                                                                                          10/20/2017
                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                    November 5, 2015 Session Heard at Memphis

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

                   Appeal by Permission from the Court of Appeals
                          Circuit Court for Shelby County
                     No. CT00327310      Robert S. Weiss, Judge


                             No. W2013-01949-SC-R11-CV




SHARON G. LEE, J., concurring in part and dissenting in part.

       I concur in the majority’s decision regarding the pretrial agreement. I dissent from
the majority’s analysis regarding superseding cause. The trial court did not err in
declining to give an instruction on superseding cause; the majority’s analysis confuses
causation in fact with superseding cause. Further, I dissent from the majority’s analysis of
the remittitur issue and its remand to the trial court. The majority, in five lengthy
footnotes, attempts to defend its decision. The reasoning in this separate opinion is
clearly stated; I will not debate with the majority in a series of footnotes.

                                    Superseding Cause

       One of the disputed issues for the jury was whether Mr. Borne’s alleged injury
would have occurred but for Celadon’s negligence. Mr. Borne presented testimony that
he was injured in the July 1, 2009, collision with Celadon’s truck. Mr. Borne described
the collision as a “hard” impact, and soon after the accident, he began receiving medical
treatment. Although Mr. Borne worked for six months following the accident, he
eventually stopped working based on medical advice and restrictions. At the time of trial,
Mr. Borne was still receiving medical treatment and experiencing pain that significantly
limited his daily activities.

       At trial, Celadon contended the July 1, 2009, collision was of minimal force and
was not capable of causing Mr. Borne’s injury. Further, Celadon argued that Mr. Borne
suffered from a pre-existing arthritic condition for which Celadon was not responsible
and that other traumatic events could have caused Mr. Borne’s injury, including Mr.
Borne’s continued work for six months after the July 2009 collision, a vehicular accident
that occurred on June 18, 2009, and a vehicular accident that occurred on April 14, 2011.
Celadon requested a jury instruction on superseding cause based on Mr. Borne’s
continued work after the July 2009 accident and the April 2011 accident. The trial court
declined to give the requested instruction. As indicated by its verdict, the jury determined
that the cause in fact of Mr. Borne’s injury was the July 2009 collision with Celadon’s
truck.

       The Court of Appeals held that the trial court did not err in declining to instruct the
jury on superseding cause because neither Mr. Borne’s continued work after the July
2009 accident nor the April 2011 accident was a superseding cause. In this Court,
Celadon relies only on the April 2011 accident as a superseding cause, forgoing its
argument that Mr. Borne’s continued work after the July 2009 accident caused his
injuries. Celadon claims it was reversible error for the trial court to decline to instruct the
jury on superseding cause based on the April 2011 accident.

       Whether Mr. Borne’s injury was caused by the collision with Celadon’s truck or
an accident that occurred nearly two years later is a question of causation in fact, not
superseding cause. Causation in fact and proximate cause are different concepts and
subject to different analyses.1 Causation in fact refers to the “cause and effect relationship
between the tortious conduct and the injury.” King v. Anderson Cnty., 419 S.W.3d 232,
246 (Tenn. 2013) (quoting Kilpatrick, 868 S.W.2d at 598) (internal quotation marks
omitted). Causation in fact, or actual cause, means “the injury or harm would not have
occurred ‘but-for’ the defendant’s negligent conduct.” Id. (quoting Kilpatrick, 868
S.W.2d at 598).2 A plaintiff must prove by a preponderance of the evidence that the
defendant’s conduct was the cause in fact of the plaintiff’s injury.3 If a plaintiff cannot
prove cause in fact, the action fails because “proof of negligence without proof of
causation is nothing.” Mosley v. Metro. Gov’t of Nashville & Davidson Cnty., 155
S.W.3d 119, 123–24 (Tenn. Ct. App. 2004) (quoting German v. Nichopoulos, 577
S.W.2d 197, 203 (Tenn. Ct. App. 1978), overruled on other grounds by Seavers v.
Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 86 (Tenn. 1999)) (internal quotation

        1
          Waste Mgmt., Inc. of Tenn. v. S. Cent. Bell Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997)
(citing Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 83 (Tenn. 1996); Kilpatrick v. Bryant, 868
S.W.2d 594, 598 (Tenn. 1993)); 65 C.J.S. Negligence § 191.
        2
         See also 57A Am. Jur. 2d Negligence § 415 (“[C]ause in fact . . . means that the injury or harm
would not have occurred but for the defendant’s negligent conduct.” (citing Morrison v. Allen, 338
S.W.3d 417, 438 (Tenn. 2011)); 65 C.J.S. Negligence § 200 (“[T]here must be proof that, but for
wrongful conduct, an injury would not have occurred.” (citing 65 C.J.S. Negligence § 207)).
        3
          King, 419 S.W.3d at 246 (citing Kilpatrick, 868 S.W.2d at 598); 57A Am. Jur. 2d Negligence
§ 440 (“It is the plaintiff’s burden to prove causation in fact by a preponderance of the evidence.” (citing
Kilpatrick, 868 S.W.2d at 594)).


