1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE March 6, 2001 Session JANICE F. ROBERTS v. STEVIE D. DAVIS, ET AL. A Direct Appeal from the Circuit Court for Davidson County. No. 96C-1856 The Honorable Walter Kurtz, Judge.

No. M2000-01974-COA-R3-CV - Filed August 7, 2001

On May 17, 1995,

Plaintiff Janice Rob

erts and her husb

and Max Nichols

were involved in an auto mobile

accident with the

Defendant Food

Lion, Inc . and their driver Stevie D. Davis.

Th e accident oc curr ed on Interstate 24. Plaintiff Roberts sued the Defendants in the Circuit Court of Davidson County seeki

n g a reco very of $270,000 for injuries and various amounts of damages she sustained as a result of the accident. A bench trial was held on May 1, 2000. On Ma y 4, 2000 the trial court byMemorandum and Or der found that Plai

ntiff Roberts was e

ntitled to recover $25,000 for reasonable and necessary medical expenses, pain a nd s uffer ing and loss of enjoyment

of life, and for some diminution in earning capacity. On June 2, 2000 Plaintiff Roberts filed a motion for new trial, which was subseq uen tly d enied by the trial court on July 7, 2000. This appeal followed. Plaintif f Roberts i nsists th at the trial court erred i n not granti ng a motion for con tin uan ce; not all owi ng th e dep osi tio n te sti mon y o f a witness; in its award of damages; and by not allocating monies for future medica l expenses. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed D ON R. A SH , S P
. J., delivered the opinion of the court, in which F ARMER , J., and HIGHERS, J joined. Bill Hodde and Br

uce Kessler, Ma

dison, Tennessee

, for the appella

nt, Janice F. Rober

ts. Jonathan Cole and San di L. Pack, Nashville, Tennessee, for the appellees, Stevie D. Davis and Food Lion, Inc. OPINION I. In order to put this transaction into perspective, some backgro und informa

tion will assist in the process. On May 17, 1995, appellant Janice F. Roberts (“Ms. Rober ts”) was involved in an automobile accident on Interstate 24. Ms. Robert’s aut omobile was str

uck in the rear by the appellee Stevie D. Davis (“ Mr. Davis”). Mr.

Davis was driving

a semi -t ractor owned by Food Lio n . Both parties were traveling in the same direction when the accident occurre d. The impact2

of the collision caused Ms. Robert’s vehicle t o travel several feet before coming to rest on the median. Ms. Roberts was ab le to exit the car under her own control, however, upon the urging of m edical personne

l, she was transpo

rted to Vanderbi

lt Medical Center

(“Vanderbilt

”). Ms

. Roberts spent seve ral hours atthe hospital where she was examined a

nd x-rayed.

Vanderbilt noted no evidence of serious head injuries and released her. Soon after the accident, Ms. Roberts consulted her chir opractor, Dr. Chris Banning (“Dr. Banning” ), co ncerning her i njuries. Ms. Rober

ts had been seein

g Dr. Banning

on a regular ba

sis prior to the accident. D

r. Banning tre

ated Ms. Roberts f

or a yea r and a half before referring her to Dr. Anderson, a neurologist, for further testing. Dr. Anderson condu cted several tests and analysis of Ms. Roberts. Dr. Anderson cont inu ed to treat Ms. Robe

rts for roughly

two and a half yearsbefo re referrin

g her to a neuro

psycholog

ist, Dr. Jim Olson. Dr. Olson specializes i

n managingchronic pain. How ever, during th

is time, Ms. Roberts w

as involved in a subsequent accident involving another tractor-trailer o n Septe mber 25, 1997. The re is existing litig

ation in Rutherford County regarding that matter. On May 1, 2000, t

he Honorabl e Judge Walter Kurtz held a bench trial concerning the accident. Following a portion of the proof, Ms. Roberts intended to call Dr. Ol s on as a witness to testifyon h er be hal f. M s. R obe rts and her c oun sel were una ble to l ocat e hi m. S ubs equ ent ly, Ms. Roberts asked the court for a recess and the recess was granted. F ollowing the recess and the remainder of the trial, Ms. Ro berts was not able

to produce Dr. Ol

son. At that point, Ms. Roberts moved to include Dr. Olson’s depos ition into th e record as an exhibit. The trial court deniedMs. Robert’s motion to admit the dep osition be cause Ms. Roberts could not produce a copyof the return summons delineating the

