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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
November 14, 2012 Session NORMAN HILL v. DANNY TAPIA, JR., ET AL.
Direct Appeal from the Circuit Court for Davidson County No. 09C2957 Hamilton V. Gayden, Jr., Judge

No. M2012-00221-COA-R3-CV - Filed December 21, 2012

This is a personal injury case resulting from an automobile accident. After the accident, Plaintiff/Appellant learned that he suffered from a degenerative disc disease, which required surgery. Appellant sued the two drivers involved in the accident for damages, which included his medical expenses for the disc surgery. At trial, Appellant's surgeon's deposition testimony was read to the jury, in which the surgeon testified that while the accident "aggravated" Appellant's existing condition, the treatment he received was not "causally related" to the accident. Appellant offered another expert's testimony, however, that did relate the treatment to the accident. At the close of proof, Appellant moved for a directed verdict on the issue of causation for his medical expenses, arguing that because the surgeon's testimony was contradictory, it was subject to the cancellation rule. The trial court denied the motion and sent the issue to the jury. The jury returned a verdict for Appellant, but in an amount that did not include the medical expenses he incurred to treat the degenerative disc disease. Appellant was also awarded discretionary costs. After a careful review of the record, we affirm.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and H OLLY M. K IRBY, J., joined. James B. Johnson and Lauren Paxton Roberts, Nashville, Tennessee, for the appellant, Norman Hill. C. Benton Patton, Nashville, Tennessee, for the appellees, Danny Tapia, Jr., and Tabet Enterprises. David S. Zinn and Raney B. Cronin, Brentwood, Tennessee, for the appellee, Estate of

Norma Aguila. OPINION I. Background On September 9, 2008, Plaintiff/Appellant Norman Hill's vehicle was rear-ended by Defendant/Appellee Danny Tapia's vehicle. Mr. Hill was taken to the hospital by ambulance, where he was treated for neck pain. Mr. Hill was examined and scheduled for release. Before Mr. Hill was actually released, however, he rose to walk to the hospital restroom. At this time, he began experiencing pain in his hip and buttocks. The emergency room physician ordered X-rays, which showed no fractures and no abnormalities in his hip or pelvis other than an indication that Mr. Hill suffered from arthritis, a subset of degenerative disc disease, in his lower back. The emergency room physician prescribed pain medication and instructed Mr. Hill to use a combination of cold and heat in order to ease the pain. Mr. Hill was then released to go home. Despite following the emergency room physician's advice, Mr. Hill's pain did not subside. Mr. Hill's wife was a nurse at the hospital where he was treated. Mrs. Hill informed the emergency room physician that her husband was still experiencing pain. Based on her report, the emergency room physician provided a referral to Dr. Carl Hampf, a neurosurgeon. Mr. Hill was able to obtain an appointment with Dr. Hampf at the end of December 2008. At his first appointment, Mr. Hill and his wife filled out a New Patient Questionnaire ("the Questionnaire"), in which Mr. Hill noted that he had only been experiencing pain radiating down his leg to his foot for approximately one month. Mr. Hill stated in the Questionnaire that his pain was accident related. Mr. Hill further informed Dr. Hampf of the accident during his first appointment. Dr. Hampf diagnosed Mr. Hill with spinal stenosis and prescribed physical therapy. When the therapy failed to alleviate the pain, Dr. Hampf then prescribed epidural shots. Mr. Hill received three epidural shots during his treatment, but none alleviated his pain long term. After the third epidural shot caused Mr. Hill considerable pain, rather than relief, Dr. Hampf recommended surgery. Ultimately, Mr. Hill consented to the surgery. Mr. Hill's medical expenses throughout his treatment totaled $107,411.00. On August 24, 2009, Mr. Hill filed a complaint for damages against Mr. Tapia and his employer Defendant/Appellee Tabet Enterprises ("Tabet") (which is agreed by the parties to be essentially the same entity as Defendant/Appellee Ameritrains/Broyler Equipment). Mr. Hill later amended his complaint to add, as a defendant, the Estate of Norma Aguila ("the

