Cortazzo v. Blackburn

912 S.W.2d 735, 1995 Tenn. App. LEXIS 527
CourtCourt of Appeals of Tennessee
DecidedAugust 4, 1995
StatusPublished
Cited by6 cases

This text of 912 S.W.2d 735 (Cortazzo v. Blackburn) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cortazzo v. Blackburn, 912 S.W.2d 735, 1995 Tenn. App. LEXIS 527 (Tenn. Ct. App. 1995).

Opinion

OPINION

TODD, Presiding Judge, Middle Section.

The captioned plaintiffs have appealed from a jury verdict and judgment awarding Theodore Cortazzo $25,000 for his personal injuries and property damage and loss of consortium of his wife, Deloris, and awarding Deloris Cortazzo $10,000 for her personal injuries and loss of consortium of her husband, Theodore, resulting from a collision when a vehicle owned by Troy Blackburn and operated by Terry Blackburn struck the rear of a trailer attached to the rear of a vehicle occupied by plaintiffs.

On appeal, plaintiffs present five issues regarding instructions to the jury and one issue regarding refusal of additur.

-The Facts-

On October 15, 1990, the date of the collision, plaintiffs occupied a pickup-truck which was pulling a heavy steel “lowboy trailer” which was designed and used to transport a single automobile, but was empty at the time. As the plaintiffs’ truck slowed to make a right turn, a loaded dump truck operated by Terry Blackburn struck the trailer in the rear. Pictures in the record illustrate the damage to the rear of the trailer, the “hitch” mechanism which attached the trailer to the pick-up truck and the distortion of the bumper of the truck. Plaintiffs describe the collision as violent causing their heads to collide with the inside of the cab of their truck. Both plaintiffs complained of dizziness and pain and were transported by ambulance to a hospital.

From October 15 to October 19, 1990, Mr. Cortazzo remained in the hospital where he was treated by Dr. Sethi, an internist, whose testimony as to diagnosis, treatment and prognosis does not appear in the record. Mr. Cortazzo testified that Dr. Sethi continued to treat him for his injuries and sent him to numerous specialists. He also testified that his complaints of pain in the neck and head and voice failure were not present before the collision, began at the collision, and continued with temporary partial relief by therapy to the date of trial on July 20, 1994.

One of the specialists, Dr. Richard Fish-bein, an orthopedist, testified that he first saw Mr. Cortazzo on February 7, 1991, at which time his complaint was neck and upper back pain and he was barely able to speak. Dr. Fishbein referred Mr. Cortazzo to specialists to treat the throat, and to a neurologist regarding numbness in hands. Later he referred Mr. Cortazzo to a rehabilitation center for treatment. His testimony includes the following:

A. Well, my diagnosis to him was a cervical radiculitis, or what I call a radiating pain due to nerve root irritation secondary to the whiplash type of injury that he sustained in the trauma.... [W]e sent him to physical therapy for a considerable length of time, probably up until January, uh, — probably up until March of 1998_ [Wjhere he went two or three times a [738]*738week and they did various modalities, including: uh, massage, ultrasound, traction, soft tissue releases. And surprisingly so, he did get considerably better as concerning the severe problem, the acute problem but he still had a consider[able] amount of lingering pain and spasms and problems to his both upper extremities and his neck area.
Now, in the course of the treatment I was, furnished an MRI, uh, what they call a, uh, magnetic imaging test, which was performed by Dr. Verne Allen, the results I have here in my hand, dated November 20th of 1990.
A. An MRI is an imaging test which reconstitutes the vertebrae and the discs between the vertebrae, as well as its relationship to the spinal nerves which come from the spinal cord. And in his case, it showed that unbeknownst (sic) to Mr. Cortazzo at the time, that he had a considerable amount of problems, or breaking down of the bones with spurs, and narrowing of the spinal cord, what is known as stenosis, as well as some disc bulging in the mid-cervical area.
Q. Now, based upon your history taken from Mr. Cortazzo, had he had any neck problems prior to this auto accident?
A, No, sir.
Q. Is that particularly unusual that somebody could have these problems but have no symptoms?
A. No that’s — that is not unusual-
So, in his case we have problems to all the various structures of his spinal canal: the vertebrae, the discs, the spinal nerves and the spinal cord. The spinal cord being narrowed in diameter, which is called sten-osis, all which make for problems in his case.
Q. Okay. Now, based upon a reasonable degree of medical certainty, in your opinion what affect did this rear end collision have on these conditions that you’ve just described?
A. Well, it aggravated a pre-existing condition which he didn’t even know he had, or even if he knew he had mild aches and pain, as most people have as they get older, uh, it aggravated to a point that it caused some permanent problems.
[I]f your neck is dramatically altered by a whiplash injury which stretches the ligaments and alters the biomechanics causes considerable amount of problems. And finally, it shows a “disc bulge — mile”, that is probably consistent with his age and not of any significance at all. With all of these taken in together, right, add up to a fact that he was predisposed not to respond as to conservative treatment as — as was given.
Q. Okay. Doctor, are the problems that you’re seeing in Mr. Cortazzo now consistent with aggravation of those pre-existing conditions?
A. Yes, sir.
Q. Doctor, let’s go to the other type of injury that you have touched upon, and that’s called the soft tissue part of this. If you would define for the Jury, what are the soft tissues you’re talking about?
A. Well, the ligaments and the muscles of the cervical spine hold your neck erect in one position. Uh, when you have a soft tissue injury you have a stretching of the ligaments and the muscles, and what happens then, based on the severity of the injury, you have microscopic bleeding, just like is you bang a muscle that doesn’t have to show up on any test and it heals with scar and a lot of times people end up with their neck in poor biomechanics. In other words, they sit forward, they hunch, uh, they don’t straighten up correctly because it’s more comfortable, although in the long run more, uh, to a disadvantage to hunch over. But most people who have soft tissue injuries find a position of hunching better, and that’s why we send them to physical therapy basically because the only cure of this is basically correction of posture, which, again, reconstitutes the normal biomechanics of your neck and causes a decrease in the problems that he’s having, namely headaches, occasional dizziness and pain.
[739]*739Q. Now, this soft tissue-the injuries to these soft tissues, can they be permanent?
A. Yes, sir.
Q. Okay. When they heal back how do they heal back?
A, Basically with stretching and scar tissue.
Q. Okay. Is that tissue as good as the original tissue?
A. No, sir.
Q....

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912 S.W.2d 735, 1995 Tenn. App. LEXIS 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cortazzo-v-blackburn-tennctapp-1995.