                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  November 17, 2005 Session

  ANGELA McDANIEL v. CAROLINA NATIONAL TRANSPORT, ET AL.

                        Appeal from the Circuit Court for Knox County
                          No. 2-176-03    Harold Wimberly, Judge



                 No. E2005-00541-COA-R3-CV - FILED JANUARY 23, 2006


In this action arising from a vehicular accident, the issues presented are whether the trial court erred
in allowing into evidence deposition testimony of a Defendant pursuant to Tenn. R. Civ. P. 32.01,
and whether the amount of the jury verdict was supported by material evidence. We hold the trial
court did not err in its discretionary decision to admit the deposition testimony, and that there is
material evidence supporting the duly approved jury verdict. Consequently, we affirm the judgment
of the trial court.

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

SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR. and
D. MICHAEL SWINEY , JJ., joined.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the Appellants, Carolina National Transport and
Robert K. Corprew.

W. Zane Daniel, Knoxville, Tennessee, for the Appellee, Angela McDaniel.

                                              OPINION

                              I. Factual and Procedural Background

        On March 21, 2002, Angela McDaniel’s vehicle was rear-ended by a tractor-trailer truck
driven by Robert K. Corprew on Interstate 40 in or near downtown Knoxville. Mr. Corprew’s truck
was rear-ended by another tractor-trailer, driven by Reginald Davis, in the accident. On March 20,
2003, Ms. McDaniel brought this action for injuries sustained in the accident against Mr. Corprew,
Carolina National Transport (the alleged owner of Mr. Corprew’s truck and the company for which
Mr. Corprew was alleged to be acting as agent or employee), Mr. Davis, and National Carriers, Inc.
(the company for which Mr. Davis was alleged to be acting as agent or employee).
        Carolina National and National Carriers and their respective drivers answered, each
Defendant alleging, among other things, the fault of the other in the accident. Carolina National and
Mr. Corprew filed a cross-claim against National Carriers and Mr. Davis. All parties stipulated that
Ms. McDaniel was without fault in the accident. The case was tried before a jury on November 2
and 3, 2005.

       The jury returned a verdict finding the Defendants each 50% at fault and awarding damages
to Ms. McDaniel in the amount of $200,000. The trial court approved the verdict. Carolina National
and Mr. Corprew then filed a motion for a new trial or, in the alternative, a remittitur, which was
denied by the trial court.

                                         II. Issues Presented

        Carolina National and Mr. Corprew appeal, raising the following issues:

       (1) Whether the trial court erred in allowing National Carriers and Mr. Davis to introduce the
deposition testimony of Mr. Davis at trial, pursuant to Tenn. R. Civ. P. 32.01.

       (2) Whether the trial court erred in refusing to suggest a remittitur of the jury verdict or grant
a new trial.

       National Carriers and Mr. Davis have paid their portion of the judgment to Ms. McDaniel,
and they are not involved in this appeal
.
                             III. Admission of Deposition Testimony

        We first address the contention that the trial court erred in allowing the deposition testimony
of Mr. Davis. Issues regarding whether a trial court has correctly construed and applied the
governing Tennessee Rules of Civil Procedure and Tennessee Rules of Evidence in making an
admissibility determination address themselves to the trial court’s discretion, and we review such
issues under the “abuse of discretion” standard. DeLapp v. Pratt, 152 S.W.3d 530, 538 (Tenn. Ct.
App. 2004). “[T]rial courts are accorded a wide degree of latitude in their determination of whether
to admit or exclude evidence, even if such evidence would be relevant.” Id; Dickey v. McCord, 63
S.W.3d 714, 723 (Tenn. Ct. App. 2001). As our Supreme Court noted in Eldridge v. Eldridge,

                Under the abuse of discretion standard, a trial court's ruling “will be
                upheld so long as reasonable minds can disagree as to propriety of the
                decision made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn.2000);
                State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.2000). A trial court
                abuses its discretion only when it “applies an incorrect legal standard,
                or reaches a decision which is against logic or reasoning that causes
                an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243,
                247 (Tenn.1999). The abuse of discretion standard does not permit


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               the appellate court to substitute its judgment for that of the trial court.
               Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998).

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)(internal brackets omitted).

