                                                                                       08/29/2018




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                May 23, 2018 Session

              VALLAREE GOODWIN v. KEBEDE G. HANEBIS

                Appeal from the Circuit Court for Davidson County
                    No. 15C3351 Joseph P. Binkley, Jr., Judge
                    ___________________________________

                          No. M2017-01689-COA-R3-CV
                      ___________________________________


This is an appeal from a judgment entered on a jury verdict. The case arises from a
motor vehicle accident. The jury returned a verdict in favor of Appellee, and the trial
court entered a final judgment for $68,995.02. Because the trial court erred in excluding
relevant medical records, we reverse the judgment and remand for a new jury trial.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S. and ARNOLD B. GOLDIN, J., joined.

Nathan E. Shelby and Jennifer Vallor Ivy, Nashville, Tennessee, for the appellant,
Kebede G. Hanebis.

Susan Neal Williams, Nashville, Tennessee, for the appellee, Vallaree Goodwin.


                                       OPINION

                                  I.     Background

       In September 2015, Valleree Goodwin (“Appellee”) filed a lawsuit against Kebede
Hanabis (“Appellant”). The complaint alleged that Appellant was negligent in operating
his minivan and caused an accident resulting in injuries to Ms. Goodwin. The case
ultimately proceeded to trial before a jury. The jury returned a verdict in favor of
Appellee totaling $70,000. The jury awarded the following damages:
Medical Expenses                                         $12,180.56
Lost Wages                                               $10,234.03
Physical Pain & Mental Suffering – Past                  $18,414.59
Physical Pain & Mental Suffering – Future                $5,000.00
Permanent Injury                                         $10,000.00
Loss of Enjoyment of Life – Past                         $10,000.00
Loss of Enjoyment of Life – Future                       $20,000.00

The trial court granted a remittitur of $1,004.98 because the jury’s award for medical
expenses exceeded the amount entered into evidence at trial. On May 11, 2017, the trial
court entered a final judgment in favor of Appellee for $68,995.02. The trial court denied
Appellant’s motion for a new trial by order of August 1, 2017.1 Appellant appeals.

                                             II.     Issues

        Appellant raises twelve issues for review as stated in his brief:

        1.        Whether a new trial is warranted based on the jury’s awards to
                  Goodwin for permanent injury without competent medical testimony
                  to establish permanency.
        2.        Whether a new trial is warranted based on the jury’s awards to
                  Goodwin for future pain and suffering without competent medical
                  testimony to establish permanency.
        3.        Whether a new trial is warranted based on the jury’s awards to
                  Goodwin for future loss of enjoyment of life without competent
                  medical testimony to establish permanency.
        4.        Whether a new trial is warranted based on the trial court excluding
                  Goodwin’s medical records that contained evidence of injuries she
                  suffered prior to the accident at issue.
        5.        Whether a new trial is warranted based on the trial court excluding
                  testimony concerning Goodwin’s pre-accident MRI.
        6.        Whether a new trial is warranted based on the trial court admitting
                  Goodwin’s post-accident MRI results without proper authentication.
        7.        Whether a new trial is warranted based on the trial court excluding
                  testimony from Dr. Clendenin regarding the reasonableness of
                  medical expenses he charged.

        1
            As required by Tenn. R. App. P., Rule 3(e), Appellants motion for a new trial raised all the
issues raised in this appeal.
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       8.     Whether a new trial is warranted based on the trial court permitted
              [sic] Goodwin to impeach Hanebis with evidence of prior traffic
              citations.
       9.     Whether a new trial is warranted based on the trial court admitting
              photographs of Hanebis’s vehicle after the repair shop had already
              removed the vehicle’s bumper.
       10.    Whether a new trial is warranted based on the trial court instructing
              the jury.
       11.    Whether a new trial is warranted based on the excessive verdict
              awarded to Goodwin for her lost wages or, in the alternative,
              whether the verdict should be decreased to reflect the evidence
              submitted at trial.
       12.    Whether a new trial is warranted based on the cumulative effect of
              all of the aforementioned errors.

                               III.   Standard of Review

       The standard of review when examining a jury verdict approved by the trial court
is whether there is any material evidence to support the verdict. Tenn. R. App. P. 13(d);
Cooper v. Tabb, 347 S.W.3d 207, 217 (Tenn. Ct. App. 2010). To determine if material
evidence supports the jury’s verdict, the appellate court shall: “(1) take the strongest
legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all
evidence that supports the verdict; (3) allow all reasonable inferences to sustain the
verdict; and (4) discard all [countervailing] evidence.” Barnes v. Goodyear Tire &
Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co., Inc. v. C
& R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)).

