# FILED
March 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON CYNTHIA A. PHILLIPS, PA UL ) PHILLIPS, JUDY WEBB, and ) GLENN WEBB, ) ) Plaintiffs/Appellees, ) Dyer Circuit No. 93-137 & 93-144 ) VS. ) Appeal No . 02A01-9704-CV- 00094 ) FRANCIS PEROT, ) ) Defendant/Appellant, ) ) and ) ) KELLY L. PHILLIPS, by and through ) her legal guardian and parent, ) TERESA THUR MAN, and TER ESA ) THUR MAN, I ndiv idua lly, ) ) Plaintiffs/Appellees, ) ) vs. ) ) FRANCIS CERIAC PEROT, ) ) Defendant/Appellant. ) APPEAL FROM

THE CIRCUI T COURT OF D YER COUNT

Y AT DYERSBURG, TENNESSEE THE HONORABLE J. STEVEN STAFFO RD, JUDGE WESLEY A. CLA

YTON DONALD D. GLENN WALD ROP & HALL , P. A. Jackson, Tennessee Attorneys for Appellant JOHN W. PALMER Dyersburg, Tennessee Attorney for Appellees Cy nthia A. Phillips and Judy Webb JOHN VAUGHN Tiptonville, Tennessee Attorney for Appellee Kelly L. Phillips
AFFIRMED ALAN E. HIGHERS, J.
CONCUR: W. FRANK CR

AWFORD, P.J., W.S . ROBERT A. L

ANIER, Sp. J.1 K elly Phill ips fil ed a separate complai nt by and t hrough her le gal guardi an and parent, Ter es a

Thurm an. The actions w ere later co nsolidate d. 2 Def endant Francis Perot appeals the trial court’s final judg ment which denied th e motions for new

trial filed by Plaint iffs/Appellees but which suggested an additur to each of the verdicts rendered by the j ury in favor of the Plaintiffs. We conclude that the evidence does not preponderate against the trial court’s additurs and, thus, we affirm the trial court’s judgment

. Plaintiffs/Appellees

Cynthia A. Phillips, Judy Webb, and Kelly L. Phillips, a minor, 1 filed this actio n to recove r dama ges for injuries they rec eived in a May 16, 1992, automobile accident in Dyersburg. Cynthia Phillips was driving a car in which her mother, J udy Webb , and her six-year -old stepdaughter, Kelly Phillips, were pass

engers when Phillips’ car was struck from behi nd by an automobile driv en by Defendant Perot. Prior to t rial, Perot amended his answer to admit liability for the accident. Accordingly, the only issues for the jury’s considerati on involved the amount of damages, if any, to be awar ded each Plaintiff. Although he admitted l iability, Perot conten ded at trial that the P lainti ffs were entitled to no recovery

because they suffered no injuri es as a result of the accident.
At trial, much of the expert medical testimony rega rding the Plaintiffs’ injuries w as presented by deposition per the parties’ stipulation . Dr. Hugh GlennBarnett, a neurological surgeon, testified that he operated on Cynthia Phil lips ’ neck to remove a disk approximately two months prior to the accid ent. Dr. Barnett examined Phillips after the accident and determined that she had sustained soft tissue injur ies at the cervical s pine. Dr. Barnett opine d that the soft tissue injuries aggravated Phillips’ preexisting neck condition and caused her to suffer pa in. Although Dr. Barnett testified that the accident did not cause any

permanent impairment, he believed that the accident caused a setback in Phillips’ recovery fr om neck su rgery. Dr. Barnett’s testimony concerning Phillips ’ injuries
was corroborated by Dr. Carl Wayne Huff, an orthopedic surgeon w ho also treated Cynthia Phillips after the accident.2 The jury als o ren dere d ver dicts as to othe r plain tif fs purs uing deriva tive claim s in this laws uit;

howev er, these verdicts a re not at iss ue in this ap peal. 3 Dr. Barnett also treated Judy Webb in the mon ths fo llowing the accident . Webb complained of neck and back pain as a result of the accident, and Dr. Barnett diagnosed her as having “cervical strain with spasm.” Dr. Barnett opined that Webb’s injury was the result of the accident. He also opined that, although Web b continued to complain of neck and backpain in the months following the accident, she eventuall y would recover

