### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 26, 2001 Sessi

on

BRENDA L. TIPTON v. RICHARD G. JONES, ET AL 

### . Appeal from the Circuit Court for Hamilton County No. 97CV-1020 Samuel H. Payne, Judge

FILED MAY 30, 2001
No. E2000-01860-COA-R3-CV

Brenda L. Tipton (“Plaintiff”) filed this lawsuit seeking damages for p erso nal injury. A

llstate Insura nce Company (“A

llstate”), Plaintif

f’s uninsured moto

rist carrier, f

iled a motion in lim

in e seeking to exclude portions of the testimony of Plaintiff’s treating physician because it was not based upon a reasonable degree of medical certainty. Allstate also claimed that the j ury ve rdict was excessive and it was entitled to a remittitur or a new trial. We affirm the Trial Court’s evidentiary rulings and its refusal to grant a remittitur or new trial.

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

D. M ICHAEL S WINEY , J., delivered the op inion of the court,

in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.

Joh n T. Ric e, C hat tan ooga , Te nne sse e, fo r th e Ap pel lan t Al lst ate Insu ranc e Co mpa ny.

John D. Agee, Kingston, Tennessee, for the Appellee Brenda Tipton.1 The T rial Court gra nted a con tinuance at the r equest of A llstate, the trial was tem porarily stayed as a result

of Defendant’s filing bankruptcy, and the trial

was “bumped”

by other cas es on other days it had be en schedu led. This accounts fo r the delay be tween the filing of the Comp laint and the trial.
-2- OPINION Background
This lawsuit arose fr

om an automobile

accident whi ch o ccur red i n Ha mil ton Cou nty, Tennessee, on May 31, 1996. Plaintiff sued Richard Jones (“Defendant”) for injuries she sustained
as a result of the accident. Defendant wa s uninsure d, and Plaintiff’s uninsured motorist carrier, Allstate, undertook the defense of the case.

The deposition of

Dr. Joel Ragland (“Ragland”) was taken for proof approximate

ly two years bef

ore trial. 1 After Ragland’ s deposit ion was ta

ken, Allstate filed a motion in limine seeking to exclude various items of evidence. Plaintiff never filed a written response to the motion. The only issues concerning the items of evidence Allstate sought to excludein its motion that were notresolved prior to trial involved portions of Ragland’s testimony. The Trial Court instructed counsel that it

would address these objections when the deposition was read at tria

l, stating it would “rule on them as they come along.”

The only issue presented to the jury was the amount of da mag es to wh ich Plaintiff
was entitled because

Defendant’s lia

bility for the

accident was ad

mitted. At trial,

Plaintiff testified she had been employ

ed by the Kin

gston Police Depa

rtment as a

secretary and records clerk for ove r ten years. Plai

ntiff stated that w

hile driving to

visit her elderly

father in Tiftonia

, she was struck in the rear of her vehicle by Defendant. Plaintiff descr ibed herself as being hysterical immediately after the accident. She sta

ted she was froze

n, hurting, and w

aiting for help.

Plaintiff hit th

e s teering whee l an d her mouth and neck were hurting. She “was just hurting all over.” The ambulance attendants

put a collar around

her neck, placed her on a board, and transported her

to the hospital. While at the hospital, she described the pain as going down her neck, part of her shoulder

and into her back. Plaintiff stayed with her sister for a few days after being released from the hospital. She essentially

remained in bed the entire time. Her sister brought her f ood and helped h er go to the bathroom. Plaintiff missed two or three days of work the week following the acc ident.
Plaintiff testified that she experienced pain in her

neck during the first week after the accident, and th

at it started to

move further

down her body. When her condition did not improve, Plaintiff made anapp oin tme nt w ith Ragl and . Ini tia lly, her primary complaint was neck and shoulder blade pain. She told

him that she hurt all over, but does not recall specifically mentioning her lower back. By the time of her second appointment with Ragland, he

r condition had wor

sened and the pai

n was going down her back and left leg. Ragland p rescribed p hysical therapy and Plaintiff was off work for several days. Plaintiff testified that after the physical therapy was completed, she still had problemswith pain in her back and leg, but the neck pa in had improved somewhat. Plaintiff was prescribed

a TENS unit which helped her “some” and which she continued to use “some” at the time-3-

of trial. Plaintiff testified that she still has pain in her back and left leg which at time

s is constant. She has trouble sitting for a prolonged period and going up steps and bending. She occasionally has neck pain and sitting at the computer and typing makes the neck pain worse. Plaintiff no longer goes to flea markets or craft fairs, no longer takes her grandc hildren to the park, and no long er walks with co-workers.She also is limited in the amount of weight she can lift. Plaintiff incurred $3,930.00 in medical bills. She c

