text:
    Jerry W. PECK v. William B. TANNER and Tanner-Peck, LLC.
    Supreme Court of Tennessee, at Jackson.
    April 5, 2005 Session.
    June 24, 2005.
    William Ernest Norcross, Robert D. Flynn, and Minton P. Mayer, Memphis, Tennessee, for the Appellants, William B. Tanner and Tanner-Peck LLC.

      Mimi Phillips and Roy H. Chockley, Jr., Memphis, Tennessee, for the Appellee, Jerry W. Peck.
    WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.
   OPINION

This civil action pertains to an alleged business partnership between the individual parties. The trial court entered a judgment in favor of the defendants, and the plaintiff appealed. While the appeal was pending, the plaintiff filed a motion in the Court of Appeals alleging misconduct by the chancellor during the trial proceedings and requesting that the intermediate court “investigate and rule on whether and how [the plaintiffs] allegations will affect the appeal of this matter.” The Court of Appeals granted the motion and remanded the case to the trial court, providing in its order that the trial court would supervise the taking of discovery and that the additional evidence then would be transmitted to the intermediate court and the case would be set for oral argument. We hold that the procedure adopted by the Court of Appeals exceeded its appellate jurisdiction; the proper remedy would have been for the plaintiff to file a motion asking the intermediate court to remand the case to the trial court for the filing and adjudication of a motion pursuant to Tennessee Rule of Civil Procedure 60.

Summary of Facts & Proceedings Below

The complaint alleged breach of a partnership agreement and fraud and sought an accounting and damages. The plaintiff, Jerry W. Peck, asserted that he and the defendant, William B. Tanner, entered into a partnership to operate a billboard business (Tanner-Peck LLC). When Tanner later sold the business for approximately seventy-three million dollars, Peck filed the pending lawsuit, seeking his alleged partnership share in the proceeds of the sale. Following a lengthy non-jury trial, the trial court entered a judgment for the defendants. In summary, the trial court found that Tanner and Peck had entered into a written, limited partnership agreement pertaining only to sixty-two billboards that Peck had previously transferred to Tanner as part of the formation of the limited partnership. The court found that the limited partnership formed by Peck and Tanner was limited to those sixty-two billboards and did not extend to the entire business that Tanner subsequently sold; the trial court therefore found that Peck, who had received the money to which he was entitled for the sale of the sixty-two billboards, was not entitled to a share of the total proceeds of the sale. Accordingly, the trial court entered a judgment in favor of the defendants. The trial court also ordered Peck to pay the defendants approximately $720,000 in attorneys’ fees and discretionary costs.

Peck filed a timely notice of appeal from the trial court’s judgment and also filed a second notice of appeal pertaining to the post-trial order awarding attorneys’ fees and litigation expenses. After delays resulting from the filing of various motions in the Court of Appeals, the case was scheduled for oral argument on October 16, 2003.

On October 2, 2003, Peek filed a “Motion to Suspend the Rules Pursuant to T.R.A.P. 2 and 22(a).” In that motion, Peck stated that he had learned, subsequent to trial, that the chancellor allegedly had an undisclosed business relationship with Tanner and that Tanner allegedly had paid the expenses for a one-week vacation in Florida for the chancellor and his family during the time the, case was pending in the trial court. Peck asked the Court of Appeals to remove the case from the docket for oral argument and to stay the appellate proceedings while the allegations concerning Tanner and the chancellor were investigated by law enforcement agencies. The defendants’ counsel agreed to a suspension of the appeal. ■ The Court of Appeals granted Peck’s motion and suspended the appeal, pending further order of the court. The parties jointly submitted an interim status report to the intermediate court on November 26, 2003, advising the court that the criminal investigation was continuing. By order entered on December 10, 2003, the court ordered the parties to submit another status report on or before February 2, 2004, “and [to] file any motions which will be appropriate for commencing the case proceedings.”

On January 26, 2004, Peck filed a motion requesting the Court of Appeals to rule on the matters raised in the “Motion to Suspend the Rules” filed on October 2, 2003. The motion filed on January 26 stated that the criminal investigation was on-going, but that law enforcement officials had indicated that the investigation would not be compromised “by this Court’s' inquiring into the question of whether some judicial impropriety occurred which would affect the judgment on appeal and dictate the relief to be granted here [in the Court of Appeals].” The motion stated that “in view of the uncertain timeframe [sic] attending the criminal investigation, and in view of the fundamentally different area of inquiry facing this Court, fairness requires that this Court now investigate and rule on whether and how Appellant’s allegations will affect the appeal of this matter.” The motion went on to ask the Court of Appeals “to initiate an investigation or inquiry which will yield a supplemental Record on the matters alleged in Appellant’s Motion filed October 3, 2003, and that said supplemental Record be considered in the disposition of this case pursuant to T.R.A.P. 36(a).” In requesting that relief, Peck suggested that the Court of Appeals appoint a “Special Master” to investigate the matter. The intermediate court took Peck’s January 26 motion under advisement.

On April 1, 2004, the Court of Appeals entered an order effectively granting Peck’s January 26 motion. The Court of Appeals found that it could not resolve the issues concerning the alleged improprieties by the chancellor because there were no facts in the evidentiary record concerning those allegations. The intermediate court stated that “the proper and just method of bringing this case to a conclusion is to remand the case to the trial court for the limited purpose of allowing the parties to conduct discovery proceedings under the direction of the trial court concerning the subsequently relied upon facts.” The court’s order concluded by stating, in pertinent part:

IT IS, THEREFORE, ORDERED that this case be and the same is hereby remanded to the trial court for the purpose of allowing the discovery proceedings referred to under the supervision of the trial court. Upon completion of the discovery proceedings, such depositions or other material shall be made a supplement to the record on appeal and duly filed with the Clerk of this Court and at such time this case will be set for oral argument.

Following entry of the Court of Appeals’ order on April 1, 2004, Tanner and Tanner-Peck, LLC, filed an application for an extraordinary appeal to the Supreme Court pursuant to Tennessee Rule of Appellate Procedure 10. They argue, in summary, that the Court of Appeals’ order exceeded that court’s appellate jurisdiction. The applicants asserted that the procedure adopted by the Court of Appeals in the April 1 order was an exercise of original jurisdiction, under which the intermediate court ultimately would determine the facts concerning the alleged misconduct of the chancellor. We granted the application for an extraordinary appeal to review the procedure adopted by the Court of Appeals. For the reasons discussed below, we conclude that the procedure adopted by the Court of Appeals exceeds that court’s appellate jurisdiction. Accordingly, we vacate the intermediate court’s order filed on April 1, 2004, and remand the case to the Court of Appeals for resumption of the appeal as of right.

Standard of Review

Following the granting of an application for an interlocutory or extraordinary appeal, the standard of review is the same standard that would have been applied to the issue(s) in an appeal as of right. State v. Moore, 775 S.W.2d 372, 374 (Tenn.Crim.App.1989). The issue before us concerning the scope of appellate jurisdiction is a question of law; as a result, our review is de novo without a presumption of correctness. See State v. Cawood, 134 S.W.3d 159, 163 (Tenn.2004); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

Analysis

We begin our analysis by considering the statute establishing the jurisdiction of the Court of Appeals. As provided in Tennessee Code Annotated section 16-4-108(a)(1) (1994): “The jurisdiction of the court of appeals is appellate only, and extends to all civil cases except workers’ compensation cases and appeals pursuant to § 37-10-304(g).” The meaning of the statute is plain — the intermediate court’s jurisdiction is “appellate only.”

We turn next to cases applying either section 16-4-108(a)(1) or Article VI, section 2 of the Tennessee Constitution (providing that “[t]he jurisdiction of this [the Supreme] Court is appellate only ... ”). In a number of cases involving the scope of appellate jurisdiction, this Court and the Court of Appeals have consistently held that the appellate courts cannot exercise original jurisdiction and that their jurisdiction is “appellate only.” See, e.g., Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn.1984); Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn.1976); Clement v. Nichols, 186 Tenn. 235, 209 S.W.2d 23 (1948); Fine v. Lawless, 140 Tenn. 453, 205 S.W. 124 (1918); Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn.Ct.App.1998); Mallicoat v. Poynter, 722 S.W.2d 681, 682 (Tenn.Ct.App.1986); Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn.Ct.App.1978); Standard Oil Co. v. Naramore, 30 Tenn.App. 430, 207 S.W.2d 7, 15 (1947).

