Calaway v. Schucker

Filing 496

ORDER on Pretrial Matters. Signed by Judge S. Thomas Anderson on 8/22/13. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
K.C., a minor,
by Natural Mother and Next Friend,
KATHLEEN CALAWAY,

)
)
)
)
Plaintiffs,
)
No. 02-2715-STA-cgc
)
v.
)
)
JODI SCHUCKER, M.D.,
)
)
Defendant.
)
______________________________________________________________________________
ORDER ON PRETRIAL MATTERS
______________________________________________________________________________
On August 20, 2013, the Court conducted a pretrial conference in this matter and discussed
with the parties a number of pending motions or requests for relief. A jury trial is currently set for
Wednesday, August 28, 2013. The Court issues the following orders on the issues raised by the
parties at the pretrial conference.
I. Defendant’s Vicarious Liability for the Acts and Omissions of the Medical Residents
Both parties sought clarification of the liability issues regarding the acts of the medical
residents who attended Plaintiff’s labor and delivery in February 1996. The Court briefly received
arguments from the parties at the pretrial conference to supplement the briefing the parties had
already provided on the question.1 Based on the parties’ briefs, the Court finds that Defendant has

1

Plaintiff actually raised these issues in her motion for partial summary judgment (D.E. #
101) filed on March 1, 2009. The Court denied the motion as moot when the Court granted
Defendant summary judgment on a separate issue. On remand neither party raised the issue
again until Plaintiff filed a motion in limine to preclude Defendant from asserting comparative
fault against any non-party (D.E. # 466) on August 9, 2013. Defendant filed a combined
response to Plaintiff’s motion and motion in limine to preclude Plaintiff from arguing vicarious
1

conceded she will not assert any comparative fault defense at trial. It also seems that the parties
agree that Plaintiff’s claim against Dr. Schucker is based on her failure to supervise the medical
residents. The parties continue to disagree, however, on whether Plaintiff has an independent claim
for vicarious liability against Dr. Schucker for the acts and omissions of the residents. Defendant
argues that Plaintiff has not pleaded such a theory in her complaint, and Plaintiff responds that she
has alleged vicarious liability and need not plead a specific theory to support her cause of action in
order to state a claim.
The Court need not decide the sufficiency of Plaintiff’s pleadings because the case has now
advanced far beyond the pleadings stage and the discovery period is complete. The Court would
simply state that the issue of whether an attending physician working with medical residents as part
of a medical training program may be vicariously liable for the negligence of the residents working
under the attending’s supervision appears to be a question of first impression in Tennessee. At least
one state has recognized such a cause of action.2 However, the parties have not cited any Tennessee
case accepting such a proposition. Under Tennessee law, a physician cannot be vicariously liable
for the negligence of another medical professional just because the physician serves as “an
intermediate superior employee.”3 In Johnson v. LeBonheur Children’s Medical Center, the
Tennessee Supreme Court held that a hospital may be vicariously liable for the negligence of medical

liability, respondeat superior, or agency at trial (D.E. # 479). Plaintiff has responded (D.E. #
484) to Defendant’s motion.
2

E.g. Rouse v. Pitt Cnty. Mem’l Hosp., 470 S.E.2d 44 (N.C. 1996).

3

Bass v. Barksdale, 671 S.W.2d 476, 487–88 (Tenn. Ct. App. 1984); but see Parker v.
Vanderbilt Univ., 767 S.W.2d 412 (Tenn. Ct. App. 1988) (holding that a surgeon may be
vicariously liable for the acts of other medical professionals assisting in the operating room
where the physician exercises direct control over the “means and method” used by the other
professionals in the course of the surgical procedure).
2