laimed to have mi ssed a total of fou rteen days of work as a result of the injuries and was claiming lost wages in the amount of $1,004.64, based on her hourly r ate of $8.97. On cross-examination, Plaintiff admitted that she did not complain to Rag

land about lower b

ack pain until July 15 , 1996. At that time, she reported to Ragland that she had been having lower ba

ck pain since approximately June 23, 1996, some 23 days after the acc ident.
Plaintiff’s sister, Ms. Joy Jackson (“Jackson”) also testified. Jackson stated that she went to the hospital shortly after the accident happened, and Plaintiff was crying. Plaintiff was in
a neck brace and was immobilized. Plaintiff stayed with Jackson for a few days af ter being released from the hospital. Jackson stated that Plaintiff was i n considerable p

ain after the ac

cident. The only time Plaintiff got out of the bed was when she h ad to go to

the bathroom, and

Jackson would assist her. Jackson drove Plaintiff home to Kingston, Tennessee, three days after the a ccident. Jackson
re turned to Kingston the next weekend, at which time Plaintiff was still in a considerable amount of pain.
The jury awarded Plaintiff damages in the amount of $20,000.00 for personal injuries , medical expenses, and lost w ages. Judgment o

n the verdict was

entered by

the Trial Court. Al

lstate filed a Motion for Remittitur and to Alter or Amend pursuant to Rule 59.04 of the Tenn. R. Civ. P. Allstate claimed th at the verdi ct was above the “upper r ange of reaso nableness, and r epresents passion, prejudice or capr ice by the ju

ry.” Allstate also filed a Motion for New Trial and/or for a Directed Verdict pursuant to Rules 59.01 and 59.02 of the Tenn. R. Civ. P. Allstate claimed that the Trial Court’s failure to sustain its objections as to portions of Ragland’s testim ony was rev

ersible
error because Plaintiff failed to carry her burden of proof that the m edica l expenses and care and treatment related to the lumbar or

lower back region were reasonable, necessary , and causally related to the accident. Al

ternatively

, Allstate reques

ted the Trial Court

to sustain its

directed verdict

on the limited issue as to the causal relations hi p between the lumbar back injury and related medical expenses and the accident. Allsta te also claimed it was error for the Trial Court to allow the disputed testimony to be read without also r eading the obje

ctions made during

the deposition. I

n its memorandum

in support of its post trial motions, Allstate stated: “In poi nt of fact th e Court overruled all objections by the defendant to any of the e xamination of the plaintiff of Dr. Ragland, but reserved those objections and none were ‘waived.’”

Plaintiff filed a Motion for D

iscretionary

Costs se e king: the deposition fee of Ragland ($60 0.00); and court reporter fees for the deposition of Plaintiff ($105.00), Ragland ($228.00); and the court reporter’s appearance at trial ($100.00). The Trial Court gr anted Plaintiff’s motion only with respect to Ragland’ s depos ition fee ($600.00) and the court reporter fee for that deposition ($228.00). At the same time, the Trial Court denied Allstate’s motion for a new trial and-4-

its motion for a

remittitur. As to the amount of the jury verdict, the Trial Court stated that while the verdict was high, it was reasonable. Allstate appealed.
Discussion

We first address the evidentiary issues pertaining to the testimony of Rag land. Questions of the competenc y and admissi

bility of expert testimony are left to the sound discretion of the trial court. McDaniel v. CSX Transportation, Inc. , 955 S.W.2d 257, 263 (Tenn. 1997). A trial court’s determinations on such questions will be overturned on appeal only where an abuse of discretion has been shown. Id . at 263-64. For purposes of this appeal, we accept that the Trial Court overruled all of the objectio

ns with regard t

o Ra gland’s test

imony since he let that testimony be presented to the jury.

In Allstate’s

motion in limine, and o

n appeal, the primary

objection is to

testimony of Ragland which

Allstate claims was not

based upon a reasonable degree of medical certainty . The first question objected to came after Ragland testified regarding his initial examination of Plaintiff. After describing the medical

history prov

ided by Plaint

iff, Ragland wa

s asked if he was “

able to form
an yconclusion as to her condition at that time”. Allstate objected to the form of the question. Ragland then testified tha

t in his opinion, Plainti

f f suf fere d a w hip las h-t ype ce rvi cal str ain inj ury. Th e next que stion posed to Ragland was whether that opinion was within a reasonable degree of medical certainty, to which he responded “Yes.” While the sequence of these questions may have been better if

