Kelly on Malpractice

In Points v. Thompson, 2008 WL 110103 (Tenn.Ct.App.), Plaintiff Points was involved in a motor vehicle accident where his Ford Explorer was struck in the rear by a truck driven by Waymond Thompson, alleging that the defendants’ negligence in the accident caused him to suffer physical injuries, loss of employment earnings and earning capacity, medical expenses, and pain and suffering. At the jury trial, Thompson admitted fault in the accident, leaving only the questions of causation and extent of Points’s damages. Before trial, Points filed a motion in limine to exclude all portions of Thompson’s cross-examination of one of Points’s treating physicians regarding any “possible” causes of his injuries, arguing that his own witness’s testimony on cross-examination as to “possible” causes would be speculative and inadmissible. Points relied on the case of Hunter v. Ura, 163 S.W.3d 686 (Tenn.2005), in support of his argument that portions of his own witness’s testimony in answering questions on cross-examination were too speculative to be admissible. In Hunter, the Supreme Court emphasized that questions concerning admissibility of expert testimony are generally left to the trial court’s discretion, stating: Determining the admissibility, qualifications, relevance, and competency of expert testimony is left to the sound discretion of the trial court…. Indeed, our function is only to determine whether the trial court abused its discretion in excluding the testimony and not to substitute our view for that of the trial court. Hunter, 163 S.W.3d at 703 (citing McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997)). In the deposition, on cross-examination, Dr. Howard testified as follows, providing responses that Points sought to exclude as unduly speculative:

Q: And there can be literally thousands of things that can cause a disc bulge; correct? Sneezing, picking up something too heavy, bending over, stooping, all of those things; correct?
A: Sure, and just normal wear and tear of daily life, yeah.
Q: You were also asked about the disc bulges and that you couldn’t state with a reasonable degree of medical certainty that the protrusions were caused from the accident?
A: Correct.
Q: Equally so, can you say with a reasonable degree of medical certainty that the protrusions existed before the accident?
A: I can’t say whether they did or whether they didn’t.

The trial court denied the motion in limine, allowing the jury to see the entire testimony of Dr. Howard via videotaped deposition taken for proof. The jury returned a verdict in favor of Points in the amount of $64,000. The Court of Appeal found that Points’s reliance on Hunter was misplaced because of the significant differences between the two cases. In Hunter, the testimony excluded was that of an expert witness called by the defendant in an attempt to provide an alternative theory of an entirely different, independent cause of injury, which the trial court found to be based on mere speculative possibility and which was arguably improbable. In contrast, the present case presented a challenge not of an opposing witness who is proffering an alternative theory, but of the party’s own witness in response to questions on cross-examination. Furthermore, the testimony sought to be excluded as speculative is not an alternative theory of causation as in Hunter, but rather mostly a reiteration of a conclusion that Dr. Howard had already testified to on direct examination—that she was unable to say that the disc protrusions in Points’s spine were caused by the accident. The first lesson of Points is that speculative or phantom causes are admissible on cross examination of a treating physician in a personal injury action. The second lesson of Points is that Hunter v. Ura is generally confined to medical malpractice actions to exclude phantom or speculatives causes where experts offer opinions about causation.

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