                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                  AUGUST 15, 2005 Session

JOE W. KING, JR., ET AL. v. GENERAL MOTORS CORPORATION, ET AL.

                   Direct Appeal from the Circuit Court for Maury County
                            No. 9481    Stella L. Hargrove, Judge



                   No. M2004-00616-COA-R3-CV - Filed December 22, 2005


In this appeal, we are asked to determine whether (1) the jury based its awards of damages for lost
earning capacity and future medical expenses on speculation; (2) the trial court erred when it denied
the defendants’ motion in limine to exclude the testimony of the plaintiffs’ medical experts; and (3)
the trial court erred when it denied an award of prejudgment interest to the plaintiffs. The defendants
contend that there was no material evidence to support the jury’s awards of lost earning capacity and
future medical expenses and that the trial court should have granted their motion in limine because
the court was required to exclude the testimony of plaintiffs’ medical experts as a sanction for
plaintiffs’ failure to include those medical experts as experts in the plaintiffs’ responses to
interrogatories. With regards to prejudgment interest, the plaintiffs contend that the trial court erred
when it refused to award prejudgment interest because this type of award is applicable to some
awards from personal injury cases. We affirm in part, reverse in part, and remand for further
proceedings.

 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;
                            Reversed in Part and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Jonathan Cole, Nashville, TN, for Appellants

Philip L. Harris, Julie A. LaBunski, pro hac vice, Chicago, IL, for Appellants

Stephen C. Knight, Nashville, TN, for Appellees
                                              OPINION

                               I. FACTS & PROCEDURAL HISTORY

         On June 5, 2000, General Motors scheduled a test drive of six Saturn vehicles on the public
roads of Maury County, Tennessee. As the convoy of Saturn vehicles approached a curve in the
road, Mr. Joe W. King, Jr. (“King”) approached the same curve traveling in the opposite direction
in his automobile. Mr. Alfred Souilliere (“Souilliere”), one of the drivers of the Saturn vehicles, lost
control of the vehicle while entering into the curve in the road and crossed into the opposite lane of
traffic, striking King’s automobile. Following the accident, King was transported to the hospital and
treated for his injuries. As a result of the accident, King suffers from chronic pain syndrome caused
by a brachial plexus injury, myofascial pain, and associated axial skeletal pain in his neck and back.
King also suffers from post traumatic stress disorder.

        On April 10, 2001, King and his wife, Mrs. Joanne King (“Wife,” or collectively with King,
“Plaintiffs” or “Appellees”), filed suit in the Circuit Court of Maury County against Souilliere,
Saturn Corporation (“Saturn”), and General Motors Corporation (“GM,” or collectively with
Souilliere and Saturn, “Defendants” or “Appellants”), alleging that the actions of Souilliere, as agent
for Saturn and GM, amounted to negligence per se, gross negligence, and/or recklessness and that
Saturn and GM were liable on a theory of respondeat superior.

        At trial, on the issue of damages, both sides presented expert testimony regarding loss of
earning capacity. In addition, King presented expert deposition testimony of his doctors regarding
the extent of his injuries and associated medical expenses. Defendants filed a motion in limine to
exclude portions of the doctors’ depositions. After a hearing on the motion, the circuit court stated
that it was inclined to rule in favor of the Plaintiffs on this motion, however, the court reserved
judgment to rule deposition by deposition as the proof was presented. The circuit court subsequently
allowed the disputed deposition testimony to be presented as evidence to the jury.

        At the conclusion of the trial, the jury found for Plaintiffs. The circuit court entered a
judgment based on the jury’s verdict, awarding Appellees the following damages to King: (1)
$50,000 for past physical pain and suffering; (2) $50,000 for future pain and suffering; (3) $50,000
for past mental or emotional pain and suffering; (4) $50,000 for future mental or emotional pain and
suffering; (5) $50,000 for loss of earning capacity; (6) $50,000 for future loss of capacity for
enjoyment of life; (7) $75,171.72 for past medical care and services; (8) $225,000 for future medical
care and services; and (9) $1,000,000 for lost earning capacity. The judgment also included an
award to Wife for (1) $50,000 for loss of services and (2) $50,000 for loss of companionship, love,
and affection. The jury also found Plaintiffs were not entitled to punitive damages. Defendants
moved for judgment notwithstanding the verdict or, alternatively, for remittitur or new trial. The
trial court denied Defendants’ motion.