        Tennessee Rule of Civil Procedure 32.01, the applicable and governing rule regarding
this issue, states as follows in relevant part:

               At the trial or upon the hearing of a motion or an interlocutory
               proceeding, any part or all of a deposition, so far as admissible under
               the rules of evidence applied as though the witness were then present
               and testifying, may be used against any party who was present or
               represented at the taking of the deposition or who had reasonable
               notice thereof, in accordance with any of the following provisions:
                               *             *              *
               (2) The deposition of a party or of anyone who at the time of taking
               the deposition was an officer, director, or managing agent, or a person
               designated under Rule 30.02(6) or 31.01 to testify on behalf of a
               public or private corporation, partnership or association,
               governmental agency or individual proprietorship which is a party
               may be used by an adverse party for any purpose.
                               *              *             *
               (4) If only part of a deposition is offered in evidence by a party, an
               adverse party may require the introduction at that time of any other
               part which ought in fairness to be considered contemporaneously with
               it. [Emphasis added].

        In their brief, Carolina Transport and Mr. Corprew argue that “the day before trial, counsel
for National [Carriers] and Mr. Davis advised counsel for Carolina and Corprew that he intended to
present the testimony of Davis via discovery deposition because he was unable to obtain Mr. Davis’s
presence at trial.” The morning of trial, Carolina Transport and Mr. Corprew moved in limine to
exclude the deposition of Mr. Davis. There is no transcript of the presentation of the motion in
limine, nor of argument of counsel regarding the motion, nor of the trial court’s comments, if any,
in ruling on the motion. It is apparent, however, that the trial court denied the motion.

       In the presentation of her case in chief, Ms. McDaniel introduced a portion of Mr. Davis’s
deposition. In the presentation of their case in chief, Carolina National and Mr. Corprew also
presented certain excerpts from Mr. Davis’s deposition, after which counsel for National Carriers
and Mr. Davis presented other portions of the deposition which he argued should in fairness be
considered contemporaneously with the portions presented by Carolina National and Mr. Corprew.

        After the close of proof, counsel for Carolina National and Mr. Corprew made an offer of
proof regarding the motions in limine made prior to trial, stating as follows in relevant part:

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                Then last but not least, Defendant Corprew and Carolina National
                moved prior to trial to bar admission of [the] deposition of Mr. Davis.
                Defense argued that it was in violation of [Tenn. R. Civ. P.] 32.01.
                The witness was not unavailable as contemplated by the Rule,
                because his absence, though he may be, according to counsel, more
                than 100 miles away in Texas somewhere, that’s of his own choosing.
                So he in essence procured his own absence, and he shouldn’t be able
                to take advantage of the exception regarding unavailability.

                THE COURT: Then we noted since plaintiff’s counsel intended to
                read portions of the deposition that that same Rule also allows the
                other side to read other portions to explain those portions, and that’s
                what we wound up doing, in the Court’s opinion anyway.

        We initially note that Tenn. R. Civ. P. 32.01(2) provides that “[t]he deposition of a
party...may be used by an adverse party for any purpose.” See Nelms v. Tennessee Farmers Mut. Ins.
Co., 613 S.W.2d 481, 483-84 (Tenn. Ct. App. 1978); Ball v. Overton Square, Inc., 731 S.W.2d 536,
539 (Tenn. Ct. App. 1987); McLemore v. Powell, 968 S.W.2d 799, 802 (Tenn. Ct. App. 1997); Dargi
v. Terminix Int’l. Co., 23 S.W.3d 342, 345 (Tenn. Ct. App. 2000). It is apparent from the trial
court’s comments on the record that at some point during the motion in limine hearing, counsel for
Ms. McDaniel informed the court that he intended to read into evidence certain portions of Mr.
Davis’ deposition. At the hearing of Carolina National’s motion for a new trial or remittitur, the trial
court stated, “clearly the plaintiff could read portions of this discovery deposition. Having done that,
the Court determined that the other portions that were read by the other parties including this
defendant [National Transport] could appropriately be read in this trial.”

