                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE

                                       May 7, 1999 Session

                  POLLY L. ANDREWS v. MAURICE J. SALTER

                      Appeal from the Circuit Court of Davidson County
                        No. 96-C-2632    Thomas W. Brothers, Judge


                   No. M1998-00953-COA-R3-CV - Filed November 9, 2000


The defendant’s automobile ran into the rear of the plaintiff’s car. After the collision, the plaintiff
learned that she had sustained a ruptured disk and commenced the underlying action, seeking
compensation for both personal injury and property damage. At trial, the court admitted evidence
that the plaintiff had been involved two prior accidents within the past ten months. The trial court
granted a directed verdict to the plaintiff on the issue of liability for the accident, but left open the
question of whether the defendant’s actions caused the plaintiff’s injuries. The jury awarded the
plaintiff $2,500 in damages, notwithstanding the fact that her undisputed medical expenses were
substantially higher. The plaintiff appealed, arguing that the admission of the prejudicial and
irrelevant evidence of prior accidents was error and that the jury improperly speculated on the cause
of her injuries. The evidence of the prior accidents was limited, included no proof of personal
injuries, and included no connection between the mere occurrence of these accidents and the
plaintiff’s injuries. Because the evidence of the prior collisions invited speculation, we reverse.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J. M.S.
and WILLIAM C. KOCH , JR., J., joined.

Larry L. Roberts and Gena B. Lewis, Nashville, Tennessee, for the appellant, Polly L. Andrews.

David B. Scott and Dianna Baker Shew for the appellee Maurice J. Salter.

                                              OPINION

        In this personal injury and property damage case, Plaintiff Polly L. Andrews appeals a jury
verdict awarding her $2,500 in damages, which was only a fraction of the uncontroverted, out-of-
pocket medical expenses she incurred.
        This case arose from an automobile accident on August 2, 1995. Ms. Andrews was stopped
at a red traffic light when Mr. Salter's Grand Am ran into the rear of her Mustang. Although no
injuries were reported at the scene of the collision and Ms. Andrews continued on to work, she
subsequently experienced pain, sought medical care, and later discovered that she had ruptured a
disk in her back. Her back injuries required substantial treatment, including an MRI, two months
of physical therapy, cortisone injections, and the use and purchase of a transepidural nerve stimulator
which distracts patients from their pain by sending an electric shock to the affected area. After the
accident involving Mr. Salter, Ms. Andrews was unable to perform housework and other routine
tasks or to pursue recreational activities as she had in the past. Although she missed little work,
except for time she was absent for doctor’s appointments and treatment, she occasionally had to lie
on the floor of an office at work to ease the pain.

       Ms. Andrews sued, alleging negligence. She sought damages for both personal injuries and
property damage. At trial, she provided evidence that her medical expenses totaled $10,609.19, her
lost wages were $425.35, and the estimate to fix her car was $581.42. She also sought damages for
pain and suffering and future medical expenses.

        After all the proof was presented, the trial judge granted a directed verdict to the plaintiff on
the issue of liability for the accident, stating that no reasonable person could conclude otherwise. The
court ruled that Mr. Salter was responsible for any damages which may have resulted from the
accident. However, the judge stated that the main issues in the case were whether Ms. Andrews’
injuries were caused by the accident and, if so, the extent of those injuries. In letting the damages
issue go to the jury, the court also noted that the plaintiff had the burden to prove what, if any,
injuries she suffered as a result of the accident.

       Thus, the issue of the cause, as well as the extent, of Ms. Andrews’ injury was left to the jury.
Closing arguments dealt primarily with that issue. Defendant’s position and argument was that the
damage to Ms. Andrews’ car was so slight that no visible damage could be discerned from
photographs entered into evidence. An impact which caused so little property damage, the argument
goes, could not have resulted in the amount of personal injury and medical costs claimed by Ms.
Andrews.

