Want a primer on the law of compensatory damages in Tennessee? Then look at Hyde v. South Central Tennessee Development District, No. M2015-02466-COA-R3-CV (Tenn. Ct. App. July 14, 2017), defendant admitted liability for a car accident but challenged the damages awarded to plaintiff by the trial court.
On June 14, 2013, defendant’s employee ran a red light and hit the driver’s side of plaintiff’s car. On the day of the accident, plaintiff was taken to a hospital and “was diagnosed with a strain in her thoracic spine and a contusion to her right leg, and discharged with pain medication.” Two days later plaintiff went to a different hospital complaining of head pain and was diagnosed with a headache. Five days after the accident, plaintiff went to a chiropractor “complaining of muscle spasms in her lumbar spine and aches throughout her body.” Plaintiff treated with the chiropractor from June 19 until October 10. In addition to her treatment with the chiropractor, plaintiff went to her primary care doctor on August 20 and November 20, as well as January 27 of the following year.
Defendant admitted liability and a bench trial was held as to damages. The trial court awarded plaintiff $271,378.95 in compensatory damages, and this appeal followed, with defendant challenging the trial court’s damage calculations.
Past Medical Expenses
“An injured party is entitled to recover for medical expenses reasonably and necessarily incurred in the treatment of the injury.” (internal citation omitted). Plaintiff introduced as evidence a total of $13,434.53 worth of medical bills. The trial court reduced that number due to a visit to plaintiff’s primary care doctor that the doctor testified was not related to the accident and due to “an MRI which the court found was not medically necessary,” ultimately awarding plaintiff $11,079.50 for past medical expenses.
Defendant challenged this award, asserting that the evidence showed that plaintiff “had recovered from injuries from the accident by August 28, 2013, that the spinal pain had subsided, and that [plaintiff] was not entitled to reimbursement for a back brace she purchased in December 2013.” Looking at the testimony presented, the Court of Appeals determined that plaintiff had shown that expenses through October 10, 2013 were reasonable and necessary. The Court pointed out that the chiropractor testified that he released plaintiff on that date and “felt that she had been restored to preinjury status of the cervical spine, which would have been a continuation of an 8 percent permanent impairment rating from the prior injury.” Thus, the Court held that expenses incurred after October 10th should be excluded from the award and modified the amount to $10,115.10.
Loss of Future Earning Capacity
In Overstreet v. Shoney’s, Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999), the Court of Appeals discussed the standard for awarding lost future earnings. Therein, the Court stated:
The extent of an injured person’s loss of earning capacity is generally arrived at by comparing what the person would have been capable of earning but for the injury with what the person is capable of earning after the injury. If the injury is permanent, this amount should be multiplied by the injured person’s work life expectancy, and the result should be discounted to its present value. The injured party has the burden of proving his or her impairment of earning capacity damages. In order to recover these damages, the injured person must first prove with reasonable certainty that the injury has or will impair his or her earning capacity. Then, the injured party must introduce evidence concerning the extent of the impairment of his or her earning capacity.
In this case, plaintiff was a hairdresser at Great Clips. She made $19.35 per hour, and she testified that since the accident she was “down to 30, 32 hours a week[.]” She further stated that she cut people’s hair at home on her days off. Regarding restrictions, her chiropractor testified that she should not stand or bend her neck for a long time, and that she should take 5-10 minute breaks when cutting hair.
The trial court awarded plaintiff $169,041.60 in lost future earnings. To come up with this figure, the trial judge determined that plaintiff had 21 more years until retirement at 65, and that he thought plaintiff’s calculation that she was losing approximately eight hours of work a week was “accurate.” The judge calculated the hourly rate by the lost hours, then multiplied that to get to a figure for 21 years of lost hours. The Court of Appeals vacated this award and “remand[ed] the case for the court to reconsider the award to make appropriate findings as to the extent of [plaintiff’s] future earning capacity and, if warranted, compute any award of damages in accordance with the formula set out in Overstreet.”
Pain and Suffering
The trial court awarded plaintiff $15,000 for past pain and suffering, which was sustained by the trial court. With little discussion, the Court found that plaintiff’s “testimony and her medical records support the award for past pain and suffering,” as the trial court found plaintiff to be credible.
