*1 judgment of Accordingly, reverse the we investment/brokerage of the trustee predis- Appeals, vacate the order agreement includes Court account arbitration, binds minor pute provision compelling arbitration trial court arbitration beneficiary the trust pro- court for further the trial remand the Tennessee provision. We hold with this ceedings Opinion. consistent gives trustees broad Uniform Trust Code equally taxed appeal of this are Costs into authority to contracts enter Alexander, Jr., and Appellants Albert as fulfilling their duties trustee. course of Securities, Inc., and their sure- Wunderlich Uniform the Tennessee also hold that We Harvey, Jr., ty, Appellee rel. ex Wade power gives Trust trustees Code Gladden, for which execu- Alexis Breanna agree arbitration predispute into enter issue, necessary. may tion if ments, long doing prohibited as so is so not operative trust instrument. We

under the in this Instrument case

hold that Trust authority and does

gives the Trustee broad prohibit entering into the Trustee agreement. arbitration Con predispute

sequently, interpret Trust Instru we authorizing the ment Trustee execute A. Donriel BORNE Agreement, pre- including Client Thus, dispute therein. provision arbitration Uniform Trust Code under the Tennessee CELADON TRUCKING Instrument, had Trust the Trustee SERVICES, INC. authority to enter into the arbitration agreement within Client contained Tennessee, Supreme Court of Agreement. Benton v. Under Vanderbilt JACKSON. AT 614, 616 University, 137 S.W.3d 2004), beneficiary who third-party did 5, 2015 Session November containing an arbitra sign contract Memphis Heard at required provision may tion to arbitrate be FILED 10/20/2017 against signatory claims to the contract party that a who principle under the third of a contract must

seeks the benefit also Applying principle,

bear its burdens. beneficiary may

the Trust this case against Wunder-

bound to arbitrate claims Agree

lich that seek enforce the Client of the

ment. reverse the decision Court We and vacate the trial court order Appeals

compelling arbitration all claims. We to the trial court for the case

remand proceedings, including a determi

further

nation Plaintiff is a third- as whether beneficiary Agreement

party Client which, any, if of the claims asserted Agree seek to the Client

Plaintiff enforce

ment.

278 *8 Bickers, Ryan Conner,

Thomas A. M. (on Dwight E. appeal), and Tarwater Knoxville, Tennessee, and Jim Summers (at Kevin W. trial and and Washburn Tennessee, Memphis, ap- for the appeal), Trucking Inc. pellant, Services/ (at appeal) R. trial Thomas Greer and (at trial), Bailey Memphis, R. and Sadler Tennessee, for the A. appellee, Donriel Borne. Tennessee, Smith, rulings we the trial court’s Bryan Memphis, appeal, affirm

W. agreement. Vail, D.C., regarding pretrial We find Brian G. Washington, and John in trial court’s no error Greenbrier, Arkansas, decision Brooks, for on su- special a give instruction for Curiae, Tennessee Association Amicus of perseding hold that Court cause. We Justice. authority suggest Appeals had finding that further remittitur absent a OPINION trial jury’s by the award—as remitted J., of Holly opinion Kirby, delivered boundary uppermost of court—exceeds Bivins, C.J., Court, Jeffrey in which S. the evi- range under reasonableness J., Clark, Sharon joined. Cornelia A. trial, Court so we dence reverse J., concurring in Lee, opinion filed an G. for loss Appeals’ remittitur the award part. dissenting part As to trial enjoyment of life. court’s of sequential out rear- appeal This arises remittitur, sharply of the conflict- view involving tractor trail- collisions three end plaintiffs damages, the ing evidence on the plaintiffs tractor trailer vehicles. The er court’s indicate the reasons trial failure by a tractor trailer owned was rear-ended suggested for its remittitur leaves us un- defendant, which was in turn rear- by the able to determine whether the evidence plain- tractor trailer. The ended a third and, preponderates against remittitur and drivers both tiff sued the owners proper consequently, unable conduct trailers, seeking compen- the other tractor trial remitti- appellate review of the court’s trial, injuries. personal for Before sation Accordingly, tur decision. we remand the agreement into plaintiff entered for explanation to the court case third tractor trailer the owner of the with remittitur of suggesting reasons take adverse that neither would action reason, jury’s award. For same other to the owner of Appeals was without sufficient Court owe the third tractor trailer meaningful re- perform information to any judgment half of entered plaintiff remitti- suggested view of the trial court’s tractor against it. owner the third tur, Appeals’ so we vacate Court on a directed trailer was later dismissed the trial remitti- decision court’s reverse returned verdict. verdict earning capacity. tur of the on lost award The trial plaintiff against the defendant. Appeals Court of The decision of the the defendant’s motion denied part, part affirmed and reversed and, little also explanation, new trial court for the case remanded suggested verdict further proceedings. categories damages four awarded. all Background Factual and Procedural appealed, the Court

After defendant rulings Appeals court’s affirmed out of acci- This case a vehicular arises agreement between regarding pretrial Tennessee, involving in Memphis, dent *9 of the third plaintiff and owner Thirty-year- tractor three trailer vehicles. Regarding trial court’s tractor trailer. Plaintiff Donriel Borne worked old remittitur, Trimac, Appeals company the Court reinstated driver for truck 1, 2009, earning capacity, July lost air On Mr. products. award delivers tanker, suggested driving to the a Trimac a trac- further Borne was life, vehicle, enjoyment employer. for his award for loss of and tor trailer When backup traffic in the re- affirmed remitted award he encountered a interstate, stopped. then maining categories damages. two On he slowed and Borne, restrictions, Immediately Harold Dietze behind Mr. issued further work meet, which driving was a tractor trailer truck Trimac so Foster could Mr. working Borne altogether. In by Trucking Defendant Celadon ceased owned Feb- 2010, ruary Services, (“Celadon”). magnetic Dr. Dietze ordered a Inc. was Mr. Foster (MRI) imaging resonance scan. stop The scan unable his vehicle and rear-ended showed a central disc herniation at the L4- impact Borne’s truck. The Mr. caused 5 level. Dr. subsequent Dietze’s treatment to Mr. damage Borne’s and vehicle of Mr. Borne facet spinal included and front of the Celadon vehicle. injections, which provided short-term re- later, A few seconds the Celadon vehicle Dr. lief. Dietze concluded Mr. Borne’s by from struck a tractor trailer was behind pain by was caused the L4-5 central disc by Steve Mr. Donde- driven Dondeville. herniation, began assessing and so Mr. ville’s vehicle owned Chickasaw possible Borne surgical as a candidate. (“Chickasaw”). Services, Container Inc. 2010, On June Mr. Borne filed the accident, Immediately after Mr. Celadon, instant against lawsuit Fos- Mr. up Borne was shaken but not much ter, Chickasaw, Mr. Dondeville and driving He finished his pain. route and Shelby Circuit Court for County, Tennes- Louisiana, returned the Trimac tanker Mr. sought compensatory see. Borne dam- Trimac is where based. ages injuries for personal he sustained 2009 accident. The answer filed Chronology Treatment liability, Foster and Mr. denied and Evaluations Borne, alleged comparative fault Mr. accident, days A after Mr. few Borne Chickasaw,, and Mr. as- and Dondeville,, began experiencing pain.1 neck back serted the defenses unavoidable acci- sought first from his family He treatment independent dent and intervening cause. time, During this Mr. physician. remaining an defendants filed answer continued to work as a tractor trailer driv- denying liability, discovery Af- ensued. er, including pre- associated with tasks discovery, against ter some the claims Mr.. trip inspections and maintenance and load- Foster and Mr. Dondeville were voluntari- cargo. ing ly dismissed. After about six months of treatment time, During this the treatment and his family physician, Mr. Borne found evaluation of Mr. condition contin- Borne’s In pain. that he was still December compensation ued. The carrier workers’ stopped he as a truck working driver Thomas, M.D., Najeeb hired board certi- pursued compensation workers’ neurosurgeon, fied Mr. to evaluate Borne’s claim. In connection the workers’ with. condition. In Dr. September Thomas claim, phy- Borne saw a compensation Mr. performed independent medical exami- provided by employer, sician his who (“IME”) nation Mr. At Borne. light duty him on sent him

placed time, complaining Mr. Borne was low physical therapy. pain, pain, back neck and some numbness period, tingling.in legs the same Borne’s attor- After and toes. see ney reviewing recommended that he board certi- February Borne’s Dietze, MRI, neurosurgeon M.D. Dr. Dr. fied Donald Thomas that Mr. concluded below, subject discussed further Mr. Borne trailer As accident is the of this *10 injury accident that involved an automobile oc- lawsuit. Mr. Borne sustained a neck (cid:127) before curred about two weeks the tractor time off work. accident and took n ... pain his experiencing “simply some weeks low. back and that had Borne visit. increased since his last office back strain.” Dr. said that Mr. low Thomas appear to pain did not be “disco- Borne’s 2011, early late In and June about May nature, so he genic” in recommend did April after the two months vehicular injec- surgical further intervention accident, therapist Courtney physical Rob- tions; Instead, he physical recommended erts, DPT, performed capac- the functional of the Upon therapy. completion physical Borne ity Mr. evaluation ordered Thomas that Mr. therapy, Dr. believed Dietze. Mr. Dr. Dr. Roberts reviewed “likely at maximum Borne medi- interviewed-, records, Borne’s medical him nnn improvement.” cal had, perform then Borne length, at and Mr. series of exercises tests assess his and Meanwhile, to assess Mr. Borne abilities, of pain. and level Af- restrictions would, surgery, Dietze benefit Dr. from work, ability assessing Borne’s ter Mr. discogram. a lumbar The disco- ordered physical Dr. further Roberts recommended shortly after Thom- gram place took Dr. therapy for him felt he would expected It as’s IMÉ. showed the abnor- from it. benefit L4-5, that' but it at did indicate malities 2011,. request In at of Mr. “pain genera- were the those abnormalities attorney, analyst Borne’s vocational An- tor” After Dr. re- for Mr. Borne. Dietze Gamboa, Ph.D., thony did assessment discogram, he ceived results of how Mr. Borne’s limitations physical “off surgery took the table” concluded but to work capacity had his earn affected a medi- that Mr. Borne benefit from could money. perform To his on Mr. assessment procedure rhizotomy, which cal called Borne, Dr. Dietze’s Dr. Gamboa reviewed spine, the facet area directed Mr, records, history, work Borne’s medical intradiscal treat- well as an electrothermal evaluation, earning and vocational records However, ment the disc. directed Dr. Roberts’ May/June functional compensation carrier workers’ declined examination, capacity that, After Dr. authorize such treatments. Thereafter, April 2011 to October Borne Dietze declared Mr. had participated Mr. Borne in the exten- improvement reached maximum medical therapy physical Dr. Roberts recom- sive im- Mr. Borne with a 10% assessed for him her capacity mended functional rating. pairment Dr. Dietze ordered responded evaluation. Mr. Borne well capacity evaluation Borne functional of-Mr. physical therapy. By April Mr. by physical therapist. pain significantly, Borne’s diminished had In Borne was April Mr. involved he to reduce his use of was able medi- in- another motor vehicle accident. In.this cation, improved gait, ability his and he his cident, an- Mr. Borne’s vehicle rear-ended distances, ability engage his walk other vehicle. collision shattered At con- in activities around house. and.dented, other vehicle’s rear windshield Dr, clusion, Mr. Borne to Roberts released both vehicles. and physical therapy continue exercise his own. April after 2011 colli- Several weeks

sion, presented Dr. Dietze request' January Mr. at the of Cela- complaining don, again, this time an increase vocational rehabilitative counselor pain right pain. Seyler performed low back knee a vocational reha- .and Carla right knee Borne told Dr. Dietze that on Mr. Prior bilitation examination Borne. Borne, pain during,the Seyler Ms. prior meeting increased two to had *11 information about him In June- regarding compensation obtained workers’ education, history, his neurosurgeon work medical performed Thomas Dr. an- condi- tion, physical She and restrictions. re- on other IME Mr. In updated Borne. records, his medical viewed IME, did vocational Dr. Thomas that, though concluded testing, report and and reviewed sub- Mr. strain, Borne had sustained a lumbar sequent testimony of physical therapist improved. his had condition opined He that Courtney jobs Roberts. then at She looked work, Mr. light-duty Borne could do. and community in Mr. Borne’s available possibly duty medium work. Dr. Thomas Borne to an prepáre opin- interviewed Mr. think did that Mr. benefit would Borne ion as to Borne Mr. would be able from, rhizotomy. or surgery, either He making make same income he was recommended that Mr. Borne .us- continuo . at the time Celadon-accident. ing the Flexeril medications and Lodine as program his continue of home needed and early

In March asked back-strengthening exercises. neurosurgeon Robert’Ap- board certified M.D., plebaum, Borne. examine Mr. Dr. (cid:127) July at request In Mr. Applebaum’s attorney letter Celadon’s attorney, Borne’s behavioral health re- Mr, regarding the examination that stated Cates, Greg habilitation C. counselor Ed. “may injury have sustained an Borne D., performed a vocational evaluation his an over neck accident two back Mr. Borne. Dr. Cates Mr. reviewed years ago. and a half Examination records, psychological Borne’s medical as- any significant time current does not show sessments, and functional assessments. He neurological findings.” mechanical Dr. Borne and observed him. Mr. interviewed Applebaum to review recent offered Dr. Mr. assessed Borne’s work loss Cates diagnostic studies on Borne. Mr. scenarios, crediting first Dr. under three month, That same March Dr. that initial assessment Mr. Dietze’s Borne Mr, Dietze ordered second MRI on capable performing sedentary is not radiologist Borne. Certified Lawrence Glo- work, crediting then the assessment that rioso, M.D., interpreted Among the MRI. sedentary work, Mr. can perform Borne things, other opined Dr. Glorioso that Mr. crediting finally .assessment an Borne had fibrosis annular light-duty suffered perform, Mr. Borne can work. tear He consistent trauma. 2013, leading up to early the sched- spinal think Borne’s did Mr. condition trial, to receive uled Mr. Borne continued spine problems. from chronic resulted from Dr. Dietze in effort to treatments Dr. also the March Applebaum reviewed pain improve relief provide temporary MRI; differed interpretation functionality. that of Dr. Applebaum Glorioso. Dr. noted bulge that the MRI a moderate showed Agreement Pretrial level, the L4-5 but he did not feel that it Meanwhile, parties prepa- continued clinically significant. He indica- saw trial, begin scheduled ration tion nerve root herniated disc irrita- 20,2013. Monday, May tion. Applebaum also the De- Dr. reviewed Friday, 17, 2013, cember 2009 of Mr. lumbar On May Borne’s counsel x-rays Celadon’s, spine. In x- Applebaum’s opinion, attorneys Dr. Mr. Borne advised rays Borne and Chickasaw had en- indicated had mild-to degenerative changes agreement. moderate tered into a Urider written predated agreement, agreed the parties accident. that.Chicka- *12 accident, Mary Carter upon use fault that based was not at saw cooperate Agreement Mr. Borne would and the collusion between Chickasaw and Borne proceedings, in the that Mr. plaintiffs and the counsel Dondeville in the no action to Chickasaw take adverse Tjhey togeth- jurors[. worked striking trial, owe Mr. and that Chickasaw would just putting er to them. And we’re strike judgment any Borne half Both Chickasaw and that on the record.” might against be Chickasaw. entered argued issue judge again responded, On the trial began as The

The trial scheduled. waived. trial, morning day first counsel not otherwise rule on the “Okay,” but did court of for Celadon advised motion. and Mr. agreement Chickasaw between argued agreement then Celadon a Mary it characterized as Borne. Celadon into admitted evidence and made be should it agreement2 argued that Carter impeachment. for Chickasaw ob- available be into made should admitted evidence jected admitting agreement the written to purposes. Cela- impeachment for available agreed into as an exhibit but evidence expressed attorney concern that don permitted be to read Celadon would planned that he Chickasaw had indicated agreement into “word for evidence word” challenges peremptory to use Chickasaw’s during case-in-chief and could ask wit- its possibly of Mr. Borne and benefit agreement. nesses about The to the detriment Celadon. ruling on whether the reserved objection time to at that There was an ex- agreement written could made to request the written Celadon’s use hibit, parties it noted had but to Cela-

agreement at trial. response agreed agreement could be refer- request, judge “Okay” said don’s into and read evidence. enced no ruling. but otherwise made day, during statements, the voir dire of That same During opening' counsel for Mr. Borne jurors, counsel potential agreement to the with Borne referred Chickasaw, agreement referenced Chickasaw, and counsel for Celadon read a al- objected. trial court and Celadon portion jury. it to trial record poten- to attorney Mr. Borne’s ask lowed that, during ensuing presen- indicates jurors any they might opinion tial about proof, tation of Celadon’s Celadon did of an Mr. Borne agreement between evidence, agreement read into use the Chickasaw, permit but declined witnesses, impeach agreement agree- him discuss content seek introduce it an exhibit. The ment. up agreement again not come did until a motion day, The next filed proof. parties’ after the close both agreement into admit the written use trial. it at After Testimony Trial announced, sworn, Celadon selected and days. lasted seven Mr. Borne record, The trial preserve the this time