One ease is particularly instructive in the context of the pending case. In Pierce v. Tharp, 224 Tenn. 328, 461 S.W.2d 950, 954 (1970), the plaintiffs filed a “motion” (in actuality, a second petition to rehear) in this Court alleging, in pertinent part, that two members of the Court had engaged in private communications with the chancellor and an intermediate court judge concerning disputed issues in the case. The plaintiffs requested “[t]hat they be given an opportunity to adduce proof in support of this motion” and that “a hearing be set before this [the Supreme] Court upon the issues raised herein.” Id. We dismissed the “motion,” noting that it was “[a] rather unique and novel proposal since this Court is a court of appellate jurisdiction only.” Id. (citations omitted). We then went on to state:

In re Bowers, [137 Tenn. 193, 192 S.W. 919 (Tenn.1917)], it is said:
“Section 2 of article 6 of the state Constitution provides that the jurisdiction of the Supreme Court ‘shall be appellate only * * *.'"
“This section of the Constitution has been construed in many cases, and the holdings of this court have been uniform to the effect that it is without original jurisdiction in any matter, and that it is beyond the power of the Legislature to confer original jurisdiction upon it.”

Id. (citations omitted). Pierce involved a situation analogous to the pending case— an allegation, first raised on appeal, of misconduct by judges and an attempt to “adduce proof’ and have the appellate court determine the merits of the allegations. Pierce stands for the proposition that an appellate court cannot exercise original jurisdiction over such matters. -

In granting the plaintiffs motion in the pending case, the Court of Appeals ordered that:

this case be and' the same is hereby remanded to the trial court for the purpose of allowing the discovery proceedings referred to under the supervision of the trial court. Upon completion of the discovery proceedings, such depositions or other, material shall be made a supplement to the record on appeal and duly filed with the Clerk of this Court and at such time this case will be set for oral argument.

Under the intermediate court’s order, the trial court would merely “supervise” the taking of discovery, and the Court of Appeals would decide the merits of the allegations of misconduct by the chancellor. This procedure necessarily would make the Court of Appeals the trier-of-fact in the first instance as to the allegations, an exercise of original jurisdiction. Based upon the foregoing authorities, we conclude that the procedure adopted by the Court of Appeals exceeded its appellate jurisdiction. See also Cole v. Clifton, 833 S.W.2d 75, 78 (Tenn.Ct.App.1992) (stating that “[a]s an appellate court, we are limited in our .review to facts in the record considered by the trial court and, therefore, we are not in a position to consider the effect of evidence not before the trial court at the time of its decision”).

Our holding that the Court of Appeals exceeded its appellate jurisdiction in ordering the novel procedure it adopted does not leave the plaintiff without a remedy. Tennessee Rule of Civil Procedure 60 provides the appropriate remedy. Rule 60.02 provides:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this Rule 60.02 does not affect the finality of a judgment or suspend its operation, but the court may enter an order suspending the operation of the judgment upon such terms as to bond and notice as to it shall seem proper pending the hearing of such motion. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court. Writs of error coram nobis, bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

While Rule 60 affords a procedural remedy to the plaintiff in the pending case, he would first have to file a motion in the appellate court, asking that the case be remanded to the trial court for the filing and adjudication of a Rule 60 motion. As we previously have stated:

a trial court has no jurisdiction to consider a Rule 60.02 motion during the pendency of an appeal. If a party wishes to seek relief from the judgment during the pendency of an appeal, he should apply to the appellate court for an order of remand. We stress that because the trial court will most likely be in a better position to quickly assess the merits of such a motion, leave should be freely granted by the appellate court if the motion is not frivolous on its face.

Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn.1994) (footnote omitted).

The plaintiff has not asked this Court (or the Court of Appeals) to remand the case pursuant to Spence for the filing of a Rule 60 motion. Because the plaintiff may have made a deliberate choice not to do so, we decline to do so on our own initiative. Our resolution of the issue in this extraordinary appeal, however, does not preclude the plaintiff from requesting such relief from the Court of Appeals following our remand to that court. We hasten to add, however, that nothing in our analysis should be interpreted as expressing an opinion as to the merits of a Rule 60 motion, should one ultimately be filed; the merits of such a motion would be decided by the trial court, based upon the evidence presented in that court following a remand by the Court of Appeals.

In conclusion, we hold that the Court of Appeals exceeded its appellate jurisdiction in remanding the case for discovery concerning the allegations of misconduct and in ordering that the discovery materials be transmitted to the intermediate court as a supplemental record. The clear effect of the intermediate court’s order is that the Court of Appeals, not the trial court, would have determined the merits of the allegations, which necessarily would have required the Court of Appeals to make factual findings based upon the “supplemental record.” We conclude that such a determination would have been an unauthorized exercise of original jurisdiction. Tennessee Rule of Civil Procedure 60 and our decision in Spence provide a procedural remedy to the plaintiff for litigating the allegations of misconduct.

The order filed by the Court of Appeals on April 1, 2004, is vacated, and the case is remanded to the Court of Appeals for resumption of the appeal as of right. The costs of this Rule 10 extraordinary appeal shall be taxed to the plaintiff-appellee, Jerry W. Peck, for which execution may issue if necessary.

      . We note that the “Petition for Accounting; Complaint for Damages and for a Constructive Trust” was filed on November 25, 1996. The trial of the case did not begin until March 13, 2001.

      . The notices of appeal were filed on November 2, 2001, and November 27, 2001, respectively.

      . The alleged business relationship between the chancellor and Tanner apparently was unrelated to the billboard business that was the subject of the pending litigation.

      . In addition to allowing discovery concerning the alleged improprieties by Tanner and the chancellor, the intermediate court's order also would have allowed discovery concerning allegations by the defendants that Peck had "unclean hands”; those allegations had been made by the defendants in a motion to consider post-judgment facts, which motion had been denied by the Court of Appeals.

      . As stated earlier in this opinion, the chancellor who presided over the trial of the case has died, and a Rule 60 motion therefore would be ruled upon by his successor. We note, however, that in cases involving alleged judicial misconduct and in which the same trial judge is still on the bench, the party could file both a Rule 60 motion and a motion for the trial judge to recuse himself or herself. If the judge declines to recuse himself or herself and goes on to decide the Rule 60 motion, both rulings then could be challenged on appeal based upon the record developed in the trial court.


source: Caselaw Access Project

author: JANICE M. HOLDER, J.,

license: Public Domain

text:
    Charles BROWN, et al. v. CROWN EQUIPMENT CORPORATION, a/k/a Crown Equipment Corp.
    Supreme Court of Tennessee, at Jackson.
    April 5, 2005 Session.
    Oct. 27, 2005.

      Gerson H. Smoger, Dallas, Texas, J. Brent Austin, Lexington, Kentucky, Lisa June Cox, Jackson, Tennessee, and Robert David Strickland, Martin, Tennessee, for the appellants, Charles Brown, Barbara Sue Reynolds, and Howard Reynolds.
    Adam T. Sampson and Thomas J. Cullen, Jr., Baltimore, Maryland, and Shannon Edward Holbrook and William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Crown Equipment Corporation a/k/a Crown Equipment.
    Andrew Lawrence Berke and Megan.C. England, Chattanooga, Tennessee, for the amicus curiae, Tennessee Trial Lawyers Association.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and FRANK F. DROWOTA, III, E. RILEY ANDERSON, and ADOLPHO A. BIRCH, JR., JJ., joined.

We granted appeal in this products liability action to determine whether the trial court erred in excluding as unreliable the testimony of the plaintiffs’ two expert witnesses, a mechanical engineer and a biomechanical engineer, and thereafter granting a directed verdict in favor of the defendant. We hold that the trial court erred in applying the nonexclusive list of reliability factors set out in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997). These factors are not mandated in every case in which expert evidence is offered and should not be applied unless the factor or factors provide a reasonable measure of the expert’s methodology. We further conclude that the trial court erred in granting a directed verdict in favor of the defendant. Accordingly, we reverse the judgment of the Court of Appeals, which affirmed the trial court’s judgment. We remand the case to the trial court for further proceedings in accordance with this opinion.