residents providing care at the hospital.4 The issue of whether an attending physician may be
vicariously liable for the acts of the residents was not presented in Johnson.
In the absence of more specific guidance from the Tennessee Supreme Court, the Court is
hesitant to proceed with a cause of action not previously recognized by the Tennessee courts. It is
well-established that federal courts sitting in diversity should be “extremely cautious about adopting
substantive innovation in state law.”5 At the same time, the Court will let Plaintiff present the
theory to the jury and hear what evidence might support Plaintiff’s claim for vicarious liability
against Dr. Schucker before making a final ruling on the issue. Therefore, Defendant’s motion in
limine to preclude Plaintiff from arguing vicarious liability, respondeat superior, or agency at trial
is denied without prejudice.
II. Admissibility of the Discovery Deposition of Helen Barnes, M.D.
On April 24, 2007, the parties conducted the deposition of Helen Barnes, M.D. (“Dr.
Barnes”), an expert witness for Plaintiff. Plaintiff filed a transcript of the deposition (D.E. # 105)
on March 10, 2010. Defendant has designated certain portions of the video deposition to present at
trial (D.E. # 467), and Plaintiff has filed objections to Defendant’s designation (D.E. # 469).6 At the
pretrial conference, counsel for Plaintiff explained that he had noticed the deposition of Dr. Barnes
in 2007 and that at the outset of the proceeding, counsel for Defendant stated his understanding that
the deposition was to be a “discovery deposition,” which is a recognized practice under the
Tennessee Rules of Civil Procedure. Counsel for Plaintiff responded that there was no such thing

4

Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338 (Tenn. 2002); but see Tenn.
Code Ann. § 68–11–205(d) (2012).
5

Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604, 607–08 (6th Cir. 2012).

6

The parties have also submitted a joint proposed pretrial order, which raises the same
objection at page 35.
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in federal practice but consented to allow counsel for Defendant to open the deposition of Dr. Barnes
with a discovery deposition. At the conclusion of Defendant’s questioning in the discovery
deposition, both sides proceeded to conduct the rest of the deposition.
Now Plaintiff contends that even though the Federal Rules of Civil Procedure do not provide
for discovery depositions, the Tennessee Rules of Procedure recognize a distinction between
“discovery depositions” and “evidentiary depositions.” Under Tennessee law, parties may not use
“discovery depositions” at trial. Plaintiff argues then that the Court should not allow Defendant to
present Dr. Barnes’s “discovery deposition” in the trial of this matter. Defendant responds that the
parties reached an agreement that counsel would take a discovery deposition. However, Defendant
maintains that the Court should allow Defendant to present the portion of the deposition, which the
parties agreed was to be a discovery deposition, because the Federal Rules do not draw any
distinction or prohibit the use of discovery depositions at trial.
The Court finds that Plaintiff has the better of this argument. It is true that Rule 32 of the
Federal Rules of Civil Procedure permits a party to use “at a hearing or trial, all or part of a
deposition.”7 Both parties in this case intend to use the deposition of Dr. Barnes at trial. The issue
is whether the Court should allow Defendant to use portions of the Barnes deposition, which the
parties had agreed would be a discovery deposition only. As both parties acknowledge, Rule 32 does
not draw a distinction between depositions taken during discovery and depositions taken for use at

7

Fed. R. Civ. P. 32(a)(1). The critical inquiry under Rule 32 is whether the proponent of
the deposition testimony can show the following: that the opposing party was present or
represented at the taking of the deposition; that the deposition testimony is used for some
admissible purpose under the Federal Rules of Evidence, and that at least one other condition of
Rule 32(a) is satisfied. The parties have not raised any issue with respect to these requirements.
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trial, depositions that are sometimes described as de bene esse depositions.8 Nevertheless, Rule
32.01(3) of the Tennessee Rules of Civil Procedures states that “depositions of experts taken
pursuant to the provisions of Rule 26.02(4) may not be used at trial except to impeach in accordance
with the provisions of Rule 32.01(1).”9
Here the evidence shows that the parties entered into an agreement that counsel for Plaintiff
would take one portion of the Barnes deposition for discovery purposes, and then both sides would
proceed with a deposition to be used at trial. According to the transcript of the deposition, counsel
for Defendant stated at the opening of the deposition, “Tim [Counsel for Plaintiff], I’m
understanding that you’re going to take a bunch of, probably trial testimony later. I still would like
to take a discovery deposition briefly before we get started if that’s acceptable.”10 Counsel for
Plaintiff responded “sure.” Once counsel for Defendant concluded his discovery deposition, counsel
for Plaintiff stated, “Do we need to stop it and start it? to which counsel for Defendant responded,
“Why don’t we stop it and start it?”11 Counsel for Plaintiff then stated, “Actually this is moving into
an evidentiary. Well, it has been. Whatever. Okay. Doctor, we’re going to start from the top with
your direct exam, don’t kill me. All right.”12 At that point counsel for Plaintiff proceeded to
question the witness by asking her to state her name for “the ladies and gentlemen of the jury,” a
transition that clearly marked the beginning of a deposition for use at trial.

