                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                           April 15, 2002 Session

             DEBORAH SMITH, ET AL. v. TACO BELL CORPORATION

                            Appeal from the Circuit Court for Knox County
                              No. 3-342-95   Wheeler Rosenbalm, Judge

                                              FILED MAY 3, 2002

                                        No. E2001-01796-COA-R3-CV



The Trial Court awarded Deborah Smith (“Plaintiff”) $250,000 for injuries received as a result of
her fall at Taco Bell. Plaintiff’s husband was awarded $10,000 for his loss of consortium claim. On
appeal, Taco Bell Corporation (“Defendant”) contends the Trial Court committed reversible error
by failing to rule at trial on Defendant’s objections made during the depositions of the two primary
treating physicians. Defendant also claims the medical proof was insufficient to establish a causal
connection between Plaintiff’s fall at Taco Bell and her medical condition. We affirm.1


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and CHARLES D. SUSANO, JR. J., joined.


Clint J. Woodfin, Knoxville, Tennessee, for the Appellant Taco Bell Corporation.


Ronald E. Cunningham and Kenneth W. Holbert, Knoxville, Tennessee, for the Appellees Deborah
and Alan Smith.




         1
           Oral argument was heard in this case on April 15, 2002, at Knox ville Catho lic High Sc hool, as p art of this
Court’s C .A.S.E. ( Court of App eals Affecting Student Education ) project.
                                              OPINION

                                            Background

                Plaintiff, age 41 at the time of trial, claims she was seriously injured when she fell
at a Taco Bell restaurant in 1994. Plaintiff was attempting to refill her drink when she stepped onto
a recently mopped section of the floor where she slipped and fell. According to Plaintiff, there were
no warning signs posted alerting her to the wet condition of the floor. Plaintiff claims to have
suffered injuries to her neck and back resulting from the fall. Plaintiff’s husband sued for loss of
consortium. Defendant filed an answer essentially denying the pertinent allegations of the
complaint.

               After a bench trial, the Trial Court found Defendant to be negligent and 100%
responsible for the accident for comparative fault purposes. The Trial Court concluded as follows:

               [T]he fault or proximate negligence of the defendant caused injury to
               Mrs. Smith’s thoracic or mid back region and caused injury
               particularly to the region of her cervical spine identified as C5 and 6,
               and has caused her to suffer from an increase in headaches which
               have been characterized in the record as migraine headaches, perhaps
               the most severe of headaches experienced by the human being; and
               that as a result of these injuries together with some aggravation of her
               preexisting condition that grew out of a previous automobile accident,
               the plaintiff has been caused to incur considerable expense for
               examination and treatment of those injuries and under the medical
               proof in the record, the expert testimony, the plaintiff will incur
               expenses in the future.

                       The experts offered by the plaintiff estimate that the
               permanent impairment that the plaintiff has suffered because of these
               injuries will approach nine or ten percent to the body as a whole.
               And so, it is obvious to the Court, the Court concludes that the
               plaintiff has suffered some rather severe injuries, although the Court
               is constrained to conclude that these injuries are not life-threatening
               or totally disabling. Certainly the extent to which they are going to
               interfere with the plaintiff’s future life has not been established to that
               degree of certainty where there’s just absolutely no question about
               them.

                       But certainly the evidence rises to the level of being more than
               merely conjectural, and it’s clear here that more likely than not the
               plaintiff is going to continue to suffer from discomfort and some
               limitation in her activities and will require future medical treatment

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                in the way of drugs and perhaps some physical therapy for treatment
                of her ongoing condition.

                        The difficult part of course is to place a figure on all of these
                things collectively which will fairly and adequately compensate the
                plaintiff for her injuries. And after having examined all of these
                elements of damage and considering very carefully the expert opinion
                testimony of the doctors that have been submitted in this case and
                attempting to make an analysis of what weight and credit to give to
                various parts of that opinion testimony, the Court concludes that the
                plaintiff Deborah Smith is entitled to recover from the defendant
                Taco Bell Corporation the sum of two hundred fifty thousand dollars.