Charles Brown (“Mr. Brown”) and Barbara Sue Reynolds (“Mrs. Reynolds”) sustained injuries to their left legs while operating two different models of stand-up forklifts manufactured by Crown Equipment Corporation (“Crown”). Mr. Brown and Mrs. Reynolds brought product liability claims against Crown alleging that their injuries were caused by the defective nature of the forklifts. Mrs. Reynolds’ husband, Howard Reynolds (“Mr. Reynolds”), sought compensation from Crown based upon loss of consortium.

Prior to trial, Mr. Brown, Mrs. Reynolds, and Mr. Reynolds (collectively “the plaintiffs”) as well as Crown filed motions in limine seeking to preclude the opposing parties’ experts from testifying at trial. The trial court denied the motions and permitted the experts of both parties to testify at trial. During trial, the plaintiffs presented the testimony of Richard Jo-hannson (“Mr. Johannson”), a mechanical engineer, and Dr. Gerald Harris (“Dr. Harris”), a biomechanical engineer. Both Mr. Johannson and Dr. Harris opined that the injuries of Mr. Brown and Mrs. Reynolds would not have occurred had Crown installed rear doors on the operator compartments of the forklifts.

At the close of Crown’s proof, Crown renewed its motion to exclude the testimony of Mr. Johannson and Dr. Harris and moved for a directed verdict on all issues of liability. The trial court excluded the expert testimony of Mr. Johannson and Dr. Harris as unreliable under McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997). The trial court also granted Crown’s motion for a directed verdict, finding that without the expert testimony the plaintiffs failed to establish that Crown was negligent or that its forklifts “were defective or unreasonably dangerous or that the forklifts were not merchantable or fit for the particular purpose for which they were manufactured.”

The Court of Appeals affirmed the judgment of the trial court. We granted review.

ANALYSIS

A. Overview of the Admissibility of Expert Testimony

Generally, questions pertaining to the qualifications, admissibility, relevancy, and competency of expert testimony are matters left to the trial court’s discretion. McDaniel, 955 S.W.2d at 263. We may not overturn the trial court’s ruling admitting or excluding expert testimony unless the trial court abused its discretion. Id. at 263-64. A trial court abuses its discretion if it applies an incorrect legal standard or reaches an illogical or unreasonable decision that causes an injustice to the complaining party. State v. Stevens, 78 S.W.3d 817, 832 (Tenn.2002).

, Tennessee Rules of Evidence 702 and 703 govern the admissibility of expert testimony in Tennessee. Rule 702 states that “[i]f scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.” Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

The trial court, therefore, must determine that the expert testimony is reliable in that the evidence will substantially assist the trier of fact to determine a fact in issue and that the underlying facts and data appear to be trustworthy. In addition to these specific rules, evidence generally must be relevant to be admissible. See Tenn. R. Evid. 401, 402. The issue in the present case concerns the reliability of the testimony of the plaintiffs’ expert witnesses, Mr. Johannson and Dr. Harris.

In McDaniel, we listed several nonexclusive factors that courts could consider in determining the reliability of scientific testimony, including

(1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether ... the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation.

955 S.W.2d at 265; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (applying the first four factors in determining the reliability of scientific expert testimony pursuant to the Federal Rules of Evidence); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.1995) (considering on remand the fifth factor in addition to the first four factors). The McDaniel factors also may be applied to nonscientific expert testimony. Stevens, 78 S.W.3d at 834; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding that a trial court may consider the Daubert factors in assessing the reliability of nonscientific expert testimony in accordance with the Federal Rules of Evidence).

In addition to the McDaniel factors, we have identified other nondefinitive factors that a trial court may consider in assessing the reliability of an expert’s methodology. One such factor is the expert’s qualifications for testifying on the subject at issue. Stevens, 78 S.W.3d at 835. This factor is applicable particularly where the expert’s personal experience is essential to the methodology or analysis underlying his or her opinion. We, however, caution that using this factor as the sole basis of reliability would result in a reconsideration of the Rule 702 requirement that the expert witness be qualified by knowledge, skill, experience, training, or education to express an opinion within the limits of the expert’s expertise. As a result, the expert testimony would become “perilously close to being admissible based upon the ipse dixit of the expert.” Robert J. Goodwin, The Hidden Significance of Kumho Tire Co. v. Carmichael: A Compass for Problems of Definition and Procedure Created by Daubert v. Merrell Dow Pharmaceuticals, Inc., 52 Baylor L.Rev. 603, 635 (2000); see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (cautioning against the admission of expert testimony that is connected to existing data only through the “ipse dixit of the expert”). Furthermore, the trial court should distinguish between “ ‘the marginally-qualified full-time expert witness who is testifying about a methodology that she has not employed in real life’ and ‘the highly credentialed expert who has devoted her life’s work to the actual exercise of the methodology upon which her testimony is based.’ ” Sarah Brew, Where the Rubber Hits the Road: Steering the Trial Court Through a Post-Kumho Tire Evaluation of Expert Testimony, 27 Wm. Mitchell L.Rev. 467, 486 (2000).

Another factor that we have identified is the connection between the expert’s knowledge and the basis for the expert’s opinion. Stevens, 78 S.W.3d at 835. The purpose of this factor is to ensure that an “analytical gap” does not exist between the data relied upon ánd the opinion offered. Id.; see Gen. Elec. Co., 522 U.S. at 146, 118 S.Ct. 512 (holding that experts, who opined that the plaintiffs exposure to certain chemicals and toxins in the workplace contributed' to his cancer, relied upon studies that either were too dissimilar to the facts of the case or failed to link the cancer with the chemical exposure). This factor is important particularly when the expert’s opinions are based upon experience or observations as these areas are not easily verifiable. Stevens, 78 S.W.3d at 834. A trial court, however, may conclude that an expert’s opinions are reliable “if the expert’s conclusions are sufficiently straightforward and supported by a ‘rational explanation which reasonable [persons] could accept as more correct than not correct.’ ” Id. (quoting Wood v. Stihl, 705 F.2d 1101, 1107-08 (9th Cir.1983)).

We continue to emphasize, however, that these factors are non-exclusive and that a trial court need not consider all of these factors in making a reliability determination. Rather, the trial court enjoys the same latitude in determining how to test the reliability of an expert as the trial court possesses in deciding whether the expert’s relevant testimony is reliable. Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167. The objective of the trial court’s gatekeeping function is to ensure that “an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. Furthermore, upon admission, expert testimony will be subject to vigorous cross-examination and countervailing proof. Stevens, 78 S.W.3d at 835; McDaniel, 955 S.W.2d at 265. The weight of the theories and the resolution of legitimate but competing expert opinions are matters entrusted to the trier of fact. See McDaniel, 955 S.W.2d at 265. With these principles in mind, we turn to the trial court’s rulings in the present case.

B. Expert Testimony: Trial Court Proceedings

Mr. Johannson is a mechanical engineer with a professional engineering license. In 1970, Caterpillar hired him to aid in the redesign of its sit-down forklifts. While at Caterpillar, Mr. Johannson obtained sixteen patents for various devices on forklifts. In 1989, Mr. Johannson formed Concept Engineering, a private consulting firm that designs various machines for businesses.

Mr. Johannson offered two opinions regarding the circumstances surrounding the injuries to Mr. Brown and Mrs. Reynolds. He.testified that: 1) Crown was aware of the problem with left leg injuries and failed to take action to remedy the problem; and 2) a stand-up forklift with a properly latched door would have prevented the injuries suffered by Mr. Brown and Mrs. Reynolds.

