                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     March 23, 2004 Session

              MELANIE SUE GIBSON v. ERNESTINE W. FRANCIS

                        Appeal from the Circuit Court for Sevier County
                          No. 99-905-II    Richard R. Vance, Judge



                    No. E2003-02226-COA-R3-CV - FILED JUNE 30, 2004


This tort action arises out of a two-vehicle accident. At trial, the defendant Ernestine W. Francis
admitted liability. The jury returned a verdict in favor of the plaintiff Melanie Sue Gibson for
property damage in the amount of $6,900; however, the jury declined to award her any damages on
her claim for personal injuries. On appeal, the plaintiff argues that the trial court did not properly
perform its role as thirteenth juror; that the verdict is contrary to the weight of the evidence; and that
the trial court erred when it re-instructed the jury in response to a question from that body. We
affirm.

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

CHARLES D. SUSANO , JR., J, delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and WILLIAM H. INMAN , SR. J., joined.

H. Douglas Nichol and Harold C. Wimberly, Knoxville, Tennessee, for the appellant, Melanie Sue
Gibson.

John T. Johnson, Jr. and Deborah E. Johnson, Knoxville, Tennessee, for the appellee, Ernestine W.
Francis.


                                               OPINION

                                                    I.

         On October 7, 1999, the plaintiff filed a complaint for damages resulting from the subject
automobile accident. As noted above, the defendant admitted liability, and the case proceeded to
trial solely on the issue of the damages to which the plaintiff was entitled. The primary focus of the
plaintiff’s claim for personal injuries was with respect to pain in her low and mid back.
        At trial, the plaintiff testified on her own behalf. She also presented the testimony of the
following persons: her treating physician, her physical therapist, a vocational rehabilitation expert,
and a personal friend. The defendant rested at the conclusion of the plaintiff’s proof without putting
on any proof. After the jury was charged, it retired to deliberate. It later returned into open court
with the following written question: “Does the law require or state with any specificity with respect
to medical evidence in personal injury cases, i.e., does the burden of proof require medical evidence,
or can injury be found on the basis of subjective evidence only?” In response, the trial court re-
instructed the jury on the plaintiff’s burden of proving each element of her claim by a preponderance
of the evidence.

       As previously noted, the jury returned a $6,900 verdict for the damage to the plaintiff’s
automobile, but declined to award her any damages on her claim for personal injuries. The trial court
approved the jury verdict. The plaintiff appeals, raising the following two issues which we quote
from her brief:

               1. Whether the trial [court] erred in [its] role as thirteenth juror by
               determining that the jury’s verdict was not contrary to the weight of
               the evidence.

               2. Whether the trial court erred in recharging the jury only on the
               preponderance of the evidence charge and failed to either completely
               recharge the jury or to answer specifically that subjective medical
               evidence was sufficient to satisfy the Plaintiff’s burden of proof.

                                                   II.

         Our standard of review of a jury verdict is well-settled. The Supreme Court has addressed
it as follows:

               Rule 13(d) of the Tennessee Rules of Appellate Procedure provides
               that “[f]indings of fact by a jury in civil actions shall be set aside only
               if there is no material evidence to support the verdict.” As this Court
               stated in the recent case of Hodges v. S.C. Toof & Co., “It is well
               established that when reviewing a judgment based on a jury verdict,
               appellate courts are limited to determining whether there is material
               evidence to support the verdict.” 833 S.W.2d at 898.

                       It is the time honored rule in this State that in
                       reviewing a judgment based upon a jury verdict the
                       appellate courts are not at liberty to weigh the
                       evidence or to decide where the preponderance lies,
                       but are limited to determining whether there is
                       material evidence to support the verdict; and in


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                       determining whether there is material evidence to
                       support the verdict, the appellate court is required to
                       take the strongest legitimate view of all the evidence
                       in favor of the verdict, to assume the truth of all that
                       tends to support it, allowing all reasonable inferences
                       to sustain the verdict, and to discard all to the
                       contrary. 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.

Forrester v. Stockstill, 869 S.W.2d 328, 329-330 (Tenn. 1994) (quoting Crabtree Masonry Co. v.
C. & R. Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)).

         In performing its role as the thirteenth juror, a trial court must weigh the evidence to
determine if the court is independently satisfied with the jury’s verdict. Ridings v. Norfolk Southern
Ry. Co., 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). Where the trial court simply approves the
jury’s verdict without further comment, we presume the court adequately performed its function as
thirteenth juror. Id. at 289; see also Davidson v. Lindsey, 104 S.W.3d 483, 488 (Tenn. 2003). When
a trial court approves a jury verdict, the issue for the appellate court becomes that as stated in the
Forrester and Crabtree cases.

