# FILED February 9, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) PAMELA L. SCHENK , ) Wilson County Circuit Court ) No. 9262 Plaintiff/Appellee. ) ) VS. ) C.A. No. 01A01-9804-CV-00190 ) RAYMOND D. LANE , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Court of Wilson County at Lebanon. Honorable Bobby H. Capers, Judge
Keene W. Bartley , SCHULMAN, LeROY & BENNETT, P.C., Nashville, Tennessee Attorney fo

r Defendant/App

ellant. Michael R. Jennings , Lebanon, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J.,W.S. : (Concurs) HIGHERS, J. : (Concurs)1 Schenk testified t hat, at the time of t

he impact, La

ne’s truck and tr

ailer were both positioned across her lane of traffic. Lane and Steele, however , both testified that Lane’s truck was in the center turning lane and that his trailer was positioned across the inside northbound lane at the time of the collision.

Defendant

Raymond D. Lane appeals a jury verdict awarding $297,00 0.00 to Plaintif f Pamela L. Schenk fo r injuries sustained as a result of an automobile accident occurring between Lane and Schenk.

For the reasons se

t forth below, we a

ffirm in all respe

cts.

Factual and Procedura

l History
On September 21, 1 988, Schenk and La ne were involved

in an automobile

accident
on Mt. Juliet Road in Wilson County, Tennessee occurring between 6:30 and 7:00 p.m. Where the collision occurred, Mt. Juliet Road is a five lane highway wi th two northbound lanes, two southbound lanes, and one center turning lane. Schenk was driving her Chevrolet

Cavalier north on Mt. Juliet Road. Lane was driving his Chevrolet picku p truck east on Int

erstate 40 and ha

d just taken the Mt. Juliet Road Exit. Lane stopped at the stop sign at the end of the exit ramp and then proceeded

to make a left turnacross the tw o northbound lanes of Mt. Juliet Road. After noticing Lane’s vehicle, Schenk

slammed on her brakes and changed to the outer northbound lane. Schenk
was able to avoid Lane’s truck but collided with the eighteen foot trailer that Lane was pulling behind the truck. The accident was witnessed by Jimmy Chafin, who was traveling northbound on Mt. Juliet Road immediately behind Schenk andJohn Steele, who was exiting I-40 at Mt. Juliet Road behind Lane. 1
Following the accident, Schenk was taken to th e emergency room where she was treated for a “busted” mouth, a chipped tooth, scratcheson her chin and forehead, and a “big bump” where Sche nk collided with her rear view mirror. She was x-rayed, given muscle relaxants, and released that same evening. For approximately two weeks following the accident, Schenk was sore “from head to toe.” Beyondthis two week peri od, Schenk exper

ienced persiste

nt pain and sorene

ss in her hips that even

tually proceede

d down toher legs. In early 1989, Schenk consulted Dr. Mark Houston regarding th

is c ontinued pain. After conducting tests, Dr. Houston advised Schenk that there was nothing wrong with her and that she needed to relax. A pproximately two months later, Schenk sought a second opinion from Dr. Stein, who took x-rays and a CT scan of Schenk and then2 A facet rhizotomy is a procedure that destroy s the nerves in the joints where the patient is experiencing p

ain. By des

troying the

nerves, the disco

mfort experience

d by the patie

nt in these joints is lessened. informedher that she had a ruptured disk in her lower back. Dr. Stein suggested that Schenk undergo back surgery but Schenk decided against this option. Instead, Schenk underwent a limited amount of physical therapy and took mild muscle relaxants prescribed by Dr. Stein.

In 1991, Schenk was examined by Dr. Dan Spengler, an orthopedic surgeon. D r . Spengler pre scribed anti-inflammatory drugs and ordered approximately six weeks of physical therapy. Because these efforts did little to decreas e her pai n, Schenk reconsidered the option of surgery. Dr. Spengler

performed a

bilateral partial diskectomy on Schenk in October of 1991. She
was released from the hospital three days after the procedure a nd was a ble to return to work on a part-time basis with some res

trictions one month l

ate r. Dur ing this one month period, Schenk underwent further physical therapy.