The trial court found that it was required to apply all five of the McDaniel factors to Mr. Johannson’s testimony. The trial court first found that Mr. Jo-hannson failed to test his door design and offered “no evidence except for his bare-boned opinion regarding the pretrial testimony of the plaintiffs, various witnesses and the defendant’s accident reports.” As to factors two and three, the trial court reasoned that Mr. Johannson’s preliminary drawing of a door design could not be subjected to peer review and that the potential rate of error is unknown due to the lack of testing. In examining whether the evidence is generally accepted in the scientific community, factor four, the trial court explained that the scientific community “cannot possibly have any knowledge” of Mr. Johannson’s drawing and has rejected Mr. Johannson’s proposal to “ ‘just add doors and safety follows’ ” on prior occasions. Finally, the trial court found that Mr. Johannson had created his preliminary sketch for purposes of litigation. The trial court concluded its examination of Mr. Jo-hannson’s testimony by stating,

The Court does not dispute that the witness is an expert in his chosen field of engineering. The Court would not exclude this if he had any testing to back up his opinions; however, he does not. And the fact that he may be able to make a far more educated guess than a layperson, this does not make his opinion trustworthy.

Dr. Harris is a professor of biomedical engineering at Marquette University where he teaches courses in biomechanical engineering. He is also a licensed professional engineer. Dr. Harris’ work as a biomedieal/biomechanical engineer involves the application of mechanical engineering principles to the human body and the biomechanics of trauma or the study of the amount of force necessary to cause injuries to different parts of the body. This branch of biomechanics also evaluates the body’s position and how the position changes upon the occurrence of an accident or the application of a force. Dr. Harris also serves as director of research in the Department of Orthopedic Surgery at the Medical College of Wisconsin and collaborates with the Shriner’s Hospital in Chicago. He supervises two gait laboratories where he examines the movements and forces of a person’s legs, as well as a person’s ability to stand and maintain balance.

Dr. Harris offered opinions as to how Mr. Brown and Mrs. Reynolds were injured. Dr. Harris opined that 1) Mr. Brown and Mrs. Reynolds would not have been injured had their forklifts been equipped with doors; 2) the addition of a door would not increase the chances of injury during a tip-over or off-the-dock accident; and 3) the operator should remain inside the operator’s compartment during a tip-over or off-the-dock accident.

As with Mr. Johannson’s testimony, the trial court found that it was required to apply all five of the McDaniel factors to Dr. Harris’ testimony and addressed each factor in turn. The trial court concluded that 1) the doctor failed to offer support in the form of data and testing of his conclusion that the injuries would not have occurred if the forklifts had been equipped with doors; 2) Dr. Harris’ hypothesis had not been subjected to peer review; 3) the rate of error was unknown due to the doctor’s failure to test the hypothesis; 4) a determination of whether the evidence is generally accepted in the scientific community could not be obtained due to Dr. Harris’ failure to submit any evidence; and 5) Dr. Harris’ opinions and conclusions came about through litigation. The trial court reasoned that:

Dr. Harris has conducted no testing, and he does not purport to rely on any testing which would support any of his conclusions. Dr. Harris has merely relied on his knowledge in the field of biomechanics. And, again, the Court has no reason to question Dr. Harris’ expertise as an expert in the field of biomechanics, but more is involved in this case than an expertise in the field of biomechanics. In this type of litigation, where the machinery in question is a highly specialized piece of equipment, an expert witness cannot rely on supposition or theories. An expert testifying that he knows what happened and how it could have been prevented may not do so absent any tests or research or reliable scientific method. Dr. Harris’ methodology appears to the Court to be little more than a consideration of the facts presented.

C. Application of the McDaniel Factors to the Testimony of Mr. Johannson and Dr. Harris

In the present case, the trial court concluded that it was required to apply all five of the McDaniel factors in assessing the reliability of the testimony of Mr. Johannson and Dr. Harris. Although a trial court has great latitude in assessing the reliability of expert testimony, we have never required a rigid application of the McDaniel factors in a reliability determination involving scientific or nonscientific expert evidence. See Stevens, 78 S.W.3d at 834; McDaniel, 955 S.W.2d at 265. Rather, we have characterized the factors as a “non-exclusive list” that a trial court “may” consider in determining reliability. McDaniel, 955 S.W.2d at 265.

The rigid application of the McDaniel factors to all expert testimony is problematic because all expert testimony may not “fit” within the factors. We agree with the United States Supreme Court that “we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors ... nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence.” Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. 1167. The reasonableness of the McDaniel factors in assessing reliability depends upon the nature of the issue, the witness’s particular expertise, and the subject of the expert’s testimony. See Stevens, 78 S.W.3d at 833; see also Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. 1167. The McDaniel factors may apply, subject to the trial court’s discretion, when they are reasonable measures of the reliability of the expert testimony. Stevens, 78 S.W.3d at 834.

Upon reviewing the record, we conclude that both Mr. Johannson and Dr. Harris based their testimony primarily upon their practical experiences in them respective professions and that the testimony of neither expert fits neatly within the McDaniel factors. An expert may reach a conclusion from observations based upon his or her extensive and specialized experience. Kumho Tire Co., 526 U.S. at 156, 119 S.Ct. 1167. Opinions derived in this manner, however, “do not easily lend themselves to scholarly review or to traditional scientific evaluation.” First Tenn. Bank Nat’l Ass’n v. Barreto, 268 F.3d 319, 335 (6th Cir.2001).

1. Testing

In excluding the testimony of Mr. Johannson and Dr. Harris, the trial court emphasized their lack of testing to support their opinions. In rendering their opinions, however, both Mr. Johannson and Dr. Hands relied upon their review of Crown’s accident reports and reporting system, tests conducted by Crown, and other documents and materials from Crown. An expert may rely upon both data collected by others and tests performed by others in reaching his or her conclusions. See Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94-95 (2d Cir.2000); Walker v. Soo Line R.R. Co., 208 F.3d 581, 588-89 (7th Cir.2000); Kinser v. Gehl Co., 184 F.3d 1259, 1272 (10th Cir.1999). Although Crown expresses disapproval of the conclusions that Mr. Johann-son and Dr. Harris drew from this information, the fact that Crown’s experts may have reached different conclusions from the same information does not render the testimony of Mr. Johannson and Dr. Harris inadmissible. See Walker, 208 F.3d at 589. Furthermore, Dr. Harris properly relied upon the factual events of the accidents as reported by Mr. Brown and Mrs. Reynolds. See id. at 586 (holding that medical experts may rely upon self-reported patient histories). Any inaccuracies in these events may be explored through cross-examination. Id.

In regard to the testing factor, the trial court also faulted Mr. Johann-son’s failure to develop and test the sketch of a door that he had presented. We recognize that some courts have excluded expert testimony of a safer alternative design where the expert did not create detailed drawings of the design or perform tests. See, e.g., Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358-59 (2d Cir.2004). Mr. Johannson, however, did not submit his sketch of a door as a safer alternative design. Rather, Mr. Johannson presented the sketch in connection with his testimony regarding the steps that he maintained Crown should have taken to remedy the problem of left leg injuries resulting from stand-up forklift accidents. Mr. Johann-son testified that while he was employed at Caterpillar he participated in the Kepman Traylor Problem Solution Analysis Approach as a method of resolving design issues with its forklifts. One of the steps involved a brainstorming session during which members of a design team would identify possible solutions. Mr. Johannson clearly stated that the purpose of the sketch was to illustrate the activities that Crown failed to perform as part of the brainstorming stage. Under these circumstances, we do not believe Mr. Johannson’s failure to test his sketch renders his testimony inadmissible.

Furthermore, both Mr. Johannson and Dr. Harris testified that Crown has sold models of its stand-up forklifts equipped with doors. The fact that stand-up forklifts equipped with doors have been manufactured and placed on the market diminishes the need for tests, a prototype, and design development. See McPike v. Corghi S.P.A., 87 F.Supp.2d 890, 893-94 (E.D.Ark.1999); cf. Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1084 (8th Cir.1999) (expert failed to construct, draw, or test the device or identify any manufacturer who had incorporated the device into its product); Dancy v. Hyster Co., 127 F.3d 649, 651-52 (8th Cir.1997) (expert did not design the proposed safety device or point to its use on similar machines). Thus, the idea of a stand-up forklift equipped with a door is not merely an untested theory for which there is no support. Rather, it is a design that has been incorporated to some degree by Crown itself.

