                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                      September 16, 2013 Session

                             JOHNNY PYLE v. BETTY MULLINS

                         Appeal from the Circuit Court for Knox County
                           No. 1-197-11    Dale C. Workman, Judge




                No. E2012-02502-COA-R3-CV-FILED-NOVEMBER 25, 2013


Johnny Pyle sued Betty Mullins for personal injuries sustained in a three-vehicle accident.1
Mullins admitted liability. The issue of damages was tried to a jury. At the close of the
proof, the jury returned a verdict awarding Pyle $15,000 in compensatory damages. The trial
court, in its role as the thirteenth juror, affirmed the verdict. Pyle appeals. He claims the
verdict should be set aside because of a lack of material evidence to support the verdict,
erroneous evidentiary rulings, and the failure of the court to instruct the jury regarding a pre-
existing condition. On our review, we conclude that there is no reversible error.
Accordingly, the judgment of the trial court is affirmed.

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

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which T HOMAS R.
F RIERSON, II, J., and N ORMA M CG EE O GLE, S P. J., joined.

Donna Keene Holt, Knoxville, Tennessee, for the appellant, Johnny Pyle.

Brian H. Trammell, Knoxville, Tennessee, for the appellee, Betty Mullins.




       1
           The driver of the third vehicle involved in the accident is not a party to this appeal.
                                         OPINION

                                              I.

       The basic facts in this case are essentially undisputed. This accident occurred on
October 28, 2010, at the intersection of Kingston Pike and Campbell Station Road in
Farragut. Pyle, operating a Toyota pickup truck pulling a trailer with lawn equipment in it,
was stopped behind another vehicle at a traffic light. Mullins was driving a Lincoln sedan.
She struck the rear of Pyle’s trailer, thereby forcing Pyle’s truck into the car ahead of him.
Pyle was taken from the scene to the hospital by ambulance. After being x-rayed, he was
diagnosed with a cervical strain and released. A week after the accident, Pyle, a landscaper,
began chiropractic treatment for his complaints of continued neck and back pain.

       In September 2011, Pyle sued Mullins for negligence. Pyle sought $75,000 in
compensatory damages for his pain and suffering, past and future medical expenses and other
damages stemming from the “serious and painful bodily injuries” he allegedly sustained in
the accident. As previously noted, Mullins admitted liability. The sole question going
forward pertained to the issue of compensatory damages.

       At the time of the July 2012 trial, Pyle, then 51, continued to work in his landscaping
and mowing business. He testified he had worked as a contract laborer since he was a
teenager and had never had any health problems before the accident. Pyle conceded that,
during discovery, he forgot to state that he was involved in another accident on September
17, 2010, in which a car struck the side of a different trailer he was pulling. Pyle said he
suffered no injuries and never sought any treatment in the earlier accident.

       Trooper Kevin Stroup of the Tennessee Highway Patrol investigated both accidents.
Regarding the Mullins/Pyle accident, he observed damage to the trailer Pyle was pulling, to
the back and front of his truck, and to the rear of the car that was stopped in front of Pyle.
He saw scuffs and scratches on the front of Mullins’ car that correlated with the damage to
Pyle’s trailer. He did not observe the same scratches and marks when shown a photograph
of Mullins’ car purportedly taken after it was washed following the accident. In his report,
Stroup estimated damages of over $400 to all three cars. Stroup testified that he was also
called to the scene of the earlier wreck involving Pyle. There were no injuries, but the
vehicle that struck Pyle sustained disabling damage.

       Mullins, 74, testified she did not know how the accident happened – she pushed the
brake and then struck Pyle. Mullins said there was little visible damage to her car. She
continued to drive it and decided not to have the estimated $904 in damages repaired.
Mullins was uninjured. The impact did not cause her car’s front air bags to deploy. Contrary

                                             -2-
to Pyle’s testimony, Mullins said she approached Pyle after the accident to ask if he was
okay, to which he replied, “I think so.” Mullins agreed there were four vertical scratches to
the front of her car that matched the bars on the back gate of Pyle’s trailer. She
acknowledged her deposition testimony to the effect that she saw the gate of the trailer was
bent in. She added that she knew her car had made contact with the bottom of the trailer, but
said,

              that’s all I saw. I couldn’t see that much damage. There was
              nothing on the ground, nothing broken. . . .

Mullins admitted that on the day of the accident with Pyle, she learned about his September
17 accident as a result of a conversation between the driver of the third vehicle and Trooper
Stroup. She admitted she did not mention her knowledge of Pyle’s accident in answer to an
interrogatory which asked her to identify anyone she talked to about the accident at the scene
or thereafter and to state “all you remember about such conversation.”

        Kendal Hicks, Pyle’s employee, testified that before the accident, Pyle worked in the
lawn business “like a 25-year-old man.” After the accident, Pyle could “hardly get in and out
of the truck.” John Tindell, a friend of Pyle, testified that he also owned a lawn business and
had helped Pyle in the months after the accident. He had seen a decrease in Pyle’s ability to
do the required physical work.

