### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON JU L Y 23, 200 9 S es sio n
SILV INO GO NZA LES, Individually An d A s Next Fr iend of RU BICE L

GONZ ALES, A Mi no r v . JUDI TH LO NG

Direc t Appeal from the Circ uit Court forShelb y County

No. 004208-04 Je rry Stokes, Judge

No. W2008-02605-C OA-R3-C V - Filed October 15, 2009

This appea l arises out of a minor automobile acc ident. The plaintiff f iled suit indi vidually

and on behalf of his son, claiming that his son suffe red w hiplash in the acc ident. The de fenda nt admitted fault for the ac cident but denied that she cause d any damag es to the plaintiff. The plaintiff pre sented te sti mony fr om a ph y sic ian w ho op ine d that the so n wa s in jur e d in the c ar a c c ide nt. Ne ve rt

he le ss, the jur y re tur ne d a ve rd ic t f or the de fe nd ant. Th e pla int if f a pp e a ls. We a ff

ir m.

Tenn. R. App . P. 3; Appeal as of Right; Judgment of the C ircuit Court A ffirm ed

A LA N E. H I G H ERS , P.J.,W.S., delivered the opinion of the court, in which D AVI D R. F ARMER , J., and J. S TE VE N S TA FF O RD , J., joined.
David G. Mills, Cordova, TN, for Appellant

Andre w H. Owe ns, Memphis, TN, for Appe llee

OP IN ION-2- I. F A C TS & P R OC EDU R A L H I S T ORY
On J anuar

y 2, 2004, J udith L ong (“D efe ndant”) cause d a minor automobile acc ident. She was stopped at a re d light behind a nother ve hicle, on a multi-lane highw ay

. To her imm ediate le ft
was a left-turn la

ne, and when the lef

t t u rn ar ro w appe are d, the vehicle s in that lane proc eede d forwa r d

. A lt h o u g h th e li g h t f

o r D e f e n d an t’ s la

n e r e ma in e d

r e d , s h e a ls o p r o c e e d e d f orwa rd approximately

two fee t and bumped into the ve hicle in front of her. That vehicle wa s a pickup truc k driven by Silvi no Gonzales (“Mr . Gonzales”). Mr . Gonzales’ ten- y ear old son, Rucibel Gonzales (“Rucibel”), wa s a passe ng er in the ba ck seat of the pickup truc k. After the ac cident, De fenda

nt called the police, exited her ve hicle, and a sked if anyone in the Gonzales vehic le was injure d. No
o n e re p o rt ed any

injuries to Defe ndant or to the investig ating police off icer . Mr. Gonzales’ truc k
was not da

mag ed in the acc ident, and Def endant’ s vehicle only

had a f ist-siz ed dent in the bumper wh e re it i mpa c te d th e tr a ile r h itc h o n Mr

. Go nza le s’ tr uc k, wh ic h a

re pa ir sh op late r “ po pp e d o ut” fre e of c harg e. Mr. Gonzales subseque ntly filed suit ag ainst Defe ndant in g ener al sessions c ourt, claiming that Rucibel was injure d in the acc ident. He pr esente d t h e testi mony of Dr. Mic hael Doug las Hellman, who state d that he had tr eate d Rucibel for a ty pe of w hiplash injury

and that the injury

was c a us e d b y the a c c ide nt. Mr . G on zal e s o bta ine d a jud g me nt i n his fa

vo r, and De fe nd ant a

pp e a le d to
c ir c uit c ourt . M r. Go nza le s’ c ir c uit cou rt compla int a lle g e d th a t Ru c ibe l su sta ine d in jur ie s to his “hea d, neck, ba ck, extremities and entire centr al ner vous and emotional sy stem.” He attache d a
me dic a l bi ll t o h is c omp la int wi th $ 2, 68 3 in c ha

rg e s fr om Dr . He llm an. De fe nd ant a dmi tte d f a ult in c a us ingthe a c c ide nt bu t de nie d that sh e c a us e d Ru c ibe l or

Mr . G on zal e s to su ff

e r a ny dama g e s.
Def endant f iled a motion in lim ine to exclude Dr

. He l l m an’s pr evious g ener al sessions te sti mony , w hic h M r. Go nza le s int e nd e d to re a d in c ir c uit c ourt du e to D r. He llm an’ s unava ila bil ity at trial. De fenda

nt alleg ed that Dr . Hellman and Mr . Gonzales’ attorney , Mr. Mills, had an improper business relationship involving re fer rals of c lients and patients, and that the g ener al sessions court judge interfe red w ith Defe ndant’s attorne y ’s ability to cross-e x amine Dr . Hellman re g ardingsuch relationship and o t h er b u siness prac tices. The tr ial court de nied the motion, ruling that Dr. Hellman’s testimony