“[T]o presented own behalf going panel to move strike testified we’re (Fla. below, Carsten, Aug. So.2d some 2. As further courts dourian v. discussed 26, 1993), public policy, Mary agreements, be violative of consider so-called Carter generally type agreement though approve either their others named found after Co., permit use them under certain circum Mary Booth Carter Paint So.2d (Fla. 1967), abrogated See note 6. Dos stances. Dist. infra testimony expert support both dent lay and with the Celadon vehicle. After this *13 damages. accident, his claim to hospital emergen- he went cy diagnosed room was with whiplash. and testimony,'' At of his the outset Mr. result, As he took approximately a a week how July Borne 2009 acci- described Mr, off from work. Borne maintained that Mr. dent Borne occurred. described the pain residual from the June 2009 acci- impact with Celadon vehicle as a dent had resolved the time the that impact “hard” the hood of caused his 2009 accident occurred. to pop tractor open damaged trailer and the front of the At Celadon truck. that Mr. acknowledged Borne also he was time, he not aware that the was Chickasaw on another April accident involved tractor trailer rear-ended the Ceiadon 2011, years nearly two after Celadon immediately truck after the truck accident, accident. In that Mr. Borne’s ve- struck Mr. Borne’s vehicle. “bumped” hicle a van in front him. It Mr. progression Borne described the of dented other vehicle and “shattered” his symptoms and his overall treatment. that, rear He windshield. conceded He his outlined decision to seek treatment April when he disclosed the 2011 accident physician from family pain his for low back physical to. the therapist who evaluated continuing while to drive tractor trail- .him, Roberts, Dr. he to her indicated er, and his decision six later to months file it just was a and that it fender-bender compensation a workers’ claim. After the damage to caused either vehicle. workers’ compensation physician restricted agreed physical Mr. Borne ther- to light-duty him work and recommended Roberts, apy with Dr. completed April doctor, said, that he own see Mr. Borne his functionality had to improved his attorney his him to neurosurgeon referred point twenty-five pound that he a could'lift Dr. Dietze. improvement box. The the physical injuries Mr. his Borne how described therapy Mr. allowed Borne reduce his work, ability engage had affected his anti-inflammatory intake of medication and hobbies, normal activities. and do He en- point only muscle relaxers to the that he truck; joyed driving being a he missed took them he activities. when overdid He being truck driver and able earn exercises, said he home does walks accident, living. enjoyed Before the he had treadmill, every and he walk and his wife hunting fishing. injury, Since his Mr. this, Despite day. other Mr. Borne it said said, Borne can fish if he his wife understanding Dr. his Dietze had helps get him boat in his and out him sedentary not released do even water, goes hunting, he and when he sits work.' in a chair in the woods. said He that he yard does if work household chores he wife, Williams, Mr. Borne’s Tamara cor- able, not but sometimes he' is able. Mr. testimony. his the acci- roborated Before Borne has not worked since Celadon dent, said, she Mr. Borne was hard accident and has instead drawn workers’ “handy” person yard who worker did compensation inability benefits. His house, things work around the he him depressed work has left and worried accident, his mother. helped also After the pay living expenses. about how he will his upset Borne to no longer able help her mother Mr. Borne conceded he was in- work and his accident; way in an before the Ms. volved automobile accident June he did 18, 2009, two acci- Borne about weeks before the described Mr. as de- Williams func- 2011 functional evaluation he

pressed.- agreed capacity that Mr. Borne’s She ordered, capable Borne he tionality improved physical did when performing After Mr. sedentary work. therapy Dr. Roberts. Dr. completed physical therapy trial, Dr. neurosurgeon At Mr. Borne’s recommended, functionality Roberts degree of Dietze testified a reasonable However, improved. Dr. Dietze did certainty, had suf- that Mr. Borne medical updated capacity functional evalu- order injury permanent fered a musculoskeletal *14 Dietze kind ation. was asked what Dr. 1,2009 Dr. July accident. as result if Mr. Borne to' work be able do would Dietze his course of treat- first detailed successful; rhizotomy were recommended 2012, In Dietze ment for Borne. Dr. Mr. that physical therapy Dr. Dietze noted pain perceived that Mr. increased Borne’s very Dr. well and with Roberts' went that 2012, he an so ordered and between improved had documented therapist tak- compared the MRI updated MRI and said, “I strength He functionality. and then & the one taken in 2012. He en 2010 with think at he' could meet seden- do least accel- comparison showed an said say light tary, light—possible I and would L4-5 degeneration erated of Mr. Borne’s duty, range.” in somewhere that beyond normally disc what' would occur He Dr. part aging process. Radiologist felt that Glorioso testified about' logical interpretation performed most for the accelerat- his MRI explanation degeneration injury the L4-5 on Mr. Borne viewing ed an March was in After 1,2009 MRI, opined Glorioso July Dr. disc accident. that Borne had an annular fibrosis suffered that, reaching Dr. Dietze in. conceded tear, level, a disc herniation at L4-5 opinion-, did not being he recall aware levels, bulging discs at L2-3 and L3-4 that Mr. Borne had been automobile arthrosis, signs con of facet which is and accident two weeks before degenerative spinal problem. sistent awith accident with Celadon vehicle. addi- Dr. fibrosis Glorioso said that the annular tion, Dr. Dietze of Mr. told source, generating tear pain could be April Borne’s 2011 traffic accident when at the herniation L4-5 was consistent with May complain- him Mr. Borne saw likely pain generating trauma and was ing that he pain had increased knee had source. for about two and increased low weeks pain therapist (cid:127)Physical back as well. Dr. Dr. Roberts testified Dietze learned Dr. for April procedure a later outlined accident time. as well. She her at acknowledged performing Dietze capacity that 2011 acci- the functional evalua- dent, if significant enough, pro- May At early could tion June 2011. late time, for the that duced sufficient trauma account she Mr. Borne concluded degeneration capable “not quite performing Mr. Borne’s sed- accelerated activities,” entary disc. work the lowest level activities, sitting most involving work for diagnostic he Dr. Dietze did said tests of the time with occasional peripds walk- pain Borne his indicated ing standing. At the conclusion functionality rhi- would benefit from a evaluation, capacity functional Dr. Roberts zotomy, burning of certain nerve end- physical therapy recommended further ings, they seeking approval for were Mr. Borne. compen- from procedure the workers’ that, that, He at the Dr. October sation carrier. noted time Roberts testified therapist April physical performed Dr. Mr. Borne Roberts underwent ¡-assumed physical she therapy quently, extensive had if that Mr. Borne for him. perform work, recommended Roberts said sedentary Dr. can Dr. Cates physical therapy sig- resulted loss felt -his of vocational opportunity improvement in nificant Mr. Borne’s func- jobs be 95-98% of with directly tionality. By April report- Mr. Borne Assuming transferrable skills. Mr. Borne that his pain ed levels had down improved, work, perform light-duty could Dr. Cates a 2 at times on a of 10. He scale loss of opportuni- his vocational calculated fish, cook, carry was able to a cooler filled ty approximately jobs 93% for with di- twenty-five pounds, shrimp, lift with and rectly skills, transferrable 58% loss for walk and stand two hours over jobs skills, generally transferrable Strawberry festival. He took medication 45% loss for jobs. Put differ- unskilled pain mainly his on the when he weekends that, ently, opined if Dr. Cates Mr. Borne activity. Mr. overdid increased capable performing were deemed seden- *15 house, improved around the activities his work, or tary light-duty he avail- would be gait, ability long enhanced and his walk jobs. able 55% of unskilled conclusion, distances. At the Dr. Roberts Anthony analyst Vocational Gamboa tes- released Mr. Borne to exercise continue at tified his about economic assess- physical therapy and on own. his ment Mr. physical Borne’s limita- how Dr. was not to update Roberts asked capacity tions had affected his to work and capacity her functional evalua- June 2011 earn money. Dr. vocational Gamboa’s eco- completed tion after Borne Mr. rec- nomic assessment was on based Dr. therapy. round of ommended physical records, Dietze’s Borne’s medical work Mr. However, trial, at the on time based history, earning records and vocational during of Mr. observations Borne her evaluation, Dr. and Roberts’ June 2011 physical therapy, opin- Dr. Roberts’ capacity functional evaluation. Based improved ion that Mr. Borne had information, this Gamboa concluded Dr.. point probably that could sed- he. perform nor that Mr. Borne could neither sit stand entary work. time,- periods of so he could for. extended Behavioral health and- rehabilitation sedentary type do work that counselor Dr. Cates testified at about sitting would him allow alternate Mr., his vocational evaluation on Borne. standing. .these and Mr. Given restrictions Mr. reviewing After medical rec- Borne’s reading comprehen- Borne’s low level ords, assessments, psychological and func- sion, opined Dr. he Gamboa would be that assessments, Dr. tional Cates observed perform only jobs able about 2% length Mr. Borne and interviewed him employ- the labor market. that He felt education, age, his history. and work about ers would be someone like hire reluctant Crediting Dr. Dietze’s initial assessment Mr. Borne had out been work who Mr. capable perform- not that Borne parameters, several Given Dr. these work, said, years. ing sedentary Dr. Cates then Gamboa Mr. as described Borne essential- unemployable work loss he and his. average ly. “unemployable.” alternative, Based would be 100%. even heavy .earnings Louisiana truck driver’s crediting indicating the assessments dollars, projecting Mr. Borne perform Mr. Borne or sedentary light can age, sixty, work, continuing until to work Dr. Dr. felt employers Cates were Mr, lost respond calculated Borne’s earn- likely length well of Gamboa Mr, ing $1,334,647.. time capacity been off Borne work. Conse- had in- type vehicles acknowledged cal- information about that his

Dr. Gamboa weight ca- and dimen- earning lost volved such as their culation of Mr. Borne’s sions, knowledge of the the accident location. viewed pacity was done without functionality Focusing impact, compared after -improvement in his on the he physical months of Borne’s medical rec- completing several information with Mr. ords, If weight, Dr. it is assumed and the wit- therapy height Roberts. his or light-duty inju- perform descriptions that Mr. Borne can Borne’s nesses’ Mr. work, said, then Dr. Gamboa sedentary the force ries. Mr. Morr concluded vocational economic assessment July acceleration of accident very, very be done in a different “would with the- cervical were consistent (cid:127) earning capacity his way,” and loss of Borne claimed injuries lumbar Mr. However, Dr. be -less. Gamboa

would that he sustained accident. only per- pointed out Mr. had opinion presented also testi- jobs past, in the such physical formed Thomas, neurosurgeon mony Dr. driver, a truck working as so welder request examined Mr. Borne at who light-to-sedentary experience lack compensation Dr. his workers’ carrier. competitive jobs put him at a disad- performed in Thomas an MRI reviewed applying jobs. This vantage those February 2010 and concluded that testimony concluded Borne’s case-in- low back strain. Dr. Thomas Borne had *16 chief. again Borne after examined Mr. in re- presented then evidence Celadon completed physical Mr. Borne had from presented testimony It first sponse. therapy Dr. Roberts. Dr. Thomas de- vehicle, Tal- passenger Mr. Borne’s termined that Mr. Borne’s condition had Generally, Mevers’ madge Mevers. Mr. his improved since visit significantly first with the testimony about accident how func- that he had reached maximum and vehicle Mr. Celadon occurred corroborated felt improvement. tional He that Mr. Borne’s version of the events. Mr. Mevers lumbar or Borne’s condition was strain from impact the Celadon described Dr. that it be arthritic in nature. could “pretty good pound.” as a little vehicle that, Mr. opinion Thomas was of the while work, heavy-duty he Borne could not do Foster,

Harold driver the Celadon or light-duty perhaps could do work even vehicle, gave ac- tractor trailer a similar light-to-medium-duty. work was count of how How- accident occurred. ever,' he Foster “didn’t hard- Mr. said testimony Celadon offered also ly anything” his rear- feel when vehicle neurosurgeon Applebaum. Ap- Robert Dr. tes- Mr. Borne’s vehicle. Foster ended Mr. Mr. Borne his plebaum examined after impact from the subsequent tified Roberts, therapy with Dr. and he physical rear-ending vehicle Chickasaw records, including his medical reviewed it. light so that he

vehicle was feel did MRI films Dr. Glorioso relied and read Applebaum testimony Douglas upon by Dr. Dietze. Dr. con

Celadon offered Morr, likely engineer per- had no dis who cluded that biomechanical Borne involving spinal or cord or damage a forensic ease formed accident reconstruction no signifi and that there were July 2009 accident. Mr. Morr exam- nerve roots neurologi records cant neck or mechanical photographs repair ined the' back vehicles, degenerative damage findings.1 He found to the reviewed cal police reports deposition testimony changes spine in the lumbar that would occurred, predated an accident on how the accident researched Applebaum Dr. disc able to job making noted moderate would be secure a bulge at the L4-5 level but felt that was money equal amount of ex- significant. Dr. clinically Applebaum ceed what he was making at the time of of impairment found no con- the accident. degree to a medical

cluded reasonable certainty return could Jury Instructions any occupation work in for which he was qualified. otherwise proof, After the close-of Celadon asked judge give the trial an instruc Seyler Rehabilitation counselor Carla tion pretrial about the agreement between behalf of also testified on Ms. Celadon. Mr. Borne and Borne ob Chickasaw. Mr. Seyler performed her vocational rehabilita- jected evidentiary that there nowas basis tion examination Mr. Borne after he agreement an instruction because the physical completed had Dr. therapy with into Borne, never admitted evidence. Celadon Roberts. She interviewed Mr. re- responded that the trial had never history, viewed and educational his work ruled Celadon’s testing. request and did on. admit the vocational She reviewed records, agreement into medical including Mr. Borne’s evidence. The trial court Applebaum, questioned those Dr. Dietze and Dr. agreement therapist well as the records physical light relevant in the fact Chickasaw interpreted Dr. Roberts. the records She had been dismissed from case. The Dr. Dietze3 Dr. Roberts as indicat- “If attorneys, court asked the we do ing per- that Mr. Borne would be able Mary Agreement go let'the Carter back light-duty work, form sedentary and she 2.26[4] jury, then do we in?” It want Applebaum’s interpreted Dr. records as then denied for an request Celadon’s in indicating that Mr. Borne could return added, agreement struction on the *17 (cid:127) with work no restrictions. Un- regular (cid:127) “[Wje’ll 2.26 cut out.” evaluation, Seyler either physical der Ms. requested special also jury .a opined, Borne would Mr. be able to secure on superseding Initially, instruction cause. education, job compatible a with his wórk Borne Mr. to the consented instruction. restrictions, history, physical and he however, Subsequently, object- Borne replace to prior would be able his income instruction, superseding ed to a cause con- July To 2009 accident. overcome the tending any that there that proof no was three-year history, in his gap work Ms. than July accident other acci- Seyler spend that suggested Mr. Borne Mr, the-Mkely dent Borne’s cause period working jobs of time short-term service, temporary injury. The trial Celadon’s gradually get back court denied into After a tran- for a period superseding the workforce. cause request instruc- (cid:127) sition, asserted, Seyler Ms. Mr. Borne tion. Ms, Seyler interpreted opinion compromised Dr. has Dietze’s and settled the lision] , stating able Borne would only purpose witness’ claim of de- for the perform light-duty work once he the rhi- had ciding any whether or has not that witness zotomy Dietze Dr. recommended. may interest bias in You not this case. any consider admission of as an settlement Jury

4. Tennessee Pattern Instruction—Civil liability damage. loss provides: 2.26 Jury Prac. Pattern Tenn. Instr. T.P.I.—Civil may You consider evidence that a witness ed.). (2013 2.26 who also involved in [col- this incident Servs.,

Verdict, Proceedings, Inc., Appeal Trucking Post-Trial No. W2013-01949 COA-R3-CV, at *2 WL deliberations, After returned 31, 2014), perm. app. Mr, jury- Borne. The in favor verdict 18, 2014).- granted Dec. earning $1,455,000 him for loss of awarded $750,000 for capacity, physical pain and argued In Borne response, Mr. that Ce- $750,000 for suffering, permanent mental any objections to the waived ladon had $750,000 injury, enjoyment for loss agreement- He also con- with Chickasaw. $3 n 705,000. life, for a total verdict by sug- trial court-erred tended gesting any jury’s remittitur of verdict. or, a motion for a new trial Celadon filed Id. at *2-8. alternative, for in the a remittitur 'award, jury’s The court denied Appeals of- appeal, On the Court ren- for a trial. motion new As to dered divided Celadon’s opinion. with arguments agreement on the Chicka- However, granted the trial court Cela- saw, not it had noted that Celadon con- request for remittitur of don’s agreement tended at trial violated verdict, The trial order court’s noted public policy; Celadon raised the ar- it not find that acted did gument in motion trial. new Under “passion, prejudice or but caprice,”- circumstances;, Appeals the Court those the award “excessive.” The deemed held, any argument on Celadon waived cate- suggested a court these *5, validity agreement. Id. at gories:' earning capacity reduced loss .-that intermediate- court found $1,100,000; $1,455,000 to pain from per- (cid:127) its discretion in did abuse suffering $750,000 reduced- from mitting agree- limited discussion from. $500,000; permanent injury reduced during jury ment selection and declined $750,000 $100,000; enjoy- and loss of trial, -on grant court’s Celadon relief $750,000 to ment of life reduced jury panel. Id. at failure to strike the *8.. Thus, $400,000. suggested, the trial court Appeals found error Court the. $1,605,000,reducing the total remittitur of grant trial court’s decision Celadon’s $3,705,000 $2,100,000. total award from request agreement into evi- Mr, to admit the trial, accepted of a new lieu dence, after request since the came See protest. award reduced under close,of.proof no refer- and there had been 20-10-102(a)(2009). § Ce- Tenn. Ann. Code *18 agreement during proof the the ence ladon appealed. phase of It held the trial. Id. that *10. assert- Appeals, the' Court of Celadon any objection to the had Celadon waived Borne agreement ed the that between Mr. for request jury its court’s denial of trial As’ policy. and Chickasaw violates public failing to agreement by instruction on the such, argued, the trial erred Celadon for its motion new trial. raise the issue declining jury panel, the admit strike upheld Id. the Appeals Court also evidence, the into the agreement give and superseding trial denial of cause court’s agreement request- instruction on the jury - It that instruction. Celadon’s concluded Celadon also by‘Celadon. ed contended theory presented simply question declining to that the trial court erred cause-in-fact, given so jury the instructions jury instruct the on superseding cause. legal proximate cause and cause were the Celadon that trial court’s maintained Id, at sufficient. *17. jury remittitur of the verdict insuffi- was' n As damages, appellate sug- majority cient and’asked the court to affirmed gest permanent injury a further Borne v. for for remittitur. Celadon awards and pain by suffering and the trial Borne and as reduced Chickasaw form the center- It suggest- court. reversed the court’s trial piece arguments. of its for ed remittitur the award loss of earn- ’ agree- Celadon contends that first ing capacity jury and award reinstated ment violates Tennessee public policy, so $1,455,000. for As to the loss of award the trial court by failing erred to inváli- life, suggested enjoyment of majority agreement date vacate jury and remittitur, reducing its own that further verdict. argues agree- Celadon that $400,000 as remitted award Thus, $50,000. ment misleading had effect of court down ma- jority Appeals approved jury, amounting of the Court a' to a violation Celadon’s of $2,105,000. total to Mr. award Borne Id. right I, to a article section under at *33. 6 of the Tennessee Constitution. It asserts agreement disregarded link

Judge separate Steven Stafford filed liability, dissenting ip.part majori- from the between fault opinion, thus circum- ty opinion. Judge comparative concurred with Stafford Tennessee’s venting sys- fault rulings majority’s respect with to the tem subverting administration, issues, procedural agreed he also justice. agree- Celadon maintains its reversal the trial court’s remittitur ment integrity compromises the of the le- earning for loss of capacity. award gal profession justice system, and the ma- However, below, fully as discussed more nipulates the process, and furthers Judge disagreed proce- Stafford with the lawyers perception duplici- are majority suggest- followed dure justice tous system and the is untrustwor- ing own jury’s" further remittitur of the reasons, thy. argues For these enjoyment Id. loss life. award grant trial. should a new we (Stafford, J., dissenting *34 in part). granted parties’ applications We both of Appeals, As noted the Court permission appeal. trial, in its motion new Celadon charac agreement with Chick terized Mr. Borne’s Analysis “Mary agreement asaw as a Carter” Agreement