                     IV.     Admission and Exclusion of Evidence

        Many of Appellant’s issues concern the trial court’s admission or exclusion of
medical evidence. The admissibility of evidence is within the trial court’s sound
discretion, and we review the trial court’s decision to admit or exclude evidence by an
abuse of discretion standard. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131
(Tenn. 2004); Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992);
see Tenn. R. Evid. 401. Under the abuse of discretion standard, a reviewing court cannot
substitute its judgment for the trial court’s judgment. Wright ex rel. Wright v. Wright,
337 S.W.3d 166, 176 (Tenn. 2011); Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001). Rather, a reviewing court will find an abuse of discretion only if the trial court
“applied incorrect legal standards, reached an illogical conclusion, based its decision on a
clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an
injustice to the complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.
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Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010). A party is entitled to reversal of the jury’s verdict only if
the trial court’s error would have “more probably than not affected the judgment or
would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b); Flax v.
DaimlerChrysler Corp., 272 S.W.3d 521, 544 (Tenn. 2008); Cumulus Broad., Inc. v.
Shim, 226 S.W.3d 366, 375 (Tenn. 2007).

       On January 27, 2017, Appellee filed a motion in limine to exclude Appellee’s
prior medical records from Greenview Medical Group and Bowling Green Medical
Clinic. In her motion, Appellee argued that Appellant intended to use her prior medical
records to show that Appellee received medical treatment prior to the accident for pain
and injuries she alleged were caused by the accident. Appellee further argued in her
motion that Appellant “clearly wishes to introduce these records to argue that [Appellee]
had preexisting conditions that caused the injuries complained of in this lawsuit.”

        On February 23, 2017, the trial court granted Appellee’s motion in limine. The
trial court excluded the records of Greenview Medical Group and Bowling Green
Medical Clinic, finding that “expert proof is required to prove causation.” Additionally,
the trial court prohibited Appellant from disclosing at trial, where Appellee was “treated
for these pre-existing conditions,” but allowed Appellant to inquire whether Appellee
received medical treatment prior to the accident.

       On appeal, Appellant argues that the trial court erred in excluding the foregoing
medical records. Specifically, Appellant contends that the medical records were
admissible under Tennessee Code Annotated section 24-7-122, which provides, in
relevant part:

       (b) Medical records or reproductions of medical records, when duly
       certified by their custodian, physician, physical therapist or chiropractor,
       need not be identified at the trial and may be used in any manner in which
       records identified at the trial by these persons could be used. The records
       shall be accompanied by a statement signed by the person containing the
       following information:

              (1) The person has authority to certify the records;
              (2) The copy is a true copy of all the records described in the
              subpoena; and
              (3) The records were prepared by the personnel of the company
              acting under the control of the company, in the ordinary course of
              business.

       (c) When records or reproductions of records are used at trial pursuant to
       this section, the party desiring to use the records or reproductions in
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       evidence shall serve the opposing party with a copy of the records or
       reproductions no later than sixty (60) days before the trial, with notice that
       the records or reproductions may be offered in evidence, notwithstanding
       any other rules or statutes to the contrary.

Tenn. Code Ann. § 24-7-122 (emphasis added). Citing this statute, Appellant filed a
motion asking the trial court to reconsider its decision to exclude certain medical records.
By order of April 26, 2017, the trial court denied the motion, stating that the records
could be allowed only if the records “have been produced in conjunction with an affidavit
that complies with the requirements of Rule 902 (11)” of the Tennessee Rules of
Evidence. The trial court concluded that “the affidavits presented with the Bowling
Green Medical Clinic records and the Summit Medical Center Records do not comply
with the requirements of Rule 902 (11), Tenn. R. Evid. Accordingly, those records are
prohibited from being introduced in their entirety.”2 The order further prohibited the
entry of any medical records that were “cumulative of other admitted testimony or
evidence” and ordered that, before attempting to introduce such records, “[Appellant’s]
counsel will present such record to [Appellee’s] counsel, and, if counsel cannot reach an
agreement about the admissibility of the proffered records, then a bench conference will
be held to determine the admissibility of any record.”

      As set out above, in excluding the Bowling Green Medical Clinic and Summit
Medical Center records, the trial court relied on Tennessee Rule of Evidence 902 (11),
which states:

       (11) Certified Records of Regularly Conducted Activity. The original or a
       duplicate of a domestic record of regularly conducted activity that would be
       admissible under Rule 803(6) if accompanied by an affidavit of its
       custodian or other qualified person certifying that the record-

       (A) was made at or near the time of the occurrence of the matters set forth
           by, or from information transmitted by, a person with knowledge of
           and a business duty to record or transmit those matters;

       (B) was kept in the course of the regularly conducted activity; and

       (C) was made by the regularly conducted activity as a regular practice.
       A party intending to offer a record into evidence under this paragraph must
       provide written notice of that intention to all adverse parties, and must
       make the record and declaration available for inspection sufficiently in

       2
         The order is silent concerning the records from Greenview Medical Group that were excluded in
the February 23, 2017 order.
                                                -5-
      advance of their offer into evidence to provide an adverse party with a fair
      opportunity to challenge them.

