IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 9, 2019 Session

DONREIL A. BORNE v. CELADON TRUCKING SERVICES, INC.

Appeal from the Circuit Court for Shelby County

No. CT-003273-10 Robert Samuel Weiss, Judge

___________________________________

No. W2018-01645-COA-R3-CV

___________________________________

The Tennessee Supreme Court remanded this matter to the trial court for a more definite 

statement as to the grounds for remittitur. The Court specifically noted that “the trial 

court’s failure to indicate the reasons for its suggested remittitur leaves us unable to 

determine whether the evidence preponderates against the remittitur and, consequently, 

unable to conduct a proper appellate review of the trial court’s remittitur decision.” The 

trial court responded, inter alia, that the plaintiff had improved his ability to lift and 

engage in repetitive activities, and that this proof, along with the plaintiff’s success at 

rehabilitation, strong work ethic, and desire to support his family, led the court to find 

that the plaintiff “will have some future income over the next 38 years which is the basis 

for reducing the loss of earning capacity from $1,455,000 to $1,100,000.” We find that a 

preponderance of the evidence does not support the decision of the trial court to remit the 

judgment to $1,100,000, and we, therefore reverse the judgment. We further find that 

based on the proof in the record that the judgment for loss of earning capacity damages 

should be remitted to $1,334,647. We, therefore, remit the jury’s verdict for loss of 

earning capacity damages to $1,334,647.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN

and KENNY ARMSTRONG, JJ., joined.

R. Sadler Bailey, Thomas R. Greer, and J. Vance Montgomery, Memphis, Tennessee, for 

the appellant, Donriel A. Borne.

02/04/2020
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James B. Summers, Kevin W. Washburn, and John R. Hensley, Memphis, Tennessee, for 

the appellee, Celadon Trucking Services, Inc.

OPINION

I. BACKGROUND

This action arose following a July 1, 2009, accident on Interstate 55 in Memphis 

involving three tractor-trailers. The plaintiff, Donriel A. Borne, was driving the first 

tractor-trailer owned by Trimac Transportation South, Inc. (“Trimac”). After traffic 

began to slow and eventually stopped, Harold L. Foster, driving a tractor-trailer owned by 

Celadon Trucking Services, Inc. (“Celadon”) rear-ended the rig being driving by Borne. 

The Celadon truck was then rear-ended by a tractor-trailer owned by Chickasaw

Container Services, Inc. (“Chickasaw”) and driven by Steve Dondeville. According to 

Borne, he suffered “severe and permanent injuries” to his back and neck as a result of the 

traffic accident.

On June 30, 2010, Borne filed a complaint against Foster, Celadon, Dondeville, 

and Chickasaw. Prior to trial, Foster, Dondeville, and Chickasaw were dismissed as 

parties to the lawsuit. The lawsuit ultimately involved only Borne and Celadon.

After the May 2013 trial, the jury returned a verdict in Borne’s favor, awarding 

him $3,705,000 in total damages. The jury’s award for loss of earning capacity was 

$1,455,000.1 Upon motion by Celadon, the trial court suggested a remittitur based upon 

its determination that the award was “excessive” and reduced the jury’s award for loss of 

earning capacity by $355,000 to $1,100,000. The trial court also suggested a remittitur 

for the jury’s awards for physical pain and mental suffering, permanent injury, and loss of 

enjoyment of life;2those awards, however, are not at issue in this appeal.

Borne accepted the suggestion of remittitur under protest. “When the trial judge 

suggests a remittitur, the plaintiff has three options: accept the remittitur, refuse the 

remittitur and opt for a new trial, or accept the remittitur under protest and seek relief 

from the Court of Appeals.” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 

421-22 (Tenn. 2013) (citing Tenn. Code Ann. § 20-10-102(a)).

Upon the action being appealed to the Tennessee Court of Appeals, this court 

reversed the trial court’s remittitur of the award for loss of earning capacity and reinstated 

the jury’s award of $1,455,000. We “found no basis for straying from the lost earnings 

 

1

The jury also awarded $750,000 for physical pain and mental anguish, $750,000 for loss 

of enjoyment of life, and $750,000 for permanent injury.

2

The trial court reduced the physical pain and mental anguish by $250,000, loss of 

enjoyment of life by $350,000, and permanent injury by $650,000. 
- 3 -

figure suggested by Dr. Gamboa.”3 The total award to Borne upon our review was 

$2,105,000. Borne v. Celadon Trucking Servs., No. W2013-1949-COA-R3-CV, 2014 

WL 3778743, at *18-33 (Tenn. Ct. App. July 31, 2014). 

Upon granting review, the Tennessee Supreme Court determined that the trial 

court did not provide sufficient explanation of the reasons for its suggested remittitur to 

afford meaningful appellate examination. The Court vacated our decision to reverse the 

trial court’s remittitur of the loss of earning capacity award, reversed the additional 

remittitur of the loss of enjoyment of life award, and remanded the case to the trial court. 

The Court noted specifically: “As is the case for this Court, the Court of Appeals had no 

explanation of the trial court’s reasons for its suggestion of remittitur, so it did not have 

enough information to perform a meaningful review of the trial court’s decision to 

suggest a remittitur of the award for lost earning capacity.” Borne v. Celadon Trucking 

Servs., 532 S.W.3d 274, 318 (Tenn. 2017).

The Supreme Court observed as follows regarding remittitur:

The current remittitur statute, Tennessee Code Annotated 

section 20-10-102, . . . refers to the trial court’s authority to 

suggest a remittitur “when the trial judge is of the opinion that 

the verdict in favor of a party should be reduced. . . .” Tenn. 

Code Ann. § 20-10-102(a). In 1987, the legislature added the 

following language to subsection (b) of that statute: “The 

court of appeals shall review the action of the trial court 

suggesting a remittitur using the standard of review provided 

for in T.R.A.P. 13(d) applicable to decisions of the trial court 

sitting without a jury.” Tenn. Code Ann. § 20-10-102(b). 