Pretrial validity.5 Howev generally questioned its Celadon,did er,. itself, Court, during the trial . On as- appeal Celadon’s regarding agreement sertions argue between invalid agreement Celadon, do, agree- they acknowledged by As course since it have an incentive plaintiff ment between Mr. and Chickasaw is in their financial interest "Mary large against some judgment bears similarities to a non- so-called obtain as agreement, it is possible), Carter” but also agreeing dissimilar will defendant ways: that, parties some provide often since *19 already agreed recovery ["Mary agreement to the maximum Carter” refers to an defendants, more, plain- against agreeing agreement the the one or but fewer where] all, any judgment agree ob- than tort will with the not execute on defendants tiff will plaintiff plaintiff specified against pay the them. tort to tained (often Williston, money 7 maximum sum of limits of Samuel Law the Wtlliston the insurance), (Richard ed., any policy § amount A. with the Contracts Lord 15:2 ;to 2015). Secrecy "Mary by any be to reduced or eliminated collect- not essential judgment against' plaintiff agreement, -agreement ible the obtains Carter” but the works remaining, advantage non-agreeing parties the addition, defendant. In more to of the it if it the to agreement aspect typical permit, the will re- remains secret. This or quire agreeing agreement continue has defendants to caused some courts hold to (which invalid; participate permitted to in the lawsuit them other courts have 294 trial, trial, ensuing During At ar- Celadon did

against public policy. Celadon attempt agreement not to to im- use agreement gued only that the should witnesses, requested it had peach in its jury into admitted evidence so not pretrial agree- motion. It did offer it could use know about and Celadon during ment as an exhibit its case-in-chief. impeach it to witnesses. proof, After close of Celadon asked agreement trial into court admit motion Raising the issue in the At trial point, evidence. necessary not suffi trial is but new had that Chickasaw been dismissed noted “It is this state that a cient. well settled case on the would not be ... on cannot raise a issue party new form, questioned it the agree- not ] motion for new that was with trial[ ment trial was even relevant. The court did scope pleadings and was not motion, clearly rule on Celadon’s but court at the trial presented into agreement evi- admitted Serv-U-Mart, Cnty., v. Inc. Sullivan case.” dence. 1975). 121, (Tenn. 527 124 Grounds S.W.2d in a must motion for new trial raised “Generally, the admissibility Sankey, raised at trial. See v. been Moss is within the sound discretion of 296, (Tenn. Ct. App. 54 299 & n.3 S.W.3d court.” Mercer v. trial Vanderbilt (Tenn. 2001) Inc., 121, Univ., of claim of (declining grant 134 131 relief S.W.3d trial); 2004) (citing Cambridge v. Mut. motion for new Otis Fire error first in a raised (Tenn. Co., 439, 850 442 Ins. see S.W.2d also Norris v. Nationwide Mut. Fire 1992)). court’s “The trial decision admit 335, Co., Ins. 728 S.W.2d 338 or exclude evidence will be overturned 1986); Melton, Tenn.App. Allen v. 20 appeal only there abuse of where an dis 387, (1936). Because 99 S.W.2d cretion.” Id. “A trial court abuses its dis challenge validity failed Celadon ‘applie[s] cretion an incorrect when prior agreement either dur legal standard, or a decision reache[s] trial, ing the we deem this issue waived. against logic reasoning which is injustice complain to the party cause[s] that the trial argues Celadon next ” Eldridge, ing.’ Eldridge v. declining to admit court erred in 2001) (quoting Shirley, State trial, agreement into evidence. Prior (Tenn. 1999)). “The abuse Celadon filed motion the written admit permit the standard does not discretion agreement into it at trial. evidence and use appellate judgment court to substitute sworn, After was selected (citing court.” My Id. argued agreement that the should Celadon Co., int v. Allstate Ins. made avail be admitted into evidence and (Tenn. 1998)). impeachment. trial court re able court, Here, on the motion but noted ruling served its as noted neither parties agreed agree that the agreement had referred to Mr. party Borne’s read into during phase ment could be referenced and proof with Chickasaw trial, agreement referenced evidence. The Chickasaw was dismissed statements, case opening and counsel for from the at the close of Mr. Borne’s during jury. proof. Admitting agreement to the into portion read a of it evi- *20 jury. court, Id. they are disclosed to the to the them if defendant, ultimately non-agreeing to the proof might the close 3-104

dence after and Tennessee of Civil Proce- Rule rebutting Mr. 47.03,8 foreclosed dure Mr. Borne had peremptory six suggestion agree- of bias arising out challenges, Celadon'had four peremptory ment, reopen absent decision to challenges, per- and Chickasaw had four circumstances, proof. these Under we see challenges. emptory The record shows that no of the trial court’s in abuse discretion jurors cause, twelve were excused without failing to admit agreement into evi- identify but not party it does which ex- dence. juror any particular cused or even indicate many challenges how each party exercised.

Celadon next contends that Although that contends agreement resulted in Mr. Borne and Borne and Chickasaw collaborated in their colluding Chickasaw per on use their use of emptory challenges.6 argues peremptory challenges, It we that find amounted to violation of in support Tennessee Code record this assertion. On 22-3-104, provides Annotated section which trial, dire, day the first voir before challenges the division peremptory lawyer motion Celadon’s made oral in among parties.7 which he lawyer claimed Chickasaw’s planned had said that he to use perempto- support does not Celadon’s record ry challenges for the of Mr. argument Borne. agreement in benefit resulted challenges. the misuse The record does whether this peremptory Un- indicate der Tennessee Code Annotated section 22- in fact or to occurred what extent. After trial, 6. At after the was selected and 8.Tennessee Rule of Civil Procedure 47.03 sworn, provides: panel Celadon moved to strike the Mary upon "based the use of the Carter prospective jurors passed After have been Agreement and the collusion between Donde- cause, counsel will submit simulta plaintiff’s striking ville in and the counsel neously writing, judge, and in trial to the jurorsf. Tjhey together worked to strike any juror group the name Of1 in the of the them.” Chickasaw and Borne both' ar- (or jurors first more if twelve additional .are gued issue waived. The seated) who been either seated that has judge again responded, "Okay,” but did not challenge peremptorily. counsel elects party rule on the otherwise motion. No asked submission, Upon each each counsel‘shall ruling. for clarification of the trial court’s challenge submit either a blank sheet paper. party Neither shall known make Code section Tennessee Annotated 22-3-104 party challenged. fact has not provides part: in relevant Replacement jurors will be in seated (or more) panel (a) of twelve in the order of party may Either to a civil action chal- (4) necessary, If their selection. re jurors additional lenge assigning any four without placement jurors will then be examined for cause. and, passed, again (b) (1) cause after will counsel event there more than one ’ simultaneously, writing,' (1) submit party plaintiff party one more than action, judge, (4) any juror the trial the name defendant a civil four addi- (or more) group of twelve counsel challenges tional shall be allowed to such case; challenge pro peremptorily. elects to This side or sides and the shall, discretion, cedure will be followed a full has until aggregate divide the accepted by been selected counsel. The challenges parties number between the side, judge keep will those chal list of the same which shall not exceed and, (8) side, lenged juror challenged eight challenges regardless if same to the parties, charged parties. both each will be the number Even when two (2) challenge. judge The trial or more cases are shall dis consolidated for trial purposes, challenges eight any juror party identity total shall be close (8), (b). provided challenging juror. this subsection 22-3-104(a)-(b) (2009). § Tenn. Code Ann. Tenn. R. Civ. P. 47.03.

296 However, the rec- Borne and empaneled, lawyer Chickasaw. jury Celadon’s jury ord not instruction to “to include panel does objection jury his

noted but, Moreover, although requested. made Celadon offer record” preserve motion for new trial asserted Celadon’s -On likewise proof; appeal, points Celadon by failing to the trial .court erred its proof for assertion. to no in record jury the agreement, because of strike evidentiary to an basis By failing show on argument not based does include argument, has Celadon for its waived request grant to the trial court’s its failure 27(a)(A)(7) issue. See Tenn. R. P. App. agreement. on the for a jury instruction arguments to include (requiring briefed record”); references to the “appropriate On we a motion appeal, view (Tenn. Reid, 292, v. Reid S.W.3d light likely to most for new 2012) (noting parties, not App. Ct. given question. permit us to consider y courts, burden ensure carr 682, 689 v. Waters Coker, “ fair, appeal on contains ‘that record (Tenn. 2007). Nevertheless, rais party accurate, complete of what account must ing in a for an issue motion new being transpired respect to the-issues certainty state the issue “with reasonable Robinson, Trusty ”) v. No. (quoting raised’ ascer appellate so to enable courts to 96043, M2000-01590-COA-R3-CV, 2001 WL presented tain first whether issue was (Tenn. 2001) *1 6, (citing App. Feb. otherwise, court; correction the trial State 24(b))); P. App. R. Tenn. cf. ap matter cannot be considered Thompson, 102, Gauldin, Id. State v. (citing. peal.” 2000) appel (holding Crim. App. 1987)). App. Crim. late court could defendant’s consider on an Specifically, appellate based review trial' improperly claim that court de alleged is waived error instructions particular prospective clined remove party' asserting' error details unless because, juror although the rec cause of, motion for error new this-claim its party a-per showed that used some ord 3(e). R. hold trial. P. We must Tenn. challenge particu emptory remove by failing this issue Celadon waived juror, the record show which lar did certainty in its identify it with reasonable party.used peremptory challenge its for new motion trial. juror or particular remove the peremptory all of chal used defendant Superseding Cause lenges). court argues Celadon next that the trial rejecting

Finally, argues committed reversible error request special charge instruction declining erred argues first jury regarding agreement cause.9 Celadon between superseding superseding not .have The cause tlae-trial court instruct must Celadon.asked original negli- jury according Jury brought In- tlae Tennessee Pattern been about 3.24, gence; struction—Civil which states: actively superseding, cause legal .must injury A cause when cause of not a cause, bring work to result which about a superseding there is For a cause to negli- original cause,, not have followed from following superseding he a all gence; and present: must elements superseding cause not have superseding I.. The effects of the must harmful reasonably original original been cause occurred after foreseeable must have negligent party. negligence; *22 erroneously gard to every theory that the trial court fact and determined raised by - preponderance that a the evidence did pleadings by the and supported not support instruction because These instructions proof, should be “material applied should evidence’’ a couched in plain easily terms understood Second, standard to the Celadon ar issue. lay persons. by a gues supported that substantial evidence not Instructions should contain inac- finding April 2011 accident was curate or inapplicable statements le- Mr, superseding inju cause Borne’s confuse, gal principles might tend to heavily ries and that on relied However, jury. instructions are not reasons, theory of defense. these Cela- For. expected to on perfect. ap- Our task claims, the trial in don court erred declin peal tois in review instructions their ing give the requested superseding entirety, and to examine challenged instruction, preju cause Celadon was instruction in context to determine by so. diced court’s failure do instructions, whole, as a that, response, Mr. Borne asserts fairly accurately par- embody whole, read as a when court’s ties’ theories. legal instructions causation-in-fact and cause were sufficient to appropriately in- (cid:127) courts Appellate review the entire jury on struct the the issue of causation. like, would, charge just a rather theory He maintains that Celadon’s of de- practiced eye than of a through during fense the trial Borne was that Mr. judge lawyer. or willWe not invalidate all, injured not was long they fairly instructions as define otherwise, accident he was legal issues in case and not do capable earning he the income made jury. mislead the An erroneous instruc- accident, alternative, before -In the Ce- necessarily" tion will not be considered ladon claimed Mr. Borne’s back condi- if reversible the trial court later error tion pre-existing degenera- resulted from a explains corrects the or if instruction tive back condition unrelated adequately trial court explains Therefore, any con- trauma. Mr. Borne portions issues other its case tends, superseding a cause instruction was charge. Even if the warranted. trial court’s give failure the instruction constitutes carefully Trial courts should consider error, asserts, the error -requested -instructions re- because harmless no med- Celadon offered because (1) questing parties to them entitled are Mr, ical evidence that Borne sustained they evidence, if are supported April additional harm accident. (2) they theory if embody relied (3) they if party, correct state- prop

Whether has are been (4) erly presents question law, instructed law if ments their sub- with no presump we review de already novo is not stance contained other Troup tion of Steel correctness. However, Fischer portions charge. (Tenn. 2007).

Corp., 236 niay give requested courts decline (Í) if duty supported instruction sub- give Trial courts have it.is evidence, stantially (2) al- accurate instructions with re- if substance is Borne, 3.24). (quot WL at *11 n.14 ing Jury Tennessee Pattern Instruction—Civil *23 verdict, (3) if it a

ready charge, port in the court must appellate covered the respect. in incomplete incorrect or strongest is review “take the the record in legitimate of all the evidence favor view Earthman, 611, 635- v. 993 S.W.2d Ingram verdict, the the truth of all of assume 1998) (citations (Tenn. omit App. Ct. 36 verdict, evidence that allow supports ted). Here, undisputed jury it that the is all reasonable inferences sustain a cor requested by instruction Celadon is verdict, countervailing all evi of the on and discard superseding rect statement law Thus, arguments center Akers parties’ cause. dence.” v. Prime Succession of (Tenn. arguments Tenn., 495, at Inc., on whether the evidence 501 387 S.W.3d in supported superseding 2012) a cause River Park (quoting Barkes v. so, and, if (Tenn. struction whether substance Inc., 829, Hosp., 833 328 S.W.3d 2010)). adequately of an instruction cov such was charge in that was ered elsewhere is ma We examine whether there

given. in terial evidence the record sufficient consider first whether We jury sought, verdict Celadon sustain the supported by the requested instruction is namely, finding by jury that a a su arguments. Id. at 637. evidence and perseding brought cause about result Appeals agree with the Court below We not have from followed Cela- proper that the standard is the “material original negligence. The don’s most recent in standard; may evidence” trial court of Torts describes Restatement interven jury on issue of struct an fact within ing superseding cause as a subset is scope pleadings when there cause: a force of proximate ‘When nature in the record that is “sufficient evidence independent is or an act also factual issue, i.e., materi sustain verdict” harm, liability cause limited actor’s Grp., al v. Premier evidence.10 Med. White harms result from the risks those (Tenn. 2007) 411, App. 254 416 Ct. S.W.3d that made the actor’s conduct tortious.” Lines, Inc., v. (Reynolds Motor 887 Ozark (Third) Phys. Restatement & Torts: (Tenn. 822, 1994)); see also 823 (2010 § & up Emot. Harm 34 June 2017 Co., Johnson v. Tenn. Farmers Mut. Ins. date). comments to this Restatement (Tenn. 2006) (citing 205 S.W.3d 372 “the provision indicate that reflects evo Calvert, v. 584 Street causation, lution in 1976); jurisprudence Farmers Spellmeyer Tenn. comparative impact responsi well as the Co., Mut. Ins. 1993)). bility liability on ... Id. To determine whether determinations.”11 (a). sup- contains material record evidence comment superseding Given that the “material stan A is an of a evidence” cause act third applies determining person dard when or other force which its interven- support being in prevents sufficient to was tion liable for actor struction, agree Appeals with the Court neg- we harm to another which antecedent that, upon ligence bringing "[i]nsofar as relied a substantial factor preponderance of the evidence standard about. determining Torts, (1965) (Second) whether to instruct § Restatement cause, Godbee, added), reliance superseding such in er (emphasis quoted Borne, WL ror.” at *11. S.W.3d at 884. The comments to the Restate- that, (Third) ment note Torts time (Second) comparison, of Torts 11. For see the definition of su- Restatement drafted, liability perseding comparative principles Second Restatement of were cause determining liability: Torts: not considered in recent increase low pain right

“The essential elements back superseding are as fol visit, pain. cause knee Dr. Dietze was not defense (1) harmful 'effects lows: su told recently that Mr. Borne had been must occurred after cause perseding involved in' another vehicular accident. Dr. (2) original negligence; superseding acknowledged testimony Dietze in his n brought must have been cause about accident, the 2011 if significant enough, *24 (3) negligence; by original the su could produced have trauma to sufficient actively cause must work to perseding degeneration account for the accelerated bring about a result which would not have Mr. engineer' Borne’s disc. Biomedical from the original negligence; followed and Douglas Morr on testified behalf Cela- (4) the not superseding cause must have that, don based his forensic reconstruc- reasonably by original been foreseen tion of July 2009 accident and the White, negligent party.”12 254 at S.W.3d in information the record on Mr. Borne’s Godbee, 882). (citing 417 213 at S.W.3d injuries, the force and acceleration of the this The in case contains material record July 2009 accident were not consistent support supersed- evidence defense of with injuries the cervical lumbar .that that, ing undisputed April cause. It is in Mr. July Borne claimed he sustained years July almost two after 2009 2009 accident. vehicle, collision with the Mr. Celadon Taking strongest legitimate view