        Lurking behind this argument, and dealt with directly by Ms. Andrews’ attorney in closing,
was information which had been conveyed to the jury that Ms. Andrews had been involved in two
other automobile accidents within a year prior to the accident caused by Mr. Salter’s negligence.

        The jury awarded Ms. Andrews only a fraction of her uncontroverted out-of-pocket expenses
and, apparently, nothing for pain and suffering. On appeal, Ms. Andrews argues that the jury must
have speculated that some portion of her injuries were caused by her prior automobile accidents. The
problem with that, she argues, is that there was absolutely no proof that she sustained any injury in
the prior accidents. In addition, she asserts that the trial court erred by admitting evidence of the
previous automobile accidents because they were irrelevant and prejudicial.



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        In reviewing the damages award by the jury and approved by the trial court, we are required
to apply the material evidence rule. See Tenn. R. App. P. 13(d). Appellate review is limited to a
determination of whether material evidence can be found in the record that supports the jury’s award
as being at or above the lower limit of the range of reasonableness, giving full faith and credit to all
of the evidence that tends to support that amount. See Poole v. Kroger Co., 604 S.W.2d 52, 54
(Tenn. 1980).

        In view of the facts that the jury was confined to the issue of damages and that the defendant
did not contest the reasonableness or necessity of the medical expenses incurred by Ms. Andrews
after the accident, we must agree with Ms. Andrews that the only conclusion to be drawn from the
jury’s verdict is that it determined that all her injuries were not caused by the accident involving Mr.
Salter. Whether we can affirm the jury’s conclusion depends upon the evidence in the record and
whether that evidence was properly admitted.

        The evidence to which Ms. Andrews objects involves two prior automobile accidents. The
first occurred ten months before the accident with Mr. Salter and involved a collision in which the
front of Ms. Andrews’ car was damaged. That damage had been repaired before the Salter accident.
The second occurred just two months before the accident with Mr. Salter. Ms. Andrews’ car was
hit from the rear in that accident, but, according to Ms. Andrews, sustained no damage, and no
repairs had been done.

        Prior to trial, Ms. Andrews filed a motion in limine seeking to exclude any reference to her
involvement in any previous automobile accidents. She argued that because there was no proof that
she had sustained any injuries from two prior accidents, the introduction of such evidence would
invite unfounded speculation on the part of the jury. The defense argued that at least the most recent
prior accident was relevant to the property damage claim and also argued that they should be allowed
to introduce those portions of the testifying doctor’s deposition regarding her knowledge, or lack
thereof, of the prior accidents because such evidence was relevant to the weight of the doctor’s
opinion on the cause of the injuries. Ms. Andrews had also moved to exclude that testimony from
her neurologist’s deposition.

        The trial court denied Ms. Andrews’ motion and allowed the admission of evidence of the
previous accidents for the limited use of attacking the credibility of the neurologist’s opinion. The
court prohibited the defense from arguing or speculating to the jury that these prior accidents were
the actual cause of Ms. Andrews’ injuries, but allowed the defense to argue that an issue existed “as
to the causal relationship between this accident and these injuries.”

         At trial, Ms. Andrews was questioned about the two prior accidents. She testified she was
not injured in either accident and had not sought medical attention after either one. Her coworker
testified that Ms. Andrews had not exhibited any injury or pain until after the accident with Mr.
Salter. In addition, the defense was allowed to enter into evidence photographs of Ms. Andrews’
vehicle after the November 1994 accident, which photographs reflected damage to the front of her
car. That damage had been repaired, for about $2000, well before the accident caused by Mr. Salter,


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and Ms. Andrews testified it had been returned to its condition before the accident. The second
accident, which involved another car hitting the rear of her car, occurred in June of 1995. Ms.
Andrews testified on cross-examination that her car had not been repaired after the second collision.1

        Ms. Andrews’ expert, Dr. Clinton, a neurologist, testified that her tests revealed that Ms.
Andrews had suffered a ruptured lumbar disk, which was putting pressure on a nerve, and she was
likely to suffer pain in the future. When asked to give an opinion as to any causal relationship
between Ms. Andrews’ medical problems and the accident involving Mr. Salter, the doctor testified,
“In my opinion, the pain and the ruptured disk were caused by the auto accident.”