re had in fact be

en on service on D

r. Olso n. On Ma

y 4, 2000, Judge Kurtz a

warded Ms. Rober

ts a judgme

nt of $25,000 for reasonable and necessary medical expe nses, pain and suffering and loss of enjoyment of life, and for diminution in earn in g capacity b

y means of a

Memorandum and Or

der. Ms. Roberts la

ter filed this appe

al. The issues befor

e the Court rega

rding this appea

l are as follows: (1) whe t her

the trial court erred in denying Ms. Robert’s motion for a continuance ba sed upon the absence

of a witness; (2) whether

the trial court er

red in refusing

to consider Dr. Ol

son’s deposition te

st imo ny;
(3) whethe rthe trial co urt erred in awarding Ms. Robert’s a judgment of less than her reasonable and necessary medical expenses; and (4) whether

th e trial court erred failing to compensate Ms. Roberts for future medical expenses.

II.3

The first issue to consid er is whether the trial court erred in denying Ms. Robert’s motion for a continuance. A

motion for continua

nce lies withi n the sound discretion of the trial judge. State v. Hines , 919 S.W.2d 573, 579 (Tenn. 199 5). In order

to show an abuse of

discretion, it must be reasonably concluded that a different result would have oc curred h ad the cont inuance beengranted. Id. In determinin g whether ther

e was an abuse of

discretion, Ms . Rob erts must show that she was prejudi ced by the fact the continuance was not granted. The r oot of this issue hinges on the fa cts concerning the subpoena of Dr. Olson and his absence at the bench trial on May 1, 2000. When dealing with service of proc ess, we m ust first look to the c ontrolling author

ity delineated by

the Tennessee Ru

le of Civil Procedur

e 45.03, which pro

vides: A sub poen a may be served by a ny person authorized to serve process, or

the witness may

acknowledge s

ervice in writi

n g on the subpoena. Service of subpoena shall be made by d

elivering or of

fering to deliver a copy thereof to the person to whom it is directed. The subpoena was issued on April 14, 2000 and stamped filed by the Davidson County Circuit Court Clerk’s Office on April 17, 2000. The record indicat es that Gene Wilkerson of the Davidson County Sheriff’s Department served Dr. Olso n with the subpoena on April 21, 2000. The subpoena required D r. Olson ’s attendance a t 8:30 a.m. on May

1, 2000. Clearly

, Ms. Rob ert’s complied with this Rule. Ms. Robert’s attorney improperly relies on the Davidson County Local Rule 9 of the Rules of Practice in Juvenile Court to state his position. In this case, the pro

per local rule to

follow is David

s on County Local Rule 27.05 (b), which provides:

(b) Absence of a

witness will not be c

ause for a contin

uance unless the subpoena has been issued and dated ten days prior to a trial for a local witness an

d 14 days for

an out of county

witness, pursuant

to Local Rule 28.02. The record indicate

s that Ms. Roberts co

uld not communicate

or present e

videnc e to the trial court that in fact a subpoena had bee n issued for Dr. Ol son. It is import

ant for this Court to revisit the transac tion that took place during the bench trial on

May 1, 2000. T

he record points out the colloquy between the trial court and Ms. Robert’s attorney , Mr. Hodde: The Court: You indicated that subpoena was mailed to him. I ’m no t awarethat it complies with the statut e on sub poenas. In fa ct there is a specifi c statut e that deals with service of process by an attorney or the attorney’sagent, sometimes paralegal, law clerk,or i nvestigator, bu t my recollectionis that requires that the subpoena be per sonally served on the prospe ctive witness. I know for example I c

an’t hold a witness

in4 con temp tfor failure to appear unless they have been serve d consistent with the statute. Mr. Hodde: It may be moot if I c an’t find the subpoena anyway, but I ’m of the opi nion tha t we subpoenaed him by mail. I find neither subpoena nor Dr. Olson. He is re

ti red. He obviously

lives within a hundr

ed miles, butI believe under subpoena if y ou have the court file and it doesn’t show he has been subpo

enaed, then he ha

s not. The Court: Rule 43.05, service of the subpoena shall be made by delivering or offering to deliver a copy thereof t o the person whom it is directed, and it comments this rule re quires personal service upon a witness unlike the prior practice authorizing leaving a c o py of the subpoena at the usual place of residence. Mr. Hodde: Your Honor, I have nothing further to add to that. If we didn’tserve him through the Davi dson C ounty sherif f’s office and t

here is no return summons in the file, he is simply not here. The Court: Then the proof is closed. Following this trial, Ms. Robert’s attorney later foun d out that his firm did serve Dr. Olson via the Davidson County Sheriff’s Department and in compliance with Rule 43.0 5

. However, when asked in open court regarding the manner of service, Ms. Rob ert ’s attorney was under the impression Dr.