Borne was involved an which accident evidence, this allowing all infer- reasonable his vehicle. Al- vehicle another rear-ended ences from disregarding it and countervail- though Mr. Borne serious- minimized evidence, ing the record contains evidence accident, according 2011 April ness support finding sufficient to that Mr. description, to his “shat- own the collision April Borne’s 2011 accident caused harm- tered” the other vehicle’s rear windshield July ful effects and A after 2009 dented both vehicles. few weeks occurred accident, vehicle, April 2011 accident with the after the April presented brought to Dr. Dietze of a 2011 collision complaining about Restatement, [A]t the time the Second 12. The our dissent takes issue with reference negligence, contributory contribution based to the Third Restatement’s definition of su shares, pro joint and rata several perseding superseding Describing cause. liability negligent A were the law. tortfeasor cause, proximate cause as a howev subset of jointly severally held liable harm er, law, departure is not a from Tennessee by that also was caused tort- intentional recognizes comparative responsi which now could, best, at feasor obtain contribution Godbee,. liability bility in determinations. See for the the intentional tortfeasor inten- thorough (engaging 213 S.W.3d 883-88 in a at pro tional No tortfeasor’s rata share. mech- relationship discussion . about. the between liability for adjusting anism existed' cause, cause, proximate superseding negligent and intentional tortfeasor ac- fault). comparative points itself dissent cording culpability. comparative to their “[superseding out cause included analysis.” proximate within the As causation comparative principles [T]he advent of has above, noted defini the. Third Restatement’s superseding reduced the role cause. consistent, adoption tion is also our (Third) Phys. Restatement & Emot. Torts: Moreover, comparative liability principles. we (c). Thus, superseding § Harm cmt as the approach in continue to use the four-factor compara- cause doctrine has evolved under determining of su the doctrine principles, superseding may tive cause White, perseding applies. 254 cause See original merely liability; limit the tortfeasor’s Godbee, (citing 213 S.W.3d entirely. it need not it off cut Restatement (Third) 882). Phys. § & Emot. Harm 34. Torts: 2014) (quot accident, April n.7 July 2009 that the Co., Breeding ing. Mr. Borne’s Insulation 2011 accident caused condition Satterfield (Tenn. 2008)). beyond what would to- have fol- worsen accident, alone, lowed from (duty first elements and breach two April 2011 accident could At not in case. duty) dispute are reasonably foreseen Celadon. have been elements, remaining three issue are the Thus, material there is injuries namely, the extent of suffered pertaining each element of the record Borne, causation-in-fact, n cause; therefore, superseding defense (legal) inju proximate cause such " supported the record deci- ries. .trial, to give proposed by the sion on superseding cause.13 jury instruction trial, At Celadon-mounted multi- *25 arguing to pronged In addition defense. conclusion, however, This does accident, April 2011 the effects inquiry. our Trial courts end need indicating included evidence5 record if grant request jury instruction a a y injuries may l Mr. Borne’s have resulted charge jury covers the genera alread on June that occurred requested from accident instruction. substance 18, 2009, Johnson, before the acci (citing about two weeks 205 at 372 Oris S.W.3d 445). vehicle; A Borne trial court with the Celadon Mr. 850 at dent S.W.2d will.be erroneous omission of a 2009 acci for an the June hospitalized reversed was after only the error prej where to just instruction when dent had returned work and Moreover," party. rights the requesting udices occurred. Celadon collision 846). (citing 879 S.W.2d Spellmeyer, Id. emphasized Borne was that Mr. Celadon repeatedly found errone “This court has working a able to continue trucker for to be harmless or ous omitted instruction's immediately following months several that thé error when we have concluded did’ July testi put 2009 Celadon on accident. Dr, not have a played not or material could neurosurgeon Applebaum, mony decision-making process.” jury’s role in the of Mr. who examination said Hawks, 482, 497 degenerative changes Grandstaff Borne showed (Tenn. 2000). App. n.28 Ct. spine pre lumbar that would have July Appleb- Dr. 2009 accident. dated claim, negligence To on a a prevail Mr. Borne aum evidence that found “1) following: prove plaintiff must all, he impairment suffered to duty the defendant care owed return asserted Mr. could 2) falling appli below the plaintiff; conduct he any occupation work in for which was amounting of care to a cable standard qualified. put testi Celadon on otherwise loss; 4) 3) or injury duty; breach of that compensation neuro mony from workers’ causation-in-fact; 5) or proximate, le - cause,” Thomas, Dr. surgeon who believed Cnty., King v. 419 gal, Anderson lumbar merely 2013) Borne’s condition (Tenn. (citing Gig S.W.3d strain na Auth., or-that could arthritic gers v. Hous. Memphis S.W.3d 2009)); testimony ture. also offered see also Parker v. Inc., Seyler, who Franchising, Carla Holiday Hospitality rehabilitation counselor Because have found Mr. Borne's work we material evidence after continued support superseding supersed- cause record also a 2009 Celadon accident was accident, April 2011 on the instruction based ing cause. we need not address Celadon’s assertion tliat that, transition, condition, period after a asserted event caused in- Mr. Borne’s job juries. Borne would be able secure wages equal to or earning exceeding the a party “[W]hen issue takes wages making he was at the time of the with a trial court’s give refusal a re- accident. quésted instruction, our task is review Thus, de- theory overall Celadon’s actually given the instructions in their en April an argument fense included tirety, they determine whether fair 2011 accident was a but superseding cause ly embody accurately parties’ the hardly argument. to that Cela- limited Centers, ories.” Braswell v. Lowe’s Home approaches don’s defense used several Inc., 42-43 plaintiffs attack causa- proof both (citations omitted). 2005) duty “We have tion-in-fact and proximate cause. uphold possi verdict whenever gave jury 'Complete The trial Grandstaff, ble.” at 497. View whole, instructions issues ing eausation-in- record as a we conclude that proximate, legal, fact and These cause.14 the instructions the trial fairly court used instructions tracked the Pat- parties’ Tennessee embodied claims and defenses Jury tern Instructions for cases prepared provided appropriate *26 of this sort and set forth an accurate legal principles state- needed to the case. decide ment of law on Accordingly, the This instruc- cannot we the causation. hold that jury tion the declining enabled whether court erred in to give special consider the accident, 2011 or April the other some instruction on superseding cause.15 judge’s recently anticipated 14. The trial oral instructions on cau- or by person foreseen a proximate ordinary intelligence and cause as sation-in-fact were of and care. there, legal injury, To be a of follows: cause is requirement only that the be the cause negligence requires A proof claim of two cause, or the the last one to the act nearest causation, and’legal types of [cause-in-fact] injury long so as a factor in substantial legal are cause. and cause [Cause-in-fact] producing injury or damage. The the fore- negligence distinct elements claim of does, seeability requirement require not be.proven by plaintiffs and must both ¡to guilty negligence person of foresee preponderance a [Cause-in- the evidence. which injury in exact manner takes negligent is The defendant’s conduct a fact]: person place or would be the exact who if, plaintiff's injury [cause-in-fact] as enough guilty person is that injured. It matter, directly a factual it contributed through negligence foresee could or it, plaintiff's injury plain- and without care should foreseen use reasonable have occurred, injury tiff's It would have not in general injury which or [matter] necessary not the defendant’s action is the damage occurred. plaintiff's injury, only cause that sole it be a cause. agrees Allhough ma- the dissent you Once have a' defen- determined that in did not err declin- jority that the trial court negligence is a of the [cause-in-fact] dant’s superseding ing give on a . .instruction plaintiff’s injury, you must decide cause, whether on a different it bases conclusion negligence legal the defendant's also a arguments the evidence view Celadon’s plaintiff's injury, in cause The law recognizes that in the dissent record. The requirements de- Tennessee sets out two presented de- an "all of above" Celadon fense; omission a contesting termine an act in causation in addition legal injury damage. fact, cause argued April Borne’s 2011 that One, sub- have been the conduct must that accident harmful .caused effects. bringing in his 2009 collision factor about the harm stantial followed.from not.have and, two, contends, complained being harm The vehicle. dissent with Celadon's however, facts Celadon giving rise been relied action "the could.have independent origin argument regarding that was cause later cause only supported an foreseeable.”) Schoenbaum, fact, (quoting 1 T. Ad Respectfully, superseding in cause.” 5-3, § miralty pp. Law and Maritime 165-166 incorrect. added)); ed.1994) (2d (emphasis see at also id. above, ample evi- there was As outlined ("If intervening operation force is in April 2011 acci- dence in the record that the acted, the defendant it is not an at the time Mr. Borne would dent was more serious than all.”) intervening (citing B. cause at Dan presented to Dr. Mr. Borne admit Torts, Dobbs, § The Law April after the 2011 acci- Dietze few weeks (2000)); McGuigan, 325 see also Davis v. experienc- complaining that he had been dent ("To 2010) establish ing Dr. pain increased two about weeks. intervening superseding event is a that an accident could Dietze conceded that the 2011 cause, plaintiff] show ... must [a produced to account sufficient trauma intervening event oc harmful effects degeneration of Mr. accelerated allegedly his reckless con curred after disc, presented expert Borne’s Celadon ”). Therefore, neither Godbeenor Pel- duct. ... injuries testimony Borne claimed analysis. support the dissent’s licano the 2009 colli- could not have resulted course note. In the of the dis- One other sion Under the stan- alone. material evidence cause, analysis superseding it cites sent’s dard, in the rec- there was material evidence propositions cases for the Tennessee finding support ord to that Mr. factual regarding in causation should "[tissues fact Borne’s harmful effects accident caused proximate cause are before issues resolved collision with the that occurred after superseding and "a cause in- considered” vehicle, April 2011 acci- negli- assumes that defendant’s struction Thus, superseding cause. dent constituted gence plaintiff’s is the cause in fact record would have substantial injuries.” important place points It is these supported superseding cause instruction. Tennessee proper context. cases have "helpful to cites two dissent cases that, pointed structuring out order of are, fact, analysis” that too far [the] afield analysis, the of fact considers interven- trier support position. dissent the dissent’s ing superseding cause after causa- Godbee, first cites tion in has been established. Waste fact *27 appellant argued which that the trial Co., Mgmt., S. Cent. Inc. Tenn. v. Bell Tel. of giving superseding cause in court erred a (Tenn. 1997) App. 15 Ct. 432 one, failing give than struction rather Co., (citing Doe v. Linder Constr. presented in this converse of the situation However, (Tenn. 1992)). "proximate 184 Metropolitan case. It also cites Pellicano intervening juiy cause remain cause and County, & Government Davidson Nashville of questions comparative in the fault decision- M2003-00292-COA-R3-CV, WL No. (citing Haynes making process.” Id. v. Hamil- 23, 2004), an Feb. 1994)). Cnty., 883 ton appeal did discuss from a bench trial that not Thus, of will decide all "the trier fact causa- Importantly, jury at all. *2. instructions Id. at determining before tion-in-fact issues argument both involved defendant's cases might a who otherwise be liable defendant pre-existing actually caused condition liability relieved of because should plaintiff’s injuries, than a later- rather independent of and unforeseen conduct Godbee, occurring cause. 213 S.W.3d at added). (emphasis at 433 another.” Id. plaintiff's (claiming pre-existing de that the analysis— order of cases describe the These generative the defen condition rather that superseding before causation-in-fact cause— negligence plain dant's medical caused preclude any party they but do from dis- Pellicano, injuries); 2004 WL tiff’s superseding puting causation-in-fact and both (claiming herniated pre-existing *3-5 superseding Had the cause instruction cause. surgery plaintiff’s rather disc necessitated given, the would have first decided been defendant's,negligence). The dissent than Borne's collision whether Mr. briefly acknowledges cases are fac that these vehicle was a cause-in-fact of his recognize tually distinguishable, it fails to injury, but and then it would determined distinguishing April of fact in the critical nature 2011 accident whether the constituted pre-existing intervening can superseding both condition an cause. See 8 cases—that Jury logically superseding cause. Instr. constitute a Pattern TPI—Civil Tenn. Prac. ("The ed.) ("Once Godbee, (2016 you See 213 S.W.3d at 884 doctrine 3.22 have determined .., negligence is superseding applied where ... defendant’s a [cause-in- of cause injury, you actually injury brought plaintiff’s must decide about fact] reverse Court of Appeals’ further Remittitur remittitur of the of enjoy- award for loss awarded a total of Mr. Borne ment of He also modify life. asks us to $3,705,000 in compensatory damages: trial court’s standard review such that a $1,455,000 earning for loss of capacity, may suggest trial court a remittitur $750,000 physical pain for mental suf- upon express finding that the verdict is $750,000 fering, permanent injury, unreasonable and therefore excessive. Ce- $750,000 of enjoyment for loss life.16 ladon arguments asserts Mr. Borne’s of Celadon’s denial motion for a new contrary precedent, are to case statutory trial, judge jury’s the trial described the law, appellate procedure. and the rules of suggested award as “excessive” and a re- It contends that court and Court following mittitur down amounts: of Appeals failing erred to sufficiently $1,100,000 earning capacity, for loss of pain remit the awards for and suffering $500,000 pain for physical and mental suf- permanent injury and that the Court $100,000for fering, permanent injury, and of Appeals by reinstating jury’s erred $400,000 life, of enjoyment loss for a earning capacity loss of award. Additional- $2,100,000 total award of remitted com- Curiae, ly, the Amicus Tennessee Associa- damages. pensatory Justice, tion for asks this to require Court Appeals On the Court appeal, re- explain judges their reasons for judge’s versed the remittitur suggesting argues a remittitur and that a award for of earning capacity loss may only suggest trial court if remittitur jury’s $1,455,000. award reinstated range award outside Appeals affirmed Court the trial reasonableness. remaining court’s remittitur of the ele- damages ments of first exception Appeals’ with the of We consider the Court enjoyment for loss of award life. As further remittitur of the award loss of life, award, Appeals enjoyment the Court of found and then consider we suggested suggested the trial court’s trial court’s remittitur. was warranted the evidence and then Remittitur Appeals’ Court Further suggest

went own further remitti- *28 tur. suggested Its remittitur reduced the above, As forth after set the award- of enjoyment award for loss of life down to damages enjoy- ed Mr. Borne for loss of $50,000.Thus, the of Appeals’ Court remit- $750,000, ment of life in the amount of the $2,105,000. damage ted award totaled a suggested reducing trial court remittitur 3778743, *24, Borne, 2014 WL *33. $400,000. the of Ap- award to The Court suggested peals asks this to a Court reinstate below further remittitur not, life, the If of enjoyment verdict. we do he asks us for loss of of the award negligence give superseding whether the defendant’s was also to a a instruction on legal injury.”); plaintiffs the cause of Waste cause. Tenn., ("In- Mgmt, 15 S.W.3d at 432 Inc. of Mr, action before the Oc- Borne's accrued tervening appears relate more cause to to 1, tober 2011 effective date of Tennessee legal than to in causation causation fact be- 2011, Act of Civil Justice which limits the play cause it not come until does into after established.”). damages amount of non-economic that can be causation in fact has been The i.e., 2011, analysis, Civil order of trier of Tennessee Justice Act of fact awarded. 10, 24, addressing §§ in decides fact before ch. Tenn. Pub. Acts ch. causation cause, (codified bearing superseding §§ on whether at Tenn. Code Ann. 29-39- has (2012 2016)). declining in Supp. this case erred in & trial court to -104 trial, a peals, penalty granting as new from reducing drastically the amount then each of these events court: all by the trial remitted judg- favor verdict or party in whose case, reviewing After record may been make the ment has rendered similar, we and cases we have deemed the court of protest under remittitur sug- find even with the court’s case, by appeals, applica- and take the remittitur, gested for loss the award appeal, for permission tion to review enjoyment of remains excessive life supreme court. upon point, of the evi- against preponderance is 20-10-103(a) (2009). exercise our stat- Accordingly, we § dence. Code Tenn. Ann. reduce the award utory prerogative to Court language used Ap may grants $50,000.00. peals imply that this statute authority Appeals sug the Court . Borne, at *33. 2014 WL It not. 20- gest a remittitur. Section does Ap- the Court quote above 10-103(a) recognizes of Appeals’ the Court ability peals appellate refers to court’s authority suggest a but does remittitur suggest a remittitur as a “statu- further authority. confer See such Holt tory apparently relying prerogative,” Co., Compton Sales section Tennessee Code Annotated 20-10- 1995) (“Although spe 103(a). *19, Borne, 2014 WL authorized, statutorily 20- cifically [section] procedure provides *33. This statute 10403(a) implicitly recognizes the authori a remittitur under plaintiff accept a grant a ty of an court to further appellate decision, protest appeal the remittitur award, even remittitur'when as remit suggested by is remittitur Court, by the Trial exces ted is deemed Appeals: or trial court the Court (footnote Indeed, omitted)). the stat sive.” If judgment trial court Supreme not even refer to the ute does regard to a remittitur is affirmed remittitur, authority suggest Court’s a appeals, party so that re- court of is a. although obviously this Court has such or a quired to make suffer a remittitur authority, because statute intent trial, judgment new simply procedure to set forth the court, if, opinion or by the the court suggestion We appealing remittitur.17 appeals, larger further then, on, go to discuss the appropriate required party in whose favor appellate suggest standard for the court to rendered, .the after verdict if its own further remittitur. case was tried in the lower court judge jury, or if ex Ford after Meals rel. Meals v. without Company, was tried in lower court with Motor this Court emphasized case Appeals’ authority *29 of jury by “[t]he and Court suggested remittitur was the judge, sug- suggest trial a court a remittitur is first remittitur trial when the gested or cir- required in the ap- has is far-more the court affirmed verdict 1992) (“This (Tenn. provide App. 17. The Ct. statutes do not a mechanism 749 Court does additur.”) appealing by Ap for authority an the grant additur Court have an not to the peals. Ann, §§ See Tenn. 20-10-101); Moyer Code Ann 20-10-101 (citing § Tenn. Code through 15472, -103. have Tennessee Herman, 87-119-II, Some courts at v. 1987 WL No. appellate inferred from this the 1987) (Tenn. 12, omission (same); App. see Aug. *4 Ct. authority suggest courts do not to F, Additur, Paine, also Donald Remittitur and additur, jury’s if ver the amount even the B.J., 2006, ("[T]here can 42 Tenn. Oct. 25 at reasonableness, dict range falls below the additur”). appellate be no See, Altizer, e.g., 845 Wilkerson v. S.W.2d