In late1992, Schenk beganexperiencing pa in in her lower ba

ck and through her

hips. She returned to Dr. Spengler, who ordered more physical therapy and gave Schenk a steroid injection to decrease infla

mmation in these ar

eas. Schenk was a

lso examine d by Dr. Vaughan Allen, who referred Schenk to Dr. Leon Ensalada, a pain medicine specialist. Dr. Ensalada performed several procedures on Schenk, including two more steroid injections, three nerv e blo cks, and a facet rhizotomy. 2 According to Dr. Ensalada, when Schenk reaches maximum medical improvement, she will still retain a permanent partial impairment of the whole person. Dr. Spengler testifie d that, under th e America n Medical Association Guidelines, Schenk would receive a permanent partial impairment

rating of approxi

mately eight to

ten percent. Both Dr. Ensalada and Dr. Spengler agreed that Schenk’s injuries may require further medical treatment but were unable t

o estimate the costs of such treatment.

Schenk file d a compl aint against Lane seeking damages for personal injuries sustained as a result of the accident. On the day of trial, Lane filed a motion in limine, requesting that certain medical bills be excluded for lack of foundation. The trial court granted the motion with respect to one of these bill

s but ruled that the remaining bills were admissible, provided that counselfor

Schenk supplemented the record with affidavits laying a foundation for the bills. At the conclusion of the trial, the jury found that Schenk was responsible for one percent of the negligence causing the accident, that Lane was responsible for ninety-nine percent of the negligence causing the accident,and that Schenk had sustained a total of $300,000.00 in dama

ges as a result of

the accident. Consistent with this finding, the trial court granted a judgment in favor of Schenk in the amount of $297,000.00. Lane filed a motion for new trial, arguing in part that the trial court should not have allowedcertain medical records to be admitted into evidence. The trial court denied Lane’s motion for a new trial but a

greed these documents were erroneously admitted into evidence and consequently reduced the amount of the judgment by $9,861.75. Lane appeals the findings of the jury as well as the trial court’s denial of his motion for new trial.

Issues
The issues assert

ed on appeal, as s

tated by Lane, ar

e as follows:

1. The appellee was allowed to enter testimony of lo st work and substantial me

dical proof th

at was not appropria

tely establishedby expert testimony. The eviden ce was n ot supplied to the appellant in a timely manner and was admitted over the objections of the appellant i

n his motion in limine a

nd in open court. 2. In reaching a ver

dict, the jury clearly

disregarded the facts as to how the accident occurred and did not act in a thoughtful manner in assessing liability between the parties. The determination of negligence bei n g 99% the fault of t he defendant wa

s clearly arbitrary andcapricious by the jury and is not supported by material evidence. 3. The jury disregarded the medical testimony and failed to account for the second injury that occurr ed to th e appellee subsequent

to the accident. The jury’s ver dict cl early reflects

their disregard of the ins tructio ns of the Court as to proximate cause and a disregard of the medical proof. 4. The Court improperly did n ot al low the appellant t o argue the extrapolation of the distance and time which would have elapsedbetween when the appellee first

saw the appellant and when the impact occurred. 5. The Court erred in refusing to grant a new trial.

Lost WagesLane first contends tha t the trial court e

rred in allowing Schenk to testify regarding lost wages. On direct examination, Schenk testified that she is employed full time as a respiratory therapist and ear ns $13.2 3 per hour plus a $1.90 shift differential for working nights. Over the objection of coun

sel for Lane, Sch

enk further test

ified as follows:
Q. I think I was asking y ou about the lumbar facet procedures? A. Yes, sir. Q. And you went home the same day that you had them? A. Yes, sir. Q. Were you able to go back to work the next day? A. I was usually down for about a week wi th them. I usually missed two or three days of work. Q. With