         On cross-examination, Dr. Clinton testified that her records did not include any reference to
prior automobile accidents. She also had no independent recollection of whether Ms. Andrews had
told her about the previous accidents or not. Dr. Clinton explained that this absence could be due
to the fact that she, the doctor, did not find them significant, because she only includes in her records
what she considers important. She further testified that if Ms. Andrews had mentioned the other
accidents, after which she suffered no pain or other consequence and sought no medical treatment,
the doctor would have considered them insignificant and unrelated to Ms. Andrews’ present
condition. She also stated that, based on the questions normally asked in taking a history, she would
not expect a patient to bring up incidents involving no pain or injury. She said she did not expect a
person to bring up small events that happen.

        When asked about the small amount of damage to the car as compared to Ms. Andrews’
injuries, Dr. Clinton stated that just because the impact was not significant to the car does not
necessarily mean it was not significant enough to cause the back injury.

        The defense offered no evidence to the contrary. Mr. Salter presented no evidence that Ms.
Andrews was injured in the prior accidents or in any other way. He presented no evidence
establishing a connection between the prior accidents and Ms. Andrews’ ruptured disk and related
pain and problems. He offered nothing to rebut the doctor’s statement that the insignificance of
damage to the car was not indicative of the significance of the physical injury which could have been
caused by the accident. Nor did the defense challenge the reasonableness or necessity of Ms.
Andrews’ medical expenses.

        Although the trial court had ordered that Mr. Salter was not permitted to argue or speculate
to the jury that the prior accidents actually caused Ms. Andrews’ injury, his counsel skillfully
planted that speculation through questioning and certainly through the photograph of the
considerable damage to the front end of Ms. Andrews’ car sustained in the accident ten months
earlier. In his closing argument, counsel argued that the “bump” which resulted in no visible
damage to her car could not have caused the $11,000 in damages claimed. He then argued that the
neurologist’s opinion was based solely on what Ms. Andrews had told her and that there had been


         1
          To the ex tent the photo graphs of the rear of M s. Andrews ’ car after M r. Salter hit her sho wed no o r little
visible damage, they reflected any dam age sustained in both accide nts.

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no mention of a “head-on collision.” He also stated that “those might or might not have been
significant.” Thus, the issue of whether the prior automobile accidents had caused all or some of
Ms. Andrews’ injuries was raised, and the jury was invited to speculate.

        Although juries may properly draw inferences from the evidence before them, whether direct
or circumstantial, it is well settled in Tennessee that “[a]n inference can be drawn only from the facts
in evidence, and cannot be based on surmise, speculation, conjecture, or guess.” Benton v. Snyder,
825 S.W.2d 409, 414-415 (Tenn. 1992) (quoting 32 C.J.S. Evidence § 1044 (1942)). “An inference
is reasonable and legitimate only when the evidence makes the existence of the fact to be inferred
more probable than the nonexistence of the fact." Underwood v. HCA Health Services of Tenn., Inc.,
892 S.W.2d 423, 426 (Tenn. Ct. App. 1994). Juries are not permitted to engage in conjecture,
speculation, or guesswork as to which of two equally probable inferences is applicable. See Stringer
v. Cooper, 486 S.W.2d 751, 756 (Tenn. Ct. App. 1972). Speculation has been defined as “the art
of theorizing about a matter as to which evidence is not sufficient for certain knowledge.” BLACK’S
LAW DICTIONARY 1255 (5th ed. 1979).

