                  IN THE COURT OF APPEALS OF TENNESSEE

                                        AT KNOXVILLE              FILED
                                                                   October 2, 1998

                                                                  Cecil Crowson, Jr.
LINDA ADKINS,                             )     CLAIBORNE CIRCUITllate Court C lerk
                                                              Appe
                                          )
      Plaintiff/Appellant                       )    NO. 03A01-9804-CV-00141
                                          )
v.                                        )     HON. CONRAD TROUTMAN
                                          )     JUDGE
RICK KECK and                             )
TORBETT AUTO SUPPLY,                      )
                                          )
      Defendants/Appellees                )     AFFIRMED


R. Jackson Rose, Harrogate, for the Appellant.

James D. Estep, III, Tazewell, for the Appellee, Rick Keck.

David L. Hill, Knoxville, for the Appellee, Torbett Auto Supply, Inc.



                                          OPINION

                                                INMAN, Senior Judge

      The plaintiff suffered an alleged whiplash injury on March 17, 1994 when

her vehicle was struck from behind by the vehicle operated by the defendant Keck,

who was on the business of his co-defendant. The jury returned a verdict for the

plaintiff1 for $9,340.00 and apportioned 15 percent of the fault to her, apparently

accepting the defendant Keck’s testimony that the brake lights on the plaintiff’s car

were inoperable.

      Her motion for a new trial was denied, and the plaintiff appeals. She

presents for review these issues, which are reproduced verbatim:

1.    The verdict of the jury is against the weight of the evidence as it is
      not supported by the evidence.

2.    The entire amount of medical bills, which were filed with the
      Complaint and furnished to the defendant more than 90 days before

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          Property damages were not involved.
        the trial, should have been presented to the jury for their
        consideration.

3.      The jury should not have been charged “a sudden stop without
        warning will constitute negligence if there is [sic] no emergency is
        shown to have justified it and is made in disregard of the presence of
        vehicles following so closely behind that the operator of this vehicle
        may be unable to stop to avoid a collision.”

4.      The jury should not have been charged “the operator of a car behind
        it is not on the other hand under a duty to be prepared for movements
        or changes which could not be reasonably anticipated.”

5.      The jury should not have been charged “that $2,500.00 was the
        maximum on medical bills.”

6.      The jury [verdict] [sic] is flawed in that it did not provide for
        permanent impairment even though that proof was unrebutted.

7.      The jury verdict as to lost wages is inadequate based on the
        uncontradicted proof presented in the case.

8.      The trial Court should have suggested an additur.

        In reviewing a judgment based on a jury verdict we are not at liberty to

weigh the evidence but are limited to a determination of whether there is material

evidence to support the verdict, which requires that we take the strongest

legitimate view of all the evidence in favor of the verdict, assume the truth of all

that tends to support it, allow all reasonable inferences to sustain it, and discard all

to the contrary. Pullins v. Fentress County Gen. Hospital, 594 S.W.2d 663 (Tenn.

1980).

        The plaintiff is a petite lady, 39 years old at the time of the accident. She

was referred by her family physician to Dr. J. Samuel Marcy, an orthopedic

specialist, for treatment of a cervical sprain. She was employed by a furniture

manufacturer, and was off from work for four months,2 undergoing therapy to

correct cervical stiffness and pain.

        2
            W-2 Forms for 1991 through 1994 were filed in evidence, which tended to prove that in 1994 the
plaintiff earned more than in 1993. She testified, when asked about her average weekly earnings, that she
earned “sometimes five hundred dollars a week,” based on production. No precise evidence as to lost wages
was presented, and the jury may have found her testimony misleading.

                                                      2
      Dr. Marcy testified that the plaintiff had no significant cervical spine muscle

spasm but did have significant tenderness on palpation, with a 15 - 20 percent

limitation of motion. He delayed the plaintiff from returning to work sooner than

she did owing to her petite size, because her job required that she pull 70 pounds

on occasion. Examination revealed no neurologic deficit. He rated her permanent

impairment at five percent and described her injury as minor.

      Dr. Marcy’s charges for treatment of the plaintiff were $330.00. His fee for

testifying by deposition was $650.00.

      The verdict was separated by the jury, which allowed $2,500.00 for medical

expenses, $3,840.00 for lost wages, and $3,000.00 for pain and suffering. The trial

judge declined a request for additur.

