DONRIEL A. BORNE
CELADON TRUCKING SERVICES, INC.
Session Heard at Memphis November 5, 2015
by Permission from the Court of Appeals Circuit Court for
Shelby County No. CT00327310 Robert S. Weiss, Judge
appeal arises out of sequential rear-end collisions involving
three tractor trailer vehicles. The plaintiff's tractor
trailer was rear-ended by a tractor trailer owned by the
defendant, which was in turn rear-ended by a third tractor
trailer. The plaintiff sued the owners and drivers of both of
the other tractor trailers, seeking compensation for personal
injuries. Before trial, the plaintiff entered into an
agreement with the owner of the third tractor trailer that
neither would take any action adverse to the other and that
the owner of the third tractor trailer would only owe the
plaintiff half of any judgment entered against it. The owner
of the third tractor trailer was later dismissed on a
directed verdict. The jury returned a verdict for the
plaintiff against the defendant. The trial court denied the
defendant's motion for new trial and, with little
explanation, also suggested a remittitur of the jury's
verdict in all four categories of damages awarded. After the
defendant appealed, the Court of Appeals affirmed the trial
court's rulings regarding the pretrial agreement between
the plaintiff and the owner of the third tractor trailer.
Regarding the trial court's remittitur, the Court of
Appeals reinstated the jury's award for lost earning
capacity, suggested a further remittitur to the award for
loss of enjoyment of life, and affirmed the remitted award in
the remaining two categories of damages. On appeal, we affirm
the trial court's rulings regarding the pretrial
agreement. We find no error in the trial court's decision
not to give the jury a special instruction on superseding
cause. We hold that the Court of Appeals had no authority to
suggest a further remittitur absent a finding that the
jury's award-as remitted by the trial court-exceeds the
uppermost boundary of the range of reasonableness under the
evidence at trial, and so we reverse the Court of
Appeals' remittitur of the award for loss of enjoyment of
life. As to the trial court's remittitur, in view of the
sharply conflicting evidence on the plaintiff's damages,
the trial court's failure to indicate the reasons for its
suggested remittitur leaves us unable to determine whether
the evidence preponderates against the remittitur and,
consequently, unable to conduct a proper appellate review of
the trial court's remittitur decision. Accordingly, we
remand the case to the trial court for explanation of its
reasons for suggesting remittitur of the jury's award.
For the same reason, the Court of Appeals was without
sufficient information to perform a meaningful review of the
trial court's suggested remittitur, so we vacate the
Court of Appeals' decision to reverse the trial
court's remittitur of the award on lost earning capacity.
The decision of the Court of Appeals is affirmed in part and
reversed in part, and the case is remanded to the trial court
for further proceedings.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Affirmed in Part, Reversed in Part, Vacated in Part,
A. Bickers, Ryan M. Conner, and Dwight E. Tarwater (on
appeal), Knoxville, Tennessee, and Jim Summers and Kevin W.
Washburn (at trial and on appeal), Memphis, Tennessee, for
the appellant, Celadon Trucking Services, Inc.
R. Greer (at trial and on appeal) and R. Sadler Bailey (at
trial), Memphis, Tennessee, for the appellee, Donriel A.
Bryan Smith, Memphis, Tennessee, John Vail, Washington, D.C.,
and Brian G. Brooks, Greenbrier, Arkansas, for the Amicus
Curiae, Tennessee Association for Justice.
Kirby, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark, J., joined.
Sharon G. Lee, J., filed an opinion concurring in part and
dissenting in part.
and Procedural Background
case arises out of a vehicular accident in Memphis,
Tennessee, involving three tractor trailer vehicles.
Thirty-year-old Plaintiff Donriel Borne worked as a truck
driver for Trimac, a company that delivers air products. On
July 1, 2009, Mr. Borne was driving a Trimac tanker, a
tractor trailer vehicle, for his employer. When he
encountered a traffic backup on the interstate, he slowed and
then stopped. Immediately behind Mr. Borne, Harold Foster was
driving a tractor trailer truck owned by Defendant Celadon
Trucking Services, Inc. ("Celadon"). Mr. Foster was
unable to stop his vehicle and rear-ended Mr. Borne's
truck. The impact caused damage to Mr. Borne's vehicle
and to the front of the Celadon vehicle.
seconds later, the Celadon vehicle was struck from behind by
a tractor trailer driven by Steve Dondeville. Mr.
Dondeville's vehicle was owned by Chickasaw Container
Services, Inc. ("Chickasaw").
after the accident, Mr. Borne was shaken up but not in much
pain. He finished driving his route and returned the Trimac
tanker to Louisiana, where Trimac is based.
of Treatment and Evaluations
days after the accident, Mr. Borne began experiencing neck
and back pain.He first sought treatment from his
family physician. During this time, Mr. Borne continued to
work as a tractor trailer driver, including the tasks
associated with pre-trip and maintenance inspections and
about six months of treatment from his family physician, Mr.
