                                                                                         02/04/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 April 9, 2019 Session

     DONREIL A. BORNE v. CELADON TRUCKING SERVICES, INC.

                  Appeal from the Circuit Court for Shelby County
                  No. CT-003273-10 Robert Samuel Weiss, Judge
                     ___________________________________

                           No. W2018-01645-COA-R3-CV
                       ___________________________________


The Tennessee Supreme Court remanded this matter to the trial court for a more definite
statement as to the grounds for remittitur. The Court specifically noted that “the trial
court’s failure to indicate the reasons for its suggested remittitur leaves us unable to
determine whether the evidence preponderates against the remittitur and, consequently,
unable to conduct a proper appellate review of the trial court’s remittitur decision.” The
trial court responded, inter alia, that the plaintiff had improved his ability to lift and
engage in repetitive activities, and that this proof, along with the plaintiff’s success at
rehabilitation, strong work ethic, and desire to support his family, led the court to find
that the plaintiff “will have some future income over the next 38 years which is the basis
for reducing the loss of earning capacity from $1,455,000 to $1,100,000.” We find that a
preponderance of the evidence does not support the decision of the trial court to remit the
judgment to $1,100,000, and we, therefore reverse the judgment. We further find that
based on the proof in the record that the judgment for loss of earning capacity damages
should be remitted to $1,334,647. We, therefore, remit the jury’s verdict for loss of
earning capacity damages to $1,334,647.


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



JOHN W. MCCLARTY, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and KENNY ARMSTRONG, JJ., joined.

R. Sadler Bailey, Thomas R. Greer, and J. Vance Montgomery, Memphis, Tennessee, for
the appellant, Donriel A. Borne.
James B. Summers, Kevin W. Washburn, and John R. Hensley, Memphis, Tennessee, for
the appellee, Celadon Trucking Services, Inc.

                                         OPINION

                                    I.     BACKGROUND

        This action arose following a July 1, 2009, accident on Interstate 55 in Memphis
involving three tractor-trailers. The plaintiff, Donriel A. Borne, was driving the first
tractor-trailer owned by Trimac Transportation South, Inc. (“Trimac”). After traffic
began to slow and eventually stopped, Harold L. Foster, driving a tractor-trailer owned by
Celadon Trucking Services, Inc. (“Celadon”) rear-ended the rig being driving by Borne.
The Celadon truck was then rear-ended by a tractor-trailer owned by Chickasaw
Container Services, Inc. (“Chickasaw”) and driven by Steve Dondeville. According to
Borne, he suffered “severe and permanent injuries” to his back and neck as a result of the
traffic accident.

       On June 30, 2010, Borne filed a complaint against Foster, Celadon, Dondeville,
and Chickasaw. Prior to trial, Foster, Dondeville, and Chickasaw were dismissed as
parties to the lawsuit. The lawsuit ultimately involved only Borne and Celadon.

        After the May 2013 trial, the jury returned a verdict in Borne’s favor, awarding
him $3,705,000 in total damages. The jury’s award for loss of earning capacity was
$1,455,000.1 Upon motion by Celadon, the trial court suggested a remittitur based upon
its determination that the award was “excessive” and reduced the jury’s award for loss of
earning capacity by $355,000 to $1,100,000. The trial court also suggested a remittitur
for the jury’s awards for physical pain and mental suffering, permanent injury, and loss of
enjoyment of life;2 those awards, however, are not at issue in this appeal.

       Borne accepted the suggestion of remittitur under protest. “When the trial judge
suggests a remittitur, the plaintiff has three options: accept the remittitur, refuse the
remittitur and opt for a new trial, or accept the remittitur under protest and seek relief
from the Court of Appeals.” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414,
421-22 (Tenn. 2013) (citing Tenn. Code Ann. § 20-10-102(a)).

       Upon the action being appealed to the Tennessee Court of Appeals, this court
reversed the trial court’s remittitur of the award for loss of earning capacity and reinstated
the jury’s award of $1,455,000. We “found no basis for straying from the lost earnings

       1
         The jury also awarded $750,000 for physical pain and mental anguish, $750,000 for loss
of enjoyment of life, and $750,000 for permanent injury.
       2
         The trial court reduced the physical pain and mental anguish by $250,000, loss of
enjoyment of life by $350,000, and permanent injury by $650,000.
                                             -2-
figure suggested by Dr. Gamboa.”3 The total award to Borne upon our review was
$2,105,000. Borne v. Celadon Trucking Servs., No. W2013-1949-COA-R3-CV, 2014
WL 3778743, at *18-33 (Tenn. Ct. App. July 31, 2014).

       Upon granting review, the Tennessee Supreme Court determined that the trial
court did not provide sufficient explanation of the reasons for its suggested remittitur to
afford meaningful appellate examination. The Court vacated our decision to reverse the
trial court’s remittitur of the loss of earning capacity award, reversed the additional
remittitur of the loss of enjoyment of life award, and remanded the case to the trial court.
The Court noted specifically: “As is the case for this Court, the Court of Appeals had no
explanation of the trial court’s reasons for its suggestion of remittitur, so it did not have
enough information to perform a meaningful review of the trial court’s decision to
suggest a remittitur of the award for lost earning capacity.” Borne v. Celadon Trucking
Servs., 532 S.W.3d 274, 318 (Tenn. 2017).