                                                     2
marks omitted); Drewry v. Cnty. of Obion, 619 S.W.2d 397, 398 (Tenn. Ct. App. 1981),
overruled on other grounds by Seavers, 9 S.W.3d at 86).

       Proximate causation, also known as legal causation, “encompasses the whole
panoply of rules that may deny liability for otherwise actionable causes of harm.”
Kilpatrick, 868 S.W.2d at 598 (quoting Joseph H. King, Jr., Causation, Valuation, and
Chance in Personal Injury Torts Involving Preexisting Injuries and Future
Consequences, 90 Yale L.J. 1353, 1355 n.7 (1981)). The determination to be made under
proximate cause is “whether the policy of the law will extend responsibility for that
negligent conduct to the consequences that have occurred.” King, 419 S.W.3d at 246
(quoting Kilpatrick, 868 S.W.2d at 598). Tennessee law provides that “legal
responsibility must be limited to those causes which are so closely connected with the
result and are of such significance that the law is justified in imposing liability.” Id.
(quoting Doe v. Linder Constr. Co., 845 S.W.2d 173 (Tenn. 1992)). Proximate cause
determines the boundaries of liability. King, 419 S.W.3d at 246 (citing Kilpatrick, 868
S.W.2d at 598).

       Proximate cause is “a policy decision by the judiciary to deny liability for
otherwise actionable conduct.” Mosley, 155 S.W.3d at 122 (citing Bain v. Wells, 936
S.W.2d 618, 625 (Tenn. 1997); George v. Alexander, 931 S.W.2d 517, 521 (Tenn.
1996)). The decision to deny liability under proximate causation is “based on
considerations of logic, common sense, policy, precedent and ‘our more or less
inadequately expressed ideas of what justice demands or of what is administratively
possible and convenient.’” White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998)
(quoting Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 n.6 (Tenn. 1997)).4

       Superseding cause is included within the proximate causation analysis.5 Under
superseding cause, a defendant is relieved from liability when a new, unforeseen, and
independent cause intervenes to produce an unforeseeable result.6 The usual explanation

        4
          See also Waste Mgmt., 15 S.W.3d at 430 (citing Smith v. Gore, 728 S.W.2d 738, 749 (Tenn.
1987); Lancaster v. Montesi, 390 S.W.2d 217, 220 (Tenn. 1965)); see also 65 C.J.S. Negligence § 188
(“[T]he applicability . . . must be determined . . . on mixed considerations of logic, common sense, justice,
policy, and precedent.” (citing Wyatt v. Winnebago Indus., Inc., 566 S.W.2d 276, 280 (Tenn. Ct. App.
1977))).
        5
         See Davis v. McGuigan, 325 S.W.3d 149, 160–61 (Tenn. 2010) (citing White, 975 S.W.2d at
529); 1 Comparative Negligence Manual § 1:40 (3d ed. 2017) (citing Potter v. Ford Motor Co., 213
S.W.3d 264, 273–74 (Tenn. Ct. App. 2006)); 65 C.J.S. Negligence § 223; 3 Stuart M. Speiser, Charles F.
Krause & Alfred W. Gans, American Law of Torts § 11:9 (Monique C. M. Leahy ed., 2017).
        6
          See Davis, 325 S.W.3d at 160–61 (citing White v. Premier Med. Grp., 254 S.W.3d 411, 417
(Tenn. Ct. App. 2007)); 57A Am. Jur. 2d Negligence §§ 555, 562; 1 Comparative Negligence Manual
§ 1:40 (3d ed. 2017) (citing Potter, 213 S.W.3d at 273–74); 65 C.J.S. Negligence § 223.


                                                     3
is that a superseding cause “breaks the chain of legal causation between the original
actor’s conduct and the eventual injury.” Waste Mgmt., 15 S.W.3d at 432.7

       Issues regarding causation in fact should be resolved before proximate cause
issues are considered.8 If the plaintiff cannot establish causation in fact, the case fails
without ever reaching the issue of proximate cause. See Mosley, 155 S.W.3d at 123
(citing Waste Mgmt., 15 S.W.3d at 430) (“Applying the Waste Management analysis
described, it is seen that if causation in fact does not exist, liability does not exist, and one
never reaches the issue of proximate or legal cause.”) (alteration added).