305 judge verdict, than of the court.” has approved trial the the cumscribed (Tenn. 2013); Meals, 423 in of Appeals subject S.W.3d review the is Court Prods., Fayette v. Tubular Coffey if to rule that there is material any 1996) (“Appellate S.W.2d support award, to it evidence should authority suggest courts also have to disturbed.”) added). be (emphasis not “It although authority is natu this not a weight matters whit where the pos rally circumscribed than that more preponderance evidence lies un courts.”). by the Meals sessed a material der evidence review.” Hohen for the Court explained standard berg Co., Bros. Co. Mo. Pac. R.R. appellate to suggest court its own remitti 119-20 S.W.2d tur is the “material standard: evidence” 1979). “It is search of simply the rec the trial judge approved Where has to ascertain if ord evidence is material in its juror[,] verdict role as thirteenth to present support the verdict.” Id. Court of Appeals’ ... review of Meals, (some at 422-23 cita suggest ability verdict a remit- quotation tions internal marks is limited record titur review the omitted). Under the material evidence sup- is determine the verdict whether standard, by explained, this Court has ported material “the evidence. Material - to the must affirm if appellate evidence is evidence material court there is in question controversy, which must nec- support' material evidence essarily enter into the consideration Coffey, 929 at 331 n.2. verdict.” itself, con- controversy by in Coffey emphasized: in The Court “This evidence, nection de- other is consonant with standard deferential appellate of the case. An terminative principle, long recognized Ten required strongest is take the court law, jury primary nessee bears legitimate view all awarding 'damages responsibility verdict, favor of the truth assume the case, injury closely personal followed verdict, supports all evidence that thir its role as court 'allowing all to sus- reasonable inferences juror.” Id.18 teenth verdict, tain all and to discard coun- Meals, approved the trial In tervailing evidence. material evi- suggesting a remitti jury’s without verdict analysis very dence is deferential Meals, tur. 417 S.W.3d 422-23. judgment award and the noted, case, Judge in. as Stafford it ver- trial court when affirms the below, of Appeals in the Court dissent juror. [v. dict Ellis as thirteenth Freightliner Corp.], question of Meals standard White [(Tenn. [125,] 1980)]'(“[W]hen applies a case in which the trial court emphasizes appel- Tennessee commu- caselaw involved be that of tive element especially nity .judges..,, appellate late courts should be reluctant When suggest upon-to the first where a remittiturin instance courts are-called review damages, non-economic award issue non-economic award damages, pain suffering loss prerogative arid determine whether the their *30 enjoyment of life: high as too too award them or low. strikes Healthcare/McMinnville, LLC, [Tjhe v. NHC non-pecuniary on such determination Smartt M2007-02026-COA-R3-CV, pain damages 2009 WL suffering losses in- No. as 24, 2009) subjective App. present in *21 Ct. Feb. volves a element not (citations quotation ordinary the marks omit facts. The and internal determination . ted) jury guarantee subjec- requires that trial the verdict, for the jury’s the standard a is an issue the suggested remittitur has suggest a appellate court to remittitur impression.19 first extraordinarily high. The verdict jury’s is why the Meals We no reason see may suggest remittitur appellate court not re standard material the only if it that the award exceeds finds the court has applicable where trial main range of the of rea- uppermost boundary because, such a a in suggested remittitur presented, the evidence sonableness under case, in approved has judge the trial fact “ i.e., beyond which there is no ‘the amount up to remitted the the verdict evidence, upon reasonable view of the any Ellis, at 129 amount.20 See S.W.2d ”21 Ellis, case, support the verdict.’ (“The approval jury of a ver judge’s trial Pitts v. Exxon (quoting at 126 rule invokes material evidence the dict (Tenn. 1980)). Corp., fact[,] respect to all other issues a suggested court has the trial Where why that rule we of no reason know remittitur, (or, Appeals the Court not the same effect when should matter, Court) grant its cannot approval amount of the award. includes the own, award, unless the further remittitur judge action trial means that by That the court, trial by as the is more even remitted testimony the the he has accredited range of the of rea- upper than the limit has damages on witnesses the issue sonableness, i.e., supported material not as the supporting evaluated the evidence words, if In amount as other the evidence. awarded.”). amount supported by court remitted the trial is evidence, Thus, appellate has regardless material court of whether authority grant a remittitur.22 suggested trial court remittitur further dissent, Judge suggested disagreed remittitur de- In his of the verdict Stafford 19. verdict, upon procedure majority stroys is with the used it incumbent suggesting part grant Cooper own remittitur based appellate its a new trial. court majority's Tabb, to address the standard failure appellate suggest a further 2010) ("If court appears from reasons as- beyond remittitur remittitur court's signed passing made on a statements majority Opin of the “While the verdict: judge motion for a new trial the trial acknowledges evi ion the Meals 'material verdict, actually with the it is the not satisfied standard,’ it does discuss dence grant new duty appellate of the courts to apply Meals in this standard should. trial, notwithstand- evidence rule the material of whether the Meals stan case.... issue (citation ing.” quotation internal marks applies situation is an issue of dard to this case, then, omitted)). appellate such impression first in this Court.... decide [T]o position suggest court would not be in resolving whether Meals this issue without own remittitur. applicable Id. *36 standard error.” (citations (Stafford, J., dissenting) foot appellate utilizing An court 21. omitted). Judge Stafford's dissent cor note uppermost remit the award to should rectly majority Opinion described states: “The i.e., reasonableness, boundary range of 'lesser' 'material evidence' standard as a highest supported by figure that could be contrast, I [the] standard. In would describe doing record. In the material evidence so, Meals evidence standard as a much material fixing judge is appellate Borne, higher appellate burden court.” if he he were finder amount would award J., (Stafford, at *36 2014 WL n.l highest remitting but the award fact dissenting). any jury properly award under amount could presented at the evidence trial. appellate In cases court finds in which approve did not in fact amount, lengthy discussion up where 22. The dissent contains verdict to the remitted appellate of a disapproval remarks indicate standards review court’s *31 case, or preponderance In this in the Court of the evidence lies un- ” below, by Appeals language Meals, the the a material used der* review.’ evidence majority granted it own its at 423 (quoting Hohenberg indicates Bros., 119-20). further remittitur the award for loss 586 S.W.2d at Under the of. $50,000 enjoyment standard, to on its life Meals finding based absent a that the preponderance assessment of the award trial by as remitted the court was Borne, 3778743, at evidence, evidence. *33 not supported by WL material the (“[W]e Appeals even the court’s find-that with trial Court of no authority had to remittitur, suggested grant award for loss of the own In its further remittitur. this case, enjoyment of life remains is excessive and the Court of Appeals made no finding against $400,000 preponderance the the evidence. the award for loss of enjoy- Accordingly, statutory exercise our ment we of life as the by remitted trial court prerogative to to reduce award was more than the upper range limit the the $50,000.00.”). This error. As discussed reasonableness pre- under the evidence Meals, by Therefore, and noted this Court in sented. Appeals Court infra “ weight not a whit authority ‘[i]t matters where the had no to further reduce Mr. $150,000. generalized ages verdict and includes Coffey, criticism to 929 S.W.2d at 327 "rejects majority appellate appeal, applied stan- -28. On this the well- Court has "preponderance dard of review that worked well.” Howev- established of the evidence” er, below, 20-10-102(b) in as discussed more detail standard in Section to affirm majority 'agree ("After and the- dissent as to the stan- trial court’s remittitur. Id. at re record, all appellate dards for review cir- viewing almost say in we cannot that a essence, cumstances. When boiled down to its preponderance contrary the evidence is to' disagree appears dissent ma- findings.”). court’s trial jority one remittitur standard: Coffey The Court's only statement appellate suggest standard for an court its suggest appellate for the standard court its in own further remittitur a case in which pointed appel- own further remittitur out that remittitur, already suggested trial court has a judges late have less than do discretion trial judges: judges is "It now that trial well-settled discussed, As we have we hold that adjustments may suggest when the ver- suggestion appellate court’s further own range dict is within the of reasonableness of remittitur, in in' a case which the court trial proof.... Appellate the credible courts also remittitur, already suggested gov- has a is authority suggest have the a remittitur al- erned the "material evidence” standard though authority naturally this more cir- v. outlined Meals The dissent advo- Ford. possessed by than cumscribed trial appellate under which cates standard added). (emphasis courts.” Id. at 330-31 may suggest court its own further remittitur Coffey if, court, Court did further on elaborate appellate the view of "the "more what the circumscribed” standard is preponderates in favor of further appellate suggest for an damages court to remittitur. reduction in remit- the award It affirmed trial court's remittitur ted the trial court.” Under the standard dissent, Appeals’ appellate judges Court of further remitti- reversed tur, advocated necessárily id. at which suggest would have the same discretion to standard, once judges, though result under the Court ap- remittitur as do even pellate judges remitted-by neither see nor hear the wit- determined award as posi- testimony. supported by preponderance nesses’ court was dissent takes tion that of the evidence. the standard advpcates Thus, Fayette adopted by Coffey Coffey this did Court not reach issue Products, precise Tubular appellate standard for an 1996). remittitur, suggest except Respectfully, its own incorrect. further $1,500,000 Coffey, affirmatively appellate judges awarded state punitive damages, authority suggest the trial court less a remittitur than do remitted $500,000, damages judges. Coffey support those and the the dis- does Court Appeals punitive position. further dam- remitted sént’s *32 308 he enjoyment juror. of life it is must be for loss of

Borne’s So said award it satisfied, jury; is the well the Accordingly, we reverse as $50,000. as. and, evidence; if duty weigh he separate of his the Court further Appeals’ remitti- of the with the verdict is dissatisfied tui. jury, it aside.” he should'set Remittitur Trial Court’s Davidson, (quoting Smi 104 at 488 S.W.3d the party a invokes Where 804). thwick, “The of purpose at 79 S.W. trial, re right jury our constitution a juror is to be ‘safe the rule thirteenth allowed deter quires jury “that be ,.. miscarriage justice guard against a v. disputed Spence mine all issues fact.” Moats, 906 jury.’” v. State S.W.2d 586, Co., 594 883 Allstate Ins. S.W.2d 1995) (Tenn. 431, (quoting State v. 434 1994); Meals, (Tenn. see also 417 S.W.3d (Tenn. 1985) Johnson, 412, 415 692 S.W.2d 6). I, § (citing Const. art. 419 Tenn. (Drowota, J., dissenting)). disputed to be resolved questions of fact .judge trial be inde must- jury type and amount include the verdict; if with the pendently satisfied plaintiff. any damages awarded verdict, judge with the is trial dissatisfied Meals, at 419-20. 417 S.W.3d v. the- set aside. Holden verdict must However, jury of a 5 “a verdict Rannick, 903, (Tenn. 682 90 S.W.2d subject of the supervision is to the trial 1984). addressing a motion for a new Int’l, Inc., 621 court.” Foster v. Amcon trial, the trial court has such broad discre 1981). 142, 144 verdict S.W.2d “No give tion reasons for that it is bound to approved by it is trial valid is until denying a granting its action in or new Lindsey, v. 104 judge.” Davidson court the preponderance trial baséd (Tenn. 2003) 483, (citing Cum 488 S.W.3d Shows, E. Inc. v. evidence. James Strates Smithwick, 112 Tel. v. berland Tel. & Co. (Tenn. 1977). Jakobik, 613, 615 554 S.W.2d 803, (1904)). In 463, 805 79 S.W. Tenn. Indeed, judge approves trial when determining approve whether to comment, appellate verdict without verdict, judge “thir trial acts' as presume has judge will juror”: teenth performed his function as the adequately are, in given for the “The reasons rale Holden, juror. 682 thirteenth substance, judge hears circuit Sys. Truckaway v. (citing Cent. Walt does, sees testimony, jvtst jury 985, ner, Tenn.App. witnesses, de- their obsei-ves ’and (1952)). that, by stand; the witness upon meanor “However, weigh- when the training in the experience ing testimony, judge’s is dissatisfaction application award, thereto, quali- not with the legal amount he especially rules fault, liability or into he allocation she fied for errors correction may suggest an remittitur.” may additur inexperience which failed, fallen, Deyo, in Bonner No. W2014-00763-COA- whereby they have v. R3-CV, at *4 verdict, WL justice their reach 2014) case, testimony Jor (citing right Dec. Turner under the (Tenn. 1997.)). dan, court; that, in charge of our and the Suggesting or a remittitur system, one the functions additur granting exer- a new “avoids judge possesses and lieu circuit should were, necessity conducting trial with its new that of cise—as thirteenth

309 ” expense delay. 1911, added Assembly Overstreet v. In the General enacted 694, Shoney’s, Inc., 4 30, first remittitur statute. Act of 718 S.W.3d Mar. the 1911, 29, 1-3, 1999). §§ To 1911 App. avoid of ch. Tenn. contravention Pub. Acts provided This trial the 62-63. that a right jury the clauses of statute federal trial judge suggest constitutions, a after could remittitur a trial state the verdict upon has been a motion rendered must obtain of the party the consent Judge new trial “whenever Trial against the is the or whom is additur remittitur of opinion the in favor of verdict a entered; party to be if that not con does party is so passion, excessive as indicate sent, the trial a court must order new trial. prejudice, corruption, partiality, or unac 594; Spence, 883 see at also Tenn. caprice countable of part jury.” 20-10-101, §§ long Ann. -102. It Code has later, years however, Id. A few in Grant v. recognized of been that amount “[t]he Tenn; Co., Louisville & Nashville R.R. 129 primarily jury verdict is to deter 398, (1914), 165 963 S.W. the Court ex mine, next to the most com plained that trial judges suggest can a person pass petent upon is the matter to a jury remittitur verdict where the ver judge presided trial who at the dict is regardless excessive whether Catignani, heard the v. evidence.” Reeves there is appearance passion, preju 38, 173, Tenn. 39 (1928), 157 7 S.W.2d dice, in caprice or a jury’s verdict. Id. at power judge “The of a trial disturb a 965. The explained: Court “There is no verdict because dissatisfaction in our earlier intimation decisions that the amount of damages rests this state power can passion, be exercised when only century on more than a of precedent and prejudice, caprice or appears the verdict Foster, 621 practice.” at How- jury, of the nor right suggest is the a ever, time, over the contours the trial restricted such cases in other remittitur prerogative'to suggest court’s a remittitur jurisdictions.” Id. or additur have evolved. 1949, In' the remittitur statute was provide' judge a trial amended that Bass, (1858),

In 366 Branch v. 37 Tenn. upon a suggest could a remittitur motion judge’s sug this Court ruled that the trial judge when is of new gested a.jury’s- reduction amount of opinion party verdict favor not improperly prov verdict invade did 15, Apr. 1949, “should Act reduced.” noting jury, delay ince “the 1,§ 1949 ch. Tenn. Pub. Acts 849-50. expense of another trial is saved statute, of the Despite language the broad At parties.” Id. at turn 370-71. Shelton, Smith v. 569 S.W.2d century, the trial judge Court held 1978), judge Court held that suggest a could the ver when permitted to reduce increase a “so passion," dict is excessive toas indicate when outside award verdict prejudice, corruption, caprice upper range the lower or reasonable- part jury.” Co. Union Tel. v. W. proof. ness Id. established the credible Frith, Tenn. S.W. at 427. (1900). In Alabama Great Southern Rail . Roberts, Company road 113 Tenn. decisions Subsequent retreated (1904), explained 82 S.W. the' Court view of Shelton Court’s restrictive suggesting authority. Ellis, a remittitur Court avoided the court’s clari- costly issue[,] delay prolonged litigation fied is the that “when remittitur Id, result ... question from new trial. at 315. amount of excessive, presumption correct- panied by re which

money awarded finding, preponder- figure rep ness of the unless of a quires ascertainment Tenn. ance the evidence is otherwise.” point which excessiveness resents the P, 126; Meals, 13(d). altogether, see also R. Taken begins.” these *34 year, next the legislature 421. The that the for intended S.W.3d indicate ruling in previous authority its Shel grant trial to have the to Court modified courts sug judge may a clarify judge to trial finds ton remittitur if the trial that the verdict adjustment jury a even gest preponderates an in favor of a lower evidence of is amount the verdict within damages jury the when of than the amount awarded. reasonableness, as an alterna of range time, Thus, trial courts over trial, if a trial granting to tive new authority suggest acquired broader jury opinion is verdict of the judge longer a A trial is no court remittitur. Foster, 621 S.W.2d at 147 adequate. is required jury’s that the amount of find 20-10-101,-102). § (citing Tenn. Code Ann. pas excessive as to verdict is so indicate on the Foster the restriction noted sion, corruption, or prejudice, caprice contra authority Shelton trial court’s part judge may of the A trial jury. of language intent the addi dicted adjustment jury suggest an in a verdict Id. tur statute.23 the amount of the is even verdict when statute, The current remittitur Tennes- i.e., reasonableness, range of is within the 20-10-102, section sets see Code Annotated by supported material the rec sug- procedure for a trial court’s forth the seeing the witnesses ob ord. After so, doing of remittitur. In refers gestion demeanor, the trial court is serving their authority suggest to the court’s trial evidence, pass independently weigh “to judge is of remittitur “when trial issues, upon the and decide whether party in favor of a opinion that the verdict supported by verdict the evidence.” ” Ann. Tenn. Code should be reduced.... Moats, making 433. After 906 S.W.2d at - 20-10-102(a). legislature § In independent assessment of the own following language to subsection added credibility, judge if the trial witnesses’ (b) court of appeals of that “The statute: preponderates in finds that the evidence trial of the court shall review the action damages, favor a lower amount of suggesting using a remittitur the standard may judge suggest trial remittitur instead T.R.A.P, 13(d) for in provided of review granting a new trial. applicable to trial court decisions of the 20- Concomitantly, Ann. section sitting jury.” Tenn. Code under without 13(d) 20-10-102(b). 10402(b), provision appellate § review Rule standard suggestion for Appellate Proce- a trial comb’s Rules Tennessee 20-10-102(b) requires appellate court ascertain which section refers dure “[Rjeview judge’s fact trial reduction of the findings by the whether the states: by jury supported preponder novo in civil actions shall be de award court court, ance of upon accom- the evidence.24 the record by governing appellate review of remittitur an both a trial standards additur "[T]he 23. appellate analogous.” Coffey, an court and'standards court and remittitur are Foster, sugges- appellate (citing court to make own at 331 n.1 at 143 However, n.2). tion of remittitur. at the end of the day, majority appear to dissent and the agree appellate previously, As dissent includes a on the standard review 24. noted approved been generalized verdict has discussion of the standards (Tenn. 1985). applying preponderance While evidence standard to its review the court’s denial the motion for new trial is remittitur, suggested trial court’s we note some indication that judge agreed the trial appellate “giv[e] court must due the' defendant’s liability, decision on the credit credibil we look at the trial court’s actions overall ity of the that of witnesses and the trial judge determine “the trial disa- judge capacity juror.” in his greed as thirteenth with the facts as jury.” found Foster, As Id. discussed

infra, prove this directive can to be a prong requires appellate second challenge in cases. some to determine whether the trial *35 suggested court’s or additur remittitur “to review,

Applying this standard of tally destroys” jury’s Long, verdict. in Long Mattingly, v. then-Judge Koch In making at this S.W.2d 896. determi three-step offered “a of a review trial nation, nois set there mathematical formu adjustment jury’s damage court’s of a la percentage Meals, or use. 417 S.W.Bd Long Mattingly, award.” v. at Appellate 420 n.8. courts have at times (Tenn. 1990). App. Ct. sug The looked at whether the additur remittitur gested framework the follow consisted “would in an only propor result award not ing: tionally jury different verdict but First, we examine the for reasons substantially also different in absolute adjustments trial action court’s since are Bonner, terms.” 2014 WL at *7 proper only disagrees when court Perot, (quoting v. Phillips No. 02A01-9704- Second, with the amount of the verdict. CV-00094, 1998 WL *4 Ct. suggested we examine the amount of the 17, 1998)(Lanier, J., App. Sp. Mar. concur adjustment adjustments since that total- ring)). ly jury’s destroy imper- are verdict 'Third, proof missible. we review prong For the third three-step damages to determine whether evi- review, proof we look at the to ascertain 'preponderates against dence the trial preponderates evidence adjustment. court’s against the trial or remitti- court’s'additur above, tur. As this prong requires noted us (citations Id. quotation and internal marks jury’s defer to decision on the credi- omitted). ádopt Long v. Mattingly We bility of the and. also to “that of witnesses appellate three-prong framework for re- judge capacity the trial in his thirteenth suggested view of a trial court’s remittitur. Foster, juror.” 621 S.W.2d at 145.’ primary purpose Long The of the first v. at