Borne found that he was still in pain. In December 2009, he
stopped working as a truck driver and pursued a workers'
compensation claim. In connection with the workers'
compensation claim, Mr. Borne saw a physician provided by his
employer, who placed him on light duty and sent him to
same period, Mr. Borne's attorney recommended that he see
board certified neurosurgeon Donald Dietze, M.D. Dr. Dietze
issued further work restrictions, which Trimac could not
meet, so Mr. Borne ceased working altogether. In February
2010, Dr. Dietze ordered a magnetic resonance imaging (MRI)
scan. The scan showed a central disc herniation at the L4-5
level. Dr. Dietze's subsequent treatment of Mr. Borne
included facet and spinal injections, which provided
short-term relief. Dr. Dietze concluded that Mr. Borne's
pain was caused by the L4-5 central disc herniation, and so
began assessing Mr. Borne as a possible surgical candidate.
30, 2010, Mr. Borne filed the instant lawsuit against
Celadon, Mr. Foster, Chickasaw, and Mr. Dondeville in the
Circuit Court for Shelby County, Tennessee. Mr. Borne sought
compensatory damages for personal injuries he sustained in
the July 1, 2009 accident. The answer filed by Celadon and
Mr. Foster denied liability, alleged comparative fault by Mr.
Borne, Chickasaw, and Mr. Dondeville, and asserted the
defenses of unavoidable accident and independent intervening
cause. The remaining defendants filed an answer denying
liability, and discovery ensued. After some discovery, the
claims against Mr. Foster and Mr. Dondeville were voluntarily
this time, the treatment and evaluation of Mr. Borne's
condition continued. The workers' compensation carrier
hired Najeeb Thomas, M.D., a board certified neurosurgeon, to
evaluate Mr. Borne's condition. In September 2010, Dr.
Thomas performed an independent medical examination
("IME") on Mr. Borne. At that time, Mr. Borne was
complaining of low back pain, neck pain, and some numbness
and tingling in his legs and toes. After reviewing Mr.
Borne's February 2010 MRI, Dr. Thomas concluded that Mr.
Borne was experiencing "simply . . . some low back
strain." Dr. Thomas said that Mr. Borne's pain did
not appear to be "discogenic" in nature, so he did
not recommend surgical intervention or any further
injections. Instead, he recommended physical therapy. Upon
completion of the physical therapy, Dr. Thomas believed that
Mr. Borne would "likely be at maximum medical
to assess whether Mr. Borne would benefit from surgery, Dr.
Dietze ordered a lumbar discogram. The discogram took place
shortly after Dr. Thomas's IME. It showed the expected
abnormalities at L4-5, but it did not indicate that those
abnormalities were the "pain generator" for Mr.
Borne. After Dr. Dietze received the results of the
discogram, he took surgery "off the table" but
concluded that Mr. Borne could benefit from a medical
procedure called a rhizotomy, which is directed at the facet
area of the spine, as well as an intradiscal electrothermal
treatment directed at the disc. However, the workers'
compensation carrier declined to authorize such treatments.
After that, Dr. Dietze declared that Mr. Borne had reached
maximum medical improvement and assessed Mr. Borne with a 10%
impairment rating. Dr. Dietze ordered a functional capacity
evaluation of Mr. Borne by a physical therapist.
April 2011, Mr. Borne was involved in another motor vehicle
accident. In this incident, Mr. Borne's vehicle
rear-ended another vehicle. The collision shattered the other
vehicle's rear windshield and dented both vehicles.
weeks after the April 2011 collision, Mr. Borne presented to
Dr. Dietze again, this time complaining of an increase in low
back pain and right knee pain. Mr. Borne told Dr. Dietze that
his right knee pain had increased during the prior two weeks
and that his low back pain had increased since his last
May and early June 2011, about two months after the April
2011 vehicular accident, physical therapist Courtney Roberts,
DPT, performed the functional capacity evaluation on Mr.
Borne ordered by Dr. Dietze. Dr. Roberts reviewed Mr.
Borne's medical records, interviewed him at length, and
then had Mr. Borne perform a series of exercises and tests to
assess his abilities, restrictions and level of pain. After
assessing Mr. Borne's ability to work, Dr. Roberts
recommended further physical therapy for him and felt that he
would benefit from it.
2011, at the request of Mr. Borne's attorney, vocational
analyst Anthony Gamboa, Ph.D., did an assessment of how Mr.
Borne's physical limitations had affected his capacity to
work and earn money. To perform his assessment on Mr. Borne,
Dr. Gamboa reviewed Dr. Dietze's medical records, Mr.
Borne's work history, earning records and vocational
evaluation, and Dr. Roberts' May/June 2011 functional
from October 2011 to April 2012, Mr. Borne participated in
the extensive physical therapy Dr. Roberts recommended for
him in her functional capacity evaluation. Mr. Borne
responded well to the physical therapy. By April 2012, Mr.
Borne's pain had diminished significantly, he was able to
reduce his use of medication, and he improved his gait, his
ability to walk distances, and his ability to engage in
activities around the house. At the conclusion, Dr. Roberts
released Mr. Borne to continue exercise and physical therapy
on his own.
January 2012, at the request of Celadon, vocational
rehabilitative counselor Carla Seyler performed a vocational
rehabilitation examination on Mr. Borne. Prior to meeting
with Mr. Borne, Ms. Seyler obtained information about him
regarding his education, work history, medical condition, and
physical restrictions. She reviewed his medical records, did
vocational testing, and reviewed the report and subsequent
testimony of physical therapist Courtney Roberts. She then
looked at jobs available in Mr. Borne's community and
interviewed Mr. Borne to prepare an opinion as to whether Mr.
