McPeek v. Lockhart

• Decision Date: 24 March 2005
• Citation: 174 S.W.3d 751
• Parties: Monica McPEEK, et al. v. Melinda S. LOCKHART.
• Court: Tennessee Supreme Court

174 S.W.3d 751

Monica McPEEK, et al. v. Melinda S. LOCKHART.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

December 6, 2004 Session.

March 24, 2005.

Permission to Appeal Denied by Supreme Court October 3, 2005.

Thomas C. Jessee, Johnson City, Tennessee, and Thomas Dossett, Kingsport, Tennessee, for the appellants, Monica McPeek and Eldridge McPeek.

Leslie T. Ridings, Kingsport, Tennessee, for the appellee, Melinda S. Lockhart.

OPINION

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., and SHARON G. LEE, JJ., joined.

Monica McPeek and Melinda S. Lockhart ("Defendant") were involved in an automobile accident. Monica McPeek and her husband, Eldridge McPeek, ("Plaintiffs" or "Ms. McPeek" and "Mr. McPeek" respectively) sued Defendant. The case was tried and the jury found Ms. McPeek to be 40% at fault for the accident and Defendant 60% at fault and awarded Ms. McPeek damages of $4,000 and Mr. McPeek zero damages. Plaintiffs appeal claiming the Trial Court erred in refusing to grant an additur or a new trial after the jury refused to award loss of consortium damages to Mr. McPeek and that the Trial Court erred by allowing the introduction of certain of Ms. McPeek's medical records. We affirm.

Background

The issues involved in this appeal pertain only to the jury's failure to award loss of consortium damages to Mr. McPeek, and the admission of certain of Ms. McPeek's medical records. We, therefore, will confine our discussion to those facts directly relevant to these issues on appeal.

At trial, Mr. McPeek testified regarding his loss of consortium claim. Mr. McPeek testified he has a prosthetic leg and has "developed sugar" and told about how things have changed since the accident. He stated that prior to the accident:

She did everything for me. She, like I say, she cooked two — at least two full course meals a day. I have sugar, and in between those I have to have so much snacks ever so often, and she fixed me those. She fixed my bath water, she got my towels and everything, and she helped me to the bathroom, and a lot of times I used her for a crutch. I got her at the nape of the neck, and after the accident, I couldn't get her at the nape of the neck.

Mr. McPeek explained that prior to the accident, he either would stay with his mother, or his daughter or son would stay with him to assist him with his daily activities when his wife was working. Mr. McPeek admitted that his wife still is able to help him with his medications, help him when he tests himself, and still is able to cook supper for both of them from time to time.

Mr. McPeek testified that before the accident, he and his wife had sex two or three times a week, but stated that since the accident "I can't remember when was the last time [we had sexual relations]." When asked why the situation changed, Mr. McPeek stated: "Well, she hurts all the time — about all the time. And I hurt, and, you know, I've developed sugar, but that really doesn't have anything to do with it. I mean, it's ...." Mr. McPeek did not dispute that his wife went to Dr. McCoy, asked Dr. McCoy for something for Mr. McPeek's erectile dysfunction, and was given Viagra. In fact, he admits he has a prescription for Viagra, but claims he does not need it. When Mr. McPeek was asked if his wife was telling Dr. McCoy the truth when she said Mr. McPeek had erectile dysfunction, he replied "I don't believe that she brought it up. He had some samples in there that he gave me once before, and I hadn't used them. Then he wrote the prescriptions — he just went ahead and wrote a script for it, and it's out there in the vehicle." Mr. McPeek stated: "I don't have any problems."

Ms. McPeek also testified regarding what she did for her husband before the accident. She stated "if he goes up an incline, or down a hill or anything, he holds me around the neck to keep him from falling, because his leg don't bend like a normal leg. So he — he kind of uses me like a crutch." She also testified that before the accident, "I helped him out of the tub. El will try to help me, you know, support his self with his arms and stuff, but once he gets up, he hops and — to the bedroom, and he will hold me around the neck and hop, you know, on one leg till he gets in there till I can help him put his leg on." She testified that now her husband can't use her "like a crutch" and says he has been crawling to keep from hurting her.

Ms. McPeek testified that the accident has affected their marital relationship:

in a lot of different ways. We've — you know, I've been in pain and I can't — I used to cook, you know, meals — breakfast, gravy and biscuits, and things like that. And now I don't cook as much, because I don't feel like standing and lifting heavy pots and stuff, and — you know, for long periods of time. So I fix, you know, things that are quick, easy, and he just don't — he's got sugar so he's — I'm not fixing the big meals and things like I used to try to fix.

When asked if she helps her husband in and out of the bathtub and does other things like she used to, Ms. McPeek replied:

No, I don't. He wouldn't let me, if I — even if I would, but I don't do it, because when I do, then I hurt, and suffer, and have to lay on heating pads and stuff. So now I've been bringing the leg in there in the bathroom to him, and trying to do things like that to ....

Mr. McPeek also was asked about medications his wife was taking prior to the accident. He testified that his wife was not taking medications on a regular basis and stated: "The only time she took medication was when she had kidney stones, the tumor that — she had the tumor removed. Then after she had the tumor removed, she had two more tumors develop, and that's...." Mr. McPeek also testified that prior to the accident, his wife did not take Percocet and Lortab on a regular basis.

At trial, Defendant had a paralegal read into the record a summary of the prescription records from five different pharmacies showing the prescriptions filled for Ms. McPeek during the year before the accident. Ms. McPeek's physician testified during his cross-examination that certain specific medications, including Percocet and Lortab, are for pain. These specific pain medications were listed in the summary of Ms. McPeek's prescription records read to the jury. Plaintiffs objected under Rule 403 that these records were irrelevant and that the probative value, if any, was outweighed by the unfair prejudice and confusion of the issues. The Trial Court overruled the objection.

Later during the trial, Defendant read portions of the records of several of Ms. McPeek's medical providers into the record, and Plaintiffs specifically stated they had no objections to each of these records. Plaintiffs also read certain other portions of those same medical provider records into the record.

Discussion

Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1) whether the Trial Court erred in refusing to grant an additur or a new trial after the jury awarded damages to Ms. McPeek but refused to award loss of consortium damages to Mr. McPeek; and, 2) whether the Trial Court erred by allowing the introduction of the medical and pharmacy records.

"Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict." Tenn. R.App. P. 13(d). As our Supreme Court has explained:

It is the time honored rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury.

Crabtree Masonry Co., Inc. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.1978).

Plaintiffs argue on appeal that the verdict is inadequate because the jury failed to award loss of consortium damages to Mr. McPeek and, in the alternative, that the Trial Court erred in refusing to grant a new trial because "the jury rendered an inconsistent verdict by awarding damages to the plaintiff, Monica McPeek and failing to award loss of consortium damages to Eldridge McPeek."

Tenn.Code Ann. § 25-1-106 provides for a right of recovery of loss of consortium for a person whose spouse is injured. Tenn.Code Ann. § 25-1-106 (2000). While a loss of consortium claim is a derivative claim, it is also a distinct and separate cause of action from that of the injured spouse's claim. Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 557-58 (Tenn.2001). This Court has defined consortium as follows:

"the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation" ... loss of services is a part of the loss of consortium....

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