        Dr. Chad Jacobs, a chiropractor, first saw Pyle on November 4, 2010. Pyle
complained of being in constant pain since the accident with Mullins. He suffered from
neck, arm, shoulder and back pain, sleep difficulty, headaches, and stiffness. On examining
him, Dr. Jacobs found that, in addition to daily headaches, Pyle had severe restrictions as to
his range of motion in his neck and difficulty bringing his hand away from his body. X-rays
showed the main problem was a decrease in the cervical curve. Jacobs diagnosed Pyle with
cervical, thoracic, and lumbar shoulder sprain or strain. In 25 sessions over the course of ten
weeks, Dr. Jacobs performed adjustments to Pyle’s spine in an effort to return his cervical
curve to its pre-accident condition. He used traction, and applied muscle stimulation. Pyle’s
intensity of pain decreased and, in many areas, the spasms went from severe to mild. His
range of motion increased in all areas. By January 13, 2011, Dr. Jacobs felt that Pyle had
benefitted as much as he could from chiropractic treatment and released him with no
restrictions. Because Pyle still had pain and decreased range of motion in his shoulder joints,
Dr. Jacob ordered MRIs of the left shoulder and cervical spine to make sure that Pyle had not
“torn something.” Dr. Jacobs was certain that the injuries for which he treated Pyle were
caused by the accident.




                                              -3-
        Dr. Jonathan Degnan testified as an expert orthopedic surgeon. Pyle first came to see
him in May 2011 for neck and upper back pain. He found that Pyle had some spasm and
trigger point that limited his range of motion. He diagnosed Pyle with a chronic cervical
strain – a soft tissue injury – for which he prescribed trigger point injections and physical
therapy. He explained muscle spasms of the spine can continue for a long time, but noted
that six months after an accident was unusual, although not as unusual with someone who
did manual labor. Dr. Degnan testified that six months out, he was treating Pyle for both scar
tissue and inflamed tissue, which causes treatment to take longer. He explained that muscles
normally heal after about six weeks with proper treatment, but can be easily reinjured before
then, causing the healing process to start over. He testified that determining the severity of
such an injury relied on the truthfulness of the patient and any objective findings. Pyle
continued injections until August and completed the prescribed physical therapy on
September 13, 2011. At that point, Dr. Degnan found that Pyle had reached maximum
medical improvement. He did not believe Pyle would suffer any permanent injury as a result
of the accident and felt he could return to his normal daily activities. He opined, to a
reasonable degree of medical certainty – based on the truth of the history Pyle gave him, and
the fact that he was asymptomatic prior to the October 28 accident – that Pyle’s symptoms
were the result of the accident.

        Dr. Fred Killeffer testified as an expert neurosurgeon for the defense. Four weeks
before trial, Dr. Killeffer reviewed all of Pyle’s medical records, took new x-rays and,
examined Pyle. He concluded Pyle’s initial x-rays revealed a “mild straightening of the
cervical spine but no [other] evidence of trauma” and “some degenerative changes. . . but
nothing else.” Dr. Killeffer agreed that Pyle sustained a cervical strain in the accident. On
his review of Pyle’s February 2011 MRIs, he found no evidence of trauma at all. On his own
examination, he found Pyle to have normal curvature of the neck, no side to side
displacement, and no muscle spasm. Pyle further had mild tenderness in the area of the
muscles over his shoulders, good range of motion of his shoulders, arms, and joints and
normal reflexes. Testing of his neck showed that Pyle was “reasonably within the range of
normal” – he had a slight tilting of his head to the right side but “nothing of any
significance.” Dr. Killeffer reported his physical examination of Pyle as “basically . . .
normal.” Dr. Killeffer formed three conclusions as a result of his observations: (1) Pyle
sustained a mild to moderate soft tissue cervical spine strain as a result of the accident, with
expected results including mild to moderate pain lasting for up to 10 to 14 weeks, but not
beyond; (2) reasonable treatment would include mild oral analgesics and noninvasive
physical therapy for 8 to 10 weeks after the accident; and (3) Pyle sustained no permanent
impairment as a result of the accident.

       Pyle introduced proof of his medical expenses totaling $19,120.62. Pyle explained
he did not claim any lost income because the accident occurred near the end of the mowing

                                              -4-
season. He testified he just wanted “to be done right.” At the close of the proof, the jury
returned a verdict awarding Pyle $15,000 in damages. The trial court denied Pyle’s
subsequent motion for an additur or new trial. The court awarded Pyle discretionary costs
in the amount of $4,467.25. Pyle’s timely appeal followed.

                                               II.

       Pyle raises issues that we essentially restate and address as follows:

              1. Was there material evidence to support the jury’s verdict?

              2. Did the trial court err in its refusal to instruct the jury on the
              law regarding aggravation of a pre-existing condition?

              3. Did erroneous evidentiary rulings by the trial court deprive
              Pyle of a full and fair opportunity to present his case and, more
              probably than not, affect the outcome?

                                              III.