Borne would be able to make the same income he was making at
the time of the Celadon accident.
early March 2012, Celadon asked board certified neurosurgeon
Robert Applebaum, M.D., to examine Mr. Borne. Dr.
Applebaum's letter to Celadon's attorney regarding
the examination stated that Mr. Borne "may have
sustained an injury to his neck and back in an accident over
two and a half years ago. Examination at the current time
does not show any significant mechanical or neurological
findings." Dr. Applebaum offered to review any recent
diagnostic studies on Mr. Borne.
same month, March 2012, Dr. Dietze ordered a second MRI on
Mr. Borne. Certified radiologist Lawrence Glorioso, M.D.,
interpreted the MRI. Among other things, Dr. Glorioso opined
that Mr. Borne had suffered an annular fibrosis tear that was
consistent with trauma. He did not think Mr. Borne's
spinal condition resulted from chronic spine problems.
Applebaum also reviewed the March 2012 MRI; his
interpretation differed from that of Dr. Glorioso. Dr.
Applebaum noted that the MRI showed a moderate bulge at the
L4-5 level, but he did not feel that it was clinically
significant. He saw no indication of herniated disc or nerve
root irritation. Dr. Applebaum also reviewed the December
2009 x-rays of Mr. Borne's lumbar spine. In Dr.
Applebaum's opinion, the x-rays indicated that Mr. Borne
had mild to moderate degenerative changes that would have
predated the July 2009 accident.
of 2012, workers' compensation neurosurgeon Dr. Thomas
performed another IME on Mr. Borne. In this updated IME, Dr.
Thomas concluded that, though Mr. Borne had sustained a
lumbar strain, his condition had improved. He opined that Mr.
Borne could do light-duty work, and possibly medium duty
work. Dr. Thomas did not think that Mr. Borne would benefit
from either surgery or a rhizotomy. He recommended that Mr.
Borne continue using the medications Flexeril and Lodine as
needed and continue his program of home back-strengthening
2012, at the request of Mr. Borne's attorney, behavioral
health and rehabilitation counselor C. Greg Cates, Ed.D.,
performed a vocational evaluation on Mr. Borne. Dr. Cates
reviewed Mr. Borne's medical records, psychological
assessments, and functional assessments. He observed Mr.
Borne and interviewed him. Dr. Cates assessed Mr. Borne's
work loss under three scenarios, first crediting Dr.
Dietze's initial assessment that Mr. Borne is not capable
of performing sedentary work, then crediting the assessment
that Mr. Borne can perform sedentary work, and finally
crediting the assessment that Mr. Borne can perform
early 2013, leading up to the scheduled trial, Mr. Borne
continued to receive treatments from Dr. Dietze in an effort
to provide temporary pain relief and improve functionality.
the parties continued preparation for the trial, scheduled to
begin on Monday, May 20, 2013.
Friday, May 17, 2013, counsel for Mr. Borne advised
Celadon's attorneys that Mr. Borne and Chickasaw had
entered into a written agreement. Under the agreement, the
parties agreed that Chickasaw was not at fault in the
accident, that Chickasaw and Mr. Borne would cooperate in the
proceedings, that Mr. Borne would take no action adverse to
Chickasaw in the trial, and that Chickasaw would owe Mr.
Borne only half of any judgment that might be entered against
trial began as scheduled. On the morning of the first day of
trial, counsel for Celadon advised the trial court of the
agreement between Chickasaw and Mr. Borne. Celadon
characterized it as a Mary Carter agreement and argued
that it should be admitted into evidence and made available
for impeachment purposes. Celadon expressed concern that an
attorney for Chickasaw had indicated that he planned to use
Chickasaw's peremptory challenges for the benefit of Mr.
Borne and possibly to the detriment of Celadon.
was no objection at that time to Celadon's request to use
the written agreement at trial. In response to Celadon's
request, the trial judge said "Okay" but otherwise
made no ruling.
same day, during the voir dire of potential jurors, counsel
for Mr. Borne referenced the agreement with Chickasaw, and
Celadon objected. The trial court allowed Mr. Borne's
attorney to ask potential jurors about any opinion they might
have of an agreement between Mr. Borne and Chickasaw, but it
declined to permit him to discuss the content of the
next day, Celadon filed a motion to admit the written
agreement into evidence and use it at trial. After the jury
was selected and sworn, Celadon announced, "[T]o
preserve the record, at this time we're going to move to
strike the panel based upon the use of the Mary Carter
Agreement and the collusion between Dondeville and the
plaintiffs counsel in striking the jurors[. T]hey worked
together to strike them. And we're just putting that on
the record." Both Chickasaw and Mr. Borne argued that
the issue was waived. The trial judge again responded,
"Okay, " but did not otherwise rule on the motion.
then argued that the agreement should be admitted into
evidence and made available for impeachment. Chickasaw
objected to admitting the written agreement into evidence as
an exhibit but agreed that Celadon would be permitted to read
the agreement into evidence "word for word" during
its case-in-chief and could ask witnesses about the
agreement. The trial court reserved its ruling on whether the
written agreement could be made an exhibit, but it noted that
the parties had agreed that the agreement could be referenced
and read into evidence.
opening statements, counsel for Mr. Borne referred to the
agreement with Chickasaw, and counsel for Celadon read a
portion of it to the jury. The trial record indicates that,
during the ensuing presentation of Celadon's proof,
Celadon did not read the agreement into evidence, use the
agreement to impeach any witnesses, or seek to introduce it
as an exhibit. The agreement did not come up again until
after the close of both parties'proof.
trial lasted seven days. Mr. Borne testified on his own
behalf and presented both lay and expert testimony to support
his claim for damages.
outset of his testimony, Mr. Borne described how the July 1,
2009 accident occurred. Mr. Borne described the impact with
the Celadon vehicle as a "hard" impact that caused
the hood of his tractor trailer to pop open and damaged the
front of the Celadon truck. At that time, he was not aware
that the Chickasaw tractor trailer rear-ended the Celadon
truck immediately after the Celadon truck struck Mr.
