                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

               BRUCE L. KINNARD v. LARRY W. TAYLOR, ET AL.

                  A Direct Appeal from the Circuit Court for Wilson County
                        No. 8023    The Honorable Clara Byrd, Judge



                    No. M1999-00512-COA-R3-CV - Decided May 25, 2000


        This is a personal injury case, and the jury returned a verdict for plaintiff. Plaintiff appeals
asserting that the trial court erred in failing to grant a new trial because of the alleged inadequacy
of the verdict.


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

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and FARMER , J.,
joined.

Dicken E. Kidwell, Murfreesboro, For Appellant

William G. McCaskill, Jr., Nashville, For Appellees

                                              OPINION


       Plaintiff/appellant, Bruce L. Kinnard, appeals the judgment on the jury verdict that awarded
him $5,200.00 in damages.

       The facts related to the accident are not in dispute. On March 10, 1990, Kinnard and
defendant, Larry Taylor, were driving north on Highway 71 in Mt. Juliet, Tennessee. Kinnard
stopped in the left turn lane while waiting for traffic to proceed. Taylor struck the rear of Kinnard’s
automobile causing it to collide with the vehicle in front of Kinnard. Kinnard’s automobile sustained
damage to the bumper, bumper brackets, gas tank, and minimal damage to the front of the vehicle.

        At the scene of the accident, Kinnard denied injury. Following the accident, Kinnard ran
errands and then proceeded home. Later that evening, Kinnard began experiencing pain and went
to the emergency room at Southern Hills Hospital. After x-rays were taken, Kinnard was treated
with a cervical collar and anti-inflammatory drugs.

        On March 8, 1991, Kinnard filed a complaint seeking damages for injuries sustained in the
accident. After a trial on the merits, the jury returned a verdict finding for Kinnard and awarded him
damages totaling $5,200.00 for past medical expenses. Kinnard filed a motion for a new trial on
May 12, 1999 or alternatively for additur. In denying the motion, the trial court found no grounds
to set aside the jury’s verdict and order a new trial. The court found the jury’s verdict within the
range of reasonableness and refused to grant an additur.

        Plaintiff appeals and present six issues for review. However, we perceive the sole issue to
be whether the trial court erred in failing to grant a new trial due to the alleged inadequacy of the jury
verdict.1

        Kinnard contends that the jury’s award is insufficient, because the verdict “barely covers
initial medical expenses, provides nothing for lost wages and/or pain and suffering, and is
consequently below the lower level of reasonableness.”

        In Miller v. Williams, 970 S.W.2d 497 (Tenn. Ct. App. 1998), this Court, in an opinion
authored by Judge Susano, succinctly stated the principles we must observe in deciding the issue
before the Court in this case. The Court stated:

                       In this case, we must decide if the record contains “material
                evidence to support the [jury’s] verdict.” Rule 13(d), T.R.A.P.;
                Coffey v. Fayette Tubular Products, 929 S.W.2d 326, 331 n.2 (Tenn.
                1996); Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980); Pettus
                v. Hurst, 882 S.W.2d 783, 788 (Tenn. Ct. App. 1993); Benson v.
                Tennessee Valley Elec. Coop., 868 S.W.2d 630, 640 (Tenn. Ct. App.
                1993). Because Miller asserts that the jury’s award is insufficient,
                our focus is on the “lower limit” of the “range of reasonableness.”
                Foster v. Amcon Int’l, Inc., 621 S.W.2d 142, 146 (Tenn. 1981). In
                the Foster case, the Supreme Court stated that

                        [a] reasoned examination of the credible proof of
                        damages leads to a determination of the figure beyond
                        which excessiveness or inadequacy lies and beyond
                        which there is no evidence, upon any reasonable view
                        of the case, to support the verdict.

                Id. In reviewing the adequacy of the jury’s award, we note that

                        [the determination of] the amount of compensation in
                        a personal injury case is primarily for the jury, and


        1
        The Court of Appeals does not have the authority to grant an additur under T.C.A. § 20-10-
101 (1994). See Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980); Wilkerson v. Altizer, 845
S.W.2d 744, 749 (Tenn. Ct. App. 1992).

                                                   -2-
                          that next to the jury, the most competent person to
                          pass on the matter is the trial judge who presided at
                          the trial and heard the evidence.

                  Id. at 143-44; Coffey, 929 S.W.2d at 331 n.2.