The provision in Rule 13(d) of the Tennessee Rules of 

Appellate Procedure to which section 20-10-102(b) refers 

states: “[R]eview of findings of fact by the trial court in civil 

actions shall be de novo upon the record of the trial court, 

accompanied by a presumption of the correctness of the 

finding, unless the preponderance of the evidence is 

otherwise.” Tenn. R. App. P. 13(d). Taken altogether, these 

indicate that the legislature intended for trial courts to have 

the authority to grant remittitur if the trial judge finds that the 

evidence preponderates in favor of a lower amount of 

damages than the jury awarded.

 

3

The trial court’s remittitur for physical pain/mental anguish and permanent injury was 

upheld. We ordered a remittitur of an additional $350,000 to the loss of enjoyment of life award, 

down to $50,000. 
- 4 -

Thus, over time, trial courts have acquired broader authority 

to suggest a remittitur. A trial court is no longer required to 

find that the amount of a jury’s verdict is so excessive as to 

indicate passion, prejudice, corruption, or caprice on the part 

of the jury. A trial judge may suggest an adjustment in a jury 

verdict even when the amount of the verdict is within the 

range of reasonableness, i.e., is supported by material 

evidence in the record. After seeing the witnesses and 

observing their demeanor, the trial court is “to independently 

weigh the evidence, pass upon the issues, and decide whether 

the verdict is supported by the evidence.” Moats, 906 S.W.2d 

at 433. After making his own independent assessment of the 

witnesses’ credibility, if the trial judge finds that the evidence

preponderates in favor of a lower amount of damages, the 

trial judge may suggest remittitur instead of granting a new 

trial.

Concomitantly, under section 20-10-102(b), the standard of 

appellate review for a trial court’s suggestion of remittitur 

requires the appellate court to ascertain whether the trial 

judge’s reduction of the jury award is supported by a 

preponderance of the evidence.

In applying the preponderance of the evidence standard to its 

review of the trial court’s suggested remittitur, we note that 

the appellate court must “giv[e] due credit to the jury’s 

decision on the credibility of the witnesses and that of the trial 

judge in his capacity as thirteenth juror.” Foster [v. Amcon 

Int’l, Inc.], 621 S.W.2d [142,] 145 [(Tenn. 1981)]. . . .

Applying this standard of review, in Long v. Mattingly, thenJudge Koch offered “a three-step review of a trial court’s 

adjustment of a jury’s damage award.” Long v. Mattingly, 

797 S.W.2d 889, 896 (Tenn. Ct. App. 1990). The suggested 

framework consisted of the following:

First, we examine the reasons for the trial court’s action since 

adjustments are proper only when the court disagrees with the 

amount of the verdict. Second, we examine the amount of the 

suggested adjustment since adjustments that totally destroy 

the jury’s verdict are impermissible. Third, we review the 

proof of damages to determine whether the evidence 

preponderates against the trial court’s adjustment.
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Id. (citations and internal quotation marks omitted). We 

adopt the Long v. Mattingly three-prong framework for 

appellate review of a trial court’s suggested remittitur.

The primary purpose of the first Long v. Mattingly prong, 

looking at the trial court’s stated reasons for the adjustment, is 

to determine whether the trial court “disagreed with other 

than the amount of the verdict.” Burlison v. Rose, 701 

S.W.2d 609, 611 (Tenn. 1985). While the trial court’s denial 

of the motion for new trial is some indication that the trial 

judge agreed with the jury as to the defendant’s liability, we 

look at the trial court’s actions overall to determine whether 

“the trial judge disagreed with the facts as found by the jury.” 

Id.

The second prong requires the appellate court to determine 

whether the trial court’s suggested . . . remittitur “totally

destroys” the jury’s verdict. Long, 797 S.W.2d at 896. In 

making this determination, there is no set mathematical 

formula or percentage to use. Meals, 417 S.W.3d at 420 n. 8. 

Appellate courts have at times looked at whether the . . . 

remittitur “would result in an award not only proportionally 

different from the jury verdict but also substantially different 

in absolute terms.” Bonner [v. Deyo, No. W2014-00763-

COA-R3-CV], 2014 WL 6873058, at *7 [(Tenn. Ct. App. 

Dec. 5, 2014)] (quoting Phillips v. Perot, No. 02A01-9704-

CV-00094, 1998 WL 117325, *4 (Tenn. Ct. App. Mar. 17, 

1998) (Lanier, Sp. J., concurring)).

For the third prong of the three-step review, we look at the 

proof to ascertain whether the evidence preponderates against 

the trial court’s . . . remittitur. As noted above, this prong 

requires us to defer to the jury’s decision on the credibility of 

the witnesses and also to “that of the trial judge in his 

capacity as thirteenth juror.” Foster, 621 S.W.2d at 145.

As we segue into applying this three-step framework to 

review the trial court’s suggestion of remittitur in this case, 

we immediately encounter an obstacle. The first step is to 

“examine the reasons for the trial court’s action.” Long, 797 

S.W.2d at 896. In this case, to explain the decision to grant 

remittitur, the trial court’s Order Denying Defendant Celadon 
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Trucking Services Inc.’s Motion for New Trial and Granting 

Remittitur states only the following: “[W]hile this Court 

makes no specific determination that this jury acted with 

passion, prejudice or caprice, it is ruled that the award given 

following the trial of this matter was excessive and remittitur 

is appropriate.” . . . Thus, to explain its substantial suggested 

remittitur of the jury’s verdict, the trial court stated only that 

the jury’s award was “excessive” and remittitur was 

“appropriate.” This offers virtually no insight into the 

reasons for the trial court’s decision.

