                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON


                                                                FILED
JEAN STRAUB and PAUL STRAUB,           )
                                       )                          March 31, 2000
       Plaintiffs/Appellants,          )      Shelby Circuit No. 70354 T.D.
                                       )                         Cecil Crowson, Jr.
v.                                     )                      Appellate Court Clerk
                                       )
JASON D. ROBERTS and                   )      Appeal No. W1998-00854-COA-R3-CV
WILLIAM J. HATCHER,                    )
                                       )
       Defendants/Appellees.           )


              APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE


                          THE HONORABLE KAY ROBILIO, JUDGE



For the Plaintiffs/Appellants:         For the Defendants/Appellees:

David M. Sullivan                      Carol A. M. Hayden
Memphis, Tennessee                     Memphis, Tennessee




                                       AFFIRMED


                                       HOLLY KIRBY LILLARD, J.



CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                              OPINION

        This is an automobile accident case. The plaintiff was a passenger in a car struck by the

pickup truck driven by the defendant. The jury awarded the plaintiff $7,210 in damages. The jury

assessed 50% of the fault to the defendant driver and 50% to the non-party driver of the plaintiff’s

vehicle. The trial court denied the plaintiff’s motion for a new trial, but granted an additur of $6,000.

The plaintiff appeals. We affirm, finding that there is material evidence to support the jury’s verdict,

and that the alleged errors by the trial court do not warrant a new trial.

        On December 6, 1994, plaintiff Jean Straub (“Straub”) was riding in a car driven by her

daughter-in-law, Eugina Straub (“Eugina”). Driving south, Eugina reached an intersection and

entered the left turn lane to turn east. As she began her turn, she was struck by a northbound pickup

truck driven by seventeen-year-old Jason Roberts (“Jason”). Jason’s younger brother, Jacob Roberts

(“Jacob”), was a passenger in the pickup truck.

        Jason’s truck struck Eugina’s car on the passenger side of the vehicle. Straub was injured

in the accident. Straub sued Jason and his stepfather, William Hatcher, the title owner of the truck.

She sought $125,000 in damages for pain and suffering, emotional trauma, lost earning capacity, and

medical bills of almost $9,000. Straub alleged that the accident caused permanent impairment to the

mobility of her neck, as well as recurrent episodes of vertigo. Straub’s husband sought $25,000 for

loss of consortium. Straub alleged that Jason had been speeding and had run a red light, and that his

negligence caused the collision.

        The Defendants denied that Jason was the cause of Straub’s injury. They asserted that

Eugina was at fault by turning in front of oncoming traffic, and that her fault either caused or

contributed to the accident.

        At trial, Eugina testified that southbound traffic at the intersection was controlled by a left-

turn arrow, and that the arrow was green when she entered the intersection and began her turn. She

said that, after she began to turn, she saw a red truck speeding toward her in the northbound curb

lane. When she saw that the truck was not going to stop, she immediately braked. She said that

Jason’s truck swerved left and struck the passenger side of her car. Eugina testified that after the

collision, Jason ran up to her crying out, “I’m so sorry. I’m so sorry. I was speeding. I ran the red

light. I am so sorry. I am so sorry.” She denied telling the Memphis police service technician (“PST

officer”) who investigated the accident that she had turned left on a red light, and in fact denied even

talking to the PST officer at the scene of the accident.
        The PST officer who responded to the accident report, James Ash (“Ash”), testified that he

interviewed both Jason and Eugina at the scene of the accident. Ash said that Jason admitted that

he had been speeding, and said that the light turned yellow as he approached the intersection, and

then turned red, and then the accident occurred. Ash said that Eugina told him that she had been in

the middle of the intersection waiting to turn left when the light turned red for her, and that after the

light turned red she began her turn and was struck by Jason’s truck.

        Straub testified that the left-turn arrow was green when Eugina turned. Straub testified that

the accident had caused her to suffer terrible neck pain.

        At trial, Jason admitted that he had been speeding at the time of the accident, going 45 to 50

miles per hour on a street for which the posted speed limit is 40 miles per hour. Jason said that he

was traveling north at 45 to 50 miles per hour as they approached the intersection. Jason testified

that the light was green, but turned yellow as he neared the intersection. He said that he did not slow

down to stop at the light because he believed he could make it through the intersection before the

light turned red. He testified that when Eugina turned in front of him, he slammed on his brakes and

swerved left, in an attempt to avoid a collision.

