DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.
This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault. Plaintiff filed a motion to strike portions of Defendant's amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault. Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant's experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure. The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.
In May 2003, Sidney H. Kriger, M.D. ("Dr. Kriger") performed laser corrective eye surgery, commonly referred to as LASIK, on Leon Dickson ("Mr. Dickson"). Following the procedure, Mr. Dickson experienced vision problems in his left eye, and later discovered that he suffered from an inferior temporal decentered ablation of his cornea.
During the pendency of the litigation, the trial court entered an order granting Dr. Kriger's motion for a physical examination of Mr. Dickson by Marc A. Michelson, M.D. ("Dr. Michelson"). Dr. Michelson opined that the decentered ablation could have been caused by "surgeon error" or "machine error." On June 14, 2007, Dr. Kriger was granted permission to file an amended answer which added, inter alia, the affirmative defense of comparative fault. In response, Mr. Dickson filed a motion to strike the amended answer for failure to adequately identify non-parties as required when asserting comparative fault. After a hearing on the motion, Dr. Kriger agreed to the entry of a consent order waiving the affirmative defense of comparative fault.
On August 17, 2007, Dr. Kriger took the deposition of Dr. Michelson, and he testified
On August 6, 2008, Mr. Dickson filed a motion in limine to preclude the testimony of Dr. Michelson, and on October 7, 2008, filed a motion in limine to preclude the testimony of Dr. Loden. Mr. Dickson argued that, because Dr. Kriger agreed to waive the defense of comparative fault, Dr. Kriger could not use the causation testimony of Dr. Michelson and Dr. Loden to shift fault away from himself. Dr. Kriger argued that this testimony was relevant evidence of causation, and did not tend to establish Mr. Dickson or the laser manufacturer as tortfeasors. After conducting a hearing, the trial court entered an order denying both of Mr. Dickson's motions on January 14, 2011. The trial court further ordered that portions of Dr. Loden's testimony on cross-examination be redacted from the deposition because Dr. Loden was not asked about and did not testify about fault on direct examination. The trial court emphasized that it was counsel for Mr. Dickson who introduced the issue of fault on cross-examination.
On February 8, 2011, the trial court entered an order granting Mr. Dickson's motion for permission to file an interlocutory appeal regarding the denial of his motions in limine to preclude the testimony of Dr. Michelson and Dr. Loden. Additionally, the trial court granted Dr. Kriger leave to further amend his answer to set forth his causation defense with greater specificity. On May 18, 2011, this Court granted Mr. Dickson's application for interlocutory appeal.
We begin our discussion by addressing Dr. Kriger's argument that Mr. Dickson waived his objections to the admissibility of Dr. Loden's and Dr. Michelson's causation testimony by failing to raise them during the course of the depositions. Given that these depositions were taken for evidentiary purposes, the parties stipulated that the depositions would proceed "according to the Tennessee rules." As such, our analysis is guided by the Tennessee Rules of Civil Procedure. In general, Rule 32.04 of the Tennessee Rules of Civil Procedure provides that a party waives any objections to defects in the taking of a deposition unless those objections are promptly raised. See Tenn. R. Civ. P. 32.04.
Tenn. R. Civ. P. 32.04(3)(A).
The remaining issue presented on appeal, as we perceive it, is whether the trial court erred in denying Mr. Dickson's motions in limine to preclude the testimony of Dr. Loden and Dr. Michelson, where Dr. Kriger waived the defense of comparative fault, and subsequently offered the causation testimony as proof that Mr. Dickson's injury resulted from either a malfunction of the laser machine or Mr. Dickson's loss of focus on the red light during the LASIK procedure. 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)).
On appeal, Mr. Dickson argues that the trial court erred in denying his motions in limine because the causation testimony offered by Dr. Kriger effectively shifts the blame to Mr. Dickson or the manufacturer of the laser machine without pleading comparative fault in compliance with Rule 8.03 of the Tennessee Rules of Civil Procedure.
