Emmanual Small, et al. v. Shelby County Schools, a/k/a Board Of Education, Shelby County Schools

This is a negligence claim brought by a student against a school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student’s asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children’s Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student’s attorney failed to disclose the student’s treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student’s injuries and the reasonableness and/or necessity of the medical charges. The court allowed the testimony concerning causation and necessity, but excluded testimony related to reasonableness. In its answer, the school board failed to raise the affirmative defense of comparative fault. On the first day of trial, the court granted the school board leave to amend its complaint to include the comparative fault of other individuals, including the student’s mother. After a bench trial, the circuit court entered a judgment in favor of the student in the amount of $3 million dollars, but reduced that award to $130,000 pursuant to the Governmental Tort Liability Act. The student’s attorney then moved for an award of discretionary costs, which the court denied. The school board appeals, alleging that it is immune from suit because its employees were performing a discretionary function. Next, the school board argues that the court erred by allowing the doctor to testify concerning causation and necessity because the student’s attorney failed to disclose the doctor as an expert witness. Finally, the school board argues that the only witness that corroborated the student’s claim was not credible. The student raises the issue of whether the court erred in allowing the school board to amend its answer to include comparative fault, and whether the court erred in refusing to award discretionary costs. For the following reasons, we affirm.