Donald Miller v. Choo Choo Partners ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 13, 2001 Session
DONALD MILLER, ET AL. v. CHOO CHOO PARTNERS, L.P.
Appeal from the Circuit Court for Hamilton County
No. 99CV0720 Samuel H. Payne, Judge
FILED NOVEMBER 5, 2001
No. E2001-00007-COA-R3-CV
Donald Miller and his wife, Terry Miller, filed suit seeking damages associated with injuries that Mr.
Miller1 allegedly sustained when he fell while getting into a bathtub enclosure at a hotel owned by
the defendant Choo Choo Partners, L.P. The jury returned a verdict for the plaintiffs. As remitted
by the trial court, Miller was awarded $1,000,000 and his wife was awarded consortium damages
of $175,000. The defendant appeals, arguing, inter alia, that it was entitled to a directed verdict
because the plaintiffs failed to establish that the defendant’s negligence caused Miller’s back and
neck injuries. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., joined. D. MICHAEL SWINEY, J., filed a dissenting opinion.
Donald W. Strickland, Chattanooga, Tennessee, for the appellant, Choo Choo Partners, L.P.
John D. McMahan, Chattanooga, Tennessee, and Donald Capparella, Nashville, Tennessee, for the
appellees, Donald Miller and Terry Miller.
OPINION
I.
The plaintiffs reside in Peoria, Illinois. At the time of the subject incident, Miller was
employed by Komatsu Mining Equipment as an area service manager. On April 1, 1996, he traveled
1
When we refer to “M iller” in this opinio n, we are refer ring to the injure d party.
1
to Chattanooga for the purpose of demonstrating some of his company’s large mining trucks to a
pool of potential customers. He checked into the Chattanooga Choo Choo Hotel, a hotel owned by
the defendant. On the morning of April 2, 1996, as Miller was stepping into the bathtub to take a
shower, he grabbed a bar located on the opposite wall inside the bathtub. The bar pulled away from
the wall, causing him to fall backwards. As a result of his fall, his right hip struck the edge of the
bathtub.
Upon his return to Peoria on April 11, 1996, Miller went to see his family physician, Dr.
Richard Schock. He complained of low back pain. He told Dr. Schock of his fall in the hotel
bathroom. Dr. Schock examined him and found that he was tender in the lumbar area. He
prescribed pain medication, muscle relaxants, and anti-inflammatory drugs. When Miller did not
improve, Dr. Schock ordered a MRI scan. The scan showed a disc herniation in the lumbar region
of Miller’s back. Dr. Schock referred Miller to Dr. Richard Lister, a neurosurgeon who had
previously performed surgery on Miller in 1991 to correct another disc herniation in his back. The
same doctor had also operated on Miller’s neck in 1992. Dr. Lister initially recommended physical
therapy and steroid injections. When Miller’s condition did not improve, Dr. Lister recommended
surgery. On May 16, 1996, Dr. Lister performed surgery to correct the disc herniation in Miller’s
low back. He indicated at trial that the herniation was in the same location as the herniation that had
been the subject of the 1991 surgery.
Miller returned to work on July 24, 1996. He continued to experience back pain, however,
and in September, 1996, he returned to Dr. Schock. Another MRI scan of his back was conducted,
but nothing unusual was found. Dr. Schock prescribed physical therapy.
Miller testified that he also experienced neck pain after his fall. He testified that he did not
mention this pain to either Dr. Schock or Dr. Lister, initially believing it was simply a symptom of
fatigue. In January, 1997, he went to Dr. Schock for treatment of his neck. Dr. Schock
recommended a MRI scan of his neck. The MRI revealed evidence of a disc herniation at the same
location as the herniation that was the subject of the earlier neck surgery. Miller was again referred
to Dr. Lister, who performed surgery to correct the herniation on March 18, 1997. Miller did not
return to work after the neck surgery. He testified that his ability to perform the duties of his job was
“extremely hampered” after the surgeries on his back and neck.
II.
As previously indicated, the jury returned a verdict in favor of the plaintiffs. The trial court
remitted Miller’s award to $1,000,000 and that of Mrs. Miller to $175,000. The defendant appeals,
raising the following issues:
1. Did the trial court err in refusing to grant the defendant’s motion
for directed verdict, which motion was based upon the alleged failure
of the evidence to establish the requisite causation nexus between
Miller’s fall and his neck and back injuries?