reversed, Allsta

te’s argument t

hat this opinion testimony was not based on a

reasonable degree of medical certainty is without merit because it cle arly was. Ragland was then a sked what he meant by a “cervical str

ain”, and Allstate

again objectedto the form of the question. Ragland responded that a “strain in general is when a part of the b ody goes in a direction or to an extent over and above what it would normally do i n normal daily living. It ca

n result in pain, stiffness, th

ose type sy

mptoms. A strain is

not something you can
see on a film or MRI or anything else n ecess arily. It ’s what we consider a soft tissue injury....” Ragland then was asked if there was an act ual tea rin g of t he m usc ula tur e wi th a sof t ti ssu e injur y. Allstate objected to the form of thequestion. Raglan d answered that s

ometimes there is a

tear and sometimes there is

just an overextension from the normal position. As to the Plaintiff’s situation, he could not tell for sure if therewas a tear, but if there was it was not significant. At the beginning of the deposition, Allstate stipulated to Ragland’s qualifications “t o opine in his area of expertise”, which is neurosurgery. This is exactly wha t Ragland did whenasked what a “cervical strain” was andwhether such a strain would involvea tearing of the musculature. He also testified that he could notbe sure if Plaintiff had any tearing of the musculatur

e. All of this testimo

ny is within Ragland’s
area of expertise. Ragland’s explaining to the jury the type of injury Plaintiff suffered (i.e. cervical strain) as a result of the accident was certainly “scientific, tec

hnical, or other spe cialized k nowledge [that] will substantially

ass ist the trier of fa

ct to understand th

e evidence or to

determine a fac

t in issue ....” See Tenn. R. Evid. 702. T he Trial Court did n

ot abuse its discre

tion in allowing thi

s testimony.-5- The next line of

questioning that Allstate objected to was Ragland’s testimony that it was reasona

ble for Plaintiff to miss three days from work following the accident due to her medical condition. Allstate objecte d because Ragl

and was not a

vocational rehabilitation expert and this testimonywas speculative. In Allstate’s memorandum in support of its motion for a remittitur, Allstate agreed that the time Plaintiff missed from work immediately

following the accident was reasonable. Consequently, we need not decide if the admissionof this evidence w as error becau

se even if it was, it would be harmless given the concession that the time missed from work immediately

following the accident was not unreasonable. See Rule 36(b) of the Tenn. R. App. P.
Next, Ragland was asked what his impression of Plaintiff’s condition was after treating her on September 6, 1996. Allstate objected to the form of the q uestion. Raglan d then stated that his impression was Plaintiff had radiculopathy or nerve irritation at the fifth lumbar root level and this opinion was within a reasonable degree of medical certainty . We fail to see how t his testimonyis not based upon a r easonable deg

ree of medical c

ertainty as claimed by Allstate. Allstate’s basis for challenging the admission of this testimony is without merit.

Th e next question centers around a hypothetical question posed to Ragland. Spe cif ica lly, Ragland was asked to assume Plaintiff was still experien c ing occasional back pain which was made wor se by activiti es such as be nding and li fting, and that Plaintiff continued to wear
a TENS unit. Given these assumptions, R agland was asked whether he had an opinion “within a
reason able degree of med ical certainty

whether that bac

k pain is permanen

t in nature”. Allst

ate objectedto the form of the q uestion and beca

use it assumedfacts not in evidence. In response to the question, Ragland responded that Plaintiff’s back pain was permanent although it could improve at
somepoint in the future. Ragland then affirmed that this opinion was with

in a reasonable degree of medical cert ain ty. Allstate’s objection to this testimony is based on later testimony by Ragland that there was no objective evidence to confirm that the low bac k pain was caused by t he accident. According to Allstate, this later testimony cancel s out th e previous testimony. We disagree. The later testimony simply confirms that there was no objective medical evidence that there was a lower back injury. This does not mean there was no injury, only that it was not detectable on the MRI that
was performed on Plai

ntiff. In fac

t, Ragland testif

ied that it was “definitely” possible to have a normal MRI

butstill have complaints of pain. According to Ragland, this was because MRI’s do notshow pain, they show structures. The hypothetica l question posed to Ragland was in accord with the testimony of P

laintiff as to her

medical condition

and, therefore

, did not assume fac

ts not in evidence. To hold otherwise would prohibit testimony of a treating physician base d on the medical complaints

of the patient. Likewise, simply because there was no objective evidence on the MRI of
an i njury to the lower back, it does not automatically follow that there was no permanent