The trial court also awarded plaintiff $50,000 for future pain and suffering, but this award was reversed by the Court of Appeals. Defendant argued that the fact that plaintiff had not gone to a doctor for almost two years before the trial, the chiropractor’s report and discharge, and an MRI taken in February of 2014 that showed “normal lumbar alignment” all showed that plaintiff should not be awarded any damages for future pain and suffering, and the Court of Appeals ultimately agreed.
The Court reviewed the evidence presented during the trial to determine whether an award for future suffering was supported, noting specifically that the trial court’s order summarized medical conditions that could cause plaintiff pain in the future, but that “the court did not make findings as to the nature, location, frequency, or source of the pain, relate her pain to a specific condition or treatment, or explain whether the pain was in the past or anticipated in the future.” At trial, plaintiff and her son testified that she was “unable to continue her daily chores and activities due to her pain,” specifically citing that she could not clean the bathroom and sometimes needed help shampooing hair. Further, the chiropractor testified at trial that plaintiff’s injuries “will interfere with her daily activities and ability to work,” but in his final report upon plaintiff’s release he had stated that plaintiff had “improv[ed] favorably under [his] treatment” and that he “saw no need to refer her out for further medical consult.”
Despite the evidence offered by plaintiff at trial and the testimony of the chiropractor, the Court determined that plaintiff was not entitled to future pain and suffering damages. The Court analyzed:
The award…is contradicted by [the chiropractor’s] final diagnosis and prognosis; the MRI taken of [plaintiff’s] back in February 2014; and the absence of evidence that [plaintiff] has been receiving treatment and prescription medication from a physician since January of 2014. The MRI did not indicate any permanent injury or injury to [plaintiff’s] back from which pain would be forthcoming. [The chiropractor] did not diagnose a permanent injury for her neck, and the court held that [the chiropractor’s] testimony about ‘the permanency of the neck and back injuries are more credible and more believable and have more weight than the testimony of [the primary care doctor].’
Accordingly, the $50,000 award was reversed.
“Permanent impairment of a physical function is a type of permanent injury for which damages are awarded to redress an ‘injury from which the plaintiff cannot complete recover.’” (citing Overstreet). In this case, the trial court awarded plaintiff $5,000 for permanent impairment and the Court of Appeals affirmed.
The chiropractor testified that plaintiff had a 5% impairment rating to her back, and he further testified that he accepted the primary care doctor’s finding of an impairment to her neck. The trial court agreed with the back impairment, but found that there was no neck impairment, relying largely on the fact that the chiropractor “did not assign [plaintiff] an impairment rating to her neck in his final report.” Defendant argued that the chiropractor’s report contradicted a finding of permanent impairment to plaintiff’s back, as the report stated that plaintiff “had been restored to her pre-injury status.” The Court, though, held that enough testimony had been introduced to support the 5% impairment rating.
Loss of Ability to Enjoy Life
The trial court awarded plaintiff $5,000 for past loss of ability to enjoy life, and the Court of Appeals affirmed. The Court found that this award was supported by testimony regarding plaintiff’s “inability to participate in and enjoy activities she engaged in prior to the accident,” such as “bowling, taking road trips, or going for walks, in which she is now limited.” The Court also cited the chiropractor’s testimony that plaintiff “retains some degree of permanent impairment and limitation of movement.”
Plaintiff was also awarded $15,000 for future loss of ability to enjoy life, which was also affirmed. Defendant argued that this award was improper since plaintiff had not seen a doctor or gotten prescription medicine in almost two years, but the Court rejected this argument, finding that it was “directed toward the evidence of permanent injury,” not the loss of enjoyment of life. The Court held that the same testimony that supported the award of past damages in this category also supported the award of future damages.
Ultimately the trial court remanded for findings regarding future earning capacity and reduced the other awards by a total of $50,964.40. The biggest reduction, of course, was the reversal of the $50,000 for future pain and suffering. Plaintiff lost a large portion of her damages award due largely to the fact that she had not been to a doctor or needed medication for almost two years before trial. This is an interesting consideration for plaintiff’s lawyers as they prepare cases for trial and analyze what types of damages will be viable.