could be r ead to the jur

y

. The c ase w as tried be fore a jury on September 15 and 16, 2008. At trial, the investig ating police off icer testified that he was on the scene for a pproxi mately

forty -five minutes to an hour , and that no one re ported be ing injure d or re quested medic al attention. Rucibel, who was fourtee n y ear s old a t the tim e of tr ia l, te sti fi e d that wh e n De fe nd ant re ar- e nd e d his fathe r’ s tr uc k, he “ bumpe d [hi s] head” on the back window. He did not have any phy sical sign of an injury , such as a

bruise, scr atch, or swelling , and ther e was no damag e to the t ruck window. Rucibel admitted that he tol d Def endant at the sce ne of the acc ident that he wa s not hurt. He explained that he did not fe el injured imm e diate ly

a ft e r t he a c c ide nt a

nd that it wa s n ot unt il he g ot h ome that he be g an to e xpe ri e nc e pa in in his head and ba ck. Counsel for D efe ndant then questioned Rucibe l about his previous deposition testimony , in w hich he stated that immediately when the impac t occur

red, “ [hi s] head was hurting a lot.” Rucibel said that his deposition testi mony was truthful, but he a g ain conc eded that he did not-3-

te ll De fe nd ant or

the po lic e of

fi c e r t hat he wa s in

jur e d. Mr . G on zal e s si mil arl y te sti fi e d th a t he tol d the police of

fice r that no one w as hurt beca use Rucibel did not tell him t hat he wa s hurt until they
arr ived bac k at home.

Ruc ibe l te sti fi e d at his de po sit ion that ju st h ours a ft e r t

he a c c ide nt, he “ pla

y bo xed ” wi th h is fr ie nd s at hi s b ir

thd ay pa rt y . H e a lso sa id t

hat he c on tin

ue d to pl ay bas ket bal l and ta c kle fo otb a ll with his friends ever

y day , and he play ed socce r a f ew times a w eek. H e said he did not like to play touch football bec ause it wa s t o o easy . Rucibel did not miss any day s of school bec ause of the
acc ident, and it did not affe ct his g rade s. Rucibel testified that his ba ck still hurts occasionally , but that he did not know if it was bec ause of the ac cident.

Rucibel ident i fi ed a picture of his father’s pic kup truck, whic h showed that ther e wa s no dama g e to t

he ba c k o f t

he ve hic le a ft e r t

he a c c ide nt. How ever , he a c kn ow le dg e d th a t du ri nghis deposition he was a sked whe ther the truc k sustained any damag e, and he said that the truck’ s back bumper “ was de nted in. . . . Yea h, it was bad.”

Rucibel testified t hat prior to the accident, his pare nts took him to the Memphis Chil dren’ s Clin ic fo r h is h e a lthc are ne e ds , w he ne ve r h e wa s si c k o r h a d a pr ob le m. Ho we ve r, he wa s ta ke n to Dr. He llman for the first time six day s afte r t he accident. Mr. Gonzales expl ained that his cur rent attorney , Mr. Mills, was re p re s enting him in a worker s’ compensation case, a nd when the subje ct of his car acc ident came up during one of their conver sations, Mr. Mills recommended that he take Rucibel to see Dr . Hellman. Mr. Gonzales sa id that one o f t he re asons he took Rucibel to Dr. Hellman, rather than to M em p h is Chil dren’ s Clini c, wa s beca use Dr. H ellman speaks Spanish. Ho we ve r, Rucibel tes tif

ie d at hi s d e po sit ion

that he and

Dr . H e llm an s po ke En g lis h d ur inghis appointments. Rucibel also testified that he ha d not seen Dr . Hellman for any of his medical ne eds since the a ccide nt treatment. Mr. G onzales testified that Dr. He llm an never sent him a bill for Rucibel’s medica l treatment, but upon fur ther que stio n i n g b y

his attorney , he stated that his wife pay s the bills. Both pa rties’ attorney s rea d portions of Dr. He llman’s testimony from g ener al sessions court to the jury . Dr. He llman testified that he had be en license d and pra cticing medicine in Te nnessee for twe nty -five to thirty y ear s. He attended colleg e in Memphis and medica l school in Guadala jara , Mexi co. He held no boar d cer tifications. Dr. He llman prac ticed as a n an es thesiologist for approximately

twenty y ea rs, but for the pa st eig ht y ear s, he pra cticed “ injury reha bilitation, impairment eva luation, [ and] phy sical medicine .”