injury

. Ragland’s testimony with in a reasonable

degree of med

ical certainty

that Plaintiff had a permanent lower back injury

coupled w ith Plaintiff’s testimony was sufficient to establish a factual issue on whether Plaintiff suffered a permanent injury to the lower back. The fact that there was no objective medical evidence goes

to the weight o

f t he evidence and potential damages, both of which were matters for the jury to consider.-6- The next question objected to by Allstate was whether the automobile accident described by Plaintiff was the type of mechanism that could ca use low back pain. Ragland responded

that it “could”. Al

lstate claims that t

his testimony w

as not based upon a

reasonable degree of medical certainty. The testimony immediately after this question is, however, suff iciently definite: Q. Now , Doctor, assuming that Ms. Tipton, within several

days of the car acci

dent, began to

develop some

stiffness in her lower back and some pain that g

radually in

creased up to the

point in time that she saw you – that being July 15, 1996 – assuming that to be true, do you have an

opini on within a reasonable degree of medical certainty whether the bac

k pain that yo

u diagnosed was

c ausal lyrelated to the ca

r accident? MR. RICE: Objec

t to the form.

THE WITNESS: With the circumstances as stated in the question, ye

s, I would have

a causal relatio

nship there. Yes. Q. And that opinion is

within a reasonable degree of medical cert ain ty?
A. Yes.
After c onsidering the r

ecord as a whole

, including the te

stimony of Pla

intif f an d Ragland, we concludethere wa s no error by the Trial Court in the admission of those portions of Ragland’s testimony objected to by Allstate on appeal. I t necessarily follows that the Trial Court’s denial of Allstate’s motion for directed verdict with regard to Plaintiff’s claimed injury to the lower back was proper.

Acting as the thirteenth juror, a trial court is empowered to set aside a jury verdict and order a new trial. If a trial court determines that the amount of the verdict is

excessive or inadequate, in lieu of granting

a new trial it may

suggest a remittitur or an additur. Overstreet v. Shoney’s, Inc. , 4 S.W. 3d 694, 718 (Tenn. C t. App. 1999). This p

rocedure avoid

s the expense and de

la y o f conducting a new trial. Id

.

However, when a trial court approves a jury verdict, appella

te courts may only review the rec ord to determine whether i t contai ns material evidence to suppo rt the jury’ s verdict. See Tenn. R. App. P. 13(d); Re ynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994); Whitaker v. Harmon , 879 S.W.2d 865, 867 (Tenn. Ct. App. 1994). Appellate

cour ts do not reweigh the evidence and consider where the preponderance lies. Instead, they determine-7- whether there isany material evidence to support the verdict, and,

if there is, they must affirm the judgment. See Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d at 823; Pullen v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn. Ct. App. 1992).
The jury bears primary re spo nsibil ity for awarding damages in a per son al i nju ry act ion , fo llo wed clo sel y by the trial court in its roleas thirteenth juror. See Coffey v. Fay ette Tubular Produc

ts , 929 S.W.2d 326, 328 (Tenn. 1996); Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc. , 919 S.W.2d at 41. When a trial court approves
a verdict awarding damages in a personal injury

action, our revie

w is subject to the rule that

if there is any material evidence to support the jury’s award, it should not be distu rbed. See Hunter v. Burke , 958 S.W.2d 751, 757 (Tenn. Ct. App. 1997).

Overstreet , 4 S.W.3d at 718. In light of the testimony of Plaintiff, Jackson, and Ragland, which we will not restate, including the amount of medical bills and lost wages incurre d, we find there is material evidence to support the verdict of $20,000.00. We, therefore, affirm the Trial Court’s denial of Allstate’s motio

n for a remittitur a

nd/or new trial.
Fi nal ly, Allstate allege

s error when the

Trial Court awar

ded discretionar

y costs to Plaintiff for Ragland’s deposition and the court reporter fees for that de

position. Allstate e

ssentially admits that the resolution of this issue depends in part on whether the Trial Court

erred in admitting the challenged testimony of Ragland. A trial court’s award of discretionary c osts pursuant

to Rule 54.04 of the Tenn. R. Civ. P. will be overturned only when there is an abuse of discretion. Lock v. National Union Fire Insurance Company of Pittsburgh, Pa., 809 S.W.2d 483, 490 (Tenn. 1991). We find no abuse of

discretion in awa

rding these cos

ts.
Conclusion
The judgmen t of the Trial Court is affirmed. This matter is remanded to the T ria l Courtfor further proceedings as necessary , if any, consistent

with this Opinion. Costs of this appeal are t axe d to the App ell ant , Al lst ate Insu ranc e Co mpa ny, a nd i ts s uret y.

____________________________________ D. MICHAEL SWINEY, JUDGE