                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                    July 8, 2010 Session

       CATHY L. CHAPMAN, ET AL. v. JAMES V. LEWIS, M.D., ET AL.

                   Appeal from the Law Court for Sullivan County
             Nos. C34112(L) and C36405(L)     E. G. Moody, Chancellor


                No. E2009-01496-COA-R9-CV - FILED JULY 28, 2010


On April 10, 2000, William D. Chapman, II (“the Deceased”) was involved in a motor
vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and
Medical Center in Kingsport where he came under the care of trauma surgeons, the
defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other
physicians and medical personnel. The plaintiff, Cathy L. Chapman, brought this wrongful
death action against the defendants based upon her allegation that they were guilty of medical
malpractice in the treatment of her husband; she claims that their malpractice caused the
death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008,
counsel for the parties made their closing arguments. During the defense’s argument,
counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen
what purported to be the Q. and A. trial testimony of the plaintiff’s medical expert, Dr. Philip
Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict
in favor of both defendants. Later, the trial court, acting on the plaintiff’s motion, reversed
itself and held that the defendants failed to lay a proper foundation for the use of the
projected testimony. The court also pointed out that the defendants failed to give the plaintiff
prior notice of their intention to use portions of the trial transcript in closing argument. As
a consequence, the court granted the plaintiff a new trial. The defendants appeal. We
reverse the trial court’s grant of a new trial and reinstate the court’s judgment in favor of the
defendants.

        Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Law Court
          Reversed; Judgment for Defendants Reinstated; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Charles T. Herndon, IV, Johnson City, Tennessee, for the appellant, James V. Lewis, M.D.
Jeffrey M. Ward, Greeneville, Tennessee, for the appellant, George M. Testerman, Jr., M.D.

Richard L. Duncan, Knoxville, Tennessee, and John Bandeian, Bristol, Tennessee, for the
appellee, Cathy L. Chapman.

                                                OPINION

                                                      I.

       During closing argument, both sides used a “power point” presentation by projecting
material on a video screen using what is known as an “electronic visual evidence projector.” 1
Without objection, one of the plaintiff’s attorneys during his opening argument projected
exhibits introduced at trial, i.e., the autopsy report and a gastric drug screen, as well as script
representing his recollection of portions of the trial testimony of various medical witnesses.
In his presentation, counsel did not utilize and project any of the verbatim Q. and A. trial
testimony.

        When Mr. Ward, attorney for Dr. George M. Testerman, Jr., made his closing
argument, he also chose to project material on the video screen; but his approach was
different from that of the plaintiff’s counsel. Instead of projecting his memory of the
testimony, he projected what purports to be the actual Q. and A. of a witness at trial – the
plaintiff’s medical expert, Dr. Witorsch.

       On appeal, the defendants did not identify and preserve for the record the transcript
pages of Dr. Witorsch’s trial testimony that Mr. Ward projected on the screen during his
closing argument; not did the plaintiff. For the benefit of the reader of this opinion, we have
excerpted those portions of Mr. Ward’s closing argument in which he verbalized specific
questions posed to, and answers from, Dr. Witorsch. Apparently, he was reading to the jury
what was projected on the screen. We also have included other short portions of Mr. Ward’s
argument in order to put the challenged portion in context. The excerpted portions of his
argument are as follows:

                  I submit to you that all the testimony is being recorded. All of
                  it’s here. If [counsel for the plaintiff] wanted to bring you
                  something up that was so critical, so crucial to your decision
                  from Dr. Enderson, he could have brought it up here and put it
                  right here on the screen and said, “There it is. There’s where
                  Dr. Enderson said that Dr. Testerman or Dr. Lewis breached the

       1
           The source of the name of the device is the defendants’ brief.

                                                     -2-
standard of care. There it is right there.” That’s not what he’s
done. What he’s done is tell you what he says that testimony
was.

But let’s look at what the actual proof is . . .

                             *   *     *

When we’re talking about Dr. Testerman and what Dr.
Testerman did and didn’t do, you’ve got to decide whether his
actions breached the standard of care. The only person that has
come in here and told you that something Dr. Testerman did
wrong, that was a breach of the standard of care – the only
person who has said that is Dr. Witorsch.

