# FILED
Novemb er 3, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

KEN NETH F. TAGG ART and w ife, ) C/A NO. 03A01-9707-CV-00262 TONI CORWI N, ) ) S ULLI VAN LAW Plaintiffs- Appellants, ) ) H ON . RIC HA RD E. L AD D, v. ) J UDGE ) BART A . RICHARDS, ) ) Defendant-Appell ee. ) ) BLUE CR OSS BL UE SHI ELD OF ) TENNESSEE, ) AFFI RMED ) AND Intervening Plai ntiff
. ) REMANDED

GARY E. BRE WER, LE SLI E A. MUSE a nd ST EVEN W. TE RRY, BRE WER & TER RY, P.C., M orristown, for Plaintiffs-Appellants. JAMES K. HORSTMAN, BARRY L. KROLL, ALTON C. HAYNES, LLOYD E. WILLIAMS, J R., WILLIAMS & MONTG OMERY, LTD., Chic ago, and EDWIN L. TR EA DW AY , HU NT ER , SM ITH & D AV IS, LL P, K ingsp ort, for D efen dantAppellee.

O P I N I O N Franks, J.

This is an acti on for damages for pe rsonal injuries al legedl y occur ring on April 9, 1993 in the e arlyevening, when the vehicl e operat ed by t he plai ntiff

was struc k by a vehi cle oper ated bythe defendant . Upon tri al, a juryreturned a verdi ct for the pla inti ff establ ishi ng damages at $8, 445.00 and furt her dete rmined that defendant was 51% at fault for

the acci dent. The Trial J udge approved the verdic t and plainti ffs hav e ap pea led.2 Plaintiff insists on app eal that there is no m aterial evidence to su pport the amount of t

he juryverdict , or t

he jury ’s fi nding that

he was 49% at fault for the accident. A lso, they maintain there is no m aterial evidence to su pport the jury’s find ing that p laint iff’ s w ife s uff ered no l oss of c ons ortiu m.

Imm ediate ly follow ing the accid ent, plain tiff w as take n by his w ife to the emergency

room of a localhospit al, where a lacer ation i n his hand was sewed up and x-ray s were taken of hi s hand and neck. He was sent home. The next morning he recei ved a callfrom a phys icia n at the hospit al, who asked that he return to the hospit al. At the hospi tal pl ainti ff was informed that the x-ray s of his ne ck refl ected the absenc e of bone at t he odontoid pr ocess, with some subl uxation of the cer vical spine. The hospita l refe rred hi m to Dr. GregoryCorradino, a board certifi ed neurosurge on. Dr. Corr adino saw the pl ainti ff on April 20, and diagnosed t he plaint iff with having a cervical stra in and “the absent odontoid proces s”, which he opined was congeni tal, but needed sur gical repair “very quickly ”. Pla inti ff next saw Dr. Corradi no on June 2, where s urgerywas discuss ed and, according to pl ainti ff, he decid ed to g et a sec ond opin ion. H e then visited D r. Joe B eals, a n euro surge on, in Knoxville on J une 16, 1993, who also recommended surge ry . Dr. Beal s and another doctor performed the sur gery on February3, 1994. The s urgeryinvolved t he removal of bone from plai ntiff ’s hip, which was placed i n the neck and s ecured i n the are a between C1 and C2. Plai ntiff did well pos toperat

ively and for approxi matelythree months foll owing surgery , was requi red to wear ahalo brac e at al l ti mes. Due to the brace, plaint

iff’s wife had to attend to hi s personalhygi ene and care for the brac e and other needs. It i s plai ntiff ’s posi tion t hat the re is no materi al evi dence to suppor t the jury ’s award of damages where t he parti es had stipulated that the amount of medi cal expenses i ncurred byplaint iff t otale d $37,314.70. We are requir ed to affi rm the3

judgment unl ess the re is no materi al evi dence to suppor t the ve rdict . Rule 13( d) T.R.A. P. Plaintiff tried t his cas e before a j ury , on the theorythat t he condition requiring surge ry was caused by the acci dent. He offered the expe rt medic al opini on of Dr. Joe Beal s, who opined t hat the accident

was the cause of t

his condi tion requiring surge ry . The defendant offered the testimony of Dr. Corradino, who testifie d that t

he init ial x- ray “showed what appeared t o be an absence of a bone at the upper part