from the injury. Again, Dr. Huff generally cor roborated Dr. Barnett’s t estimony, although he w as not
as convinced that Webb would fully recover from the injury. De spit e the existence of a physical therapist’s report w hich suggested that Webb may have been exaggerati ng her symptoms, Dr. Huff genuinely beli eved that Webb “was not ma lingering. ” Dr. Huff ’s own examination had revealed some tightening of the muscles in the affected area which, Dr. Huff testified, would be consist ent with the presence of pain.
KellyPhillips was treate d by Dr. Lynn A. W arner, a surge on. D r. Warner’s diagnosesfor Kelly included (1) acute cervical strain, (2) acute strain of right shoulder, and (3) A-C separation. Kelly’s injuries required her to wear a sling during the summer of 1992 and to receive therapy on her injured shoulde r. Kelly co mplained of pain caused by the shoulder injury, particularly when she was receiving therapy. This injury als o prevent ed Kelly from engaging in her normal summer activ ities, such as riding

a bicycle.

At the trial’s conclusi on, the jury returned verdicts awardi ng Cynthia Philli ps the sum of $679.25, Judy Webb the su m of $525.55, a nd Kelly Phillips th e sum of $2,500. 2 The Plainti ffs then filed motions for new tri al, which t he trial court denied. The tr ial court, however, suggested additurs whereby he increased Cynthia Phi llips’ judgment to $3,750, Judy Webb’s judgment to $2,250, and Kelly Phillips’ judgment to $4,000. Perot accept ed the additurs under protest and filed this appeal.

In Tennessee, the law is now well-settled that

a trial court may sug gest an additur when the jury verd ict is wi thin the range of reasonableness of the credible pr oof but the court is of the opinion that the verdict is inadeq uate. Coffey v. Fayette Tubular Prods. , 9293 See Thrailki ll v. Patterson , 879 S.W .2d 836, 840 (Tenn. 1994 ). 4 S.W.2d 326, 330 (Tenn. 1996). The inherent pow er of the trial court to

suggest an additur
as an alternative to a new trial is recogniz

ed by Tennessee’s additur st atute, 3 w hich provides that: In cases where, in the op inion of the trial judge a jury

verdict is not a

dequate to compe nsate th e plaint iffor plainti ffs in compensatory damages or punitive damages, the trial judge maysuggest an additur in such amount or amounts as the trial judge deems proper to the compensatory or puniti ve damages awarded by the jury, or both such classes of damages. T.C.A. § 20-10-101(a)(1) (1994).

The addit ur s tatute also sets forth the standard to be applied by this court in reviewing the trial court’s suggestion of additur:

The court of appeals shall rev iew the action of

the trial court suggesting an additur using the standard of revie w provided forin Rule 13(d) of the Tennessee Rul es of Appellate Procedure applicable to decisions of t he trial court sitting without a jury. . .

. T.C.A. § 20-10-1 01(b)(2) (1994). Un der this st andard, our revi ew i s de novo upon the record, accompanied by a presumption that the trial court’s action is correct unles s the evidence prepondera tes otherwise. Lynch v. Turner , No. 01A01-9109-CV- 00325, 1992 W L 23122, at *1 (Tenn. App. Feb. 12, 1992); T .R.A.P. 13(d).
Specifically, the foregoi ng standard requires us to review the

proof of damages to determine whether the evidence pr eponderates against the tri al court’s suggesti on of additur. Long v. Mattingly , 797 S.W.2d 889, 89 6 (Tenn. App. 1990). Moreover, in conducting its review, this court customarily considers two other factors: (1) the trial court’s
reasons for the additur, and (2 ) the relation between the amount of the additur and the amount of the jury’ s verdict. Lynch v. Turner , 1992 WL 23122, at *1; accord Lebovitz v. Bearden , 1993 WL 471479, at *2 (Tenn. App. Nov. 16, 1993). We examine the reasons forthe trial court’s additur because “adjustments are pr oper only when the

court disagrees with the amount of the verdict.” Long v. Mattingly , 797 S.W.2d at 896. We examine the amount of the suggested additur becau se “adjustmen ts that ‘totally destroy’ the jury’s verdict are impermissible.” Id