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Estate," and collectively with Mr. Tapia and Tabet, "Appellees").1 In the complaint, Mr. Hill sought damages in an amount not less than $250,000.00. The matter was tried on October 31 and November 3, 2011. At trial, Mr. Tapia admitted to hitting Mr. Hill with his truck, but explained that traffic on the interstate that day was forced to come to a full stop because of the actions of the driver of a Red Ford Focus, who stopped for no apparent reason in the middle of the interstate, causing Mr. Hill to stop abruptly and Mr. Tapia to hit him. Mr. Tapia took down the license plate number of the Ford Focus before coming to the aid of Mr. Hill. At trial, Normalinda Aguila Parochka testified that her mother, Norma Aguila, was the driver of the Red Ford Focus, whose license plate number Mr. Tapia had noted. At the time of the accident, Norma Aguila was eighty-three years old. At the time of trial, however, Norma Aguila has passed away due to causes unrelated to the accident. The issues in this case specifically concern the causation testimony regarding Mr. Hills's medical expenses. Mr. Hill offered the testimony of his treating physician, Dr. Hampf. Dr. Hampf testified that Mr. Hill suffered from spinal stenosis prior to the September 9, 2008 accident. However, Dr. Hampf also testified that the spinal stenosis was aggravated by the accident, stating "Based on the records, it sounds like it was aggravated, yes." However, when later asked whether "the treatment [he] provided to [Mr. Hill] . . . [was] causally related to the motor vehicle accident" at issue in the case, Dr. Hampf replied, "No, I would not relate it to the motor vehicle accident. Mr. Hill provided another witness, however, with a differing opinion. Dr. Sanat Dixit, who was qualified as an expert, testified that Mr. Hill's condition was aggravated by the accident and required surgery to alleviate. Specifically, Dr. Dixit testified that he agreed with Dr. Hampf's prior conclusion that Mr. Hill's spinal stenosis was aggravated by the accident and further opined that the accident caused Mr. Hill's condition to worsen. In addition, Dr. Dixit testified that all of Mr. Hill's $107,411.00 in medical treatment was reasonable and necessary as a result of the accident. Dr. Dixit further testified that Mr. Hill would likely require an additional surgery in the future. Other than the statements cited above by Dr. Hampf, the Appellees offered no expert testimony of their own regarding causation. At the close of proof, Mr. Hill moved for a directed verdict on the issue of causation, arguing that, because Dr. Hampf's testimony was conflicting and vague, it should be stricken, and that the only remaining proof at trial regarding causation was the testimony of Dr. Dixit. The trial court denied the motion and sent the case to the jury. On November 3, 2011, the jury
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The amended complaint is not contained in the record; however, the parties do not dispute that the Estate was a properly named defendant in this case.

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rendered a verdict for Mr. Hill finding Mr. Tapia 15% at fault and the Estate 85% at fault. The jury awarded Mr. Hill damages in the amounts of $3,386.55 for past medical care, $2,000.00 for past physical pain and suffering and $500.00 for past mental and emotional pain and suffering. No damages for future medical expenses were awarded. The Judgment was entered by the trial court on November 10, 2011. On December 2, 2011, Mr. Hill filed a Motion for Judgment in Accordance with a Motion for Directed Verdict or, in the alternative for a New Trial. The trial court denied the motion on January 3, 2012. On February 2, 2012, Mr. Hill filed a motion for Discretionary Costs. On March 28, 2012, the trial court awarded costs to Mr. Hill in an amount equal to the jury award of $5,685.55. II. Issues Presented Mr. Hill raises the following issue for review: 1. Whether the trial court erred in refusing to grant Mr. Hill's motions for judgment in accordance with a motion for a directed verdict on the issue of causation? 2 In the posture of appellee, the Estate raises the following issues: 1. 2. Whether the trial court erred in concluding that Mr. Hill's motion for discretionary costs was timely filed? If Mr. Hill's motion for discretionary costs was timely filed, whether the trial court abused its discretion in awarding Mr. Hill discretionary costs in the amount of $5,685.55, an amount that did not relate to costs actually proven by Mr. Hill but was awarded because it was equal to the judgment entered in favor of Mr. Hill? III. Motion for Judgment in Accordance with a Motion for Directed Verdict A. Standard of Review Our review of a trial court's decision regarding a post-trial motion for entry of judgment in accordance with a motion for a directed verdict is gauged by the standard applicable to motions for a directed verdict. Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977). Directed verdicts are appropriate only when reasonable minds cannot differ as to the conclusions to be drawn from the evidence. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Ingram v. Earthman, 993 S.W.2d 611, 627 (Tenn. Ct. App.1998). A case should not be taken away from the jury,

We note that these issues were properly raised in Mr. Hill's Motion for Judgment in Accordance with a Motion for Directed Verdict or, in the alternative, for a New Trial. See Tenn. R. App. P. 3(e) (requiring that issues on appeal from a jury verdict be specifically raised in a motion for new trial).

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even when the facts are undisputed, if reasonable persons could draw different conclusions from the facts. Gulf, M. & O.R. Co. v. Underwood, 182 Tenn. 467, 474, 187 S.W.2d 777, 779 (1945); Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App. 1995). A trial court may, however, direct a verdict with regard to an issue that can properly be decided as a question of law because deciding purely legal questions is the court's responsibility, not the jury's. In appeals from a directed verdict, reviewing courts do not weigh the evidence, Conatser v. Clarksville Coca

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