      Regarding this Court’s review of an approved jury verdict, the Supreme Court recently
observed:

              Where the trial judge has approved the verdict in its role as
              thirteenth juror—as the trial court did in this case—the Court of
              Appeals’ review of the verdict . . . is to determine whether the
              verdict is supported by material evidence. Poole v. Kroger Co.,
              604 S.W.2d 52, 54 (Tenn. 1980); see also Thrailkill, 879
              S.W.2d at 841; Ellis, 603 S.W.2d at 129. Material evidence is
              “evidence material to the question in controversy, which must
              necessarily enter into the consideration of the controversy and
              by itself, or in connection with the other evidence, be
              determinative of the case.” Knoxville Traction Co. v. Brown,
              115 Tenn. 323, 331, 89 S.W. 319, 321 (1905). An appellate
              court is required to take “the strongest legitimate view of all the
              evidence in favor of the verdict, assume the truth of all evidence
              that supports the verdict, allowing all reasonable inferences to
              sustain the verdict, and to discard all countervailing evidence.”
              Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495,
              501-02 (Tenn. 2012) (quoting Barkes v. River Park Hosp., Inc.,

                                               -5-
              328 S.W.3d 829, 833 (Tenn. 2010)). The material evidence
              analysis is very deferential to the award by the jury and the
              judgment of the trial court when it affirms the verdict as the
              thirteenth juror. See Ellis, 603 S.W.2d at 129 (“[W]hen 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.”
              (emphasis added)). “It matters not a whit where the weight or
              preponderance of the evidence lies under a material evidence
              review.” Hohenberg Bros. Co. v. Mo. Pac. R.R. Co., 586
              S.W.2d 117, 119-20 (Tenn. Ct. App. 1979). “It is simply a
              search of the record to ascertain if material evidence is present
              to support the verdict.” Id. Because the material evidence
              standard lies at the foundation of the right to trial by jury, if
              there is material evidence to support a jury verdict, the appellate
              courts must affirm it.

Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-SC-R11-CV, 2013 WL 4673609
at *5 (Tenn. Aug. 30, 2013)(additional internal citations omitted).

       Trial judges have broad discretion in controlling the course and conduct of a trial. See
State v. Caughron, 855 S.W.2d 526, 541 (Tenn. 1993). Such discretion necessarily extends
to making determinations regarding the admissibility of evidence, see Shipley v. Williams,
350 S.W.3d 527, 551 (Tenn. 2011), and controlling the scope and manner of examination
of witnesses. See Coffee v. State, 188 Tenn. 1, 3, 216 S.W.2d 702, 703 (1948). A trial
court’s “decision to admit or exclude evidence will be overturned on appeal only where there
is an abuse of discretion.” Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 131
(Tenn. 2004).

       Whether a jury has been properly instructed is a question of law. Troup v. Fischer
Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007). This court reviews questions of law de novo
with no presumption of correctness accorded to the trial court’s conclusions. Id. (citing
Whaley v. Perkins, 197 S.W.3d 665, 672 (Tenn. 2006)).

                                             IV.

       Pyle asserts that the award of $15,000 is both inadequate and unsupported by the
evidence. He reasons that the award “does not even pay [his] medical expenses, much less
allow him any award for pain and suffering. In response, Mullins succinctly sets out the
relevant line of inquiry, as follows:

                                              -6-
               The most significant component of the primary issue at trial was
               which medical expenses claimed for treatment of injuries by
               [Pyle] were reasonable, necessary, and proximately related to the
               subject motor vehicle accident. The jury obviously concluded
               that the medical expenses reasonably related to this accident
               were considerably less than the amount claimed. The real
               question on this appeal is whether there is material evidence . . .
               to support the jury’s verdict, as approved by [the trial court].

       In personal injury cases the amount of compensation is primarily for the jury to
determine. If there is any material evidence to support the award, it should not be disturbed.
Foster v. Amcon Intern., Inc., 621 S.W.2d 142, 146-47 (Tenn. 1981); Ellis v. White
Freightliner Corp., 603 S.W.2d 125, 127 (Tenn. 1980). When the trial judge approves the
amount of damages fixed by the jury in personal injury cases, the determination is entitled
to great weight and “well-nigh conclusive” on appeal. Ellis, at 128-29.

        In his complaint, Pyle sought $75,000 in compensatory damages for his injuries –
headaches, sleeplessness, back and neck pain, pain and suffering, and medical bills, including
ambulance and hospital charges, chiropractic treatment, physical therapy, MRIs, and other
medical expenses. He did not claim any damages for lost wages or decreased earning
capacity. At trial, Pyle testified to his injuries from the accident and their effect on his life.
He began seeing Dr. Jacobs for his continuing pain and soreness some two to three weeks
after the accident. Over the next two and a half months of treatment, Pyle initially saw some
improvement – his lower back pain and daily headaches soon resolved; but he had continuing
pain in his neck and upper back, between his shoulder blades. The discomfort left him
unable to sleep comfortably. Pyle declined to take pain medications because they upset his
stomach. Instead, Dr. Jacobs prescribed a “TENS Unit,” a device that administered a small
shock to the area of the pain. Pyle said this helped, but that the pain always returned. Dr.
Jacobs released Pyle in January 2011 with no physical or work restrictions. On releasing
him, Dr. Jacobs ordered MRIs to further determine the cause of Pyle’s complaints of
continuing neck and back pain.