Olson was served

by mail . At one p oint he conceded that Dr. Olson might not have been ser

ved at all. Ms. Robe

rt’s attorney

also relies on the

fact that t

he trial court hadthe subpoena at its

disposal in the rec

ord. Regardles s whether the tria l court has the recordat its disposal or not, it is the obligation of the movant to be adequately prepared and present to t h e court the pertinent proof. There was nothin g keeping Ms. Robert’s at torney from chec king t he r ecord himself or checking the with the Davidson County Circuit Clerk’s office for a copy of the subpoena. The trial court gave the

parti es a long lu

nch break, whic

h gave Ms. Rober

t’s attorney

the opportunity to lo cate Dr. Olson or make alternative plans concerning the case. There is no c on trollin g authority that requires jud

ges to become in

vestigators. Ms.

Roberts was give

n ample opportunity

to present a copy of the subpoena to the court, however no copy was found or p resentedto t he court for review. Judge Kurtz had no other choice but to deny the re quest for a continuance based on the representations made by Ms. Rober t’s attorney, Mr. Hodde. We are notpersuaded by the notion that Judge Kurtz abused h is discretion when he denied the continuance. III. Ms. Robe rts argues the trial court erred in denying the admission of Dr. Olson ’ s deposition following its refusal to grant the motion for a continuance bas e d on Dr. Olson’s nonappea rance for the bench trial. M s. Roberts makes the

argument that de

position is5

adm issibl e under the Tennes see Rules of Evide nce 804(a)(5)

and Tennessee Ru

le of Civil Procedure32.01. We wil l consider Rule 804 (a)(5) first. Ru

le 804 provides fo

r certain exc epti ons to the hearsay exclusionary

rule when a witne

ss is “unavailable.” Unavailability is definedat subsection (a)(5) as including situations in which the declarant “is absent from the hearing and the proponent of a statement has been unable to p rocur e the declarant’s attendance by process.” Similarly, Rule

32.01 provides, in p

ertinent part, a

s follows: At a trial or upo n the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far a s admissible under the rules of evide

nce applied as tho

ugh the witness w ere then present and testi

fying, may

be use d against any party w ho was present or represe

nted at the taking of the deposition or who had reaso nablen otice thereof, in accordance with any of the following provisions:

*** (3) The deposition of a witness, whether or not a party, may be usedby any party

for any purpose if the court finds:...(D) that the party offering the de

position has been u

nable to procure the attendanceof the wit

nes s by subpoena or the witness is exempt from subpoena to trial under T.C.A. § 24-9-101; or (E) upo n application and notice, that suc h exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the imp ort ance of p res ent ing t he t est imo ny ofwit nes s or all y i n open court, to allow the deposition to be used. Not withs tandin g the foregoing provisions, depos itio ns of experts taken pursuant to th e provisio ns of Rule 26.02(4) may not be used at the trial except to impeach in accordance with the provisions of Rule 32.01(1). In this case, Ms. R oberts failed to establish the conditions set forth in both Rule 804 (a)(5) and 32. 01. The record indicates that the trial court questioned Ms. Robert’s attorney on the admissibility o

f the depositi

on as i t relates to Rule 32. Ms. Robert’s attorney could not ar ticulate to the court wheth

er there was a s

ubpoena issued fo

r Dr. Olson or how t

he depositi o n woul d be admissible. The trial court had no

other option but to de ny the depos

ition into evidenceduring the proof portion of the trial. In addition , Ms. Robert ’s attorney failed to make an offer of proof pursuant to Tennessee Rule of Evidence 103(a)(2), which was certainly a viabl e option for h im. See Tenn essee Rule of Evidence 103(a)(2). Thus, we find that the trial court properly denied the deposition of Dr. Olson. IV. The third issue c oncer ns whether the trial court erred in awarding Ms. Roberts an amount less than her proven medical expenses. The applica bl e standard of review for cases involving6

