                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 16, 2013 Session

        LOUIS W. ADAMS v. MEGAN ELIZABETH LEAMON ET AL.

                    Appeal from the Circuit Court for Rhea County
                      No. 27469     Thomas W. Graham, Judge




            No. E2012-01520-COA-R3-CV-FILED-NOVEMBER 25, 2013




This is a motor vehicle accident case wherein the jury’s verdict resulted in an award of
compensatory damages to the plaintiff of $317,000.00. The defendants filed a motion
seeking a new trial or, in the alternative, a remittitur of the amount of damages awarded. The
trial court granted the remittitur, finding that the damages awarded by the jury were excessive
and unsupported by the evidence. The trial court also ruled that if the plaintiff rejected the
remittitur, a new trial would be awarded. The plaintiff accepted the remittitur under protest,
subsequently filing the instant appeal. We vacate the trial court’s judgment and remand this
case for a new trial solely on the issue of damages.

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

T HOMAS R. F RIERSON , II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Dan Channing Stanley and Eric B. Foust, Knoxville, Tennessee, for the appellant, Louis W.
Adams.

Paul Campbell, III, Chattanooga, Tennessee, for the appellees, Megan Elizabeth Leamon and
Cynthia Karlette Leamon.

Nathan Evans, Chattanooga, Tennessee, for the appellee, State Farm Mutual Automobile
Insurance Company.
                                               OPINION

                               I. Factual and Procedural Background

        On May 21, 2009, the plaintiff, Louis W. Adams, was traveling north on State Route
27 in Rhea County, Tennessee, when a collision occurred between his motorcycle and a
vehicle being driven by the defendant, Megan Elizabeth Leamon. Mr. Adams filed the
instant action, alleging that Ms. Leamon’s negligent actions caused the collision. Mr. Adams
alleged that the vehicle Ms. Leamon was driving was owned by Cynthia Karlette Leamon.
Claiming joint and several liability, Mr. Adams sought compensatory damages for injuries
he suffered in the collision.

       A jury trial was held on February 16 and 17, 2012. Upon completing its deliberations,
the jury apportioned forty percent of the fault for the collision to Mr. Adams and sixty
percent of the fault to Megan Leamon. The jury awarded the following damages:

       Medical expenses                                   $ 14,731.00
       Pain and suffering - past                          $ 10,000.00
       Pain and suffering - future                        $120,476.00
       Loss of enjoyment of life - past                   $ 2,756.50
       Loss of enjoyment of life - future                 $156,204.50
       Disfigurement                                      $ 12,833.00
                                                          =========
       Total damages                                      $317,000.00 1

The total monetary award was reduced by forty percent based on the respective fault
allocation, and judgment was entered in favor Mr. Adams in the amount of $190,000.2

        The Leamons filed a motion seeking a new trial or a remittitur of the damages
awarded by the jury. The trial court entered an order granting remittitur, finding that “a
portion of the damages awarded by the jury [was] excessive.” The court specifically stated
that the damages awarded for future pain and suffering and future loss of enjoyment of life
“simply are not supported by the evidence.” The court reduced the jury’s award in each of
the respective damage categories to $25,000.00 as the maximum amount that should have
been awarded. The court accordingly revised the original damages award as follows:



       1
           The trial court appears to have rounded this number to an even figure.
       2
           The trial court appears to have rounded this number as well.

                                                    -2-
       Medical expenses                              $ 14,731.00
       Pain and suffering - past                     $ 10,000.00
       Pain and suffering - future                   $ 25,000.00
       Loss of enjoyment of life - past              $ 2,756.50
       Loss of enjoyment of life - future            $ 25,000.00
       Disfigurement                                 $ 12,833.00
                                                     =========
       Total damages                                 $ 90,320.50

In establishing a compensatory award, the trial court reduced the revised damages amount
commensurate with the jury’s allocation of fault and approved a judgment for Mr. Adams in
the amount of $54,192.10.3 The court ordered that Mr. Adams had thirty days to either
accept or reject the remittitur and that if the remittur were rejected, the Leamons would be
granted a new trial. Mr. Adams accepted the remittitur under protest and timely filed this
appeal.