the rhizotomy, it was a procedure that was done the same day? A. Yes, sir. Q. Were you able to go back to work the next day? A. No, sir. Q. How long was it before you could go back to work on that? A. I believe I was back in a week after that one, also. Q. Has there ever been a period of time when you missed an extensive -- or did not work for a period of time? A. Yes, sir, in 1993. Q. How long was that? A. Approximately five months.
During closing arguments, counsel for Schenk reminded the jury that Schenk missed work after undergoing these medical pr ocedures and specifically aske d the jury to compensate Schenk for future lost wages. Finally, in charging the jury, the trial judge explained that Schenk has “made a claim for loss of earnings which is the value of the earnings that

have been lost in th

e past as a result

of this accident and those that

will be reasonab

ly certain to

be lost in the future as a result of this injury.”Under Tennessee law, lost wages are generally recoverable as an eleme nt of damages in a personal injury action. See, e.g., Benson v. Tennessee Valley Elec. Co-Operative , 868 S.W.2d 630, 640 (Tenn. App. 1993). In thein stant case, howe ver, Lane conte

nds that it was impro

per to allow Schenk to testify regarding wages lost as a result of her injuries and to allow Schenk’s counsel to refer to lost wages during c losing a rguments. In suppo rt of this position, La

ne alleges that, i

n response to interrogatories, Schenk stated that she would not be see king damages for l ost wages. Counsel for Lane complains that he was not informed of Schenk’s intention to seek lost wages

until February 18, 1997, the day before the trial, when he received a fax from Schenk’s attorney stating that Schenk would be seeking $17,226.08 in wages lost as a result of her injuries. Unfortunately,
we are unable to ex

amine the respons

e to interrogatories referred to by Lane because this document has not been included in the record submitted to us on appeal. It i

s the responsibility

of the party seeking review to have prepared an adequate appellate record. See State v. Banes , 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). Unless supported by evidence in the record, we cannot rely on the
mere statements of

counsel to

establish what may or may not have been stated in a document filed withthe trial court. See State v. Thompson , 832 S.W.2d 577, 579 (Tenn. Crim. App. 1991). We also note that the complaint soughtrecovery for loss of wages and impairment of earning capacity. Basedon the record before us, we do not find that Schenk has waived her right to recover lost wa

ges. Thus, we hold that the trial court properly allowed testimony and argument regarding this element of damages.
Medical Bills Incurred After February 16, 1994

Lane also argues that

the trial court erred in allowing the admission of certain medical bills and further allo

wing Schenk to

testify regardin

g these bills. Dr. Ensalada, one of the physicians
w ho treated Schenk,

was deposed on Feb

ruary 16, 1994. In

his deposition, Dr.

Ensalada testifie

d that Schenk may be required to undergo future medical treatment. Dr. Ensalada stated that Schenk’s future course of treatment was dependant on her response to current treatment. He added, however, that if Schenk’s symptom

s return, she may b

ecome a candida

te fora procedure called a facet rhizotomy. Schenk continued to be treated byDr. En salada after the taking of his deposition, undergoing a facet rhizotomy and two additional nerve blocks.3 Schenk filed these affidavits on Fe

bruary 20,

1997, the day

following the tri

al.
4 In its order mo

difying the

judgment, the tri

al judge did not sp

ecify pre cisely whic

h bills were admitted in error. Rather, the court simply indicated that the $9,861.75 total represente d the sum of medical bills of Dr. Ensalada totaling $3,602.00, bills of Centennial Medical Center totaling $1,295.75, and bills of Memorial Hospital totaling $4,964.00. During the trial, however, it appear s that the d

isputed it ems totale

d only $ 3,876.67.

Although

Schenk ap

pears to r ecognize this consistency, she has not requested that we alter the amount of the judgment in any way. Thus, we make no finding with respect to this matter.

L ane filed a motion in limine seeking to exclude, among other things, the medical bills of Dr. Ensalada associated with these procedures and the bills of the hospitals where the procedures were performed. The trial court r uled that these bill

s were admissible

so long as Schenk obtainedand filedaffidavits from the custodian of records at the hospitals where the procedures were performed. 3 The trial court thenallowed Schenk to testify regarding the proceduresperformed by Dr. Ensalada subsequent to the taking of his deposition. Althoug h the trial court did not allow Schenk to testify regard

ing the technical

aspectsof the procedures, she was allowed to describe the pain associated with e

ach procedure

and state the amo

unts of the medical bills received from Dr. Ensalada and the hospitals where these procedures were performed.