        Jason maintained that he was close enough to the intersection that he could have made it

through on the yellow light, had Eugina not turned in his path. Jason said that immediately after the

accident he checked to make sure that his brother was all right, and then ran to Eugina’s car to check

on its occupants. He admitted that he told Eugina that he was sorry, and that he had been speeding,

but denied having told her that he ran the red light. Jason testified that he never told anyone that he

had run the red light, and that Officer Ash’s recollection was mistaken.

        The Plaintiff then sought to question Jason about the traffic ticket he received after the

accident for disregarding the red light. Jason had signed the back of the ticket and mailed in his fine.

After establishing that Jason had not appeared in court on the charge, but instead mailed in the fine,

the trial court ruled evidence about the ticket inadmissible.

        Jason’s younger brother, Jacob, a passenger in Jason’s truck the evening of the accident, also

testified at trial. Jacob testified that his brother was speeding as their truck approached the

intersection, and that the traffic light turned yellow before they started through the intersection.

Jacob said that as they entered the intersection, Eugina Straub’s car turned in front of them, his

brother slammed on his brakes and swerved left, and they struck Eugina’s car. He said that the light

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had turned yellow only a few seconds before the collision but could not say what color it was at the

time of impact.

       Plaintiff introduced the deposition of Thomas Arnold, M.D., a physician who treated Straub

after the accident. Dr. Arnold testified that Straub came to him complaining of neck pain, dizziness,

and tingling in her arms and hands. He diagnosed a slipped disc in her neck, benign positional

vertigo, i.e., dizziness related to the position of the head, and sensory polyneuropathy or nerve

damage in her arms. Dr. Arnold opined that the vertigo and slipped disc were caused by the car

accident but that the nerve damage was unrelated to the accident. Dr. Arnold testified that Straub

had a slight decreased range of motion of her neck. He also testified that he had successfully treated

Straub for vertigo in August 1986, and that she had not experienced vertigo since his treatment. The

fact that she had had vertigo in the past, however, put her at greater risk of experiencing vertigo in

the future. Overall, based on her slipped disc and vertigo, Dr. Arnold rated Straub’s impairment as

7 percent of the body as a whole. Dr. Arnold acknowledged that if Straub had experienced benign

positional vertigo prior to the accident it would be unlikely that the accident was the cause of the

vertigo she experienced after the accident, although the accident may have exacerbated it.

       The Defendants called several witnesses to testify about Straub’s medical history, based on

her medical records. The first was Sheila Mathis (“Mathis”), an employee of Baptist Memorial

Hospital who worked in the records department of the Baptist Hospital Medical Center (“Baptist

Central”). Mathis testified that she was one of the custodians of medical records for Baptist Health

Care Systems and that, pursuant to subpoena, she had copied medical records on Straub and brought

them to court. Over the objection of the Plaintiff’s counsel, Mathis testified, based on the medical

reports, that Straub had complained of neck pain before the car accident, and that a medical

examination showed that Straub had “mild degenerative changes along the neck spine.”

       On cross-examination, Mathis stated that the medical records from which she testified were

kept at Baptist Hospital East (“Baptist East”), and that she worked only at the Baptist Central

location. The trial court determined that Mathis was not the proper custodian to testify regarding the

records from Baptist East, and excused her as a witness.

        Plaintiff’s counsel asked the trial court to instruct the jury to disregard Mathis’ testimony

and to strike the medical reports from which she testified. The trial court agreed and asked the

Plaintiff’s counsel to draft an instruction. The trial court then gave the jury the instruction proposed

                                                   3
by the Plaintiff’s counsel:

        The Court has determined that Ms. Sheila Mathis’ testimony that she was custodian
        of Baptist Memorial Hospital East’s medical records was erroneous. Consequently,
        the Court instructs you to disregard her testimony in its entirety. Her testimony is not
        to be given any weight by you and her testimony is hereby stricken by the Court.
        Exhibits 4, 5, and 6 are stricken, and the jury is to give those exhibits no weight in
        your deliberations.