2
2. Did the trial court err in admitting expert testimony over the
defendant’s objection?
3. Did the trial court err in admitting evidence of Miller’s medical
expenses over the defendant’s objection?
4. Is the jury’s verdict excessive as being contrary to the law and the
properly-admitted evidence?
5. Did the trial court err in refusing to give the defendant’s special
requests for jury instructions?
The plaintiffs’ brief responds to the defendant’s issues. As a separate issue, the plaintiffs contend
that the trial court erred in remitting Miller’s award from $1,500,000 to $1,000,000 and Mrs. Miller’s
verdict from $250,000 to $175,000.
III.
A.
The defendant contends that it was entitled to a directed verdict because, according to the
defendant, the plaintiffs did not prove the defendant’s negligence caused the injuries to Miller’s back
and neck.
B.
Our standard of review of a trial court’s decision on a motion for directed verdict is well-
settled. A directed verdict is appropriate only when the evidence is susceptible to but one
conclusion. Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Long v. Mattingly, 797 S.W.2d
889, 892 (Tenn. Ct. App. 1990). In deciding whether this is the situation in a given case, we must
“take the strongest legitimate view of the evidence favoring the opponent of the motion.” Long, 797
S.W.2d at 892. In addition, all reasonable inferences in favor of the opponent of the motion must
be allowed, and all evidence contrary to the opponent’s position must be disregarded. Eaton, 891
S.W.2d at 590; Long, 797 S.W.2d at 892.
As a general rule, the causation of a medical condition must be established by testimony from
a medical expert. Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991). Such
testimony is not sufficient to establish causation if it is speculative in nature. Primm v. Wickes
Lumber Co., 845 S.W.2d 768, 771 (Tenn. Ct. App. 1992). Quoting extensively from Professor
Prosser and other authorities, the Supreme Court has opined as follows:
“The plaintiff must introduce evidence which affords a reasonable
basis for the conclusion that it is more likely than not that the conduct
3
of the defendant was a cause in fact of the result. A mere possibility
of such causation is not enough; and when the matter remains one of
pure speculation or conjecture or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the
defendant...The plaintiff is not, however, required to prove the case
beyond a reasonable doubt. The plaintiff need not negative entirely
the possibility that the defendant’s conduct was not a cause and it is
enough to introduce evidence from which reasonable persons may
conclude that it is more probable that the event was caused by the
defendant than that it was not...” Prosser [and Keaton, Torts, § 41, p.
269 (5th ed. 1984)].
“A doctor’s testimony that a certain thing is possible is no evidence
at all. His opinion as to what is possible is no more valid than the
jury’s own speculation as to what is or is not possible. Almost
anything is possible, and it is thus improper to allow a jury to
consider and base a verdict upon a ‘possible’ cause of death.” Palace
Bar, Inc. v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 864 (1978).
“The mere possibility of a causal relationship, without more, is
insufficient to qualify as an admissible expert opinion.” Kirschner
v. Broadhead, 671 F.2d 1034, 1039 (7th Cir. 1982).
The admissibility of an expert medical opinion, of course, should not
turn on whether the testifying physician characterizes a particular
potential cause of an injury as “conceivable,” “possible” or
“probable.” See Trapp v. 4-10 Investment Corp., 424 F.2d 1261,
1268 (8th Cir. 1970). Regardless of the term employed, if the
physician’s
“testimony is such in nature and basis of hypothesis as
to judicially impress that the opinion expressed
represents his professional judgment as to the most
likely one among the possible causes of the physical
condition involved, the court is entitled to admit the
opinion and leave its weight to the jury.” Norland v.
Washington General Hospital, 461 F.2d 694, 697
(Cir. 8, 1972).
Nevertheless, a mere possibility is not an affirmative basis for a
finding of fact. “In the language of the law of evidence, [a medical
opinion suggesting] that which is merely possible, standing alone and
not offered as auxiliary or rebuttal testimony is immaterial to the
ascertainment of the fact and so is inadmissible as evidence of that
4
fact.” Martin v. United States, 284 F.2d 217, 219 (D.C. Cir., 1960).