                The Trial Court also awarded Mr. Smith $10,000 for his loss of consortium claim,
and entered judgment in favor of both Mrs. and Mr. Smith. Defendant does not appeal the Trial
Court’s determination that it was negligent and fully at fault for Plaintiff’s fall. The two issues on
appeal concern the Trial Court’s failure at trial to rule on various objections made during the
depositions of the two primary treating physicians, and whether the evidence preponderates against
the Trial Court’s conclusion that Plaintiff’s fall at Taco Bell was the proximate cause of her medical
condition. Accordingly, we will set forth the testimony of the witnesses only as it pertains to these
issues.

                  Plaintiff testified she, her husband, and two of her daughters were eating lunch at
Taco Bell. Plaintiff finished eating her lunch and got up to refill her drink. Plaintiff hit a “very slick
spot” and both of her feet “just went out from under” her, causing her head to hit a table and her neck
to hit the back of a chair. Plaintiff then “hit the floor just totally flat on my back.” Plaintiff
immediately experienced a strong pain and burning sensation at the back of her head. After her
husband helped her off the floor, Plaintiff went to Fort Sanders Hospital where x-rays were taken.
She subsequently came under the care of Dr. Degnan (“Degnan”). Degnan had treated Plaintiff in
the past for neck problems arising from an automobile accident in 1992. Approximately nine months
prior to the fall at Taco Bell, Plaintiff had stopped treatment for the neck injury from the automobile
accident because the pain had “gotten better.” Plaintiff admitted having bad headaches after the
automobile accident, but stated she would take Excedrin and did not need to take any prescription
medication for these headaches. The headaches had “pretty much subsided” by the time she fell at
Taco Bell. Plaintiff was assessed a four percent impairment as a result of the automobile accident
in 1992, but was not taking any medication other than Excedrin for her headaches and a muscle
relaxant on an as needed basis for her neck. Plaintiff testified her neck pain was much worse and
more constant after the fall at Taco Bell in 1994. “[E]verything I would do would aggravate my
neck. Sitting, standing. Very little things that I do that does not aggravate my neck.” Her headaches
also became more frequent and more intense. After her fall at Taco Bell, her headaches sometimes
forced her to go to bed for two to three days at a time, and she would become nauseated. Plaintiff
testified she never had a migraine headache prior to her fall at Taco Bell. Plaintiff also began
experiencing pain in her upper back for the first time after her fall. She also injured her lower back

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and a finger in the fall, but these injuries resolved over time. Plaintiff saw Degnan approximately
27 times and received multiple cortisone shots. In 1997, Plaintiff came under the care of Dr.
Scariano (“Scariano”). Plaintiff testified the medication she currently is taking for her headaches
costs $171 per month, and the medication for her neck costs approximately $200 per month. She
has been taking this medication for two and one-half to three years. Plaintiff claimed $6,200 in lost
wages as a result of the accident at Taco Bell.

                Degnan’s deposition was offered as proof as trial. Degnan first treated Plaintiff in
1993 following an automobile accident. Plaintiff, at that time, complained of pain in her neck, left
arm, and also complained of headaches. An MRI was performed which showed a posterior bulging
disc at the C6 and C7 level. Degnan opined Plaintiff suffered a four percent permanent medical
impairment as a result of the automobile accident. When receiving treatment following the
automobile accident, Plaintiff did not describe the severity of the headaches, nor did she complain
of pain in her lower back or thoracic area. Degnan began treating Plaintiff again in 1994 after her
fall at Taco Bell. Plaintiff told Degnan she fell and struck her head and “it was quite a sever
impact.” Although Degnan’s notes indicate Plaintiff’s head hit a garbage can, he stated he thought
she actually hit a table. In any event, Plaintiff complained of low back pain and there was some
muscle spasm. In October of 1994, Plaintiff had complaints of pain in the cervical area of her spine.
In November, Plaintiff was distressed and complained of problems with her neck, shoulder, and
severe migraine headaches. Another MRI was performed which revealed a ruptured disc at the C5
and C6 level. Degnan further stated he concluded within a reasonable degree of medical certainty
that the fall was responsible for the low back pain as well, assuming Plaintiff was asymptomatic as
to lower back problems prior to the fall.