       Consequently, a superseding cause instruction assumes that the defendant’s
negligence is the cause in fact of the plaintiff’s injuries. Godbee v. Dimick, 213 S.W.3d
865, 886–87 (Tenn. Ct. App. 2006) (quoting Chamberland v. Roswell Osteopathic Clinic,
Inc., 27 P.3d 1019, 1023 (N.M. Ct. App. 2001)); see 65 C.J.S. Negligence § 223. Unless
the defendant’s negligence is the cause in fact of the plaintiff’s injury, there is nothing for
subsequent independent causes to intervene and supersede. See Godbee, 213 S.W.3d at
886–87 (quoting Chamberland, 27 P.3d at 1023). “If the evidence demonstrates no more
than a simple dispute over causation in fact (i.e., whether the defendant’s negligence did
or did not cause in fact the injuries suffered by the plaintiff), then the issue for the jury is
causation alone, not [superseding] cause.” Id. (quoting Chamberland, 27 P.3d at 1023)
(internal quotation marks omitted). A dispute over causation in fact allows for only the
standard instruction on proximate cause and does not justify a more specific instruction
on superseding cause. See id. at 888–89.

        Under certain circumstances, a defendant could argue that the plaintiff failed to
prove cause in fact and that the defendant is relieved from liability by a superseding
cause. Although Celadon argued both theories, the facts relied on by Celadon only
supported an argument regarding cause in fact, not superseding cause. Therefore, the trial
court did not err in declining to instruct the jury on superseding cause. Because the trial
court did not instruct the jury on superseding cause, the dissent does not address whether
the trial court would have erred by giving this instruction. Doing so would constitute
issuing an advisory opinion; courts should not issue advisory opinions. State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 192 (Tenn. 2000).



        7
         See Davis, 325 S.W.3d at 160–61 (quoting White, 975 S.W.2d at 529); 1 Comparative
Negligence Manual § 1:40 (citing Potter, 213 S.W.3d at 273–74); 65 C.J.S. Negligence § 223.
        8
           See Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005) (“Once it is determined that the
plaintiff’s injury would not have happened but for the defendants’ breach of duty, the next question is
whether the defendants’ breach was a proximate cause of the plaintiff’s injury . . . .”); Waste Mgmt., 15
S.W.3d at 433; 65 C.J.S. Negligence §§ 192, 223.


                                                   4
       To support its argument that the trial court erred by not instructing the jury on
superseding cause, Celadon relies primarily on two cases: Underwood v. Waterslides of
Mid-America, Inc., 823 S.W.2d 171 (Tenn. Ct. App. 1991), abrogated on other grounds
by Chapman v. Bearfield, 207 S.W.3d 736 (Tenn. 2006), and Pridemark Custom Plating,
Inc. v. Upjohn Co., 702 S.W.2d 566 (Tenn. Ct. App. 1985). Neither case supports
Celadon’s position. In Underwood, plaintiffs sued the owners, operators, sellers,
suppliers, and builders of a waterslide that collapsed when twenty-one people tried to ride
down it at once. The jury awarded damages to the injured plaintiffs. Underwood, 823
S.W.2d at 174–75. On appeal, the consulting engineer and builders of the waterslide
argued that the trial court erred by not instructing the jury on superseding cause because
the operator of the waterslide failed to provide adequate supervision and allowed
twenty-one people to form a human chain that collapsed the waterslide, thereby
superseding the engineer and builders’ negligence in constructing a waterslide with
potential defects. Id. at 180. The Court of Appeals held that the trial court erred in not
giving a jury instruction on intervening cause because there was sufficient evidence that
the waterslide operator failed to maintain proper control of the waterslide and that the
weight on the waterslide was at least a contributing factor in its collapse. Id.

       Underwood did not involve injuries that occurred years apart; rather, it involved
the plaintiffs’ one-time injuries and a dispute over whether the operator’s negligence
superseded and eliminated any liability for the engineer and builders’ alleged negligent
construction of the waterslide. Mr. Borne seeks compensation for only the July 1, 2009,
injury; if Celadon is responsible for the July 1, 2009, injury, its liability should not be
eliminated by a subsequent unrelated accident that occurred two years later.

        In Pridemark, the owner and lessee of a factory destroyed by a fire sued the
manufacturer and contractor allegedly responsible for the manufacturing and installation
of highly flammable insulation in the building. Pridemark, 702 S.W.2d at 567–68. The
jury returned a verdict against the manufacturer. Id. at 568. On appeal, the manufacturer
argued that the trial court erred by not charging the jury on independent intervening
cause. Id. at 569, 575. The Court of Appeals awarded the manufacturer a new trial based
on the erroneous admission of evidence. Id. at 573–74. The Court of Appeals, in dicta,
briefly considered the manufacturer’s jury instruction argument and concluded there were
multiple factual issues concerning whether the acts asserted as intervening causes were
reasonably foreseeable by the manufacturer and were normal consequences of its actions.
Id. at 575. The Court of Appeals did not rule as to whether it was error not to charge the
jury on intervening cause, noting that the evidence on retrial may differ from the
evidence in the first trial. Id. Pridemark offered a very limited discussion of intervening
cause, no ruling on the issue, and did not involve an alleged subsequent injury as in the
case before us.

       The cases of Godbee v. Dimick, 213 S.W.3d 865 (Tenn. Ct. App. 2006), and
Pellicano v. Metropolitan Government of Nashville & Davidson County, No.