Kirschner v. Broadhead, supra, 671 F.2d at p. 1039-1040.
Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 861-62 (Tenn. 1985) (emphasis in original).
C.
The plaintiffs maintained at trial that Miller sustained injuries to both his back and neck as
a result of his fall at the defendant’s hotel. To establish causation of these injuries, they presented
the video deposition testimony of Dr. Richard Schock and Dr. J. Richard Lister. Regarding Miller’s
back injury, Dr. Schock testified as follows:
Q During the course of your care and treatment of Mr. Miller
between April 11, 1996, and September 26, 1996, did you reach an
opinion according to a reasonable degree of medical certainty as to
the cause of his back problems that you were treating him for during
that period of time?
A I felt that the back problem that I saw him for in April was
caused by the fall in the [hotel].
(Emphasis added). On redirect examination, Dr. Schock testified as follows:
Q Mr. Strickland has asked you whether Mr. Miller ever told
you that his neck problems were related to the fall. And what I’m
asking you is simply whether the causal connection or the
determination whether an injury or trauma can exacerbate or
aggravate a preexisting degenerative disc disease in a patient with a
surgical history such as Mr. Miller is a determination for a physician
or a determination for a layperson.
A I definitely feel that – even with his back, he came in
complaining of his back, and for me to – on this first evaluation I
didn’t feel it was a herniated disc. And we treated him conservatively
hoping that it wasn’t and that it would improve with just rest and
anti[-]inflammatories and so on. And the pain persisted and
increased, he had some sciatic irritation. So we proceeded with an
MRI.
And sometimes injuries don’t expose themselves for
sometime after the accident. So I cannot say with any, you know,
certainty that, yes, the herniated disc was exacerbated by the fall. But
I can say that the fall could have exacerbated the herniation.
5
Q And that’s about – you’re talking about the neck herniation?
A Both of them.
On the subject of Miller’s back injury, Dr. Lister testified as follows:
Q Is the difficulty that this gentleman had in his lumbar spine
that you saw him for in April and May consistent with a fall that he
described to you?
A It could be.
On redirect examination, Dr. Lister further testified as to the cause of Miller’s back injury:
Q In your opinion, Dr. Lister, is it more likely than not that the
recurrent disc disease in the lumbar spine was caused as a result of
the fall he described to you?
A I don’t know what caused his recurrent disc herniation. Based
on his history, the two are related, but I don’t know what caused the
disc herniation.
(Emphasis added).
Dr. Schock testified that he “felt that the back problem...was caused by the fall.” Dr. Lister
opined that the fall and the “recurrent disc disease in the lumbar spine” are related. Dr. Lister also
testified that the disc herniation in Miller’s back “could be” consistent with his fall. It is true that
Dr. Lister testified that he did not know “what caused the disc herniation.” But this testimony can
be legitimately construed as a statement by the doctor that he did not know what caused this
condition originally. This is the “strongest legitimate view” of this evidence in favor of the
plaintiffs, see Long, 797 S.W.2d at 892; on a motion for directed verdict, they are entitled to that
“view.” Id. Neither Dr. Schock nor Dr. Lister expressly disavowed their testimony that there was
a causal relationship between the fall and the back injury. To the extent that other testimony by these
doctors tended to dilute or lessen the effect of their “relationship” testimony, that other testimony
goes to the weight to be given their “causal relationship” testimony. This weighing process was for
the jury. We certainly are not permitted to say that their “causal relationship” testimony was, as a
matter of law, negated by their other testimony.
The defendant was not entitled to a directed verdict on the plaintiffs’ claim that the
negligence of the defendant caused or contributed to the current condition in Miller’s low back.
6
D.
We now turn to the evidence regarding Miller’s neck injury. On this issue, Dr. Schock
testified as follows:
Q Dr. Schock, would you describe for the jury at this stage how
a gentleman, a man such as Mr. Miller who had had a previous neck
surgery is susceptible to subsequent injury?
MR. STRICKLAND: Object to the form of the question.
Q You may answer it, Dr. Schock. If he is susceptible. If a
party who has had previous neck surgery is not more susceptible to
trauma, please tell us.
MR. STRICKLAND: Same objection.