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                                      II. ISSUES PRESENTED

Appellants have timely filed a notice of appeal and present the following issues for review:

1.     Whether the circuit court erred when it admitted evidence of lost business profits as proof
       of lost earning capacity;
2.     If lost business profits are inadmissible, whether there was material evidence to support the
       jury’s finding of lost earning capacity;
3.     Whether the circuit court erred by denying Appellants’ motion in limine to limit the opinion
       testimony of Appellees’ treating physicians; and
4.     Whether the jury’s verdict regarding future medical expenses was based upon speculation.

Appellees have presented the following additional issue for review:

5.     Whether the circuit court erred when it denied prejudgment interest to Appellees.

For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

                                   III.   STANDARD OF REVIEW

        This Court shall uphold a verdict from jury trial in a civil action that is approved by a trial
court if there is any material evidence to support the verdict. Tenn. R. App. P. 13(d). “When
addressing whether there is material evidence to support a verdict, an appellate court shall: (1) take
the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all
evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4)
discard all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704
(Tenn. 2000) (citing Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978);
Black v. Quinn, 646 S.W.2d 437, 439-40 (Tenn. Ct. App. 1982)). “Appellate courts shall neither
reweigh the evidence nor decide where the preponderance of the evidence lies.” Id. “Having thus
examined the record, if there be any material evidence to support the verdict, it must be affirmed;
if it were otherwise, the parties would be deprived of their constitutional right to trial by jury.”
Crabtree Masonry Co., 575 S.W.2d at 5 (citing City of Chattanooga v. Rogers, 299 S.W.2d 660
(Tenn. 1956); D. M. Rose & Co. v. Snyder, 206 S.W.2d 897 (Tenn. 1947); City of Chattanooga v.
Ballew, 354 S.W.2d 806 (Tenn. Ct. App. 1961); Dynamic Motel Mgmt., Inc. v. Erwin, 528 S.W.2d
819 (Tenn. Ct. App. 1975)).

                                          IV. DISCUSSION

                            A.   Admissibility of Lost Business Profits

       On appeal, Appellants contend that the circuit court erred when it allowed evidence of lost
business profits to show future lost earning capacity.



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           Generally, lost business profits may not be admitted to demonstrate future lost earning
capacity in a personal injury action where the profits “depend for the most part upon the employment
of capital, the labor of others, or similar variable factors.” Dingus v. Cain, 406 S.W.2d 169, 170-71
(Tenn. Ct. App. 1966) (citations omitted). However, “where the injured person is the sole operator
. . . of the business, an injured person’s services rather than the capital invested or labor of others is
the predominate factor in producing the profits, evidence of diminution of profits could be received
as a proper measure of his earning capacity.” Id. at 171-72. “In cases of this character it must be
shown that the business was personally conducted by the injured person with the profits depending
entirely or substantially upon his individual labor and skill and are not derived from investment or
labor of others.” Id. at 172.

        In addition, the proof adduced at trial must show that the lost profits are “directly attributable
or a necessary consequence of [the injured person’s] injury.” Id. The proof must be “devoid of any
element of speculation and shows all proper means taken to minimize loss” before an injured person
may recover for future profits. Stewart v. Prechutko, No. 86-246-II, 1987 Tenn. App. LEXIS 3041,
at *3-4 (Tenn. Ct. App. Nov. 4, 1987) (citing Maple Manor Hotel, Inc. v. Metro. Gov’t of Nashville
and Davidson County, 543 S.W.2d 593 (Tenn. Ct. App. 1975)).

       From the evidence adduced at trial, the lost business profits admitted into evidence stemmed
from King’s excavation of limestone and not from his expenditure of capital or the labor of others.
King was a sole operator whose labor and skill almost entirely attributed to the profits of his
limestone business.1 According to Appellants, excavating limestone is “not rocket science.” The
excavation of limestone in this case, however, depended primarily upon King’s labor and skill.

       In order to recover for lost business profits as lost earning capacity, the proof of damages
must not be speculative. Stewart, 1987 Tenn. App. LEXIS 3041, at *3-4. Without a proven track
record of profit, the injured individual must show contracts for the sale of his or her goods or
services in order to recover for damages for lost business profits. See Burge Ice Machine Co. v.
Strother, 273 S.W.2d 479, 485-86 (Tenn. 1954); Gen. Constr. Contractors Ass’n, Inc. v. Greater
St. Thomas Baptist Church, 107 S.W.3d . 513, 525 (Tenn. Ct. App. 2002).