                                            5
M2003-00292-COA-R3-CV, 2004 WL 343951, at *1 (Tenn. Ct. App. 2004), while
factually distinguishable, are nevertheless helpful to our analysis. In Godbee, a patient
sued her surgeon for his alleged negligence in the diagnosis and treatment of her back
condition. Godbee, 213 S.W.3d at 870. The defendant doctor had performed a partial
laminectomy on the patient to alleviate disc herniations and her back pain. After the
surgery, the doctor reviewed MRI results and determined the patient did not have spinal
stenosis. When the patient did not improve, the doctor ordered another MRI that,
according to the plaintiff’s expert witness, indicated the patient had spinal stenosis.
Thereafter, the doctor performed a bilateral laminectomy on the patient. After the second
surgery, the patient developed arachnoiditis, a hyper-inflammation of the nerve roots, that
the patient claimed was caused by the doctor’s negligence. The doctor argued that the
patient’s arachnoiditis predated the surgeries and was caused by the pre-surgical disc
herniations. After the jury ruled for the doctor, the patient appealed and contended, in
part, that the trial court erred by instructing the jury on superseding cause. Id. at 870–71,
882. Although the Court of Appeals reversed the trial court on other grounds, it held that
the trial court erred in charging the jury on superseding cause. Id. at 889, 897. The parties
disputed whether the patient’s injury was caused by the surgery or the natural progression
of a pre-existing disease. Id. at 888. These were issues relating to causation in fact and
whether “neither, either, or both may be determined to be causes-in-fact.” Id. Therefore,
the standard instruction on proximate cause was sufficient because causation in fact was
the only issue in dispute, and superseding cause “does not come into play until after
causation in fact has been established.” See id. at 889 (quoting Waste Mgmt., 15 S.W.3d
at 432). Similarly, Celadon disputes the cause in fact of Mr. Borne’s injury—not
superseding cause.

       In Pellicano, the plaintiff was diagnosed with a herniated disc after an injury at
work. Pellicano, 2004 WL 343951, at *1. Seven weeks later, the plaintiff was involved in
a low impact vehicular collision. The plaintiff stated after the collision that he was not
injured. He continued to work and did not seek medical treatment until four months later.
Six months after the collision, the plaintiff had surgery to repair the herniated disc. Id.
The plaintiff sued for damages arising out of the accident. Id. at *2. The trial court
awarded the plaintiff damages, including medical expenses related to the surgery to repair
the herniated disc. The Court of Appeals reversed, finding that the evidence
preponderated against the trial court’s decision based, in part, on the plaintiff’s doctor’s
equivocal testimony regarding the connection between the collision and the surgery. Id. at
*10–11. The Court of Appeals properly framed the issue as one of causation in fact,
noting this issue should be resolved before consideration of proximate cause or the
allocation of fault. Id. at *1, *3. Pellicano involved two alleged injuries with different
causes that occurred seven weeks apart. The case before us involves two alleged injuries
with different causes that occurred two years apart. The primary issue in both cases is
causation in fact—not superseding cause.



                                             6
       Mr. Borne had to prove that Celadon’s conduct was the cause in fact of his injury.
Mr. Borne presented lay and medical testimony that his injury was more likely than not
caused by the collision with Celadon’s truck. Celadon presented testimony that Mr.
Borne’s injury could have been caused by the April 2011 accident. The issue for the jury,
therefore, was a question of causation in fact—whether all, part, or none of Mr. Borne’s
injury would have occurred but for the negligence of Celadon’s driver.

        The majority cites with approval a new definition of “superseding cause” set forth
in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm section
34 (2010) (“Third Restatement”). However, the adoption of the Third Restatement’s
definition of superseding cause was not raised, briefed, or argued by the parties. If and
when the Third Restatement’s definition of superseding cause is adopted in Tennessee, it
should only be done after input from the parties and a careful analysis by this Court. The
Third Restatement is a fairly recent promulgation by the American Law Institute; its
definition of superseding cause has not been adopted previously by any court in
Tennessee. Only a handful of state courts have adopted or cited with approval the Third
Restatement’s definition of superseding cause.9

       Celadon’s argument that the accident on April 14, 2011, caused Mr. Borne’s
injury raised an issue of causation in fact, not superseding cause. The jury was properly
instructed on causation in fact. Therefore, the trial judge did not err in declining to
instruct on superseding cause.




        9
          See, e.g., People v. Brady, 29 Cal. Rptr. 3d 286, 302 (Cal. Ct. App. 2005) (citing with approval);
Hayes v. Caspers, Ltd., 881 A.2d 428, 436 (Conn. App. Ct. 2005) (citing with approval); Mitchell v.
Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 700, 702 (Iowa 2013) (applying Third Restatement’s
scope-of-liability approach adopted by Iowa courts in Thompson v. Kaczinski, 774 N.W.2d 829, 839
(Iowa 2009)); Commonwealth, Transp. Cabinet, Dep’t of Highways v. Babbitt, 172 S.W.3d 786, 793 (Ky.
2005) (citing with approval); Commonwealth v. Buckley, 57 N.E.3d 1051, 1057 (Mass. App. Ct. 2016)
(citing with approval).