Mattingly prong, looking trial As into this segue applying we three- adjustment, step court’s stated reasons for the to review framework court’s trial case, is to suggestion determine whether the trial court of remittitur in this we “disagreed an immediately with other than amount of encounter obstacle. The Rose, Burlison verdict.” first is step to “examine the reasons for (material evidence), 422-23). Meals, appellate only trial court re- under 417 S.W.3d at

view of a trial court’s remittitur of a point disagreement standards remittitur (preponderance award of the evidence under appears appellate to be the standard an for 20-10-102(b)), § Tenn. Code Ann. and the suggest court to its own further remittitur appellate suggest standard for court its suggested already where court the trial has ap- own remittitur where the court trial has remittitur, discussed above. (material proved jury’s award 01520-COA-R3-CV, 2013 WL Long, trial court’s action.” (“[T]he 25, 2013) Nov. case, explain *3 In this decision sug- for remittitur, only the trial stated grant court’s reasons court’s Order categories two gesting Denying Trucking Ser- remittitur the- Defendant damages Trial and reduced Inc.’s Motion New were vices ‘not supported ‘excessive’ and Granting states award was Remittitur follow- evidence,’ specific this makes ... ing; [W]here Court “[W]hile give any explanation court actual this acted with does determination action, ‘[t]hough charged on are caprice, we passion, prejudice ruled responsibility ‘examine given following appeal the trial that the award .to actions,’ the reasons for trial court’s we remittitur matter was excessive and , left as to this can be perplexed sets are how then appropriate.” order forth ” Johnson, (quoting done in this by which the trial case.’ specific amounts 135)). damage element S.W.3d at each reduced sug- Thus, explain its substantial award. provide A court’s failure verdict, the gested of the jury’s of remittitur can suggestion reasons for its *36 the only that stated trial court to appellate ability affect the court’s also remittitur was “excessive” and award was Long prong of v. Mat- apply third the the virtually in- offers “appropriate.” This framework, proof tingly the of the review the the for trial sight into reasons court’s prepon to whether the evidence determine decision. adjust against the trial court’s derates circumstances, requires appellate the with similar the prong Faced ment. This has times of Appeals preponderance of wondered the the Court court to evaluate evidence, to the for a both giving proper examine reason to deference aloud how in the court to in his jury judge in case which and trial remittitur the the example: juror. for For gave capacity no reason it. as As this Court thirteenth noted, weighs the court the has when trial court’s ability the [assess Our. ju capacity in his as thirteenth evidence suggesting is remittitur] reason ror, an independent include evalu this can which the confounded the manner credibility ation of of the witnesses: suggested remittitur.... trial court therefore, ruling the letter written credibility, are in Weight [B]oth suggestion on the of remittitur of extricably weight order a wit linked. only the stated trial court’s conclusion on ness’ as attacks decreases testimony judgment “the of [Johnson] favor As credibility his or succeed. her ’ excessive, by the supported récognized, is not Supreme has Court Ohio proof, expla- No and should reduced.” be Weight of the concerns the evidence given. this nation conclusion was amount greater inclination Though charged appeal are on we trial, evidence, offered in a credible responsibility the 'rea- to “examine one the issue rather support side of actions,” sons for the trial court’s we are clearly It than other. indicates can left this be done perplexed how having the party in this case. Long, . 797 S.W.2d - proof entitled to be burden will 896.... We on. soldier verdict, if, weighing the their evi minds, Nunis, shall they v. dence in their find Johnson 135 (citation omitted); 2012) greater evi amount credible the. tois Leamon, Adams v. No. E2012- issue which see also dence sustains determinations, Weight bility per- them. established before ’Whether mathematics, question but de- ceived an evidence one or absence of on its pends inducing awards, effect in belief. more itemized or had some for its suggested other reason re- Ellis, State v. mittitur. we are While defer 2015) Thompkins, Ohio v. (quoting Ohio juror, court in its role as thirteenth (1997) (em- St.3d 678 N.E.2d of any specifics gives absence us phasis quotation internal omit- marks little to may which we defer. ted)). Therefore, if regarding evidence required conflicting argues energetically both damages was [Defendant] we sitting trial court as thir- should’surmise that the trial court based juror teenth assess credibility suggestion' its on'alleged remittitur witnesses, to explain a trial court’s failure lack of of permanent impair- pf suggestion the basis for its or wages. ment past lost future We may appellate guess leave decline to at the dark trial court’s rea- whether, how, Instead, as to the trial court’s sons for decision. we will credibility may witnesses view the review the evidence as to each jury. that of the verdicts; have differed damage' full giving itemized jury’s credibility deference to the deter- cases, lack of informa some minations, jury’s credibility since the as- may hamper tion the ap appreciably sessment is the one we have.. ability court’s the trial review pellate example, Johnson, court’s remittitur decision. For Thus, at 135-36. Simpson, expert testimony Bain absence stated reasons *37 the for the damage remittitur, that formed basis suggestion trial court’s of the uncontradicted, essentially so award was court in Johnson left unable was appellate appellate court to the ascertain able to to independent defer trial judge’s the preponderated against that the evidence .witnesses, of thus un- evaluation the the trial court’s the ab remittitur even proper able to á appellate conduct review any of explanation from trial sence preponderance of the of the evidence. on court the reasons the remittitur. authority If the trial to court’s Simpson,

Bain v. No. M2001-00088-COA- suggest remittitur were sitúa-- limited R3-CV, at *3-4 WL jury’s tions in which award exceeds 7, 2002); Bonner, Mar. see also reasonableness, range of of explanation (determining WL *10 rarely reasons the remittitur be against not preponderate evidence did needed; the appellate simply court could 'of despite explanation lack court’s additur credibility review record assume plaintiffs of trial court’s reasons tes when award, favor in the determinations timony pain uncon- and discomfort was appellate same court way an reviews tradicted). However, trial courts verdict. because cases, explanation In the lack of of other suggest now authority expanded the reasons for the trial court’s remittitur of preponderance on the based appellate has court at a as to left loss evidence, they responsi also have the credibility how to consider the cpurfs bility for a remitti- explain the reasons along determinations those with necessary appellate tur. give is -to This example: For jury. court the baseline information needed prepon do not the trial We know whether court determine whether evidence disagreed against the remittitur. In some with of the derates some credi- cases, of the appellate explanation court will be the basis remitti- able even in the review the remittitur decision tur we To must remand. make this any meaningful insight determination, absence into the testimony we examine the reducing the jury’s trial court’s reasons for presented parties. cases, particularly In award. other where court, parties offered sharply conflicting re

there testimony competing neurologists from damages, appellate garding court’s deci physical about Mr. Borne’s condition. On sion to “soldier on” of an absence Borne, neurologist of Mr. Donald behalf explanation basis the trial court’s Mr. Dietze Borne suffered testified may effectively suggested remittitur de permanent injury, namely, musculoskeletal parties meaningful appellate prive the degeneration of Mr. Borne’s accelerated credibility significant review. "Where resulting injury L4-5 in the disc issue, deference to trial court thir part Dr. relied in 2009 accident. Dietze juror not may possible teenth without Glorioso, Dr. opinions radiologist regard or in some idea whether what films; who MRI Dr. read Borne’s the trial of the court’s assessment wit but Dietze also read the MRI films basical from that credibility nesses’ differed ly agreed Dr. Glorioso and so not did circumstances, jury. ap Under these report. his own comments to the Dr. add may court be left pellate unable review Dietze he conceded that aware it pre the evidence determine been in that Mr. Borne a June 2009 ponderates against suggested remitti had accident; addition, Ellis, tur. at 900 traffic Dr. Dietze was (“Weight See therefore, credibility, 2011 traffic inextricably April are told Mr. Borne’s linked.”). cases, appellate May In such during Mr. Borne’s accident option remanding has the case appointment learned Dr. about later. but proper explanation the trial court acknowledged Dietze that Mr. Borne’s remittitur, suggested the reasons for the produced 2011 accident could have suffi including the trial court’s assessment of trauma to for the cient account accelerated credibility whose testimo witnesses degeneration of Borne’s disc after *38 Dr, ny pertinent damage to the award.25 2009 July Dietze referred accident. Courtney to physical therapist Mr. Borne above, case, As noted in the instant for capacity Roberts evalua functional essentially no court’s order offered evaluation, her tion. first Rob After Dr. explanation suggest for re- its decision Borne erts felt could even do Mr. in every category damages mittitur work, then, sedentary by time of trial consider, but by jury. awarded We probably she he believed that could do our of the remittitur deci- review sedentary is so Based on his own hampered sion in this case work. evalua Dr, Roberts, Dr. trial court’s to include in the tion that of Dietze failure record and explanation judge 25. The trial of its his reasons "set[ ] court's reasons which forth suggesting overly upon a remittitur need not for his action and the evidence which he Glover, give appellate his 1988 detailed order to based conclusion.” WL appellate appellate sufficient information to conduct re- *5. The court noted that the trial See, "predicated judge view the on find- remittitur decision. exam- two Chambers, ple, findings ings” briefly Glover No. C.A. WL and and described 29, 1988), in Jan. in the which evidence referenced trial court’s order. Thus, requiring appellate appellate court indicated that its Id. trial court state suggestion review of the trial court's remittitur decision is not remit- reasons an requirement. titur was "assisted” trial court order in onerous opined Borne pop open that Mr. should not return and significantly damaged the perform work because he sed front of the could trailer. tractor He Celadon . entary work activities physical also described symp- detail the toms that ensued.- Mr. Borne acknowl- testimony presented Mr. Borne also edged he was involved traffic Glorioso, from radiologist Lawrence who 18, 2009, accident June before his colli- films on which Dietz read MRI Dr. trailer, sion with the-Celadon tractor and- opined relied. Dr. Glorioso Borne another, later, nearly years two in April tear, an annular fibrosis a disc suffered 2011. The caused Mr. June incident level, L4-5 bulging herniation at the discs go Borne with hospital pain neck levels, signs at the L3-4 L2-3 and and work, to miss a week of April and and the arthrosis, facet which is with a consistent generated enough 2011 accident force to degenerative spinal problem. Dr. Glorioso window, the other break vehicle’s back findings described his with 'a consistent the, vehicle, dent rear other dent event, traumatic he he said that did the front Mr. Mr. Borne vehicle. Borne’s spinal think Mr. Borne’s re- condition said that when he April disclosed the spine from chronic problems. sulted physical therapist accident Courtney neurologist To testimony counter the Roberts, he told her one in- that no Glorioso, radiologist Dr. Dietze Dr. jured in the accident. testimony Celadon offered of neurosur- testimony put Celadon from Tal- geon Applebaum. Robert Dr. Applebaum Mevers, madge passenger Mr. Borne’s Borne his examined Mr. and reviewed vehicle, Poster, and Harold driver records, including films medical the MRI the Celadon tractor trailer. Mevers. read Dr. Dr. ex- Applebaum Glorioso. impact “pretty good described the as a plained typically MRI he reviews pound” “a pretty good little little hit.” “frequently films because I don’t necessar- contrast, that, Mr. Foster said when his ily agree radiologists.” with After examin- tractor trailer contact Celadon made records, ing Mr. Borne his medical Dr. vehicle, the rear Mr. “I Borne’s didn’t Applebaum concluded that Mr. like- hardly anything....” feel ly involving or damage had disease spinal presented testimony or roots there also cord nerve and that Morr, significant Douglas engineer were no neck back mechani- biomechanical neurological findings. Appleb- reconstruction, cal who Dr. conducted accident Mr,. bulge analysis aum noted a moderate disc accident. clinically L4-5 level that it felt was not Morr concluded that force and acceler- but *39 significant. Applebaum July Dr. that ation of the accident were not concluded Mr. Borne return inju- could work in consistent with the or lumbar cervical to occupation qualified. for which he he ries that Mr. Borne that sus- claimed tained the accident. parties testi- conflicting also offered mony regarding July Finally, parties presented conflicting whether the injuries of Mr. testimony regarding caused which Mr. Borne’s future accident accident, complained. Borne In the Mr. prospects. of Mr. vocational On behalf Borne, stop trailer a Borne’s tractor had to behavioral health rehabilitation come and Greg and was rear-ended tractor counselor Cates that opined Celadon’s Mr. testimony, per- trailer. In Mr. Borne de- if cannot unemployable his Borne is he collision as a impact sedentary scribed the hard form work. If Borne can Mr. work, said, of perform sedentary caused the hood his tractor to Dr. trailer Cates be to opined of Borne experience he a 95% to 99% loss Mr. would able would Mr, education, his a,job compatible opportunity, if Borne with secure vocational and restrictions, work, history, physical work and and light-duty can then he would do his replace to income he would be able experience oppor- of a 93% loss vocational prior the July 2009 To over- to accident. tunity. Borne’s Dr. Cates that Mr. felt three-year gap in his work histo- come from of absence work because three-year ry, suggested spend peri- Seyler extremely Ms. he injury make his would diffi- jobs of for working od time short-term employment. cult for Mr. Borne secure service, get back into the temporary Antfiony also analyst Vocational Gamboa transition, period workforce. After Ms. of Mr. Borne. Dr. testified behalf Gam- Seyler be opined, Mr. would able Borne analysis his economic boa vocational based making job money amount of secure He on Dr: Dietze’s medical also reports. what equal exceed he was would his on Dr. Roberts’ opinion based function- accident, making time acknowledged capacity al evaluation but seen, parties pre As he was aware Mr. Borne’s can that' improved contrasting sharply condition after ther- sented physical testimony. Mr, Cates, testimony regarding Dr. Like conflicted Borne’s apy Roberts. Dr. Dr. condition, degree to three-year physical felt his Gamboa Borne’s that Mr. which injuries were greatly from work caused acci impact absence would dent, Mr. em Borne could secure ability his future employment. secure so, and, employ ployment, whether such opined if Borne that Mr. could Dr. Gamboa what, provide earnings equal to jobs in perform 2% of ment the labor about he prior market, making accident. he very had chance small jobs, obtaining one of these and that he above, noted the jury As Mr. awarded probably could not return work. Based $1,455,000 earning capac- Borne for loss Dr. opinions, Gamboa these calculated ity, $750,000 pain physical for and mental of the loss Mr. earn- value Borne’s $750,000 suffering, injury,- for permanent $1,334,647. ing capacity to be $750,000 enjoyment loss of of life. and for These indicate that credit- awards presented contrary 'testimony testimony ed the of Mr. Borne’s witnesses rehabilitation Car- certified counselor testimony did and credit performed Seyler la Ms. Seyler. a voca- presented by witnesses Celadon. tional exam on Borne. rehabilitation She interviewed reviewed judge suggested The trial history, history, educational dis- following work award down covery responses, did vocational test- $1,100,000 earning for loss of amounts: ing. $500,000 pain She reviewed Mr. Borne’s medical physical rec- capacity, Dr, ords, including suffering, $100,000 permanent those Dietze and Dr. mental $400,000 as the Applebaum, phys- injury, enjoyment well records loss interpreted categories therapist Dr. Each ical Roberts. She life. of these dam- ages Dr. of Dr. Diteze Roberts would be affected records some extent *40 credibility of indicating perform could the the perceived as that Mr. Borne witnesses light-duty'work, regarding sedentary physi- to in- Mr. she who testified Borne’s condition, degree inju- cal his terpreted Applebaum’s Dr. the which records .to indi- .accident, July 2009 cating by Mr. return to his ries were caused the that Borne could regular will be able to with no restrictions. Under whether Mr. Borne find work and, evaluation,. employment in the if future physical Seyler either Ms. suitable

317 so, future, employment pay employment whether will an secure in likely the the equal making prior to he compensation amount what was amount Borne Mr.

to the if be able to he in finding earn accident. succeeds job, or disagree- the court’s trial “Deciding whether there are jury ment with the was some based..on in testimony, reconciling inconsistencies entirely. short, other factor we are left In testimony, might conflicts in how this to preponderance unable where the review credibility, affect are a witness’s all within lies, “giving evidence to the due credit province” the both the jury the trial on jury’s the the credibility decision of the State v. judge sitting juror. as thirteenth judge witnesses the and that in his Hornsby, S.W.2d juror.” Foster, thirteenth capacity as 1993). Sitting as thirteenth the trial juror, at 145. to court is “free all or believe disbelieve circumstances, Under these we are left part or testimony, none witnesses’ to little but to choice remand the case the testimony even where is uncontradict- trial- explanation court for an of its Cornell v. directly or is reasons impeached.” ed not State, suggesting remittitur this case to 2003). enable the case, appellate to From the conduct a in this with record proper review of appellate the trial resorting speculation, out to sheer court’s we have expla- trial court’s way to determine whether the trial decision. exhaustive, nation not need suggested court’s from it remittitur stemmed but disagreement regarding should areas in it jury with the indicate which disa- greed jury, credibility including disagree- with the testimony on Mr. Borne’s condition, physical ment degree findings which his with underlying factual injuries by 2009 acci testimony were caused verdict with appar- dent, ently jury.26 whether Mr. Borne will be able to credited disagrees 26. The dissent our decision with which Dr. Gamboa were inflated. testified Moreover, case remand to the court for an un- Celadon used to explanation suggesting of its reasons for re- testimony dermine basis for Dr. Gamboa's mittitur. The dissent asserts the trial above, was As Gam- substantial. outlined Dr. description court’s overall verdict as boa based his vocational assess- economic appellate “excessive" “sufficient for re- reports. ment on Dietze’s Dr. But Dr. medical sug- In view.” its review of the trial court's Dietze’s medical assessment was undermined remittitur, however, gested isit clear that the considerably that he unaware fact simply dissent makes its assessment' of own that Mr. had been in a June credibility, assessing the witnesses’ instead accident and was traffic not about Mr. told light preponderance the evidence April long Borne’s 2011 accident it until after independent credibility the trial court's deter- despite happened, Mr. Borne fact that minations. presented Dr. Dietze a few weeks after entirely example, For credits- dissent April complaining 2011 accident of recent testimony regarding of Dr. Gamboa below, pain. Importantly, increased as noted earning capacity Borne’s loss and would Dr. Dietze's evaluation—the basis for Dr. reverse the trial court’s remittitur of this testimony—did expert Gamboa’s factor taking position, award. dissent significant improvement in Mr. Borne’s n comments disputed, Dr. "Celadon functionality physical therapy testimony presented Gamboa’s but no evi- Thus, advocating Roberts. Dr. reversal alternative, suggesting dence lower dollar court’s remittitur of award figure.” But entitled rebut earning apparent capacity, for loss of it is proof damages discrediting Borne's Dr. simply disregard chooses dissent testimony; put Gamboa’s did figure evidence that ex- contravenes Gamboa’s own evidence of a lower Dr. dollar words, argue figures pert testimony. order to In other the dissent *41 reason, agree- to must the trial court’s failure invalidate the For this we also vacate ment, the agreement the its to enter reverse failure Appeals’ of decision to Court evidence, failure to the jury’s of award into its strike the trial court’s remittitur to give for its not Cela- panel, the case and decision earning capacity. As is for lost instruction requested jury regarding of had no Court, don’s Appeals the Court this for also hold that the trial agreement. the We the trial court’s reasons explanation of declining give jury not err in remittitur, it did court did suggestion of so its on superseding instruction cause. There- perform information to enough fore, of affirm decision the Court of the court’s deci- we the meaningful trial review regarding challenges to the Appeals award suggest sion to and trial of a agreement court’s denial earning capacity.27 lost instruction. superseding cause Absent Conclusion finding remitted award—as uppermost trial sum, by the court—exceeds the relief grant In we decline reasonableness, boundary range aris- requested by the defendant Celadon Appeals agreement hold that Court had pretrial between we ing out remittitur, Chickasaw, including authority suggest a further Mr. Borne credibility capacity on Dr. Roberts’ functional on its based would reverse based own evaluation, performed Mr. Borne's suc- determinations. before credibility similar assess- physical therapy makes with her dissent without cessful part of its knowledge resulting improvement ments as evaluation remaining suggested court’s remittitur on the functionality, In her Mr. Borne’s trial testimo- contrary role awards. This ny, Borne based her of Mr. observations appellate reviewing court’s a trial during therapy, physical it was Roberts' Dr. remittitur; suggested our is limited role improved opinion that Borne has to the Mr. independent credi- respecting trial court’s point probably perform that he could seden- pre- bility reviewing determinations tary analysis Gamboa’s economic work. Dr. ponderance light them. of the evidence in Dr. rec- was also based on Dietze’s medical light objects to a The dissent remand in ords, including Dr. Dietze’s evaluation that passed time has accident since the improvement in the likewise did not factor involving truck. and the Celadon functionality resulting Borne’s from the length time is indeed. unfortunate trial, physical Dr. therapy with At Roberts. record, However, lengthy review of the after acknowledged physical Dr. Dietze resorting speculation without about improved strength therapist had documented suggested remitti- reasons for the trial court’s said, functionality and then "I do think tur, meaningful we to perform are unable sedentary, I he meet the could least appellate parties review to which the are enti- say light—possible light duty, would some- circumstances, tled. Under these range.” testimony, his trial where place rea- court’s failure to in the record that, if it is Dr. Gamboa testified assumed that suggested sons remittitur necessitates perform light-duty or seden- Mr. Borne can remand. work, tary then the vocational economic as- very very, be done in a sessment ‘‘would Appeals We the Court of restored note that way” Borne’s different and Mr. loss of earn- earning capacity the award for lost ing capacity be less than the juty, original amount awarded $1,334,647 figure which he had testified. $1,455,000. Whether there is material even However, we have because vacated the Court support evidence in the record to this award Appeals’ to restore the admits, decision award questionable. As Mr. Borne earning capacity and we on lost are remand- expert testimony whose forms the basis court, Gamboa, ing award, to the we need case this to a total Dr. testified $1,334,647, question of resolve the material evidence to amount of less amount than the Moreover, earning support capacity for lost jury. award by the Dr. Gamboa awarded $1,334,647 figure juncture. conceded that *42 footnotes, lengthy and so of the attempts we reverse remittitur five to defend of enjoyment sug- for life award loss its in reasoning separate decision. this gested by Appeals. clearly stated; the Court As opinion is I will not debate remittitur, proof on court’s thé majority with in a series footnotes. damages plaintiffs conflicting, was Superseding Cause regarding damages resolution of the issues depended upon assessment of the wit- disputed One issues for jury credibility by also jury nesses’ alleged was whether Borne’s injury sitting juror. the trial court as thirteenth would have for occurred but Celadon’s circumstances, Under these the trial negligence. Mr. presented testimo- court’s failure to indicate its for reasons ny injured 1, 2009, he July that was in the suggesting us a remittitur leaves unable with collision truck. Celadon’s Mr. Borne engage in meaningful review of the trial described the impact, collision as a “hard” Therefore, court’s remittitur decision. we accident, began and soon after the he re- case to the for remand the trial court ceiving. medical Although treatment. explanation of its reasons for suggesting for Borne worked six following months remittitur award. Because accident, stopped he eventually working Court of was suf- Appeals likewise without on medical based advice and restrictions. perform meaning- ficient information trial, At the time Mr. Borne still remittitur, ful trial court’s review of the we receiving medical experi- treatment and of Appeals’ vacate the Court decision encing pain that significantly limited his trial court’s reverse the remittitur daily activities. earning capacity.