After the jury rendere

d its verdict,

Lane filed a motion for new trial alleging in part that Schenk should not have been allowed to testify regarding the treatment she received from Dr. Ensalada subsequent to the taking of his deposition. The trial court agreed that this evidence was improperly

admitted and consequently reduced the amount of the judgment by $9,861.75. 4 In light of this ruling, it is unclear why Lane now complains about the admission of this evidence. Schenk’s testimony regarding these procedures was relevant only to the amount of

her damages and had no bearing with respect to the jury’s finding of liability. Assuming that the trial court should not have allowedthis testimony, the proper remedy would not have been to order a new trial. Rather, under such circumstances,

the trial court sho

uldhave reduced th

e jury’s findings w

ith respect to damag

es. This is precisely what the trial court did in this case. Thus, we find that Lane’s argument regarding this issue is without me

rit.
The Jury’s Assignment of Liability and Assessment of Damages

At the conclusion of t

h e tr ial, the jury found that Schenk was responsible for onepercent

of the negligence causing the accident and that Lane was responsible for ninety-nine percent of the negligence causing the accident. Lane contends that “t he jury acted with arbitrariness and caprice” and “disregarded the facts and circumstances leading up to the accident” in comparing the fault of the parties. Under the appr opriate standard of revi

ew, a jury’s find

ings with respect t

o liability may be set aside on

ly if they are unsu

pported by materi

al evidence in

the record. See, e.g., Turner v. Jordan , 957 S.W.2d 815, 824 (Tenn. 1997)(citing T.R.A.P. 13(d)).

The facts in the instant case are largely undisputed. Lane attempted to make a left turn across the two northbound lanes of Mt. Juliet Road, pulling an eighteen foot trailer behind

him. Jimmy Chafin, a

disinterested witn

ess who was trave

ling directly

behind Schenk, tes

tified that both he andSchenk were“moseying” along “at a reasonab

le rate of speed

.” Chafin furthe

r testified that, after Lane pulled out in front of them, both he and Schenk slowed down. Schenk testified that she attemptedto avoid Lane’s vehicle by changingto the outside lane and slamming on her

brakes. This is consistent

with the testimony of Chafin, who recalled seeing Schenk’s b

rake lights immedia

tely prior to the collision.

In support of his argument that the jury’s assessment of liability was arbitrary an d capricious,

Lane emphasizes certain testimonyregarding whether Schenk had her headlights on at the time of the accident. The accident occurred sometime between 6:30 and 7:00 p.m. Schenk testified that she was certain that her parking lights were on but that she was unsure whether she had also turned on her headlights. Chafin, who witnessed the accident from behind Schenk, testified that Schenk’s back

lights were on. Lane, however, testified that he looked both ways before turning and did not see any hea

dlights of approac

hing vehicles.

Basedon the aforementioned testimony, we find that there is ample evidence in the record to support the jury’s assignment of fault. We thus upho

ld the jury’s findin

g with respect to this matter.

The i ssues on appeal, as stated by Lane, do not involve a challenge to the jury’ s assessment

of Schenk’s dama

ges. Nevertheless, Lane argues in his appellate brief that the damages awarded in the instant case were

excessive. Under Tennessee law, there are no mathematical rulesfor

com puting da mages in negligence cases. See, e.g., Brown v. N ull , 863 S.W.2d 425, 429-30 (Tenn. App. 1993)(citing Smith v. Bullington , 499 S.W.2d 649 (Tenn. App. 1973)). An injured plaintiff is entitled to compensation for bodily injuries, pain and suffering, permanent impairment
or disability, lost wag

es, loss of earning ca

pacity, and expe

nses incurred as

a result of the defendant’s negligence. See id. at 430. The amount of damages to be a

warded in such ca

ses is primarily wit

hin the discretion of the jury. See, e.g., Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc. , 919 S.W.2d 36, 42 (Tenn. App. 1995)(citation omitted). As noted above, findings of a jury may not be disturbed unless there is no material evidence in the record to support the jury’s determination. See, e.g., Turner , 957 S.W.2d at 824 (citing T.R.A.P. 13(d)).