***

A trial court’s failure to provide reasons for its suggestion of 

remittitur can also affect the appellate court’s ability to apply 

the third prong of the Long v. Mattingly framework, the 

review of the proof to determine whether the evidence 

preponderates against the trial court’s adjustment. This prong 

requires the appellate court to evaluate the preponderance of 

the evidence, giving proper deference to both the jury and to 

the trial judge in his capacity as thirteenth juror. . . . [I]f the 

evidence regarding damages was conflicting and required 

both the jury and the trial court sitting as thirteenth juror to 

assess the credibility of the witnesses, a trial court’s failure to 

explain the basis for its suggestion of remittitur may leave the 

appellate court in the dark as to whether, or how, the trial 

court’s view of the credibility of the witnesses may have 

differed from that of the jury.

***

If the trial court’s authority to suggest remittitur were limited 

to situations in which the jury’s award exceeds the range of 

reasonableness, explanation of the reasons for the remittitur 

would rarely be needed; the appellate court could simply 

review the record and assume credibility determinations that 

favor the award, in the same way that an appellate court 

reviews a jury verdict. However, because trial courts now 

have expanded authority to suggest remittitur based on the 

preponderance of the evidence, they also have the 

responsibility to explain the reasons for a remittitur. This is 

necessary to give the appellate court the baseline information 

needed to determine whether the evidence preponderates 
- 7 -

against the remittitur. . . . Where credibility is a significant 

issue, deference to the trial court as thirteenth juror may not 

be possible without some idea of whether or in what regard 

the trial court’s assessment of the witnesses’ credibility 

differed from that of the jury. Under these circumstances, the 

appellate court may be left unable to review the evidence to 

determine whether it preponderates against the suggested 

remittitur. See [State v.] Ellis, 453 S.W.3d [889, ] 900

[(Tenn. 2015)] (“Weight and credibility, therefore, are 

inextricably linked.”). In such cases, the appellate court has 

the option of remanding the case to the trial court for a proper 

explanation of the reasons for the suggested remittitur, 

including the trial court’s assessment of the credibility of 

witnesses whose testimony was pertinent to the damage 

award.

As noted above, in the instant case, the trial court’s order 

offered essentially no explanation for its decision to suggest 

remittitur in every category of damages awarded by the jury. . 

. . 

***

... [T]he parties presented sharply contrasting testimony. The 

testimony conflicted regarding Mr. Borne’s physical 

condition, the degree to which his injuries were caused by the 

July 2009 accident, whether Mr. Borne could secure 

employment, and, if so, whether such employment would 

provide earnings equal to what he was making prior to the 

accident.

... The[] awards indicate that the jury credited the 

testimony of Mr. Borne’s witnesses and did not credit the 

testimony of the witnesses presented by Celadon.

The trial judge suggested remittitur of the jury’s award down 

to the following amounts: $1,100,000 for loss of earning 

capacity, $500,000 for physical pain and mental suffering, 

$100,000 for permanent injury, and $400,000 for loss of 

enjoyment of life. Each of these categories of damages would 

be affected to some extent by the perceived credibility of the 

witnesses who testified regarding Mr. Borne’s physical 

condition, the degree to which his injuries were caused by the 
- 8 -

July 2009 accident, whether Mr. Borne will be able to find 

suitable employment in the future and, if so, whether that 

employment will pay an amount equal to what he was making 

prior to the accident.

“Deciding whether there are inconsistencies in testimony, 

reconciling conflicts in testimony, and how this might affect a 

witness’s credibility, are all within the province” of both the 

jury and the trial judge sitting as thirteenth juror. State v. 

Hornsby, 858 S.W.2d 892, 895 (Tenn. 1993). Sitting as 

thirteenth juror, the trial court is “free to believe or disbelieve 

all or part or none of a witnesses’ testimony, even where the 

testimony is uncontradicted or is not directly impeached.” 

Cornell v. State, 118 S.W.3d 374, 378 (Tenn. Ct. App. 2003). 

From the record in this case, without resorting to sheer 

speculation, we have no way to determine whether the trial 

court’s suggested remittitur stemmed from disagreement with 

the jury regarding the credibility of the testimony on Mr. 

Borne’s physical condition, the degree to which his injuries 

were caused by the July 2009 accident, whether Mr. Borne 

will be able to secure employment in the future, the likely 

amount of compensation Mr. Borne would be able to earn if 

he succeeds in finding a job, or whether the trial court’s 

disagreement with the jury was based on some other factor 

entirely. In short, we are left unable to review where the 

preponderance of the evidence lies, “giving due credit to the 

jury’s decision on the credibility of the witnesses and that of 

the trial judge in his capacity as thirteenth juror.” Foster, 621 

S.W.2d at 145.

Under these circumstances, we are left little choice but to 

remand the case to the trial court for an explanation of its 

reasons for suggesting remittitur in this case to enable the 

appellate court to conduct a proper appellate review of the 

trial court’s remittitur decision. The trial court’s explanation 

need not be exhaustive, but it should indicate the areas in 

which it disagreed with the jury, including disagreement with 

any factual findings underlying the jury’s verdict or with 

testimony apparently credited by the jury.

Borne, 532 S.W.3d at 310-317 (bold and underline emphasis added).
- 9 -

As relevant to the remittitur issue, the Supreme Court summarized the following 

trial court testimony:

Mr. Borne described the progression of his symptoms and his 

overall treatment. He outlined his decision to seek treatment 

from his family physician for low back pain while continuing 

to drive the tractor trailer, and his decision six months later to 

file a workers’ compensation claim. After the workers’ 

compensation physician restricted him to light-duty work and 

recommended that he see his own doctor, Mr. Borne said, his 

attorney referred him to neurosurgeon Dr. Dietze. 