                Degnan referred Plaintiff to neurologists Dr. Thomas and Dr. Scariano. He also
referred her to physical therapy. When asked if, within a reasonable degree of medical certainty,
Plaintiff received an injury as a result of the fall at Taco Bell, Degnan responded that he would
attribute the injury to the thoracic and lumbar areas of the back and the headaches to the fall,
assuming she was asymptomatic prior to the fall. Later during cross-examination, Degnan stated he
could not conclude within a reasonable degree of medical certainty the lumbar injury was related to
the fall. Degnan stated Plaintiff would continue to incur medication expenses if her symptoms did
not improve. Degnan testified Plaintiff incurred $29,195.92 in medical bills as a result of her fall
at Taco Bell. These bills were reasonable and necessary and included fees for physicians and other
health care providers to whom Degnan referred Plaintiff. On cross-examination, Degnan admitted
he could not “vouch” for the reasonableness and necessity of medical care Plaintiff received after
he stopped treating her. He also testified a cervical block was performed on Plaintiff after he stopped
treating her. Although he referred Plaintiff to Scariano, he could not state precisely if the treatment
Scariano provided was related to the fall at Taco Bell. Degnan admitted he referred Plaintiff for
physical therapy, but, when asked about some of the specific bills, he could not state whether they
were based on his referral or that of another physician. He could identify some of the referrals that
were from him. Degnan admitted his conclusion Plaintiff’s headaches were caused by the fall at
Taco Bell was based on records from Dr. Thomas, but no mention was made in Dr. Thomas’ report


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of the incident at Taco Bell. Thus, Degnan eventually testified he could not state, based on Dr.
Thomas’ records, that the headaches were caused by the fall.

                 Scariano’s deposition was offered as expert medical proof at trial. Plaintiff was
referred to him for treatment by Degnan, and he began treating her in November of 1997. At first,
Plaintiff was complaining of pain in her mid-back and Scariano eventually referred her to a pain
control center. Plaintiff began to complain of migraine headaches. She was already taking
medication prescribed by Degnan for migraine headaches. Scariano referred Plaintiff to Dr.
Natelson for his opinion on whether Plaintiff was a candidate for a spinal cord stimulator. He also
referred Plaintiff to Dr. Finelli who concluded there was no cervical lesion and recommended a
chronic pain treatment clinic. Scariano indicated Plaintiff’s medication for migraines and back pain
would cost about $400.00 per month. His diagnosis was “[o]ngoing posttraumatic migraine
headaches plus persistent cervical and upper mid thoracic pain after injury.” Scariano stated his
opinion, based on a reasonable degree of medical certainty, that the conditions Plaintiff complained
of were related to her fall at Taco Bell and her injuries were permanent. Utilizing the American
Medical Association’s combined tables, he assessed a 9% impairment to Plaintiff’s body as a whole.
He instructed Plaintiff to avoid twisting and turning her neck. He believed she could do light to
medium manual labor. She would need the migraine and back medication for the “indefinite future.”
According to Scariano, head trauma is a very common cause of migraine headaches. Scariano
testified, over objection, that Dr. Natelson’s treatment and related treatment was reasonable and
necessary, that he was familiar with the charges for similar services, and the medical bills from Dr.
Natelson were reasonable. He also stated the costs for the MRI’s were reasonable and necessary and
in accordance with the customary charges for those services. Similar responses were received with
regard to medical services and costs from the pain control center. Scariano’s total charges for
medical treatment of Plaintiff were $3,085.69. Scariano was not aware Plaintiff had headaches prior
to the fall at Taco Bell. If he had been aware of this, it would have had some bearing on his opinion
as to the cause of the migraine headaches, but not the back injury.