award for lost trial, July At Celadon contended Accordingly, the decision the Court 2009, collision was of minimal force and Appeals part, in in is affirmed reversed capable causing was not Mr. Borne’s part, part, in forth and vacated as set Further, injury. argued that Mr. above, case is and the remanded from pre-existing Borne suffered arthrit- trial court for further Costs proceedings. ic which Celadon was not condition Truck- appeal are taxed Celadon responsible and that traumatic other Inc., Services, ing surety, its which inju- Borne’s events could caused Mr. if may necessary. issue execution ry, including Mr. continued Borne’s work collision, July six months after the Lee, J., an opinion Sharon G. filed on accident that occurred June a vehicular concurring part. part dissenting in 18, 2009, and a accident vehicular Lee, J., April on 2011. Celadon re- concurring part Sharon occurred G. part. quested superseding dissenting instruction on Mr. continued cause based Borne’s majority’s I concur in the re- decision July and the after accident work garding pretrial agreement. I dissent trial court April 2011 de- accident. The majority’s analysis regarding su- give instruction. As requested clined The trial perseding court did cause. verdict, deter- indicated give err in declining an instruction in fact Mr. Borne’s mined cause cause; superseding majority’s analysis collision injury superseding confuses causation fact with truck. Celadon’s Further, majori- I dissent from cause. ty’s analysis of and its held Appeals issue The Court declining to court. not err in instruct majority, to the trial court did remand *43 320 119, 123-24 Cnty., nei- on Davidson 155 because S.W.3d cause superseding Ct., (Tenn. 2004) v. (quoting Borne’s German ther Mr. continued work after App. S.W.2d, (Tenn. 2009 acci-

July 197, nor the 2011 April Nichopoulos, accident 677 203 superseding In this cause. 1978), dent grounds on other App. Ct. overruled Court, April relies on the Celadon v. Oak Seavers Methodist Med. Ctr. of cause, for- superseding 2011 as a accident (Tenn. 1999)) (inter 86, Ridge, 9 86 S.W.3d argument con- going Borne’s omitted); Drewry v. quotation nal marks tinued work after the 2009 accident Obion, (Tenn. 397, Cnty. 619 398 S.W.2d injuries. claims was caused 1981), App. grounds Ct. overruled other trial court de- reversible error Seavers, at 9 S.W.3d superseding cline to instruct causation, legal Proximate also known April cause on the 2011 accident. based causation, “encompasses panoply the whole injury Borne’s was caused Whether deny liability for other may of rules or an by, the collision Celadon’s truck Kilpa actionable of harm.” wise causes years nearly accident two that occurred trick, Joseph 868 598 (quoting S.W.2d at fact,,not question later is of causation in Causation, Valuation, Jr., King, H. in fact and superseding Causation cause. in Injury Personal Involv Chance Torts concepts and proximate are different cause ing Preexisting Injuries and Future Con subject analyses.1 in different Causation 1353, 90 L.J. Yale 1355 n.7 sequences, refers to the “cause and effect rela fact (1981)). The to be made un determination ¡tortious tionship conduct between proximate policy der cause is “whether the Cnty., 419 injury.” King v. Anderson responsibility of the law extend will 232, (Tenn. 2013) Kil (quoting 246 S.W.3d consequences negligent conduct 598) (internal quota patrick, 868 at S.W.2d at King, that have occurred.” 419 S.W.3d fact, omitted). tion marks Causation in (quoting Kilpatrick, 868 at S.W.2d cause, 246 “the or harm injury actual means d¿- 598). provides “legal Tennessee law have occurred ‘but-for’1the responsibility' must be those limited negligent (quoting fendant’s conduct.” Id. closely causes which so connected with are 598).2 at Kilpatrick, plaintiff A 868 S.W.2d are of significance the result and such prove preponderance of the aby must liability.” justified imposing the law evidence that the conduct defendant’s Co., (quoting If Id. Doe v. Constr. 845 injury.3 Linder plaintiffs the cause fact of the (Tenn. 1992)). 173 Proximate cause S.W.2d plaintiff prove fact, cannot cause in liability. “proof negligence determines boundaries action fails because King, (citing Kilpatrick, 419 246 proof nothing.” S.W.3d at without causation 598). Mosley v. Gov’t Nashville 868 S.W.2d Metro. & at 1. Waste 2011)); ("[T]here Mgmt., Negligence § Cent. Bell 65 Inc. Tenn. v. S. C.J.S. 200 Co., 425, (Tenn. conduct, that, proof Tel. 15 430 wrongful S.W.3d must but for Co., 1997) (citing Ralph Ridings v. M. Parsons injury (citing would not have occurred.” (Tenn. 1996); Kilpatrick 914 S.W.2d 83 207)). Negligence § C.J.S. 65 1993)); Bryant, 868 S.W.2d § Negligence 65 C.J.S. 3.King, (citing Kilpatrick, 419 S.W.3d at 598); Negli 57A Jur. 2d Am. § Negligence 2. See Jur. 2d also Am. 57A ("It gence plaintiff’s § 440 is the burden ("[C]ause injury or ... means fact prove by preponderance causation fact for the harm would not have occurred but (citing Kilpatrick, 868 the evidence.” conduct.”) (citing negligent defendant’s Mor 594)). Allen, rison v. is “a policy plaintiff Proximate decision are If the cannot cause considered.8 es- deny liability fact, judiciary otherwise tablish causation the case fails Mosley, conduct.” 155 S.W.3d at reaching proxi- actionable without ever the issue *44 618, Wells, (citing 122 Bain v. 936 S.W.2d mate Mosley, cause. 155 See S.W.3d at 123 1997); (Tenn. Alexander, George 430) 625 v. 931 Mgmt., 15 at (citing Waste S.W.3d (Tenn. 1996)). 517, 521 (“Applying deci Management analy- S.W.2d Waste liability deny proximate sion to cau described, under it is if sis seen that causation on logic, is “based exist, sation considerations exist, fact not not liability does does sense, policy, precedent common and ‘our and one of proxi- never reaches the issue inadequately more or cause.”) less ideas expressed (alteration added). or legal mate justice or of is what demands what Consequently, a superseding cause in ” possible administratively and convenient.’ assumes that struction defendant’s Lawrence, 525, White v. 975 529 S.W.2d negligence is the plain fact cause 1998) (Tenn. v. Snyder LTG (quoting Luft Dimick, injuries. tiffs Godbee. v. 213 GmbH, 252, 955 256 technische n.6 S.W.2d (Tenn. 865, 2006) App. 886-87 Ct. S.W.3d (Tenn. 1997)).4 (quoting Chamberland v. Roswell Osteo Superseding is cause within the included Clinic, Inc., 532, 130 pathic N.M. 27 P.3d analysis.5 Under proximate causation su 1019,1023 (2001)); Negligence see 65 C.J.S. cause, perseding relieved defendant § negligence 223. Unless defendant’s unforeseen, new, liability when a in fact of plaintiffs injury, the cause independent produce cause intervenes nothing indepen there is for subsequent expla result.6 The usual unforeseeable supersede. dent causes intervene and nation superseding is that a “breaks cause Godbee, (quoting See 213 at S.W.3d 886-87 legal the chain of causation between the 1023). Chamberland, “If 27 P.3d at original actor’s c'onduct and eventual demonstrates no more than Mgmt, at injury.” 15 432.7 Waste S.W.3d (i.e., simple dispute over causation fact negligence Issues in fact whether did regarding should defendant’s causation proximate injuries not cause fact the be resolved before cause issues did suffered (Tenn. 2007)); App. Mgmt., See 417 also 15 at Ct. 57A Am. Jur. 2d 4. Waste S.W.3d 430 Gore, 738, 555, 562; (citing Negligence Comparative Negli 749 §§ Smith v. 728 S.W.2d 1 (Tenn. 1987); Montesi, (3d 2017) v. 216 Tenn. Lancaster gence (citing § Manual 1:40 ed. S.W,2d 50, 217, (1965)); 390 65 220 see also Potter, 273-74); Negligence at 65 213 S.W.3d C.J.S. . C.J.S, ("[T]he § Negligence applicability 188 223 § ,., . . mixed be determined . on consid must sense, justice, poli logic, erations common Davis, (quoting See 325 160-61- 7. S.W.3d at Winnebago cy, precedent,” (citing Wyatt v. White, 529); Comparative 1 975 S.W.2d at ndus., Inc., 276, (Tenn. 566 280 S.W.2d I Potter, (citing Negligence § 213 Manual 1:40 1977))). App. Ct. 273-74); Negligence at 65 S.W.3d C.J.S. § 223. 149, McGuigan, See 5. Davis v. 325 S.W.3d (Tenn. White, 2010) (citing 160-61 975 529); Ostrow, Comparative Negligence 1 S.W.2d at 8. See Hale v. 166 718 S.W.3d (3d 2017) (citing ("Once § 2005) Manual 1:40 ed. Potter it is determined that the Co., Ford Motor 273-7 S.W.3d plaintiffs happened injury would not have but 4 2006)); Negligence 65 C.J.S. duty, for the defendants’ breach of the next 223; § Speiser, M. F. Krause Charles Stuart question is the defendants’ breach Gans, & Alfred W. Torts Law American proximate plaintiff's inju was a cause ed., 2017). § (Monique Leahy 11:9 C. M. 433; ...”); Mgmt., 15 at ry. Waste Negligence §§ C.J.S. Davis, (citing 6. See 160-61 at Grp., White v. Premier Med. argued issue by the then the builders of waterslide plaintiff), alone, instructing the [superseding] trial court erred is causation Chamberland, op- superseding P.3d on because the (quoting cause.” Id. cause 1023) (internal quotation provide marks omit the waterslide failed erator ted). twenty- adequate supervision in fact al dispute A over causation and allowed human people the standard one to form a chain lows for instruction waterslide, collapsed thereby su- justify cause and does not proximate engineer negli- specific superseding perseding more instruction and builders’ constructing gence cause. id. 888-89. a waterslide with See *45 The Id. at 180. Court of potential defects. circumstances, a certain defen- Under court Appeals in held the erred plaintiff argue that the failed dant could intervening not on giving jury instruction prove in fact and that the defendant cause cause because there was sufficient evi- by a liability superseding relieved operator failed dence waterslide argued Although both theo- cause. Celadon proper control maintain the water- ries, by only facts on the relied Celadon the weight slide and that on waterslide supported argument an regarding cause contributing at factor in its least fact, Therefore, cause. superseding not collapse. Id. declining in- trial court did not err jury injuries struct on-superseding cause. Be- not involve Underwood did rather, apart; did not occurred it years cause the court instruct involved .cause, injuries jury superseding plaintiffs’ on the dissent one-time dis- and. pute negli- not address trial court over the operator’s does whether the whether by giving gence superseded would have erred this instruc- eliminated lia- Doing issuing bility engineer alleged tion. so would constitute builders’ advisory opinion; negligent courts not issue should construction waterslide. compensation v. advisory opinions. only State Brown & Borne seeks Wil- 1, 2009, 186,192 Corp., July injury; responsi- liamson Tobacco 18 if S.W.3d (Tenn. 2000). 1, 2009, injury, liability for the its ble by a subsequent should not be eliminated To support argument that the trial years that occurred unrelated accident two by instructing court on jury not erred later. cause, superseding primari- Celadon relies Pridemark, ly on v. In cases: Underwood the owner and of a two Waterslides lessee Mid-America, Inc., factory destroyed by 823 sued manu- fire S.W.2d 1991), App. abrogated allegedly facturer responsi- Ct. on other and contractor grounds by Chapman manufacturing v. Bearfield, 207 ble installation (Tenn. 2006), highly S.W.3d and Pridemark flammable insulation the build- Pridemark, Co., Plating, Upjohn ing. at The Custom Inc. 567-68. 1985). jury against a verdict manu- Neither returned position. appeal, case facturer. at supports Un- Id. 568. On the manu- Celadon’s derwood, owners, plaintiffs opera- argued facturer sued court erred tors, sellers, suppliers, by charging jury independent of a on builders that collapsed twenty-one intervening when at The waterslide cause. Id. 575. it people Appeals tried once. The ride down at Court awarded manufactur- jury damages injured on awarded er a new trial based the erroneous Underwood, plaintiffs. admission of evidence. Id. at 174- 573-74. dicta, appeal, consulting Appeals, 75. On consid- engineer briefly Court erred jury ered the manufacturer’s instruction on instructing supersed cause; argument 870-71, and concluded there were multi- Id. at 882. Although the ing concerning factual issues whether the ple Court of Appeals reversed trial court intervening asserted as acts causes were on grounds, other it held that the trial reasonably foreseeable manufactur- in charging'the jury erred on su consequences and were normal of its er perseding cause. Id. at 897. The' par Appeals actions. Id. Court of disputed ties patient’s injury did rule as whether was error not was surgery caused or the natural charge cause, intervening progression pre-existing of a disease. Id. noting that on retrial may the evidence at 888. relating These were issues to cau from the in the differ first trial. “neither, either, sation fact and whether very Pridemark a' limited Id. offered dis- or may both be determined be causes- cause, intervening ruling (cid:127) cussion Therefore, in-fact.” Id. the standard in issue, alleged and did not involve an on proximate struction cause was sufficient us; subsequent injury in the case before (cid:127) because causation in fact *46 Dimick, in dispute, The cases Godbee v. 213 issue superseding cause 2006), App. not Ct. and “does play come into until after causa v. Metropolitan Pellicano Government tion in fact has been established.” See id. County, Davidson Nashville & No. (quoting Mgmt., at 889 Waste S.W.3d at M2003-00292-COA-R3-CV, 2004 432). WL Similarly, disputes the cause 2004), at *1 while in fact of injury—not Mr. Borne’s su factually distinguishable, are nevertheless perseding cause. Godbee, helpful to our In analysis. pa Pellicano, plaintiff diagnosed the was for his surgeon alleged neg tient sued her with injury after an at herniated disc in ligence diagnosis the and treatment of Pellicano, work. 2004 WL at *1. Godbee, back condition. "213 S.W.3d at her later, plaintiff Seven weeks the was in- performed 870. The doctor had defendant volved in a impact vehicular collision. low partial on laminectomy patient the The plaintiff the collision stated after that alleviate disc herniations and her back he was injured. not He continued to work the pain. surgery, After the doctor re treatment until not seek medical did MRI results and

viewed determined the four months later. months Six after the spinal not patient did stenosis. When have collision, plaintiff surgery repair the had patient improve, did not the doctor plaintiff herniated The disc. Id. sued that, according ordered another MRI for damages arising out accident. Id. witness, plaintiffs expert indicated the at *2. The. trial plaintiff awarded the Thereafter, patient spinal had stenosis. damages, including expenses medical relat- performed laminectomy doctor a bilateral repair ed to the surgery to the herniated patient. surgery, on the After the second reversed, disc. The Appeals Court of arachnoiditis, find- patient developed a hy ing preponderated roots, per-inflammation of nerve based, against the trial in patient court’s decision by claimed caused was part, plaintiffs equivocal on the doctor’s negligence. argued The doctor’s doctor testimony be- patient’s regarding connection predated arachnoiditis surgery. tween the collision and the surgeries by pre- caused Id. surgical Appeals properly After *10-11. disc herniations. The Court doctor, patient framed the one of causation appealed ruled issue as. contended, fact, in part, noting that the trial court should be resolved issue input parties or done after proximate cause before consideration *1, by of fault. *3. The analysis Id. Pellica- this Court. allocation careful Third injuries dif- alleged involved-two .fairly promul is a recent Restatement that occurred seven weeks ferent causes Institute; Law gation American us two apart. case involves before superseding cause not has definition alleged injuries with different causes that adopted by any previously court in been years primary apart. The occurred two Only a of state courts Tennessee. handful cases issue in both causation in fact—not adopted approval have cited with superseding cause. superseding Restatement’s Third definition prove had to that Celadon’s Mr. Borne .9 cause injury. in fact of his the cause conduct was accident argument Celadon’s lay and testi- presented Mr. Borne medical Borne’s April injury caused Mr. mony injury likely was more than fact, raised issue causation not Celadon’s collision with caused properly superseding cause. presented testimony that truck. Celadon Therefore, fact. instructed causation Borne’s caused injury could been declining judge did issue err April accident. The therefore, on superseding instruct jury, question was a cau- cause. all, part, none of sation fact—whether occurred injury would have Borne’s' Remittitur negligence of driver.

