Cynthia Phillips v. Francis Perot

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON

CYNTHIA A. PHILLIPS, PAUL )
PHILLIPS, JUDY WEBB, and )
GLENN WEBB, )
)
Plaintiffs/Appellees, ) Dyer Circuit No. 93-137 & 93-144
)
VS. ) Appeal No. 02A01-9704-CV-00094
)
FRANCIS PEROT, )

Defendant/Appellant,
)
)
)
FILED
and ) March 17, 1998
)
KELLY L. PHILLIPS, by and through ) Cecil Crowson, Jr.
her legal guardian and parent, ) Appellate C ourt Clerk
TERESA THURMAN, and TERESA )
THURMAN, Individually, )
)
Plaintiffs/Appellees, )
)
vs. )
)
FRANCIS CERIAC PEROT, )
)
Defendant/Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DYER COUNTY
AT DYERSBURG, TENNESSEE
THE HONORABLE J. STEVEN STAFFORD, JUDGE

WESLEY A. CLAYTON
DONALD D. GLENN
WALDROP & HALL, P.A.
Jackson, Tennessee
Attorneys for Appellant

JOHN W. PALMER
Dyersburg, Tennessee
Attorney for Appellees Cynthia A. Phillips and Judy Webb

JOHN VAUGHN
Tiptonville, Tennessee
Attorney for Appellee Kelly L. Phillips

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

ROBERT A. LANIER, Sp. J.
 Defendant Francis Perot appeals the trial court’s final judgment which denied the

motions for new trial filed by Plaintiffs/Appellees but which suggested an additur to each

of the verdicts rendered by the jury in favor of the Plaintiffs. We conclude that the

evidence does not preponderate against the trial court’s additurs and, thus, we affirm the

trial court’s judgment.

Plaintiffs/Appellees Cynthia A. Phillips, Judy Webb, and Kelly L. Phillips, a minor, 1

filed this action to recover damages for injuries they received in a May 16, 1992,

automobile accident in Dyersburg. Cynthia Phillips was driving a car in which her mother,

Judy Webb, and her six-year-old stepdaughter, Kelly Phillips, were passengers when

Phillips’ car was struck from behind by an automobile driven by Defendant Perot. Prior to

trial, Perot amended his answer to admit liability for the accident. Accordingly, the only

issues for the jury’s consideration involved the amount of damages, if any, to be awarded

each Plaintiff. Although he admitted liability, Perot contended at trial that the Plaintiffs were

entitled to no recovery because they suffered no injuries as a result of the accident.

At trial, much of the expert medical testimony regarding the Plaintiffs’ injuries was

presented by deposition per the parties’ stipulation. Dr. Hugh Glenn Barnett, a neurological

surgeon, testified that he operated on Cynthia Phillips’ neck to remove a disk

approximately two months prior to the accident. Dr. Barnett examined Phillips after the

accident and determined that she had sustained soft tissue injuries at the cervical spine.

Dr. Barnett opined that the soft tissue injuries aggravated Phillips’ preexisting neck

condition and caused her to suffer pain. Although Dr. Barnett testified that the accident did

not cause any permanent impairment, he believed that the accident caused a setback in

Phillips’ recovery from neck surgery. Dr. Barnett’s testimony concerning Phillips’ injuries

was corroborated by Dr. Carl Wayne Huff, an orthopedic surgeon who also treated Cynthia

Phillips after the accident.

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Kelly Phillips filed a separate complaint by and through her legal guardian and parent, Teresa
Thurm an. The actions w ere later co nsolidate d.

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 Dr. Barnett also treated Judy Webb in the months following the accident. Webb

complained of neck and back pain as a result of the accident, and Dr. Barnett diagnosed

her as having “cervical strain with spasm.” Dr. Barnett opined that Webb’s injury was the

result of the accident. He also opined that, although Webb continued to complain of neck

and back pain in the months following the accident, she eventually would recover from the

injury. Again, Dr. Huff generally corroborated Dr. Barnett’s testimony, although he was not

as convinced that Webb would fully recover from the injury. Despite the existence of a

physical therapist’s report which suggested that Webb may have been exaggerating her

symptoms, Dr. Huff genuinely believed that Webb “was not malingering.” Dr. Huff’s own

examination had revealed some tightening of the muscles in the affected area which, Dr.