       The Supreme Court observed as follows regarding remittitur:

              The current remittitur statute, Tennessee Code Annotated
              section 20-10-102, . . . refers to the trial court’s authority to
              suggest a remittitur “when the trial judge is of the opinion that
              the verdict in favor of a party should be reduced. . . .” Tenn.
              Code Ann. § 20-10-102(a). In 1987, the legislature added the
              following language to subsection (b) of that statute: “The
              court of appeals shall review the action of the trial court
              suggesting a remittitur using the standard of review provided
              for in T.R.A.P. 13(d) applicable to decisions of the trial court
              sitting without a jury.” Tenn. Code Ann. § 20-10-102(b).
              The provision in Rule 13(d) of the Tennessee Rules of
              Appellate Procedure to which section 20-10-102(b) refers
              states: “[R]eview of findings of fact by the trial court in civil
              actions shall be de novo upon the record of the trial court,
              accompanied by a presumption of the correctness of the
              finding, unless the preponderance of the evidence is
              otherwise.” Tenn. R. App. P. 13(d). Taken altogether, these
              indicate that the legislature intended for trial courts to have
              the authority to grant remittitur if the trial judge finds that the
              evidence preponderates in favor of a lower amount of
              damages than the jury awarded.


       3
        The trial court’s remittitur for physical pain/mental anguish and permanent injury was
upheld. We ordered a remittitur of an additional $350,000 to the loss of enjoyment of life award,
down to $50,000.
                                              -3-
Thus, over time, trial courts have acquired broader authority
to suggest a remittitur. A trial court is no longer required to
find that the amount of a jury’s verdict is so excessive as to
indicate passion, prejudice, corruption, or caprice on the part
of the jury. A trial judge may suggest an adjustment in a jury
verdict even when the amount of the verdict is within the
range of reasonableness, i.e., is supported by material
evidence in the record. After seeing the witnesses and
observing their demeanor, the trial court is “to independently
weigh the evidence, pass upon the issues, and decide whether
the verdict is supported by the evidence.” Moats, 906 S.W.2d
at 433. After making his own independent assessment of the
witnesses’ credibility, if the trial judge finds that the evidence
preponderates in favor of a lower amount of damages, the
trial judge may suggest remittitur instead of granting a new
trial.

Concomitantly, under section 20-10-102(b), the standard of
appellate review for a trial court’s suggestion of remittitur
requires the appellate court to ascertain whether the trial
judge’s reduction of the jury award is supported by a
preponderance of the evidence.

In applying the preponderance of the evidence standard to its
review of the trial court’s suggested remittitur, we note that
the appellate court must “giv[e] due credit to the jury’s
decision on the credibility of the witnesses and that of the trial
judge in his capacity as thirteenth juror.” Foster [v. Amcon
Int’l, Inc.], 621 S.W.2d [142,] 145 [(Tenn. 1981)]. . . .

Applying this standard of review, in Long v. Mattingly, then-
Judge Koch offered “a three-step review of a trial court’s
adjustment of a jury’s damage award.” Long v. Mattingly,
797 S.W.2d 889, 896 (Tenn. Ct. App. 1990). The suggested
framework consisted of the following:

First, we examine the reasons for the trial court’s action since
adjustments are proper only when the court disagrees with the
amount of the verdict. Second, we examine the amount of the
suggested adjustment since adjustments that totally destroy
the jury’s verdict are impermissible. Third, we review the
proof of damages to determine whether the evidence
preponderates against the trial court’s adjustment.
                              -4-
Id. (citations and internal quotation marks omitted). We
adopt the Long v. Mattingly three-prong framework for
appellate review of a trial court’s suggested remittitur.

The primary purpose of the first Long v. Mattingly prong,
looking at the trial court’s stated reasons for the adjustment, is
to determine whether the trial court “disagreed with other
than the amount of the verdict.” Burlison v. Rose, 701
S.W.2d 609, 611 (Tenn. 1985). While the trial court’s denial
of the motion for new trial is some indication that the trial
judge agreed with the jury as to the defendant’s liability, we
look at the trial court’s actions overall to determine whether
“the trial judge disagreed with the facts as found by the jury.”
Id.

The second prong requires the appellate court to determine
whether the trial court’s suggested . . . remittitur “totally
destroys” the jury’s verdict. Long, 797 S.W.2d at 896. In
making this determination, there is no set mathematical
formula or percentage to use. Meals, 417 S.W.3d at 420 n. 8.
Appellate courts have at times looked at whether the . . .
remittitur “would result in an award not only proportionally
different from the jury verdict but also substantially different
in absolute terms.” Bonner [v. Deyo, No. W2014-00763-
COA-R3-CV], 2014 WL 6873058, at *7 [(Tenn. Ct. App.
Dec. 5, 2014)] (quoting Phillips v. Perot, No. 02A01-9704-
CV-00094, 1998 WL 117325, *4 (Tenn. Ct. App. Mar. 17,
1998) (Lanier, Sp. J., concurring)).

For the third prong of the three-step review, we look at the
proof to ascertain whether the evidence preponderates against
the trial court’s . . . remittitur. As noted above, this prong
requires us to defer to the jury’s decision on the credibility of
the witnesses and also to “that of the trial judge in his
capacity as thirteenth juror.” Foster, 621 S.W.2d at 145.

As we segue into applying this three-step framework to
review the trial court’s suggestion of remittitur in this case,
we immediately encounter an obstacle. The first step is to
“examine the reasons for the trial court’s action.” Long, 797
S.W.2d at 896. In this case, to explain the decision to grant
remittitur, the trial court’s Order Denying Defendant Celadon
                               -5-
Trucking Services Inc.’s Motion for New Trial and Granting
Remittitur states only the following: “[W]hile this Court
makes no specific determination that this jury acted with
passion, prejudice or caprice, it is ruled that the award given
following the trial of this matter was excessive and remittitur
is appropriate.” . . . Thus, to explain its substantial suggested
remittitur of the jury’s verdict, the trial court stated only that
the jury’s award was “excessive” and remittitur was
“appropriate.” This offers virtually no insight into the
reasons for the trial court’s decision.

