                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                     April 19, 2006 Session

                        BETTY G. BROWN v. GARY A. HUGO

                    Direct Appeal from the Circuit Court for Shelby County
                         No. CT-000405-02     James F. Russell, Judge



                         No. W2005-01356-COA-R3-CV - June 27, 2006


Betty Brown (“Plaintiff”) was involved in an automobile accident where her car was struck in the
rear by the vehicle driven by Gary Hugo (“Defendant”). Plaintiff subsequently filed suit against
Defendant in order to recover medical expenses for injuries Plaintiff claims to have incurred as a
result of the accident along with other damages. At trial, the jury found that Plaintiff was not entitled
to recover from Defendant. Plaintiff appeals arguing that the jury’s verdict was unsupported by
competent and credible material evidence. For the reasons set forth below, we affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and HOLLY
M. KIRBY , J., joined.

Michael C. Skouteris, Memphis, Tennessee, for the appellant, Betty Brown

Douglas A. McTyier, Germantown, Tennessee, for the appellee, Gary A. Hugo.

                                              OPINION

                           Factual Background and Procedural History

         On January 26, 2001, Betty Brown (“Plaintiff”) was driving south on Coughlin Street in
Memphis when her vehicle was struck in the rear by a 1996 Honda Accord driven by Gary Hugo
(“Defendant”). As a result of the accident, Plaintiff filed suit against Defendant asserting that,
due to Defendant’s negligence, she sustained a full thickness tear of the right supraspinatus
tendon, a partial tear of the infraspinatus tendon, a tear of the bursa, and other injuries as a result
of the accident. Defendant answered Plaintiff’s complaint and denied that Plaintiff sustained her
alleged injuries as a result of the accident on January 26, 2001.
        This case went to trial on November 18, 2004. At trial, Defendant did not contest that he
was at fault for causing the accident in question. Thus, as a result, the trial proceeded on the sole
issue of damages. Testifying on his own behalf, Defendant stated that he was traveling less than
one mile per hour when he hit the rear of Plaintiff’s vehicle and that the only damage to
Plaintiff’s rear bumper consisted of four small marks caused by the license plate bolts on the
front of Defendant’s vehicle. Defendant stated that no damages occurred to his vehicle.
Defendant further testified that after the accident, Plaintiff stated that she was not injured and did
not have any visible signs of injury.

        Testifying on her own behalf, Plaintiff asserted that the impact of Defendant’s car placed
marks on her bumper and also caused paint to come off the left side of the bumper. Plaintiff also
stated that the impact caused her hand to strike the dash of her vehicle. In testifying about her
injuries, Plaintiff stated that she was in pain after the accident and, after three days of self
treatment, sought care from her primary care physician, Dr. Phillip Mintz. Dr. Mintz
subsequently referred Plaintiff to Dr. Robert Bourland, an orthopedic surgeon. Dr. Bourland
subsequently referred Plaintiff to Dr. James Calandruccio.

        Plaintiff presented Dr. Calandruccio’s deposition testimony at trial. Plaintiff first visited
Dr. Calandruccio on February 20, 2001, at which time she did not give him a history of any
symptoms or treatment with respect to her right shoulder, arm, or hand prior to the accident on
January 26, 2001. However, Plaintiff did inform Dr. Calandruccio that she had been in a car
accident on January 26, 2001, and had sustained an injury to her right hand and elbow. Upon
examining Plaintiff during her first visit, Dr. Calandruccio testified that she had a normal gait,
full range of motion of the cervical spine, and full range of motion of her shoulders. Dr.
Calandruccio also stated that Plaintiff had no tenderness about her arm, but did have some
tenderness over the outside of her elbow, around her forearm, and also had some noise with the
motion of her wrist. Dr. Calandruccio testified that he saw Plaintiff again on March 28, 2001, at
which time she was having problems with her entire right arm, including her right shoulder. Dr.
Calandruccio stated that on August 29, 2001, he ordered an MRI and subsequently determined
that Plaintiff had a full thickness rotator cuff tear. On September 20, 2001, Plaintiff underwent
surgery which revealed a torn rotator cuff tendon.