Borne described the progression of his symptoms and his
overall treatment. He outlined his decision to seek treatment
from his family physician for low back pain while continuing
to drive the tractor trailer, and his decision six months
later to file a workers' compensation claim. After the
workers' compensation physician restricted him to
light-duty work and recommended that he see his own doctor,
Mr. Borne said, his attorney referred him to neurosurgeon Dr.
Borne described how his injuries had affected his ability to
work, engage in hobbies, and do normal activities. He enjoyed
driving a truck; he missed being a truck driver and being
able to earn a living. Before the accident, he had enjoyed
hunting and fishing. Since his injury, Mr. Borne said, he can
fish only if his wife helps him get his boat in and out of
the water, and when he goes hunting, he sits in a chair in
the woods. He said that he does yard work and household
chores if he is able, but sometimes he is not able. Mr. Borne
has not worked since the Celadon accident and has instead
drawn workers' compensation benefits. His inability to
work has left him depressed and worried about how he will pay
his living expenses.
Borne conceded that he was involved in an automobile accident
on June 18, 2009, about two weeks before the accident with
the Celadon vehicle. After this accident, he went to the
hospital emergency room and was diagnosed with whiplash. As a
result, he took approximately a week off from work. Mr. Borne
maintained that any residual pain from the June 2009 accident
had resolved by the time the July 1, 2009 accident occurred.
Borne also acknowledged he was involved in another accident
on April 1, 2011, nearly two years after the Celadon
accident. In that accident, Mr. Borne's vehicle
"bumped" a van in front of him. It dented the other
vehicle and "shattered" its rear windshield. He
conceded that, when he disclosed the April 2011 accident to
the physical therapist who evaluated him, Dr. Roberts, he
indicated to her that it was just a fender-bender and that it
caused no damage to either vehicle.
Borne agreed that the physical therapy with Dr. Roberts,
completed in April 2012, had improved his functionality to
the point that he could lift a twenty-five pound box. The
improvement from the physical therapy allowed Mr. Borne to
reduce his intake of anti-inflammatory medication and muscle
relaxers to the point that he only took them when he overdid
activities. He said that he does home exercises, walks on a
treadmill, and he and his wife walk every other day. Despite
this, Mr. Borne said it was his understanding that Dr. Dietze
had not released him to do even sedentary work.
Borne's wife, Tamara Williams, corroborated his
testimony. Before the accident, she said, Mr. Borne was a
hard worker and a "handy" person who did yard work
and things around the house, and he also helped his mother.
After the accident, it upset Mr. Borne to no longer be able
to work or to help her and his mother the way he did before
the accident; Ms. Williams described Mr. Borne as depressed.
She agreed that Mr. Borne's functionality improved when
he did physical therapy with Dr. Roberts.
trial, Mr. Borne's neurosurgeon Dr. Dietze testified to a
reasonable degree of medical certainty that Mr. Borne had
suffered a permanent musculoskeletal injury as a result of
the July 1, 2009 accident. Dr. Dietze first detailed his
course of treatment for Mr. Borne. In 2012, Dr. Dietze
perceived that Mr. Borne's pain increased between 2011
and 2012, so he ordered an updated MRI and compared the MRI
taken in 2010 with the one taken in 2012. He said that the
comparison showed an accelerated degeneration of Mr.
Borne's L4-5 disc beyond what would normally occur as
part of the aging process. He felt that the most logical
explanation for the accelerated degeneration was an injury to
the L4-5 disc in the July 1, 2009 accident.
Dietze conceded that, in reaching this opinion, he did not
recall being aware that Mr. Borne had been in an automobile
accident two weeks before the July 1, 2009 accident with the
Celadon vehicle. In addition, Dr. Dietze was not told of Mr.
Borne's April 2011 traffic accident when Mr. Borne saw
him in May 2011, complaining that he had had increased knee
pain for about two weeks and increased low back pain as well.
Dr. Dietze learned of the April 2011 accident at a later
time. Dr. Dietze acknowledged that the 2011 accident, if
significant enough, could have produced sufficient trauma to
account for the accelerated degeneration of Mr. Borne's
Dietze said he did diagnostic tests on Mr. Borne that
indicated that his pain and functionality would benefit from
a rhizotomy, a burning of certain nerve endings, and they
were seeking approval for the procedure from the workers'
compensation carrier. He noted that, at the time physical
therapist Dr. Roberts performed the 2011 functional capacity
evaluation he ordered, Mr. Borne was not capable of
performing sedentary work. After Mr. Borne completed the
physical therapy Dr. Roberts recommended, his functionality
improved. However, Dr. Dietze did not order an updated
functional capacity evaluation. Dr. Dietze was asked what
kind of work Mr. Borne would be able to do if the recommended
rhizotomy were successful; Dr. Dietze noted that the physical
therapy with Dr. Roberts went very well and that the
therapist had documented improved strength and functionality.