8

Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003) (citing Black’s Law
Dictionary 408 (7th ed. 1999) (defining a de bene esse deposition as one taken “in anticipation of
a future need”).
9

Tenn. R. Civ. P. 32.01(3).

10

Barnes Dep. 4:24–5:3, Apr. 24, 2007.

11

Id. at 162:25–163:3.

12

Id. at 163:4–7.
5

Based on the parties’ agreement to bifurcate the deposition into a discovery phase and a trial
phase, the Court believes that it would be fundamentally unfair to permit Defendant to use the
deposition testimony given by Dr. Barnes during the discovery portion of her deposition as
substantive evidence at trial. This would include all of Dr. Barnes’s testimony beginning with page
1 of her deposition transcript and then ending at page 162 of transcript. The Court would emphasize
that the Federal Rules of Civil Practice make no distinction between the two types of depositions and
that Rule 32(a) would generally permit the use of a “discovery” deposition at trial. However, the
Court’s decision is grounded on the agreement of the parties and principles of fairness and equity.
Both counsel apparently proceeded with the deposition based on an understanding that consistent
with the Tennessee state practice, only one portion of the deposition would be used at trial. Rule
29(b) of the Federal Rules of Civil Procedure provides that “[u]nless the court orders otherwise, the
parties may stipulate that other procedures governing or limiting discovery be modified.”13 The
Court finds no reason to alter the parties’ agreement to take only certain portions of Dr. Barnes’s
deposition for use at trial. Therefore, Defendant may not introduce as substantive evidence any of
the testimony reflected in pages 1 through 162 of the transcript of Dr. Barnes’s deposition.
The Court would add that nothing in the parties’ agreement should preclude Defendant from
using portions of Dr. Barnes’ discovery deposition for impeachment purposes. It appears to the
Court that the Tennessee Rules of Civil Procedure formed the parties’ agreement and also forms in
part the basis of Plaintiff’s motion to exclude the testimony. Tennessee Rule of Civil Procedure
32.01(3) expressly allows a discovery deposition to be used to impeach an expert witness like Dr.

13

Fed. R. Civ. P. 29(b). Some courts have required that any agreement of this kind be
reduced to writing. In re Carney, 258 F.3d 415, 419 (5th Cir. 2001); Venture Funding, Ltd. v.
United States, 190 F.R.D. 209, 212 (E.D. Mich. 1999). Neither party has invoked this
requirement, and the Court finds that deposition transcript itself adequately memorializes the
agreement.
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Barnes. Therefore, it is proper to allow Defendant to use the Barnes’ “discovery deposition” for
impeachment purposes only. The Court considers the parties’ additional objections to parts of the
testimony in the Barnes deposition below.
III. Life Care Plan and the Financial/Economic Report
Next Plaintiff has listed David Stewart, a life care planner, and Charles Dennis, Ph.D., an
economist, as witnesses in the joint proposed pretrial order. Defendant asserts that Stewart’s life
care plan has used the gross cost or “sticker price” for medical services to project K.C.’s future
medical expenses and that Dennis has reduced the future medical expenses to present cash value.
The Magistrate Judge previously ruled that “Plaintiff’s recovery shall be limited to amounts paid or
payable” and that “Plaintiff shall not be permitted to recover amounts billed, the gross price, or the
‘sticker price’” for medical services.14 Therefore, Defendant requests that the Court exclude the
reports prepared by Stewart and Dennis because they include the “sticker price” of future medical
expenses.
Plaintiff responds that at the very least the Court should allow Plaintiff to submit amended
reports. Plaintiff further argues that the Court should distinguish between past medical expenses,
which were paid or payable by a third party at some discount, and future medical expenses, which
have yet to be incurred. Plaintiff cites for support the Magistrate Judge’s other orders holding that
“Plaintiff’s past medical expenses should not be admissible as substantive evidence of the
reasonableness of Plaintiff’s proposed future medical expenses.”15 Plaintiff also points out that K.C.