                               ***

A trial court’s failure to provide reasons for its suggestion of
remittitur can also affect the appellate court’s ability to apply
the third prong of the Long v. Mattingly framework, the
review of the proof to determine whether the evidence
preponderates against the trial court’s adjustment. This prong
requires the appellate court to evaluate the preponderance of
the evidence, giving proper deference to both the jury and to
the trial judge in his capacity as thirteenth juror. . . . [I]f the
evidence regarding damages was conflicting and required
both the jury and the trial court sitting as thirteenth juror to
assess the credibility of the witnesses, a trial court’s failure to
explain the basis for its suggestion of remittitur may leave the
appellate court in the dark as to whether, or how, the trial
court’s view of the credibility of the witnesses may have
differed from that of the jury.

                               ***

If the trial court’s authority to suggest remittitur were limited
to situations in which the jury’s award exceeds the range of
reasonableness, explanation of the reasons for the remittitur
would rarely be needed; the appellate court could simply
review the record and assume credibility determinations that
favor the award, in the same way that an appellate court
reviews a jury verdict. However, because trial courts now
have expanded authority to suggest remittitur based on the
preponderance of the evidence, they also have the
responsibility to explain the reasons for a remittitur. This is
necessary to give the appellate court the baseline information
needed to determine whether the evidence preponderates
                                -6-
against the remittitur. . . . Where credibility is a significant
issue, deference to the trial court as thirteenth juror may not
be possible without some idea of whether or in what regard
the trial court’s assessment of the witnesses’ credibility
differed from that of the jury. Under these circumstances, the
appellate court may be left unable to review the evidence to
determine whether it preponderates against the suggested
remittitur. See [State v.] Ellis, 453 S.W.3d [889, ] 900
[(Tenn. 2015)] (“Weight and credibility, therefore, are
inextricably linked.”). In such cases, the appellate court has
the option of remanding the case to the trial court for a proper
explanation of the reasons for the suggested remittitur,
including the trial court’s assessment of the credibility of
witnesses whose testimony was pertinent to the damage
award.

As noted above, in the instant case, the trial court’s order
offered essentially no explanation for its decision to suggest
remittitur in every category of damages awarded by the jury. .
..

                              ***

… [T]he parties presented sharply contrasting testimony. The
testimony conflicted regarding Mr. Borne’s physical
condition, the degree to which his injuries were caused by the
July 2009 accident, whether Mr. Borne could secure
employment, and, if so, whether such employment would
provide earnings equal to what he was making prior to the
accident.

… The[] awards indicate that the jury credited the
testimony of Mr. Borne’s witnesses and did not credit the
testimony of the witnesses presented by Celadon.

The trial judge suggested remittitur of the jury’s award down
to the following amounts: $1,100,000 for loss of earning
capacity, $500,000 for physical pain and mental suffering,
$100,000 for permanent injury, and $400,000 for loss of
enjoyment of life. Each of these categories of damages would
be affected to some extent by the perceived credibility of the
witnesses who testified regarding Mr. Borne’s physical
condition, the degree to which his injuries were caused by the
                             -7-
             July 2009 accident, whether Mr. Borne will be able to find
             suitable employment in the future and, if so, whether that
             employment will pay an amount equal to what he was making
             prior to the accident.

             “Deciding whether there are inconsistencies in testimony,
             reconciling conflicts in testimony, and how this might affect a
             witness’s credibility, are all within the province” of both the
             jury and the trial judge sitting as thirteenth juror. State v.
             Hornsby, 858 S.W.2d 892, 895 (Tenn. 1993). Sitting as
             thirteenth juror, the trial court is “free to believe or disbelieve
             all or part or none of a witnesses’ testimony, even where the
             testimony is uncontradicted or is not directly impeached.”
             Cornell v. State, 118 S.W.3d 374, 378 (Tenn. Ct. App. 2003).
             From the record in this case, without resorting to sheer
             speculation, we have no way to determine whether the trial
             court’s suggested remittitur stemmed from disagreement with
             the jury regarding the credibility of the testimony on Mr.
             Borne’s physical condition, the degree to which his injuries
             were caused by the July 2009 accident, whether Mr. Borne
             will be able to secure employment in the future, the likely
             amount of compensation Mr. Borne would be able to earn if
             he succeeds in finding a job, or whether the trial court’s
             disagreement with the jury was based on some other factor
             entirely. In short, we are left unable to review where the
                     -
             preponderance of the evidence lies, “giving due credit to the
             jury’s decision on the credibility of the witnesses and that of
             the trial judge in his capacity as thirteenth juror.” Foster, 621
             S.W.2d at 145.

             Under these circumstances, we are left little choice but to
             remand the case to the trial court for an explanation of its
             reasons for suggesting remittitur in this case to enable the
             appellate court to conduct a proper appellate review of the
             trial court’s remittitur decision. The trial court’s explanation
             need not be exhaustive, but it should indicate the areas in
             which it disagreed with the jury, including disagreement with
             any factual findings underlying the jury’s verdict or with
             testimony apparently credited by the jury.

Borne, 532 S.W.3d at 310-317 (bold and underline emphasis added).


                                            -8-
        As relevant to the remittitur issue, the Supreme Court summarized the following
trial court testimony:

             Mr. Borne described the progression of his symptoms and his
             overall treatment. He outlined his decision to seek treatment
             from his family physician for low back pain while continuing
             to drive the tractor trailer, and his decision six months later to
             file a workers’ compensation claim. After the workers’
             compensation physician restricted him to light-duty work and
             recommended that he see his own doctor, Mr. Borne said, his
             attorney referred him to neurosurgeon Dr. Dietze.