A I definitely feel that Mr. Miller has, you know, what we call
degenerative disc disease – and this is something that’s probably
hereditary or genetic – and that he has a predisposition to having back
and neck problems.
Definitely a fall can aggravate the condition and cause him to
have the herniated disc show up after the injury and would – the –
where a fall or the same type of injury in somebody who didn’t have
degenerative disc problems may not sustain the same type of injury.
Q Given Mr. Miller’s history and given your physical
evaluations in 1996 and then in early 1997, can you state, Dr. Schock,
within a reasonable degree of medical certainty whether the fall he
described to you in April of 1996 at the Chattanooga Choo-Choo,
formerly a Holiday Inn, did or did not aggravate or exacerbate this
gentleman’s preexisting neck problem?
* * *
A I – I definitely cannot put a – say that the fall caused it. He
definitely has a predisposing condition that would make him
susceptible to that type of an injury from a fall.
Q Are the symptoms that you observed and that he described to
you in January of 1997 consistent with an individual who has suffered
an exacerbation of a neck problem from a traumatic or injuring event?
7
MR. STRICKLAND: Object to the form of the question.
A The symptoms he’s – I’m – the symptoms he’s having, could
they be brought on by his fall –
Q Yes, sir.
A – is basically what you’re asking?
Q Yes, sir.
A Yes, they could be.
Q And is that opinion stated according to a reasonable degree of
medical certainty?
MR. STRICKLAND: Object to the form of the question.
A Yeah. Yes.
Dr. Schock’s testimony regarding Miller’s neck injury is clearly not as strong as the
testimony regarding his low back injury. The issue for us is whether, given “the strongest legitimate
view of the evidence” in favor of the plaintiffs, see id., there is sufficient evidence of causation
between Miller’s fall and the neck injury for which the plaintiffs are seeking compensation.
It is clear from the above-quoted testimony that the origin of Miller’s degenerative disc
disease, is “probably hereditary or genetic.” This testimony is consistent with the plaintiffs’ theory
that Miller’s fall aggravated a pre-existing condition. It is likewise clear from Dr. Schock’s
testimony that such a pre-existing condition renders a person such as Miller “more susceptible to
trauma,” i.e., more susceptible to injury than one “who didn’t have degenerative disc problems.” In
response to a question as to whether Miller’s fall “did or did not aggravate or exacerbate [Miller’s]
pre-existing neck problem,” Dr. Schock opined that he could not say that the fall “caused” his
condition. This, of course, is consistent with the doctor’s testimony that his degenerative disc
disease is “probably” something he was born with. The remainder of the doctor’s answer is at the
crux of the issue before us:
He definitely has a predisposing condition that would make him
susceptible to that type of injury from a fall.
(Emphasis added). When this answer is viewed in the context of the question that prompted it, we
find that it can be interpreted as an affirmative answer to that question. Certainly, it is subject to
another interpretation – one that is favorable to the position of the defendant; however, if this
testimony can be reasonably interpreted as an affirmative response to the question posed, we must
8
adopt this latter interpretation on the issue of whether a directed verdict was appropriate in this case.
This is because, once again, our mandate is to view the evidence in a light “favoring the opponent
of the motion,” i.e., the plaintiffs. Id.The excerpts from the transcript, upon which we have just commented, were followed by Dr.
Schock’s testimony indicating that there “could” be a finding of consistency between the symptoms
to which Dr. Schock responded and “an individual who has suffered an exacerbation of a neck
problem from a traumatic or injuring event.” We find that the defendant is making too much of the
word “could” in the context of the medical testimony in this particular case. That testimony can be
interpreted as an expression of opinion to the effect that there “could” be a relationship, speaking
hypothetically, between the type of injury and the type of incident involved in the instant case. Such
a statement regarding a hypothetical situation is not enough to render Dr. Schock’s testimony
ineffective on the issue of the causation of Miller’s neck injury. Again, the weighing of the
testimony was for the jury.