Dr. He llman testified that Rucibel had suff ere d a ty pe of whiplash injury , and he opined that the inj ur y wa s c a us e d b y the c ar a c c ide nt. Dr . H e llm an te sti fi e d that he did no t pe rf or m any x-r ay s, CAT scans, or

MRI ’s on Rucibel bec ause he deter mined they

wer e not nec essar

y . He sa i d he
rea ched his c onclusion reg ardingthe ca use o f t h e i n

j u ry “[b] ased on the history g iven me by

the patient and the phy sical examination that Iperf ormed.” Dr . H e llm an te sti fi e d th a t Ru c ibe l to ld h im that he wa s “in a car wre ck that g ave him a pa in in his neck and his bac k and immediately a hea dache
an d i th adp er s i s t ed

. ” D r. He l l m an ’s m ed i ca l re co rd s i n d i ca t e t h at R u ci b el re p o rt edex p er i en ci n g aPl ai nt i f f s ’ br i ef a l s o l i s t s a s a n i s s ue, “ W het her t he ca s e s houl d be re m ande d for t r i al on t he i s s ue of t he m i nor 1
Pl ai nt i f f ' s pai n and suf f er i ng

. ” H ow ever , i t d oes n ot i ncl ud e an ar gu m ent sec t i on f or t hi s i s s ue, s o w e w i l l not consi der i t s epa r at el y.
-4- heada che, ne ck and midbac k pain “immediately after a heavy -impact a

utomobile wrec k.” Dr

. Hellman said that he was mostly treating Rucibel’s injuries rathe r than diag nosing the m. He sa w Rucibel for te n appointments, at which he treated Rucibel with moist heat, cold p ac k s , elec trical muscle stimulation, ult rasound, a nd streng thening exercises. Dr. He llman testified that his charg es of $2,683 we re r easona

ble and ne cessa

ry to treat Rucibel’ s injury

. Dr. Hellman’s notes ref lect that Rucibel was a sy

mptomatic at his last appointment on J anuar y 30, 2004.

Def endant c alled as a

witness Paul Cook, who testified that he had be en hired by Dr. He llman to searc h police re cords and databa ses of acc ident repor ts and contac t acc ident victims to refer them to Dr. He llman for tre atment. Mr. Cook te stified that he did not c ontact people that had bee n in onecar acc idents “unless it was extremely by mistake.” The jury ultimately conclude d that neither Mr. Gonzales nor Rucibel suffe red a ny damag es as a result of Def

endant’ s conduct. Plaintiffs f iled a motion for new trial, wh i ch wa s d enied. Pla int if fs the n f ile d a tim e ly no tic e of a pp e a l.

II. I SSU ES P R ESENTED
Plaintiffs’ brief states the following issues for re view: 1

1. Whether the c ourt err ed in allowing the a d h o mi n em attacks upon D r. Hellman by

not gr anting P l ai n tiff[s’] reque sted Motion in L imine and continued objec tions to t hese ad hominem a tta c ks

. 2. Whether the ve rdict entered by the j ury was based on the ad hominem attacks of the De fe nd ant a g a ins t D r. He llm an a nd no t on the pr ob ativ e sc ie nti fi c evidenc e. 3. Whe the r a

jud g me nt s ho uld

be e nte re d o n b e ha lf

of the Pla int if

fs fo r t he c os ts of th e me d ic a l b il ls , b e c a u s e th e s c ie n ti f

ic me d ic a l e xp e rt te s ti mo n y of Dr. He llm an w a s n ot r e bu tte d b y the De fe nd ant. 4. Whe the r a j ud g me nt s ho uld be e nte re d o n b e ha lf

of the Pla int if

fs fo r t he c os ts of the medic al bills because the Plaint i ff met the re quirements of T.C.A. § 24-5-113 a

nd there was no re buttal to this proof.

I n addition, Defe ndant ra ises various issues re g ardingthe trial co u rt ’s decisions to admit Dr. H e l l m an ’ s g e n e r a l s e s s i o n s c o u rt t e s t i m o n y , t o a l l o w c e rt a i n qu e s t i o n i n g o f D e f e n d an ton c ro ssexamination, a n d t o q u as h cer tain discovery

reque sts submi tted by

Def endant. F or the following
re a so ns , w e a ff

ir m th e de c isi on

of the c ir c uit

c ourt

.
III
. D I S CUS S I ON-5- A. The alleged “ad hom inem attacks” on Dr. Hellm an On appe al, Plaintiffs assert that the tr i al co u rt er red in a llowing the jur y to hear evidenc e reg ardingthree i s s u es: Dr. He llman’s medical sc hool, Mr. Mills’ refe rra l of Mr. Gonzales to Dr. Hellman, and D r. He llman’s prac tice of te lemarke ting. Plaintiffs only cit e Tennessee Rules of Ev ide nc e 40 1 a

nd 40 3 in su pp or t of the ir argume nts

. “De cisions reg ardingthe admissibilit y of evide nce ad d re ss themselves to the trial cour t’s discretion.” Richardson v. Miller , 4 4 S