And if we start talking about Dr. Witorsch, we can talk a long
time, but there are some things that I think are extremely
important. Dr. Witorsch is not a trauma surgeon, not a surgeon
of any type. He doesn’t treat trauma patients. In fact, he was
asked the question, “In fact, you’ve never been the primary
physician to take care of trauma patients? Answer: That’s
correct. Question: The clinic that you talked about that you
worked in, you didn’t take care of trauma patients in that clinic,
did you? Correct. I did not.” Had no training as a trauma
surgeon, no experience as a trauma surgeon, although he told
you that some pulmonologists have critical care expertise, he
doesn’t.

                             *   *     *

The only person saying there’s a deviation from the standard of
care is Dr. Witorsch. And again, let’s look at what Dr.
Witorsch’s knowledge of the standard was for Kingsport. He
was asked the question, “Well, isn’t it true that when you were
deposed on that case that you didn’t even know that Kingsport
was part of the Tri-Cities? I don’t recall. So as of 2003 you
can’t say whether you knew anything about Kingsport or not,
can you? I can’t.” Although Dr. Witorsch admitted that he’s
not a trauma surgeon, admitted that he’s not a cardiologist,
admitted he’s not a pathologist, admitted he’s not an expert with

                                 -3-
respect to SUV’s, admitted he’s not even a[] life expectancy
expert, he came in here and offered opinions on all of those
issues. My question when he said, “Question: You’ve also
offered opinions that relate to cardiologist issues, haven’t you?
Yes. You offered opinions related to neurosurgery issues,
haven’t you? Roughly, yes. You’ve offered opinions relating
to pathology issues, haven’t you? I guess, yes. And you’ve
offered opinions relating to life expectancy issues, haven’t you?
Yes. You’ve even offered opinions relating to SUV’s and the
effect of SUV’s on patients’ injuries in roll-over accidents,
haven’t you? That wasn’t an opinion to a reasonable degree of
medical certainty, but, yes. My question was, but it was one that
you were willing to give to the jury anyway, wasn’t it? Answer:
I was asked a question. I answered it yes. And, in fact, you’re
obviously not a cardiologist?         Correct.     You’re not a
neurosurgeon, are you? Correct. You’re not a trauma surgeon,
are you? Correct. You’re not a pathologist, are you? Correct.

MR. DUNCAN: If your Honor – can we approach?

  [Discussion at Bench Conference Outside Hearing of Jury]

THE COURT: Yes, Sir.

MR. DUNCAN: Your Honor, this is the transcript of the trial
which appears to be improper and to put it up on the screen.

MR. WARD: Your Honor, the plaintiffs were showing portions
of depositions that were used at trial.

MR. DUNCAN: No, they were used at trial and there was no
objection made. You’re using something that was not . . .

MR. WARD: This is Dr. Witorsch’s actual testimony that he
didn’t want the jury to see.

MR. DUNCAN: Your Honor, we haven’t seen a copy of that.
There’s no – if this is the transcript of this trial, it’s improper to
use that. Now if he wants to say this is what he said, that’s fine.



                                 -4-
                  MR. WARD: This is the information that was available to both
                  sides. Either side could have obtained it. Dr. Enderson’s
                  testimony could have been transcribed and used. I’m not doing
                  anything that they didn’t do. And if it was improper, why did
                  they do it?

                  MR. DUNCAN: Your Honor, excuse me. You handled this
                  same issue. You said if it was certified. [Footnote added.]

                  THE COURT: Every case is different. I’m not sure you can do
                  it without laying a foundation.2 How much more do you have to
                  go?

                  MR. WARD: Quite a bit of Dr. Witorsch.

                  THE COURT: I’m going to overrule the objection.

                                    [Bench Conference Concluded]

                  MR. WARD: In discussing all of that Dr. Witorsch also
                  acknowledged, and the question was, “And you don’t have any
                  specific expertise in life expectancy different than any other


       2
           John Bandeian explained this comment in his affidavit filed in the trial court:

                  My name is John Bandeian. I am more than eighteen years of age and I am
                  competent to make this affidavit. I represent the plaintiff, Cathy Chapman
                  in this action.

                  In a medical malpractice suit I tried before Chancellor Moody in November
                  2007, [he] ruled that I could not project for the jury a transcript of actual
                  trial testimony during my closing argument.