        With the advent of comparative fault, some commentators argue that superseding cause is an
outdated principle that should no longer apply. See, e.g., Michael D. Green, The Unanticipated Ripples of
Comparative Negligence: Superseding Cause in Products Liability and Beyond, 53 S.C. L. Rev. 1103,
1123–35 (2002); David W. Robertson, Love and Fury: Recent Radical Revisions to the Law of
Comparative Fault, 59 La. L. Rev. 175, 190 n.36 (1998); Terry Christlieb, Note, Why Superseding Cause
Analysis Should Be Abandoned, 72 Tex. L. Rev. 161, 181–86 (1993); Kelsey L. Joyce Hooke, Comment,
Collision at Sea: The Irreconcilability of the Superseding Cause and Pure Comparative Fault Doctrines
in Admiralty, 74 Wash. L. Rev. 159, 188–89 (1999).




                                                     7
                                         Remittitur

       For many years, appellate courts have followed a well-established standard of
review for a jury’s award of damages that is clear, concise, and relatively easy to apply.
Appellate courts, utilizing this standard of review, have served an important role in
curbing runaway or excessive verdicts. The majority’s decision rejects the appellate
standard of review that has worked well and instead adopts a standard that is confusing,
difficult to apply, and significantly restricts the authority of appellate courts to review
damage awards.

                      Appellate Standard of Review and Application

       Under our established law, the standard of review used by the Court of Appeals
depends on whether the trial judge has agreed or disagreed with the jury’s verdict on
damages. See Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 422 (Tenn. 2013);
West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV, 2017 WL
1502827, at *5–6 (Tenn. Ct. App. Apr. 25, 2017); Bradley v. Bishop, No.
W2016-01668-COA-R3-CV, 2017 WL 1192112, at *15–16 (Tenn. Ct. App. Mar. 30,
2017) (quoting Meals, 417 S.W.3d at 422–23); Kempson v. Casey, No.
E2015-02184-COA-R3-CV, 2016 WL 6499283, at *3 (Tenn. Ct. App. Nov. 2, 2016)
(quoting Meals, 417 S.W.3d at 422–23); Martin v. Perma-Chink Sys., Inc., No.
E2015-01466-COA-R3-CV, 2016 WL 3586949, at *11–12 (Tenn. Ct. App. June 27,
2016) (quoting Meals, 417 S.W.3d at 422–23); Goree v. United Parcel Serv., Inc., 490
S.W.3d 413, 444 (Tenn. Ct. App. 2015) (quoting Meals, 417 S.W.3d at 420), appeal
denied (Mar. 23, 2016); State ex rel. Tenn. Dep’t of Transp. v. Jones, No.
M2014-00151-COA-R3-CV, 2015 WL 3929584, at *4, *7 (Tenn. Ct. App. June 25,
2015) (citing Meals, 417 S.W.3d at 422); Barnes v. Saulsberry, No.
W2014-00646-COA-R3-CV, 2014 WL 7335795, at *5 (Tenn. Ct. App. Dec. 23, 2014)
(citing Meals, 417 S.W.3d at 423); Bonner v. Deyo, No. W2014-00763-COA-R3-CV,
2014 WL 6873058, at *4 (Tenn. Ct. App. Dec. 5, 2014) (citing Meals, 417 S.W.3d at
419, 420); Pyle v. Mullins, No. E2012-02502-COA-R3-CV, 2013 WL 6181956, at *4–5
(Tenn. Ct. App. Nov. 25, 2013) (quoting Meals, 417 S.W.3d at 422–23).

        When a trial judge agrees with the jury’s verdict and approves it in the judge’s role
as thirteenth juror, the Court of Appeals’ review of the verdict is limited to a review of
the record to determine whether the verdict is supported by material evidence. Meals, 417
S.W.3d at 422 (citing Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980)). This
deferential standard is appropriate because the jury and the trial court have seen and
heard the witnesses, observed their demeanor, and weighed their testimony alongside all
other evidence presented in the trial. See Coffey v. Fayette Tubular Prods., 929 S.W.2d
326, 331 n.2 (Tenn. 1996); Foster v. Amcon Int’l, Inc., 621 S.W.2d 142, 143–44 (Tenn.
1981) (quoting Cumberland Tel. & Tel. Co. v. Smithwick, 79 S.W. 803, 804 (Tenn.
1904)). Material evidence is “evidence material to the question in controversy, which

                                             8
must necessarily enter into the consideration of the controversy and by itself, or in
connection with the other evidence, be determinative of the case.” Meals, 417 S.W.3d at
422 (quoting Knoxville Traction Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905)) (internal
quotation marks omitted). Under this standard, the jury’s award will be upheld if there is
any material evidence to support it; it is irrelevant whether the weight of the evidence
preponderates against the award. See id. at 423 (quoting Hohenberg Bros. v. Mo. Pac.
R.R., 586 S.W.2d 117, 119–20 (Tenn. Ct. App. 1979)).