. W

. 3 d 1 , 2 1 (T en n

. C t

. Ap p

. 2 0 0 0 ) ( ci t i n g Seffernick v. Saint Thomas Hosp. , 9 69 S.W. 2d 39 1, 39 3 ( Te nn . 1 99 8) ; Do c k e ry v. Bd

. of Pr of'l

Re sp on sib ili ty , 937 S.W. 2d 86 3, 86 6 ( Te nn . 1 99 6) ). Tr ia l c ourt s h a ve wi de latit ud e in makin g the se de c isi on s, bu t mu st take into consider ation the factual circumstance s and re levant leg al principles. Id. “ A c c o r d i n g l y, appellate courts will not overturn a trial court’s evidentiar y ruling unless the trial cour t applied an incorre ct leg al standar d, based its dec isio n o n a cl early err oneous view of

the evidenc e, or ha s rea ched a decision ag ainst logic and re ason that ca used injustice to the complaining party .” Id. (c i t i n g State v. Shuck

, 9 53 S.W. 2d

66 2, 66 9 (T e nn . 1 99 7) ; Ballard v. Herzke , 924 S.W .2d 652, 661 (T e nn . 1 99 6) ; Ove rstreet v. Shone y's, Inc. , 4 S.W .3d 694, 708 (Tenn. Ct. App. 1999))

. Rule 401 defines “relevant e vidence ” as “ evidenc e havingany tendenc y

to make the
e xiste nc e of any fa c t tha t is of c on se qu e nc e to the de te rm inatio n of the a c tio n mor e pr ob a ble or le ss probable than it would be without the evidenc e.” T enn. R. Evid. 401. Rule 611(b) provides that “[a] witness may

be cr oss-examined on any matter re levant to any

issue in the case, including
cre dibilit y [.] ” Te nn. R. Evid. 611(b).

I n the cour se of questioning Dr. Hellman about hi s medical tra ining a nd prac tice, counse l for Def endant as k ed Dr. He llman where he attende d medical sc hool, and Dr. H ellman stated that he
a tte nd e d t h e U n i v e r s i t y o f G u a d a l a j ar a , M e xi c o

. O n a

p p e a l , P l a i n t i f

f s ’ c o u n s e l a s s e rt s t h a tthi s question was an attempt “to ge t the jury . . . to focus on assumptions that a Mexican medica l deg ree is substandard to an Ame rica n medical deg ree .” Howe ver, Plaintiffs’ c ounsel did not object to such questioning at trial, and he c annot ra ise the i ssue for the first time on appea l. “The la w is clea r that wh e n c ouns e l f

a ils to o bje c t to e ith e r qu est ions a sk e d d ur ingthe tr ia l, o r t o r e mark s ma de in opening /closing state ments, counsel shall be considered as having waived the se issues on appe al.” Hill v. Sim

pson , N o. E2 00 5- 02 40 1- CO A- R3- CV , 200 7 WL 27 80 37 6, a t *4 (Te nn . Ct. App . Se pt. 25, 2007) (c iting Te nn. R. App. P

. 36). Fur thermore , Dr. Hellman’s educ ation was c lear ly rele vant to h is c re dib ili ty . T his iss ue is w ith ou t me ri t.
Next, P laintiffs’ counse l contends that the trial c ourt err ed in allowing questioning r eg arding the fa ct that he r ecommende d that Mr. Gonz ales take Rucibel to see Dr. Hellman. He c ontends that thi s e vid e nc e wa s ir

re le va nt a nd hig hly pr e jud ic ia l.

I n r uli ngon the a dmi ssi bil ity

of e vid e nc e , “ [t]he tr ia l c ourt mus t e xer c ise its dis c re tio n in light of Te nn. R. Evid. 402 which ref lects the policy

that all evidenc e mee ting the te st of rele vancy in Tenn. R. Evid. 401 is admissible unless otherwise e x cluded on some a ppropriate g round.” Le v ine-6-

v. March , 2 6 6 S

. W

. 3 d 4 2 6 , 4 3 9 (T en n

. C t

. Ap p

. 2 0 0 7 ) ( ci t i n g Phillips v. F.W

. W oolworth Co. , 867 S.W .2d 316, 318 (Tenn. Ct. App. 1992)). Relevant e vidence may be excluded if its probative va lue is “substantially

outweig hed” by

the dang er of

unfair pr ejudice, c onfusion, misleading the jury , or unne c e ssa

ry de lay . T e nn . R. Ev id. 40 3. Ho we ve r, pe rs on s se e kin g to e xclu de oth e rw ise a dmi ssi ble
an d re l ev ant evidenc e have a sig nificant burde n of per suasion. Whit e v. V anderbilt Un iv. , 21 S.W. 3d 21 5, 22 7 ( Te nn . Ct. App. 19 99 ). “ Exc lud ingoth e rw ise re le va nt e vid e nc e un de r T e nn . R. Ev id. 40 3 is an e xtra or din ary ste p th a t sh ou ld b e us e d s pa ri ng ly ,” and

