a); White, 21 S.W.3d at 223. We must, therefore, determine whether the
erroneous exclusion of the evidence at issue was harmless or prejudicial to the plaintiff’s
case.

       Looking at the evidence heard by the jury, in particular the testimony of Mr. Brock
and of the plaintiff’s expert, Dr. Doblar, we have concluded that the exclusion of the
evidence probably did not affect the outcome of the case. Despite the trial court’s exclusion
of some of his testimony, Mr. Brock was able to testify that Dr. Cerza’s hands turned white,
that he grunted, and that he appeared to use an unusually high degree of force to push the
tube into Ms. Hensley’s throat:

       Q. The best you can, describe for the jury what you saw as Dr. Cerza was
       intubating her.

       A. He was lifting back on the jaw, like you do when you normally intubate,
       and he was inserting the tube, but as he was inserting the tube, he seemed to–
       ....
       He’s tilting back, and he’s inserting the tube like you normally do. And–but
       this time his hand seemed to be a little bit white from where he’s pushing more
       than normal when intubating somebody, and then inserted it through.
       ....

                                              -7-
       Q. Can you describe what it [the tube] did?

       A. As he’s inserting, he comes to a stopping point, for some reason, and then
       pushed down more.
       ....
       Q. Could you tell me in more detail what you are talking about [regarding Dr.
       Cerza’s hands]?

       A. Well, his fingertips and hands seemed to get white more than what they
       should have when you’re inserting a tube.

       [Objection sustained as to second part of the response.]

       Q. If you would, don’t talk about what he should have. You can go ahead and
       continue.

       A. His hands turned white and pushed it down more.

       Q. Did you hear Dr. Cerza–did you hear any sounds?

       A. There was a grunting sound.

       Q. Where did it come from?

       A. From Dr. Cerza.

       Q. How did the time of that sound compare with what you noticed about his
       hands?

       A. They were white at the same time.

This testimony gave the jury a picture of Dr. Cerza using force when inserting the tube into
Ms. Hensley’s throat.

      In addition, Dr. Doblar, the plaintiff’s expert witness, testified that Dr. Cerza used too
much force and met an unusual amount of resistance when inserting the double lumen tube
into Ms. Hensley’s throat. Dr. Doblar stated:

       Based on review of the scans and reading deposition testimony and of all the
       people involved, knowing what Dr. [Lawrence] said about the small trachea

                                              -8-
       and knowing Ms. Hensley’s size and the size of the double lumen tube that
       was used, Dr. Cerza applied too much force to the breathing tube. When he
       met resistance part way down, instead of stopping, taking the tube out, breathe
       for the patient with a mask, or put a single breathing tube in and breathe for the
       patient with that while they called Dr. Wilson for help. He continued to push
       on the endotracheal tube and that resulted in a laceration of virtually the entire
       length of the trachea.

       Given the testimony heard by the jury, we conclude that the trial court’s erroneous
exclusion of testimony of Ms. Poe and Mr. Brock probably did not affect the outcome of the
case.

                                    C LOSING A RGUMENTS

       Ms. Hensley also asserts that the trial court erred in prohibiting plaintiff’s counsel
from arguing reasonable inferences from the evidence in closing arguments. In specific, Ms.
Hensley assigns error to the trial court’s exclusion of statements by plaintiff’s counsel
characterizing Mr. Brock’s testimony as “indicating that Dr. Cerza encountered resistance”
and “that Dr. Cerza forced it [the double lumen tube] through.”

       A trial court generally has “broad discretion as to what shall and shall not be permitted
in argument.” McCrory v. Tribble, No. W2009-00792-COA-R3-CV, 2010 WL 1610587, at
*6 (Tenn. Ct. App. Apr. 22, 2010) (quoting Davis v. Hall, 920 S.W.2d 213, 217 (Tenn. Ct.
App. 1995)). We review these decisions under the abuse of discretion standard. Id.

        In making their closing arguments, attorneys are generally confined to “the facts and
evidence in the record and any reasonable inferences therefrom.” Id. For the reasons
discussed above with respect to the trial court’s exclusion of portions of the testimony of Ms.
Poe and Mr. Brock, we must conclude that the trial court erred in restricting the argument of
plaintiff’s counsel with respect to the reasonable inferences that could be drawn from the
evidence as to the forcefulness applied by Dr. Cerza. We further conclude, however, that this
error was not significant since similar arguments were allowed. For example, plaintiff’s
counsel made the following statements during closing arguments:

       We know from the evidence that it clearly established that Dr. Cerza used too
       much force in intubating Mrs. Hensley. I am going to give you several reasons
       and then I’m going to go and analyze every one of those reasons.
       ....
       Let’s talk about the first reason. It’s obvious that [Dr. Cerza] would have had
       to encounter unusual resistance. The tube was too big for the trachea.