        The Defendants then called to testify the custodian of the medical records of the Ear, Nose

and Throat Group in Memphis, Tennessee. Based on the Group’s medical records, the witness

testified that Straub had complained of vertigo in 1990, prior to her accident. On cross-examination,

the witness acknowledged that the medical report merely stated that Straub complained of vertigo,

and did not state that she had been diagnosed with any specific type of vertigo.

        The Defendants then called a secretary for Dr. C.T. Langford, who read a letter written by

Dr. Langford to Straub’s former employer to support Straub’s application for early retirement. In

the letter, Dr. Langford stated that Straub suffered from hypertension, and said that continued

employment could increase her hypertension and jeopardize her health.

        At the close of proof, the Plaintiff asked for a directed verdict, arguing that there was no

proof from which the jury could find either Straub or Eugina at fault. The trial court granted the

Plaintiff’s motion for a directed verdict regarding the Plaintiff’s fault, but denied it regarding Eugina.

        During closing arguments, the Plaintiff objected to defense counsel’s reference to the

televison shows “Dateline” and “L.A. Law,” and the suggestion that the Plaintiff might be a “greedy”

person “seeking the pot of gold at the end of the litigation rainbow.” The trial court responded by

instructing counsel for the Defendants to “forget the TV shows.” Counsel for the Defendants then

continued closing without further mention of television shows.

        After deliberation, the jury returned a verdict in favor of the Plaintiff, and awarded her $7,210

in damages. Plaintiff’s husband was awarded nothing on his loss of consortium claim. In its

allocation of fault, the jury assigned 50% of the fault to Jason Roberts, and 50% to Eugina Straub.

Accordingly, the trial court entered judgment against the Defendants in the amount of $3,605.

        The Plaintiff then filed a Rule 50.02 motion, asking that the trial court set aside the jury

verdict and order a new trial. The Plaintiff argued that the jury’s finding that Eugina Straub was 50%

at fault was contrary to the weight of the evidence. In the alternative, the Plaintiff asked for an

additur of $45,000. The trial court denied the Plaintiff’s request for a new trial, but granted an


                                                    4
additur of $6,000. Consequently, the Defendants were ordered to pay Straub total damages in the

amount of $6,605. From this order, the Plaintiff now appeals.

       On appeal, the Plaintiff raises essentially four issues: 1) Whether the trial court erred in

denying the Plaintiff’s motion for a directed verdict; 2) Whether the trial court erred in excluding

evidence of Jason’s traffic citation; 3) Whether the trial court erred in admitting evidence about the

Plaintiff’s medical condition prior to the accident; and 4) Whether the trial court erred in denying

the motion for a new trial.

        On appeal, the jury’s findings of fact will be set aside only if there is no material evidence

to support the jury’s verdict. Tenn. R. App. P. 13(d). The trial court’s conclusions of law are

reviewed de novo upon the record, with no presumption of correctness. See Union Carbide Corp.

v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

        The Plaintiff contends on appeal that Jason’s negligence was the sole and proximate cause

of the accident, and that the jury’s finding that Eugina was at fault was against the clear weight of

the evidence. Consequently, the Plaintiff argues that the trial court erred in denying the Plaintiff’s

motion for a directed verdict as to Eugina’s fault.

        In considering a motion for directed verdict, both the trial court and the reviewing court on

appeal must look to all the evidence, take the strongest legitimate view of the evidence in favor of

the opponent of the motion, and allow all reasonable inferences in favor of that party. If there is any

doubt as to the conclusion that can be drawn from the whole evidence, the motion must be denied.

Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Hurley v.

Tennessee Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A directed verdict

cannot be sustained if there is material evidence in the record that would support a verdict for the

defendant under any of the theories advanced by the defendant. Conatser, 920 S.W.2d at 647;

Hurley, 922 S.W.2d at 891.

        In this case, the PST officer who investigated the accident testified that immediately after the

accident, Eugina told him that she had turned left after the light for southbound traffic turned red.

Jason and his brother testified that their light for northbound traffic was green as they approached

the intersection. Both brothers testified that the light turned yellow as they neared the intersection.