In support of his position, Mr. Dickson relies on George v. Alexander, 931 S.W.2d 517 (Tenn.1996). In George, the plaintiff filed a medical malpractice action against two physicians, Dr. Phillip Jones and Dr. Clyde Alexander, alleging that they negligently administered spinal anesthesia prior to her surgery. Id. at 519. The defendants filed an answer denying any negligence, and never amended their answer to include the defense of comparative fault. Id. Thereafter, the plaintiff took the deposition of Dr. Vaughn Allen, who opined that plaintiff's injury was likely caused by the improper positioning of the plaintiff during surgery by Dr. James Daniell, and not by the administration of spinal anesthesia. Id. at 519-20. At trial, the defendants sought to introduce Dr. Allen's videotaped deposition to establish that the improper positioning of plaintiff's body during surgery was the cause in fact of plaintiff's injury. Id. at 520. The plaintiff argued that Rule 8.03 required the defendants to plead comparative fault as a defense if they intended on shifting the blame to Dr. Daniell. Id. The defendants responded, and the trial court agreed, that they did not have to plead comparative fault because they only intended to show that Dr. Daniell was the cause in fact, and not the proximate cause, of plaintiff's injury. Id. at 521.
On appeal, the Supreme Court was presented with the following issue, "whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff's injury." Id. at 518. The Court concluded:
Id. at 521 (internal citations omitted). With regard to the defendants' argument that the plaintiff was not prejudiced by their failure to raise comparative fault as an affirmative defense because the plaintiff was aware of the possibility that Dr. Daniell's improper positioning caused the injury, the Court stated:
Id. at 522.
Justice Reid filed a separate concurrence that disagreed with the majority and accepted the defendants' argument that proximate cause was necessary for blame-shifting. Id. at 526. Justice Reid further stated:
Id. at 527. Following Justice Reid's concurrence, the trial court in the case at bar reasoned that Dr. Loden's and Dr. Michelson's testimony was relevant evidence of causation that did not establish Mr. Dickson or the laser manufacturer as tortfeasors, and as such, denied Mr. Dickson's motions in limine. We will address the trial court's rulings on each motion in turn.
During his deposition, regarding the outcome of Mr. Dickson's LASIK procedure, Dr. Michelson testified as follows:
On cross-examination, Dr. Michelson further testified as follows:
After reviewing the record, we find no error in the trial court's determination regarding Dr. Michelson. The testimony above merely provides Dr. Michelson's opinion that the laser machine likely malfunctioned during the LASIK procedure. The evidence does not tend to establish that the conduct of the laser manufacturer fit any element of Mr. Dickson's cause of action. Instead, Dr. Michelson's testimony was offered as part of Dr. Kriger's defense that, in the absence of any deviation from the standard of care, these types of risks can and do occur during LASIK procedures.
At the deposition of Dr. Loden, when asked to explain what occurs during a typical LASIK procedure, he testified as follows:
When ruling on Mr. Dickson's motion in limine to preclude the testimony of Dr. Loden, the trial court emphasized that it was counsel for Mr. Dickson who introduced the issue of fault on cross-examination, and instead of excluding all of the causation testimony, the trial court chose to redact the following portion of the deposition:
Although the trial court redacted the testimony above, the following portions of the cross-examination of Dr. Loden remain in the record:
In light of the forgoing, we disagree with the trial court that Dr. Loden's testimony does not tend to shift the blame from Dr. Kriger to Mr. Dickson. In addition to denying Mr. Dickson's motions in limine, the trial court granted Dr. Kriger leave to further amend his answer to assert his causation defense with greater specificity. Dr. Kriger's amended answer states that Mr. Dickson's injury was "the result of ... Mr. Dickson's loss of focus on the blinking red light ..." during the LASIK procedure. The use of Dr. Loden's causation testimony, coupled with Dr. Kriger's amended answer, effectively shifts the blame to Mr. Dickson as the cause of his own injury. If Dr. Kriger wishes to advance the argument that Mr. Dickson caused or contributed to his own injury by failing to maintain focus on the blinking red light during the LASIK procedure, then he must first affirmatively plead comparative fault under Rule 8.03. George v. Alexander, 931 S.W.2d 517, 521 (Tenn. 1996).
Although, as noted above, 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)). An abuse of discretion may be found "when the trial court has gone outside the framework of legal standards or statutory limitations, or when it fails to properly consider the factors on that issue given by the higher courts to guide the discretionary determination." Id. (quoting 2 J.App. Prac. & Process at 59 (internal quotation marks omitted)). In George, the Supreme Court clearly established that "Rule 8.03 is a prophylactic rule of procedure that must
For the foregoing reasons, we affirm the trial court's order denying the motion in limine to preclude the testimony of Dr. Michelson, and reverse the trial court's order denying the motion in limine to preclude the testimony of Dr. Loden. This matter is remanded for further proceedings consistent with this Opinion. Costs of this appeal are taxed equally to the Appellant, Mr. Dickson and his surety, and the Appellee, Dr. Kriger.
