Day on Torts
Where there was material evidence to support the jury’s verdict which failed to award plaintiff damages for medical expenses related to his shoulder injury, the verdict was affirmed. In Almuawi v. Gregory, No. M2020-01018-COA-R3-CV (Tenn. Ct. App. June 2, 2021), plaintiff and defendant were involved in a car accident when plaintiff was rear-ended by defendant. Defendant admitted liability, so the only issue at trial was the amount of damages to be awarded to plaintiff. Plaintiff’s complaint sought $200,000, including $27,870.21 in medical expenses, $539 for replacement of his eye glasses, and the remainder for “past pain and suffering and his loss of the ability to enjoy life.”
After a two-day jury trial, the jury returned a verdict awarding plaintiff a total of $13,796.21, which included $8,257.21 in medical expenses, $539 for eye glasses, and $5,000 in noneconomic damages. Notably, the jury award did not include over $15,000 in expenses plaintiff incurred while being treated by a chiropractor for a labral tear to his right shoulder. Plaintiff filed a motion for a new trial or, in the alternative, for additur, which the trial court denied. On appeal, the jury’s verdict and the denial of the motion for a new trial was affirmed by the Court of Appeals.
When the Court of Appeals is reviewing a jury verdict, it is “required to take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allowing all reasonable inferences to sustain the verdict, and to discard all countervailing evidence,” approving the verdict if “there is any material evidence to support the award.” (internal citations omitted). The issue here was whether the jury properly excluded damages for costs related to plaintiff’s shoulder injury, an injury for which defendant denied responsibility. The evidence at trial showed that the accident occurred on March 8, 2017, and that plaintiff did not complain of shoulder pain until almost a month later on April 5th. On the day of the accident, plaintiff’s medical records showed that he “complained of pain in his left knee, neck/back, and the left side of his face.” The next day, he mentioned pain in his “neck, mid-back, and left knee.” One week after the accident, he visited his doctor and complained of “low back pain, neck pain, and left knee pain.” The first mention of shoulder pain was a note from a physical therapist on April 5th, but at a doctor’s appointment two days later plaintiff did not complain of shoulder pain.
From July 10, 2017, through March 31, 2018, plaintiff was treated by a chiropractor for a labral tear to his right shoulder. Plaintiff asserted that this injury was caused by the accident, and plaintiff presented expert testimony from a doctor “that [plaintiff’s] right shoulder certainly was affected predominantly and neck pain from the accident itself.”
Defendant, however, provided testimony from an expert doctor that “opined that the accident may have caused the shoulder injury, but he was unwilling to state definitively that the accident caused the labral tear.” This expert stated that there are multiple possible causes of labral tears, and that while a complaint of pain within a month of an accident was “consistent with a traumatic labral tear,” he could not “say with a degree of medical certainty” that the accident caused plaintiff’s shoulder injury.
Noting that “a jury is not bound to accept the testimony of experts where the evidence is contested,” the Court ruled that “there was material evidence to support the jury’s verdict disallowing costs related to treatment for [plaintiff’s] labral tear.” (internal citation omitted).
Based on the partially conflicting expert testimony and the evidence that plaintiff did not complain about shoulder pain until a month after the accident, the Court found that it was “bound to affirm the verdict.”
Plaintiff also argued on appeal that the trial court should have granted his motion for a new trial based on misrepresentations made by defense counsel during closing arguments. Plaintiff brought up three specific issues. First, he pointed out that defense counsel stated during closing arguments that plaintiff’s wife stated that her husband was wearing a neck brace when he left the hospital, but that there were no charges for a neck brace. Plaintiff pointed out that English was not his wife’s first language and that while she did forget some terms during her deposition, she never stated that plaintiff was given a neck brace. Second, plaintiff argued that defense counsel misconstrued demonstrative testimony regarding plaintiff’s prayer movements. During plaintiff’s testimony, he was asked to step outside the witness box and demonstrate how he, as a Muslim, prayed. He did so and stated that he was not able to pray in the normal way for about two months after the accident. During closing, defense counsel discussed plaintiff raising his arms over his head during prayer and that plaintiff was able to perform that motion just two months after the accident. Plaintiff asserted, though, that he did not raise his arms over his head when demonstrating his prayer position. Finally, plaintiff argued that defense counsel’s statement that one doctor was the only one who looked at x-rays was misleading, since no x-rays were ever taken of his shoulder.
After closing arguments, the trial judge “instructed the jury to decide this case only from the evidence which was presented at this trial, and cautioned them that what is said by the lawyers during the trial is not evidence.” Notably, plaintiff’s counsel did not object to these purported misrepresentations during closing arguments. While plaintiff was correct that his wife did not use the word brace and that he did not raise his arms over his head, the Court affirmed denial of the motion for a new trial. The Court found that defense counsel’s characterization of the expert being the only one to see the x-rays was simply him presenting the evidence “in the light that was most beneficial to his client.” In addition, because the jury “heard and saw the evidence that [defense counsel] described in his closing argument,” the Court concluded that the “misrepresentations and characterizations were not persistent or prejudicial, and [that] there [was] no basis on which to find that these arguments affected the results of the trial.” The jury’s verdict was accordingly affirmed.
This case illustrates how difficult it is to challenge the amount of a jury verdict on appeal. The material evidence standard is quite low, and “it matters not a whit where the weight or preponderance of the evidence lies under a material evidence review.” (internal citation omitted).
NOTE: This opinion was released less than two months after oral arguments in this case.