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Russell v. Brown8/18/2005
A: I think it's a non sequitur.
The plaintiff made a timely objection to the question, and therefore it is properly before us. See Tenn. R. App. P. 36(a). However, we may only set aside a judgment if the "error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." Tenn. R. App. P. 36(b).
The question which brought forth the objection is as follows: " o you think we need to assume that the less sex he has, the more money he makes?" Apparently, the question was intended to bring into question the plaintiff's credibility.
We find that the trial court erred in permitting this question. Dr. Coleman was called to articulate his opinions as to the relevant standard of care for an otolarynologist in Dr. Brown's community and related issues. He reviewed the plaintiff's deposition testimony in preparation for trial. However, we do not find that the doctor's review of the plaintiff's deposition opened the door for counsel to question him about statements pertaining to a possible correlation between the frequency of the plaintiff's sexual activity and his income or the bearing of these matters on the plaintiff's credibility. The question is clearly improper for any number of reasons: it is argumentative; it seeks an opinion in an area for which the witness has not been qualified and for which he does not claim expertise; it seeks a response, the relevancy of which is highly suspect; it seemingly seeks to establish that one cannot go from making less money to making more money while one is trending down in sexual activity - a conclusion which, at best, is debatable; and probably for other reasons.
Although we find that it was error to permit this line of questioning, we do not find that it substantially prejudiced the plaintiff such that we should set aside the judgment. We cannot say that the trial court's decision to permit this line of questioning, although an abuse of discretion, "more probably than not affected the judgment." Tenn. R. App. P. 36(b).
VI.
The defendants also filed notices of appeal on the issue of discretionary costs. Both defendants filed a motion for discretionary costs in which they listed, in an extensive and comprehensive fashion, each expert witness for whom costs were sought, the purpose of that person's testimony, and the costs associated with their testimony at deposition and trial. Both motions were properly supported by exhibits and affidavits from the parties' respective attorneys. As previously noted, Dr. Brown and Chattanooga Ear, Nose & Throat Associates sought costs in the amount of $41,335.58; Dr. Smith and Anesthesiology Consultants Exchange, Inc. sought $24,653.94.
Tenn. R. Civ. P. 54.04(2), which permits the trial court to award discretionary costs, provides as follows:
Costs not included in the bill of costs prepared by the clerk are allowable only in the court's discretion. Discretionary costs allowable are: reasonable and necessary court reporter expenses for depositions or trials, reasonable and necessary expert witness fees for depositions (or stipulated reports) and for trials, reasonable and necessary interpreter fees for depositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs. Subject to Rule 41.04, a party requesting discretionary costs shall file and serve a motion within thirty (30) days after entry of judgment. The trial court retains jurisdiction over a motion for discretionary costs even though a party has filed a notice of appeal. The court may tax discretionary costs at the time of voluntary dismissal.
In determining whether to
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