                                              -9-
       Everyone agrees that that’s the case. Dr. Cerza admitted that if you meet
       unexpected resistance, you should stop. Dr. Doblar and Dr. Woodruff said the
       same thing.
       ....
       [Mr. Brock] testified that what he saw was Dr. Cerza insert the tube, stopped,
       his hand turned white, he grunted, and he pushed more. [Nurse] Samples
       testified that he saw Dr. Cerza push the tube all the way down until the Y was
       in Mrs. Hensley’s mouth. And you saw the length of that tube and you saw the
       size of Mrs. Hensley and you saw the demonstration that Dr. Doblar did with
       respect to that and how you can’t do that without forcing it and tearing
       something really bad.

       While the trial court erred in limiting plaintiff’s counsel’s argument, we believe this
error probably did not affect the judgment and therefore consider it harmless.

                               S COPE OF E XPERT T ESTIMONY

       Ms. Hensley argues that the trial court erred in allowing testimony from the
defendants’ experts that was not included in their expert witness disclosures, in violation of
an agreed order regarding the scope of expert witness testimony. The agreed order states, in
pertinent part: “Expert witness testimony shall be limited to the scope of the parties’ Rule
26.02(4)(A)(i) disclosures and discovery depositions.”

       We review a trial court’s decisions regarding the admission or exclusion of evidence
under an abuse of discretion standard. Brown, 181 S.W.3d at 274; Mercer, 134 S.W.3d at
131. Ms. Hensley argues that the trial court erred in failing to exclude the evidence as a
discovery sanction for the defendants’ purported failure to abide by the agreed order. Even
if we view the issue in that light, however, the appropriate standard of review is abuse of
discretion. See Buckner v. Hassell, 44 S.W.3d 78, 83 (Tenn. Ct. App. 2000). Ms. Hensley
offers no authority, and we know of none, for her assertion that the determination of whether
the defendants violated the agreed order is a question of law and thus should be subject to
de novo review.

       Ms. Hensley specifically objects to the trial court’s admission of testimony regarding
two topics: Dr. Cotten’s and Dr. Woodruff’s testimony that Ms. Hensley’s trachea was
unusually narrow, and Dr. Grimball’s testimony about the theory that Ms. Hensley’s trachea
tissue “unzipped” when Dr. Cerza advanced the double lumen tube with an appropriate
amount of force.




                                             -10-
       As their first line of defense, the defendants argue that Ms. Hensley waived these
objections by her failure to raise them in a timely manner. A party must raise a timely and
specific objection to the introduction of evidence in order to preserve the issue for purposes
of appeal. Tenn. R. Evid. 103(a)(1); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn.
Ct. App. 1999). The defendants argue that since no objection to the testimony regarding the
narrowness of Ms. Hensley’s trachea and the unzipping theory was raised when it was first
presented to the jury in opening arguments, she waived her right to object on appeal. We
find this argument unconvincing since Ms. Hensley’s objection was not to the opening
arguments themselves but to anticipated testimony described therein by the defendants.

        Ms. Hensley brought up her objection regarding the anticipated testimony on trachea
narrowing prior to Dr. Cotten’s and Dr. Woodruff’s testifying. As to the unzipping theory,
however, we find no objection by Ms. Hensley to that testimony. In describing to the court
its proposed rebuttal testimony by Dr. Doblar, plaintiff’s counsel stated: “We’re going to ask
about Dr. Grimball’s theory, which was not disclosed to us, about that you can poke a hole
in the trachea and it will unzip.” This statement occurred after Dr. Grimball had testified and
does not constitute an objection. In an attempt to justify her failure to object, Ms. Hensley
asserts that, in light of the court’s ruling on her initial objection (regarding the trachea size
testimony), any other objections would have been futile. We disagree with this analysis
because, with respect to each topic of testimony–i.e., the size of the trachea and the unzipping
theory, the trial court would have to make a separate determination as to whether the
testimony was within the scope of the expert witness disclosure. Since no objection was
raised, the trial court was never asked to make such a determination with respect to the
unzipping theory. We deem that objection waived.