The trial court also emphasized Dr. Harris’ failure to test his conclusions regarding the actions that an operator should take in the event of a tip-over or off-the-dock emergency. Dr. Harris testified that from a biomechanic standpoint, an operator involved in a tip-over or off-the-dock emergency should attempt to regain control of the forklift. If there is no time to react, the operator should stiffen and lean away from the impact zone.- Dr. Harris stated that training a wide variety of people to successfully jump off a forklift in the event of an emergency would be impossible due to differing work environments, work surfaces, operating speeds, and physical characteristics and reaction times of operators.

Contrary to Dr. Harris’ opinion, safety regulations instruct operators to exit compartments during these types of accidents. When an expert proposes a theory that modifies otherwise well-established knowledge, the importance of testing as a factor in determining reliability is at its highest. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235-36 (10th Cir.2004). In addition to biomechanical engineering principles, Dr. Harris relied upon his observations of a test conducted by John Sevart in which a human being remained inside the operator’s compartment of a Yale stand-up forklift equipped with a door during a tip-over. During the demonstration, tip-overs were conducted at smaller angles before a full tip-over was conducted. Dr. Harris stated the operator was not injured during the demonstration and did not appear to have hit his head. According to Dr. Harris, the demonstration illustrated “the use of a door to complete the protection zone in a tip-over environment where the operator ... [s]tays safe within the compartment of the forklift.” Dr. Harris indicated that the results of tests involving human beings are more accurate than the results of tests involving dummies due to the biomechanical difference in the reaction of the subjects. Furthermore, Dr. Harris explained that the sit-down forklift industry uses the same process when testing its products. Due to this testimony, we do not believe that the fact of conflicting instructions in the safety regulations alone provides a sufficient basis for exclusion of Dr. Harris’ testimony.

2. Peer Review

Although the trial court found that the opinions of neither Mr. Johannson nor Dr. Harris had been subjected to peer review, the lack of peer review does not necessarily render an expert’s opinion unreliable. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; First Tenn. Bank Nat’l Ass’n, 268 F.3d at 334. “It might not be surprising in a particular case ... that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist.” Kumho Tire Co., 526 U.S. at 151, 119 S.Ct. 1167. The trial court failed to indicate whether publication is typical for the methodologies that Mr. Johannson and Dr. Harris purported to employ. The trial court’s failure to explain the connection between lack of peer review and the reliability of these experts’ testimony prevents us from examining the extent to which this factor affects the reliability of the methodologies employed by Mr. Johannson and Dr. Harris. See Smith v. Ford Motor Co., 215 F.3d 713, 720-21 (7th Cir.2000). We recognize, however, that Dr. Harris has published numerous articles regarding the principles of biomechanics, even though he has not subjected the application of these principles to forklifts to peer review. With regard to Mr. Johannson, the failure to submit to publication opinions based upon well-established engineering techniques or extensive practical experience, rather than novel methodology, rarely casts doubt upon the reliability of the opinions. See id.

3. Potential Rate of Error

The trial court found that the potential rate of error for the conclusions of Mr. Johannson and Dr. Harris is unknown due to lack of testing. The experienced-based methodology of the two experts, combined with Crown’s incorporation of a door on some of its stand-up forklifts, lessens the relevancy of the rate of error factor. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir.2002) (holding that the rate-of-error factor is not particularly relevant where the expert bases his or her testimony upon first-hand observations and professional experience).

4. General Acceptance

The trial court considered the general acceptance of the two experts’ opinions regarding the safety of stand-up forklifts that are not equipped with doors. In its ruling, the trial court referred to safety standards that do not require doors on stand-up forklifts. Those standards in-elude the American Society of Mechanical Engineers (ASME), the Occupational Safety and Health Administration (OSHA), the American National Standards Institute (ANSI), the National Institute for Occupational Safety and Health (NIOSH), and the military. ANSI and ASME are private, professional organizations, and ANSI’s standards are “voluntary.” Regulations from both 0'SHA and NIOSH are applicable to an employer’s conduct and not to a manufacturer’s conduct. See 29 U.S.C. §§ 651-54, 669-71; see also Minichello v. U.S. Indus., Inc., 756 F.2d 26, 28-30 (6th Cir.1985). While these regulatory authorities do not mandate the incorporation of a door, they also do not prohibit doors. Cf. Giles v. Miners, Inc., 242 F.3d 810, 812-13 (8th Cir.2001) (excluding expert testimony regarding alternative design due to various shortcomings including the fact that the design would violate industry design standards). Furthermore, military specifications do not regulate Crown’s conduct in designing and manufacturing stand-up forklifts for non-military use. See McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1033 (9th Cir.2003) (“The military specifications at issue, not having the force of law, could not have required Crown to manufacture its non-military 30RC forklifts to any particular specification.”).

5. Research Conducted Independent of Litigation

Finally, the trial court found that the conclusions of Mr. Johannson and Dr. Harris were derived from litigation. Much of their testimony, however, was derived from pre-litigation personal experiences in their respective fields. As a result, the relevancy of this factor is lessened.

Accordingly, we conclude that the trial court erred in holding that application of all five of the McDaniel factors was mandated and in applying the McDaniel factors when the factors did not provide an adequate measure of the reliability of the methodologies employed by Mr. Johannson and Dr. Harris. During the trial, the trial court expressed reservations as to the reliability of the testimony of Mr. Johannson and Dr. Hams. We, however, are unable to separate these expressions from the trial court’s mistaken belief that it was required to apply all five of the McDaniel factors. Rather, a trial court need only apply those McDaniel factors that it finds reasonably measure the reliability of the particular expert’s methodology. Therefore, we conclude that the trial court erred in excluding the testimony of both Mr. Johannson and Dr. Harris.

D. Directed Verdict

Having concluded that the trial court erred in excluding the testimony of Mr. Johannson and Dr. Harris, we now turn to the trial court’s decision to grant Crown’s motion for a directed verdict on the plaintiffs’ claims that the stand-up forklifts were defective or unreasonably dangerous. We review a trial court’s decision to grant a directed verdict de novo, applying the same standards as employed by the trial court. See Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn.2003). We will affirm a directed verdict when the evidence is susceptible to only one conclusion. Childress v. Currie, 74 S.W.3d 324, 328 (Tenn.2002). We must take the strongest legitimate view of the evidence and accept all reasonable inferences in favor of the nonmoving party. Id. We may affirm the directed verdict “only if, after assessing the evidence according to the foregoing standards, [we] deter-minen that reasonable minds could not differ as to the conclusions to be drawn from the evidence.” Id. (citation omitted).

Under the Tennessee Products Liability Act of 1978, “[a] manufacturer or seller of a product shall not be hable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn.Code Ann. § 29-28-105(a) (1980). Thus, the Act provides for recovery for injuries caused by a product that either is in a “defective” condition or is “unreasonably dangerous.” Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 42 n. 7 (Tenn.2001); Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527, 529 n. 3 (Tenn.1996). A product is in a “defective condition” if it is “unsafe for normal or anticipatable handling and consumption.” Tenn.Code Ann. § 29-28-102(2) (1980). The term “unreasonably dangerous” means that

a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

Id. at (8).

In determining whether a product is defective or unreasonably dangerous as to warrant liability, “the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable.” Tenn.Code Ann. § 29-28-105(b) (1980). Moreover, “Consideration is given ... to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products.” Id. Evidence of a better, safer, or different design that might have avoided injury is insufficient to establish a design defect. Shoemake v. Omniquip Int’l Inc., 152 S.W.3d 567, 573 (Tenn.Ct.App.2003). A manufacturer is not required to design a product that is perfect, accident-proof, or incapable of causing injury. See id. Instead, the plaintiff must show that the product was “unsafe for normal or anticipatable handling.” Tenn. Code Ann. § 29-28-102(2). The plaintiff also must trace his or her injury to the defect. King v. Danek Med., Inc., 37 S.W.3d 429, 435 (Tenn.Ct.App.2000).

In granting Crown’s motion for a directed verdict, the trial court found that absent expert testimony, the plaintiffs failed to offer evidence that Crown’s forklifts were defective. The plaintiffs presented evidence through expert testimony, which we have held to be admissible, that Crown’s stand-up forklifts were unsafe for normal and reasonably anticipated handling and use due to the absence of a door. The plaintiffs’ experts further testified that the injuries to Mr. Brown and Mrs. Reynolds would not have occurred had the forklifts they were operating been equipped with doors. Upon viewing the evidence in a light most favorable to the plaintiffs as the nonmoving parties, we conclude that reasonable minds could disagree with the trial court’s conclusion that the plaintiffs failed to present proof of a defect.

