                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                            September 15, 2008 Session

BARBARA STRICKLAN and husband, REED STRICKLAN, v. JOHNNY C.
                       PATTERSON

                   Direct Appeal from the Circuit Court for Monroe County
                    No. V02342H       Hon. John B. Hagler, Circuit Judge



                No. E2008-00203-COA-R3-CV - FILED NOVEMBER 4, 2008



In this action for damages for personal injuries sustained in an automobile accident, the jury returned
verdicts for the plaintiffs. Defendant has appealed and on appeal raises the issues of whether there
was sufficient and competent proof to support plaintiff’s claim for medical expenses; whether the
Court erred in allowing plaintiff's treating physician to offer an opinion on permanent impairment,
and he questioned whether the jury verdict was contrary to the "weight of evidence". On appeal, we
affirm the Judgment of the Trial Court.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Toby R. Carpenter, Knoxville, Tennessee, for appellant, Johnny C. Patterson.

John Carson, III., Madisonville, Tennessee, for appellees, Barbara Stricklan and husband, Reed
Stricklan.



                                             OPINION


                Plaintiffs Barbara and Reed Stricklan brought this action to recover damages for
injuries sustained by Ms. Stricklan in a motor vehicle accident with defendant, Johnny C. Patterson,
which occurred on December 31, 2001.
                 At the pleading stage, Ms. Stricklan’s initial Answers to Interrogatories, showed that
she claimed that her neck and left shoulder were injured in the accident, and that she had a prior
history of five ruptured discs in her neck. She responded to Requests to Admit propounded by
Defendant in July 2006 wherein she admitted that in late December 2003 she slipped and fell and
sustained an injury to her neck for which she obtained medical treatment. Dr. Joel Ragland, a
neurosurgeon, was Ms. Stricklan’s treating physician in connection with the injuries she sustained
in the accident. In his deposition he testified regarding two such 1994 surgeries based on her
medical records. He stated that in 1994 his partner, Dr. Sanders, had performed a cervical fusion
from the third vertebrae to the sixth vertebrae and that she had done well following the procedure
until December 2001 when the accident occurred. Dr. Ragland testified that he first saw Ms.
Stricklan in his office on September 27, 2002 and she gave a history of neck pain since a December
31, 2001 motor vehicle accident. She also gave a history of the two spinal fusions in 1994 and stated
that she had not had problems with her neck between 1994 and the accident in 2001. She stated that
since the 2001 accident she had pain on the left side of her neck, down into her shoulder blade and
out to the joint part of her shoulder. She did not have numbness in her hands but she had difficulty
turning her head. Dr. Ragland’s diagnosis was cervical strain as in a whiplash-type injury causing
soft tissue injury and continued pain. He recommended home traction therapy as well as physical
therapy. He saw her in his office again on October 10, 2002 and she told him that the traction
therapy only delivered temporary relief. He ordered muscle relaxants and a myelogram. The
myelogram was mildly abnormal but surgery was not indicated. On November 15, 2002 she
presented with continued left side neck pain that radiated out to her shoulder area. Dr. Ragland
explained that the pain in the shoulder area was related to the neck pain. He recommended epidural
steroid injections. At that point his impression was as follows:

               My feeling was that she had more of a soft tissue musculoskeletal type of pain due
               to the whiplash injury as opposed to what I call a neuropathic type of problem. In
               other words, I didn’t feel that she had a pinched nerve causing her pain as much as
               a ligament, muscle and joint type of a problem cause the pain.

The epidural treatment did not bring any significant relief and in mid-January 2003 Dr. Ragland
released Ms. Stricklan from his care as he had done as much for her as he could.

                Ms. Stricklan returned to Dr. Ragland’s office in October 2003 with continued
complaints of neck pain and also complaints of left shoulder pain. He stated that she had more pain
with motion of the shoulder than he had noted before. Further, he referred her to Dr. Holloway, an
orthopedist, for an evaluation of her shoulder pain. She returned to see Dr. Ragland on December
12, 2003 and still complained of neck pain. Dr. Holloway had ordered an MRI that showed a torn
rotator cuff on the left side. In January 2004 Dr. Ragland saw Ms. Stricklan for the last time. She
complained of neck pain and he still related it to a whiplash type injury to the cervical spine cause
by the December 2001 motor vehicle accident. At that point, he did not think he could do anything
more medically for her.

               At trial, Ms. Stricklan in her testimony, stated she was unaware of when she tore her


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rotator cuff which was diagnosed by Dr. Holloway. She stated she was only asking the jury to
compensate her for the injuries to her neck and not the injuries to her left shoulder associated with
a torn rotator cuff. She was shown an medical expense summary exhibit, and she testified that none
of the listed expenses pertained to the cow incident1 or to Dr. Holloway’s diagnosis and treatment
of the torn rotator cuff.