14

See Mag. J.’s Order Granting Def.’s Mot. for Correction 2, Aug. 12, 2013. Upon
Defendant’s motion, the Magistrate Judge corrected or clarified her previous Omnibus Order of
March 12, 2013 (D.E. # 405).
15

Pl.’s Resp. in Opp’n 2 (D.E. # 486) (citing Mag. J.’s Omnibus Order of March 12,
2013, D.E. # 405).
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has not historically received all of the future care anticipated in the life care plan, meaning that past
medicals and whatever discounted rate at which they were paid or payable may not be relevant.
Thus, Plaintiff contends that the wholesale exclusion of the life care plan and the calculation of the
present cash value of the plan is not warranted.
The Court finds that Defendant has not shown why under Tennessee law or the previous
orders of the Magistrate Judge the Court should exclude the gross value or “sticker price” for K.C.’s
future medical expenses. It is true that the Magistrate Judge held that Plaintiff was only entitled to
recover amounts paid or payable for K.C.’s medical expenses. But the Magistrate Judge also held
that evidence of K.C. receiving services or care through public assistance programs as a minor was
not relevant to amounts of public assistance she might receive as an adult. In the course of reaching
that decision, the Magistrate Judge stated that “Plaintiff’s past medical expenses should not be
admissible as substantive evidence of the reasonableness of Plaintiff’s proposed future medical
expenses . . . .”16 The Magistrate Judge’s order is clear that “the question before this Court [was]
not the propriety of Plaintiff recovering [past] expenses, but the relevance of the availability of these
past services to the calculation of future medical expenses.”17 Thus, the Magistrate Judge has already
concluded that evidence of past medical expenses is not entirely relevant to Plaintiff’s proof of future
medical expenses.
The Court finds no reason to disturb these rulings. The Tennessee Court of Appeals has held
that in order to recover future medical expenses removed “from the realm of speculation,” a plaintiff
must produce evidence “(1) that additional medical treatment is reasonably certain to be required in
the future and (2) that will enable the trier-or-fact to reasonably estimate the cost of the expected

16

Mag. J.’s Omnibus Order 9, March 12, 2013 (D.E. # 405).

17

Id.
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treatment.”18 It is not necessary for Plaintiff to establish K.C.’s future medical expenses “with
mathematical precision.”19 Plaintiff’s “proof of damages must be concrete and definite enough to
enable the trier-of-fact to make a reasonable assessment of the claimant’s damages.”20 Defendant
has not shown that Stewart’s estimate of future medical expenses is insufficiently “concrete and
definite.” In fact, Defendant has not even cited any specific portion of the life care plan. Defendant
simply argues that the plan is based on the “sticker price” for future medical expenses and should
be excluded pursuant to Tenn. Code Ann. § 29–26–119. However, Defendant has cited no authority
for the relief she seeks. Therefore, Defendant’s Motion is denied.
The Court would add that Defendant remains free to introduce her own evidence to challenge
the reasonableness of Plaintiff’s cost estimates for K.C.’s future treatment. Plaintiff concedes as
much in her brief where she states that “[i]f defendant wishes to argue that any expenses in the life
care plan will be paid in whole or part by some third party, or paid at a discount, then the burden is
on defendant to demonstrate that fact.” While the Court would emphasize that Plaintiff bears the
burden to demonstrate in the first instance that the estimate of K.C.’s future medical expenses is
reasonable, Defendant will have an opportunity to cross-examine Plaintiff’s life care planner at trial
and introduce evidence to rebut any of the assumptions contained in the life care plan.
IV. Exclusion of Plaintiff’s Use of the Reptilian Brain Techniques
Defendant has next requested that the Court preclude counsel for Plaintiff from using a
technique of argumentation known as the reptilian brain technique. The Court need not recount
Defendant’s characterization (broad and ambiguous as it is) of the technique or summarize the
18

Singh v. Larry Fowler Trucking, Inc., 390 S.W.3d 280, 287 (Tenn. Ct. App. 2012).

19

Riley v. Orr, M200901215COAR3CV, 2010 WL 2350475 (Tenn. Ct. App. June 11,
2010) (citation omitted).
20