       In May 2011 – some seven months after the accident and four months after being
released by Dr. Jacobs – Pyle saw Dr. Degnan. A friend had referred him to the doctor. Dr.
Degnan performed a series of trigger point injections at the site of the pain and prescribed
physical therapy. In September 2011, Dr. Degnan opined that Pyle had reached maximum
medical improvement and released him with no restrictions. Following his release, Pyle
received no further medical treatment. He testified that he continued to suffer pain in his
neck and between his shoulder blades. Pyle testified he “kept getting a little better” with the
treatments he underwent, but added, “I never have to this day been able to function like I

                                               -7-
[did] before the accident.” He explained that at home, he found it difficult to lift his young
children or play sports with them. At work, he could not push a wheelbarrow anymore, pick
up anything heavy, or sit on a mower for long periods of time. Pyle said he imposed his own
limits on his activities because he knew what he was and was not capable of doing.

      Pyle introduced proof that he incurred a total of some $19,000 in medical expenses
from the time of the accident to the trial. He introduced a breakdown of his medical
expenses as follows:
                                                Last Date of
             Provider                            Treatment             Amount

       Rural Metro                                  10/28/10             $     674.38
       Mercy Medical Center                         10/28/10                 1,667.00
       Knoxville ER Physicians                      10/28/10                   342.00
       Knoxville Radiological Group                 10/28/10                    74.00
       Dr. Jacobs                                   01/13/11                 4,512.00
       Walgreens                                    05/28/11                    51.24
       MRIs                                         02/18/11                 3,790.00
       Dr. Jonathan Degnan                          09/13/11                 3,350.00
       East TN Spine & Sport-phy. therapy           09/20/11                 4,660.00

                                                    Total                $19,120.62

        Undoubtedly referring to the testimony of Mullins’ medical expert, Dr. Killeffer, Pyle
asserts in his brief that “[t]he only medical evidence disputing the length of time and expense
required for treatment of Mr. Pyle’s admitted causally-related cervical strain is insufficient
to deny him adequate compensation.” Generally summarized, Dr. Killeffer testified that
Pyle’s cervical strain would have resolved within 10 to 14 weeks after the accident. Dr.
Killeffer thus held the opinion that the MRIs and other treatment Pyle obtained after being
released by his chiropractor in January 2011 were unrelated to the injury he sustained in the
accident. As a result, Dr. Killeffer expressly opined that the cost of the MRIs, and all of the
treatment by Dr. Degnan, including the physical therapy he ordered, were not reasonable and
necessary expenses in the case at bar.

        Dr. Degnan testified he would not have ordered MRIs for one who had experienced
only a soft tissue injury because MRIs six months after an accident would not show subtleties
in the tiny nerves. As a consequence of this, he concluded that the MRIs Pyle underwent
were not medically necessary.




                                              -8-
        In the present case, the jury was left to consider the differing opinions of the parties’
expert medical witnesses – Dr. Degnan and Dr. Killeffer – regarding the nature, effects and
treatment of the cervical spine strain Pyle sustained in the accident. First, we note that both
experts agreed that the MRIs Pyle underwent, at a cost of $3,790, were not medically
necessary. As Dr. Degnan explained, he would not have ordered an MRI because nothing
indicated that Pyle suffered more than a soft tissue strain, an injury for which an MRI is not
an appropriate evaluation tool. The jury further heard Dr. Killeffer’s expert opinion that the
type of injury Pyle had would not have been symptomatic any longer than 10 to 14 weeks
after the accident. Thus, any medical expenses he incurred after being discharged by his
chiropractor were not reasonable or necessary expenses for which Mullins is liable.
Assuming the jury credited Dr. Killeffer’s testimony, it was appropriate for them to deduct
$11,851.24 – representing all the medical expenses Pyle incurred after Dr. Jacobs released
him in January 2011, without restrictions – from the total claimed expenses. Consequently,
the jury could have found that Pyle incurred $7,269.38 in reasonable and necessary medical
expenses as a result of the accident. Given the total award of $15,000, it follows that the jury
awarded Pyle an additional $7,730.62 for his other claimed elements of damages.

         Certainly, there was other, contradictory expert testimony by Dr. Degnan upon which
the jury could have arrived at a different result. Had they accepted Dr. Degnan’s opinion,
the jury could have concluded that, as a result of the accident, Pyle sustained a chronic
cervical strain that required further, extended treatment. Any such possibility, however, is
not the question. Again, our review of the jury’s award of damages “is subject to the rule
that if there is any material evidence to support the award, it should not be disturbed.” Porter
v. Green, 745 S.W.2d 874, 879 (Tenn. Ct. App. 1987). On our review of the record, we
conclude that there is material evidence to support the jury’s award in the case at bar.

                                                 V.