Based on this evidence, the jury could reasonably conclude that Eugina turned left, in front of

Jason’s truck, after the traffic light for both directions of traffic turned either yellow or red, on the

                                                   5
assumption that Jason would stop his truck at the intersection. This is material evidence from which

the jury could find Eugina 50% at fault. The trial court’s denial of the Plaintiff’s motion for a

directed verdict on the issue of Eugina’s fault is affirmed.

        The Plaintiff also argues that the trial court erred by excluding evidence of the traffic citation

Jason received for disregarding the red light. The trial court excluded evidence of the traffic citation

based on Williams v. Brown, 860 S.W.2d 854 (Tenn. 1993). In Williams, the Tennessee Supreme

Court concluded that the payment of a traffic fine in lieu of an appearance in court is “neither a guilty

plea nor an express acknowledgment of guilt,” and, therefore,“that evidence of payment of a traffic

fine without contest is not admissible in a later action based on the underlying event resulting in the

traffic citation.” Id. at 856. Based on Williams, we affirm the trial court’s exclusion of evidence

regarding Jason’s traffic citation.

        The Plaintiff argues that the trial court committed reversible error by allowing Sheila Mathis

to testify as custodian of Baptist East’s medical records. When it became apparent that Mathis was

not the proper custodian to testify about the records of Baptist East Hospital, counsel for the Plaintiff

asked only that the jury be instructed to disregard Mathis’ testimony and not consider the records

from which she testified. The instruction proffered by the Plaintiff was given. The Plaintiff did not

ask for a mistrial. Consequently, this objection is waived on appeal. Perkins v. Sadler, 826 S.W.2d

439, 442 (Tenn. Ct. App. 1991).

        The Plaintiff next argues that the trial court erred by admitting evidence that Straub suffers

from hypertension, asserting that this evidence had no relevance to any issue at trial. The Defendants

note that Straub sought damages for lost earning capacity. Dr. Langford’s letter showed that the

Plaintiff had been advised to retire because of her health and therefore, had suffered no loss of

earning capacity as a result of the accident.

        The determination of whether evidence is relevant, and therefore admissible, is within the

province of the trial court, and will be reversed by an appellate court only upon a showing that the

trial court clearly abused its discretion. Pridemark Custom Plating, Inc. v. Upjohn Co., Inc., 702

S.W.2d 566, 572 (Tenn. Ct. App. 1985). We find no abuse of discretion by the trial court in

admitting Dr. Langford’s letter into evidence.

        The Plaintiff also argues that the trial court erred by allowing evidence of Straub’s 1990

complaint of vertigo. The Plaintiff contends that even if the evidence is relevant, the prejudice

                                                    6
caused by the evidence outweighed its probative value under Rule 403 of the Tennessee Rules of

Evidence.

        “The determination of whether evidence is relevant, or, if relevant, should be excluded for

one of the reasons set forth in Rule 403, addresses itself to the sound discretion of the trial court.”

State v. Griffis, 964 S.W.2d 577, 594 (Tenn. Crim. App. 1997). Therefore, the trial court’s decision

to admit evidence of Straub’s 1990 complaint of vertigo will not be reversed unless the trial court

clearly abused its discretion.

        In this case, Dr. Arnold diagnosed the Plaintiff with benign positional vertigo, and opined

that the accident caused the Plaintiff’s vertigo. On cross-examination, Dr. Arnold acknowledged that

if the Plaintiff had suffered from benign positional vertigo prior to the collision, it would be unlikely

that the accident caused her vertigo. Evidence of the Plaintiff’s pre-collision complaint of vertigo

was relevant to whether the accident caused the vertigo for which she sought damages. The Plaintiff

indicates that this evidence was unduly prejudicial because there are 18 different types of vertigo,

and the Plaintiff was not diagnosed with benign positional vertigo in 1980. The Plaintiff had ample

opportunity to introduce evidence of this fact. We find no abuse of discretion, and the decision of

the trial court on this issue is affirmed.

        The Plaintiff argues that the trial court erred by allowing into evidence portions of Dr.