                                                 III.

        Applying our standard of review as noted above, we find no merit in the plaintiff’s contention
that the trial court improperly performed its duty to independently weigh the evidence as thirteenth
juror. The trial court’s sole comment in this regard was as follows: “[i]n accordance with the verdict
of this jury, I’ll approve that verdict and enter judgment in behalf of the Plaintiff against the
Defendant in the amount of $6,900, together with the costs of the cause.” Accordingly, we presume
that the trial court properly discharged its duty as thirteenth juror. See Ridings, 894 S.W.2d at 289.
This is a complete answer to this particular issue.

        Although the plaintiff recognizes and cites the material evidence standard, the substance of
her argument is encapsulated in the following quote from her brief: “the material evidence in this
case clearly preponderates against a zero verdict for bodily injury.” We must decline the plaintiff’s
invitation to re-weigh the evidence. Instead, we must review the record to determine if there is any
material evidence to support the jury’s verdict.

         The plaintiff alleged and complained of pain in her low and mid back. Her subjective
complaints were at the crux of her allegation that she sustained personal injuries in the accident. At
trial, the plaintiff introduced the deposition testimony of her treating physician, Dr. Christopher
Sawyer. After the accident, the plaintiff did not go to the emergency room but visited Dr. Sawyer
later that day. Dr. Sawyer testified that his diagnosis subsequent to the accident was a “mild thoracic


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back strain.” Dr. Sawyer testified as follows on cross-examination regarding his diagnosis and his
decision to refer the plaintiff to an orthopedic doctor:

               Q: A strain, is that –

               A: Well, before we get into semantics here, she was having back pain.
               A lot of people, using the term sprain and strain and all that kind of
               stuff is kind of nonspecific anymore. She was having back pain.

               Q: Okay.

               A: We call it back pain.

               Q: Can you sprain your neck and back like you do an ankle?

               A: Sure. But it’s not all that simple either. There can be multiple
               causes of back–at that period of time, that’s kind of a generic term is
               what I’m getting at.

               Q: You used – I mean basically speaking, she had back pain?

               A: Yes, that’s correct.

               Q: So far as now, has any physician ordered an MRI?

               A: Not that I’m aware of. But, again, that’s why I sent her to an
               orthopedist to get an opinion. She had seen somebody that knew her
               back, that had X-rays on her back up to that point in time, and that
               would be – that would be their call.

               Q: And you sent her to Knoxville Orthopedic Clinic because you
               valued their judgment?

               A: Absolutely.

                                             *   *     *

               Q: And did you receive Dr. Johnson’s report?

               A: Yes, I did.

                                             *   *     *



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Q: The physical examination, is that the section of the report where
the doctor talks about the actual physical examination and his
findings upon the exam?

A: Yes.

Q: And in the physical examination of Ms. Gibson did he note that
she did not appear to be in any distress when he examined her?

A: That’s correct.

Q: Did he note that she moved on and off the exam table with ease?

A: Sure.

Q: Of course, he noted that she had scoliosis, correct?

A: Uh-huh.

Q: That was before the accident. Did he say that she had normal
coronal and sagittal plane balance? And then my next question is
going to be what does that mean.

A: That means that in this plane and this plane (indicating) she had
normal balance. That’s an anterior and posterior and from side-to-
side.

Q: Did Dr. Johnson note that Ms. Gibson could flex and extend
normally without pain?

A: That’s what his note says.

Q: Did he indicate that he could not detect any dysrhythmia?

A: That’s what it says.

Q: Did he say that she had no tenderness to palpation or percussion
of her lumbar spine?

A: That’s correct.

Q: That’s her low back, right?



                                 -5-
               A: That’s her back.

               Q: He said she was not even tender to touching and feeling, correct?

               A: Correct.

                                               *   *     *

               Q: And from what you see in reading Dr. Johnson’s report in here, do
               you see where Dr. Johnson found anything objectively abnormal,
               other than the scoliosis?

               A: No. But at the same time, and I understand your point on all this,
               his impression still was persistent intermittent low back pain,
               intermittent being the key word there. It may not have hurt that very
               second she was in the office and she didn’t have tender places to
               palpate. At the same time, she was having intermittent low back pain,
               yes.

               Q: Based on what she told him?

               A: That’s correct.

               Q: Now, he did have her do or it appears that he had her do a, you
               know, bending type maneuver to see if she had full range of motion,
               correct?

               A: Correct.

               Q: And she had a full range of motion?

               A: At that time.