of the cervical spine known as the odontoid pr ocess and some subluxation, which is a partial dislocation of the f irst and second vertebra.” H e was o f the firm opinion as of April 23, 1993, that the absent odont oid proces s was either “congeni tal or an acquired abnormality”. He w as of the firm opinion, however, that “it is almost certa inly of long-s tanding dur ation and not rel ated t o his re cent acci dent”. The for ego ing con stitute s m ateri al ev iden ce th at the con ditio n pr eda ted th e ac cide nt. However, there is other evide nce in the record whic h no doubt impacted heavil y upon the triers of fact and aga inst the pla inti ff’s posi tion. On t he p la in ti ff’ s J une 3 vi si t t o Dr. Corra di no, he b ro ugh t x -r ay s f ro m a VA H ospit al which had been t aken of his he ad and the upper part of t he neck on Se pt em be r 1 9, 1 98 9, d ue to a s in us co nd itio n. D r. C or ra di no ex am in ed th es e x -ra ys which he said s howed the odontoi d process was abs ent in 1989. The plaintiff t ook the x-ray s with hi m and apparentl y di d not show them to Dr. Beals, who performed the surgery , and whose opini on was formulate d without t he benefit

of these x- ray s. The 1989 x-ray s and Dr. Corra dino’s opi nion of what they s how is neit her counte red nor confronte d in thi s recor d. There ar e other i nconsistences in pl ainti ff’s t esti mony and the trier of fa ct was jus tifi ed in concl uding that the acci dent was not t

he cause of the
con ditio n or surg ery. See B ucha nan v. Ha rris , 902 S.W .2d 9 41 ( Te nn. A pp. 1 995 ).

Plaintiff argue s on appeal, that t he pre-exi sti ng conditi on was4

aggravat ed. This is si mply not the the ory upon which the cas e was tri ed, and as f or the cl aim for consor

tium byplaint

iff’s wife, there is materi al evi dence that the elements of her cl aim are pr edicat ed upon plai ntiff ’s dis abili ty aris ing from the surgery , conval escence and t reatment of what the j ury concluded pr e-exis ted the accident. These issues are r esolved against plaintiffs.

Finall y, plaint

iff i nsist s ther e is no mate rialevidence t o support t he apporti oning of faul t by the jur y. A jury has consi derable lati tude in a llocating t he percentag e of fau lt in negligence ca ses, but we may alter the jury’s findings if they are “cle arly err one ous ”. Wrig ht v. C ity of K noxv ille , 898 S.W .2d 1 77, 1 81 ( Te nn. 1 995 ). We obse rve at th e outs et, that sinc e the ju ry foun d plain tiff’s cre dibility flaw ed, it would be justifie d in not gi ving anyweight to hi s versi on of how the accident
occu rred. T he ev idenc e is con flicting a bou t how the ac ciden t occu rred. It is undisput ed that

it was near

darkness i n the ear ly evening and i t was rai ning, c ausing poo r visibility. De fend ant testif ied tha t he w as pro ceed ing w ithin the spee d limit at a speed of approxi mately40 to 45 mil es per hour , and at the ti me he struck t

he rear
cor ner of p laint iff’ s ve hicle , he h ad s low ed s ign ifica ntly an d th e im pac t wa s slig ht. Defendant observe d the pla inti ff’s vehi cle i n the roadwayas he came over a rise, which was eithe r stoppe d in the r oad or moving sl owly. It i s unclear from the re cord, wh at signa ls, if any, plain tiff ga ve. D efen dant te stified th ere w as on com ing traf fic in the othe r lane, and that

when he was approximatel y 150 feet from plai ntiff ’s vehi cle, he re al iz ed th at

th e p la in ti ff ’s ve hi cl e “ was not mov in g” an d a ppl ie d hi s b rake s. He concluded pl ainti ff “had spent a very long lengt

hy period of ti me in the l ane of tr affic, not moving or movi ng slowly , I coul dn’t t ell” . The plai ntiff offered no expl anati on for why he was st opped or moving sl owly i n defendant’ s lane of t ravel. Under the circumst ances and the road condi tions and taki ng into ac count pla inti ff’s cr edibil ity on this is sue, we cannot say the jury ’s assessment of liabi lity is5

“clearly erroneous ”.

For the for egoing rea sons, we affi rm the judgment of the Tri al Court a nd remand w ith costs of appeal assess ed to the appellants.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T . McM urray, J.

___________________________ Charles D. Susano, Jr., J.