Arnold’s deposition in which Dr. Arnold testified about the Plaintiff’s physical ailments that were

not caused by the car accident. The Defendants argue that these portions of Dr. Arnold’s deposition

demonstrated his bias toward the Plaintiff since he included charges for treatment of the Plaintiff’s

unrelated medical conditions on the bill that purportedly included only charges for conditions related

to the accident. We find no abuse of discretion, and the decision of the trial court on this issue is

affirmed.

        The Plaintiff argues that in considering the Plaintiff’s motion for a new trial, the trial court

failed to exercise its duty as thirteenth juror to weigh the evidence and determine whether the

evidence preponderated against the jury’s verdict.

        In considering a 60.02 motion for a new trial, the trial court’s duty is to act as a thirteenth

juror and to “independently weigh the evidence, and to determine whether evidence preponderates

in favor of or against the jury verdict.” Loeffler v. Kjellgren, 884 S.W.2d 463, 468-69 (Tenn. Ct.

App. 1994). In this case, the trial court’s order of judgment shows clearly that it independently

                                                   7
weighed the evidence and concluded that the evidence preponderated in favor of the jury’s verdict.

The trial court’s order denying the Plaintiff’s motion for a new trial reads:

               Pending before the court is plaintiffs’ motion for a new trial or in the
       alternative motion for additur. The court finds the jury had evidence before it from
       which it could have concluded that a non-party, Eugina Straub’s fault could
       approximately be assessed at fifty percent (50%) of the total fault to be allocated. It
       is apparent to the court that Eugina Straub did advance into the path of the
       defendant’s speeding pick-up truck. Accordingly, plaintiffs’ motion for a new trial
       is DENIED.
               The court grants plaintiffs’ motion for additur in the amount of $6,000.

Consequently, this issue is without merit.

       The Plaintiff next argues that the trial court erred by denying the Plaintiff a new trial based

on Defense counsel’s alleged misconduct during trial. The Plaintiff alleges that Defense counsel’s

misconduct consisted of: attempting to circumvent discovery rules and statutes governing the

subpoenaing of medical records by calling Mathis to testify about medical records of which she was

not a custodian; making remarks in closing argument that were designed to appeal to the passion and

prejudice of the jury; having her husband place undue emphasis on portions of Dr. Arnold’s

deposition that he read for the jury at trial; and failing to identify the medical records custodians as

witnesses with knowledge of discoverable matters in Defendants’ response to interrogatories.

       The Plaintiff did not request a mistrial based on any of this alleged misconduct. Unless a

mistrial is demanded as soon as grounds for it are known, it is waived. Perkins v. Sadler, 826

S.W.2d 439, 442 (Tenn. Ct. App. 1991). Moreover, a motion for a new trial pursuant to Tenn. R.

Civ. P. 60.02 lies within the sound discretion of the trial court. On appeal, the scope of review is

limited to whether the trial judge abused his discretion. Underwood v. Zurich Ins. Co., 854 S.W.2d

94, 97 (Tenn. 1993). We find no abuse of discretion, and the trial court’s decision on these issues

is affirmed.

        The Plaintiff also alleges that Defense counsel engaged in misconduct by making

inappropriate statements in closing argument. The Plaintiff alleges that counsel’s references to

television shows and remarks about greed were designed to inflame the passions of the jury.

        Determining what arguments are permitted in closing argument is largely within the

discretion of the trial court. Davis v. Hall, 920 S.W.2d 213, 217 (Tenn. Ct. App. 1995). “The

appellate courts generally will not interfere with the discretionary action of a trial court in refusing

to grant a mistrial or a new trial for misconduct in argument unless the argument is clearly


                                                   8
unwarranted and made purely for the purpose of appealing to passion, prejudices and sentiment

which cannot be removed by sustaining the objection of opposing counsel.” Id.

       In this case, the trial court sustained the Plaintiff’s objection to the remarks by counsel for

the Defendants, and ordered Defense counsel to cease reference to any television shows. The

Plaintiff did not request a mistrial based on these remarks. We find no error by the trial court in its

denial of the Plaintiff’s motion for a new trial on this ground.

       The decision of the trial court is affirmed. Costs on appeal are taxed to the Appellants, Jean

Straub and Paul Straub, for which execution may issue, if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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