       Pyle asserts that the trial court erred in refusing to instruct the jury with respect to a
defendant’s liability for the aggravation of a plaintiff’s pre-existing condition. In support of
his conclusion that such an instruction was required, Pyle contends that the evidence at trial
clearly shows (1) that he had a pre-existing “degenerative disk disease” in his neck at the
time of the accident and (2) that, as a result of this condition, the effects of the injury he
sustained became a chronic condition that necessitated extended treatment.

         To begin, the rule is that a trial court “should give a requested instruction if it satisfies
three requirements: (1) it is supported by the evidence, (2) it embodies the party’s theory, (3)
it is a correct statement of the law.” Otis v. Cambridge Mutual Fire Ins. Co., 850 S.W.2d
439, 445 (Tenn. 1992)(citing Hayes v. Gill, 216 Tenn. 39, 42-43, 390 S.W.2d 213, 214
(1965); Strickland v. City of Lawrenceburg, 611 S.W.2d 832, 837 (Tenn.Ct.App.1980)).

                                                 -9-
The gist of Pyle’s position is that the cervical strain he sustained in the accident became
chronic – leading to more pain and extended treatment – because he was already in a
weakened state as a result of his pre-existing degenerative disk condition. In this regard, Pyle
alludes to the “oft stated principle . . . that a tortfeasor ‘must accept the person as he finds
him’ and the person injured by the tortfeasor is entitled to recover all damages proximately
caused by the acts of the tortfeasor.” Haws v. Bullock, 592 S.W.2d 588, 591 (Tenn. Ct. App.
979). In Town of Franklin v. Elrod, 140 Tenn. 228, 204 S.W. 298 (1917), the Supreme
Court addressed liability in the context of the negligent infliction of an injury on a plaintiff
with pre-existing conditions. The Court stated, in relevant part:

              The liability of one who negligently or unlawfully injures the
              person of another is not to be measured by the physical strength
              of the party injured or his capacity to endure suffering. One of
              weak physical structure, or small vitality, or in ill health, has as
              much right to protection from violence as a robust athlete, and
              in either case the physical injury, the bodily harm, which is
              actually caused by the violence, whether one be strong or weak,
              healthy or sick, is the natural consequences of the wrong.

204 S.W. at 301. Regarding a tortfeasor’s liability for damages stemming from the
aggravation of a plaintiff’s pre-existing condition, Pyle correctly recites the law. The
insurmountable problem with his position is that, in the present case, there is no expert
medical proof of aggravation of a pre-existing condition. Pyle’s reliance on the testimony
of Dr. Degnan is unpersuasive. Dr. Degnan testified that the MRI showed Pyle has
“degenerative changes” at three levels of his cervical spine. He testified that these changes
occurred over time and were present before the accident. Dr. Degnan was examined
regarding the relationship between degenerative changes and neck pain and testified as
follows:

              Ms Holt [counsel for Pyle]: And there was some discussion of
              the degenerative changes that are shown on the MRI.

                                          *    *     *

              And does the presence alone indicate that the patient should
              have pain?

              Dr. Degnan: No. It would just make them more susceptible.

                                          *    *     *

                                              -10-
             Ms. Holt: Does the presence of degenerative changes impact in
             any way the course of . . . or could it impact in any way the
             course of Mr. Pyle’s condition in having a longer time to heal?

             Dr. Degnan: You’re more susceptible with degenerative
             changes. The joint is not performing its normal function, so the
             soft tissue has to compensate for that. And it’s not made to do
             that structurally.

                                        *    *     *

             Ms. Holt: Are you of the opinion that a motor vehicle accident
             can cause some neck pain to manifest in a person who has
             degenerative changes as a result of the motor vehicle accident?

             Dr. Degnan: It’s very common.

                                        *    *     *

             Mr. Trammell [counsel for Mullins]: So you’ve testified that
             degenerative changes make a person more susceptible for
             developing neck pain after a motor vehicle accident?

             Dr. Degnan: Not just a motor vehicle accident. It could be any
             kind of trauma.

      In refusing the requested jury charge, the trial court, in an exchange with Pyle’s
counsel, explained its ruling. We quote pertinent portions of the exchange:

             Ms. Holt: And the preexisting condition?

             The Court: There’s no testimony that there was an aggravation
             of a preexisting arthritis in this case. Dr. Degnan testified he
             treated and diagnosed a sprain/strain.

                                       *     *     *

             But there’s no pleading of . . . aggravation of preexisting
             condition by [Pyle] in this case. [. . . .]. Secondly, no doctor

                                            -11-
              testified they treated an aggravation, or there was an
              exacerbation of a preexisting condition. Dr. Degnan testified he
              treated a sprain/strain from this wreck. The chiropractor said he
              treated a sprain/strain from this wreck. And that’s the only
              diagnosis they made.

                                          *    *     *

              Ms. Holt: Dr. Degnan talked about the extent of – the length of
              his was from the preexisting –

              The Court: He had preexisting arthritis but he didn’t say
              anything happened to it in this wreck.

              Ms. Holt: That it could prolong his injury, it could prolong his
              pain.