In determining whether a product is unreasonably dangerous, we have interpreted the Tennessee Products Liability Act of 1978 as providing for two tests: the consumer expectation test and the prudent manufacturer test. Ray ex rel. Holman, 925 S.W.2d at 531. These two tests are not exclusive of one another, and either or both are applicable to claims of unreasonably dangerous products. Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn.2001). In the present case, the plaintiffs relied upon the prudent manufacturer test in contending that Crown’s stand-up forklifts were unreasonably dangerous.

Under the prudent manufacturer test, liability is imposed “in circumstances in which a reasonably prudent manufacturer with knowledge of a product’s dangerousness would not place the product in the stream of commerce.” Ray ex rel. Holman, 925 S.W.2d at 532. Thus, the prudent manufacturer test imputes knowledge of the product’s condition to the manufacturer and requires proof concerning the reasonableness of the decision of the manufacturer to market the product in light of this knowledge. Id. at 530-31. The buyer’s expectations are irrelevant. Id. at 531.

Application of the prudent manufacturer test requires a risk-utility balancing of a number of factors, including (1) the product’s usefulness and desirability; (2) the product’s safety aspects-the likelihood and probable seriousness of injury; (3) the availability of a substitute product that would safely meet the same need; (4) the manufacturer’s ability to eliminate the product’s unsafe character without hindering its usefulness or causing the maintenance of its utility to be too expensive; (5) the ability of the operator or user to avoid danger through the exercise of care in using the product; (6) the user’s anticipated awareness of the product’s inherent dangers and their avoidability; and (7) the feasibility of the manufacturer spreading the loss by setting the price of the product or maintaining liability insurance. Id. at 532-38, 533 n. 10.

In granting a directed verdict in favor of Crown, the trial court held that absent expert testimony the plaintiffs failed to offer proof that Crown’s forklifts were unreasonably dangerous. Through admissible expert testimony, the plaintiffs presented evidence regarding the likelihood and probable seriousness of injury to an operator of a stand-up forklift without a door and the operator’s inability to avoid the danger. The plaintiffs also provided expert proof that the inclusion of a door would prevent the injury without hindering the overall usefulness and safety of the product. Upon viewing the evidence in a light most favorable to the plaintiffs as the nonmoving parties, we conclude that reasonable minds could disagree with the trial court’s conclusion that the plaintiffs failed to present proof that Crown’s stand-up forklifts were unreasonably dangerous. Accordingly, the trial court erred in granting Crown’s motion for a directed verdict on the plaintiffs’ claims that Crown’s stand-up forklifts were defective and unreasonably dangerous.

CONCLUSION

We hold that the trial court erred in finding that application of all the McDaniel factors was mandated and in applying those factors when they failed to provide a reasonable measure of the reliability of the experts’ methodologies. We further conclude that the trial court erred in granting Crown’s motion for a directed verdict on the plaintiffs’ claims that Crown’s stand-up forklifts are defective and unreasonably dangerous. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

Costs of appeal are taxed to the appel-lee, Crown Equipment Corporation, and its sureties, for which execution may issue if necessary.

      . In its written order excluding the testimony of both Mr. Johannson and Dr. Harris, the trial court stated,
      Tennessee has not adopted the Daubert standards, but instead requires a consideration of a nonexclusive list of factors to determine an expert witness’s reliability. Among the factors that the Court must consider are those set out in the case of McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.1997), rehearing denied, 955 S.W.2d 257 (Tenn.1997), cert. denied, 524 U.S. 915, 118 S.Ct. 2296, 141 L.Ed.2d 157 (1998).
      (Emphasis added).

      . John Sevart is a mechanical engineer who did not testify at trial. The plaintiffs contend that the trial court’s placement of rigid time constraints along with the trial court's requirements regarding the order of proof prevented the plaintiffs from presenting the expert testimony of John Sevart. According to the plaintiffs, Sevart would have testified regarding the propriety of a compartment door and the tests that he had conducted. The plaintiffs, however, failed to cite to the portion of the record where they sought to present Sevart's testimony and where the trial court' denied their request or provided the basis upon which the request was denied. Although Sevart’s affidavit is included in the record, the record does not contain an offer of proof by the plaintiffs suggesting that Sevart’s testimony would be consistent with his affidavit. Accordingly, we decline to address the issue.

      . See "ANSI Overview," available at http:// www.ansi.org /about_ansi/overview /overview.aspx? menuid=l (last visited Sept. 26, 2005); "About ASME,” available at http:// www.asme. org/about (last visited Oct. 24, 2005).

      . See "ANSI Overview,” supra note 3.

      . The plaintiffs also contend that the trial court erred in granting a directed verdict on their failure to warn and failure to train claims. The plaintiffs, however, failed to raise these issues in the Court of Appeals. We decline to address these issues.


text:
    Angela Kamille DRAPER, as Parent, Survivor and Next Friend of Bryanna Faith Draper, Deceased v. Larry H. WESTERFIELD, et al.
    Supreme Court of Tennessee, at Knoxville.
    May 3, 2005 Session.
    Oct. 12, 2005.

      Andrew T. Wampler and Richard Mann Currie, Jr., Kingsport, Tennessee, for the Appellant, Larry H. Westerfield.
    Kenneth D. Hale and Paul Raymond Wohlford, Bristol, Tennessee, for the Ap-pellee, Angela Kamille Draper.
   JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, C. J., and FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

OPINION

In this appeal, we must determine: (1) whether the defendant, a doctor, is immune from liability pursuant to Tennessee Code Annotated section 37-l-410(a) (1996) in connection with his review of a child abuse victim’s medical records as requested by authorities investigating allegations of child abuse; (2) whether the defendant has a common law duty to report suspected child abuse; and (3) whether Tennessee Code Annotated section 37-1-401, et. seq. (1996) provides a private right of action for failure to report suspected child abuse. We conclude that immunity under Tennessee Code Annotated section 37-l-41'0(a) is afforded only to those who actually report harm. Because the determination of whether the defendant reported harm involves a genuine issue of material fact, the Court of Appeals correctly held that the trial court erred in granting summary judgment on this issue. We further conclude that by reviewing the victim’s medical records, the défendant undertook a duty to use reasonable care in reviewing the records and reporting his findings and conclusions to the investigators. Finally, we hold that because the plaintiff did not assert a private right of action pursuant to Tennessee Code Annotated section 37-1-401, et. seq. in her complaint, the Court of Appeals erred in addressing the issue. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings consistent with this opinion.

On June 2, 2000, three-month-old Bryan-na Draper (“Bryanna”) died as a result of injuries inflicted upon her by her father, Daniel Lee Draper (“Mr. Draper”). Bryanna’s mother, Angela Draper (“Mrs. Draper”), as parent, survivor, and next friend of Bryanna, brought suit against several defendants, including Dr. Larry Westerfield (“Dr. Westerfield”), a radiologist. The following facts relate to Mrs. Draper’s claims against Dr. Westerfield.

In May 2000, Bryanna was admitted to Holston Valley Regional Medical Center for x-rays and a CT scan of her brain. Mrs. Draper alleges in her complaint that various physicians opined that Bryanna’s x-rays-were “normal” and that they discharged Bryanna to her parents on May 14, 2000.

During the same time period, the Department of Children’s Services (“DCS”) began an investigation regarding possible child abuse of Bryanna. On May 15, 2000, Diane Stanley (“Ms. Stanley”), a DCS caseworker, contacted the hospital’s radiology department and requested a second opinion regarding Bryanna’s x-rays. An employee in the radiology department scheduled an appointment for Ms. Stanley with' Dr. Westerfield for the following day.

Ms. Stanley and Detective Louis Elias of the Sullivan County Sheriffs Department met with Dr. Westerfield at the hospital and requested that he review the x-rays and CT brain scan as part of the investigation. Dr. Westerfield claims he informed Ms. Stanley and Detective Elias that he observed abnormalities including a small bifrontal subdural fluid collection or a hyg-roma in the CT scan, an arm fracture, and a clavicle fracture. According to Dr. Westerfield, he further informed the investigators that he observed signs of possible abuse and that the parents were the likely abusers. Dr. Westerfield also claimed he told the investigators that he did not believe that the injuries resulted from mishandling by nurses at the hospital.