Prior to trial, the parti

es stipulated that Sc

henk incurred me

dic al e xpenses totaling $31,828.31. Schenk testified t hat, immediately

following the accident, her head and jaw were very
sore. Schenk further

testified that she

felt terrible

for approximate

ly two weeks afte

r the accident, describing the pain as follows: “It was pretty much head to toe. My neck, my h

ead, my shoulders, my chest. It felt I had been through a blender. I was so sore. ” She also described an ongoing tenderness

and soreness that

developed in

her hips and trave

led down her legs.

Although this pain subsided after Schenk’s 1991 surgery, Schenk began experiencing pain in her lower back an d through her hips in late 1992. Thereafter, Schenk underwent a variety of medical procedures that she described as painful. After each of these procedures, Schenk was unable to return to work for approximately

one week. Both Dr. Spengler and Dr. Ensalada agreed t hat Schenk’s injuries may require further medical treatment. Dr. Spengler added that, as a result of herinjuries, Schenk has
an eight to ten perce

nt permanent par

tial impairment of t

he whole perso n. At the time of tria l, Schenk was twenty-nine years old. By judicial notice, the trial court recogni zed that t he life expectancy of a twenty-nine year old female is 47.97 years.

The jury in the insta

nt case found that

Schenk had sustained a total of $300,000.00 in damages. In ruling on Lane’s motion for a new trial, the tri al judge reduced this figure by $9,861.75, the total of certa in medical bill that w

ere erroneous

ly admitted into

evidence. In light of the aforementioned testimony, we find that there is material evidence i n the record to supp

ort a finding that Schenk sustained damages totaling $290,138.25. We therefore upho ld the jury’s assessment of Sche

nk’s damages.Causation

Lane contends that there is no causal connection between the September 1988 automobile

accident and the pain experienced by Schenk subsequent to he r Oct ober 1991 back surgery. Rathe r , he argues that th ese injuries wer

e caused by Sche

nk’s use of an ae

robic exercise video. During her first visit with Dr. Ensalada, Schenk complained of pain in h er hips and lowe r back. According to Dr. Ensalada, Schenk explained that she first noticed this p ain in late 1992 whi

le working out with

an aerobic exercise video. Schenk testified, however, that although she may have mentioned using an exercise tape toDr. Ensalada, she did not injureherself while pa rticipating in this activity. Regardi

ng the relationshi

p between the use o

f this video and Sch

enk’s symptoms,

Dr. Ensalada testifie

d in pertinent par

t as follows:
Q. I believe in your

testimony you had stated that in your opinion these injuries for

which you were presented, or complaint for which you were presented by Ms. Schenk, I think the term you used, they were related to the acc ident. I believe also you stated you have reviewed Dr. [S

pengler’s] note

s and deposition; is th

at correct? A. Yes, sir. Q. Wereyou given the not es in Dr. [Spengler’s] file regarding the therapy that M

s. Schenk underwe

nt? A. Yes, sir. Q. Do you disagree withDr. [Spengler’s ] characteriz

ation of his surgery as achie

ving a good result? A. From the history I got fr om Ms. Schenk, she in

itiallyha d resolution of her symptoms, wh ich would be an early, good surgical result. But then she

had a later exac

erbation of her s

ymptoms. Q. As I understand it, exacerbation from Dr. [Spengler’s] notes we re that this exacerbatio n was caused by he

r utilizing an aer

obic workout tape; is tha

t correct by your

reading of the no

tes? A. She, in fact, told me the first time she was hereshe had been working out. That’s when she first had that exacerbat ion of her painful symptoms.

. . . . Q. I believe you testif ied in response to a

question on crossexamination that the facet dy sfunction is

notunusual in this type of case? A. Correct.Q. Is there anything unusual about making a diagnosis of face t dysfunction after a herniated di sc has been removed from the patient’s back? A. No.