              The Court: It may have. No, he testified that such a condition
              may make you more susceptible, but he did not testify in this
              case it made this man more susceptible.

       On our review of the record, we conclude that the trial court accurately summarized
the evidence in support of its ruling. In summary, Dr. Degnan opined that a person with
degenerative changes like those Pyle has is more susceptible to injury and pain and that it
was common for a motor vehicle accident – or any kind of trauma – to cause some neck pain
to manifest itself in a person with degenerative changes. As the trial court correctly noted,
Dr. Degnan did not testify that the accident aggravated or exacerbated Pyle’s condition or
had any specific effect on it at all. In short, we conclude that Dr. Degnan’s generalized
observations about susceptibility and common correlations between neck pain and
“[a]nything that causes an excessive range of motion to an abnormal joint” is not material
evidence sufficient to support the requested instruction in the present case. To the contrary,
we conclude that giving an instruction on aggravation of a pre-existing condition in the case
at bar would have been error. “An instruction on an issue where there is no evidence in the
record raising that issue is erroneous.” Carney v. Coca-Cola Bottling Works, 856 S.W.2d
147, 150 (Tenn. Ct. App. 1993)(citing Wilson v. Tranbarger, 218 Tenn. 208, 236, 402
S.W.2d 449, 461 (1965)). The trial court did not err in refusing to instruct the jury regarding
aggravation of a pre-existing condition.




                                              -12-
                                              VI.

        Lastly, Pyle asserts that a “series of evidentiary rulings and comments by the trial
court” deprived him of a “full and fair opportunity to present his case.” In particular, Pyle
challenges the exclusion of evidence which, he says, was offered to show “the force of the
impact and the capability of this accident to have caused a cervical strain serious enough to
still exhibit objective signs of the injury six months later. . . .” (Emphasis in original.)

       First, Pyle contends that the trial court erred in refusing to allow certain testimony by
Trooper Stroup, the investigating officer. When Pyle’s counsel asked Stroup whether
Mullins told him she thought her brakes had gone out, defense counsel objected. The trial
court questioned the relevance of the inquiry in light of Mullins’ admission of liability. The
court further stated:

              She admits liability. If we go any further, we’ll stop. Okay.
              Next question. You can ask him about what he saw, the damage
              to the vehicles, all that stuff is relevant, but she admits she was
              negligent and caused this wreck.

      In further questioning, Pyle’s counsel asked the trooper, “and you didn’t find anything
wrong with the brakes?” The following exchange took place:

              Mr. Trammell: Same objection, Your honor.

              The Court: Any other motions?

              Mr. Trammell: Yeah. Move to strike the response.

              The Court: Testimony will be stricken. Want to challenge me,
              counsel? I told you she admitted liability.

              Ms. Holt: I know, Your Honor, but the force –

              The Court: You want me to declare a mistrial?

              Ms. Holt – of the impact –

              The Court: You want me to declare a mistrial?

              Ms. Holt: No, Your Honor.

                                             -13-
              The Court: Then don’t ask it again. I told you twice now. All
              you’re trying to do is prejudice the jury against her when she
              admits liability.

              Ms. Holt: No, I’m not, Your Honor.

              The Court: and that’s the only purpose is to have offered it since
              she’s admitted liability.

              Ms. Holt: Your Honor, it’s for –

              The Court: Do you want a mistrial or not, counsel?

              Ms. Holt – purpose of what kind of impact there was.

       Ms. Holt next questioned Stroup whether the damages he observed at the scene were
“consistent with someone bumping the trailer at less than 15 miles an hour?” When defense
counsel objected, the trial court advised Ms. Holt to “lay some groundwork first.” After
generally questioning the trooper as to his experience in investigating accidents, the
examination continued as follows:

              Ms. Holt: And part of your job is assessing some degree of what
              kind of speed would be required to create the damage that you
              observed?

              Trooper Stroup: Yes.

              Mr. Trammell: Your Honor, I’m going to object to this
              testimony. This witness has not been offered –

              The Court: He says that – well –

              Mr. Trammell: – as an accident reconstructionist.

              The Court: Come up here. Come on. Anything else, counsel?

              Ms. Holt: No, Your Honor.

       The record reflects no further examination by Ms. Holt regarding the estimated speed
at which Mullins was traveling. Moreover, Pyle made no offer of proof with respect to

                                             -14-
counsel’s attempts to examine the witness on either subject. We hold that there is no error
shown in this record with respect to this testimony and the trial court’s comments about it.

        Similarly, we find no error in the trial court’s refusal to allow Pyle to testify to his
observations of Mullins’ car based on photographs that were taken some eighteen months
after the accident. The trial court ruled that Pyle’s observations were irrelevant because he
did not personally view her car at the time of the accident and therefore had no basis to make
a comparison. The photographs in question were subsequently entered into evidence through
Mullins’ testimony. Thus the jury was presented with “before and after” photographs of
Mullins’ vehicle, heard testimony concerning the damage to Mullins’ vehicle, and could draw
its own conclusions.