He then said, "I do think he could at least meet the
sedentary, and I would say light-possible light duty,
somewhere in that range."
Dr. Glorioso testified about his interpretation of the MRI
performed on Mr. Borne in March 2012. After viewing the MRI,
Dr. Glorioso opined that Mr. Borne had suffered an annular
fibrosis tear, a disc herniation at the L4-5 level, bulging
discs at the L2-3 and L3-4 levels, and signs of facet
arthrosis, which is consistent with a degenerative spinal
problem. Dr. Glorioso said that the annular fibrosis tear
could be a pain generating source, and the herniation at L4-5
was consistent with trauma and was likely a pain generating
therapist Dr. Roberts testified as well. She outlined her
procedure for performing the functional capacity evaluation
in late May and early June 2011. At that time, she concluded
that Mr. Borne was "not quite capable of performing
sedentary work activities, " the lowest level of work
activities, involving sitting for most of the time with
occasional periods of walking or standing. At the conclusion
of the functional capacity evaluation, Dr. Roberts
recommended further physical therapy for Mr. Borne.
Roberts testified that, from October 2011 to April 2012, Mr.
Borne underwent the extensive physical therapy she had
recommended for him. Dr. Roberts said that the physical
therapy resulted in significant improvement in Mr.
Borne's functionality. By April 2012, Mr. Borne reported
that his pain levels had improved, down at times to only a 2
on a scale of 10. He was able to fish, cook, carry a cooler
filled with shrimp, lift twenty-five pounds, and walk and
stand for over two hours at a strawberry festival. He took
medication for his pain mainly on the weekends when he
overdid activity. Mr. Borne increased his activities around
the house, improved his gait, and enhanced his ability to
walk long distances. At the conclusion, Dr. Roberts released
Mr. Borne to continue exercise and physical therapy on his
Roberts was not asked to update her June 2011 functional
capacity evaluation after Mr. Borne completed the recommended
round of physical therapy. However, at the time of trial,
based on her observations of Mr. Borne during physical
therapy, it was Dr. Roberts' opinion that Mr. Borne had
improved to the point that he could probably perform
health and rehabilitation counselor Dr. Cates testified at
trial about his vocational evaluation on Mr. Borne. After
reviewing Mr. Borne's medical records, psychological
assessments, and functional assessments, Dr. Cates observed
Mr. Borne and interviewed him at length about his age,
education, and work history. Crediting Dr. Dietze's
initial assessment that Mr. Borne is not capable of
performing sedentary work, Dr. Cates said, then he is
unemployable and his work loss would be 100%. In the
alternative, even crediting the assessments indicating that
Mr. Borne can perform sedentary or light work, Dr. Cates felt
that employers were not likely to respond well to the length
of time Mr. Borne had been off work. Consequently, if it is
assumed that Mr. Borne can perform sedentary work, Dr. Cates
felt that his loss of vocational opportunity would be 95-98%
of jobs with directly transferrable skills. Assuming Mr.
Borne could perform light-duty work, Dr. Cates calculated his
loss of vocational opportunity at approximately 93% for jobs
with directly transferrable skills, 58% loss for jobs with
generally transferrable skills, and 45% loss for unskilled
jobs. Put differently, Dr. Cates opined that, if Mr. Borne
were deemed capable of performing sedentary or light-duty
work, he would be available for 55% of unskilled jobs.
analyst Anthony Gamboa testified at trial about his economic
assessment of how Mr. Borne's physical limitations had
affected his capacity to work and earn money. Dr.
Gamboa's vocational economic assessment was based on Dr.
Dietze's medical records, Mr. Borne's work history,
earning records and vocational evaluation, and Dr.
Roberts' June 2011 functional capacity evaluation. Based
on this information, Dr. Gamboa concluded that Mr. Borne
could neither sit nor stand for extended periods of time, so
he could only do the type of sedentary work that would allow
him to alternate sitting and standing. Given these
restrictions and Mr. Borne's low level of reading
comprehension, Dr. Gamboa opined that he would be able to
perform only about 2% of the jobs in the labor market. He
felt that employers would be reluctant to hire someone like
Mr. Borne who had been out of work for several years. Given
these parameters, Dr. Gamboa described Mr. Borne as
essentially "unemployable." Based on the average
Louisiana heavy truck driver's earnings in 2011 dollars,
and projecting Mr. Borne continuing to work until age sixty,
Dr. Gamboa calculated Mr. Borne's lost earning capacity
at $1, 334, 647.
Gamboa acknowledged that his calculation of Mr. Borne's
lost earning capacity was done without knowledge of the
improvement in his functionality after completing several
months of physical therapy with Dr. Roberts. If it is assumed
that Mr. Borne can perform light-duty or sedentary work, Dr.
Gamboa said, then the vocational economic assessment
"would be done in a very, very different way, " and
his loss of earning capacity would be less. However, Dr.
