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Kempson v. Casey

Court of Appeals of Tennessee, Knoxville

November 2, 2016


          Session Date: June 22, 2016

         Appeal from the Circuit Court for Hamilton County No. 12C873, 12C1138 W. Neil Thomas, III, Judge

          Ashley L. Ownby, Cleveland, Tennessee, for the appellants, Steven Kempson, and Melanie Kempson.

          Ronald D. Wells, Chattanooga, Tennessee, for the appellees, Pamela Casey, and Bradley H. Smith.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J., joined, Charles D. Susano, Jr, J., filed separate dissenting opinion..



         I. BACKGROUND

         This personal injury action arises out of a motor vehicle accident that occurred on October 14, 2011, in Chattanooga, Tennessee. The plaintiff, Steven Kempson, was traveling in his Toyota Tundra on I-24 at the East Brainerd exit. He was struck from behind by a Chevrolet van driven by the defendant, Pamela Casey. The van was owned by Ms. Casey's employer, Bradley Smith, the operator of a funeral transport service. Actions initially filed separately by Mr. Kempson and his wife, Melanie Kempson, against Ms. Casey and Mr. Smith were tried together before a jury on August 18-21, 2015.

         Mr. Kempson testified that he had been stopped in heavy traffic on the interstate. Upon looking in his rearview mirror, he saw a van approaching at a "pretty high rate of speed." According to Mr. Kempson, the van was traveling at 50 m.p.h.; his vehicle was knocked forward 5 to 6 car lengths; despite traffic stopped in front of him, he did not hit the vehicle in front of him or the concrete barrier to his left; when he saw Ms. Casey after the accident, she was bleeding from her knee all the way down her shin; and he was able to drive his truck away from the accident scene. The Kempsons alleged that Ms. Casey negligently collided with their vehicle and that as a result of the accident, Mr. Kempson began experiencing intractable neck and low back pain that ultimately necessitated a three level cervical discectomy and fusion for cervical disc herniation and myelopathy on November 16, 2012.

         Ms. Casey and Mr. Smith admitted to the collision but contended that the accident did not cause the injuries claimed by Mr. Kempson. Ms. Casey testified that she was going between 10-15 m.p.h. at the time of the accident; prior to the accident her attention was on the slowing traffic in front of her; the impact of the collision was "minor"; her van had an airbag that did not deploy; she had on long pants and was not bleeding from her knee as a result of the accident; and the van was driven from the scene. Ms. Casey and Mr. Smith asserted that Mr. Kempson has received treatment for neck pain since 2003 and that his complaints made before the accident were the same or similar to the complaints he made after it.

         The Kempsons presented to the jury the testimony of Mr. Kempson's surgeon, Scott Hodges, D.O., and his treating chiropractor, Eric Gruber, D.C. Both providers testified that Mr. Kempson had preexisting complaints related to his cervical, thoracic and lumbar spine. Dr. Hodges related that his treatment of Mr. Kempson goes back to 1998, when a microdiscectomy at L4-5 and L5-S1 was performed. Dr. Gruber noted that his treatment of Mr. Kempson's neck and upper body began in 2001. His reports revealed that in 2006, Mr. Kempson had previously incurred neck pain after an automobile accident involving a rear-end collision. Both providers indicated that Mr. Kempson's post-accident complaints were similar to pre-accident complaints. Dr. Hodges opined, however, that the accident at issue caused Mr. Kempson's medical condition to worsen to the point that surgery was necessary. Dr. Hodges noted as follows:

[T]his gentleman clearly had spinal disorders of different types. You know, he's got some disc herniation in his low back. He's had some disc herniations in his thoracic spine. . . . [T]he spinal stenosis is a condition that many people have . . . It's preexisting . . . it's been developing slowly and gradually over a long period of time, but it doesn't have symptoms associated with it. . . . [I]t decreases the overall space that the[] nerves have to move in. . . .
When you apply a mechanical force such as a motor vehicle accident on top of this preexisting condition, multiple things can happen. Since the disc is already weakened from the degeneration, it makes it easier for part of it to herniate. So some of it may herniate, as it appears to be the case here. . . .-

         Dr. Hodges opined that Mr. Kempson is "physically unable to do even a sedentary level work secondary to his overall physical impairment, as well as the medications being required to control his overall pain." Ms. Casey and Mr. Smith did not present any independent medical or expert testimony, but they extensively cross-examined both Dr. Hodges and Dr. Gruber as to Mr. Kempson's pre-accident health condition.

         On the special verdict form, the jury was asked: "Do you find the Defendant caused damage to the Plaintiffs?" The jury responded with a "No" and awarded no damages to the Kempsons. The trial court incorporated the verdict form into the judgment entered August 21, 2015, ordering that the Kempsons recover nothing. On September 18, 2015, the Kempsons filed a motion for new trial, which was denied by the trial ...

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