CHARLES D. SUSANO, JR., P.J.
Johnny Pyle sued Betty Mullins for personal injuries sustained in a three-vehicle accident.
The basic facts in this case are essentially undisputed. This accident occurred on October 28, 2010, at the intersection of Kingston Pike and Campbell Station Road in Farragut. Pyle, operating a Toyota pickup truck pulling a trailer with lawn equipment in it, was stopped behind another vehicle at a traffic light. Mullins was driving a Lincoln sedan. She struck the rear of Pyle's trailer, thereby forcing Pyle's truck into the car ahead of him. Pyle was taken from the scene to the hospital by ambulance. After being x-rayed, he was diagnosed with a cervical strain and released. A week after the accident, Pyle, a landscaper, began chiropractic treatment for his complaints of continued neck and back pain.
In September 2011, Pyle sued Mullins for negligence. Pyle sought $75,000 in compensatory damages for his pain and suffering, past and future medical expenses and other damages stemming from the "serious and painful bodily injuries" he allegedly sustained in the accident. As previously noted, Mullins admitted liability. The sole question going forward pertained to the issue of compensatory damages.
At the time of the July 2012 trial, Pyle, then 51, continued to work in his landscaping and mowing business. He testified he had worked as a contract laborer since he was a teenager and had never had any health problems before the accident. Pyle conceded that, during discovery, he forgot to state that he was involved in another accident on September 17, 2010, in which a car struck the side of a different trailer he was pulling. Pyle said he suffered no injuries and never sought any treatment in the earlier accident.
Trooper Kevin Stroup of the Tennessee Highway Patrol investigated both accidents. Regarding the Mullins/Pyle accident, he observed damage to the trailer Pyle was pulling, to the back and front of his truck, and to the rear of the car that was stopped in front of Pyle. He saw scuffs and scratches on the front of Mullins' car that correlated with the damage to Pyle's trailer. He did not observe the same scratches and marks when shown a photograph of Mullins' car purportedly taken after it was washed following the accident. In his report, Stroup estimated damages of over $400 to all three cars. Stroup testified that he was also called to the scene of the earlier wreck involving Pyle. There were no injuries, but the vehicle that struck Pyle sustained disabling damage.
Mullins, 74, testified she did not know how the accident happened — she pushed the brake and then struck Pyle. Mullins said there was little visible damage to her car. She continued to drive it and decided not to have the estimated $904 in damages repaired. Mullins was uninjured. The impact did not cause her car's front air bags to deploy. Contrary to Pyle's testimony, Mullins said she approached Pyle after the accident to ask if he was okay, to which he replied, "I think so." Mullins agreed there were four vertical scratches to the front of her car that matched the bars on the back gate of Pyle's trailer. She acknowledged her deposition testimony to the effect that she saw the gate of the trailer was bent in. She added that she knew her car had made contact with the bottom of the trailer, but said,
Mullins admitted that on the day of the accident with Pyle, she learned about his September 17 accident as a result of a conversation between the driver of the third vehicle and Trooper Stroup. She admitted she did not mention her knowledge of Pyle's accident in answer to an interrogatory which asked her to identify anyone she talked to about the accident at the scene or thereafter and to state "all you remember about such conversation."
Kendal Hicks, Pyle's employee, testified that before the accident, Pyle worked in the lawn business "like a 25-year-old man." After the accident, Pyle could "hardly get in and out of the truck." John Tindell, a friend of Pyle, testified that he also owned a lawn business and had helped Pyle in the months after the accident. He had seen a decrease in Pyle's ability to do the required physical work.
Dr. Chad Jacobs, a chiropractor, first saw Pyle on November 4, 2010. Pyle complained of being in constant pain since the accident with Mullins. He suffered from neck, arm, shoulder and back pain, sleep difficulty, headaches, and stiffness. On examining him, Dr. Jacobs found that, in addition to daily headaches, Pyle had severe restrictions as to his range of motion in his neck and difficulty bringing his hand away from his body. X-rays showed the main problem was a decrease in the cervical curve. Jacobs diagnosed Pyle with cervical, thoracic, and lumbar shoulder sprain or strain. In 25 sessions over the course of ten weeks, Dr. Jacobs performed adjustments to Pyle's spine in an effort to return his cervical curve to its pre-accident condition. He used traction, and applied muscle stimulation. Pyle's intensity of pain decreased and, in many areas, the spasms went from severe to mild. His range of motion increased in all areas. By January 13, 2011, Dr. Jacobs felt that Pyle had benefitted as much as he could from chiropractic treatment and released him with no restrictions. Because Pyle still had pain and decreased range of motion in his shoulder joints, Dr. Jacob ordered MRIs of the left shoulder and cervical spine to make sure that Pyle had not "torn something." Dr. Jacobs was certain that the injuries for which he treated Pyle were caused by the accident.