       We now proceed to address the substance of Ms. Hensley’s assignment of error
regarding the trial court’s admission of testimony on the narrowness of the trachea.3 Dr.
Cerza’s expert witness disclosure, filed on July 25, 2009, regarding Dr. Cotten, a radiologist,
contains the following statements:

        Dr. Cotten will address issues regarding causation. Dr. Cotten will discuss the
        size of the goiter and the images taken of Ms. Hensley.




        3
         Ms. Hensley did not depose either Dr. Cotten or Dr. Woodruff. As Ms. Hensley emphasizes, the
parties were required to disclose all expert witnesses and the opinions to which they would testify and to
supplement those disclosures with any relevant changes. Tenn. R. Civ. P. 26. We disagree, however, with
her suggestion that, by choosing not to depose these witnesses, she restricted the scope of their testimony.


                                                   -11-
              Dr. Cotten is prepared to testify that the anesthesia preoperative
       evaluation indicates that Dr. Cerza was aware of the thyroid mass. He concurs
       with the testimony of Dr. Wilson that the deviation of the trachea was slight.
       Further, the size of the trachea appears normal. Accordingly, it is Dr. Cotten’s
       expert opinion that, as a radiologist, he would not have characterized the size
       of Ms. Hensley’s goiter or the degree of deviation of Ms. Hensley’s trachea as
       preclusive of intubation.

The disclosure on Dr. Woodruff, an anesthesiologist, includes the following pertinent
description:

       Ms. Hensley had a C.T. scan ordered by her referring physician Dr. Lawrence,
       who is a specialist in ear, nose and throat. Neither Dr. Lawrence’s nor the
       radiologist’s review of that imaging study indicated that there was a significant
       displacement of the trachea or that the trachea itself was smaller than normal.
       . . . There does not appear to be anything from the imaging studies, medical
       records or visual examination of the airway by Dr. Cerza that would have
       contraindicated the plan to use a double lumen tube for surgery.

        Prior to Dr. Woodruff’s and Dr. Cotten’s taking the stand, Ms. Hensley objected to
testimony described in Dr. Cerza’s opening statement indicating that, according to
measurements not usually performed by radiologists, Ms. Hensley’s trachea was unusually
narrow. After the trial court overruled Ms. Hensley’s objection, Dr. Cotten initially testified,
based on CT imaging from February 26, 2004, that he considered the deviation of Ms.
Hensley’s trachea to be “minimal or mild,” that he did not find anything that would preclude
intubation, and that he did not see any significant tracheal narrowing. Based upon one of the
CT images that included measurement markings, Dr. Cotten was asked to tell the diameter
of the trachea, and he answered that it was 11 millimeters. On cross-examination, Dr. Cotten
gave the following testimony:

       Q. And I think you said that the reports appropriately didn’t report tracheal
       narrowing because there wasn’t significant tracheal narrowing.

       A. Yes, sir.

       Q. And would it be fair to say that the size of the trachea appears normal?

       A. I would probably not use those words. I would say that the size of the
       trachea is not narrowed, and I know that’s sort of–no, that’s not what I would
       say, I’m sorry. Is the size of the trachea normal?

                                              -12-
       Q. Does it appear normal, I should say.

       A. I would have to say on first reading of the report that it did appear
       essentially normal, but retrospectively looking back at the films, knowing what
       was coming up, if you look at it, it is a little narrowed.

       Q. All right. So just to be clear, are you saying that it does appear normal, or
       it doesn’t?

       A. Well, I’m saying that on initial viewing of it, if I was reading that
       examination in a stack of 30 CT exams, that I would not have commented on
       the trachea being narrowed, but if you measure it, it measures 11 millimeters
       across.

       Q. Would that be normal?

       A. It is–well, there is a large range of normal, depending on how old you are
       and your physical condition and if you have COPD, so that would be–I don’t
       think the trachea is normal.

       Dr. Woodruff was the next witness. He testified as follows:

       Q. Will any size double lumen tube fit through 11 millimeters of space?

       A. No. A 35 left double lumen tube has 12 millimeters and a 37 would be
       12.6 millimeter diameter. So if you took that tube right there and you cut it,
       and I got a ruler here, you can measure, and it’s going to have 12 and 12.6
       across, neither of those tubes is going to make it in there.