                             LOST WAGES ISSUE

      The plaintiff argues that she earned $500.00 per week and that she lost 17

weeks’ work. Hence, she says, the award of $3,480.00 is inadequate. She testified

that “sometimes” she earned $500.00 per week, and the documentation revealed

that during the year of the accident she earned more than during the prior year.

The issue of credibility was probably more pronounced than in the ordinary case,

and we cannot say that the jury’s award is not supported by material evidence.

                          MEDICAL EXPENSES ISSUE

      The plaintiff alleged that she incurred medical expenses with no itemization.

She filed illegible copies of certain expenses as a collective exhibit to her

complaint, but offered no further proof therein, or of the necessity or

reasonableness of such expenses, other than the testimony of Dr. Marcy concerning

his charges of $330.00.

      T.C.A. § 24-5-113(a)(1) provides that the itemization or exhibition of the

medical expenses shall be prima facie evidence that they were necessary and


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reasonable, but this presumption does not apply to expenses in excess of

$2,500.00.

      The trial judge instructed the jury that the maximum allowable expenses

were $2,500.00, apparently finding that section (b)(1) was inapplicable. This

section provides that in addition to the procedures described in section (a)(1), if an

itemization of or copies of the expenses are served 90 days prior to trial, a

rebuttable presumption that such expenses are reasonable is created.              No

itemization or copies were served, and the plaintiff made no request for

instructions regarding a presumption applicable to any amount in excess of

$2,500.00. In point of fact, the jury heard no evidence concerning medical

expenses other than the testimony of Dr. Marcy; the plaintiff testified that she

“incurred a lot of medical expenses and bills,” and was not further questioned

about this element of her damages. In a very real sense, the trial judge came to her

rescue when he instructed the jury that the award of medical expenses was limited

to $2,500.00.

                             THE INSTRUCTIONS

      The plaintiff complains that the jury should not have been instructed that “a

sudden stop without warning will constitute negligence if there is [sic] no

emergency is shown to have justified it and is made in disregard of the presence

of vehicles following so closely behind that the operator of this vehicle may be

unable to stop to avoid a collision,” and that “the operator of a car behind it is not

on the other hand under a duty to be prepared for movements or changes which

could not be reasonably anticipated.”

      The plaintiff argues that no evidence was presented that she created an

emergency, and thus there was no evidentiary basis for these instructions. We

cannot agree. The defendant testified that the plaintiff stopped suddenly, without


                                          4
warning, that the brake lights on her automobile were inoperable, and that he was

unable to stop in time. At any rate, it was within the peculiar province of the jury

to determine the truth of the matter from a preponderance of all the evidence, and

the fact that the jury allocated 15 percent of the fault to the plaintiff bespeaks their

consideration of the issue.

                THE ISSUE OF PERMANENT IMPAIRMENT

      The jury allowed no recovery for permanent impairment, and the appellant

argues that this omission militates against the verdict, since the testimony of Dr.

Marcy that she retained a five percent impairment was unrefuted.

      Dr. Marcy testified that the injury was a minor one; that it runs its course

with treatment and exercise and return to work. The jury had the benefit of

observing the plaintiff and evaluating her testimony against the depositional

testimony of Dr. Marcy, whose de minimis evaluation of impairment should be

considered in conjunction with all of the evidence. See, Clinchfield R.R. Co. v.

Forbes, 417 S.W.2d 210 (Tenn. 1966).

                              THE ADDITUR ISSUE

      This Court does not have the authority to grant an additur. T.C.A. § 20-10-

101. We review the action of the trial court in suggesting an additur pursuant to

Tennessee Rule of Appellate Procedure 13(d); T.C.A. § 20-10-101(b)(2). The

standard of review for this court is whether the amount awarded by the jury falls

below the range of reasonableness. Smith v. Shelton, 569 S.W.2d 421 (Tenn.

1978).

      We find that, in this case, the jury’s verdict was within the “range of

reasonableness,” and therefore, the trial court did not abuse its discretion in

declining to suggest additur.




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      The judgment of the trial court is affirmed in all respects, with costs assessed

to the appellant.


                                        _______________________________
                                        William H. Inman, Senior Judge


CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Don T. McMurray, Judge




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