“ [r]e le va nt e vid e nc e sh ou ld be admitted if the balance between its probative value a nd its possi ble pre

judicial eff

ects is close.” Le v ine , 2 6 6 S

. W

. 3 d

at 4 3 9 (c i t i n g Richardson , 44 S.W .3d at 21).

Rule 616 states that “[a] par ty may offe r evide nce by

cross-e x amination, extrinsi c evide nce, or both, that a witness is biased in fa vor of or prejudice d ag ainst a par ty or anothe r witness.” Te nn. R. E vid . 616

. A witne ss’ s inte re st or la c k of int e re st i n th e ou tc ome of lit ig a tio n is on e of

the c ri te ri a to be ca ref ully scrutinized by the t rier of fac t in determining cre dibilit y

. See Parker v. Ryde r Truck L ines, Inc. , 5 91 S.W .2d 755, 759 (Tenn. 1979) (stating that testimony should be eva luated upon, among other thing s, “the int er est , bias, prejudice or lac k there of on the pa rt of the witnesse s”). Def endant c laims that the evidenc e that Plaintiffs’ counse l refe rre d Mr. Gonzales t o D r

. H e llman was rele vant to Dr. He llman’s cre dibilit y , and ther efor e, to the ver y validity and existence of Ruc ibel’s inj ur ie s. We a g re e and fi nd no a bu se of the tr ia l c ourt ’s dis c re tio n r e g ard ingthe a dmi ssi on of thi s evidenc e. Finally , Plaintiffs challeng e the trial court’s decision to admit the evidenc e of D r. He llman’s prac tice of te lemarke ting. De fenda nt claims the evidence of telemar keting was relevant to show that Dr . H e llm an “ ha d a

mot ive to m anu fa c tur e or e xag g e rate fi nd ing s in

or de r t o p ro mot e his bu sin e ss and g e ne rate me dic a l f

e e s. ” Ap pa

re ntl y , D e fe nd ant i s su g g e sti ngthat D r. He llman engaged i n telemar keting beca

use his medical practice was suffering , but there was no evidenc e in t he re cord reg ardingthis iss ue, except for the fa ct that Dr. H ellman’s telema rkete rs di d not contact pe ople who
wer e in one -ca

r acc idents. As previously discussed, Mr . Gon zal e s tes tif ie d th a t he wa s r e fe rr e d to Dr . H e llm an b y

his a tto rn e y . T hu s, we fi nd tha t th e ba lanc e be tw e e n th e pr ob a tiv e va lue of thi s evidenc e and its possible prejudicia l effe cts is close. Ag ain, when the balance is close, the evidenc e should be admitted. Le v ine , 266 S.W .3d at 439. Howeve r, we conclude that even if this evidence was improper ly admitted, it constituted harmless error when considered in the over all context of the tw o- da y tr ia l. Pla int if

fs have no t sh ow n that the a dmi ssi on of the te le mark e tin g e vid e nc e so lik e ly aff ecte d the out come of the trial that it constituted reve rsible er ror. See Tenn. R. App. P. 36(b) ( “A fi na l ju dg me nt f

ro m w hic h r e lie f is av a ila

ble and oth e rw ise a

pp ro pr iate sh a ll not

be se t a sid e un le ss, consideringthe whole r ecor d, err or i nvolving a substantial rig ht more proba bly than not aff

ecte d the judgme nt or would result in prejudice to the judicial proce ss.”)

B. The jur

y’s v erdict-7-

Plaintiffs also argue t hat the jury verdic t “should have be en base d on the expert testimony g iven duringtrial by