                                      II. Issue Presented

      In this appeal, Mr. Adams presents the issue of whether the trial court erred in
suggesting a remittitur of the jury’s verdict or, in the alternative, granting the Leamons’
motion for a new trial.

                                   III. Standard of Review

        The trial court’s suggestion of remittitur is reviewed de novo, accompanied by a
presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn.
Code Ann. § 20-10-102 (2009); Tenn. R. App. P. 13(d). This Court should “determine
whether the trial court’s adjustments were justified, giving due credit to the jury’s decision
regarding the credibility of the witnesses and due deference to the trial court’s prerogatives
as thirteenth juror.” Johnson v. Nunis, 383 S.W.3d 122, 134 (Tenn. Ct. App. 2012) (citing
Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990)). As our Supreme Court has
often explained:

       The amount of the verdict is primarily for the jury to determine, and next to the
       jury the most competent person to pass upon the matter is the judge who
       presided at the trial and heard the evidence.



       3
          This appears to be a typographical error in the order as the calculated amount should be
$54,192.30.

                                               -3-
Foster v. Amcon Intern., Inc., 621 S.W.2d 142, 147 (Tenn. 1981) (quoting Smith v. Shelton,
569 S.W.2d 421 (Tenn. 1978)). See, e.g., Reeves v. Catignani, 7 S.W.2d 38 (Tenn. 1928).

                                         IV. Remittitur

       As this Court has previously recognized:

       The issue of damages is primarily for the jury. However, a trial court has the
       statutory authority to adjust the jury’s award when necessary to accomplish
       justice between the parties and to avoid the expense of a new trial. This
       prerogative is codified in Tenn. Code Ann. § 20-10-102 (1994), which
       provides as follows:

              (a) In all jury trials had in civil actions, after the verdict has been
              rendered and on motion for a new trial, when the trial judge is
              of the opinion that the verdict in favor of a party should be
              reduced and a remittitur is suggested by the trial judge on that
              account, with the proviso that in case the party in whose favor
              the verdict has been rendered refuses to make the remittitur, a
              new trial will be awarded, the party in whose favor such verdict
              has been rendered may make such remittitur under protest, and
              appeal from the action of the trial judge to the court of appeals.

              (b) The court of appeals shall review the action of the trial court
              suggesting a remittitur using the standard of review provided for
              in T.R.A.P. 13(d) applicable to decisions of the trial court sitting
              without a jury. If, in the opinion of the court of appeals, the
              verdict of the jury should not have been reduced, but the
              judgment of the trial court is correct in other respects, the case
              shall be reversed to that extent, and judgment shall be rendered
              in the court of appeals for the full amount originally awarded by
              the jury in the trial court.

Myers v. Myers, No. E2004-02135-COA-R3-CV, 2005 WL 1521952 at *2-3 (Tenn. Ct. App.
June 27, 2005) (internal citations omitted).

       This statute recognizes the trial court’s inherent power to suggest a remittitur and
encourages the courts to utilize remittitur as a remedy to an excessive jury verdict in order
to save the time and expense involved in granting a new trial. See Thrailkill v. Patterson,
879 S.W.2d 836, 840 (Tenn. 1994); Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d

                                                -4-
380, 386 (Tenn. Ct. App. 2006). In this case, the trial court suggested a remittitur rather than
simply ordering a new trial. Such action indicates that the trial court agreed with the jury’s
verdict regarding liability and only disagreed with the amount of the jury’s compensatory
damages award. See Myers, 2005 WL 1521952 at *3 (citing Burlison v. Rose, 701 S.W.2d
609 (Tenn. 1985)).