        While King’s limestone excavating business has been in existence for some time, the only
profits made in this venture occurred during the year 2000. Before King operated the business as
a sole operator, he employed labor to do so. During that time when he employed labor, King did not
make any profits. King has attributed this lack of profit on his use of labor. Even assuming that
running his business as a sole operator would be profitable, there is no evidence to support the
conclusion that he could maintain that profitability in the future. King had no contracts for the sale
of limestone. Additionally, King’s main customer bought from other sellers of limestone. Given



         1
           This Court does note that King had been in the limestone business for some time prior, and in that time, King
has employed the labor of others to excavate the limestone. However, at the time of the accident, K ing was solely
operating the excavating of his limestone.


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the track record of King’s business and the uncertainty of sales of limestone, any showing of lost
business profits would be speculative and not admissible to show lost earning capacity.2

                B.     Material Evidence to Support Finding of Lost Earning Capacity

        Appellants contend that, if lost business profits are not admissible to show lost earning
capacity, the proof adduced at trial did not constitute material evidence to support the jury’s finding
of lost earning capacity. Specifically, Appellants assert that the only evidence presented by
Appellees to prove lost earning capacity was the expert testimony of Mr. James J. Breuss (“Breuss”),
which should have been excluded at trial since it was based on speculation.

         “Admissibility, qualifications, relevancy and competency of expert testimony are questions
left to the trial judge and will not be disturbed unless there is a showing the decision is arbitrary or
an abuse of discretion.” Pointer v. Tenn. Equity Capital Corp., No. M1999-01934-COA-R3-CV,
2001 Tenn. App. LEXIS 918, at *26-27 (Tenn. Ct. App. Dec. 18, 2001) (citing McDaniel v. CSX
Transport, Inc., 955 S.W.2d 257, 263 (Tenn. 1997) (citing State v. Ballard, 855 S.W.2d 557, 562
(Tenn. 1993)); State v. Begley, 956 S.W.2d 471, 475 (Tenn. 1997); Tenn. ex rel. Dep’t of Transp.,
Bureau of Highways v. Brevard, 545 S.W.2d 431, 436-37 (Tenn. Ct. App. 1976)). “An expert’s
opinion cannot be based on speculation, but must be based on reliable data and relevant methods and
processes.” Id. at *28 (citing McDaniel, 955 S.W.2d at 265). “[W]hen calculating damages, expert
conclusions cannot be grounded in speculation or guessing.” Id. at *28-29 (citing Cecil Corley
Motor Co. v. Gen. Motors Corp., 380 F. Supp. 819, 854-55 (M.D. Tenn. 1974)).

       At trial, Appellees presented the testimony of Breuss who testified as to King’s lost earning
capacity, basing his testimony on the prior earnings of King’s limestone business from January 2000
until May 2000. Using that profit margin and after speaking to King and King’s two clients, Breuss
determined what the lost business profits would be for the limestone pit.

       As stated earlier, lost business profits may not be used in this case to show lost earning
capacity because of their speculative nature. Appellees have asserted that any error as to the
admittance of lost business profits was cured by Appellants’ use of the same information at trial.


         2
           Appellees assert that, because Appellants’ expert used similar evidence of lost business profits, any error in
admitting lost business profits was cured. However, as we elaborate later in this Opinion, there was no other credible
evidence to support the full extent of the jury’s award for lost earning capacity. Further, after a review of the record, it
affirmatively appears that this error affected the result of the trial. Thus, the alleged error was not harmless. See
Johnson v. McCord, 251 S.W .2d 144, 146 (Tenn. Ct. App. 1952) (citations omitted); see also Inter-City Trucking Co.
v. Mason Dixon Lines, Inc., 276 S.W .2d 488, 492 (Tenn. Ct. App. 1954) (finding that introducing similar incompetent
evidence along with other credible evidence to support the jury’s verdict rendered any error in originally admitting the
incompetent evidence harmless).
         In addition, Appellants have also asserted on appeal that the jury’s verdict as to lost earning capacity was in
error because it did not reduce the amount of lost business profits for King’s responsibility to mitigate damages.
However, because we find that King may not show lost business profits due to their speculative nature, this issue is
pretermitted.


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Thus, we conclude that the circuit court abused its discretion when it admitted the testimony of
Breuss because his testimony was based on that speculative evidence.