When all of Dr. Schock’s testimony is read in context, and when it is viewed in a light most
favorable to the plaintiffs, we cannot say that there is no testimonial basis upon which a jury could
render a verdict for the plaintiffs on the issue of whether the fall at the hotel caused Miller’s neck
problems. To borrow the language of Professor Prosser as cited in the Lindsey case, we find that
Dr. Schock’s testimony “affords a reasonable basis for the conclusion that it is more likely than not
that the conduct of the defendant was a cause in fact of the result.” Lindsey, 689 S.W.2d at 861.
With all due respect to our colleague, Judge Swiney, we believe that he is putting too much
emphasis, in this particular case, on the doctors’ use of the word “could.” This approach is exactly
what the Lindsey case cautions against: “The admissibility of an expert medical opinion, of course,
should not turn on whether the testifying physician characterizes a particular potential cause of an
injury as ‘conceivable,’ ‘possible’ or ‘probable.’” Lindsey, 689 S.W.2d at 862.
We would agree with Judge Swiney if the testifying doctors had said, in so many words, “I
cannot say that the fall caused the condition for which I treated the plaintiff. The most I can say is
that the fall could have resulted in that condition.” Clearly, if this had been the testimony, it would
have been insufficient to ward off the defendant’s motion for directed verdict. But this is not what
we are dealing with in this case. Rather, we have before us expert testimony that tends to establish
causation on the one hand, and other testimony by the same experts that tends to diminish the effect
of their causation testimony. In our judgment, the latter testimony goes to the weight to be given the
former testimony. We believe it was for the jury to sort all of this out.
It is unreasonable to expect a medical expert to testify with legal precision. This is not to say
that his or her testimony does not have to meet a certain standard; clearly under Lindsey, it does.
But such testimony must be viewed as the testimony of a medical person and not that of an
individual trained in the law. We are expecting too much if we think that doctors can speak with the
precision of a hornbook on causation.
9
Judge Swiney’s dissent opines that Dr. Lister’s testimony that “the [the fall and the plaintiff’s
condition] are related” does not establish causation. He emphasizes the testimony – “I don’t know
what caused his recurrent disc herniation” – but gives short shrift to what follows in the doctor’s
testimony – “I don’t know what caused the disc herniation.” We continue to believe that this last
statement can be construed as Dr. Lister’s frank admission that he did not know what caused the disc
herniation to first manifest itself going back to the time of the original back injury in 1991; rather
than an expression of ambivalence as to the cause of Miller’s current back condition. In any event,
we believe there are two ways to view this testimony. One is favorable to the movant – the
defendant – while the other is favorable to the nonmovant – the plaintiff. With all due respect to our
colleague, we believe he has selected the former. We believe the latter one is the appropriate one
for us to select in view of the rule favoring the interpretation that is consistent with the position of
the nonmovant on directed verdict.
We also note that Judge Swiney’s dissent fails to give sufficient deference to Dr. Schock’s
straightforward testimony that he “felt that the back problem that [he] saw [Miller] for in April was
caused by the fall in the [hotel].” We do not believe we are at liberty to ignore this particular
testimony.
We adhere to our opinion that when the evidence is viewed in the light most favorable to the
plaintiffs as the nonmovants and when they are given the benefit of all reasonable inference, the
evidence is sufficient to make out the necessary Lindsey causation.
The trial court did not err in refusing to grant the defendant a directed verdict on the
causation issue with respect to Miller’s neck condition.
E.
Having found that the expert testimony of Dr. Schock and Dr. Lister was sufficient to
establish the relevant causation of Miller’s back and neck injuries, we conclude that Dr. Schock’s
and Dr. Lister’s testimony regarding causation was properly admitted by the trial court.
The defendant contends that the trial court erred in admitting the doctors’ testimony on other
grounds. Specifically, it objects to Dr. Lister’s testimony, wherein, after stating that Miller told him
that the back injury resulted from the fall, Dr. Lister testified that he had no reason to question
Miller’s veracity and that he had found him “to be an honest and truthful historian.” While such
testimony may well have been improper, we find its admission was, at most, harmless error. See
Tenn. R. App. P. 36(b).
The defendant also takes exception to a question posed to Dr. Schock, in which the doctor
was asked “how” a person, such as Miller, who has had prior neck surgery is more susceptible to
subsequent injury. The defendant contends that this question was leading and therefore improper.
