Day on Torts
In Kempson v. Casey, No. E2015-02184-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), the Court of Appeals vacated a jury’s finding of no damages for a plaintiff who presented uncontroverted expert proof regarding injuries he alleged to have sustained in a car accident.
Plaintiff was rear-ended by defendant when he was sitting in traffic on the interstate. Although defendant did not deny that the collision occurred, the parties had vastly different accounts of what happened. Plaintiff alleged that defendant was going around 50 miles per hour when she hit him, that his car was knocked forward 5-6 car lengths (but that he did not hit the vehicles in front of him), and that after the accident defendant had blood going down her leg. Defendant, on the other hand, testified that she was driving between 10 and 15 miles per hour at the time of the collision, that the impact was “minor,” that her airbag did not deploy, and that she did not bleed. Both parties agreed that both vehicles were driven away from the scene.
Plaintiff sued for negligence, asserting that “as a result of the accident, [he] began experiencing intractable neck and low back pain that ultimately necessitated” surgery. In support of his claims, plaintiff presented testimony from his surgeon and his chiropractor. Both of these experts testified that plaintiff had “preexisting complaints related to his cervical, thoracic and lumbar spine,” and that his “post-accident complaints were similar to his pre-accident complaints.” The surgeon testified, though, that in his opinion “the accident at issue caused [plaintiff’s] medical condition to worsen to the point that surgery was necessary.”
Defendants did not present any independent expert proof and instead focused on cross-examining plaintiff’s experts regarding plaintiff’s pre-existing conditions.
The jury was given a special verdict form, which asked “do you find the defendant caused damage to the plaintiffs?” The jury responded with “no,” and plaintiff was awarded no damages. The trial court entered a judgment based on the jury’s finding and denied plaintiff’s motion for a new trial. Plaintiff appealed, and the Court of Appeals vacated the verdict and remanded for a new trial on damages.
In its opinion, the Court explained that a personal injury plaintiff must “present expert testimony (1) to prove medical expenses were necessary and reasonable and (2) to establish that a plaintiff’s physical injury was in fact caused by the incident at issue.” (internal citation and quotation omitted). Plaintiff argued on appeal that he met these standards by presenting uncontroverted expert testimony regarding his medical expenses and causation. Defendants, however, asserted that “there was sufficient testimony from [the doctors], obtained during cross examination, to support the jury’s ultimate conclusion that [plaintiff] was not injured in the accident.”
The Court reviewed the testimony of the surgeon and chiropractor, both from direct and cross-examination, noting that a jury “is not bound to accept an expert witness’s testimony as true” and that “the jury can give more credence to cross-examination testimony than the testimony provided on direct.” The Court stated that the jury here “obviously gave credence to evidence indicating that [plaintiff’s] pain and suffering was not caused by the accident at issue.” That, however, did not end the analysis. While defendants argued that this case was similar to a previous one in which a judgment of no damages was affirmed when plaintiff’s doctor testified that the plaintiff in that case would have “ultimately arrived at his then existing medical condition at some future time, with or without the occurrence of the accident,” the Court found that the instant matter was different. The Court ultimately reasoned:
It was reasonable for the jury to reject [plaintiff’s] testimony as to the nature of the impact based on [defendant’s] testimony and the photographs of the damage. The difference is that [the surgeon], the expert in the instant case, testified that the collision, however minor, aggravated [plaintiff’s] physical infirmities. According to [the surgeon], but for the accident, [plaintiff] would not have experienced the difficulties that ultimately required surgery. [Defendants] offered no proof to refute [the surgeon’s] expert medical opinion. It is well settled in this state that a jury is not justified in ignoring the unimpeached, uncontradicted testimony of a physician in respect to scientific information of which a layman would not be expected to have any reliable knowledge. Aggravation of a preexisting condition is a compensable element of damages.
(internal citation and quotation omitted) (emphasis added).
In addition, the Court stated that “when reasonableness and necessity are demonstrated by unrefuted expert proof, generally, a plaintiff in a negligence action is entitled to recover reasonable expenses for medical examinations to determine if the plaintiff sustained injuries, even where it is determined that the plaintiff sustained no injuries.” (internal citation and quotation omitted). The Court accordingly vacated the judgment and remanded for a new trial on damages, holding that “there is no material evidence to support the jury’s award of no damages because it fails to consider the aggravation of a preexisting condition and it fails to compensate for expenses which are unrefuted by the proof.”
This case was fairly fact specific and likely could have gone the other way had just a few facts or pieces of testimony been changed. In fact, Judge Susano dissented from the majority, writing that “the issue of whether the collision of the vehicles caused damage to the Plaintiffs was fairly presented to the jury” and that he would have affirmed the verdict. Nonetheless, should a plaintiff find himself in a situation where liability is established but the damage award is insufficient or nonexistent, this is a good case to look back to.