Mr. Borne described how his injuries had affected his ability 

to work, engage in hobbies, and do normal activities. He 

enjoyed driving a truck; he missed being a truck driver and 

being able to earn a living. Before the accident, he had 

enjoyed hunting and fishing. Since his injury, Mr. Borne 

said, he can fish only if his wife helps him get his boat in and 

out of the water, and when he goes hunting, he sits in a chair 

in the woods. He said that he does yard work and household 

chores if he is able, but sometimes he is not able. Mr. Borne 

has not worked since the Celadon accident and has instead 

drawn workers’ compensation benefits. His inability to work 

has left him depressed and worried about how he will pay his 

living expenses.

...

Mr. Borne agreed that the physical therapy with Dr. Roberts, 

completed in April 2012, had improved his functionality to 

the point that he could lift a twenty-five pound box. The 

improvement from the physical therapy allowed Mr. Borne to 

reduce his intake of anti-inflammatory medication and muscle 

relaxers to the point that he only took them when he overdid 

activities. He said that he does home exercises, walks on a 

treadmill, and he and his wife walk every other day. Despite 

this, Mr. Borne said it was his understanding that Dr. Dietze 

had not released him to do even sedentary work.

Mr. Borne’s wife, Tamara Williams, corroborated his 

testimony. Before the accident, she said, Mr. Borne was a 

hard worker and a “handy” person who did yard work and 

things around the house, and he also helped his mother. After 
- 10 -

the accident, it upset Mr. Borne to no longer be able to work 

or to help her and his mother the way he did before the 

accident; Ms. Williams described Mr. Borne as depressed. 

She agreed that Mr. Borne’s functionality improved when he 

did physical therapy with Dr. Roberts.

At trial, Mr. Borne’s neurosurgeon Dr. Dietze testified to a 

reasonable degree of medical certainty that Mr. Borne had 

suffered a permanent musculoskeletal injury as a result of the 

July 1, 2009 accident. Dr. Dietze first detailed his course of 

treatment for Mr. Borne. In 2012, Dr. Dietze perceived that 

Mr. Borne’s pain increased between 2011 and 2012, so he 

ordered an updated MRI and compared the MRI taken in 

2010 with the one taken in 2012. He said that the comparison 

showed an accelerated degeneration of Mr. Borne’s L4-5 disc 

beyond what would normally occur as part of the aging 

process. He felt that the most logical explanation for the 

accelerated degeneration was an injury to the L4-5 disc in the 

July 1, 2009 accident.

...

Dr. Dietze said he did diagnostic tests on Mr. Borne that 

indicated that his pain and functionality would benefit from a 

rhizotomy, a burning of certain nerve endings, and they were 

seeking approval for the procedure from the workers’ 

compensation carrier.[4] He noted that, at the time physical 

therapist Dr. Roberts performed the 2011 functional capacity 

evaluation he ordered, Mr. Borne was not capable of 

performing sedentary work. After Mr. Borne completed the 

physical therapy Dr. Roberts recommended, his functionality 

improved. However, Dr. Dietze did not order an updated 

functional capacity evaluation. Dr. Dietze was asked what 

kind of work Mr. Borne would be able to do if the 

recommended rhizotomy were successful; Dr. Dietz noted 

that the physical therapy with Dr. Roberts went very well and 

that the therapist had documented improved strength and 

functionality. He then said, “I do think he could at least meet 

the sedentary, and I would say light – possible light duty, 

somewhere in that range.”[5]

 

4

The procedures were not approved.

5 According to Borne, without the intense therapy regimen with Ms. Roberts, his pain 
- 11 -

Radiologist Dr. Glorioso testified about his interpretation of 

the MRI performed on Mr. Borne in March 2012. After 

viewing the MRI, Dr. Glorioso opined that Mr. Borne had 

suffered an annular fibrosis tear, a disc herniation at the L4-5 

level, bulging discs at the L2-3 and L3-4 levels, and signs of 

facet arthrosis, which is consistent with a degenerative spinal 

problem. Dr. Glorioso said that the annular fibrosis tear 

could be a pain generating source, and the herniation at L4-5 

was consistent with trauma and was likely a pain generating 

source.

Physical therapist Dr. Roberts testified as well. She outlined 

her procedure for performing the functional capacity 

evaluation in late May and early June 2011. At that time, she 

concluded that Mr. Borne was “not quite capable of 

performing sedentary work activities,” the lowest level of 

work activities, involving sitting for most of the time with 

occasional periods of walking or standing. At the conclusion 

of the functional capacity evaluation, Dr. Roberts 

recommended further physical therapy for Mr. Borne.

Dr. Roberts testified that, from October 2011 to April 2012, 

Mr. Borne underwent the extensive physical therapy she had 

recommended for him. Dr. Roberts said that the physical 

therapy resulted in significant improvement in Mr. Borne’s 

functionality. By April 2012, Mr. Borne reported that his 

pain levels had improved, down at times to only a 2 on a scale 

of 10. He as able to fish, cook, carry a cooler filled with 

shrimp, lift twenty-five pounds, and walk and stand for over 

two hours at a strawberry festival. He took medication for his 

pain mainly on the weekends when he overdid activity. Mr. 

Borne increased his activities around the house, improved his 

gait, and enhanced his ability to walk long distances. At the 

conclusion, Dr. Roberts released Mr. Borne to continue 

exercise and physical therapy on his own.

Dr. Roberts was not asked to update her June 2011 functional 

capacity evaluation after Mr. Borne completed the 

recommended round of physical therapy. However, at the 

time of trial, based on her observations of Mr. Borne during 

 

returned.
- 12 -

physical therapy, it was Dr. Roberts’ opinion that Mr. Borne 

had improved to the point that he could probably perform 

sedentary work.

Behavioral health and rehabilitation counselor Dr. Cates 

testified at trial about his vocational evaluation on Mr. Borne. 