However, we note that before Dr. Schock could respond to the question, the plaintiffs’ counsel
rephrased the question and asked the doctor “if” a person with a previous neck surgery is more
10
susceptible to trauma, to which Dr. Schock responded in the affirmative. The objectionable language
having been cured, we see no basis for the defendant’s complaint. This issue is without merit.
IV.
Next, the defendant contends that the trial court erred in the admission of evidence relating
to Miller’s medical expenses. The defendant argues that because the plaintiffs failed to establish the
causation of Miller’s neck injury, the medical expenses related to this injury should have been
excluded. It further contends that the testimony of Dr. Schock and Dr. Lister was insufficient to
establish the necessity and reasonableness of many of these expenses.
We disagree on both points. As we have already found that the expert testimony sufficiently
established the causation of Miller’s neck injury, those expenses related to his neck injury were
properly admitted. Moreover, we find that the plaintiffs presented sufficient proof of the necessity
and reasonableness of Miller’s medical expenses. Both Dr. Schock and Dr. Lister testified that the
services they personally rendered to Miller were necessary and that their charges were reasonable.
Moreover, both doctors testified as to the necessity and reasonableness of the medical charges of
other health providers. Upon reviewing the doctors’ testimony, we find that there is sufficient
evidence to establish the necessity and reasonableness of the $30,534.91 in medical expenses
claimed by Miller. However, even if the doctors’ testimony was inadequate as to some of the
expenses claimed, such a finding would not prompt us to find the award to Miller to be excessive.
This issue is without merit.
V.
A.
The defendant next argues that the verdict as remitted is excessive. We disagree.
Our task with respect to this issue is clear. On a jury verdict, we “are required to take the
strongest legitimate view of all the evidence, including all reasonable inferences therefrom, to sustain
the verdict; to assume the truth of all the evidence that supports it; and to discard all evidence to the
contrary.” Miller v. Williams, 970 S.W.2d 497, 498 (Tenn. Ct. App. 1998). If there is material
evidence to support the trial court’s judgment, we must affirm. Id.We find there is material evidence to support the monetary awards in this case. As previously
indicated, Miller, age 55 at the time of trial, incurred medical expenses of $30,534.91 as a result of
his injuries from the fall – injuries that the medical experts testified were permanent in nature. He
further presented evidence that he incurred a total economic loss – as discounted to present value –
of $411,846 as a result of his inability to continue his employment. Following his back surgery,
Miller was able to return to work briefly; however, he continued to experience back pain, which
began to interfere with his ability to climb on equipment and to drive for long distances, duties that
were essential to his job.
11
Following Miller’s neck surgery, his ability to work was “extremely hampered”; he could no
longer carry a briefcase or perform any repetitive stooping or bending. As before, his ability to drive
a long distance was diminished, this time because of decreased mobility in his neck. Miller testified
that he suffered emotionally from his inability to work, and that he has seen a psychologist for
depression. Additionally, the plaintiffs indicated that Miller can no longer perform chores around
the house and that he cannot engage in his hobby of restoring automobiles, an activity he often
shared with his wife. Miller testified that his mobility is limited to the extent that his wife has to
help him put on his socks. The plaintiffs both testified that their intimate life is now limited. In light
of this evidence, we cannot say that the verdict as remitted is excessive. There is material evidence
to support it.
B.
By way of a separate issue, the plaintiffs contend that the trial court erred in remitting the
jury’s verdict.
“In personal injury cases, calculation of damages is within the province of the jury.”
Grandstaff v. Hawks, 36 S.W.3d 482, 499 (Tenn. Ct. App. 2000). However, a trial court may
suggest a remittitur of the verdict if it determines that the verdict is excessive. See T.C.A. § 20-10-
102(a) (1994). If the suggestion of a remittitur is refused by the party in whose favor the verdict was
rendered, a new trial must be granted. Grandstaff, 36 S.W.3d at 499. If the remittitur is accepted
under protest, the party may appeal the trial court’s finding that the verdict was excessive. Id.;
T.C.A. § 20-10-102(a).
We review a trial court’s remittitur pursuant to Tenn. R. App. P. 13(d). See T.C.A. § 20-10-
102(b). Accordingly, we must determine whether the evidence preponderates against the trial court’s
judgment. Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990). Upon reviewing the
record, we cannot say that the evidence preponderates against the trial court’s determination that the
verdict rendered by the jury was excessive and that a remittitur was appropriate in this case. This
issue is found adversely to the plaintiffs.