but for the Celadon’s *47 many years, appellate For courts have a new majority approval cites The with standard followed well-established re- forth “superseding cause” definition of set damages jury’s award of that is view for (Third) of Torts: Lia the Restatement clear, concise, easy to relatively apply. and bility and Emotional Harm Physical courts, Appellate utilizing this standard Restatement”). (2010) (“Third section 34 review, important served an role However, adoption Third' Re curbing runaway verdicts. superseding cause excessive statement’s definition majority’s -.rejects appellate decision raised, briefed, argued by was not of review that worked well standard has parties. If the Third Restate-' and when adopts standard con- superseding cause is instead is ment’s definition Tennessee, significantly adopted fusing, apply, should difficult See, People Brady, longer e.g., Cal.App.4th principle should no v. 129 outdated 286, (2005) 1314, Green, Cal.Rptr.3d (citing See, 29 302 e.g., apply, Michael D. Unan Ltd., Caspers, approval); 90 Hayes v. ticipated with Comparative Negligence: Ripples of 781, (2005) 428, Conn.App. 881 A.2d 436 Liability Superseding in Products Cause Rap (citing approval); with Mitchell v. Cedar 1103, (2002); Beyond, 53 S.C. L. Rev. 1123-35 Dist., 689, 700, Cmty. 832 N.W.2d ids Sch. Robertson, Fury; W. Love and Recent David 2013) (Iowa Third Restate (applying 702 Comparative Radical Revisions to the Law of scope-of-liability approach adopted by ment’s 175, Fault, (1998); 59 L. Rev. 190 n.36 La. Kaczinski, Thompson 774 courts v. Iowa" Christlieb, Note, Terry Why Superseding Cause 829, (Iowa 2009)); Common N.W.2d 839 Abandoned, Analysis 72 Be Tex. L. Should Cabinet, wealth, Transp. Dep’t Highways v. 161, (1993); Kelsey Joyce Rev. 181-86 L. (cit Babbitt, 786, 2005) (Ky. 172 S.W.3d 793 Hooke, Comment, Collision Sea: The Irrec at ing approval); v. Buck with Commonwealth Superseding oncilability Cause and Pure 177, 1051, ley, Mass.App.Ct. 90 57 N.E.3d Admiralty, Comparative Doctrines in 74 Fault (2016) (citing approval). 1057 . 159, (1999) 188-89 Wash. L. Rev. fault, some comparative With the advent of argue is superseding cause commentators

325 authority appellate judge agrees a trial restricts courts When with the approves it in the damage verdict-- and awards. review

judge’s juror, role the Court as thirteenth the verdict is review limited Appeals’ Appellate Review Standard of to a the record to review determine and Application supported is whether the verdict mate- (cid:127) Meals, 417 law, rial at 422 evidence. our S.W.3d Under established standard Co., 52, Kroger (citing v. 604 Poole S.W.2d Appeals the Court of review used 1980)). (Tenn. 54 This standard deferential depends judge whether the has the jury and the appropriate because agreed or with the jury’s disagreed verdict trial court have seen and heard wit- damages. See ex rel. Meals v. Meals nesses, demeanor, their observed 414, Co., Ford Motor 417 422 S.W.3d weighed alongside testimony their all other (Tenn. 2013); Epiphany v. Salon & West the trial. Coffey See presented in evidence LLC, Day Spa, No. E2016-01860-COA-R3- Prods., 929 326, Fayette v. Tubular S.W.2d (Tenn. CV, 1502827, at Ct. WL *5-6 2017 (Tenn. 1996); Foster n.2 v. Amcon 25, 2017); App. Apr. Bradley Bishop, v. Int’l, 142, (Tenn. Inc., 621 143-44 S.W.2d W2016-01668-COA-R3-CV, No. 2017 WL 1981) (quoting Tel. & Tel. Co. Cumberland 1192112, (Tenn. App. at *15-16 Ct. Mar. Smithwick, 463, 803, v. 112 Tenn. 79 S.W. 30, 2017) Meals, (quoting at 417 S.W.3d (1904)). “evidence Material 422-23); Kempson Casey, v. E2015- No. question controversy, material to the 6499283, 02184-COA-R3-CV, 2016 WL at necessarily must enter which con- into 2016) *3 Ct. App. Nov. (quoting itself, controversy sideration Meals, 422-23); Martin v. evidence, or in the other connection with Ins., Sys., Perma-Chink No. E2015-01466- Meals, be determinative of the case." COA-R3-CV, at *11-12 WL at 422 (quoting Knoxville Traction 27, 2016) (quoting June Brown, Co. Tenn. 89 S.W. Meals, 422-23); Goree v. omitted). *48 (internal (1905)) quotation 321 marks Serv., 413, Inc., United Parcel 490 S.W.3d standard, der the jury’s award Un (Tenn. 2015) Meals, 444 Ct. App. (quoting upheld if will there is material (Mar. 420), appeal 417 at S.W.3d denied it; support it evidence is irrelevant 23, 2016); Dep’t State ex rel. Tenn. of weight pre- whether the of the evidence Jones, v. Transp. No. M2014-00151-COA- against ponderates at See id. award. (Tenn. R3-CV, 3929584, *4, 2015 WL at *7 (quoting 423 Bros. v. Pac. Hohenberg Mo. 2015) 25, (citing Meals, Ct. App. June 417 117, R.R., (Tenn. 586 S.W.2d 119-20 Ct. . 422); Saulsberry, 1979)) at v. No. S.W.3d Barnes App. W2014-00646-COA-R3-CV, 2014 WL If trial judge disagrees with the 7335795, (Tenn. 23, App. at *5 Ct. Dec. damages sug of assessment 2014) (citing Meals, 423); at S.W.3d 417 remittitur, gests Appeals Court of Deyo, v.

Bonner No. W2014-00763-COA- applies preponderance of the evidence (Tenn. R3-CV, 6873058, 2014 *4 WL at of Coffey, standard review. See 929 S.W.2d 2014) 5, Meals, (citing App. Dec. 417 (quoting at 331 of the preponderance Mullins, 419, 420); Pyle at S.W.3d v. No. App. evidence P. standard Tenn. R. under E2012-02502-COA-R3-CV, 2013 WL 13(d)) (citing § Tenn. Ann. 20-10- Code at *4-5 Ct. App. 102(b); Nov. Patterson, Thrailkill v. 879 S.W.2d 2013) Meals, 1994)). at (quoting 417 422- S.W.3d 841 the prepon Under 23). standard, re derance of the of evidence

326 is view, majority’s analysis The remittitur Appeals of reviews Court First, appellate troublesome. standard novo, pre accompanied record de judge’s of review for a remittitur of the trial court’s sumption of correctness established; damages an award of is well if the findings, to determine impression. See is not issue first against preponderates the record 422; Meals, at Coffey, 417 S.W.3d Id.; see suggested remittitur. court’s In Coffey, the at 331. awarded S.W.2d Meals, Tenn. (quoting at S.W.3d $30,000 compensatory dam- plaintiff 20-10-102(b)) Tenn. R. (citing § Code Ann. $1,500,000 punitive damages. ages and 13(d)). a less deferential App. P. This is approved Id. at The 327. evi than the material standard of review damages, compensatory reduced award at 331 Coffey, dence standard. $500,000, damages punitive award by a supported preponder A fact is n.2. $20,000 plaintiff pay. as front and awarded more when fact ance the evidence of Appeals Id. The Court affirmed Republic Teter true than not. probably award, damages compensatory remitted Inc., Parking Sys., 181 S.W.3d $150,000, punitive damage award (Tenn. 2005). ma Unlike review under front pay Id. and vacated award. at standard, judge’s a trial terial evidence Supreme Court reversed the weight if the further Appeals’ remittitur can be reversed Court remittitur award, damages punitive reversed the against the re the evidence preponderates Court decision vacate the Appeals’ 422-23; Meals, See 417 S.W.3d mittitur. award, pay front and reinstated the award (quoting Tenn. Coffey, 929 at 331 court. Id. at of the trial 326-27. review- 13(d)). R. P. of the ing Appeals the decision Court its re- Appeals, based on Court punitive further award dam- reduce evidence, fur- may suggest a of the view $500,000, $1,500,000 to ages from the Su- applicable stan- ther remittitur under preme authority Court affirmed § 20-10- Tenn. Code Ann. remittitur, dard review. appellate suggest courts 103(a);10Meals, 422; Coffey, though recognizing authority 417 S.W.3d “naturally than at 331. more circumscribed protest under 20-10- the court of 10. Tennessee Code Annotated section n case, provides: appeals, application take the permission appeal, upon for review (a) judgment If the of the trial court *49 point, supreme to the court. regard in the to a remittitur is affirmed If, court, (b) opinion supreme the in the of party required appeals, a is court of so that reduced, should not been the verdict trial, a to make a remittitur or suffer new appeals of in and the court was error if, court, by judgment or the of the trial affirming the action of the trial court as opinion appeals, a fur- the of the of court remittitur, appeals or if the the court of larger of the required ther or a is remittitur was, itself, suggesting error remitti- a party in whose was ren- favor the verdict court, first time in or in dered, tur if in the or after the case was tried larger suggesting further or a remittitur by judge a lower without court trial court, suggested in the trial if than that jury, if in the or after the case was tried correct, judgment is otherwise the case lower court with a remittitur extent, judg- shall be reversed suggested judge, by the trial a remitti- supreme ment in the shall rendered suggested required tur in the first originally court full amount award- appeals, penalty granting a for the court of trial, sitting by judge ed or the trial new then in each and of these all jury, may party verdict as the case be. events the in whose favor the without a may § judgment has make Tenn. Ann. 20-10-103. been rendered Code forward, possessed by the trial courts.” Id. at 381. uncomplicated procedure for re- Tennessee Code 20-10- Annotated section a viewing trial court’s remittitur of jury’s 102(b) provides that court when the trial has award worked many years. well remittitur, suggests a Appeals the Court of Contrary to Coffey, majority holds that applies applicable the standard review an appellate court cannot suggest an addi- sitting to decisions of courts without tional remittitur unless there is no materi- Thmilkill, Id. at 331 jury. (citing 879 al to support trial court's (Tenn. 1994)). standard, This “regardless decision of whéther the trial forth in set Tennessee of Appellate Rule already court has suggested a remittitur.” 13(d), provides “findings Procedure- . Second, contrary to existing practice, by fact the trial court in civil actions shall appellate allows an majority novo upon be de the record of the trial suggest a remittitur “if it finds court, accompanied presumption uppermost the award exceeds the bound- finding, correctness of pre- unless ary range of reasonableness under ponderance the evidence is otherwise.” presented, i.e.,. the evidence ‘the amount 13(d). Applying Tenn. P. stan- R. beyond evidence, which there is no upon review, Supreme con- dard Court case, view reasonable of the to support cluded that the evidence did not prepon- The majority goes verdict.’” further against derate court’s remittitur prohibits an appellate court punitive damage $500,000. award granting “its own further remittitur unless Coffey, Significantly, S.W.2d at award, even as remitted the trial Supreme Court focused on whether the evidence, court, is more than upper limit of preponderated against the trial reasonableness, i.e., range of sup- suggested court’s remittitur and did ported material evidence.” This new consider the Court of Appeals’ unnecessarily standard restricts the au- suggested supported by remittitur was Appeals Id. thority adjust Court of material evidence. based verdict review the evidence reasoning The dissent’s is consistent review, appropriate and the standard of Coffey. previous holding with our As in us, Coffey the case before the trial court in Finally, protracted analysis, after a suggested a remittitur and the Court majority declines to review trial court’s Appeals suggested remitti- additional parties sends decision and back to the Following Coffey, tur. deter- dissent yet hearing trial court for another because mines preponderates whether the evidence majority cannot ascertain reason against the court’s Under remittitur. suggested the trial court the remittitur. standard, this established a trial when problematic This several reasons. judge suggested has of a First, majority should have deter damages, award the Court initially if mined the record sufficient Appeals should determine whether the evi- *50 not, review, for if and should against preponderates dence trial the no not, analy the further remanded case with court’s decision. If it does of the Court majority’s lengthy sis of the issue. The Appeals affirm the trial de- should court’s of is It if discussion review pre- cision. follows that standard evidence advisory purely given of a its decision not to ponderates favor further' reduction damages in the remittitur to by award as consider the trial court’s and remitted court, trial may Court of should not render Appeals remand case. Courts v. Brown & suggest straight- opinions. a State Wil advisory further remittitur. This 328 186, 192 ing injury. an Corp., capacity before and after

liamson Tobacco S.W.3d (Tenn. 2000). Shoney’s, Inc., 4 Super Flea v. (citing Mkt. Overstreet 1999). Olsen, Chattanooga, v. 677 S.W.2d 703 The heard Inc. 1984)). justicia perma Under the that Mr. suffered a evidence bility exercising,judi injury dictate in the July doctrines that nent.back accident restraint, do, say cial in an opinion injury only we “[w]hat and because of that could to, by, most, should be and limited confined Dr. Cates' Dr. sedentary work. and that, facts of the under consideration case .and Mr. based on Gamboa testified necessary questions for a decision prolonged Borne’s limitations and physical State, that case.” accident, Tenn. Staten Mr. absence work since (1950). majority The likely never Dr. again. Borne would work by going beyond point overreached that Borne’s loss Gamboa testified necessary that for See id. value, was a decision. earning capacity, present reduced The.majority’s advisory analysis remittitur $1,334,647, disputed was Celadon Dr. Gam prece binding authority is dicta and not presented the boa’s and testimo testimony the rule of stare See dent'within decisis. ny of a rehabilitation Seyler, Ms. Carla 190).- (citing § id. 21 C.J.S. Courts counselor, opined who Mr. Borne regular or find return to his work could Second, given by reason trial comparable pay. present work suggested for the court was suf- remittitur alternative, suggesting no evidence ed an appellate ficient for review. trial The- figure by than dollar lower calculated jury’s court’s order stated verdict acknowledged by ma Dr. As Gamboa. ap- and remittitur was excessive jury’s “indicate jority, awards Ideally, pro- propriate. judges should Mr, Borne’s testimony credited possible much as as information vide ' testimony witnesses did not and credit However, appellate explain their decisions. by presented of the witnesses Celadon.” experienced reviewing rec- courts are against preponderates The evidence prepon- if the evidence ords determine $1,455,000 jury’s is award because there a against by the decision reached derates support any evidence -record making can so do without court and earning capacity $120,353 greater loss independent credibility A determinations. by Dr. than the calculated amount Gam- necessary in this remand case. preponderates also boa. years eight it has been over Finally, against remittitur court’s 1, 2009, since Borne’s accident. $1,100,000, nothing sup the -record $5,000 There difference between ports of Dr. reduction calcula Gamboa’s suggested trial court remittiturs $234,647. tion quanti Absent other Appeals. This case should and Court evidence, jury’s tative loss award to the trial court for sent back earning capacity should be remitted that can then be proceeding—one another . $1,334,647 enough. appealed. Eight years long finality parties an end to deserve pain suffering, On the award for litigation. disagreed trial court with the verdict $750,000 earning capacity, suggested On the trial loss , $500,000, pain suffering disagreed the-jury’s verdict and Awards suggested $1,100,000. compensate person physical award remitted men- Meals, earning injury. of. capacity Loss the dif tal refers discomforts caused *51 Overstreet, (citing at 4 injured person’s ference an earn 417 420 between S.W.3d

329 715). S.W.3d at discomforts include the -award for loss of enjoyment These On of with, fear, humiliation, “anguish, distress, -grief, life, the judge disagreed shame, worry” accompany an may jury’s suggested award and a remittitur of Overstreet, injury. 4 at Mr. S.W.3d the loss of of enjoyment life award from Borne and his wife about se- testified $750,000 $400,000. An for loss award verity pain of his how it affects and his enjoyment compensates life for person a daily January activities. Dr. Dietze’s 2010 impairment placed on or her ability his evaluation Mr. Borne Mr. indicated that to enjoy pleasures of the normal life. neck pain, Borne had constant severe Meals, 420 Lang (citing 417 S.W.3d v. headaches, pain, back and leg intermittent Am., 564, Inc., Nissan N. 170 S.W.3d 571- pains.' Dr. Dietze explained that future (Tenn. 2005)). damages This 72 award “re reduce, eliminate, treatment could but daily lates to life activities that are com Glorioso, pain. Mr. Borne’s Dr. exam- who mon Overstreet, 4 people.” most S.W.3d 2012, ined Mr. Borne March determined 716., compensate plaintiff It can also a. an that Mr. Borne suffered annular fibro- for the pur loss uncommon individual tear,- produce which sis pain. The suits or talents. Mr. Borne testified about against preponderate does not evidence lifestyle his injury active before his suggested the trial court’s ability injury how his affected his to en $500,000. pain suffering for award gage in recreational activities chores. impair On the award for permanent His wife confirmed was no ment, disagreed with the longer his able assist mother as he could jury’s suggested remittitur of verdict a before lifestyle the accident and that his permanent award from impairment changed. had a Based review $100,000. $750,000 perma An award for evidence, Mr. Borne a suffered substantial nent impairment compensates person for Although loss' of enjoyment of life. “an injury [person] which cannot significant, particu Borne’s limitations are Overstreet, completely 4 recover.” S.W.3d larly age, for person of his limitations his Bero, (citing at 715 Jordan v. 158 W.Va. totally do not him deprive of all com 28, (1974)). 618, 210 630 Permanent S.E.2d enjoyed he mon activities life before impairment earning awards can “relate to injury. preponder does not pain, capacity, impairment physical judge’s suggested ate the' ré- body against or loss of use of a part.” function (citing Bradley, $400,000 enjoyment Id. Yates v. 396 mittitur to for loss (Mo. 735, 1965)). App. Dr. Ct. Dietze of life. assigned Mr. 10% permanent Borne a im Accordingly, Mr. Borne entitled pairment rating on his lower based back is, $2,334,647, award which remitted injury. jury’s damages award 37% decrease This award. earning loss of pain and capacity, suffer impermissi amount of reduction does

ing, loss enjoyment of life do not bly destroy the verdict. See Johnson v. supplant permanent impair award Nunis, 383 Ct. ment, but there See overlap, some id. ,of 2012) App. (holding suggested remittitur Thompson (citing Passenger v. Nat’l R.R. award); totally destroy jury’s 43% not did (6th 1980)). Corp., Cir. F.2d Hawks, v. 36 S.W.3d 498- The evidence does not preponderate Grandstaff 2000) (upholding remit against trial judge’s sug decision 46%); titur of Anes Ft. gest perma remittitur for award Sanders Steele P.C., $100,000. impairment Grp., nent thesia *52 1994) (upholding remittitur 40%). reducing jury’s verdict herein, I concur

For the reasons stated part. part and dissent BANK

REGIONS THOMAS, et al.

Thomas D. Tennessee,

Supreme Court

AT JACKSON.

April 2017 Session

Filed October