Gamboa pointed out that Mr. Borne had only performed physical
jobs in the past, such as working as a welder or a truck
driver, so his lack of experience in light-to-sedentary jobs
would put him at a competitive disadvantage in applying for
those jobs. This testimony concluded Mr. Borne's
then presented evidence in response. It first presented
testimony from the passenger in Mr. Borne's vehicle,
Talmadge Mevers. Generally, Mr. Mevers' testimony about
how the accident with the Celadon vehicle occurred
corroborated Mr. Borne's version of the events. Mr.
Mevers described the impact from the Celadon vehicle as a
"pretty good little pound."
Foster, the driver of the Celadon tractor trailer vehicle,
gave a similar account of how the accident occurred. However,
Mr. Foster said that he "didn't hardly feel
anything" when his vehicle rear-ended Mr. Borne's
vehicle. Mr. Foster testified that the subsequent impact from
the Chickasaw vehicle rear-ending the Celadon vehicle was so
light that he did not feel it.
offered testimony from Douglas Morr, a biomechanical engineer
who performed a forensic accident reconstruction of the July
2009 accident. Mr. Morr examined the photographs and repair
records on the damage to the vehicles, reviewed the police
reports and deposition testimony on how the accident
occurred, researched information about the type of vehicles
involved such as their weight and dimensions, and viewed the
accident location. Focusing on the impact, he compared this
information with Mr. Borne's medical records, his height
and weight, and the witnesses' descriptions of Mr.
Borne's injuries. Mr. Morr concluded that the force and
acceleration of the July 2009 accident were not consistent
with the cervical or lumbar injuries that Mr. Borne claimed
that he sustained in the July 2009 accident.
also presented the opinion testimony of Dr. Thomas, the
neurosurgeon who examined Mr. Borne at the request of his
workers' compensation carrier. Dr. Thomas reviewed an MRI
performed in February 2010 and concluded that Mr. Borne had
low back strain. Dr. Thomas examined Mr. Borne again in 2012,
after Mr. Borne had completed the physical therapy with Dr.
Roberts. Dr. Thomas determined that Mr. Borne's condition
had improved significantly since his first visit and that he
had reached maximum functional improvement. He felt that Mr.
Borne's condition was lumbar strain or that it could be
arthritic in nature. Dr. Thomas was of the opinion that,
while Mr. Borne could not do heavy-duty work, he could do
light-duty work or perhaps even work that was
also offered the testimony of neurosurgeon Robert Applebaum.
Dr. Applebaum examined Mr. Borne after his physical therapy
with Dr. Roberts, and he reviewed his medical records,
including the MRI films read by Dr. Glorioso and relied upon
by Dr. Dietze. Dr. Applebaum concluded that Mr. Borne likely
had no disease or damage involving his spinal cord or nerve
roots and that there were no significant neck or back
mechanical or neurological findings. He found degenerative
changes in the lumbar spine that would have predated an
accident in July 2009. Dr. Applebaum noted a moderate disc
bulge at the L4-5 level but felt that it was not clinically
significant. Dr. Applebaum found no evidence of impairment
and concluded to a reasonable degree of medical certainty
that Mr. Borne could return to work in any occupation for
which he was otherwise qualified.
counselor Carla Seyler also testified on behalf of Celadon.
Ms. Seyler performed her vocational rehabilitation
examination on Mr. Borne after he had completed physical
therapy with Dr. Roberts. She interviewed Mr. Borne, reviewed
his work and educational history, and did vocational testing.
She reviewed Mr. Borne's medical records, including those
of Dr. Dietze and Dr. Applebaum, as well as the records of
physical therapist Dr. Roberts. She interpreted the records
of Dr. Dietze and Dr. Roberts as indicating that Mr.
Borne would be able to perform sedentary to light-duty work,
and she interpreted Dr. Applebaum's records as indicating
that Mr. Borne could return to his regular work with no
restrictions. Under either physical evaluation, Ms. Seyler
opined, Mr. Borne would be able to secure a job compatible
with his education, work history, and physical restrictions,
and he would be able to replace his income prior to the July
2009 accident. To overcome the three-year gap in his work
history, Ms. Seyler suggested that Mr. Borne spend a period
of time working short-term jobs for a temporary service, to
gradually get back into the workforce. After a period of
transition, Ms. Seyler asserted, Mr. Borne would be able to
secure a job making an amount of money that would equal or
exceed what he was making at the time of the accident.
the close of proof, Celadon asked the trial judge to give the
jury an instruction about the pretrial agreement between Mr.
Borne and Chickasaw. Mr. Borne objected that there was no
evidentiary basis for an instruction because the agreement
was never admitted into evidence. Celadon responded that the
trial court had never ruled on Celadon's request to admit
the agreement into evidence. The trial court questioned
whether the agreement was relevant in light of the fact that
Chickasaw had been dismissed from the case. The trial court
asked the attorneys, "If we do let the Mary Carter
Agreement go back to the jury, then do we want
2.26 in?" It then denied Celadon's
request for an instruction on the agreement and added,
"[W]e'll cut 2.26 out."
also requested a special jury instruction on superseding
cause. Initially, Mr. Borne consented to the instruction.
Subsequently, however, Mr. Borne objected to a superseding
cause instruction, contending that there was no proof that
any accident other than the July 1, 2009 accident was the
likely cause of Mr. Borne's injury. The trial court
denied Celadon's request for a superseding cause
Post-Trial Proceedings, Appeal
deliberations, the jury returned a verdict in favor of Mr.
