                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   February 13, 2003 Session

             CATHY M. LOVETT, ET AL. v. JOHN C. KELLEY, ET AL.

                        Appeal from the Circuit Court for Maury County
                             No. 9050    Jim T. Hamilton, Judge



                      No. M2002-01078-COA-R3-CV - Filed May 12, 2003


A woman whose car was struck by another vehicle brought suit against the driver of a van involved
in the accident as well as the driver’s employer, claiming the collision aggravated her pre-existing
back injury. The defendants did not dispute liability, but claimed that the plaintiff’s injury was
relatively minor. After a hearing, the trial court entered a $100,000 judgment against the defendants.
We reverse, because we believe the trial court’s award included damages for injuries that were not
proximately caused by the defendant’s actions.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Reversed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J.
and MARIETTA M. SHIPLEY, SP . J., joined.

Thomas C. Corts and Julie Bhattacharya Peak, Nashville, Tennessee, for the appellants, John C.
Kelley and Maury County Board of Education.

Jerry C. Colley, Columbia, Tennessee, for the appellee, Cathy M. Lovett and Carl Lovett.

                                             OPINION

                                     I. ACCIDENT AND INJURY

        This case arose from a motor vehicle accident which occurred on March 5, 1999. Plaintiff
Cathy Lovett’s car was stopped at a red light at an intersection in Columbia, Tennessee. Defendant
John C. Kelley was approaching the light in a van owned by his employer, the Maury County Board
of Education. The street was slippery from rain, and when Mr. Kelley applied his brakes, the van slid
into a pickup truck that was stopped directly in front of him, and right behind Ms. Lovett’s car. The
impact knocked the pickup truck into the rear of the car.
        The Lovetts testified that the impact caused some damage to the rear bumper and trunk of their
vehicle, although the damage is not visible on photographs. Ms. Lovett did not think she was injured,
so after waiting for the police to arrive and take her report, she drove home. The next day she
experienced pain in her back and neck. She went to an ambulatory care center, where pain medicine
and muscle relaxers were prescribed for her. On April 1, 1999, she was seen by Dr. James Wiesman,
an orthopedist who had treated her for lower back pain in 1990, 1997 and 1998.

        Dr. Wiesman prescribed pain medicine, a muscle relaxer, an anti-inflammatory and the use
of a TENS unit. An MRI of Ms. Lovett’s spine taken two months after the accident was read as
normal, except for a slightly bulging disc at L5 (the fifth lumbar vertebra). The record indicates that
a CT scan done in 1990 showed the same disc to be bulging. Dr. Wiesman attributed the disc
distortion to a degenerative condition that he had first diagnosed after the 1990 CT scan. Dr.
Wiesman treated Ms. Lovett on and off for four months, and then released her. She returned for
several more office visits after being released.

       On March 1, 2000, Cathy Lovett and her husband Carl filed suit against Mr. Kelley and the
Board of Education. They claimed that Ms. Lovett had become disabled as a result of the accident,
and suffered a loss of earning capacity as a result. Ms. Lovett is a registered nurse, but she was
unemployed at the time of the accident. The plaintiffs also asked for reimbursement of medical
expenses, and damages for loss of enjoyment of life. Mr. Lovett asked for damages for loss of
consortium.

        On September 1, 2000, Cathy Lovett woke up with excruciating back pain, and went to the
emergency room at Maury Regional Hospital. Since Dr. Wiesman was out of the country, she was
referred to the Middle Tennessee Bone and Joint Clinic, where she saw Dr. Joseph Frederick Wade.
An MRI revealed a severely ruptured disc at L5-S1, and Dr. Wade recommended a lumbar
diskectomy. The surgery was performed shortly thereafter. Ms. Lovett incurred substantial medical
expenses from the surgery, and missed four weeks of work. She continues to suffer from pain and
numbness in her back, and has had to curtail many of her daily activities as a result.

        The court conducted a hearing on the Lovetts’ complaint on March 11, 2002. The testifying
witnesses were Cathy Lovett, Karl Lovett and John Kelley. The depositions of Dr. Wiesman and Dr.
Wade were submitted as exhibits. At the conclusion of the proof, the defendants requested that the
court make findings of fact and conclusions of law pursuant to Rule 52.01, Tenn. R. Civ. P. The
court then took the matter under advisement.

         The court filed its Findings of Fact on April 17, 2002. The court found that Cathy Lovett “.
. . received serious and permanent injuries as a result of the collision. She received injuries to her
neck and back the most serious of which is the injury to her back.” The court further found that “both
Dr. Wiesman’s treatment and surgery by Dr. Wade were related to the accident. These treatments
were for injuries to the back, and Dr. Wiesman’s also to the neck which were proximately caused by
the collision.”