       Q. Even if Dr. Cerza had chosen the smallest tube available on the market in
       March of ‘04, this trachea had narrowed to the extent that the tube would not
       fit in it?

       A. It’s a millimeter too big.

       When read together, the testimony of Dr. Cotten and Dr. Woodruff support Dr.
Cerza’s theory that the tube was too large for Ms. Hensley’s trachea. Their expert
disclosures, however, state that the size of Ms. Hensley’s trachea appeared normal and there
seemed to be no contraindication to intubation. Tenn. R. Civ. P. 26.02(4) addresses
discovery of the opinions of experts. Through interrogatories, a party is entitled to require

                                             -13-
the other party to identify any expert the other party expects to call as a witness, “to state the
subject matter on which the expert is expected to testify, and to state the substance of the
facts and opinions to which the expert is expected to testify and a summary of the grounds
for each opinion.” Tenn. R. Civ. P. 26.02(4)(A)(i). A party has a duty to supplement
discovery responses with respect to “the subject matter on which the [expert witness] is
expected to testify, and the substance of that testimony.” Tenn. R. Civ. P. 26.05(1). The
expert witness disclosures at issue supplemented Dr. Cerza’s interrogatory responses. Dr.
Cerza did not, however, supplement the expert witness disclosures to include the new facts
and opinion reflected in Dr. Cotten’s testimony concerning the narrowness of Ms. Hensley’s
trachea. We have concluded that the trial court erred in finding this testimony to be within
the scope of the disclosure.

        We must proceed to determine whether this error “more probably than not affected
the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).
Ms. Hensley’s argument is that she was prejudiced because although she had “notice of most
of the facts underlying the undisclosed opinions, she did not have notice of the expert
witnesses’ interpretations of those facts.” Thus, she asserts that she was prejudiced because
she was not aware that Dr. Cotten would opine that Ms. Hensley’s trachea was unusually
narrow, so narrow that the introduction of a double lumen tube would inevitably result in
injury. (Because Dr. Cerza was not aware of this fact, the defense theory goes, he was not
at fault.)

       In evaluating the effect of the trial court’s admission of the testimony at issue, we find
certain evidence to be of particular significance. The deposition testimony of Dr. Lewis
Wilson, the cardiovascular surgeon who performed emergency surgery to repair the tracheal
tear, was read to the jury at trial. In his deposition, Dr. Wilson stated:

       [W]hen we look back at the films, it was clear that her trachea was smaller
       than you would expect for somebody her age and size, adult. And, of course,
       we tried to use an endobronchial tube which is bigger than our regular
       endotracheal tube. So in retrospect, for this patient, this probably was not the
       best tube.

This testimony gave Ms. Hensley notice that the size of her trachea was a potential issue in
the case. Dr. Doblar, plaintiff’s expert anesthesiologist, gave the following testimony (prior
to the defendant’s experts testifying) as to why he changed his opinion regarding whether Dr.
Cerza had deviated from the standard of care:

       Based on review of the scans and reading deposition testimony and of all the
       people involved, knowing what Dr. [Lawrence] said about the small trachea

                                              -14-
        and knowing Ms. Hensley’s size and the size of the double lumen tube that
        was used, Dr. Cerza applied too much force to the breathing tube.

Moreover, after the testimony from Dr. Cotten and Dr. Woodruff came in, Ms. Hensley put
on rebuttal testimony from Dr. Doblar to the effect that, if the patient’s trachea were
narrowed to the extent stated by Dr. Cotten, Dr. Cerza would have encountered more than
normal resistance when he attempted to introduce the double lumen tube and, in order to
insert the tube, would have had to use too much force.

        Looking at all of the evidence considered by the jury, we cannot conclude that the
error in admission of evidence more probably than not affected the outcome.

                           D ISMISSAL OF N EGLIGENT R ETENTION C LAIM

        The initial issue to be addressed with respect to the negligent retention claim is
whether Ms. Hensley filed a timely notice of appeal. The trial court granted the defendants’
motion for partial summary judgment and dismissed the negligent retention claim on March
9, 2009. The case proceeded to trial before a jury, and the court entered judgment on April
13, 2009. Ms. Hensley filed a motion for a new trial, which was denied by the trial court on
August 31, 2009. The defendants argue that the negligent retention claim was not decided
by the jury and was not a proper subject to be addressed in the motion for new trial. Rather,
they argue, the judgment on the negligent retention claim became final on April 13, 2009,
and the notice of appeal was due within 30 days, by May 13, 2009.