After reviewing Mr. Borne’s medical records, psychological 

assessments, and functional assessments, Dr. Cates observed 

Mr. Borne and interviewed him at length about his age, 

education, and work history. Crediting Dr. Dietze’s initial 

assessment that Mr. Borne is not capable of performing 

sedentary work, Dr. Cates said, then he is unemployable and 

his work loss would be 100%. In the alternative, even 

crediting the assessments indicating that Mr. Borne can 

perform sedentary or light work, Dr. Cates felt that employers 

were not likely to respond well to the length of time Mr. 

Borne had been off work. Consequently, if it is assumed that 

Mr. Borne can perform sedentary work, Dr. Cates felt that his 

loss of vocational opportunity would be 95-98% of jobs with 

directly transferrable skills. Assuming Mr. Borne could 

perform light-duty work, Dr. Cates calculated his loss of 

vocational opportunity at approximately 93% for jobs with 

directly transferrable skills, 58% loss for jobs with generally 

transferrable skills, and 45% loss for unskilled jobs. Put 

differently, Dr. Cates opined that, if Mr. Borne were deemed 

capable of performing sedentary or light-duty work, he would 

be available for 55% of unskilled jobs.

Vocational analyst Anthony Gamboa testified at trial about 

his economic assessment of how Mr. Borne’s physical 

limitations had affected his capacity to work and earn money. 

Dr. Gamboa’s vocational economic assessment was based on 

Dr. Dietze’s medical records, Mr. Borne’s work history, 

earning records and vocational evaluation, and Dr. Roberts’ 

June 2011 functional capacity evaluation. Based on this 

information, Dr. Gamboa concluded that Mr. Borne could 

neither sit nor stand for extended periods of time, so he could 

only do the type of sedentary work that would allow him to 

alternate sitting and standing. Given these restrictions and 

Mr. Borne’s low level of reading comprehension, Dr. 

Gamboa opined that he would be able to perform only about 

2% of the jobs in the labor market. He felt that employers 

would be reluctant to hire someone like Mr. Borne who had 
- 13 -

been out of work for several years. Given these parameters, 

Dr. Gamboa described Mr. Borne as essentially 

“unemployable.” Based on the average Louisiana heavy 

truck driver’s earnings in 2011 dollars, and projecting Mr. 

Borne continuing to work until age sixty, Dr. Gamboa 

calculated Mr. Borne’s lost earning capacity at $1,334,647.

Dr. Gamboa acknowledged that his calculation of Mr. 

Borne’s lost earning capacity was done without knowledge of 

the improvement in his functionality after completing several 

months of physical therapy with Dr. Roberts. If it is assumed 

that Mr. Borne can perform light-duty or sedentary work, Dr. 

Gamboa said, then the vocational economic assessment 

“would be done in a very, very different way,” and his loss of 

earning capacity would be less. However, Dr. Gamboa 

pointed out that Mr. Borne had only performed physical jobs 

in the past, such as working as a welder or a truck driver, so 

his lack of experience in light-to-sedentary jobs would put 

him at a competitive disadvantage in applying for those jobs. 

This testimony concluded Mr. Borne’s case-in-chief.

Celadon then presented evidence in response. . . .

...

Celadon also presented the opinion testimony of Dr. Thomas, 

the neurosurgeon who examined Mr. Borne at the request of 

his workers’ compensation carrier. Dr. Thomas reviewed an 

MRI performed in February 2010 and concluded that Mr. 

Borne had low back strain. Dr. Thomas examined Mr. Borne 

again in 2012, after Mr. Borne had completed the physical 

therapy with Dr. Roberts. Dr. Thomas determined that Mr. 

Borne’s condition had improved significantly since his first 

visit and that he had reached maximum functional 

improvement. He felt that Mr. Borne’s condition was lumbar 

strain or that it could be arthritic in nature. Dr. Thomas was 

of the opinion that, while Mr. Borne could not do heavy-duty 

work, he could do light-duty work or perhaps even work that 

was light-to-medium-duty.

Celadon also offered the testimony of neurosurgeon Robert 

Applebaum. Dr. Applebaum examined Mr. Borne after his 

physical therapy with Dr. Roberts, and he reviewed his 
- 14 -

medical records, including the MRI films read by Dr. 

Glorioso and relied upon by Dr. Dietze. Dr. Applebaum 

concluded that Mr. Borne likely had no disease or damage 

involving his spinal cord or nerve roots and that there were no 

significant neck or back mechanical or neurological findings. 

He found degenerative changes in the lumbar spine that 

would have predated an accident in July 2009. Dr. 

Applebaum noted a moderate disc bulge at the L4-5 level but 

felt that it was not clinically significant. Dr. Applebaum 

found no evidence of impairment and concluded to a 

reasonable degree of medical certainty that Mr. Borne could 

return to work in any occupation for which he was otherwise 

qualified.

Rehabilitation counsel Carla Seyler also testified on behalf of 

Celadon. Ms. Seyler performed her vocational rehabilitation 

examination on Mr. Borne after he had completed physical 

therapy with Dr. Roberts. She interviewed Mr. Borne, 

reviewed his work and educational history, and did vocational 

testing. She reviewed Mr. Borne’s medical records, including 

those of Dr. Dietze and Dr. Applebaum, as well as the records 

of physical therapist Dr. Roberts. She interpreted the records 

of Dr. Dietze and Dr. Roberts as indicating that Mr. Borne 

would be able to perform sedentary to light-duty work, and 

she interpreted Dr. Applebaum’s records as indicating that 

Mr. Borne could return to his regular work with no 

restrictions. Under either physical evaluation, Ms. Seyler 

opined, Mr. Borne would be able to secure a job compatible 

with his education, work history, and physical restrictions, 

and he would be able to replace his income prior to the July 

2009 accident. To overcome the three-year gap in his work 

history, Ms. Seyler suggested that Mr. Borne spend a period 

of time working short-term jobs for a temporary service, to 

gradually get back into the workforce. After a period of 

transition, Ms. Seyler asserted, Mr. Borne would be able to 

secure a job making an amount of money that would equal or 

exceed what he was making at the time of the accident.