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         In its judgment, filed on April 23, 2002, the court fixed Cathy Lovett’s damages at $85,000,
including damages for medical expenses, lost wages, and pain and suffering. Carl Lovett’s damages
for loss of consortium were fixed at $15,000, for a total judgment of $100,000. This appeal followed.

                                 II. THE QUESTION OF CAUSATION

                                     A. The Standard of Review

        The appellants do not question the trial court’s finding that the events of March 5, 1999 caused
Ms. Lovett to suffer pain and to incur medical expenses in the months after the accident. Nor do they
dispute the proof that the disc rupture she suffered long after the accident has had a significant impact
on her life. However, they challenge the court’s finding that the 1999 accident was the proximate
cause of the back pain that Ms. Lovett experienced eighteen months later, the disc rupture that was
discovered at that time, and the surgery performed to correct it.

        Findings of fact by the trial court are entitled to a presumption of correctness on appeal, unless
the evidence preponderates otherwise. Rule 13(d), Tenn. R. Civ. P. However, since the trial court
relied solely upon the written depositions of the two doctors for its findings as to causation, we need
not accord those findings the deference that the trial court’s findings are entitled to when it has had
the opportunity to observe the demeanor of the witness on the stand, and thereby to assess his
credibility. See Fell v. Rambo, 36 S.W.3d 837 (Tenn. Ct. App. 2000). We must rather make an
independent assessment of the documentary proof we review. Wells v. Tennessee Bd. of Regents 9
S.W.3d 779 (Tenn. 1999).

                            B. Proximate Cause and Causation in Fact

        As some of our most notable commentators on the law have observed, questions of proximate
cause in negligence cases can be some of the most difficult for the courts to resolve. “There is perhaps
nothing in the entire field of law which has called forth more disagreement, or upon which the
opinions are in such a welter of confusion.” Prosser and Keeton on Torts, § 41 at 263 (Fifth Edition
1984). The authors go on to discuss the philosophical problem behind the question of proximate
cause: so many different factors may go into causing any single event that,

         “[a]s a practical matter, legal responsibility must be limited to those causes which are
         so closely connected with the results and of such significance that the law is justified
         in imposing liability. Some boundary must be set to liability for the consequences
         of any act, upon the basis of some social idea or policy.”

 Prosser and Keeton, supra at 264.

          An absolutely necessary (but not always sufficient) element of proximate cause is that the
 action complained of be a cause in fact of the injury for which the plaintiff hopes to recover. Cause
 in fact is usually examined under the “but-for” rule. That is, an act or omission is regarded as a


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cause of an event if the particular event would not have occurred without it. Bennett v. Putnam
County, 47 S.W.3d 438 (Tenn. Ct. App. 2000); Pichon by Pichon v. Opryland USA, Inc., 841
S.W.2d 326 (Tenn. Ct. App. 1992). The testimony of both doctors in this case as to the cumulative
nature of back trauma implies that Ms. Lovett’s disc herniation does not strictly satisfy the “but-for”
rule.

        The “but-for” rule does not adequately address the question of causation in fact in some
situations, such as when two or more causes combine to bring about an event, and the same event
might have resulted from either of those two causes acting alone. To deal with these and other
situations, our courts have stated that liability can be imposed if the defendant’s action was a
“significant factor” in bringing about the plaintiff’s injury. Burgess v. Harley, 934 S.W.2d 58 (Tenn.
Ct. App. 1996); Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn. 1994).

        But our courts have placed other qualifiers on the question of proximate cause. For example,
in Roberts v. Robertson County Board of Education, 692 S.W.2d 863, 871 (Tenn. Ct. App. 1985),
we stated that “[a] defendant’s conduct will be regarded as the proximate cause of the plaintiff’s
injury if it was the ‘procuring,’ ‘efficient’ or ‘predominant’ cause. (Citations omitted). And in
Pichon by Pichon v. Opryland USA, Inc., we stated that the proximate cause of an injury is “the
cause that produced the result in continuous sequence and without which it would not have
occurred.” 841 S.W.2d at 329.

        Finally, causation questions are inherently fact-sensitive, and they require that the evidence
be reviewed in light of logic, common sense, policy, and precedent. Wyatt v. Winnebago Industries,
566 S.W.2d 276, 280 (Tenn. Ct. App.1977). Keeping all these considerations in mind, we must now
examine two medical depositions in the record.