       As the defendants emphasize, this court lacks subject matter jurisdiction over a case
in which the appellant fails to timely file a notice of appeal. Ball v. McDowell, 288 S.W.3d
833, 836 (Tenn. 2009). Pursuant to Tenn. R. App. P. 4(a), a notice of appeal with regard to
an appeal as of right “shall be filed with and received by the clerk of the trial court within 30
days after the date of entry of the judgment appealed from.” If a party files certain motions,
including a motion for new trial, “the time for appeal for all parties shall run from the entry
of the order denying a new trial or granting or denying any other such motion.” Tenn. R.
App. P. 4(b). Citing Tenn. R. Civ. P. 59.07,4 the defendants argue that the trial court could
not properly grant a motion for new trial regarding the negligent retention claim, and
therefore, with respect to that claim only, the notice of appeal was due 30 days from the April
13, 2009 judgment. We cannot agree with the defendants’ interpretation of the rules
governing the timely filing of an appeal.



        4
        Tenn. R. Civ. P. 59.07 states: “A new trial may be granted ... on all or part of the issues in an action
in which there has been a trial by jury . . . .”

                                                     -15-
        The defendants’ interpretation conflicts with the language of Tenn. R. App. P. 4(b),
which does not distinguish between issues subject to the post-trial motion and those that are
not. Tenn. R. App. P. 4(b) operates to “suspend[ ] the operation of the thirty-day rule while
certain timely filed post-trial motions are pending with the trial court.” Gerakios v. Gerakios,
No. M2009-01309-COA-R3-CV, 2010 WL 2612684, at *1 (Tenn. Ct. App. June 30, 2010).
In Evans v. Wilson, 776 S.W.2d 939 (Tenn. 1989), the plaintiffs filed several motions
encompassed in the tolling provisions of Tenn. R. App. P. 4(b). Id. at 941. The trial court
had ruled on some of these motions but not on the motion for new trial. Id. In dismissing
the appeal, our Supreme Court cited the comments to Tenn. R. App. P 4(b), which state in
pertinent part:

       These tolling provisions may unduly lengthen litigation if such motions are not
       ruled on promptly by the trial court. However, unless these motions are
       abolished, it would be undesirable to proceed with the appeal while the trial
       court has before it a motion the granting of which would vacate or alter the
       judgment appealed from, and which might affect either the availability of or
       the decision whether to seek appellate review.

Id. at 942. The Supreme Court concluded that as “long as such a motion [specified in Tenn.
R. App. P. 4(b)] is pending, there is no final judgment for purposes of T.R.A.P. 3(a).” Id.
Citing the problem of piecemeal appeals and lack of certainty if it were to hold otherwise,
the Supreme Court held that “the time for appeal does not begin to run until the trial court
has disposed of all the timely filed motions specified in Rule 4(b).” Id. While the present
case does not involve multiple motions, the same policy considerations are applicable with
respect to claims not encompassed in a motion for a new trial. The trial court’s granting of
the defendants’ motion for partial summary judgment was not final until the motion for new
trial was resolved.

       We conclude that Ms. Hensley’s notice of appeal was timely filed with respect to all
claims, including the negligent retention claim.

        Ms. Hensley’s complaint includes a claim against CAS for negligent retention. Under
this theory, she asserts that CAS “breached its duty to Plaintiff by retaining Defendant Cerza
and by making him available to perform anesthesiology services for Plaintiff.” The
defendants moved for partial summary judgment on this claim, and the trial court granted the
motion and dismissed the claim. While the trial court’s order does not specify the reasons
for this ruling, the defendants argue on appeal that there was no claim for negligent retention,
as a matter or law because Dr. Cerza was not an employee or independent contractor of CAS.
We need not, however, resolve this question. Even if Ms. Hensley could have made a proper
claim for negligent retention under the facts of this case, the issue is now moot because the

                                              -16-
trial resulted in a judgment in favor of the defendants.5 There is, therefore, no basis for a
claim for negligent retention.

                                              C ONCLUSION

      The judgment of the trial court is affirmed. The costs of appeal are taxed against Ms.
Hensley, and execution may issue if necessary.


                                                          _________________________________
                                                          ANDY D. BENNETT, JUDGE




        5
         As the defendants conceded at oral argument, their issues regarding the denial of their motions for
a directed verdict are also moot.

                                                   -17-