Borne, 532 S.W.3d at 287-91.

On remand, the trial court entered an amended order regarding Celadon’s motion 

for a new trial or remittitur, explaining as follows:
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FINDINGS OF FACT AS TO REMITTITUR

LOSS OF EARNING CAPACITY

9. The Plaintiff called Dr. Anthony Gamboa, Jr. as a 

vocational economic analyst who testified that he conducted a 

vocational economic assessment on Mr. Borne, looking at his 

education, medical records, earning history, his deposition 

and average earnings for a person doing the type of work he 

was doing, heavy truck driver. 

10. In doing his evaluation, [Dr. Gamboa] determined that 

Mr. Borne had an occupational disability, in that because of 

his injuries, he would have limitations in the terms of the 

amount or kind of work he would be able to perform.

11. Dr. Gamboa found that [Mr. Borne’s] lifetime loss of 

earning capacity was $1,334,647 based upon his work history, 

which included fringe benefits but did not consider any 

reduction for business expenses which Mr. Borne was taking 

as a truck driver.

12. Dr. Gamboa in his analysis of Mr. Borne’s health status 

did not review the report prepared by Dr. Roberts which 

found that Mr. Borne had improved after completing 5 to 6 

month[s] of physical therapy. 

13. The Plaintiff called Dr. C. Greg Cates who has a practice 

in rehabilitation counseling and vocational rehabilitation.

14. In his analysis [Dr. Cates] considers a person[’]s[] age, 

education, work history and then physical or mental 

limitations. 

15. On July 23, 2012[,] he conducted a vocational exam of 

Mr. Borne, wherein he considered the medical records of 

testified [sic] as Plaintiff[’]s to the effect a disability has [on] 

a person’s capacity to work and earn.

16. Dr. Cates found that Mr. Borne was significantly 

impaired and will have a difficult time reentering the 

workplace. Although as a rehabilitation professional, you 

hope everybody at some point in time returns to the 

workplace.
- 16 -

17. Tamara Williams, Mr. Borne’s Wife, testified that he was 

a “very hard worker” and was always working. He wanted to 

work and wanted to be a provider.

18. She indicated that he was always active and was handy 

around the house, caring for her and his mother.

19. After the accident [Mr. Borne] saw Dr. Waguespack who 

put him on light duty, which did not make Mr. Borne happy, 

because he still wanted to try and go to work.

20. Mr. Borne detailed a long history of working in a variety 

of fields and continued to better himself, finding better 

employment and opportunity through the years.

21. When he was further restricted by Dr. Deitz and took him 

off of work entirely [sic] which also frustrated him because 

he was worried about how he was going to survive.

22. He indicated that while he was drawing workers’ 

compensation, he was not happy because it was not giving 

him the life that he wanted. “I would do what it takes to 

make a living for my family; not sit around and look at 

people.”

23. The Plaintiff called Dr. Courtney Roberts, a doctorate 

[sic] in physical therapy, who operates a Physical Therapy 

practice in New Orleans where she deals with chronic pain 

patients.

24. Typically the goal of treatment is to improve the patient’s 

quality of life, increasing their activity level while 

maintaining their pain on a lower level.

25. On May 24th, 2011[,] she performed a functional 

capacity evaluation on Mr. Borne testing his physical capacity 

doing a variety of activities testing his tolerance for his ability 

to do them and to see if he can return to work.

26. Dr. Roberts conducted forty-five (45) sessions of 

physical therapy, looking to increase [Mr. Borne’s] range of 

motion, decreasing his pain, decreasing the muscle tightness, 
- 17 -

increasing his strength and increasing muscular stability.

27. That at the conclusion of the physical therapy [Mr. 

Borne] had improved in his ability to lift and repetitive 

activities however a subsequent functional capacity 

evaluation was not done so it was difficult for Dr. Roberts to 

quantify [Mr. Borne’s] new functional capacity.

28. Taking all of the proof in regarding [Mr. Borne’s] strong 

work ethic, effort and success at rehabilitation, and desire to 

support his family, the Court believes that he will persevere 

and will have some future income over the next 38 years 

which is the basis for reducing the loss of earning capacity 

from $1,455,000.00 to $1,100,000.00.

(Citations to the record omitted.). Mr. Borne timely appealed.

II. ISSUE

The issue before this court on appeal is the following:

Whether the trial court erred in suggesting remittitur of the 

jury award for loss of earning capacity.

III. STANDARD OF REVIEW

The remittitur statute, Tennessee Code Annotated section 20-10-102, provides in 

full as follows: 

(a) In all jury trials had in civil actions, after the verdict has 

been rendered and on motion for a new trial, when the trial 

judge is of the opinion that the verdict in favor of a party 

should be reduced and a remittitur is suggested by the trial 

judge on that account, with the proviso that in case the party 

in whose favor the verdict has been rendered refuses to make

the remittitur, a new trial will be awarded, the party in whose 

favor such verdict has been rendered may make such 

remittitur under protest, and appeal from the action of the trial 

judge to the court of appeals.

(b) The court of appeals shall review the action of the trial 
- 18 -

court suggesting a remittitur using the standard of review 

provided for in T.R.A.P. 13(d) applicable to decisions of the 

trial court sitting without a jury. If, in the opinion of the court 

of appeals, the verdict of the jury should not have been 

reduced, but the judgment of the trial court is correct in other 

respects, the case shall be reversed to that extent, and 

judgment shall be rendered in the court of appeals for the full 

amount originally awarded by the jury in the trial court.”

The statute directs that we use the standard of review set forth in Rule 13(d) of the 

Tennessee Rules of Appellate Procedure: “[R]eview of findings of fact by the trial court 

in civil actions shall be de novo upon the record of the trial court, accompanied by a 

presumption of correctness of the finding, unless the preponderance of the evidence is 

otherwise. . . .” Tenn. R. App. P. 13(d).