Dr. Jonathan Degnan testified as an expert orthopedic surgeon. Pyle first came to see him in May 2011 for neck and upper back pain. He found that Pyle had some spasm and trigger point that limited his range of motion. He diagnosed Pyle with a chronic cervical strain — a soft tissue injury — for which he prescribed trigger point injections and physical therapy. He explained muscle spasms of the spine can continue for a long time, but noted that six months after an accident was unusual, although not as unusual with someone who did manual labor. Dr. Degnan testified that six months out, he was treating Pyle for both scar tissue and inflamed tissue, which causes treatment to take longer. He explained that muscles normally heal after about six weeks with proper treatment, but can be easily reinjured before then, causing the healing process to start over. He testified that determining the severity of such an injury relied on the truthfulness of the patient and any objective findings. Pyle continued injections until August and completed the prescribed physical therapy on September 13, 2011. At that point, Dr. Degnan found that Pyle had reached maximum medical improvement. He did not believe Pyle would suffer any permanent injury as a result of the accident and felt he could return to his normal daily activities. He opined, to a reasonable degree of medical certainty — based on the truth of the history Pyle gave him, and the fact that he was asymptomatic prior to the October 28 accident — that Pyle's symptoms were the result of the accident.
Dr. Fred Killeffer testified as an expert neurosurgeon for the defense. Four weeks before trial, Dr. Killeffer reviewed all of Pyle's medical records, took new x-rays and, examined Pyle. He concluded Pyle's initial x-rays revealed a "mild straightening of the cervical spine but no [other] evidence of trauma" and "some degenerative changes. . . but nothing else." Dr. Killeffer agreed that Pyle sustained a cervical strain in the accident. On his review of Pyle's February 2011 MRIs, he found no evidence of trauma at all. On his own examination, he found Pyle to have normal curvature of the neck, no side to side displacement, and no muscle spasm. Pyle further had mild tenderness in the area of the muscles over his shoulders, good range of motion of his shoulders, arms, and joints and normal reflexes. Testing of his neck showed that Pyle was "reasonably within the range of normal" — he had a slight tilting of his head to the right side but "nothing of any significance." Dr. Killeffer reported his physical examination of Pyle as "basically . . . normal." Dr. Killeffer formed three conclusions as a result of his observations: (1) Pyle sustained a mild to moderate soft tissue cervical spine strain as a result of the accident, with expected results including mild to moderate pain lasting for up to 10 to 14 weeks, but not beyond; (2) reasonable treatment would include mild oral analgesics and noninvasive physical therapy for 8 to 10 weeks after the accident; and (3) Pyle sustained no permanent impairment as a result of the accident.
Pyle introduced proof of his medical expenses totaling $19,120.62. Pyle explained he did not claim any lost income because the accident occurred near the end of the mowing season. He testified he just wanted "to be done right." At the close of the proof, the jury returned a verdict awarding Pyle $15,000 in damages. The trial court denied Pyle's subsequent motion for an additur or new trial. The court awarded Pyle discretionary costs in the amount of $4,467.25. Pyle's timely appeal followed.
Pyle raises issues that we essentially restate and address as follows:
Regarding this Court's review of an approved jury verdict, the Supreme Court recently observed:
Trial judges have broad discretion in controlling the course and conduct of a trial. See
Whether a jury has been properly instructed is a question of law.
Pyle asserts that the award of $15,000 is both inadequate and unsupported by the evidence. He reasons that the award "does not even pay [his] medical expenses, much less allow him any award for pain and suffering. In response, Mullins succinctly sets out the relevant line of inquiry, as follows:
In personal injury cases the amount of compensation is primarily for the jury to determine. If there is any material evidence to support the award, it should not be disturbed.
In his complaint, Pyle sought $75,000 in compensatory damages for his injuries — headaches, sleeplessness, back and neck pain, pain and suffering, and medical bills, including ambulance and hospital charges, chiropractic treatment, physical therapy, MRIs, and other medical expenses. He did not claim any damages for lost wages or decreased earning capacity. At trial, Pyle testified to his injuries from the accident and their effect on his life. He began seeing Dr. Jacobs for his continuing pain and soreness some two to three weeks after the accident. Over the next two and a half months of treatment, Pyle initially saw some improvement — his lower back pain and daily headaches soon resolved; but he had continuing pain in his neck and upper back, between his shoulder blades. The discomfort left him unable to sleep comfortably. Pyle declined to take pain medications because they upset his stomach. Instead, Dr. Jacobs prescribed a "TENS Unit," a device that administered a small shock to the area of the pain. Pyle said this helped, but that the pain always returned. Dr. Jacobs released Pyle in January 2011 with no physical or work restrictions. On releasing him, Dr. Jacobs ordered MRIs to further determine the cause of Pyle's complaints of continuing neck and back pain.
