FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO.
60CV-12-2596] HONORABLE ALICE S. GRAY, JUDGE
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for
Law Firm, by: Kevin Staten and Brian A. Brown, for appellee.
WAYMOND M. BROWN, Judge.
Johnny Warren sued appellee Anthony Frizell for negligence
after Frizell rear-ended Warren in an automobile accident on
July 13, 2009. Warren sought damages for medical expenses,
pain and suffering, lost wages, gas mileage, costs, other
damages, and attorney's fees. A jury trial took place on
January 7, 2015, and Frizell admitted liability. At the
conclusion of the trial, the jury returned a verdict in
Frizell's favor. A judgment based on the jury's
verdict was filed on July 15, 2015, dismissing Warren's
complaint with prejudice. Warren filed a motion for a
judgment notwithstanding the verdict (JNOV) and for a new
trial on July 21, 2015. The court never acted on the motion,
and it was deemed denied after thirty days. Warren filed a
timely notice of appeal on September 17, 2015. On appeal,
Warren argues that (1) the trial court erred when it did not
enter a judgment in favor of Warren for his medical expenses
and (2) the trial court erred by denying Warren's motion
for a new trial. Frizell cross-appeals, arguing that the
trial court erred in finding that Frizell was not contesting
that Warren's medical treatment was reasonable and
necessary and that Warren needed to be off
work. We affirm.
testified that he was self-employed as the owner of Power
Plus Pressure Washing at the time of the accident. He stated
that at that time, he had a contract with Pepsi to wash their
trucks throughout the state and that he was making
approximately $60, 000 a year. He said that the accident took
place on Broadway Avenue as he was going to the gym. He
stated that he had to "catch" himself when he was
rear-ended because he was going forward all of a sudden. He
said that he braced himself with the steering wheel in order
to prevent his head from hitting it or the windshield. He
stated that following the accident, they pulled onto Plum
Street. He testified that he was driving a 1988 Fleetwood
Brougham and that Frizell was driving a "big
Sierra" with a guardrail. Warren stated that following
the accident, the brake lights did not work, the gas hand was
out, the taillight assembly was bent and a filler piece
between the taillight and the car was busted, and the bumper
guards were knocked off of the bumper. Additionally, he
stated that the shocks underneath the bumper were busted,
causing oil to leak from them. He said that he was able to
drive his vehicle home, and that after the accident, he
decided not to go to the gym.
testified that the less he moved, the more pain he was in. He
stated that he could barely sleep that night due to pain in
his lower back and that he decided to go to the emergency
room at Springhill Baptist the next morning. He said that
x-rays were taken of his back and that he received a
prescription for pain medication. He was also told to
follow-up with his primary care physician. He stated that he
did not have a physician at the time. He said that he took
the medicine but realized that it was not helping his pain.
He testified that he finally decided to go see Dr. William
Rutledge. Warren said that he presented to Dr. Rutledge on
July 20, 2009, with neck and back pain. He stated that Dr.
Rutledge prescribed pain medication and physical therapy. He
said that he was taken off of work for over two months, from
July 20, 2009, to September 29, 2009. He stated that he went
to physical therapy about three months. He testified that he
was seeking reimbursement for his medical expenses. He also
asked to be compensated $10, 000 for lost wages.
cross-examination, Warren stated that his taxable income for
2008 was $17, 699 and that his taxable income for 2009 was
$19, 039. He denied ever injuring his back or neck prior to
the accident. He stated that he currently had no problems
from his injuries and denied pretending to be hurt after the
testified that he was driving a 2008 Sierra GMC with a
guardrail at the time of the accident. He stated that he
noticed appellant's vehicle in front of him going at a
"very slow speed." He opined that he was going no
faster than fifteen (15) mph, when "all of a sudden,
[appellant] stopped." He stated that he swerved to the
left and "nicked" appellant. He described the
accident as a minor bump that did not involve the truck's
guardrail. He said that he noticed a "little nick"
on appellant's left bumper at the top of the taillight
and that his truck had a small black scratch on it. He stated
that when appellant got out of his vehicle, he was
"bouncing around." Frizell stated that appellant
called the police and that they went to Plum Street to give
statements concerning the accident. He testified that Warren
did not complain about being injured at the scene of the
On cross-examination, Frizell stated in pertinent part:
I am not a doctor. I'm not a nurse. I have no medical
training in terms of being able to diagnose people. I'm
not telling the jury that I know better than Dr. Jones at the
emergency room. I would never do that. I was not there. I
trust her opinion over mine. It was my first appearance that
he was not hurt.
I'm not telling the ladies and gentlemen of the jury that
it was unreasonable for the doctor to order an x-ray.
And when she prescribed medicine for him, the Flexeril and
the Loratab, I'm not suggesting to the ladies and
gentlemen of the jury that that wasn't something that was
I don't know Dr. William Rutledge. When he saw him, and
he prescribed him physical therapy because he saw muscle
spasms and things of that nature, I'm not telling the
ladies and gentlemen of the jury that there weren't any
muscle spasms or anything of that nature.
I'm not suggesting that somehow another that when he
prescribed the physical therapy, that that was something that
I'm not saying that it was inappropriate for a doctor of
his trained opinion as a doctor, a medical doctor to take him
off work. I don't think that was wrong. His opinion is
superior to all. I mean he's the doctor. Yes. It was
appropriate for Dr. Rutledge, in his expert opinion, to have
Mr. Warren to be off for the period of time that he asked. On
redirect, Frizell stated that he was not injured in the
accident and that his body did not "move about" his
truck in the accident.
Warren and Frizell made motions for directed verdict at the
conclusion of Frizell's case, and the following colloquy
Mr. Proctor: Actually, based upon the defendant's
testimony, I now move that the Court would enter a judgement
in favor of the plaintiff He just go[t] through testifying
that he felt that the medical evidence that we presented was
-- that the treatment -- he could not contest the fact that
the treatment was not necessary. He agreed that the treatment
was something that was necessary. He agreed with the fact
that the doctor took him off for the period of time.
So as far as the medical evidence -- I know they contest the
amount of the lost wages. But as far as the medical expenses
and the records, Your Honor, we move that we get a judgement
for the $7, 000 in the record -- $7, 000 in medical expenses
based upon the admission of the defendant. Now, I know the
$10, 000 is still an issue because he -- they're
contesting the amount of the wages. But, you know, he just
conceded that -- he conceded our reasonable and necessary. So
there is nothing to go to the jury on that.
Mr. Staten: Your Honor, he said that he is no doctor. And
it's up to the jury to decide what medical expenses are
reasonable and necessary in relating to the accident. He did
not concede and say, oh, I agree that the medical bills are
reasonable and necessary. He just said he did not -- he was
not a doctor, and he wasn't going to question the doctor.
I've never heard of a case like this where the medical
bills have been a judgement. The medical bills, based on the
testimony of a layperson.
Mr. Proctor: Your Honor, here's the problem, Your Honor,
what evidence is there in the record the fact that the
medical bills and expenses are not reasonably related.
Mr. Staten: It's up to the jury.
Mr. Proctor: It's not up to the jury, Your Honor. When
the other side concedes it -- if he had said, No, I don't
agree -- if he had just said: No, I'm not a doctor. I
don't agree, then, okay, maybe he has a point. But when
you say: No, I'm not a doctor. I agree. The doctor has
the superior opinion. That is what he said. Then, there is
nothing. There's no dispute. There is no longer a factual
dispute. We are entitled to a judgement.
The Court: I think it's a matter of the questions that
you are asking. And I'm going to allow the ...