       If the trial judge disagrees with the jury’s assessment of damages and suggests a
remittitur, the Court of Appeals applies the preponderance of the evidence standard of
review. See Coffey, 929 S.W.2d at 331 (quoting the preponderance of the evidence
standard under Tenn. R. App. P. 13(d)) (citing Tenn. Code Ann. § 20-10-102(b);
Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn. 1994)). Under the preponderance of
the evidence standard of review, the Court of Appeals reviews the record de novo,
accompanied by a presumption of correctness of the trial court’s findings, to determine if
the evidence in the record preponderates against the trial court’s suggested remittitur. Id.;
see Meals, 417 S.W.3d at 422 (quoting Tenn. Code Ann. § 20-10-102(b)) (citing Tenn. R.
App. P. 13(d)). This is a less deferential standard of review than the material evidence
standard. Coffey, 929 S.W.2d at 331 n.2. A fact is supported by a preponderance of the
evidence when the fact is more probably true than not. Teter v. Republic Parking Sys.,
Inc., 181 S.W.3d 330, 341 (Tenn. 2005). Unlike review under the material evidence
standard, a trial judge’s remittitur can be reversed if the weight of the evidence
preponderates against the remittitur. See Meals, 417 S.W.3d at 422–23; Coffey, 929
S.W.2d at 331 (quoting Tenn. R. App. P. 13(d)).

       The Court of Appeals, based on its review of the evidence, may suggest a further
remittitur under the applicable standard of review. Tenn. Code Ann. § 20-10-103(a);10
Meals, 417 S.W.3d at 422; Coffey, 929 S.W.2d at 331.
       10
            Tennessee Code Annotated section 20-10-103 provides:

       (a) If the judgment of the trial court with regard to a remittitur is affirmed in the court of
       appeals, so that a party is required to make a remittitur or suffer a new trial, as in the
       judgment of the trial court, or if, by the opinion of the court of appeals, a further or a
       larger remittitur is required of the party in whose favor the verdict was rendered, or if
       after the case was tried in the lower court by the trial judge without a jury, or if after the
       case was tried in the lower court with a jury and no remittitur was suggested by the trial
       judge, a remittitur is first suggested or required in the court of appeals, on penalty of
       granting a new trial, then in each and all of these events the party in whose favor the
       verdict or judgment has been rendered may make the remittitur under protest in the court
       of appeals, and take the case, by application for permission to appeal, for review upon
       that point, to the supreme court.

       (b) If, in the opinion of the supreme court, the verdict should not have been reduced, and
       the court of appeals was in error in affirming the action of the trial court as to the


                                                     9
       The majority’s remittitur analysis is troublesome. First, the appellate standard of
review for a trial judge’s remittitur of an award of damages is well established; it is not
an issue of first impression. See Meals, 417 S.W.3d at 422; Coffey, 929 S.W.2d at 331. In
Coffey, the jury awarded the plaintiff $30,000 in compensatory damages and $1,500,000
in punitive damages. Id. at 327. The trial court approved the award of compensatory
damages, reduced the punitive damages award to $500,000, and awarded plaintiff
$20,000 as front pay. Id. The Court of Appeals affirmed the compensatory damages
award, remitted the punitive damage award to $150,000, and vacated the front pay award.
Id. at 328. The Supreme Court reversed the Court of Appeals’ further remittitur of the
punitive damages award, reversed the Court of Appeals’ decision to vacate the front pay
award, and reinstated the award of the trial court. Id. at 326–27. In reviewing the decision
of the Court of Appeals to further reduce the award of punitive damages from $1,500,000
to $500,000, the Supreme Court affirmed the authority of the appellate courts to suggest a
remittitur, though recognizing that the authority is “naturally more circumscribed than
that possessed by the trial courts.” Id. at 331. Tennessee Code Annotated section
20-10-102(b) provides that when the trial court suggests a remittitur, the Court of
Appeals applies the standard of review applicable to decisions of trial courts sitting
without a jury. Id. at 331 (citing Thrailkill, 879 S.W.2d at 841 (Tenn. 1994)). This
standard, set forth in Tennessee Rule of Appellate Procedure 13(d), provides that
“findings of fact by the trial court in civil actions shall be de novo upon the record of the
trial court, accompanied by a presumption of correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). Applying this
standard of review, the Supreme Court concluded that the evidence did not preponderate
against the trial court’s remittitur of the punitive damage award to $500,000. Coffey, 929
S.W.2d at 331. Significantly, the Supreme Court focused on whether the evidence
preponderated against the trial court’s suggested remittitur and did not consider whether
the Court of Appeals’ suggested remittitur was supported by material evidence. Id.

