Expert Testimony Not Required in Standard Tennessee Premises Liability Cases

The recent Tennessee Court of Appeals decision of Gary Lee Steele v. Primehealth Medical Center, P.C., No. W2015-00056-COA-R3-CV, 2015 WL 9311846 (Tenn. Ct. App. 2015) is an interesting premises liability case that discusses the potential requirement of expert proof for this type of case.  This case involved a slip/trip and fall on the premises of the defendant due to an allegedly defective sidewalk.  The trial court excluded the plaintiff’s expert proof because the plaintiff failed to comply with the trial court’s scheduling order and expert proof was not disclosed during discovery. As a result, the trial court granted summary judgment to the defendant because the plaintiff failed to provide expert proof on whether the sidewalk was unreasonably dangerous. 

This case was appealed to the Tennessee Court of Appeals and that Court took issue with the trial court’s determination that this expert testimony was mandatory.  The Tennessee Court of Appeals discussed the fact that in more and more cases expert testimony is needed due to the complexity of our civilization and the specialization that is present in our society.  However, the Court noted specifically that:

[We] are not aware of any general requirement, established by a court or by the legislature, that expert testimony must be presented in order to prove the existence of a dangerous condition in a premises liability case. As a general rule, no expert testimony is required when a case involves ordinary negligence.

Steele at 6.  There simply is no prior definitive case law on this issue that forces this requirement in this type of case.  The Court went on to note several situations in Tennessee where the Tennessee Supreme Court has found that expert proof is not required including the following:

- Whether a party has sustained a serious mental injury in cases of intentional infliction of emotional distress.

- Whether a construction contractor and the public utility company that hired the contractor were negligent in leaving a ditch open over a weekend of heavy rain.

Medical Testimony - Is a doctor's speculation about future surgeries and costs of those surgeries admissible at trial?

Brief Summary:  The short answer is that a doctor can not speculate about the need for future surgeries or the costs associated with such surgeries.  Testimony from a doctor that amounts to speculation will be excluded by the trial court.

Analysis:  In the recent Tennessee Court of Appeals decision of Sapinder Singh v. Larry Fowler Trucking, Inc., No. W2011-01986-COA-R3-CV, 2012 WL 3731562 (Tenn. Ct. App. 2012) the Court addressed whether the trial court’s exclusion of a doctor's speculative testimony about a future potential surgery and the cost for such surgery was proper. Singh at 1.  Dr. Michael Jaffin was asked in his deposition whether the plaintiff would need additional surgery in the future. Singh at 2.  The Appellate Court discussed the speculative nature of the testimony as follows:

In those portions of his testimony that were excluded from evidence, Dr. Jaffin testified that he would not “pretend to tell you what kind of surgery” Mr. Singh would require in the future, and that he could not “tell for sure” what these surgeries would cost. In fact, Dr. Jaffin testified that Mr. Singh would need further surgical evaluation, which he “would leave [ ] to a spine surgeon.” By his own admission, Dr. Jaffin is not at all certain as to what, if any, future surgeries will be medically necessary. Consequently, he is not qualified to testify as to what, if any, spinal surgeries Mr. Singh will need. As he testifies: “I can't tell you because I'm not a spine surgeon.” As such, Dr. Jaffin's testimony does not demonstrate a reasonable medical certainty concerning the need for future surgeries.

Concerning the costs of future surgeries, Dr. Jaffin testified that the costs would “be at least $300,000.” Later in his testimony, he opines that the costs would be “well over $200,000.” This testimony is also speculative. As noted above, Dr. Jaffin, by his own testimony, is not qualified to opine as to the specific surgeries that may be necessary and, because he is not qualified concerning the surgeries, he is likewise not qualified to testify as to the costs of the surgeries.

Singh at 7.  In order to assess whether this testimony is admissible one must look at Tennessee Rules of Evidence 702 and 703 which requires a trial court to determine: "(1) whether expert testimony will substantially assist the trier of...