                  Page 62 of the transcript of the closing argument in the case at bar contains
                  an omission. On line 21, the Court said “Every case is different. I’m not
                  sure you can do it without laying a foundation.” The Court’s remark about
                  each case being different was in response to my argument that this same
                  Court ruled I could not project a transcript of actual trial testimony during
                  my closing in the Jackson case, he tried last November. My words were
                  not recorded by the court reporter.

(Paragraph numbering omitted.)

                                                      -5-
person might have that reads articles on the aortic valves?
Correct. I think carrying on from there, so when we’re talking
about trauma surgeons practicing in Kingsport and similar
communities, you would acknowledge that you never practiced
medicine in Tennessee? Correct. Never been licensed in
Tennessee? Correct. Never been through an internship or
residency in trauma surgery, have you? Correct. Never been
through any type of internship or residency in surgery, period?
Correct. You don’t have any special training related to trauma
surgery, do you? Correct.

                            *   *     *

We look at Dr. Witorsch’s actual opinions and you’ve heard a
lot about different opinions. You’ve heard a lot about different
things that could or couldn’t be done, but let me focus right now
on Dr. Testerman’s involvement. Dr. Testerman was involved
in three days, the 11th, the 13th and the evening of the 15th.
“Dr. Witorsch ultimately agreed, now on the 11th you’ve
already told the jury no deviation from the standard of care by
Dr. Testerman on the 11th? Correct. You talked a lot about the
13th. You talked about whether to use Coumadin, whether to
use heparin. Ultimately, Dr. Witorsch agreed. No breach by Dr.
Testerman on the 11th. We talked about the 13th. No breach by
Dr. Testerman on the 13th? Correct.”

But on the evening of the 15th, there was no evidence in the
record, no sign or symptom indicated by anyone that this patient
had a clotting problem that required Heparin. And that’s the
only criticism about anticoagulation by Dr. Witorsch relating to
Dr. Testerman, and nobody else agreed with that thought or
theory. The only other thing that Dr. Witorsch was saying on
the evening of the 15th relates to the Lopressor. And again,
when we talk about the Lopressor this was the added theory that
Dr. Witorsch added to his list of theories after he decided that
the record was inaccurate on the initial Code rhythm. It was
initially his opinion and he was asked – at the time of his earlier
testimony, “You told us, Sir, in your professional opinion that
this patient had died of asystole, correct? Answer: Correct. And
that was perfectly consistent with the record, the medical records

                                -6-
                 in this case? Answer: It was. All right. And if that be true,
                 Metoprolol had nothing to do with it? If that was the case that
                 would have been true.”

       As previously noted, the jury returned a verdict for the defendants. The trial court
entered its judgment on the jury’s verdict. The plaintiff filed a motion for a new trial and
later a motion to alter or amend. Prompted by the former motion, the trial court, on
November 10, 2008, entered an order granting the plaintiff a new trial. Thereafter, acting on
the plaintiff’s motion to alter or amend, the court, by “Amended Order” entered March 13,
2009, amended its order granting a new trial by adding the following language to the earlier
order:

                 The Court erred in overruling the objection of the Plaintiff to
                 defense counsel’s projecting some of the trial testimony to the
                 jury, during final argument, on the ground that defense counsel
                 failed to lay a proper foundation and on the ground that the
                 Court’s overruling the Plaintiff’s objection allowed defense
                 counsel to take trial testimony out of context without allowing
                 the Plaintiff to make a timely response since the Plaintiff was
                 not notified in advance that defense counsel was going to project
                 the trial testimony and since the trial testimony was seven days
                 long.

Thereafter, the trial court granted the defendants an interlocutory appeal pursuant to the
provisions of Tenn. R. App. P. 9. We also granted the defendants’ Tenn. R. App. P. 9
application.3

                                                       II.

       The one issue presented by the defendant presents the following question for our
resolution:


        3
          We granted the application after the trial court, in response to the plaintiff’s motion to clarify filed
in that court, confirmed that his new trial grant was based solely on the closing argument “error.” The trial
court expressly stated its approval of the jury’s verdict in its role as the 13th juror:

                 When initially reviewing the Motion for New Trial, the Court made an
                 independent review of the evidence and weighed the evidence. The Court
                 did not find that the weight of the evidence preponderated against the jury’s
                 verdict. Thus, in its role as the Thirteenth Juror, the Court approved of the
                 jury’s verdict.