       There was simply no evidence presented which provided any basis for a conclusion that Ms.
Andrews’ injuries were caused, even in part, by the prior automobile accidents or by any other
mishap Ms. Andrews may have suffered in the past. Ms. Andrews presented evidence that her pain
and physical problems were caused by the accident that was caused by Mr. Salter’s negligence. She
presented evidence of the causal link and of the nature and extent of her injuries. Whether the jury
would have disbelieved the extent of her injuries if presented only with the argument and
photographs regarding the slight amount of damage to her car we cannot know. However, the jury
was allowed to consider evidence which was irrelevant and/or was prejudicial beyond its relevance.

        Only relevant evidence is admissible. See Tenn. R. Evid. 402. “Evidence is relevant if it
tends to prove the issue or constitutes a link in the chain of proof.” Pridemark Custom Plating, Inc.
v. Upjohn Co., Inc., 702 S.W.2d 566, 572 (Tenn. Ct. App. 1985). Relevance has two facets:
materiality and probative value. See N. Cohen, D. Paine, and S. Sheppeard, TENNESSEE LAW OF
EVIDENCE § 401.2 at 82-83 (3d ed. 1995). “Materiality limits evidence to proof of issues properly
provable in the case.” Id. Probative value requires that evidence “assist in proving what it is offered
to prove.” Id.

       Even relevant evidence should be excluded when its probative value "is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ."
Tenn. R. Evid. 403. In the explanatory note to Rule 403, “unfair prejudice” is defined as “[a]n undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.”

        The photographs of damage to the front of Ms. Andrew’s car in a collision occurring ten
months before the accident at issue, when that damage had been repaired and when Mr. Salter had
hit the rear of Ms. Andrews’ car, were not relevant to the issues in this case. Defense counsel’s
reference to the failure to mention a “head-on collision” can only be interpreted as a reference to the


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earlier collision. There was uncontroverted evidence that Ms. Andrews suffered no injuries in the
prior accidents and had not displayed any pain or other problems after those accidents. The defense
provided absolutely no linkage between the prior accidents and Ms. Andrews’ injuries. Absent any
such linkage, evidence regarding the fact that she had experienced prior automobile accidents had
no more relevance than any other mishap or accident she may have experienced without injury. She
was not required to disprove any other possible cause of her injuries, which was the burden placed
upon her by the evidence of only the occurrence the prior accidents and the speculation encouraged
by its introduction. Without a greater connection between the accidents and her injuries, the
prejudice created by the evidence of the prior accidents was greater than any probative value it may
have had.

       Reviewing all the evidence and the jury’s verdict, we cannot uphold the judgment.

       Whether it be said that there is no evidence to support the verdict, or that the jury
       overlooked or ignored uncontroverted evidence, or that the jury acted upon a
       misconception of the evidence or the law, or that the verdict is so inconsistent or
       inadequate or both as to indicate the various forms of improper consideration by the
       jury, this Court is satisfied that justice was not done, and that the verdicts are not
       consonant with the facts shown by the uncontroverted evidence and the law
       applicable thereto.

Loftis v. Finch, 491 S.W.2d 370, 377 (Tenn. Ct. App. 1973).

        Ms. Andrews proved by her own testimony and by that of her coworker and her doctor that
she incurred injuries as a result of the accident caused by Mr. Salter, and the law did not require her
to disprove every other potential cause. The defense was allowed to introduce the fact of two prior
accidents with no evidentiary predicate that they were related to her injuries. There was simply no
evidentiary basis to allow the jury to conclude that Ms. Andrews was injured in the prior accidents.
We are convinced that the limited and incomplete evidence that two prior accidents occurred,
without any basis for connecting them to Ms. Andrews’ injuries, invited the jury to speculate that
she had been injured in the prior accidents when there was no direct or circumstantial evidence to
support such a conclusion.

        Accordingly, the judgment of the trial court is reversed and this case is remanded for a new
trial and further proceedings consistent with this opinion. Costs of this appeal shall be taxed to
Appellee, for which execution may issue if necessary.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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