Huff testified, would be consistent with the presence of pain.

Kelly Phillips was treated by Dr. Lynn A. Warner, a surgeon. Dr. Warner’s

diagnoses for Kelly included (1) acute cervical strain, (2) acute strain of right shoulder, and

(3) A-C separation. Kelly’s injuries required her to wear a sling during the summer of 1992

and to receive therapy on her injured shoulder. Kelly complained of pain caused by the

shoulder injury, particularly when she was receiving therapy. This injury also prevented

Kelly from engaging in her normal summer activities, such as riding a bicycle.

At the trial’s conclusion, the jury returned verdicts awarding Cynthia Phillips the sum

of $679.25, Judy Webb the sum of $525.55, and Kelly Phillips the sum of $2,500.2 The

Plaintiffs then filed motions for new trial, which the trial court denied. The trial court,

however, suggested additurs whereby he increased Cynthia Phillips’ judgment to $3,750,

Judy Webb’s judgment to $2,250, and Kelly Phillips’ judgment to $4,000. Perot accepted

the additurs under protest and filed this appeal.

In Tennessee, the law is now well-settled that a trial court may suggest an additur

when the jury verdict is within the range of reasonableness of the credible proof but the

court is of the opinion that the verdict is inadequate. Coffey v. Fayette Tubular Prods., 929

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The jury als o ren dere d ver dicts as to othe r plain tiffs pursuing deriva tive claim s in this laws uit;
howev er, these verdicts a re not at iss ue in this ap peal.

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S.W.2d 326, 330 (Tenn. 1996). The inherent power of the trial court to suggest an additur

as an alternative to a new trial is recognized by Tennessee’s additur statute,3 which

provides that:

In cases where, in the opinion of the trial judge a jury
verdict is not adequate to compensate the plaintiff or plaintiffs
in compensatory damages or punitive damages, the trial judge
may suggest an additur in such amount or amounts as the trial
judge deems proper to the compensatory or punitive damages
awarded by the jury, or both such classes of damages.

T.C.A. § 20-10-101(a)(1) (1994).

The additur statute also sets forth the standard to be applied by this court in

reviewing the trial court’s suggestion of additur:

The court of appeals shall review the action of the trial
court suggesting an additur using the standard of review
provided for in Rule 13(d) of the Tennessee Rules of Appellate
Procedure applicable to decisions of the trial court sitting
without a jury. . . .

T.C.A. § 20-10-101(b)(2) (1994). Under this standard, our review is de novo upon the

record, accompanied by a presumption that the trial court’s action is correct unless the

evidence preponderates otherwise. Lynch v. Turner, No. 01A01-9109-CV-00325, 1992 WL

23122, at *1 (Tenn. App. Feb. 12, 1992); T.R.A.P. 13(d).

Specifically, the foregoing standard requires us to review the proof of damages to

determine whether the evidence preponderates against the trial court’s suggestion of

additur. Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn. App. 1990). Moreover, in

conducting its review, this court customarily considers two other factors: (1) the trial court’s

reasons for the additur, and (2) the relation between the amount of the additur and the

amount of the jury’s verdict. Lynch v. Turner, 1992 WL 23122, at *1; accord Lebovitz v.

Bearden, 1993 WL 471479, at *2 (Tenn. App. Nov. 16, 1993). We examine the reasons

for the trial court’s additur because “adjustments are proper only when the court disagrees

with the amount of the verdict.” Long v. Mattingly, 797 S.W.2d at 896. We examine the

amount of the suggested additur because “adjustments that ‘totally destroy’ the jury’s

verdict are impermissible.” Id.