.5

After reviewing the

proof of damages in this case, as w ell as the other factors cit ed,
we conclude that the trial cour t’s suggestion of

additur was proper. Although the trial court did not articulate its

reasons for suggesting the additurs, the record i ndicates that the court mayhave suggested the additurs to compensate the Plaintiffs for pain and suffering or to compensate them for medical e xpenses which were not included in the jury’s verdicts. Cynthia Phillipsand Judy Webb claimed $8,936.46 and $3,232.55, respectively , in medical expenses; however, the amounts of the ve rdicts rendered by the jury ($679.25 and $ 525.55) approximated only the ex penses which the Plainti ffs incurred for emergen c y medical treatment on the day of the accident. The jury’s $2,500 v erdict in favor of Kel ly Phillipswas sufficient to compensate her for her medical expenses, w hich totaled $1,767.33; however, the verdi ct awarded her less than $800 for any pain and suffering caused by

her injuries. Under these circumstances, the trial court could have concluded that the j ury’s verdicts did not adequately compensat e the Plaintiffs for their pain and suffering and/or for their medical ex penses. See, e.g. , Lynch v. Turner , 1 99 2 WL 23122, at * 2; Ledford v. French , No. 02A01-9106-CH-00102, 1992 WL 1144, at *2 (Tenn. App. Jan. 7, 1992).

We further conclude that the additurs were supportedby the preponderance of the evidence. At trial, Perot sought to establish that Cynthia Phillips and Judy Webb were not injured as a result

of the accident. The undisputed me dical tes timony, however, demonstrated that both Pl aintiffs sustained some degree of inj ury as a result of the accidentand that they suffered the effects of their injuries for sev eral months following the accident. It is true that the evidence sugge sted th at the Plaintiffs may have been exaggerating

their sym ptoms, or tha t some of their symptoms may hav e been caused by preexistingconditi ons . Nevertheless, the tr eating physicians for b oth women provided testimony w

hich establ ished that at least some of their pain sy mptoms related to injuries caused by the accident. As for Kel ly Phillips, it was undisputed that she suffered a shoulder injury in the accide nt, that she was requi red to wear a sling during the summer of 1992 which greatlyrestricted her normal activities, and that she experienced pain as a result of the injury, par

ticularly when s he was required to under go therapy.6

Finally, we conclude that the suggested additurs do not totally destro y the jury’s verdicts. In Ledford v. French , No. 02A01-9106 -C H-00102, 1992 WL 1144 (Tenn. App. Jan. 7, 1992), for example, the tri al court suggested an additur which effectively increased the judgmentfrom $1,240 to $6,240. This court affirmed, holding that there was sufficient evidence of pain and suffering in the recor d to support the additur. Id . at *2. Although the resulting judgment was approxi mately five times larg er than the j ury ’s verdict, we concluded that the amount of the additur did not destroy the integrity of

the jury’s verdi ct. Id

. Similarly, in Lynch v. Turner , No. 01A01-9109-CV-00325, 1992 WL 23122 (Tenn. App. Feb. 12, 1992), the trial court sugge sted an additur which increas ed the judgment from $5,000 to $20,000. This court a ffirmed, noting

that the re was

eviden ce that the plaintiff had suffered serious injuries for which the jury’s verdict did not compensate her. Id . at *2. Althou gh the resulting judgment was four times larger than the jury’s ver

dict, we agai n concluded that the amount of the additur d id not destroy the ver dict’s integrity

. Id

.

In the present case, the trial co urt’s addit urs resulted in judgments which were roughlyone and one-half to five and one-half ti mes greater than the jury’ s verdicts. Inasmuch as the evidence does not preponderate against these amount s, we cannot

say that the trial court’s suggested additurs bear so little relation to the jury’s verdicts that they totally destroy the verdic ts. Cf

. Foster v. Amcon Int’l, Inc. , 621 S.W.2d 142, 148 (Tenn. 1981) (holding that sugges ted additur

of thirty times that

of jury’s verdict

totally destroyed verdict); Lebovitz v. Bearden , 1993 W L 471479 , at *4 (Te nn. App. Nov. 16, 1993) (holding that suggested

additur which increased jury’ s verdict more than tw

enty time s bore no relation to jury’s award and, thus, totally destroyed verdict).

The judgm ent of th e trial court is hereby affirmed. Costs on appeal are tax ed to Perot, f or which exe cution m ay issue if necessar y.

HIGHERS, J.7

CONCUR:
CRAWFORD, P.J., W.S.

LANIER, Sp. J.