        As can be seen, the plaintiff’s claim that she suffered personal injuries in the accident was
founded on her subjective complaints of pain in her back. The expert testimony in the case with
respect to her personal injury claim was based upon her complaints. It was her obligation to prove
by a preponderance of the evidence that she suffered personal injuries in the accident. While the
defendant did not put on any proof, her counsel did vigorously dispute, by way of cross examination
of the plaintiff and her witnesses, that the plaintiff had suffered any personal injuries as a proximate
result of the accident. It was the theory of the defendant that the plaintiff was not injured in the
accident and that her complaints, if true, were related to a prior automobile accident some eight
months before the subject accident or a subsequent accident in February, 2000.



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        It was the duty and prerogative of the jury to assess the credibility of the witnesses, and the
jury was at liberty to either believe or disbelieve the plaintiff’s subjective complaints. The jury
apparently chose not to believe the plaintiff’s testimony regarding her pain, its origin, and/or its
effect on her. If the jury disbelieved the plaintiff – and apparently it did – then the plaintiff failed
to establish her personal injury claim by a preponderance of the evidence. As a consequence of this,
there is material evidence to support the jury’s verdict.

                                                  IV.

        After the trial court had charged the jury and after that body retired to deliberate, the jury
submitted the following written question to the trial court: “Does the law require or state with any
specificity with respect to medical evidence in personal injury cases, i.e., does the burden of proof
require medical evidence, or can injury be found on the basis of subjective evidence only?” The trial
court called the jury back to the courtroom and, after a brief discussion with the jury foreperson, re-
instructed the jury regarding the plaintiff’s burden of proof and the definition of “preponderance of
the evidence.” On appeal, the plaintiff asserts that the trial court erred by not repeating the entire
charge to the jury and in failing to instruct the jury specifically that subjective evidence was
sufficient to satisfy the plaintiff’s burden of proof.

       This court has stated the following regarding appellate review of jury instructions:

               We review the jury charge in its entirety to determine whether the
               trial judge committed reversible error. Otis v. Cambridge Mut. Fire
               Ins. Co., 850 S.W.2d 439, 446 (Tenn.1992); In re Estate of Elam,
               738 S.W.2d 169, 174 (Tenn.1987); and Grissom v. Metropolitan
               Gov’t of Nashville, 817 S.W.2d 679, 685 (Tenn.App.1991). Jury
               instructions are not measured against the standard of perfection.
               Grissom, 817 S.W.2d at 685. The charge will not be invalidated if it
               “fairly defines the legal issues involved in the case and does not
               mislead the jury.” Otis, 850 S.W.2d at 446; Grissom, 817 S.W.2d at
               685. Furthermore, a particular instruction must be considered in the
               context of the entire charge. Elam, 738 S.W.2d at 174.


City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App.1996). A trial
court is permitted to give a limited re-instruction to a jury in response to a question from the jury
after it has retired. Elcan v. Augustine, C/A No. W1999-01621-COA-R3-CV, 2001 WL 13234, at
*6 (Tenn. Ct. App. W.S., filed Jan. 4, 2001); see also Miller v. Baptist Hospital, Inc., 1987 WL
7967 at *3 (Tenn. Ct. App. M.S., filed March 18, 1987); Presley v. Amburn, 461 S.W.2d 956, 958
(Tenn. Ct. App. 1970).


       The Supreme Court has stated the following regarding jury re-instruction:


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                Of course, the only proper response by a trial judge to a question from
                the jury or an individual juror is to recall the jury, counsel, and parties
                into open court, hear the question, reinstruct the jury on the portion
                of the charge that responds to the question, if necessary, and make
                clear that the repeated instruction should not be considered as
                emphasis of that portion of the charge.


Spencer v. A-1 Crane Service, Inc. 880 S.W.2d 938, 941 (Tenn. 1994). We note that this is the
exact procedure followed by the trial court in the instant case. After re-instructing the jury, the trial
court inquired: “Now, for the question that you’ve asked, does that cover it for everyone? Do I need
to go further?” The jury foreperson responded by saying twice, “that clears it up.” The trial court
noted that the other jury members nodded their heads in the affirmative.


        In the course of re-instructing the jury, the trial court stated, on three separate occasions, a
variation of this admonishment to the jury: “just because I’m not repeating the whole charge doesn’t
mean that this is any more important than any other charge.” We find no abuse of discretion on the
part of the trial court in its response to the jury’s question.


                                                    V.


        The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial
court’s judgment and for collection of costs assessed below, all pursuant to applicable law. Costs
of appeal are taxed to the appellant, Melanie Sue Gibson.



                                                                 _________________________
                                                                 Charles D. Susano, Jr., Judge




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