        When questioned as to the cause of Plaintiff’s shoulder injury, Dr. Calandruccio testified
that he believed it resulted from trauma Plaintiff experienced in the auto accident on January 26,
2001. However, Dr. Calandruccio stated that his opinion regarding a causal relationship
between Plaintiff’s January 26, 2001, accident and the alleged shoulder injury was based upon
Plaintiff’s statement that she was involved in a car accident and jammed her hand into the
steering wheel. Dr. Calandruccio further admitted that Plaintiff did not indicate the severity of
the accident and acknowledged that the severity of the impact was an important factor in
determining causation of such an injury. Dr. Calandruccio also stated that his opinion as to
causation with respect to Plaintiff’s shoulder injury was only as good as the history provided by
the Plaintiff regarding trauma to her shoulder. When cross examined concerning causation of
Plaintiff’s rotator cuff injury, Dr. Calandruccio indicated that any force delivered through the arm


                                                 -2-
to the shoulder could cause a rotator cuff tear and that such injuries can be caused from things as
trivial as trying to start a lawnmower or outboard motor. Dr. Calandruccio further acknowledged
Plaintiff’s injury could have been caused by overhead lifting required at Plaintiff’s job and also
noted that it was possible that the rotator cuff could have been injured before or after the January
26, 2001, accident.

        Plaintiff testified that she was involved in a vehicular accident in 1997 and filed suit
seeking damages for whiplash, bilateral shoulder tendinitis, thoracic strain, lumbar pain, pain and
inflammation, muscle spasms, and mental anguish.1 Plaintiff also admitted that in February
2002, she was involved in another vehicular accident, and a complaint was filed on her behalf
alleging that as a result of that accident, she sustained injures causing back, neck, and shoulder
pain. Plaintiff further testified that she received a lower back injury after falling at her sister’s
house on June 28, 2002. Additionally, Plaintiff testified that she filed a worker’s compensation
claim resulting from an on-the-job injury that occurred on March 6, 2003, in which she injured
her neck.2 Despite these other incidents, Plaintiff stated that from 1997 until January 26, 2001,
she had not been involved in any type of accident, work-related or otherwise, involving her right
shoulder, right arm, or right hand, and did not suffer from pain or any other symptoms in her
right shoulder. However, Plaintiff did testify that during this time she was employed as a nurse
and, as part of her duties, she was required to perform overhead reaching and lifting using her
right shoulder.

        In presenting evidence on damages, Plaintiff testified that she had incurred over $20,000
in medical expenses due to her accident with Defendant. However, on December 2, 2004, the
jury returned a verdict in favor of Defendant, finding that Plaintiff was not entitled to recover


         1
           At trial, Plaintiff admitted that she failed to include the 1997 accident and resulting lawsuit in her response to
Defendant’s interrogatories asking whether she had been involved in any prior accidents, sustained any previous personal
injuries, or had been involved in any previous legal actions. Plaintiff also failed to disclose the 1997 accident in response
to questioning by Defendant’s counsel at her deposition. In the 1997 lawsuit, Plaintiff sought damages for “[w]hiplash
injury, bilateral shoulder tendonitis, thoracic strain, lumbar strain, pain and inflammation, muscle spasms, and mental
anguish.” In explaining her failure to report the 1997 incident, Plaintiff repeatedly stated that “I did not remember that
incident.” However, the record shows that Plaintiff did disclose a previous accident, where she hurt her ankle, occurring
several years before her 1997 accident.

         2
          At trial, Plaintiff denied filing any lawsuit in relation to her March 6, 2003, injury. However, counsel for
Defendant produced a complaint filed on behalf of Plaintiff against her employer relating to the 2003 injury. In
explaining this apparent contradiction, Plaintiff stated as follows:

         W ell, I have not filed a lawsuit so much for benefits. I was having difficulty getting to see a physician.
         So I could not handle that with the insurance company on my own, and I had no other choice but to
         seek legal representation in order to take care of that.
                   So to sue the company that I work for, I’m not–I’m not suing them for that. This is what the
         attorney is doing. But I need to have some type of communication with the work comp carrier that I
         was not getting. So in response to that, I had to to [sic] seek legal attention in order to get those things
         taken care of.