3
See Thrailkill v. Patterson, 879 S.W .2d 836, 840 (Tenn. 1994 ).

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 After reviewing the proof of damages in this case, as well as the other factors cited,

we conclude that the trial court’s suggestion of additur was proper. Although the trial court

did not articulate its reasons for suggesting the additurs, the record indicates that the court

may have suggested the additurs to compensate the Plaintiffs for pain and suffering or to

compensate them for medical expenses which were not included in the jury’s verdicts.

Cynthia Phillips and Judy Webb claimed $8,936.46 and $3,232.55, respectively, in medical

expenses; however, the amounts of the verdicts rendered by the jury ($679.25 and

$525.55) approximated only the expenses which the Plaintiffs incurred for emergency

medical treatment on the day of the accident. The jury’s $2,500 verdict in favor of Kelly

Phillips was sufficient to compensate her for her medical expenses, which totaled

$1,767.33; however, the verdict awarded her less than $800 for any pain and suffering

caused by her injuries. Under these circumstances, the trial court could have concluded

that the jury’s verdicts did not adequately compensate the Plaintiffs for their pain and

suffering and/or for their medical expenses. See, e.g., Lynch v. Turner, 1992 WL 23122,

at *2; Ledford v. French, No. 02A01-9106-CH-00102, 1992 WL 1144, at *2 (Tenn. App.

Jan. 7, 1992).

We further conclude that the additurs were supported by the preponderance of the

evidence. At trial, Perot sought to establish that Cynthia Phillips and Judy Webb were not

injured as a result of the accident. The undisputed medical testimony, however,

demonstrated that both Plaintiffs sustained some degree of injury as a result of the

accident and that they suffered the effects of their injuries for several months following the

accident. It is true that the evidence suggested that the Plaintiffs may have been

exaggerating their symptoms, or that some of their symptoms may have been caused by

preexisting conditions. Nevertheless, the treating physicians for both women provided

testimony which established that at least some of their pain symptoms related to injuries

caused by the accident. As for Kelly Phillips, it was undisputed that she suffered a

shoulder injury in the accident, that she was required to wear a sling during the summer

of 1992 which greatly restricted her normal activities, and that she experienced pain as a

result of the injury, particularly when she was required to undergo therapy.

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 Finally, we conclude that the suggested additurs do not totally destroy the jury’s

verdicts. In Ledford v. French, No. 02A01-9106-CH-00102, 1992 WL 1144 (Tenn. App.

Jan. 7, 1992), for example, the trial court suggested an additur which effectively increased

the judgment from $1,240 to $6,240. This court affirmed, holding that there was sufficient

evidence of pain and suffering in the record to support the additur. Id. at *2. Although the

resulting judgment was approximately five times larger than the jury’s verdict, we

concluded that the amount of the additur did not destroy the integrity of the jury’s verdict.

Id. Similarly, in Lynch v. Turner, No. 01A01-9109-CV-00325, 1992 WL 23122 (Tenn. App.

Feb. 12, 1992), the trial court suggested an additur which increased the judgment from

$5,000 to $20,000. This court affirmed, noting that there was evidence that the plaintiff

had suffered serious injuries for which the jury’s verdict did not compensate her. Id. at *2.

Although the resulting judgment was four times larger than the jury’s verdict, we again

concluded that the amount of the additur did not destroy the verdict’s integrity. Id.

In the present case, the trial court’s additurs resulted in judgments which were

roughly one and one-half to five and one-half times greater than the jury’s verdicts.

Inasmuch as the evidence does not preponderate against these amounts, we cannot say

that the trial court’s suggested additurs bear so little relation to the jury’s verdicts that they

totally destroy the verdicts. Cf. Foster v. Amcon Int’l, Inc., 621 S.W.2d 142, 148 (Tenn.

1981) (holding that suggested additur of thirty times that of jury’s verdict totally destroyed

verdict); Lebovitz v. Bearden, 1993 W L 471479, at *4 (Tenn. App. Nov. 16, 1993) (holding

that suggested additur which increased jury’s verdict more than twenty times bore no

relation to jury’s award and, thus, totally destroyed verdict).

The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Perot, for which execution may issue if necessary.

HIGHERS, J.

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CONCUR:

CRAWFORD, P.J., W.S.

LANIER, Sp. J.

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