      For over twenty years, our appellate courts have employed a “three-step review” when
determining the propriety of a trial court’s suggestion of remittitur:

       First, we examine the reasons for the trial court’s action since adjustments are
       proper only when the court disagrees with the amount of the verdict. Second,
       we examine the amount of the suggested adjustment since adjustments that
       “totally destroy” the jury’s verdict are impermissible. Third, we review the
       proof of damages to determine whether the evidence preponderates against the
       trial court’s adjustment.

Johnson, 383 S.W.3d at 134 (citing Long, 797 S.W.2d at 896). This Court has made clear
that “[t]he right to revise even the amount of the verdict by the process of suggesting a
remittitur is a delicate one and one that a court should be slow to adopt . . . .” Palanki, 215
S.W.3d at 387 (quoting Jenkins v. Commodore Corp. S., 584 S.W.2d 773, 778 (Tenn. 1979)).

        Employing the three-step review described above, we focus first upon the expressed
reasons for the trial court’s action of suggesting a remittitur. In the case at bar, the trial
court’s only stated reasons for suggesting a remittitur for the two categories of damages
reduced were that the jury’s award was “excessive” and “not supported by the evidence.”
As explained in Johnson, where the trial court does not give any actual explanation for its
action, “[t]hough we are charged on appeal with the responsibility to ‘examine the reasons
for the trial court’s actions,’ we are left perplexed as to how this can be done in this case.”
383 S.W.3d at 135 (citing Long, 797 S.W.2d at 896). Trial courts can assist in this Court’s
review by providing specific reasons for the suggested remittitur and the evidence upon
which the trial court relies. See, e.g., Glover v. Chambers, 1988 WL 5681 (Tenn. Ct. App.
Jan. 29, 1988).

        Here, the trial court did specifically take issue with the jury’s awards regarding the
particular damage categories of future pain and suffering and future loss of enjoyment of life,
which aids in our review. See Johnson, 383 S.W.3d at 135. These damage categories are
considered non-economic, and this Court is thus cautioned that “the determination of such
non-pecuniary losses as pain and suffering damages involves a subjective element not present
in the determination of ordinary facts. The jury trial guarantee requires that the subjective
element involved be that of the community and not of judges.” Johnson, 383 S.W.3d at 136

                                              -5-
(quoting Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-CV,
2009 WL 482475 at *21 (Tenn. Ct. App. Mar. 10, 2011)). “[D]etermining the amount of
these damages is appropriately left to the sound discretion of the jury or the judicial
finder-of-fact.” Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 210-211 (Tenn. Ct.
App. 2008).

       Further, as our Supreme Court has recently elucidated:

       Damages for pain and suffering are awarded for the physical and mental
       suffering that accompany an injury. Damages awarded for loss of enjoyment
       of life are intended to compensate a plaintiff for the impairment of the ability
       to enjoy the normal pleasures of living. Assigning a compensable, monetary
       value to non-economic damages can be difficult. The assessment of
       non-economic damages is not an exact science, nor is there a precise
       mathematical formula to apply in determining the amount of damages an
       injured party has incurred. Thus, a plaintiff is generally not required to prove
       the monetary value of non-economic damages.

Meals ex rel. Meals v. Ford Motor Co., ____ S.W.3d ____, No. W2010-01493-SC-R11-CV,
2013 WL 4673609 at *3 (Tenn. Aug. 30, 2013) (internal citations omitted).

        In the case at bar, the evidence demonstrated that Mr. Adams was sixty-seven years
old at the time of trial and had enjoyed the hobby of riding motorcycles for most of his life.
As a result of the accident, he sustained broken ribs as well as injuries to his neck, shoulder,
and hand. Mr. Adams continued working after the accident even though he was suffering
pain from his injuries. He was, however, able to adequately perform his duties as a security
guard. Although Mr. Adams attended physical therapy for a number of months and
experienced improvement, he still suffered from pain and weakness at the time of trial. His
treating chiropractor, Dr. Barry Sitkoff, testified that Mr. Adams had likely achieved the
highest level of progress possible concerning his injuries. According to Dr. Sitkoff, Mr.
Adams would continue to experience some degree of pain as well as permanent limitations
to his ability to reach high, climb, and push or lift anything heavy. Specifically, Mr. Adams
suffered restricted mobility and tendinosis in his right shoulder, which Dr. Sitkoff opined
would be chronic conditions. Another physician associated with Dr. Sitkoff’s practice, Dr.
Edward Jacobson, examined Mr. Adams during his final office visit on January 27, 2010.
He assessed Mr. Adams’s right shoulder motion as restricted by thirty percent.