VI.
The defendant argues that the jury was not properly charged regarding the plaintiffs’ burden
on the issue of causation. The plaintiffs counter that the jury was adequately charged and that even
if some errors were made, they are not such as to warrant a new trial.
We review the jury charge in its entirety and as a whole to determine whether the trial judge
committed reversible error. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn.
1992); Grissom v. Metropolitan Gov't of Nashville, 817 S.W.2d 679, 685 (Tenn. Ct. App. 1991).
We will not invalidate a charge if it “fairly defines the legal issues involved in the case and does not
mislead the jury.” Otis, 850 S.W.2d at 446; Grissom, 817 S.W.2d at 685. Further, it is not error for
a trial court to deny a requested instruction if its substance has already been included in other
12
portions of the charge. Otis, 850 S.W.2d at 445; Mitchell v. Smith, 779 S.W.2d 384, 390 (Tenn. Ct.
App. 1989). “Where the court correctly charges the law applicable to the case, it is not error to deny
a special request that embodies a theory of a party if the court charges in general terms and with
clearness sound propositions of law which would guide the jury in reaching a correct decision in the
case.” Otis, 850 S.W.2d at 445. We will not reverse a trial court unless the failure to give a
requested charge “more probably than not” affected the judgment. Tenn. R. App. P. 36(b).
Among the instructions that the defendant asked the trial court to charge are (1) that causation
of a medical condition must be proven by expert testimony and that the probable cause of the injury
must be shown with reasonable certainty and (2) the definition of cause in fact and an instruction that
the plaintiffs had the burden of proving that the defendant’s negligence was the cause in fact of
Miller’s injuries. The defendant further requested that the jury be charged that the plaintiffs were
required to show by expert testimony (1) that Miller’s medical expenses were caused by the
defendant’s negligence and (2) that such expenses were necessary and reasonable. We will address
each of these requested instructions in turn.
We find that the trial court adequately charged the jury as to causation. The court told the
jury that it had to determine whether the defendant’s negligence was the proximate cause of the
plaintiff’s injuries before it could find the defendant at fault. The court defined proximate cause as
“a cause which in natural and continuous sequence produces the injury and without which the injury
would not have occurred.” The latter part of this definition – “without which the injury would not
have occurred” – correctly identifies cause in fact as an element of proximate cause. As such, there
was no need to give an additional cause in fact instruction or otherwise define the term further.
The defendant’s proposed instruction regarding the requirement that expert testimony on
causation be “reasonably certain” embodies a correct principle of law. However, we do not find that
it was error not to instruct the jury as to this principle. That an expert’s testimony is “reasonably
certain” is said to be a prerequisite to the admissibility of that testimony. See Lindsey, 689 S.W.2d
at 862. The admissibility of expert testimony is a matter of law for the court, not the jury. See
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). The trial court did not err in
refusing to give this instruction.
Finally, the defendant asserts that the jury should have been instructed that the plaintiffs were
“required to present competent expert medical proof that [Miller’s] medical expenses were caused
by the defendant and that the medical expenses were necessary and reasonable.” It further contends
that the jury should have been charged that damages could not be awarded for any medical expense
not proven by expert testimony to have been caused by the defendant’s negligence and to be both
necessary and reasonable.
We find no reversible error in the trial court’s refusal to give this instruction. As we have
already discussed, the trial court’s charge adequately addressed the issue of the plaintiffs’ burden of
proving causation of Miller’s injuries. Moreover, our review of the trial court’s charge leads us to
conclude that it adequately addressed the requirement that the plaintiffs prove that the medical
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expenses incurred were necessary and reasonable. While the court did not instruct the jury that the
necessity and reasonableness of these expenses must be established by expert testimony, we find this
error in harmless in light of our finding, as addressed earlier in this opinion, that the plaintiffs
adequately established those facts through the expert testimony of Dr. Schock and Dr. Lister.
VII.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Choo
Choo Partners, L.P. This case is remanded for enforcement of the trial court’s judgment and for
collection of costs assessed below, all pursuant to applicable law.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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