Jury Verdict Reversed; Personal Injury Claim Reinstated
For personal injury claims, exacerbation of previous injuries are fraught with peril. This recent Tennessee Court of Appeals case offers a bit of hope…
On October 14, 2011, Plaintiff Steven Kempson was traveling in his Toyota Tundra on I-24 in Chattanooga when he was rear ended by a Chevrolet van driven by Pamela Casey. Kempson and his wife filed suit against Casey. Casey admitted to the collision, but contended that the accident did not cause Mr. Kempson’s injuries.
Mr. Kempson testified that he thought Ms. Casey was going about 50 miles per hour when her van struck his truck, that he was pushed forward five or six car lengths, and that Ms. Casey was bleeding from her knee following the accident. Ms. Casey testified, in contrast, that she was going only 10-15 miles per hour at the time of the collision, that the impact was “minor,” that her airbag did not deploy, and that she was wearing long pants and was not bleeding after the accident.
The main point of contention, however, concerned the extent of Mr. Kempson’s injuries. He had been treated for back and neck injuries since 1998. Mr. Kempson’s health care providers testified that his post-accident complaints were similar to those that pre-dated the collision. His surgeon, Dr. Scott Hodges, opined that the accident at issue caused Mr. Kempson’s medical condition to worsen to the point that surgery was necessary.
The case was tried to a jury, which found in favor of the defendant and awarded no damages to the Kempsons. In its role as thirteenth juror, the trial court denied the motion for new trial. Plaintiffs appealed.
The Court engaged in a lengthy review of the medical testimony offered by Plaintiffs in support of their claims. It is clear that Mr. Kempson suffered from all sorts of neck and back problems – he had disc surgery in 1998, suffered leg and arm pain at various times, had herniated discs at various places in his neck and back, and experienced degenerative changes to his discs over time. Based on this medical history, and the testimony that the impact from the collision was “minor,” the defendant argued that it was reasonable for the jury to conclude that Mr. Kempson’s complaints were solely related to his pre-accident condition and unrelated to the accident.
The Court observed that a jury may reject expert testimony that is inconsistent with other evidence or that is otherwise unreasonable. Where there is unimpeached, uncontradicted testimony from a physician, however, that testimony cannot be ignored. In this case, the Court found that the jury simply ignored Dr. Hodges’ testimony that the collision, however minor, aggravated Mr. Kempson’s previous physical infirmities. But for the collision, Mr. Kempson would not have experienced the difficulties that ultimately required surgery.
The Court reiterated the legal maxim that a defendant takes a plaintiff “as he finds him” and also noted that aggravation of a pre-existing condition is a compensable element of damages. The Court further observed that an award of $0 is unsupported by the evidence because a plaintiff is generally entitled to recover reasonable expenses just for the medical examinations required to determine if plaintiff suffered any injuries, even if the conclusion is that no injury was suffered.
Thus, the Court concluded that there was no material evidence to support the jury’s award of no damages because it failed to consider the aggravation of the previous injury and failed to compensate for the diagnostic expenses which were unrefuted by the proof. The judgment of the trial court was vacated and the case was remanded for a new trial.
Dissent, J. Susuano
Judge Susano wrote separately to offer a brief dissent. He stated succinctly that the issues were “fairly presented to the jury” and the jury rejected Plaintiffs theory that Mr. Kempson was injured in the accident. As such, he would have affirmed the jury’s verdict.
Plaintiffs are almost never “perfect,” that is to say with no prior medical history. However, exacerbation cases are notoriously difficult to try in front a jury. This case demonstrates perfectly why these cases are so hard. In this case, plaintiff’s own treating physician offered totally unrebutted, uncontradicted, unimpeached testimony that the accident caused an exacerbated injury that necessitated surgery. The jury didn’t buy it. They awarded $0 and said any injury was totally unrelated to the accident. The Court of Appeals was left to see if the evidence supported the jury’s verdict, and, in this case, it simply did not.