Primm v. Wickes Lumber Co.

845 S.W.2d 768, 1992 Tenn. App. LEXIS 681
CourtCourt of Appeals of Tennessee
DecidedAugust 7, 1992
StatusPublished
Cited by23 cases

This text of 845 S.W.2d 768 (Primm v. Wickes Lumber Co.) 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
Primm v. Wickes Lumber Co., 845 S.W.2d 768, 1992 Tenn. App. LEXIS 681 (Tenn. Ct. App. 1992).

Opinions

OPINION

LEWIS, Judge.

This is an appeal by defendants-appellants, Wickes Lumber Company (Wickes) and Kenneth Wayne Johnson (Johnson), from the judgment entered on the jury’s verdict in favor of the plaintiff, Edgar William Primm, in the sum of $30,000.00.

This case arose out of a motor vehicle accident which occurred on 30 July 1987 in Davidson County, Tennessee, and resulted in injuries to the plaintiff.

Plaintiff filed his complaint against defendants for injuries received in the accident. Defendants-appellants conceded liability prior to trial and the case was tried solely on the issue of damages. The jury returned a verdict for $30,000.00 in favor of the plaintiff and against both defendants. Judgment was entered on the verdict.

The plaintiff was sixty-seven years old as of the date of the accident and had retired as a state employee at age fifty-nine because of heart disease. Plaintiff comes from a large family with a remarkable history of heart disease which had caused the death of five siblings. His parents also suffered from heart disease.

Plaintiff suffered a heart attack in 1977 and another in 1981. After this second heart attack, plaintiff underwent by-pass surgery and embarked on a routine of vigorous cardiovascular exercise at the suggestion of his physician. In 1990, plaintiff suffered another heart attack and subsequently underwent quadruple by-pass surgery.

The injuries received by the plaintiff in the accident caused bruises and hip soreness. Plaintiff also testified that the accident caused significant leg pain and swelling, but his physician attributed that pain to the fact that plaintiff had had a vein removed from the leg for use in bypass surgery. Plaintiff testified that the injuries he received in the accident drastically curtailed his exercise program and that he was no longer able to exercise to the extent he had before the accident.

Before trial, defendants moved in limine to exclude the portions of the testimony of plaintiff’s cardiologist, Dr. Laurence A. Grossman, relative to plaintiff’s subsequent medical treatment and care for heart disease. Defendants also moved to exclude certain testimony of Dr. E. Dewey Thomas, the orthopedic treating physician, and testimony of the plaintiff relating to causation regarding various medical conditions. The court sustained the motion only for the routine heart treatment Dr. Grossman conducted after the accident. This treatment had been ongoing for years before the accident. The court denied the request to exclude portions of Dr. Grossman’s testimony from which the jury could draw the conclusion that plaintiff’s heart attack and heart bypass surgery in 1990 were caused by the accident.

The record shows that Dr. Grossman did not base his testimony upon a reasonable degree of medical certainty. Defendants made timely objections to this testimony during the deposition, and in the pre-trial motion in limine the defendants sought to exclude those portions of the deposition which related to subsequent heart problems. In his deposition, Dr. Grossman was [770]*770specifically asked if he had a medical opinion as to whether the accident affected plaintiffs heart condition to which he replied:

Well, in the first place, this man had heart trouble before the accident. And heart disease is a progressive thing but, he, after the accident and with some of the stresses that he has had, he had more angina and more heart disease and had to have that bypass surgical procedure, now I can’t say that the extra stress, or whatever else he had, extra pain or extra medication or alteration in the lifestyle, which was necessitated by the accident, I would say hadn’t caused it. Now whether it’s a contributory factor is up to question, I can tell you that. It did not cause it. It could well have contributed to the acceleration of his vascular and cardiac disease.

Defendants also objected to a letter dated 15 August 1988, addressed to plaintiff’s attorney from Dr. Grossman. In the letter, Dr. Grossman opines as to the permanency of certain orthopedic injuries, but does not state these conclusions with reasonable medical certainty. In the letter, Dr. Gross-man states that:

[plaintiff] continues to experience a great deal of left hip pain, pain in the neck, and pain in the left shoulder. More recently, the pain has radiated to the left foot.
These symptoms are the consequence of his accident and reflect both initial traumatic injury to the joints involved as well as a traumatic injury to the cervical spine, probably a sprain, with nerve root involvement.
[Plaintiff] has never had these symptoms in the past. Since they have now persisted for more than a year, I suspect that they will be permanent.

These medical conditions were conditions for which Dr. Grossman had referred plaintiff to Dr. E. Dewey Thomas, the orthopedic specialist, but Dr. Thomas had not made a determination of impairment.

Defendants timely objected to Dr. Gross-man’s testimony and to the entire deposition as failing to meet the evidentiary requirements for admissibility pursuant to Rule 702, Tennessee Rules of Evidence.

Rule 702, Tennessee Rules of Evidence provides; “If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.”

The expert’s opinion must substantially assist the jury in its determination and the question of what will “substantially” assist the jury is one for the trial court to determine. The expert’s testimony must satisfy Rule 702 and the threshold question for the court’s determination is whether the witness’ testimony “will substantially assist the trier of fact to understand the evidence or to determine a fact in issue.” The Tennessee standard is much more stringent than its federal counterpart which merely requires evidence from experts which “assist the trier of fact” rather than “substantially assist the trier of fact.” The importance of the court’s task in determining whether the evidence will substantially assist the trier of fact is borne out by the weight given to an expert’s testimony. “Expert testimony is unique because experts are allowed to give an opinion in a particular situation whereas other witnesses are prohibited from giving opinion testimony in areas where expertise is not required.” State v. Howse, 634 S.W.2d 652, 657 (Tenn.Crim.App.1982).

Here, plaintiff was allowed to testify that the injuries he sustained in the accident virtually eliminated his ability to continue his cardiovascular exercise program. In addition, the jury was allowed to consider Dr. Grossman’s speculative testimony that the accident may have contributed to the acceleration of plaintiff’s vascular and cardiac disease. The admission of Dr. Grossman’s testimony allowed the jury to speculate that the reduced cardiovascular exercise program was a contributing cause of his heart attack.

[771]*771Numerous Tennessee cases establish a necessary degree of medical certainty to prove causation.1 Testimony which amounts to mere speculation is not evidence which establishes proximate cause. Lindsey v. Miami Development Corp.,

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Cite This Page — Counsel Stack

Bluebook (online)
845 S.W.2d 768, 1992 Tenn. App. LEXIS 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/primm-v-wickes-lumber-co-tennctapp-1992.