             Mr. Borne described how his injuries had affected his ability
             to work, engage in hobbies, and do normal activities. He
             enjoyed driving a truck; he missed being a truck driver and
             being able to earn a living. Before the accident, he had
             enjoyed hunting and fishing. Since his injury, Mr. Borne
             said, he can fish only if his wife helps him get his boat in and
             out of the water, and when he goes hunting, he sits in a chair
             in the woods. He said that he does yard work and household
             chores if he is able, but sometimes he is not able. Mr. Borne
             has not worked since the Celadon accident and has instead
             drawn workers’ compensation benefits. His inability to work
             has left him depressed and worried about how he will pay his
             living expenses.

             …

             Mr. Borne agreed that the physical therapy with Dr. Roberts,
             completed in April 2012, had improved his functionality to
             the point that he could lift a twenty-five pound box. The
             improvement from the physical therapy allowed Mr. Borne to
             reduce his intake of anti-inflammatory medication and muscle
             relaxers to the point that he only took them when he overdid
             activities. He said that he does home exercises, walks on a
             treadmill, and he and his wife walk every other day. Despite
             this, Mr. Borne said it was his understanding that Dr. Dietze
             had not released him to do even sedentary work.

             Mr. Borne’s wife, Tamara Williams, corroborated his
             testimony. Before the accident, she said, Mr. Borne was a
             hard worker and a “handy” person who did yard work and
             things around the house, and he also helped his mother. After
                                         -9-
         the accident, it upset Mr. Borne to no longer be able to work
         or to help her and his mother the way he did before the
         accident; Ms. Williams described Mr. Borne as depressed.
         She agreed that Mr. Borne’s functionality improved when he
         did physical therapy with Dr. Roberts.

         At trial, Mr. Borne’s neurosurgeon Dr. Dietze testified to a
         reasonable degree of medical certainty that Mr. Borne had
         suffered a permanent musculoskeletal injury as a result of the
         July 1, 2009 accident. Dr. Dietze first detailed his course of
         treatment for Mr. Borne. In 2012, Dr. Dietze perceived that
         Mr. Borne’s pain increased between 2011 and 2012, so he
         ordered an updated MRI and compared the MRI taken in
         2010 with the one taken in 2012. He said that the comparison
         showed an accelerated degeneration of Mr. Borne’s L4-5 disc
         beyond what would normally occur as part of the aging
         process. He felt that the most logical explanation for the
         accelerated degeneration was an injury to the L4-5 disc in the
         July 1, 2009 accident.

         …

         Dr. Dietze said he did diagnostic tests on Mr. Borne that
         indicated that his pain and functionality would benefit from a
         rhizotomy, a burning of certain nerve endings, and they were
         seeking approval for the procedure from the workers’
         compensation carrier.[4] He noted that, at the time physical
         therapist Dr. Roberts performed the 2011 functional capacity
         evaluation he ordered, Mr. Borne was not capable of
         performing sedentary work. After Mr. Borne completed the
         physical therapy Dr. Roberts recommended, his functionality
         improved. However, Dr. Dietze did not order an updated
         functional capacity evaluation. Dr. Dietze was asked what
         kind of work Mr. Borne would be able to do if the
         recommended rhizotomy were successful; Dr. Dietz noted
         that the physical therapy with Dr. Roberts went very well and
         that the therapist had documented improved strength and
         functionality. He then said, “I do think he could at least meet
         the sedentary, and I would say light – possible light duty,
         somewhere in that range.”[5]

4
    The procedures were not approved.
5
    According to Borne, without the intense therapy regimen with Ms. Roberts, his pain
                                      - 10 -
            Radiologist Dr. Glorioso testified about his interpretation of
            the MRI performed on Mr. Borne in March 2012. After
            viewing the MRI, Dr. Glorioso opined that Mr. Borne had
            suffered an annular fibrosis tear, a disc herniation at the L4-5
            level, bulging discs at the L2-3 and L3-4 levels, and signs of
            facet arthrosis, which is consistent with a degenerative spinal
            problem. Dr. Glorioso said that the annular fibrosis tear
            could be a pain generating source, and the herniation at L4-5
            was consistent with trauma and was likely a pain generating
            source.

            Physical therapist Dr. Roberts testified as well. She outlined
            her procedure for performing the functional capacity
            evaluation in late May and early June 2011. At that time, she
            concluded that Mr. Borne was “not quite capable of
            performing sedentary work activities,” the lowest level of
            work activities, involving sitting for most of the time with
            occasional periods of walking or standing. At the conclusion
            of the functional capacity evaluation, Dr. Roberts
            recommended further physical therapy for Mr. Borne.

            Dr. Roberts testified that, from October 2011 to April 2012,
            Mr. Borne underwent the extensive physical therapy she had
            recommended for him. Dr. Roberts said that the physical
            therapy resulted in significant improvement in Mr. Borne’s
            functionality. By April 2012, Mr. Borne reported that his
            pain levels had improved, down at times to only a 2 on a scale
            of 10. He as able to fish, cook, carry a cooler filled with
            shrimp, lift twenty-five pounds, and walk and stand for over
            two hours at a strawberry festival. He took medication for his
            pain mainly on the weekends when he overdid activity. Mr.
            Borne increased his activities around the house, improved his
            gait, and enhanced his ability to walk long distances. At the
            conclusion, Dr. Roberts released Mr. Borne to continue
            exercise and physical therapy on his own.

            Dr. Roberts was not asked to update her June 2011 functional
            capacity evaluation after Mr. Borne completed the
            recommended round of physical therapy. However, at the
            time of trial, based on her observations of Mr. Borne during

returned.
                                         - 11 -
physical therapy, it was Dr. Roberts’ opinion that Mr. Borne
had improved to the point that he could probably perform
sedentary work.