                 Dr. Ragland gave his opinion as to the cause of Ms. Stricklan’s neck injury and as to
whether the medical expenses associated with the neck injury were reasonable and medically
necessary and related to the December 31, 2001 accident. His opinion was offered with the caveat
that he was unable to express an opinion regarding Ms. Stricklan’s left shoulder injury. Dr. Ragland
testified as follows:

               Q.      Were the injuries that you saw that Ms. Stricklan suffers from consistent with
                       those of a person who was involved in a motor vehicle rear-end collision on
                       December 31, 2001 . . . .

               A.      Yes. They sure could be.

               Q.      Would you expect these particular injuries to her neck to shorten Ms.
                       Stricklan’s life expectancy?

               A.      I would not think so.

               Q.      . . . [W]ould her neck now be more susceptible to injury as a result of any
                       other type of trauma?

               A.      . . . The pain and irritability that is there may make it more sensitive to injury
                       as in causing more pain, but I don’t think it makes her more likely to have a
                       structural injury of her neck by the fact that she has these symptoms.

               Q.      Is her condition likely to worsen as she gets older?

               A.      No. I don’t know that it’s likely to get better either, but I can’t say within a
                       reasonable degree of medical certainty that it’s more likely to worsen or get
                       better. . . .

               Q.      Is she likely to have more pain as she gets older . . . ?


       1
         On October 4, 2003, the Stricklans were running cattle to the barn when Ms. Stricklan was
knocked over and stepped on by a cow. She was taken to the emergency room and diagnosed with
a ruptured ligament in her left knee. At trial, defendant introduced emergency room records from
April 4, 2002 that showed Ms. Stricklan’s complaints were “L-shoulder, L-leg pain” and that the
diagnosis was “contusion L-leg.”

                                                  -3-
               A.      I cannot really say that she’s likely to have more pain as time goes by . . . .

               ...

               Q.      Are you aware of any medical treatment available to Ms. Stricklan at this
                       time that would benefit her condition?

               A.      No.

               Q.      Do you have an opinion as to whether she will continue to have pain and
                       limitations because of the injuries suffered on 12/31/01?

               A.      I expect that she will, but again, predicting that is very difficult.

               Q.      Do you have an opinion within a reasonable degree of medical certainty as to
                       whether she will need further treatment in the future as a result of the injuries
                       she suffered on December 31, 2001?

               A.      She may need some medication intermittently for symptom control. That is
                       the most I can think of at this point that she may need.

               Q.      Do you have an opinion . . . whether Ms. Stricklan will develop either
                       arthritis or degenerative changes as a result . . . of these injuries . . . ?

               A.      I cannot say that within a reasonable degree of medical certainty.

                On cross-examination, Dr. Ragland stated Ms. Stricklan gave a history to him in
2002, after the accident, of doing “fairly well” and that she was “without any problems” following
the 1994 surgeries. Defense counsel pointed out that Ms. Stricklan had complained of neck pain to
her primary care physician in 1999. Dr. Ragland responded that he was unaware of a complaint of
neck pain in 1999, but it would not surprise him. Defense counsel placed in the record, Dr. Smith’s
note dated October 30, 2001 which states “[t]hree month follow-up; pain in both shoulders” and
“[b]ones are sore in arm”. Dr. Smith was not called as a witness to testify regarding his notes.
Defense counsel also read into the record Parkwest Emergency Room records of April 4, 2002
regarding Ms. Stricklan’s being “trampled” by a cow: “Trampled by cow, left shoulder, left leg
pain”.

                 Dr. Ragland agreed under cross-examination that he had not seen Ms. Stricklan the
three years prior to trial and that he had not included an evaluation of her permanent impairment due
to neck pain in his record. He conceded that he had not considered whether she had a permanent
impairment until the morning of trial. He stated that between the time he first evaluated her in 2002
and his last visit with her in January 2004 he “would have plenty of time to determine whether she
had any - - was having any improvement in her condition or whether she was stable in her condition


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with her complaints . . . .”

                The jury awarded Ms. Stricklan $65,000.00 damages, and Mr. Stricklan $10,000.00
for loss or consortium. Defendant has appealed and raises these issues:

                A.      Whether plaintiff offered sufficient and competent proof to support her claim
                        for medical expenses?

                B.      Whether the Trial Court erred when it allowed the testimony of Dr. Joel
                        Ragland regarding Barbara Stricklan’s permanent impairment?