        The jury heard from Pyle how he was suddenly struck from behind. He testified to
the force of the impact – how he was forced into the car ahead of him and thrown back into
his seat. He described in great detail the damage to his trailer, truck and the mower he was
hauling. For her part, Mullins acknowledged that she struck Pyle’s trailer and observed
damage to its back gate. Numerous photographs depicted the damage to Pyle’s property and
Mullins’ vehicle. Trooper Strout also testified to the damage he observed to all three
vehicles, which he estimated at over $400 per vehicle. Both the trooper and Mullins testified
that marks to the front of Mullins’ car correlated to the bars on the back of Pyle’s trailer.
Pyle testified that he tried to exit the truck, but immediately realized he was hurt and stayed
inside. He left the scene by ambulance. Through his medical expert, Dr. Degnan, Pyle was
able to establish how his injury was caused. Dr. Degnan explained “it’s not how fast you go,
it’s how quickly you stop,” noting that when you are hit from behind and then run into
something in front of you, your body absorbs the energy as you decelerate and can cause
cervical injuries.

        We conclude that Pyle’s repeated efforts to establish, through Trooper Stroup, that
there was nothing wrong with Mullins’ brakes was irrelevant given her admission of liability
for the accident, whatever the cause. Further, Pyle’s counsel seemingly abandoned her effort
to establish that Mullins was traveling at more than 15 miles per hour, the estimated speed
she stated in her deposition testimony. Notably, Trooper Stroup was not offered as an expert
in accident reconstruction, and Pyle offered no expert witness on this matter. Moreover, no
offer of proof was made with regard to Stroup’s testimony. In the absence of an offer of
proof and the inclusion of the excluded testimony in the record, this Court cannot consider
the alleged errors. See Davis v. Hall, 920 S.W.2d 213, 218 (Tenn. Ct. App. 1995).

       In view of the evidence presented, we cannot agree with Pyle’s contention that he was
not permitted to present evidence in support of his contention that the “force of the impact”



                                              -15-
resulted in a serious, prolonged injury. The record is replete with evidence about the accident
itself. Again, the case for damages boiled down to a question of whether Pyle was injured
and, if so, to what extent? The trial court emphasized this when it explained the basis for his
evidentiary rulings regarding Trooper Stroup’s testimony, as follows:

              [Mullins] admits that she was negligent and that that negligence
              caused the accident. . . .

              So the issues for you to decide are . . . was [Pyle] injured as a
              result of that fault? If so, the extent of those injuries. And if so,
              what damages . . . is he entitled to under the law.

              The fact whether she could have been intoxicated and hurt in
              this wreck does not make him any more damaged, does not
              make him entitled to any more or less money than that she may
              have done it just a little bit negligent does not mean he’s entitled
              to any less compensation for any injuries acquired. She’s at
              fault. Period. And so the questions are was he hurt, and the
              extent thereof. And those issues are the reason why we went
              around and around the bush this morning.

              I’ve allowed some of this information in about what happened
              in this wreck because it may . . . help you to determine . . . those
              issues, whether someone was hurt or not. And that’s the only
              reason we went into some of these details about the wreck,
              because it may be material circumstantial evidence about the
              injury. But she’s at fault. The question is, was he hurt in this
              wreck?

        Pyle also contends that the trial court impermissibly restricted his ability to show that
Mullins’ testimony at trial was inconsistent with her pre-trial admission of liability and
payment of Pyle’s property damages. In particular, Pyle’s counsel sought to elicit testimony
from Mullins that “the ‘responsibility’ she had taken included paying for the repairs of the
very damage she was now questioning had been sustained in this accident.” Pyle refers to
testimony by Mullins that she “just couldn’t believe the way his trailer looked,” and that “the
trailer was so tall and there’s no way my car could have hit enough to make a dent, I don’t
think. . . .” When counsel sought to question Mullins whether she “took responsibility for
all of the damage to these vehicles,” the trial court asked how the inquiry was relevant and
concluded, “No, that’s been stipulated to start with in the answer.” Ultimately, in addition
to her admitted liability, which was repeatedly communicated to the jury, Pyle elicited

                                              -16-
Mullins’ admission that marks on the front of her vehicle correlated with the bars on the back
of the trailer. Mullins further acknowledged her deposition testimony that she also observed
the back of the trailer was dented. In light of such evidence, we do not agree that the trial
court erred by limiting further questioning of Mullins regarding her responsibility, actual or
perceived, for the accident.

       Pyle further asserts that the trial court erred in excluding character testimony from Jeff
Boggan, one of Pyle’s customers. Boggan, a resident of Village Green Subdivision, testified
Pyle mowed his lawn and he had known Pyle for 5 years. He testified Pyle was under
contract by the homeowner’s association to mow all of the lawns in the subdivision. Pyle
asked Boggan whether he was “familiar with [Pyle’s] reputation in that area for honesty?”
In response, defense counsel objected as to relevance. The trial court sustained the objection.
At the close of trial, Pyle made an offer of proof that “Boggan would have said he knew
[Pyle’s] reputation in that community for honesty.” The following ensued:

              The Court: At that point all [Boggan] had said is he knew he
              mowed in their subdivision. The point how he would know is
              all he would know about is him mowing in the subdivision. I
              had no other basis at that point to know how he would know –

              Ms. Holt: I asked in that community.