                 When the depositions of the treating physicians were tendered to the Trial Court as
medical proof, counsel for Defendant informed the Trial Court there were “many” objections made
during the course of the depositions and counsel wanted to “reaffirm” them. The Trial Court
indicated it would read the depositions and objections, and the parties and court would “deal with
those in the course of argument and if the objection is sustained I’ll exclude that from my
consideration.” After hearing the live witnesses, the Trial Court read the depositions of Degnan and
Scariano and returned to the courtroom for closing arguments. Defendant’s counsel did not ask for
a ruling on the objections made during the medical depositions and the objections were not discussed
during closing arguments. Instead, Defendant’s counsel attacked the credibility of Degnan and
Scariano and argued to the Court why the testimony of these physicians should not be credited and
why Plaintiff’s medical condition was attributable to the automobile accident in 1992, as opposed
to the fall at Taco Bell in 1994. After hearing closing arguments, the Trial Court rendered its
judgment. Defendant appeals.



                                                -5-
                                             Discussion

                A review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                We first address Defendant’s argument that the Trial Court committed reversible error
by not ruling at trial on the objections made during the medical depositions of Degnan and Scariano.
On appeal, Defendant does not direct this Court to any particular objection or group of objections
which it claims involved a substantial right which more probably than not affected the Trial Court’s
judgment or resulted in prejudice. See Tenn. R. App. P. 36(b). Rather, Defendant makes the
extremely broad assertion of error because none of the numerous objections were ruled on at trial.

                Tenn. R. App. P. 36(a) provides, in relevant part: “Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an error.” After
counsel for Defendant “reaffirmed” the deposition objections at trial, the Trial Court stated it would
read the depositions and accompanying objections and the parties and court would then “deal with
those in the course of argument and if the objection is sustained I’ll exclude that from my
consideration.” During the course of argument, no mention of the objections was made by
Defendant. Rather, Defendant simply attacked the credibility and the weight to be given to the
testimony of Degnan and Scariano. The Trial Court never again was asked to rule on the objections.
The Trial Court may very well have thought many of the objections were valid and excluded certain
testimony when making its final ruling, but we have no way of knowing from this record if this did
or did not occur. We conclude Defendant’s failure to request a ruling on the objections immediately
prior to or during the final argument constituted a failure “to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error”, if in fact there was any error. In
accordance with Rule 36(a), we decline to grant any relief on this issue.

                The remaining issue is Defendant’s claim the evidence preponderates against the Trial
Court’s conclusion that Plaintiff’s fall at Taco Bell was the proximate cause of her medical
condition. The medical proof certainly is not a model of clarity. Defendant quite properly and
effectively brought to the Trial Court’s attention several inconsistencies in the testimony and other
points which could impact the weight to be given to this medical testimony. We cannot, however,
view Degnan’s testimony in isolation of Scariano’s, or vice versa. We must examine their combined
testimony with that of Plaintiff in order to determine if the preponderance of the evidence is against
the Trial Court’s findings. Either one or both of these physicians attribute Plaintiff’s various medical
problems to her fall at Taco Bell. The effect of Plaintiff’s pre-existing medical condition, if any, was
a factual determination to be made by the Trial Court after evaluating the proof. This is exactly what
the Trial Court did. The medical proof was offered by way of deposition testimony, thereby
depriving the Trial Court of the opportunity to observe the manner and demeanor of those witnesses

                                                  -6-
for purposes of evaluating credibility. However, our standard of review with regard to the Trial
Court’s factual conclusions nevertheless remains the same, i.e. whether the preponderance of the
evidence is against the Trial Court’s findings. Although Degnan and Scariano did not testify live,
Plaintiff certainly did, and the Trial Court was able to evaluate her credibility. After a complete
review of the evidence set forth at length above, we conclude the preponderance of the evidence is
not contrary to the Trial Court’s finding that Plaintiff’s fall at Taco Bell was the proximate cause of
her injury and resulting medical condition. See Tenn. Rule App. P. 13(d).

              On appeal, Plaintiffs seek costs and attorney fees, asserting Defendant’s appeal is
frivolous. We do not believe the appeal to be frivolous and decline to so hold.

                                             Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Taco Bell
Corporation, and its surety.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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