        Appellees have asserted that, in addition to Breuss’ testimony, Wife’s testimony as to the
future lost profits of King’s carpenter business was material evidence to support the jury’s verdict.
However, taking her testimony as true, King’s income as a carpenter was far less than the jury’s
award for lost earning capacity per year. Thus, this evidence cannot support the full extent of the
jury’s verdict. In such case, generally this Court would remit the verdict. See Thrailkill v.
Patterson, No. 92A01-9201-CV-00021, 1992 Tenn. App. LEXIS 999, at *15 (Tenn. Ct. App. Dec.
17, 1992) (quoting Pitts v. Exxon Corp., 596 S.W.2d 830, 833-34 (Tenn. 1980)). However, doing
so in this case would substantially reduce the verdict, thus destroying it. See Guess v. Maury, 726
S.W.2d 906, 913 (Tenn. App. 1986). Accordingly, we reverse for a new trial to determine damages
for lost earning capacity. See id. at 913 (finding that a grant of a new trial is appropriate where a
substantial reduction in the jury’s verdict would destroy it).

                C.    Appellants’ Motion in Limine to Exclude Expert Testimony

        Next, Appellants contend that the circuit court erred when it denied their motion in limine
to exclude any deposition testimony by King’s doctors or, in the alternative, any testimony by King’s
doctors that was not related to the care and treatment the doctor provided to King because the doctors
were not named as experts in Appellees’ answers to Appellants’ interrogatories asking for the names
and opinions of experts expected to be used at trial.

        The Tennessee Rules of Civil Procedure do not specify a sanction that may be imposed on
a party who fails to identify expert witnesses in his or her answers to interrogatories. See Buckner
v. Hassell, 44 S.W.3d 78, 83 (Tenn. Ct. App. 2000). However, our supreme court has found that
“the inherent power of trial judges permits the trial judge to take appropriate corrective action against
a party for discovery abuse.” Lyle v. Exxon Co., 746 S.W.2d 694, 699 (Tenn. 1988) (citing
Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn. Ct. App. 1981)). When a trial court determines
the sanction to be imposed, it “should consider the explanation given for the failure to name the
witness, the importance of the testimony of the witness, the need for time to prepare to meet the
testimony, and the possibility of a continuance.” Strickland, 618 S.W.2d at 501.

        We review a trial court’s sanction for abuse of discovery process under an abuse of discretion
standard. Lyle, 746 S.W.2d at 699 (citing Brooks v. United Uniform Co., 682 S.W.2d 913 (Tenn.
1984)). Thus, “[t]he question before this Court is . . . whether ‘the trial court has misconstrued or
misapplied the controlling legal principles or has acted inconsistently with the substantial weight of
evidence.’” Buckner, 44 S.W.3d at 83 (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 223
(Tenn. Ct. App. 1999)). This Court “should permit a discretionary decision to stand if reasonable
judicial minds can differ concerning its soundness.” White, 21 S.W.3d at 223 (citing Overstreet v.
Shoney’s Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)).




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        After reviewing the evidence, we cannot say that the circuit court abused its discretion when
it allowed the deposition expert testimony of King’s treating physicians at trial. In their response
to Appellants’ motion in limine, Appellees set forth numerous reasons why they failed to name their
expert witnesses. Additionally, these experts were crucial to Appellees’ case to show what injuries
King suffered and the damages associated with those injuries. Further, Appellants could not
demonstrate that they were prejudiced or surprised by the non-disclosure. The circuit court found
that Appellees had substantially complied with the discovery process. Under these facts, reasonable
judicial minds could differ as to the soundness of the circuit court’s decision not to sanction
Appellees. Accordingly, we affirm the decision of the trial court as to this issue.

                                  D.    Future Medical Expenses

        Finally, Appellants contend that the jury’s verdict regarding future medical expenses should
be set aside because there was no material evidence to support the verdict. Specifically, Appellants
contend that the jury based its verdict on speculation.

         In a personal injury case, damage awards for prospective medical expenses may be awarded
when the effects of the injury will require the injured person additional medical treatment. Henley
v. Amacher, No. M1999-02799-COA-R3-CV, 2002 Tenn. App. LEXIS 72, at *45 (Tenn. Ct. App.
Jan. 28, 2002) (citing Reed v. Wimmer, 465 S.E.2d 199, 210 (W. Va. 1995)). However, damages for
future medical expenses may not be awarded when the damages are based on speculation or
conjecture. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999) (citing Western
Sizzlin, Inc. v. Harris, 741 S.W.2d 334, 335-36 (Tenn. Ct. App. 1987); Nashland Assocs. v. Shumate,
730 S.W.2d 332, 334 (Tenn. Ct. App. 1987)). “To remove awards for future medical expenses from
the realm of speculation, persons seeking future medical expenses must present evidence (1) that
additional medical treatment is reasonably certain to be required in the future and (2) that will enable
the trier-or-fact [sic] to reasonably estimate the cost of the expected treatment.” Henley, 2002 Tenn.
App. LEXIS 72, at * 45 (citing Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 793 (Minn. Ct. App.
2001)).