                         The effect of a trial court’s approval of the amount of a jury
                  award is clear:

                          ... the trial judge’s approval of the amount of the
                          jury’s verdict invokes the material evidence rule, just
                          as it does with respect to all other factual issues upon
                          which appellate review is sought....

                                                 *   *     *

                          “[a]ll of the evidence in the record that tends to
                          support the amount of the verdict should be given full
                          faith and credit upon appellate review.”

                  Poole, 604 S.W.2d at 54 (citing Ellis v. White Freightliner Corp.,
                  603 S.W.2d 125 (Tenn. 1980)). Thus, our analysis is limited to a
                  determination of whether the record reflects material evidence
                  demonstrating that the jury’s award is “at or above the lower limit of
                  the range of reasonableness, giving full faith and credit to all of the
                  evidence that tends to support that amount.” Poole, 604 S.W.2d at
                  54. We are required to take the strongest legitimate view of all the
                  evidence, including all reasonable inferences therefrom, to sustain the
                  verdict; to assume the truth of all the evidence that supports it; and to
                  discard all evidence to the contrary. Id. In this analysis, we do not
                  weigh the evidence, nor do we determine the credibility of the
                  witnesses. Id.

Id. at 498-499.

        Kinnard testified that he was 47 years old at the time of trial. He attended Belmont College
for one year, but left to attend State Area Vocational School where he trained to become a tool and
die maker. Kinnard worked in this profession from 1973 until 1981.

        Kinnard was involved in an automobile accident in 1973, which resulted in intermittent back
pain for a couple of years. He filed a lawsuit, but it was never settled. In 1978, a vehicle sideswiped
Kinnard’s vehicle. As a result, Kinnard suffered knee problems. Kinnard sued the driver of the
vehicle and the law suit settled for approximately $2,000. In 1981, Kinnard was a passenger in a
vehicle which was involved in an accident. His primary complaint was with his vision. Kinnard

                                                     -3-
sued the driver, the Metropolitan Government and a construction company working at the scene of
the accident. He settled with the driver for approximately $3,500.00 and the construction company
for approximately $5,000.00. Kinnard testified that because of the injuries sustained in the 1981
accident he missed six weeks of work and eventually quit his job in the tool and die business.

         From 1982 to 1990, Kinnard operated a record business. His highest income earned during
this time was in 1986, when he netted $4,000.00. He testified that he is no longer able to operate the
record business because of the injuries sustained in the 1990 automobile accident.

        Regarding the 1990 accident, Kinnard testified that he began experiencing pain the night of
the accident and visited the emergency room. A few days later, Kinnard contacted his cousin, a
lawyer, for a recommendation of an orthopedic doctor. On his cousin’s recommendation, Kinnard
visited Dr. Dewey Thomas.

         Kinnard did not seek medical treatment from the end of 1991 until August 1994. During
this time, Kinnard took herbs and hot showers, and exercised to treat the pain. In 1994, Kinnard
visited Dr. Melvin Law, who treated Kinnard with pain medications until 1996 when Law performed
surgery. Kinnard testified that he needed the surgery to prevent the pain from getting worse, but
stated that he is still in pain.

         The plaintiff also introduced the testimony of several doctors via video taped depositions.
Dr. Dewey Thomas, an orthopedic surgeon in Nashville, testified that Kinnard first visited his office
on March 19, 1990 and related that he had been in an automobile accident two days before. Kinnard
stated that following the accident he had been taken to Southern Hills Hospital Emergency Room.
X-rays were made of his neck, his primary complaint. A physical examination revealed that he had
moderate muscle spasms in the neck area with some restriction of motion. There was no evidence
of any gross nerve deficit in either upper extremity. Although there was some loss of motion in the
lower back, there was no evidence of any nerve involvement in either of the upper or lower
extremities. He was advised to take anti-inflammatory medications and muscle relaxants. Because
of the continuing complaints of pain, an MRI was ordered of the lumbar spine in July of 1990, and
there was a left paracentral L5-S1 disc herniation revealed. In February, 1991, an MRI was
performed of the upper extremity and revealed a right-sided disc herniation between the fourth and
fifth cervical vertebrae. Dr. Thomas opined that these disc herniations could be related to the March,
1990 accident, because he did not have any symptoms of such problems prior to that accident.
Because of his continuous, multiple complaints, Dr. Thomas referred Kinnard to neurosurgeons, Dr.
Edward Howell and Dr. Manual Weiss, and he was later referred to Vanderbilt Pain Clinic, where
he was treated by Dr. Winston Parris. Dr. Parris testified that he saw Kinnard on June 13, 1991, and
he was complaining of chronic pain in the cervical area, right shoulder area, and low back. The low
back pain radiated to the right and left lower extremity. Kinnard’s physical examination was
essentially normal with exception of some tender spots in the neck and low back. Parris treated
Kinnard’s pain with nerve block injections in June and November, 1991. He testified that Kinnard
refused to accept his recommendation that he have epidural steroid injections to treat the pain. His
last visit to the pain clinic was on December 9, 1991.