      Evidence was presented that Mr. Adams was slightly limited in his ability to perform
household tasks and that he presently tired more easily than before the accident. The
evidence demonstrated that Mr. Adams was substantially limited in his ability to operate his

                                              -6-
motorcycle for long distances. Both Mr. Adams and his wife agreed that his riding for even
short trips resulted in pain. Mr. Adams experienced difficulty sleeping due to discomfort in
his shoulder and stated that his shoulder felt “frozen.” According to his testimony, he also
experienced pain and burning in his hand, intermittent headaches, and a significantly
decreased energy level. The record contains no evidence of Mr. Adams having any
significant physical problems before the accident except for certain unrelated gastrointestinal
issues.

        The jury awarded Mr. Adams $120,476.00 for future pain and suffering while
awarding him an additional $156,204.50 for future loss of enjoyment of life. While this
Court would have been better assisted if the trial court had elaborated upon its basis for
determining the verdict to be excessive, we agree that the verdict is excessive based upon the
evidence before us. Mr. Adams’s medical expenses only amounted to $14,731.00, and he
never missed work due to his injuries. Mr. Adams did continue to experience pain and
weakness from his injuries, but he was able to work and perform most household tasks. His
greatest limitation appeared to be that he could no longer fully enjoy his hobby of riding
motorcycles. Viewing the evidence regarding Mr. Adams’s continuing limitations and pain,
we conclude that the evidence does not preponderate against the trial court’s determination
that the verdict was excessive.

        We next examine the suggested remittitur to determine whether it “totally destroys”
the jury’s verdict. An adjustment that totally destroys the jury’s verdict is impermissible and
must be vacated or modified. See Johnson, 383 S.W.3d at 134; Myers, 2005 WL 1521952
at *3. In this case, the trial court reduced the jury’s verdict from $317,000.00 to $90,320.50.
This is a reduction of approximately 71.5 percent. Our Supreme Court and this Court have
been reluctant to establish a numerical standard for reviewing additurs and remittiturs. See
Foster, 621 S.W.2d at 148 n.9; Guess v. Maury, 726 S.W.2d 906, 913 (Tenn. Ct. App. 1986),
overruled on an unrelated ground by Elliott v. Cobb, 320 S.W.3d 246 (Tenn. 2010).
However, it has generally been recognized that an adjustment of 70 percent or greater is “so
large as to destroy the jury’s verdict.” Myers, 2005 WL 1521952 at *5 (remittitur of 70
percent destroyed the verdict). See also Foster, 621 S.W.2d at 148 (additur of thirty times
the amount of verdict totally destroyed the verdict); Guess, 726 S.W.2d at 913 (remittitur of
75 percent destroyed the verdict). Upon our review of the record, we conclude that the
reduction in the case at bar was so substantial as to totally destroy the jury’s verdict. Having
made such determination, we find it unnecessary to employ further review of the propriety
of the suggestion of remittitur. We vacate the trial court’s suggested remittitur and remand
the case for a new trial solely addressing the proper amount of damages, to which the trial
court is directed to apply the sixty percent fault allocation attributed to Megan Leamon by
the jury.



                                              -7-
                                     V. Conclusion

        The judgment of the trial court is vacated. This case is hereby remanded for a new
trial solely addressing the issue of damages. Costs on appeal are assessed equally to
Appellant, Louis W. Adams, and to the Appellees, Megan Elizabeth Leamon and Cynthia
Karlette Leamon.




                                                 _________________________________
                                                 THOMAS R. FRIERSON, II, JUDGE




                                           -8-
