Day on Torts
Where a Claims Commissioner credited the testimony of defendant’s expert over plaintiffs’ expert in a wrongful death case, the Court of Appeals affirmed the ruling.
In Jones v. State of Tennessee, No. M2017-02198-COA-R3-CV (Tenn. Ct. App. July 24, 2019), plaintiffs’ son was a football player at Tennessee State University (TSU). While running a drill at practice one day, the son collapsed after suffering a sudden cardiac arrest. Two trainers rushed to respond, but they did not immediately recognize the situation as a cardiac arrest. The trainers called 911, and while on the phone, the son had a seizure and stopped breathing. At that time, the trainers began CPR and sent for an AED that was stored in the trainers’ van. The AED was never used, as the paramedics arrived before it was retrieved. The son was not able to be revived and was pronounced dead at the hospital. The autopsy listed his cause of death as “a fatal arrhythmia of his heart due to scar tissue,” and the report noted that “his heart’s right atrium and ventricle were enlarged” and that there were “extensive amounts of scar tissue throughout the left and right ventricles.”
Plaintiffs brought this wrongful death suit, alleging that TSU failed to have a proper emergency plan, failed to properly respond to the situation, “failed to use all means available to resuscitate [the son],” and failed to “ensure that its athletic staff would have an AED readily accessible.” After a three-day trial, the Claims Commissioner found for the defendant, and the Court of Appeals affirmed.
The Court of Appeals reasoned that this case came down to one issue—“whether the evidence preponderates against the Commissioner’s finding that TSU’s negligence was not the cause in fact of [the son’s] death.” Because causation is “an essential element of any negligence action,” plaintiffs were required to show that “TSU’s negligence more likely than not caused [the son’s] death.” (internal citations omitted).
At trial, plaintiffs and defendant both presented expert testimony. Plaintiffs submitted deposition testimony from a cardiologist who testified that if an AED had been used within five minutes of the cardiac arrest, the son would have more likely than not survived. He also opined that the scar tissue was due to a genetic abnormality and that it would have had no effect on the son’s likelihood of survival had an AED been used quickly.
The defendant had a cardiologist testify as a live witness, and he opined that the “underlying pathology of the patient’s heart could have a profound impact on resuscitation efforts.” He testified that “use of an AED anywhere from two to seven minutes after [the son’s] collapse would not have been successful because of his extensive scar tissue[.]” This expert cited several studies and “did not yield” during vigorous cross-examination by plaintiffs’ counsel.
The Claims Commissioner relied on the testimony offered by the defendant’s cardiologist, ruling that the defense expert’s “opinions were more congruent with the findings of the autopsy.” He found that the son would thus “not have survived his sudden cardiac arrest even if he had received CPR and an AED shock within five minutes of his collapse.” The Court of Appeals affirmed, finding specifically that the expert’s testimony was relevant and rejecting plaintiffs’ arguments otherwise. The Court noted that “the weight to be given to stated scientific theories, and the resolution of legitimate but competing scientific views, are matters appropriately entrusted to the trier of fact,” and that the Court affords “great deference” to the trier of fact’s decisions on these issues. (internal citation omitted). Finding no reason to overturn this case, the ruling for the defendant was affirmed.
This case was essentially a battle of the experts, which can be quite difficult to successfully appeal. One interesting note here is that the plaintiffs presented their expert testimony by deposition, while the defendant presented a live expert witness. The ability to see the expert be questioned, cross-examined, and defend his positions could have played into the credibility determination by the Commissioner.
NOTE: to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released 11.5 months after oral argument.