                 IN THE COURT OF APPEALS OF TENNESSEE

                                EASTERN SECTION                 FILED
                                                                November 3, 1997

KENNETH F. TAGGART and wife,                                Cecil Crowson, Jr.
                                          ) C/A NO. 03A01-9707-CV-00262
                                                            Appellate C ourt Clerk
TONI CORWIN,                              )
                                          ) SULLIVAN LAW
       Plaintiffs-Appellants,             )
                                          ) HON. RICHARD E. LADD,
v.                                        ) JUDGE
                                          )
BART A. RICHARDS,                         )
                                          )
       Defendant-Appellee.                )
                                          )
BLUE CROSS BLUE SHIELD OF                 )
TENNESSEE,                                ) AFFIRMED
                                          ) AND
       Intervening Plaintiff.             ) REMANDED




GARY E. BREWER, LESLIE A. MUSE and STEVEN W. TERRY, BREWER &
TERRY, P.C., Morristown, for Plaintiffs-Appellants.

JAMES K. HORSTMAN, BARRY L. KROLL, ALTON C. HAYNES, LLOYD E.
WILLIAMS, JR., WILLIAMS & MONTGOMERY, LTD., Chicago, and EDWIN L.
TREADWAY, HUNTER, SMITH & DAVIS, LLP, Kingsport, for Defendant-
Appellee.




                                    OPINION


                                                        Franks, J.


              This is an action for damages for personal injuries allegedly occurring

on April 9, 1993 in the early evening, when the vehicle operated by the plaintiff was

struck by a vehicle operated by the defendant. Upon trial, a jury returned a verdict for

the plaintiff establishing damages at $8,445.00 and further determined that defendant

was 51% at fault for the accident. The Trial Judge approved the verdict and plaintiffs

have appealed.
               Plaintiff insists on appeal that there is no material evidence to support

the amount of the jury verdict, or the jury’s finding that he was 49% at fault for the

accident. Also, they maintain there is no material evidence to support the jury’s

finding that plaintiff’s wife suffered no loss of consortium.

               Immediately following the accident, plaintiff was taken by his wife to

the emergency room of a local hospital, where a laceration in his hand was sewed up

and x-rays were taken of his hand and neck. He was sent home. The next morning he

received a call from a physician at the hospital, who asked that he return to the

hospital. At the hospital plaintiff was informed that the x-rays of his neck reflected

the absence of bone at the odontoid process, with some subluxation of the cervical

spine. The hospital referred him to Dr. Gregory Corradino, a board certified

neurosurgeon. Dr. Corradino saw the plaintiff on April 20, and diagnosed the

plaintiff with having a cervical strain and “the absent odontoid process”, which he

opined was congenital, but needed surgical repair “very quickly”. Plaintiff next saw

Dr. Corradino on June 2, where surgery was discussed and, according to plaintiff, he

decided to get a second opinion. He then visited Dr. Joe Beals, a neurosurgeon, in

Knoxville on June 16, 1993, who also recommended surgery. Dr. Beals and another

doctor performed the surgery on February 3, 1994. The surgery involved the removal

of bone from plaintiff’s hip, which was placed in the neck and secured in the area

between C1 and C2. Plaintiff did well postoperatively and for approximately three

months following surgery, was required to wear a halo brace at all times. Due to the

brace, plaintiff’s wife had to attend to his personal hygiene and care for the brace and

other needs.

               It is plaintiff’s position that there is no material evidence to support the

jury’s award of damages where the parties had stipulated that the amount of medical

expenses incurred by plaintiff totaled $37,314.70. We are required to affirm the


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judgment unless there is no material evidence to support the verdict. Rule 13(d)

T.R.A.P.

               Plaintiff tried this case before a jury, on the theory that the condition

requiring surgery was caused by the accident. He offered the expert medical opinion

of Dr. Joe Beals, who opined that the accident was the cause of this condition

requiring surgery. The defendant offered the testimony of Dr. Corradino, who

testified that the initial x-ray “showed what appeared to be an absence of a bone at the

upper part of the cervical spine known as the odontoid process and some subluxation,

which is a partial dislocation of the first and second vertebra.” He was of the firm

opinion as of April 23, 1993, that the absent odontoid process was either “congenital

or an acquired abnormality”. He was of the firm opinion, however, that “it is almost

certainly of long-standing duration and not related to his recent accident”. The

foregoing constitutes material evidence that the condition predated the accident.

However, there is other evidence in the record which no doubt impacted heavily upon

the triers of fact and against the plaintiff’s position.

               On the plaintiff’s June 3 visit to Dr. Corradino, he brought x-rays from a

VA Hospital which had been taken of his head and the upper part of the neck on

September 19, 1989, due to a sinus condition. Dr. Corradino examined these x-rays

which he said showed the odontoid process was absent in 1989. The plaintiff took the

x-rays with him and apparently did not show them to Dr. Beals, who performed the

surgery, and whose opinion was formulated without the benefit of these x-rays. The

1989 x-rays and Dr. Corradino’s opinion of what they show is neither countered nor

confronted in this record. There are other inconsistences in plaintiff’s testimony and

the trier of fact was justified in concluding that the accident was not the cause of the

condition or surgery. See Buchanan v. Harris, 902 S.W.2d 941 (Tenn. App. 1995).

               Plaintiff argues on appeal, that the pre-existing condition was


                                              3
aggravated. This is simply not the theory upon which the case was tried, and as for

the claim for consortium by plaintiff’s wife, there is material evidence that the

elements of her claim are predicated upon plaintiff’s disability arising from the

surgery, convalescence and treatment of what the jury concluded pre-existed the

accident. These issues are resolved against plaintiffs.

              Finally, plaintiff insists there is no material evidence to support the

apportioning of fault by the jury. A jury has considerable latitude in allocating the

percentage of fault in negligence cases, but we may alter the jury’s findings if they are

“clearly erroneous”. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995).

We observe at the outset, that since the jury found plaintiff’s credibility flawed, it

would be justified in not giving any weight to his version of how the accident

occurred. The evidence is conflicting about how the accident occurred. It is

undisputed that it was near darkness in the early evening and it was raining, causing

poor visibility. Defendant testified that he was proceeding within the speed limit at a

speed of approximately 40 to 45 miles per hour, and at the time he struck the rear

corner of plaintiff’s vehicle, he had slowed significantly and the impact was slight.

Defendant observed the plaintiff’s vehicle in the roadway as he came over a rise,

which was either stopped in the road or moving slowly. It is unclear from the record,

what signals, if any, plaintiff gave. Defendant testified there was oncoming traffic in

the other lane, and that when he was approximately 150 feet from plaintiff’s vehicle,

he realized that the plaintiff’s vehicle “was not moving” and applied his brakes. He

concluded plaintiff “had spent a very long lengthy period of time in the lane of traffic,

not moving or moving slowly, I couldn’t tell”. The plaintiff offered no explanation

for why he was stopped or moving slowly in defendant’s lane of travel. Under the

circumstances and the road conditions and taking into account plaintiff’s credibility on

this issue, we cannot say the jury’s assessment of liability is


                                             4
“clearly erroneous”.

             For the foregoing reasons, we affirm the judgment of the Trial Court and

remand with costs of appeal assessed to the appellants.




                                         __________________________
                                         Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McMurray, J.




___________________________
Charles D. Susano, Jr., J.




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