Tenn. R. Evid. 902(11). The records from Bowling Green Medical Clinic, which were
entered as Trial Exhibit 21 for identification only, are not accompanied by the affidavit
required under Tennessee Rules of Evidence 803(6) and 902(11). In the absence of the
required affidavit, we cannot conclude that the trial court erred or otherwise abused its
discretion in excluding the Bowling Green Medical Clinic records.

       However, as to the records of Greenview Medical Group, which were entered as
Trial Exhibit 20 for identification only, and Summit Medical Center, which were entered
as Trial Exhibit 22 for identification only, these records were proffered with an affidavit
from an authorized custodian of records. From our review, the affidavits fully comply
with the requirements under Tennessee Rule of Evidence 902(11). Furthermore, it is
undisputed that Appellant provided Appellee written notice of its intent to use these
records well in advance of the trial. The trial court, therefore, erred in excluding the
medical records of Greenview Medical Group and Summit Medical Center. This
conclusion, however, does not end our inquiry.

       The erroneous admission or exclusion of evidence is subject to harmless error
analysis under Rule 36(b) of the Tennessee Rules of Appellate Procedure. Blackburn v.
Murphy, 737 S.W.2d 529, 533-34 (Tenn. 1987). Rule 36(b) of the Tennessee Rules of
Appellate Procedure provides

      A final judgment from which relief is available and otherwise appropriate
      shall not be set aside unless, considering the whole record, error involving a
      substantial right more likely than not affected the judgment or would result
      in prejudice to the judicial process....

Tenn. R. App. P. 36(b).

       The Tennessee Supreme Court has held that an error committed in a civil trial is
not harmless “if the trial court’s error would have more probably than not affected the
judgment or would result in prejudice to the judicial process.” In re Estate of Smallman,
398 S.W.3d 134, 152-53 (Tenn. 2013); State v. Gomez, 367 S.W.3d 237, 249 (Tenn.
2012); Flax, 272 S.W.3d at 543; Blackburn, 737 S.W.2d at 533-34; Scott v. Jones Bros.
Constr., 960 S.W.2d 589, 593 (Tenn. Ct. App. 1997); Pankow v. Mitchell, 737 S.W.2d
293, 297 (Tenn. Ct. App. 1987).

       In conducting a harmless error analysis in a jury case, it is incumbent upon the
reviewing court to carefully examine the whole record to determine whether the
admission or exclusion of the evidence more probably than not influenced the jury’s
verdict. The reviewing court should consider the substance of the evidence and its
                                         -6-
relation to other evidence in the case in the context of the case’s peculiar facts and
circumstances. See Blankenship v. State, 410 S.W.2d 159, 161 (Tenn. 1966); Keith v.
Murfreesboro Livestock Market, Inc., 780 S.W.2d 751, 758 (Tenn. Ct. App. 1989). In
assessing the amount of weight a juror probably would have placed on the evidence, the
reviewing court should take into account whether the facts present a close case or
whether the point at issue is not clearly established by the proof. Smallman, 398 S.W.3d
at 152-53 (citations omitted). A finding of either supports the conclusion that
introduction [or exclusion] of the evidence was harmful error. Id.

        Tennessee Code Annotated section 24-7-122, supra, states that medical records,
when duly certified may be “used in any manner.” Here, the jury awarded the full
measure of Appellant’s medical expenses, (and in fact, more than claimed such that the
trial court granted remittitur). Although the exacerbation of an injury is compensable, a
defendant has the right to put on proof that the injury is an exacerbation of a pre-existing
condition. To this end, one of the records from Summit Medical Center shows the
following regarding Appellee: “She states she has a history of L5-S1 disc buldge [sic]
that she was supposed to have surgery for . . . but she refused.” As a result of the trial
court’s ruling, the jury was never able to see these prior medical records and consider the
earlier diagnosis, despite the records being compliant with Tennessee Code Annotated
section 24-7-122 and the requirements of Rule 902(11) of the Tennessee Rules of
Evidence. Without these medical records, Appellant was unable to contradict or call into
question Appellee’s testimony regarding her prior injuries and whether her current
medical condition predated her accident with Appellant.

        In our view, the improperly excluded evidence was significant and clearly relevant
considering the injuries complained of by Appellee. Accordingly, we conclude that the
trial court’s decision to exclude Appellee’s prior medical records from the Greenview
Medical Group and Summit Medical Center prejudiced the judicial process and more
probably than not affected the jury’s verdict in this case. Our holding on this issue
pretermits discussion of the remaining issues on appeal, and, as such, we express no
opinion regarding the trial court’s rulings on these other issues.

                                    V.     Conclusion

       For the foregoing reasons, we reverse the trial court’s judgment on the jury’s
verdict. The case is remanded for a new jury trial and for such further proceedings as
may be necessary and are consistent with this opinion. Costs on the appeal are assessed
to the Appellee, Valleree Goodwin, for all of which execution may issue if necessary.



                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE
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