Behavioral health and rehabilitation counselor Dr. Cates
testified at trial about his vocational evaluation on Mr. Borne.
After reviewing Mr. Borne’s medical records, psychological
assessments, and functional assessments, Dr. Cates observed
Mr. Borne and interviewed him at length about his age,
education, and work history. Crediting Dr. Dietze’s initial
assessment that Mr. Borne is not capable of performing
sedentary work, Dr. Cates said, then he is unemployable and
his work loss would be 100%. In the alternative, even
crediting the assessments indicating that Mr. Borne can
perform sedentary or light work, Dr. Cates felt that employers
were not likely to respond well to the length of time Mr.
Borne had been off work. Consequently, if it is assumed that
Mr. Borne can perform sedentary work, Dr. Cates felt that his
loss of vocational opportunity would be 95-98% of jobs with
directly transferrable skills. Assuming Mr. Borne could
perform light-duty work, Dr. Cates calculated his loss of
vocational opportunity at approximately 93% for jobs with
directly transferrable skills, 58% loss for jobs with generally
transferrable skills, and 45% loss for unskilled jobs. Put
differently, Dr. Cates opined that, if Mr. Borne were deemed
capable of performing sedentary or light-duty work, he would
be available for 55% of unskilled jobs.

Vocational analyst Anthony Gamboa testified at trial about
his economic assessment of how Mr. Borne’s physical
limitations had affected his capacity to work and earn money.
Dr. Gamboa’s vocational economic assessment was based on
Dr. Dietze’s medical records, Mr. Borne’s work history,
earning records and vocational evaluation, and Dr. Roberts’
June 2011 functional capacity evaluation. Based on this
information, Dr. Gamboa concluded that Mr. Borne could
neither sit nor stand for extended periods of time, so he could
only do the type of sedentary work that would allow him to
alternate sitting and standing. Given these restrictions and
Mr. Borne’s low level of reading comprehension, Dr.
Gamboa opined that he would be able to perform only about
2% of the jobs in the labor market. He felt that employers
would be reluctant to hire someone like Mr. Borne who had
                              - 12 -
been out of work for several years. Given these parameters,
Dr. Gamboa described Mr. Borne as essentially
“unemployable.”     Based on the average Louisiana heavy
truck driver’s earnings in 2011 dollars, and projecting Mr.
Borne continuing to work until age sixty, Dr. Gamboa
calculated Mr. Borne’s lost earning capacity at $1,334,647.

Dr. Gamboa acknowledged that his calculation of Mr.
Borne’s lost earning capacity was done without knowledge of
the improvement in his functionality after completing several
months of physical therapy with Dr. Roberts. If it is assumed
that Mr. Borne can perform light-duty or sedentary work, Dr.
Gamboa said, then the vocational economic assessment
“would be done in a very, very different way,” and his loss of
earning capacity would be less. However, Dr. Gamboa
pointed out that Mr. Borne had only performed physical jobs
in the past, such as working as a welder or a truck driver, so
his lack of experience in light-to-sedentary jobs would put
him at a competitive disadvantage in applying for those jobs.
This testimony concluded Mr. Borne’s case-in-chief.

Celadon then presented evidence in response. . . .

…

Celadon also presented the opinion testimony of Dr. Thomas,
the neurosurgeon who examined Mr. Borne at the request of
his workers’ compensation carrier. Dr. Thomas reviewed an
MRI performed in February 2010 and concluded that Mr.
Borne had low back strain. Dr. Thomas examined Mr. Borne
again in 2012, after Mr. Borne had completed the physical
therapy with Dr. Roberts. Dr. Thomas determined that Mr.
Borne’s condition had improved significantly since his first
visit and that he had reached maximum functional
improvement. He felt that Mr. Borne’s condition was lumbar
strain or that it could be arthritic in nature. Dr. Thomas was
of the opinion that, while Mr. Borne could not do heavy-duty
work, he could do light-duty work or perhaps even work that
was light-to-medium-duty.

Celadon also offered the testimony of neurosurgeon Robert
Applebaum. Dr. Applebaum examined Mr. Borne after his
physical therapy with Dr. Roberts, and he reviewed his
                           - 13 -
             medical records, including the MRI films read by Dr.
             Glorioso and relied upon by Dr. Dietze. Dr. Applebaum
             concluded that Mr. Borne likely had no disease or damage
             involving his spinal cord or nerve roots and that there were no
             significant neck or back mechanical or neurological findings.
             He found degenerative changes in the lumbar spine that
             would have predated an accident in July 2009.               Dr.
             Applebaum noted a moderate disc bulge at the L4-5 level but
             felt that it was not clinically significant. Dr. Applebaum
             found no evidence of impairment and concluded to a
             reasonable degree of medical certainty that Mr. Borne could
             return to work in any occupation for which he was otherwise
             qualified.

             Rehabilitation counsel Carla Seyler also testified on behalf of
             Celadon. Ms. Seyler performed her vocational rehabilitation
             examination on Mr. Borne after he had completed physical
             therapy with Dr. Roberts. She interviewed Mr. Borne,
             reviewed his work and educational history, and did vocational
             testing. She reviewed Mr. Borne’s medical records, including
             those of Dr. Dietze and Dr. Applebaum, as well as the records
             of physical therapist Dr. Roberts. She interpreted the records
             of Dr. Dietze and Dr. Roberts as indicating that Mr. Borne
             would be able to perform sedentary to light-duty work, and
             she interpreted Dr. Applebaum’s records as indicating that
             Mr. Borne could return to his regular work with no
             restrictions. Under either physical evaluation, Ms. Seyler
             opined, Mr. Borne would be able to secure a job compatible
             with his education, work history, and physical restrictions,
             and he would be able to replace his income prior to the July
             2009 accident. To overcome the three-year gap in his work
             history, Ms. Seyler suggested that Mr. Borne spend a period
             of time working short-term jobs for a temporary service, to
             gradually get back into the workforce. After a period of
             transition, Ms. Seyler asserted, Mr. Borne would be able to
             secure a job making an amount of money that would equal or
             exceed what he was making at the time of the accident.

