Kenneth F. Taggart and wife, Toni Corwin v. Bart Richards and Blue Cross Blue Shield of Tennessee ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION FILED
November 3, 1997
KENNETH F. TAGGART and wife, Cecil Crowson, Jr.
) C/A NO. 03A01-9707-CV-00262
Appellate C ourt Clerk
TONI CORWIN, )
) SULLIVAN LAW
Plaintiffs-Appellants, )
) HON. RICHARD E. LADD,
v. ) JUDGE
)
BART A. RICHARDS, )
)
Defendant-Appellee. )
)
BLUE CROSS BLUE SHIELD OF )
TENNESSEE, ) AFFIRMED
) AND
Intervening Plaintiff. ) REMANDED
GARY E. BREWER, LESLIE A. MUSE and STEVEN W. TERRY, BREWER &
TERRY, P.C., Morristown, for Plaintiffs-Appellants.
JAMES K. HORSTMAN, BARRY L. KROLL, ALTON C. HAYNES, LLOYD E.
WILLIAMS, JR., WILLIAMS & MONTGOMERY, LTD., Chicago, and EDWIN L.
TREADWAY, HUNTER, SMITH & DAVIS, LLP, Kingsport, for Defendant-
Appellee.
OPINION
Franks, J.
This is an action for damages for personal injuries allegedly occurring
on April 9, 1993 in the early evening, when the vehicle operated by the plaintiff was
struck by a vehicle operated by the defendant. Upon trial, a jury returned a verdict for
the plaintiff establishing damages at $8,445.00 and further determined that defendant
was 51% at fault for the accident. The Trial Judge approved the verdict and plaintiffs
have appealed.
Plaintiff insists on appeal that there is no material evidence to support
the amount of the jury verdict, or the jury’s finding that he was 49% at fault for the
accident. Also, they maintain there is no material evidence to support the jury’s
finding that plaintiff’s wife suffered no loss of consortium.
Immediately following the accident, plaintiff was taken by his wife to
the emergency room of a local hospital, where a laceration in his hand was sewed up
and x-rays were taken of his hand and neck. He was sent home. The next morning he
received a call from a physician at the hospital, who asked that he return to the
hospital. At the hospital plaintiff was informed that the x-rays of his neck reflected
the absence of bone at the odontoid process, with some subluxation of the cervical
spine. The hospital referred him to Dr. Gregory Corradino, a board certified
neurosurgeon. Dr. Corradino saw the plaintiff on April 20, and diagnosed the
plaintiff with having a cervical strain and “the absent odontoid process”, which he
opined was congenital, but needed surgical repair “very quickly”. Plaintiff next saw
Dr. Corradino on June 2, where surgery was discussed and, according to plaintiff, he
decided to get a second opinion. He then visited Dr. Joe Beals, a neurosurgeon, in
Knoxville on June 16, 1993, who also recommended surgery. Dr. Beals and another
doctor performed the surgery on February 3, 1994. The surgery involved the removal
of bone from plaintiff’s hip, which was placed in the neck and secured in the area
between C1 and C2. Plaintiff did well postoperatively and for approximately three
months following surgery, was required to wear a halo brace at all times. Due to the
brace, plaintiff’s wife had to attend to his personal hygiene and care for the brace and
other needs.
It is plaintiff’s position that there is no material evidence to support the
jury’s award of damages where the parties had stipulated that the amount of medical
expenses incurred by plaintiff totaled $37,314.70. We are required to affirm the
2
judgment unless there is no material evidence to support the verdict. Rule 13(d)
T.R.A.P.
Plaintiff tried this case before a jury, on the theory that the condition
requiring surgery was caused by the accident. He offered the expert medical opinion
of Dr. Joe Beals, who opined that the accident was the cause of this condition
requiring surgery. The defendant offered the testimony of Dr. Corradino, who
testified that the initial x-ray “showed what appeared to be an absence of a bone at the
upper part of the cervical spine known as the odontoid process and some subluxation,
which is a partial dislocation of the first and second vertebra.” He was of the firm
opinion as of April 23, 1993, that the absent odontoid process was either “congenital
or an acquired abnormality”. He was of the firm opinion, however, that “it is almost
certainly of long-standing duration and not related to his recent accident”. The
foregoing constitutes material evidence that the condition predated the accident.
However, there is other evidence in the record which no doubt impacted heavily upon
the triers of fact and against the plaintiff’s position.
On the plaintiff’s June 3 visit to Dr. Corradino, he brought x-rays from a
VA Hospital which had been taken of his head and the upper part of the neck on
September 19, 1989, due to a sinus condition. Dr. Corradino examined these x-rays
which he said showed the odontoid process was absent in 1989. The plaintiff took the
x-rays with him and apparently did not show them to Dr. Beals, who performed the
surgery, and whose opinion was formulated without the benefit of these x-rays. The
1989 x-rays and Dr. Corradino’s opinion of what they show is neither countered nor
confronted in this record. There are other inconsistences in plaintiff’s testimony and
the trier of fact was justified in concluding that the accident was not the cause of the
condition or surgery. See Buchanan v. Harris, 902 S.W.2d 941 (Tenn. App. 1995).
Plaintiff argues on appeal, that the pre-existing condition was
3
aggravated. This is simply not the theory upon which the case was tried, and as for
the claim for consortium by plaintiff’s wife, there is material evidence that the
elements of her claim are predicated upon plaintiff’s disability arising from the
surgery, convalescence and treatment of what the jury concluded pre-existed the
accident. These issues are resolved against plaintiffs.
Finally, plaintiff insists there is no material evidence to support the
apportioning of fault by the jury. A jury has considerable latitude in allocating the
percentage of fault in negligence cases, but we may alter the jury’s findings if they are
“clearly erroneous”. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995).
We observe at the outset, that since the jury found plaintiff’s credibility flawed, it
would be justified in not giving any weight to his version of how the accident
occurred. The evidence is conflicting about how the accident occurred. It is
undisputed that it was near darkness in the early evening and it was raining, causing
poor visibility. Defendant testified that he was proceeding within the speed limit at a
speed of approximately 40 to 45 miles per hour, and at the time he struck the rear
corner of plaintiff’s vehicle, he had slowed significantly and the impact was slight.
Defendant observed the plaintiff’s vehicle in the roadway as he came over a rise,
which was either stopped in the road or moving slowly. It is unclear from the record,
what signals, if any, plaintiff gave. Defendant testified there was oncoming traffic in
the other lane, and that when he was approximately 150 feet from plaintiff’s vehicle,
he realized that the plaintiff’s vehicle “was not moving” and applied his brakes. He
concluded plaintiff “had spent a very long lengthy period of time in the lane of traffic,
not moving or moving slowly, I couldn’t tell”. The plaintiff offered no explanation
for why he was stopped or moving slowly in defendant’s lane of travel. Under the
circumstances and the road conditions and taking into account plaintiff’s credibility on
this issue, we cannot say the jury’s assessment of liability is
4
“clearly erroneous”.
For the foregoing reasons, we affirm the judgment of the Trial Court and
remand with costs of appeal assessed to the appellants.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Don T. McMurray, J.
___________________________
Charles D. Susano, Jr., J.
5