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Borne v. Celadon Trucking Services, Inc.

Supreme Court of Tennessee, Jackson

October 20, 2017

DONRIEL A. BORNE
v.
CELADON TRUCKING SERVICES, INC.

          Session Heard at Memphis November 5, 2015

         Appeal by Permission from the Court of Appeals Circuit Court for Shelby County No. CT00327310 Robert S. Weiss, Judge

         This 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.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in Part, Reversed in Part, Vacated in Part, and Remanded

          Thomas 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.

          Thomas R. Greer (at trial and on appeal) and R. Sadler Bailey (at trial), Memphis, Tennessee, for the appellee, Donriel A. Borne.

          W. Bryan Smith, Memphis, Tennessee, John Vail, Washington, D.C., and Brian G. Brooks, Greenbrier, Arkansas, for the Amicus Curiae, Tennessee Association for Justice.

          Holly 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.

          OPINION

          HOLLY KIRBY, JUSTICE

         Factual and Procedural Background

         This 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.

         A few 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").

         Immediately 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.

         Chronology of Treatment and Evaluations

         A few days after the accident, Mr. Borne began experiencing neck and back pain.[1]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 loading cargo.

         After 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 physical therapy.

         In the 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.

         On June 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 dismissed.

         During 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 improvement."

         Meanwhile, 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.

         In 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.

         Several 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 office visit.

         In late 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.

         In July 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 capacity examination.

         Thereafter, 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.

         In 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.

         In 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.

         That 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.

         Dr. 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.

         In June 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 exercises.

         In July 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 light-duty work.

         In 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.

         Pretrial Agreement

         Meanwhile, the parties continued preparation for the trial, scheduled to begin on Monday, May 20, 2013.

         On 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 Chickasaw.

         The 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[2] 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.

         There 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.

         That 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 agreement.

         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.

         Celadon 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.

         During 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 Testimony

         The trial lasted seven days. Mr. Borne testified on his own behalf and presented both lay and expert testimony to support his claim for damages.

         At the 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's vehicle.

         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. Dietze.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         At 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.

         Dr. 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 disc.

         Dr. 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."

         Radiologist 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 source.

         Physical 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.

         Dr. 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 own.

         Dr. 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 sedentary work.

         Behavioral 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.

         Vocational 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.

         Dr. 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 case-in-chief.

         Celadon 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."

         Harold 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.

         Celadon 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.

         Celadon 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 light-to-medium-duty.

         Celadon 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.

         Rehabilitation 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[3] 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.

         Jury Instructions

         After 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[4] in?" It then denied Celadon's request for an instruction on the agreement and added, "[W]e'll cut 2.26 out."

         Celadon 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 instruction.

         Verdict, Post-Trial Proceedings, Appeal

         After 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.

         Celadon 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.

         However, 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). Celadon appealed.

         In the 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).

         In 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.

         On 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.

         As to 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.

         Judge 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).

         We granted both parties' applications for permission to appeal.

         Analysis

         Pretrial Agreement

         On appeal to this Court, Celadon's assertions regarding the agreement between Mr. Borne and Chickasaw form the centerpiece of its arguments.

         Celadon 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.

         As 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.[5] 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 witnesses.

         Raising 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.

         Celadon 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 jury.

         During 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.

         "Generally, 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)).

         Here, 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 evidence.

         Celadon next contends that the agreement resulted in Mr. Borne and Chickasaw colluding on use of their peremptory challenges.[6] 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 parties.[7]

         The 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, [8] 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.

         By 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 ...


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