### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 8, 2001 Se ssion
THELIA BARRETT v. WHITE HOUSE UTILITY DI STRICT OF ROBERTSON AND SUMNE R COUNTIES
A Direct Appeal from the Circuit Court of Wilson County No. 11046 The Honorable John D. Wootten, Jr., Judge



### ___________________________ No. M2000-02426-CO

A-R3-CV - File

d November 15,

2001

___________________________ This appeal challenges an award of damages made t o the plaint iff by the trial judge after a bench trial. D ef

endant claims the trial judge’s finding of causation is contrary to the w eight of the evidence, that the damages are excessive and that it was error to award discretionary costs. Plaintiff claims that the aw

ard was inadequa

te. We affirm the t

rial court in all r

espects. Tenn. R. App. P. 3; Appeal as of Right: Judgment of the Circuit Court is affirmed

JOHN A. TURNBULL

, Sp. J., delivered th

e opinion of the co

urt in which BENH. CANT

RELL , J. and WILLI

AM BRYAN CAIN, J., joined. Bridgett A. Wohlpart, Bren

twood, for Appella

nt, White House Uti

li ty District of Robertson and Sumner Counties. Hugh Green, L

ebanon, for Appe

llee, Thelia Ba

rrett

OPINION I. Facts

This gove rn mental tort liability case arises out of a rear-end collision which occurre d on December

3, 1998, on the squa

re in Lebano n, Wilson County, Tennessee. Plaintiff, age 74, was ridin g as a passenger in her daughter’s car when it was struck from the re ar by a truck driven by def endan t’s employee, S cott Armstrong. A rmstrong admitte

d the collision was c

aused by his inattentiveness,

andfault was stipulated at trial. The defendant did, however, contest vigorously at trial the issue of whether plaintiff suffered injury

as a result of the collision, and the nature and extent of any i nju ry su ffer ed. Pla int iff was , in fact , on the way to her family physician for a sc heduled2

appointment

at the ti me of the collision. She had undergone left hip replacement surgery in June 1998. In addition, the evidence indicated plaintiff had

numerous pre-existing conditions, including osteoporosis,

degenerative

changes in the spine, spinal stenosis, spondylolisthesis, and compression fractures of the T-7, T-11 and L-5 vertebrae. After her left hip replacement in June, 1998, plaintiff, according to her own testimony, and that of her two lay witnesses, improve d substant ial ly. In the three months prior to the December 3, 1998, collision, plaintiff walked normally, got up and down withouta problem, did her own shopping, watered her flowers, walked to her mailbox, and picked up trash around her

yard. She e

njoyed quilti

ng, sewing and

cooking meals fo

r her son, Earl,

an d other family members. She did not need the assistance of a walker, and the a rthritic pain she suffered was e

ased by Ty

lenol.

At the time of the collision, which apparently caused no visible damage to the vehicle s involved, plaintiff felt a jarring sensation and thought her hip had been knocked out of place. She
w ent on to her scheduled appointment with her family physicia n, Dr. Jantz, who did not testify at trial. Four days later, plaintiff was seen by Dr. Terry, an orthopedic surgeon and par t n er of Dr. Step he n Neely, who

had treated plai

ntiff for severa

l years, an

d had performed

her left hip replacement

surgery. Dr. Terry

noted a fracture of L-1 vertebra which h ad not been pre sent on previous films. Dr

. Neely has

conducted the fo

llow up treatment.

Dr. Neel y was the onl y med ica l ex pert to t est ify a t trial. He testified that x-rays after the collision showed “a marked compression of L-1" which, in his opinion, was “new and related to the trauma, the accident.” He described the L-1 fracture as a “60-70% compression fracture.” Plaintiff has continued to compla

in of terrible bac

k pain which Dr. Neely attributed to the fracture of L -1 and trauma of the collision. Dr. Nee ly concede

d that the pre-exist

ing osteoporosis

suffered by plaintiff weakened her bones. In Dr. Neely ’s opinion, “she was pre-disposed to compression fractures and hadprev iou sly sustained a compression fra cture, but this compression fracture (60-70% compression fractureof L-1) was secondary to he r accident.” I

n Dr. Neely ’s opinion, trauma necessary

to produce a fracture

in a person suffering from osteoporosis “is less than that in a person not afflicted with that condition.”

Dr. Neely pre

sented his testimony

as a well qualified board-certified surgeon, a graduate of the University of Virginia undergraduate and me dical schools who complet ed an internship and residency in general surg

ery at that university b

efore completin

g an orthopaedi

c research fe

llowship andresidency at Harvard and Massachusetts Gener al Hospital. He has practice d orthopaedic

surgery in Lebanon

since 1980. At trial, Dr. Neely was rigidly andvigorously

cross-examined by

defense counsel, but was unflinching and unwavering in his opinion that the L-1 frac ture and subseque

nt pain andthe 10% impairment were caused by the trauma of the collision. The defendant failed to present any expert medical opinion to the contrary. Instead, defenda nt chose to attack Dr. Neely’s causation opinio n as speculative and questioned how Dr. Neely could possibly relate the L-1 compression fracture to this minor impact collision.3

The plaintiff’s testimony and Dr. Neely’s opinion that the colli sion had a life changing impact
on plaintiff were supported by the lay testimony of

her son, Earl Barrett, and Lucille May nard, her next door neighbor. Mrs. Barrett now uses a walker “every day” “all the time” even to go to the front door to talk to Mrs. Maynard. “It’s been almost a year and a half and she still can’t get around.” She
can no longer water

her flowers or do many of the things she enjoy ed prior to the collision. The plaintiff, who was in “good spirits” after recovering from her

hip replacement, is now “miserable” “inactive” and “more down now.” Neither of the lay witnesses was impeached nor cross-examined by defense

counsel.