Borne. The jury awarded him $1, 455, 000 for loss of earning
capacity, $750, 000 for physical pain and mental suffering,
$750, 000 for permanent injury, and $750, 000 for loss of
enjoyment of life, for a total verdict of $3, 705, 000.
filed a motion for a new trial or, in the alternative, for a
remittitur of the jury's award. The trial court denied
the motion for a new trial.
the trial court granted Celadon's request for remittitur
of the jury's verdict. The trial court's order noted
that it did not find that the jury acted with "passion,
prejudice or caprice, " but it deemed the award
"excessive." The trial court suggested a remittitur
in these categories: loss of earning capacity reduced from
$1, 455, 000 to $1, 100, 000; pain and suffering reduced from
$750, 000 to $500, 000; permanent injury reduced from $750,
000 to $100, 000; and loss of enjoyment of life reduced from
$750, 000 to $400, 000. Thus, the trial court suggested a
total remittitur of $1, 605, 000, reducing the total award
from $3, 705, 000 to $2, 100, 000. In lieu of a new trial,
Mr. Borne accepted the reduced award under protest.
See Tenn. Code Ann. § 20-10-102(a) (2009).
Court of Appeals, Celadon asserted that the agreement between
Mr. Borne and Chickasaw violates public policy. As such,
Celadon argued, the trial court erred in declining to strike
the jury panel, admit the agreement into evidence, and give
the jury instruction on the agreement requested by Celadon.
Celadon also contended that the trial court erred in
declining to instruct the jury on superseding cause. Celadon
maintained that the trial court's remittitur of the jury
verdict was insufficient and asked the appellate court to
suggest a further remittitur. Borne v. Celadon Trucking
Servs., Inc., No. W2013-01949-COA-R3-CV, 2014 WL
3778743, at *2 (Tenn. Ct. App. July 31, 2014), perm. app.
granted (Tenn. Dec. 18, 2014).
response, Mr. Borne argued that Celadon had waived any
objections to the agreement with Chickasaw. He also contended
that the trial court erred by suggesting any remittitur of
the jury's verdict. Id. at *2-3.
appeal, the Court of Appeals rendered a divided opinion. As
to Celadon's arguments on the agreement with Chickasaw,
it noted that Celadon had not contended at trial that the
agreement violated public policy; Celadon only raised the
argument in its motion for new trial. Under those
circumstances, the Court of Appeals held, Celadon waived any
argument on the validity of the agreement. Id. at
*5. The intermediate court found that the trial court did not
abuse its discretion in permitting limited discussion of the
agreement during jury selection and declined to grant Celadon
relief on the trial court's failure to strike the jury
panel. Id. at *8. The Court of Appeals found no
error in the trial court's decision not to grant
Celadon's request to admit the agreement into evidence,
since the request came after the close of proof and there had
been no reference to the agreement during the proof phase of
the trial. Id. at *10. It held that Celadon had
waived any objection to the trial court's denial of its
request for a jury instruction on the agreement by failing to
raise the issue in its motion for new trial. Id. The
Court of Appeals also upheld the trial court's denial of
a superseding cause instruction. It concluded that
Celadon's theory simply presented a question of
cause-in-fact, so the jury instructions given on proximate
cause and legal cause were sufficient. Id. at *17.
damages, the majority affirmed the awards for permanent
injury and for pain and suffering as reduced by the trial
court. It reversed the trial court's suggested remittitur
of the award for loss of earning capacity and reinstated the
jury award of $1, 455, 000. As to the award for loss of
enjoyment of life, the majority suggested its own further
remittitur, reducing that award from $400, 000 as remitted by
the trial court down to $50, 000. Thus, the majority of the
Court of Appeals approved a total award to Mr. Borne of $2,
105, 000. Id. at *33.
Steven Stafford filed a separate opinion, dissenting in part
from the majority opinion. Judge Stafford concurred with the
majority's rulings with respect to the procedural issues,
and he also agreed with its reversal of the trial court's
remittitur of the jury award for loss of earning capacity.
However, as discussed more fully below, Judge Stafford
disagreed with the procedure followed by the majority in
suggesting its own further remittitur of the jury's award
for loss of enjoyment of life. Id. at *34 (Stafford,
J., dissenting in part).
granted both parties' applications for permission to
appeal to this Court, Celadon's assertions regarding the
agreement between Mr. Borne and Chickasaw form the
centerpiece of its arguments.
contends first that the agreement violates Tennessee public
policy, so the trial court erred by failing to invalidate the
agreement and vacate the jury verdict. Celadon argues that
the agreement had the effect of misleading the jury,
amounting to a violation of Celadon's right to a jury
trial under article I, section 6 of the Tennessee
Constitution. It asserts that the agreement disregarded the
link between fault and liability, thus circumventing
Tennessee's comparative fault system and subverting the
administration of justice. Celadon maintains that the
agreement compromises the integrity of the legal profession
and the justice system, manipulates the trial process, and
furthers the perception that lawyers are duplicitous and the
justice system is untrustworthy. For these reasons, Celadon
argues that we should grant a new trial.
noted by the Court of Appeals, in its motion for new trial,
Celadon characterized Mr. Borne's agreement with
Chickasaw as a "Mary Carter" agreement and
generally questioned its validity. However, during the trial
itself, Celadon did not argue that the agreement was invalid
or against public policy. At trial, Celadon argued only that
the agreement should be admitted into evidence so that the
jury would know about it and Celadon could use it to impeach
the issue in the motion for new trial is necessary but not
sufficient. "It is well settled in this state that a
party cannot raise a new issue . . . on motion for a new
trial that was not within the scope of the pleadings and
was not presented to the court at the trial of the
case." Serv-U-Mart, Inc. v. Sullivan Cnty., 527
S.W.2d 121, 124 (Tenn. 1975). Grounds raised in a motion for
new trial must have been raised at trial. See Moss v.