Dr. He llman.” This Court will set aside a jury ’s finding s of fa ct only if there is no materia l e vidence to suppor t the verdic t. Tenn. R. A

pp. P. 13(d). “When addr essing whether th ere is m a te ri a l e vid e nc e to s up po rt a ve rd ic t, a

n a pp e llate c ourt

sh a ll: (1 ) t a ke the str on g e st leg itimate view of all the evidenc e in f avor of the verdic t; (2) assume the tr uth of all evidenc e that
su pp or ts the ve rd ic t; ( 3) a llo w a ll r e a so na ble inf e re nc e s to su sta in th e verdic t; a nd (4 ) d isc ard

a ll [countervailing ] evidence.” Wha le y v . P e rkins , 1 9 7 S

. W

. 3 d

6 6 5 , 6 7 1 (T en n

. 2 0 0 6 ) ( qu o t i n g Barnes v. Goo d ye a r T ire & Rubber Co. , 48 S.W .3d 698, 704-05 (Te nn. 2000)). Appe llate cour ts do not
rew eig h the evidence, nor do we decide whe re the preponde ranc e of the evidenc e lies. Id. I f there is an y m at er i al ev i d ence to support the verdic t, it mus t be af firmed, or

else the pa

rties would be deprive d of their c onstitut ional rig ht to a trial by jury

. Id.

The c oncept of

materia lity

of the e vidence d o es n o t relate to the weig ht of the evide nce. Ke lle y v . J ohns , 9 6 S. W.3 d 1 89 , 1 94 (T e nn . Ct

. Ap p. 20 02 ). “ Ra the r, it i nv olv e s th e re latio ns hip betwee n the proposition that the evidenc e is offe red to prove and the i ssues in the ca se.” Id. (citing Kno x v ill e Tra c tio n Co . v . B ro wn , 11 5 Te nn

. 32 3, 33 1, 89 S.W. 31 9, 32 1 ( 19 05 )) . E vid e nc e that is unrelated to a matter in issue is immaterial. Id. at 194-95. Thus, our t ask is “to deter mine whether the record c ontains any

evidenc e re lating to the matters in issue which, whe n revie wed in a lig ht most fa vorable to the preva iling party , supports the jury ' s verdict.” Id. at 195. When the re solution of the issues in a case depends upon the truthfulness of witnesses, the fac t-finde r, wh o h as the opportunity

to observe the witnesses in their manner and demea nor while testifying, is in a f ar be tter position t han t h i s C o u rt to decide those issues. Ma c h. Sa le s Co ., Inc

. v . D iamond

c ut Fo re str y Prods., LLC, 102 S.W .3d 638, 643 (Tenn. Ct. App. 2002). “The weig ht, faith, and c redit to be g iven to any witness' s testimony lies in the first instance with the t rier of fac t, and the cr edibility acc orded will be g iven g reat weig ht by the appe llate cour

t.” Id. Despite Dr . Hellman’s testimony , we find sufficie nt material e vidence to support the jury ’s verdic t. “Expert opinions ar e not ordinar ily conclusive in the se nse that they must be acc epted a s true on the s ubject of their t estimony , but are g ener ally reg arde d as pure ly

advisory in char acte r; the jury may place whateve r we ight they choose upon such testimony and may reje ct it, if the y find that it is i nconsistent with the fac ts in the case or otherw ise unrea sonable.” Cocke County Bd. of Highw ay Com m 'rs v

. Newport Util. Bd. , 690 S.W .2d 231, 235 (Tenn. 1985) (quoting 31 Am.J ur.2d Expe rt and Opinion Evidence § 138 (1967))

. Her e, Dr. Hellman st ated that he reac hed his opinion reg ardingRucibel’s diag nosis and the cause of his injury not f rom objective te sts, but from a phy sical examination and Rucibel’s ac count of the a ccide nt. He testified that Rucibe l told him that “he w as in a ca r wre ck that g ave him a pain in his neck and his ba ck and immediately a hea dache and it had persisted.” (P .11). Ho we ve r, Ruc ibe l him se lf pr e se nte d c on fl ic tin g te sti mony re g ard ingwh e n h is pain beg an. In addition, he told Defe ndant and the police office r at the sc ene that he was not injured, and he admitted that he play box ed with his friends that same day and continued to play

sports ever

y day afte r the a ccide nt. Rucibel had no phy s i ca l s i gn s o f injury , and his fathe r’s truc k was not damag ed. Mr. Gonzales did not take Rucibel to the doctor f or six day s, and when he did, it was not to his reg ular phy sician. In addition, Dr. He llman’s rec ords indicate that Rucibel repor ted experiencingthe sy

mptoms “imm ediately

afte r a he avy -impact au t o m o b i l e wreck.” I t was-8-

undisputed in this case that t he accident was very minor. There fore , the j ury could have deter mined that D r. He llm an b a se d h is o pin ion re g ard ingc a

us a tio n u po n f a lse inf or matio n p ro vid e d b y

Ruc ibe l. Al te rn a tiv e ly , the jur

y c ou ld have c on c lud e d that Ruc ibe l and Dr

. He llm an were n ot cre dib le witnesses and that Rucibel was not i n fa ct i n jured. The re w as ce rtainly evidenc e of suspicious circ umstances in this case to support such a c onclusion. I n either e vent, we f ind material e vidence to support the jury ’s dec ision.
C. T.C.A. § 24-5-113

