STEVEN KEMPSON, ET AL.
PAMELA CASEY, ET AL.
Session Date: June 22, 2016
from the Circuit Court for Hamilton County No. 12C873,
12C1138 W. Neil Thomas, III, Judge
L. Ownby, Cleveland, Tennessee, for the appellants, Steven
Kempson, and Melanie Kempson.
D. Wells, Chattanooga, Tennessee, for the appellees, Pamela
Casey, and Bradley H. Smith.
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..
W. MCCLARTY, JUDGE
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.
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.
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
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. . . .-
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
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