dam ages is de novo upon the record of the trial court, accompanied by a pre sumption of correctness

of the finding unless evidence preponderates otherwise. Tenn. R. App. Proc . 13(d); Crossv. City of Memphis , 20 S.W.3d 642, 643 (Tenn. 2000). D amages in personal injury cases are not measure

d by “fixed ru

les of law, but res

ts largely in th e di scretion of the trier of fact and is entitled to g

reat weight in th

e appellate courts in the absence of a showing of fraud or corruption.” Coakley v. Dan iels , 840 S.W .2d 367, 372 (Tenn. Ct. App. 1992). A pla

intiff is entitled to recover fo r reasonabl e and necessa ry medical exp enses acqui red during t he treatment of the injury. Hogan v. Reese , 1998 WL 430627 *6-7 (Ten n. Ct. App. 1998). Since there are no “fixe d rules of law” requiring damages to be equal to or exceed the proven medical expenses, the fact t ha t a given amount is proven as undisput

ed medical expense

s does not prove those expense s were necessary. Karas v. Thorne, 531 S.W.2d 315, 316-17 (Tenn. Ct. App. 1975). Furthermore, physicians familiar with the extent and nature of the plaintiff’s medical treatment cangive an o pinion regar ding the reasonableness of the physician’s services and c harges. Long v. Mattingly , 797 S.W.2d 889, 893 (Tenn. Ct. App. 1990). The appellate court will not reve

rse the tria l court unless ther e is a finding tha

t the award of da

mages shows pre

judice or is so gr

ossly inadequate as to shock the conscience of the court. Id. at 317-18. In the instant case,

the trial court aw

arded Ms. Roberts

a judgment

in the amount of $25,000 for dam ages sus tained as a consequence to the accident that occurred on May 17, 1995. Ms. Roberts offered testimony from a number of doctors who claimed her medica l expens e s exceeded $30,000. Dr. James P. Anderson testifie

d Ms. Roberts in

curred a mi

nimum of $31 ,986. 85 in reasonable and necessary medical expenses related to the 1995 a ccident. Further, the testimony of D

r. Leon Ensal

ada indicate

d Ms. Rob ert’s reasonable and necessary medical ex penses to taled $31,903.85. Similarly, Dr. Richard Lisella, Food L ion’s expert, confirmed that $31,903.85 in medical expenses was reasonable and necessary. The injuries resulting from the accident i nvolved soreness in her neck and he

adaches. The record indicates Ms. Robert’s injuries subsided substantially a “couple of mo nths” after the accident. Her subsequent injury in September of 1997 complicat es this determination. Ms. Roberts has recei ved ext ensive medical treatment and further expenses for several ye ars following the May 17, 1 995 accident. I n lieu of the Septem

ber 1997 accide

nt, we are unable

to determine whether all of the medical expenses w

ere reasonable

and necessa

ry. Food Lion argued that only $8,000

in medi cal expenses was reasonable and necessary due to he r second accident occurring in September of 1997. With the number of questions surrounding the reasonablenes s of the medical expenses, we are not convinced that the judgm ent of $25,000 is so grossly inadequate as to s

hock the consc

i ence of this court. The trial court was given the opportunity

to weigh the credibility of the w itnesses and the evidence and made a sound determination in th e eyes of t his court. Accordingly, the trial court did not err in its award of $25,000 to Ms. Roberts. V. The la st issue before the court is whether the trial court should have awarded future medical expenses to Ms. Robe rts. Ms. R oberts did not begin to take Celebrex, a prescribed medication, untilafter the September 1997 accident. Obviously, this is not attributable to the May 17, 1995 accident and cannot be allocated as fu ture medic al expenses. An award of future7

medical expenses would be c onsidered a windf

all for Ms. Ro

bert s, therefore, the trial court was correct in faili

ng to award futu

re medical expens

es. VI. Acco rdi ngly, the judgment of th e trial court is affirm ed. Costs on appeal are taxed to the appellant, Janice

F. Roberts.

____________________________ DON R. ASH, SPECIAL JUDGE