                C.      Whether the verdict of the jury was contrary to the weight of the evidence?

                 The standard of review of a jury verdict is well settled that findings of fact by a jury
in civil actions will be set aside only if there is no material evidence to support the verdict. Tenn. R.
App. P. 13(d). The Supreme Court, in Whaley v. Perkins, 197 S.W.3d 665 (Tenn.2006), addressed
the approach appellate courts should take when determining whether there is material evidence to
support a jury verdict as follows:


                [A]n appellate court shall : (1) take the strongest legitimate view of all the evidence
                in favor of the verdict; (2) assume the truth of all evidence that supports the verdict;
                (3) allow all reasonable inferences to sustain the verdict; and (4) discard all
                countervailing evidence. Appellate courts shall neither reweigh the evidence nor
                decide where the preponderance of the evidence lies. If the record contains “any
                material evidence to support the verdict, the jury's findings must be affirmed; if it
                were otherwise, the parties would be deprived of their constitutional right to trial by
                jury.”


Whaley, at 671.

                Whether the evidence is material does not relate to the weight of the evidence. Kelley
v. Johns, 96 S.W.3d 189, 194 (Tenn. Ct. App.2002). “Rather, it involves the relationship between
the proposition that the evidence is offered to prove and the issues in the case.” Id. On appeal, the
Court’s task is “to determine whether the record contains any evidence relating to the matters at
issue which, when reviewed in a light most favorable to the prevailing party, supports the jury's
verdict.” Id. at 195.

              The admissibility of expert testimony is within the discretion of the trial court.
Waters v. Coker, No. M2007-01867-COA-RM-CV, 2008 WL 4072104 at * 6 (Tenn. Ct. App. Aug.
28, 2008). Under the abuse of discretion standard, a trial court's ruling “will be upheld so long as
reasonable minds can disagree as to the propriety of the decision made.” Eldridge v. Eldridge, 42

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S.W.3d 82, 85 (Tenn.2001). The abuse of discretion standard does not permit the appellate court to
substitute its judgment for that of the trial court. Id.


                 The trial court’s conclusions of law are reviewed under a purely de novo standard
with no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). A plaintiff
is required to present competent proof regarding the reasonableness and necessity of claimed medical
expenses. Jackson v. Sunkenberg, E1999-2271-COA-R3-CV, 2000 WL 66045 at * 2 (Tenn. Ct.
App. Jan. 27, 2000). An injured plaintiff can recover for reasonable and necessary medical expenses
associated with the treatment of the injury. However, in order to recover for these expenses, expert
opinion must be offered regarding the reasonableness and necessity of the physician’s services and
charges. See, Roberts v. Davis, No. M2000-01974-COA-R3-CV, 2001 WL 921903 at * 4 (Tenn.
Ct. App. Aug. 7, 2001).


                Defendant contends plaintiffs did not offer competent evidence to support a claim for
Ms. Stricklan’s medical expenses, and points to the fact that Dr. Joel Ragland testified in his
deposition that Ms. Stricklan had $18,403.61 of medical expenses and at trial counsel for plaintiffs’
produced a “Medical Expense Summary” that showed a total of $14, 335.61 for Ms. Stricklan’s
medical expenses. Dr. Ragland, however, did not testify that all of the medical expenses included
in the $18, 403.61 figure were associated with Ms. Stricklan’s injuries caused by the motor vehicle
accident. In fact he went through the bills attached to the summary of medical bills presented at his
deposition and discussed in detail the expenses that were not connected to the injury caused by the
accident, and stated that the bills associated with Ms. Stricklan’s torn rotator cuff shoulder injury,
which was treated by Dr. Holloway, were not related to the accident.2 Dr. Holloway’s bills are
identified as are the bills for the unrelated radiology studies referenced by Dr. Ragland. Dr.
Ragland’s testimony forms the basis for and supports the summary of medical expenses of
$14,335.61 presented to the jury.


               Under the abuse of discretion standard, the Trial Court Judge did not err by allowing
into evidence the expert testimony of Dr. Ragland and the Exhibit regarding the medical expenses
of Ms. Stricklan. We find this issue to be without merit.


               The abuse of discretion standard is also applicable to defendant’s contention that the
Trial Court should not have admitted Dr. Ragland’s testimony regarding his assessment of Ms.
Stricklan’s permanent impairment.


               Defendant contends that Dr. Ragland was of the opinion that Ms. Stricklan had a


       2
         Plaintiff did not claim that the rotator cuff injury was associated with the accident. In fact
she affirmatively stated that she did not know the source of that injury.