Id.
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several articles provided by Defendant which describe the theory and how trial counsel can use
certain tactics to prevail on the sensibilities of a juror’s “reptilian brain.” With specific reference to
the trial in this matter, Defendant has only requested that the Court not permit counsel for Plaintiff
to argue or refer to the professional standard of care for physician like Dr. Schucker as “safety rules.”
Plaintiff has responded in opposition.
The Court finds that Defendant has not shown with sufficient particularity just what the Court
should preclude opposing counsel from saying or doing at trial. The Court must emphasize that one
of the primary issues in this case is the relevant standard of care and whether Dr. Schucker’s conduct
conformed to that standard of care under all of the circumstances. As in every case, the Court will
instruct the jury to base its decision, not on the statements or arguments of counsel, but only on the
proof admitted at trial and the law given to the jury by the Court. And as in every case, the Court
will not tolerate any attempt by either party to incite the jury to render a verdict based on any other
consideration, including the passions and prejudice of the jurors. Therefore, Defendant’s motion is
denied without prejudice.
V. Animated Fetal Monitoring Strip
The next issue raised by the parties was Defendant’s plan to use an animated fetal monitoring
strip at trial. Although the parties did not argue the point in much depth at the pretrial conference,
the Court notes that Plaintiff had previously raised this issue in a timely-filed motion in limine to
preclude the use of computer-generated or animated fetal monitoring strips (D.E. # 265), which the
Magistrate Judge granted. According to the Magistrate Judge’s March 12, 2013 omnibus order (D.E.
# 406), “Plaintiff requests that the Court preclude Defendant and her testifying experts from using
computer generated or animated fetal monitor strips as an exhibit at trial” on grounds of relevance.21

21

Mag. J.’s Omnibus Order 6, Mar. 12, 2013.
10

The order went on to state that “Defendant agrees that generic computer generated or animated fetal
monitory strips are not relevant and should not be received as separate exhibits or provided to the
jury during its deliberations [and] . . . that Kaitlyn Calaway’s own fetal monitoring strip is
admissible.”22 The Magistrate Judge added that “[t]o the extent that the parties wish to discuss any
aspects of how Kaitlyn Calaway’s monitor strip may be displayed, they should raise such issues at
the Pre-Trial Conference in this case.”23 It is not clear to the Court what issues are left to resolve
concerning the publication or display of the minor Plaintiff’s monitor strip at trial. Therefore, the
Court reserves any further ruling on the matter.
VI. Objections to Plaintiff’s Designation of the Deposition of Dr. Barnes
Defendant has also filed notice of her objections to certain portions of the Barnes deposition,
which Plaintiff has designated for use at trial. Obviously, where the Court has sustained any
objection, that portion of the testimony will not be shown to the jury. Where the objection is
overruled, the testimony will be admissible. The Court’s rulings on Defendant’s objections are as
follows:
(1) 165:5–166:18 - Defendant objects that Dr. Barnes’ testimony concerning career
obstacles she faced due to her race or gender is inadmissible. Defendant’s objection is sustained.
(2) 177:22–178:7 - Same objection. The objection is sustained.
(3) 184:5–21 - Defendant objects to the form, arguing that the question was leading and that
the premise of the question misstated the practice at the University of Tennessee. The objection is
sustained.
(4) 185:7–14 - Defendant objects that the only foundation for the type of program Dr. Phillips

22

Id.

23

Id.
11

“went through” was counsel’s previous statement, which was leading and inaccurate. Defendant’s
objection is sustained.
(5) 190:2–6 - Defendant objects to the form at which point counsel for Plaintiff re-phrased
his question. Defendant’s objection is sustained.
(6) 215:18–216:1 - Defendant objects to the form on the grounds that the question was
compound. The objection is overruled. Defendant further states if the Court overrules the objection,
then Defendant would add an objection to lines 216:2–14. The secondary objection is also
overruled.
(7) 233:24–234:5 - Defendant objects that the question was leading and calls for speculation.
The objection is overruled.
The Court also notes that Plaintiff has objected to any portion of the Barnes deposition
designated by Defendant, which was part of the discovery deposition. As previously noted, the Court
finds that Dr. Barnes’s discovery deposition began on page 1 at the transcript and continued through
page 162. For the reasons already discussed, Plaintiff’s objection to any part of the Barnes
deposition from those pages is sustained but only insofar as Defendant seeks to use the testimony
as substantive evidence. Defendant is permitted to use any portion of the discovery deposition for
impeachment purposes.

12

VII. Matters Reserved Until Trial
Finally, at the pretrial conference, the Court specifically reserved its ruling on the following
motions until trial: Plaintiff’s sealed motion (D.E. # 449); and motion in limine to allow Defendant
to use Plaintiff’s video during voir dire (D.E. # 478). The Court further reserves ruling on any other
motions, objections, or issues that the parties did not raise at the pretrial conference.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 22, 2013.

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