F ina lly , Pla int if

fs argue that the y “ de se rv e d a ve rd ic t non obstante verdicto [si c] reg arding the medica l bills ” due to the pr esumption of Tenne ssee Code Annotated se ction 24-5-113( a). The y acknow ledg e, howe ver, that they did not move for a judg ment notwithstanding the ve rdict, cla iming that “such a reque st seemed f utile.” We conclude that Plaintiffs were not entitled to a judgme nt for the me dic a l bi lls

.
Te nn e sse e Cod e Anno tate d s e c tio n 2 4- 5- 11 3( a ) p ro vid e s: (a) (1) Proof in a

ny ci v i l ac t i on that medical, hospital or doc tor bills were pa id or incurre d beca

use of any illness, disease, or injury may be itemized in the complaint or civil war

rant with a c opy

of bills paid or incurr ed at t ac h ed as an e x hibit to t he complaint or civ i l warrant. The bills i temized and attache d as an e x hibit shall be prima fa cie e vidence that the bills so paid or incurre d wer e necessar y and re asonable

. (2) This sec tion shall ap p l y o n l y in personal injury

actions brought in any

court by inj ur e d p art ie s a g a ins t th e pe rs on s r e sp on sib le fo r c a us ingsu c h in

jur ie s. (3 ) T his pr ima fa c ie pr e sumpt ion sh a ll a pp ly to t he me dic a l, h os pit a l and

do c tor bil ls itemiz ed with copies of bills attache d to the complaint or civil war rant; provided, tha

t the t otal a mo u n t o f

s u c h b il ls d o e s n o t e xc e e d th e s u m o f

f o u r th o u s an d d o ll ars ($4,000). Although itemizing a

nd attachingbills under this statute co n s t i t u t es p rima fa cie e vidence that the char g es wer e nece ssary and rea sonable, a plaintiff must still “establish that the char g es we re inc urre d
as a r esult of the def

endant' s neg lige nt conduct.” V arner v. Perrym an , 969 S.W .2d 410, 412 (Tenn. C t

. Ap p

. 1 9 9 7 ) ( ci t i n g Lindsey v. Miami De v. Corp. , 689 S.W .2d 856 (Tenn. 1985) ).

I n a striking ly simil ar case, this Court rec ently explained why a plaintiff who attaches suc h
me dic a l bi lls is n ot a

uto matic a lly

e nti tle d to re c ov e r t

he m a s d a ma g e s: The plaintiff' s final issue involves the medical bills that she included with her amende d complaint. By

filing those medical bills, in the total amount of $2,562, she hoped to take a dvantag e of the presumption set out in Tenn.Code Ann. § 24-5- 113, that su ch bi ll s, wh e n th e y are ite mize d a

nd a tta c he d a s an e xhibi t to c omp la int s in pe rs on a l in

jur y a c tio ns , a

nd wh e n th e y to tal le ss t

ha n $ 4, 00 0, c re a te a

pr ima fa c ie presumption that the expenses incurr ed we re ne cessa ry and re asonable

.-9- Ms. Ambrose appe ars t o mi s a p p r e h e n d th e p r e s u mp tion c reated by

the statute. Essentially , if a plaintiff makes a c laim for medica l expenses in compliance with the proce dural require ments of the statute, there is no need for more specif i c proof reg ardingthe nec essity

or re asonable ness of those e x p enses. How ever , the presumption does not alleviate the nee d to p rove that the condition requiringthe medical tre atment was c aus ed b y the def endant' s conduct. The re is nothing in the lang uag e of T enn.C ode Ann. § 24- 5-113 addr essing the re quirement that plaintiff pr ov e c a us a tio n. Ms. Am

br os e wa s re qu ir e d to pr ov e that he r c la imed dam age s, inc lud ingth e medi c a l bi lls sh e su bmi tte d, we re c a

us e d b y the a c c ide nt w ithMs. Batsuk. Despite the introduction of her medic al bills, the jury found that the plaintiff was not entit led t o any rec overy for a ny of her claimed damag es, including medical
car e and s er v i ces. The jury ' s awa rd of zero da

mag es indicate s that the jury had
su bs tanti a l dou bt s tha t he r c la ime d in jur ie s, and

the dama g e s r e su lti ngthe re fr om, including the medical bill s, wer e caused by the low-impac t collision. The jury found that the plaintiff had not suff ere d any damag es that could be attributed to the ac cident of May 10, 2001.