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permanent impairment of three percent “as a result of injuries from the accident with Mr. Patterson.”
Further, defendant contends that Dr. Ragland did not have a sufficient basis upon which to form this
opinion because the permanent impairment opinion does not appear in Dr. Ragland’s records; he
never examined Ms. Stricklan to determine the degree of impairment; and he had not seen Ms.
Stricklan in three years at the time he made the assessment. Dr. Ragland’s testimony, however,
provides that based on Ms. Stricklan’s history and the studies he had performed he was able to
diagnose her as having a “whiplash type injury to the cervical spine resulting in a soft tissue injury
of the structure of the neck”, and as to the assignment of a permanent impairment of three percent,
he testified as follows:


               Q.      Do you have an opinion within a reasonable degree of medical certainty as to
                       whether Ms. Stricklan suffered any permanent physical impairment as a result
                       of the injuries she received on December 31, 2001?


               A.      Again, that is somewhat of a difficult question to answer because she’s had
                       neck surgery in the past, rather extensive neck surgery in the past, and so, you
                       know, I do think she has continued pain. She has an injury related to the
                       accident, and , therefore, it would be reasonable to consider her to have some
                       impairment related to that injury pertaining to her neck.


                       Figuring that with the current edition of the AMA Guides is quite difficult
                       because of the way they assess impairment for cervical fusions. I think that
                       in her situation it would be most appropriate to consider to have some
                       impairment related to the pain associated with that which I estimate at being
                       three percent of the whole person.


               We find no abuse of discretion in admitting the doctor’s testimony on this issue, and
it was appropriate for the fact finder to consider.


             Defendant further argues that the doctor had not seen Ms. Stricklan in three years and
was unaware of her present condition, Dr. Ragland addressed this issue on cross examination:


               A.      I was asked this morning to consider if there was an impairment for her
                       cervical condition. To determine an impairment requires the condition to be
                       stable and without some expectation that it’s going to change in the near
                       future, and the fact that she was, how many, three years?


               Q.      I believe it’s been about three years since you have seen her; is that right?


                                                 -7-
                A.      Well, about three years from her injury - - no two years from her injury, I
                        guess, to the time that I last saw her, more than a year at least, then the last
                        time I saw her in January 2004 would have been plenty of time to determine
                        whether she had any - - was having any improvement in her condition or
                        whether she was stable in her condition with her complaints . . . .


               Dr. Ragland’s testimony addressed the fact that in his opinion he had sufficient
information to address the issue of permanent impairment and the trial judge allowed this evidence,
observing, “I think your objection goes more to the weight of that than to precluding testimony.”
We find no abuse of discretion by the Trial Court in allowing Dr. Ragland’s testimony to be
considered by the jury.


                Finally, defendant contends the jury’s verdict in favor of plaintiffs was contrary to
the weight of the evidence and that the Trial Court erred in performing its duty as the thirteenth juror
when it denied defendant’s Motion for a New Trial.

                When a motion for new trial asserts that the jury's verdict was contrary to the weight
of the evidence, it becomes the duty of the Trial Court to weigh the evidence and determine whether
it preponderates against the verdict, and if so, to grant a new trial. James E. Strates Shows, Inc. v.
Jakobik, 554 S.W.2d 613, 615 (Tenn.1977). The role of the trial court when reviewing the weight
of the evidence has often been referred to as that of a “thirteenth juror.” The trial judge, as the
thirteenth juror, is not obligated to provide any reasons for his action, anymore than the jury is bound
to do so. Jakobik, 554 S.W.2d at 615. As the Trial Court’s Order denying the defendant’s Motion
for a New Trial provides: “[t]he Court found the weight of the evidence supported and the Court
specifically approved the verdict of the jury awarded to both Mr. and Mrs. Stricklan.” The record
demonstrates the Trial Judge properly acted in his role as the thirteenth juror, giving rise to the
presumption that he weighed the evidence and adequately performed his function as the thirteenth
juror. See, Holden v. Rannick, 682 S.W.2d 903, 906 (Tenn. 1984).

                 Our review is limited to a determination of whether there is material evidence in the
record to support the jury’s award to the Stricklans, giving full faith and credit to all of the evidence
that tends to support the amount. Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980). 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. Id. We do not weigh the evidence, nor determine the credibility
of the witnesses. Id.; Kinnard v. Taylor, 39 S.W.3d 120, 122 (Tenn. Ct. App.2000). Under our
standard of review of the jury verdict, there is ample material evidence to support the jury’s award
to the plaintiffs.

              In sum, the Trial Court did not err in permitting the testimony of Dr. Ragland
regarding the medical expenses and permanent disability of the plaintiff, and did not err when it
denied the motion for new trial and there is material evidence in the record that supports the jury’s

                                                  -8-
verdict.

               We affirm the Judgment of the Trial Court and remand. The cost of the appeal is
assessed to the defendant, Johnny C. Patterson,




                                                   ______________________________
                                                   HERSCHEL PICKENS FRANKS, P.J.




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