Borne v. Celadon Trucking Servs., Inc.

• Decision Date: 20 October 2017
• Docket Number: No. W2013-01949-SC-R11-CV,W2013-01949-SC-R11-CV
• Citation: 532 S.W.3d 274
• Parties: Donriel A. BORNE v. CELADON TRUCKING SERVICES, INC.
• Court: Tennessee Supreme Court

532 S.W.3d 274

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

No. W2013-01949-SC-R11-CV

Supreme Court of Tennessee, AT JACKSON.

November 5, 2015 Session Heard at Memphis
FILED October 20, 2017

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.

532 S.W.3d 282

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.

Holly Kirby, J.

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.

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.

532 S.W.3d 283

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.

532 S.W.3d 284

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...