              The Court: – in reputation.

              Ms. Holt: And you said, no, that subdivision isn’t enough.

              The Court: No. That’s right. I said the subdivision is not
              enough, because you have to show the community in which he
              works or lives is exactly what the case law says. And the
              community in which he works is not just that subdivision

              Ms. Holt: Right.

              The Court: He works in a lot of subdivisions.

              Ms. Holt: But that subdivision is a place where he works, so that
              was –

              The Court: Okay. All right. Anything else, counsel?



                                              -17-
      The Supreme Court has addressed the admissibility of character evidence pursuant to
Tenn. R. Evid. 608(a) as follows:

              Rule 608(a) generally permits reputation and opinion evidence
              of a witness’s character for truthfulness or untruthfulness, and
              provides that

                     the credibility of a witness may be attacked or
                     supported by evidence in the form of opinion or
                     reputation, but subject to these limitations: (1) the
                     evidence may only refer to character for
                     truthfulness or untruthfulness, and (2) the
                     evidence of truthful character is admissible only
                     after the character of the witness for truthfulness
                     has been attacked.

State v. Dutton, 896 S.W.2d 114, 117-18 (Tenn. 1995).

       In the present case, Pyle’s character for truthfulness was certainly attacked when he
was cross-examined extensively regarding his failure to include the fact of his earlier
accident in prior sworn testimony. As a result, Pyle was entitled to introduce evidence of his
reputation for truthfulness. At the same time, before a witness may be permitted to testify
to another person’s character for truthfulness, a proper foundation must be laid. That is,

              to warrant admitting evidence about a witness’s reputation for
              truthfulness, it is necessary to qualify the reputation witness
              “through a showing of ‘such acquaintance with the [person
              under attack], the community in which he has lived and the
              circles in which he has moved, as to speak with authority of the
              terms in which generally he is regarded.’ ”

Id. (quoting United States v. Watson, 669 F.2d 1374, 1381 (11th Cir. 1982))(additional
citations omitted). Here, we conclude that no proper foundation was laid to establish that
Boggan was sufficiently acquainted with Pyle so as to enable him to “speak with authority”
about Pyle’s reputation for honesty in the community. Moreover, we conclude that even if
shown, any error in excluding Boggan’s reputation testimony was harmless. Evidence of
Pyle’s “honesty” and reputation for telling the truth was admitted through the testimony of
his long-time friend and fellow lawn business owner, John Tindell.




                                             -18-
        Lastly, Pyle contends that the trial court erred in denying his motion in limine that
sought to exclude evidence of the earlier motor vehicle accident. In his motion, Pyle argued
that evidence regarding the September 17 accident should be excluded as it could “introduce
confusion” to inform the jury of an unrelated accident that did not involve personal injury or
the same trailer. The trial court’s ruling on the motion in limine is not before us. However,
both parties appear to agree that the trial court denied the motion based on its conclusion that
the subject testimony was relevant to the issue of Pyle’s credibility. As a result, Mullins was
permitted to question Pyle with respect to his failure to mention the accident in prior sworn
testimony on two separate occasions.

        “Our cases have consistently held that a prior inconsistent statement is admissible
under the Rules of Evidence when the prior statement is used to impeach the credibility of
a witness.” State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)(citing, e.g., Jones v. Lenoir
City Car Works, 216 Tenn. 351, 356, 392 S.W.2d 671, 673 (1965) (stating that “prior
inconsistent statements of a witness are admissible for the purposes of impeachment and
testing the credibility of the witness”)). In the present case, Pyle was examined about his
omission of the earlier accident and offered his explanation that he simply forgot about it.
The trial court properly instructed the jury that it would decide whether any method of
impeachment was established and, if so, the weight to give the impeached witness’s
testimony. The jury was further instructed that a “witness who has been impeached as to a
particular fact may be truthful about other facts.” We think the jury was entitled to hear the
challenged testimony and consider its effect, if any, on Pyle’s credibility. The trial court did
not abuse its discretion in denying Pyle’s motion in limine.

        We have reviewed each of Pyle’s allegations of error and conclude there was no
reversible error in the trial court’s evidentiary rulings. “ If no errors occurred during the trial,
or if any errors occurred but were harmless, the judgment based on the verdict should stand.”
Doochin v. United States Fidelity & Guar. Co., 854 S.W.2d 109, 112 (Tenn. Ct. App. 1993);
Tenn. R. App. P. 36(b). Pyle is entitled to no relief on this issue.

                                               VII.

       The judgment of the trial court is affirmed in toto. This case is remanded, pursuant to
applicable law, for enforcement of the trial court’s judgment and the collection of costs
assessed below. Costs of appeal are taxed to the appellant, Johnny Pyle.




                               ___________________________________________
                                CHARLES D. SUSANO, JR., PRESIDING JUDGE

                                               -19-