. . . . Th e e vid e nc e in t

he c a se be fo re us sh ow e d th a t th e c oll isi on that g a ve ri se to t h e act i o n wa s at a r el at i v el y l o w s p ee d

. Of

fi ce r W ri gh t 's t es t i m o n y

as t o t h e d am age he obser ved, photos of the r ear

of Ms. A mbrose' s car that wer e enter ed into evidence , and Ms. B atsuk' s testimony that she took he r foot off the brake afte r beingstopped at a tra ffic [light] all suppor t the conclusion that the[] phy sical impact was not seve re. The plaintiff' s own testimony established that at the time of the ac cident she
wa s a lr e a dy

un de r c on tin

uing t reatme nt f

or a ho st o f m e dic a l pr ob le ms. He r f ir st medical appointment afte r the acc ident had alre ady been schedule d an d t h e record sug g ests that she did not even discuss the a ccide nt with the doctor. . . .

. . . T h u s , t h e r e w a s n o p r o o f , a s i d e f r o m h e r o w nt e s t i m o n y , t h a tt h e c a us e of her pain was the automobile acc i d en t. [ footnote omitted] W hen we take the strong est leg itimate view of all the evidenc e that tends to uphold the ver dict, we f ind that the jury

was e ntitled to conclude that the medic al bills submi tted by the plaintiff
wer e incur

red for treatment of her pre- exis ting conditions, a nd not for tre atment of
any inj ur y c a us e d b y the de fe nd ant. We note t h at t h er e is no inhere nt contradic tion between a verdic t that incorpora tes both a findingthat a def endant ha s brea ched the applicable standard of
car e, or be en re sponsible for an acc ident, and a c onclusion that the plaintiff is not entitled to rec overy

beca use he[] or she has fa iled to prove injury or ca usation. A plaintiff in a p ersona l injury action such a s this "must introduce
e vid e nc e wh ic h a ff

or ds a re a so na ble ba sis fo r t

he c on c lu sion that it is m or e lik e ly

tha n n ot t hat th e c on du c t of

the de fe nd ant wa s a

c a us e in fac t of the re sult.... W hen a pe rson i s injured by the neg lige nce of
ano ther , " in o rd e r f

or dama g e s to be re c ov e ra

ble , th e pla int if

f m us t-10- prove that these dama g es we re a proximate and natura l conseque nce of t he t ort ."

Hu tc his on v . R utt , No. M2006-022255-COA- R3-CV, 2008 WL 5 3 9 0 6 2 , a t * 3 ( Tenn. Ct. App. Feb. 25, 2008) (citations omitted). Even summary judgme nt o r a dire cted verdic t ag ainst the defe n d an t on brea ch of the standard of car e or f

ault for the
acc ident does not establish ca usation for the injury

claimed by

the plaintiff. Dixon v. Cobb , No. M2006-00850-COA- R3-CV, 2007 WL 2089748, at * 5 (Tenn. Ct. App. J u l y 1 2 , 2 0 0 7 ) ( ci t i n g McD onald v. Petree , 4 0 9 F

. 3 d 7 2 4 ( 6 th Ci r

. 2 0 0 5 )

. Jury verdic ts of zero damag es whe re the plai n t i ff' s fault for a n acc ident has bee n conclusively

established have been upheld in a number of Tenne ssee c ases. See , e.g ., Ne ws o m v

. M

a rkus , 58 8 S.W.2 d 8 83 (T e nn . Ct . App . 1 97 9) ; Dixon [, ] 2 0 0 7 WL 20 89 74 8; Vaughn v. Cunningham , N o

. E 2004-03001-COA- R3-CV, 2006 WL 16321 (Tenn. Ct. App. Jan. 4, 2006) (no Te nn. R.App. P. 11 application filed).

Ambro se v . Ba tsuk , No. M2006-01131-COA- R3-CV, 2008 WL 1901207, at *7-9 (T enn. Ct. App. Apr. 30, 2008). A s previously discussed, the jury

in this case conc luded that Ru ci bel and Mr. Gonzales wer e en t i tled to zero damag es, and material e vidence exis ts to support a finding that Pla int if fs fa ile d to pr ov e e ith e r i nju ry or c a us a tio n. Thus , Pl a int if

fs ’ argume nt that he is e nti tle d to
a jud g me nt f

or the me dic a l bi lls is w ith ou t me ri t.

IV. C ONCL US I ON

F or th e afor eme nti on e d r e a so ns , w e a ff ir m th e de c isi on

of the c ir c uit

c ourt . Co sts of

thi s appea l are taxed to the appellant, Silvino Gonzales, I ndividually and As Ne x t Frie nd of Rubicel G o n z a l e s , f

o r w h i c h e x e c u t i o nm ay i s s u e i f n e c e s s ar y.

___________________________________ AL ANE. HI GH ERS , P. J. , W .S.