         Thus, Appellees must prove that King will, more probably than not, need medical services
for his injuries incurred from the accident in the future. Further, “the trier-of-fact must have some
factual basis for reasonably estimating the cost of the future medical expenses.” Id. at *48 (citations
omitted). Appellees need not present precise evidence regarding the costs. Id. at *49 (citing
Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Super. Ct. 1997); Jordan v. Bero, 210 S.E.2d
618, 637 (W. Va. 1974)). Rather, “[i]f there is evidence in the record which, together with
reasonable inferences to be drawn from that evidence, provides the jury with a basis to make a fair
and reasonable estimate as to the amount of damage, that is sufficient.” Palmer v. Norfolk-Southern
Ry. Co., No. 03A01-9309-CV-00313, 1994 Tenn. App. LEXIS 162, at *9 (Tenn. Ct. App. Mar. 30,
1994) (citing Lee Shops, Inc. v. Schatten-Cypress Co., 350 F.2d 12, 18 (6th Cir. 1965); Coverdell
v. Mid-South Farm Equip. Ass’n, 335 F.2d 9, 14 (6th Cir. 1964)).




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         At trial, Appellees presented the deposition testimony of Benjamin W. Johnson, Jr., M.D.,
Rodney A. Poling, M.D., and Jimmy V. Wolfe, M.D. In each of their testimonies, each doctor
stated to a reasonable degree of medical certainty that King would require medical treatment for the
rest of his life because of the injuries he incurred from the accident. Further, each doctor stated that
the previous year’s medical expenses would be a reasonable estimate of the costs King would incur
per year as a result of the accident. In addition, Appellees presented all of King’s medical bills
incurred as a result of the accident. The parties have also stipulated as to the amount of medication
expense King will incur per year in addition to his medical treatment expenses. Taking this evidence
as true and as a whole, we cannot say that this evidence can support the full extent of the jury’s
award for future medical expenses. Generally, the proper remedy would be for this Court to remit
the verdict. See Thrailkill v. Patterson, No. 92A01-9201-CV-00021, 1992 Tenn. App. LEXIS 999,
at *15 (Tenn. Ct. App. Dec. 17, 1992) (quoting Pitts v. Exxon Corp., 596 S.W.2d 830, 833-34 (Tenn.
1980)). However, doing so would substantially reduce the verdict, which would destroy the jury’s
verdict. See Guess v. Maury, 726 S.W.2d 906, 913 (Tenn. App. 1986). Accordingly, we reverse
for a new trial to determine damages for future medical expenses. See id. at 913 (finding that a grant
of a new trial is appropriate where a substantial reduction in the jury’s verdict would destroy it).

                                     E.    Prejudgment Interest

        Appellees have asserted on appeal that the circuit court erred when it denied Appellees’
request for an award of prejudgment interest. While Tennessee law permits the award of
prejudgment interest in certain instances, see Tenn. Code Ann. § 47-4-123 (2005), an award of
prejudgment interest in a personal injury action by negligence is not allowed, McKinley v. Simha,
No. W2001-02647-COA-R3-CV, 2002 Tenn. App. LEXIS 941, at *63-65 (Tenn. Ct. App. Dec. 31,
2002) (no perm. app. filed) (citing Louisville & N.R. Co. v. Wallace, 17 S.W. 882, 882-83 (Tenn.
1891)); see also Hollis v. Doerflinger, 137 S.W.3d 625, 630 (Tenn. Ct. App. 2003). Accordingly,
we affirm the decision of the circuit court as to this issue.

                                          V. CONCLUSION

       For the foregoing reasons, we affirm in part and reverse in part the decision of the circuit
court. We remand for further proceedings. Costs of this appeal are taxed one-half to Appellants,
Alfred Souilliere, General Motors Corporation, Saturn Corporation, and their surety and one-half to
Appellees, Joe W. King, Jr. and Joanne King, for which execution may issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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