                                       C. The Medical Proof

       The plaintiffs’ attorney asked Dr. Wade his opinion as to whether the accident was the
proximate cause of the problem that resulted in Ms. Lovett’s disc herniation and subsequent surgery.
The doctor answered that “[i]t would be very hard for me to draw a direct relationship between the
accident and her surgery.” Upon further questioning, he cited as complicating factors Ms. Lovett’s
back problems prior to the accident, the results of the post-accident MRI, and the lengthy interval
between the accident and the herniation. He went on,

       “Causes of disc herniation and disc degeneration are probably multi-factorial and,
       you know any activity or any injury that you have over any long period of time can
       be viewed as playing some role in it. But, you know I can’t draw a direct relationship
       between this accident and the herniation.”




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        Because of Dr. Wade’s reluctance to commit himself on the question of causation, the trial
court relied entirely upon Dr. Wiesman’s testimony for its findings of fact.1 Interestingly, Dr.
Wiesman’s testimony was quite consistent with that of Dr. Wade, except that he described the
relationship between the accident and the herniation in a more affirmative way. In response to
questions by Ms. Lovett’s attorney, he stated that “. . . the motor vehicle accident did have a bearing
on the problem that she had with her low back,” and that it was a factor in her overall condition.

         In his most positive statement about the effects of the accident, Dr. Wiesman said “I believe
that it definitely had an effect on the L-5/S-1 disc and the L-5/S-1 disc space that eventually did
result in having the disc rupture to the point where she had to have, as I understand, almost
immediate surgery, very quick surgery.”

        But Dr. Wiesman agreed under questioning by the appellant’s attorney that the degeneration
of Ms. Lovett’s back was a cumulative process, and that all sorts of activities she participated in
could have contributed to the injury, such as gardening and lifting patients at work. Since Ms.
Lovett’s most severe symptoms occurred after she got out of bed in September, 2000, the attorney
asked whether the very act of getting out of bed could have been sufficient to trigger her disc
herniation.

        The doctor did not directly answer this question, but again discussed the cumulative nature
of trauma in back injury. He drew a distinction between acts that could lead to mild trauma, such
as getting out of bed, moderate trauma, such as lifting patients or gardening, and severe trauma, such
as might occur in an auto accident. He did not say, however, that Ms. Lovett suffered a severe
trauma from the accident in this case.

         While there is some evidence from the deposition of Dr. Wiesman of causation in fact
between the accident and Ms. Lovett’s disc herniation, when we examine the evidence as a whole,
we do not believe it rises to the level of proximate cause. We note the negative clinical findings as
to disc injury shortly after the accident, the lengthy interval between the accident and the herniation,
the reluctance of the surgeon who treated the injury to attribute it to the accident, and Dr. Wiesman’s
testimony as to the inherently cumulative nature of back injury as factors which militate against the
trial court’s finding.

                                        III. A QUESTION OF DAMAG ES

       In its Findings of Fact, the trial court stated that Ms. Lovett’s damages included $18,635.43
for medical expenses, $7,800 for the loss of four weeks of earning capacity after the accident and an
additional four weeks of wages after the surgery, and an unspecified amount for her continued pain

         1
          There was much discussion in this appeal about the significance of the fact that Dr. Wiesman did not use the
words “to a reasonable degree of med ical certainty” when expressing his opinion ab out the connection between M s.
Lovett’s accident and her sub sequent disc herniation. W hile failure to use the “m agic words” or words of similar import
does not render his opinion inadm issible, it do es detract from its weight. See Vicky Bara, et al v. Clarksville Memorial
Health Systems, Inc., No. M 2001-00 682-CO A-R3-CV (Tenn. Ct. App. Sept. 12, 2002 ).

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and suffering, resulting in a total award of $85,000. Mr. Lovett received $15,000 for loss of his
wife’s consortium.

         In light of our conclusions as to causation, it appears to us that the defendants can be held
liable for the damage to Ms. Lovett’s car, and for her medical and pharmaceutical expenses up to her
last visit with Dr. Wiesman. They can also be held liable for her pain and suffering during the same
period. Since Ms. Lovett was unemployed at the time of the accident, she is not entitled to damages
for lost wages. Mr. Lovett may also be entitled to damages for loss of consortium during the relevant
period of time. See All v. John Gerber, 252 S.W.2d 138 (Tenn. Ct. App. 1952).
                                                  IV.

        The judgment of the trial court as to damages is reversed. We remand this cause to the
Circuit Court of Maury County for a further hearing on damages in accordance with this opinion.
Tax the costs on appeal to the appellees, Cathy Lovett and Carl Lovett.




                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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