We are mindful that under the Tennessee constitution, the invocation of the right 

to a jury trial requires that the jury be permitted to determine all disputed factual issues. 

Borne, 532 S.W.3d at 308 (citations omitted). As noted in Walton ex rel. Walton v. 

Tullahoma HMA, LLC, 572 S.W.3d 180, 184 (Tenn. Ct. App. 2018),

“The questions of disputed fact to be resolved by the jury 

include the type and amount of any damages awarded to the 

plaintiff.” Id. [(citing Borne, 532 S.W.3d at 308)]. This does 

not mean, however, that a jury’s verdict is not subject to 

judicial supervision in the trial court. “The power of a trial 

judge to disturb a verdict because of his [or her] 

dissatisfaction with the amount of damages rests in this state 

on more than a century of precedent and practice.” Foster v.

Amcon Int’l, Inc., 621 S.W.2d 142, 144 (Tenn. 1981). 

Indeed, “[w]hile the amount of the verdict is primarily for the 

jury to determine, the trial judge who presided at the trial and 

heard the evidence is the next most competent person to pass 

upon the matter.” Burlison v. Rose, 701 S.W.2d 609, 611 

(Tenn. 1985) (citation omitted).

Walton, 572 S.W.3d at 184.

IV. DISCUSSION

Borne argues that the trial court’s remittitur of the jury’s verdict regarding loss of 

earning capacity is inconsistent with a preponderance of the evidence. According to 

Borne, Dr. Gamboa opined that $1,334,467 represented the earning capacity of an 
- 19 -

average truck driver of the same age as Borne and also considered factors unique to 

Borne, including his significant reading deficiency. Borne notes that he previously 

compensated for his functional limitations, namely a reading deficiency, with jobs that 

depended on his physical capabilities. He observes that Dr. Gamboa testified that even 

assuming Borne qualified to perform sedentary work, he was unemployable, given his 

functional limitations, history, education, and training. Borne further stresses that Dr. 

Cates’s analysis showed Borne’s injury resulted in a 95% to 99% loss of vocational 

opportunities if Borne’s physical capabilities limited him to sedentary employment, and a 

93.2% reduction in such opportunities if Borne was physically capable of light work. 

Borne contends that the trial court’s findings as to loss of earning capacity discount the 

testimony that Borne’s functional challenges and employment history render him 

unemployable in spite of his physical capacity for sedentary or light work. 

According to Borne, the jury’s award (including the excess amount of $120,353 

above Dr. Gamboa’s calculations) is consistent with “Tennessee’s liberal admission of 

evidence pertaining to loss of earning capacity” and the recognition that earning capacity 

is “to some extent, speculative and imprecise.” See Overstreet v. Shoney’s, Inc., 4 S.W.3d 

694, 704 (Tenn. Ct. App. 1999)). The jury was instructed to “consider any evidence of 

plaintiff’s earning capacity including, among other things, plaintiff’s health, age, 

character, occupation, past earnings, intelligence, skill, talents, experience and record of 

employment.” Id. Borne argues, therefore, that under the law and the trial court’s 

explicit instructions, the jury was permitted to determine that Borne’s physical injuries 

had a devastating impact on his earning capacity that would not have been similarly 

compromised for an individual with a “white collar” employment history. He claims that 

his testimony as to the product-delivery and mileage incentives available under the 

Trimac pay scale in conjunction with testimony that he was a “very hard worker” who 

wanted to better himself financially, established and proved his pre-injury potential to 

earn more than the average heavy truck driver. Borne therefore requests that we reverse 

the trial court’s remittitur and reinstate the jury verdict for loss of earning capacity, 

arguing that the amended order of the trial court does not recite any proof to justify a 

$355,000 remittitur of a $1,455,000 jury award. 

Celadon contends that a preponderance of the evidence supports the trial court’s 

remittitur of the jury award regarding loss of earning capacity. According to Celadon, the 

jury made the “unfounded assumption” that Borne would never “earn another dollar in

his life” and awarded Borne 100% of his lost wages as if he would never again be able to 

return to work rather than the difference between the wage he earned before the accident 

and what he is capable of earning after the accident. Celadon asserts that the testimony 

of Dr. Gamboa is discredited by: (1) his failure to review and consider key evidence in 

this case; (2) testimony concerning Borne’s work history, work ethic, skills, and ability to 

learn; and (3) errors in the method of Dr. Gamboa’s calculation of Borne’s alleged lost 

earning capacity. Celadon argues that had Dr. Gamboa considered the relevant evidence, 

his opinion would have reflected the fact that Borne was capable of working in the future, 
- 20 -

which would have significantly diminished the $1,334,647 calculation for his alleged loss 

of earning capacity. Celadon notes that the trial court’s findings specifically indicated: 

“Dr. Gamboa in his analysis of Mr. Borne’s health status did not review the report 

prepared by Dr. Roberts which found that Mr. Borne had improved after completing 5 to 

6 months of physical therapy.” According to Celadon, this credibility determination by 

the trial court should be given due deference by this court. Foster, 621 S.W.2d at 145. 

Celadon claims that Borne is capable of obtaining gainful employment and can reenter 

the workforce at a host of positions. 

Celadon, while pointing out that the majority opinion of the Tennessee Supreme 

Court in Borne questioned “[w]hether there is even material evidence in the record to 

support [the jury] award [for lost earning capacity]” and observed that “the evidence 

Celadon used to undermine the basis for Dr. Gamboa’s testimony was substantial,” notes 

that the jury award is higher than the $1,334,647 figure that Borne’s expert calculated. 