. . . . Q. You have testified previously on direct that the problems

for which you were treat

ing Ms. S chenk, and you have reviewed Dr. [Spengler’s] deposition and h is notes, and you said that they were related to the Sep

tember 21, 1988 ac

cident? A. Yes. Q. You are not chan

ging your opinion on t

hat? A. No. The way in which they are related is that the problemI’m treating Ms. Schenk for now are apart and p

artia l [sic] to what she was treated for by Dr. [Spengler]. That’s how it’s related to the accident. I couldn’t say with a reasonabl e degree of med

ical certainty whether or not something happened to the facet joint in the accide

nt. What I can say is that certainly -- I’ve already testifi ed that to a reasonable degree of medical certainty they are related, but they are related in that k ind of linearfashion back to the fact that she had

to have spine surgery for the accident. That’s what I can fai rly say, I think.

. . . . Q. Going on the last statement you made in talking about a linear progression of Ms. Schenk, as I understand your testimony, that the facet problem has arisen, in your opinion, as a result of

the fact that she had previously had back surgery prior to your treatment of her? A. Yes. Q. The actual injury to the facet or agg

ravation of the f

acet joints arose subsequent to

that surgery; is that correct, by your understanding looking at her history? A. My understanding of it is that would be a fair thing to say. Q. If I understand fac

et aggravations,

there has to be so

m e physical action associated with causing the aggravation of the facet joints; is that corre

ct? A. Correct.

. . . . Q. ButI guess the causative affect of her condition is something that has occurred since she had the surgery? Because if I understand your testimony, it’s your understanding that t he back surgery made her more susceptible for facet aggravation or facet injury? A. Right. Q. And something she has done subsequent to having that

back surgery is what

has caused her to present

you the symptoms for which you have treated her?A. I think it would be fai r to character

ize it that way. The other side of the coin on that i s th at somebody her age and physical condition, if she had n’t had the surgery given the history she presented to me of her norma

l activ ities of daily living, she never would have had a facet problem, sounds like to me. So, yes , th e surgery altered to some degre e her normal anatomy and she subsequently

developed this othe

r problem, which I think would be unlikely to develop in somebody her age and physical condition doing the things that she described doing? Q. What did she describe doing? A. Just

normal activities of daily living. For instance, whenshe presented and said that she was doing the aerobics with the videotape. A young woman, thin, in pretty good physical condition, I don’t think would develop a face

t syndrome doing some

thing like that if

it wasn’t something else, in her instance the surgery that proceeded.

In order to reco ver unde r the theory of negligence, a plaintiff must show the negligence of the defendan t was both a cause

in fact and a proximate caus e of his or her inju

ries. See, e.g., Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993)(citations omitted). A defendant’s negligence is a cause in fact o f the plaintiff’s injuries if, but for the defendant’s conduct, the plaintiff’s injury would not have occurred. See, e.g., Sny der v. LTG Lufttechnische GmbH , 955 S.W.2d 252, 256 n.6 (Tenn. 1997)(citing Kilpatrick v. Bryant , 868 S.W.2d 594, 598 (Tenn. 1993)). Proximate causat

ion, on the other ha

nd, exists when (1)

the defendant’s

conduct was a

substantial factor in bringing about the

plaintiff’s injuri

es, (2) there is

no rule or policy relieving the defendant from liability, and (3) i t was reasonably foreseeable that defendant’s conduct might result in the plaintiff’s injuries. See, e.g., McClenahan v. Cooley , 806 S.W.2d 767, 775 (Tenn. 1991)(citations omitted). In order to be a proximate cause, the conduct of the defendant does not necessarily have to be the sole cause, the last act, or the act occurring close

st to the onset of the

plaintiff’s injury

, so long as there is a sufficiently close causal relationship between the con duct and the injury. See McClenahan , 806 S.W.2d at 775; Mansfield v. Colonial F reight Sys. , 862 S.W.2d 527, 532 (Tenn. App. 1993); Solomon v. Hall , 767 S.W.2d 158, 161 (Tenn. App. 1988).
In the instant case, Dr. Ensalada testified that there is a linear relat