                                                       -7-
               Did the trial court err when it granted a new trial on the basis
               that the court improperly allowed defense counsel to project
               portions of trial testimony during closing argument without
               establishing a proper foundation or providing prior notice to the
               plaintiff?

Simply put, the plaintiff argues that if a party chooses to project actual trial testimony on a
video screen during that party’s closing argument to the jury, it must first advise the other
party as to the portions of the testimony it intends to use.

                                              III.

       After the trial in the present case, a panel of this Court addressed the precise issue now
before us. See Stanfield v. Neblett, No. W2009-01891-COA-R3-CV, 2010 WL 2219660
(Tenn. Ct. App. W.S. filed July 23, 2010). Stanfield is also a medical malpractice case. It
involves the use of an unauthenticated transcript under virtually identical circumstances as
those in the instant case. As in the present case, the plaintiff in Stanfield objected when
defense counsel during her closing remarks sought to project onto a screen a portion of the
yet-to-be certified transcript. The trial court overruled the objection and counsel continued
her presentation.

       On appeal, the Stanfield Court first noted the standard of review applicable to
questions concerning closing arguments:

               Closing argument is a crucial component of any jury trial.
               McCrory v. Tribble, No. W2009-00792-COA-R3-CV, 2010
               Tenn. App. LEXIS 282, 2010 WL 1610857, * 6 (Tenn. Ct. App.
               April 22, 2010). Closing arguments allow counsel to present
               their theory of the case and to point out strengths and
               weaknesses in the evidence. [C]ounsel is generally given wide
               latitude during closing argument, and the trial court is granted
               wide discretion in controlling closing arguments. Anderson v.
               State, No. E2008-00439-CCA-R3-PC, 2009 Tenn. Crim. App.
               LEXIS 657, 2009 WL 2474673, *6 (Tenn. Crim App. Aug. 13,
               2009). As with all other arguments by counsel, this Court
               reviews the trial court’s decisions on closing arguments under
               an abuse of discretion standard. Perkins v. Sadler, 826 S.W.2d
               439, 442 (Tenn. Ct. App. 1991).

Id. at * 16.

                                               -8-
       In Stanfield, the plaintiff first generally asserted that “counsel should not be allowed
to display unauthenticated portions of the trial transcript to the jury during closing
arguments.” Id. This Court disagreed, noting that the plaintiff had presented no authority
in support of her position and the court had found none. Id. Moreover, although the plaintiff
correctly argued that a party may not use inadmissible evidence during its closing argument,
we observed that “there is no indication in the record that the testimony presented by
[defense] counsel was inadmissible testimony.” Id. The same is true in the present case.

       In concluding that the trial court did not err in allowing counsel to display portions of
the unofficial trial transcript during closing argument, the Stanfield Court stated:

              It is well established that there is nothing wrong with reminding
              the jury of the testimony of various witnesses in closing
              argument. Perkins v. Sadler, 826 S.W.2d at 442. “[C]ertainly in
              closing argument one can properly utilize a summation of trial
              testimony, and it should not be improper for this to be done in
              a question [and] answer form.” Id. This is exactly what [defense
              counsel] was attempting to accomplish. She displayed portions
              of the trial transcript to the jury in order to remind them of the
              testimony given. She chose portions of the testimony to
              emphasize the strengths of [the defendant’s] theory of the case,
              and the weaknesses of [the plaintiff’s] theory. Counsel for [the
              plaintiff] similarly reminded the jury of certain portions of the
              testimony given in his closing argument and rebuttal for the
              same purpose. He, however, chose not to display the portions of
              the testimony that he viewed as important to his case and
              argument. We have found no authority to indicate that counsel
              should not be able to display portions of the transcript to the jury
              during closing arguments. In fact, Tennessee Code Annotated §
              20-9-303 provides:

                      In the trial of any civil suit, counsel for either
                      party shall be permitted to use a blackboard,
                      model or similar device, also any picture, plat or
                      exhibit introduced in evidence, in connection with
                      counsel’s argument to the jury for the purposes of
                      illustrating the counsel’s contentions with respect
                      to the issues that are to be decided by the jury,
                      provided, that counsel shall not, in writing,



                                              -9-
                       present any argument that could not be properly
                       made orally.