Borne, 532 S.W.3d at 287-91.

       On remand, the trial court entered an amended order regarding Celadon’s motion
for a new trial or remittitur, explaining as follows:

                                         - 14 -
       FINDINGS OF FACT AS TO REMITTITUR
           LOSS OF EARNING CAPACITY

9. The Plaintiff called Dr. Anthony Gamboa, Jr. as a
vocational economic analyst who testified that he conducted a
vocational economic assessment on Mr. Borne, looking at his
education, medical records, earning history, his deposition
and average earnings for a person doing the type of work he
was doing, heavy truck driver.

10. In doing his evaluation, [Dr. Gamboa] determined that
Mr. Borne had an occupational disability, in that because of
his injuries, he would have limitations in the terms of the
amount or kind of work he would be able to perform.

11. Dr. Gamboa found that [Mr. Borne’s] lifetime loss of
earning capacity was $1,334,647 based upon his work history,
which included fringe benefits but did not consider any
reduction for business expenses which Mr. Borne was taking
as a truck driver.

12. Dr. Gamboa in his analysis of Mr. Borne’s health status
did not review the report prepared by Dr. Roberts which
found that Mr. Borne had improved after completing 5 to 6
month[s] of physical therapy.

13. The Plaintiff called Dr. C. Greg Cates who has a practice
in rehabilitation counseling and vocational rehabilitation.

14. In his analysis [Dr. Cates] considers a person[’]s[] age,
education, work history and then physical or mental
limitations.

15. On July 23, 2012[,] he conducted a vocational exam of
Mr. Borne, wherein he considered the medical records of
testified [sic] as Plaintiff[’]s to the effect a disability has [on]
a person’s capacity to work and earn.

16. Dr. Cates found that Mr. Borne was significantly
impaired and will have a difficult time reentering the
workplace. Although as a rehabilitation professional, you
hope everybody at some point in time returns to the
workplace.
                        - 15 -
17. Tamara Williams, Mr. Borne’s Wife, testified that he was
a “very hard worker” and was always working. He wanted to
work and wanted to be a provider.

18. She indicated that he was always active and was handy
around the house, caring for her and his mother.

19. After the accident [Mr. Borne] saw Dr. Waguespack who
put him on light duty, which did not make Mr. Borne happy,
because he still wanted to try and go to work.

20. Mr. Borne detailed a long history of working in a variety
of fields and continued to better himself, finding better
employment and opportunity through the years.

21. When he was further restricted by Dr. Deitz and took him
off of work entirely [sic] which also frustrated him because
he was worried about how he was going to survive.

22. He indicated that while he was drawing workers’
compensation, he was not happy because it was not giving
him the life that he wanted. “I would do what it takes to
make a living for my family; not sit around and look at
people.”

23. The Plaintiff called Dr. Courtney Roberts, a doctorate
[sic] in physical therapy, who operates a Physical Therapy
practice in New Orleans where she deals with chronic pain
patients.

24. Typically the goal of treatment is to improve the patient’s
quality of life, increasing their activity level while
maintaining their pain on a lower level.

25. On May 24th, 2011[,] she performed a functional
capacity evaluation on Mr. Borne testing his physical capacity
doing a variety of activities testing his tolerance for his ability
to do them and to see if he can return to work.

26. Dr. Roberts conducted forty-five (45) sessions of
physical therapy, looking to increase [Mr. Borne’s] range of
motion, decreasing his pain, decreasing the muscle tightness,
                            - 16 -
             increasing his strength and increasing muscular stability.

             27. That at the conclusion of the physical therapy [Mr.
             Borne] had improved in his ability to lift and repetitive
             activities however a subsequent functional capacity
             evaluation was not done so it was difficult for Dr. Roberts to
             quantify [Mr. Borne’s] new functional capacity.

             28. Taking all of the proof in regarding [Mr. Borne’s] strong
             work ethic, effort and success at rehabilitation, and desire to
             support his family, the Court believes that he will persevere
             and will have some future income over the next 38 years
             which is the basis for reducing the loss of earning capacity
             from $1,455,000.00 to $1,100,000.00.

(Citations to the record omitted.). Mr. Borne timely appealed.


                                        II.    ISSUE

   The issue before this court on appeal is the following:

             Whether the trial court erred in suggesting remittitur of the
             jury award for loss of earning capacity.


                            III.    STANDARD OF REVIEW

        The remittitur statute, Tennessee Code Annotated section 20-10-102, provides in
full as follows:

             (a) In all jury trials had in civil actions, after the verdict has
             been rendered and on motion for a new trial, when the trial
             judge is of the opinion that the verdict in favor of a party
             should be reduced and a remittitur is suggested by the trial
             judge on that account, with the proviso that in case the party
             in whose favor the verdict has been rendered refuses to make
             the remittitur, a new trial will be awarded, the party in whose
             favor such verdict has been rendered may make such
             remittitur under protest, and appeal from the action of the trial
             judge to the court of appeals.

             (b) The court of appeals shall review the action of the trial
                                        - 17 -
              court suggesting a remittitur using the standard of review
              provided for in T.R.A.P. 13(d) applicable to decisions of the
              trial court sitting without a jury. If, in the opinion of the court
              of appeals, the verdict of the jury should not have been
              reduced, but the judgment of the trial court is correct in other
              respects, the case shall be reversed to that extent, and
              judgment shall be rendered in the court of appeals for the full
              amount originally awarded by the jury in the trial court.”

The statute directs that we use the standard of review set forth in Rule 13(d) of the
Tennessee Rules of Appellate Procedure: “[R]eview of findings of fact by the trial court
in civil actions shall be de novo upon the record of the trial court, accompanied by a
presumption of correctness of the finding, unless the preponderance of the evidence is
otherwise. . . .” Tenn. R. App. P. 13(d).

