Faye R. Taylor v. Andrew R. Dyer , 2002 Tenn. App. LEXIS 332 ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 9, 2002 Session
FAYE R. TAYLOR v. ANDREW R. DYER, ET AL.
Appeal from the Circuit Court for Davidson County
No. 00C-2048 Carol Soloman, Judge
No. M2001-00967-COA-R3-CV - Filed May 7, 2002
In a non-jury trial, the Circuit Court of Davidson County awarded $10,920 to a plaintiff injured in
a rear-end collision. The defendants assert on appeal that the court erred in allowing the plaintiff to
supplement her trial proof with her doctor’s statement that his charges were reasonable and
necessary. In addition, the defendants assert that most of the medical expenses included in the
plaintiff’s award were not caused by the accident. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL ,
J. and DON R. ASH , SP . J., joined.
Bridgett A. Wohlpart, Brentwood, Tennessee, for the appellants Andrew R. Dyer and Jennifer L.
Dyer.
Franklin D. Brabson, Nashville, Tennessee, for the appellee, Faye R. Taylor.
OPINION
I.
The defendant rear-ended the plaintiff at Sixth Avenue and Broadway in Nashville on April
10, 1999. The impact knocked the plaintiff’s car into the one in front of it, causing damage to the
front and rear of the vehicle.
The plaintiff had been in treatment for pain in her right shoulder since May of 1998. Her
general physician noted evidence of right rotator cuff tendinitis and referred her to physical therapy
for rotator cuff pain. Later, he referred the plaintiff to an orthopaedic specialist who treated her for
an impingement syndrome, involving a possible biceps tendon rupture and a rotator cuff
involvement. The problem responded to conservative treatment.
After the accident on April 10, 1999, the plaintiff saw her general physician on April 16,
1999. He noted shoulder girdle pain along with other body aches and pains. The shoulder pain was
more general than the problem she had described earlier. She consulted a chiropractor five or six
times over the next three months. Her general physician referred her to an orthopaedic surgeon for
treatment of a painful bunion.
The plaintiff was involved in another minor accident on August 4, 1999 when she was
sideswiped by another car. On August 19, 1999, the plaintiff visited her orthopaedic surgeon
complaining of right shoulder pain. An MRI subsequently revealed a tear in her right rotator cuff.
The surgeon performed surgery to repair the tear. The medical expenses associated with this
operation are at the heart of this appeal.
II.
The defendants’ first issue concerns the way the proof concerning the medical expenses came
in at the trial. When plaintiff’s lawyer took the deposition of the orthopaedic surgeon he asked the
witness if he had a copy of his bill. Receiving an affirmative answer, the lawyer asked the doctor
to make his bill an exhibit. The bill appears as an exhibit to the deposition but the doctor was never
asked if his charges were “reasonable and necessary.” When the defendants’ lawyer at trial objected
to the evidence of the doctor’s charges, the trial judge said that the plaintiff’s lawyer had come to
the trial unprepared, but the judge allowed the plaintiff to take and file another deposition from the
doctor containing the magic language. The defendants assert on appeal that the court erred in doing
so.
The defendants did not cite any authority for this proposition. On the other hand, neither did
the plaintiff cite any authority to support the trial court’s act of benevolence, which measurably
helped the plaintiff’s case. We, however, believe that the allowance of the supplementary proof was
a matter well within the sound discretion of the trial judge.
Parties have been allowed to reopen the proof after both parties have rested, Crews v. United
Beneficial Ins. Co. of Omaha, 472 S.W.2d 887 (Tenn. Ct. App. 1971); after the defendant moved
for a directed verdict, Bellisomi v. Kenney, 206 S.W.2d 787 (Tenn. 1948); after closing arguments,
Thompson v. Clendening, 38 Tenn. 287 (1858); and in rebuttal, although the evidence should have
been introduced as a part of the plaintiff’s proof in chief. Pack v. Boyer, 438 S.W.2d 754 (Tenn. Ct.
App. 1968). We find this issue to be without merit.
III.
The heart of the defendants’ appeal lies in the contention that there is no proof that the rotator
cuff tear was caused by the accident on April 10, 1999. Her surgeon said that he could not give an
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opinion with any degree of medical certainty as to when the tear occurred. Although the August
accident appears to have involved a much slighter impact than the April accident the surgeon
testified that rotator cuff ruptures could be caused by the act of forcefully gripping the steering wheel
and jerking the arm.
The defendants insist that causation must be proved by expert medical proof. That is the rule
in “most cases.” See Tindall v. Waring Park Association, 725 S.W.2d 935 (Tenn. 1987). But the
court added this qualification: “If, however, equivocal medical evidence combined with other
evidence supports a finding of causation, such an inference may nevertheless be drawn by the trial
court . . . .” Id. At 937. See also, Patterson v. Tucker Steel Co., 584 S.W.2d 792 (Tenn. 1979).
These cases are all worker’s compensation cases where the issue has been debated extensively. See
Owens Illinois, Inc. v. Lane, 576 S.W.2d 348 Tenn. 1978). We think, however, that the principle
to be applied is the same. Causation may be established by a combination of medical and lay
testimony.
The trial judge found as a fact that the injuries incurred in the August accident were not as
severe as the injuries incurred in the April accident. Therefore the court found that the April accident
was the primary cause of the injury that ultimately required surgery. These findings are presumed
to be correct unless the preponderance of the evidence shows otherwise. Rule 13(d)), Tenn. R. App.
P. We think that from the evidence in the record a rational trier of fact could have found that the
plaintiff had a condition involving her rotator cuff prior to the accident on April 10, 1999, but that
the accident on that date caused the rotator cuff tear which ultimately required surgery. Therefore
the contrary evidence, which admittedly casts doubt on the plaintiff’s proof, does not preponderate
against the trial court’s findings.
IV.
The plaintiff asks this court to increase the damages and to award her some of her
discretionary costs. We are satisfied, however, that the trial court reached the correct result.
The judgment of the court below is affirmed and the cause is remanded to the Circuit Court
for Davidson County for any further proceedings necessary. Tax the costs on appeal to the
appellants, Andrew R. Dyer and Jennifer L. Dyer.
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BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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