                                                             -3-
from Defendant. As a result, the trial court entered judgment in favor of Defendant. Plaintiff
subsequently filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, a
New Trial. The trial court denied this motion. Plaintiff appeals.

                                          Issues Presented

       Whether the jury’s verdict was supported by competent and credible material evidence.

                                        Standard of Review

         This case was tried before a jury. Findings of fact by a jury shall be set aside only if there
is no material evidence to support the verdict. Tenn. R.App. P. 13(d) (2005). Upon review, this
Court will not re-weigh the evidence, but will take the strongest view possible of the evidence in
favor of the prevailing party and discard evidence to the contrary. Haga v. Blanc & West Lumber
Co., 666 S.W.2d 61, 63 (Tenn. 1984); Smith County v. Eatherly, 820 S.W.2d 366, 369 (Tenn. Ct.
App. 1991). We will allow all reasonable inferences to uphold the jury's verdict, setting it aside
only if there is no material evidence to support it. Id. This standard of review safeguards the
constitutional right to a trial by jury. Id.


                                               Analysis


        In this case, Plaintiff argues that the jury verdict was not supported by competent and
credible material evidence. We disagree.


        In an action for negligence, the plaintiff must prove five elements: (1) a duty of care owed
to the plaintiff by the defendant; (2) conduct by the defendant constituting breach of that duty; (3)
injury or loss to the plaintiff; (4) that the defendant’s conduct was the cause in fact of the
plaintiff’s injury; and (5) that the defendant’s conduct was the proximate or legal cause of the
injury. Waste Mgmt.,Inc. of Tenn. v. S. Cent. Bell Tell. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App.
1997). In this case, Defendant admitted that he breached his duty of care to Plaintiff, resulting in
the accident at issue. However, Defendant denied that his breach caused Plaintiff’s injuries.
Once a breach of duty is shown, the plaintiff carries the burden of proving that the accident was
proximately caused by the defendant’s acts. Kilpatrick v. Bryant, 868 S.W.2d 594, 599 (Tenn.
1993).


        In attempting to establish causation, Plaintiff testified that when Defendant hit her, her
hand went through her steering wheel and hit the dashboard. Plaintiff then presented the
testimony of Dr. Calandruccio, who testified that he believed that Plaintiff’s injuries resulted
from her hand hitting the dashboard during her accident with Defendant. However, Dr.
Calandruccio also testified that Plaintiff’s injuries could have occurred before or after her
accident with Defendant and further admitted that such injuries could have been caused from

                                                  -4-
things as trivial as trying to start a lawnmower3 or from overhead lifting required as part of
Plaintiff’s job.4 When questioned as to why he believed that Plaintiff’s injuries resulted from her
accident with Defendant rather than some other cause, Dr. Calandruccio stated that his opinion
regarding causation of Plaintiff’s injury was based upon Plaintiff’s representations to him during
his medical examination of her. However, we note that the record shows that Plaintiff was
impeached on cross examination by Defendant’s counsel regarding, among other things, her
failure to disclose a 1997 car accident in which she suffered previous shoulder injuries as well as
her denial that she had filed a lawsuit against her employer in relation to a 2003 work-related
injury. In addition to proof presented by Plaintiff, the jury also heard testimony from Defendant
in which he stated that he was traveling at a low rate of speed at the time of the accident, that
Plaintiff’s vehicle sustained very minor damage, and that Plaintiff stated at the scene that she was
not hurt.


       After reviewing the record in this case, we find that sufficient material evidence exists to
support the verdict of the jury. Specifically, based upon the evidence presented at trial, a jury
could reasonably infer that Plaintiff’s injuries were not caused from the January 26, 2001,
accident involving Defendant, but rather resulted from some other cause either before or after the
accident at issue. Accordingly, we affirm the trial court.


                                                       Conclusion


       Based upon the foregoing, we affirm. Costs of this appeal are assessed against Plaintiff,
Betty Brown, and her surety, for which execution may issue if necessary.



                                                                   ___________________________________
                                                                   DAVID R. FARMER, JUDGE




       3
           Plaintiff testified at trial that prior to her accident with Defendant, she enjoyed doing yard work.

       4
           Plaintiff testified that her job duties included overhead lifting.

                                                             -5-