In May 2011 — some seven months after the accident and four months after being released by Dr. Jacobs — Pyle saw Dr. Degnan. A friend had referred him to the doctor. Dr. Degnan performed a series of trigger point injections at the site of the pain and prescribed physical therapy. In September 2011, Dr. Degnan opined that Pyle had reached maximum medical improvement and released him with no restrictions. Following his release, Pyle received no further medical treatment. He testified that he continued to suffer pain in his neck and between his shoulder blades. Pyle testified he "kept getting a little better" with the treatments he underwent, but added, "I never have to this day been able to function like I [did] before the accident." He explained that at home, he found it difficult to lift his young children or play sports with them. At work, he could not push a wheelbarrow anymore, pick up anything heavy, or sit on a mower for long periods of time. Pyle said he imposed his own limits on his activities because he knew what he was and was not capable of doing.
Pyle introduced proof that he incurred a total of some $19,000 in medical expenses from the time of the accident to the trial. He introduced a breakdown of his medical expenses as follows:
Undoubtedly referring to the testimony of Mullins' medical expert, Dr. Killeffer, Pyle asserts in his brief that "[t]he only medical evidence disputing the length of time and expense required for treatment of Mr. Pyle's admitted causally-related cervical strain is insufficient to deny him adequate compensation." Generally summarized, Dr. Killeffer testified that Pyle's cervical strain would have resolved within 10 to 14 weeks after the accident. Dr. Killeffer thus held the opinion that the MRIs and other treatment Pyle obtained after being released by his chiropractor in January 2011 were unrelated to the injury he sustained in the accident. As a result, Dr. Killeffer expressly opined that the cost of the MRIs, and all of the treatment by Dr. Degnan, including the physical therapy he ordered, were not reasonable and necessary expenses in the case at bar.
Dr. Degnan testified he would not have ordered MRIs for one who had experienced only a soft tissue injury because MRIs six months after an accident would not show subtleties in the tiny nerves. As a consequence of this, he concluded that the MRIs Pyle underwent were not medically necessary.
In the present case, the jury was left to consider the differing opinions of the parties' expert medical witnesses — Dr. Degnan and Dr. Killeffer — regarding the nature, effects and treatment of the cervical spine strain Pyle sustained in the accident. First, we note that both experts agreed that the MRIs Pyle underwent, at a cost of $3,790, were not medically necessary. As Dr. Degnan explained, he would not have ordered an MRI because nothing indicated that Pyle suffered more than a soft tissue strain, an injury for which an MRI is not an appropriate evaluation tool. The jury further heard Dr. Killeffer's expert opinion that the type of injury Pyle had would not have been symptomatic any longer than 10 to 14 weeks after the accident. Thus, any medical expenses he incurred after being discharged by his chiropractor were not reasonable or necessary expenses for which Mullins is liable. Assuming the jury credited Dr. Killeffer's testimony, it was appropriate for them to deduct $11,851.24 — representing all the medical expenses Pyle incurred after Dr. Jacobs released him in January 2011, without restrictions — from the total claimed expenses. Consequently, the jury could have found that Pyle incurred $7,269.38 in reasonable and necessary medical expenses as a result of the accident. Given the total award of $15,000, it follows that the jury awarded Pyle an additional $7,730.62 for his other claimed elements of damages.
Certainly, there was other, contradictory expert testimony by Dr. Degnan upon which the jury could have arrived at a different result. Had they accepted Dr. Degnan's opinion, the jury could have concluded that, as a result of the accident, Pyle sustained a chronic cervical strain that required further, extended treatment. Any such possibility, however, is not the question. Again, our review of the jury's award of damages "is subject to the rule that if there is any material evidence to support the award, it should not be disturbed."
Pyle asserts that the trial court erred in refusing to instruct the jury with respect to a defendant's liability for the aggravation of a plaintiff's pre-existing condition. In support of his conclusion that such an instruction was required, Pyle contends that the evidence at trial clearly shows (1) that he had a pre-existing "degenerative disk disease" in his neck at the time of the accident and (2) that, as a result of this condition, the effects of the injury he sustained became a chronic condition that necessitated extended treatment.
