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Durbin v. Sumner County Regional Health Systems9/6/2001
ient's condition by reviewing medical records and speaking with the patient. This nurse was to determine whether the patient met the preconditions for the use of the pump. After this session, the supplier's nurse instructed both the patient and nursing staff on the use of the pump. The missing document in Richardson, was the nursing assessment form in which the supplier's nurse should have recorded her findings. The document was not produced and allegedly had been lost in transit from the nurse to the company.
In Richardson, this court stated, "In Tennessee, as in other jurisdictions, a party's failure to produce a document capable of shedding light on a material contested issue can give rise to a permissive inference that the missing document would have been unfavorable to the party possessing it." Richardson v. Miller, 44 S.W.3d 1, 27-28 (Tenn. Ct. App. 2000) (citing Tennessee Law of Evidence ยง 401.9, at 99). Clearly, the nurses assessment of the patient's medical condition "shed light on a material contested issue" in Richardson.
However, the missing fetal monitor strip is not as closely connected with the material issues in this case. As the trial court stated the important date according to the parties in this case was July 22 not July 20. The appellants definitely thought this was the case. Their Complaint references only the events on July 22. Although it is clear that the fetal monitoring strips demonstrate the well-being of the twins, their well-being is not at issue until July 22. For this reason, the trial court's denial of the negative inference instruction is not a ground for reversal.
4. Twins' Living Expenses
Finally, the appellants argue that the trial court erred in instructing the jury with T.P.I. 3- Civil 14.30 to deduct the twins' living expenses had the twins lived from any damages awarded. The argument is based on the fact that there was no proof of the projected living expenses. The same argument was made in Wallace v. Couch, 642 S.W.2d 141 (Tenn. 1982), the case that established the rule that living expenses should be taken into account in arriving at the pecuniary value of the decedent's life. The court refused to reverse the jury verdict despite the lack of evidence of living expenses in the record. The court recognized that in general the jury must act only upon what is presented to them at the trial, but held that in exceptional circumstances the jury could draw upon its own experience and knowledge.
We do not wish to minimize the obligation to establish facts with competent proof, but in the circumstances of this case, we do not think the court erred in charging the jury on the rule laid down in Wallace v. Couch.
V. Discretionary Costs
The trial court awarded Dr. Caldwell $7,878.00 and the Hospital $8,444.00 in discretionary costs. Tennessee Rules of Civil Procedure provide for a trial court to award "reasonable and necessary court reporter expenses for depositions or trials reasonable and necessary expert witness fees for depositions or trials . . . ." Tenn. R. Civ. P. 54.04(2). The awarding of discretionary costs is in the trial court's discretion, and the trial court's decision will not be overturned absent an abuse of discretion. Oster, Div. of Sunbeam Corp. v. Yates, 845 S.W.2d 215, 217-18 (Tenn. 1992); Lock v. National Union Fire Ins. Co. of Pittsburgh, Pa, 809 S.W.2d 483, 490 (Tenn. 1991).
We find no abuse of discretion in the trial court's decision. Both appellees filed post-trial motions with accompanying affidavits outlining the costs they sought. Dr. Caldwell asked for a total of $11,681.31, and the Hospital asked for a total of $12,549.96. The trial court awarded less t
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