       We are mindful that under the Tennessee constitution, the invocation of the right
to a jury trial requires that the jury be permitted to determine all disputed factual issues.
Borne, 532 S.W.3d at 308 (citations omitted). As noted in Walton ex rel. Walton v.
Tullahoma HMA, LLC, 572 S.W.3d 180, 184 (Tenn. Ct. App. 2018),

              “The questions of disputed fact to be resolved by the jury
              include the type and amount of any damages awarded to the
              plaintiff.” Id. [(citing Borne, 532 S.W.3d at 308)]. This does
              not mean, however, that a jury’s verdict is not subject to
              judicial supervision in the trial court. “The power of a trial
              judge to disturb a verdict because of his [or her]
              dissatisfaction with the amount of damages rests in this state
              on more than a century of precedent and practice.” Foster v.
              Amcon Int’l, Inc., 621 S.W.2d 142, 144 (Tenn. 1981).
              Indeed, “[w]hile the amount of the verdict is primarily for the
              jury to determine, the trial judge who presided at the trial and
              heard the evidence is the next most competent person to pass
              upon the matter.” Burlison v. Rose, 701 S.W.2d 609, 611
              (Tenn. 1985) (citation omitted).

Walton, 572 S.W.3d at 184.


                                     IV.    DISCUSSION

       Borne argues that the trial court’s remittitur of the jury’s verdict regarding loss of
earning capacity is inconsistent with a preponderance of the evidence. According to
Borne, Dr. Gamboa opined that $1,334,467 represented the earning capacity of an
                                            - 18 -
average truck driver of the same age as Borne and also considered factors unique to
Borne, including his significant reading deficiency. Borne notes that he previously
compensated for his functional limitations, namely a reading deficiency, with jobs that
depended on his physical capabilities. He observes that Dr. Gamboa testified that even
assuming Borne qualified to perform sedentary work, he was unemployable, given his
functional limitations, history, education, and training. Borne further stresses that Dr.
Cates’s analysis showed Borne’s injury resulted in a 95% to 99% loss of vocational
opportunities if Borne’s physical capabilities limited him to sedentary employment, and a
93.2% reduction in such opportunities if Borne was physically capable of light work.
Borne contends that the trial court’s findings as to loss of earning capacity discount the
testimony that Borne’s functional challenges and employment history render him
unemployable in spite of his physical capacity for sedentary or light work.

        According to Borne, the jury’s award (including the excess amount of $120,353
above Dr. Gamboa’s calculations) is consistent with “Tennessee’s liberal admission of
evidence pertaining to loss of earning capacity” and the recognition that earning capacity
is “to some extent, speculative and imprecise.” See Overstreet v. Shoney’s, Inc., 4 S.W.3d
694, 704 (Tenn. Ct. App. 1999)). The jury was instructed to “consider any evidence of
plaintiff’s earning capacity including, among other things, plaintiff’s health, age,
character, occupation, past earnings, intelligence, skill, talents, experience and record of
employment.” Id. Borne argues, therefore, that under the law and the trial court’s
explicit instructions, the jury was permitted to determine that Borne’s physical injuries
had a devastating impact on his earning capacity that would not have been similarly
compromised for an individual with a “white collar” employment history. He claims that
his testimony as to the product-delivery and mileage incentives available under the
Trimac pay scale in conjunction with testimony that he was a “very hard worker” who
wanted to better himself financially, established and proved his pre-injury potential to
earn more than the average heavy truck driver. Borne therefore requests that we reverse
the trial court’s remittitur and reinstate the jury verdict for loss of earning capacity,
arguing that the amended order of the trial court does not recite any proof to justify a
$355,000 remittitur of a $1,455,000 jury award.

        Celadon contends that a preponderance of the evidence supports the trial court’s
remittitur of the jury award regarding loss of earning capacity. According to Celadon, the
jury made the “unfounded assumption” that Borne would never “earn another dollar in
his life” and awarded Borne 100% of his lost wages as if he would never again be able to
return to work rather than the difference between the wage he earned before the accident
and what he is capable of earning after the accident. Celadon asserts that the testimony
of Dr. Gamboa is discredited by: (1) his failure to review and consider key evidence in
this case; (2) testimony concerning Borne’s work history, work ethic, skills, and ability to
learn; and (3) errors in the method of Dr. Gamboa’s calculation of Borne’s alleged lost
earning capacity. Celadon argues that had Dr. Gamboa considered the relevant evidence,
his opinion would have reflected the fact that Borne was capable of working in the future,
                                            - 19 -
which would have significantly diminished the $1,334,647 calculation for his alleged loss
of earning capacity. Celadon notes that the trial court’s findings specifically indicated:
“Dr. Gamboa in his analysis of Mr. Borne’s health status did not review the report
prepared by Dr. Roberts which found that Mr. Borne had improved after completing 5 to
6 months of physical therapy.” According to Celadon, this credibility determination by
the trial court should be given due deference by this court. Foster, 621 S.W.2d at 145.
Celadon claims that Borne is capable of obtaining gainful employment and can reenter
the workforce at a host of positions.

       Celadon, while pointing out that the majority opinion of the Tennessee Supreme
Court in Borne questioned “[w]hether there is even material evidence in the record to
support [the jury] award [for lost earning capacity]” and observed that “the evidence
Celadon used to undermine the basis for Dr. Gamboa’s testimony was substantial,” notes
that the jury award is higher than the $1,334,647 figure that Borne’s expert calculated.
Borne, 532 S.W.3d at 317 n. 26, 318 n. 27 (emphasis in original). According to Celadon,
a review of the record and of the trial court’s amended order providing reasons for its
remittitur reflects that no evidence was introduced in support of a loss of earning capacity
award in excess of $1,334,647, and that figure included no reduction whatsoever for
future earnings should Borne return to work. Celadon further notes that the method of
Dr. Gamboa’s calculation of the total for lost earning capacity was flawed because he did
not consider any reduction for business expenses that Borne was taking as a truck driver,
as he based his calculation on the average income of an over-the-road truck driver in
Louisiana of $38,021 per year rather than Borne’s actual earnings of $36,000 per year,
and because he failed to calculate a net discount to present value as required by
Tennessee law. All of these flaws, Celadon posits, led to a significantly inflated lost
earning capacity figure.