Stanfield, 2010 WL 2219660 at *16-17. We concluded in Stanfield that defense counsel’s
use of the transcript fell within the realm of permissible argument: “Counsel . . . was acting
within the provisions of this statute. She displayed portions of the trial transcript in order to
make the same arguments she would have been allowed to make orally.” Id. at * 17.

        Lastly, the Stanfield Court considered the plaintiff’s argument that it was impossible
to know whether the portion of the transcript displayed for the jury was accurate because, as
in the present case, there was no showing that the transcript had been authenticated or
certified by the court reporter. Based on the appellate record in Stanfield, we could not
discern what was shown to the jury versus what was orally stated by counsel. Nonetheless,
absent any showing that the plaintiff was prejudiced as a result of an inaccurate or
unauthenticated transcript, the Stanfield Court concluded that there was no abuse of
discretion in permitting counsel’s use of the transcript in her summation:

               Both sides concede that what was displayed was obtained
               directly from the court reporter. Moreover, counsel for [the
               plaintiff] was present when portions of the transcript were
               displayed to the jury. At no point did he object to what was
               being displayed or indicate on the record that he believed the
               transcript was inaccurate. Further, Rule 6 of the Court of
               Appeals requires [the plaintiff] to provide citations to the record
               as to where an alleged prejudice is recorded. [The plaintiff’s]
               brief provides no such citations to support her argument that the
               transcript shown was inaccurate or that she was prejudiced
               because the transcript had not yet been certified. Accordingly,
               we cannot find that she was prejudiced by [the defendant’s] use
               of portions of the transcript during his counsel's closing
               argument.

Id. Similarly, in the present case, the plaintiff at trial essentially objected to the method by
which defense counsel sought to present his closing argument. The plaintiff, however, has
not been able to show that the testimony displayed to the jury was less than fully accurate.

       In our view, the reasoning employed by the Stanfield Court is sound and is applicable
to the present case. Obviously, the trial court did not have the benefit of the Stanfield
decision when it considered the plaintiff’s arguments on her post-trial motions and thereafter
reversed its earlier ruling. In short, however, we think that the trial court “got it right” at trial

                                                -10-
when it permitted the use of the transcript during defense counsel’s closing argument. We
find pertinent our concluding remarks in Stanfield regarding this issue:

              Closing arguments are a tool used by counsel to summarize their
              theory of the case, to remind the jury of the evidence supporting
              their theory, and also to point out weaknesses in the opposing
              counsel’s argument. Often when doing so, counsel will remind
              the jury of a portion of a witness’ testimony that favors their
              case and not point out testimony that favors the opposing party.
              Opposing counsel has the opportunity in his or her closing
              argument or rebuttal to point out testimony that was not
              mentioned and make his or her argument accordingly. The fact
              that the testimony was displayed instead of merely read or
              paraphrased does not change what counsel is allowed to state in
              closing arguments.

Id.

        In the case before us, the plaintiff has not argued, demonstrated, or even alleged that
the Q. and A. transcript was not the testimony of Dr. Witorsch given during this eight-day
trial nor has she argued, demonstrated or alleged that the projected testimony was not
accurate. Under these circumstances, we do not find any error in defense counsel’s use of
the projected testimony at trial. Accordingly, we conclude that the trial court abused its
discretion when it ruled to the contrary and granted the plaintiff’s post-trial motions.

       We firmly believe, following the lead of Stanfield, that the trial court erred when it
granted a new trial based upon its conclusion that it was improper to use Q. and A. trial
testimony in closing argument without laying a proper foundation or giving prior notice to
adversary counsel of counsel’s intention to do so. However, assuming, for the purpose of
argument, that the trial court was correct in its holding that defense counsel’s use of the Q.
and A. trial testimony was improper, we do not believe that this particular part of his
argument was such as to be an “error involving a substantial right [that] more probably than
not affected the judgment.” Tenn. R. App. P. 36(b). In other words, considering the record
as a whole, any such error would be harmless and not warrant the granting of a new trial.

                                              IV.

       The judgment of the trial court granting the plaintiff a new trial is hereby reversed and
the judgment of the trial court in favor of the defendants based upon the jury’s verdict is
hereby reinstated. Costs on appeal are taxed to the appellee, Cathy L. Chapman. Case

                                              -11-
remanded to the trial court, pursuant to applicable law, for the collection of costs assessed
below.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




                                            -12-