       The dissent’s reasoning is consistent with our previous holding in Coffey. As in the
case before us, the trial court in Coffey suggested a remittitur and the Court of Appeals
suggested an additional remittitur. Following Coffey, the dissent determines whether the
evidence preponderates against the trial court’s remittitur. Under this established
standard, when a trial judge has suggested a remittitur of a jury’s award of damages, the
Court of Appeals should determine whether the evidence preponderates against the trial
court’s decision. If it does not, the Court of Appeals should affirm the trial court’s

       remittitur, or if the court of appeals was, itself, in error in suggesting a remittitur for the
       first time in that court, or in suggesting a further or larger remittitur than that suggested in
       the trial court, and if the judgment is otherwise correct, the case shall be reversed to that
       extent, and judgment shall be rendered in the supreme court for the full amount originally
       awarded by the jury or the trial judge sitting without a jury, as the case may be.

Tenn. Code Ann. § 20-10-103.


                                                     10
decision. It follows that if the evidence preponderates in favor of a further reduction in
the award of damages as remitted by the trial court, the Court of Appeals may suggest a
further remittitur. This straightforward, uncomplicated procedure for reviewing a trial
court’s remittitur of a jury’s award has worked well for many years. Contrary to Coffey,
the majority holds that an appellate court cannot suggest an additional remittitur unless
there is no material evidence to support the trial court’s decision “regardless of whether
the trial court has already suggested a remittitur.”

        Second, contrary to existing practice, the majority allows an appellate court to
suggest a remittitur only “if it finds that the award exceeds the uppermost boundary of the
range of reasonableness under the evidence presented, i.e., ‘the amount beyond which
there is no evidence, upon any reasonable view of the case, to support the verdict.’” The
majority goes further and prohibits an appellate court from granting “its own further
remittitur unless the award, even as remitted by the trial court, is more than the upper
limit of the range of reasonableness, i.e., not supported by material evidence.” This new
standard unnecessarily restricts the authority of the Court of Appeals to adjust a verdict
based on its review of the evidence and the appropriate standard of review.

       Finally, after a protracted analysis, the majority declines to review the trial court’s
decision and sends the parties back to the trial court for yet another hearing because the
majority cannot ascertain the reason the trial court suggested the remittitur. This is
problematic for several reasons.

        First, the majority should have determined initially if the record was sufficient for
its review, and if not, it should have remanded the case with no further analysis of the
issue. The majority’s lengthy discussion of the standard of review is purely advisory
given its decision not to consider the trial court’s remittitur and to remand the case.
Courts should not render advisory opinions. State v. Brown & Williamson Tobacco Corp.,
18 S.W.3d 186, 192 (Tenn. 2000) (citing Super Flea Mkt. of Chattanooga, Inc. v. Olsen,
677 S.W.2d 449, 451 (Tenn. 1984)). Under the justiciability doctrines that dictate
exercising judicial restraint, “[w]hat we say in an opinion should be confined to, and
limited by, the facts of the case under consideration and the questions necessary for a
decision of that case.” Staten v. State, 232 S.W.2d 18, 19 (Tenn. 1950). The majority
overreached by going beyond the point that was necessary for a decision. See id. The
majority’s advisory remittitur analysis is dicta and not binding authority or precedent
within the rule of stare decisis. See id. (citing 21 C.J.S. Courts § 190).

        Second, the reason given by the trial court for the suggested remittitur was
sufficient for appellate review. The trial court’s order stated that the jury’s verdict was
excessive and that remittitur was appropriate. Ideally, trial judges should provide as much
information as possible to explain their decisions. However, appellate courts are
experienced in reviewing records to determine if the evidence preponderates against the


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decision reached by a trial court and can do so without making independent credibility
determinations. A remand was not necessary in this case.

       Finally, it has been over eight years since Mr. Borne’s July 1, 2009, accident.
There is only a $5,000 difference between the remittiturs suggested by the trial court and
the Court of Appeals. This case should not be sent back to the trial court for another
proceeding—one that can then be appealed. Eight years is long enough. The parties
deserve finality and an end to this litigation.

        On loss of earning capacity, the trial court disagreed with the jury’s verdict and
suggested a remitted award of $1,100,000. Loss of earning capacity refers to the
difference between an injured person’s earning capacity before and after an injury.
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999). The jury heard
evidence that Mr. Borne suffered a permanent back injury in the July 2009 accident and
because of that injury could only do, at most, sedentary work. Dr. Cates and Dr. Gamboa
testified that, based on Mr. Borne’s physical limitations and prolonged work absence
since the accident, Mr. Borne would likely never work again. Dr. Gamboa testified that
Mr. Borne’s loss of earning capacity, reduced to present value, was $1,334,647. Celadon
disputed Dr. Gamboa’s testimony and presented the testimony of Ms. Carla Seyler, a
rehabilitation counselor, who opined that Mr. Borne could return to his regular work or
find work comparable in pay. Celadon presented no evidence suggesting an alternative,
lower dollar figure than that calculated by Dr. Gamboa. As acknowledged by the
majority, the jury’s awards “indicate that the jury credited the testimony of Mr. Borne’s
witnesses and did not credit the testimony of the witnesses presented by Celadon.” The
evidence preponderates against the jury’s award of $1,455,000 because there is no
evidence in the record to support any loss of earning capacity $120,353 greater than the
amount calculated by Dr. Gamboa. The evidence also preponderates against the trial
court’s remittitur to $1,100,000, as nothing in the record supports a reduction of Dr.
Gamboa’s calculation by $234,647. Absent any other quantitative evidence, the jury’s
award for loss of earning capacity should be remitted to $1,334,647.