The learned trial judge made a specific finding that the plaintiff and her two lay witnesses
were “very beli

evable and very credible witnesses.” In a ddition, the court found that Dr. Neely, the only expertwho testified, was “unshakable in his conclusion” and “unflinching in his opinion” that the injuries sustained by

the plaintiff were caused by the collision. The trial court found that plaintiff hadcarried her burden of proof on cau sa tion. After noting the parties had stipulated the reasonablenes s and necessity of medical expenses i

n the amount of $6,369.29, the court set pain and suffering an d loss of enjoyment of life damages at $30,000.00 considering plaintiff’s ave rage life expectancy of 10.26

years. The verdict of $36,369.29 is challenged by the defendant as e xcessive andby the plaintiff as inadequate. In addition, defendant insists the finding of causation is contrary to the weight of the evidence.

II. Sufficiency of Proof on Causation

Defendant

firmly believes

that the low impact collision did notcause the severe compression fractureof the L-1 vertebrae. Counsel argues that plaintiff ha d , prior to the collision, complained of low back pa in due to her degenera tive disc disease

, spinal stenosis, a

nd compression fr

actures, andthat Dr. Neely’s

testimony as to causation amounts to mere speculation. These arguments are notsupported by the evidence or by the law. Indeed, we review the findings of fact by the trial court de novo upon the record, accompanied by a presumption of the correctn

ess of the finding

s, unless the preponderance of the evidence is otherwise. Ten

n. R. App. P. 13(d); Cross v. City of Memp his , 20 SW 3d 642 (Tenn. 2000). Thus , our attentio n is drawn away from the defendant’s beliefs and arguments

and toward the evidence at tri al and its preponderance. The findings of the trial court which depend on the credibility of witnesses who testified live are to be afforded g reat deference. Clarendon v. Baptist Memorial Hospital , 796 SW 2d 685 (Tenn. 1990). With respect to deposition testimony of a doctor, this court may draw its own conclusions. We cannot, however, read a n d evalu atethe deposition testimony of experts in a vacuum. Such testimony must be considered i n conjunction with lay testimony regarding the effects of the injury. The trial court ha s the opportunity to view the deposition medical tes timony regardi ng causation and permanen cy through the prism of its view of the credibility of lay witnesses. See Thomas v. Aetna Life and Casualt y Co. , 812 SW 2d 278 (Tenn. 1991). The

depositi on t estimony of a doctor that a pati

ent cannot perfo

rm certain4

acti vities can be rendered unbelievable by believable lay testimony that those same activities are being performed by the patient without apparent difficulty. Likewise, when credible lay testimony is given that an inc

ident h as a significa nt impact on a person’s life supports a medical opinion of causation the believability of the medical opinion is strengthened. Thus, whether a medical opinion is accepted

or rejected is often dependent upon whether lay witness testimony is accepted or rejected. The trial court is simply in a better position than the appellate court

to judge the credibility of such oral testimony. See Harwell v. Harwell , 612 SW 2d 182 (Tenn. Ct. App. 1980).

The trial judge heard the testimony of Mrs. Barrett, E

arl Barrett,

and Lucille Maynard, and observed the demeanor of

each of these witnesses. Each witness was judged to be a “very be

lievable andvery credible witness.” They each described signi ficant ch anges in plaintiff’s activities since the acciden t. Before the collision, Mrs. Barrett is described as active, getting around re al good, pretty happy, and in good spirits. Since the collision, she is described as inactive, dependent upon
a walker for mobility, and miserable. She no longer visits her neighbor’s home, nor does she water her own flowers, or p

utt er aro und in her yard. This testimony lends support to the deposition medical testimony of Dr. Neely th at the severe compression fracture of L-1 was cause d by the collision, and is the source of the “terrible pain” Mrs. Barrett is suffering. The finding of the trial judge that the plainti

ff carried h er burden of proof on causation is amply supported by the preponderance of the evidence.

III. Excessive or Inadequate Award of Damages

Our conclusion that the trial court’s judgment of causation is supported by a preponderance of the evidence essentially emascu lates defendant’s ar

gument that the a

ward of $36,369.2

9 in damages is excessive. An award of $30,000.00 for pain and suffering and loss of enjoyment of life
over Mrs. Barrett’s average life expectancy of 10.26 years is certainly not excessive. The fact that Mrs. Barrett suffered from significant pre-existing back problems does not allow the defendant a free shot. Instead, damages must include all the additional harm or disability caused by the collision even though it is greater be

cause of the pre-existing condition and even if a normally he

althy perso

n would not have suffered

substantial injury. See Haws v. Bullock , 592 SW2d 588 (Tenn. Ct. App. 1979); T.P.I. 3 - Civil 14.14.

Neither can we conclude that the award is inadequate. We must presume the correctness of the amount of the awa

rd in a non-jury c

ase, and it is only when t

he evidence pre

ponderates ag

ainst the amount of the award that we can alter or adjust the amount. T.R.C.P. 13(d). The re is no precise mathematical formula by which to calculate intangible damages such as pain and suffe

ring and loss of enjoyment of life, but instead the amount such damages are left to the sound discretion of the trier5

of fact. See Overstreet v. Shoney’s Inc. , 4 SW 3d 694, 703 (Ten n . Ct. App. 1999) . While the amount of the award in th

is case may

be modest, we can

not say the e

vidence prepond

erates agains

t the amount, or that

the trial judge a

bused his discreti

on in fixing that amo

unt. The judgment of t

he trial court is a

ffirmed in all re

spects.

__________________________________ John A. Tu rnbull, S p. Judge