        The trial court held the “rule of completeness” found at subsection (4) of Rule 32.01 to be
applicable under these circumstances. This rule provides that “[i]f only part of a deposition is
offered in evidence by a party, an adverse party may require the introduction at that time of any other
part which ought in fairness to be considered contemporaneously with it.” Tenn. R. Civ. P. 32.01(4).
Once Ms. McDaniel introduced parts of the Davis deposition, either Defendant could have required
other parts of the deposition that ought in fairness to be considered simultaneously with the earlier
parts. Likewise, once Carolina National and Mr. Corprew introduced parts of the deposition, the trial
court properly allowed National Transport and Mr. Davis, adverse parties to Carolina National and
Mr. Corprew, to read other parts of the deposition, in keeping with the rule.

        It is therefore clear from the transcript and the trial court’s comments that it properly allowed
counsel for National Transport and Mr. Davis to read into evidence certain portions of Mr. Davis’
deposition pursuant to the rule of completeness. Although Carolina National argues in its brief that
the trial court erred in allowing National Carriers and Mr. Davis “to utilize the entire discovery
deposition of Davis during the trial,” only certain portions of it were read into evidence. Further,
although Carolina National argues that the trial court wrongly found Mr. Davis to be an
“unavailable” witness pursuant to Tenn. R. Civ. P. 32.01(3), there is no indication in the record that


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the trial court made such a finding, or that it based its ruling upon subsection (3) of Rule 32.01. We
do not find that the trial court abused its discretion in admitting the deposition testimony under Tenn.
R. Civ. P. 32.01.

                                            IV. Jury Verdict

       We now turn to the argument that the trial court erred in refusing to suggest a remittitur or
grant a new trial. Carolina National and Mr. Corprew assert that the $200,000 verdict was so
excessive as to be beyond the upper limit of the range of reasonableness in this case.

        As already noted, this case was tried before and decided by a jury. A finding of fact made
by a jury in a civil case will be set aside by this court “only if there is no material evidence to support
the verdict.” Tenn. R. App. P. 13(d). As regards the issue of remittitur, our Supreme Court has stated
as follows:

                when the question of remittitur is raised, the Court of Appeals has the
                duty to review the proof of damages and the authority to reduce an
                excessive award. But when the trial judge has approved the verdict,
                the review in the Court of Appeals is subject to the rule that if there
                is any material evidence to support the award, it should not be
                disturbed.

Foster v. Amcon Int’l, Inc., 621 S.W.2d 142, 146 (Tenn. 1981)(quoting Ellis v. White Freightliner
Corp., 603 S.W.2d 125, 129 (Tenn. 1980)). This deferential standard serves to preserve the principle
that “the amount of compensation in a personal injury case is primarily for the jury, and that next to
the jury, the most competent person to pass on the matter is the trial judge who presided at the trial
and heard the evidence.” Foster, 621 S.W.2d at 143-44. Thus, to safeguard the constitutional right
to trial by jury, we are required to “take the strongest legitimate view of all the evidence to uphold
the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to
allow all reasonable inferences to sustain the verdict.” Poole v. The Kroger Co., 604 S.W.2d 52, 54
(Tenn. 1980)(internal quotation marks omitted).

        Our review of the record supports the conclusion that there is material evidence supporting
the $200,000 award to Ms. McDaniel. Ms. McDaniel’s car, struck in the rear by a tractor-trailer
truck on the interstate, sustained some $7,000 in damage. She went to the emergency room, where
she was treated for a moderately severe cervical strain or whiplash injury. She presented the
testimony of two treating physicians. Dr. Fred Hurst, who treated her, described his treatment at
length and testified that some ten months after the accident, “my impression was that of bone pain,
insomnia, and depression over chronic pain syndrome, having been hurting now for ten months,
cervical strain, lumbosacral strain, degenerative cervical bone disease.”




                                                   -5-
        Dr. Hurst testified that the medications prescribed for her injuries caused Ms. McDaniel to
suffer stomach and abdominal pain, which required him to prescribe further medication for her. Dr.
Hurst further testified as follows:

               Q: Do you have an opinion, in your opinion, as to how much
               impairment or disability she has as a result of this?