        Celadon contends that if the court finds that the trial court’s remittitur of the jury
award for loss of earning capacity to $1,100,000 is not supported by a preponderance of
the evidence, the award for loss of earning capacity should be capped at $1,334,647, as
there is no proof in the record to support an award for loss of earning capacity higher than
that amount.

       Earning capacity refers not to actual earnings, but rather to the earnings that a
person is capable of making. See Southern Coach Lines v. Wilson, 214 S.W.2d 55, 56
(Tenn. Ct. App. 1948) (explaining that earning capacity refers to the loss of the power to
earn). The extent of an injured person’s loss of earning capacity is determined by
comparing what the person would have been capable of earning but for the injury with
the income which the person is capable of earning after the injury. See Overstreet, 4
S.W.3d at 703. If the injury is permanent, this amount should be multiplied by the
injured person’s work life expectancy, and the result should be discounted to its present
value. Id. In order to recover these damages, the injured person must first prove with
reasonable certainty that the injury has or will impair his earning capacity. Id. Then, the
                                            - 20 -
injured party must introduce evidence concerning the extent of the impairment of his
earning capacity. Id.

       In 29 Am. Jur. 3d Proof of Lost Earning Capacity § 5 (1995), fact finders are
instructed to distinguish between impaired physical capacity and impaired earning
capacity. They are not necessarily the same: “Proof of impaired physical ability is not
always equivalent and therefore not always sufficient to prove impaired capacity to earn.
Depending upon an individual’s skill, education, training or experience, a severe physical
disability may make no difference at all to one individual’s capacity to earn while an
otherwise trivial injury may make a significant difference to another . . . .” See
Overstreet, 4 S.W.3d at 703-704.

       The trial court seemed to base its suggested remittitur determination on the failure
of Dr. Gamboa to not include a review of Dr. Roberts’s findings of improvement and for
not considering any reduction for business expenses. The trial court acknowledged,
however, that “Dr. Cates found that Mr. Borne was significantly impaired and will have a
difficult time reentering the workplace.”

       In our role in evaluating the preponderance of the evidence, giving proper
deference to both the jury and to the trial judge in his capacity as the thirteenth juror, we
find, as acknowledged by the Supreme Court, that the jury’s awards “indicate that the
jury credited the testimony of Mr. Borne’s witnesses and did not credit the testimony of
the witnesses presented by Celadon.” Borne, 532 S.W.3d at 316. That testimony, as
noted by the Court, provided that despite Dr. Roberts not being asked to update her June
2011 functional capacity evaluation after Borne completed the recommended round of
physical therapy, “at the time of trial, based on her observations of Mr. Borne during
physical therapy, it was Dr. Roberts’ opinion that Mr. Borne had improved to the point
that he could probably perform sedentary work.” Borne, 532 S.W.3d at 289. Dr. Cates
related, however, that “even crediting the assessments indicating that Mr. Borne can
perform sedentary or light work, . . . employers were not likely to respond well to the
length of time Mr. Borne had been off work,” and observed that “if it is assumed that Mr.
Borne can perform sedentary work, . . . his loss of vocational opportunity would be 95-
98% of jobs with directly transferrable skills.” Id. Dr. Gamboa, in view of Borne’s “low
level of reading comprehension” . . . opined that [Borne] would be able to perform only
about 2% of the jobs in the labor market. He felt that employers would be reluctant to
hire someone like Mr. Borne who had been out of work for several years” and “described
Mr. Borne as essentially “ ‘unemployable.’” Id. Dr. Gamboa commented that “there are
very, very, very few” occupations open to Borne, and that “he’s just going to have
extreme difficulty getting a job.” Borne, 2014 WL 3778743, at *23. Dr. Cates and Dr.
Gamboa testified that, based on Borne’s physical limitations and prolonged work absence
since the accident, Mr. Borne would likely never work again. The fact that Borne desires
to work and has a strong work ethic does not overcome this testimony. Celadon
presented no evidence suggesting an alternative, lower dollar figure than that calculated
                                            - 21 -
by Dr. Gamboa.

        As we determined in our prior opinion, “Dr. Gamboa clearly did not base his
assessment upon any medical determination that Plaintiff is physically unable to return to
any job. Instead, he opined that Plaintiff’s limited credentials essentially leave him
unable to compete for the jobs which he can physically perform.” Borne, 2014 WL
3778743, at *24 (emphasis in original). We find that the evidence preponderates against
the trial court’s remittitur to $1,100,000, as nothing in the record supports a reduction
below Dr. Gamboa’s calculation of $1,334,647. The evidence also preponderates against
the jury’s award of $1,455,000 because there is no evidence in the record to support any
loss of earning capacity $120,353 greater than the amount calculated by Dr. Gamboa.
Accordingly, the jury’s award for loss of earning capacity is remitted to $1,334,647.


                                  V.      CONCLUSION

       For the aforementioned reasons, we reverse the judgment of the trial court and
remit the jury’s verdict for loss earning capacity damages to $1,334,647. The case is
remanded to the trial court for such further proceedings as may be necessary. Costs of
the appeal are taxed to the appellant, Celadon Trucking Services, Inc.



                                                   _________________________________
                                                   JOHN W. MCCLARTY, JUDGE




                                          - 22 -