                                                 -4-
        Dr. Melvin Law, an orthopaedist, testified that he first saw Kinnard in October of 1994,
almost four and one-half years after the accident. He testified that his examination revealed that
Kinnard had a herniated disc with nerve compression, spinal cord compression at the C4-5 level of
his neck and that he treated Kinnard with pain medications for two years, during which time Kinnard
had multiple complaints. In 1996, Law performed surgery of the cervical area, removing discs and
bone spurs and fusing the spine. Dr. Law opined that Kinnard's neck problems were related to the
March 1990 accident. He further opined that Kinnard would have fifteen percent total disability
impairment in his neck. The medical expenses incurred for the second course of treatment from
1994 to 1996 were approximately $55,000.00.

        Defendant introduced the testimony of Dr. Robert Weiss, a neurosurgeon, to whom Dr.
Thomas referred Kinnard. Dr. Weiss testified that he first treated Kinnard in February of 1991 for
Kinnard’s complaint of “total body pain.” During this visit, Dr. Weiss performed a physical
examination and found no evidence of a neurologic injury. He also reviewed Kinnard’s previous
imaging studies, including a cervical, thoracic, and lumbar MRI. Dr. Weiss found a small disc bulge
at the bottom level at L5-S1, which he thought common for someone Kinnard’s age. He also noted
some narrowing of the neck at the C5-6 level, which he characterized as arthritis. He did not relate
these findings to the March 1990 accident. Other than these findings, Weiss testified that the
imaging studies were normal with no objective abnormalities present. Weiss stated that he did not
see anything on the imaging studies which he could ascribe to the 1990 automobile accident. He
further stated that he would not have placed any physical restrictions on Kinnard in 1991.

        Weiss testified that he reviewed Kinnard’s medical records from 1991 through 1997. Weiss
continues to feel that based on Kinnard’s complaints and symptoms, he would not have performed
the surgery in 1996.

        The record indicates that Mr. Kinnard presented a rather detailed chronology of his pain and
discomfort which was so elaborate as to evoke comment from Dr. Weiss. His multiple and persistent
statements of pain, coupled with the minimal physical findings, could have led the jury to believe
that he was grossly exaggerating his condition. The jury was also aware that he had previous
experience with presenting claims for personal injuries and had actually collected money from these
claims.

        Insofar as there was a conflict in the opinions of the physicians, the jury undoubtedly decided
that Dr. Weiss’s opinion was more consistent with what they found from their observation of the
plaintiff. The jury had the opportunity to observe the witnesses as they testified, both in person or
by videotape. The weight, faith, and credit to be given to any witness’s testimony lies in the first
instance with the trier of fact, and the credibility accorded will be given great weight by the
appellate court. Town of Alamo v. Forcum-James Co., 205 Tenn. 478, 327 S.W.2d 47 (1959); and
Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844 (Tenn. Ct. App. 1982).

       The jury apparently wanted to award Mr. Kinnard the expense he incurred in his initial
treatment but, because of the factual dispute, did not feel that there was any expense of the
subsequent treatment related to the accident. Bearing in mind the extreme importance of credibility

                                                 -5-
as assessed by the jury, the jury could have reasonably concluded that Mr. Kinnard was not injured
in the manner and to the extent as he claimed, that perhaps there was some exaggeration on Mr.
Kinnard’s part concerning his multiple complaints of pain.

         From our review of the record, there appears to be material evidence to sustain the jury’s
verdict. Accordingly, the judgment of the trial court is affirmed, and this case is remanded to the
trial court for such further proceedings as may be necessary. Costs of the appeal are assessed against
the appellant, Bruce L. Kinnard.




                                                 -6-