               A: Well, because of the added effect on her nerves and on her
               gastrointestinal system, gastritis, because she will likely have to
               continue to take anti-inflammatory medications, and those
               medications do irritate one’s stomach, and because of her inability to
               sleep from time to time because of the pain, I determined that in my
               opinion that she ought to have about 25 percent disability.

               Q: Dr. Hurst, what do you think her prognosis for the future is as far
               as what she is going to be able to do or how she’s going to have to
               live with this pain? Is there anything she can do for it? Is there any
               kind of operation she can have?

               A: Well, two and a half years after the wreck – actually more than
               two and a half years – she still has the pain, and the pain I cannot see
               getting any better. So what is of concern to me is that she hasn’t
               really improved with all that medicine and orthopedic surgery has had
               to offer her. And I think that this is – of course, I don’t have a crystal
               ball. None of us do. But I think this is a chronic pain syndrome that
               this woman unfortunately will suffer for an undetermined length of
               time, and Lord only knows for how long.

        Ms. McDaniel was 39 years old at the time of the trial. She testified that she had worked as
a manager for Levi Strauss “until Levi’s left town” in 1998. She was earning approximately $54,000
per year in her position with Levi Strauss. After the company closed and left the Knoxville area, Ms.
McDaniel went to school and retrained to be an independent insurance agent, earned her license, and
began training with a company to do insurance sales. In January of 2002, she was hired by Bankers
Life & Casualty as an independent insurance agent.

        Ms. McDaniel began selling insurance for Bankers Life & Casualty in early February of
2002. She testified that in the seven weeks between that time and the accident, she earned a little
over $8,000, working on pure commission. She presented the testimony of Roy Steve Ruth, her
trainer and supervisor at Bankers, who stated as follows:

               Q: After she came to work there, tell this Court and jury what type of
               worker she was and how she worked before.



                                                  -6-
               A: Well, she started off very, very well. When she came out of her
               training, that’s actually. . .what I call hands on, you know, you go out
               in the field and help them produce. And she was really productive,
               doing real well, on the road to being a real good, successful agent.

                              *               *               *

               Q: And after that [the accident] tell us what difference you noticed,
               Mr. Ruth, after that happened.

               A: Well, when she was able to come back to work, she, you know –
               I’m talking about coming back and try to come back to work. She
               was very uncomfortable, couldn’t sit. This job, it’s not really what
               you call physically [sic] labor, but, you know, you do a lot of bending
               over, talking on the phone, raising your arm up and down, constantly
               moving, and talking for several hours at a time trying to set
               appointments. So outside of that, it’s strenuous. I noticed her stress
               level was really high. She was in a lot of pain. She didn’t feel well.
               . . .She got to the point that she just wasn’t comfortable working. She
               was crying, upset, felt bad, looked bad. She really did.

                              *               *               *

               Q: You know she worked there up until after this accident happened.
               But did they ultimately have to let her go?

               A: Yeah. Her employment just went downhill because she could not
               perform. I mean she really couldn’t. She couldn’t do the tasks.

                              *               *               *

               Q: And was she, in your opinion, going to be a very good worker or
               going to be –

               A: Yeah. You only have about one out of 100 successful agents.
               You’ll run through agents, you know, one really successful. And she
               was on the road to being that one. She was doing well.

       After her employment with Bankers was terminated, Ms. McDaniel attempted to work
independently in the insurance sales field. She earned only approximately $8,679.19 in 2003 in this
capacity.




                                                  -7-
        Ms. McDaniel had no history of back or neck injury prior to the accident. After the accident,
she was unable to participate in activities she had previously enjoyed, such as water skiing, working
out at the gym, and gardening. Her medical bills for injuries resulting from the accident totaled
approximately $16,249.31.

       Practically none of the above-described evidence was challenged or contradicted by either
Defendant at trial. Based upon the foregoing and the record as a whole, we hold there is material
evidence supporting the duly approved jury verdict, and that the amount of $200,000 is not beyond
the upper limit of the range of reasonableness when considering the injuries and pecuniary losses
suffered by Ms. McDaniel resulting from the accident.

       We therefore affirm the jury verdict and the judgment of the trial court in all respects. Costs
on appeal are assessed to the Appellants, Carolina National Transport and Robert K. Corprew.




                                               _________________________________________
                                               SHARON G. LEE, JUDGE




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