ionshipbetween the September 1988 accident and the pain experienced by Schenk subsequent to her October 1991 surgery. He further testified that Schenk’s injury typically occurs in people, like Schenk, who have previously

undergone back surgery. Dr. Ensal ada went on to say that, absent such a sur

gery, it is unlikely that a person of Schenk’s age and physical condition would develop such an injury. In lightof

this testimony, we find that there is material evidence i n the record suggesting that Lane’s negligenc e was both the cause in fact and the proximate cause of the pain experienced by Schenk after her October 1991 surgery.
Closing Arguments

Duri n g closing arguments, counsel for Lane attempted to argue that Schenk had sufficient reaction time

to avoid Lane’s vehicle. An exchange took place between counsel and the trial judge as foll

ows:

Counsel for Lane: M i ss Schenk testifie d she was on this end of the bridg e. There’s 250 fe et . And I had h er draw the brid

g e above it. And she acknowledged a

ll that, the bridge betweenher and Mr. Lane. Now, Miss Schenk testifi ed she wa s traveling 45 miles an h our. Tha t extrapolates out to 66 feet a second. In other words, in a se c ond of time, her car woul d have gone 66 fee

t. Counsel for Schenk: I’m go ing to object t o

that, Judge
. There’s no ba sis for that in the record. Nobody h a s testified to that, and I don’t think -- The Court: I sustain the objection. Counsel for Lane: YourH onor, if I may , I submit that that’s just math. The Court: What’s that? Counsel for Lane: You divide 5,280 feet a second . . . The Court: Ladies andgentlemen,

that may or may not be the case, but we c an’ t argue an y thing that’snotin front of you at this point in time. All w e can argue i s ma tters that, in fact, evolved as testimony. So go ahead.

Lane now contends that the trial judge erred in sustaining the objection. Specifically, Lane argues that the calculation o

f Schenk’s reac

tion time is a

matter of “simple

mathematics” of which the trial judge could have taken judicial notice.

We agree that it is not

improper to

argue the mathem

atical formula

of “Rate x Time

= Distance.” The testimony was varied concerning both Schenk’s rate of spee d and the distance betweenthe location wher e she first notice

d Lane’s vehicle

and the location of the collision. Schenk testified that she thought tha t the speed limit

on Mt. Juliet Road was between thirty-five and fortyfive miles per

hour and that she was traveling within the speed limit. When questioned about her rate of speed immediately preceding the collision, however, Schenk responded that she had no idea how fast she was going. Chafin, who was traveling northbound on Mt. Juliet Road directly behind Schenk, testified that both he and Schenk were “mo seying” along “at a reasonable rate of speed.” Additionally, Schenk testified that she first noticed Lane’s vehicle asshe approached the bridge on Mt. Juliet Road. Lane testified that, subsequent to the accident, he measured the distance between the southern end of

the bridge and the end of the exit ramp, the point from which he began to turn left onto Mt. Juliet Road. When asked about this distance, Lane stated that the length of the bridge is “approximately

two hundred -- 350

foot” and that the

end of the exit ra

mp is “20-something-foot past the bridge itself.” When asked by counsel for Schenk if this distance was 200 feet, Lanenodded affirmatively

and then stated that it was about 250 feet. Lane later testified that, on the morningof trial, he drove from the south end of the bridge to the end of the exit ramp and the o

dometer on his car indicated that this distance was exactly one-tenth of a mile.

It is within the provinc

e of the jury to

determine factu

al difference

s. After reviewing the record as a whole, we have determined that, even if the trial court was in error in sustaining the objection, we can not say it more probably th an not affected

the judgment nor tha

t it resulted in prejudice to the judicial process. See Rule 36(b) T.R.A.P.Lane’s Motion for a New Trial

In light of the foregoing, we co nclude that the tr

ial court did

not err in denying Lane’s motion for a new tr

ial.

Conclusion

For the reasons set forth above, the judgment is affirmed. Costs of this appeal are taxed to Lane, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ HIGHERS, J. (Concu

rs)