Ms. Stanley claimed that upon examining the CT scan, Dr. Westerfield stated that the report should represent that the scan was abnormal rather than normal but that the abnormality was not a cause for concern. According to Ms. Stanley, Dr. Westerfield opined that Bryanna’s injuries could have occurred as a result of Bryan-na’s reaction to the hospital nurses’ attempts to treat her. Ms. Stanley maintained that Dr. Westerfield never told her that Bryanna’s injuries likely resulted from abuse by her parents. Ms. Stanley testified that if Dr. Westerfield had stated that he observed signs of child abuse, she would have removed Bryanna from her parents’ custody. Ms. Stanley stated that her meeting with Dr. Westerfield was only one component of her investigation and that she continued with her investigation after their meeting concluded.

Mrs. Draper filed suit against Dr. Wes-terfield claiming that he had a duty to report his suspicions of Bryanna’s abuse to the investigators. If Dr. Westerfield had reported this information, the investigators would have removed Bryanna from Mr. Draper’s custody.

Dr. Westerfield filed a motion for summary judgment contending that Mrs. Draper failed to establish the required elements of medical malpractice because a physician-patient relationship did not exist between Dr. Westerfield and Bryanna and that Dr. Westerfield did not deviate from the applicable standard of care. Dr. Wes-terfield further maintained that Tennessee Code Annotated section 37-1^10 (1996) provided him with immunity. The trial court granted summary judgment to Dr. Westerfield. With regard to the medical malpractice claim, the trial court found that no physician-patient relationship existed between Dr. Westerfield and Bryan-na. Recognizing that Mrs. Draper also alleged negligence, the trial court further found that a disputed issue of material fact existed as to whether Dr. Westerfield reported child abuse to the investigators. Regardless of the content of the information, however, the trial court held that Dr. Westerfield was entitled to immunity pursuant to Tennessee Code Annotated section 87-1-410 (1996) for cooperating with the investigators and providing information to them.

The Court of Appeals affirmed the trial court’s judgment, finding that no physician-patient relationship had been established between Dr. Westerfield and Bryanna. The Court of Appeals further concluded that Tennessee Code Annotated section 37-1-401, et. seq. (1996), entitled “Mandatory Child Abuse Reports,” creates a private right of action against one who fails to report suspicions of child abuse. The intermediate appellate court held that immunity under Tennessee Code Annotated section 37-1-410 (1996) attaches when a person reports suspected child abuse and not when he or she fails to do so. The Court of Appeals concluded that the content of the information that Dr. Westerfield provided to the investigators was a disputed issue of material fact and therefore reversed the trial court’s grant of summary judgment on this issue. We granted review.

ANALYSIS

The trial court’s decision to grant summary judgment is appropriate only if Dr. Westerfield demonstrated that no genuine issues of material fact existed and that he is entitled to judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.2000). We review the trial court’s decision to grant summary judgment de novo with no presumption of correctness attached to the trial court’s conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000). We also view the evidence in the light most favorable to Mrs. Draper, the non-moving party, drawing all reasonable inferences in her favor. See Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). The purpose of summary judgment “is to resolve controlling issues of law rather than to find facts or resolve disputed factual issues.” XI Props., Inc. v. RaceTrac Petroleum, Inc., 151 S.W.3d 443, 446 (Tenn.2004) (citation omitted). The primary issues underlying a motion for summary judgment are “(1) whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case; and (3) whether the disputed fact creates a genuine issue for trial.” Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993).

A. Immunity

Dr. Westerfield maintains that irrespective of the causes of action alleged by Mrs. Draper, he is immune from liability pursuant to Tennessee Code Annotated section 37-1-410 as a result of his cooperation with investigators. The version of Tennessee Code Annotated section 37-1-410(a) (1996) in effect when the events subject to this lawsuit occurred provides that “[a] person reporting harm shall be presumed to be acting in good faith and shall thereby be immune from any liability, civil or criminal, that might otherwise be incurred or imposed for such action.” Under the plain language of the statute, a person who reports harm is immune from all civil and criminal liability that otherwise may arise from such action. Because Mrs. Draper’s claims against Dr. Wester-field are based upon the doctor’s conduct with regard to the investigation of child abuse claims, Dr. Westerfield is entitled to immunity if he “report[ed] harm” under the statute. See TenmCode Ann. § 37-1-410(a) (1996).

A “[r]eport of harm” is a “report filed under [section] 37-1-403.” Tenn.Code Ann. § 37-1-401(3) (1996). Tennessee Code Annotated section 37-1-403(a) (1996) lists the circumstances under which a person is required to report suspected child abuse. According to this subsection,

Any person, including, but not limited to, any:
(1) Physician, osteopathic physician, medical examiner, chiropractor, nurse or hospital personnel engaged in the admission, examination, care or treatment of persons;
(2) Health or mental health professional other than one listed in subdivision (a)(1); [or]
(8) Neighbor, relative, friend or any other person;
having knowledge of or called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition which is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or which on the basis of available information reasonably appears to have been caused by brutality, abuse or neglect, shall report such harm immediately, by telephone or otherwise, to the judge having juvenile jurisdiction or to the county office of the department or to the office of the sheriff or the chief law enforcement official of the municipality where the child resides.

Tenn.Code Ann. § 37-1-403(a) (1996).

When read together, these statutes provide that immunity is afforded only to a person who actually reports harm. The language of section 37-1-410(a) does not afford immunity to a person who issues a report that does not include a conclusion of child abuse. Cf. Conn. Gen.Stat. § 17a-101e(b) (2004) (“Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report ... shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed.... ”); Manifold v. Ragaglia, 272 Conn. 410, 862 A.2d 292, 301 n. 16 (2004) (explaining that section 17a-101e(b) was amended to include the language “in good faith does not make” to extend immunity to those who, in exercising their professional judgment, conclude that no abuse occurred). Furthermore, the plain language of section 37-1-410(a) does not extend immunity to those who cooperate in an investigation by DCS or law enforcement officials. Cf. La. Child. Code Ann. art. 611A(1) (2004) (providing immunity to any person “who in good faith ... cooperates in any investigation arising as a result of [a] report”); Mich. Comp. Laws § 722.625 (2005) (extending immunity to a person acting in good faith who “cooperates in an investigation”); N.C. GemStat. § 7B-309 (1999) (affording immunity to anyone who “cooperates with the county department of social services in a protective services inquiry or investigation”); Tex. Fam.Code Ann. § 261.106(a) (1995) (providing immunity to a person acting in good faith who “assists in the investigation of a report of alleged child abuse”).

Dr. Westerfield advances several policy arguments in support of his contention that immunity should be afforded to anyone who in good faith cooperates in the investigation of alleged child abuse. According to Dr. Westerfield, a thorough investigation by DCS of most cases of suspected child abuse requires a medical opinion. DCS will be able to obtain objective medical advice only if medical consultants are granted immunity based upon their cooperation with investigators. Dr. Westerfield maintains that a doctor whose medical opinion is sought by DCS likely will refuse to cooperate if the doctor is subject to liability for providing an objective opinion in good faith. The.plain language of Tennessee Code Annotated section 37-l~410(a) (1996), however, does not provide immunity under these circumstances. See City of Cookeville v. Humphrey, 126 S.W.3d 897, 902 (Tenn.2004) (explaining that where the language of a statute is clear and unambiguous, we must apply the statute in accordance with its plain language). We may not alter or amend a statute. Mooney, 30 S.W.3d at 306 (citation omitted). Furthermore, we may neither question the reasonableness of a statute nor substitute our policy judgments for those of the legislature. Id. at 306-07.

Accordingly, we hold that Tennessee Code Annotated section 37-1-410(a) (1996) does not afford immunity to Dr. Westerfield unless he informed Stanley and Detective Elias that the x-rays and CT scan indicated child abuse. Dr. Wester-field claims that he informed the investigators that the x-rays and CT scan indicated that Bryanna was being abused. Stanley maintains that Dr. Westerfield did not provide her with this information. Thus, the determination of whether Dr. Westerfield reported suspected child abuse and thus is entitled to immunity involves a disputed issue of material fact precluding summary judgment.