To begin, the rule is that a trial court "should give a requested instruction if it satisfies three requirements: (1) it is supported by the evidence, (2) it embodies the party's theory, (3) it is a correct statement of the law."
204 S.W. at 301. Regarding a tortfeasor's liability for damages stemming from the aggravation of a plaintiff's pre-existing condition, Pyle correctly recites the law. The insurmountable problem with his position is that, in the present case, there is no expert medical proof of aggravation of a pre-existing condition. Pyle's reliance on the testimony of Dr. Degnan is unpersuasive. Dr. Degnan testified that the MRI showed Pyle has "degenerative changes" at three levels of his cervical spine. He testified that these changes occurred over time and were present before the accident. Dr. Degnan was examined regarding the relationship between degenerative changes and neck pain and testified as follows:
In refusing the requested jury charge, the trial court, in an exchange with Pyle's counsel, explained its ruling. We quote pertinent portions of the exchange:
On our review of the record, we conclude that the trial court accurately summarized the evidence in support of its ruling. In summary, Dr. Degnan opined that a person with degenerative changes like those Pyle has is more susceptible to injury and pain and that it was common for a motor vehicle accident — or any kind of trauma — to cause some neck pain to manifest itself in a person with degenerative changes. As the trial court correctly noted, Dr. Degnan did not testify that the accident aggravated or exacerbated Pyle's condition or had any specific effect on it at all. In short, we conclude that Dr. Degnan's generalized observations about susceptibility and common correlations between neck pain and "[a]nything that causes an excessive range of motion to an abnormal joint" is not material evidence sufficient to support the requested instruction in the present case. To the contrary, we conclude that giving an instruction on aggravation of a pre-existing condition in the case at bar would have been error. "An instruction on an issue where there is no evidence in the record raising that issue is erroneous."
Lastly, Pyle asserts that a "series of evidentiary rulings and comments by the trial court" deprived him of a "full and fair opportunity to present his case." In particular, Pyle challenges the exclusion of evidence which, he says, was offered to show "the force of the impact and the capability of this accident to have caused a cervical strain serious enough to still exhibit objective signs of the injury six months later. . . ." (Emphasis in original.)
First, Pyle contends that the trial court erred in refusing to allow certain testimony by Trooper Stroup, the investigating officer. When Pyle's counsel asked Stroup whether Mullins told him she thought her brakes had gone out, defense counsel objected. The trial court questioned the relevance of the inquiry in light of Mullins' admission of liability. The court further stated:
In further questioning, Pyle's counsel asked the trooper, "and you didn't find anything wrong with the brakes?" The following exchange took place:
Ms. Holt next questioned Stroup whether the damages he observed at the scene were "consistent with someone bumping the trailer at less than 15 miles an hour?" When defense counsel objected, the trial court advised Ms. Holt to "lay some groundwork first." After generally questioning the trooper as to his experience in investigating accidents, the examination continued as follows:
The record reflects no further examination by Ms. Holt regarding the estimated speed at which Mullins was traveling. Moreover, Pyle made no offer of proof with respect to counsel's attempts to examine the witness on either subject. We hold that there is no error shown in this record with respect to this testimony and the trial court's comments about it.
Similarly, we find no error in the trial court's refusal to allow Pyle to testify to his observations of Mullins' car based on photographs that were taken some eighteen months after the accident. The trial court ruled that Pyle's observations were irrelevant because he did not personally view her car at the time of the accident and therefore had no basis to make a comparison. The photographs in question were subsequently entered into evidence through Mullins' testimony. Thus the jury was presented with "before and after" photographs of Mullins' vehicle, heard testimony concerning the damage to Mullins' vehicle, and could draw its own conclusions.
The jury heard from Pyle how he was suddenly struck from behind. He testified to the force of the impact — how he was forced into the car ahead of him and thrown back into his seat. He described in great detail the damage to his trailer, truck and the mower he was hauling. For her part, Mullins acknowledged that she struck Pyle's trailer and observed damage to its back gate. Numerous photographs depicted the damage to Pyle's property and Mullins' vehicle. Trooper Strout also testified to the damage he observed to all three vehicles, which he estimated at over $400 per vehicle. Both the trooper and Mullins testified that marks to the front of Mullins' car correlated to the bars on the back of Pyle's trailer. Pyle testified that he tried to exit the truck, but immediately realized he was hurt and stayed inside. He left the scene by ambulance. Through his medical expert, Dr. Degnan, Pyle was able to establish how his injury was caused. Dr. Degnan explained "it's not how fast you go, it's how quickly you stop," noting that when you are hit from behind and then run into something in front of you, your body absorbs the energy as you decelerate and can cause cervical injuries.