       On the award for pain and suffering, the trial court disagreed with the jury’s
verdict and suggested a remittitur from $750,000 to $500,000. Awards for pain and
suffering compensate a person for physical and mental discomforts caused by an injury.
Meals, 417 S.W.3d at 420 (citing Overstreet, 4 S.W.3d at 715). These discomforts
include “anguish, distress, fear, humiliation, grief, shame, or worry” that may accompany
an injury. Overstreet, 4 S.W.3d at 715. Mr. Borne and his wife testified about the severity
of his pain and how it affects his daily activities. Dr. Dietze’s January 2010 evaluation of
Mr. Borne indicated that Mr. Borne had constant neck pain, severe headaches, back pain,
and intermittent leg pains. Dr. Dietze explained that future treatment could reduce, but
not eliminate, Mr. Borne’s pain. Dr. Glorioso, who examined Mr. Borne in March 2012,
determined that Mr. Borne suffered an annular fibrosis tear, which would produce pain.


                                            12
The evidence does not preponderate against the trial court’s suggested remittitur of the
award for pain and suffering to $500,000.

       On the award for permanent impairment, the trial court disagreed with the jury’s
verdict and suggested a remittitur of the permanent impairment award from $750,000 to
$100,000. An award for permanent impairment compensates a person for “an injury from
which the [person] cannot completely recover.” Overstreet, 4 S.W.3d at 715 (citing
Jordan v. Bero, 210 S.E.2d 618, 630 (W. Va. 1974)). Permanent impairment awards can
“relate to earning capacity, pain, impairment of physical function or loss of the use of a
body part.” Id. (citing Yates v. Bradley, 396 S.W.2d 735, 738 (Mo. Ct. App. 1965)). Dr.
Dietze assigned Mr. Borne a 10% permanent impairment rating based on his lower back
injury. The jury’s award of damages for loss of earning capacity, pain and suffering, and
loss of enjoyment of life do not supplant an award for permanent impairment, but there is
some overlap. See id. (citing Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814, 824
(6th Cir. 1980)). The evidence does not preponderate against the trial judge’s decision to
suggest a remittitur for the award for permanent impairment to $100,000.

       On the award for loss of enjoyment of life, the trial judge disagreed with the jury’s
award and suggested a remittitur of the loss of enjoyment of life award from $750,000 to
$400,000. An award for loss of enjoyment of life compensates a person for the
impairment placed on his or her ability to enjoy the normal pleasures of life. Meals, 417
S.W.3d at 420 (citing Lang v. Nissan N. Am., Inc., 170 S.W.3d 564, 571–72 (Tenn.
2005)). This damages award “relates to daily life activities that are common to most
people.” Overstreet, 4 S.W.3d at 716. It can also compensate a plaintiff for the loss of
uncommon individual pursuits or talents. Mr. Borne testified about his active lifestyle
before his injury and how his injury affected his ability to engage in recreational activities
and chores. His wife confirmed that Mr. Borne was no longer able to assist his mother as
he could before the accident and that his lifestyle had changed. Based on a review of the
evidence, Mr. Borne suffered a substantial loss of enjoyment of life. Although Mr.
Borne’s limitations are significant, particularly for a person of his age, his limitations do
not totally deprive him of all the common activities of life he enjoyed before his injury.
The evidence does not preponderate against the trial judge’s suggested remittitur to
$400,000 for loss of enjoyment of life.

       Accordingly, Mr. Borne is entitled to a remitted award of $2,334,647, which is a
37% decrease in the jury’s award. This amount of reduction does not impermissibly
destroy the verdict. See Johnson v. Nunis, 383 S.W.3d 122, 135 (Tenn. Ct. App. 2012)
(holding suggested remittitur of 43% did not totally destroy jury’s award); Grandstaff v.
Hawks, 36 S.W.3d 482, 498–99 (Tenn. Ct. App. 2000) (upholding remittitur of 46%);
Steele v. Ft. Sanders Anesthesia Grp., P.C., 897 S.W.2d 270, 283 (Tenn. Ct. App. 1994)
(upholding remittitur reducing jury’s verdict by 40%).



                                             13
For the reasons stated herein, I concur in part and dissent in part.




                                                 _____________________________
                                                  SHARON G. LEE, JUSTICE




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