Sankey, 54 S.W.3d 296, 299 & n.3 (Tenn. Ct. App.
2001) (declining to grant relief of claim of error first
raised in a motion for new trial); see also Norris v.
Nationwide Mut. Fire Ins. Co., 728 S.W.2d 335, 338
(Tenn. Ct. App. 1986); Allen v. Melton, 99 S.W.2d
219, 228 (Tenn. Ct. App. 1936). Because Celadon failed to
challenge the validity of the agreement either prior to trial
or during the trial, we deem this issue waived.
argues next that the trial court erred in declining to admit
the agreement into evidence. Prior to trial, Celadon filed a
motion to admit the written agreement into evidence and use
it at trial. After the jury was selected and sworn, Celadon
argued that the agreement should be admitted into evidence
and made available for impeachment. The trial court reserved
its ruling on the motion but noted that the parties had
agreed that the agreement could be referenced and read into
evidence. The agreement was referenced during opening
statements, and counsel for Celadon read a portion of it to
the ensuing trial, Celadon did not attempt to use the
agreement to impeach witnesses, as it had requested in its
pretrial motion. It did not offer the agreement as an exhibit
during its case-in-chief. After the close of proof, Celadon
asked the trial court to admit the agreement into evidence.
At that point, the trial court noted that Chickasaw had been
dismissed from the case and would not be on the jury form,
and it questioned whether the agreement was even relevant.
The trial court did not clearly rule on Celadon's motion,
but the agreement was not admitted into evidence.
the admissibility of evidence is within the sound discretion
of the trial court." Mercer v. Vanderbilt Univ.,
Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (citing Otis
v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442
(Tenn. 1992)). "The trial court's decision to admit
or exclude evidence will be overturned on appeal only where
there is an abuse of discretion." Id. "A
trial court abuses its discretion only when it 'applie[s]
an incorrect legal standard, or reache[s] a decision which is
against logic or reasoning that cause[s] an injustice to the
party complaining.'" Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). "The
abuse of discretion standard does not permit the appellate
court to substitute its judgment for that of the trial
court." Id. (citing Myint v. Allstate Ins.
Co., 970 S.W.2d 920, 927 (Tenn. 1998)).
as noted by the trial court, neither party referred to Mr.
Borne's agreement with Chickasaw during the proof phase
of the trial, and Chickasaw was dismissed from the case at
the close of Mr. Borne's proof. Admitting the agreement
into evidence after the close of proof might have foreclosed
Mr. Borne from rebutting any suggestion of bias arising out
of the agreement, absent a decision to reopen the proof.
Under these circumstances, we see no abuse of the trial
court's discretion in failing to admit the agreement into
next contends that the agreement resulted in Mr. Borne and
Chickasaw colluding on use of their peremptory
challenges. It argues that this amounted to a
violation of Tennessee Code Annotated section 22-3-104, which
provides for the division of peremptory challenges among
record does not support Celadon's argument that the
agreement resulted in the misuse of peremptory challenges.
Under Tennessee Code Annotated section 22-3-104 and Tennessee
Rule of Civil Procedure 47.03,  Mr. Borne had six
peremptory challenges, Celadon had four peremptory
challenges, and Chickasaw had four peremptory challenges. The
record shows that twelve jurors were excused without cause,
but it does not identify which party excused any particular
juror or even indicate how many challenges each party
exercised. Although Celadon contends that Mr. Borne and
Chickasaw collaborated in their use of peremptory challenges,
we find no support in the record for this assertion. On the
first day of trial, before voir dire, Celadon's lawyer
made an oral motion in which he claimed that Chickasaw's
lawyer had said that he planned to use peremptory challenges
for the benefit of Mr. Borne. The record does not indicate
whether this in fact occurred or to what extent. After the
jury was empaneled, Celadon's lawyer noted his objection
to the jury panel "to preserve the record" but made
no offer of proof. On appeal, Celadon likewise points to no
proof in the record for its assertion.
failing to show an evidentiary basis for its argument,
Celadon has waived this issue. See Tenn. R. App. P.
27(a)(A)(7) (requiring briefed arguments to include
"appropriate references to the record"); Reid
v. Reid, 388 S.W.3d 292, 295 (Tenn. Ct. App. 2012)
(noting that the parties, not the courts, carry the burden to
ensure "'that the record on appeal contains a fair,
accurate, and complete account of what transpired with
respect to the issues being raised'" (quoting
Trusty v. Robinson, No. M2000-01590-COA-R3-CV, 2001
WL 96043, at *1 (Tenn. Ct. App. Feb. 6, 2001) (citing Tenn.
R. App. P. 24(b))); cf. State v. Thompson, 36 S.W.3d
102, 108 (Tenn. Crim. App. 2000) (holding that the appellate
court could not consider defendant's claim that the trial
court improperly declined to remove a particular prospective
juror for cause because, although the record showed that some