Borne, 532 S.W.3d at 317 n. 26, 318 n. 27 (emphasis in original). According to Celadon, 

a review of the record and of the trial court’s amended order providing reasons for its 

remittitur reflects that no evidence was introduced in support of a loss of earning capacity 

award in excess of $1,334,647, and that figure included no reduction whatsoever for 

future earnings should Borne return to work. Celadon further notes that the method of 

Dr. Gamboa’s calculation of the total for lost earning capacity was flawed because he did 

not consider any reduction for business expenses that Borne was taking as a truck driver, 

as he based his calculation on the average income of an over-the-road truck driver in 

Louisiana of $38,021 per year rather than Borne’s actual earnings of $36,000 per year, 

and because he failed to calculate a net discount to present value as required by 

Tennessee law. All of these flaws, Celadon posits, led to a significantly inflated lost 

earning capacity figure. 

Celadon contends that if the court finds that the trial court’s remittitur of the jury 

award for loss of earning capacity to $1,100,000 is not supported by a preponderance of 

the evidence, the award for loss of earning capacity should be capped at $1,334,647, as 

there is no proof in the record to support an award for loss of earning capacity higher than 

that amount.

Earning capacity refers not to actual earnings, but rather to the earnings that a 

person is capable of making. See Southern Coach Lines v. Wilson, 214 S.W.2d 55, 56 

(Tenn. Ct. App. 1948) (explaining that earning capacity refers to the loss of the power to 

earn). The extent of an injured person’s loss of earning capacity is determined by 

comparing what the person would have been capable of earning but for the injury with 

the income which the person is capable of earning after the injury. See Overstreet, 4 

S.W.3d at 703. If the injury is permanent, this amount should be multiplied by the 

injured person’s work life expectancy, and the result should be discounted to its present 

value. Id. In order to recover these damages, the injured person must first prove with 

reasonable certainty that the injury has or will impair his earning capacity. Id. Then, the 
- 21 -

injured party must introduce evidence concerning the extent of the impairment of his 

earning capacity. Id.

In 29 Am. Jur. 3d Proof of Lost Earning Capacity § 5 (1995), fact finders are 

instructed to distinguish between impaired physical capacity and impaired earning 

capacity. They are not necessarily the same: “Proof of impaired physical ability is not 

always equivalent and therefore not always sufficient to prove impaired capacity to earn. 

Depending upon an individual’s skill, education, training or experience, a severe physical 

disability may make no difference at all to one individual’s capacity to earn while an 

otherwise trivial injury may make a significant difference to another . . . .” See 

Overstreet, 4 S.W.3d at 703-704.

The trial court seemed to base its suggested remittitur determination on the failure 

of Dr. Gamboa to not include a review of Dr. Roberts’s findings of improvement and for 

not considering any reduction for business expenses. The trial court acknowledged, 

however, that “Dr. Cates found that Mr. Borne was significantly impaired and will have a 

difficult time reentering the workplace.”

In our role in evaluating the preponderance of the evidence, giving proper 

deference to both the jury and to the trial judge in his capacity as the thirteenth juror, we 

find, as acknowledged by the Supreme Court, that the jury’s awards “indicate that the 

jury credited the testimony of Mr. Borne’s witnesses and did not credit the testimony of 

the witnesses presented by Celadon.” Borne, 532 S.W.3d at 316. That testimony, as 

noted by the Court, provided that despite Dr. Roberts not being asked to update her June 

2011 functional capacity evaluation after Borne completed the recommended round of 

physical therapy, “at the time of trial, based on her observations of Mr. Borne during 

physical therapy, it was Dr. Roberts’ opinion that Mr. Borne had improved to the point 

that he could probably perform sedentary work.” Borne, 532 S.W.3d at 289. Dr. Cates 

related, however, that “even crediting the assessments indicating that Mr. Borne can 

perform sedentary or light work, . . . employers were not likely to respond well to the 

length of time Mr. Borne had been off work,” and observed that “if it is assumed that Mr. 

Borne can perform sedentary work, . . . his loss of vocational opportunity would be 95-

98% of jobs with directly transferrable skills.” Id. Dr. Gamboa, in view of Borne’s “low 

level of reading comprehension” . . . opined that [Borne] would be able to perform only 

about 2% of the jobs in the labor market. He felt that employers would be reluctant to 

hire someone like Mr. Borne who had been out of work for several years” and “described 

Mr. Borne as essentially “ ‘unemployable.’” Id. Dr. Gamboa commented that “there are 

very, very, very few” occupations open to Borne, and that “he’s just going to have 

extreme difficulty getting a job.” Borne, 2014 WL 3778743, at *23. Dr. Cates and Dr. 

Gamboa testified that, based on Borne’s physical limitations and prolonged work absence 

since the accident, Mr. Borne would likely never work again. The fact that Borne desires 

to work and has a strong work ethic does not overcome this testimony. Celadon 

presented no evidence suggesting an alternative, lower dollar figure than that calculated 
- 22 -

by Dr. Gamboa. 

As we determined in our prior opinion, “Dr. Gamboa clearly did not base his 

assessment upon any medical determination that Plaintiff is physically unable to return to 

any job. Instead, he opined that Plaintiff’s limited credentials essentially leave him 

unable to compete for the jobs which he can physically perform.” Borne, 2014 WL 

3778743, at *24 (emphasis in original). We find that the evidence preponderates against 

the trial court’s remittitur to $1,100,000, as nothing in the record supports a reduction 

below Dr. Gamboa’s calculation of $1,334,647. The evidence also preponderates against 

the jury’s award of $1,455,000 because there is no evidence in the record to support any 

loss of earning capacity $120,353 greater than the amount calculated by Dr. Gamboa. 

Accordingly, the jury’s award for loss of earning capacity is remitted to $1,334,647.

V. CONCLUSION

For the aforementioned reasons, we reverse the judgment of the trial court and 

remit the jury’s verdict for loss earning capacity damages to $1,334,647. The case is 

remanded to the trial court for such further proceedings as may be necessary. Costs of 

the appeal are taxed to the appellant, Celadon Trucking Services, Inc.

_________________________________

JOHN W. MCCLARTY, JUDGE