B. Mrs. Draper’s Claims

Irrespective of immunity, the parties raise several issues regarding Mrs. Draper’s causes of action. Before we address the issues raised by the parties, however, we must first determine whether Mrs. Draper’s claim is one of medical malpractice or of common law negligence.

We have previously observed the “subtle” distinction between medical malpractice and common law negligence recognizing that “medical malpractice is but a species of negligence and no rigid analytical line separates the two.” Gunter v. Lab. Corp. of America, 121 S.W.3d 636, 639 (Tenn.2003) (citations omitted). A negligence claim requires proof of “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause.” Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn.2005).

Medical malpractice actions are controlled by Tennessee Code Annotated section 29-26-115 (2000), which incorporates the common law elements of negligence. Gunter, 121 S.W.3d at 639. Pursuant to section 29-26-115(a), the plaintiff must prove: (1) the recognized standard of care; (2) the defendant’s failure to act in accordance with the applicable standard of care; and (3) proximate cause in that as a proximate result of the defendant’s negligence, the plaintiff suffered injuries that otherwise would not have occurred.

Cases involving health or medical entities do not automatically fall within the medical malpractice statute. Gunter, 121 S.W.3d at 640. Rather, in determining whether an action is for medical malpractice or for common law negligence, the issue is whether the alleged negligent conduct “bears a substantial relationship to the rendition of medical treatment by a medical professional.” Id. at 641. If so, the medical malpractice statute applies. Id. If, however, the plaintiff seeks compensation for injuries resulting from negligent conduct not affecting a patient’s medical treatment, the claim falls under common law negligence. Id. at 640.

In the present case, Mrs. Draper raised claims in the trial court based upon both medical malpractice and common law negligence in her complaint. In this Court, Mrs. Draper did not appeal the Court of Appeals’ determination that no physician-patient relationship was established between Dr. Westerfield and Bryan-na. She also does not seek to further her medical malpractice claim. Rather, Mrs. Draper now relies upon her common law negligence claim.

Mrs. Draper seeks relief based upon Dr. Westerfield’s conduct in reviewing Bryan-na’s records and providing information to investigators. Dr. Westerfield’s actions do not relate to the medical treatment of Bryanna. Rather, the purpose of Dr. Westerfield’s conduct was to provide aid to investigators seeking to protect Bryanna from child abuse. Thus, Mrs. Draper’s cause of action is for that of common law negligence.

Our focus in this appeal is upon the first element of a common law negligence action, the existence of a duty. The determination of whether a duty exists is a question of law. Biscan, 160 S.W.3d at 478. In general, all persons have a broad duty to exercise reasonable care to avoid causing foreseeable injury to others. Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.1992). One does not have an affirmative duty to act for the protection of a third party unless he or she “stands in some special relationship to either the person who is the source of the danger, or to the person who is foresee-ably at risk from the danger.” Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn.1997) (citation omitted). Mrs. Draper, however, does not rely upon a “special relationship” in contending that a duty existed. Rather, she maintains that by undertaking to review Bryanna’s medical records, Dr. Wes-terfield assumed a duty to use reasonable care in reviewing the records and reporting his findings and conclusions to the investigators.

We have previously held that “ ‘[o]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully.’” Biscan, 160 S.W.3d at 482-83 (quoting Stewart v. State, 33 S.W.3d 785, 793 (Tenn.2000)). By reviewing Bryanna’ medical records as part of a child abuse investigation, Dr. Westerfield voluntarily undertook a duty on behalf of Bryanna to use reasonable care in reviewing the medical records and reporting his findings and conclusions to the investigators. If Dr. Westerfield is found not to have reported harm and is therefore not immune from liability, Mrs. Draper’s common law negligence action may proceed. Mrs. Draper, however, still bears the burden of establishing the remaining elements of negligence: breach of duty, injury or loss, cause in fact, and proximate cause. See Biscan, 160 S.W.3d at 478.

Finally, Dr. Westerfield contends that irrespective of the issue of immunity, he is not subject to civil liability because Tennessee Code Annotated section 37-1-401, et. seq. (1996), entitled “Mandatory Child Abuse Reports,” does not create a “private right of action” for failure to report suspected child abuse. Dr. Westerfield cites to Premium Finance Corp. of America v. Crump Insurance Services of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn.1998), in which this Court discussed the principles for determining whether the legislature intended that a statute provide for an independent statutory right of action. A careful reading of Mrs. Draper’s complaint and amended complaints, however, reveals that she did not allege an independent statutory right of action for violation of Tennessee Code Annotated section 37-1-403 (1996). Rather, in addition to the medical malpractice action, Mrs. Draper brought a common law negligence claim against Dr. Westerfield based upon his alleged failure to report suspected child abuse. A statutory right of action and a common law negligence action are two distinct bases of civil liability. See Marquay v. Eno, 139 N.H. 708, 662 A.2d 272, 277 (1995) (distinguishing between the two causes of action). Moreover, Dr. Wester-field did not raise the “private right of action” issue in his answer to either Mrs. Draper’s complaint or her amended complaints or in his motion for summary judgment. The first time that Dr. Westerfield contended that Tennessee Code Annotated sections 37-1-401, et. seq. did not create an independent statutory right of action was in his brief to the Court of Appeals. Since Mrs. Draper did not assert an independent statutory right of action, the Court of Appeals erred in addressing the' issue.

CONCLUSION

We conclude that the determination of whether Dr. Westerfield reported harm, thus entitling him to immunity pursuant to Tennessee Code Annotated section 37-1-410(a) (1996), involves a genuine issue of material fact that precludes summary judgment. We further hold that in reviewing Bryanna’s medical records, Dr. Westerfield assumed a duty to Bryanna to use reasonable care in reviewing the records and reporting his findings and conclusions to the investigators. Finally, we conclude that the Court of Appeals erred in addressing the issue of whether Tennessee Code Annotated section 37-1-401, et. seq. (1996) provided for private right of action because Mrs. Draper did not assert a private right of action in her complaint. Accordingly, the judgment of 'the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for farther proceedings consistent with this opinion.

The costs of appeal are taxed to the appellant, Larry H. Westerfield, and his surety, for which execution may issue if necessary.

      . During a computerized tomography (CT) scan, "[p]ictures of structures within the body [are] created by a computer that takes the data from multiple X-ray images and turns them into pictures on a screen.” MedTerms Dictionary, http://www.med-terms.com/script/main/art. asp ? ar-ticlekey=2878 (last visited October 10, 2005).

      . A "hygroma” is a "cystic tumor of lymphatic origin.” Medline Plus Medical Dictionary, http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical & va=hygro-ma (last visited October 10, 2005).

      . The version of Tennessee Code Annotated section 37-1-410 (1996) in effect at the time of the events subject to this lawsuit contained only two subsections. Subsection (b) provided that "[a]ny person reporting under the provisions of this part shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes a detrimental change in the employment status of the reporting party by reason of the report." Tenn.Code Ann. § 37-1-410(b) (1996).

      . Dr. Westerfield contends that Tennessee Code Annotated section 37-1-410(a)(6) and (7) (2001) also afford him immunity. Subsection (a)(6) provides that
      [a] person furnishing a report, information or records as required or authorized under the provisions of this part shall have the same immunity and the same scope of immunity with respect to testimony such person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred by the provisions of this subsection upon the person who made the original report of harm.
      Tenn.Code Ann. § 37-1-410(a)(6) (2001). Subsection (7) provides that
      [i]f the person furnishing a report, information or records during the normal course of such person’s duties as required or authorized under the provisions of this part is different than the person originally reporting the harm, then the person furnishing such report, information or records shall have the same immunity and the same scope of immunity with respect to testimony such person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred by the provisions of this subsection upon the person who made the original report.

        Id. at (7). These provisions, however, were not in effect until 2001, approximately one year after the events subject to this lawsuit occurred. Thus, we do not reach the issue of the effect of these subdivisions upon Mrs. Draper’s claim against Dr. Westerfield.