We conclude that Pyle's repeated efforts to establish, through Trooper Stroup, that there was nothing wrong with Mullins' brakes was irrelevant given her admission of liability for the accident, whatever the cause. Further, Pyle's counsel seemingly abandoned her effort to establish that Mullins was traveling at more than 15 miles per hour, the estimated speed she stated in her deposition testimony. Notably, Trooper Stroup was not offered as an expert in accident reconstruction, and Pyle offered no expert witness on this matter. Moreover, no offer of proof was made with regard to Stroup's testimony. In the absence of an offer of proof and the inclusion of the excluded testimony in the record, this Court cannot consider the alleged errors. See
In view of the evidence presented, we cannot agree with Pyle's contention that he was not permitted to present evidence in support of his contention that the "force of the impact" resulted in a serious, prolonged injury. The record is replete with evidence about the accident itself. Again, the case for damages boiled down to a question of whether Pyle was injured and, if so, to what extent? The trial court emphasized this when it explained the basis for his evidentiary rulings regarding Trooper Stroup's testimony, as follows:
Pyle also contends that the trial court impermissibly restricted his ability to show that Mullins' testimony at trial was inconsistent with her pre-trial admission of liability and payment of Pyle's property damages. In particular, Pyle's counsel sought to elicit testimony from Mullins that "the `responsibility' she had taken included paying for the repairs of the very damage she was now questioning had been sustained in this accident." Pyle refers to testimony by Mullins that she "just couldn't believe the way his trailer looked," and that "the trailer was so tall and there's no way my car could have hit enough to make a dent, I don't think. . . ." When counsel sought to question Mullins whether she "took responsibility for all of the damage to these vehicles," the trial court asked how the inquiry was relevant and concluded, "No, that's been stipulated to start with in the answer." Ultimately, in addition to her admitted liability, which was repeatedly communicated to the jury, Pyle elicited Mullins' admission that marks on the front of her vehicle correlated with the bars on the back of the trailer. Mullins further acknowledged her deposition testimony that she also observed the back of the trailer was dented. In light of such evidence, we do not agree that the trial court erred by limiting further questioning of Mullins regarding her responsibility, actual or perceived, for the accident.
Pyle further asserts that the trial court erred in excluding character testimony from Jeff Boggan, one of Pyle's customers. Boggan, a resident of Village Green Subdivision, testified Pyle mowed his lawn and he had known Pyle for 5 years. He testified Pyle was under contract by the homeowner's association to mow all of the lawns in the subdivision. Pyle asked Boggan whether he was "familiar with [Pyle's] reputation in that area for honesty?" In response, defense counsel objected as to relevance. The trial court sustained the objection. At the close of trial, Pyle made an offer of proof that "Boggan would have said he knew [Pyle's] reputation in that community for honesty." The following ensued:
The Supreme Court has addressed the admissibility of character evidence pursuant to Tenn. R. Evid. 608(a) as follows:
In the present case, Pyle's character for truthfulness was certainly attacked when he was cross-examined extensively regarding his failure to include the fact of his earlier accident in prior sworn testimony. As a result, Pyle was entitled to introduce evidence of his reputation for truthfulness. At the same time, before a witness may be permitted to testify to another person's character for truthfulness, a proper foundation must be laid. That is,
Lastly, Pyle contends that the trial court erred in denying his motion in limine that sought to exclude evidence of the earlier motor vehicle accident. In his motion, Pyle argued that evidence regarding the September 17 accident should be excluded as it could "introduce confusion" to inform the jury of an unrelated accident that did not involve personal injury or the same trailer. The trial court's ruling on the motion in limine is not before us. However, both parties appear to agree that the trial court denied the motion based on its conclusion that the subject testimony was relevant to the issue of Pyle's credibility. As a result, Mullins was permitted to question Pyle with respect to his failure to mention the accident in prior sworn testimony on two separate occasions.
"Our cases have consistently held that a prior inconsistent statement is admissible under the Rules of Evidence when the prior statement is used to impeach the credibility of a witness."
We have reviewed each of Pyle's allegations of error and conclude there was no reversible error in the trial court's evidentiary rulings. "If no errors occurred during the trial, or if any errors occurred but were harmless, the judgment based on the verdict should stand."
The judgment of the trial court is affirmed in toto. This case is remanded, pursuant to applicable law, for enforcement of the trial court's judgment and the collection of costs assessed below. Costs of appeal are taxed to the appellant, Johnny Pyle.
